Vol. 77 Thursday, No. 36 February 23, 2012
Part II
Department of the Interior
Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Endangered Status and Designations of Critical Habitat for Spikedace and Loach Minnow; Final Rule
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10810 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
DEPARTMENT OF THE INTERIOR agreement. With the change in status for December 27, 2010. On October 4, 2011 the species, the special rules for each (76 FR 61330), we published a revised Fish and Wildlife Service species will be removed from the Code proposed rule, announced the of Federal Regulations. In total, availability of a draft economic analysis 50 CFR Part 17 approximately 1,013 kilometers (630 and environmental assessment of the [Docket No. FWS–R2–ES–2010–0072; miles) are designated as critical habitat proposed designations, and announced 4500030114] for spikedace and 983 kilometers (610 the scheduling of a public information miles) are designated as critical habitat session and public hearing. Our October RIN 1018–AX17 for loach minnow in Apache, Cochise, 4, 2011, notice also reopened the Gila, Graham, Greenlee, Pinal, and comment period on the revised Endangered and Threatened Wildlife Yavapai Counties, Arizona, and Catron, proposed rule and uplisting for an and Plants; Endangered Status and Grant, and Hidalgo Counties in New additional 30 days, until November 3, Designations of Critical Habitat for Mexico. Of this area, approximately 853 2011. Spikedace and Loach Minnow kilometers (529 miles) are designated for Spikedace AGENCY: Fish and Wildlife Service, both species, with an additional 162 Interior. kilometers (100 miles) for spikedace The spikedace is a member of the minnow family Cyprinidae, and is the ACTION: Final rule. only and an additional 130 kilometers (81 miles) for loach minnow only. We only species in the genus Meda. The SUMMARY: We, the U.S. Fish and have excluded from this designation of spikedace was first collected from the Wildlife Service (Service), change the critical habitat: portions of the upper San Pedro River in 1851. The spikedace status of spikedace (Meda fulgida) and San Pedro River in Arizona based on is a small, slim fish less than 75 loach minnow (Tiaroga cobitis) from potential impacts to national security at millimeters (mm) (3 inches (in)) in threatened to endangered under the Fort Huachuca; Tribal lands of the length (Sublette et al. 1990, p. 136). Endangered Species Act of 1973, as White Mountain Apache Tribe, San Spikedace have olive-gray to brownish amended (Act). With this rule we are Carlos Apache Tribe, and the Yavapai- skin, with silvery sides and vertically also revising the designated critical Apache Nation in Arizona; and private elongated black specks. Spikedace have habitats for both species. These changes lands owned by Freeport-McMoRan in spines in the dorsal fin (Minckley 1973, fulfill our obligations under a settlement Arizona and New Mexico. pp. 82, 112, 115). agreement. Spikedace are found in moderate to Background large perennial streams, where they DATES: This rule becomes effective on inhabit shallow riffles (those shallow March 26, 2012. It is our intent to discuss in this final rule only those topics directly relevant portions of the stream with rougher, ADDRESSES: This final rule and the to the development and designations of choppy water) with sand, gravel, and associated final economic analysis and critical habitat for the spikedace and the rubble substrates (Barber and Minckley environmental assessment are available loach minnow under the Act (16 U.S.C. 1966, p. 31; Propst et al. 1986, p. 12; on the Internet at http:// 1531 et seq.). For more information on Rinne and Kroeger 1988, p. 1; Rinne www.regulations.gov. Comments and the biology and ecology of the spikedace 1991, pp. 8–10). Specific habitat for this materials received, as well as supporting and the loach minnow, refer to the final species consists of shear zones where documentation used in preparing this listing rule published in the Federal rapid flow borders slower flow; areas of final rule, are available for public Register on July 1, 1986, for spikedace sheet flow at the upper ends of inspection, by appointment, during (51 FR 23769), and October 28, 1986, for midchannel sand or gravel bars; and normal business hours, at the U.S. Fish loach minnow (51 FR 39468); the eddies at downstream riffle edges and Wildlife Service, Arizona Ecological previous critical habitat designations (Rinne 1991, p. 11; Rinne and Kroeger Services Office, 2321 W. Royal Palm (72 FR 13356, March 21, 2007); and our 1988, pp. 1, 4). Recurrent flooding and Road, Suite 103, Phoenix, AZ 85021; 1991 final recovery plans, which are a natural flow regime are very important telephone 602–242–0210; facsimile available from the Arizona Ecological in maintaining the habitat of spikedace 602–242–2513. Services Office (see ADDRESSES section). and in helping maintain a competitive FOR FURTHER INFORMATION CONTACT: For information on spikedace and loach edge over invading nonnative aquatic Steve Spangle, Field Supervisor, U.S. minnow critical habitat, refer to the species (Propst et al. 1986, pp. 76–81; Fish and Wildlife Service, Arizona proposed rule to designate critical Minckley and Meffe 1987, pp. 97, 103– Ecological Services Office, 2321 W. habitat for the two species published in 104). Royal Palm Road, Suite 103, Phoenix, the Federal Register on October 28, The spikedace was once common AZ 85021; telephone 602–242–0210; 2010 (75 FR 66482). A notice of throughout much of the Gila River facsimile 602–242–2513. If you use a availability regarding changes to the basin, including the mainstem Gila telecommunications device for the deaf proposed rule and information on the River upstream of Phoenix, and the (TDD), call the Federal Information associated draft economic analysis and Verde, Agua Fria, Salt, San Pedro, and Relay Service (FIRS) at 800–877–8339. draft environmental assessment for the San Francisco subbasins. Habitat SUPPLEMENTARY INFORMATION: proposed rule to designate revised destruction and competition and critical habitat was published in the predation by nonnative aquatic species Executive Summary Federal Register on October 4, 2011 (76 reduced its range and abundance (Miller In this final rule, we are changing the FR 61330). 1961, pp. 365, 377, 397–398; Lachner et status of spikedace and loach minnow al. 1970, p. 22; Ono et al. 1983, p. 90; from threatened to endangered under Previous Federal Actions Moyle 1986, pp. 28–34; Moyle et al. the Act. We also are revising our Previous Federal actions prior to 1986, pp. 416–423; Propst et al. 1986, designations of critical habitat for both October 28, 2010, are outlined in our pp. 82–84). Spikedace are now species. We are under undertaking these proposed rule (75 FR 66482), which was restricted to portions of the upper Gila actions pursuant to a settlement published on that date. Publication of River (Grant, Catron, and Hidalgo agreement and publication of this action the proposed rule opened a 60-day Counties, New Mexico); Aravaipa Creek will fulfill our obligations under that comment period which closed on (Graham and Pinal Counties, Arizona);
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10811
Eagle Creek (Graham and Greenlee inadequate to detect a sparse Mexico) (Miller 1998, pp. 4–5; ASU Counties, Arizona); and the Verde River population. 2002; Carter 2005, pp. 1–5; Carter, (Yavapai County, Arizona) (Marsh et al. Population estimates have not been 2008b, pers. comm.; Clarkson et al. 1990, pp. 107–108, 111; Brouder, 2002, developed as a result of the difficulty in 2008, pp. 3–4; Robinson 2009c, p. 3); pers. comm.; Stefferud and Reinthal detecting the species, the sporadic • Aravaipa Creek and its tributaries, 2005, pp. 16–21; Paroz et al. 2006, pp. nature of most surveys, and the Turkey and Deer Creeks (Graham and 62–67; Propst 2007, pp. 7–9, 11–14; difference in surveying techniques that Pinal Counties, Arizona) (Stefferud and Reinthal 2011, pp. 1–2). have been applied over time. Based on Reinthal 2005, pp. 16–21); In 2007, spikedace were translocated the available maps and survey • Eagle Creek (Graham and Greenlee into Hot Springs and Redfield Canyons, information, we estimate the present Counties, Arizona), (Knowles 1994, pp. in Cochise County, Arizona, and these range for spikedace to be approximately 1–2, 5; Bagley and Marsh 1997, pp. 1– streams were subsequently augmented 10 percent or less of its historical range, 2; Marsh et al. 2003, pp. 666–668; Carter (Robinson 2008a, pp. 2, 6; Robinson, and the status of the species within et al. 2007, p. 3; Bahm and Robinson 2008b, pers. comm.; Orabutt, 2009 pers. occupied areas ranges from common to 2009a, p. 1); comm.; Robinson 2009a, pp. 2, 5–8). very rare. Data indicate that the • The North Fork East Fork Black (We use the term ‘‘translocate’’ to population in New Mexico has declined River (Apache and Greenlee Counties, describe stocking fish into an area in recent years (Paroz et al. 2006, p. 56). Arizona) (Leon 1989, pp. 1–2; Lopez, where suitable habitat exists, but for Historical and current records for 2000, pers. comm.; Gurtin, 2004, pers. which there are no documented spikedace are summarized in three comm.; Carter 2007b, p. 2; Robinson et collections.) Both Hot Springs and databases (ASU 2002, AGFD 2004, al. 2009b, p. 4); and Redfield canyons are tributaries to the NMDGF 2008), which are referenced • Possibly the White River and its San Pedro River. Spikedace were also throughout this document. tributaries, the East and North Fork translocated into Fossil Creek, a White River (Apache, Gila, and Navajo tributary to the Verde River in Gila Loach Minnow Counties, Arizona). County, Arizona, in 2007, and were The loach minnow is a member of the subsequently augmented in 2008 and minnow family Cyprinidae. The loach As described for spikedace above, 2011 (Carter 2007b, p. 1; Carter 2008a, minnow was first collected in 1851 from population estimates for loach minnow p. 1; Robinson 2009b, p. 9; Boyarski et the San Pedro River in Arizona and was have not been developed as a result of al. 2010, p. 3, Robinson 2011a, p. 1). In described by those specimens in 1856 the difficulty in detecting the species, 2008, spikedace were translocated into by Girard (pp. 191–192). The loach the sporadic nature of most surveys, and Bonita Creek, a tributary to the Gila minnow is a small, slender fish less the difference in surveying techniques River in Graham County, Arizona than 80 mm (3 in) in length. It is olive- that have been applied over time. (Blasius, 2008, pers. comm.; Orabutt, colored overall, with black mottling or However, based on the available maps 2009,, pers. comm.; Robinson et al. splotches. Breeding males have vivid and survey information, we estimate the 2009a, p. 209; Blasius and Conn 2011, red to red-orange markings on the bases present range for loach minnow to be p. 3), and were repatriated to the upper of fins and adjacent body, on the mouth approximately 15 to 20 percent or less San Francisco River in Catron County, and lower head, and often on the of its historical range, and the status of New Mexico (Propst, 2010, pers. abdomen (Minckley 1973, p. 134; the species within occupied areas comm.). (We use the term ‘‘repatriate’’ Sublette et al. 1990, p. 186). ranges from common to very rare. Data to describe stocking fish into an area Loach minnow are found in small to indicate that the population in New where we have historical records of large perennial streams and use shallow, Mexico has declined in recent years prior presence.) Augmentations with turbulent riffles with primarily cobble (Paroz et al. 2006, p. 56). Historical and additional fish will occur for the next substrate and swift currents (Minckley current records for spikedace are several years at all sites, if adequate 1973, p. 134; Propst et al. 1988, pp. 36– summarized in three databases (ASU numbers of fish are available. 43; Rinne 1989, pp. 113–115; Propst and 2002, AGFD 2004, NMDGF 2008), Monitoring at each of these sites is Bestgen 1991, pp. 29, 32–33). The loach which are referenced throughout this ongoing to determine if populations minnow uses the spaces between, and document. ultimately become self-sustaining. in the lee (sheltered) side of, rocks for Summary of Factors Affecting the The species is now common only in resting and spawning. It is rare or absent Species Aravaipa Creek in Arizona (AGFD 1994; from habitats where fine sediments fill Arizona State University (ASU) 2002; these interstitial spaces (Propst and Under the Act and our implementing Reinthal 2011, pp. 1–2) and one section Bestgen 1991, p. 34). regulations, a species may warrant of the Gila River south of Cliff, New Loach minnow are now restricted to: listing if it is endangered or threatened Mexico (NMDGF 2008; Propst et al. • Portions of the Gila River and its throughout all or a significant portion of 2009, pp. 14–17). The Verde River is tributaries, the West, Middle, and East its range. Both spikedace and loach presumed occupied; however, the last Fork Gila River (Grant, Catron, and minnow currently exist in a small captured fish from this river was from Hidalgo Counties, New Mexico) (Paroz portion of their historical range (10 a 1999 survey (Brouder 2002, p. 1; and Propst 2007, p. 16; Propst 2007, pp. percent, or less, for spikedace, and 15 to AGFD 2004). Spikedace from the Eagle 7–8, 10–11, 13–14); 20 percent for loach minnow), and the Creek population have not been seen for • The San Francisco and Tularosa threats continue throughout its range. over a decade (Marsh 1996, p. 2), rivers and their tributaries, Negrito and Accordingly, our assessment and although they are still thought to exist Whitewater Creeks (Catron County, New determination applies to each species in numbers too low for the sampling Mexico) (Propst et al. 1988, p. 15; ASU throughout its entire range. Section 4 of efforts to detect (Carter et al. 2007, p. 3; 2002; Paroz and Propst 2007, p. 16; the Act (16 U.S.C. 1533), and see Minckley and Marsh 2009). The Propst 2007, pp. 4–5); implementing regulations (50 CFR part Middle Fork Gila River population is • The Blue River and its tributaries, 424), set forth the procedures for adding thought to be very small and has not Dry Blue, Campbell Blue, Pace, and species to the Federal Lists of been seen since 1991 (Jakle 1992, p. 6), Frieborn Creeks (Greenlee County, Endangered and Threatened Wildlife but sampling is localized and Arizona, and Catron County, New and Plants.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10812 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
Under section 4(a)(1) of the Act, a streams, large reservoirs, or dewatered Arizona—New Mexico border (Arizona species may be determined to be channels, thus eliminating suitable Department of Water Resources 2011a, endangered or threatened based on any spikedace and loach minnow habitat in p. 1). of the following five factors: (1) The impacted areas (Propst et al. 1986, p. 3; Additional withdrawals of water from present or threatened destruction, Tellman et al. 1997, pp. 37, 50, 63–64, the Gila and San Francisco rivers may modification, or curtailment of its 66, 103). These habitat changes, together occur in the future. Implementation of habitat or range; (2) overutilization for with the introduction of nonnative fish Title II of the Arizona Water Settlements commercial, recreational, scientific, or species (see factors C and E), have Act (AWSA) (Pub. L. 108–451) would educational purposes; (3) disease or resulted in the extirpation of spikedace facilitate the exchange of Central predation; (4) the inadequacy of existing and loach minnow throughout an Arizona Project water within and regulatory mechanisms; or (5) other estimated 80 to 90 percent of their between southwestern river basins in natural or manmade factors affecting its historical ranges. Arizona and New Mexico, and may continued existence. In making this Spikedace and loach minnow are result in the construction of new water finding, information pertaining to stream-dwelling fish, and are associated development projects. For example, spikedace and loach minnow, in only with flowing water. Spikedace are Section 212 of the AWSA pertains to the relation to the five factors provided in found in moderate to large perennial New Mexico Unit of the Central Arizona section 4(a)(1) of the Act, is discussed streams, and occur where the stream has Project. below. flowing, rougher, choppy water (Barber The AWSA provides for New Mexico In considering what factors might and Minckley 1966, p. 31; Propst et al. water users to deplete 140,000 acre-feet constitute threats to a species, we must 1986, p. 12; Rinne and Kroeger 1988, p. of additional water from the Gila Basin look beyond the exposure of the species 1; Rinne 1991, pp. 8–10). Loach minnow in any ten-year period. The settlement to a factor to evaluate whether the occur in shallow, turbulent riffles where also provides the ability to divert that species may respond to the factor in a there are swift currents (Minckley 1973, water without complaint from way that causes actual impacts to the p. 134; Propst et al. 1988, pp. 36–43; downstream pre-1968 water rights in species. If there is exposure to a factor Rinne 1989, pp. 113–115; Propst and Arizona. New Mexico will receive $66 and the species responds negatively, the Bestgen 1991, pp. 29, 32–33). Water million to $128 million in non- factor may be a threat and we attempt withdrawals that either dewater reimbursable federal funding. The to determine how significant a threat it channels or reduce flows to low levels Interstate Stream Commission (ISC) is. The threat is significant if it drives, or pools within an active channel funds may be used to cover costs of an or contributes to, the risk of extinction therefore eliminate the habitat used by actual water supply project, planning, of the species such that the species the two species. environmental mitigation, or restoration warrants listing as endangered or Many streams currently or formerly activities associated with or necessary threatened as those terms are defined in occupied by spikedace and loach for the project, and may be used on one the Act. minnow have been affected by water or more of 21 alternative projects Throughout the document, we discuss withdrawals. The Gila River ranging from Gila National Forest San areas in which spikedace or loach downstream of the town of Cliff, New Francisco River Diversion/Ditch minnow have been reintroduced, Mexico, flows through a broad valley improvements to a regional water translocated, or augmented. For where irrigated agriculture and livestock supply project (the Deming Diversion purposes of this document, we consider grazing are the predominant uses. Project). At this time, it is not known the species to have been reintroduced Human settlement has increased since how the funds will be spent, or which when they have been placed back into 1988 (Propst et al. 2008 (pp. 1237– potential alternative(s) may be chosen. While multiple potential project an area in which they were formerly 1238). Agricultural practices have led to proposals have been accepted by the present, but no longer are. We consider dewatering of the river in the Cliff-Gila New Mexico Office of the State Engineer the fish to have been translocated when valley at times during the dry season (NMOSE) (NMOSE 2011a, p. 1), they are placed into a location for which (Soles 2003, p. 71). For those portions of the Gila River downstream of the implementation of the AWSA is still in we have no previous records of Arizona-New Mexico border, the planning stages on these streams. occurrence. Augmentation occurs when agricultural diversions and groundwater The AWSA mandates that the ISC make we add additional individuals to a pumping have caused declines in the the final determination of contracts for former reintroduction or translocation water table, and surface flows in the water and allocation of funding and project, in an attempt to establish a central portion of the river basin are provide notice to the Secretary of the stable population. diverted for agriculture (Leopold 1997, Interior by December 31, 2014. New A. The Present or Threatened pp. 63–64; Tellman et al. 1997, pp. 101– Mexico ISC must make any final Destruction, Modification, or 104; Arizona Department of Water determination during an open, public Curtailment of Habitat or Range Resources 2000, pp. 16–17). meeting, and only after consultation The San Francisco River has with the Gila San Francisco Water Water Withdrawals undergone sedimentation, riparian Commission, the citizens of Southwest Water resources are limited in the habitat degradation, and extensive water New Mexico, and other affected Southwestern United States and diversion and at present has an interests. Due to the timeline associated diversions and withdrawals have led to undependable water supply throughout with this project, as well as the the conversion of portions of habitat to portions of its length. The San Francisco uncertainties in how funding will be intermittent streams or reservoirs River is seasonally dry in the Alma spent, and which potential alternative unsuitable for spikedace or loach Valley, and two diversion structures or alternatives will be chosen, the minnow. Growing water demands fragment habitat in the upper Alma Service is unable to determine the reduce southern Arizona perennial Valley and at Pleasanton (NMDGF 2006, outcome of this process at this time. surface water and threaten aquatic p. 302). The San Francisco River in However, should water be diverted from species. Historically, water withdrawals Arizona was classified as impaired due the Gila or San Francisco rivers, flows led to the conversion of large portions to excessive sediment from its would be diminished and direct and of flowing streams into intermittent headwaters downstream to the indirect losses and degradation of
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10813
habitat for aquatic and riparian species the 2000 water usage. The middle and of native fishes including loach would result. The San Francisco River lower Verde River has limited or no minnow. Reductions of available water is currently occupied by loach minnow, flow during portions of the year due to within this reach could preclude its use and is the site of a 2008 reintroduction agricultural diversion and upstream for recovery purposes. This area is for spikedace. The Gila River is a impoundments, and has several currently considered occupied by stronghold for both species, currently impoundments in its middle reaches, spikedace that are considered supporting the largest remaining which could expand the area of genetically (Tibbets 1993, pp. 25–29) populations of each. For these reasons, impacted spikedace and loach minnow and morphologically (Anderson and impacts to either river is of particular habitat. The Little Chino basin within Hendrickson 1994, pp. 148, 150–154) concern for the persistence of these the Verde River watershed has already distinct from all other spikedace species. experienced significant groundwater populations. Groundwater withdrawal in Eagle declines that have reduced flow in Del Portions of the San Pedro River are Creek, primarily for water supply for a Rio Springs (Arizona Department of now classified as formerly perennial, large open-pit copper mine at Morenci, Water Resources 2000, pp. 1–1, 1–2). including areas from which spikedace Arizona dries portions of the stream Blasch et al. (2006, p. 2) suggests that and loach minnow are now extirpated (Sublette et al. 1990, p. 19; Service groundwater storage in the Verde River (The Nature Conservancy 2006). Water 2005; Propst et al. 1986, p. 7). Mining watershed has already declined due to withdrawals are also a concern for the is the largest industrial water user in groundwater pumping and reductions in San Pedro River. The Cananea Mine in southeastern Arizona. The Morenci natural channel recharge resulting from Sonora, Mexico, owns the land mine on Eagle Creek is North America’s streamflow diversions. surrounding the headwaters of the San largest producer of copper, covering Also impacting water in the Verde Pedro. There is disagreement on the approximately 24,281 hectares (ha) River, the City of Prescott, Arizona, exact amount of water withdrawn by the (60,000 acres (ac)). Water for the mine experienced a 22 percent increase in mine, Mexicana de Cananea, which is is imported from the Black River, population between 2000 and 2005 one of the largest open-pit copper mines diverted from Eagle Creek as surface (U.S. Census Bureau 2010, p. 1), in the world. However, there is flows, or withdrawn from the Upper averaging around 4 percent growth per agreement that it is the largest water Eagle Creek Well Field (Arizona year (City of Prescott 2010, p. 1). In user in the basin (Harris et al. 2001; Department of Water Resources 2009, addition, the towns of Prescott Valley Varady et al. 2000, p. 232). p. 1). and Chino Valley experienced growth Another primary groundwater user in Aravaipa Creek is relatively protected rates of 66 and 67 percent, respectively the San Pedro watershed is Fort from further instream habitat loss due to (Arizona Department of Commerce Huachuca. Fort Huachuca is a U.S. water withdrawals because it is partially 2009a, p. 1; 2009b, p. 1). This growth is Army installation located near Sierra within a Bureau of Land Management facilitated by groundwater pumping in Vista, Arizona. Initially established in (BLM) Wilderness area and partially the Verde River basin. In 2004, the cities 1877 as a camp for the military, the within a Nature Conservancy preserve. of Prescott and Prescott Valley water rights of the Fort are predated However, Aravaipa Creek is affected by purchased a ranch in the Big Chino only by those of local Indian tribes upstream uses in the watershed, basin in the headwaters of the Verde (Varady et al. 2000, p. 230). Fort primarily groundwater pumping for River, with the intent of drilling new Huachuca has pursued a rigorous water irrigation. Irrigation can reduce creek wells to supply up to approximately use reduction plan, working over the flows, as crop irrigation uses large 4,933,927 cubic meters (4,000 acre-feet past decade to reduce groundwater amounts of water, especially during the (AF)) of groundwater per year. If such consumption in the Sierra Vista summer months when the creek flows drilling occurs, it could have serious Subwatershed. Their efforts have are already at their lowest. Increased adverse effects on the mainstem and focused primarily on reductions in groundwater pumping from wells is tributaries of the Verde River. groundwater demand both on-post and known to be linked to reduced creek Scientific studies have shown a link off-post and increased artificial and flows (JE Fuller 2000, pp. 4–8). between the Big Chino aquifer and enhanced recharge of the groundwater On the mainstem Salt River, spring flows that form the headwaters of system. Annual pumping from Fort impoundments have permanently the Verde River. It is estimated that 80 Huachuca production wells has limited the flow regime and suitability to 86 percent of baseflow in the upper decreased from a high of approximately for spikedace or loach minnow. Verde River comes from the Big Chino 3,200 AF in 1989 to a low of Spikedace are extirpated from portions aquifer (Wirt 2005, p. G8). However, approximately 1,400 AF in 2005. In of the Salt and Gila Rivers that were while these withdrawals could addition, Fort Huachuca and the City of once perennial and are now classified as potentially dewater the upper 42 km (26 Sierra Vista have increased the amount regulated (ASU 2002, The Nature mi) of the Verde River (Wirt and of water recharged to the regional Conservancy 2006). Hjalmarson 2000, p. 4), it is uncertain aquifer through construction of effluent Water depletion is also a concern for that this project will occur given the recharge facilities and detention basins the Verde River. In 2000, the Arizona legal and administrative challenges it that not only increase stormwater Department of Water Resources (2000, faces; however, an agreement in recharge but mitigate the negative p. 1–1) reported that the populations of principle was signed between various effects of increased runoff from major cities and towns within the Verde factions associated with water rights urbanization. The amount of effluent River watershed had more than doubled and interests on the Verde River that was recharged by Fort Huachuca in the last 20 years, resulting in more (Citizens Water Advocacy Group 2010; and the City of Sierra Vista in 2005 was than a 39 percent increase in municipal Verde Independent 2010, p. 1). 426 AF and 1,868 AF, respectively. water usage. The Arizona Department of This upper portion of the Verde River During this same year, enhanced Water Resources (2000, p. 1–1) is considered currently occupied by stormwater recharge at detention basins anticipated that human populations in spikedace, and barrier construction and was estimated to be 129 AF. The total the Verde River watershed are expected stream renovation plans are under way net effect of all the combined efforts to double again before 2040, resulting in with the intention of using this initiated by Fort Huachuca has been to more than a 400 percent increase over historically occupied area for recovery reduce the net groundwater
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10814 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
consumption by approximately 2,272 sedimentation can fill these spaces in, above regulatory limits (Arizona AF (71 percent) since 1989 (Service removing shelter for loach minnow, and Department of Environmental Quality 2007, pp. 41–42). reducing available breeding habitat. 2006, p. 2; Arizona Department of Water In addition to impacts on water Spikedace are typically found over Resources 2011b, p. 1). A preliminary availability within streams, diversion sand, gravel, and rubble substrates study in Aravaipa Creek has found high structures can create barriers for fish (Barber and Minckley 1966, p. 31; levels of lead in two other native fish movement. Larger dams may prevent Propst et al. 1986, p. 12; Rinne and species, Sonora sucker (Catostomus movement of fish between populations Kroeger 1988, p. 1; Rinne 1991, pp. 8– insignis) and roundtail chub (Gila and dramatically alter the flow regime 10). Changes in sediment transport and robusta), as well as in the sediment and of streams through the impoundment of alteration of substrate size can make an in some of the invertebrates. These lead water (Ligon et al. 1995, pp. 184–189). area unsuitable for spikedace. Both levels are high enough that they could These diversions also require periodic species occur in streams with specific negatively impact reproduction maintenance and reconstruction, water velocities, and increasing flow (Reinthal, 2010, pers. comm.). We do resulting in potential habitat damages velocities as a result of channelization not know with certainty whether these and inputs of sediment into the active may also make an area unsuitable. levels of lead would affect spikedace or stream. loach minnow, but we assume similar Water Quality In summary, water withdrawals have impacts would occur as they are occurred historically, and continue to In the past, the threat from water collocated with Sonora sucker and occur, throughout the ranges of pollution was due primarily to roundtail chub in Aravaipa Creek. spikedace and loach minnow. catastrophic pollution events (Rathbun The Service completed contaminant Groundwater pumping and surface 1969, pp. 1–5; Eberhardt 1981, pp. 3–6, studies on the San Francisco River and diversions used for agricultural, 8–10) or chronic leakage from large Gila River in the 1990s. Two sites on the industrial, and municipal purposes can mining operations (Eberhardt 1981, pp. San Francisco River exceeded the lead to declines in the water table and 2, 16). Although this is not as large a International Joint Commission (IJC) dewatering of active stream channels. problem today as it was historically, background level standards for arsenic, Ongoing water withdrawals are known some damage to spikedace and loach cadmium, copper, mercury, and zinc. to occur on the Gila, San Francisco, and minnow populations still occurs from Cadmium levels at site 2 were Verde rivers, and are occurring at occasional spills or chronic inability to approximately 16.5 times the limited levels, with the potential for meet water quality standards (United background level, while copper was increased withdrawals on Aravaipa States v. ASARCO, No. 98–0137 PHX– nearly 25 times greater than the Creek. ROS (D. Ariz. June 2, 1998)). Mine background level. The two San tailings from a number of past and Stream Channel Alteration Francisco River sites did not exceed present facilities throughout the Gila domestic water source water quality Sections of many Gila Basin rivers Basin would threaten spikedace standards for trace element and streams have been, and continue to populations if catastrophic spills occur concentrations, where those standards be, channelized for flood control, which (Arizona Department of Health Services are provided for Arizona. The study site disrupts natural channel dynamics 2010, p. 3). Spills or discharges have closest to, but downstream of, the (sediment scouring and deposition) and occurred in the Gila River and affected portion of the Gila River included in the promotes the loss of riparian plant streams within the watersheds of designation exceeded IJC background communities. Channelization changes spikedace and loach minnow, including level standards for trace element the stream gradient above and below the the Gila River, San Francisco River, San concentrations for arsenic, cadmium, channelization. Water velocity increases Pedro River, and some of their and copper. DDE was recovered in all in the channelized section, which tributaries (Environmental Protection whole body and edible fish samples, as results in increased rates of erosion of Agency (EPA) 1997, pp. 24–67; Arizona were aluminum, arsenic, barium, the stream and its tributaries, Department of Environmental Quality chromium, selenium, and strontium. accompanied by gradual deposits of 2000, p. 6; Church et al. 2005, p. 40; Cadmium, mercury, and selenium sediment in downstream reaches that Arizona Department of Environmental concentrations were determined to may increase the risk of flooding Quality 2007, p. 1). potentially pose a threat to fish-eating (Emerson 1971, p. 326; Simpson 1982, In January of 2006, the Arizona birds in the Gila River basin (Baker and p. 122). Historical and ongoing Department of Environmental Quality King 1994, pp. 6–14, 17, 19, 22). channelization will continue to announced that it had been conducting Organochlorine contaminants contribute to riparian and aquatic a remedial investigation at the Klondyke detected included heptachlor, habitat decline most notably eliminating tailings site on Aravaipa Creek, which chlordane, and DDE. The concentrations cover and reducing nutrient input. currently supports one of the two of these pesticides were below Stream channel alteration can affect remaining populations where spikedace concentrations known to affect survival spikedace and loach minnow habitat by and loach minnow are considered and reproduction of most fish species. reducing its complexity, eliminating common. The Klondyke tailings site was The study recommended continued cover, reducing nutrient input, a mill that processed ore to recover lead, monitoring, due to the high cadmium improving habitat for nonnative species, zinc, copper, silver, and gold between and mercury concentrations that changing sediment transport, altering the 1920s and the 1970s. There are eight approach the critical reproductive effect substrate size, increasing flow contaminants in the tailings and soil at threshold level in more than one-half of velocities, and reducing the length of the Klondyke tailings site that are at the samples. In addition, the study the stream (and therefore the amount of levels above regulatory limits. These recommended monitoring for selenium aquatic habitat available) (Gorman and contaminants are: antimony; arsenic; as selenium levels exceeded dietary Karr 1978, pp. 512–513; Simpson 1982, beryllium; cadmium; copper; lead; levels for protection of avian predators. p. 122; Schmetterling et al. 2001, pp. 7– manganese; and zinc. Samples of Such monitoring has not occurred. 10). Loach minnow occupy interstitial shallow groundwater collected at the The Arizona Department of Water spaces between cobble (Propst and site contained arsenic, beryllium, Resources notes that 67 sites on the San Bestgen 1991, p. 34), and increases in cadmium, chromium, lead, and nickel Pedro River have parameter
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10815
concentrations that have equaled or Exposure to pesticides can result in a wildfires and their suppression. Based exceeded their drinking water variety of behaviors. Sublethal on historical records and long term tree- standards. The most frequently equaled behaviors are those that do not result in ring records, wildfires have increased in or exceeded parameters included death. Sublethal responses of fish to the ponderosa pine forests of the arsenic and fluoride, but other pesticide exposure can include central Southwest, including the range of the parameters equaled or exceeded in the nervous system disorders, increased spikedace and loach minnow (Swetnam sites measured in the San Pedro Basin ventilation rates, loss of equilibrium, and Betancourt 1990, pp. 1017, 1019; were cadmium, lead, nitrates, beryllium, rapid, jerky movements, dark Swetnam and Betancourt 1998, pp. mercury, and total dissolved solids discoloration or hemorrhaging in 3131–3135). This is due to a (Arizona Department of Water muscles and beneath the dorsal fin, combination of decades of fire Resources 2011c, p. 1). The Verde River erratic, uncoordinated swimming suppression, increases in biomass due has three different reaches that exceed movements with spasms and to increased precipitation after 1976, standards for turbidity, totaling 37.5 convulsions, and spinal abnormalities and warming temperatures coupled miles between Oak Creek and West (Meyer and Barclay 1990, p. 21). with recent drought conditions Clear Creek. Additionally, Oak Creek Exposure to metals at toxic levels can (University of Arizona 2006, pp. 1, 3). exceeds the standards for E. coli have varying effects. Low levels of some As wildfires increase, so does the use of (Arizona Department of Water metals, such as selenium, are essential fire-retardant chemical applications. Resources 2011d, p. 1). for good health. However, excess levels Some fire-retardant chemicals are There are few studies, with the of selenium can be toxic, and selenium ammonia-based, which is toxic to exception of the study at Aravaipa is considered one of the most toxic aquatic wildlife; however, many Creek, which discuss contaminants on elements to fish (Sorensen 1991, pp. 17– formulations also contain yellow spikedace and loach minnow. 22). For other metals such as lead, all prussiate of soda (sodium ferrocyanide), Generally, contaminants can have both known effects on biological systems are which is added as an anticorrosive sublethal and lethal effects. Sublethal negative (Hoffman et al. 1995, p. 356). agent. Such formulations are toxic for Exposure to metals causes a variety of effects are those, such as the lead fish, aquatic invertebrates, and algae impacts, including disruption to feeding contamination at Aravaipa Creek, which (Angeler et al. 2006, pp. 171–172; Calfee behaviors, altered respiratory rates, may reduce a species’ ability to and Little 2003, pp. 1527–1530; Little growth inhibition, and delayed sexual reproduce. Lethal are those effects that and Calfee 2002, p. 5; Buhl and maturation; damage to body structure result in death for the species. Large fish Hamilton 1998, p. 1598; Hamilton et al. including skin, nervous system, and kills are more rare now than in the past. 1998, p. 3; Gaikwokski et al. 1996, pp. musculature, gills, fins, and spines; Pollution is increasingly more 1372–1373). Toxicity of these damage to organs including the liver, formulations is enhanced by sunlight widespread and more often from kidneys, intestines, heart, and (Calfee and Little 2003, pp. 1529–1533). nonpoint sources. Urban and suburban chemoreceptors (used in migration); In a 2008 biological opinion issued by development is one source of nonpoint- alterations to blood and blood the Service to the U.S. Forest Service source pollution. Increasing the amount chemistry, including red blood cells, (USFS) on the nationwide use of fire of runoff from roads, golf courses, and hemoglobin levels, protein retardants, the Service concluded that other sources of petroleum products, concentrations, glucose concentrations, the use of fire retardants can cause pesticides, and other toxic materials can and antibody titers; and damage to the mortality to fish by exposing them to cause changes in fish communities nervous system leading to muscle ammonia. We concluded in the opinion (Wang et al. 1997, pp. 6, 9, 11). Nutrient spasms, paralysis, hyperactivity, and a that the proposed action, which and sediment loads are increasing in loss of equilibrium (Sorensen 1991, pp. included the application of fire urban areas (King et al. 1997, pp. 7–24, 17–22, 34–48 (selenium), 74–78 retardants throughout the range of the 38, 39) and, combined with depleted (arsenic); 104–107 (lead); 153–164 species, was likely to jeopardize the stream flows, can be serious threats to (zinc); 199–219 (cadmium); 253–275 continued existence of the spikedace aquatic ecosystems during some periods (copper); and 312–323 (mercury)). and loach minnow (Service 2008a). This of the year. Sewage effluent can contain The impacts of a toxin in a system consultation was recently reinitiated lead, especially where the treatment vary by species, as well as by age level and completed in October 2011. The plant receives industrial discharges or of the organism. For some metals, such revised biological opinion included highway runoff (Hoffman et al. 1995, p. as copper or mercury, fish are more additional buffers and protective 361). The number of bridges and roads severely affected at the embryonic and measures and concluded that the increases with expanding rural and reproductive stages of the life cycle revised protocol for fire retardant use urban populations in Arizona (Arizona (Sorensen 1991, p. 269; Hoffman et al. was not likely to jeopardize the Department of Transportation 2000, pp. 1995, p. 398). It is also important to note continued existence of either spikedace 1–3), and pose significant risks to the that, for some metals, such as cadmium, or loach minnow (Service 2011). fish from increases in toxic materials copper, lead, and mercury, increased Severe wildfires capable of extirpating along roadways (Trombulak and Frissell temperatures or changes in water or decimating fish populations are a 2000, pp. 22–24). Some metals, like lead chemistry, such as pH or organic matter, relatively recent phenomenon, and and cadmium, are associated with fuel can affect the toxicity of the metal result from the cumulative effects of combustion. Lead can be found in (Sorensen 1991, p. 184; Hoffman et al. historical or ongoing grazing and fire vehicle emissions (Hoffman et al. 1995, 1995, pp. 395–396). Therefore, there can suppression (Madany and West 1983, pp. 369, 405). be an increased threat from exposure to pp. 665–667; Savage and Swetnam As noted previously, human toxins in streams that have also 1990, p. 2374; Swetnam 1990, p. 12; populations within the ranges of undergone alterations such as vegetation Touchan et al. 1995, pp. 268–271; spikedace and loach minnow are removal due to fire or construction and Swetnam and Baisan 1996, p. 29; Belsky expected to increase over the next 20 maintenance activities, or improper and Blumenthal 1997, pp. 315–316, years. Therefore, we expect a livestock grazing. 324–325; Gresswell 1999, pp. 193–194, corresponding increase in nonpoint- An additional, increasing source of 213). Historical wildfires were primarily source pollution. contamination for streams is caused by cool-burning understory fires with
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10816 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
return intervals of 4 to 8 years in completed in the fall of 2011 indicated Arizona University 2005, pp. 134–136). ponderosa pine (Swetnam and Dieterich reduced numbers of loach minnow Similar impacts have been observed at 1985, pp. 390, 395). Cooper (1960, p. (Adelsberger et al. 2011, p. 1). Aravaipa Creek. We do not have 137) concluded that, prior to the 1950s, Effects of fire may be direct and information on the impacts of litter on crown fires were extremely rare or immediate or indirect and sustained spikedace and loach minnow; however, nonexistent in the region. However, over time. Because spikedace and loach impacts from vegetation loss can since 1989, high-severity wildfires, and minnow are found primarily in the include soil compaction, which when subsequent floods and ash flows, have lower elevation, higher-order streams, combined with vegetation loss, can caused the extirpation of several they are most likely affected by the result in increased runoff and populations of Gila trout in the Gila indirect effects of fire (e.g., ash flows, sedimentation in waterways (Monz et National Forest, New Mexico (Propst et increased water temperatures), not al. 2010, pp. 551–553; Andereck 1993, al. 1992, pp. 119–120, 123; Brown et al. direct effects (e.g., drastic changes in p. 2). 2001, pp. 140–141). It is not known if pH, ammonium concentrations). Recreation overuse can result in spikedace or loach minnow have Indirect effects of fire include ash and decreased riparian vegetation (USFS suffered local extirpations; however, debris flows, increases in water 2008, pp. 7–17) and subsequent native fishes, including spikedace and temperature, increased nutrient inputs, increases in stream temperatures. loach minnow, in the West Fork Gila and sedimentation, some of which can Recreation is cited as one of the causes River, showed 60 to 80 percent last for several years to more than a of impairment due to water temperature decreases in population following the decade after the fire (Amaranthus et al. on the West Fork Gila River (EPA 2010, Cub Fire in 2002, due to flooding events 1989, pp. 75–77; Propst et al. 1992, pp. p. 1). We discuss temperature tolerances after the fire (Rinne and Carter 2008, pp. 119–120; Gresswell 1999, pp. 194–211; below in the microhabitat discussions 171). Increased fines (sediments) and Burton 2005, pp. 145–146; Dunham et for each species. Spikedace and loach ash may be continuing to affect the al. 2007, pp. 335, 340–342; Rinne and minnow are known to have a range of populations on the West Fork Gila, near Carter 2008, pp. 169–171; Mahlum et al. temperatures in which they occur, and the Gila Cliff Dwellings (Propst et al. 2011, pp. 243–246). Of these, ash flows recent research by the University of 2008, p. 1247). probably have the greatest effect on Arizona has determined upper Since the proposed rule was spikedace and loach minnow. Ash and temperature tolerances for the two published in October of 2011, the debris flows may occur months after species. Spikedace did not survive Wallow Fire burned portions of the fires, when barren soils are eroded exposure of 30 days at 34 or 36 °C (93.2 critical habitat designations for during monsoonal rain storms (Bozek or 96.8 °F), and 50 percent mortality spikedace and loach minnow, and Young 1994, pp. 92–94). Ash and occurred after 30 days at 32.1 °C (89.8 specifically the Black River Complex in fine particulate matter created by fire °F). In addition, growth rate was slowed Unit 2 (loach minnow only), and the can fill the interstitial spaces between at 32 °C (89.6 °F), as well as at the lower Blue River Complex in Unit 7 (both gravel particles, eliminating spawning test temperatures of 10 and 4 °C (50 and species). The Wallow Fire encompassed habitat or, depending on the timing, 39.2 °F). Multiple behavioral and just over 217,721 ha (538,000 ac) total suffocating eggs that are in the gravel. physiological changes were observed, in Arizona and New Mexico (InciWeb Ash and debris flows can also decimate indicating the fish became stressed at 2011), and was the largest wildfire in aquatic invertebrate populations that the 30, 32, and 33 °C (86, 89.6 and 91.4 °F) Arizona’s history. fish depend on for food (Molles 1985, p. treatments. Similarly, the study Portions of Units 2 and 7 of the 281). determined that no loach minnow critical habitat designation fall within survived for 30 days at 32 °C (89.6 °F), Recreation the Wallow Fire perimeter. Within Unit and that 50 percent mortality occurred 2, the North Fork East Fork Black River The impacts to spikedace and loach after 30 days at 30.6 °C (87.1 °F). For falls within an unburned area inside the minnow from recreation can include loach minnow, growth rate slowed at 28 perimeter of the fire, as does most of movement of people or livestock, such and 30 °C (82.4 and 86.0 °F) compared Boneyard Creek. The majority of East as horses or mules, along streambanks, to growth at 25 °C (77 °F), indicating Fork Black River falls within an area trampling, loss of vegetation, and that loach minnow were stressed at that experienced low burn severity, but increased danger of fire (Northern sublethal temperatures. The study does cross a few areas that were either Arizona University 2005, p. 136; Monz concludes that temperature tolerance in unburned or burned at moderate burn et al. 2010, pp. 553–554). In the arid the wild may be even lower due to the severity. Coyote Creek is in an area Gila River Basin, recreational impacts influence of additional stressors, almost entirely burned at low severity. are disproportionately distributed along including disease, predation, Within Unit 7, the majority of Campbell streams as a primary focus for recreation competition, or poor water quality. Blue Creek is within unburned or low (Briggs 1996, p. 36). Within the range of burn severity areas; however, spikedace and loach minnow, the Roads and Bridges approximately 2.4 km (1.5 mi) of the majority of the occupied areas occur on Roads impact Gila River Basin upper end of Campbell Blue Creek is Federal lands, which are managed for streams (Dobyns 1981, pp. 120–129, within moderate and high burn severity. recreation and other purposes. 167, 198–201), including spikedace, The Wallow Fire stopped just west of Spikedace and loach minnow are loach minnow, and their habitats (Jones the Blue River, but came within experiencing increasing habitat impacts et al. 2000, pp. 82–83). The need for approximately 0.3 km (0.2 mi) of the from such use in some areas. For bridges and roads increases with River. However, the rainfall during the example, Fossil Creek experienced an increasing rural and urban populations summer monsoon, which began before increase in trail use at one site, with an in Arizona (Arizona Department of the fire was extinguished, contributed estimated 8,606 hikers using the trail in Transportation 2000, pp. 1–3). In ash and sediment to both streams. In the 1998, and an estimated 19,650 hikers addition, existing roads and bridges Blue River, ash and sediment travelled using the trail in 2003. Dispersed have ongoing maintenance requirements as far downstream as the San Francisco camping also occurs in the area. The that result in alterations of stream River, resulting in fish kills (Blasius, greatest impacts from camping were channels within spikedace and loach 2011, pers. comm.). Fish surveys vegetation loss and litter (Northern minnow habitats (Service 1994a, pp. 8–
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10817
12; Service 1995a, pp. 10–12; Service Livestock Grazing combination, loss of riparian vegetation 1995b, pp. 5–7; Service 1997a, pp. 10– Livestock grazing has been one of the and bank erosion can alter channel 15; Service 1997b, pp. 54–77). Bridge most widespread and long-term causes morphology, including increased construction or repair causes channel of adverse impacts to native fishes and erosion and deposition, increased alteration and, if not carefully executed, their habitat (Miller 1961, pp. 394–395, sediment loads, downcutting, and an can result in long-term channel 399), but is one of the few threats where increased width-to-depth ratio, all of adjustments, altering habitats upstream adverse effects to species such as which lead to a loss of spikedace and and downstream. In some areas, low- spikedace and loach minnow are loach minnow habitat components. water crossings exist within occupied decreasing, due to improved Livestock grazing management also spikedace and loach minnow habitats management on Federal lands (Service continues to include construction and and cause channel modification and 1997c, pp. 121–129, 137–141; Service maintenance of open stock tanks, which habitat disruption. Low-water crossings 2001, pp. 50–67). This improvement are often stocked with nonnative aquatic species harmful to spikedace and loach on general-use roads exist in a number occurred primarily by discontinuing minnow (Service 1997b, pp. 54–77) if of areas that may support spikedace and grazing in the riparian and stream they escape or are transported to waters loach minnow. These crossings corridors. However, although adverse effects are less than in the past, where these native fish occur. frequently require maintenance An indirect effect of grazing can livestock grazing within watersheds following minor flooding. include the development of water tanks where spikedace and loach minnow and Generally, there are fewer new bridge for livestock. In some cases, stocktanks their habitats are located continues to construction projects within critical are used to stock nonnative fish for cause adverse effects. These adverse sportfishing, or they may support other habitat; however, one proposed bridge effects occur through watershed will occur near the designation for nonnative aquatic species such as alteration and subsequent changes in bullfrogs or crayfish. In cases where spikedace in Unit 2 over Tonto Creek. the natural flow regime, sediment Road and bridge maintenance and stocktanks are in close proximity to live production, and stream channel streams, they may occasionally be repairs occur frequently on the Blue morphology (Platts 1990, pp. I–9—I–11; River. There have been repeated road breached or flooded, with nonnative Belsky et al. 1999, pp. 1–3, 8–10; fish escaping from the stocktank and repairs near the Gila Cliff Dwellings on Service 2001, pp. 50–67). the West Fork Gila River because the entering stream habitats (Hedwall and Livestock grazing can destabilize Sponholtz 2005, pp. 1–2; Stone et al. bridge span is too short to accommodate stream channels and disturb riparian 2007, p. 133). peak flows. This is a common problem ecosystem functions (Platts 1990, pp. I– on bridges that cross the Gila River, and 9—I–11; Armour et al. 1991, pp. 7–10; Climate Conditions on other rivers occupied by spikedace Tellman et al. 1997, pp. 20–21, 33, 47, Climate conditions have contributed and loach minnow in the Southwest. In 101–102; Wyman et al. 2006, pp. 5–7). to the status of the spikedace and loach an attempt to protect bridges, large Medina et al. (2005, p. 99) note that the minnow now and will likely continue amounts of fill (such as boulders, rip impacts of grazing vary within and into the future. While floods may rap, and dirt) are used to confine and among ecoregions, and that some benefit the species, habitat drying redirect the river. Typically, this habitat riparian areas can sustain little to no affects the occurrence of natural events, alteration is detrimental to spikedace ungulate grazing, while others can such as fire, drought, and forest die-off, and loach minnow because it changes sustain very high use. They further note and increases the chances of disease and the channel gradient and substrate that threatened and endangered fish infection. composition, and reduces habitat populations and their associated Consideration of climate change is a availability. Eventually, peak flows riparian habitat ‘‘* * * may require component of our analyses under the remove the fill material, roads and some form of protection from grazing of Endangered Species Act. In general bridges are damaged, and the resulting all ungulates (e.g., elk, deer, cattle) terms, ‘‘climate change’’ refers to a repairs and reconstruction lead to * * *’’. Improper livestock grazing can change in the state of the climate additional habitat disturbance (Service negatively affect spikedace and loach (whether due to natural variability, 1998, 2002a, 2005, 2008b, 2008c, 2009, minnow through removal of riparian human activity, or both) that can be 2010a). vegetation (Propst et al. 1986, p. 3; Clary identified by changes in the mean or and Webster 1989, p. 1; Clary and variability of its properties, and that The impacts of bridge and road Medin 1990, p. 1; Schulz and Leininger persists for an extended period— construction, usage, and repairs can 1990, p. 295; Fleishner 1994, pp. 631– typically decades or longer include increased sedimentation, either 633, 635–636), that can result in (Intergovernmental Panel on Climate due to driving across low-water reduced bank stability and higher water Change (IPCC) 2007a, p. 78). crossings in active stream channels, or temperatures (Kauffman and Krueger Changes in climate are occurring. due to excavation associated with 1984, pp. 432–434; Platts and Nelson Examples include warming of the global maintenance and repair activities. 1989, pp. 453, 455; Fleishner 1994, pp. climate system over recent decades, and Vehicles using low-water crossings as 635–636; Belsky et al. 1999, pp. 2–5, 9– substantial increases in precipitation in well as heavy equipment in active 10). Livestock grazing can also cause some regions of the world and decreases channels during construction or repairs increased sediment in the stream in other regions (for these and other can both harm eggs of spikedace and channel, due to streambank trampling examples see IPCC 2007a, p. 30; loach minnow, and compress substrates and riparian vegetation loss (Weltz and Solomon et al. 2007, pp. 35–54, 82–85). so that the interstitial spaces used by Wood 1986, pp. 364–368; Pearce et al. Most of the observed increase in adult loach minnow are removed. 1998, pp. 302, 307; Belsky et al. 1999, global average temperature since the Maintenance and construction work on p. 10). Livestock can physically alter the mid-20th century cannot be explained banks around bridges and roads may streambank through trampling and by natural variability in climate, and is also lead to increased sedimentation shearing, leading to bank erosion very likely due to the observed increase due to sediment disturbance or the (Trimble and Mendel 1995, pp. 243– in greenhouse gas concentrations in the removal of vegetation. 244; Belsky et al. 1999, p. 1). In atmosphere as a result of human
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10818 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
activities, particularly emissions of throughout all or a significant portion of 2011c). Habitat losses occur when carbon dioxide from fossil fuel use its range. If a species is listed as surface waters decrease, resulting in (IPCC 2007a, p. 5 and Figure SPM.3; threatened or endangered, knowledge insufficient flows which may continue Solomon et al. 2007, pp. 21–35). regarding the species’ vulnerability to, to fill low areas as pool habitat, but Therefore, to project future changes in and impacts from, climate-associated which do not continue to have sufficient temperature and other climate changes in environmental conditions depth or velocity to create the habitat conditions, scientists use a variety of can be used to help devise appropriate types preferred by spikedace and loach climate models (which include strategies for its recovery. minnow. consideration of natural processes and Climate simulations of Palmer Summary of Factor A variability) in conjunction with various Drought Severity Index (PSDI) (a scenarios of potential levels and timing calculation of the cumulative effects of Spikedace and loach minnow face a of greenhouse gas emissions (e.g., Meehl precipitation and temperature on variety of threats throughout their range et al. 2007 entire; Ganguly et al. 2009, surface moisture balance) for the in Arizona and New Mexico, including pp. 11555, 15558; Prinn et al. 2011, pp. Southwest for the periods of 2006–2030 groundwater pumping, surface water 527, 529). and 2035–2060 predict an increase in diversions, impoundments, dams, The projected magnitude of average drought severity with surface warming. channelization, improperly managed global warming for this century is very Additionally, drought still increases livestock grazing, wildfire, agriculture, similar under all combinations of during wetter simulations because the mining, road building, residential models and emissions scenarios until effect of heat-related moisture loss development, and recreation. These about 2030. Thereafter, the projections (Hoerling and Eicheid 2007, p. 19). activities, alone and in combination, show greater divergence across Annual mean precipitation is likely to contribute to riparian habitat loss and scenarios. Despite these differences in decrease in the Southwest as well as the degradation of aquatic resources in projected magnitude, however, the length of snow season and snow depth Arizona and New Mexico. overall trajectory is one of increased (IPCC 2007b, p. 887). Most models Changes in flow regimes are expected warming throughout this century under project a widespread decrease in snow to continue into the foreseeable future. all scenarios, including those which depth in the Rocky Mountains and Groundwater pumping, surface water assume a reduction of greenhouse gas earlier snowmelt (IPCC 2007b, p. 891). diversions, and drought are reducing emissions (Meehl et al. 2007, pp. 760– Exactly how climate change will affect available surface flow in streams 764; Ganguly et al. 2009, pp. 15555– precipitation is less certain, because occupied by spikedace and loach 15558; Prinn et al. 2011, pp. 527, 529). precipitation predictions are based on minnow. These conditions are ongoing, (For examples of other global climate continental-scale general circulation but drought conditions are worsening projections, see IPCC 2007b, p. 8.) models that do not yet account for land and there are at least two large diversion Various types of changes in climate use and land cover change effects on projects in the planning stages which can have direct or indirect effects on climate or regional phenomena. may result in further water withdrawals species and these may be positive or Consistent with recent observations in on the Verde and Gila rivers. For negative depending on the species and changes from climate, the outlook spikedace and loach minnow, reduced other relevant considerations, including presented for the Southwest predicts surface flow in streams can decrease the interacting effects with existing habitat warmer, drier, drought-like conditions amount of available habitat by fragmentation or other nonclimate (Seager et al. 2007, p. 1181; Hoerling eliminating flowing portions of the variables. There are three main and Eischeid 2007, p. 19). A decline in stream used by the two species. In components of vulnerability to climate water resources with or without climate addition, stream channel alterations, change: Exposure to changes in climate, change will be a significant factor in the such as diversion structures and sensitivity to such changes, and compromised watersheds of the desert channelization of streams, affect the adaptive capacity (IPCC 2007a, p. 89; southwest. flow regimes, substrate, and Glick et al. 2011, pp. 19–22). Because On August 16, 2011, the U.S. sedimentation levels that are needed for aspects of these components can vary by Department of Agriculture granted a suitable spikedace and loach minnow species and situation, as can request from the Governor of Arizona to habitat. interactions among climate and assign Apache, Cochise, Graham, Impacts associated with roads and nonclimate conditions, there is no Greenlee, and Santa Cruz counties as bridges, changes in water quality, single way to conduct our analyses. We primary natural disaster areas due to improper livestock grazing, and use the best scientific and commercial losses caused by drought, wildfires, and recreation have altered or destroyed data available to identify potential high winds. The purpose of such a many of the rivers, streams, and impacts and responses by species that designation is to make farm operators in watershed functions in the ranges of the may arise in association with different both primary and contiguous disaster spikedace and loach minnow. While components of climate change, areas eligible to be considered for fish kills are less common now than in including interactions with nonclimate assistance from the Farm Service the past, water quality issues exist in conditions. Agency (FSA) (Vilsack 2011). However, several streams, and can include As is the case with all potential this designation is a recognition of contamination by cadmium, lead, threats, if a species is currently affected drought in counties inhabited by nitrates, beryllium, mercury, and total or is expected to be affected in a spikedace and loach minnow, including dissolved solids. These contaminants negative way by one or more climate- Apache, Graham, and Greenlee can have adverse effects on the prey related impacts, this does not counties. For New Mexico, the NMOSE base of the species and can be either necessarily mean the species meets the reported that, for the first 5 months of sublethal, affecting their overall health definition of a threatened or endangered 2011, statewide precipitation was only or ability to reproduce, or can be lethal. species as defined under the Act. The 35 percent of normal in New Mexico Construction and maintenance at impacts of climate change and other (NMOSE 2011b). They include bridges, improper livestock grazing, conditions would need to be to the level spikedace and loach minnow on a list wildfire, and recreation may also that the species is in danger of of species likely to be affected by remove or reduce vegetation, which can extinction, or likely to become so, drought due to loss of habitat (NMOSE impact water temperatures. With
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10819
increased temperatures, spikedace and species that are still extant, but are directly affect others, such as by loach minnow may experience multiple considered to be endangered or fighting, producing toxins, or preying behavioral and physiological changes at threatened, introduced nonnative upon them (Schoener 1983, p. 257). elevated temperatures, and extreme species are a primary cause of the Exploitive competition occurs when temperatures can result in death. decline (Lassuy 1995, pp. 391–394). individuals affect others indirectly, such Decreases in precipitation and increases Release or dispersal of new nonnative as through use of common resources in temperatures due to climate change aquatic organisms is a continuing (Douglas et al. 1994, p. 14). Interference and drought are likely to further limit phenomenon in the species’ range competition in the form of predation is the areas where spikedace or loach (Rosen et al. 1995, p. 254). Currently, discussed here, while a discussion of minnow can persist by causing further the majority of native fishes in Arizona the history of nonnative species decreases in surface flows and and 80 percent of native fishes in the introductions and resulting interference potentially increases in temperature. Southwest are on either State or Federal competition for resources is under The combined impacts of decreased protection lists. Factor E below. flows, increased sedimentation, Nonnative fish introductions in the increased temperatures, and impaired southwestern United States began before Altered Flow Regimes and Nonnative water quality diminish the amount of 1900, and have steadily increased in Predators habitat available and the suitability of frequency (Rinne and Stefferud 1996, p. Alterations of stream channels that habitat in some areas. These 29). New species are continually being through channelization, surface and impacts are further exacerbated by introduced through various groundwater withdrawals are discussed predation by and competition with mechanisms, including aquaculture, above under Factor A. Propst et al. nonnative species and other factors, as aquarium trade, sport fish stocking, live (2008, p. 1236) completed a study on outlined below. bait use, interbasin water transfers, and the interaction of physical modification general ‘‘bait bucket transport,’’ where of stream channels coupled with the B. Overutilization for Commercial, people move fish from one area to widespread introduction and Recreational, Scientific, or Educational another without authorization and for a establishment of nonnative aquatic Purposes variety of purposes (Service 1994b, pp. species. Following evaluation of six Currently, collection of spikedace and 12–16; Service 1999, pp. 24–59). Nearly study sites in the upper Gila River loach minnow in Arizona is prohibited 100 kinds of nonnative fishes have been drainage, they determined that the by Arizona Game and Fish Commission stocked or introduced into streams in negative association between nonnatives Order 40, except where such collection the Southwest (Minckley and Marsh and native fishes indicated a complex is authorized by special permit (Arizona 2009, p. 51). Nonnative fishes known to relationship between naturally variable Game and Fish Department (AGFD) occur within the historical range of the flows and nonnative species, and varied 2009, p. 5). The collection of these spikedace include channel catfish at the study sites (Propst et al. 2008, p. species is prohibited in the State of New (Ictalurus punctatus), flathead catfish 1236). For the West, Middle, and East Mexico except by special scientific (Pylodictis olivaris), red shiner Forks of the Gila River, they determined permit (New Mexico Department of (Cyprinella lutrensis), fathead minnow that natural flow alone would be Game and Fish (NMDGF) 2010, p. 4). (Pimephales promelas), green sunfish insufficient to conserve native fish Because spikedace and loach minnow (Lepomis cyanellus), largemouth bass assemblages. The Tularosa and San do not grow larger than 80 mm (3 in), (Micropterus salmoides), smallmouth Francisco River study sites were we conclude that angling for this bass (Micropterus dolomieui), rainbow affected by human use (albeit at low species is not a threat. No known trout (Oncorhynchus mykiss), brown levels), and neither site supported more commercial uses exist for spikedace or trout (Salmo trutta), mosquitofish than a few nonnative fishes, with none loach minnow. A limited amount of (Gambusia affinis), carp (Cyprinus in most years. Declines of loach minnow scientific collection occurs, but does not carpio), bluegill (Lepomis macrochiris), in this area may be due to the natural pose a threat to these species because it yellow bullhead (Ameiurus natalis), variability of the system; however, the is regulated by the States. Therefore, we black bullhead (Ameiurus melas), and research concluded that resilience of have determined that overutilization for goldfish (Carassius auratus) (ASU native fish assemblages may be commercial, recreational, scientific, or 2002). compromised by the presence of the educational purposes is not a threat to In the Gila River basin, introduction nonnative species. spikedace or loach minnow at this time. of nonnative species is considered a The Gila River study site, just primary factor in the decline of native downstream of the town of Cliff, was the C. Disease or Predation fish species (Minckley 1985, pp. 1, 68; most affected by human activity, and The introduction and spread of Williams et al. 1985, pp. 1–2; Minckley was exposed to the greatest number of nonnative species has been identified as and Deacon 1991, pp. 15–17; Douglas et nonnative fishes; however, over the one of the primary factors in the al. 1994, pp. 9–11; Clarkson et al. 2005 course of the study, the native fish continuing decline of native fishes p. 20; Olden and Poff 2005, pp. 79–87). assemblage at the site did not change. throughout North America and Aquatic and semiaquatic mammals, Although not entirely explained, the particularly in the Southwest (Miller reptiles, amphibians, crustaceans, researchers indicate that the lack of 1961, pp. 365, 397–398; Lachner et al. mollusks (snails and clams), parasites, optimal (i.e., pool) habitat for nonnative 1970, p. 21; Ono et al. 1983, pp. 90–91; disease organisms, and aquatic and predators and the comparative Carlson and Muth 1989, pp. 222, 234; riparian vascular plants outside of their abundance of habitats (e.g., cobble Fuller et al. 1999, p. 1; Propst et al. historical range, have all been riffles and shallow gravel runs) favored 2008, pp. 1246–1251; Pilger et al. 2010, documented to adversely affect aquatic by native fishes partially explains the pp. 300, 311–312). Miller et al. (1989, ecosystems (Cohen and Carlton 1995, persistence of the native fish pp. 22, 34, 36) concluded that pp. i–iv). The effects of nonnative fish assemblage. They speculate that other introduced nonnative species were a competition on spikedace and loach factors, including thermal regime or causal factor in 68 percent of fish minnow can be classified as either turbidity, might also have buffered the extinctions in North America in the last interference or exploitive. Interference interactions between native and 100 years. For the 70 percent of fish competition occurs when individuals nonnative fishes (Propst et al. 2008, pp.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10820 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
1246–1249). The study concludes that, moderate numbers in 1985 (Propst et al. nonnative fishes in remaining suitable while native fish assemblages may 1986, p. 83). areas, thus reducing the availability and persist through drought, their resistance The majority of areas considered utility of these areas for native species. and resilience are compromised if occupied by spikedace and loach It should be noted that the effects of nonnative predators are present. They minnow have seen a shift from a nonnative fishes often occur with, or are also conclude that, while retention of predominance of native fishes to a exacerbated by, changes in flow regimes natural hydrologic regimes is crucial for predominance of nonnative fishes. For or declines in habitat conditions (see the persistence of native fish spikedace, this is best demonstrated on Factor A above) and should be assemblages in arid-land streams, the upper Verde River, where native considered against the backdrop of removal and preclusion of nonnative species dominated the total fish historical habitat degradation that has predators and competitors are equally community at greater than 80 percent occurred over time (Minckley and Meffe important (Propst et al. 2008, p. 1251). from 1994 to 1996, before dropping to 1987, pp. 94, 103; Rinne 1991, p. 12). approximately 20 percent in 1997 and Nonnative channel catfish, flathead Predation 19 percent in 2001. At the same time, catfish, and smallmouth bass are present Nonnative channel catfish, flathead three nonnative species increased in in most spikedace habitats, including catfish, and smallmouth bass all prey on abundance between 1994 and 2000 the Verde River (Minckley 1993, pp. 7– spikedace and loach minnow, as (Rinne et al. 2004, pp. 1–2). Similar 13; Jahrke and Clark 1999, pp. 2–7; indicated by prey remains of native changes in the dominance of nonnative Rinne 2004, pp. 1–2; Bahm and fishes in the stomachs of these species fishes have occurred on the Middle Fork Robinson 2009b, pp. 1–4; Robinson and (Propst et al. 1986, p. 82; Propst et al. Gila River, with a 65 percent decline of Crowder 2009, pp. 3–5); the Gila River 1988, p. 64; Bonar et al. 2004, pp. 13, native fishes between 1988 and 2001 (Propst et al. 1986, pp. 14–31; Springer 16–21). Channel catfish move into riffles (Propst 2002, pp. 21–25). 1995, pp. 6–10; Jakle 1995, pp. 5–7; to feed, preying on the same animals In other areas, nonnative fishes may Propst et al. 2009, pp. 14–17); the San most important to loach minnows, not dominate the system, but their Pedro River (Jakle 1992, pp. 3–5; while juvenile flathead catfish prey on abundance has increased, while Minckley 1987, pp. 2, 16); the San loach minnows (Service 1991a, p. 5). spikedace and loach minnow Francisco River (Papoulias et al. 1989, abundance has declined. This is the Smallmouth bass are known to co-occur pp. 77–80; Propst et al. 2009, pp. 5–6); case for the Cliff-Gila Valley area of the with spikedace and are documented the Blue River (ASU 1994, multiple Gila River, where nonnative fishes predators of the species (Service 1991b, reports; ASU 1995, multiple reports; increased from 1.1 percent to 8.5 p. 6; Paroz et al. 2009, pp. 12, 18). When Clarkson et al. 2008, pp. 3–4); the percent, while native fishes declined smallmouth bass densities increased on Tularosa River, East Fork Gila River, steadily over a 40-year period (Propst et the East Fork Gila River, densities of West Fork Gila River, and Middle Fork al. 1986, pp. 27–32). At the Redrock and native fishes decreased (Stefferud et al. Gila River (Paroz et al. 2009, p. 12; Virden valleys on the Gila River, the Propst et al. 2009, pp. 7–13) and Eagle 2011, pp. 11–12). Green sunfish are also relative abundance in nonnative fishes Creek (Marsh et al. 2003, p. 667; ASU thought to be a predator, likely in the same time period increased from 2008, multiple reports; Bahm and responsible for replacement of native 2.4 percent to 17.9 percent (Propst et al. Robinson 2009a, pp. 2–6). species like spikedace and loach 1986, pp. 32–34). Four years later, the Pilger et al. (2010, pp. 311–312) minnow. While no direct studies have relative abundance of nonnative fishes studied the food webs in six reaches of been completed on predation by green increased to 54.7 percent at these sites the Gila River. Their study attempted to sunfish on spikedace or loach minnow, (Propst et al. 1986, pp. 32–36). The quantify resource overlap among native they are a known predator of fish that percentage of nonnative fishes increased and nonnative fishes. Their study size, and they occur within areas by almost 12 percent on the Tularosa determined that nonnative fishes occupied by these species. River between 1988 and 2003, while on consumed a greater diversity of Declines of native fish species appear the East Fork Gila River, nonnative invertebrates and more fish than native linked to increases in nonnative fish fishes increased to 80.5 percent relative species, and that nonnative fishes species. In 1949, for example, 52 abundance in 2003 (Propst 2005, pp. 6– consumed predacious invertebrates and spikedace were collected at Red Rock on 7, 23–24). Nonnative fishes are also terrestrial invertebrates more frequently the Gila River, while channel catfish considered a management issue in other than native fishes. They found that, on composed only 1.65 percent of the 607 areas including Eagle Creek, the San average, the diets of adult nonnative fish collected. However, in 1977, only 6 Pedro River, West Fork Gila River, and fishes were composed of 25 percent fish, spikedace were located at the same site, to a lesser extent on the Blue River and but that there was high variability and the percentage of channel catfish Aravaipa Creek. among species. Only 6 percent of the had risen to 14.5 percent of 169 fish Generally, when the species diet of channel catfish was fish, while collected. The decline of spikedace and composition of a community shifts in fish made up 84 percent of the diet of the increase of channel catfish is likely favor of nonnative fishes, a decline in flathead catfish. They found that both related (Anderson 1978, pp. 2, 13, 50– spikedace or loach minnow abundance juvenile and adult nonnative species 51). Similarly, interactions between occurs (Olden and Poff 2005, pp. 79– could pose a predation threat to native native and nonnative fishes were 86). Propst et al. (1986, p. 38) noted this fishes. observed in the upper reaches of the during studies of the Gila River between As noted below under Factor E, East Fork of the Gila River. Prior to the 1960 and 1980. While native species, nonnative fishes also compete for 1983 and 1984 floods in the Gila River including spikedace, dominated the resources with native fishes. While system, native fish were limited, with study area initially, red shiner, fathead nonnative fishes are preying on native spikedace being rare or absent, while minnow, and channel catfish were more fishes, small-bodied nonnative fishes nonnative channel catfish and prevalent following 1980. Propst et al. are also potentially affecting native smallmouth bass were moderately (1986, pp. 83–86) noted that drought fishes through competition (discussed common. After the 1983 flooding, adult and diversions for irrigation first further under Factor E), so that native nonnative predators were generally brought a decline in habitat quality, fishes are impacted by both competition absent, and spikedace were collected in followed by the establishment of and predation. Pilger et al. (2010, p.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10821
312) note that removal and preclusion of 1982, p. 46). It has been found on desert and Bonita Creek (Robinson, 2011b, nonnative predators and competitors and Sonoran suckers, as well as pers. comm.). may be necessary for conservation of roundtail chub (Robinson et al. 1998, p. Black grub, also called black spot, native fishes in the upper Gila River in 603). This parasite becomes embedded (Neascus spp.) is a parasitic larval fluke order to mitigate the effects they have under the skin and within the gill that appears as black spots on the skin, on native species. Rinne and Miller tissues of infected fish. When Ich tail base, fins, and musculature of a fish. (2006, pp. 91, 95) note that, in the upper matures, it leaves the fish, causing fluid As with yellow grub, adult black grub Verde River, native fishes have declined loss, physiological stress, and sites that trematodes live in a bird’s mouth and precipitously since the mid-1990s. They are susceptible to infection by other produce eggs, which are swallowed conclude that there are declining trends pathogens. If Ich is present in large unharmed and released into the water in of native fish abundances in the upper enough numbers, it can also impact the bird’s feces. Each stage of their life Gila River, and that the coexistence of respiration because of damaged gill cycle is named. Eggs mature in the native and nonnative fishes there may tissue. There are recorded spikedace water releasing miracidia, which infect indicate that the threshold has not been mortalities in captivity due to Ich. mollusks as a first intermediate host, reached, but may be imminent. Anchor worm (Lernaea cyprinacea), and continue to grow, becoming redia. Disease an external parasite, is unusual in that They then migrate into the tissues of a it has little host specificity, infecting a second intermediate host, which is Various parasites may affect wide range of fishes and amphibians. typically a fish. At this stage, they are spikedace and loach minnow. Asian Infection by this parasite has been termed ‘‘cercaria.’’ When the cercaria tapeworm (Bothriocephalus known to kill large numbers of fish due penetrates and migrates into the tissues acheilognathi) was introduced into the to tissue damage and secondary of a fish, it causes damage and possibly United States with imported grass carp infection of the attachment site hemorrhaging. It then becomes (Ctenopharyngodon idella) in the early (Hoffnagle and Cole 1999, p. 24). encapsulated by host tissue, and 1970s. It has since become well Presence of this parasite in the Gila established in areas throughout the melanophores, or pigmented cells, River basin is a threat to spikedace, southwestern United States. The surround the outer layers, resulting in loach minnow, and other native fishes. definitive host in the life cycle of Asian the darker color, which appears as a In July 1992, the BLM found anchor tapeworm is a cyprinid fish (carp or black spot. The damage caused by one worms in Bonita Creek. They have also minnow), and therefore it is a potential cercaria is negligible, but in greater threat to spikedace and loach minnow, been documented in Aravaipa Creek numbers they may kill a fish (Lane and as well as other native cyprinids in and the Verde River (Robinson et al. Morris 2000, pp. 2–3; Maine Department Arizona. The Asian tapeworm adversely 1998, pp. 599, 603–605). Both spikedace of Inland Fisheries and Wildlife 2002b, affects fish health by impeding the and loach minnow occur in Bonita and p. 1). Black grub are present in the digestion of food as it passes through Aravaipa Creeks. Verde River (Robinson et al. 1998, p. the digestive track. Emaciation and Yellow grub (Clinostomum 603; Bryan and Robinson 2000, p. 21), starvation of the host can occur when marginatum) is a parasitic, larval Silver Creek, Redfield Canyon, and large enough numbers of worms feed off flatworm that appears as yellow spots Fossil Creek (Robinson, 2011b, pers. the fish directly. An indirect effect is on the body and fins of a fish. These comm.), and are prevalent in the San that weakened fish are more susceptible spots contain larvae of worms which are Francisco River in New Mexico (Paroz, to infection by other pathogens. Asian typically introduced by fish-eating birds 2011 pers. comm.). tapeworm invaded the Gila River basin who ingest fish infected with the Summary of Factor C and was found during the Central parasite. Once ingested, the parasites Arizona Project’s fall 1998 monitoring mature and produce eggs in the Both spikedace and loach minnow in the Gila River at Ashurst-Hayden intestines of the bird host. The eggs are have been severely impacted by the Dam. It has also been confirmed from then deposited into water bodies in the predation of nonnative predators. Bonita Creek in 2010 and from Fossil bird waste, where they infect the livers Aquatic nonnative species have been Creek in 2004 and 2010 (U.S. Fish and of aquatic snails. The snail hosts in turn introduced or spread into new areas Wildlife Service National Wild Fish allow the parasites to develop into a through a variety of mechanisms, Health Survey 2004, 2010). This parasite second and third larval form, which including intentional and accidental can infect many species of fish and is then migrates into a fish host. Because releases, sport stocking, aquaculture, carried into new areas along with the intermediate host is a bird, and aquarium releases, and bait-bucket nonnative fishes or native fishes from therefore highly mobile, yellow grub are release. Channel catfish, flathead contaminated areas. easily spread. When yellow grub infect catfish, and smallmouth bass appear to The parasite (Ichthyophthirius a fish they penetrate the skin and be the most prominent predators, multifiliis) (Ich) usually occurs in deep migrate into its tissues, causing damage although other species contribute to the waters with low flow and is a potential and potentially hemorrhaging. Damage decline of spikedace and loach minnow. threat to spikedace and loach minnow. from one yellow grub may be minimal, Spikedace and loach minnow have been Ich has occurred in some Arizona but in greater numbers, yellow grub can replaced by nonnative fishes in several streams, probably encouraged by high kill fish (Maine Department of Inland Arizona streams. In addition to threats temperatures and crowding as a result of Fisheries and Wildlife 2002a, p. 1). from predation, we also conclude that drought. Ich is known to be present in Yellow grub occur in many areas in both spikedace and loach minnow are Aravaipa Creek (Mpoame 1982, pp. 45– Arizona and New Mexico, including reasonably certain to become impacted 47), which is currently occupied by both Aravaipa Creek (Amin 1969, p. 436; U.S. by parasites that have been documented spikedace and loach minnow. This Geological Survey (USGS) 2004, p. 71; in the Gila River basin and that are parasite was observed being transmitted Widmer et al. 2006, p. 756), Oak Creek known to adversely affect or kill fish on the Sonora sucker (Catostomus (Mpoame and Rinne 1983, pp. 400–401), hosts. For these reasons, we find that insignis), although it does not appear to the Salt River (Amin 1969, p. 436; Bryan disease and predation are significant be host-specific and could be and Robinson 2000, p. 19), the Verde threats to the spikedace and loach transmitted by other species (Mpoame River (Bryan and Robinson 2000, p. 19), minnow.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10822 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
D. The Inadequacy of Existing A limited amount of scientific considered violations of the Act (50 CFR Regulatory Mechanisms collection occurs under State 17.44(p) for spikedace and 50 CFR permitting, as authorized by the special 17.44(q) for loach minnow). As a result Because of the complex, indirect, and rule for the two species, but does not of the special rules for spikedace and cumulative nature of many of the threats pose a threat to these species because it loach minnow, the AGFD is issuing to spikedace and loach minnow, is regulated by the States. scientific collecting permits. This existing regulatory mechanisms are authority was granted at 50 CFR Federal Regulations inadequate to address or ameliorate the 17.44(p) for spikedace and 50 CFR threats. Causes of the declining status of Many Federal statutes potentially 17.44(q) for loach minnow. This is these species are a mix of many human afford protection to spikedace and loach confirmed through Arizona Commission activities and natural events, which minnow. A few of these are section 404 Order 40 and New Mexico special makes them difficult to control through of the Clean Water Act (33 U.S.C. 1251 permit (19 New Mexico Administrative regulation. et seq.), Federal Land Policy and Code 33.6.2). State Regulations Management Act (43 U.S.C. 1701–1782), Under section 7 of the Act, Federal National Forest Management Act (16 agencies must insure that any action Spikedace is listed by New Mexico as U.S.C. 1600 et seq.), National they authorize, fund, or carry out is not an endangered species, while loach Environmental Policy Act (NEPA), and likely to jeopardize the continued minnow is listed as threatened (Bison- the Act. However, in practice these existence of any endangered or M 2010). These designations provide the statutes have not been able to provide threatened species or result in the protection of the New Mexico Wildlife sufficient protection to prevent the adverse modification or destruction of Conservation Act. However, the primary downward trend in the populations and designated critical habitat. The Service focus of the New Mexico Wildlife habitat of spikedace and loach minnow promulgated regulations extending take Conservation Act and other State and the upward trend in threats. Section prohibitions under section 9 for legislation is to prevent actual 404 of the Clean Water Act regulates endangered species to threatened destruction or harm to individuals of placement of fill into waters of the species. Prohibited actions under the species. Since most of the threats to United States, including most of section 9 include, but are not limited to, these species come from actions that do spikedace and loach minnow habitat. take (i.e., harass, harm, pursue, hunt, not directly kill individuals, but However, many actions highly shoot, wound, kill, trap, capture, or indirectly result in their death from the detrimental to spikedace and loach collect, or attempt to engage in such lack of some habitat requirement or an minnow and their habitats, such as activity). Critical habitat designation inability to reproduce, the State gravel mining and irrigation diversion alerts the public that the areas protection is only partially effective for structure construction and maintenance, designated as critical habitat are this species. Similarly, spikedace and are often exempted from the Clean important for the future recovery of the loach minnow are listed as species of Water Act. Other detrimental actions, species, as well as invoking the review concern by the State of Arizona. The such as bank stabilization and road of these areas under section 7 of the Act listing under the State of Arizona law crossings, are covered under nationwide with regard to any possible Federal does not provide protection to the permits that receive little or no Service actions in that area. species or their habitats; however, review. A lack of thorough, site-specific Section 10 of the Act allows for the AGFD regulations prohibit possession of analyses for projects can allow permitting of take in the course of these species (AGFD 2006, Appendix substantial adverse effects to spikedace, otherwise lawful activities by private 10, p. 4). loach minnow, and their habitat. entities, and may involve habitat The Federal Land Policy and conservation plans which can As discussed above under Factor C, Management Act and National Forest ultimately benefit spikedace or loach the introduction and spread of Management Act provide mechanisms minnow. The habitat conservation plan nonnative aquatic species is a major for protection and enhancement of (HCP) prepared by Salt River Project threat to spikedace and loach minnow. spikedace, loach minnow, and their (SRP) is expected to benefit spikedace Neither the States of New Mexico and habitat on Federal lands. The USFS and and loach minnow in the Verde River. Arizona nor the Federal Government the BLM have made significant progress Spikedace and loach minnow have has adequate regulatory mechanisms to on some stream enhancements (Fossil been protected under the Act since their address this issue. Programs to Creek, Blue River, Hot Springs Canyon, listing in 1986. While the Act provides introduce, augment, spread, or permit and Bonita Creek). However, despite the prohibitions against take, and allows for such actions for nonnative sport, bait, protection and enhancement the development of HCPs, the species aquarium, and aquaculture species mechanisms in these laws, competing have continued to decline. To date, continue. Regulation of these activities multiple uses, limited funding and section 7 consultation has not been an does not adequately address the spread staffing have resulted in few effective tool in addressing this decline. of nonnative species, as many measureable on-the-ground successes, This is due in part to the fact that some introductions are conducted through and the status of these species has causes of the decline, such as incidental or unregulated actions. continued to decline. competition and predation with New Mexico water law does not Spikedace and loach minnow are nonnative aquatic species, decreases in include provisions for instream water currently listed as threatened under the surface flows due to drought, and rights to protect fish and wildlife and Act and therefore are afforded the habitat losses caused by wildfires are their habitat. Arizona water law does protections of the Act. Special rules not covered by the Act. In addition, recognize such provisions; however, were promulgated for spikedace and water diversions are often because this change is relatively recent, loach minnow in 1986, which prohibit ‘‘grandfathered’’ into existing law and instream water rights have low priority taking of the species, except under are therefore not subject to section 7. and are often overcome by more senior certain circumstances in accordance diversion rights. Indirectly, Arizona with applicable State fish and wildlife Summary of Factor D State law also allows surface water conservation laws and regulations. Despite the prohibitions against take, depletion by groundwater pumping. Violations of the special rules are which have been in place since the
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10823
species were listed in 1986, spikedace basin include channel catfish, flathead exploitive competition. Interference and loach minnow have continued to catfish, red shiner, fathead minnow, competition occurs when individuals decline. While section 7 consultation green sunfish, largemouth bass, directly affect others, such as by may be effective in addressing impacts smallmouth bass, rainbow trout, fighting, producing toxins, or preying from Federal actions such as a road western mosquitofish, carp, warmouth upon them (Schoener 1983, p. 257). construction project or implementation (Lepomis gulosus), bluegill, yellow Exploitive competition occurs when of an allotment management plan, they bullhead, black bullhead, and goldfish individuals affect others indirectly, such are not effective at minimizing losses to (Miller 1961, pp. 373–394; Nico and as through use of common resources the species from competition and Fuller 1999, pp. 16, 21–24; Clark 2001, (Douglas et al. 1994, p. 14). Exploitive predation with nonnative species, the p. 1; AGFD 2004, Bahm and Robinson competition in the form of predation is impacts of drought or climate change, or 2009b, p. 3). discussed above under Factor C. the effects of wildfires. Review under The aquatic ecosystem of the central Interference competition occurs with the CWA is lacking, and the Federal Gila River basin has relatively small species such as red shiner. Nonnative Land Policy and Management Act and streams with warm water and low red shiners compete with spikedace for National Forest Management Act are not gradients, and many of the native suitable habitats, as the two species currently having a positive effect on the aquatic species are small. In these areas, occupy essentially the same habitat species. In summary, existing regulatory small, nonnative fish species pose a types. The red shiner has an inverse mechanisms that prohibit taking of the threat to spikedace and loach minnow distribution pattern in Arizona to two species have been in place for (Deacon et al. 1964, pp. 385, 388). spikedace (Minckley 1973, p. 138). decades, however, these regulations are Examples of this are the impacts of Where the two species occur together, not adequate to address the significant mosquitofish and red shiner, which may there is evidence of displacement of habitat effects, particularly water compete with, or predate upon, native spikedace to less suitable habitats than diversion and the distribution and fish in the Gila River basin (Meffe 1985, previously occupied (Marsh et al. 1989, abundance of nonnative fishes, affecting pp. 173, 177–185; Douglas et al. 1994, pp. 67, 107). As a result, if red shiners spikedace and loach minnow. Because pp. 1, 13–17). However, negative are present, suitable habitat for existing regulatory mechanisms do not interactions also occur between small spikedace is reduced. In addition, the provide adequate protection for these native and large nonnative individuals. introduction of red shiner and the species or their habitats throughout On the East and Middle Forks of the decline of spikedace have occurred their ranges, we conclude the Gila River, where large nonnative simultaneously (Minckley and Deacon inadequacy of existing regulatory predators were comparatively common, 1968, pp. 1427–1428; Douglas et al. mechanisms is a significant threat to the small native species were uncommon or 1994, pp. 13, 16–17). The red shiner was spikedace and loach minnow. absent. Conversely, on the West Fork introduced in the mainstem Colorado Gila River, when large nonnative River in the 1950s, spreading upstream E. Other Natural or Manmade Factors predators were rare, most small-bodied to south-central Arizona by 1963, and Affecting the Species’ Continued and young of large-bodied native fishes by the late 1970s eastward into New Existence persisted (Stefferud et al. 2011, pp. Mexico. Spikedace disappeared at the Nonnative Fishes 1409–1411). same time and in the same progressively For spikedace and loach minnow, upstream direction, likely as a result of As described under Factor C above, every habitat that has not been interactions with red shiner and in nonnative fishes pose a significant renovated or protected by barriers has at response to impacts of various water threat to Gila River basin native fishes, least six nonnative fish species present, developments (Minckley and Deacon including spikedace and loach minnow at varying levels of occupation. In (Minckley 1985, pp. 1, 68; Williams et addition to nonnative fishes, parasites 1968, pp. 1427–1428; Minckley and al. 1985, pp. 3, 17–20; Minckley and have been introduced incidentally with Deacon 1991, pp. 7, 15; Douglas et al. Deacon 1991, pp. 15–17). Competition nonnative species and may be 1994, pp. 13–17). with nonnative fish species is deleterious to spikedace and loach One study focused on potential considered a primary threat to minnow populations. Nonnative impacts of red shiner on spikedace in spikedace and loach minnow. See crayfish (Orconectes virilis) have three areas: (1) Portions of the Gila River Factor C for the discussion of predation invaded occupied spikedace and loach and Aravaipa Creek having only by nonnative fish species. minnow habitats (Taylor et al. 1996, p. spikedace; (2) a portion of the Verde As with many fish in the West, 31; Robinson and Crowder 2009, p. 3; River where spikedace and red shiner spikedace and loach minnow lacked Robinson et al. 2009b, p. 4; USGS 2009, co-occurred for three decades; and (3) a exposure to a wider range of species p. 1). Crayfish are known to eat fish portion of the Gila River where red over evolutionary time, so that they eggs, especially those bound to the shiner invaded areas and where seem to lack the competitive abilities substrate (Dorn and Mittlebach 2004, p. spikedace have never been recorded. and predator defenses developed by 2135), as is the case for spikedace and The study indicated that, for reaches fishes from regions where more species loach minnow. Additionally, crayfish where only spikedace were present, are present (Moyle 1986, pp. 28–31; cause decreases in macroinvertebrates, spikedace displayed a preference for Douglas et al. 1994, pp. 9–10). As a amphibians, and fishes (Hanson et al. slower currents and smaller particles in result, the native western fish fauna is 1990, p. 69; Lodge et al. 2000, p. 11). the substrate than were generally significantly impacted by interactions Several of the nonnative species now in available throughout the Gila River and with nonnative species. The spikedace and loach minnow habitats Aravaipa Creek systems. Where red introduction of more aggressive and arrived there since the species were shiner occur in the Verde River, the competitive nonnative fish has led to listed, such as red shiner in Aravaipa study showed that red shiner occupied significant losses of spikedace and loach Creek (Stefferud and Reinthal 2005, p. waters that were generally slower with minnow (Douglas et al. 1994, pp. 14– 51) and Asian tapeworm in the middle smaller particle sizes in the substrate 17). Nonnative fishes known to occur Gila River. than were, on average, available in the within the historical range of spikedace Competition can be classified as system. The study concludes that in and loach minnow in the Gila River either interference competition or areas where spikedace co-occurrs with
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10824 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
red shiner, red shiner remain in the to help control mosquitoes. Because of and consequently warmer water preferred habitat, while spikedace move their aggressive and predatory behavior, temperatures beyond the species’ into currents swifter than typically mosquitofish may negatively affect tolerance limits, and more crowded occupied (Douglas et al. 1994, pp. 14– populations of small fishes through habitats with higher levels of predation 16). The areas with swifter currents are predation and competition (Courtenay and competition. In other areas, drought likely less suitable for spikedace, as and Meffe 1989, pp. 320–324). reduces flooding that would normally evidenced by their nonuse until such Introduced mosquitofish have been rejuvenate habitat and tend to reduce competition occurs. Red shiners are particularly destructive to native fish populations of some nonnative species, known to occur in the Verde River communities in the American West, which are less adapted to the large (Minckley 1993, p. 10; Jahrke 1999, pp. where they have contributed to the floods of southwestern streams 2–7; Bahm and Robinson 2009b, pp. 3– elimination or decline of populations of (Minckley and Meffe 1987, pp. 94, 104; 5), Aravaipa Creek (Reinthal, 2011, pp. federally endangered and threatened Stefferud and Rinne 1996a, p. 80). The 1–2), Blue River (ASU 2004, multiple species, such as the Gila topminnow combined effects of drought with reports; ASU 2005, multiple reports), (Poeciliopsis occidentalis occidentalis) ongoing habitat loss and alteration; and Gila River (Minckley 1973, pp. 136– (Courtenay and Meffe 1989, pp. 323– increased predation, competition, and 137; Marsh et al. 1989, pp. 12–13; 324). Pilger et al. (2010, p. 312) found disease from nonnative species; and the Propst et al. 2009, pp. 14–18). that the generalist feeding strategy of general loss of resiliency in highly As with spikedace, exploitive smallbodied nonnative fishes could altered aquatic ecosystems have had and competition also appears to occur further affect native fishes through continue to have negative consequences between red shiner and loach minnow. competition, particularly if there is a for spikedace and loach minnow Red shiners occur in all places known high degree of overlap in habitat use. In populations. to be formerly occupied by loach their study on the upper Gila River, they minnow, and are absent or rare in places determined that the diets of nonnative, Genetics where loach minnow persists. Because small-bodied fishes and all age groups Each remaining population of of this, red shiner has often been of native fishes overlapped, so that the spikedace is genetically distinct. implicated in the decline of loach presence of both juvenile and adult Genetic distinctiveness in the Verde minnow. Loach minnow habitat is nonnative species could pose a River and Gila River fishes indicates markedly different than that of red competitive threat to native fishes that these populations have been shiner, so interaction between the two spikedace and loach minnow (Pilger et historically isolated (Tibbets and species is unlikely to cause shifts in al. 2010, p. 311). Western mosquitofish Dowling 1996, (pp. 1285–1291); habitat use by loach minnow (Marsh et represent an additional challenge for Anderson and Hendrickson 1994, pp. al. 1989, p. 39). Instead, studies indicate spikedace and loach minnow 148, 150–154). The center of the that red shiner move into voids left management, in that they are harder to historical distribution for spikedace is when native fishes such as loach effectively remove during stream permanently altered, and the remaining minnow are extirpated due to habitat renovation efforts. In the desert populations are isolated and represent degradation in the area (Bestgen and Southwest, the habitat conditions are so the fringes of the formerly occupied Propst 1986, p. 209). Should habitat limited that native fish reintroductions range. Isolation of these populations has conditions improve and the habitat once can occur only in those areas where the important ramifications for the overall again become suitable for loach competition and predation of nonnative survival of the species. Loss of any minnow, the presence of red shiner may fishes can be physically precluded, such population may be permanent, as there preclude occupancy of loach minnow, as above a fish barrier. is little ability to repopulate isolated although the specific mechanism of this areas, due largely to habitat alterations interaction is not fully understood. Prior Drought in areas between remaining populations to 1960, the Glenwood-Pleasanton reach The National Integrated Drought of the San Francisco River supported a Information System (2011) classifies (Propst et al. 1986, pp. 38, 86). No native fish assemblage of eight different drought in increasing severity categories genetic exchange is possible between species. Post-1960, four of these species from abnormally dry, to moderate, the remaining populations of spikedace became uncommon, and ultimately severe, extreme, and, most severe, without human assistance. In addition, three of them were extirpated. In studies exceptional. The southwestern United because genetic variation is important to completed between 1961 and 1980, it States is currently experiencing drought the species’ fitness and adaptive was determined that loach minnow was conditions classified as moderate to capability, losses of genetic variation less common than it had been, while the exceptional. Drought conditions are represent a threat to the species (Meffe diversity of the nonnative fish reported as abnormally dry to moderate and Carroll 1997, pp. 162–172). community had increased in for the Verde River, with the remainder Spikedace in the upper Verde River comparison to the pre-1960 period. of the critical habitat streams in severe are genetically different than those that Following 1980, red shiner, fathead to extreme in Arizona. Critical habitat were translocated to Fossil Creek; minnow, and channel catfish were all areas in New Mexico fall within the however, there is a minimal opportunity regularly collected. Drought and severe to extreme drought categories for the two populations to interbreed diversions for irrigation resulted in a (National Integrated Drought due to the length of the river between decline in habitat quality, with canyon Information System 2011). the two occupied areas. While the Verde reaches retaining most habitat While spikedace and loach minnow River supports many of the habitat components for native species. have survived many droughts in their features for spikedace, it currently However, establishment of nonnative evolutionary histories, drought may supports a high number of nonnative fishes in the canyon reaches has have more of an impact on the species species that compete with, and prey on, reduced the utility of these areas for due to already reduced habitat spikedace. We anticipate that, until native species (Propst et al. 1988, pp. suitability from other effects, as extensive management takes place, 51–56). described above. In some areas of spikedace in the two areas will remain Western mosquitofish were spikedace and loach minnow habitat, isolated. The spikedace translocation in introduced outside of their native range drought results in lower streamflow, Fossil Creek has been in place for
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10825
approximately 4 years. It is not known Recent work completed by Propst et resources are already limited, and these if that translocation effort will succeed. al. (2008) indicates that individual resources are likely to become more As with spikedace, each remaining factors, such as the presence of limited due to water developments and population of loach minnow is nonnative fishes or existing flow drought. Increased water demands are genetically distinct. Genetic subdivision regimes may have impacts on native fish likely to further limit the areas where into three geographic regions indicates species, but it is likely that the spikedace or loach minnow can persist. that gene flow has been low but not interaction of these factors causes a We therefore conclude that the historically absent (Tibbets 1993, pp. decline in native fish species. In studies spikedace and loach minnow are 22–24, 33). The center of the loach on the upper Gila River drainage in New threatened by other natural or manmade minnow’s historical distribution is Mexico, Propst et al. (2008) determined factors. permanently gone, and the remaining that flow regime was a primary factor in Reclassification Determination populations are isolated and represent shaping fish assemblages, with the the fringes of the formerly occupied greatest densities of native fishes As required by the Act, we considered range. Isolation of these populations has occurring in those years with higher the five factors in assessing whether the important ramifications for the overall stream discharges. However, they also spikedace and loach minnow are survival of the species. Loss of any found that pressure from competition endangered or threatened throughout all population may be permanent, as there and predation with nonnative fishes or a significant portion of their range. is little ability to repopulate isolated also affected fish assemblages. They We carefully assessed the best scientific areas, due largely to habitat alterations concluded that there was a negative and commercial information available in areas between remaining populations association between nonnatives and regarding reclassification of the (Propst et al. 1988, p. 65). No genetic native fishes, which indicated that there spikedace and the loach minnow from exchange is likely between the is a complex relationship between threatened to endangered. There are remaining populations of loach minnow naturally variable flows and nonnative many threats to both species, including without human assistance. As noted for species, and that natural flow alone was habitat loss and modifications (Factor spikedace, genetic variation is important not enough to conserve native fish A) caused by historical and ongoing to the species’ fitness and adaptive species (Propst et al. 2008, p. 1246). The land uses such as water diversion and capability, and losses of genetic way in which these factors interact pumping, livestock grazing, and road variation represent a threat to the varied from stream to stream in the construction. However, competition species (Meffe and Carroll 1997, pp. study. with, or predation by, nonnative 162–172). Propst et al. (2008) also note the species, such as channel and flathead importance of connectivity, stating that catfish, green sunfish, and red shiner, is Flow Regime, Nonnative Fishes, and it is critical to ensuring the long-term likely the largest remaining threat to the Connectivity persistence of native fishes. They note species (Factors C and E). In addition, The competitive effects of nonnative that loach minnow, while still present recent research indicates that the fish species are often exacerbated by throughout much of its historical range, combination of altered flow regimes and changes in flow regimes or declines in has been apparently extirpated from nonnative fishes together are causing habitat conditions associated with water four of six sites in 10 years or less, and declines in native fishes. Existing developments, as discussed above, and that loss of connectivity among regulatory mechanisms (Factor D) have should be considered against the populations has reduced the likelihood not proven adequate to halt the decline backdrop of historical habitat that many will recover naturally, even if of spikedace or loach minnow or habitat degradation that has occurred over time causes for elimination are removed. losses since the time of their listing as (Minckley and Meffe 1987, pp. 94, 103; They conclude that ‘‘It is almost certain threatened species. In addition, the Rinne 1991, p. 12). Stefferud and Rinne similar, but undocumented, losses have warmer, drier, drought-like conditions (1996b, p. 25) note that a long history occurred throughout the species range, predicted to occur due to climate of water development and diversion and its status is much more fragile than change (Factor A) will further reduce coupled with nonnative fish presumed’’ (Propst et al. 2008, p. 1251). available resources for spikedace and introductions has resulted in few However, where flows remain suitable, loach minnow. streams in Arizona retaining their native and connectivity is maintained, there is In 1991, we completed a 5-year fish communities. Using the Gila River the inherent risk of exposure to review for spikedace and loach minnow as an example, Propst et al. (1988, p. 67) nonnative species traveling from one in which we determined that the note that natural (e.g., drought) and area to another. They conclude that species’ status was very precarious and human-induced (e.g., flow level retention of natural hydrologic regimes that a change in status from threatened reductions through irrigation diversion) and preclusion of nonnative predators to endangered was warranted. Since that factors combined to reduce loach and competitors are equally important time, although some recovery actions minnow abundance in the Gila River. (Propst et al. 2008, p. 1251). have occurred, the majority of the areas They note that where canyon habitat historically occupied by spikedace and would normally continue to contain Summary of Factor E loach minnow have experienced a shift surface flows and suitable habitat for The reduced distribution and from a predominance of native fishes to loach minnow, the establishment of decreasing numbers of spikedace and a predominance of nonnative fishes. nonnative fishes in canyon reaches has loach minnow make the two species The low numbers of spikedace and reduced their suitability as habitat for susceptible to natural environmental loach minnow, their isolation in the minnow. Minckley and Douglas variability, including climate conditions tributary waters, drought, ongoing water (1991, pp. 7–17) concluded that, for such as drought. However, research demands, and other threats leads us to fishes native to the Southwest, the indicates that it is the interaction of conclude the species are now in danger combination of changes in stream individual factors such as nonnative of extinction throughout their ranges. discharge patterns and nonnative fish fishes and altered flow regimes that is We determined in 1994 that introductions has reduced the range and causing a decline of native fish species. reclassifying spikedace and loach numbers of all native species of fish, Native fishes are unable to maintain a minnow to endangered status was and has led to extinction of some. competitive edge in areas where warranted but precluded (59 FR 35303,
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10826 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
July 11, 1994), and restated this North Fork East Fork Black River as well requiring millions of dollars for barrier conclusion on January 8, 2001 (66 FR (ASU 2002). construction, and extensive time and 1295). We reanalyzed the determination Two of the primary threats to costs for personnel involved in the each year in our Candidate Notice of spikedace and loach minnow are renovation. Sufficient time has not yet Review, and determined that nonnative fishes and loss of water due elapsed to determine the success of reclassification to endangered is to diversions, pumping, drought, or these projects. Fossil Creek is showing warranted, in the Candidate Notice of other causes, as detailed above. early signs of success for spikedace Review published on November 9, 2009 Recently, Propst et al. (2008) indicated (Robinson 2011a, p. 1), but the (74 FR 57804). Spikedace and loach that individual factors, such as the downstream barrier has been breached minnow were not addressed in the presence of nonnative fishes or existing by nonnatives on one occasion since the Candidate Notice of Review published flow regimes may have impacts on project began in 2007. Bonita Creek was in 2011, as this reclassification native fish species, but it is likely that reinvaded, despite its barrier. Redfield determination was funded in FY 2010. the interaction of these factors may Canyon currently has inadequate flows Candidate assessments are not reviewed cause a decline in native fish species. to support either species. Regardless of on an annual basis once they are Past events (both legal and alleged the success of these efforts, Hot Springs funded. illegal) resulted in the establishment of Canyon and Redfield Canyon flow into Both species have been reduced in at least 60 nonnative fish species, at the dry portions of the San Pedro River range and numbers since the time of least three nonnative amphibians so are not connected to any other listing through either localized (American bullfrog, Rio Grande leopard populations of spikedace or loach extirpations, reduced distribution frog, American tiger salamander), at minnow. Fossil Creek does flow into the within occupied drainages, or least four invertebrates (two species of active channel of the Verde River, but reductions in numbers within a given crayfish, Asiatic clam, and New Zealand the Verde River at that confluence is drainage. Spikedace and loach minnow mud snail), and several diseases or currently dominated by nonnatives. are both extirpated from the Salt and parasites that affect native fish or Bonita Creek flows into the Gila River, San Pedro rivers. Spikedace are amphibians in areas across Arizona (See which is also dominated by nonnatives additionally extirpated from the San Service 2002a for additional and ultimately becomes dewatered as Francisco River, while loach minnow information). The impacts of nonnative well. Therefore, the recovery actions are extirpated from the Verde River. fishes on spikedace and loach minnow completed to date, while allowing the In terms of reduced distribution since are detailed above. Nonnative aquatic species to persist, have limited ability to listing within occupied drainages, species are known to occur in varying help recover the species at this time. spikedace currently have a much levels in every stream occupied by An additional complication in reduced distribution in the Verde River, spikedace or loach minnow, with the recovery of the species is the lack of where the known locations at listing exception of streams in the early stages available suitable habitat. The species occurred over approximately 25 percent of renovation and/or reintroduction are both currently found in isolated of the previously occupied area. Loach projects, such as Hot Springs Canyon. areas, with little opportunity for minnow are reduced in distribution in Nonnative species are considered a expansion or for genetic interchange. the San Francisco and Tularosa rivers, serious cause of the decline of the two The Verde River feeds into two occurring in a portion up and species in all streams except for reservoirs, effectively isolating it from downstream of the Whitewater Creek Aravaipa Creek and the mainstem Gila the Salt River. Those portions of the Salt confluence and again farther upstream River in New Mexico; however, River that were historically occupied by of the Tularosa River. Spikedace and nonnatives are present in these streams the species now have four dams and loach minnow are both reduced in as well. reservoirs. The San Pedro River is distribution in the East and Middle Alteration or reductions of stream dewatered in some areas, especially Forks of the Gila River, occurring closer flow is a concern in many areas as well, downstream of known historical to the confluence with the Gila River, including the Verde River, Salt River, distribution. Aravaipa Creek, while but no longer extending as far upstream San Pedro River, Gila River, Eagle supporting the largest population of the as in the past. The strongholds for both Creek, and San Francisco River. In these two species in Arizona, ends at a dry species are Aravaipa Creek in Arizona areas, diversion structures may cause stretch of the San Pedro River. Those and the Gila River mainstem in New stream levels to drop or become portions of Eagle Creek occupied by the Mexico, but more recent records dewatered, especially during drought two species occur above a diversion indicate at least small reductions in the and during the drier months. Future dam, downstream of which nonnative up and downstream extent of their water needs in the arid southwest, levels are high. Eagle Creek then joins distributions in these systems. coupled with the ongoing drought and the Gila River, which is also dominated In addition to extirpations and climate change, are likely to increase the by nonnative fishes. Downstream of the reductions in range, some spikedace and number of dewatered areas, the size of occupied area in the Gila River, which loach minnow populations persist, but the dewatered areas, and the length of supports the largest known populations are at reduced numbers. In the Verde time for which dewatering occurs. of the species, there are water diversions River, spikedace numbers were Additional, pending water development that ultimately result in a dry stream frequently in the hundreds, with a high projects have been identified above. channel as the river travels into Arizona of 407 in 1986, but reduced to double Recovery actions have occurred at Hot from New Mexico. and then single digits in the late 1980s Springs Canyon, Redfield Canyon, In summary, spikedace and loach and 1990s (ASU 2002). While spikedace Fossil Creek, Bonita Creek, and the San minnow previously had a relatively likely still occur in the Verde River, Francisco River in New Mexico, and widespread distribution covering they are at extremely low numbers and have focused on building barriers to portions of Arizona, New Mexico, and on the verge of extirpation. Survey nonnative fishes or using existing northern Mexico. Both species have records indicate a similar situation structures as barriers. In some instances, suffered major reductions in numbers exists for both spikedace and loach chemical and/or mechanical removal of and range over time due to persistent minnow in Eagle Creek. Loach minnow nonnative species has occurred. To date, threats such that spikedace are now are in extremely low numbers in the these projects have been costly, estimated to occur in only 10 percent of
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10827
their former range, while loach minnow reintroduction or translocation of spikedace, 670 Blue River loach occur in 10 to 20 percent of their former spikedace into streams within its minnow, and 3,250 Aravaipa Creek range. Currently, only small, isolated historical range. In 2007, spikedace loach minnow. Plans are under way to populations of these species remain, were translocated into Hot Springs bring in stock from every extant with limited to no opportunities for Canyon, Redfield Canyon, and Fossil population of loach minnow, including interchange between populations or Creek. In 2008, spikedace were those in the San Francisco River, the expansion of existing areas, making the translocated into Bonita Creek in three forks of the Gila River, the upper species more vulnerable to threats Arizona and reintroduced to the San Gila River in New Mexico, and the Eagle including reproductive isolation. The Francisco River in New Mexico. and Black River system in Arizona. two primary threats of nonnative Monitoring has occurred at each of these Bubbling Ponds will serve as a refuge aquatic species competition and sites annually, with annual for some populations, and as a captive predation and alteration or augmentations at Hot Springs Canyon, breeding facility for others, depending diminishment of stream flows are Redfield Canyon, and Fossil Creek in on the status of the population and persistent, and research indicates that subsequent years when fish are availability of translocation sites. the combination of the two is leading to available, up to and including 2011. declines of native species such as Spikedace were augmented in the San In an effort to minimize impacts from spikedace and loach minnow (Propst et Francisco River in 2009, but monitoring nonnative fish interactions, the NMDGF al. 2008). The ongoing drought and and augmentations did not occur in initiated a nonnative removal effort in climate conditions aggravate the loss of 2010 or 2011 due to a lack of adequate the Forks area in 2007, and at Little water in some areas, and future water staffing and resources. Due to a Creek (a tributary to West Fork Gila development projects have been reinvasion by nonnative species, River) in 2010. These efforts are identified. Finally, the opportunities for augmentations are temporarily on hold expected to continue. expansion of the two species’ range are at Bonita Creek. Critical Habitat Designations for limited by dams, reservoirs, dewatering, Several translocation projects for Spikedace and Loach Minnow and nonnative species distribution. loach minnow are also in the planning Based on this information, as well as stages. These projects may occur with or Summary of Changes From Proposed the above review of the best scientific without construction of fish barriers. Rule and commercial information available, Loach minnow may also benefit from we find that both species are currently the Blue River and Spring Creek As noted in our October 4, 2011, in danger of extinction and therefore renovation projects mentioned above. notice of availability (NOA) (76 FR meet the definition of endangered Additional recovery actions include 61330), we used three criteria in the species under the Act. Because we have translocations or reintroduction of loach proposed rule to evaluate if unoccupied determined that these species are minnow into streams within its habitat was essential to the survival and currently on the brink of extinction and historical range. In 2007, translocations recovery of the species. One of the are not in danger of extinction in the of loach minnow occurred at Hot criteria evaluated the potential of a foreseeable future, we have determined Springs Canyon, Redfield Canyon, and stream segment to ‘‘connect to other that the correct status for the species Fossil Creek. Monitoring of these sites occupied areas, which will enhance under the Act is endangered. As a occurs annually, and the sites have been genetic exchange between populations.’’ result, we are reclassifying both augmented annually when fish are After additional review of the stream spikedace and loach minnow from available, up to and including 2011. In segments proposed for critical habitat, threatened species to endangered 2008, loach minnow were translocated we concluded there were no stream species. With this reclassification of into Bonita Creek, Arizona. Monitoring segments that met this criterion, and we spikedace and loach minnow to occurs annually at this site; however, removed it as an element of the ruleset. endangered status, we remove the due to a reinvasion by nonnative We continue to believe that both loach special rules for these species at 50 CFR species, augmentations are temporarily minnow and spikedace conservation 17.44(p) and 17.44(q), respectively. on hold. will require genetic exchange between Special rules apply only to threatened The AGFD and Bureau of Reclamation the remaining populations to allow for species; therefore, as spikedace and continue to fund equipment and staff to genetic variation, which is important for loach minnow are now listed as run the Bubbling Ponds Native Fish species’ fitness and adaptive capability. endangered, these special rules no Research Facility through the Gila River We also acknowledge that areas equally longer apply. Basin Native Fishes Conservation important to the conservation of the Program (formerly known as the Central species, outside of the critical habitat Available Conservation Measures Arizona Project Fund Transfer Program). designations, will be necessary for long- Conservation measures provided to Salt River Project’s habitat conservation term conservation, subject to future on- spikedace and loach minnow under the plan was signed in 2008, and is the-ground recovery actions and 7(a)(1) Act include several reintroduction and expected to benefit both the spikedace opportunities. Based on information we augmentation projects. Some of these and the loach minnow in the Verde received during the comment periods on projects have already begun; others are River watershed. Also in 2008, AGFD the proposed rule, several changes have in the planning stage. Project planning staff managed original source stock and been made to the areas designated as is under way for renovation efforts in their progeny at the Bubbling Ponds critical habitat in this final rule. These Blue River and Spring Creek in Arizona. facility, totaling 740 Gila River changes are summarized in Table 1 Other recovery actions include spikedace, 1,650 Aravaipa Creek below.
TABLE 1—CHANGES IN STREAM SEGMENTS INCLUDED WITHIN THE CRITICAL HABITAT DESIGNATIONS FOR LOACH MINNOW AND SPIKEDACE
Stream From km (mi) To km (mi) Change in km (mi)
San Francisco River * ...... 180.7 (112.3) ...... 203.6 (126.5) ...... Addition of 22.8 (14.2).
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10828 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
TABLE 1—CHANGES IN STREAM SEGMENTS INCLUDED WITHIN THE CRITICAL HABITAT DESIGNATIONS FOR LOACH MINNOW AND SPIKEDACE—Continued
Stream From km (mi) To km (mi) Change in km (mi)
Bear Creek * ...... 0.0 (0.0) ...... 31.4 (19.5) ...... Addition of 31.4 (19.5). Redfield Canyon ...... 22.5 (14.0) ...... 6.5 (4.0) ...... Reduction of 16.0 (10.0). Hot Springs Canyon ...... 19.0 (11.8) ...... 9.3 (5.8) ...... Reduction of 9.7 (6.0). Fossil Creek ...... 7.5 (4.7) ...... 22.2 km (13.8 mi) ...... Addition of 14.6 (9.1). * This change made for loach minnow only.
San Francisco River. As noticed in the It should be noted that the low Pedro River. In the proposed rule we NOA (76 FR 61330; October 4, 2011), we number of fish does not, in all included Hot Springs Canyon from its are correcting an error made in the likelihood, represent the total number of confluence with Bass Canyon proposed rule by extending that portion fish present, as sampling rarely results downstream for 19.0 km (11.8 mi). In of the San Francisco River designated in capture of all individuals present. the final rule, we are reducing the for loach minnow by 22.8 km (14.2 mi). Regardless, the number of fish present portion of Hot Springs Canyon included The mileage for spikedace remains the in Bear Creek is low. However, Bear within critical habitat to that area from same as was in the proposed rule (75 FR Creek is a tributary to an occupied its confluence with Bass Canyon 66482; October 28, 2010); however, we stream, and is within the historical downstream for approximately 9.3 km had intended to include the same range of the species. Loach minnow are (5.8 mi). mileage for loach minnow as was in the currently much reduced in their overall Fossil Creek. We received several 2007 critical habitat designation as this distribution compared to historical comments and new information area is currently occupied by loach conditions. The threats assessment indicating that the best habitat for the minnow, as this area meets the above outlines current threats, which species in Fossil Creek occurs above the definition of critical habitat for loach are numerous. While reintroduction newly constructed barrier at Township 1 minnow. The total mileage included on projects are under way, the success of 11 ⁄2 North, Range 7 East, section 29. the San Francisco River for loach those efforts is currently limited. The portions of Fossil Creek above the minnow was changed from 180.7 km Streams are not abundant in the desert barrier have been in use as a (112.3 mi) in the revised proposed rule southwest. Because this area provides translocation site for spikedace to 203.6 km (126.5 mi) in this final rule. suitable habitat and is occupied by beginning in 2008. Although there was This change has been incorporated in loach minnow, we conclude that it is limited success with the translocation this final rule. The mileage for essential to the conservation of the initially, surveys in August 2011 spikedace remains the same as in the species. (Crowder, 2011, pers. comm.) located revised proposed rule. Redfield and Hot Springs Canyons. In numerous spikedace within Fossil response to comments received during Creek. While it would be premature to Bear Creek. We noted in the NOA that the second comment period, we have call the translocation a success, the we intended to add portions of Bear reevaluated the extent of each stream persistence of spikedace indicates that it Creek to the designation for loach included within the designations, and is suitable, and this area meets the minnow, based on occupancy of this concluded that they do not meet the definition of critical habitat for area by loach minnow. The NOA noted definition of critical habitat for either spikedace and loach minnow. For this that we were adding 31.4 km (19.5 mi) spikedace or loach minnow. With reason, we are adjusting the area of Bear Creek from its confluence with further review, we have determined included within Fossil Creek to include the Gila River upstream to the that, although connective habitat is the portions upstream of the barrier to confluence with Sycamore and North important, the area previously retained the old Fossil Diversion Dam at Fork Walnut creeks. We consider those as connective habitat (i.e., between the Township 12 North, Range 7 East, portions of Bear Creek included within barrier location and the San Pedro section 14. The area incorporated in this the final designation to have been River) currently connects to dewatered stream segment will increase from 7.5 occupied at listing, as described in the portions of the San Pedro River. We km (4.8 mi) to 22.2 km (13.8 mi). NOA, although records were not known have therefore shortened the overall In total, the areas designated as until 2005 and 2006. These areas meet stretch of each stream to include just critical habitat for both species were the definition of critical habitat for those sections currently supporting reduced as compared to the revised loach minnow. As noted in our NOA, perennial flows. For Redfield Canyon, proposed rule. For spikedace, the area we recognize that portions of this stream the designations changed from 22.5 km included within the designation was are intermittent, but also acknowledge (14.0 mi) in the revised proposed rule to reduced by 155 km (96 mi). For loach that streams with intermittent flows can approximately 6.5 km (4.0 miles) in this minnow, the area included within the function as connective corridors final rule, and include that portion of designation was reduced by 160 km (99 through which the species may move the stream from the confluence with mi). Portions of this are attributable to when the area is wetted. We have Sycamore Canyon downstream to the the changes noted above, and portions reviewed all of the information barrier constructed at Township 11 to changes made under the Exclusions received, and conclude that inclusion of South, Range 19 East, section 36. section. The bulk of the reduced mileage Bear Creek is appropriate at this time. For Hot Springs Canyon, we are can be attributed to exclusions on Eagle We do not anticipate that loach minnow making similar changes. The barrier Creek and the San Pedro River and, to will occupy the lowermost portions of location and the downstream extent of a lesser extent, on the Gila River. the Creek when they are dry, but we perennial flows are approximately one have determined that that area has value mile apart. As with Redfield Canyon, Critical Habitat Background as a connective corridor to the mainstem Hot Springs Canyon ultimately connects Critical habitat is defined in section 3 Gila River during high-flow events. with dewatered portions of the San of the Act as:
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10829
(1) The specific areas within the within the geographical area occupied sources of information as the basis for geographical area occupied by the by the species at the time it was listed recommendations to designate critical species, at the time it is listed in are included in a critical habitat habitat. accordance with the Act, on which are designation if they contain physical or When we are determining which areas found those physical or biological biological features (1) which are should be designated as critical habitat, features essential to the conservation of the our primary source of information is (a) Essential to the conservation of the species and (2) which may require generally the information developed species and special management considerations or during the listing process for the (b) Which may require special protection. For these areas, the critical species. Additional information sources management considerations or habitat designations identify, to the may include the recovery plan for the protection; and extent known using the best scientific species, articles in peer-reviewed (2) Specific areas outside the and commercial data available, those journals, conservation plans developed geographical area occupied by the physical or biological features that are by States and counties, scientific status species at the time it is listed, upon a essential to the conservation of the surveys and studies, biological determination that such areas are species (such as space, food, cover, and assessments, or other unpublished essential for the conservation of the protected habitat). In identifying those materials and expert opinion or species. physical and biological features within personal knowledge. Conservation, as defined under an area, we focus on the principal The location and suitability of habitat section 3 of the Act, means to use and biological or physical constituent changes and species may move from one the use of all methods and procedures elements (PCEs such as roost sites, area to another over time. Climate that are necessary to bring an nesting grounds, seasonal wetlands, change will be a particular challenge for endangered or threatened species to the water quality, tide, soil type) that are biodiversity because the interaction of point at which the measures provided essential to the conservation of the additional stressors associated with pursuant to the Act are no longer species. PCEs are the elements of climate change and current stressors necessary. Such methods and physical or biological features that, may push species beyond their ability to procedures include, but are not limited when laid out in the appropriate survive (Lovejoy 2005, pp. 325–326). to, all activities associated with quantity and spatial arrangement to The synergistic implications of climate scientific resources management such as provide for a species’ life-history change and habitat fragmentation are research, census, law enforcement, processes, are essential to the the most threatening facet of climate habitat acquisition and maintenance, conservation of the species. change for biodiversity (Hannah et al. propagation, live trapping, and Under the second prong of the Act’s 2005, p. 4). Current climate change transplantation, and, in the definition of critical habitat, we can predictions for terrestrial areas in the extraordinary case where population designate critical habitat in areas Northern Hemisphere indicate warmer pressures within a given ecosystem outside the geographical area occupied air temperatures, more intense cannot be otherwise relieved, may by the species at the time it is listed, precipitation events, and increased include regulated taking. upon a determination that such areas summer continental drying (Field et al. Critical habitat receives protection are essential for the conservation of the 1999, pp. 1–3; Hayhoe et al. 2004, p. under section 7 of the Act through the species. For example, an area currently 12422; Cayan et al. 2005, p. 6; IPCC requirement that Federal agencies occupied by the species but that was not 2007b, p. 1181). Climate change may insure, in consultation with the Service, occupied at the time of listing may be lead to increased frequency and that any action they authorize, fund, or essential to the conservation of the duration of severe storms and droughts carry out is not likely to result in the species and may be included in the (Golladay et al. 2004, p. 504; destruction or adverse modification of critical habitat designation. We McLaughlin et al. 2002, p. 6074; Cook critical habitat. The designation of designate critical habitat in areas et al. 2004, p. 1015. Generally, the critical habitat does not affect land outside the geographical area occupied outlook presented for the Southwest ownership or establish a refuge, by a species only when a designation predicts warmer, drier, drought-like wilderness, reserve, preserve, or other limited to its range would be inadequate conditions (Seager et al. 2007, p. 1181; conservation area. Such designation to ensure the conservation of the Hoerling and Eischeid 2007, p. 19), and does not allow the government or public species. a decline in water resources with or to access private lands. Such Section 4 of the Act requires that we without climate change will be a designation does not require designate critical habitat on the basis of significant factor in the compromised implementation of restoration, recovery, the best scientific and commercial data watersheds of the desert southwest. or enhancement measures by non- available. Further, our Policy on Habitat is dynamic, or frequently Federal landowners. Where a landowner Information Standards Under the changing, and species may move from seeks or requests Federal agency Endangered Species Act (published in one area to another over time. We funding or authorization for an action the Federal Register on July 1, 1994 (59 recognize that critical habitat designated that may affect a listed species or FR 34271)), the Information Quality Act at a particular point in time may not critical habitat, the consultation (section 515 of the Treasury and General include all of the habitat areas that we requirements of section 7(a)(2) of the Government Appropriations Act for may later determine are necessary for Act would apply, but even in the event Fiscal Year 2001 (Pub. L. 106–554; H.R. the recovery of the species. For these of a destruction or adverse modification 5658)), and our associated Information reasons, a critical habitat designation finding, the obligation of the Federal Quality Guidelines, provide criteria, does not signal that habitat outside the action agency and the landowner is not establish procedures, and provide designated area is unimportant or may to restore or recover the species, but to guidance to ensure that our decisions not be required for recovery of the implement reasonable and prudent are based on the best scientific data species. Areas that are important to the alternatives to avoid destruction or available. They require our biologists, to conservation of the species, both inside adverse modification of critical habitat. the extent consistent with the Act and and outside the critical habitat Under the first prong of the Act’s with the use of the best scientific data designations, will continue to be subject definition of critical habitat, areas available, to use primary and original to: (1) Conservation actions
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10830 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
implemented under section 7(a)(1) of 1997, p. 101). This means that 51 Because areas determined to be the Act, (2) regulatory protections percent of the fish present may not be occupied after 1986 are or were afforded by the requirement in section captured. It should be noted that various connected to occupied areas, the survey 7(a)(2) of the Act for Federal agencies to factors can affect seining efficiency, and efforts for the species have been less insure their actions are not likely to that most surveys involve more than one than thorough, and because both species jeopardize the continued existence of seine haul. However, if a species is are difficult to detect in low numbers, any endangered or threatened species, present in low numbers, as is common we anticipate that, although occupancy and (3) the prohibitions of section 9 of for spikedace and loach minnow, the was not determined in some areas until the Act if actions occurring in these likelihood of catching them at the low post-1986, the species were likely areas may affect the species. Federally capture efficiencies associated with present at listing in 1986 in these areas, funded or permitted projects affecting seining is low. Loach minnow are likely but not discovered until after listing. listed species outside their designated to be more difficult to detect due to their Given that spikedace and loach critical habitat areas may still result in having a reduced gas bladder. They are minnow are small-bodied fish that can jeopardy findings in some cases. These typically restricted to bottom-dwelling be difficult to detect when in low protections and conservation tools will habitat, swimming in only brief numbers, we also consider those areas continue to contribute to recovery of movements, which may further reduce included in this designation to be this species. Similarly, critical habitat the likelihood of its being collected in essential to the conservation of the designations made on the basis of the a seine. We believe a combination of species. best available information at the time of these factors to be responsible for the Physical and Biological Features designation will not control the lack of detections over a 44 year period direction and substance of future on Eagle Creek for loach minnow, as Under the Act and its implementing recovery plans, habitat conservation described above. regulations, we are required to identify plans (HCPs), or other species In some instances, areas were known the physical and biological features conservation planning efforts if new to have been occupied by one or both (PBFs) essential to the conservation of information available at the time of species prior to listing, but were not spikedace and loach minnow in areas these planning efforts calls for a described as occupied in the listing occupied at the time of listing, focusing different outcome. document based on the limited data on the features’ primary constituent available. Subsequent detections after elements (PCEs). We consider PCEs to Occupied Versus Unoccupied Areas listing in 1986 have caused us to be the elements of physical and We include as occupied those areas reconsider the occupancy status of some biological features that, when laid out in that were identified as occupied for streams. For example, we were aware of the appropriate quantity and spatial each species in the original listing one loach minnow record for Dry Blue arrangement to provide for a species’ documents, as well as any additional Creek from 1948 up until listing, but did life-history processes, are essential to areas determined to be occupied after not include Dry Blue Creek as occupied the conservation of the species. We 1986. Our reasoning for including these at listing in 1986 based on this record. outline the appropriate quantities and additional areas (post-1986) is that they Subsequent positive survey records in spatial arrangements of the elements in were likely occupied at the time of the the late 1990s have caused us to the Physical and Biological Features original listings, but had not been reconsider this area. As a result, in this (PBFs) section of the October 28, 2010, detected in surveys. In summary, there designation, we consider Dry Blue Creek proposed rule. For example, spawning are three reasons why a stream segment to be occupied by loach minnow at the substrate would be considered an is considered occupied at the time of time of listing. Similarly, Eagle Creek essential feature, while the specific listing: (1) The stream segment was had one record of loach minnow from composition (sand, gravel, and cobble) occupied in the 1986 listing document; 1950, but was not included as occupied and level of embeddedness are the or (2) the fish were found subsequently at listing in 1986. Loach minnow were elements (PCEs) of that feature. to 1986; and (3) the post-1986 stream subsequently detected again in the In accordance with section 3(5)(A)(i) segment is between two occupied, but 1990s, and it is therefore considered and 4(b)(1)(A) of the Act and regulations separated, stream segments. occupied at the time of listing within at 50 CFR 424.12, in determining which Several factors may influence whether this designation. areas within the geographical area or not spikedace or loach minnow were In every case, areas discovered to be occupied by the species at the time of detected in a given survey, and at what occupied after 1986 are connected, or listing to designate as critical habitat, level. In some instances, survey efforts historically were connected, to occupied we consider the PBFs essential to the may have been minimal or absent for a areas. For example, the Black River conservation of the species and which given area. Once a species is listed, complex was not known to be occupied may require special management awareness of the species is heightened until 1996; however, it is connected, considerations or protection. These for wildlife and land managers, and albeit over long distances, to the White include, but are not limited to: survey efforts are often increased or River, which is currently occupied, and (1) Space for individual and expanded to include areas where they the Salt River, which was historically population growth and for normal might be present. Moreover, spikedace occupied. Dry Blue Creek, described behavior; and loach minnow are small-bodied fish above, is connected to the occupied (2) Food, water, air, light, minerals, or that can be difficult to detect when in Blue River. Eagle Creek is a tributary to other nutritional or physiological low numbers. This may be partially the Gila River, and at one time perennial requirements; responsible for the lack of flows would have connected this (3) Cover or shelter; determinations over a 44-year period on population to those in the upper (4) Sites for breeding, reproduction, or Eagle Creek for loach minnow, for portions of the Gila River in New rearing (or development) of offspring; example. Finally, capture efficiencies Mexico. It is therefore logical to and for seining of fish are low, with some conclude that these areas had been (5) Habitats that are protected from research indicating that capture occupied since listing, although disturbance or are representative of the efficiency of a seine haul averages 49 possibly at low numbers that were historical, geographical, and ecological percent (Dewey and Holland-Bartels difficult to detect. distributions of a species.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10831
We derive the specific PBFs required out of, the main river channel) (Sublette spikedace. In the study, fish were for spikedace and loach minnow from et al. 1990, p. 138). acclimated to a given temperature, and studies of their habitat, ecology, and life Adult spikedace occur in the widest then temperatures were increased by history as described in the Critical range of flow velocities. They are 1 °C (33.8 °F) per day until test Habitat section of the proposed rule to typically associated with shear zones temperatures were reached. The study designate critical habitat published in (areas within a stream where more determined that no spikedace survived the Federal Register on October 28, rapidly flowing water abuts water exposure of 30 days at 34 or 36 °C (93.2 2010, and in the information presented moving at slower velocities), or 96.8 °F), and that 50 percent below. Additional information can be downstream of sand bars, and in eddies mortality occurred after 30 days at 32.1 found in the final listing rule published or small whirlpools along downstream °C (89.8 °F). In addition, growth rate in the Federal Register on July 1, 1986 margins of riffles (those shallow was slowed at 32 °C (89.6 °F), as well (spikedace; 51 FR 23769) and October portions of the stream with rougher, as at the lower test temperatures of 10 28, 1986 (loach minnow; 51 FR 39468), choppy water). Adult spikedace are and 4 °C (50 and 39.2 °F). Multiple and the recovery plans for each of the found in shallow water over behavioral and physiological changes species (Service 1991a, 1991b). Below, predominantly gravel-dominated were observed, indicating the fish we provide a discussion of the physical substrates (Propst et al. 1986, p. 40; became stressed at 30, 32, and 33 °C (86, and biological features that are essential Rinne 1991, pp. 8–12; Rinne and 89.6 and 91.4 °F). The study concludes to the conservation of the spikedace and Stefferud 1997, p. 21; Rinne and Deacon that temperature tolerance in the wild loach minnows: 2000, p. 106; Rinne 2001, p. 68), but may be lower due to the influence of also over cobble and sand substrates additional stressors, including disease, Space for Individual and Population (Minckley and Marsh 2009, p. 155; predation, competition, or poor water Growth and for Normal Behavior Rinne and Kroeger 1988, p. 3; Sublette quality. Survival of fish in the Spikedace et al. 1990, p. 138). fluctuating temperature trials in the In addition to substrate type, the study likely indicates that exposure to Microhabitats. Habitat occupied by amount of embeddedness (filling in of higher temperatures for short periods spikedace can be broken down into spaces by fine sediments) is also during a day would be less stressful to smaller, specialized habitats called important to spikedace. Spikedace more spikedace. The study concludes that 100 microhabitats. These microhabitats vary commonly occur in areas with low to percent survival of spikedace at 30 °C by stream, by season, and by species’ moderate amounts of fine sediment and (86 °F) in the experiment suggests that life stage. Studies on habitat use have substrate embeddedness, which is little juvenile or adult mortality would been completed on the Gila River in important for the healthy development occur due to thermal stress if peak water New Mexico, and the Verde River and of eggs. Spawning has been observed in temperatures remain at or below that Aravaipa Creek in Arizona. Generally, areas with sand and gravel beds and not level (Bonar et al. 2005, pp. 7–8, 29–30). spikedace occupy moderate to large in areas where fine materials smaller Spikedace occupy streams with low to perennial streams at low elevations over than sand coats the sand or gravel moderate gradients (Propst et al. 1986, substrates (river bottom material) of substrate. Additionally, low to moderate p. 3; Rinne and Stefferud 1997, p. 14; sand, gravel, and cobble (Barber and amounts of fine sediments ensure that Stefferud and Rinne 1996, p. 21; Minckley 1966, p. 31; Propst et al. 1986, eggs remain well-oxygenated and will Sublette et al. 1990, p. 138). Specific pp. 3, 12; Rinne and Kroeger 1988, p. 1). not suffocate due to sediment gradient data are generally lacking, but Occupied streams are typically of low deposition (Propst et al. 1986, p. 40). the gradient of occupied portions of gradient (Barber et al. 1970, p. 10; Rinne Water temperatures of occupied Aravaipa Creek and the Verde River and Kroeger 1988, p. 2; Rinne 1991, pp. spikedace habitat vary with time of year. varied between approximately 0.3 to 8–12; Rinne and Stefferud 1996, p. 17), Water temperatures have been < 1.0 percent (Barber et al. 1970, p. 10; and less than 1 meter (m) (3.28 feet (ft)) recorded at Aravaipa Creek, and on the Rinne and Kroeger 1988, p. 2; Rinne and in depth (Propst et al. 1986, p. 41; Gila River in the Forks area and at the Stefferud 1997, p. 14). Minckley and Marsh 2009, p. 155). Cliff-Gila Valley. Water temperatures of Table 2 compares specific parameters Larval spikedace occur most occupied spikedace habitat vary with of habitat occupied by spikedace at frequently in slow-velocity water near time of year. Summer water various ages as identified through stream margins or along pool edges. temperatures were between 19.3 degrees studies completed to date. Studies on Most larvae are found over sand Celsius (°C) (66.7 degrees Fahrenheit flow velocity in occupied spikedace substrates. Juvenile spikedace tend to be (°F)) (Gila River, Forks Area) and 27 °C habitat have been completed on the Gila found over a greater range of water (80.6 °F) (Aravaipa Creek). Winter River, Aravaipa Creek, and the Verde velocities than larvae, but still in water temperatures ranged between 8.9 River (Barber and Minckley 1966, p. shallow areas. Juvenile spikedace °C (48.0 °F) at Aravaipa Creek and 11.7 321; Minckley 1973, p. 114; Anderson occupy areas with a gravel or sand °C (53.1 °F) in the Cliff-Gila Valley 1978, p. 17; Schreiber 1978, p. 4; Turner substrate, although some have been (Barber and Minckley 1966, p. 316; and Tafanelli 1983, pp. 15–16; Propst et found over cobble substrates as well. Barber et al. 1970, pp. 11, 14; Propst et al. 1986, pp. 39–41; Rinne and Kroeger Larvae and juveniles may occasionally al. 1986, p. 57). 1988, p. 1; Hardy et al. 1990, pp. 19–20, be found in quiet pools or backwaters Studies by the University of Arizona 39; Sublette et al. 1990, p. 138; Rinne (e.g., pools that are connected with, but focused on temperature tolerances of 1991, pp. 9–10; Rinne 1999a, p. 6).
TABLE 2—HABITAT PARAMETERS FOR VARYING LIFE STAGES OF SPIKEDACE
Larvae Juveniles Adults
Flow velocity in centimeters per 8.4 (3.3) ...... 16.8 (6.6) ...... 23.3–70.0 (9.2–27.6). second (inches per second). Depth in centimeters (inches) ...... 3.0–48.8 (1.2–19.2) ...... 3.0–45.7 (1.2–18.0) ...... 6.1–42.7 (2.4–16.8). Gradient (percent) ...... No data ...... No data ...... 0.3 to <1.0.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10832 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
TABLE 2—HABITAT PARAMETERS FOR VARYING LIFE STAGES OF SPIKEDACE—Continued
Larvae Juveniles Adults
Substrates ...... Primarily sand, with some over Primarily gravel, with some sand Sand, gravel, cobble, and low gravel or cobble. and cobble. amounts of fine sediments.
In studies on the Gila River, there water to back up and break into braids Their reduced air bladder (the organ were seasonal shifts in microhabitats downstream of the dam. The braided that aids in controlling a fish’s ability to used, involving depth or velocity, areas provide excellent nurseries for float without actively swimming) allows depending on the study site. It is larval and juvenile fishes (Velasco 1997, them to persist in high-velocity habitats believed that seasonal shifts in pp. 28–29). with a minimal amount of energy, and microhabitat use reflect selection by On the Gila River in New Mexico, they live in the interstitial spaces spikedace for particular microhabitats. flows fluctuate seasonally with (openings) between rocks (Anderson In the cold season, when their metabolic snowmelt, causing spring pulses and and Turner 1977, pp. 2, 6–7, 9, 12–13; rate decreases, spikedace near the Forks occasional floods, and late-summer or Barber and Minckley 1966, p. 315; Lee area on the Gila River seek protected monsoonal rains produce floods of et al. 1980, p. 365; Britt 1982, pp. 10– areas among the cobble of stream varying intensity and duration. These 13, 29–30; J.M. Montgomery 1985, p. 21; channel margins, where water is high flows likely rejuvenate spikedace Marsh et al. 2003, p. 666; Minckley shallower and warmer. In other areas spawning and foraging habitat (Propst et 1981, p. 165; Propst et al. 1988, p. 35; such as the Cliff-Gila Valley, cobbled al. 1986, p. 3). Floods likely benefit Rinne 1989, p. 109; Velasco 1997, p. 28; banks for protection were generally not native fish by breaking up embedded Sublette et al. 1990, p. 187; AGFD 1994, available, but slow-velocity areas in the bottom materials (Mueller 1984, p. 355). pp. 1, 5–11; Bagley et al. 1995, pp. 11, lee of gravel bars and riffles were A study of the Verde River analyzed the 13, 16, 17, 22; Rinne 2001, p. 69; common, and spikedace shifted to these effects of flooding in 1993 and 1995, Minckley and Marsh 2009, p. 174). protected areas of slower velocity finding that the floods either stimulated Loach minnow are sometimes found in during the cold season. Seasonal spawning, enhanced recruitment of or near filamentous (threadlike) algae, changes in microhabitat preference by three native species, or eliminated one which are attached to the stream spikedace are not entirely understood, of the nonnative fish species (Stefferud substrates (Anderson and Turner 1977, and additional study is needed (Propst and Rinne 1996a, p. 80). p. 5; Lee et al. 1980, p. 365; Minckley et al. 1986, pp. 47–49). In summary, based on the best 1981, p. 165; Sublette et al. 1990, p. 187; Studies indicate a geographic scientific and commercial information Minckley and Marsh 2009, p. 174). variation in the portion of the stream available for spikedace, we have Microhabitats used by loach minnow used by spikedace. On the Verde River, developed the following ranges in vary by life stage and stream. Adult outside of the April to June breeding habitat parameters: loach minnow occupy a broad range of season, 80 percent of the spikedace • Shallow water generally less than water velocities, with the majority of collected used run and glide habitat. For 1 m (3.3 ft) in depth; adults occurring in swift flows. Their this study, a glide was defined as a • Slow to swift flow velocities eggs are adhesive, and are placed on the portion of the stream with a lower between 5 and 80 cm per second (sec) undersurfaces of rocks in the same gradient (0.3 percent), versus a run (1.9 and 31.5 in. per sec); riffles that they themselves occupy. which had a slightly steeper gradient • Glides, runs, riffles, the margins of After hatching, larval loach minnow (0.3–0.5 percent) (Rinne and Stefferud pools and eddies, and backwater move from the rocks under which they 1996, p. 14). In contrast, spikedace in components; were spawned to areas with slower the Gila River were most commonly • Sand, gravel, and cobble substrates velocities than the main stream, found in riffle areas of the stream with with low or moderate amounts of fine typically remaining in areas with moderate to swift currents (Anderson sediment and substrate embeddedness, significantly slower velocities than 1978, p. 17) and some run habitats (J.M. as maintained by a natural, unregulated juveniles and adults. Larval loach Montgomery 1985, p. 21), as were flow regime that allows for periodic minnow occupy areas that are shallower spikedace in Aravaipa Creek (Barber flooding or, if flows are modified or and significantly slower than areas and Minckley 1966, p. 321). regulated, a flow regime that allows for where eggs are found (Propst et al. 1988, Flooding. In part, suitable habitat adequate river functions, such as flows p. 37; Propst and Bestgen 1991, p. 32). conditions are maintained by flooding. capable of transporting sediments; Juvenile loach minnow generally occur Periodic flooding appears to benefit • Low gradients of less than in areas where velocities are similar to spikedace in three ways: (1) Removing approximately one percent; those used by adults, and that have excess sediment from some portions of • Water temperatures in the general higher flow velocities than those the stream; (2) removing nonnative fish range of 8 to 28 °C (46.4 to 82.4 °F); and occupied by larvae (Propst et al. 1988, species from a given area; and (3) • Elevations below 2,100 m (6,890 ft). pp. 36–37). increasing prey species diversity. Items Substrate is an important component 2 and 3 will be addressed in greater Loach Minnow of loach minnow habitat. Studies in detail below. Microhabitat. The best scientific and Aravaipa Creek and the Gila River Flooding in Aravaipa Creek has commercial information available indicate that loach minnow prefer resulted in the transport of heavier loads indicates that, in general, loach minnow cobble and large gravel, avoiding areas of sediments, such as cobble, gravel, and live on the bottom streams or rivers with dominated by sand or fine gravel. This sand that are deposited where the low gradients within shallow, swift, and may be because loach minnow maintain stream widens, gradient flattens, and turbulent riffles. They are also known to a relatively stationary position on the velocity and turbulence decreases. occupy pool, riffle, and run habitats in bottom of a stream in flowing water. An Natural dams formed by the deposition some areas. They live and feed among irregular bottom, such as that created by of this sediment can temporarily cause clean, loose, gravel-to-cobble substrates. cobble or larger gravels, creates pockets
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10833
of lower water velocities around larger stream temperature (Propst et al. 1988, additional stressors, including disease, rocks where loach minnow can remain p. 62). Suitable temperature regimes predation, competition, or poor water stationary with less energy expenditure appear to be fairly consistent across quality. The study concludes that since (Turner and Tafanelli 1983, pp. 24–25). geographic areas. Studies of Aravaipa 100 percent survival of loach minnow at In the Gila and San Francisco rivers, the Creek, East Fork White River, the San 28 °C (82.4 °F) was observed, that little majority of loach minnow captured Francisco River, and the Gila River juvenile or adult mortality would occur occurred in the upstream portion of a determined that loach minnow were due to thermal stress if peak water riffle, rather than in the central and present in areas with water temperatures remain at or below that lower sections of the riffle, where loose temperatures in the range of 9 to 22 °C level (Bonar et al. 2005, pp. 6–8, 28, 33). materials are more likely to fall out of (48.2 to 71.6 °F) (Britt 1982, p. 31; Gradient may influence the the water column and settle on the Propst et al. 1988, p. 62; Leon 1989, p. distribution and abundance of loach stream bottom. This is likely due to the 1; Propst and Bestgen 1991, p. 33; Vives minnow. In studies of the San Francisco availability of interstitial spaces in the and Minckley 1990, p. 451). River, Gila River, Aravaipa Creek, and cobble-rubble substrate, which became Studies by the University of Arizona the Blue River, loach minnow occurred filled with sediment more quickly in the in stream reaches where the gradient central and lower sections of a riffle focused on temperature tolerances of loach minnow. In one study, fish were was generally low, ranging from 0.3 to (Propst et al. 1984, p. 12). 2.2 percent (Rinne 1989, p. 109; Rinne Varying substrates are used during acclimated to a given temperature, and 2001, p. 69). different life stages of loach minnow. then temperatures were increased by 1 ° ° Adults occur over cobble and gravel, C (33.8 F) per day until test Table 3 compares specific parameters and place their eggs in these areas. temperatures were reached. The study of microhabitats occupied by loach Larval loach minnow are found where determined that no loach minnow minnow at various ages as identified substrate particles are smaller than survived for 30 days at 32 °C (89.6 °F), through studies completed to date. those used by adults. Juvenile loach and that 50 percent mortality occurred Studies on habitat occupied by loach minnow occupy areas with substrates of after 30 days at 30.6 °C (87.1 °F). In minnow have been completed on the larger particle size than larvae. addition, growth rate slowed at 28 and Gila River, Tularosa River, San Generally, adults exhibited a narrower 30 °C (82.4 and 86.0 °F) compared to Francisco River, Aravaipa Creek, Deer preference for depth and substrate than growth at 25 °C (77 °F), indicating that Creek, and Eagle Creek (Barber and did juveniles, and were associated with loach minnow were stressed at sublethal Minckley 1966, p. 321; Britt 1982, pp. gravel to cobble substrates within a temperatures. Survival of fish in the 1, 5, 10–12, 29; Turner and Tafanelli narrower range of depths (Propst et al. fluctuating temperature trials of the 1983, pp. 15–20, 26; Propst et al. 1984, 1988, pp. 36–39; Propst and Bestgen study likely indicates that exposure to pp. 7–12; Propst et al. 1988, pp. 32, 36– 1991, pp. 32–33). higher temperatures for short periods 39; Rinne 1989, pp. 111–113, 116; Loach minnow have a fairly narrow during a day would be less stressful to Propst and Bestgen 1991, p. 32; Vives range in temperature tolerance, and loach minnow. The study concludes and Minckley 1990, pp. 451–452; Propst their upstream distributional limits in that temperature tolerance in the wild and Bestgen 1991, pp. 32–33; Velasco some areas may be linked to low winter may be lower due to the influence of 1997, pp. 5–6; Marsh et al. 2003, p. 666).
TABLE 3—HABITAT PARAMETERS FOR VARYING LIFE STAGES OF LOACH MINNOW
Egg Larvae Juveniles Adults
Flow velocity in centi- 3.0–91.4 (1.2–36.0) ...... 0.0–48.8 (0.0–19.2) ...... 3.0–85.3 (1.2–33.6) ...... 0.0–79.2 (0.0–31.2). meters per second (inches per second). Depth in centimeters 3.0–30.5 (1.2–12) ...... 3.0–45.7 (1.2–8.0) ...... 6.1–42.7 (2.4–16.8) ...... 6.1–45.7 (2.4–18.0). (inches). Substrate ...... Large gravel to rubble ...... No data ...... No data ...... Gravel to cobble.
There are some differences in loach minnow. In areas where (addressed further below) (Stefferud and microhabitats occupied by loach substantial diversions (structures Rinne 1996b, p. 1). minnow in different areas. Studies created to divert water to pools for Flooding also cleans, rearranges, and completed in New Mexico determined pumping from the stream) or rehabilitates important riffle habitat that there were significant differences in impoundments have been constructed, (Propst et al. 1988, pp. 63–64). Flooding water velocities occupied among the loach minnow are less likely to occur allows for the scouring of sand and three study sites, with the mean (Propst et al. 1988, pp. 63–64; Propst gravel in riffle areas, which reduces the velocities at 37.4 (Tularosa River), 56.3 and Bestgen 1991, p. 37). This is in part degree of embeddedness of cobble and (Forks area of the Gila River) and 60.5 due to habitat changes caused by the boulder substrates (Britt 1982, p. 45). cm per second (Cliff-Gila Valley site on construction of the diversions, and in Typically, sediment is carried along the the Gila River). Differences in water part due to the reduction of beneficial bed of a stream and deposited at the depth were not as pronounced, effects of flooding on loach minnow however. Much of the variation in downstream, undersurface side of habitat. Flooding appears to positively cobbles and boulders. Over time, this microhabitat utilization may be affect loach minnow population explained by habitat availability, as the can result in the filling of cavities dynamics by resulting in higher compared streams varied in size (Propst created under cobbles and boulders recruitment (reproduction and survival et al. 1988, pp. 37–43). (Rinne 2001, p. 69). Flooding removes of young) and by decreasing the the extra sediment, and cavities created Flooding. Flooding also plays an abundance of nonnative fishes under cobbles by scouring action of the important role in habitat suitability for
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10834 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
flood waters provides enhanced stoneflies, and dragonflies (Order genus Baetidae (Schreiber 1978, p. 36), spawning habitat for loach minnow. Odonata) are all potential prey items. In which are free-ranging species of rapid Studies on the Gila, Tularosa, and San one Gila River study, the frequency of waters that maintain themselves in Francisco rivers found that flooding is occurrence was 71 percent for mayflies, currents by clinging to pebbles. primarily a positive influence on native 34 percent for true flies, and 25 percent Spikedace also consumed individuals fish, and apparently had a positive for caddisflies (Propst et al. 1986, p. 59). from two other mayfly genera influence on the relative abundance of A second Gila River study of four (Heptageniidae and Ephemerellidae), loach minnow (Britt 1982, p. 45). Rather samples determined that total food which are considered ‘‘clinging than following a typical pattern of volume was composed of 72.7 percent species,’’ as they cling tightly to stones winter mortality and population mayflies, 17.6 percent caddisflies, and and other objects and may be found in decline, high levels of loach minnow 4.5 percent true flies (Anderson 1978, greatest abundance in crevices and on recruitment occurred after the flood, pp. 31–32). At Aravaipa Creek, mayflies, the undersides of stones (Pennak 1978, and loach minnow relative abundance caddisflies, true flies, stoneflies, and p. 539). The importance of gravel and remained high through the next spring. dragonflies were all prey items for cobble substrates is illustrated by the Flooding enhanced and enlarged loach spikedace, as were some winged insects fact that the availability of these prey minnow habitat, resulting in a greater and plant materials (Schreiber 1978, pp. species, which make up the bulk of the survivorship of individuals through 12–16, 29, 35–37). Barber and Minckley spikedace diet, requires these surfaces winter and spring (Propst et al. 1988, p. (1983, pp. 34–38) found that spikedace to persist. 51). Similar results were observed on at Aravaipa Creek also consumed ants The availability of food for spikedace the Gila and San Francisco rivers and wasps (Order Hymenoptera), is affected by flooding. The onset of following flooding in 1978 (Britt 1982, spiders (Order Areneae), beetles (Order flooding corresponds with an increased p. 45). Coleoptera), true bugs, and water fleas diversity of food items, as inflowing In summary, based on the best (Order Cladocera). flood water carries terrestrial scientific and commercial information Spikedace diet varies seasonally invertebrates, such as ants, bees, and available for loach minnow, we have (Barber and Minckley 1983, pp. 34–38). wasps, into aquatic areas (Barber and developed generalized ranges in habitat Mayflies dominated stomach contents in Minckley 1983, p. 39). parameters within streams or rivers, as July, but declined in August and Water. As a purely aquatic species, follows: September, increasing in importance spikedace are entirely dependent on • Shallow water generally less than 1 again between October and June. When streamflow habitat for all stages of their m (3.3 ft) in depth; mayflies were available in lower life cycle. Therefore, perennial flows are • Slow to swift flow velocities numbers, spikedace consumed a greater an essential feature. Areas with between 0 and 80 cm per sec (0.0 and variety of foods, including true bugs, intermittent flows may serve as 31.5 in. per sec); true flies, beetles, and spiders. connective corridors between occupied • Pools, runs, riffles and rapids; Spikedace diet varies with age class as or seasonally occupied habitat through • Sand, gravel, cobble, and rubble well. Young spikedace fed on a diversity which the species may move when the substrates with low or moderate of small-bodied invertebrates occurring habitat is wetted. In addition to water quantity, water amounts of fine sediment and substrate in and on sediments along the margins quality is important to spikedace. Water embeddedness, as maintained by a of the creek. True flies were found most with no or low levels of pollutants is natural, unregulated flow regime that frequently, but water fleas and aerial essential for the survival of spikedace. allows for periodic flooding or, if flows adults of aquatic and terrestrial insects For spikedace, pollutants such as are modified or regulated, flow regime also provide significant parts of the diet. copper, arsenic, mercury, cadmium, that allows for adequate river functions, As juveniles grow and migrate into the human and animal waste products, such as flows capable of transporting swifter currents of the channel, mayfly nymphs (invertebrates between the pesticides, suspended sediments, ash, sediments; and gasoline or diesel fuels should not • Water temperatures in the general larval and adult life stages, similar to juveniles) and adults increase in be present at high levels (Baker, 2005, range of 8 to 25 °C (46.4 to 77 °F); pers. comm.). In addition, for freshwater • Low stream gradients of less than importance (Barber and Minckley 1983, pp. 36–37). fish, dissolved oxygen should generally approximately 2.5 percent; and Spikedace are dependent on aquatic be greater than 3.5 cubic centimeters per • Elevations below 2,500 m (8,202 ft). insects for sustenance, and the liter (cc per l) (Bond 1979, p. 215). Food, Water, Air, Light, Minerals, or production of the aquatic insects Below this level, some stress to fish may Other Nutritional or Physiological consumed by spikedace occurs mainly occur. Requirements in riffle habitats (Propst et al. 1986, p. Fish kills have been documented 59). Barber and Minckley (1983, pp. 36– within the range of the spikedace, Spikedace 37, 40) found that spikedace in pools including on the San Francisco River Food. Spikedace are active, highly had eaten the least diverse food, while (Rathbun 1969, pp. 1–2) and the San mobile fish that visually inspect drifting those from riffles contained a greater Pedro River (Eberhardt 1981, pp. 1–4, 6– materials both at the surface and within variety of taxa, indicating that the 9, 11–12, 14, 16, and Tables 2–8). the water column. Gustatory inspection, presence of riffles in good condition and Occupancy by spikedace at the San or taking the potential prey items into abundance help to ensure that a Francisco River site is less certain, but the mouth before either swallowing or sufficient number and variety of prey spikedace were present in the Gila River rejecting it, is also common (Barber and items will continue to be available for upstream of its confluence with the San Minckley 1983, p. 37). Prey body size is spikedace. Francisco. Spikedace were present in small, typically ranging from 2 to 5 mm Aquatic invertebrates that constitute the San Pedro River up through 1969 (0.08 to 0.20 in) long (Anderson 1978, the bulk of the spikedace diet have within the area affected by the Cananea p. 36). specific habitat parameters of their own. Mine spill, which extended 97 km (60 Stomach content analysis of Mayflies occur primarily in fresh water mi) north of the United States/Mexico spikedace determined that mayflies, with an abundance of oxygen. border (Eberhardt 1981, p. 3). All caddisflies, true flies (Order Diptera), Spikedace consume mayflies from the aquatic life within this 97-km (60-mi)
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10835
stretch was killed between 1977 and the year for adults studied on the Gila was killed between 1977 and 1979, and 1979, and no spikedace records are and San Francisco Rivers, while larvae no loach minnow records are known known after that time. For both the San of true flies (insects of the order Diptera) after that time. On the San Francisco Francisco and San Pedro rivers, were most common in the winter River, loach minnow are known to have leaching ponds associated with copper months (Propst et al. 1988, p. 27; Propst occurred in the general area of the spill mines released waters into the streams, and Bestgen 1991, p. 35). In Aravaipa in the 1980s and 1990s (ASU 2002). resulting in elevated levels of toxic Creek, loach minnow consumed 11 Additional spills or discharges have chemicals. For the San Pedro River, this different prey items, including mayflies, occurred in the Gila River and affected included elevated levels of iron, copper, stoneflies, caddisflies, and true flies. streams within the watersheds occupied manganese, and zinc. Both incidents Mayflies constituted the largest by loach minnow, including the Gila resulted in die-offs of species inhabiting percentage of their diet during this River, San Francisco River, San Pedro the streams. Eberhardt (1981, pp. 1, 3, study except in January, when true flies River, and some of their tributaries (EPA 9, 10, 14–15) noted that no bottom- made up 54.3 percent of the total food 1997, pp. 24–67; Arizona Department of dwelling aquatic insects, live fish, or volume (Schreiber 1978, pp. 40–41). Environmental Quality 2000, p. 6; aquatic vegetation of any kind were Loach minnow consume different Church et al. 2005, p. 40; Arizona found in the area affected by the spill. prey items during their various life Department of Environmental Quality Rathbun (1969, pp. 1–2) reported stages. Both larvae and juveniles 2007, p. 1). similar results for the San Francisco primarily consumed true flies, which In summary, based on the best River. As detailed above under the constituted approximately 7 percent of scientific and commercial information threats discussion, spills or discharges their food items in one year, and 49 available for loach minnow, we have have occurred in the Gila River and percent the following year in one study. identified an appropriate prey base and affected streams within the watersheds Mayfly nymphs were also an important water quality for loach minnow to of spikedace, including the Gila River, dietary element at 14 percent and 31 include: San Francisco River, San Pedro River, percent during a one-year study. Few • An abundant aquatic insect food and some of their tributaries (EPA 1997, other aquatic macroinvertebrates were base consisting of mayflies, true flies, pp. 24–67; Arizona Department of consumed (Propst et al. 1988, p. 27). In black flies, caddisflies, stoneflies, and Environmental Quality 2000, p. 6; a second study, true fly larvae and dragonflies; Church et al. 2005, p. 40; Arizona mayfly nymphs constituted the primary • Streams with no or no more than Department of Environmental Quality food of larval and juvenile loach low levels of pollutants; • 2007, p. 1). minnow (Propst and Bestgen 1991, p. Perennial flows, or interrupted In summary, based on the best 35). stream courses that are periodically scientific and commercial information The availability of pool and run dewatered but that serve as connective available for spikedace, we conclude habitats affects availability of prey corridors between occupied or that an appropriate prey base and water species. While most of the food items of seasonally occupied habitat and through quality parameters for spikedace will loach minnow are riffle species, two are which the species may move when the include: not, including true fly larvae and mayfly habitat is wetted; and • An abundant aquatic insect food nymphs. Mayfly nymphs, at times, • Streams with a natural, unregulated base consisting of mayflies, true flies, made up 17 percent of the total food flow regime that allows for periodic black flies, caddisflies, stoneflies, and volume of loach minnow in a study at flooding or, if flows are modified or dragonflies; Aravaipa Creek (Schreiber 1978, pp. 40– regulated, a flow regime that allows for • Streams with no or no more than 41). The presence of a variety of habitat adequate river functions, such as flows low levels of pollutants; types is, therefore, important to the capable of transporting sediments. • Perennial flows, or interrupted persistence of loach minnow in a Cover or Shelter stream courses that are periodically stream, even though they are typically dewatered but that serve as connective associated with riffles. Spikedace. No specific information on corridors between occupied or Water Quality. Water, with no or low habitat parameters used specifically for seasonally occupied habitat and through pollutant levels, is important for the cover and shelter is available for which the species may move when the conservation of loach minnow. For spikedace. Therefore, we have not habitat is wetted; loach minnow, waters should have no identified any specific conditions • Streams with a natural, unregulated more than low levels of pollutants, such specific to cover and shelter for flow regime that allows for periodic as copper, arsenic, mercury, cadmium, spikedace. flooding or, if flows are modified or human and animal waste products, Loach Minnow. As noted above, adult regulated, a flow regime that allows for pesticides, suspended sediments, and loach minnow are sometimes associated adequate river functions, such as flows gasoline or diesel fuels (Baker, 2005, with filamentous algae, which may capable of transporting sediments. pers. comm.). In addition, for freshwater serve as a protective cover (Anderson fish, dissolved oxygen should generally and Turner 1977, p. 5; Lee et al. 1980, Loach Minnow be greater than 3.5 cc per l (Bond 1979, p. 365; Minckley 1981, p. 165; Sublette Food. Loach minnow are p. 215). Below this, some stress to the et al. 1990, p. 187; Minckley and Marsh opportunistic, feeding on riffle-dwelling fish may occur. 2009, p. 174). Loach minnow adults larval mayflies, black flies, and true Fish kills associated with previous place their adhesive eggs on the flies, as well as from larvae of other mining accidents, as well as other undersides of rocks, with the rock aquatic insect groups such as caddisflies contaminants issues, are detailed under serving as protective cover. Propst et al. and stoneflies. Loach minnow in the the spikedace discussion above. These (1988, p. 21) found that the rocks used Gila, Tularosa, and San Francisco rivers incidents occurred within the historical were typically elevated from the surface consumed primarily true flies and range of the loach minnow. As with of the streambed on the downstream mayflies, with mayfly nymphs being an spikedace, loach minnow were known side, with most rocks flattened and important food item throughout the to occur in the area affected by the smooth surfaced. Adult loach minnow year. Mayfly nymphs constituted the Cananea Mine spill up through 1961. remain with the eggs, so that the rock most important food item throughout All aquatic life within the affected area serves as a protective cover for them as
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10836 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
well (Propst et al. 1988, pp. 21–25, 36– velocities than larvae (0.0 to 57.9 cm per from 3.0 to 91.4 cm per second (36.0 in. 39). second (22.8 in. per second)), but per second). The majority of rocks with occurred at similar depths as larvae attached eggs were found in water Sites for Breeding, Reproduction, or (Propst et al. 1986, pp. 40–41). flowing at approximately 42.7 cm per Rearing (or Development) of Offspring As noted above, excessive second (16.8 in. per second). The range Spikedace sedimentation can lead to suffocation of of depths in which rocks with eggs Suitable sites. Spikedace occur in eggs. Clean substrates are therefore attached were found was 3.0 to 30.5 cm specific habitat during the breeding essential for successful breeding. Both (1.2 to 12 in), with the majority found season, with female and male spikedace flooding and unaltered flow regimes are between 6.1 and 21.3 cm (2.4 and 8.4 in) becoming segregated. Females occupy essential for maintenance of suitable (Propst et al. 1988, pp. 36–39). pools and eddies, while males occupy substrates. As noted above under habitat Loach minnow larvae occupy riffles flowing over sand and gravel beds requirements, periodic flooding appears shallower and slower water than eggs. in water approximately 7.9 to 15.0 cm to benefit spikedace by removing excess In Gila River studies, larvae occurred in (3.1 to 5.9 in) deep. Females then enter sediment from some portions of the flow velocities averaging 7.9 cm per the riffles occupied by the males before stream, breaking up embedded bottom second (3.1 in. per second), and in eggs are released into the water column materials, or rearranging sediments in depths between 3.0 to 45.7 cm (1.2 to 18 (Barber et al. 1970, pp. 11–12). ways that restore suitable habitats. in). Juveniles occurred in areas with Spikedace eggs are adhesive and Flooding may also stimulate spawning higher velocities, ranging between 35.1 develop among the gravel and cobble of or enhance recruitment (Mueller 1984, and 85.3 cm per second (13.8 and 33.6 the riffles following spawning. p. 355; Propst et al. 1986, p. 3; Stefferud in. per second). Juveniles occurred in Spawning in riffle habitat ensures that and Rinne 1996a, p. 80; Minckley and slightly deeper water of approximately the eggs are well oxygenated and are not Meffe 1987, pp. 99, 100; Rinne and 6.1 to 42.7 cm (2.4 to 16.8 in) (Propst et normally subject to suffocation by Stefferud 1997, pp. 159, 162; Velasco al. 1988, pp. 36–39). As noted above under general habitat sediment deposition due to the swifter 1997, pp. 28–29). Streams in the requirements, flooding is important in flows found in riffle habitats. However, southwestern United States have a wide maintaining loach minnow habitat, after the eggs have adhered to the gravel fluctuation in flows and some are including habitats used for breeding. and cobble substrate, excessive periodically dewatered. While portions Flooding reduces embeddedness of sedimentation could cause suffocation of stream segments included in these cobble and boulder substrates under of the eggs (Propst et al. 1986, p. 40). designations may experience dry Larval and juvenile spikedace occupy periods, they are still considered which eggs are placed (Britt 1982, p. peripheral portions of streams that have important because the spikedace is 45). The construction of water slower currents (Anderson 1978, p. 17; adapted to stream systems with diversions have reduced or eliminated Propst et al. 1986, pp. 40–41). Gila River fluctuating water levels. While they riffle habitat in many stream reaches, studies found larval spikedace in cannot persist in dewatered areas, resulting in pool development. Loach velocities of 8.4 cm per second (3.3 in. spikedace will use these areas as minnow are generally absent in stream per sec) while juvenile spikedace connective corridors between occupied reaches affected by impoundments. occupy areas with velocities of or seasonally occupied habitat when While the specific factors responsible approximately 16.8 cm per second (6.6 they are wetted. Areas that serve as for this are not known, it is likely in. per sec) (Propst et al. 1986, p. 41). connective corridors are those related to modification of thermal Once they emerge from the gravel of ephemeral or intermittent stream regimes, habitat, food base, or discharge the spawning riffles, spikedace larvae segments that connect two or more other patterns (Propst et al. 1988, p. 64; disperse to stream margins where water perennial stream segments. Minckley 1973, pp. 1–11). Therefore, based on the information velocity is very slow or still. Larger Therefore, based on the information above, we identify appropriate sites for larval and juvenile spikedace (those fish above, we identify appropriate sites for breeding, reproduction, or development 25.4 to 35.6 mm (1.0 to 1.4 in) in length) breeding, reproduction, or development of offspring for loach minnow to occurred over a greater range of water of offspring for spikedace to include: • Sand, gravel, and cobble substrates; include: velocities than smaller larvae, but still • Riffle habitat; • Cobble substrates; occupied water depths of less than 32.0 • Slower currents along stream • Riffle habitats; cm (12.6 in) (Propst et al. 1986, p. 40). margins with appropriate stream • Slower currents along stream Juveniles and larvae are also velocities for larvae; margins with appropriate stream occasionally found in quiet pools or • Appropriate water depths for larvae velocities for larvae; backwaters (e.g., pools that are and juvenile spikedace; • Appropriate water depths for larvae connected with, but out of, the main • Flow velocities that encompass the and juvenile loach minnow; river channel) lacking streamflow range of 8.5 cm per sec (3.3 in. per sec) • Flow velocities that encompass the (Sublette et al. 1990, p. 138). to 57.9 cm per sec (22.8 in. per sec); and range of 6.1 to 42.7 cm (2.4 to 16.8 in); During a study on the Gila River, 60 • Streams with a natural, unregulated and percent of spikedace larvae were found flow regime that allows for periodic • Streams with a natural, unregulated over sand-dominated substrates, while flooding or, if flows are modified or flow regime that allows for periodic 18 percent were found over gravel, and regulated, a flow regime that allows for flooding or, if flows are modified or an additional 18 percent found over adequate river functions, such as flows regulated, a flow regime that allows for cobble-dominated substrates. While 45 capable of transporting sediments. adequate river functions, such as flows percent of juvenile spikedace were capable of transporting sediments. found over sand substrates, an Loach Minnow additional 45 percent of the juveniles Adult loach minnow attach eggs to Spikedace were found over gravel substrates, with the undersurfaces of rocks in the same Nonnative aquatic species. One of the the remaining 10 percent associated riffles in which they are typically found. primary reasons for the decline of native with cobble-dominated substrates. In studies conducted on the Gila River, species is the presence of nonnative Juveniles occupy a wider range in flow water velocities in these areas ranged aquatic species, as described above
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10837
under Factors C and E above. Nonnative Loach Minnow biology, and ecology of the species and aquatic species can include fishes, As with spikedace (discussed above), the habitat requirements for sustaining crayfish, or parasites, among others. interference and exploitive competition the essential life-history functions of the Interactions with nonnative fishes can with nonnative species can be species, we have determined that PCEs occur in the form of interference detrimental to loach minnow. for the spikedace are: competition (e.g., predation) or Interference competition, in the form of (1) Habitat to support all egg, larval, exploitive competition (competition for predation, may result from interactions juvenile, and adult spikedace, which resources), and introduced species are between loach minnow and nonnative includes: considered a primary factor in the channel and flathead catfish, while a. Perennial flows with a stream depth decline of native species (Anderson exploitive competition likely occurs generally less than 1 m (3.3 ft), and with 1978, pp. 50–51; Miller et al. 1989, p. with red shiner. slow to swift flow velocities between 5 1; Lassuy 1995, p. 392). Multiple The discussion under Factor C above and 80 cm per second (1.9 and 31.5 in. nonnative fish species are now present on disease and predation includes per second). in the range of spikedace and loach information on other nonnative aquatic b. Appropriate stream microhabitat minnow. In addition, nonnative species, such as Asian tapeworm, types including glides, runs, riffles, the parasites are also present. anchor worm, and Ich, which are also margins of pools and eddies, and Flooding may help to reduce the detrimental to loach minnow. backwater components over sand, threat presented by nonnative species. The discussion under spikedace on gravel, and cobble substrates with low Minckley and Meffe (1987, pp. 99–100) flooding and its benefits in potentially or moderate amounts of fine sediment found that flooding, as part of a natural minimizing threats from nonnative and substrate embeddedness; flow regime, may temporarily remove fishes applies to loach minnow as well. c. Appropriate stream habitat with a nonnative fish species, which are not The information presented above low gradient of less than approximately adapted to flooding patterns in the indicates the detrimental effects of 1.0 percent, at elevations below 2,100 m Southwest. Thus flooding consequently interference and exploitive competition (6,890 ft); and removes the competitive pressures of with nonnative species to loach d. Water temperatures in the general nonnative fish species on native fish minnow, as well as the issues presented range of 8.0 to 28.0 °C (46.4 to 82.4 °F). species which persist following the by the introduction of nonnative (2) An abundant aquatic insect food flood. Minckley and Meffe (1987, pp. parasites. Therefore, based on the best base consisting of mayflies, true flies, 99–100) studied the differential scientific and commercial information black flies, caddisflies, stoneflies, and response of native and nonnative fishes currently available for spikedace, we dragonflies. in seven unregulated and three conclude that suitable habitat with (3) Streams with no or no more than regulated streams or stream reaches that respect to nonnative aquatic species were sampled before and after major low levels of pollutants. should include: (4) Perennial flows, or interrupted flooding and noted that fish faunas of • Habitat devoid of nonnative aquatic canyon-bound reaches of unregulated stream courses that are periodically species, or habitat in which nonnative dewatered but that serve as connective streams invariably shifted from a aquatic species are at levels that allow mixture of native and nonnative fish corridors between occupied or persistence of loach minnow; and seasonally occupied habitat and through species to predominantly, and in some • Streams with a natural, unregulated which the species may move when the cases exclusively, native fishes after flow regime that allows for periodic habitat is wetted. large floods. Samples from regulated flooding or, if flows are modified or systems indicated relatively few or no regulated, a flow regime that allows for (5) No nonnative aquatic species, or changes in species composition due to adequate river functions, such as flows levels of nonnative aquatic species that releases from upstream dams at low, capable of transporting sediments. are sufficiently low as to allow controlled volumes. However, during persistence of spikedace. emergency releases, effects to nonnative Primary Constituent Elements for (6) Streams with a natural, fish species were similar to those seen Spikedace unregulated flow regime that allows for with flooding on unregulated systems. As noted above, we are required to periodic flooding or, if flows are There is some variability in fish identify the PBFs essential to the modified or regulated, a flow regime response to flooding. Some nonnative conservation of spikedace and loach that allows for adequate river functions, species, such as smallmouth bass and minnow in areas occupied at the time of such as flows capable of transporting green sunfish, appear to be partially listing, focusing on the features’ PCEs. sediments. adapted to flooding, and often reappear We consider PCEs to be the elements of Primary Constituent Elements for Loach in a few weeks (Minckley and Meffe PBFs that provide for a species’ life- Minnow 1987, p. 100). history processes, and that are essential The information presented above to the conservation of the species. We Based on the above needs and our indicates the detrimental effects of outline the appropriate quantities and current knowledge of the life history, interference and exploitive competition spatial arrangements of the elements in biology, and ecology of the species and with nonnative species to spikedace, as the Physical or Biological Features the habitat requirements for sustaining well as the issues presented by the (PBFs) section of the October 28, 2010, the essential life-history functions of the introduction of nonnative parasites. proposed rule. For example, spawning species, we have determined that PCEs Therefore, based on the best scientific substrate would be considered an for the loach minnow are: and commercial information currently essential feature, while the specific (1) Habitat to support all egg, larval, available for spikedace, we conclude composition (sand, gravel, and cobble) juvenile, and adult loach minnow that suitable habitat with respect to and level of embeddedness are the which includes: nonnative aquatic species is habitat elements (PCEs) of that feature. This (a) Perennial flows with a stream devoid of nonnative aquatic species, or section identifies the PCEs for both depth of generally less than 1 m (3.3 ft), habitat in which nonnative aquatic spikedace and loach minnow. and with slow to swift flow velocities species are at levels that allow Based on the above needs and our between 0 and 80 cm per second (0.0 persistence of spikedace. current knowledge of the life history, and 31.5 in. per second);
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10838 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(b) Appropriate microhabitat types although concern for this threat has recovery assessment of potential steps including pools, runs, riffles, and rapids lessened due to improved management necessary for achieving recovery of over sand, gravel, cobble, and rubble practices. The construction of water spikedace and loach minnow. substrates with low or moderate diversions can cause increasing water The current distribution of both amounts of fine sediment and substrate depth behind diversion structures, and spikedace and loach minnow is much embeddedness; has reduced or eliminated riffle habitat reduced from their historical (c) Appropriate stream habitats with a in many stream reaches. In addition, distribution. We anticipate that recovery low stream gradient of less than 2.5 loach minnow are generally absent in will require continued protection of percent and are at elevations below stream reaches affected by existing populations and habitat, as well 2,500 m (8,202 ft); and impoundments. While the specific as establishing populations in (d) Water temperatures in the general factor responsible for this is not known, additional streams within their ° ° range of 8.0 to 25.0 C (46.4 to 77 F). it is likely related to modification of historical ranges. Not all streams within (2) An abundant aquatic insect food thermal regimes, habitat, food base, or their historical range have retained the base consisting of mayflies, true flies, discharge patterns. necessary PBFs, and the critical habitat black flies, caddisflies, stoneflies, and We have included below in our designation does not include all streams dragonflies. description of each of the critical habitat known to have been occupied by the (3) Streams with no or no more than areas for the spikedace and loach species historically. The critical habitat low levels of pollutants. minnow a discussion of the threats designation instead focuses on streams (4) Perennial flows, or interrupted occurring in that area requiring special within the historical range that have stream courses that are periodically management or protections. retained the necessary PBFs, and that dewatered but that serve as connective will allow the species to reach recovery corridors between occupied or Criteria Used To Identify Critical by ensuring that there are adequate seasonally occupied habitat and through Habitat numbers of fish in stable populations, which the species may move when the As required by section 4(b) of the Act, and that these populations occur over a habitat is wetted. we used the best scientific and wide geographic area. This will help to (5) No nonnative aquatic species, or commercial data available in minimize the likelihood that levels of nonnative aquatic species that determining areas within the catastrophic events, such as wildfire or are sufficiently low to allow persistence geographical area occupied at the time contaminant spills, would be able to of loach minnow. of listing that contain the features (6) Streams with a natural, essential to the conservation of simultaneously affect all known unregulated flow regime that allows for spikedace and loach minnow, and areas populations. We developed necessary periodic flooding or, if flows are outside of the geographical areas steps for downlisting as well as modified or regulated, a flow regime occupied at the time of listing that are delisting. that allows for adequate river functions, essential for the conservation of For spikedace, our preliminary such as flows capable of transporting spikedace and loach minnow. Sources recovery assessment recommends that, sediments. of data for these two species include in order to downlist the species from multiple databases maintained by endangered to threatened, one Special Management Considerations or universities and State agencies for additional stable population be Protection Arizona and New Mexico, existing established in either the Salt or Verde When designating critical habitat, we recovery plans, endangered species subbasins, and the number of occupied assess whether the specific areas reports (Propst et al. 1986, 1988), and streams be increased from 8 (the current determined to be occupied at the time numerous survey reports on streams level) to 10 rangewide. Occupancy may of listing contain the PBFs and may throughout the species’ range. We have be established through natural means require special management also reviewed available information that (i.e., expansion by the fish themselves) considerations or protection. We believe pertains to the habitat requirements of or through translocation efforts. For each area included in these designations this species. Sources of information on delisting of spikedace, our preliminary requires special management and habitat requirements include existing recovery assessment indicates that a protections as described in our unit recovery plans, endangered species stable population should be established descriptions. reports, studies conducted at occupied in the remaining subbasin, and that Special management considerations sites and published in peer-reviewed occupied streams within the historical for each area will depend on the threats articles, agency reports, and data range of the species be increased to 12. to the spikedace or loach minnow, or collected during monitoring efforts. In addition, the goal is to ensure that all both, in that critical habitat area. For The recovery plans for spikedace and genetic lineages are adequately example, threats requiring special loach minnow were both finalized in represented in the 12 occupied streams, management include nonnative fish 1991 (Service 1991a; Service 1991b), where appropriate and feasible. species and the continued spread of and are in need of revision to update For loach minnow, our preliminary nonnative fishes into spikedace or loach information on species distribution, recovery assessment recommends that, minnow habitat. Other threats requiring revisit conservation priorities, address in order to downlist the species from special management include the threat any new information developed through endangered to threatened, the number of of fire, retardant application during fire, monitoring and research, and bring the occupied streams be increased from 19 and excessive ash and sediment plans into conformance with current (the current level) to 22, with one following fire. Poor water quality and Service standards. At the time the plans occupied stream in each of the major adequate quantities of water for all life were written, captive propagation and watersheds. For delisting, the stages of spikedace and loach minnow reintroduction projects had not yet preliminary recovery assessment threaten these fish and may require begun. With these efforts now under recommends increasing the number of special management actions or way, prioritization is needed. We are in occupied streams to 25, with at least one protections. Certain livestock grazing the process of convening a recovery occupied stream in each of the major practices can be a threat to spikedace team for this purpose. In the interim, we watersheds, and that remaining genetic and loach minnow and their habitats, have developed an internal preliminary lineages be adequately represented in at
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10839
least one stream, where appropriate and We determined that all areas summarized in Table 4, to determine feasible. designated as critical habitat for which areas to designate as critical The preliminary recovery assessment spikedace and loach minnow contain habitat: makes other recommendations, the PCEs for each species. There are no (1) Evaluate the habitat suitability of including establishing protective developed areas within the designations stream segments known to have been measures for connective areas, for either species except for barriers occupied at listing: maintaining captive breeding stocks, constructed on streams or road crossings (a) Retain those segments that contain and developing plans for augmentation of streams, which do not remove the the PCEs to support life-history of captive breeding stock. suitability of these areas for these functions essential for the conservation Our preliminary recovery assessment species. of the species, or of the habitats needed for conservation Using our preliminary recovery (b) Eliminate those areas known to of these species attempts to provide assessment for selection of critical have been occupied at listing, but that geographic distribution across the habitat, we have developed a ranges of the species, represent the full designation to expand the current no longer contain any PCEs for the ranges of habitat and environmental distribution of the two species by species. variability the species have occupied, including both specific areas known to (2) Evaluate stream segments not and preserve existing genetic diversity. be occupied by the species at listing, as known to have been occupied at listing We anticipate that the final recovery well as including some areas that were but that are within the historical range plans developed by the Recovery Team, not known to be occupied at listing, but of the species to determine if they are once formed, may vary from this which were once part of their historical essential to the survival and assessment, and will likely provide ranges. These unoccupied areas are conservation (i.e., recovery) of the additional criteria and prioritization of essential to the recovery of the species species. Essential areas are those that: recovery actions. However, the broad because their current distribution is (a) Serve as an extension of habitat goals used in our preliminary recovery reduced to 10 to 20 percent of historical within the geographic area of an assessment will be similar to those for range, and concentrates fish in a few occupied unit; or the recovery planning process as remaining areas that could be more (b) Expand the geographic recovery will require expanding the susceptible to catastrophic events. distribution within areas not occupied currently contracted ranges and We used the following ruleset for both at the time of listing across the historical establishing additional populations. spikedace and loach minnow, also range of the species.
TABLE 4—SUMMARY OF CATEGORIZATION OF WATERWAYS DESIGNATED AS CRITICAL HABITAT FOR LOACH MINNOW AND SPIKEDACE
Stream category Criterion Categorized as
Occupied at listing ...... Segment contains sufficient PCEs * to support life-history 1a functions essential to the conservation of the species. Segment no longer supports any PCEs for the species, or 1b segment has been permanently altered so that restoration is unlikely. Not known to be occupied at listing but within the species’ Segment serves as an extension of habitat in the unit ...... 2a historical range. Segment expands the geographic distribution across the 2b range of the species. * PCE = primary constituent element.
The critical habitat designation individuals increases the likelihood of spikedace and loach minnow. includes two different categories of their persistence over time. Identifying additional streams for habitat. The ‘‘2a’’ category includes The ‘‘2b’’ category includes streams recovery of the two species ultimately currently unoccupied stream reaches within units that are not currently allows for additional occupied units within units that are tributaries to other, occupied by the species but that are still over a broader geographic range, which occupied stream reaches. For example, within their historical range. The reduces the overall impacts of within Unit 1, we include West Clear difference between ‘‘2a’’ and ‘‘2b’’ catastrophic events. Creek as a 2a stream for spikedace. West streams is that there is no occupancy In summary, we have considered the Clear Creek is not currently occupied, within the entire unit for a ‘‘2b’’ stream. known occupancy of the area in but it is a tributary to the Verde River, For example, while there are historical determining which areas are either in which is currently occupied. Increasing records of spikedace from within the category 1 (occupied at listing) versus the amount of occupied habitat in units, Salt River Subbasin (Unit 2), this category 2 (not occupied at listing), as like the Verde River, already occupied subbasin is unoccupied by the species. well as the suitability and level of by the species is essential because it We have included Tonto Creek and adverse impacts to habitat within each expands the available habitat within a some of its tributaries as ‘‘2b’’ streams unit. We believe the areas designated as given unit that can be occupied by the within the designation. Inclusion of this critical habitat provide for the two species and provides for an area provides for expansion of the conservation of the spikedace and the increased population size within that overall geographic distribution of loach minnow because they include spikedace. Expanding the geographic stream system. Increased population habitat for all extant populations and distribution of both species is essential sizes are essential to conserving the two provide habitat for all known genetic for species that occur in only a fragment species as higher numbers of lineages. of their former range, as is the case for
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10840 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
We evaluated those stream segments determined that a relatively intact systems, recognizes that floodplains are retained through the above analysis, and riparian area, along with periodic an integral part of the stream ecosystem, refined the starting and end points by flooding in a relatively natural pattern, and contains the area and associated evaluating the presence or absence of is important for maintaining the PCEs features essential to the conservation of appropriate PCEs. We selected upstream necessary for long-term conservation of the species. Bankfull stage is not an and downstream cutoff points not to the spikedace and the loach minnow. ephemeral feature, meaning it does not include areas that are highly degraded The lateral extent (width) of riparian disappear. Bankfull stage can always be and are not likely restorable. For corridors fluctuates considerably determined and delineated for any example, permanently dewatered areas, between a stream’s headwaters and its stream we have designated as critical permanently developed areas, or areas mouth. The appropriate width for habitat. We acknowledge that the in which there was a change to riparian buffer strips has been the bankfull stage of any given stream may unsuitable parameters (e.g., a steep subject of several studies and varies change depending on the magnitude of gradient, bedrock substrate) were used depending on the specific function a flood event, but it is a definable and to mark the start or endpoint of a stream required for a particular buffer (Castelle standard measurement for stream segment within the designation. Critical et al. 1994, pp. 879–881). Most Federal systems. Unlike trees or cliff facings habitat stream segments were then and State agencies generally consider a used by terrestrial species, stream mapped using ArcMap (Environmental zone 23 to 46 m (75 to 150 ft) wide on systems provide habitat that is in Systems Research Institute, Inc.), a each side of a stream to be adequate constant change. Following high flow Geographic Information Systems (Natural Resource Conservation Service events, stream channels can move from program. 1998, pp. 2–3; Moring et al. 1993, p. one side of a canyon to the opposite 204; Lynch et al. 1985, p. 164), although With respect to length, the side, for example. If we were to buffer widths as wide as 152 m (500 ft) designations were designed to provide designate critical habitat based on the have been recommended for achieving sufficient riverine area for breeding, location of the stream on a specific date, flood attenuation benefits (U.S. Army nonbreeding, and dispersing adult the area within the designation could be Corps 1999, pp. 5–29). In most spikedace and loach minnow, as well as a dry channel in less than one year from instances, however, riparian buffer the publication of the determination, for the habitat needs for juvenile and zones are primarily intended to reduce should a high flow event occur. larval stages of these fishes. In addition, (i.e., buffer) detrimental impacts to the We determined the 91.4-m (300-ft) with respect to width, we evaluated the stream from sources outside the river lateral extent for several reasons. First, lateral extent necessary to support the channel, such as pollutants in adjacent the implementing regulations of the Act PCEs for spikedace and loach minnow. areas. Consequently, while a riparian require that critical habitat be defined The resulting designations take into corridor 23 to 46 m (75 to 150 ft) in by reference points and lines as found account the naturally dynamic nature of width may protect water quality and on standard topographic maps of the riverine systems and floodplains provide some level of riparian habitat area (50 CFR 424.12(c)). Although we (including riparian and adjacent upland protection, a wider area would provide considered using the 100-year areas) that are an integral part of the full protection of riparian habitat floodplain, as defined by the Federal stream ecosystem. For example, riparian because the stream itself can move Emergency Management Agency, we areas are seasonally flooded habitats within the floodplain in response to found that it was not included on (i.e., wetlands) that are major high flow events. A 91.4 m (300 ft) standard topographic maps, and the contributors to a variety of functions buffer would better protect water information was not readily available vital to fish within the associated stream temperatures, as well as reduce the from the Federal Emergency channel (Brinson et al. 1981, pp. 2–61, impacts of high flow events, thereby Management Agency or from the U.S. 2–69, 2–72, 2–75, 2–84 through 2–85; providing additional protection to Army Corps of Engineers for the areas Federal Interagency Stream Restoration critical habitat areas. we are designating. We suspect this is Working Group 1998). Riparian areas To address this issue, the lateral related to the remoteness of many of the filter runoff, absorb and gradually extent of streams included in these stream reaches where these species release floodwaters, recharge designations is 91.4 m (300 ft) to either occur. Therefore, we selected the 91.4- groundwater, maintain streamflow, side of bankfull stage. We believe this m (300-ft) lateral extent, rather than protect stream banks from erosion, and width is necessary to accommodate some other delineation, for four provide shade and cover for fish and stream meandering and high flows, and biological reasons: other aquatic species. Healthy riparian in order to ensure that these (1) The biological integrity and and adjacent upland areas help ensure designations contain the features natural dynamics of the river system are water courses maintain the habitat essential to the conservation of the maintained within this area (i.e., the important for aquatic species (e.g., see species. Bankfull stage is defined as the floodplain and its riparian vegetation USFS 1979, pp. 18, 109, 158, 264, 285, upper level of the range of channel- provide space for natural flooding 345; Middle Rio Grande Biological forming flows, which transport the bulk patterns and latitude for necessary Interagency Team 1993, pp. 64, 89, 94; of available sediment over time. natural channel adjustments to maintain Castelle et al. 1994, pp. 279–281), Bankfull stage is generally considered to appropriate channel morphology and including the spikedace and loach be that level of stream discharge reached geometry, store water for slow release to minnow. Habitat quality within the just before flows spill out onto the maintain base flows, provide protected mainstem river channels in the adjacent floodplain. The discharge that side channels and other protected areas, historical range of the spikedace and occurs at bankfull stage, in combination and allow the river to meander within loach minnow is intrinsically related to with the range of flows that occur over its main channel in response to large the character of the floodplain and the a length of time, govern the shape and flow events). associated tributaries, side channels, size of the river channel (Rosgen 1996, (2) Conservation of the adjacent and backwater habitats that contribute pp. 2–2 to 2–4; Leopold 1997, pp. 62– riparian area also helps to provide to the key habitat features (e.g., 63, 66). The use of bankfull stage and important nutrient recharge and substrate, water quality, and water 91.4 m (300 ft) on either side recognizes protection from sediment and quantity) in these reaches. We have the naturally dynamic nature of riverine pollutants.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10841
(3) Vegetated lateral zones are widely scale of the maps we prepared under the of the physical and biological features recognized as providing a variety of parameters for publication within the necessary to support spikedace and aquatic habitat functions and values Code of Federal Regulations may not loach minnow use of that habitat. (e.g., aquatic habitat for fish and other reflect the exclusion of such developed aquatic organisms, moderation of water lands. Any such lands inadvertently left Final Critical Habitat Designations temperature changes, and detritus for inside critical habitat boundaries shown We are designating eight units as aquatic food webs) and help improve or on the maps of this final rule have been critical habitat for spikedace and loach maintain local water quality (see U.S. excluded by text in the rule and are not minnow. Within this designation, we Army Corps of Engineers’ Final Notice designated as critical habitat. Therefore, refer to the eight units by subbasin of Issuance and Modification of a Federal action involving these lands Nationwide Permits, March 9, 2000, 65 will not trigger section 7 consultation name, as they are all subbasins to the FR 12818). with respect to critical habitat and the Colorado River Basin. The critical (4) A 91.4-m (300-ft) buffer requirement of no adverse modification habitat areas described below constitute contributes to the functioning of a river, unless the specific action would affect our best assessment at this time of areas thereby supporting the PCEs needed for the PCEs in the adjacent critical habitat. that meet the definition of critical suitable spikedace and loach minnow Eight units were designated as critical habitat. Those eight units are: (1) Verde habitat. habitat based on sufficient elements of River Subbasin, (2) Salt River Subbasin, When determining critical habitat physical and biological features being (3) San Pedro River Subbasin, (4) Bonita boundaries within this final rule, we present to support spikedace and loach Creek Subbasin, (5) Eagle Creek made every effort to avoid including minnow life processes. Some units Subbasin, (6) San Francisco River developed areas such as lands covered contained all of the identified elements Subbasin, (7) Blue River Subbasin, and by buildings, pavement, and other of physical and biological features and (8) Gila River Subbasin. Table 5 structures because such lands lack PCEs supported multiple life processes. Some (spikedace) and Table 6 (loach minnow) for spikedace and loach minnow. The segments contained only some elements show the occupied units.
TABLE 5—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY SPIKEDACE
Occupied at time of listing Unit or Currently Translocated documented occupied population after listing
Unit 1—Verde River Subbasin
Verde River ...... Yes ...... Yes ...... No. Granite Creek ...... No ...... No ...... No. Oak Creek ...... No ...... No ...... No. Beaver and Wet Beaver Creek ...... No ...... No ...... No. West Clear Creek ...... No ...... No ...... No. Fossil Creek ...... No ...... Uncertain ...... Yes.
Unit 2—Salt River Subbasin
Salt River Mainstem ...... No ...... No ...... No. Tonto Creek ...... No ...... No ...... No. Greenback Creek ...... No ...... No ...... No. Rye Creek ...... No ...... No ...... No. Spring Creek ...... No ...... No ...... No. Rock Creek ...... No ...... No ...... No.
Unit 3—San Pedro River Subbasin
San Pedro River ...... No ...... No ...... No. Hot Springs Canyon ...... No ...... Yes ...... Yes. Bass Canyon ...... No ...... No ...... No. Redfield Canyon ...... No ...... Uncertain ...... Yes. Aravaipa Creek ...... Yes ...... Yes ...... No. Deer Creek ...... No ...... No ...... No. Turkey Creek ...... No ...... No ...... No.
Unit 4—Bonita Creek Subbasin
Bonita Creek ...... No ...... Uncertain ...... Yes.
Unit 5—Eagle Creek Subbasin
Eagle Creek ...... Yes ...... Yes ...... No.
Unit 6—San Francisco River Subbasin
San Francisco River ...... No ...... Uncertain ...... Yes.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10842 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
TABLE 5—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY SPIKEDACE—Continued
Occupied at time of listing Unit or Currently Translocated documented occupied population after listing
Unit 7—Blue River Subbasin
Blue River ...... No ...... No ...... No. Campbell Blue Creek ...... No ...... No ...... No. Little Blue Creek ...... No ...... No ...... No. Pace Creek ...... No ...... No ...... No. Frieborn Creek ...... No ...... No ...... No. Dry Blue Creek ...... No ...... No ...... No.
Unit 8—Gila River Subbasin
Gila River ...... Yes ...... Yes ...... No. West Fork Gila River ...... Yes ...... Yes ...... No. Middle Fork Gila River ...... Yes ...... Yes ...... No. East Fork Gila River ...... Yes ...... Yes ...... No. Mangas Creek ...... Yes * ...... No ...... No. * Spikedace documented after 1986 listing, including: Mangas Creek, first occupied in 1999.
TABLE 6—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY LOACH MINNOW
Occupied at Currently Translocated Stream segment time of listing occupied population
Unit 1—Verde River Subbasin
Verde River ...... No ...... No ...... No. Granite Creek ...... No ...... No ...... No. Oak Creek ...... No ...... No ...... No. Beaver and Wet Beaver Creek ...... No ...... No ...... No. Fossil Creek ...... No ...... Uncertain ...... Yes.
Unit 2—Salt River Subbasin
White River Mainstem ...... Yes ...... Yes ...... No. East Fork White River ...... Yes ...... Yes ...... No. East Fork Black River ...... No ...... No ...... No. North Fork East Fork Black River ...... Yes* ...... Yes ...... No. Boneyard Creek ...... Yes* ...... No ...... No. Coyote Creek ...... No ...... Yes ...... No.
Unit 3—San Pedro River Subbasin
San Pedro River ...... No ...... No ...... No. Hot Springs Canyon ...... No ...... Yes ...... Yes. Bass Canyon ...... No ...... No ...... No. Redfield Canyon ...... No ...... Uncertain ...... Yes. Aravaipa Creek ...... Yes ...... Yes ...... No. Deer Creek ...... Yes* ...... Yes ...... No. Turkey Creek ...... Yes* ...... Yes ...... No.
Unit 4—Bonita Creek Subbasin
Bonita Creek ...... No ...... Uncertain ...... Yes.
Unit 5—Eagle Creek Subbasin
Eagle Creek ...... Yes* ...... Yes ...... No.
Unit 6—San Francisco River Subbasin
San Francisco River ...... Yes ...... Yes ...... No. Tularosa River ...... Yes ...... Yes ...... No. Negrito River ...... Yes* ...... Yes ...... No. Whitewater Creek ...... Yes ...... No ...... No.
Unit 7—Blue River Subbasin
Blue River ...... Yes ...... Yes ...... No. Campbell Blue Creek ...... Yes* ...... Yes ...... No.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10843
TABLE 6—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY LOACH MINNOW—Continued
Occupied at Currently Translocated Stream segment time of listing occupied population
Little Blue Creek ...... Yes* ...... No ...... No. Pace Creek ...... Yes* ...... Yes ...... No. Frieborn Creek ...... Yes* ...... Yes ...... No. Dry Blue Creek ...... Yes* ...... Yes ...... No.
Unit 8—Gila River Subbasin
Gila River ...... Yes ...... Yes ...... No. West Fork Gila River ...... Yes ...... Yes ...... No. Middle Fork Gila River ...... Yes ...... Yes ...... No. East Fork Gila River ...... Yes ...... Yes ...... No. Mangas Creek ...... Yes* ...... Yes ...... No. Bear Creek ...... Yes* ...... Yes ...... No. * Loach minnow documented after 1986 listing, including: North Fork East Fork Black River in 1996; Boneyard Creek in 1996; Deer Creek in 1996; Turkey Creek in 1996; Eagle Creek in 1994; Negrito Creek in 1998; Campbell Blue Creek in 1987; Little Blue Creek in 1994; Dry Blue Creek in 1998; Frieborn Creek in 1998; Pace Creek in 1998; Mangas Creek in 1999; and Bear Creek in 2005.
The approximate area of each critical habitat unit is shown in Table 7.
TABLE 7—LENGTH OF DESIGNATED CRITICAL HABITAT UNITS FOR SPIKEDACE AND LOACH MINNOW [Length estimates reflect all land within critical habitat unit boundaries]
Federal State Local or tribal* Private Total Unit Km Mi Km Mi Km Mi Km Mi Km Mi
1 ...... 155 96 4 2 3 2 133 82 295 182 2 ...... 117 72 0 0 0 0 14 9 131 81 3 ...... 37 23 4 2 2 2 31 19 74 46 4 ...... 16 10 0 0 0 0 8 5 24 15 5 ...... 19 12 0 0 0 0 8 5 27 17 6 ...... 155 96 3 2 0 0 70 44 228 142 7 ...... 93 58 0 0 0 0 15 9 108 67 8 ...... 161 100 10 6 0 0 88 55 259 161
Total ...... 753 467 21 12 5 4 367 228 1146 711 Note: Area sizes may not sum due to rounding. Total figures vary from those in the text description. The additional stream miles fall within dif- ferent landowner categories, which were not summarized here.
We present brief descriptions of all The Verde River and its tributaries within this unit meet criteria for 2a units, and reasons why they meet the included within these designations are streams as defined in the ruleset for definition of critical habitat for in Yavapai and Gila Counties, Arizona. spikedace, indicating that they were not spikedace and loach minnow or both, From Sullivan Lake, near its occupied at listing and would serve as below. Table 8 at the end of this section headwaters, the Verde River flows for an extension of habitat in the unit. For summarizes the criteria from the ruleset 201 km (125 mi) downstream to loach minnow, the Verde River and its (above) under which units were Horseshoe Reservoir. This reach of the tributaries meet the criteria for 2b included. Verde River is unique in comparison to streams under the ruleset, indicating other desert streams such as the Salt or Unit 1: Verde River Subbasin that they were not occupied at listing, Gila Rivers in that it is free-flowing and but would expand the geographic Within the Verde River Subbasin, we perennial (Sullivan and Richardson distribution of the species. We are designating 294.5 km (183.0 mi) 1993, pp. 19–21; The Nature determined that those areas classified as from Sullivan Lake downstream on the Conservancy 2010). Verde River and its tributaries Granite Verde River Mainstem. The Verde 2a or 2b are essential to the conservation Creek, Oak Creek, Beaver and Wet River was considered occupied at listing of both species because they contain Beaver Creek, West Clear Creek, and for spikedace, but not for loach minnow. suitable habitat, and securing both Fossil Creek for spikedace. For loach None of the tributaries within this unit species in this watershed will contribute minnow, we are designating 231.5 km were occupied at listing for either significantly to their recovery by (143.9 mi) from Sullivan Lake species. For spikedace, the Verde River protecting occupied habitat for downstream on the Verde River and its meets criteria for a 1a stream as defined spikedace, extending protection to tributaries Granite Creek, Oak Creek, in the ruleset, indicating that it was tributary streams which will serve as Beaver and Wet Beaver Creek, and occupied at listing and has the features extensions of occupied habitat, and by Fossil Creek. All of the area in the essential to support life-history protecting habitat for loach minnow designation for loach minnow falls functions essential for the conservation which will allow for them to expand within the designation for spikedace. of the species. All of the tributaries their current distribution. Additional
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10844 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
details on areas designated under Unit Clear Creek is on private and Coconino emphasis in this area is on management 1 are provided below. National Forest lands. West Clear Creek of riparian habitat and maintenance of Spikedace Only. For spikedace, we was not considered occupied at listing; native fish diversity. The AGFD parcel are designating as critical habitat 170.5 however, one record exists for spikedace includes approximately 1.6 km (1.0 mi) km (106.0 mi) of the Verde River from from West Clear Creek (from 1937; ASU of Granite Creek; the remaining Sullivan Lake downstream to the 2002). West Clear Creek does have landownership is private. confluence with Fossil Creek. The Verde suitable habitat for spikedace, and is Both Species. There are no known River mainstem was considered under consideration as a translocation records of spikedace or loach minnow occupied at the time of listing (ASU site for spikedace by a multi-agency from Granite Creek. However, because 2002, 51 FR 23679). While current team. We consider this tributary of its suitability, confluence with occupancy remains uncertain, the Verde essential for the conservation of the occupied portions of the Verde River, River is essential to the conservation of species based on the presence of and the opportunities it provides for the species. It currently contains suitable habitat, its past records of extension of occupied habitat for suitable habitat for all life stages of occupancy, and its consideration for spikedace and recovery habitat for loach spikedace (PCE 1); has an appropriate translocation of spikedace, which minnow, this designated portion of food base (PCE 2); consists of perennial indicates the area will serve as an Granite Creek is essential to the streams with no or low levels of important extension of the area conservation of both species. Granite pollutants (PCEs 3 and 4); and has an occupied by spikedace in the Verde Creek is a perennial tributary of the appropriate hydrologic regime to River watershed. Verde River, and its confluence with the maintain suitable habitat characteristics Loach Minnow Only. We are Verde River occurs in that portion of the (PCE 6). The Verde River is the only designating as critical habitat 118.5 km river with the highest species density occupied stream system in this (73.6 mi) of the Verde River from for spikedace. Granite Creek meets geographic portion of the species’ Sullivan Lake downstream to the criteria for a 2a stream for spikedace, historical range, and represents one of confluence with Wet Beaver Creek. The serving as an extension of occupied four units in this designation in which Verde River was not considered spikedace habitat in the Verde River. spikedace are most likely to be found. occupied by loach minnow at listing; For loach minnow, Granite Creek meets Protection of the species in this portion however, there are later records of loach criteria for a 2b stream, expanding the of the historical range will contribute to minnow from the Verde River mainstem current distribution of the species the long-term conservation of the near its confluence with Granite Creek, within its historically occupied range. species. As noted above, spikedace are at the mouth of Beaver Creek, and in We are designating as critical habitat currently restricted to 10 percent of portions of the Verde River near Beaver 54.3 km (33.7 mi) of Oak Creek from the their historical range, so that every Creek (ASU 2002). Subsequent surveys confluence with the Verde River remaining population is important to have failed to detect loach minnow in upstream to the confluence with an their recovery. Critical habitat the Verde River or its tributaries. unnamed tributary near the Yavapai and designation will ensure protection of the However, the Verde River is located in Coconino County boundary. The lower habitat in this occupied unit which in the far northwestern portion of the portions of the creek contain suitable, turn will contribute to conserving the species’ range, and is the only river although degraded, habitat. Above the species in this area. Finally, spikedace system in that geographic portion of the unnamed tributary, the creek becomes in the Verde River are genetically species’ range. Therefore, because the unsuitable due to urban and suburban (Tibbets 1993, pp. 25–27, 34) and Verde River contains suitable habitat development, increasing gradient, and morphologically (Anderson and and will allow for the species’ range to substrate size. Oak Creek occurs on a Hendrickson 1994, pp. 148, 154) be expanded; we conclude that the mix of private and Coconino National distinct from all other spikedace Verde River is essential to the Forest lands. populations. conservation of the loach minnow. Oak Creek was not considered The essential features in this unit may Within the Verde River Subbasin, occupied at listing for spikedace or require special management approximately 1.2 km (0.8 mi) of the loach minnow; however, we consider it considerations and protections due to Verde River and 0.2 km (0.1 mi) of to be essential for the conservation of water diversions; existing and proposed Beaver Creek/Wet Beaver Creek occur both species. It contains suitable habitat groundwater pumping potentially on lands owned by the Yavapai-Apache for both species. A multi-agency team is resulting in drying of habitat; residual Nation. These areas have been excluded currently evaluating Oak Creek as a effects of past livestock grazing and from the final critical habitat translocation site for spikedace and impacts to uplands riparian vegetation designations under section 4(b)(2) of the loach minnow. As noted below in the and the stream channel; human Act (see ‘‘Application of Section 4(b)(2) Fossil Creek discussion, areas suitable development of surrounding areas; of the Act’’ section below for additional for such actions are rare in the desert increased recreation including off-road information). southwest. As a perennial tributary of vehicle use; abnormally dry drought the Verde River, Oak Creek contains the conditions (University of Nebraska- Verde River Tributaries—Spikedace and physical features that provide an Lincoln 2011, p. 1); and competition Loach Minnow important extension area for spikedace with or predation by nonnative aquatic For both spikedace and loach and would help to expand the current species. minnow, the designation of critical distribution of loach minnow within its We are designating as critical habitat habitat for each species includes 3.2 km historical range. for spikedace 10.9 km (6.8 mi) of West (2.0 mi) of Granite Creek from the We are designating as critical habitat Clear Creek from the confluence with confluence with the Verde River 33.3 km (20.7 mi) of Beaver and Wet the Verde River upstream to the upstream to an unnamed spring. Above Beaver Creek from the confluence with confluence with Black Mountain the unnamed spring, flows are the Verde River upstream to the Canyon. Gradient and channel insufficient to maintain these species. confluence with Casner Canyon. Beaver morphology changes above Black Granite Creek occurs predominantly on and Wet Beaver Creek occur on a mix Mountain Canyon make the upstream lands managed by the AGFD in their of private, National Park, and Coconino area unsuitable for spikedace. West Upper Verde Wildlife Area. The primary National Forest lands. Neither Beaver
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10845
nor Wet Beaver Creek were considered stream. The translocation of spikedace (White River, East Fork White River) or occupied at listing by either spikedace and loach minnow into Fossil Creek is determined to be occupied after listing or loach minnow. Beaver Creek and its part of a larger conservation planning (North Fork East Fork Black River, upstream extension in Wet Beaver Creek effort to restore a native fishery to the Boneyard Creek). Therefore, the East historically supported spikedace (ASU creek. Fork Black River and Coyote Creek meet 2002; AGFD 2004) and contains criteria for 2a streams under the ruleset, Unit 2: Salt River Subbasin suitable, although degraded, habitat. indicating they would serve as an There is one record for loach minnow We are not designating any portion of extension to occupied habitat on the from Beaver Creek but none from Wet the mainstem Salt River as critical North Fork East Fork Black River, while Beaver Creek. There is an additional habitat for spikedace or loach minnow White River, East Fork White River, record for loach minnow on the at this time. Those portions below North Fork East Fork Black River, and mainstem Verde River approximately Theodore Roosevelt Reservoir have been Boneyard Creek meet criteria for 1a 7.2 km (4.5 mi) above the confluence altered by numerous dams and streams under the ruleset. The unit with Beaver and Wet Beaver Creek (ASU reservoirs, permanently limiting the descriptions and their rationale for 2002; AGFD 2004). natural flow regime and resulting in inclusion are described below. Beaver and Wet Beaver creeks are regulated flows. Those portions of the Spikedace Only. The Salt River essential to the conservation of both Salt River above the Reservoir support Subbasin is a significant portion of species, and meet criteria 2a under the three historical records of spikedace spikedace historical range but currently ruleset for spikedace as a stream that near the confluence with Cibecue Creek has no known extant populations of would extend occupied habitat. They (from 1950; ASU 2002). However, the spikedace. None of the streams within meet the criteria for a 2b stream under majority of the Salt River, as well as the the Salt River Subbasin were known to the ruleset for loach minnow, expanding lower portions of Cibecue Creek, are be occupied at listing and therefore the species range. As noted under canyon bound. While spikedace may meet the criteria for 2b streams under Granite and Oak creeks, habitat within occur in or travel through canyon areas, the ruleset and are considered essential this portion of the species’ ranges is long stretches of canyon-bound rivers to the conservation of the species. Large limited to the Verde River Unit, and typically do not support the wider, areas of the subbasin are unsuitable, including the Verde and a few of its shallower streams in which spikedace either because of topography or because perennial tributaries like Beaver and occur. Canyons are typically associated of reservoirs and other stream-channel Wet Beaver Creeks expands the overall with a bedrock substrate, rather than the alterations. However, the presence of unit size, adding to available habitat, as sand, gravel, or cobble over which substantial areas of USFS lands, and well as expanding recovery potential for spikedace are typically found. Due to its suitable habitat in some stream both species in this portion of their limited available habitat, limited habitat segments makes this a promising historical ranges. suitability, and permanent alteration for subbasin for the reestablishment of We are including within these reservoirs, we have concluded that the spikedace, and conservation efforts are designations 22.2 km (13.8 mi) of Fossil PCEs for spikedace are not present at under way (see Spring Creek below). All Creek extending from the confluence this time in the Salt River, in part due stream segments designated for with the Verde River upstream to the to permanent habitat alteration. spikedace in the Salt River Subbasin are confluence with an unnamed tributary. While we are not designating any in Gila County, Arizona. Fossil Creek was not known to be habitat on the mainstem Salt River, we While it was not considered occupied occupied by spikedace or loach minnow are designating critical habitat for both at listing, there are limited records for at listing. Historically, sufficient flows spikedace and loach minnow on other spikedace from Tonto Creek (from 1937 were lacking in this creek but, in 2005, streams within the Salt River Subbasin. only; ASU 2002). We are including following decommissioning of the Within the Salt River Subbasin, there is within the designation 47.8 km (29.7 Childs-Irving Hydroelectric Power no overlap between the areas we are mi) of Tonto Creek from the confluence Plant, formerly diverted flows were designating for spikedace and loach with Greenback Creek upstream to the returned to Fossil Creek (Robinson minnow. For spikedace, the designation confluence with Houston Creek. Tonto 2009b, p. 3). Spikedace and loach includes a total of 98.6 km (61.3 mi) of Creek below Greenback Creek is minnow were translocated into this Tonto Creek and its tributaries Rye, influenced by Theodore Roosevelt stream in 2007 (Carter 2007a, p. 1), and Greenback, and Spring Creeks, as well Reservoir, resulting in unsuitable additional fish were added in 2008 as Rock Creek, which is a tributary to habitat below Greenback Creek. Those (Carter 2008a, pp. 1–2) and 2010 Spring Creek. None of these streams portions of Tonto Creek above the (Crowder, 2010, pers. comm.). Fossil were known to be occupied by confluence with Houston Creek are of a Creek occurs primarily on Federal spikedace at listing, and therefore are gradient and substrate that are not lands, forming the boundary between classified as 2b streams under the suitable to spikedace. Tonto Creek is the Coconino and Tonto National ruleset, meaning that their occupancy within the historical range of spikedace, Forests. by spikedace would allow for an and occupancy of the creek would serve We consider this area to be essential increased distribution of the species to increase the distribution of the to the conservation of the species. With within its historical range. species, as well as add to available, the severe reductions in the species’ For loach minnow, we are designating suitable habitat. We therefore consider overall distribution, and a translocation a total of 32.0 km (19.9 mi) of the East the designated streams in this subbasin effort under way, Fossil Creek is Fork Black River, its tributaries Coyote to be essential to the conservation of the essential to the recovery of spikedace Creek and North Fork East Fork Black species. and loach minnow because, if River, and Boneyard Creek, a tributary We are designating 15.1 km (9.4 mi) successful, the translocation effort will to the North Fork East Fork Black. While of Greenback Creek beginning at the extend the distribution of spikedace in East Fork Black River and Coyote Creek confluence with Tonto Creek and the Verde River watershed, meeting were not considered occupied at listing, continuing upstream to the confluence criteria for a 2a stream, and expand the the remainder of the streams included with Lime Springs. Portions of distribution of loach minnow within its in the Salt River Subbasin for loach Greenback Creek are intermittent, but historical range, meeting criteria for a 2b minnow were either occupied at listing may connect Greenback Creek to Tonto
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10846 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
Creek during seasonal flows. While intermittent flows before entering the Fork East Fork Black River and there are no known records of spikedace Lake Pleasant reservoir created by Boneyard Creek. from Greenback Creek, the Salt River Pleasant Dam. Suitable habitat on the The presence of multiple PCEs, its Subbasin is a significant portion of Agua Fria River is therefore minimal, occupied status, and the presence of a spikedace historical range, and there are with perennial stretches mixed with distinct genetic population makes the limited areas of suitable habitat. The predominantly intermittent stretches, North Fork East Fork Black River and suitable habitat in Greenback Creek, its and isolated from any mainstem system Boneyard Creek essential to the connection with Tonto Creek, and the by a large reservoir. For these reasons, conservation of loach minnow. We are fact that it occurs almost entirely on we have concluded that the Agua Fria including within the designation 7.1 km Federal lands makes this area an River is not essential to the conservation (4.4 mi) of the North Fork East Fork important expansion area for spikedace of spikedace at this time. Black River extending from the recovery, and we therefore consider it Loach Minnow Only. Areas included confluence with East Fork Black River essential to the conservation of for loach minnow within the Salt River upstream to the confluence with an spikedace. Subbasin include portions of the East unnamed tributary, and 2.3 km (1.4 mi) We are including within the Fork Black River, North Fork East Fork of Boneyard Creek extending from the designation 2.8 km (1.8 mi) of Rye Creek Black River, and Coyote and Boneyard confluence with the North Fork East from the confluence with Tonto Creek creeks. The East Fork Black River, North Fork Black River upstream to the upstream to the confluence with Brady Fork East Fork Black River, Coyote, and confluence with an unnamed tributary. Canyon. There are no known records of Boneyard creeks are in Apache and Above this tributary, the river has finer spikedace from Rye Creek. The entire Greenlee counties. All of these streams substrate and lacks riffle habitat, making portion of the designation is perennial. are perennial (The Nature Conservancy it unsuitable for loach minnow. The As with Greenback Creek, Rye Creek 2010). North Fork East Fork Black River is serves as connected perennial stream The Salt River Subbasin encompasses currently occupied (ASU 2002; Gurtin, habitat that expands the available a significant portion of loach minnow 2004, pers. comm.; Robinson et al. suitable habitat associated with Tonto historical range, and the Salt River 2009b, p. 1), and is presumed to have Creek and the Salt River Subbasin; mainstem was known at listing to have been occupied at listing. Boneyard therefore, we believe it is essential to historical records near the U.S. 60 (from Creek is also occupied, and is connected the conservation of the species. 1950; ASU 2002). The Black and White to the North Fork East Fork Black River, We are including within the rivers join to form the Salt River. The which is occupied (ASU 2002; Gurtin, designation 27.2 km (16.9 mi) of Spring North Fork East Fork Black River, and 2004, pers. comm.; Robinson et al. Creek from the confluence with Tonto Boneyard Creek were newly discovered 2009b, p. 1), and contains suitable Creek upstream to its confluence with as occupied after listing, and meet the habitat for loach minnow. North Fork Sevenmile Canyon. Portions of Spring criteria for 1a streams. We have no East Fork Black River contains suitable Creek are perennial, while the lower records of loach minnow from East Fork habitat for all life stages of loach portions are intermittent. The perennial Black River or Coyote Creek, and have minnow (PCE 1); has an appropriate portions of Spring Creek provide designated these areas as 2a streams. food base (PCE 2); consists of perennial suitable habitat, and likely connect to Within the Salt River Subbasin, we streams with no or low levels of Tonto Creek during seasonal flows, are designating a total of 32.0 km (20 pollutants (PCEs 3 and 4); and has an thereby expanding the available suitable mi) of the East Fork Black River and its appropriate hydrologic regime to habitat for spikedace. In addition, for tributary Coyote Creek, and the North maintain suitable habitat characteristics both Spring and Rock (see below) Fork East Fork Black River and its (PCE 6). creeks, conservation efforts for tributary Boneyard Creek. The presence The portions of the North Fork East spikedace are under way. The feasibility of suitable habitat, and the presence of Fork Black River and Boneyard Creek of constructing a barrier and a distinct genetic population in the included within this designation are translocating spikedace to Spring Creek, adjoining North Fork East Fork River, entirely on Apache-Sitgreaves National a tributary to Tonto Creek, has been makes these streams important Forests lands. Essential features may initiated with draft NEPA documents expansion areas for loach minnow, and require special management or under development. they are therefore essential to the protection from the residual effects of Finally, we are including within the conservation of the species. We are past livestock grazing and impacts to designation 5.7 km (3.6 mi) of Rock including within this designation 19.1 uplands, riparian vegetation, and the Creek from its confluence with Spring km (11.9 mi) of the East Fork Black stream; and competition with and Creek upstream to its confluence with River extending from the confluence predation by nonnative aquatic species. Buzzard Roost Canyon. There are no with the West Fork Black River Native trout species are regularly known records of spikedace from Rock upstream to the confluence with an stocked into the Black River, possibly Creek; however, Rock Creek will further unnamed tributary just downstream of resulting in increased competition for expand the available habitat in the Salt Boneyard Creek and 3.4 km (2.1 mi) of resources and predation by trout. The River Subbasin. The suitable habitat, Coyote Creek, extending from the Wallow Fire burned through this stream perennial flows, and location within the confluence with East Fork Black River complex in 2011, and there may be Salt River Subbasin make Rock Creek upstream to the confluence with an temporary increases in sediment carried essential to the conservation of the unnamed tributary. This area is into the stream from burned areas in the spikedace. connected to the North Fork East Fork uplands. Within the Salt River Subbasin, a Black River, which is occupied by loach White River and its tributary East single record exists for spikedace on the minnow (Lopez, 2000, pers. comm.; Fork White River were considered Agua Fria River, which is located on the ASU 2002; Gurtin, 2004, pers. comm., occupied at listing, and meet criteria for extreme western edge of the species’ Robinson et al. 2009b, p. 1). East Fork 1a streams under the ruleset. We range in Yavapai and Maricopa Black River and Coyote Creek contain included within the designation 29.0 Counties, Arizona. The Agua Fria River suitable habitat for loach minnow, and km (18.0 mi) of the White River from the supports stretches of perennial flows will allow for expansion of the existing confluence with the Black River interspersed with sections of population of loach minnow in North upstream to the confluence with the
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10847
North and East Forks of the White River, either species. Both Hot Springs and this unit may require special as well as approximately 17.2 km (10.7 Redfield canyons currently support management considerations or mi) of the East Fork White River from translocated populations of spikedace protection due to contaminants issues the confluence with North Fork White and loach minnow that were placed into with lead, arsenic, and cadmium; River upstream to the confluence with the streams in 2007 (Robinson 2008a, surface and groundwater removal; Bones Canyon. These areas have been pp. 1, 15–16). They, along with Bass limited recreation; severe drought excluded from the final critical habitat Canyon, meet criteria for 2a streams for (University of Nebraska-Lincoln 2011, p. designations under section 4(b)(2) of the both species. 1); and channelization in upstream Act (see ‘‘Application of Section 4(b)(2) We proposed as critical habitat 60.0 portions (Stefferud and Reinthal 2005, of the Act’’ section below for additional km (37.2 mi) on the upper San Pedro pp. 36–38). information). River from the international border with We are including within these In previous critical habitat Mexico downstream to the confluence designations 3.7 km (2.3 mi) of Deer designations, we have included portions with the Babocomari River. However, Creek from the confluence with of Tonto Creek, Rye Creek, and due to concerns for national security, Aravaipa Creek upstream to the Greenback Creek as critical habitat for the San Pedro River in its entirety has boundary of the Aravaipa Wilderness. loach minnow. These areas have no been excluded from the final critical Above this point, habitat is no longer historical records for loach minnow. habitat designations under section suitable for spikedace or loach minnow. Because there are other suitable areas 4(b)(2) of the Act (see ‘‘Application of We are also including 4.3 km (2.7 mi) for loach minnow within this portion of Section 4(b)(2) of the Act’’ section below of Turkey Creek from the confluence the species’ range, we believe the for additional information). In addition, with Aravaipa Creek upstream to the limited mileage and habitat features in in response to comments received, we confluence with Oak Grove Canyon. Tonto Creek and its tributaries are less have reduced the overall mileage Above this point, flows are not suitable important to the overall conservation of included for Hot Springs and Redfield for spikedace or loach minnow. loach minnow, and our current canyons. Please see the ‘‘Summary of Both Deer and Turkey creeks are assessment is that they are therefore not Changes from Proposed Rule’’ for more considered occupied by loach minnow essential to the conservation of the detail. with the species first detected in 1996, species. With the removal of the San Pedro and both creeks are currently occupied and decreased mileage on Hot Springs by loach minnow. Each of these Unit 3: San Pedro Subbasin and Redfield Canyon, we are including tributary streams contains suitable Within the San Pedro Subbasin, we within these designations a total of 74.1 habitat for all life stages of loach are designating 74.1 km (46.1 mi) of km (46.1 mi) for spikedace and loach minnow (PCE 1); have appropriate food habitat on Aravaipa Creek and its minnow. This area includes 44.9 km bases (PCE 2); consist of perennial tributaries Deer and Turkey creeks, (27.9 mi) of Aravaipa Creek from the streams with no or low levels of Redfield Canyon, and Hot Springs confluence with the San Pedro River pollutants (PCEs 3 and 4); and have an canyons and its tributary Bass Canyon. upstream to the confluence with Stowe appropriate hydrologic regime to All areas within this subbasin were Gulch. Stowe Gulch is the upstream maintain suitable habitat characteristics proposed for both species. Aravaipa limit of sufficient perennial flows to (PCE 6). Both Deer and Turkey creeks Creek, Redfield and Hot Spring canyons support spikedace and loach minnow, occur on lands managed by the BLM. and their tributaries included within and no records of either species are The essential features in these two these designations are in Cochise, Pinal, known from above this point. Aravaipa streams may require special and Graham counties, Arizona. The Creek currently supports one of the management due to surface and ground majority of Redfield Canyon, Hot largest remaining populations of water removal; limited recreation; Springs Canyon, and Aravaipa Creek are spikedace and loach minnow, and has severe drought (University of Nebraska- perennial, with small downstream areas been monitored regularly since 1943 Lincoln 2011, p. 1); occasional issues considered formerly perennial (The (ASU 2002; Stefferud and Reinthal with nonnative aquatic species; and Nature Conservancy 2010) but still 2005, pp. 15–21; AGFD 2004; Reinthal proposed utilities projects, such as the connected during high flow events. 2011, pp. 1–2). SunZia Southwest Transmission Project, Streams included within this subbasin The long-term presence and current which is currently in the study phase occur primarily on BLM, State, and occupancy by both species, makes this (Service 2010b, pp. 1–7). In addition, private lands. area essential to their conservation. Turkey Creek experiences low flows The San Pedro Subbasin contains Aravaipa Creek is unique in that it through part of most years, limiting streams that are known to have been supports an intact native fish fauna occupancy by loach minnow during occupied by both species at listing, comprising seven species (Stefferud and those times. Occupancy by loach some of which are currently occupied, Reinthal 2005, p. 11). It contains minnow, as well as the presence of and some with translocated populations suitable habitat for all life stages of perennial water and other key features of spikedace and loach minnow. spikedace and loach minnow (PCE 1); indicate that Deer and Turkey creeks are Aravaipa Creek was occupied by both has an appropriate food base (PCE 2); likely suitable for spikedace as well. species at listing, and is classified as a consists of perennial flows (PCE 3); has Because they are tributaries to Aravaipa 1a stream for both species. Deer and no nonnative aquatic species, or levels Creek, they meet criteria for a 2a stream Turkey creeks are considered occupied of nonnative aquatic species are for spikedace. We have therefore by loach minnow due to the species sufficiently low to allow for persistence determined they are essential to the being newly detected after listing in of both species (PCE 5); and has an conservation of spikedace. 1996 (ASU 2002), but were not appropriate hydrologic regime to We have included within these considered occupied at listing by maintain suitable habitat characteristics designations 9.3 km (5.8 mi) of stream spikedace and therefore meet criteria for (PCE 6). in Hot Springs Canyon from the 1a streams for loach minnow, and for 2a Land ownership at Aravaipa Creek is confluence with the San Pedro River streams for spikedace. Hot Springs, predominantly BLM, with large parcels upstream to the confluence with Bass Redfield, and Bass canyons were not of private and State land on either end Canyon. (The stream in Hot Springs known to be occupied at listing by of the river. The essential features in Canyon is not named and is known only
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10848 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
as Hot Springs Canyon.) Hot Springs were translocated to the site (Robinson pupfish into Bonita Creek. Spikedace Canyon occurs on a mix of State, et al. 2010b, pp. 20–22), and contains and loach minnow were translocated private, and BLM lands. There are no suitable habitat for both spikedace and into the lower portions of Bonita Creek known records of spikedace or loach loach minnow. The most recent surveys in 2008 (Robinson, 2008c, pers. comm.). minnow from Hot Springs Canyon, but of Redfield Canyon (Robinson et al. In 2009, an additional small population it is within the geographical range 2010b) did not detect spikedace; of spikedace was placed above the City known to be occupied by both species, however, the reintroduction project is of Safford’s infiltration gallery, but and meets criteria as a 2a stream for not yet complete. The current below the southern boundary of the San both species. occupancy by loach minnow and the Carlos Indian Reservation. However, Following coordination by a multi- presence of suitable habitat, which due to a reinvasion by nonnative agency team, spikedace and loach extends the available habitat in this species, augmentations of spikedace and minnow were translocated into Hot unit, make this area essential to the loach minnow are temporarily on hold Springs Canyon in 2007, with conservation of both species. at Bonita Creek. augmentations in 2008, 2009, 2010, and We are including within these As noted above for Fossil Creek, Hot 2011 (Robinson 2008a, pp. 1, 15–16; designations 5.5 km (3.4 mi) of stream Springs Canyon, and Redfield Canyon, Robinson et al. 2010a, pp. 4–5; in Bass Canyon from the confluence there are limited opportunities for Robinson et al. 2010b, pp. 5–6, 20–22; with Hot Springs Canyon upstream to translocating or reintroducing Robinson and Crowder 2011, In Draft, p. the confluence with Pine Canyon. (The populations of spikedace and loach 9). Spikedace and loach minnow have stream in Bass Canyon is not named and minnow, and the current reduction in been captured each year since the is known only as Bass Canyon). Bass the species’ distribution necessitates project began (Robinson et al. 2010b, p. Canyon occurs on private and BLM that additional populations be 7) indicating that conditions in the lands. There are no known records of established to recover the species. stream allow the species to persist year spikedace or loach minnow from Bass Bonita Creek is considered essential to to year; however, insufficient time has Canyon, but it is within the the survival and recovery of spikedace elapsed to allow for evaluation of the geographical range known to be and loach minnow because it contains ultimate success of the translocation occupied by both species. In addition, suitable habitat for all life stages of both effort. spikedace and loach minnow have been species, occurs within the historical Hot Springs Canyon contains suitable translocated into Hot Springs Canyon, to range of both species, and allows for the habitat for both spikedace and loach which Bass Canyon is connected and is expansion of the geographic distribution minnow, is currently occupied by a a tributary stream (see discussion above of the species’ ranges. translocated population, and serves as under Hot Springs Canyon). Bass Unit 5: Eagle Creek Subbasin an extension of habitat in this subbasin. Canyon contains suitable habitat for We have therefore determined this area spikedace and loach minnow, has been We are including within these essential to the conservation of the two identified as a potential stream for designations 26.5 km (16.5 mi) of Eagle species. restoration activities, and meets criteria Creek from the Freeport-McMoRan We are including within this for a 2a stream under the ruleset. Bass (FMC) diversion dam upstream to the designation 6.5 km (4.0 mi) of stream in Canyon serves as an extension to Hot confluence with East Eagle Creek in Redfield Canyon from the confluence Springs Canyon fish populations. We Greenlee and Graham Counties, with the San Pedro River upstream to therefore consider it to be essential to Arizona. Eagle Creek is a largely the confluence with Sycamore Canyon. the conservation of both species. perennial system (The Nature (The stream in Redfield Canyon is not Conservancy 2010). Eagle Creek occurs named and is known only as Redfield Unit 4: Bonita Creek Subbasin primarily on San Carlos Apache Tribal Canyon.) Above Sycamore Canyon, Within the Bonita Creek Subbasin, we and Apache-Sitgreaves National Forests’ perennial water becomes very scarce, are including 23.8 km (14.8 mi) of lands, along with small parcels of State, and the habitat becomes steeper, and Bonita Creek from the confluence with private, and BLM lands. Spikedace and more canyon-confined, thus making it the Gila River upstream to the loach minnow are both considered unsuitable for spikedace and loach confluence with Martinez Wash in currently present, but likely in small minnow. The majority of Redfield Graham County, Arizona. The Bonita numbers (Marsh 1996, p. 2; ASU 2002; Canyon occurs on State lands, with Creek subbasin is not known to have Bahm and Robinson 2009a, p. 1). smaller areas of private and Federal been occupied at listing but is within Eagle Creek was known to be (BLM) lands. Although there are no the geographical range known to have occupied at the time of listing by known records of spikedace or loach been occupied by both species. It meets spikedace, and therefore meets criteria minnow from Redfield Canyon, it is criteria for a 2b stream for both species for a 1a stream under our ruleset. It was within the geographical range known to under our ruleset. Land ownership at determined to be occupied by loach be occupied by both species, and meets Bonita Creek is almost entirely Federal minnow after listing, in 1994 (ASU criteria as a 2a stream for both species. (BLM), with a few small private parcels. 2002), and therefore meets criteria for a Redfield Canyon was specifically The designations end at the San Carlos 1a stream for loach minnow under our identified within the species’ Recovery Indian Reservation boundary. ruleset. Eagle Creek contains suitable Plan as an area with potential for Cooperative conservation efforts for habitat for all life stages of spikedace spikedace (Service 1991a, p. 21; Service spikedace and loach minnow are and loach minnow (PCE 1); has an 1991b, p. 20). Following coordination ongoing in Bonita Creek. A appropriate food base (PCE 2); consists by a multi-agency team, spikedace and Memorandum of Understanding is in of perennial flows with no or low levels loach minnow were translocated into place with the City of Safford regarding of pollutants (PCEs 3 and 4); and has an Redfield Canyon in 2007, with water management for Bonita Creek as appropriate hydrologic regime to augmentations in 2008 (Robinson part of this effort. To date, those maintain suitable habitat characteristics 2008b, pp. 1, 15–16; Robinson et al. activities have resulted in the removal (PCE 6) above the barrier, which serves 2010a, pp. 4–5, Robinson et al. 2010b, of nonnative fish species and as the endpoint of this unit. pp. 5–6, 20–22). Redfield Canyon translocation of spikedace, loach Approximately 27.5 km (17.1 mi) of currently supports loach minnow that minnow, Gila topminnow, and desert Eagle Creek in Graham County are on
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10849
the San Carlos Apache Reservation. confluence was not known to be suitable habitat characteristics, Additionally, 21.4 km (13.3 mi) of Eagle occupied by spikedace at listing; reintroduced population of spikedace, Creek also flow through private lands however, a reintroduction of spikedace and location within the historical range belonging to Freeport McMoRan. These occurred in 2008 above the town of of spikedace indicate that this area is areas have been excluded from the final Alma, New Mexico (NMDGF 2009, p. 1). suitable for spikedace. The reduced critical habitat designations under The success of this translocation effort distribution of spikedace and the section 4(b)(2) of the Act (see remains to be determined, but the suitability of this large, intact river ‘‘Application of Section 4(b)(2) of the stream meets criteria for a 2b for system in the upper San Francisco River Act’’ section below for additional spikedace. The San Francisco River was indicates that it is essential to the information). known to be occupied by loach minnow conservation of the species. The essential features in this stream at listing (NMDGF 2008; Propst et al. Loach Minnow Only. We are may require special management 2009, pp. 5–6), and therefore meets the designating 30.0 km (18.6 mi) of the considerations or protection due to criteria for a 1a stream under the ruleset Tularosa River from the confluence with competition with and predation by for loach minnow. the San Francisco River upstream to the nonnative aquatic species; residual There are no known records of town of Cruzville, New Mexico. Above effects of past livestock grazing and spikedace from the Tularosa River, Cruzville, habitat becomes unsuitable impacts to uplands, riparian vegetation, Negrito Creek, or Whitewater Creek, and for loach minnow. The Tularosa River is and the stream; mining activities in the spikedace have not been known to occur currently occupied by loach minnow uplands; moderate to severe drought any higher in the San Francisco River (Propst et al. 2009, pp. 4–5). The (University of Nebraska-Lincoln 2011, p. than Pleasanton (Paroz and Propst 2007, Tularosa River is perennial throughout 1); road construction and maintenance pp. 13–15). We are not including any of this reach, and contains suitable habitat within and adjacent to the stream these tributary streams for spikedace in for all life stages of loach minnow (PCE channel, and the indirect effect of the designation at this time. In contrast, 1); has an appropriate food base (PCE 2); wildfires that have occurred in the the Tularosa River and Whitewater consists of perennial flows with no or watershed since 2007. Creek were known to have been low levels of pollutants (PCEs 3 and 4); occupied at listing by loach minnow, and has an appropriate hydrologic Unit 6: San Francisco River Subbasin and meet the criteria for a 1a stream regime to maintain suitable habitat We are including within these under the ruleset. Negrito Creek was not characteristics (PCE 6). Land ownership designations 228.1 km (141.7 miles) of known to have been occupied at listing along the Tularosa River is stream segments from the San Francisco by loach minnow, but loach minnow predominantly Gila National Forest, River and its tributaries Tularosa River, have since been detected in Negrito with private inholdings. The essential Negrito Creek, and Whitewater Creek. Creek (Miller 1998, pp. 1–6). For this features in this stream may require All of this area is designated for loach reason, we have included Negrito Creek special management considerations or minnow, while 166.6 km (103.5 miles) as a 1a stream under the ruleset. protection due to residual effects of is also designated for spikedace. All of Both Species. This designation livestock grazing, and impacts to the area included for spikedace is includes 166.6 km (103.5 mi) of the San uplands, and competition with and within the area designated for loach Francisco River as critical habitat for predation by nonnative aquatic species. minnow. The portions of the San spikedace from the confluence with the We include within this designation Francisco, Tularosa River, Negrito Gila River upstream to the confluence 6.8 km (4.2 mi) of Negrito Creek Creek, and Whitewater Creek included with the Tularosa River. We are extending from the confluence with the within these designations are in including a total of 203.6 km (126.5 mi) Tularosa River upstream to the Greenlee County, Arizona, and Catron of the San Francisco River for loach confluence with Cerco Canyon. Negrito County, New Mexico. minnow, from its confluence with the Creek is perennial through this reach. Portions of the San Francisco River in Gila River upstream to the town of Above this point, gradient and channel Greenlee County totaling 14.1 km (8.8 Cruzville. For loach minnow, the San morphology make the creek unsuitable mi) are on lands owned by FMC. These Francisco River was known to be for loach minnow. Loach minnow in areas have been excluded from the final occupied at listing. The San Francisco Negrito Creek were newly discovered critical habitat designations under River contains suitable habitat for all after listing (Miller 1998, pp. 1–6). section 4(b)(2) of the Act (see life stages of loach minnow (PCE 1); has Negrito Creek contains suitable habitat ‘‘Application of Section 4(b)(2) of the an appropriate food base (PCE 2); for all life stages of loach minnow (PCE Act’’ section below for additional consists of perennial flows with no or 1); has an appropriate food base (PCE 2); information). low levels of pollutants (PCEs 3 and 4); consists of perennial flows with no or The San Francisco River is one of the and has an appropriate hydrologic low levels of pollutants (PCEs 3 and 4); larger intact streams remaining within regime to maintain suitable habitat and has an appropriate hydrologic the species’ ranges, with an overall characteristics (PCE 6). The essential regime to maintain suitable habitat length of approximately 202 km (125 features in this stream may require characteristics (PCE 6). Negrito Creek mi). It is considered perennial special management considerations or occurs primarily on the Gila National throughout this length, except for protection due to livestock grazing and Forest, with a few parcels of private seasonal drying in the Alma Valley. impacts to uplands, riparian vegetation, land interspersed with the Forest lands. Land ownership on the San Francisco and the stream; severe drought The essential features in this stream River includes primarily BLM and (University of Nebraska-Lincoln 2011, p. may require special management Apache-Sitgreaves National Forest with 1) in those portions in Arizona; considerations or protection due to small parcels of private and State lands competition with and predation by residual effects of past livestock grazing in Arizona, and the Gila National Forest nonnative aquatic species; water and impacts to uplands, riparian with small parcels of private lands in diversions; road construction and vegetation, and the stream, as well as New Mexico. maintenance; and channelization. other disturbances in the watershed. Occupancy within this subbasin is The San Francisco River was not We include within this designation mixed. The San Francisco River known to be occupied by spikedace at 1.9 km (1.2 mi) of Whitewater Creek downstream of the Tularosa River listing. The presence of loach minnow, from the confluence with the San
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10850 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
Francisco River upstream to the the suitability of each stream is Canyon, the creek changes and becomes confluence with Little Whitewater provided below. steeper and rockier, making it Creek. Upstream of this point, gradient Both Species. We are including within unsuitable for spikedace and loach and channel changes make the habitat these designations 81.4 km (50.6 mi) of minnow. unsuitable for loach minnow. the Blue River from the confluence with • Pace Creek—1.2 km (0.8 mi) of Pace Whitewater Creek was known to be the San Francisco River upstream to the Creek from the confluence with Dry occupied by loach minnow at the time confluence of Campbell Blue and Dry Blue Creek upstream to a barrier falls. of listing and has perennial flows. It Blue creeks. As noted above, this river Habitat above the barrier is considered serves as an extension of habitat on the was not known to have been occupied unsuitable. • San Francisco River. Whitewater Creek by spikedace at listing. The Blue River Dry Blue Creek—4.7 km (3.0 mi) of contains suitable habitat for all life is occupied by loach minnow, and Dry Blue Creek from the confluence stages of loach minnow (PCE 1); has an contains suitable habitat for all life with Campbell Blue Creek upstream to stages of loach minnow (PCE 1); has an the confluence with Pace Creek. appropriate food base (PCE 2); consists • of perennial flows with no or low levels appropriate food base (PCE 2); consists Frieborn Creek—1.8 km (1.1 mi) of of pollutants (PCEs 3 and 4); and has an of perennial streams with no or low Frieborn Creek from the confluence appropriate hydrologic regime to pollutant issues (PCEs 3 and 4); has no with Dry Blue Creek upstream to an maintain suitable habitat characteristics nonnative aquatic species, or levels of unnamed tributary. • Little Blue Creek—5.1 km (3.1 mi) (PCE 6). Whitewater Creek occurs nonnative aquatic species that are of Little Blue Creek. This includes the entirely on private lands. The essential sufficiently low to allow persistence of lower, perennial portions of Little Blue features in this stream may require spikedace and loach minnow (PCE 5); Creek extending from the confluence special management considerations or and has an appropriate hydrologic with the Blue River upstream to the protection due to residual impacts from regime to maintain suitable habitat confluence with an unnamed canyon. past livestock grazing and impacts to characteristics (PCE 6). The Blue River Above the canyon, flows are not uplands, riparian vegetation, and the occurs predominantly on Federal lands on the Apache-Sitgreaves National perennial. stream; water diversions; competition Each of these streams were occupied with and predation by nonnative Forest, as well as on private parcels of land within the Forest. The essential at the time of listing by loach minnow, aquatic species; road construction and contain suitable habitat for all life stages maintenance; channelization, and features in this stream may require special management considerations or (PCE 1); have an appropriate food base moderate drought (University of (PCE 2); consist of perennial flows with Nebraska-Lincoln 2011, p. 1). protection due to residual effects of past livestock grazing and impacts to no or low levels of pollutants (PCEs 3 Unit 7: Blue River Subbasin uplands, riparian vegetation, and the and 4); have no nonnative aquatic species, or levels of nonnative aquatic Within the Blue River Subbasin, we stream; moderate to severe drought (University of Nebraska-Lincoln 2011, p. species that are sufficiently low to allow are including 106.6 km (66.3 mi) of the 1); and competition with and predation persistence of spikedace and loach Blue River, Campbell Blue and Little by nonnative aquatic species. minnow (PCE 5); and have an Blue creeks in Greenlee County, The larger size of the Blue River, appropriate hydrologic regime to Arizona, and portions of Campbell Blue, compared to smaller, tributary streams maintain suitable habitat characteristics Pace, Frieborn, and Dry Blue creeks in within the species’ range, along with its (PCE 6). the essential features in this Catron County, New Mexico, for both perennial flows and conservation subbasin may require special spikedace and loach minnow. The Blue management activities, make this area management considerations or River, Campbell Blue Creek, and Little important to spikedace. In addition, protection due to residual impacts of Blue Creek occur predominantly on planning among several State and past livestock grazing and impacts to Federal lands of the Apache-Sitgreaves Federal agencies is underway for uplands, riparian vegetation, and the National Forest. The tributaries Pace, restoration of native fish species, stream; moderate to severe drought Frieborn, and Dry Blue creeks occur including spikedace, in the Blue River (University of Nebraska-Lincoln 2011, p. entirely on Federal lands on the Gila through construction of a barrier that 1); and competition with and predation National Forest in New Mexico. will exclude nonnative fish from by nonnative aquatic species. Campbell Within this subbasin, occupancy by moving upstream and allow for Blue Creek and portions of the Blue spikedace and loach minnow is mixed. translocation of spikedace. Barrier River were burned during the Wallow None of the streams designated as feasibility studies have been completed, Fire in 2011, and increased ash and critical habitat in the Blue River as has a draft Memorandum of sedimentation within the active stream Subbasin were known to have been Understanding with land managers and may be a temporary issue in these occupied at listing by spikedace. residents in this area. Federal land streams. Streams within this subbasin are ownership throughout the majority of Because these streams are occupied included as 2b streams for spikedace this proposed critical habitat unit would by loach minnow, which often co-occur under the ruleset. In contrast, the Blue facilitate management for the species. with spikedace, and because they occur River was known to have been occupied We therefore consider the Blue River to within the historical range of the at listing, and all of the tributary streams be essential to the conservation of species, we believe these streams are of Campbell Blue, Little Blue, Pace, Dry spikedace. suitable for spikedace. In addition, as Blue, and Frieborn Creeks were We are including within these discussed above, perennial flows, and discovered to be occupied by loach designations stream miles on multiple occurrence predominantly on Federal minnow after listing, as follows: tributaries for both spikedace and loach lands make these areas especially Campbell Blue Creek—1987; Pace minnow, as follows: suitable for spikedace recovery, and Creek—1998; Dry Blue Creek—1998, • Campbell Blue Creek—12.4 km (7.7 cooperative management plans for a and Frieborn Creek—1998 (ASU 2002). mi) extending from the confluence of native fishery in the Blue River enhance We are therefore including each of these Dry Blue and Campbell Blue Creeks opportunities for spikedace streams as 1a streams under the ruleset upstream to the confluence with conservation. We therefore believe the for loach minnow. Additional detail on Coleman Canyon. Above Coleman Blue River, Campbell Blue, Pace, Dry
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10851
Blue, Frieborn, and Little Blue creeks to regime to maintain suitable habitat maintain suitable habitat characteristics be essential to the conservation of the characteristics (PCE 6). (PCE 6). species. Spikedace and loach minnow on the Approximately 7.9 km (4.9 mi) on Mangas Creek within this unit are on Unit 8. Gila River Subbasin Gila River mainstem occur primarily on Federal lands managed by the BLM and lands owned and managed by FMC. These designations include the Gila National Forest, interspersed These areas have been excluded from approximately 258.6 km (160.7 mi) of with private and State lands (NMDGF at the final critical habitat designations the upper Gila River and five tributaries Heart Bar Wildlife Area). The essential under section 4(b)(2) of the Act (see including West Fork Gila River, Middle features in the Gila River may require ‘‘Application of Section 4(b)(2) of the Fork Gila River, East Fork Gila River, special management considerations or Act’’ section below for additional Mangas Creek, and Bear Creek in protection due to residual impacts of information). Hidalgo, Grant, and Catron Counties, past livestock grazing and impacts to Spikedace and loach minnow on New Mexico. A slightly larger area was uplands, riparian vegetation, and the Mangas Creek occur primarily on included for loach minnow on the stream; competition with and predation private lands, with small portions Middle Fork Gila River. All mileage by nonnative aquatic species; road occurring on lands managed by the included for spikedace on the Middle construction and maintenance; water BLM. The essential features in Mangas Fork Gila River is included within this diversions; recreation; and moderate Creek may require special management area. All streams included within this drought (University of Nebraska-Lincoln considerations or protection due to unit are considered occupied at listing 2011, p. 1). residual impacts of past livestock by both species (Paroz et al. 2009, p. 12), Approximately 11.5 km (7.2 mi) of grazing and impacts to uplands, riparian and therefore meet the criteria for 1a streams on the Gila River mainstem vegetation, and the stream; impaired streams under the ruleset. Spikedace within this unit are owned and managed water quality due to high organic matter and loach minnow were first detected in by FMC. This area has been excluded and excessive algal growth likely caused Mangas Creek after listing, which meets by resource extraction (mining), loss of from the final critical habitat the criteria for a 1a stream under the riparian habitat, wildlife use of the area, designations under section 4(b)(2) of the ruleset (in 1999; NMGFD 2008). municipal discharges, recreation and Act (see ‘‘Application of Section 4(b)(2) Similarly, loach minnow were first tourism, agriculture (livestock grazing) of the Act’’ section below for additional detected in Bear Creek after listing, (EPA 2002, pp. 4–12; EPA 2004; EPA information). which also meets the criteria for a 1a 2010, p. 1) and moderate drought stream (in 2005; Schiffmiller 2005; The West Fork Gila River occurs (University of Nebraska-Lincoln 2011, NMGFD 2008). primarily on a mix of Federal lands on p. 1). Both Species. These designations the Gila National Forest, the National Spikedace Only. We are including include 153.5 km (95.4 mi) of the Gila Park Service, and private lands. The within the designation 12.5 km (7.7 mi) River from the confluence with Moore essential features in this stream may of the Middle Fork Gila River extending Canyon (near the Arizona-New Mexico require special management from the confluence with West Fork border) upstream to the confluence of considerations or protection due to Gila River upstream to the confluence the East and West Forks are included competition with and predation by with Big Bear Canyon. This area is within these designations. Below Moore nonnative aquatic species, road currently occupied by spikedace and is Canyon, the river is substantially altered construction and maintenance, connected to currently occupied habitat by agriculture, diversion, and urban watershed impacts associated with past on the West Fork of the Gila River development. In addition, there are no wildfires, and moderate drought (NMDGF 2008; Propst et al. 2009, pp. 9– loach minnow and only one spikedace (University of Nebraska-Lincoln 2011, 11). The Gila River contains suitable records known from the Gila River p. 1). habitat for all life stages of spikedace between its confluence with Moore The East Fork Gila River occurs (PCE 1); has an appropriate food base Canyon and a spikedace record from primarily on Federal lands on the Gila (PCE 2); consists of perennial streams Pinal County, Arizona, near the National Forest, with small parcels of with no or low pollutant issues (PCEs 3 Ashurst-Hayden Dam. This portion of private lands interspersed. The essential and 4); and has an appropriate the Gila River supports the largest features in this stream may require hydrologic regime to maintain suitable remaining populations of spikedace and special management considerations or habitat characteristics (PCE 6). This area loach minnow (NMDGF 2008; Propst et protection due to residual impacts of is considered essential to the survival al. 2009, pp. 14–17). In addition, we are past livestock grazing and impacts to and recovery of the species because of designating 13.0 km (8.1 mi) of the West uplands, riparian vegetation, and the its historical and current occupancy and Fork Gila River from the confluence stream; competition with and predation multiple PCEs. In addition, the Middle with the East Fork Gila River upstream by nonnative aquatic species; watershed Fork Gila River is connected to habitat to the confluence with EE Canyon and impacts associated with past wildfires occupied by spikedace on the West Fork 42.1 km (26.2 mi) of the East Fork Gila (University of Nebraska-Lincoln 2011, Gila River. The Middle Fork Gila River River from the confluence with the West p. 1). occurs primarily on Federal lands Fork Gila River upstream to the We are including within these managed by the Gila National Forest, confluence of Beaver and Taylor Creeks. designations 1.2 km (0.8 mi) of Mangas with small parcels of private lands Above EE Canyon, the river becomes Creek for both species from the interspersed with Federal lands. The unsuitable for spikedace and loach confluence with the Gila River upstream essential features in this stream may minnow due to gradient and channel to the confluence with Willow Creek. require special management morphology. All stream segments Mangas Creek is currently occupied by considerations or protection due to contain suitable habitat for all life stages spikedace and loach minnow (NMDGF residual impacts of past livestock of spikedace and loach minnow (PCE 1); 2008). Mangas Creek contains suitable grazing and impacts to uplands, riparian have an appropriate food base (PCE 2); habitat for all life stages of spikedace vegetation, and the stream; competition consist of perennial streams with no or and loach minnow (PCE 1); has an with and predation by nonnative low levels of pollutants (PCEs 3 and 4); appropriate food base (PCE 2); and has aquatic species; watershed impacts and have an appropriate hydrologic an appropriate hydrologic regime to associated with past wildfires; and
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10852 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
moderate drought (University of details on land ownership and special found, and we believe it is more likely Nebraska-Lincoln 2011, p. 1). management needs. that loach minnow persist in this area Loach Minnow Only. In addition to We are including within this of perennial flows. the areas described above for this unit, designation 31.4 km (19.5 mi) of Bear Portions of Bear Creek contain we are including within the designation Creek from its confluence with the Gila suitable habitat for all life stages of 19.1 km (11.9 mi) of the Middle Fork River upstream to the confluence with loach minnow (PCE 1); have an Gila River extending from the Sycamore Creek and North Fork Walnut appropriate food base (PCE 2); consist of confluence with West Fork Gila River Creek. Loach minnow were first found perennial flows with no or low levels of upstream to the confluence with in Bear Creek in 2005 and again in 2006 pollutants (PCEs 3 and 4); have no Brothers West Canyon. The 12.5 km (7.7 (Schiffmiller 2005, pp. 1–4; NMDGF nonnative aquatic species, or levels of mi) designated on the Middle Fork Gila 2008). Bear Creek is classified as River for spikedace is completely within perennial interrupted, with stream nonnative aquatic species that are this 19.1 km (11.9 mi). This area is segments that may dry up seasonally, sufficiently low to allow persistence of currently occupied by loach minnow depending on weather events (USFS spikedace and loach minnow (PCE 5); (NMDGF 2008; Propst et al. 2009, 2010). While it was initially believed and have an appropriate hydrologic pp. 9–11). that loach minnow detected in 2005 regime to maintain suitable habitat The Middle Fork Gila River contains came from the Gila River during a characteristics (PCE 6). The essential suitable habitat for all life stages of period when the upstream, perennial features in this stream may require loach minnow (PCE 1); has an section was temporarily connected to special management considerations or appropriate food base (PCE 2); consists the Gila River, further discussions with protection due to some residual impacts of perennial flows with no or low levels biologists familiar with the stream, a of past livestock grazing and impacts to of pollutants (PCEs 3 and 4); and has an review of the loach minnow records, uplands, riparian vegetation, and the appropriate hydrologic regime to and reconsideration of the species stream; and moderate drought maintain suitable habitat characteristics biology make this seem unlikely. The (University of Nebraska-Lincoln 2011, (PCE 6). This area is considered location of the loach minnow detections p. 1). essential to the survival and recovery of on Bear Creek was approximately 18 Approximately .9 km (1.2 mi) on Bear loach minnow due to its historical and miles upstream of the Gila River Creek within this unit are on lands current occupancy, its multiple PCEs, confluence. We believe it is unlikely owned and managed by FMC. These and its connection to the West Fork of that loach minnow were able to swim areas have been excluded from the final the Gila River, which is currently upstream 18 miles during a high flow critical habitat designations under occupied by loach minnow. See the event to become established in this section 4(b)(2) of the Act (see description above, describing the location. Nearby Dorsey Spring ‘‘Application of Section 4(b)(2) of the designation along the West and Middle maintains perennial flows in the section Act’’ section below for additional Forks of the Gila River for spikedace for of river in which the loach minnow are information).
TABLE 8—STREAM SEGMENTS CONSIDERED IN THESE CRITICAL HABITAT DESIGNATIONS AND THE CRITERIA UNDER WHICH THEY ARE IDENTIFIED
Occupied by Occupied by loach spikedace at the time minnow at the time of Stream of listing or at any listing or at any time time thereafter/rule thereafter/rule criteria criteria met met *
Unit 1—Verde River Subbasin
Verde River ...... Yes/1a ...... No/2b. Granite Creek ...... No/2a ...... No/2b. Oak Creek ...... No/2a ...... No/2b. Beaver and Wet Beaver Creek ...... No/2a ...... No/2b. West Clear Creek ...... No/2a ...... Not applicable. Fossil Creek ...... No/2a ...... No/2b.
Unit 2—Salt River Subbasin
Salt River ...... No/ ...... Not applicable. Tonto Creek ...... No/2b ...... Not applicable. Greenback Creek ...... No/2b ...... Not applicable. Rye Creek ...... No/2b ...... Not applicable. Spring Creek ...... No/2b ...... Not applicable. Rock Creek ...... No/2b ...... Not applicable. White River ...... Not Applicable ...... Yes/1a. East Fork White River ...... Not Applicable ...... Yes/1a. East Fork Black River ...... Not applicable ...... No/2a. North Fork East Fork Black River ...... Not applicable ...... Yes/1a. Boneyard Creek ...... Not applicable ...... Yes/1a. Coyote Creek ...... Not applicable ...... No/2a.
Unit 3—San Pedro River Subbasin
San Pedro River ...... No/2b ...... No/2b. Hot Springs Canyon ...... No/2a ...... No/2a. Bass Canyon ...... No/2a ...... No/2a.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10853
TABLE 8—STREAM SEGMENTS CONSIDERED IN THESE CRITICAL HABITAT DESIGNATIONS AND THE CRITERIA UNDER WHICH THEY ARE IDENTIFIED—Continued
Occupied by Occupied by loach spikedace at the time minnow at the time of Stream of listing or at any listing or at any time time thereafter/rule thereafter/rule criteria criteria met met *
Redfield Canyon ...... No/2a ...... No/2a. Aravaipa Creek ...... Yes/1a ...... Yes/1a. Deer Creek ...... No/2a ...... Yes/1a. Turkey Creek ...... No/2a ...... Yes/1a.
Unit 4—Bonita Creek Subbasin
Bonita Creek ...... No/2b ...... No/2b.
Unit 5—Eagle Creek Subbasin
Eagle Creek ...... Yes/1a ...... Yes1a.
Unit 6—San Francisco River Subbasin
San Francisco River ...... No/2b ...... Yes/1a. Tularosa River ...... Not applicable ...... Yes/1a. Negrito Creek ...... Not applicable ...... Yes/1a. Whitewater Creek ...... Not applicable ...... Yes/1a.
Unit 7—Blue River Subbasin
Blue River ...... No/2b ...... Yes/1a. Campbell Blue Creek ...... No/2b ...... Yes/1a Little Blue Creek ...... No/2b ...... Yes/1a. Pace Creek ...... No/2b ...... Yes/1a Frieborn Creek ...... No/2b ...... Yes/1a. Dry Blue Creek ...... No/2b ...... Yes/1a.
Unit 8—Gila River Subbasin
Gila River ...... Yes/1a ...... Yes/1a. West Fork Gila River ...... Yes/1a ...... Yes/1a. Middle Fork Gila River ...... Yes/1a ...... Yes/1a. East Fork Gila River ...... Yes/1a ...... Yes/1a. Mangas Creek ...... Yes/1a ...... Yes/1a. Bear Creek ...... Not Applicable ...... Yes/1a.
Effects of Critical Habitat Designations Fish and Wildlife Service, 378 F. 3d section 404 of the Clean Water Act (33 1059 (9th Cir. 2004) and Sierra Club v. U.S.C. 1251 et seq.) or a permit from the Section 7 Consultation U.S. Fish and Wildlife Service et al., 245 Service under section 10 of the Act) or Section 7(a)(2) of the Act requires F.3d 434, 442 (5th Cir. 2001)), and we that involve some other Federal action Federal agencies, including the Service, do not rely on this regulatory definition (such as funding from the Federal to ensure that any action they fund, when analyzing whether an action is Highway Administration, Federal authorize, or carry out is not likely to likely to destroy or adversely modify Aviation Administration, or the Federal jeopardize the continued existence of critical habitat. Under the statutory Emergency Management Agency). any endangered species or threatened provisions of the Act, we determine Federal actions not affecting listed species or result in the destruction or destruction or adverse modification on species or critical habitat, and actions adverse modification of designated the basis of whether, with on State, tribal, local, or private lands critical habitat of such species. In implementation of the proposed Federal that are not federally funded or addition, section 7(a)(4) of the Act action, the affected critical habitat authorized, do not require section 7 requires Federal agencies to confer with would continue to serve its intended consultation. the Service on any agency action which conservation role for the species. As a result of section 7 consultation, is likely to jeopardize the continued If a Federal action may affect a listed we document compliance with the existence of any species proposed to be species or its critical habitat, the requirements of section 7(a)(2) through listed under the Act or result in the responsible Federal agency (action our issuance of: destruction or adverse modification of agency) must enter into consultation proposed critical habitat. with us. Examples of actions that are (1) A concurrence letter for Federal Decisions by the 5th and 9th Circuit subject to the section 7 consultation actions that may affect, but are not Courts of Appeals have invalidated our process are actions on State, tribal, likely to adversely affect, listed species regulatory definition of ‘‘destruction or local, or private lands that require a or critical habitat; or adverse modification’’ (50 CFR 402.02) Federal permit (such as a permit from (2) A biological opinion for Federal (see Gifford Pinchot Task Force v. U.S. the U.S. Army Corps of Engineers under actions that may affect, or are likely to
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10854 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
adversely affect, listed species or critical conservation value of critical habitat for (4) Actions that could result in the habitat. spikedace and loach minnow. As introduction, spread, or augmentation of When we issue a biological opinion discussed above, the role of critical aquatic species in occupied stream concluding that a project is likely to habitat is to support life-history needs of segments, or in stream segments that are jeopardize the continued existence of a the species and provide for the hydrologically connected to occupied listed species and/or destroy or conservation of the species. stream segments, even if those segments adversely modify critical habitat, we Section 4(b)(8) of the Act requires us are occasionally intermittent, or provide reasonable and prudent to briefly evaluate and describe, in any introduction of other species that alternatives to the project, if any are proposed or final regulation that compete with or prey on spikedace or identifiable, that would avoid the designates critical habitat, activities loach minnow. Possible actions could likelihood of jeopardy and/or involving a Federal action that may include, but are not limited to: destruction or adverse modification of destroy or adversely modify such Introduction of parasites or disease; critical habitat. We define ‘‘reasonable habitat, or that may be affected by such stocking of nonnative fishes; stocking of and prudent alternatives’’ (at 50 CFR designation. sport fish (whether native or nonnative); 402.02) as alternative actions identified Examples of activities that, when stocking of nonnative amphibians or during consultation that: authorized, funded, or carried out by a other nonnative taxa; or other related (1) Can be implemented in a manner Federal agency, may affect critical actions. These activities can affect the consistent with the intended purpose of habitat and therefore should result in growth, reproduction, and survival of the action, consultation for the spikedace and loach spikedace and loach minnow. (2) Can be implemented consistent minnow include, but are not limited to: (5) Actions that would significantly with the scope of the Federal agency’s (1) Actions that would significantly alter channel morphology. Such legal authority and jurisdiction, diminish flows within the active stream activities could include, but are not (3) Are economically and channel. Such activities could include, limited to: Channelization, technologically feasible, and impoundment, road and bridge (4) Would, in the Director’s opinion, but are not limited to: Water diversions; channelization; construction of any construction, mining, dredging, and avoid the likelihood of jeopardizing the destruction of riparian vegetation. These continued existence of the listed species barriers or impediments within the active river channel; removal of flows in activities may lead to changes in water and/or avoid the likelihood of flows and levels that would eliminate destroying or adversely modifying excess of those allotted under a given water right; construction of permanent the spikedace or loach minnow, degrade critical habitat. their habitats, or both. These actions can Reasonable and prudent alternatives or temporary diversion structures; and also lead to increased sedimentation can vary from slight project groundwater pumping within aquifers and degradation in water quality to modifications to extensive redesign or associated with the river. These actions levels that are beyond the tolerances of relocation of the project. Costs could affect water depth, velocity, and spikedace and loach minnow. associated with implementing a flow pattern, all of which are essential reasonable and prudent alternative are to the different life stages of spikedace Exemptions similarly variable. or loach minnow. Regulations at 50 CFR 402.16 require (2) Actions that significantly alter the Application of Section 4(a)(3) of the Act Federal agencies to reinitiate water chemistry of the active channel. The Sikes Act Improvement consultation on previously reviewed Such activities could include, but are Amendment of 1997 (Sikes Act) (16 actions in instances where we have not limited to: Release of chemicals, U.S.C. 670a) required each military listed a new species or subsequently biological pollutants, or other installation that includes land and water designated critical habitat that may be substances into the surface water or suitable for the conservation and affected and the Federal agency has connected groundwater at a point management of natural resources to retained discretionary involvement or source or by dispersed release (nonpoint complete an integrated natural resource control over the action (or the agency’s source); and storage of chemicals or management plan (INRMP) by discretionary involvement or control is pollutants that can be transmitted, via November 17, 2001. An INRMP authorized by law). Consequently, surface water, groundwater, or air into integrates implementation of the Federal agencies sometimes may need to critical habitat. These actions can affect military mission of the installation with request reinitiation of consultation with water chemistry, and in turn the prey stewardship of the natural resources us on actions for which formal base of spikedace and loach minnow. found on the base. Each INRMP consultation has been completed, if (3) Actions that would significantly includes: those actions with discretionary increase sediment deposition within a (1) An assessment of the ecological involvement or control may affect stream channel. Such activities could needs on the installation, including the subsequently listed species or include, but are not limited to: need to provide for the conservation of designated critical habitat. Excessive sedimentation from improper listed species; livestock grazing; road construction; (2) A statement of goals and priorities; Application of the ‘‘Adverse commercial or urban development; (3) A detailed description of Modification’’ Standard channel alteration; timber harvest; ORV management actions to be implemented The key factor related to the adverse use; recreational use; or other watershed to provide for these ecological needs; modification determination is whether, and floodplain disturbances. These and with implementation of the proposed activities could adversely affect (4) A monitoring and adaptive Federal action, the affected critical reproduction of the species by management plan. habitat would continue to serve its preventing hatching of eggs, or by Among other things, each INRMP intended conservation role for the eliminating suitable habitat for egg must, to the extent appropriate and species. Activities that may destroy or placement by loach minnow. In applicable, provide for fish and wildlife adversely modify critical habitat are addition, excessive levels of management; fish and wildlife habitat those that alter the PCEs to an extent sedimentation can make it difficult for enhancement or modification; wetland that appreciably reduces the these species to locate prey. protection, enhancement, and
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10855
restoration where necessary to support In considering whether to exclude a received, we evaluated whether certain fish and wildlife; and enforcement of particular area from the designations, lands in the critical habitat in Units 1, applicable natural resource laws. we identify the benefits of including the 2, 3, 5, and 8 were appropriate for The National Defense Authorization area in the designations, identify the exclusion from these final designations Act for Fiscal Year 2004 (Pub. L. 108– benefits of excluding the area from the pursuant to section 4(b)(2) of the Act. As 136) amended the Act to limit areas designations, and evaluate whether the discussed in detail below, the Secretary eligible for designation as critical benefits of exclusion outweigh the is exercising his discretion to exclude habitat. Specifically, section 4(a)(3)(B)(i) benefits of inclusion. If the analysis the following areas from critical habitat of the Act (16 U.S.C. 1533(a)(3)(B)(i)) indicates that the benefits of exclusion designations for both spikedace and now provides: ‘‘The Secretary shall not outweigh the benefits of inclusion, the loach minnow: designate as critical habitat any lands or Secretary may exercise his discretion to (1) The San Pedro River in its entirety other geographical areas owned or exclude the area only if such exclusion within Unit 3 of the designations; controlled by the Department of would not result in the extinction of the (2) Those portions of the Verde River Defense, or designated for its use, that species. and Beaver and Wet Beaver Creeks in are subject to an integrated natural When identifying the benefits of resources management plan prepared Unit 1 occurring within the boundaries inclusion for an area, we consider the of the Yavapai-Apache Nation and under section 101 of the Sikes Act (16 additional regulatory benefits that area U.S.C. 670a), if the Secretary determines subject to the provisions of Tribal would receive from the protection from Resolution 46–2006; in writing that such plan provides a adverse modification or destruction as a benefit to the species for which critical result of actions with a Federal nexus; (3) Those portions of the mainstem habitat is proposed for designation.’’ the educational benefits of mapping White River and East Fork White River There are no Department of Defense essential habitat for recovery of the within the boundaries of the White lands with a completed INRMP within listed species; and any benefits that may Mountain Apache Tribe and subject to the critical habitat designations for result from a designation due to State or the provisions of the Loach Minnow either species. Therefore, we are not Federal laws that may apply to critical Management Plan; exempting lands from these final habitat. (4) Those portions of Eagle Creek in designations of critical habitat for When identifying the benefits of Unit 5 that are within the boundaries of spikedace or loach minnow pursuant to exclusion, we consider, among other the San Carlos Apache Nation and section 4(a)(3)(B)(i) of the Act. things, whether exclusion of a specific subject to the provisions of their FMP; Exclusions area is likely to result in conservation; (5) Those portions of the mainstem the continuation, strengthening, or Eagle Creek and the San Francisco River Application of Section 4(b)(2) of the Act encouragement of partnerships; or that are owned by FMC or their Section 4(b)(2) of the Act states that implementation of a management plan subsidiaries; and the Secretary shall designate and make that provides equal to or more (6) Those portions of the Gila River, revisions to critical habitat on the basis conservation than a critical habitat Mangas Creek, or Bear Creek that are of the best available scientific data after designation would provide, forego owned by FMC or their subsidiaries. taking into consideration the economic disproportionate economic impacts The Secretary is also exercising his impact, national security impact, and resulting from the designation of critical discretion to exclude the areas because any other relevant impact of specifying habitat, or avoid potential conflicts with we determined the following: any particular area as critical habitat. national security issues. The Secretary may exclude an area from After evaluating the benefits of (1) Their value for conservation will critical habitat if he determines that the inclusion and the benefits of exclusion, be preserved for the foreseeable future benefits of such exclusion outweigh the we carefully weigh the two sides to by existing protective actions, or benefits of specifying such area as part determine whether the benefits of (2) The benefit of excluding them of the critical habitat, unless he exclusion outweigh those of inclusion. under the ‘‘other relevant factor’’ determines, based on the best scientific If our analysis indicates that the benefits provisions of section 4(b)(2) of the Act data available, that the failure to of exclusion outweigh the benefits of outweighs the benefit of including them designate such area as critical habitat inclusion, we then determine whether in critical habitat. will result in the extinction of the exclusion would result in extinction. If Table 9 below provides approximate species. In making that determination, exclusion of an area from critical habitat length of streams that meet the the statute on its face, as well as the will result in extinction, we will not definition of critical habitat but are legislative history are clear that the exclude it from the designations. excluded under section 4(b)(2) of the Secretary has broad discretion regarding Based on the information provided by Act from the final critical habitat rule. which factor(s) to use and how much entities seeking exclusion, as well as Table 9 also provides our reasons for the weight to give to any factor. any additional public comments exemptions and exclusions.
TABLE 9—EXCLUSIONS AND AREAS CONSIDERED FOR EXCLUSION FROM DESIGNATION OF CRITICAL HABITAT FOR LOACH MINNOW AND SPIKEDACE BY CRITICAL HABITAT UNIT
Areas meeting the definition Unit Specific area Basis for of critical habitat in kilometers Areas excluded in kilometers exclusion (miles) (miles)
1 ...... Verde River and Beaver and Yavapai-Apache Nation Tribal 1.2 km (0.8 mi) of the Verde 1.2 km (0.8 mi) of the Verde Wet Beaver Creeks on Resolution 46–2006; Tribal River and 0.2 km (0.1 mi) of River and 0.2 km (0.1 mi) of Yavapai-Apache Nation Sovereignty; Working Rela- Beaver Creek and Wet Beaver Creek and Wet lands. tionship with the Yavapai- Beaver Creek. Beaver Creek. Apache Nation.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10856 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
TABLE 9—EXCLUSIONS AND AREAS CONSIDERED FOR EXCLUSION FROM DESIGNATION OF CRITICAL HABITAT FOR LOACH MINNOW AND SPIKEDACE BY CRITICAL HABITAT UNIT—Continued
Areas meeting the definition Unit Specific area Basis for of critical habitat in kilometers Areas excluded in kilometers exclusion (miles) (miles)
2 ...... Mainstem White River and Loach Minnow Management 29.0 km (18.0 mi) of the 29.0 km (18.0 mi) of the East Fork White River. Plan; Tribal Sovereignty; White River and 17.2 km White River and 17.2 km Working Relationship with (10.7 mi) of the East Fork (10.7 mi) of the East Fork the White Mountain Apache White River. White River. Tribe. 3 ...... San Pedro River ...... National Security ...... 59.8 km (37.2 mi) of the San 59.8 km (37.2 mi) of the San Pedro River. Pedro River. 5 ...... Eagle Creek ...... San Carlos Apache Tribe 75.5 km (46.9 mi) of Eagle 27.5 km (17.1 mi) of Eagle Fisheries Management Creek. Creek on the San Carlos Plan; Tribal Sovereignty; Apache Reservation. Working Relationship with the San Carlos Apache Tribe. 5 ...... Eagle Creek ...... FMC Spikedace and Loach 75.5 km (46.9 mi) of Eagle Approximately 21.4 km (13.3 Minnow Management Plan Creek. mi) of Eagle Creek owned Eagle Creek and San Fran- by FMC or its subsidiaries. cisco River Greenlee and Graham County, Arizona. 5 ...... San Francisco River ...... FMC Spikedace and Loach 203.6 km (126.5 mi of the 14.1 km (8.8 mi) of the San Minnow Management Plan San Francisco River for Francisco River owned by Eagle Creek and San Fran- loach minnow; 180.7 km FMC or its subsidiaries. cisco River Greenlee and (112.3 mi) of the San Fran- Graham County, Arizona. cisco River for spikedace. 8 ...... Gila River ...... FMC Spikedace and Loach 165.1 km (102.6 mi) of the 12.9 km (7.2 mi) of the Gila Minnow Management Plan Gila River. River owned by FMC or its Upper Gila River, Including subsidiaries. Bear Creek and Mangas Creek Grant County, New Mexico. 8 ...... Bear Creek ...... FMC Spikedace and Loach 31.4 km (19.5 mi) of Bear 1.9 km (1.2 mi) of Bear Creek Minnow Management Plan Creek. owned by FMC or its sub- Upper Gila River, Including sidiaries. Bear Creek and Mangas Creek Grant County, New Mexico. 8 ...... Mangas Creek ...... FMC Spikedace and Loach 9.1 km (5.7 mi) of Mangas 7.9 km (4.9 mi) of Mangas Minnow Management Plan Creek. Creek owned by Freeport Upper Gila River, Including McMoRan or its subsidi- Bear Creek and Mangas aries. Creek Grant County, New Mexico.
Exclusions Based on Economic Impacts conservation efforts for spikedace and associated impacts are those not Under section 4(b)(2) of the Act, we loach minnow; some of these costs will expected to occur absent the consider the economic impacts of likely be incurred regardless of whether designations of critical habitat for the specifying any particular area as critical we designate critical habitat (baseline). species. In other words, the incremental habitat. In order to consider economic The economic impact of the final costs are those attributable solely to the impacts, we prepared a draft economic critical habitat designations is analyzed designations of critical habitat above analysis of the critical habitat by comparing scenarios both ‘‘with and beyond the baseline costs; these are designations and related factors (IEc. critical habitat’’ and ‘‘without critical the costs we consider in the final 2011). The draft analysis, dated July 6, habitat.’’ The ‘‘without critical habitat’’ designations of critical habitat. The 2011, was made available for public scenario represents the baseline for the analysis looks retrospectively at review from October 4, 2011, through analysis, considering protections baseline impacts incurred since the November 3, 2011 (76 FR 61330). already in place for the species (e.g., species was listed, and forecasts both Following the close of the comment under the Federal listing and other baseline and incremental impacts likely period, a final analysis (dated January Federal, State, and local regulations). to occur with the designations of critical 24, 2012) of the potential economic The baseline, therefore, represents the habitat. effects of the designations was costs incurred regardless of whether While we think that the incremental developed taking into consideration the critical habitat is designated. The ‘‘with effects approach is appropriate and public comments and any new critical habitat’’ scenario describes the meets the intent of the Act, we have information (IEc 2012). incremental impacts associated taken a conservative approach in this The intent of the final economic specifically with the designations of instance to ensure that we are fully analysis (FEA) is to quantify the critical habitat for the species. The evaluating the probable effects of this economic impacts of all potential incremental conservation efforts and designation. Given that we do not have
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10857
a new definition of ‘‘destruction or final designation based on a co-located at Fort Huachuca because of adverse modification,’’ there may be disproportionate economic impact to the BSETR and the unique certain circumstances where we may any entity or sector. A copy of the FEA environmental setting in which it want to evaluate impacts beyond those with supporting documents may be occurs, which allows for specialized that are solely incremental. Such is the obtained by contacting the Arizona electronic testing. According to Fort case with spikedace and loach minnow, Ecological Services Field Office (see Huachuca, the BSETR and R–2303 where we have extensive case law and ADDRESSES) or by downloading from the restricted airspace are vital resources to determinations of effects that suggest we Internet at http://www.regulations.gov national security that are not duplicated gather information concerning not only or at http://www.fws.gov/southwest/es/ elsewhere within the United States. For incremental effects, but also coextensive arizona/. the BSETR, Fort Huachuca notes that effects. ‘‘the metal-bearing mountain ranges on The FEA also addresses how potential Exclusions Based on National Security Impacts the Fort create conditions conducive to economic impacts are likely to be testing and that these conditions are not distributed, including an assessment of Under section 4(b)(2) of the Act, we replicated anywhere else in the United any local or regional impacts of habitat consider whether there are lands owned States with the only other known conservation and the potential effects of or managed by the Department of location in the world in the outback of conservation activities on government Defense (DOD) where a national security Australia (Fort Huachuca 2011).’’ With agencies, private businesses, and impact might exist. In preparing these respect to the R–2303 restricted individuals. Decision-makers can use designations, we determined that the airspace, Fort Huachuca notes that the this information to assess whether the lands within the designations of critical special restricted airspace that extends effects of the designations might unduly habitat for spikedace and loach minnow downward to the ground surface is burden a particular group or economic are not owned or managed by the DOD. critical for the training of Unmanned sector. Finally, the FEA considers those A nexus exists, however, between Aerial Systems operators for the Army, costs that may occur in the 20 years critical habitat in the San Pedro River in Marines, National Guard, and following the designation of critical Subunit 3 and groundwater pumping by Department of Homeland Security. Fort habitat, which was determined to be the the United States Army Garrison Fort Huachuca notes that this type of appropriate period for analysis based on Huachuca (Fort Huachuca) in Cochise restricted airspace, which extends to the the data available during the analysis. County, Arizona. An additional nexus is ground surface, is not duplicated The FEA quantifies economic impacts of created by the geographic areas not anywhere else in the United States, and owned but designated for use by Fort spikedace and loach minnow that this is one of the only Military Huachuca. Because of this, and in conservation efforts associated with the Restricted Airspace complexes in the response to comments received from following categories of activity: Water country: (1) Whose activation has no Fort Huachuca, we completed a use and management; livestock grazing; impact on commercial air traffic balancing analysis of the benefits of recreation; species management; corridors; and (2) allows for unmanned inclusion and the benefits of exclusion residential and commercial aircraft to have priority over manned of lands in the San Pedro River in development; transportation, fire aircraft for testing, training, and border Subunit 3. management; and Tribal lands. security. Fort Huachuca cites several The FEA estimates that no significant Fort Huachuca other examples of the importance of economic impacts are likely to result their activities to national security; from the designation of critical habitat. Fort Huachuca is located in Cochise however, the BSETR and the unique Quantified incremental impacts are County, Arizona, approximately 15 environmental settings in which it estimated to be $2.95 million to $6.7 miles north of the international border million over 20 years ($261,000 to with Mexico. While the area designated occurs, as well as the R–2303 restricted $592,000 annually) using a discount rate as Fort Huachuca itself does not occur airspace, were of greatest concerns in of seven percent. The San Pedro River along the San Pedro River, Fort this evaluation due to lack of duplicate Unit, is anticipated to bear the highest Huachuca officials indicated in their conditions elsewhere in the United incremental costs in both the low and comment letter that there are geographic States. high end scenarios. Quantified areas designated for Department of To carry out these missions, Fort incremental costs are related to an Defense (DOD) use including the Buffalo Huachuca pumps groundwater to serve anticipated large and costly consultation Soldier Electronic Test Range (BSETR), its on-base military and civilian at Fort Huachuca Military Reservation, R–2303 restricted airspace, and population. Fort Huachuca’s pumping as well as annual monitoring costs on groundwater resources in a regional results in both removal of groundwater the San Pedro River of $100,000 to aquifer of the Sierra Vista Subwatershed from storage in the regional aquifer and $200,000 annually. It should be noted of the San Pedro River that are all the capture of water from discharge. that the San Pedro River has been located within critical habitat in Unit 3. Groundwater in storage is that which excluded under section 4(b)(2) of the The BSETR covers approximately 10.5 resides in an aquifer. Such stored water Act and is not part of the final square kilometers (4.1 square miles), may be discharging to a spring or designation, due to national security with 10.1 square kilometers (3.9 square waterway. Water withdrawn from the impacts at Fort Huachuca. The next miles) off-post and encompassing the ground by wells initially derives largest quantified incremental impacts entire 60 km (30.7 mi) of the critical exclusively from storage. As pumping are expected in the Gila River unit habitat proposed along the San Pedro. continues, increasing proportions of primarily related to anticipated costs Their R–2303 restricted airspace covers water are derived from the capture of related to riparian fencing construction. 3.9 square kilometers (1.5 square miles), discharge, and decreasing proportions In conclusion, there is not significant with 3.4 square kilometers (1.3 square are derived from storage. In other words, economic impact are likely to be a result miles) off-post and nearly totally ground water wells are withdrawing not from the designation of critical habitat encompassing the critical habitat along only water residing in the aquifer, but for these two species. As a result, the the San Pedro River. also water that was otherwise destined Secretary is not exercising his discretion Fort Huachuca notes that the Army to become the surface flow of a stream to exclude any particular area from the and Joint Military testing community is or be available to sustain riparian
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10858 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
vegetation. If water withdrawal $10 million in a 4-year period for regulatory standard of section 7(a)(2) of continues unmitigated, it will conservation work. the Act under which consultation is eventually deplete storage, reverse the The biological opinion addressed completed. Federal agencies must also flow direction of groundwater, and potential impacts of actions taken by consult with us on actions that may capture (dewater) the stream itself. Fort Huachuca on Huachuca water affect a listed species and refrain from Deprivation of the base flow of the San umbel (Lilaeopsis schaffneriana var. undertaking actions that are likely to Pedro River could eventually cause recurva) with critical habitat, jeopardize the continued existence of perennial reaches to become southwestern willow flycatcher such species. The analysis of effects of intermittent or ephemeral. While these (Empidonax traillii extimus) with a proposed project on critical habitat is portions of the San Pedro River are not critical habitat, Mexican spotted owl separate and different from that of the currently occupied by either species, (Strix occidentalis lucida), lesser long- effects of a proposed project on the such a change in the hydrologic regime nosed bat (Leptonycteris curasoae species itself. The jeopardy analysis of the San Pedro River, depending upon yerbabuenae), Sonora tiger salamander evaluates the action’s impact to survival the reach in which it occurred, may not (Ambystoma tigrinum stebbinsi), and recovery of the species, while the allow the San Pedro River to facilitate Huachuca springsnail (Pyrgulopsis destruction or adverse modification the expansion of the geographic thompsoni), Ramsey Canyon leopard analysis evaluates the action’s effects to distribution of spikedace and loach frog (Rana subaquavocalis), Canelo the designated habitat’s contribution to minnow in areas not occupied at the Hills ladies’ tresses (Spiranthes conservation. Therefore, the difference time of listing. Expansion within the delitescens); bald eagle, (Haliaeetus in outcomes of these two analyses geographic historic range of the species leucocephalus); jaguar (Panthera onca); represents the regulatory benefit of is important to the conservation of the spikedace with critical habitat; Gila critical habitat. This will, in many species, as identified in the ruleset for topminnow (Poeciliopsis occidentalis instances, lead to different results and ‘‘2b’’ areas. occidentalis), and desert pupfish different regulatory requirements. Thus, The potential impacts of groundwater (Cyprinodon macularius). With respect critical habitat designations may pumping by Fort Huachuca on several to the critical habitat designation, Fort provide greater benefits to the recovery threatened and endangered species are Huachuca notes they already completely of a species than would listing alone. described in detail in a 2007 section 7 offset groundwater pumping associated However, for some species, and in biological opinion (Service 2007; with on-post groundwater use, and are some locations, the outcome of these required to mitigate an additional 1,000 analyses will be similar, because effects Service 2002b and Service 2002c). This acre feet of groundwater use due to off- to habitat will often also result in effects opinion also details the actions taken by post groundwater usage at an estimated to the species. In the case of spikedace Fort Huachuca to minimize the effects cost of $20,000 to $40,000 per acre foot, and loach minnow in the San Pedro of their groundwater pumping. These or a total cost of $20 million to $40 River, consultation would occur strictly actions are numerous, and include million. Fort Huachuca further notes based on critical habitat as the species fixture upgrades (i.e., replacement of that the completed biological opinion are absent from this stream. Therefore, high water use plumbing fixtures with allows for up to 16,000 employees, this principal benefit of section 7 low water use fixtures), facility which limits their flexibility with consultation under the Act would be a infrastructure removal/consolidation respect to DOD’s needs to ‘‘* * * bring benefit of inclusion of the San Pedro (i.e., demolition of facilities), aggressive additional high priority, high visibility within the designation. BLM manages leak detection and repair, water missions to the fort (Fort Huachuca 50.6 km (31.4 mi), or 84 percent, of the conservation education, and 2011, p. 11)’’. They conclude that any land along the portion of the San Pedro implementation of a strict landscape additional restrictions placed on them River included within the designation, watering policy in military family have a strong probability of impacting so actions taken by them or on their housing. Fort Huachuca has also the missions currently present at Fort lands would likely result in section 7 undertaken groundwater recharge, Huachuca as well as DOD’s flexibility to consultation for any potential effects to acquisition of conservation easements to respond to changing requirements in critical habitat for spikedace or loach reduce future developments, mitigation theater and to protect the lives of minnow. for increases in personnel, participation military personnel (Fort Huachuca 2011, An additional benefit of including in and providing funding to the Upper p. 11). portions of the San Pedro River within San Pedro Partnership (USPP), and In a 2011 court decision (See Center the critical habitat designation for development of a strategic plan for for Biological Diversity et al. v. Salazar spikedace and loach minnow is that it water mitigation. et al. 4:07-cv-00484–AWT), United provides an additional 59.8 km (37.2 According to the biological opinion, States District Court, District of mi) of critical habitat within the costs to Fort Huachuca for this work are Arizona), the completed biological southeastern portion of their historical considerable. As noted in the biological opinion was deemed inadequate in range. The San Pedro River has opinion, Fort Huachuca typically addressing recovery of the Huachuca collection records for both species that invests $3.3 to $5.5 million per year in water umbel and the Southwestern begins in the 1840s and spans more than environmental, natural resources, and willow flycatcher, among other factors, 120 years. We categorized the San Pedro cultural projects. From 1997 through and Fort Huachuca will be required to River as a 2a stream in this rule, as it 2006, Fort Huachuca spent over $42 reconsult with the Service. was not identified as occupied at listing million in those categories exclusive of by either species, but has the features the $12 million spent for large Benefits of Inclusion—Fort Huachuca essential to the conservation for construction (effluent recharge and The principal benefit of including an spikedace and loach minnow and would extension of an effluent distribution area in a critical habitat designation is serve as an extension of occupied system) projects. The biological opinion the requirement for Federal agencies to habitat in Aravaipa Creek within Unit 3. notes that recently, funding emphasis ensure actions they fund, authorize, or Public education is often cited as has shifted toward management of carry out are not likely to result in the another possible benefit of including threatened and endangered species, and destruction or adverse modification of lands in critical habitat as it may help Fort Huachuca spent an estimated any designated critical habitat, the focus conservation efforts on areas of
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10859
high value for certain species. A critical anticipates that number could rise to lands in final critical habitat for habitat designation can inform the 16,000. They note that any additional spikedace and loach minnow. public about the Act, listed species, restrictions to water usage could affect Exclusion Will Not Result in Extinction their habitat needs, and conservation. their ability to increase staffing when of the Species—Fort Huachuca Only 9.2 km (5.7 mi), or 16 percent, of needed, or carry out missions critical to the portion of the San Pedro within the national security. Further, because of The San Pedro River is not currently designation are on private lands; the unique conditions within the occupied by either spikedace or loach however, because this area is indirectly BSETR, these missions could not be minnow. Loach minnow were last tied to Fort Huachuca, and Fort moved to another location as no other detected in 1961, and spikedace in 1966 Huachuca can have a staff of up to areas within the United States currently (ASU 2002). The San Pedro represents 16,000 individuals and interacts with have those conditions. With the recent a portion of the streams included within other management groups through the litigation on the existing biological Unit 3, which also includes Aravaipa Upper San Pedro Partnership, the opinion, and the requirement that Creek, Hot Springs Canyon, Redfield educational benefits may be expanded consultation be completed again, the Canyon, and Bass Canyon. As a result, beyond private landowners immediately Fort believes there is both uncertainty as this portion of the species range would adjacent to the stream. to what measures may be required of not be void of protected habitat. Finally, The designation of critical habitat them through section 7 consultation to the Service has identified eight units for may strengthen or reinforce some resolve the court’s concern, as well as designation as critical habitat, and the Federal laws, such as NEPA or the Clean strong evidence that third party San Pedro River represents a portion of Water Act. These laws analyze the litigation may influence actions the habitat within one of eight units. potential for projects to significantly required of them in the future. Because the San Pedro is unoccupied, affect the environment. Critical habitat represents approximately eight percent may signal the presence of sensitive Weighing Benefits of Exclusion Against of the overall proposed critical habitat habitat that could otherwise be missed Benefits of Inclusion—Fort Huachuca designation for either spikedace or loach in the review process for these other We reviewed and evaluated the minnow, does not represent the only environmental law. Because multiple benefits of inclusion and the benefits of critical habitat designated within Unit 3, listed species are known to occur along exclusion of the 59.8-km (37.2-mi) and will receive some protection the San Pedro River, the overall impact stretch of the San Pedro River for which through section 7 consultation for other of the designation in strengthening or Fort Huachuca has requested exclusion species, we conclude that excluding the reinforcing other laws is somewhat from these designations of critical San Pedro River will not result in diminished as there have been and habitat. Since this portion of the San extinction of the species. Therefore, the would continue to be awareness for Pedro River is unoccupied, a benefit of Secretary is exercising his discretion to other species listed under the Act that inclusion of this portion of the San exclude the 59.8-km (37.2-mi) stretch of would lead to conservation measures. Pedro River would be the requirement the San Pedro River from the of section 7 consultation under the Benefits of Exclusion—Fort Huachuca designations of critical habitat for adverse modification standard. spikedace and loach minnow. As noted above, there are benefits to However, we believe there would be spikedace and loach minnow from minimal additional regulatory and Exclusions Based on Other Relevant having this portion of the San Pedro educational benefits from a designation Impacts River protected as critical habitat for the of critical habitat for spikedace and Under section 4(b)(2) of the Act, we two species, particularly given that it is loach minnow because multiple listed consider any other relevant impacts, in currently unoccupied by either species. species are known to occur along the addition to economic impacts and However, the minimal conservation and San Pedro River and are currently being impacts on national security. We regulatory benefits gained through managed. consider a number of factors including inclusion of this area as critical habitat Because of the unique conditions whether the landowners have developed for spikedace and loach minnow are at within the BSETR, the critical national any HCPs or other management plans least partially offset by the fact that this security missions could not be moved to for the area, or whether there are area is already managed for a number of another location as no other areas conservation partnerships that would be other species under which protections within the United States currently have encouraged by designation of, or would be in place, including those those conditions. Therefore, exclusion exclusion from, critical habitat. In covered by the biological opinion, as of these lands from critical habitat will addition, we look at any tribal issues, discussed above. allow Fort Huachuca to continue their and consider the government-to- According to Fort Huachuca’s critical national security missions. government relationship of the United comment letter, inclusion of the San Therefore, in consideration of the States with tribal entities. We also Pedro as critical habitat for spikedace potential impact to national security, we consider any social impacts that might and loach minnow has a high determined the significant benefits of occur because of the designations. probability of negative impacts to exclusion outweigh the benefits of missions that are essential to national inclusion in the critical habitat Land and Resource Management Plans, security. While actions taken by Fort designation. Conservation Plans, or Agreements Huachuca are already analyzed for In summary, we find that excluding Based on Conservation Partnerships effects to other species, Fort Huachuca this 59.8-km (37.2-mi) stretch of the San We consider a current land states that, should critical habitat be Pedro River from this final critical management or conservation plan (HCPs designated in the San Pedro River, habitat will preserve Fort Huachuca’s as well as other types) to provide additional restrictions may result for ability to continue with their missions adequate management or protection if it protection of spikedace and loach critical to national security. This benefit meets the following criteria: minnow critical habitat, particularly as of continuing critical national security (1) The plan is complete and provides both species require running streams for missions are significant and outweigh the same or better level of protection habitat. Fort Huachuca currently has a the minimal additional regulatory and from adverse modification or staff of approximately 13,100, but educational benefits of including these destruction than that provided through
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10860 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
a consultation under section 7 of the government-to-government contaminants from overland flow, Act; consultations with tribes. stabilizes banks and reduces erosion (2) There is a reasonable expectation Yavapai-Apache Nation—The and siltation, and maintains that the conservation management Yavapai-Apache Nation submitted a temperatures by preserving vegetation strategies and actions will be comment letter during the first comment that provides shading of the stream implemented for the foreseeable future, period in 2010 in which they discuss channel (PCEs 1 and 2). In addition, the based on past practices, written measures in place to protect the Verde Resolution resolved that there would be guidance, or regulations; and River and its surrounding habitat on the no stocking of nonnative fishes (PCE 5), (3) The plan provides conservation lands of the Yavapai-Apache Nation. and that livestock, grazing, construction, strategies and measures consistent with According to these comments, the and other activities would be minimized currently accepted principles of Yavapai-Apache Nation is to assure that no net loss of habitat for conservation biology. implementing conservation measures spikedace and loach minnow occurs We received information and designed to preserve the Verde River and that no permanent modification of management plans from four different and its riparian corridor for the benefit habitat essential to spikedace and loach entities, including the Yavapai-Apache of all species, and in order to protect the minnow is allowed. The Resolution also Nation, White Mountain Apache Tribe, traditional and cultural practices of the details a commitment by the Yavapai- the San Carlos Apache Tribe, and from Nation. The Yavapai-Apache Nation’s Apache Nation to continue to cooperate FMC Corporation. We have identified continued efforts to work cooperatively with the Service on a variety of issues, the benefits of inclusion and the with the Service to protect federally including habitat monitoring and benefits of exclusion for each of these listed species have been demonstrated surveys. management plans, and we carefully through adoption of a Southwestern In their 2010 comment letter, the weighed the two sides to evaluate Willow Flycatcher Management Plan, Yavapai-Apache Nation notes that, whether the benefits of exclusion dated May 25, 2005, which details under the Resolution, they have taken outweigh those of inclusion. objectives for protection of the riparian additional steps to protect the Verde Tribal Exclusions community on Tribal lands. The River and its habitat. Specifically, they Yavapai-Apache Nation notes that the note that the Yavapai-Apache Nation’s In accordance with the Secretarial habitat protected under the Tribal Housing Department and Order 3206, ‘‘American Indian Tribal Southwestern Willow Flycatcher Planning Committee do not allow Rights, Federal-Tribal Trust Management Plan overlaps those areas development within the riparian Responsibilities, and the Endangered proposed as critical habitat for conservation corridor. The Yavapai- Species Act’’ (June 5, 1997); the spikedace. Because the existing Apache Nation has also taken steps to President’s Memorandum of April 29, Management Plan requires that the educate Tribal members on the 1994, ‘‘Government-to-Government habitat of the Verde River be protected importance of protecting and preserving Relations with Native American Tribal and preserved for the flycatcher, its the Verde River and its riparian habitat Governments’’ (59 FR 22951); protections similarly extend to the for future generations. The Yavapai- President’s Memorandum of November spikedace. Apache Nation further notes that they 5, 2009, ‘‘Tribal Consultation’’ (74 FR More specifically to spikedace and have pursued and secured grants that 57881); Executive Order 13175; and the loach minnow and their habitat, the will enable them to examine ways to relevant provision of the Departmental Yavapai-Apache Nation adopted Tribal protect Verde River water quality and Manual of the Department of the Interior Resolution 46–2006. Resolution 46– remove invasive plant species from the (512 DM 2), we believe that fish, 2006, completed in June of 2006, details riparian corridor. The Yavapai-Apache wildlife, and other natural resources on land use restrictions and management Nation is examining how possible tribal lands are more appropriately plan goals along the Verde River restoration activities and instream flow managed under tribal authorities, ‘‘* * * in order to continue to protect regimes could improve the health of policies, and programs than through the traditional and cultural practices of riparian habitat within the Verde River Federal regulation wherever possible the Nation, and to preserve those PCEs and Beaver Creek to provide for and practicable. In most cases, found within the riparian corridor of the restoration of native plants. Finally, the designation of tribal lands as critical Verde River which are essential to Yavapai-Apache Nation notes in their habitat provides very little additional native wildlife species, including comment letter that they are continuing conservation benefit to endangered or species listed as endangered or to improve their working relationship threatened species. Conversely, such threatened by the federal government with the Service through improved designation is often viewed by tribes as under the Endangered Species Act, such coordination. These comments an unwarranted and unwanted intrusion as the federally listed spikedace and demonstrate that the Yavapai-Apache into tribal self-governance, and may loach minnow (Yavapai-Apache Nation Nation has begun and continues to negatively impact a positive 2006).’’ implement the Resolution, and provides government-to-government relationship The Resolution provides for the Service with the assurance that between the Service and tribal conservation of the PCEs for spikedace implementation of the Resolution is governments essential to achieving a and loach minnow both through likely to continue. mutual goal of successfully managing conservation of existing habitat, and The Yavapai-Apache Nation notes ecosystems upon which endangered and through restriction of some activities. that a critical habitat designation on threatened species depend. When The resolution established a riparian their lands would have adverse impacts conducting our analysis under section conservation corridor along both sides to the Yavapai-Apache Nation and its 4(b)(2) of the Act, we consider our of the Verde River that encompasses the ability to exist within its permanent existing and future partnerships with critical habitat designations. Protection Tribal homeland. Specifically, they tribes and existing conservation actions and conservation of the riparian believe these impacts will include that tribes have implemented or are corridor minimizes disturbance in the interfering with the sovereign right of currently implementing. We also take active channel, protects vegetation, the Yavapai-Apache Nation to protect into consideration conservation actions which in turn can act as a buffer strip and control its own resources; that are planned as a result of ongoing and filter out sediment and undermining the positive and effective
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10861
government-to-government relationship Public education is often another comments submitted during the public between the Yavapai-Apache Nation possible benefit of including lands in comment periods on this proposed rule, and the Service; hampering or confusing critical habitat as it may help focus tribes have stated that designation of the Yavapai-Apache Nation’s own long- conservation efforts on areas of high critical habitat would negatively impact standing protections for the Verde River value for certain species. The Service government-to-government relations. and its habitat; imposing an additional will continue ongoing coordination with In the case of the critical habitat and disproportionate impact on the the Yavapai-Apache Nation. However, designations for spikedace and loach Yavapai-Apache Nation’s overall land we note that the Yavapai-Apache Nation minnow, the Yavapai-Apache Nation base, and adding additional economic has already undertaken education of has indicated that designation on the and administrative costs, and Tribal members, as noted in their Yavapai-Apache Reservation is not potentially personnel burdens to the comment letter in which they indicate necessary to protect the habitat as the Yavapai-Apache Nation in order to meet that they have taken steps to educate Nation already protects the riparian increased section 7 consultations and Tribal members on the importance of areas under its jurisdiction. They further other requirements under the Act. A protecting and preserving the Verde note that such a designation is not only Federal nexus exists for land use River and its riparian habitat for future unwarranted but would be disruptive of decisions or other tribal actions which generations. the Nation’s exercise of its own require approval by the Bureau of Finally, the designation of critical sovereign authority over its Tribal Indian Affairs due the fact that the habitat may strengthen or reinforce resources and lands. In addition, they United States holds the Yavapai Apache some Federal laws, such as NEPA or the state that the designation of critical land in trust, A federal nexus could also Clean Water Act. These laws analyze the habitat on Yavapai-Apache Nation lands exists if a tribal action utilizes other potential for projects to significantly would interfere with their ability to Federal funding, or requires a Federal affect the environment. Critical habitat preserve themselves in their Tribal permit for their actions. The Service may signal the presence of sensitive homeland, and that designation of respects these concerns. habitat that could otherwise be missed critical habitat on the Reservation is in the review process for these other contrary to the United States’ Benefits of Inclusion—Yavapai-Apache environmental laws. However, the Nation obligations under the Apache Treaty of Yavapai-Apache Nation is fully aware of 1852 and to the Constitution of the Those portions of the Verde River on the sensitive habitat on their lands. Yavapai-Apache Nation, which was lands belonging to the Yavapai-Apache approved by the Secretary of the Nation within the critical habitat Benefits of Exclusion—Yavapai-Apache Interior. Finally, they note that designations for spikedace and loach Nation designation of critical habitat on their minnow constitute part of a continuous Under Secretarial Order 3206, lands would lead to restrictions and/or stream habitat for the two species. American Indian Tribal Rights, Federal- other circumstances that would violate Spikedace records exist for both the Tribal Trust Responsibilities and the Verde River and Beaver Creek, although Endangered Species Act, we recognize the trust responsibility of the United they are few in number and only as that we must carry out our States to the Yavapai-Apache Nation, as recent as 1950. We categorized the responsibilities under the Act in a well as the letter and spirit of numerous Verde River as a 1a stream for spikedace manner that harmonizes the Federal Secretarial Orders and Presidential in the rule, as it was identified as trust responsibility to tribes and tribal memoranda, as well as the Department occupied at listing, and supports one or sovereignty while striving to ensure that of the Interior’s own manual. The more of the PCEs for the two species. tribes do not bear a disproportionate Yavapai-Apache Nation notes in their We categorized the Verde River as a 2b burden for the conservation of listed comment letter that they will use their stream for loach minnow, as it was not species, so as to avoid or minimize the own regulatory structure, including known to be occupied at listing. potential for conflict and confrontation. Resolution 46–2006, in protecting the The principal benefit of including an In accordance with the Presidential Verde River and its riparian corridor. area in a critical habitat designation is memorandums of April 29, 1994, and They note they have an ongoing the requirement for Federal agencies to November 9, 2009, we believe that, to commitment to cooperate with the ensure actions they fund, authorize, or the maximum extent possible, tribes are Service on a wide variety of matters, carry out are not likely to result in the the appropriate governmental entities to including habitat monitoring, surveys, destruction or adverse modification of manage their lands and tribal trust and future activities within the riparian any designated critical habitat, the resources, and that we are responsible corridor that may have the potential to regulatory standard of section 7(a)(2) of for strengthening government-to- adversely impact habitat essential to the the Act under which consultation is government relationships with tribes. conservation and recovery of federally completed. The analysis of effects of a Federal regulation through critical listed species such as the spikedace and proposed project on critical habitat is habitat designation will adversely affect loach minnow. separate and different from that of the the tribal working relationships we now We believe there are significant effects of a proposed project on the have and which we are strengthening benefits from exclusion of the portion of species itself. We do consider the Verde throughout the United States. the Verde River on the Yavapai-Apache River occupied, albeit at low numbers. Maintaining positive working Nation’s lands. These benefits include: Section 7 consultation would therefore relationships with tribes is the key to (1) Continuing and strengthening of require both a jeopardy and an adverse implementing natural resource our ongoing coordination with the Tribe modification analysis. The draft and programs of mutual interest, including to promote conservation of spikedace final economic analyses identified a habitat conservation planning efforts. In and loach minnow and their habitat, as future housing project, as well as light of the above-mentioned Secretarial well as other federally listed species; wastewater treatment facilities and Order 3206, and because of their and water development projects, all with sovereignty status, critical habitat (2) Allowing continued meaningful potential ties to Federal funding or designation is typically viewed by tribes collaboration and cooperation in permitting, that could potentially as an unwarranted and unwanted working toward recovering these require section 7 consultation. intrusion into tribal self-governance. In species, including conservation actions
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10862 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
developed by a partnership with the Beaver Creek/Wet Beaver Creek Game and Fish Code which regulates Tribe that might not otherwise occur. outweigh the benefits of including this fishing, camping, hunting, and other Because the Yavapai-Apache Nation area. recreational activities. The White is the entity that carries out protective Mountain Apache Tribe notes that large Exclusion Will Not Result in Extinction regulations on Tribal trust reservation portions of the Reservation continue to of the Species—Yavapai-Apache Nation land, and we have a working be closed to recreational use. relationship with them, we believe While we believe these stream The White Mountain Apache Tribe exclusion of these lands will yield a segments are important to the notes that they also have a process to significant partnership benefit. There conservation of the species and review and approve all development has been a substantial amount of currently support one or more PCEs, any activities on the Reservation. The Tribal coordination with the Yavapai-Apache direct impacts to the fish themselves Plan and Project Review Panel, among Nation on spikedace and loach minnow, due to exclusion of these areas is other things, investigates impacts to other federally listed species, and water unlikely due to the low numbers of fish sensitive habitats and species, and management issues on the Verde River. remaining in the Verde River. The provides for the implementation of In their comment letter, the Yavapai- protective measures already established mitigation measures to avoid adverse Apache Nation has noted that we have by the Yavapai-Apache Nation will impacts to those resources. Finally, the established a positive and effective ensure that habitat remains in these White Mountain Apache Tribe noted in government-to-government relationship streams for spikedace and loach their comment letter that Tribal fish with them which in and of itself serves minnow and that conservation of the biologists and the sensitive species to protect federally listed species and two species and their habitat will not be coordinator monitor any land operations their habitat. We will continue to work precluded in this area. We therefore or proposed timber sales along the East cooperatively with the Yavapai-Apache believe that excluding those portions of Fork White River, and monitor river Nation on efforts to conserve spikedace the Verde River and Beaver/Wet Beaver levels, so that if river flows fall below and loach minnow. Therefore, Creek on Yavapai-Apache Nation lands a certain level, irrigation ditch gates that excluding these lands from critical will not result in extinction of the serve Tribal member farmlands are habitat would provide the benefit of species. Therefore, the Secretary is closed until such time as stream levels maintaining and strengthening our exercising his discretion to exclude the are restored. existing conservation partnership. 1.2 km (0.8 mi) of the Verde River and The White Mountain Apache Tribe 0.2 km (0.1 mi) of Beaver Creek/Wet has a full-time Sensitive Species Weighing Benefits of Exclusion Against Beaver Creek on Yavapai-Apache Nation Coordinator and Technician who Benefits of Inclusion—Yavapai-Apache lands from the designations of critical coordinate and participate in protection, Nation habitat for spikedace and loach research, management, and We reviewed and evaluated the minnow. administrative activities involving benefits of inclusion and the benefits of White Mountain Apache Tribe—The Federally listed sensitive species on the exclusion of those portions of the Verde White Mountain Apache Tribe provided Reservation, and these individuals are River on the Yavapai-Apache Nation. comments during the first comment responsible for overseeing the The Yavapai-Apache Nation is period in 2010, and incorporated their implementation and ongoing educating Tribal members on the 2000 Loach Minnow Management Plan development of the Loach Minnow importance of conservation of the (White Mountain Apache Tribe 2000) as Management Plan. The goals of the riparian corridor along the Verde River. part of their comments. The Loach Loach Minnow Management Plan are to Further, they are applying restrictions Minnow Management Plan identifies determine and quantify the full extent of for building within the 100-year several Tribal regulation and loach minnow distribution on the floodplain. The Yavapai-Apache Nation management efforts they believe to be Reservation; continue to develop and has indicated they will continue to use beneficial to loach minnow, including strengthen management actions that their existing regulatory structure in Resolution #89–149, which designates effectively address species threats and regulating development in this area to streams and riparian zones as Sensitive that provide adequate protection for, protect spikedace and loach minnow Fish and Wildlife areas, requiring that and sustainability of, existing and their habitat. Further, exclusion of authorized programs ensure these zones Reservation loach minnow populations these lands from critical habitat will remain productive for fish and wildlife. and habitats; complete the development help preserve and strengthen the The White Mountain Apache Tribe and ongoing maintenance of Tribal data, conservation partnership we have additionally adopted a Water Quality information, and mapping for this and developed with the Yavapai-Apache Protection Ordinance in 1999 to other native fish species; and evaluate Nation. ‘‘promote the health of Tribal waters and refine the application of Plan We believe that the Verde River and the people, plants and wildlife that management practices, over time, in a supports one or more of the PCEs for depend on them through holistic manner that promotes the practical and spikedace and loach minnow. However, management and sustainable use.’’ effective long-term conservation of all we believe the benefits to be gained The White Mountain Apache Tribe Reservation native fish populations and through the Yavapai-Apache Nation’s has also adopted Livestock and Range assemblages, including those of loach Tribal Resolution exceed those that Management Plans, which regulate their minnow (White Mountain Apache Tribe would be gained through a critical stocking, rotation, and management 2000). habitat designation. Based on the practices for their Cattle Associations. The Loach Minnow Management Plan information provided by the Yavapai- According to their comments, their plan provides an action and strategy outline Apache Nation in their comment letter is aimed at ‘‘maintaining or improving with eight steps that provide additional and Tribal resolution, the concerns a stable and desired vegetative detail on how they will be carried out. outlined by the Yavapai-Apache Nation, community, improving water quality The eight steps and corresponding PCEs and the protective measures already in and quantity, and reducing soil erosion’’ that they may affect include: place, we conclude that the benefits of while providing for livestock. The • Determining the distribution of excluding the 1.2 km (0.8 mi) of the White Mountain Apache Tribe has also loach minnow within Reservation Verde River and 0.2 km (0.1 mi) of established Recreation Regulations and boundaries;
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10863
• Continuing routine surveys and comments received from peer reviewers without critical habitat designation. In expanding efforts to include habitat note that loach minnow in the White addition, Tribal fisheries biologists assessment; continuing to monitor and River are likely highly divergent and participate in review of development refine existing management treatments deserving of management as a distinct projects and timber sales, and can work involving irrigation uses and activities unit. The length of perennial flows with to educate project proponents of the to develop adequate mitigation against suitable habitat parameters, historical species’ needs. related threats; occupancy, and potential current Finally, the designation of critical • Continuing to apply and refine occupancy make this area important to habitat may strengthen or reinforce existing monitoring and mitigation the conservation of the loach minnow. some Federal laws, such as NEPA or the protocols involving low water and/or Both the White River and East Fork Clean Water Act. These laws analyze the drought conditions to provide White River were classified as 1a potential for projects to significantly sustainable protection of loach minnow streams in this designation, indicating affect the environment. Critical habitat populations (PCEs 1 and 4); they were known to be occupied at may signal the presence of sensitive • Development of contingency plans listing. Both are considered currently habitat that could otherwise be missed with responses to potential catastrophic occupied by loach minnow. in the review process for these other events; evaluating and refining existing The principal benefit of including an environmental laws. However, because nonnative fish management and area in a critical habitat designation is the White Mountain Apache Tribe is mitigation practices to provide the requirement for Federal agencies to fully aware of the sensitive habitat on sustainable protection of loach minnow ensure actions they fund, authorize, or their lands, designation of critical populations and habitat (PCE 1); and carry out are not likely to result in the habitat is not necessary to heighten • Organizing data collection, destruction or adverse modification of awareness when applying these laws. handling, storage, and maintenance any designated critical habitat, the Benefits of Exclusion—White Mountain among partners; and continuing to regulatory standard of section 7(a)(2) of Apache Tribe monitor and refine existing Tribal Plan the Act under which consultation is and Project Review Process, completed. The analysis of effects of a Please see the discussion on management plans, and practices to proposed project on critical habitat is Secretarial Order 3206, American Indian meet loach minnow and native fish separate and different from that of the Tribal Rights, and Federal-Tribal Trust management goals. effects of a proposed project on the Responsibilities and the Endangered The Tribe additionally notes that they species itself. The analysis of effects of Species Act under ‘‘Benefits of have a long-standing history of a proposed project on critical habitat is Exclusion—Yavapai Apache Nation’’ conservation efforts involving listed separate and different from that of the above. As stated there, we seek to species and cooperation with the effects of a proposed project on the balance our responsibilities under the Service and other entities. These efforts species itself. The jeopardy analysis Act in a manner that harmonizes the include development of management evaluates the action’s impact to survival Federal trust responsibility to tribes and plans for Mexican spotted owls (Strix and recovery of the species, while the tribal sovereignty while ensuring that occidentalis lucida), Arizona willow destruction or adverse modification tribes do not bear a disproportionate (Salix arizonica), Apache trout analysis evaluates the action’s effects to burden for the conservation of listed (Oncorhynchus gilae apache), and the designated habitat’s contribution to species. We also note that, to the Mexican gray wolf (Canis lupus baileyi). conservation. Therefore, the difference maximum extent possible, tribes are the Their comment letter notes additional in outcomes of these two analyses appropriate governmental entities to conservation efforts, incorporated represents the regulatory benefit of manage their lands and tribal trust herein by reference, and the recognition critical habitat. This will, in many resources, and we are responsible for that they have received for their instances, lead to different results and strengthening government-to- conservation ethic. different regulatory requirements. Thus, government relationships with tribes. critical habitat designations may We further believe that Federal Benefits of Inclusion—White Mountain provide greater benefits to the recovery regulation through critical habitat Apache Tribe of a species than would listing alone. designation can adversely affect the Those portions of the mainstem White However, for some species, and in some tribal working relationships we now River and the East Fork White River on locations, the outcome of these analyses have and which we are strengthening lands belonging to the White Mountain will be similar, because effects to habitat throughout the United States. Apache and within the critical habitat will often also result in effects to the In the case of this critical habitat designations for loach minnow are part species. Lands being evaluated for designation for loach minnow, the of a continuous stream habitat for the exclusion in this unit are occupied by White Mountain Apache Tribe states in species. Loach minnow records exist for loach minnow and are subject to their comment letter that Federal both streams. We categorized the consultation requirements of the Act. common law embodied in the decisions mainstem White River and the East Fork Public education is often another of the U.S. Supreme Court, the Indian White River as 1a streams for loach possible benefit of including lands in Reorganization Act (IRA), the Tribe’s minnow in the proposed rule, as they critical habitat as it may help focus IRA Constitution, and Congressional were identified as occupied at listing, conservation efforts on areas of high policies and laws established for the and supports one or more of the PCEs value for certain species. The Service protection of Indian natural resources for the species. Neither stream is known will continue ongoing coordination with and forests confirm their retained or to have been occupied by spikedace. the White Mountain Apache Tribe for residual inherent sovereign authority to Those portions of the mainstem White exchange of relevant information. promulgate regulations and River and East Fork White River on However, we note that the White management plans to protect and lands belonging to the White Mountain Mountain Apache Tribe has developed manage Tribal trust lands, wildlife, Apache Tribe that are within the critical a management plan for loach minnow, forests and other natural resources. habitat designation for loach minnow and currently employs a Sensitive They cite numerous authorities that may support a genetically distinct Species Coordinator through which confirm their authority over wildlife population of loach minnow, and education of Tribal members can occur and other natural resources existing
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10864 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
within their ancestral lands and to However, for some species, and in some San Carlos Apache Tribe—The San govern both their members and their locations, the outcome of these analyses Carlos Apache Tribe submitted territory and retain sovereign interests will be similar, because effects to habitat comments during the second comment in activities that occur on land that they will often also result in effects to the period. Within their comment letter the own and control. species. Lands being evaluated for Tribe notes that Traditional Ecological The White Mountain Apache Tribe exclusion in this unit are occupied by Knowledge (TEK) is ‘‘* * * a key and states in their comment letter that the both species and are subject to fundamental principle of species benefits of excluding White Mountain consultation requirements of the Act. conservation and land management on Apache Tribal lands from critical The White Mountain Apache Tribe the Reservation,’’ and that TEK uses an habitat will continue to: ‘‘(1) Advance clearly explained their sovereign ecosystem-based approach to land and the Service’s Federal Indian Trust authority to promulgate regulations and species management and preservation. obligations, deference for tribes to management plans to protect and The Tribe notes that use of TEK by develop and implement tribal manage Tribal trust lands, wildlife, Tribal government, Tribal leaders, conservation and natural resources forests, and other natural resources, and Tribal elders, and the Apache people management plans for the lands and cited numerous authorities that confirm results in incorporation of adaptive resources, which includes the Loach their authority over wildlife and other management practices for land and minnow and other federal trust species; natural resources existing within their species management and preservation. (2) maintain the effective working ancestral lands. In addition, they have The Tribe also notes that jeopardizing relationship to promote the shown a commitment to other federally the existence of any species would be conservation of the Loach minnow and listed species, such as the Mexican counter to their beliefs, and that TEK their habitats; (3) perpetuate a spotted owl (Strix occidentalis lucida) was critical in the development of the continued and meaningful collaboration and the Arizona willow (Salix 2005 Fishery Management Plan (FMP). and cooperation on the Loach minnow arizonica). In their comment letter, the Tribe management and other resources of Based on our working relationship notes that the FMP does not specifically interest to the federal government; and with the Tribe, their demonstration of address loach minnow, but that both (4) enhance the provision of conservation through past efforts, and loach minnow and spikedace benefit conservation benefits to riparian the protective provisions of the Loach from management actions in the FMP. ecosystems and a host of species, Minnow Management Plan, we The FMP was adopted in 2005, and has including the Loach minnow and their conclude that the benefits of excluding been actively implemented since that habitat, that might not otherwise occur.’’ the 29.0 km (18.0 mi) of the mainstem time on Tribal lands. Under the FMP, We agree with the White Mountain White River and 17.2 km (10.7 mi) of one management step taken to benefit Apache Tribe’s explanation regarding East Fork White River outweigh the spikedace and loach minnow is that the the benefits of exclusion. benefits of including this area. Tribe no longer stocks nonnative fishes in the Bonita Creek or Eagle Creek Weighing Benefits of Exclusion Against Exclusion Will Not Result in Extinction drainages (PCE 5). In addition, the Tribe Benefits of Inclusion—White Mountain of the Species—White Mountain Apache is working with both the Service and the Apache Tribe Tribe AGFD to complete additional survey The principal benefit of including an The current occupancy of streams on work on Eagle Creek. The Tribe is area in a critical habitat designation is the White Mountain Apache Tribe are currently discussing captive the requirement for Federal agencies to unknown due to the proprietary nature propagation of any spikedace or loach ensure actions they fund, authorize, or of Tribal survey information. However, minnow found in Eagle Creek for future carry out are not likely to result in the the information contained in the recovery purposes. destruction or adverse modification of management plan, as well as The Tribe notes that various any designated critical habitat, the commitments to management through departments are taking actions that regulatory standard of section 7(a)(2) of ordinances, codes, and the hiring of a benefit the species. The Recreation and the Act under which consultation is sensitive species coordinator indicate Wildlife Department consults with other completed. The analysis of effects of a that the White Mountain Apache Tribe Tribal departments interested in proposed project on critical habitat is has committed to management of loach restoration activities and, using the separate and different from that of the minnow on their Tribal lands. While we FMP, evaluates impacts on spikedace effects of a proposed project on the continue to believe these stream and loach minnow and their habitats species itself. The analysis of effects of segments are important to the and determines how to prevent or a proposed project on critical habitat is conservation of the species and mitigate any impacts (PCE 1). The Soil separate and different from that of the currently support one or more PCEs, we and Moisture Conservation Department effects of a proposed project on the believe that commitments made by the is developing a project for the removal species itself. The jeopardy analysis White Mountain Apache Tribe in their of nonnative and invasive salt cedar and evaluates the action’s impact to survival management plan and comment letter planting of native species, and has and recovery of the species, while the ensure that habitat remains in these worked with the Recreational and destruction or adverse modification streams for loach minnow. We therefore Wildlife Department in applying the analysis evaluates the action’s effects to believe that excluding those portions of FMP to the proposal. The Recreation the designated habitat’s contribution to the mainstem White River and East Fork and Wildlife Department also surveys conservation. Therefore, the difference White River will not result in extinction all proposed home and construction in outcomes of these two analyses of the species. Therefore, the Secretary projects, and consults with the Tribal represents the regulatory benefit of is exercising his discretion to exclude attorneys, providing information from critical habitat. This will, in many the 29.0 km (18.0 mi) of the mainstem the FMP for use in negotiating water instances, lead to different results and White River and 17.2 km (10.7 mi) of exchanges and in determining different regulatory requirements. Thus, East Fork White River on White mitigation measures for projects that critical habitat designations may Mountain Apache Tribal lands from the may impact listed species or their provide greater benefits to the recovery designations of critical habitat for habitat. Consultation with the of a species than would listing alone. spikedace and loach minnow. Recreation and Wildlife Department is
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10865
for prescribed burns or thinning, and destruction or adverse modification of strategic plans and management plans. wildfire management actions are any designated critical habitat, the Through this team, Tribal members can measured to ensure no net loss or regulatory standard of section 7(a)(2) of be informed of steps necessary to permanent modification to spikedace the Act under which consultation is conservation of spikedace and loach and loach minnow habitat. The Tribe completed. A Federal nexus may exist minnow and their habitat. has also built fencing to exclude for tribal projects such as land leases or The designation of critical habitat livestock grazing in riparian areas water development through either the may strengthen or reinforce some containing native fish or their habitats Bureau of Indian Affairs or the U.S. Federal laws, such as NEPA or the Clean (PCE 1). Army Corps of Engineers. The analysis Water Act. These laws analyze the The Tribe’s comment letter of effects of a proposed project on potential for projects to significantly incorporated information from their critical habitat is separate and different affect the environment. Critical habitat FMP. The FMP has several goals from that of the effects of a proposed may signal the presence of sensitive relevant to native fish management, project on the species itself. The habitat that could otherwise be missed including development and analysis of effects of a proposed project in the review process for these other implementation of integrated, on critical habitat is separate and environmental law. However, because watershed-based approaches to fishery different from that of the effects of a the San Carlos Apache Tribe is fully resource management; conserving, proposed project on the species itself. aware of the sensitive species and enhancing, and maintaining existing The jeopardy analysis evaluates the habitat on their lands, designation of native fish populations and their action’s impact to survival and recovery critical habitat is not necessary to habitats as part of the natural diversity of the species, while the destruction or heighten awareness when applying of the Reservation and preventing, adverse modification analysis evaluates these laws. minimizing, or mitigating adverse the action’s effects to the designated Benefits of Exclusion—San Carlos impacts to all native fishes, especially habitat’s contribution to conservation. Apache Tribe threatened or endangered, and their Therefore, the difference in outcomes of Please see the discussion on habitats when consistent with the these two analyses represents the Secretarial Order 3206, American Indian Reservation as a permanent home and regulatory benefit of critical habitat. Tribal Rights, and Federal-Tribal Trust abiding place for San Carlos Apache This will, in many instances, lead to Responsibilities and the Endangered Tribal members; restoring extirpated different results and different regulatory Species Act under ‘‘Benefits of native fishes and degraded natural requirements. Thus, critical habitat Exclusion—Yavapai Apache Nation’’ habitats when appropriate and designations may provide greater above. As stated there, we seek to economically feasible; increasing Tribal benefits to the recovery of a species than awareness of native fish conservation balance our responsibilities under the would listing alone. However, for some Act in a manner that harmonizes the and values; and aggressively pursuing species, and in some locations, the funding adequate to support all Tribal Federal trust responsibility to tribes and outcome of these analyses will be tribal sovereignty while ensuring that conservation and management activities similar, because effects to habitat will for all native fishes and their habitats. tribes do not bear a disproportionate often also result in effects to the species. burden for the conservation of listed Each of the goals has identified Lands being evaluated for exclusion in objectives, actions, and evaluations, species. We also believe that, to the this unit are occupied by both species maximum extent possible, tribes are the which are incorporated here by and are subject to consultation reference (San Carlos Apache Tribe appropriate governmental entities to requirements of the Act. 2005, pp. 63–71). manage their lands and tribal trust Public education is often another resources, we are responsible for Benefits of Inclusion—San Carlos possible benefit of including lands in strengthening government-to- Apache Tribe critical habitat as it may help focus government relationships with tribes. Evidence of occupancy for Eagle conservation efforts on areas of high We also note that Federal regulation Creek was most recently found in 1989 value for certain species. The Service through critical habitat designation can for spikedace and in 1997 for loach will continue ongoing coordination with adversely affect the tribal working minnow in 1997 (ASU 2002). This area the San Carlos Apache Tribe for relationships we now have and which continues to support one or more of the exchange of relevant information. we are strengthening throughout the PCEs for the two species. The benefits However, we note that the San Carlos United States. of including this stream within the Apache Tribe, through their Recreation In the case of these critical habitat designations include protecting an area and Wildlife Department, surveys all designations for spikedace and loach with a long record of occupancy, and proposed home and construction minnow, the San Carlos Apache Tribe with perennial flows, as well as other projects, and provides information from notes in their comment letter that there PCEs. The length of perennial flows the FMP for use in negotiating water is a unique and distinctive relationship with suitable habitat parameters, exchanges and in determining between the United States and Indian historical occupancy, and current mitigation measures for projects that Tribes, as defined by the Constitution, occupancy by both spikedace and loach may impact listed species or their treaties, statutes, executive orders, and minnow make Eagle Creek an area habitat. The Recreation and Wildlife judicial decisions that differentiate important to the conservation of both Department therefore has an tribes from other entities that work with species. Eagle Creek was classified as a opportunity to provide information or are affected by the Federal 1a stream for both species for these regarding the species and their habitat government. They note that, in designations, indicating it was known to across the Reservation. In addition, per recognition of the responsibilities and be occupied at listing. their comment letter, the San Carlos the relationship between the United The principal benefit of including an Apache Tribe has adopted an States and Indian tribes, the Secretaries area in a critical habitat designation is interdisciplinary team approach to all of Commerce and the Interior issued the requirement for Federal agencies to natural resources matters. The team Secretarial Order 3206, which strives to ensure actions they fund, authorize, or works together to provide an ecosystem ensure that Indian Tribes do not bear a carry out are not likely to result in the management approach in developing disproportionate burden for the
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10866 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
conservation of listed species. They goals of conserving and enhancing integration of sustainable development conclude that, oftentimes, tribal lands native fishes on the Reservation; considerations within the corporate provide some of the better quality for restoring native fishes and their decision making process; seeking federally protected species because the habitats; and preventing, minimizing or continual improvement of our lands have not been subjected to the mitigating impacts to native fishes, environmental performance; and same development philosophies and among others. In addition, the Tribe has contributing to conservation of pressures as those on non-tribal lands, indicated that, through TEK, they biodiversity and integrated approaches and that tribal conservation practices, practice an ecosystem-based approach to land use planning. In addition, FCM such as those established by the FMP, to land-and-species based management adhere to the ICMM requirement to should be embraced, if not rewarded. and preservation. We conclude that the report its performance against the We believe there are significant benefits to be gained through the FMP, Global Reporting Initiative (GRI) G3 benefits from exclusion of the portion of coordination with the Service and metrics and identify/manage and report those portions of Eagle Creek on the San AGFD, discontinuance of sportfish against key sustainable development Carlos Apache Reservation. These stocking, and proactive measures such risks and opportunities. As part of this benefits include: as captive propagation all indicate that effort, FCX annually establishes (1) Continuing and strengthening of the San Carlos has committed to corporate Sustainable Development our ongoing coordination with the Tribe conservation measures that exceed Performance Targets and reports to promote conservation of spikedace benefits to be gained through a critical progress against those targets in its and loach minnow and their habitat, as habitat designation. We, therefore, annual Working Towards Sustainable well as other federally listed species; conclude that the benefits of excluding Development Report (See www.fcx.com). and the 27.5 km (16.1 mi) of Eagle Creek on In support of the company’s efforts in (2) Allowing continued meaningful Tribal lands of the San Carlos Apache implementing the ICMM Sustainable collaboration and cooperation in Tribe outweigh the benefits of including Development principles, FCX working toward recovering these this area. established a corporatewide species, including conservation actions Biodiversity Task Force in 2010. In Exclusion Will Not Result in Extinction that might not otherwise occur. accordance with these principles and of the Species—San Carlos Apache Because the San Carlos Apache Tribe reporting obligations, FMC has prepared Tribe is the entity that enforces protective these management plans to guide regulations on Tribal trust reservation The Service considers Eagle Creek to actions associated with the management land, and because we have a working be an occupied stream for both of its lands along portions of Eagle relationship with them, we believe spikedace and loach minnow. The Creek, the lower San Francisco River in exclusion of these lands will yield a information provided by the San Carlos Arizona, and portions of the Gila River, significant partnership benefit. As Apache Tribe regarding TEK and the Bear Creek, and Mangas Creek in New noted, the San Carlos Apache Tribe is FMP, as well as their discontinuance of Mexico. According to their management coordinating with the AGFD and the sportfish stocking in the Eagle Creek plans, it is FMC’s intention, through Service on surveys and captive watershed and continued coordination implementation of these plans, to propagation plans. We will continue to with the Service, will help to ensure provide for the long-term protection and work cooperatively with the San Carlos that habitat remains in Eagle Creek for multiple use benefits of these natural Apache Nation on efforts to conserve spikedace and loach minnow, and will systems. spikedace and loach minnow. reduce the potential for harm to the fish. FMC recognizes that the conservation Therefore, excluding these lands from We, therefore, believe that excluding of the spikedace, the loach minnow, and critical habitat would provide the those portions of Eagle Creek on the San other native aquatic species is an benefit of maintaining and Carlos Apache Reservation will not important goal. In the southwest, FMC strengthening our existing conservation result in extinction of the species. has funded studies and granted access partnership. Therefore, the Secretary is exercising his to company land along Eagle Creek for discretion to exclude the 27.5 km (16.1 many years, allowing the development Weighing Benefits of Exclusion Against mi) of Eagle Creek on Tribal lands of the of detailed information on the creek’s Benefits of Inclusion—San Carlos San Carlos Apache Tribe from the native and nonnative fish communities. Apache Tribe designations of critical habitat for In addition, FMC has implemented a As noted above, the San Carlos spikedace and loach minnow. management system on its U–Bar Apache Tribe has indicated a Freeport-McMoRan—Freeport- Ranch, which is located along the upper commitment to TEK, which uses an McMoRan provided two separate Gila River in the vicinity of Cliff in ecosystem-based approach to land and management plans during the second Grant County, New Mexico. The Pacific species management and preservation. comment period. The first plan focuses Western Land Company (PWLC), a In addition, they have developed the on Eagle Creek and the San Francisco subsidiary of FMC, owns the U–Bar FMP, which benefits spikedace and River in Arizona, while the second Ranch. Under FMC’s existing loach minnow by discontinuing focuses on the Gila River, Mangas Creek, management system, the riparian zone nonnative fish stocking in the Bonita and Bear Creek in New Mexico. These adjacent to the Gila River has expanded Creek or Eagle Creek drainages. Further, two plans are evaluated separately in width, benefitting the endangered the Tribe is working with both the below. southwestern willow flycatcher and Service and the AGFD to complete Background—Freeport-McMoRan is a other riparian species. Currently, the U– additional survey work on Eagle Creek, member of the International Council on Bar Ranch supports one of the largest and is discussing captive propagation Mining and Minerals (ICMM). In their flycatcher populations in the Southwest. for spikedace and loach minnow. management plan for Eagle Creek and Freeport-McMoRan has been conducting The Tribe has focused on known areas the San Francisco River, FMC notes surveys for flycatchers since 1994. of concern for the species management, that, as a member of ICMM, their parent The land management practices that and has discontinued stocking of company, FMC Copper & Gold Inc. have allowed the flycatcher to flourish nonnative fishes in the Bonita and Eagle (FCX), adheres to ten sustainable are compatible with the maintenance of Creek watersheds. The FMP contains development principles, including spikedace and loach minnow habitat,
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10867
and the Gila/Cliff Valley segment of the year. No changes were made to 50 CFR 17.22(d) and 17.32(d). The Gila River currently supports the largest management during the time period permit would address all listed fish number of spikedace and loach minnow covered by these plans. species currently found in Eagle Creek of any area within the species’ ranges. and the San Francisco River, as well as Spikedace and Loach Minnow In addition, surveys show that there are other species that might be listed as Management Plan—Eagle Creek and low levels of nonnative fishes in this threatened or endangered in the future. San Francisco River, Greenlee and stream segment. Freeport-McMoRan The Safe Harbor Agreement would be Graham County, Arizona also has funded surveys for spikedace, based on the conservation measures set loach minnow, and other fishes. Freeport-McMoRan owns land and forth in the management plan. Monitoring supported by FMC along water rights in the watersheds of both Eagle Creek. Eagle Creek was Mangas Creek determined that, at that Eagle Creek and the San Francisco occupied by both species at listing, and time, Mangas Creek supported only River, which are used in connection is classified as a 1a stream under this native fish species. Most of the lower with the operation of the Morenci Mine designation. The management plan 9.3 km (5.8 mi) of Mangas Creek is near Clifton, Arizona. Under the current consists of four conservation measures, located on private land belonging to an management plan, FMC will spend up the first of which is investigation and FMC subsidiary, and has been grazed at to $4,000,000 over the next 10 years to construction of a fish passage barrier. moderate levels for decades. investigate, design, and implement Within their management plan, FMC Freeport-McMoRan has previously conservation measures along Eagle commits to completing a feasibility developed and implemented Creek upstream of its diversion dam and study to determine three possible sites management plans for the conservation on the lower San Francisco River near for the construction of a fish barrier of listed species. In 2005, FMC prepared Clifton, Arizona. above the Willow Creek confluence. and submitted a plan to the Service for As part of the overall management Freeport-McMoRan has indicated that the management of the U-Bar Ranch, plan, FMC has established a the area above Willow Creek is most which supported exclusion of the FMC’s coordination process for review of all suitable for a barrier due to the fact that land from the 2006 southwestern willow conservation measures. In order to nonnative fishes still enter Eagle Creek flycatcher critical habitat designation. ensure that their proposed projects are from the San Carlos Apache The following year, FMC prepared and consistent and compatible with the Reservation. Following review of the submitted management plans for the goals and actions of the Gila River Basin proposed sites by the Service, FMC will spikedace and loach minnow in Eagle Native Fishes Conservation Program prepare a preliminary work plan that Creek and in the upper Gila River, in the (Native Fishes Program), under which describes barrier construction, which Gila/Cliff Valley. Those management much of the management of spikedace will be submitted for review to the plans supported the exclusion of FMC’s and loach minnow occurs, FMC will Native Fishes Program by September 1, land along Eagle Creek and the upper develop individual work plans and 2014, using the coordination process Gila River from the 2007 spikedace and submit the plans to the Native Fishes described above. If the Native Fish loach minnow critical habitat Program Technical Committee during Program finds the work plan acceptable, designations. their annual project review period. This and if the barrier will cost $1.5 million Freeport-McMoRan has supported Committee consists of personnel from or less, FMC will prepare an engineering biological surveys for spikedace and the Service, Bureau of Reclamation, study and prepare related documents for loach minnow, as well as other species, USFS, Bureau of Land Management, the fish barrier. Upon approval by the on Eagle Creek for several years by New Mexico Department of Game and Native Fishes Program, FMC will secure allowing access to private lands to Fish, and the AGFD, all of whom are required permits and approvals and researchers, and also contracted with actively involved in native fish build the fish barrier. For those portions BIOME, a consulting firm, who management. The purposes of the of Eagle Creek upstream of the barrier, provided assistance in completing Native Fishes Program are: (1) to this conservation measure would be surveys on Eagle Creek. During the 2007 undertake conservation actions effective in addressing PCE #5, critical habitat designation process, (recovery and protection) for Federal regarding no nonnative aquatic species, FMC developed management plans for and state-listed or candidate fish species or levels of nonnative aquatic species Eagle Creek that involved monitoring native to the Gila River Basin by that are sufficiently low as to allow the distribution and abundance of the implementing existing and future persistence of spikedace and loach loach minnow and spikedace in Eagle recovery plans for those fishes; and (2) minnow. Creek passing through the FMC reach; to implement nonnative control The second conservation measure providing the Service with reasonable activities to manage nonnative aquatic involves alternatives to barrier notice of any significant changes to the organisms where they interfere with construction. Should barrier water supply management system native fish conservation activities, or construction exceed $1.5 million in cost outside of historical operating provide funding for research in support to build or be determined to be parameters; making reasonable efforts to of nonnative control actions. Freeport- infeasible, FMC and the Service will attend regularly scheduled fisheries McMoRan may revise work plans to develop other projects that will provide management working group meetings; meet comments received from the conservation benefits to spikedace and and continuing historical land use Native Fishes Program, or may respond loach minnow in Eagle Creek and its practices and water supply practices to their recommendations and submit a tributaries. Alternative conservation that enhance water flows in the FMC final work plan to the Native Fishes measures, such as crayfish removal, and reach; and consideration of loach Program. If necessary, FMC will meet chemical treatment of the stream, or minnow and spikedace habitat when with the Native Fishes Program to others that will contribute to the deviating from such historic present revised work plans at that time. recovery of the two species, be management practices. In implementing As part of their management plan, technically sound and be implemented these management plans, FMC provided FMC would submit a Safe Harbor in a reasonable timeframe, and will not annual reports to the Service regarding Agreement and application for a permit be redundant in scope with other changes in management, or anticipated pursuant to 50 CFR 17.22(c) which may projects will be considered. All changes in management for the coming also include a request for a permit under alternative measures will be submitted
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10868 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
for review to the Native Fishes Program, fish and inform adaptive management nexus for purposes of section 7 as described above. Freeport-McMoRan decisions. consultation. will fund alternative projects not to As mentioned earlier, in conjunction All lands considered for exclusion are exceed $1.5 million. with the submission of the preliminary currently considered occupied by The third conservation measure is an studies of possible fish barrier sites on spikedace and loach minnow and will exotic species removal study. Freeport- Eagle Creek and the San Francisco be subject to the consultation McMoRan will develop and implement River, FMC will submit a Safe Harbor requirements of the Act in the future. a 3-year monitoring program to detect Agreement and application for a permit Although a jeopardy and adverse the presence of other types of invasive pursuant to 50 CFR 17.22(c). modification analysis must satisfy two aquatic species (e.g., bullfrogs and different standards, because any Benefits of Inclusion—Freeport- crayfish) within the upper reach of modifications to proposed actions McMoRan at Eagle Creek Eagle Creek, and will investigate the resulting from a section 7 consultation practicability and cost of removal The principal benefit of including an to minimize or avoid impacts to actions to suppress the populations of area in a critical habitat designation is spikedace and loach minnow would be these species in the upper reach of Eagle the requirement for Federal agencies to habitat-based, it is difficult to Creek. The results of the study would be ensure actions they fund, authorize, or differentiate measures implemented used to inform future management carry out are not likely to result in the solely to minimize impacts to the actions to remove nonnative species destruction or adverse modification of critical habitat from those implemented within Eagle Creek. This conservation any designated critical habitat, the to minimize impacts to the species. measure would inform management regulatory standard of section 7(a)(2) of Therefore, in the case of spikedace and agencies on how to better achieve PCE the Act under which consultation is loach minnow, we believe the 5 regarding no nonnative aquatic completed. Federal agencies must also incremental benefits of critical habitat species, or levels of nonnative aquatic consult with us on actions that may designation are minimal as compared to species that are sufficiently low as to affect a listed species and refrain from the conservation and regulatory benefits allow persistence of spikedace and undertaking actions that are likely to derived from the species being listed. The Service has completed one loach minnow. jeopardize the continued existence of consultation on a water diversion such species. The analysis of effects of The fourth conservation measure is structure modification on FMC mining a proposed project on critical habitat is ecological monitoring for spikedace, operations in the past. Generally, the separate and different from that of the loach minnow, and other warm water mining operations have not resulted in effects of a proposed project on the fish species. The Recovery Plans for consultation, as the Morenci Mine (as both the spikedace and the loach species itself. The jeopardy analysis well as the Tyrone Mine) are not located minnow emphasize the need to evaluates the action’s impact to survival adjacent to the stream channel. As noted consistently monitor the status of and recovery of the species, while the in the water quality section above, spills existing populations, including the destruction or adverse modification associated with mines have occurred in establishment of standard monitoring analysis evaluates the action’s effects to spikedace and loach minnow habitat in locations and techniques, as well as the designated habitat’s contribution to the past. However, even absent a section investigate and quantify through field conservation. Therefore, the difference 7 connection, other safeguards are in research the habitat needs of the species in outcomes of these two analyses place, including water quality and effects of physical habitat represents the regulatory benefit of parameters and monitoring by the modification (Service 1991a, pp.12–27; critical habitat. This will, in many Arizona Department of Environmental Service 1991b, pp. 11–27). Freeport- instances, lead to different results and Quality and the EPA. The Service also McMoRan will use the existing different regulatory requirements. Thus, has an Environmental Contaminants permanent sample locations that have critical habitat designations may Program and staff involved in been used in previous survey efforts, provide greater benefits to the recovery identification of environmental and will undertake a more robust of a species than would listing alone. contaminant problems affecting monitoring program on both Eagle Creek However, for some species, and in threatened and endangered species and and the lower reach of the San some locations, the outcome of these other resources. Through this program, Francisco River, from its confluence analyses will be similar, because effects the Service identifies contaminant with the Gila River upstream to its to habitat will often also result in effects problems and pursues appropriate confluence with the Blue River. to the species. Lands being evaluated for actions to eliminate contaminant threats Monitoring will be conducted annually, exclusion in this unit are occupied by and restore affected resources. with reports on information gathered both species and are subject to Public education is often cited as provided to the Service and the Native consultation requirements of the Act. another possible benefit of including Fishes Program. As part of this Approximately 20.5 km (12.7 mi) of lands in critical habitat as it may help management plan, FMC will study and Eagle Creek are on Federal lands, and focus conservation efforts on areas of analyze the ecology of the loach projects with a Federal nexus through high value for certain species. Eagle minnow, spikedace, other native fish, permitting or funding on non-Federally Creek occurs in an isolated area; and their habitat in Eagle Creek, owned areas along Eagle Creek may also however, there are ranchers in the area, including the relationship between require section 7 consultation. As and the area is used for sportfishing by native fish preferences for selected proposed, the designation included 75.5 the general public. Designation of habitats and various associated km (46.9 mi) of contiguous habitat. critical habitat could inform those who environmental factors (e.g., substrates, However, it should be noted that those either live locally or use the area for channel characteristics, vegetation, and portions on the San Carlos Apache recreation about listed species and their channel morphology). A key component Indian Reservation have been excluded habitat needs. Freeport-McMoRan has of this effort will be the regular under a separate management plan, as indicated that this area is heavily used monitoring of PCEs within targeted noted above, and that not all of the by employees of the Morenci Mine, and stream segments that can affect the remaining 75.5 km (46.9 mi) occur on it is possible that a public outreach suitability of these streams for native Federal lands or would have a Federal campaign could be used to educate
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10869
those who fish in the area about native 2007 management plan, and the connection with resource management fish species. Partnership efforts with continued occupancy of Eagle Creek by activities based on adaptive FMC to conserve spikedace and loach spikedace and loach minnow. management principles, including, if minnow have resulted in awareness Additional evidence of the partnership necessary, the development of about the species that occur within the between FMC and the Service is shown alternative conservations measures, at a Eagle Creek. However, we believe there by FMC’s past commitment in 2005 to total cost of up to $1,500,000 to protect is little, if any, educational benefit develop and implement a management habitat for spikedace and loach minnow attributable to critical habitat beyond plan for southwestern willow flycatcher on Eagle Creek. Most importantly, the those achieved from listing the species and their current commitment to pursue management plans indicate a continuing under the Act, and FMC’s continued a safe harbor agreement for all native commitment to ongoing management work in conserving these species. fish in Eagle Creek. In addition, the that has resulted in habitat that supports The designation of critical habitat for identified coordination procedures and spikedace and loach minnow. spikedace and loach minnow within funding indicate a commitment on the Exclusion of these lands from critical Eagle Creek may strengthen or reinforce part of FMC to on-the-ground spikedace habitat will help preserve and some Federal laws, such as NEPA or the and loach minnow conservation. And, strengthen the conservation partnership Clean Water Act. These laws analyze the FMC has also identified monitoring and we have developed with FMC, reinforce potential for projects to significantly exotic species removal studies. those we are building with other affect the environment. Critical habitat Information gained by both studies entities, and foster future partnerships may signal the presence of sensitive would be useful in guiding future and development of management plans; habitat that could otherwise be missed management of the species and in whereas inclusion will negatively in the review process for these other managing Eagle Creek. In summary, impact our relationships with FMC and environmental laws; however, the exclusion of this area from the other existing or future partners. We are listing of these species, prior designation would maintain, and committed to working with FMC to designations of critical habitat and strengthen the partnership between the further the conservation of spikedace consultations that have already occurred Service and FMC. The exclusion of and loach minnow and other will provide this benefit. Therefore, in these lands may enhance opportunities endangered and threatened species. this case we view the regulatory benefit to partner with other entities not yet Freeport-McMoRan will continue to to be largely as redundant with the identified. implement their management plans and benefit the species will receive from play an active role to protect spikedace listing under the Act and may only Weighing Benefits of Exclusion Against and loach minnow and their habitat. result in minimal additional benefits. Benefits of Inclusion—Freeport- Therefore, in consideration of the In summary, we do not believe that McMoRan at Eagle Creek relevant impact to our partnership with designating critical habitat within lands We reviewed and evaluated the FMC, and the ongoing conservation owned and managed by FMC along benefits of inclusion and the benefits of management practices of FMC, we Eagle Creek will provide significant exclusion of FMC owned lands along determined the significant benefits of additional benefits for spikedace and Eagle Creek as critical habitat for exclusion outweigh the benefits of loach minnow. Projects on these lands spikedace and loach minnow. We inclusion in the critical habitat with a Federal nexus will require believe past, present, and future designation. section 7 consultation with the Service coordination with FMC has provided In summary, we find that excluding (regardless of critical habitat and will continue to provide sufficient FMC owned lands along Eagle Creek designation) because the habitat is education regarding spikedace and from this final critical habitat will occupied and we believe the loach minnow habitat conservation preserve our partnership and may foster incremental benefit from critical habitat needs on these lands, such that there future habitat management and species would be minimal. Furthermore, FMC would be minimal additional conservation plans with FMC and with continues to show a commitment to educational benefit from designation of other entities now and in the future. conservation of these species. critical habitat. Further, because any These partnership benefits are potential impacts to spikedace and significant and outweigh the minimal Benefits of Exclusion—Freeport- loach minnow habitat from future additional regulatory and educational McMoRan at Eagle Creek projects with a Federal nexus will be benefits of including these lands in final The significant benefit of exclusion of addressed through a section 7 critical habitat for spikedace and loach FMC owned lands which are subject to consultation with the Service under the minnow. the management plan for the Eagle jeopardy standard, we believe that the Creek is the maintenance and incremental conservation and regulatory Exclusion Will Not Result in Extinction strengthening of the ongoing benefit of designated critical habitat on of the Species—Eagle Creek partnership with the Service. Freeport- Freeport-McMoRan owned lands would We have determined that the McMoRan has demonstrated a largely be redundant with the combined exclusion of 21.4 km (13.3 mi) of FMC partnership with the Service beginning benefits of listing and existing owned lands along Eagle Creek from the with the management plan submitted to management. Therefore, the incremental designation of critical habitat for the Service in 2005 for the southwestern conservation and regulatory benefits of spikedace and loach minnow will not willow flycatcher, the 2007 management designating critical habitat on FMC result in the extinction of either species. plans for spikedace and loach minnow, owned lands along Eagle Creek are The jeopardy standard of section 7 of and they have indicated a willingness to minimal. the Act and routine implementation of continue as a partner to the Service in On the other hand, the benefits of conservation measures through the the conservation of spikedace and loach excluding FMC owned lands along section 7 process due to spikedace and minnow on Eagle Creek. Evidence of Eagle Creek from critical habitat are loach minnow occupancy provide this partnership can be shown through significant. Freeport-McMoRan’s assurances that this species will not go the assistance with past monitoring management plan establishes a extinct as a result of excluding these efforts for spikedace and loach minnow framework for cooperation and lands from the critical habitat on Eagle Creek, carried out under their coordination with the Service in designation. Therefore, based on the
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10870 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
above discussion, the Secretary is the Native Fish Program determines that destruction or adverse modification of exercising his discretion to exclude it is not advisable to construct a fish any designated critical habitat, the approximately of 21.4 km (13.3 mi) of barrier, FMC commits in the regulatory standard of section 7(a)(2) of FMC owned lands along Eagle Creek management plan to conferring in good the Act under which consultation is from the designation of critical habitat faith with the Service to identify other completed. Federal agencies must also for spikedace and loach minnow. projects that will provide conservation consult with us on actions that may San Francisco River. The San benefits to spikedace and loach affect a listed species and refrain from Francisco River was not occupied by minnows in the San Francisco River and undertaking actions that are likely to spikedace at listing, and is classified as its tributaries. Any identified jeopardize the continued existence of a 2b stream for spikedace, indicating it conservation measures would contribute such species. The analysis of effects of would serve as an expansion of the to the recovery of the two species, a proposed project on critical habitat is species’ range. Spikedace were would be technically sound and able to separate and different from that of the reintroduced into the San Francisco be implemented in a reasonable effects of a proposed project on the River in 2007; however, insufficient timeframe, and would not be redundant species itself. The jeopardy analysis time has elapsed to determine if the in scope. Any alternative proposals evaluates the action’s impact to survival reintroduction program will be a developed would be reviewed through and recovery of the species, while the success. The San Francisco River was the coordination process described destruction or adverse modification occupied at listing by loach minnow above, and FMC commits to paying analysis evaluates the action’s effects to and is currently occupied, and is $2,500,000 for the development, review, the designated habitat’s contribution to therefore classified as a 1a stream under and implementation of conservation conservation. Therefore, the difference this designation. measures, including any expenditures to in outcomes of these two analyses Freeport-McMoRan notes that they are investigate the feasibility of a fish represents the regulatory benefit of the primary private property owner barrier. critical habitat. This will, in many along the lower reach of the San In addition, FMC commits in the instances, lead to different results and Francisco River in Arizona. Under the management plan to implementing a different regulatory requirements. Thus, Eagle Creek and San Francisco River detailed monitoring program along the critical habitat designations may Management Plan, FMC proposes to lower reach of the San Francisco River provide greater benefits to the recovery spend $2,500,000 on the San Francisco to assist in the conservation of of a species than would listing alone. River. The coordination process with spikedace and loach minnow. As noted However, for some species, and in some the Native Fishes Program, as detailed above, the Recovery Plans for both the locations, the outcome of these analyses above, would apply to conservation spikedace and the loach minnow will be similar, because effects to habitat measures for the San Francisco River as emphasize the need to consistently will often also result in effects to the well. monitor the status of existing species. Lands being evaluated for The management plan describes the populations, including the exclusion in this unit are occupied by lower reach of the San Francisco River establishment of standard monitoring loach minnow (and possibly by as a well-known sport fishery, with locations and techniques, as well as spikedace, if the translocation efforts are channel catfish, carp, and red shiner. investigating and quantifying through successful) and are subject to For the San Francisco River, FMC’s field research the habitat needs of the consultation requirements of the Act. management plan proposes completing species and effects of physical habitat Approximately 13.2 km (8.2 mi) of those a feasibility study to evaluate three modification (Service 1991a, pp. 12–27; portions of the San Francisco River potential barrier sites. Provided that a Service 1991b, pp. 11–27). There is no covered by the management plan are on suitable barrier site is found, FMC will regular monitoring of the portions of the Federal lands, and projects impacting prepare a preliminary work plan San Francisco River in Arizona at this other non-Federally owned areas may following the coordination procedures time. The monitoring program would require section 7 consultation for outlined above, and will submit it to the include a minimum of 15 permanent impacts to critical habitat if they require Service for review and comment, and sample locations. As with Eagle Creek, Federal permitting or use Federal funds. then to the Native Fishes Program by standardized sampling techniques and It is possible that projects impacting September 1, 2014. protocols would be used, and the other non-Federally owned areas may If approved by the Native Fish management plan contains additional require section 7 consultation for Program, and provided the cost does not detail on equipment and procedures. impacts to critical habitat if they require exceed $2,500,000, FMC will construct Freeport-McMoRan commits to Federal permitting or use Federal funds. a barrier on the San Francisco River providing an annual report to the However, we do not anticipate there with the goal of completing construction Service regarding its implementation of being many consultations along FMC’s in 5 years. Freeport-McMoRan will the management plan. The report will lands on the San Francisco River due to report progress on the report semi- provide a description of implementation the lack of a Federal nexus and due to annually until barrier construction is of plan elements over the course of the the lack of a history of consultations. complete. For those portions of the San previous year and discuss anticipated Due to the lack of consultations in these Francisco River upstream of the barrier, implementation for the coming year. areas, we conclude the benefit of this conservation measure would be Each year’s report would be provided to inclusion based on consultation effective in addressing PCE #5, the Service by April of the following requirements under the Act is reduced. regarding no nonnative aquatic species, year. All lands considered for exclusion are or levels of nonnative aquatic species currently considered occupied by loach that are sufficiently low as to allow Benefits of Inclusion—Freeport- minnow and will be subject to the persistence of spikedace and loach McMoRan on the San Francisco River consultation requirements of the Act in minnow. The principal benefit of including an the future. Although a jeopardy and As with Eagle Creek, should barrier area in a critical habitat designation is adverse modification analysis must construction costs be estimated to the requirement for Federal agencies to satisfy two different standards, because exceed $2,500,000, if barrier ensure actions they fund, authorize, or any modifications to proposed actions construction is deemed infeasible, or if carry out are not likely to result in the resulting from a section 7 consultation
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10871
to minimize or avoid impacts to loach would be minimal. However, due to the species. In summary, exclusion of this minnow would be habitat-based, it is lack of a consultation history along the area from the designation would difficult to differentiate measures San Francisco River, the benefits of maintain, and strengthen the implemented solely to minimize inclusion that stem from consultation partnership between the Service and impacts to the critical habitat from those requirements under the Act are reduced. FMC. The exclusion of these lands may implemented to minimize impacts to Furthermore, FMC continues to show a enhance opportunities to partner with the species. Therefore, in the case of commitment to conservation of these other entities not yet identified. spikedace and loach minnow, we species through the development and Weighing Benefits of Exclusion Against believe the incremental benefits of implementation of the management Benefits of Inclusion—Freeport- critical habitat designation are minimal plans which cover the San Francisco McMoRan on the San Francisco River as compared to the conservation and River for spikedace and loach minnow. regulatory benefits derived from the We reviewed and evaluated the Benefits of Exclusion—Freeport- species being listed. benefits of inclusion and the benefits of Public education is often cited as McMoRan on the San Francisco River exclusion of FMC owned lands along another possible benefit of including The significant benefit of exclusion of the San Francisco River as critical lands in critical habitat as it may help FMC owned lands which are subject to habitat for spikedace and loach focus conservation efforts on areas of the management plan for the San minnow. We believe past, present, and high value for certain species. The San Francisco River is the maintenance and future coordination with FMC has Francisco River occurs near the towns of strengthening of the ongoing provided and will continue to provide Clifton and Morenci. The area is partnership with the Service. Freeport- sufficient education regarding spikedace currently heavily used for sportfishing McMoRan has demonstrated a and loach minnow habitat conservation by the general public, and designation partnership with the Service beginning needs on these lands, such that there of critical habitat could inform those with the management plan submitted to would be no additional educational who either live locally or use the area the Service in 2005 for the southwestern benefit from designation of critical for recreation about listed species and willow flycatcher, the 2007 management habitat. Further, because any potential their habitat needs. Partnership efforts plans for spikedace and loach minnow, impacts to spikedace and loach minnow with FMC to conserve spikedace and and they have indicated a willingness to habitat from future projects with a loach minnow have resulted in continue as a partner to the Service in Federal nexus will be addressed through awareness about the species that occur the conservation of spikedace and loach a section 7 consultation with the Service within the San Francisco River. minnow on San Francisco River. under the jeopardy standard, we believe However, we believe there is little, if Evidence of this partnership can be that the incremental conservation and any, educational benefit attributable to shown through the past monitoring regulatory benefit of designated critical critical habitat beyond those achieved efforts for spikedace and loach minnow habitat on FMC owned lands would from listing the species under the Act, on Eagle Creek, carried out under their largely be redundant with the combined and FMC’s continued work in 2007 management plan. Additional benefits of listing and existing conserving these species. evidence of the partnership between management. Therefore, the incremental The designation of critical habitat for FMC and the Service is shown by FMC’s conservation and regulatory benefits of spikedace and loach minnow within the past commitment in 2005 to develop designating critical habitat on FMC San Francisco River may strengthen or and implement a management plan for owned lands along the San Francisco reinforce some Federal laws, such as southwestern willow flycatcher and River are minimal. NEPA or the Clean Water Act. These their current commitment to pursue a On the other hand, the benefits of laws analyze the potential for projects to safe harbor agreement for all native fish excluding FMC owned lands along the significantly affect the environment. in the San Francisco River. In addition, San Francisco River from critical habitat Critical habitat may signal the presence the identified coordination procedures are significant. Freeport-McMoRan’s of sensitive habitat that could otherwise and funding indicate a commitment on management plan establishes a be missed in the review process for the part of FMC to on-the-ground framework for cooperation and these other environmental laws; spikedace and loach minnow coordination with the Service in however, the listing of these species, conservation. Finally, Freeport- connection with resource management prior designations of critical habitat, McMoRan has demonstrated a activities based on adaptive and consultations that have already commitment to the 2007 management management principles, including, if occurred will provide this benefit. plans, and indicated a willingness to necessary, the development of Therefore, in this case we view the continue as a partner to the Service in alternative conservations measures, at a regulatory benefit to be largely the conservation of spikedace and loach total cost of up to $2,500,000 to protect redundant with the benefit the species minnow in the San Francisco River. habitat for spikedace and loach minnow will receive from listing under the Act Excluding the San Francisco River on the San Francisco River. Most and may only result in minimal would promote that partnership. The importantly, the management plans additional benefits. identified coordination procedures and indicate a continuing commitment to In summary, we do not believe that funding indicate a commitment on the ongoing management that has resulted designating critical habitat within lands part of FMC to on-the-ground spikedace in habitat that supports spikedace and owned and managed by FMC along the and loach minnow conservation. And, loach minnow. San Francisco River will provide FMC has also identified increased Exclusion of these lands from critical significant additional benefits for monitoring on the San Francisco River. habitat will help preserve and spikedace and loach minnow. Projects The lower portions of the San Francisco strengthen the conservation partnership on these lands with a Federal nexus will River have been surveyed with less we have developed with FMC, reinforce require section 7 consultation with the frequency and regularity than most those we are building with other Service (regardless of critical habitat spikedace and loach minnow streams. entities, and foster future partnerships designation) because the habitat is The commitment to monitoring in the and development of management plans; occupied and we believe the management plan would assist whereas inclusion will negatively incremental benefit from critical habitat conservation management efforts for the impact our relationships with FMC and
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10872 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
other existing or future partners. We are Bear Creek. Much of this area is owned (4,672 feet) above sea level. Should Gila committed to working with FMC to by the Pacific Western Land Company River flows be less than 25 cfs, but the further the conservation of spikedace (PWLC), a subsidiary of FMC, and is reservoir levels fall below 1,424 meters and loach minnow and other included in the U-Bar Ranch. Freeport- (4,672 feet), FMC will consult with the endangered and threatened species. McMoRan’s land and water rights in the NMDGF regarding a temporary Freeport-McMoRan will continue to Gila/Cliff Valley support operations at curtailment of water. Freeport- implement their management plans and the Tyrone Mine in addition to its McMoRan concludes that the 25 cfs play an active role to protect spikedace agricultural operations along the Gila trigger will ensure that FMC diversions and loach minnow and their habitat. River. Freeport-McMoRan diverts water do not cause the river to dry up during Therefore, in consideration of the from the Gila River for use at the Tyrone low-flow conditions. Should FMC need relevant impact to our partnership with Mine located southwest of Silver City, to modify its water use and diversion FMC, and the ongoing conservation New Mexico. Their water right includes activities due to unanticipated management practices of FMC, we a diversion structure on the Gila River circumstances, they will confer with determined the significant benefits of above its confluence with Mangas FWS regarding the impacts of such exclusion outweigh the benefits of Creek, which diverts water into a canal. changes for the purpose of developing inclusion in the critical habitat A pump station moves water from the alternative conservation measures. designation. canal to the Bill Evans Reservoir, and Should such measures be needed, FMC In summary, we find that excluding water is pumped from the reservoir commits to spending up to $500,000 for FMC owned lands along the San through a 35.4-km (22-mi) pipeline to these measures. This measure would Francisco River from this final critical the Tyrone Mine. The Bill Evans assist in maintaining perennial flows, as habitat will preserve our partnership Reservoir is managed by the NMDGF as described under PCE 4. and may foster future habitat a recreational facility, and stocked with Freeport-McMoRan has funded management and species conservation sportfish. The Reservoir is separated monitoring on Mangas Creek and the plans with FMC and with other entities from the active stream channel. Gila River in the past, and commits to now and in the future. These Freeport-McMoRan’s management funding surveys on these two streams partnership benefits are significant and plan provides background on steps on a biennial basis, and furnishing the outweigh the minimal additional taken by FMC for environmental results of the surveys to the Service. The regulatory and educational benefits of management in this region in general, as Recovery Plans for both the spikedace including these lands in final critical well as conservation measures for and the loach minnow emphasize the habitat for spikedace and loach spikedace and loach minnow. One such need to consistently monitor the status minnow. measure is FMC’s participation in a of existing populations, including the voluntary water conservation program establishment of standard monitoring Exclusion Will Not Result in Extinction administered by the New Mexico Office locations and techniques, as well as of the Species—San Francisco River of the State Engineer (OSE). Under this investigating and quantifying through We have determined that the program, FMC has enrolled 2,876 acre field research the habitat needs of the exclusion of 14.1 km (8.8 mi) FMC feet of its annual average diversion species and effects of physical habitat owned lands along the San Francisco rights through 2018. The program modification (Service 1991a; Service River from the designation of critical allows FMC to increase or decrease the 1991b). In addition, FMC will develop habitat for spikedace and loach minnow amount of water rights that are and implement a program to detect and will not result in the extinction of either restricted from diversion and remove crayfish from Mangas Creek. species. The jeopardy standard of consumptive use on an annual basis, Removal of this nonnative aquatic section 7 of the Act and routine depending on their current water needs. species would help in improving habitat implementation of conservation As detailed in the plan, this portion conditions for spikedace and loach measures through the section 7 process of the Gila River maintains a healthy minnow by reducing/minimizing the due to loach minnow occupancy (and stream and riparian system, and number of nonnative aquatic species as spikedace if the translocation efforts are supports the largest populations of described in PCE 5. successful) provide assurances that this spikedace and loach minnow in the two Freeport-McMoRan commits to species will not go extinct as a result of species’ ranges. The river in this area is making a reasonable effort to coordinate excluding these lands from the critical perennial, and has very low levels of with other landowners in the Gila/Cliff habitat designation. Therefore, based on nonnative fishes. Under the plan, FMC Valley regarding conservation-related the above discussion, the Secretary is will continue participation in the water issues and activities. They will ask that exercising his discretion to exclude conservation program noted above, and neighboring landowners assist in FMC’s approximately 14.1 km (8.8 mi) of FMC commits to re-enrolling to continue conservation efforts, and will provide owned lands along the San Francisco their participation in the water assistance to neighboring landowners River from the designation of critical conservation program should their who wish to implement conservation habitat for spikedace and loach enrollment lapse during the life of the measures. Freeport-McMoRan will also minnow. management plan. confer with the Service regarding The management plan would also activities that might be undertaken to Spikedace and Loach Minnow maintain minimum flow levels in the increase public awareness of the habitat Management Plan—Upper Gila River, Gila River during periods of drought. needs of spikedace and loach minnow. Including Bear Creek and Mangas Specifically, FMC will not divert water The management plan contains Creek, Grant County, New Mexico from the Gila River at the Bill Evans provisions for reporting requirements, Freeport-McMoRan provided this Reservoir diversion structure into the as well as for adaptive management. For management plan during the second reservoir if both of the following reporting requirements, FMC notes that comment period. Freeport-McMoRan conditions exist: (1) The Gila River is they will provide an annual report to currently owns more than 11.5 km (7.2 flowing at less than 25 cfs at the USGS the Service discussing implementation mi) along the Gila River, approximately Gage 09431500 near Redrock, New of the management plan, which will 7.9 km (4.9 mi) along Mangas Creek, and Mexico; and (2) the water level in Bill include information affirming plan approximately 1.9 km (1.2 mi) along Evans Reservoir is at 1,424 meters implementation; note any changes from
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10873
historic operating parameters; and the amount of $500,000 to this task. The All lands considered for exclusion are discuss anticipated implementation of management plan details reporting currently considered occupied by either the plan for upcoming years. Reports requirements and effective dates for the spikedace or loach minnow and will be will be submitted each year by April 1 initiation of the plan. subject to the consultation requirements for the previous year. of the Act in the future. Although a With respect to adaptive management, Benefits of Inclusion—Freeport- jeopardy and adverse modification FMC anticipates that operational McMoRan on the Gila River, Mangas analysis must satisfy two different requirements may require modification Creek, and Bear Creek standards, because any modifications to of its land and water use in the Gila/ The principal benefit of including an proposed actions resulting from a Cliff Valley, or that future surveys and area in a critical habitat designation is section 7 consultation to minimize or monitoring activities could detect the requirement for Federal agencies to avoid impacts to spikedace and loach significant changes in the native and ensure actions they fund, authorize, or minnow would be habitat-based, it is nonnative fish populations or key carry out are not likely to result in the not possible to differentiate any habitat parameters, indicating that an destruction or adverse modification of measures implemented solely to alternative conservation measure is any designated critical habitat, the minimize impacts to the critical habitat needed to protect spikedace and low regulatory standard of section 7(a)(2) of from those implemented to minimize minnow. They commit to conferring in the Act under which consultation is impacts to the species. Therefore, in the good faith in the development of completed. Federal agencies must also case of spikedace and loach minnow, alternative conservation measures and, consult with us on actions that may we believe the incremental benefits of as noted above, will spend up to affect a listed species and refrain from critical habitat designation are minimal $500,000 on these measures. undertaking actions that are likely to as compared to the conservation and For Bear Creek, FMC indicates that jeopardize the continued existence of regulatory benefits derived from the they will continue to discourage such species. The analysis of effects of species being listed. trespass on their lands in the lower a proposed project on critical habitat is Public education is often cited as portions of Bear Creek, which can aid in separate and different from that of the another possible benefit of including maintaining or improving water quality effects of a proposed project on the lands in critical habitat as it may help by minimizing sedimentation. In species itself. The jeopardy analysis focus conservation efforts on areas of addition, the management plan states evaluates the action’s impact to survival high value for certain species. that FMC will continue its existing land and recovery of the species, while the Partnership efforts with FMC to uses and management practices in the destruction or adverse modification conserve spikedace and loach minnow Gila/Cliff Valley. The lower portions of analysis evaluates the action’s effects to have resulted in awareness about the Bear Creek included in the management the designated habitat’s contribution to species that occur within the Gila River, plan are part of the U-Bar Ranch and conservation. Therefore, the difference Mangas Creek, and Bear Creek. managed by an FMC subsidiary. However, we believe there is little, if in outcomes of these two analyses Freeport-McMoRan notes that they will any, educational benefit attributable to represents the regulatory benefit of continue their existing land uses and critical habitat beyond those achieved critical habitat. This will, in many management practices on this property, from listing the species under the Act instances, lead to different results and unless unanticipated circumstances and FMC’s continued work in different regulatory requirements. Thus, arise that necessitate changes. In such conserving these species. an event, FMC would provide the critical habitat designations may The designation of critical habitat for Service with notice of any significant provide greater benefits to the recovery spikedace and loach minnow within the changes in land use and management of a species than would listing alone. Gila River, Mangas Creek, and Bear practices that are outside the range of However, for some species, and in Creek may strengthen or reinforce some the historic operating parameters they some locations, the outcome of these Federal laws, such as NEPA or the Clean provide in the management plan, and analyses will be similar, because effects Water Act. These laws analyze the discuss potential impacts to loach to habitat will often also result in effects potential for projects to significantly minnow. to the species. Lands being evaluated for affect the environment. Critical habitat We conclude that the management exclusion in this unit are occupied by may signal the presence of sensitive plans provide benefits to spikedace and both species and are subject to habitat that could otherwise be missed loach minnow that are equivalent to consultation requirements of the Act. in the review process for these other those that would be provided by critical Within the stream reach managed by environmental laws; however, the habitat designation. Under FMC’s past FMC, only approximately 0.25 mile is listing of these species, prior and current management, portions of managed by BLM, while the remainder designations of critical habitat and the Gila River and Mangas Creek of this reach is private or State owned. consultations that have already occurred continue to support the largest numbers It is possible that projects impacting will provide this benefit. Therefore, in of spikedace and loach minnow in their other non-Federally owned areas may this case we view the regulatory benefit range. Nonnative species currently require section 7 consultation for to be largely as redundant with the appear to be at levels that have a impacts to critical habitat if they require benefit the species will receive from minimal impact on native species in the Federal permitting or use Federal funds. listing under the Act and may only Gila River, and are currently However, we do not anticipate there result in minimal additional benefits. nonexistent in Mangas Creek, meeting being many consultations along the Gila In summary, we do not believe that PCE 5 for these streams. Freeport- River, Mangas Creek, and Bear Creek designating critical habitat within lands McMoRan has made a commitment to due to the lack of a Federal nexus and owned and managed by FMC along the maintaining perennial flows in the Gila due to the lack of a history of Gila River, Mangas Creek, and Bear River downstream of their diversion. consultations. Due to the lack of Creek will provide significant additional Should the situation change, FMC has consultations in these areas, we benefits for spikedace and loach committed to meeting with the Service conclude the benefit of inclusion based minnow. Projects on these lands with a to develop additional conservation on consultation requirements under the Federal nexus will require section 7 measures, and has dedicated funding in Act is reduced. consultation with the Service
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10874 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(regardless of critical habitat to partner with other entities not yet and loach minnow and their habitat. designation) because the habitat is identified. Therefore, in consideration of the occupied and we believe the relevant impact to our partnership with Weighing Benefits of Exclusion Against incremental benefit from critical habitat FMC, and the ongoing conservation Benefits of Inclusion—Freeport- management practices of FMC, we would be minimal. However, due to the McMoRan on the Gila River, Mangas determined that the significant benefits lack of a consultation history along the Creek, and Bear Creek Gila River, Mangas Creek, and Bear of exclusion outweigh the benefits of Creek, the benefits of inclusion that We reviewed and evaluated the inclusion in the critical habitat stem from consultation requirements benefits of inclusion and the benefits of designation. under the Act are reduced. Furthermore, exclusion of FMC-owned lands along In summary, we find that excluding FMC continues to show a commitment the Gila River, Mangas Creek, and Bear FMC-owned lands along the Gila River, to conservation of these species through Creek as critical habitat for spikedace Mangas Creek, and Bear Creek from this the development and implementation of and loach minnow. We believe past, final critical habitat will preserve our the management plans which cover the present, and future coordination with partnership and may foster future Gila River, Mangas Creek, and Bear FMC has provided and will continue to habitat management and species Creek for spikedace and loach minnow. provide sufficient education regarding conservation plans with FMC and with spikedace and loach minnow habitat other entities now and in the future. Benefits of Exclusion—Freeport- conservation needs on these lands, such These partnership benefits are McMoRan on the Gila River, Mangas that there would be minimal additional significant and outweigh the minimal Creek, and Bear Creek educational benefit from designation of additional regulatory and educational The significant benefits of exclusion critical habitat. Further, because any benefits of including these lands in final of FMC owned lands that are subject to potential impacts to spikedace and critical habitat for spikedace and loach the management plan for the Gila River, loach minnow habitat from future minnow. projects with a Federal nexus will be Mangas Creek, and Bear Creek is the addressed through a section 7 Exclusion Will Not Result in Extinction maintenance and strengthening of the consultation with the Service under the of the Species—Gila River, Bear and ongoing partnership with the Service. jeopardy standard, we believe that the Mangas Creek Freeport-McMoRan has demonstrated a incremental conservation and regulatory We have determined that the partnership with the Service beginning benefit of designated critical habitat on exclusion of 20.3 km (13.3 mi) FMC with the management plan submitted to FMC-owned lands would largely be owned lands along the Gila River, the Service in 2005 for the southwestern redundant with the combined benefits Mangas Creek, and Bear Creek from the willow flycatcher, and the 2007 of listing and existing management. designation of critical habitat for management plans for spikedace and Therefore, the incremental conservation spikedace and loach minnow will not loach minnow, and they have indicated and regulatory benefits of designating result in the extinction of either species. a willingness to continue as a partner to critical habitat on FMC owned lands The jeopardy standard of section 7 of the Service in the conservation of along the San Francisco River are the Act and routine implementation of spikedace and loach minnow on the minimal. conservation measures through the Gila River, Mangas Creek, and Bear On the other hand, the benefits of section 7 process due to spikedace and Creek. Freeport-McMoRan has excluding FMC-owned lands along the loach minnow occupancy provide demonstrated a commitment to this Gila River, Mangas Creek, and Bear assurances that this species will not go partnership through conservation in this Creek from critical habitat are extinct as a result of excluding these area by voluntarily enrolling in a water significant. Freeport-McMoRan’s lands from the critical habitat conservation program with the OSE for management plan establishes a designation. Therefore, based on the which they have dedicated 2,876 af of framework for cooperation and above discussion, the Secretary is water that may be used for coordination with the Service in exercising his discretion to exclude nonconsumptive purposes. connection with resource management approximately 20.3 km (13.3 mi) of Evidence of this partnership can be activities based on adaptive FMC-owned lands along the Gila River, shown through the management of those management principles. Most Mangas Creek, and Bear Creek from the portions of the Gila River, Mangas importantly, the management plans designation of critical habitat for Creek, and Bear Creek on FMC lands, indicate a continuing commitment to spikedace and loach minnow. which has resulted in expansion of ongoing management that has resulted riparian areas that provide suitable in habitat that supports spikedace and Summary of Comments and Responses habitat for spikedace and loach loach minnow. Exclusion of these lands We requested written comments from minnow. Additional evidence of the from critical habitat will help preserve the public on the proposed designations partnership between FMC and the and strengthen the conservation of critical habitat for the spikedace and Service is shown by FMC’s commitment partnership we have developed with the loach minnow during two comment to provide for adaptive management, FMC, reinforce those we are building periods. The first comment period was such that should FMC need to modify with other entities, and foster future associated with the publication of the its water use and diversion activities partnerships and development of proposed rule opened on October 28, due to unanticipated circumstances, management plans whereas inclusion 2010 (75 FR 66482) and closed on they will confer with the Service will negatively impact our relationships December 27, 2010. The second notice regarding the impacts of such changes with FMC and other existing or future reopening the comment period opened and will adopt alternative conservation partners. We are committed to working on October 4, 2011, (76 FR 61330) and measures not to exceed $500,000 in with FMC to further the conservation of closed on November 3, 2011. We held cost. Exclusion of this area from the spikedace and loach minnow and other a public hearing on October 17, 2011. designation would maintain, and endangered and threatened species. We also contacted appropriate Federal, strengthen the partnership between the Freeport-McMoRan will continue to State, and local agencies; scientific Service and FMC. The exclusion of implement their management plans and organizations; peer reviewers, and other these lands may enhance opportunities play an active role to protect spikedace interested parties and invited them to
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10875
comment on the proposed rule and draft following summary and incorporated single historical collection locality economic and environmental analyses into the final rule as appropriate. seems imprudent without more during these comment periods. thoughtful deliberation. Peer Reviewer Comments During the first comment period we Our Response: Please see page 66518, received 36 comment letters directly (1) Comment: The reviewer stated that column 1 of the proposed rule. The addressing the proposed critical habitat the term ‘‘reasonably occupied’’ in the Agua Fria was not included in the designations. During the second proposed rule is not clear; suggest using designation for spikedace for several comment period we received 25 the term ‘‘occupied by the species at the reasons as stated there, including its comment letters addressing the time of listing.’’ location on the western edge of the proposed critical habitat designations or Our Response: In the October 4, 2011, species’ range, and its relatively short the draft economic and environmental NOA (76 FR 61330), we stated that, in stretches of perennial flows that enter order to improve clarity, we were analyses. No individuals or the Lake Pleasant reservoir. Even with revising the definition of occupied to organizations made comments on the those conditions, we may have include those areas identified as proposed designations of critical habitat designated the Agua Fria had it served occupied for each species in the original or the analyses for the spikedace and as an extension to any other spikedace listing documents, as well as any loach minnow during the October 17, area; however, it does not connect to additional areas determined to be 2011, public hearing, All substantive any other occupied area. We do note occupied after 1986. Our reasoning for information provided during comment elsewhere in the proposed rule (see page including these additional, post-1986 periods has either been incorporated 66496, column 2) and the NOA (see areas is that it is likely that those areas directly into this final determination or page 61330) that we recognize that we were occupied at the time of the original addressed below. Comments received have not necessarily included all areas listings, but had not been detected in were grouped into four general issues that may be needed for recovery, and surveys due to minimal or no survey specifically relating to reclassification that other areas may be considered efforts in some areas; low capture for spikedace and loach minnow and important for the species conservation efficiencies associated with seining, and the proposed critical habitat by species managers or the Spikedace their small size. This language from the designations and are addressed in the and Loach Minnow Recovery Team in NOA has been incorporated into the following summary. the future. Page 66493, column 3 of the final rule. proposed rule further notes that critical Peer Review (2) Comment: The water temperature habitat designations made on the basis discussion should address the effects of of the best available information at the In accordance with our peer review shading on water temperature, time of designations will not control the policy published on July 1, 1994 (59 FR including how water temperature would direction and substance of future 34270), we solicited expert opinions be affected by reductions in streambank recovery plans. from 13 knowledgeable individuals vegetation. Belsky et al. 1999, Larson (5) Comment: It would seem that outside the Service with scientific and Larson 1996, LeBlank et al. 1997, future designations of critical habitat expertise to review our technical and Rutherford et al. 2004 were should first be drafted by recovery assumptions, interpretations of biology, provided as potential sources of teams to ensure that the entire process and use of ecological principles with information for this discussion. of recovery planning is respect to the spikedace and loach Our Response: We reviewed and comprehensively integrated and will minnow, and our analysis of the added literature to address the possible produce the best possible chance of primary constituent elements (PCEs) increase in water temperatures as a overall success. and areas essential to the conservation result of the loss of vegetation by Our Response: We agree. In the 1994 of these species. We also asked for wildfire and recreation. Specifically, we designation of critical habitat, the review on our adherence to regulations added information indicating that recovery plans from 1991 were in place related to species reclassification and indirect effects of wildfire, such as to guide the designation. We used a the critical habitat designations, and on increases in stream temperatures, can revised and updated recovery outline to whether or not we had used the best last for several years to more than a guide the current designation. There is available information. We received decade after the fire. no requirement in the Act that recovery responses from 6 of the 13 peer (3) Comment: The term ‘‘essential plans need to be in place before critical reviewers. feature’’ is used in the document, but is habitat is designated, but we agree that We reviewed all comments received not defined. The peer reviewer noted recovery plans can be useful for critical from the peer reviewers for substantive that they would assume this means habitat designations. issues and new information regarding physical and biological features (6) Comment: The proposed rule threats to critical habitat for the ‘‘essential to the conservation of the states (page 66504, column 3) that all spikedace and loach minnow. The peer species.’’ areas proposed for designation contain reviewers generally concurred with our Our Response: We have changed the the physical and biological features methods and conclusions and provided language at the first use of essential (PBFs) for spikedace and loach minnow. additional information, clarifications, feature to read ‘‘essential feature to the However, on prior pages one PBF is and suggestions to improve the final conservation of the species.’’ defined as ‘‘habitat devoid of nonnative critical habitat and reclassification rule. (4) Comment: Although the criteria for aquatic species, or habitat in which One peer reviewer noted that the designating critical habitat are well nonnative aquatic species are at levels literature cited contained a thorough described in the proposed rule, they that allow persistence of spikedace and listing of relevant reports and other seem overly focused on historical and loach minnow.’’ This is probably not literature relating to species status present occupancy standards and do not true for most of the designation reaches, reclassification and critical habitat always take into account how the and actions such as barrier construction, designation, which represents the best species could best be recovered. For chemical renovations upstream, and available scientific information to the example, failing to consider designation species augmentation or repatriations to best of the reviewer’s knowledge. Peer of critical habitat within the Agua Fria achieve this PCE will be exceedingly reviewer comments are addressed in the drainage simply due to rejection of its difficult to implement. The document
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10876 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
falls short in its discussion of the streams are tributary to an occupied which discusses disruptions to natural intricacies associated with this PCE and stream, they do not meet criterion for channel dynamics. In the final rule, we the critical importance it has toward category 2a of the ruleset. Because other have also added a section on the recovery of both species. streams are designated for loach relationship between altered flow Our Response: Both the proposed and minnow within this Subbasin (North regimes and nonnative predators which final rules provide a lengthy discussion Fork East Fork Black River, Coyote also highlights the importance of stream of the impacts on spikedace and loach Creek, Boneyard Creek, and East Fork flow. minnow from nonnative fishes. In Black River), these areas would not (12) Comment: There is no mention of addition, the descriptions of the streams significantly expand the distribution of yellow grubs or black spot parasites throughout the document note the loach minnow within its historical under the disease discussion, and they presence of nonnatives. In the final rule, range (category 2b). are fairly prevalent in the San Francisco we have added a section discussing the (9) Comment: With respect to River. interaction between altered flow reclassification, there seems to be little Our Response: In response to this regimes and nonnatives. We recognize evidence presented to justify that the comment, we have added information that nonnative aquatic species are a situation for either species is different regarding both yellow grub and black persistent threat throughout much, if (i.e., worse) now than at the time of grub parasites to the discussion under not all, of the two species’ ranges. Two listing. More recent reports may not Factor C. facts about the PBFs are important to show population decrease. Many (13) Comment: Loose substrate should note. First, as written, the PCE on surveys showed a boom for both species be included as a PBF for the two nonnatives is ‘‘No nonnative aquatic following the winter 2007–2008 species. species, or levels of nonnative aquatic flooding. Our Response: We discuss substrate species that are sufficiently low as to Our Response: As noted under the within PCE 1 for both species, which allow persistence’’ of spikedace or loach Reclassification Determination section includes ‘‘Appropriate stream minnow. It is not required that of this rule, the decision to reclassify the microhabitat types include glides, runs, nonnative aquatic species be absent. two species began in 1991 with a 5-year riffles, the margins of pools and eddies, Second, we look for one or more PBFs review during which we determined and backwater components over loose within a given unit in order to include that the species’ status was precarious sand, gravel, and cobble substrates with it within the designations. In other and that a change in status from low or moderate amounts of fine words, a stream segment does not need threatened to endangered was sediment and substrate embeddedness.’’ to have all the PCEs in order to be warranted. While some recovery actions (14) Comment: There are no records of designated as critical habitat. have occurred in the intervening years, spikedace for those portions of the Blue (7) Comment: The potential for and while we occasionally see an River in New Mexico, and it may not be establishment of spikedace and loach increase in numbers in a given area in good habitat for that species. minnow in Fossil Creek is much higher response to flooding, the majority of Our Response: We do not have any above the barrier than below, in the area areas occupied by spikedace and loach records of spikedace for those portions proposed as critical habitat. minnow have seen an increase in of the Blue River in New Mexico. Our Response: Following review of nonnative species, with nonnatives Within the proposed rule, we classified comments received during the two dominating some streams. The low this stream as a 2b stream for spikedace, comment periods, as well as new numbers of spikedace and loach indicating that it would serve to expand information received on the presence of minnow, their isolation in tributary the geographic distribution of the spikedace, we have amended the area waters, drought, ongoing water species. The Blue River system provides included within the designations to demands, and other threats indicate that the PCEs for suitable habitat for include that portion of Fossil Creek the species are now in danger of spikedace, and we note that loach from its confluence with the Verde extinction throughout their ranges. minnow, which often co-occur with River, past and upstream of the barrier While streams that were occupied at spikedace, are found throughout the up to the old Fossil Diversion Dam. listing may continue to be occupied, the system, including those portions in both Please see the discussion under the overall length of the occupied segment Arizona and New Mexico. section on ‘‘Summary of Changes from has shrunk in some areas (e.g., Verde (15) Comment: Spikedace in the Proposed Rule’’ above for more detail. River, East Fork Gila River), or the two Verde River are very distinct from those (8) Comment: For Spring and Rock species occur in extremely limited in the Gila River. Hendrickson’s creeks in the Tonto River basin there numbers (e.g., Eagle Creek). In other morphology paper emphasizes the was not enough justification provided to areas, the species are considered significance of thoroughly sampling the explain why spikedace was included extirpated (e.g., San Pedro River). Verde to see if spikedace can be found. but loach minnow was not. The chances (10) Comment: There are Our Response: Please see the of reestablishing both species are equal. inconsistencies between the occupancy discussion under the Summary of It is not possible to accurately predict table (Tables 3 and 4) in the proposed Factors Affecting the Species. We the outcome of the Rock and Spring rule and the tables in the draft include information regarding genetic Creeks translocation effort, and an a Environmental Assessment (Tables 5 and morphological differences, and priori exclusion seems illogical and ill- and 6). cited Anderson and Hendrickson (1994) advised. Our Response: We agree and the under Factor A in the proposed rule, Our Response: Please refer to the tables have been modified for the final and have added Anderson and ruleset described in both the proposed rule and final environmental Hendrickson (1994) as a cite under rule and this final rule. Because there assessment. Factor E in the final rule. are no loach minnow known from Tonto (11) Comment: Section A Threats (16) Comment: Populations of loach Creek, Rock Creek, Spring Creek, Rye need to include the need for flushing minnow actually show higher levels of Creek, or Greenback Creek, these areas flows to provide loose/clean substrate. differentiation than those of spikedace. do not meet the category 1a criterion Our Response: Please see the Each unit identified to date is very under the ruleset for occupied at the discussion under Stream Channel distinct and each of the geographic time of listing. Because none of these Alteration within the Factor A analysis, subdrainages needs to be managed
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10877
independently. White River is likely Our Response: Our studies indicate Ultimately, this is a situation which highly divergent and deserving of that inclusion of these areas is may be resolved, although that is not management as a distinct unit. appropriate at this time. The likely in the short term. Because we are Our Response: While not a criteria in translocation sites were chosen attempting to conserve the species, and the critical habitat designations, this carefully, after field and scientific attempting to develop connectivity information is used in ongoing review of their suitability for spikedace between occupied stream systems management for the two species, and and loach minnow. In some instances wherever possible, inclusion of this genetics is an important consideration (e.g., spikedace in the San Francisco portion of the stream could ultimately in all captive propagation and River in New Mexico), the species have serve as a connective corridor between translocation efforts. Additionally, been eradicated from the area, but the Verde River and upstream portions information regarding the genetic and previously occurred there, so that of Fossil Creek. morphological distinctness of the two suitability is more certain. In other (21) Comment: The lower 2.8 km (1.7 species will be considered as a revised instances, a translocation may miles) of Sycamore Creek should be recovery plan is completed. ultimately prove successful, and included within the designations. (17) Comment: Throughout the designation of critical habitat in the area Our Response: We developed a document, but especially under the will further protect and conserve habitat ruleset, as described in both the Available Conservation Measures for the species. In some areas, should proposed and final rules, which we section, the terms reintroduction, the translocation prove unsuccessful, it applied in making determinations about translocation, and augmentation are would be necessary to determine which the appropriateness of including or used. I would suggest they be defined, factors are responsible for the failure. excluding specific areas. In addition, we and defined early. I assume that for For example, a reinvasion by nonnative used the best available information in these purposes, reintroduction and aquatic species, health issues, or water determining which stream segments to translocation, when referring to loach quality issues may ultimately prove include. At this time, we have no minnow and spikedace, are responsible. Additional translocation information regarding the suitability of synonymous. If so, defining them as efforts may be appropriate if these this area. synonymous early on or selecting one factors are addressed. Should this be the (22) Comment: Those portions of the term and using it throughout the case, but suitable habitat is otherwise Verde River downstream of Tapco document would be of great value present, these streams could ultimately should be removed from the Our Response: We have added prove beneficial in the conservation of designations, as this area is developed. definitions of reintroduction, the species. Our Response: Development, in and translocation, and augmentation to the (19) Comment: The lower 33.7 of itself, does not make an area text. Briefly, a reintroduction occurs kilometers (20.9 miles) of Oak Creek unsuitable for spikedace or loach where the species was known to be should not be included within the minnow. The Verde River through these present previously, but is believed designations because there are no areas is classified as perennial, and likely absent based on a lack of known records of either species, and spikedace are known to have occurred detections; translocation occurs where this area is degraded. The upstream throughout this portion of the Verde the species was not known to be present portions are in an urban area. In River, while loach minnow records previously, and augmentations are addition, this area is not currently being occur both above and below Tapco. The additions of more fish to streams as considered for translocation. area may ultimately prove to provide follow-up to reintroduction or Our Response: We agree that there are suitable habitat, or serve as an important translocation efforts. no known records from this stream for connective corridor between upstream either species, that some degradation Comments From States portions of the Verde River and has occurred, and there are no downstream areas, including tributary Section 4(i) of the Act states, ‘‘the translocation efforts currently planned streams. Secretary shall submit to the State for this stream. However, spikedace and (23) Comment: The Salt River within agency a written justification for his loach minnow are known to have the Salt River Canyon Wilderness failure to adopt regulations consistent occurred in the mainstem Verde River should be included as there are records with the agency’s comments or both above and below Oak Creek. Oak of spikedace from the Salt River petition.’’ Comments received from the Creek does have perennial flows, and confluence with Cibecue Creek. State regarding the proposal to designate none of the degradation is permanent in Our Response: There are records for critical habitat for the spikedace and nature (i.e., a dam, reservoir, or other spikedace at the confluence with loach minnow are addressed below. permanent alteration). Because of its Cibecue Creek, with the most recent in (18) Comment: Some commenters lack of occupancy records, Oak Creek is 1967. Under the ruleset, however, we questioned whether it is appropriate to classified as an essential area for the categorized this stream as a 1b stream, include as critical habitat those areas conservation of both species. For indicating the stream has been used for reintroduction sites when no spikedace, it was classified as a 2a permanently altered by Theodore success has yet been shown. They note stream, indicating that it will serve as an Roosevelt Dam and Lake, so that that, if the species do not become extension of habitat in the unit. For restoration is unlikely. established then it is likely that the loach minnow, it was classified as a 2b (24) Comment: Bass Canyon dries up habitat is unsuitable and, therefore, stream, indicating it can serve to expand into pools and is therefore not suitable should not be included in the critical the geographic distribution of the for either species and should be habitat designations. If designated, the species across its historical range. removed from the designations. AGFD would like the rule to state these (20) Comment: The lower portions of Our Response: We have reviewed the areas will be removed if it is determined Fossil Creek below the barrier should site and spoken with individuals they are unsuitable. This would apply to not be included in the designations familiar with the site’s flow regime and Rock and Spring Creek, Fossil Creek, because of the presence of nonnatives. habitat. While the stream is not Hot Springs Canyon, Redfield Canyon, Our Response: We agree that considered perennial, it provides and Bonita Creek for both species, and nonnative species are present in the suitable expansion habitat when the Blue River for spikedace only. lower portions of Fossil Creek. flowing, and is a tributary to Hot
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10878 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
Springs Canyon. As such, we have (29) Comment: The lower 4.2 monitoring data, ‘‘synthesis’’ documents classified it as an essential area (see kilometers (2.6 miles) of Negrito Creek are the only source of information discussion at 75 FR 66504). Hot Springs are proposed as critical habitat and available. Wherever possible, we Canyon is the site of translocated stated as occupied. The NMDGF is attempt to use the original information. populations of spikedace and loach unaware of any records for this area. (33) Comment: Stock tanks are an minnow. These species were placed in The lower 2.0 kilometers (1.25 miles) of attractive nuisance and potential Hot Springs Canyon in 2007, with Negrito will likely provide suitable sources of nonnative fishes, and the annual augmentations of fish. habitat. problem of nonnatives caught in stock Monitoring efforts showed that both Our Response: Dennis Miller (1998) tanks and being released in the river species were present in 2011 (Robinson, identified loach minnow from Negrito should be identified. 2011, pers. comm.). We anticipate that Creek in 1998, approximately 2.0 km Our Response: We agree that stock this translocation effort will be a (1.25 mi) upstream of its confluence tanks can be a concern in native fish success, and that Bass Canyon will serve with the Tularosa River. While the management, and have added language as an extension of habitat in Hot Springs known collection sites are at this point, to our threats assessment to address this Canyon. biologists from the Service and NMDGF issue. (25) Comment: The designations had determined that Negrito Creek (34) Comment: The proposed rule should exclude areas that have an provided suitable habitat upstream as states (p. 66483) that population economic impact on recreational far as the Cerco Canyon confluence, as estimates have not been developed as a fishing. reflected in the designation. result of the difficulty in detecting the Our Response: Potential changes to (30) Comment: One State commenter species. The NMDGF notes that they do recreational activities are discussed in noted a lack of awareness of any records not find them difficult to detect in Section 6 of the draft economic analysis. for Frieborn Creek and stated that appropriate habitats with appropriate Potential impacts on recreational fishing Frieborn Creek is marginal habitat for gear, but rather that population losses are specifically discussed and either species. estimates likely have not been estimated in Sections 6.4.1 and 6.5.2. Our Response: Two monitoring efforts attempted, or reported, because of broad The draft economic analysis notes that in 1998 and 2000 located loach minnow confidence intervals associated with the AGFD has no planned or ongoing in Frieborn Canyon, indicating the estimates, the considerable effort sportfish stocking projects on occupied suitability of the stream for loach associated with making reliable reaches, with the exception of native minnow (ASU 2002; NMDGF 2008). We population estimates, and the brief time Apache trout stocking on Fossil Creek. anticipate translocating spikedace to the any estimate is relevant. In New Mexico, the NMDGF stocked the Blue River system within the next 2 to Our Response: Spikedace and loach East Fork Gila River in 2008 and 2009 3 years, and conclude that Frieborn minnow can be difficult to detect when and plans to continue stocking in the Canyon may serve as expansion habitat at low numbers, as is the case for Eagle future. However, the Service completed for spikedace as well. Creek or the Verde River. We agree, a biological opinion on sportfish (31) Comment: We recommend that however, that at least in part, stocking activity in August 2011 that the portions of the Gila River mainstem population estimates have not been suggests that future stocking activities that are owned by FMC not be excluded attempted for the reasons cited in this will not be found to jeopardize from the final designations unless they comment. In addition, we note that spikedace or loach minnow. adopt comprehensive plans that protect different methodologies are applied in (26) Comment: Those portions of the and enhance habitat within their different streams by different survey Verde River covered by the SRP HCP ownership. teams, which can also complicate should be excluded from the Our Response: Under Section 4(b)(2) discussions on population numbers designations. of the Act, we consider a number of across the species’ ranges as a whole. Our Response: While implementation factors, during the development of a (35) Comment: Soles 2003 should be of the HCP will provide some critical habitat designation, including added as a citation to the statement ‘‘In conservation measures for spikedace whether the landowners have developed the Gila River, agricultural diversions and loach minnow on the Verde River, any HCPs or other management plans and groundwater pumping have caused the HCP does not involve all for an area. As with the 2007 declines in the water table, and surface landowners on this portion of the Verde designation, FMC provided a flows in the central portion of the river River, and therefore does not allow for management plan for the Gila River, basin are diverted for agriculture.’’ exclusion of the area under section Mangas Creek, and Bear Creek in New Our Response: We have reviewed 4(b)(2) of the Act. Mexico. We have determined that it is Soles 2003 and added the citation as (27) Comment: Inclusion of Mangas appropriate to exclude portions of these recommended. Creek is appropriate. three streams on FMC lands based on (36) Comment: Under the Water Our Response: We agree, however, we their management plans, with withdrawals section, the AWSA is have opted to exclude portions of additional conditions. See the discussed as a potential diversion on the Mangas Creek due to protections Exclusions section for further detail. Gila River. The AWSA also has the afforded by the FMC management plan (32) Comment: We recommend that potential to facilitate diversions on the for this area. We are retaining 1.2 km original work, especially published, be San Francisco River. (0.7 mi) of Mangas Creek that are not on the primary source of information rather Our Response: This is correct, and we lands owned by FMC. Please see the than synthesis documents or reports have made appropriate modifications to discussion under the Exclusions section (e.g., Sublette et al. 1990, Propst 1999, reflect this information. for additional detail. and Minckley and Marsh 2009) unless (37) Comment: Additional or different (28) Comment: The decision not to synthesis documents report original citations should be used for portions of include the Agua Fria River and those sources of information. the document, including Propst et al. portions of the Gila River within Our Response: We are charged with 2008, Paroz et al. 2009, and Pilger et al. Arizona is appropriate. using the best scientific information and 2010. Our Response: We agree with this commercial information available in a Our Response: We reviewed the comment. rule. In many instances, especially with citations and the text in the proposed
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10879
rule, and have made appropriate Our Response: This correction has remains in this area and may indicate modifications in the final rule. been made within the text, with an that the area serves as a refuge. While (38) Comment: The proposed rule appropriate citation. the diversion structure may serve as an states that the State of New Mexico impediment to upstream movement, it General Comments Issue 1: Biological lacks adequate regulatory mechanisms is not necessarily a barrier to upstream Concerns to address the issue of introduction and movement of fish (Propst, 2011, pers. spread of nonnative aquatic species. It (44) Comment: There were many comm.). With water present below the should be noted that New Mexico State comments submitted with technical diversion, and the presence of spikedace regulations prohibit the use of corrections, additional literature in this area, albeit not consistently, over nonnative baitfish, except for the use of citations, and specific biological the last 50 years, we conclude it is fathead minnow (Pimephales promelas) information on stream segments. appropriate to retain this area within the as a baitfish in the Gila and San Our Response: We have reviewed all critical habitat designations. Francisco river drainages. of these comments and have (47) Comment: Bass Canyon is Our Response: This comment is, in incorporated the information in this unsuitable for spikedace and loach part, correct. The remainder of the text final rule, as appropriate. minnow due to lack of flows. on this point states that regulation of (45) Comment: We received Our Response: We have visited the activities that can lead to the spread of comments that Bear Creek should be site and conclude that, while it may not nonnative species is inadequate, as included within the designation for be classified as perennial, it contains many introductions are the result of loach minnow, and conversely that Bear adequate flows and appropriate incidental or unregulated actions. Creek should not be included within the substrates during significant portions of (39) Comment: The NMDGF suggests designation. the year to support the two species. In adding language to the discussion on Our Response: In reviewing the addition, it joins with Hot Springs ‘‘Available Conservation Measures’’ information on Bear Creek, including Canyon, where a spikedace and loach regarding repatriation of spikedace to surveys and habitat, we have minnow translocation effort has been the San Francisco River, removal of determined that inclusion of Bear Creek under way since 2007. Bass Canyon can nonnative fishes from the Forks area, is appropriate. Please see the discussion serve as an extension of habitat for that beginning in 2007, and removal of on Bear Creek in the section on population, and we are therefore nonnative fishes in Little Creek Summary of Changes from Proposed retaining Bass Canyon within the beginning in 2010; and efforts to acquire Rule. designations at this time. and hold separate stocks of spikedace (46) Comment: The lowermost (48) Comment: The Biological and loach minnow in a refuge facility. mileage on the Gila River in New Opinion issued by the Service for Fort Our Response: Appropriate Mexico, as it travels through the Virden Huachuca on 14 June 2007 states that modifications were made to this section Valley, is predominantly dry, and has the ‘‘most likely sites for such in the final rule. three diversion structures, rarely reestablishments appear to be springs (40) Comment: The rule should be supports fish, and is not connected to within the tributaries to the mainstem updated to include Propst et al. 2008 as any other suitable habitats at this time. San Pedro River rather than along the a reference regarding nonnative fishes, Our Response: We reviewed mainstem river where critical habitat in place of Propst 1986. occupancy data for this area. Spikedace would be designated. A scientific basis Our Response: We have included have been detected occasionally within for changing the approach from Propst et al. 2008 in several places the area downstream of the diversion reestablishing the spikedace at springs within the document in regards to structures during surveys conducted within the tributaries to the mainstem nonnative fish. over a 50-year period, with the most San Pedro River needs to be provided. (41) Comment: The final rule should recent detection in 1999 (Rinne et al. Our Response: This is an error in the include information about competition 1999, p. 22; NMDGF 2008). Spikedace biological opinion, and not in the with and predation by smallmouth bass and loach minnow have been detected proposed rule. The habitat use, as as a likely threat, and Pilger et al. 2010 immediately upstream of the diversion described in the proposed rule at pages should be added as a citation. more recently, into 2003, and the area 66483 and 66497 through 66498 is Our Response: Smallmouth bass are around the Sunset Diversion had correct. All reestablishment efforts to mentioned in several places within the sufficient potential for spikedace and date have occurred on flowing streams rule. Pilger et al. 2010 is also cited in loach minnow that it was added to (Hot Springs Canyon, Redfield Canyon, the text. Please see the Disease or regularly monitored sites in 2010 and Fossil Creek, Bonita Creek, and the San Predation section. In addition, results of 2011 (Propst, 2011, pers. comm.). Francisco River) and not in springs. the study by Pilger et al. 2010 are With respect to flow patterns, the (49) Comment: The proposed rule discussed. nearest gage station is just downstream assumes that these species were present (42) Comment: Riffles are identified as of the confluence with Blue Creek, so in the San Pedro River at the time of a PBF for spikedace, but they prefer does not accurately portray the flow listing in 1986 but were undetected due runs and glides, not riffles. patterns below the diversion structures. to infrequent or inconsistent surveys. Our Response: While we agree that The next nearest USGS gage Our Response: This statement is spikedace are primarily associated with downstream of the barriers is 09439000 incorrect, and reflects a runs and glides, they may be associated on the Gila River at Duncan. The misunderstanding in the terminology with other habitat types and many monthly statistical data for this gage, used within the proposed rule. Our authors (Barber and Minckley 1966, p. recorded since 2003, show that flows determination of ‘‘occupied at listing’’ 31; Propst et al. 1986, p. 12; Rinne and have been at 0 cfs on one occasion, and was based on whether or not the species Kroeger 1988, p. 1; Rinne 1991, pp. 8– been below 5 cfs on five occasions in was present up to the date of listing in 10) note use of riffles by spikedace. the months of May, June, or July. 1986, and not on the presumption that (43) Comment: The San Francisco However, in the area immediately the species was present but undetected. River dries annually through the Alma downstream of the Sunset Diversion, It should be noted that in the NOA, we Valley and is not perennial throughout native suckers and channel catfish are announced that we were modifying our as stated on page 66515. frequently present, indicating that water definition of occupied to improve
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10880 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
clarity on our approach to the critical assemblages where nonnatives are Our Response: The Act provides habitat designation. In the NOA, we present. definitions of threatened and defined areas occupied at the time of (52) Comment: The Service failed to endangered species. A threatened listing to be those areas where the fish establish that there is a need for species is one which is likely to become were identified in the original listing uplisting spikedace and loach minnow, an endangered species within the documents, as well as any additional and does not give population estimates foreseeable future throughout all or a areas determined to be occupied after or know the status of the species. The significant portion of its range. An 1986. Our reasoning for the inclusion of Service should provide actual endangered species is one which is in these additional areas (post-1986) is that population counts. danger of extinction throughout all or a it is likely that those areas were Our Response: Please see our significant portion of its range. We occupied at the time of the original response at Comment 9 above, which provide justification for the listings, but had not been detected in addresses the status of the species. reclassification within the proposed and surveys. This change in definition does (53) Comment: The Service is not final rule, and note that we determined not result in a change to any of the areas using best scientific and commercial that listing the species as endangered included or excluded as critical habitat information available. Fifty percent of was warranted but precluded in 1994 in the proposed rule. the citations are 10 or more years old. (59 FR 35303). In part, reclassifying the (50) Comment: The statement that A number of links to Web sites cited two species to endangered status fulfills ‘‘After leaving the Mogollon Mountains were broken; at least nine of the our obligation for finalizing the in New Mexico, the Gila River is citations referenced data about species reclassification. In addition, affected by agricultural and industrial other than the spikedace or loach appropriately classifying the species water diversions, impoundment, and minnow, or referenced different notifies Federal agencies of the correct channelization’’ is incorrect. There have ecological environments than that of the status of the species so that they can been no significant modifications to the spikedace or loach minnow. manage for the species appropriately. river channel or further commercial Our Response: Critical habitat designations use the best available The Service treats endangered animal activities along the river from Mogollon species similarly to threatened species Creek to the New Mexico/Arizona State commercial and scientific data to identify lands that contain the physical with regard to prohibitions on take and line since listing these species in 1986. requirements for consultation by Our Response: This statement and biological features essential to the Federal agencies. However, the Act encompasses present uses of the area as conservation of the species. The Act provides management flexibility for well. Propst et al. 2008 (pp. 1237–1238) requires that we use the best available threatened species that is not allowed notes that irrigated agriculture and scientific information regardless of the for endangered species. The Service livestock grazing are the predominant age of the information. In some cases, sometimes makes exceptions to the take uses, and that human settlement has the best available information is derived rule for threatened species (for example, increased since 1988. Soles (2003 p. 69) from different species with similar to allow some traditional land-use notes that diversions for agriculture in habitat requirements. In designating activities to continue), and is able to the Cliff-Gila Valley are modest, but critical habitat for spikedace and loach issue take permits to allow more that, during dry seasons, may remove minnow, we have used the best the Gila’s entire baseflow of about 40 available scientific and commercial activities that affect threatened species cubic feet per second (cfs). information, including results of than would be permitted for endangered Part of the language in this statement numerous surveys, peer-reviewed species. pertains primarily to the Gila River literature, unpublished reports by (56) Comment: We received several below the Arizona border. We have scientists and biological consultants, comments indicating that the Service separated these statements for accuracy and expert opinion from biologists with did not adequately show that an and added the Propst et al. 2008 and extensive experience with these species. individual land use necessitated Soles 2003 citations to the rule. Further, information provided in designation of critical habitat. (51) Comment: Additional data comments on the proposed designations Specifically, one comment noted that should be supplied to support the and the draft environmental and numbers of cows and elk are down and conclusion that declines of native fish economic analysis were evaluated and that the Service should justify species appear linked to increases in taken into consideration in the designation of critical habitat in light of nonnative fishes (p. 66491). FWS cites development of these final designations, the reduced populations of grazing data with a 28-year gap, which is not as appropriate. animals. Another comment noted that good science because the periodicity (54) Comment: The Service has failed the Service failed to provide cannot be used to establish a reasonable to specify what ‘‘residual effects of past justification for the designations of trend. livestock grazing and impacts to critical habitat due to improperly Our Response: We have added uplands, riparian vegetation’’ and managed wildfire and the use of additional information from Propst et al. streams actually entail. chemicals for fire suppression. 2008. Propst et al. 2008 found that Our Response: Please see the Our Response: We note that grazing physical modification of streams, discussion on livestock grazing under animals and fire management are only coupled with widespread introduction ‘‘The Present or Threatened Destruction, one of several concerns for spikedace and establishment of nonnative aquatic Modification, or Curtailment of Habitat and loach minnow. Please see the species led to the decline of native or Range’’ section. This section outlines discussion under Summary of Factors fishes (Propst et al. 2008, p. 1236, 1246). the types of impacts that can occur as Affecting the Species. This study took place just downstream a result of improper livestock grazing. (57) Comment: The spikedace and of the town of Cliff. While this study We used the term ‘‘residual effects’’ to loach minnow coexisted with the does implicate both altered flow regimes indicate that, in some areas, these diversion dams that have been a part of and nonnative aquatic species, Propst et impacts are due to past, and not the local agricultural culture and al. 2008 (p. 1246) conclude that ongoing, livestock grazing. heritage for hundreds of years. The managing for natural flow alone would (55) Comment: The Service should Service should demonstrate how water not be sufficient to conserve native fish state what is accomplished by uplisting. uses today could impact habitat
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10881
although these same uses have not done information available. The discussion (64) Comment: Recreation is listed as so in the past. on livestock grazing cites many studies a threat for the Gila River. No recreation Our Response: Please see the and authors on the topic of livestock occurs in the Cliff-Gila Valley. discussion on water diversions under grazing, and we have added a citation Our Response: Our list of potential the subheading of Water Withdrawals, from Medina et al. (2005). We have impacts to spikedace and loach minnow which details the potential impacts reviewed additional work by Rinne for the Gila River encompassed more associated with diversions and water (Rinne 1999b) and considered the than the Cliff-Gila Valley, including withdrawals. In addition, climate information in this literature. We lands managed by the USFS, and we change and drought are compounding believe the discussion on livestock conclude the original assessment is the impacts of water withdrawals on grazing and impacts to fish provides a correct. these species. thorough discussion on this topic. (65) Comment: Occupancy by (58) Comment: The Service has failed (61) Comment: Nonnative fish are the spikedace and loach minnow in Eagle to acknowledge the causes for portions biggest problem for spikedace and loach Creek for only brief periods of time of the rivers, streams, and tributaries minnow, and this is a threat that indicates that they suggest fish may indicated on the maps as critical habitat requires removal of the nonnatives and have been placed there via bait bucket periodically drying up. Human construction of barriers to prevent their transfer. population, human use, livestock and spread, neither of which is facilitated by Our Response: We have no evidence wildlife populations and water designation of critical habitat. of bait bucket transfer, or any reasons to believe that such a transfer occurred. diversion do not account for this Our Response: The purpose of Marsh et al. 1990 (p. 112) provide a phenomenon. According to the designating critical habitat is not to discussion on the likely cause for the Northern Arizona University Forestry remove threats for the species, but is sporadic records of spikedace and loach Department, the reason for reduced instead to identify those areas that are minnow in Eagle Creek, concluding it water flow is due to in excess of 300 essential to the conservation of the likely that the species were missed in percent greater tree density today, species. While designation of critical compared to presettlement. The Service some survey efforts while detected in habitat does not remove the threat from should examine the relationship others due to their tendency to expand nonnative species, it does identify those between tree density and water and contract spatially in response to areas that are critical to the conservation reduction, and should specify amount of natural variations in their habitat. We of the species, which allows land water flow reduction due to tree density further note that portions of Eagle Creek managers and others to prevent further vs. other potential causes. The Service are not readily accessible, and are not degradation in areas critical to the should further specify how designation regularly surveyed, so that the species species’ conservation of critical habitat would address the could have been missed, yet present, (62) Comment: The current threat to reduction of tree density issue. during some of the survey efforts. spikedace and loach minnow from Our Response: No literature citations Finally, we note that there are other nonnative fish in the Gila River and were provided with this comment, and gaps in the survey record for other Mangas Creek where they pass through we were unable to locate any literature streams. These gaps may be due to a FMC lands is greatly overstated. relevant to this comment. Please note lack of survey efforts, or to lack of Our Response: The discussion of that a critical habitat designation is not detection during survey effort. For Mangas Creek and the Gila River the process through which we rule out example, on the Verde River, spikedace encompasses landowners other than habitat suitability due to threats, nor is were not detected from 1950 to 1975 FMC, and there are additional it the process through which we (ASU 2002). conduct research as suggested in the management considerations for these (66) Comment: The lower San comment. areas. We have updated the information Francisco is not occupied, with nearest (59) Comment: The Service has failed for Mangas Creek. detections 20 miles upstream, in the to provide justification for the critical (63) Comment: Road impacts to the vicinity of Apache-Sitgreaves National habitat designations due to human use species would be dealt with through Forests boundary. of resources, including agriculture, section 7, and, therefore, designating Our Response: The San Francisco mining, road building, residential critical habitat would not address this River, as a system, was classified as development, and recreation. The issue. occupied at listing, and the designation Service should specify how these uses Our Response: This comment is reflects this. contribute to habitat loss and stream incorrect. First, critical habitat (67) Comment: Both Eagle Creek and degradation. designation is not the process through the San Francisco River have nonnatives Our Response: Please see the section which we rule out habitat suitability and are not occupied by either on Summary of Factors Affecting the due to threats, but the process through spikedace or loach minnow. Neither can Species. This section addresses these, as which we identify habitat that provides therefore be considered essential to the well as other natural and human use for one or more of the life-history conservation of the species. impacts to the species. functions of the species. Second, should Our Response: We agree that both (60) Comment: We received several future road projects have impacts on Eagle Creek and the San Francisco River comments indicating that we failed to critical habitat, section 7 would be the have nonnative aquatic species; look at the benefits of grazing to fish or process used to identify and minimize however, this alone does not preclude wrongfully assumed that livestock those threats, as appropriate. In areas them from being considered for critical grazing is harmful to spikedace and where the species are not currently habitat designation. Further, as noted in loach minnow and their habitat. In some present, but that are designated as the proposed rule, we consider Eagle instances, commenters noted that the critical habitat, it would be the nexus Creek to be occupied by both species, work of Rinne and Medina should be between the project and critical habitat while the San Francisco River is included within our review. which would lead to section 7 occupied by loach minnow and the site Our Response: Please see the response consultation under the Act, assuming of a reintroduction effort for spikedace. to comment 51 above regarding use of the action was either Federally funded, (68) Comment: The presence of a large the best scientific and commercial permitted, or carried out. nonnative fish population and refugia
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10882 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
that allow nonnative fish to persist and and commercial information available with a 28-year gap, which is not good repopulate portions of proposed critical when evaluating areas to be included science because the periodicity cannot habitat on Eagle Creek and the lower within critical habitat; however, the be used to establish a reasonable trend. reach of the San Francisco River critical habitat designation process does Our Response: This comment following significant flood events make not undertake studies of the kind addresses the information found in the these streams unsuitable for both recommended. proposed rule under the discussion at spikedace and loach minnow. Absent a (71) Comment: Fossil Creek is the Factor C for Predation. Please also see comprehensive management plan only stream on the Tonto National the information on competition under agreed to by affected parties, the Forest that is occupied by loach Factor E on Nonnative Fishes, which complex land ownership patterns and minnow. Translocations for spikedace provides additional citations. current uses of lower Eagle Creek and appear to be unsuccessful. Inclusion of (74) Comment: Portions of the the lower San Francisco River Fossil Creek as critical habitat for proposed critical habitat in Units 6, 7, substantially compromise the logistics spikedace may be premature. and 8 overlap sections of river currently and practicability of achieving adequate Our Response: We recognize that occupied by Gila trout. The designations control of nonnative fish required to Fossil Creek is a translocation site for appear to create a conflict in make the segment of these rivers both spikedace and loach minnow. We management objectives; for example, suitable for spikedace and loach are designating Fossil Creek as a 2a adult Gila trout potentially prey on minnow. stream, indicating that it could serve as juvenile spikedace and loach minnow. Our Response: Critical habitat an extension of habitat in the unit, as The dynamics of this potential fish designation is not the process through existing habitat is insufficient to recover community are not yet clearly which we rule out habitat suitability the species. Please note the updated understood. due to threats, but the process through language regarding the potential success Our Response: We would agree that which we identify habitat that provides of the spikedace reintroduction effort in the dynamics of the interactions for one or more of the life-history the section below on Summary of between Gila trout and spikedace and functions of the species. As defined in Changes from Proposed Rule. In loach minnow may not yet be fully section 3(5)(A) of the Act, critical addition, please see our response at understood. However, this does not habitat means (i) the specific areas Comment 18 to a similar question. eliminate the possibility of the three within the geographical area occupied (72) Comment: The statement ‘‘the species occurring in the same stream. by the species, at the time it is listed in majority of historical native habitat’’ is For example, both Gila trout and accordance with the provisions of overbroad and unclear as it applies to spikedace are known to occur in the section 4 of the Act, on which are found the Gila River in New Mexico. Also, this Verde River. those physical or biological features (I) statement is incorrect, as it pertains to (75) Comment: Spikedace were found essential to the conservation of the the Gila River in New Mexico, and the in the Middle Fork Gila River in 2008 species and (II) which may require activities described have not, nor do and 2010. special management considerations or they threaten destruction, modification, Our Response: In response to this protection. During the designation or curtailment of the loach minnow or question, we have updated our process, the Service identifies threats to spikedace habitat or range in New information on the Middle Fork Gila the best of our ability where they exist. Mexico. Within New Mexico, the Gila River to reflect that spikedace were Identification of a threat within an area River has not been altered significantly found in the Middle Fork Gila River in does not mean that that area is no longer since the time of listing in 1986. The these years (Propst et al. 2009, p. 10; suitable, rather that special management middle, east, and west forks of the Gila Gilbert 2011 pers. comm.). or protections may be required. The all lay within the Gila National Forest (76) Comment: Propst et al. (2008) need to address a particular threat, such and watershed conditions have determined that the primary driver as nonnative fishes, in a portion of the improved in these areas. affecting native fish in the Upper Gila critical habitat designation may or may Our Response: This statement is River and San Francisco River not arise in the future. Further, found at the beginning of the discussion catchments was long-term discharge, describing both the areas that support at Factor A, the Present or Threatened with nonnative fish exacerbating the PBFs and the threats to those areas Destruction, Modification, or effects of low discharges. In the water assists resource managers in their Curtailment of Habitat or Range, and withdrawal section, it should be noted conservation planning efforts for applies to the species rangewide, not to that both existing and potential water threatened and endangered species like the Gila River in New Mexico withdrawals are one of the primary spikedace and loach minnow. specifically. As noted elsewhere in the threats to spikedace and loach minnow. (69) Comment: Eagle Creek is listed as proposed rule, we estimate the present Long-term reductions of instream flow perennial, and this is incorrect. range of spikedace to be approximately have been shown to negatively affect Our Response: We have modified the 10 percent of its historical range, while both species. description of Eagle Creek to indicate that of loach minnow is estimated to be Our Response: In response to this and that the stream is largely a perennial 15 to 20 percent of its historical range. other comments, we have incorporated system. While watershed conditions may have information from Propst et al. (2008) (70) Comment: We received improved within the Gila National within the Flow Regime, Nonnative comments that additional studies were Forest, there are still threats in those Fishes, and Connectivity discussion needed, including a study of the future areas, including wildfires, residual under Factor E above. impacts of increased vegetation near the impacts of livestock grazing, and (77) Comment: A settlement San Pedro River on the ability of competition with and predation by agreement regarding pumping wells in groundwater to reach the river, and on nonnative species. the Big Chino Valley was effected pebble counts or other substrate (73) Comment: Additional data between the Salt River Project and the evaluations of spikedace and loach should be supplied to support the towns of Prescott and Prescott Valley in minnow critical habitat. conclusion that declines of native fish 2010. This agreement will allow the Our Response: The Service makes species appear linked to increases in withdrawal of approximately 2.5 billion every attempt to use the best scientific nonnative fishes. The Service cites data gallons of water/year from the Big Chino
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10883
Valley aquifer, and could seriously Our Response: We include a Our Response: We agree, and have impact surface flow in the upper Verde discussion of the impacts of livestock modified the table to reflect this for all River. Implementation of this proposal grazing within Factor A of the rule. We translocated or reintroduced lends credence to the need for uplisting note that adverse effects to species such populations. to endangered of spikedace. as spikedace and loach minnow are (85) Comment: Critical habitat in Our Response: We have added decreasing, due to improved Fossil Creek should be extended information and citations regarding the management on Federal lands (Service upstream to Fossil Springs. Both Agreement in Principle signed between 1997c, pp. 121–129, 137–141; Service spikedace and loach minnow have been Salt River Project, Prescott, and Prescott 2001, pp. 50–67), largely due to translocated into Fossil Creek between Valley indicating that they have agreed discontinuing grazing in the riparian the springs and downstream to Irving. to try to move forward without litigation and stream corridors. However, we also Fossil Creek is considered recovery in the development of the Big Chino note that livestock grazing within habitat for loach minnow and project. watersheds where spikedace and loach spikedace, but the habitat is threatened (78) Comment: Some of the language minnow and their habitats are located by recreational development and under the Nonnative Fishes subheading continues to cause adverse effects. degraded by excessive human use. of Factor E appears to discount the Following finalization of the critical Fossil Creek was designated a Wild and detrimental effect of larger nonnative habitat designations, existing Scenic River in 2010. species, e.g., green sunfish, smallmouth consultations on livestock allotment Our Response: Please see the response bass, flathead catfish, and others, all of management plans may require to comment 7, as well as the discussion which are highly predacious on additional consultation. below on Summary of Changes from spikedace and loach minnow. (82) Comment: The recovery Proposed Rule. Our Response: This language has been objectives for spikedace and loach (86) Comment: It is unclear why West modified to indicate the specific minnow in the current recovery plans is Clear Creek was excluded from critical problems associated with small and delisting through protection of existing habitat. The lower 7.2 miles of West large nonnative fish species. populations and restoration of Clear Creek was included in the 2000 (79) Comment: Many of the populations into historical habitats. The designation. Our Response: We are including the descriptions of PBFs essential for downlisting and delisting criteria lower 10.9 km (6.8 mi) of West Clear spikedace and loach minnow are vague expressed in the proposed rule make no Creek for spikedace only, as there are no and undefined. They provide little mention of the existing natural known records for loach minnow from detail as to their exact meaning. While populations or their habitats. Assuring recovery and long-term conservation of this stream. this may be a result of the relative lack (87) Comment: We do not agree that existing natural populations should be of research and knowledge of the Tonto Creek, Rye Creek, and Greenback the primary emphasis in any down- or species, it should also encourage the Creek should be excluded from critical delisting proposal. Service to advocate more applied habitat. Loach minnow and spikedace investigations on the species in order to Our Response: In response to this typically co-occurred historically. The better understand their requirements. comment, we have amended the lack of records of loach minnow from Our Response: We acknowledge that language to indicate that, in addition to Tonto Creek was more likely an artifact additional research would be valuable; increasing the number of occupied of incomplete sampling, rather than lack however, the discussion under the streams, there will be a continued of occurrence. We believe that Tonto subheading of PBFs presents the best protection of existing populations and Creek does have suitable habitat for information currently available for the habitat. This was implied in the text of loach minnow and is worthy of species. the proposed rule, but we have clarified inclusion. (80) Comment: In addition to fishes, the language to place more emphasis on Our Response: Please see the response nonnative species that also affect protection of existing populations and to comment 8 above. spikedace and loach minnow include habitats. (88) Comment: We question why West parasites, crayfish, mollusks, and (83) Comment: The Service should Fork Black River was excluded from probably others. include bridges, diversion structures, critical habitat. The lower 6.4 miles was Our Response: We have modified the and other structures in the designations. included in the 2000 designation. language under the subheading of Although they lack the PBFs, it is often Our Response: We have included Nonnative Aquatic Species to reflect these structures that cause the most within the designation 19.1 km (11.9 this. Information regarding other degradation, and including them would mi) of the East Fork Black River, 7.1 km nonnative aquatic species is found provide impetus to management (4.4 mi) of the North Fork East Fork under Factor C. agencies to modify their detrimental Black River, 3.4 km (2.1 mi) of Coyote (81) Comment: Although the concern features in order to reduce effects on the Creek, and 2.3 km (1.4 mi) of Boneyard for livestock grazing as a threat has species during both normal and Creek. There are no known records from lessened, the threat still remains. extraordinary maintenance. the West Fork Black River. East Fork Livestock permittees on the National Our Response: Generally, areas Black River is directly connected to the Forest lands continually request without PBFs cannot be considered North Fork East Fork Black River, where livestock access to riparian areas that essential to the conservation of the loach minnow have been detected, were closed for resource protection. species. However, it should be noted whereas the West Fork Black River is Also many of the areas proposed for that, should one of these features not directly connected, and therefore critical habitat are not currently require maintenance, the Service would does not provide an extension of habitat protected from livestock, either by evaluate potential up and downstream (i.e., is not a 2a stream) for loach structures or in their allotment effects from such an action, assuming it minnow in this complex. management plans. Additionally, has a Federal nexus. (89) Comment: Threats along the Gila disturbance of soil and vegetation in (84) Comment: Current occupation of River include water withdrawal, stream upper watersheds will continually Fossil Creek and San Francisco should channelization, water quality increase sedimentation in drainages. be uncertain. degradation, roads and bridges, and
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10884 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
livestock grazing, as well as the spread for one or more of the life-history recovering threatened and endangered of nonnative species and climate functions of the species. Please see species. At this time, however, we have variability and change, especially additional discussion on this point at not received a complete management drought. comment 66. plan from the Upper Eagle Creek Our Response: This issue has been (93) Comment: Eagle Creek has two Watershed Association and, therefore addressed within the rule. Please see the year-round stream crossings and a third cannot exclude this area from the discussion under Unit 8 for special seasonal crossing, and all are on private designations. management considerations, as well as land. There are private land holdings (96) Comment: There were several the information on climate change and from Honeymoon Campground south on comments referring to the unsuitability nonnative species. Eagle Creek. In addition, there are of the San Pedro River as critical (90) Comment: The proposed rule Upper Eagle Creek Watershed habitat, especially because of the notes that grazing may cause increased Association Management plans. For nonnative fishes and problems with erosion and deposition and increased these reasons, Eagle Creek should be pollution in the upstream portions of sediment loads from livestock, but exempt from critical habitat. the river, which is in Mexico. nowhere in the proposed rule does the Our Response: Critical habitat Our Response: The Service is aware of document acknowledge the Chitty flood designation does not impose restrictions the challenges posed by nonnative of July 2007 from Chitty Creek that on private lands unless Federal funds, aquatic species in the San Pedro River, changed the entire area and affected permits, or activities are involved. particularly given that a suitable barrier East Eagle and Eagle Creek. The Chitty, Federal agencies that undertake, fund, site has not been found at this time. Hot Air, and Eagle wildfires have or permit activities that may affect However, we have determined that occurred since 2007. The Clifton Range critical habitat are required to consult inclusion of the San Pedro River may District under the Mogollon Rim is with the Service to ensure that such impact operations at Fort Huachuca prone to large lightning strikes and has actions do not adversely modify or critical to national security. Therefore, no prescribed burns scheduled; destroy designated critical habitat. we are excluding the San Pedro River as therefore, the potential of another There will likely be minimal, if any, critical habitat for the two species. See wildfire is evident and large-scale impact to private land holdings along the Exclusion discussion in the text. erosion occurring, making East Eagle Eagle Creek from the critical habitat (97) Comment: Does the Service have and Eagle Creek not suitable for designation, unless a Federal nexus any information regarding possible spikedace and loach minnow as stable exists, as described above. Appropriate causes of the spikedace decline in New habitat. exclusions along Eagle Creek have been Mexico and the magnitude of the Our Response: We have added made for the San Carlos Apache Tribe decline? information regarding wildfires to the and FMC. With respect to the Upper Our Response: The proposed and final discussion for Eagle Creek. Eagle Creek Eagle Creek Watershed Association rules contain a complete five-factor continues to support one or more of the Management Plans, no such analysis, which describes threats to the PBFs for spikedace and loach minnow, management plan was submitted to the species and presents the best available and we therefore believe it is reasonable Service for consideration during this scientific information. to include Eagle Creek within the rulemaking. (98) Comment: Proposed critical designation. East Eagle Creek was not (94) Comment: Eagle Creek should be habitat creates a conflict in management included at the proposed rule stage, and excluded as neither species has been objectives between spikedace and loach is not included in the final rule for seen there in more than 10 years. minnow and Gila trout. either species. Our Response: We refer the reader Our Response: There is some overlap (91) Comment: The proposed rule back to the ruleset used in determining in the species’ distribution; however, states that open stock tanks contain which areas would be included as designation of critical habitat would nonnative aquatic species, which is not critical habitat, and to the definitions of lead to protection of the stream habitat documented on East Eagle or Mud occupancy within the rule. Eagle Creek in which all three species occur, and we Springs allotment, and in fact all stock was occupied at listing by both species, do not believe there will be conflicts in tanks go dry a minimum of once each and is classified as a 1a stream under management. year. the ruleset, as it continues to provide (99) Comment: The Fish and Wildlife Our Response: The discussion on suitable habitat for the species. Service has stated that any final action nonnative species and stock tanks is (95) Comment: The Upper Eagle Creek resulting from this proposed rule will be under the general discussion for Watershed Association is participating based on the best scientific and livestock grazing, and is not attributed in the Ranch Heritage alliance and has commercial data available and be as to Eagle Creek, or the East Eagle or Mud worked for the last two years with the accurate and as effective as possible. Springs allotments. National Riparian Service Team to The proposed designation of the (92) Comment: The crayfish develop plans, methods, and monitoring Redfield Canyon stream segment as population is the only increasing protocols to develop habitat for critical habitat (CH) is based upon aquatic life on Eagle Creek. Numerous numerous species. This new method inaccurate information and would have studies over the last 10 years show no should be encouraged and the Greenlee no beneficial effect on the survival of increase in native fish. A proposed rule County Rivers and tributaries should be the spikedace or loach minnow. In change is not the solution. excluded from the critical habitat representing all private landowners Our Response: We have included designations for loach minnow and along this segment and having the most discussions on the presence of spikedace to give the management plans firsthand and long-term knowledge of nonnative aquatic species and potential an opportunity to succeed. The past the area, we request that this segment be impacts to spikedace and loach plan of just fencing the riparian areas removed from consideration. minnow; however, critical habitat has not been a total success, and a more Our Response: Redfield Canyon is designation is not the process through positive approach of collaboration is currently the site of a species which we rule out habitat suitability recommended. translocation effort and it provides due to threats, but the process through Our Response: We agree that suitable habitat for the species. which we identify habitat that provides collaboration is a positive approach to However, in response to information
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10885
received during the comment period, we stream segment are listed in the unit considered excluded by text in the rule have revised the designation within descriptions for each stream. and are not designated as critical Redfield Canyon, and reduced the area The conservation value of unoccupied habitat. Should Federal action occur to be designated as critical habitat to 6.5 segments is in their ability to allow the involving these lands it will not trigger km (4.0 miles) from the confluence with species to expand from their current section 7 consultation with respect to Sycamore Canyon downstream to the distribution until recovery is reached. critical habitat and the requirement of barrier constructed at Township 11 As noted in the rule, both species no adverse modification unless the South, Range 19 East, section 36. currently occur in a small percentage of specific action would affect the PBFs in (100) Comment: Within the DEA for their historical range, and cannot be the adjacent critical habitat. the designation you state: ‘‘Conservation recovered in place. (105) Comment: The PBFs must be actions that might be performed for a (102) Comment: How the Service present before land is eligible to be variety of fish species include, but are expects success when they are only designated as critical habitat. The not limited to (7) application of going to try to manage ‘‘a portion of the Service cannot designate land that does chemicals to eradicate fishes, etc.’’ The Blue River’’ and ‘‘a small portion of not contain the PBFs, and then rely on chemical rotenone is most often used for Bonita Creek’’ for native fish is exclusion criteria and subsequent this purpose. The Bureau of confusing. We don’t know the location Section 7(a)(2) consultations to filter out Reclamation (BOR) has recently of the proposed fish barrier on the Blue land that should not have been included acquired state lands along Redfield River but we do know that the failed in the designation. Canyon where the fish were fish barrier that is being fixed on Bonita Our Response: Each of the areas translocated in 2007. BOR intends to Creek is almost at the confluence with within the critical habitat designation construct a fish barrier in the Canyon to the Gila River. That means that all the contain one or more of the PBFs, and do prevent nonnative fish from threatening fish above the fish barrier for over 14 not use exclusions or a section 7 the translocated fish. Generally miles will mix. consultation to filter out land after the Our Response: At this time, the only following such a construction project listing action is complete. In fact, portion of the Blue River that may be rotenone is used to ensure that the area exclusions are developed before the mechanically treated for nonnative above the dam is clean of nonnatives. It listing is completed, and are based on fishes are a few larger pools near where several factors, which can be found in is likely that rotenone will be used in the barrier construction will take place, the ‘‘Exclusions’’ section of the rule. Redfield Canyon and this is not in the lower portions of the Blue River. Section 7 is used to analyze the impacts reviewed or even mentioned in the For Bonita Creek, chemical renovation of actions on PBFs present within a DEA, which is in error given that the occurred in an approximately 2-mile given area. Arizona Game and Fish heavily depend stretch of the river. Both of these areas (106) Comments: There were several upon this tool for managing native fish are limited in scope. comments regarding discrepancies in populations especially for threatened (103) Comment: The Service has stream miles proposed for critical and endangered species. Analysis of this relied on ephemeral reference points to habitat, especially in the draft economic action should be included in the DEA describe critical habitat areas and is in and environmental analyses. and the effects it will have on local violation of 50 CFR 424.12(c). Our Response: We have revisited all drinking water. Our Response: The ephemeral of the mileage to ensure that it is Our Response: For Redfield Canyon, reference point referred to is the use of accurate in this final rule. The final nonnative aquatic species are limited to the bankfull stage in describing critical environmental and economic analyses green sunfish, which are being habitat. Bankfull stage is described in will reflect the correct mileages. mechanically removed. There are no the section Criteria Used to Identify (107) Comment: One commenter plans to use rotenone in Redfield Critical Habitat. It is not an ephemeral noted that, with respect to translocation Canyon. feature, in other words, it does not or reintroduction sites for the species, (101) Comment: The proposed rule disappear. It can always be determined the Service indicated that monitoring and the environmental assessment lack and delineated for any stream we have will be conducted at each of these sites specific discussions for each segment designated as critical habitat. We to determine if populations ultimately regarding how the unoccupied segment acknowledge that the bankfull stage of become established at these new is ‘‘essential for the conservation of the any given stream may change depending locations. The fish were translocated in species.’’ Both documents describe on the magnitude of a flood event, but 2007, yet there is no information conditions in each segment that may be it is a definable and standard included within the DEA or the Federal favorable to the species but do not measurement for stream systems. Register notice that describes the explain how the Service determined (104) Comment: The precise areas monitoring that has been done in these that the unoccupied segment was proposed as critical habitat are locations or gives the results of this essential. In addition, there is no improperly described, and their location monitoring. It is stated that the areas of discussion regarding the conservation and impacts on land and water uses are Hot Springs and Redfield Canyon have value of unoccupied segments. uncertain. The proposed critical habitat been augmented. It is unknown to the Our Response: We refer the includes developed areas and public whether this augmentation was commenter to the ruleset, as well as improperly relies on post-designation because the fish are not surviving or if Table 6 within the proposed rule. For exclusion criteria. the action was to increase what has been each stream, we indicated which Our Response: As noted within the established. The need for augmentation portion of the ruleset was met. For proposed rule, the scale of the maps we is questionable if the fish are example, the San Pedro is listed in prepared under the parameters for established, and if they are not Table 6 as a ‘‘1a’’ stream, and from the publication within the Code of Federal surviving, it needs to be analyzed in this ruleset, this indicates that this stream Regulations may not reflect the document so as to better determine was occupied at listing, and has exclusion of such developed lands. whether the PFBs at this location are sufficient PBFs to support life-history However, any such lands inadvertently accurately analyzed. This information is functions essential for the conservation left inside critical habitat boundaries critical to making the designation of of the species. The PBFs present in any shown on the maps of this final rule are critical habitat.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10886 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
Our Response: Information is Our Response: Throughout the range Spikedace and loach minnows do not provided in the rule regarding the of spikedace and loach minnow, need large woody debris. translocation and reintroduction efforts, numerous diversion structures are Our Response: We note that large monitoring, and augmentation. Please present, including in systems such as wood is an important factor to analyze see comment 18 regarding the the Gila River, Blue River, and Verde in assessing riparian ecosystem health; appropriateness of including River. These areas continue to divert however, we are not aware of any data reintroduction and translocation sites water, and fish continue to persist, at this time that illustrates what amount within the critical habitat designation. indicating that such diversions can take of large woody debris within a system (108) Comments: We received several place. We anticipate that, should any would constitute ideal conditions for comments regarding the adequacy of the new diversions be constructed, they spikedace and loach minnow. Should information cited in discussions on would operate in a similar fashion. such information be developed in the livestock grazing. Some commenters (110) Comment: One commenter future, it would be another useful factor also indicated that we should be using suggested that we discuss the pending in evaluating river system health and Minckley (In Stromberg and Tellman decisions associated with the New habitat suitability for spikedace and 2009) regarding the discussion on Mexico Interstate Stream Commission’s loach minnow. However, we are livestock grazing, and that the citations (SC) approval of 21 projects on the Gila removing this language from the draft used were either dated or focused on River that could qualify to become part environmental assessment at this time. salmonid species. of the New Mexico Unit of the CAP (112) Comment: The proposed loach minnow critical habitat in Apache Our Response: Minckley (In approved in the AWSA. County is made up of reaches of the East Stromberg and Tellman 2009) did not Our Response: The AWSA provides Fork of the Black River. The entire East focus on grazing. Minckley does for New Mexico water users to deplete Fork of the Black River and the upland indicate that threats from nonnative fish 140,000 acre-feet of additional water watershed was burnt in the recent are the primary concern for native fish, from the Gila Basin in any 10-year Wallow Fire. The effects of the Wallow which the Service acknowledges. period. The settlement also provides the Fire will adversely impact any existing However, we complete a five-factor ability to divert that water without loach minnow populations and greatly analysis, looking at all potential complaint from downstream pre-1968 alter the habitat for this fish as concerns. With respect to literature by water rights in Arizona. New Mexico sediments are washed into the Black Rinne, we have reviewed this will receive $66 million to $128 million River following the fire. There is a high information and are familiar with the in non reimbursable Federal funding. probability that the reaches of the Black position that Rinne has taken regarding The ISC Funds may be used to cover River in Apache County, which are grazing and its benefits to native fishes. costs of an actual water supply project, being proposed for loach minnow Resource management agencies planning, environmental mitigation, or critical habitat, will no longer support continue to cite Platts 1990, which restoration activities associated with or the species and remain uninhabitable by focuses not on salmonids, but the effects necessary for the project, and may be loach minnow for a considerable length of grazing on stream habitats (See used on 1 or more of 21 alternative of time. The Apache County Board of Cowley 2002, Guidelines for projects ranging from Gila National Supervisors feels the Service should Establishing Allowable Levels of Forest San Francisco River Diversion/ reconsider their decision to propose the Streambank Alteration, Howery et al. Ditch improvements to a regional water reaches of the Black River in Apache 2000, A Summary of Livestock Grazing supply project (the Deming Diversion County as loach minnow critical habitat Systems Used on Rangelands in the Project). It is not known how the funds until it can be determined that these Western United States and Canada, or will be spent, or which potential reaches of stream contain any of the the USFS Web site at www.fs.fed.us/r5/ alternative(s) may be chosen. In PBFs of the loach minnow. The snfpa/final-seis/biological-documents, addition, the AWSA mandates that the management required in order to again which all continue to cite Platts 1990). ISC make the final determination of support the loach minnow in the Black (109) Comment: Item Number 7 in the contracts for water and allocation of River may well be beyond what can be Service’s October 27, 2010, Question funding and provide notice to the reasonably accomplished under a and Answer document reads: ‘‘What Secretary of the Interior by December critical habitat designation. sort of actions would continue to be 31, 2014. New Mexico ISC must make Our Response: Portions of Units Two allowed within areas designated as any final determination during an open, (Black River Complex) and Seven (Blue critical habitat? The Service’s response public meeting, and only after River Complex) of the critical habitat to the question was, in part, ‘‘We consultation with the Gila San designation fall within the Wallow Fire believe, based on best available Francisco Water Commission, the perimeter. While all of Unit Two is information, that the following actions citizens of southwestern New Mexico, within the Wallow Fire burn perimeter, will not result in a violation of the ESA: and other affected interests. Due to the most of the area designated as critical Release, diversion, or withdrawal of timeline associated with this project, as habitat falls within areas that water from or near spikedace or loach well as the uncertainties in how funding experienced either no or low burn minnow habitat in a manner that (1) will be spent, and which potential severity. The North Fork East Fork Black DOES NOT displace or result in alternative or alternatives will be River falls within an unburned area desiccation or death of eggs, larvae, or chosen, The Service is unable to inside the perimeter of the fire, as does adults, (2) DOES NOT result in determine the outcome of this process at most of Boneyard Creek. The majority of disruption of perennial flows, (3) DOES this time. East Fork Black River falls within an NOT disrupt spawning activities * * * (111) Comment: The draft area that experienced low burn severity, and (4) DOES NOT alter vegetation environmental assessment states that but does cross a few areas that were (emphasis added).’’ How does anyone quality fish habitat is intrinsically either unburned or burned at moderate divert or withdraw water from the Gila linked to the quality of the existing burn severity. Coyote Creek is in an area River where fish are or may be present, adjacent upland habitat that provides almost entirely burned at low severity. without violating one or more of the key habitat components (e.g., large Within Unit 7, the majority of Campbell ‘‘DOES NOTS’’ listed? woody debris) crucial for fish species. Blue Creek is within unburned or low
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10887
burn severity areas; however, eliminated, there is still a discussion on (115) Comment: We urge the Service approximately 2.4 km (1.5 mi) of the the types of impacts that can occur. to reevaluate the proposed 300-foot upper end of Campbell Blue Creek is (114) Comment: We strongly support riparian strips and to consider them within moderate and high burn severity. additional mileage and acreage of only as a minimum with wider riparian The Wallow Fire stopped just west of designated critical habitat for proposed buffers required for larger stream the Blue River, but came within endangered spikedace and loach reaches like the mainstem San Francisco approximately 0.3 km (0.2 mi) of the minnow, but oppose the omission of River and Gila River. A similar River. much of the historic, unoccupied approach is incorporated in the The impacts from fire on fish and habitats necessary for not only the PACFISH/INFISH extant consultations their habitat are described in greater conservation, but the successful full in the interior Pacific Northwest, like detail within the discussion of threats. recovery at a natural rate, without the Land and Resource Management While the fire itself may not have retardation, of these imperiled Plans Biological Opinion, which the reached high severity in proximity to Southwestern cyprinids, and the Service issued for bull trout and other the areas designated as critical habitat, eventual delisting of these species from native fishes and the National Marine the following ash and sediment that can the Act. While the Service proposes Fisheries Service issued for ESA-listed be displaced from within the watershed occupied habitat of an additional 14.2 anadromous salmonids. In these into the streams is of primary concern. miles of the San Francisco River and consultations and agreements, while the During the monsoon, which began 19.5 miles of Bear Creek in New Mexico minimum standard for a Riparian before the fire was extinguished, ash for the proposed endangered loach Conservation Area or Riparian Habitat and sediment entered Campbell Blue minnow critical habitat designations, it Conservation Area (RHCA) is set, there Creek and the Blue River. In the Blue freely admits in the Federal Register are additional science-based criteria for River, ash and sediment travelled as far Notice (at page 61332) to the fatal increasing the area or breadth of the downstream as the San Francisco River, omission of stream reaches that connect designated critical habitat surrounding resulting in fish kills (Blasius, 2011, occupied habitat for both imperiled critical stream reaches based on the pers. comm.). Fish surveys completed cyprinids. We strongly disagree with the stream order or size of the reach, and during the fall of 2011 found reduced Service proposed critical habitat how the riparian ecosystems actually numbers of loach minnow (Adelsberger designation rule for omitting connecting function. For an example, you should et al. 2011, p. 1). It is important to note reaches that would allow genetic examine the designated critical habitat however, that these areas, while exchanges between dwindling rule for the threatened Snake River temporarily affected by the ash and populations and pockets of individual spring/summer Chinook salmon. In that sediment resulting from the fire, are not spikedace and loach minnows—which Designated Critical Habitat Final Rule, permanently altered. We anticipate that do not constitute viable, sustainable smaller tributaries are protected with they will continue to support loach populations—as well as other historic the minimum RHCA, while larger rivers minnow, albeit at reduced levels, and unoccupied habitats that may be crucial like the Salmon River or Snake River, that, given sufficient time, they will for the survival and full recovery of the maintain much broader RHCAs to recover sufficiently to provide habitat two fishes. This blatant oversight conserve ecological functionality of the for loach minnow in Unit 2 and both ignores the basic precepts of modern designated critical habitats and help spikedace and loach minnow in Unit 7. conservation biology and the accepted ensure to maintain sustainable, viable (113) Comment: More than a century science of conservation genetics needed populations and Distinct Population of stream and riparian habitat abuses to sustain viable populations of rare and Segments or Evolutionarily Significant does not indicate some happy declining species like the spikedace and Units (or ‘‘species’’ under the Act). coexistence between the livestock loach minnow. industry and conserving and recovering Our Response: As noted in the NOA Our Response: As stated in the 2007 these two imperiled cyprinids that are (76 FR 61330), we were unable to Federal Register notice designating facing extinctions largely from habitat identify additional areas within the critical habitat, we selected the 300-foot alterations and fragmentation. There are historical range of the species that lateral extent, rather than some other clear and serious conflicts between currently have sufficient habitat delineation, for three reasons: (1) The domestic livestock grazing and parameters to serve as connective biological integrity and natural conserving and fully recovering corridors between occupied and dynamics of the river system are endangered spikedace and loach unoccupied habitat. As also stated in maintained within this area (i.e., the minnows throughout their historic the NOA, we believe that both loach floodplain and its riparian vegetation ranges in the Gila River Basin of minnow and spikedace conservation provide space for natural flooding Arizona, New Mexico, and Northern will require genetic exchange between patterns and latitude for necessary Mexico. the remaining populations to allow for natural channel adjustments to maintain Our Response: As noted in the threats genetic variation, which is important for appropriate channel morphology and analysis within the document, the species’ fitness and adaptive capability. geometry, store water for slow release to Service recognizes that there are Our inability to identify unoccupied maintain base flows, provide protected impacts from livestock grazing on streams that would provide connections side channels and other protected areas, riparian and stream systems and the between occupied areas is a result of the and allow the river to meander within species that depend on them. As also highly degraded condition of its main channel in response to large noted in the threats analysis, we believe unoccupied habitat and the uncertainty flow events); (2) conservation of the that progress has been made with of stream corridor restoration potential. adjacent riparian area also helps provide grazing management, but that legacy We anticipate that we will further nutrient recharge and protection from effects of past improper livestock address the issue of restoration of sediment and pollutants; and (3) grazing persist. At this time, we believe genetic exchange in our revised vegetated lateral zones are widely that progress has been made within the Recovery Plan. A Spikedace and Loach recognized as providing a variety of range of spikedace and loach minnow. Minnow Recovery Team has been aquatic habitat functions and values However, because not all conflicts formed, and will be meeting in early (e.g., aquatic habitat for fish and other between grazing and fish have been 2012. aquatic organisms, moderation of water
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10888 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
temperature changes, and detritus for habitats, but also can result in upstream immediate area involved in the action, aquatic food webs) and help improve or bank sloughing, riparian vegetation as defined in 50 CFR 402.02. maintain local water quality (see U.S. collapse, alluvial water declines, stream (119) Comment: In the arid West, Army Corps of Engineers’ final notice channel straightening, steepening, and including in the Gila River of Arizona concerning Issuance and Modification water velocity increase. These actions and New Mexico, as well as Northern of Nationwide Permits, March 9, 2000, just feed the cycle and accelerate the Mexico, water diversions and artificial 65 FR 12818–12899). habitat destabilization and degradation, impoundments are prized for (116) Comment: We urge the Service to the detriment of the dependent fish agricultural production, livestock to expand the proposed critical habitat populations like spikedace and loach watering, and domestic water supplies. designation rules to encompass minnows in the Gila River Basin of Often, the diversion structures are not upstream stream reaches and riparian Arizona, New Mexico, and Northern properly screened or designed to habitats, whether they are occupied, Mexico. prevent impingement (i.e., fish get stuck historic but currently unoccupied, or Our Response: The Service is aware of on the screens or filters, if there are any, even historically unoccupied stream/ the information provided in Rosgen’s or entrainment such that fish get caught riparian reaches that are upstream of book titled Applied River Morphology, in water conveyance pipes and ditches designated critical habitats and/or which is, in fact, cited within the rule. and may end up stranded in dewatered spikedace and/or loach minnows. As a Under section 7 of the Act, the Service structures), allow fish passage upstream broadly accepted scientific principle evaluates impacts to the species and and downstream, or completely dewater that is at the heart of watershed science, their habitat and ecological needs based occupied reaches of stream or hydrology, and stream ecology, what on the best information available, disconnect isolated populations. The happens upstream in a watershed, regardless of where those impacts Service must ensure that Federally including adverse effects like originate. funded, permitted, and/or designed dewatering, accelerated bank and (118) Comment: The Service should water diversion works are not lethally or upland erosion, and subsequent be conducting section 7 consultations non lethally taking listed spikedace and loach minnow in the Gila River Basin. increases in siltation and turbidity of with the USFS, BLM, Bureau of Indian streams like that associated with Additionally, we expect the Service to Affairs, and others to conserve and domestic livestock grazing, logging, road enforce the Act and fully prosecute recover endangered spikedace and loach encroachment, and poorly regulated off- water users taking spikedace and loach minnow populations, prevent non road vehicle use, has significant adverse minnow without exemptions under a exempted section 9 take of individual effects downstream on listed fishes and/ biologically sound and legal incidental fishes, prevent the adverse modification or their designated critical habitats. take statement or habitat conservation of designated critical habitats, and Our Response: Some areas have been plan under section 10 of the Act. expanded as described in the notice of closely examine if proposed Federal Our Response: Section 9 of the Act availability and in this document; other actions may retard the natural rates of prohibits actions including, but are not areas have been reduced. Federal recovery of these two Southwestern limited to, take (i.e., harass, harm, actions that may affect critical habitat cyprinids. These consultations should pursue, hunt, shoot, wound, kill, trap, will be evaluated under section 7 of the occur in upland, riparian, and aquatic capture, or collect, or attempt to engage Act, regardless of in which portion of ecosystems in the Gila River Basin, in such activity) for all listed species. the watershed those actions occur. whether the Federal actions are within (120) Comment: While we recognize (117) Comment: While it is not as occupied or unoccupied designated that the Service views western water intuitive to consider upstream reaches critical habitat or they are upstream of law and individual water rights as a and watersheds as part of the designated them. We remind the Service that it can states issue, the Federal government critical habitats and section 7 expand the action areas presented to it does have some significant influence on consultations, the Service also needs to in an action agency’s biological modifying the diversion, conveyance, include downstream reaches if the goal assessment and as such, section 7 storage, and use of western waters is conservation, and full recovery consultations are not restricted to the diverted from watersheds like the Gila without retardation of the natural rates. footprint of the proposed project or River Basin, including through section 7 As explained eloquently by Dave action or even to the property consultations with Federal action Rosgen in his 1996 book, Applied River boundaries of lands managed by a agencies that are permitting, designing Morphology, by other stream Federal agency like the USFS, BLM, or or funding such activities, whether they hydrologists and watershed scientists, the Service. Likewise, the Service, are on Federal public, military and from our extensive experiences according to its own Section 7 reservations, tribal lands, or state or examining stream channel alterations Consultation Handbook, is not private lands. For example, many across the West caused by domestic restrained by the action agency’s effects diversions originate on Federal lands livestock grazing, restrictive culverts, determinations and in meeting the spirit managed by the USFS or BLM and and other habitat threats, what happens and intent of the Act, should always err include conveyances and rights-of-way downstream can certainly affect towards the conservation of listed that cross public lands or are used, as upstream reaches in stream and riparian species and their protected habitats, in the case of livestock water, in ecosystems, particularly in the Arid especially endangered species, which by troughs, tanks, and artificial ponds, West. Fluvial morphological actions like their nature, are facing potential actually on Federal lands. There is downcutting, headcutting, stream extinctions, by replacing the precedent for having Federal action widening, stream channel filling with determinations with their own, stricter agencies like the USFS condition how increased sediment loads, and the effects determinations for species, water is diverted and conveyed across simplification of stream channel designated critical habitats, and Federal lands even if the water rights morphology with the accompanying recoveries. are held by private or corporate entities. disconnection of impacted streams with Our Response: We agree that the For example, the Salmon-Challis their natural floodplains, not only ‘‘action area’’ of a project refers to all National Forest and Sawtooth National adversely affects the impacted reaches areas to be affected directly or indirectly Forest in Idaho have entered into a legal and downstream riparian and stream by the Federal action and not merely the settlement agreement with Western
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10889
Watershed Project to condition should be considered and, if continued, (126) Comment: The use of only one diversions and conveyances in the be subject to section 7 consultations to PBF in determining suitability is Salmon River Basin to the benefit of protect spikedace and loach minnow inadequate. If an area cannot support a listed anadromous salmonids and bull and their designated critical habitats. viable population, then by definition it trout. The USFS has also executed a Our Response: Federal funding of the cannot be critical habitat. programmatic biological assessment for Urban Stocking Program in Arizona was Our Response: In accordance with lockable head gates, measuring devices, completed in 2011. The consultation section 3(5)(A)(i) and 4(b)(1)(A) of the and fish screens and has completed resulted in a Statewide conservation Act and regulations at 50 CFR 453.12, in formal consultation with the Service program for native fishes while determining which areas within the and National Marine Fisheries Service. continuing sport fish stocking and geographical area occupied at the time We strongly encourage the Service to management in designated streams. of listing to designate as critical habitat, lead the way with a similar effort in the (123) Comment: The Service should we consider the physical and biological water-limited Gila River Basin with its be carefully assessing the environmental features essential to the conservation of BLM, USFS, military and tribal risks to individuals and critical habitats the species and which may require consultation problems. of spikedace and loach minnow with special management considerations or Our Response: A recovery team is the types, amounts, seasons, and protection. In our final critical habitat being established to develop on-the- methods of chemical control of pests designations, we did not include any ground strategies to conserve these two and weeds. In the case of the USFS, occupied areas that contained only one species. BLM, Bureau of Indian Affairs, military, PBF. All of the areas occupied at the (121) Comment: It is alarming to note and the Service’s wildlife refuges, time of listing for both species, or each how the Service has carefully dissected environmental risk analyses scaled individual species, contain more than the occupied and historic unoccupied down for endangered fishes to the No one PBF, as described in the unit reaches of the loach minnow and Observed Effects Levels (‘‘NOELs’’) are descriptions. spikedace in their proposed critical (127) Comment: Please explain why necessary as are consultations and new habitat rule just to avoid existing water the word ‘‘only’’ is in the phrase ‘‘* * * labeling that restricts the uses of diversion structures. This be included only if those features may accepted chemicals and surfactants (and ‘‘gerrymandering’’ of the proposed require special management other carriers and adjutants) to protect riparian and stream reaches goes well considerations or protection.’’ The word spikedace and loach minnows. Special beyond the precepts of broadly accepted ‘‘only’’ is not in section 3 of the Act (see care is needed within the 300 ± ft conservation biology and should be page 66496, 1st column, item (II). It riparian buffers, but effectiveness and eliminated from the Final Rule. appears that this proposed rule is trying Our Response: We acknowledge the implementation monitoring as well as to narrow the scope of what can be absence of connective corridors in the water quality testing is needed to included in critical habitat (i.e., make proposed designation. We continue to prevent unwanted extirpations or even policy). believe that both loach minnow and extinctions. Our Response: We agree with the spikedace conservation will require Our Response: The Service has a long commenter that the language in the genetic exchange between the remaining history of conducting section 7 proposed rule was incorrect. We have populations. However, the designation consultations on a wide variety of inserted the following language in the was not developed with existing water pesticide and herbicide treatments, final rule: ‘‘For inclusion in a critical diversion structures as a focal point. weed control, and related topics. habitat designation, the habitat within Instead, we developed a ruleset, which (124) Comment: Simply adding some the geographical area occupied by the was applied across the historical ranges 34 miles of streams to the designated species at the time it was listed must of the two species. Many of the stream critical habitats is insufficient when contain physical and biological features segments included, such as the Verde some 80 to 90 percent of the historical which are essential to the conservation River, Blue River, Eagle Creek, and Gila range is adversely modified and/or of the species and which may require River, have existing diversion structures vacant. These meager actions on behalf special management considerations or within the designated area. of spikedace and loach minnow will not protection.’’ (122) Comment: Endangered species stem the slippery slope towards (128) Comment: The Service received should not be subject to section 4 extinctions for these native desert several requests for an extension of the permits with States like Arizona and stream fishes, especially with a comment period. New Mexico and the tribal governments significant portion of the two species’ Our Response: We believe the two for angling, fish stocking, and possibly ranges altered or vacated. comment periods allowed for adequate stock assessments and research/ Our Response: We are not certain opportunity for public comment. A total experiments. The Service has expressed where the figure of 34 additional miles of 90 days was provided for document that endangered spikedace and loach came from in this comment. With this review and the public to submit minnow face real threats from designation, we are increasing the comments. In addition, a public hearing predation, competition, and overall mileage by 305 km (188 mi), was scheduled on October 17, 2011, as transmission of disease and parasites by compared to the 2007 designation. another venue for comment submission. nonnative species, some of which are (129) Comment: The Nation supports General Comments Issue 2: Legal or managed by fish and game agencies as the Service’s proposal to exclude those Policy Concerns game or sport fishes. In most cases, lands located within the exterior through Dingell-Johnson Federal funds (125) Comment: The Service needs to boundaries of the Yavapai-Apache administered by the Service, states like complete a regulatory flexibility Reservation from the final critical Arizona and New Mexico operate sport analysis. habitat designation under section 4(b)(2) fisheries including stocking of Our Response: Compliance with the of the Act, as the benefit of such nonnative predators, lethal and Regulatory Flexibility Act is part of this exclusion outweighs the benefits of nonlethal take associated with angling, final rule, and can be found under the designating these lands as critical fisheries inventories and research, and subheading of ‘‘Regulatory Flexibility habitat, and such exclusion will not hatchery programs. These actions Act (5 U.S.C. 601 et seq.)’’. result in the extinction of the species.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10890 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
Our Response: Within the proposed Our Response: While actions taken exclusion outweigh the benefits of rule, we identified areas that we would under the CAP Fund Transfer Program inclusion. In the case of a management consider for exclusion, including those do benefit spikedace and loach minnow, plan that details conservation measures, of the Yavapai-Apache Reservation. these are projects that are largely the Service would consider Please see the Exclusions section for the derived from the section 7 process. conservation measures sufficient if they analysis on the benefits of inclusion and While ideally, recovery actions and would lead to conservation that meets exclusion for this area. critical habitat designation support one or exceeds what we would anticipate (130) Comment: There were several another to achieve recovery and occurring through designation of critical comments regarding the proposed delisting of the species, critical habitat habitat. exclusions in the proposed rule and that designation is independent of these (135) Comment: An issue was raised our rationale was not clear in types of management actions. Had the regarding large floods in the streams determining which areas were proposed Bureau of Reclamation and the Service proposed for critical habitat and if the for exclusion. FWS should provide decided for example, not to complete designation would make it more support for all exclusion recovery actions on Bonita Creek or Hot difficult to complete repair work since determinations. Springs Canyon with barrier some funding will be from Federal Our Response: We may exclude an construction and translocations of the agencies. area from designated critical habitat two species, we would still be Our Response: Flooding, along with based on economic impacts, impacts on designating critical habitat. These other activities, often does involve a national security, or any other relevant actions are therefore independent of one Federal nexus that might trigger a impacts. In addition, we can consider another and require separate NEPA section 7 consultation. Should flooding exclusion of areas covered by other analysis. occur, Federal assistance may be used management plans or agreements such (133) Comment: The way the Service through programs such as the Natural as habitat conservation plans which implements consultations, the Resource Conservation Service’s provide equal or better protection than designation of critical habitat does Emergency Watershed Protection would be gained from a critical habitat impose universal rules and restrictions Program, which has been used in the designation. In considering whether to on land use. It does automatically past to provide assistance to landowners exclude a particular area from the trigger consultation with Service for in protecting their property from flood designation, we must identify the modifications and results in prohibiting damage. The Service has established benefits of including the area in the and altering certain land uses and water emergency consultation procedures that designation, identify the benefits of development activities. An example is allow for this type of Federal action to excluding the area from the designation, the Upper San Pedro River where the move forward quickly, with emphasis and determine whether the benefits of habitat is unoccupied. With designated on protection of human life and exclusion outweigh the benefits of critical habitat there is a universal rule property. inclusion. See the discussion in the and restriction that any activity within (136) Comment: The designation of exclusions section of the final rule for 300 feet of the river cannot adversely critical habitat for these species is an further details. modify critical habitat. This attempt by the Service to gain additional (131) Comment: Fort Huachuca is automatically prohibits a land owner control over the use of public and requesting that a national security from creating a tilapia farm, alfalfa farm, private land and resources. analysis in compliance with section alpaca ranch, livestock corral or Our Response: Critical habitat 4(b)(2) be performed in consultation otherwise lawful activity within 300 feet identifies geographic areas that contain with the fort. In addition, the fort would of the river. This is a universal blanket features essential for the conservation of like to continue dialogue beyond rule in critical habitat. To state a threatened or endangered species and November 3, 2011, on the issues that otherwise is disingenuous. that may require special management have been raised in both letters Our Response: It should be noted that considerations. The designation of regarding the national security impacts adverse modification is rarely reached. critical habitat does not affect land and the lack of justification for critical Designation of critical habitat does not ownership or establish a refuge, habitat designation in Unit 3. prohibit projects, but should an action wilderness, reserve, preserve, or other Our Response: We conducted an be proposed, permitted, or funded by a conservation area. Critical habitat exclusion analysis based on a comment Federal agency, section 7 consultation designation does not impose restrictions in which national security issues were may be required. The purpose of section on private lands unless Federal funds, raised by Fort Huachuca following 7 consultation is to provide permits or activities are involved. closure of the second comment period. minimization measures that reduce the Federal agencies that undertake, fund, In this final rule, the San Pedro River impacts to listed species or their critical or permit activities that may affect has been excluded from the designation habitat. There are no automatic critical habitat are required to consult because the benefits of exclusion prohibitions to activities under the ESA. with the Service to ensure that such outweigh the benefits of inclusion based (134) Comment: The term ‘‘sufficient actions do not adversely modify or on potential impacts to national conservation measures’’ is used three destroy designated critical habitat. security. Refer to the discussion in the times in the Environmental Assessment. Requirements for consultation on Exclusions section for further details. The subsequent EIS needs to detail the critical habitat do not apply to entirely (132) Comment: The Service is not measures deemed sufficient so that the private actions on private lands. Critical following their own regulations, policies costs and benefits of excluding areas habitat designations apply only to and guidelines by allowing a long list of due to economic, national security, and Federal lands, or federally funded or major Federal actions, such as fish other needs can be assessed. permitted activities on non federal recovery projects carried out under the Our Response: Please see the lands. Activities on private or State Central Arizona Project (CAP) Biological Exclusions section of this document, lands that are funded, permitted, or Opinion, and the proposed spikedace which describes the process that the carried out by a Federal agency, such as and loach minnow critical habitat Service uses to determine if exclusions a permit from the U.S. Army Corps of designation, to occur without NEPA are warranted. Generally, the process Engineers under section 404 of the analysis. weighs whether the benefits of Clean Water Act, will be subject to the
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10891
section 7 consultation process with the provided by the Ninth Circuit Court. Our Response: Reinitiation of Service if those actions may affect Formal consultation under section 7 of consultation is required if a new species critical habitat or a listed species. the Act concludes with a biological or critical habitat designation may be (137) Comment: One commenter opinion issued by the Service on affected by an identified Federal action. noted that the development of whether the proposed Federal action is Any consultations for projects that are conservation agreements with agencies likely to jeopardize the continued within the proposed critical habitat and private landowners to gain similar existence of a listed species or to designation may need to be reinitiated protection to that afforded by destroy or adversely modify critical to evaluate impacts on the critical designation of critical habitat would habitat (50 CFR 402.14[h]). In 2004, the habitat. However, it should be noted preclude the need to designate critical Ninth Circuit Court determined through that the 2007 critical habitat designation habitat but that, as no such efforts were Gifford Pinchot Task Force et al. v. remains in place until the 2012 under way across the species’ range United States Fish and Wildlife Service designation is published, and many during the 2010 proposed rule (2004) that, while the jeopardy standard projects went through consultation development, the Service rejected an concerns the survival of a species or its under the 2007 designation. For projects alternative to accept conservation risk of extinction, the adverse that have been developed in the interim, agreements in lieu of critical habitat modification standard concerns the preliminary consultation is under way designation. The commenter noted that value of critical habitat for the recovery, in many areas. conservation agreements would allow or eventual delisting, of a species. As (140) Comment: It is our the Service to save money by putting a pointed out in the Ninth Circuit understanding that FMC has not large part of the conservation burden on decision, survival of a species and submitted a draft management plan for agencies and landowners, and that it recovery (or conservation) of a species spikedace and loach minnow may have been premature for the are distinct concepts in the ESA. conservation on reaches of the San Service to reject this alternative. There Implementation of the two standards, Francisco and Gila Rivers and Eagle may be potential for better results than therefore, involves separate and distinct Creek. Without management plans, through designation. Specifically, the analyses based on these concepts. FMC’s contention that these stream AWSA offers opportunity to easily In light of the Gifford Pinchot reaches and their spikedace and loach improve habitat for the loach minnow decision, the Service no longer relies on minnow populations do not require and spikedace. the regulatory definition of ‘‘destruction special management is invalid. If FMC Our Response: We agree that the use or adverse modification’’ of critical does submit management plans in of conservation agreements may, in habitat at 50 CFR 402.02. Instead, the support of a request for exclusion of some instances, provide a conservation Service relies on the statutory their lands from the critical habitat, benefit equal to or greater than the please send us copies for our designation of critical habitat. However, provisions of the ESA to complete the information and review. at the time that the critical habitat analysis with respect to critical habitat. designation was proposed and The potential for destruction or adverse Our Response: Freeport-McMoRan subsequently finalized, no such modification of critical habitat by a developed two management plans. One conservation agreements were under Federal action is assessed under the plan addressees Eagle Creek and the San way or in place. The Service has a court- statutory provisions of the ESA by Francisco River in Arizona, while the determined deadline for designation of determining whether the effects of the other addresses the Gila River, Bear critical habitat. While we considered implementation of the proposed Federal Creek, and Mangas Creek in New those conservation agreements that are action would allow the affected critical Mexico. A description of the under way, we are not able to delay the habitat to remain functional (or retain management plans and our decision designation of critical habitat until such those PBFs that relate to the ability of regarding exclusions can be found in the agreements are developed, and we are the area to periodically support the ‘‘Exclusions’’ section of the final rule. not able to exclude areas from critical species) to serve its intended The management plans themselves are habitat based on conservation conservation role for the species (75 FR available on http://www.regulations.gov agreements that might be developed in 66519). This analysis provides the basis for public viewing. the future. for determining the significance of (141) Comment: An earlier (138) Comment: In the past the anticipated effects of the proposed management plan by Phelps-Dodge Service has published information federal action on critical habitat. The (acquired by FMC) used to support the which states that designation of critical threshold for destruction or adverse exclusion of their lands along the upper habitat provides little additional modification is evaluated in the context Gila River in the 2007 final critical protection to species (69 FR 53182). The of whether the critical habitat would habitat rule was vague and completely information states that in 30 years of remain functional to serve the intended inadequate. It was primarily a study implementing the Act, the Service has conservation role for the species. The plan for the USFS’s Rocky Mountain found that the designation of statutory direction provided by the Ninth Circuit Research Station. This study plan critical habitat provides little additional Decision in Gifford Pinchot has changed received strong criticism from within protection to most listed species, while the way the Service is analyzing the the USFS and those comments were consuming significant amounts of value of critical habitat. made available to the Service. We available conservation resources. (139) Comment: Under Section 7 ESA submitted a critical review of the Additionally, we have also found that consultations, FWS should urge the Phelps-Dodge/Rocky Mountain comparable conservation can be reinitiation of extant consultations, Research Station management/study achieved by implementation of laws and including programmatic consultations, plan in a letter of October 14, 2006, to regulations obviating the need for with the uplisted statuses of spikedace the Service. In our letter we also critical habitat. This statement supports and loach minnow in mind as well as commented on the inadequacy of a the preparation of an EIS. the expanded designated critical similarly vague and insubstantial Our Response: The Service has habitats. This includes the 18 BLM Phelps-Dodge management plan for changed how it evaluates the value of domestic livestock grazing allotments in Eagle Creek. Neither of these two critical habitat due to guidance the mid-Gila River Basin. defective plans should be considered in
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10892 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
this revision of the critical habitat, both of critical habitat on its lands Management Plans and Resource are inadequate and out-of-date. improperly infringes upon its Tribal Management Plans do not guarantee the Our Response: Freeport-McMoRan sovereignty and the right to self- necessary protections and recovery provided updated management plans government. In recognition of the under the Act for these two imperiled during the second comment period. The Nation’s sovereignty, our working fish species. In fact, our field and legal revised plans provide for the relationship with the Tribe, and the work have proven how weak the paper commitment of significant additional management efforts taken by the promises are and how important resources for construction of barriers to Yavapai-Apache Nation on their tribal enforcement of the Act and legal actions limit movement of nonnative fish into lands that benefit spikedace and loach are for just conserving what remains of spikedace and loach minnow habitat, minnow, all proposed critical habitat the 10 to 20 percent of the occupied monitoring, and other conservation has been removed from the final rule. habitats for the two cyprinids in the actions. lands. By eliminating those from the General Comments Issue 3: Economic (142) Comment: In April 2007 the final critical habitat rules, the Service Analysis Concerns Service informed us they do not believe will undermine the conservation and the 2003 Policy for Evaluation of (144) Comment: There were several recovery without retardation of the Conservation Efforts When Making comments concerning the effects of the natural rates of loach minnow and Listing Decisions (PECE) applies to critical habitat designation on the spikedace. critical habitat designations and so will operation of Ft. Huachuca, especially Our Response: At this time, we are not conform to it when assessing the the economic costs and cumulative not excluding Federal lands from the quality and sustainability of effects. designation of spikedace and loach management plans submitted in seeking Our Response: The economic effects minnow critical habitat and are not critical habitat exclusions. The PECE is were analyzed in the draft economic including any Land and Resource a strong and well constructed policy for analysis, however, the San Pedro River Management Plans or Resource assessing the value to species from has been excluded based on national Management Plans as the means for any proposed private conservation efforts, security issues related to the operation exclusions. Our rationale for excluding and regardless of whether or not it can of Ft. Huachuca. See our discussion in tribal and military lands are provided be legally required, we urge the Service the Exclusion section of this text. within the Exclusions section of this to use PECE in its analysis of (145) Comment: The cumulative rule. management or conservation plans impact of the endangered species (147) Comment: The Communities submitted in support of requested program combined with critical habitat have existing rights to groundwater and exclusions from critical habitat designations in Arizona and New surface water within the Upper Verde designation for spikedace and loach Mexico over the last 9 years has been River Watershed. Additionally, the minnow. An analysis using PECE severe. More than a one-third reduction Communities have invested in the guidelines, and made available to the in the number of USFS permittees and development of additional water rights public, would be a worthwhile and a 33.8 percent reduction in the number owned by the City of Prescott in the informative method for documenting of animal unit months occurred (AUMs) City’s Big Chino Water Ranch in order the Service’s rationale and process for in the period 2000 to 2009. This to preserve and enhance the economic critical habitat exclusion decisions. information is from the USFS, Annual viability of the region. Our Response: The PECE Policy Grazing Statistical Reports. Our Response: Section 4(b)(2) of the identifies criteria we use in determining Our Response: We agree with the Act requires the Secretary to designate whether formalized conservation efforts commenter that the comparison of 2000 critical habitat based on the best that have yet to be implemented or to (USDA 2000, p. 31) to 2009 (USDA scientific data available after taking into show effectiveness contribute to making 2011, p. 33–34) data indicates an overall consideration the economic impact, and listing a species as threatened or reduction in the number of permittees, any other relevant impact, of specifying endangered unnecessary. We believe head months (HMs), and animal unit any particular area as critical habitat. that a recovery plan is the appropriate months. However, these documents (148) Comment: Participation in the vehicle to provide guidance on actions report the figures cited in the comment, National Resource Conservation Service necessary to delist a species. without stating any conclusions as to (NRCS) program may be impacted by (143) Comment: For the reasons set the cause of the decline between 2000 the critical habitat designation due to forth here and as explained in (a) prior to 2009, so it would be in error to time delay impacts on NRCS activities, filings with the Service by the Nation; conclude that the cumulative impact of including those under the and (b) in face-to-face meetings and the endangered species program and Environmental Quality Incentives other communications with the Service critical habitat designations in Arizona Program (EQIP) that would require (all of which are incorporated in full and New Mexico have led to this section 7 consultation. Also, NRCS here by reference), it remains the decline. programs might be affected because Nation’s position that the Secretary of (146) Comment: We challenge the farmers could refuse federal funding to the Interior lacks legal authority to validity of the draft environmental avoid a federal nexus that would require designate critical habitat on the Nation’s assessment especially with its proposed section 7 consultation. lands. (See written comments of the exclusions of Federal lands managed by Our Response: Exhibits ES–1 and ES– Yavapai-Apache Nation, dated February agencies like the USFS or BLM, just 2 in the Economic Analysis recognize 16, 2006, February 21, 2006, February because they have paper plans in place the potential for impacts to participation 26, 2006, July 6, 2006, and December 27, that one would expect to protect in NRCS funding and programs. 2010 specifically addressing prior and designated critical habitat and promote However, considerable uncertainty current proposals by the Service to the conservation and recovery of listed exists surrounding the effect of critical designate critical habitat for the species like spikedace and loach habitat designation on the level of spikedace and loach minnow on the minnow that are facing potential participation in the NRCS and other Yavapai-Apache Reservation.) extinctions. Using the grazing allotment Federal programs. At this time, we are Our Response: We understand that it examples with which we are most unaware of any instances where critical is the Tribe’s position that a designation familiar, paper Land and Resource habitat designation has resulted in
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10893
delays to NRCS project implementation. be feasible to monetize, or even Service believes that the direct benefits Therefore, these impacts are not quantify, the benefits of environmental of the proposed rule are best expressed quantified. Section 3.6 of the final regulations due to either an absence of in biological terms that can be weighed economic analysis does, however, defensible, relevant studies or a lack of against the expected cost impacts of the discuss potential impacts of critical resources on the implementing agency’s rulemaking. Critical habitat designation habitat on NRCS programs in more part to conduct new research. Rather may also generate ancillary benefits. detail, including the potential for than rely on economic measures, the Critical habitat aids in the conservation reduced farmer participation in these Service believes that the direct benefits of species specifically by protecting the programs. Further, it should be noted of the proposed rule are best expressed primary constituent elements on which that the Service and NRCS completed a in biological terms that can be weighed the species depends. To this end, programmatic consultation in 2011 against the expected cost impacts of the critical habitat designation can result in which will facilitate the review of EQIP rulemaking. Critical habitat designation maintenance of particular projects. may also generate ancillary benefits. environmental conditions that may (149) Comment: The number of wells Critical habitat aids in the conservation generate other social benefits aside from in the Virden Valley area of the Gila of species specifically by protecting the the preservation of the species. That is, River is underestimated because the primary constituent elements on which management actions undertaken to analysis only considers wells within the species depends. To this end, conserve a species or habitat may have critical habitat areas. critical habitat designation can result in coincident, positive social welfare Our Response: The geographic scope maintenance of particular implications, such as increased of the final economic analysis was environmental conditions that may recreational opportunities in a region. estimated using information provided in generate other social benefits aside from While they are not the primary purpose the proposed rule, in which the Service the preservation of the species. That is, of critical habitat, these ancillary states that critical habitat designation management actions undertaken to benefits may result in gains in extends 300 feet to either side of a conserve a species or habitat may have employment, output, or income that stream’s bank full width. While it is coincident, positive social welfare may offset the direct, negative impacts certainly possible that wells outside of implications, such as increased to a region’s economy resulting from this area draw water from critical recreational opportunities in a region. actions to conserve a species or its habitat reaches, those particular wells While they are not the primary purpose habitat.’’ Section 11 qualitatively were not easily identified. It should be of critical habitat, these ancillary describes coincident benefits of the noted that because groundwater benefits may result in gains in designation on water quality, stream withdrawals frequently do not involve a employment, output, or income that flow levels, property values, and Federal nexus, groundwater issues have may offset the direct, negative impacts aesthetic and educational benefits. The rarely been addressed through section 7 to a region’s economy resulting from Service considers these benefits while consultations in the past. The analysis actions to conserve a species or its weighing the benefits of inclusion therefore reports the number of habitat.’’ Section 11 qualitatively against the benefits of exclusion before groundwater wells in proposed critical describes coincident benefits of the excluding any area from the habitat areas, but does not assign a cost designation on water quality, stream designation. associated with potential impacts to flow levels, property values, and (152) Comment: The commenter these wells. aesthetic and educational benefits. The believes that economic benefits at the (150) Comment: In the economic Service considers these benefits while local, regional, and national levels exist, analysis for the critical habitat weighing the benefits of inclusion but are not included in the draft designation, the Service uses faulty against the benefits of exclusion before Economic Analysis. logic by comparing projected dollar excluding any area from the Our Response: As stated in Section costs to the public weighed against designation. 2.3.3 of the final economic analysis, projected biological benefits of (151) Comment: Commenters ‘‘Critical habitat aids in the conservation protecting habitat for the endangered recommend that the authors of the of species specifically by protecting the species. This is performed under the spikedace and loach minnow economic primary constituent elements on which specious argument that conserving and analysis and environmental analysis the species depends. To this end, recovering endangered and threatened documents cite Dr. Rinne’s publications critical habitat designation can result in species should not be reduced to dollars that describe the increase in predatory maintenance of particular and cents. While this appears noble, it nonnative fish and the disappearance of environmental conditions that may places portions of designated critical native fish on the Verde River after generate other social benefits aside from habitat at the great risk of being removal of livestock. the preservation of the species. That is, excluded for economic reasons, even Our Response: Section 2.3.3 of the management actions undertaken to when some of the economic costs can be final economic analysis recognizes that conserve a species or habitat may have countered with local or regional ‘‘the published economics literature has coincident, positive social welfare economic benefits. The Service totally documented that social welfare benefits implications, such as increased ignores these benefits and weighs the can result from the conservation and recreational opportunities in a region. full weight of the costs for their recovery of endangered and threatened While they are not the primary purpose economic exclusion decisions. species. In its guidance for of critical habitat, these ancillary Our Response: Section 2.3.3 of the implementing Executive Order 12866, benefits may result in gains in final economic analysis recognizes that the OMB acknowledges that it may not employment, output, or income that ‘‘the published economics literature has be feasible to monetize, or even may offset the direct, negative impacts documented that social welfare benefits quantify, the benefits of environmental to a region’s economy resulting from can result from the conservation and regulations due to either an absence of actions to conserve a species or its recovery of endangered and threatened defensible, relevant studies or a lack of habitat.’’ species. In its guidance for resources on the implementing agency’s (153) Comment: Rather than applying implementing Executive Order 12866, part to conduct new research. Rather the ‘but for’ test for some of the the OMB acknowledges that it may not than rely on economic measures, the projected costs, the costs attributed to
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10894 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
the designation of critical habitat for Our Response: This concern is now and above the current cost of all the spikedace and loach minnow should be reflected in Section 3 and Appendix A other management actions for independent of other costs that would of the FEA. endangered species the Fort is exist, whether there is designated (156) Comment: The NRCS agency is financing, it could be the factor that critical habitat or not for spikedace and the best agency to provide current and triggers the Fort to reduce its missions loach minnow. In other words, the accurate actual costs of conservation or close the Fort and move all the coextensive framework used in the draft practices. The Economic Analysis states missions to other locations. Economic Analysis is inappropriate. that the cost of fencing ranges from Our Response: The final economic Our Response: The estimation of $1,690 to $16,900 per river mile of fence analysis now recognizes the incremental impacts is consistent with construction. NRCS costs, which are commenters concern in Section 3.5. In direction provided by the Office of updated yearly to be as close to actual addition, please note that the San Pedro Management and Budget to Federal as possible, estimates the cost of fence River has been removed from the agencies for the estimation of the costs construction at $3.05 per foot for level designation. Additional detail is and benefits of Federal regulations (see ground to $4.30 per foot for rough provided in the ‘‘Exclusions’’ section Office of Management and Budget, county and $5.75 per foot for rough above. Circular A–4, 2003). It is also consistent county where materials must be packed (160) Comment: The commenter with several recent court decisions, in. This would make the cost of fence believes the draft Economic Analysis including Cape Hatteras Access building to range from $16,104 to fails to consider three classes of small Preservation Alliance v. U.S. $30,360. The articles by Miller 1961, entities defined by the Small Business Department of the Interior, 344 F. Supp. Platts 1990, Belsky 1999 referenced in Administration as: businesses with an 2d 108 (D.D.C.) and Center for Biological the draft Economic Analysis are not the average income under $750,000, cities Diversity v. U.S. Bureau of Land best commercially available and towns with a population under Management, 422 F. Supp. 2d 1115 information. 50,000 and local governments such as (N.D. Cal. 2006). Those decisions found Our Response: In response to two school districts. that estimation of incremental impacts public comments, the final economic Our Response: In the final economic stemming solely from the designation is analysis now incorporates updated analysis, Appendix A, Section A.1.2, proper. However, in order to address the fence construction and maintenance details the types of small entities divergent opinions of the courts and cost estimates, maintained and updated included in the analysis, and includes provide the most complete information by NRCS for 2012. In Section 4.3.1 of those categories of small entities to decision-makers, this economic the final economic analysis, fencing identified in the comment. The analysis, analysis reports both the baseline costs are estimated to range from $8,940 as described in Exhibit A–1, considers impacts of protections afforded per mile fenced to $14,500 per mile small businesses on the basis of the Risk spikedace and loach minnow absent fenced, with annual fence maintenance Management Association’s Small critical habitat designation; and the costs ranging from $179 to $725 per Business Size Standards, including, for estimated incremental impacts mile of fencing. some industries, businesses with precipitated specifically by the (157) Comment: The use of 2002 revenues under $750,000. In addition, designation of critical habitat for the census data in the draft Economic Appendix A states, ‘‘Section 601(5) of species. Summed, these two types of Analysis and the draft Environmental the Regulatory Flexibility Act defines impacts comprise the fully co-extensive Assessment is not compliant with small governmental jurisdictions as impacts of conservation in areas requirements to use the best scientific governments of cities, counties, towns, considered for critical habitat and commercial data available. The townships, villages, school districts, or designation. Economic Analysis and Environmental special districts with a population of (154) Comment: The Economic Assessment need to be updated to use less than 50,000. Special districts may Analysis and Environmental 2011 data. include those servicing irrigation, ports, Assessment should cite Dr. Rinne’s Our Response: The final economic parks and recreation, sanitation, publications that describe the increase analysis and final environmental drainage, soil and water conservation, in predatory nonnative fish and the assessment now incorporate 2010 road assessment, etc.’’ disappearance of native fish on the census data where possible throughout (161) Comment: The Economic Verde River after removal of livestock. the report to more accurately estimate Analysis needs to consider impacts to Our Response: Section 4.1 of the final the magnitude and distribution of operations falling into numerous NAICS economic analysis now recognizes that economic impacts. codes: 111940 Hay Farming; 112111 studies by J. N. Rinne have suggested (158) Comment: The draft Economic Beef Cattle Ranching and Farming; that current management has been Analysis does not consider impacts to 112112 Cattle Feedlots; 112120 Dairy successful at mitigating the negative grazing related to the necessity for water Cattle and Milk Production; 112210 Hog effects of grazing on riparian habitat, in all livestock operations. and Pig Farming; 112410 Sheep that further limitation of grazing may Our Response: As shown in Exhibit Farming; 112920 Horses and Other create conditions conducive to non- 4–3 of the final economic analysis, the Equine Production; 113110 Timber native species, and that fencing could be Service has historically recommended Tract Operations; 113210 Forest detrimental to riparian species. that off-river water systems be used to Nurseries and Gathering of Forest (155) Comment: Each addition of a supply water to cattle where possible, Products; 113310 Logging; 114210 species and/or critical habitat area takes but has not disallowed watering areas. Hunting and Trapping; 115112 Soil its toll on the economic viability of (159) Comment: The designation of Preparation, Planting, and Cultivating; ranching and this cumulative impact critical habitat for spikedace and loach 115113 Crop Harvesting, Primarily by was not discussed in the critical habitat minnow could possibly be the ‘‘final Machine; 115114 Postharvest Crop documents. A single additional straw’’ for what Department of Defense Activities (except Cotton Ginning); restriction or requirement that decreases is willing to spend on Fort Huachuca’s 115115 Farm Labor Contractors and the profitability of an operation could be support of the Act and it is significant Crew Leaders; 115116 Farm the one that causes the operator to go as a cumulative impact. If one more Management Services; 115210 Support out of business. element of critical habitat is added over Activities for Animal Production;
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10895
115310 Support Activities for Forestry; focuses on mining activities which are or ongoing non-native fish removal etc. not located in proposed critical habitat activity on the Verde River, as noted in Our Response: Exhibit A–1 lists the areas. The potential for impacts to Exhibit 6–7, amounting to a one-time NAICS codes used to identify groundwater users is discussed cost of $150,000 to $200,000 in potentially affected small entities in the qualitatively. undiscounted dollars between 2016 and industries most likely to incur impacts (164) Comment: Because of differing 2031, with the possibility of an related to the critical habitat court rulings in the Ninth and Tenth additional one-time cost of $50,000 designation. The final economic Circuit Courts, the Service must perform (undiscounted) for follow-up activity analysis considers nine NAICS a full analysis of all of the economic over that period. However, neither the classifications in agricultural, ranching, impacts of the critical habitat designated AGFD nor the NMDGF identified non- and development sectors, including Hay in New Mexico, regardless of whether native fish removal activity as being Farming (111940) and Beef Cattle an impact is co-extensive with the planned on Eagle Creek or the lower San Ranching and Farming (112111). It is species’ listing, while for critical habitat Francisco River. not clear why the commenter expects proposed in Arizona, the Service may (167) Comment: The volumes of water impacts to the remaining sectors listed. use the baseline approach. However, the used at Morenci are so significant that (162) Comment: The commenter different approaches adopted by the two sufficient quantities of substitute water claims the economic analysis is flawed circuits are relevant only where sources may be impossible to obtain. because it failed to coordinate currently occupied areas are designated The DEA should be revised to reflect the development of the Proposed Rule as critical habitat. In the absence of costs of restricting or preventing mining changes with local government. recent records of occupancy, the area production and limiting expansion Our Response: As noted in Section should be treated as unoccupied and all capabilities. 7.3, the analytic approach to the impacts attributed to the designation. Our Response: Section 5 of the final Economic Analysis is explained. Based Our Response: As stated in Section 2 economic analysis is focused on projected growth rates, the analysis of the final economic analysis, in order exclusively on a discussion of potential identified counties that were likely to to address the divergent opinions of the impacts to the mining industry, and undergo high levels of development and courts and provide the most complete specifically focuses on facilities owned were thus most likely to incur impacts information to decision-makers, this by FMC. The discussion includes data to residential and commercial economic analysis reports both the supplied by the commenters on the development activities. Based on this baseline impacts of protections afforded scope and scale of potential impacts to process, a subset of county and local the two species absent critical habitat those operations. Information received government planning offices that were designation; and the estimated as part of the comment above provided likely to incur costs to development was incremental impacts precipitated a value of potential lost water rights and contacted. Due to time constraints, specifically by the designation of critical associated replacement costs based. every county and local government habitat for the species. When summed, could not be contacted. these two types of impacts comprise the While we do not disagree that, should (163) Comment: Appendix A fully co-extensive impacts of the water be lost to mining activities, recognizes that there will be economic conservation in areas considered for such costs could occur, there remains impacts to small entities but critical habitat designation. considerable uncertainty as to the underestimates the impacts due to the (165) Comment: The draft economic likelihood of such events. Nonetheless, omission, throughout both the draft analysis erroneously used an the final economic analysis includes Environmental Assessment and the draft incremental impact approach for critical estimates of the cost of replacing water Economic Analysis, of not taking into habitat proposed in New Mexico. sources in Section 5 of the analysis, to account the potential restrictions to Our Response: Please see the provide additional context for groundwater extraction and use in areas comment above regarding use of the understanding the potential magnitude outside the actual critical habitat incremental versus baseline approaches of impacts, should they occur. designation corridor. Similarly, the draft for critical habitat designated in New (168) Comment: The draft Economic Economic Analysis and draft Mexico. Analysis does not address the impacts Environmental Assessment generally (166) Comment: Smallmouth bass, of critical habitat on water supplies for fail to address water and land uses along with channel catfish, are the the communities of Morenci and outside the proposed critical habitat, primary sport fish in Eagle Creek, as Clifton. focusing instead on impacts occurring well as other streams proposed as Our Response: The final economic within the proposed critical habitat—a critical habitat, including the lower San analysis now acknowledges this concern corridor that extends 300 feet from each Francisco River and the Verde River and in Section 5. side of the stream edge at ‘‘bank full its tributaries. The draft Economic (169) Comment: The critical habitat discharge.’’ As a consequence, the full Analysis fails to address the economic designation threatens rights of the Town range of impacts has not been impacts of removing these warmwater of Sierra Vista, Cochise County, and the considered. sportfish, which in many locations are Coalition of New Mexico Counties to Our Response: As noted in comment the primary sportfish. surface and groundwater. 149 above, the geographic scope of the Our Response: Section 6.3 of the final Our Response: Impacts to municipal final economic analysis was estimated economic analysis states ‘‘non-native water use are discussed qualitatively in using information provided in the fish species that could potentially Section 3 of the final economic analysis. Proposed Rule, in which the Service impact spikedace and loach minnow Considerable uncertainty surrounds the states that critical habitat designation include catfish, largemouth bass, specific quantity of water, if any, that extends 300 feet to either side of a smallmouth bass, green sunfish, brown Service would request to be conserved stream’s bank full width. However, the trout, rainbow trout, and red shiner. for spikedace and loach minnow as part analysis is not limited to assessing Possible recovery actions include the of a section 7 consultation. As such, this impacts derived from activities installation of fish barriers, increased analysis does not quantify the occurring inside that area. For example, monitoring, and non-native fish probability or extent to which water use Section 5 of the final economic analysis removal.’’ The AGFD identified planned would need to be curtailed or modified
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10896 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
to remedy impacts on spikedace and 776,000 × 20 years = $15.52 million (not (175) Comment: The fire management loach minnow. $8.79 million); $181,000 × 20 years = costs in the draft Economic Analysis are (170) Comment: The draft Economic $3.62 million (not $2.77 million) and too low. Analysis states that 29 percent of the $728,000 × 20 = $14.56 million (not Our Response: Based on information land in critical habitat is privately $11.2 million). Taking into account the received during the comment period, we owned. This is a significant amount of 3 and 7 percent analysis does not fix have adjusted estimated impacts to fire private land, especially when you this error. management activities to include costs consider how little streamside acreage Our Response: The Economic related to the 2011 Coronado Fire. The there is within the arid states of Arizona Analysis presents economic impacts analysis estimates three total fire and New Mexico. For many purposes, that may be incurred in different time management activities throughout all of land adjacent to flowing water is the periods in present value terms and the critical habitat designation, one in most valuable land in the arid west. The annualized terms. As described, Unit 3. Impacts to fire management are draft Economic Analysis understates annualized values are calculated to presented in Section 10.3. Impacts are impacts to development on streamside provide comparison of impacts across estimated at $14,200 over the next 20 land. activities with varying forecast periods years ($1,250 on an annualized basis). Our Response: As stated in Section 7 and distribution over time. For this (176) Comment: The draft economic of the final economic analysis, potential analysis, activities employ a forecast analysis should use more up-to-date modifications to development projects period of 20 years. The discrepancies administrative cost figures than the related to spikedace and loach minnow identified by the commenter appear to 2002 dollar figures from across the conservation activities depend on the be related to the commenter’s country. The cost figures used should be scope of spikedace and loach minnow assumptions that reported costs are based on a review of consulting records conservation activities, pre-existing land annual costs, rather than annualized from Arizona and New Mexico from use and regulatory controls in the costs. 2010 through 2011. region, and the nature of regional land Our Response: The draft Economic and real estate markets. In this case, (172) Comment: The draft Economic Analysis provided an incorrect citation consultations on development activities Analysis does not consider the costs of in Exhibit 2–3. Data from the ‘‘Federal have been rare (one to date). In addition, developing alternate water sources, Government Schedule Rates, Office of riparian development buffers already reductions in the number of cattle the Personnel Management’’ is from 2011, exist in many areas, and some operator can run, or additional not 2008. The draft Economic Analysis developments may not require any consultant and meeting costs for grazing and underlying cost models Federal permits. Further, the Service activities. incorporated the most recent estimates does not expect that conservation efforts Our Response: Based on a review of of administrative effort during section 7 related to future development activities the consultation history, the economic consultation, based on data from the in critical habitat areas are likely. The analysis determined that the Service is Federal Government Schedule Rates, analysis nonetheless includes an not likely to request restrictions or Office of Personnel Management, 2011, estimate that assumes that all private reductions on water use for grazing and a review of consultation records parcels in the Verde unit are required to activities during section 7 consultation. from several Service field offices across conduct conservation efforts for Therefore, water use impacts are not the country conducted in 2002. This spikedace and loach minnow. Separate expected for grazing operations. It citation error has been corrected in the from that, Section 11 of the final would be helpful if we can show that final economic analysis. economic analysis describes published the consultation allowed watering areas (177) Comment: The commenter studies that have examined increased too, since I think the issue is not having believes the administrative costs are too property values associated with stream access to the water itself due to fencing. low. habitat. For example, Colby and Wishart (173) Comment: The cost of fish Our Response: The commenter did estimated the value to property arising barrier installation used in the draft not provide a basis for assuming the from proximity to open space provided Economic Analysis is too low. The cost administrative costs estimated in this by streambeds, arroyos, and dry washes of building a fish barrier is between report are too low. in the city of Tucson, Arizona. The $800,000 and $1 million. (178) Comment: The statement that authors found that existence of Our Response: Fish barrier costs are the Service ‘‘anticipates requesting few permanent easements and other policies given in Exhibit 6–6 of the analysis. additional changes’’ is nebulous. to protect these areas increased the Undiscounted fish barrier costs range Our Response: The commenter did property values of homes within one- from $1 million on the low end to $10 not provide a basis for questioning the half mile of the streambed by an average million of the high end. These costs Service’s statements. of five percent. However, compliance (179) Comment: The Federal Register have been confirmed with Bureau of costs for development projects are not and the draft Economic Analysis give Reclamation officials responsible for anticipated to be higher for streamside different total impacts estimates for fish barrier installation in Arizona and homes than in other areas. incremental and coextensive costs. (171) Comment: There are potential New Mexico. Our Response: The information mathematical errors in the calculation of (174) Comment: Transportation costs printed in the revised Proposed Rule impacts. In the Executive Summary, it are too low and the economic analysts and Notice of Availability released by states that ‘‘Incremental impacts are should consult with the affected the Federal Register on October 4, 2011 estimated to be $2.20 million to $8.79 entities. represents an error. The costs reported million over twenty years ($194,000 to Our Response: Section 9 of the final in the draft Economic Analysis posted $776,000 annually) using a real rate of economic analysis reports costs to www.regulations.gov are correct. seven percent, or $2.77 million to $11.2 associated with transportation projects (180) Comment: In Exhibit ES–1, the million over 20 years ($181,000 to that were estimated by the Arizona draft Economic Analysis underestimates $728,000 annually) using a real rate of Department of Transportation related to or avoids stating the true impacts due to three percent.’’ However, $194,000 × 20 a consultation for an endangered fish designation of the San Pedro River. years = $3.88 million (not $2.2 million); species. Cochise County and the City of Sierra
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10897
Vista cannot withstand an impact of and prohibiting fishing and in-stream for spikedace and loach minnow will $3,240,000. An EIS is necessary to recreation in the 25-acre Conservation occur related to development activities, analyze the economic impacts of the Area on the property; improving human the analysis also considers a high end proposed designation. barriers to entrance to the river area and scenario, where proposed critical Our Response: Exhibits ES–1 and preventing trespass; and increasing habitat areas will be built out at a rate ES–2 summarize the expected fence maintenance. The developer for that is proportional to the county-wide administrative costs and project this project stated that 95 percent of housing unit growth rate within the next modification impacts developed in the costs to accommodate threatened and 20 years. To the extent that developers analysis. These costs are detailed in endangered species stemmed from avoid critical habitat areas, this effect Chapter 3 of the final economic southwestern willow flycatcher needs, would be considered a stigma effect and analysis. and that total costs to implement is recognized in the analysis. (181) Comment: The Service has conservation measures would have been (183) Comment: Census data is failed to provide the requisite analysis $4.4 million to $4.8 million. However, compromised in areas of low population required by law prior to designating the Service states that this project did density due to Privacy Act critical habitat. This is evidenced by the not go forward, and that the property considerations. In these areas the fact that the spikedace and loach has since been sold. Many disclosure of economic activities by minnow economic analysis was done by developments do not go forward due to individuals and businesses would entail IEc, the same firm that performed the these types of onerous government disclosing identifiable personal cactus ferruginous pygmy-owl economic restrictions that often add enormous information. Such data needs to be analysis. costs, yet provide little benefit to the determined by on-the-ground surveying Our Response: As described in detail species. The true economic costs of the to produce reliable information on in Section 2.1 of the final economic proposed critical habitat designation potential impacts. To do anything less analysis, the analysis adheres to OMB include the cost of foregone will result in failure to disclose impacts Circular A–4 guidelines for providing development opportunities because the on the most vulnerable segments of the assessments of the social costs and developers and their consultants do not economy. benefits of proposed regulatory actions. even have to ask the Service what the Our Response: The final economic Also, in response to relevant rulings in development restrictions will be. analysis includes, to the extent possible, both the U.S. Ninth and Tenth District Instead, they choose to avoid the entire data sources that represent the most Court of Appeals, in order to address the costly process of consultation with the accurate population and demographic divergent opinions of the courts with Service. data publicly available. Performing an respect to NEPA, and in order to Our Response: Section 7 of the final on-the-ground survey of undisclosed provide the most complete information economic analysis addresses impacts to personal business is outside the scope of to decision-makers, this economic development activities. As discussed in the final economic analysis. analysis reports both the baseline that section, the analysis utilizes a range (184) Comment: There is a total impacts of protections afforded the four of assumptions to estimate the potential omission of the affected counties and invertebrates absent critical habitat impact of critical habitat on other local government road and bridge designation and the estimated development activities in these areas. maintenance and construction impacts. incremental impacts precipitated Individual single-family home Had the Service properly contacted the specifically by the designation of critical development has rarely been subject to affected counties and other local habitat for the species. Summed, these consultation or habitat conservation governments, they could have obtained two types of impacts comprise the fully planning requirements in Arizona. As numerous impacts that are not co-extensive impacts of conservation in noted in the comment, only one catalogued by the state departments of areas considered for critical habitat development has undergone a formal transportation. The failure to obtain and designation. section 7 consultation related to analyze these impacts renders this (182) Comments: One section 7 development activities and impacts to section deficient. consultation for a development project multiple species, including spikedace Our Response: As stated in the final occurred in Yavapai County and and loach minnow, in the past, and this economic analysis, county road and considered potential impacts to the development was never, so no actual bridge construction and maintenance spikedace, loach minnow and the cost information is available. projects often require state Department southwestern willow flycatcher on the A number of existing baseline of Transportation involvement on some lower Verde River. The Homestead requirements prohibit development in level. Due to Federal funds accepted by Project consultation recommended the floodplain areas, which limits the most state Departments of following conservation measures: likelihood of developments within the Transportation, county road and bridge Fencing; producing educational critical habitat designation. In addition construction activity can be subject to a materials for homeowners; conducting to the rarity of consultations in the past, Federal nexus. The Arizona Department scientific studies over 20 years; potential for baseline protections, as of Transportation and the New Mexico surveying and monitoring over 20 years; well as the potential lack of a Federal Department of Transportation were and off-setting mitigation (habitat set- permit requirement for some contacted and responded with asides). To ensure that the action would development projects, the Service does information on all county and state road not adversely affect the spikedace and not expect that conservation efforts and bridge construction projects that loach minnow, the following measures related to future development activities required state Department of were added: developing a recreation and in critical habitat areas are likely to Transportation involvement. All county habitat monitoring plan; monitoring occur. As a result, the low end scenario and state road construction projects that effects of recreation on habitat; assumes that no future consultations or may potentially require section 7 implementing measures to ensure that conservation efforts on development consultation were captured in these habitat and streambanks are not will occur related to spikedace and communications and are presented in degraded; reducing risk of exotic species loach minnow over the next 20 years. Section 9 of the final economic analysis. reintroduction through educational However, because it is not certain that Those projects that do not require programs, prohibiting backyard ponds, no consultations or conservation efforts Department of Transportation
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10898 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
involvement lack a Federal nexus and million to $8.79 million over twenty October 4, 2011, Federal Register would not be subject to section 7 years ($194,000 to $776,000 annually) notice, draft environmental assessment consultation, and thus are not using a real rate of seven percent. and draft economic analysis caused anticipated to incur costs associated some confusion. General Comments Issue 4: National with this rule. Our Response: Because fishes occupy (185) Comments: The draft Economic Environmental Policy Act Concerns stream habitat, we have determined that Analysis at Section 8–4 makes note of (188) Comment: The mission of the it is more appropriate to quantify the the fact that the Bureau of Indian Affairs Service is to conserve, protect and delineation in terms of stream miles provides technical assistance to the enhance fish, wildlife, plants and their rather than total acres. All mileage Tribes on forest-management planning habitats for the continuing benefit of the figures throughout the rule and in the and oversees a variety of programs on American people. This mission will tables have been checked for tribal lands. While the purpose of this work much better when done with full consistency and adjusted where statement is not made clear by the disclosure of agency analysis processes necessary. In addition, see the Service, any suggestion that the BIA as is called for by NEPA. FWS should discussion on lateral extent of the presently has or will in the future have consider the impacts of their actions on stream in the Criteria Used to Identify sufficient funding and/or programs to the local citizens and should give due Critical Habitat section. ‘‘offset’’ the increased administrative weight to feedback from those who will (191) Comment: Several comments and other costs resulting from the bear the direct burden of FWS actions. asked why different alternatives were designation of critical habitat on tribal Our Response: The Service has made not evaluated in the environmental and lands such as the Yavapai-Apache available a draft economic analysis and economic analyses, including the 1994 Reservation is misplaced. In truth, a draft environmental assessment which critical habitat designation (with and federal funding for tribal programs and considered the impacts of the critical without appropriate exclusions), programs for technical assistance within habitat designation on local citizens. In evaluating only river and streams that the BIA are increasingly threatened in addition, we completed two comment are currently occupied, and, an today’s tough economic and budget periods totaling 90 days, which alternative that evaluates the climate. The Service simply cannot rely included an open house and public designation of critical habitat in light of on the BIA as a means to potentially hearing, during which comments were the Service’s policy of supporting and ‘‘mitigate’’ for the increased costs that submitted by the public. The comment enhancing recreational fishing the Nation will suffer if critical habitat and response section of this document opportunities with the designation of is designated on the Nations lands. provides the feedback requested. critical habitat. Our Response: The draft Economic (189) Comment: There were several Our Response: Critical habitat is Analysis did not intend to imply that comments on the inadequacy of the defined in section 3 of the Act as: BIA involvement would mitigate costs draft environmental assessment, (1) The specific areas within the to the Tribes, only that BIA involvement especially in respect to making a geographical area occupied by the could potentially provide a Federal determination of negligible to minor species, at the time it is listed in nexus for projects associated with BIA impacts on the environment. accordance with the Act, on which are programs. This has been clarified in Our Response: We determined found those physical or biological Section 8 of the final economic analysis. through the NEPA process that the features (186) Comment: The draft overall effects of this action are (a) Essential to the conservation of the environmental assessment states that insignificant. An EIS is required only if species and ‘‘As a result the Fort has reduced its we find that the proposed action is (b) Which may require special water usage from 3,300 acre–feet per expected to have a significant impact on management considerations or year (20 years ago) to 1,142 acre–feet the human environment. The completed protection; and currently.’’ There is a difference studies, evaluations, and public (2) Specific areas outside the between water usage and groundwater outreach conducted by the Service have geographical area occupied by the pumping volume. The values used in not identified impacts resulting from the species at the time it is listed, upon a this sentence are groundwater pumping proposed designation of critical habitat determination that such areas are rather than water usage. This statement that are clearly significant. The Service essential for the conservation of the is inaccurate and needs to be revised. has afforded substantial public input species. Our Response: The language in the and involvement, with two comment We do not believe the area final economic analysis has been periods and a public hearing. Based on encompassed by the 1994 designation revised to reflect this comment. our analysis and comments received would include areas essential for the (187) Comment: The Federal Register from the public, we prepared a final EA conservation of the species. In addition, and DEA give different total impacts and made a Finding of No Significant if we were to limit critical habitat to the estimates for incremental and Impact (FONSI), negating the need for a 257 km (159 mi) in the 1994 coextensive costs. preparation of an EIS. We have designation, any impacts to that limited Our Response: The information determined that our EA is consistent amount of area would be much more printed in the proposed rule and NOA with the spirit and intent of NEPA. The difficult to minimize or offset, and the released by the Federal Register on final EA, FONSI, and final economic likelihood of reaching the adverse October 4, 2011, represents an error. analysis provide our rationale for modification threshold would be The costs reported in the draft economic determining that critical habitat substantially increased. Also, the goal analysis posted to http:// designation would not have a significant for management of spikedace and loach www.regulations.gov are correct. Total effect on the human environment. Those minnow is to recover the two species so incremental impacts for all of the above documents are available for public that they may be removed from the activities are estimated to be $2.29 to review (see ADDRESSES) endangered species list, and recovery $47.2 million over 20 years ($202,000 to (190) Comment: A commenter would not be possible within the $4.16 million annually) using a real rate requested that the actual size or distance confines of the limited area included in of seven percent. The final draft of stream proposed as critical habitat be 1994. Finally, the Service is charged economic analysis values were $2.20 clarified. The information in the with using the best scientific and
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10899
commercial information available. New as that number is dictated by as-yet- plans detailing those conservation information has been gained about the undefined projects that will occur measures. The final rule describes species, their habitat requirements, and within critical habitat and that have a several exclusion decisions that were distribution, and the use of the 1994 Federal nexus. Therefore, we have made made, including one for Fort Huachuca, rule would not reflect this information. the best predictions possible based on following closure of the second In addition, for a species that is existing information, which is the level comment period and review of all currently limited to 10 to 20 percent of of section 7 consultation that has materials received. its range, recovery in the remaining occurred in the past. (196) Comment: The word occupied areas is impractical. Areas (194) Comment: The use of ‘‘unknown’’ was used at least 26 times outside of the currently occupied areas introduction of nonnative predators and in relation to impacts, which triggers an will be needed to recover both species, prolonged periods of low or no stream EIS. The primary purpose of preparing and we have included these areas as flow as catastrophic events in the draft an environmental assessment under essential to the conservation of the environmental assessments ensures 100 NEPA is to determine whether a species. percent chance of a ‘‘catastrophic event’’ proposed action would have significant Finally, with respect to conflicts with as there is continued stocking of impacts on the human environment. If sportfishing opportunities, the Service nonnative fish by State fish and wildlife significant impacts may result from a is currently completing a sportfish agencies and because every year there proposed action, then an EIS is required stocking consultation that addresses are widespread and common (40 CFR 1502.3). Whether a proposed management for native fish and ‘‘prolonged periods of low or no stream action exceeds a threshold of sportfish. In addition, the Service flow’’ along large portions of the Upper significance is determined by analyzing coordinates closely with the Arizona San Pedro River and a number of other the context and the intensity of the Game and Fish Department on stream and river segments proposed for proposed action (40 CFR 1508.27). management of native fishes and critical habitat. Under Council of Environmental sportfish. Our Response: The language in this Quality (CEQ) regulations, which are (192) Comment: Hidalgo County comment comes from the ‘‘Need for the responsible for ensuring compliance officials and residents were not aware of Action’’ section of the draft with NEPA, intensity is determined by the status of the critical habitat proposal environmental assessment. Taken in considering 10 criteria (CFR 40 until March of this year. We need to context, the information in this section 1508.27[b]) including ‘‘the degree to point out that the only published highlights the fact that habitat loss or which the proposed action would newspaper in Hidalgo County, the alteration has occurred in the past, and impose unique, unknown, or uncertain Hidalgo County Herald, was not that additional losses or further risks (emphasis added).’’ The proposed included in the Service’s contacts for restrictions in the species’ distributions alternatives in the EA would impose at publishing the notices. increases their vulnerability to a variety least 26 ‘‘unknown’’ risks including the Our Response: The Hidalgo County of threats. The intent of this section was risk of compromising national security Herald was included in our notification not to highlight any one threat or by taking money away from the War on list, and Hidalgo County officials are management concern, but to provide Global Terrorism. An EIS is required included in our interested parties background information on the need for under 40 CFR 1508.27. mailing list. We believe the two the critical habitat designation. Our Response: If some of the impacts comment periods allowed for adequate (195) Comment: To state that the will occur in the future, the Federal opportunity for public comment. A total impact of excluding an area due to agency still has an obligation to of 90 days was provided for document economic, national security, or other consider reasonably foreseeable future review and for the public to submit needs would depend on issues not impacts. 40 CFR 1508.7 defines comments. In addition, a public hearing addressed in the environmental ‘‘cumulative impact’’ as the impact on was scheduled on October 17, 2001, as assessment is an admission that the the environment which results from the another venue for comment submission. environmental assessment is incremental impact of the action when (193) Comment: The first paragraph of inadequate. The EA never analyzes added to other past, present, and the discussion of Alternative A in the conservation measures at Fort Huachuca reasonably foreseeable future actions draft environmental assessment or anywhere else except Ttribal and regardless of what agency (Federal or indicates that the current critical habitat FMC lands. These facts continue to non-Federal) or person undertakes such designation includes an increase of up support the argument that all the major other actions (Custer County Action to 239 miles of designated critical decisions were made before the Ass’n v. Garvey, 256 F.3d 1024 (10th habitat over the 2007 designation of 522 environmental assessment was written. Cir. 2001)). The record of decision must miles, and then states that addition The EA is a post-decision document, in contain a ‘‘useful analysis of the would result in a small but unknown violation of NEPA. cumulative impacts of past, present, and number of new or reinstated Our Response: The draft future projects,’’ which requires consultations and that the economic environmental assessment was ‘‘discussion of how [future] projects analysis projects at a similar rate and in completed following the publication of together with the proposed project will similar units as the past. Considering the proposed rule, but prior to the affect [the environment] (Muckleshoot the addition of 239 miles is development of a final rule for critical Indian Tribe v. U.S. Forest Serv., 177 approximately a 45 percent increase in habitat. Comment letters, including F.3d 800, 810 (9th Cir. 1999)).’’ habitat designation, the impacts are management plans, can be accepted up Nevertheless, NEPA does not require being understated. In addition, through the closing of the second the government to do the impractical unoccupied habitat does not currently comment period, which follows the (Kleppe v. Sierra Club, 427 U.S. 390, require consultation. publication of the draft environmental 1976). Determining the environmental Our Response: The overall assessment. Therefore, there is no impacts of reasonably foreseeable designation does include an increase in possible way for the draft environmental actions does not mean that the Federal total mileage over that designated in assessment to address conservation agency has to wait to make its decision 2007. The Service cannot predict the measures, as its publication preceded on the current project until the details number of consultations that will occur receipt of comments and management of other foreseeable actions are known
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10900 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(Kleppe v. Sierra Club, id.; Inland portions of the Nation’s recent written almost no substantive analysis or Empire Public Lands Council v. U.S. comments submitted to the Service on discussion, that the impacts of Forest Service, 88 F.3d 754 (9th Cir. December 27, 2010, which summarize designating critical habitat on the 1996). If a future action is foreseeable the steps that the Nation has taken since Nation’s lands for the spikedace and but not imminent and its details are not enactment of Tribal Resolution No. 46– loach minnow under Alternative B yet known, the Federal agency is not 2006, to provide continuing protection ‘‘would be minor.’’ Draft EA at pp. 145– required to wait until the details of the for the habitat within the Verde River 146. The Nation disagrees. other action are known before Conservation Corridor. See Draft EA at Our Response: In the final rule, proceeding (Kleppe v. Sierra Club, 141 (referencing only the Nation’s Yavapai-Apache lands have been supra). When further investigation comments from 2006 relative to the excluded from the designation. Both the would provide no definitive information Verde River Conservation Corridor and economic analysis and environmental to resolve the issues during the time ignoring recent comments updating the assessment have been updated in frame for the decision on the project, Service on this matter). response to these comments. further investigation in an EIS is not Our Response: The purpose of the (202) Comment: The Service is required (Kleppe v. Sierra Club, 427 draft environmental assessment is to requested to once again review the U.S. 390 (1976); Neighbors of Cuddy reflect the impacts of the decision, as Nation’s prior written and oral Mountain v. United States Forest Serv., made by the Service, of the critical comments (2006 through 2010) 137 F.3d 1372, 1380 (9th Cir. 1998)). habitat designation. The Service does regarding the potential designation of (197) Comment: We strongly not make decisions on exclusions until critical habitat on the Yavapai-Apache challenge the adequacy of the draft both comment periods have been Reservation and to meaningfully discuss environmental assessment, especially in closed, in order to ensure that all parties these concerns in the final how it glosses over the serious and have an opportunity to provide relevant environmental analysis (Alternative B) significant adverse effects to loach information. Therefore, at the time the and in the final economic analysis. minnow and spikedace populations and draft environmental assessment was Our Response: In the final rule, adverse modifications to critical habitats published, the Service had not yet Yavapai-Apache lands have been that the livestock industry has imposed decided that the Yavapai-Apache Nation excluded as we determined that the after a century of devastation and stream lands would be excluded from the Yavapai-Apache Nation’s resolution and riparian ecosystem destruction in designation. The comments regarding specifically addresses conservation of the Gila River Basin. the steps the Nation has taken are most these species, and the benefits of Our Response: The proposed rule and relevant to the Service’s decision, which exclusion outweighed the benefits of final rule acknowledge the significant is then ultimately reflected in the draft inclusion. impact grazing has had on many environmental assessment. (203) Comment: It must also be noted watersheds in the West. We also (200) Comment: In reviewing the that the draft environmental assessment acknowledge significant improvements existing conditions of water resources of wrongly states that the Tribal lands on Federal lands due to restrictions in the Verde River, the draft environmental considered for critical habitat riparian and stream corridors and other assessment discusses the ‘‘water rights’’ designation ‘‘are primarily used for management practices. of the Salt River Project and other non- livestock grazing, fuelwood cutting, (198) Comment: The draft Indian users along the River, but fails to roads, and recreation.’’ By lumping all environmental assessment (and where mention the important fact that the Tribal lands together in its analysis, the relevant, draft economic analysis) fails, Yavapai-Apache Nation, and the United draft environmental assessment among other things, to accurately States as the trustee for the Nation, also misrepresents how the Yavapai-Apache characterize (and therefore consider) (a) hold present and perfected, high- Nation utilizes the lands within the the substantive protections that already priority water rights to the surface flows Verde River Subbasin that are proposed exist on the Yavapai-Apache of the Verde River and its tributaries for designation in this instance. These Reservation for the spikedace and loach under principles of Federal law. See, lands are used to satisfy the permanent minnow; (b) the nature of surface water e.g., Arizona v. California, 373 U.S. 546, tribal homeland needs of the Yavapai- rights within the Verde River Subbasin, 600 (1963); see also, In Re The General Apache Nation. It should also be including the Federal reserved water Adjudication of All Rights to Use Water pointed out that contrary to the Draft rights that are held by the United States In the Gila River System and Source, EA, these lands are not utilized for of America in trust for the Nation; and 201 Ariz. 307, 35 P.3d 68, 71–72 (2001) livestock grazing and they remain (c) the adverse impacts that the (‘‘Gila V’’). In addition, other tribes, protected pursuant to tribal law under designation will have on the Nation’s including the Fort McDowell Yavapai tribal Resolution No. 46–2006. In ability to preserve itself in its permanent Nation and the Salt River Pima- addition, the Nation generally does not tribal homeland as outlined by the Maricopa Indian Community, hold high- permit fuelwood cutting within this area Nation in prior comments and priority water rights to the Verde River, and the Nation has only one minor discussions with the Service on this yet the draft environmental assessment access road across the River. Although matter. fails to mention this fact as well. the Nation does utilize the Verde River Our Response: We appreciate the Our Response: The purpose of the to satisfy the recreational needs of its concerns of the Tribe and have excluded draft environmental assessment is to tribal members, this does not involve all lands of the Yavapai-Apache Nation reflect the impacts of the decision, as large-scale recreational activities. In in consideration of impacts to the Tribe, made by the Service on the critical addition, it is important to understand their sovereign nation status, existing habitat designation. The final the fundamental role that the Verde management practices, and ongoing environmental assessment will be River and its habitat continues to play relationship with the Service. The updated where needed, in response to in the traditional, cultural, and religious Exclusions section of the final rule the two comment periods. practices of the Nation. Indeed, as the details our rationale for the exclusion. (201) Comment: In the Nation has repeatedly explained to the (199) Comment: Furthermore, the ‘‘Environmental Consequences’’ section Service, the Verde River is intertwined draft environmental assessment fails to of the draft environmental assessment with the identity of the Yavapai and discuss (or even reference) those (3.9.2), the Service concludes, with Apache people, including with regard to
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10901
certain ceremonial and religious loach minnow may help the public the lower San Pedro segment to no practices that are deliberately conducted understand the mindset of the Service, longer meet the rule set for spikedace or within the Verde River Corridor. None however they do little to provide loach minnow critical habitat. For loach of these important points have been information concerning the actual minnow only, the 22.9 km (14.2 mi) meaningfully considered in the Draft environmental effects of designating segment of the San Francisco River EA. The Nation respectfully requests critical habitat for the species. The segment upstream of the Tularosa River that the Service address as part of the Service should revise the draft confluence is included in the final rule final environmental assessment and environmental assessment to remove for critical habitat designation for loach final economic analysis the Nation’s much of the explanation language for minnow. previously stated concerns pertaining to the Act and replace it with analysis of (207) Comment: The Statement in the myriad of very real and specific the environment effects of designating Chapter 4 of the draft environmental impacts that are likely to stem from the SD/LM critical habitat. As stated in 40 assessment states that the potential proposed designation on the Nation’s CFR, Part 1500.1(b), ‘‘Most important, impacts on the quality of the lands, which includes impacts on the NEPA documents must concentrate on environment are not likely to be highly Nations ability to preserve itself in its the issues that are truly significant to controversial, which is not true, permanent tribal homeland. the action in question, rather than especially for the upper San Pedro River Our Response: Thank you for the amassing needless detail.’’ area. response. We note that the lands are Our Response: The 2011 draft and Our Response: The Service has used to satisfy the permanent tribal 2012 final environmental assessment reviewed the comments submitted by homeland needs of the Yavapai-Apache largely follow the format and Fort Huachuca regarding the potential Nation. We further note that the Nation methodology used to prepare the 2006 impacts of the designation on national does not permit fuelwood cutting within final environmental assessment. security activities conducted (in some certain areas, and that some portion of Additional information has been cases exclusively) at Fort Huachuca and the land is used for certain ceremonial provided to the more recent determined that the San Pedro River and religious practices. environmental assessments, where should be excluded based on potential (204) Comment: The summary for the needed, to refine habitat requirements impacts to national security. August 26, 2011, draft environmental (physical and biological features) (208) Comment: Under topics assessment indicates that two additional essential to the conservation of the dismissed from detailed analysis in the proposed stream segments were added species, changes to stream segments draft environmental assessment, the last for critical habitat designation in some proposed for critical habitat designation. bullet at the bottom of the page on places, and that three additional stream Additional information has also been Urban quality and design of the built segments were added in other places provided, where necessary, with respect environment (1502.16) states that the within the document. The location and to the affected environment and proposed critical habitat segments are description of these two or three added environmental consequences. The not located in urban or other built stream segments are not described in the conclusions of the environmental environments and would not affect the description of the alternatives found in consequence analysis have not quality of such environments. While Chapter 2 of the DEA. substantially changed from the 2006 this is a true with respect to the actual Our Response: The Service has made final environmental assessment to the critical habitat location, it is misleading changes to five stream segments 2012 final environmental assessment. when considering the location of the proposed for critical habitat designation (206) Comment: In comparison to critical habitat with regard to the City of subsequent to publication of the Alternatives A and B, the No Action Sierra Vista and Fort Huachuca. Surface proposed rule. These include: (1) Alternative includes three stream water flow in the San Pedro River Increasing the length of the San segments not in the 2010 proposed rule. includes a component referred to as Francisco River critical habit segment These stream segments are now base flow from the regional aquifer for loach minnow only from 112.3 miles considered by the Service to be highly outside of the potential critical habitat to 126.5 miles; (2) adding a 19.5-mile degraded and likely not occupied by designation. This is acknowledged at critical habitat segment of Bear Creek for spikedace or loach minnow. The ISC other points in the documents (see the loach minnow only; (3) reducing the would like to know where those top of page 85). Considering the Redfield Canyon critical habitat segment segments are located, what degradation possibility of future limitations on for spikedace and loach minnow from supports removal from listing. groundwater uses in these built-up 14.0 miles to 4.0 miles; (4) reducing the Our Response: The no action areas, the effect on the quality of such Hot Springs Canyon critical habitat alternative is the 2007 final rule. When environments needs to be analyzed as segment for spikedace and loach compared to the 2010 proposed rule, the part of this environmental assessment. minnow from 11.8 miles to 5.8 miles; no action alternative includes three Our Response: The Service has and (5) increasing the Fossil Creek stream segments not included in the reviewed the comments submitted by critical habitat segment for spikedace 2010 proposed rule: (1) For spikedace Fort Huachuca regarding the potential and loach minnow from 4.7 miles to only, the middle Gila River from impacts of the designation on national 13.8 miles. These changes are reflected Ashurst-Hayden Dam upstream to the security activities conducted (in some in the final environmental assessment. confluence of the San Pedro River; (2) cases exclusively) at Fort Huachuca and (205) Comment: The Service has for spikedace only, the lower San Pedro determined that the San Pedro River failed to provide adequate information River from the confluence with the Gila should be excluded based on potential regarding the actual environmental River to the confluence with Aravaipa impacts to national security. There is impacts of critical habitat designation Creek; and (3) for loach minnow only, therefore no potential for the potential for spikedace and loach minnow. the San Francisco River upstream of the impacts discussed in this comment to Statements in the draft environmental confluence with the Tularosa River. The occur as a result of the final critical assessment explaining the requirements Service has re-evaluated the suitability habitat designation. of the Act and the rationale for the of these three stream segments for (209) Comment: The draft Service to propose and then designate critical habitat designation and now environmental assessment indicates that critical habitat for the spikedace and considers the middle Gila segment and ‘‘the stream channel at bank full width,
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10902 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
plus 300 feet on either side of bank full (212) Comment: Portions of the regulations in 40 CFR 1501.6, it is the width * * *’’ This would result in a discussion on the San Pedro River continuing responsibility of the Federal designation of 600 feet lateral distance center on adversely affecting livestock government to use all practicable plus the stream channel. Throughout grazing but there is no discussion on the means, consistent with other essential this draft environmental assessment the impacts associated with Fort Huachuca. considerations of national policy, to critical habitat designation is referred to Our Response: The Service has improve and coordinate Federal plans, as a 300-foot corridor and not a 600-foot reviewed the comments submitted by functions, programs, and resources. The corridor. Considering this discrepancy, Fort Huachuca regarding the potential City of Sierra Vista, Cochise County, if the analysis was actually done on a impacts of the designation on national and affected counties within the 300-foot width rather than a 600-foot security activities conducted (in some Coalition respectfully request agency width, it would seem that this draft cases exclusively) at Fort Huachuca and coordination. environmental assessment would be determined that the San Pedro River Our Response: Local governments significantly flawed and will need to be should be excluded based on potential have been provided with adequate redone. impacts to national security. opportunity to comment on the Our Response: The critical habitat (213) Comment: While the draft proposed rule, draft environmental designation includes the width of the environmental assessment discusses assessment, and draft economic stream (which will vary), and 300 feet impacts such as drought, current and analysis. As noted at comment 128, we on either side of bankfull width. This future market trends and fluctuations, believe the two comment periods has been corrected in the final and supplemental forage availability allowed for adequate opportunity for environmental assessment. contribute to the cumulative impacts on public comment. A total of 90 days was (210) Comment: Under alternative B, livestock grazing. While the impacts provided for document review and the the draft environmental assessment from critical habitat designation are public to submit comments. In addition, states that there is a potential increase expected to have generally minor an open house and public hearing were adverse effects on current livestock of 313 miles of designated critical held on October 17, 2011, providing grazing conditions, an acknowledgment habitat from the existing designation of another opportunity for comment must be given to other factors that 522 miles and again states there would submission. Per our Regional Solicitor, contribute to the cumulative impacts on be a small but unknown increase in there is no designation for ‘‘Coordinator grazing. Though the draft environmental section 7 consultations. When Status.’’ However, in addition to the assessment document acknowledges considering this is approximately a 65 comment period we personally visited cumulative impacts in the above percent increase in the critical habitat with these commenters on several statement, it does not analyze them and occasions to ensure that their concerns designation, the impacts are being it does not take into consideration that were heard and considered. The Service understated. it is the incremental addition of species met with representatives of Hidalgo Our Response: The increase in after species and critical habitat County, Grant County, and Catron consultations is anticipated to be small restriction upon critical habitat County in March of 2011; Apache based on historical information about restriction that is killing the livestock County, Grant County, Hidalgo County, past consultations. There is potential for industry. The cumulative impacts need and Catron County in Springerville in new consultations not already covered to be identified and quantified. July 2011; and with the City of Sierra by the Act in stream segments currently Our Response: The 2011 draft and Vista, Cochise County, the Hereford unoccupied by either spikedace or loach 2012 final environmental assessment Natural Resource Conservation District, minnow. largely follow the format and Hidalgo County, and Fort Huachuca in (211) Comment: The Cumulative methodology used to prepare the 2006 November of 2011. We held an Impacts section should be revised to final environmental assessment. additional conference call with Fort emphasis on the significance of the Additional information has been Huachuca in August of 2011. We socioeconomics and water management provided to the more recent concluded that cooperator status would impacts of the listings. environmental assessments, where be limited to New Mexico and Arizona Our Response: The Service has needed, to refine habitat requirements Game and Fish Departments. Per our evaluated the potential environmental (physical and biological features) Regional Solicitor, there is no consequences of the proposed critical essential to the conservation of the designation for ‘‘Coordinator Status.’’ habitat designation for spikedace and species, changes to stream segments However, in addition to the comment loach minnow and determined that the proposed for critical habitat designation. period we personally visited with these incremental impact of designating Additional information has also been commenters on several occasions to additional critical habitat for the provided, where necessary, with respect ensure that their concerns were heard spikedace and loach minnow when to the affected environment and and considered. added to other past, present, and environmental consequences. The (215) Comment: The Service must use reasonably foreseeable future actions in conclusions of the environmental the best scientific and commercial the analysis area would be minor on consequence analysis have not information available as required by the water resources, wetlands and substantially changed from the 2006 Act and the Data Quality Act of 2000 floodplains, natural resources, land use final environmental assessment to the (Paperwork Reduction Act (44 U.S.C. and management (including livestock 2012 final environmental assessment, 3501 et seq.), here forth referred to as grazing), wildlife fire management, and including the section of text that is Data Quality Act) standards. Had recreation. Tribal socioeconomics, tribal referred to in the comment. Service employees followed the Trust resources, and tribal (214) Comment: Several commenters requirements in the laws and environmental justice may incur noted that, in order to be in compliance regulations and used the best scientific additional impacts if alternative B is with various case law, policies, or and commercial information available selected. Fort Huachuca could also regulations including Chapter 1 of and their internal agency guidelines incur additional impacts on national NEPA, Bennett v. Spear 550 FW 1, the contained in Chapter 1 of NEPA—Policy security activities if alternative B is Citizens Guide to NEPA (2007); and and Responsibilities—550 FW 1, the selected. page 16 of the 550 FW 1 and NEPA agency would have had the necessary
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10903
information to properly prepare the of a Section 7 consultation affecting Our Response: While potential NEPA document and economic impact water use and this affected a Federal administrative costs and impacts to analysis. entity (Fort Huachuca). existing infrastructure are relatively Our Response: Under the Act, the (217) Comment: The draft predictable, potential impacts on water Service must make decisions to environmental assessment indicates that use that could result from spikedace and designate critical habitat on the basis of channelization of streams for purposes loach minnow conservation, the best available scientific and of flood control may increase the risk of particularly in areas that are currently commercial data. When making critical flooding. This statement is confusing to unoccupied by the species are, in large habitat decisions, the Service consults the reader and it should be explained part, uncertain. The majority of past with experts within and external to the better or removed from the next version consultations on water issues have not Federal government and considers of the NEPA document. focused on water availability or water studies or data from Federal and state Our Response: We refer the reader to quantity issues. Instead, they have agencies, other stakeholders, and the page the October 28, 2010, proposed focused on nonnative species general public. Proposed and final rules rule (page 66487). Language in the reintroduction issues for multiple native are reviewed by the Service at the field, proposed rule states that sections of fish species, diversion repair and bank- regional, and national level to help many Gila Basin Rivers and streams stabilization-type projects, and ensure that the analysis is sound and have been, and continue to be, occasionally proposed water exchanges. conforms to the ‘‘best available science’’ channelized for flood control, which To date there has been only one known requirement. Additionally, the Service disrupts natural channel dynamics example of a Section 7 consultation also has a policy to ask at least three (sediment scouring and deposition) and affecting water use and this affected a independent scientific experts in a promotes the loss of riparian plant Federal entity (Fort Huachuca). The relevant field to provide a ‘‘peer review’’ communities. Various changes to stream Service has reviewed the comments of the proposed decisions to ensure that channels occur through channelization, submitted by Fort Huachuca regarding best available science is considered. including increases in water velocity in the potential impacts of the designation When considering a critical habitat the channelized section, subsequent on national security activities proposal, the Service is also required to increases in rates of erosion, and in conducted (in some cases exclusively) at consider economic impacts through some instances deposits of sediment in Fort Huachuca and determined that the completion of an economic analysis. downstream reaches that may increase San Pedro River should be excluded (216) Comment: Impacts to surface the risk of flooding. The final based on potential impacts to national flows in streams may also result from environmental assessment has been security. pumping of groundwater wells located modified to provide clarification on this (219) Comment: The draft outside of the proposed 300-foot critical topic. environmental assessment notes that habitat corridor. The groundwater– (218) Comment: The draft some required Section 7 conservation surface water interactions of each environmental assessment indicates that measures could have minor to moderate hydrologic system are unique and the effects on future water management adverse impacts on water management require site-specific analysis to fully activities and water resources from activities (e.g., groundwater pumping, understand potential interactions and critical habitat designation are expected surface water diversion, impacts. The NEPA process requires to be minor and are not anticipated to channelization). The term ‘‘minor to decisionmakers be informed of impacts. constrain any proposed water moderate adverse impacts’’ should be It is unclear from the draft management activities because most all defined, as water is not a small matter. environmental assessment whether of the proposed segments are occupied Every impact to water should be groundwater wells outside the 300 foot by the spikedace and loach minnow. addressed in an EIS to the extent critical habitat boundary will be shut The impact of critical habitat required by law. down if they are determined to impact designation on future water Our Response: The NEPA and related surface flows. This impact needs to be management activities was not supporting regulations require that an made very clear. Significant economic addressed for unoccupied habitat, and Environmental Impact Statement be impacts to well owners outside the 300 this is a fatal flaw in the draft prepared and approved when a foot critical habitat boundary could environmental assessment. The impacts proposed Federal action would cause occur if their wells are shut down. An to the Upper San Pedro River were not significant impacts. The Service has Environmental Impact Statement is addressed because the draft determined through its completion of a necessary to address this issue. environmental assessment is too general NEPA environmental assessment that Our Response: While potential and fails to take a ‘‘hard look’’ at the the proposed designation of critical administrative costs and impacts to impacts of designating critical habitat. habitat for spikedace and loach minnow existing infrastructure are relatively No attempt has been made to analyze would not result in significant impacts. predictable, potential impacts on water the full range of impacts resulting from This is not to say that there would be use that could result from spikedace and the critical habitat designation, no impacts to water or other resources, loach minnow conservation, including water development and use but that the impacts are not anticipated particularly in areas that are currently outside the critical habitat boundary. to be significant based on the Service’s unoccupied by the species are, in large Instead, impacts on agricultural, analysis. At this time, the Service does part, uncertain. The majority of past municipal and industrial water not believe there is a legitimate basis for consultations on water issues have not development projects are ‘‘unknowable preparing an environmental impact focused on water availability or water at this time,’’ ‘‘cannot be predicted with statement. quantity issues. Instead, they have precision’’ and are ‘‘mostly uncertain.’’ (220) Comment: The draft focused on nonnative species Similar statements appear throughout environmental assessment states that reintroduction issues for multiple native the document, indicating that the adverse impacts of critical habitat fish species, diversion repair and bank Service has failed to take the required designation on livestock grazing, stabilization projects, and occasionally ‘‘hard look’’ at the environmental however, are expected to be generally proposed water exchanges. To date consequences of the proposed minor in part because livestock grazing there has been only one known example alternatives. operations typically occur on a large
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10904 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
scale, and designated critical habitat follows the format and methodology of two species. All of the vague within any one allotment is likely to be the 2006 final environmental environmental consequence language small; and therefore, few grazing assessment used to prepare the 2007 only serves to put local citizens on allotments are likely to be subject to final rule, including the structure of notice that the designation of the consultation requirements based solely alternatives. In the 2011 draft proposed critical habitat could impact on the presence of the spikedace and environmental assessment, alternative A their use of federal land and the future loach minnow designated critical included a number of stream segments management of their private land, where habitat. As required by Bennett v. Spear being considered by the Service for their land is included in a proposed (1997), each agency must ensure that the exclusion. Additional stream segments critical habitat unit. Act not be implemented haphazardly, or have been considered by the Service for Our Response: The 2011 draft and on the basis of speculation or surmise. exclusion under this Alternative based 2012 final environmental assessment This statement in the draft on comments received subsequent to largely follow the format and environmental assessment shows a publication of the 2010 proposed rule, methodology used to prepare the 2006 complete lack of understanding of 2011 draft environmental assessment, final environmental assessment. western livestock grazing operations. and 2011 draft economic analysis. Additional information has been There is a very limited amount of water (223) Comment: To ‘‘occupy’’ to us provided to the more recent in the arid west, and the portion of an implies perennial, year-round and year environmental assessment, where allotment that is most valuable is the after year occurrence, and we conclude needed, to refine habitat requirements water source because without water you that the Service, in the draft (physical and biological features) cannot graze livestock. To state that the environmental assessment, was essential to the conservation of the impacts are expected to be generally implying the same thing. To use occupy species, changes to stream segments minor because designated critical for any status other than permanent proposed for critical habitat designation. habitat (the water) is likely to be a small residence is misleading. If occupation is Additional information has also been part of the allotment, is haphazard intermittent, such should be stated. provided, where necessary, with respect implementation of the Act. Our Response: Please see the to the affected environment and Our Response: The 2011 draft discussion under the subheading environmental consequences. The environmental assessment and 2012 ‘‘Occupied Versus Unoccupied Areas in conclusions of the environmental final environmental assessment are the final rule for our definition of consequence analysis have not generally aligned in format and occupied habitat and a discussion of the substantially changed from the 2006 methodology with the 2006 final rationale for that definition. final environmental assessment to the (224) Comment: The environmental environmental assessment. The 2012 final environmental assessment. environmental consequence analysis consequence determinations for each of (225) Comment: The draft has not substantially changed. This the various resource categories that are environmental assessment contains the presented throughout the draft same text pertaining to livestock grazing statement; ‘‘It is not expected, based on environmental assessment are not appeared in the 2006 final past consultations in the Southwest that environmental consequence environmental assessment (see p.72). designation of critical habitat would determinations, but a listing of the (221) Comment: The draft result in the infringement of any changes in the Act’s procedural environmental assessment fails to existing water rights.’’ This statement requirements that would take place if distinguish the impact of critical habitat does not meet the standard of utility and the proposed critical habitat is in areas that are presently unoccupied objectivity required by the Data Quality by spikedace and loach minnows. By implemented. In each of the Act. ‘‘Environmental Consequence’’ section erroneously assuming that ‘‘most all’’ of Our Response: We believe the of the various resource categories there the proposed critical habitat is currently statement is accurate based on our past is a detailed description of how the occupied, and will remain occupied experience and section 7 consultation section 7 consultation processes would over the next 20 years, the draft history in the southwest. However, if change if the proposed spikedace and environmental assessment overlooks the commenter feels that the statement significant impacts on land and water loach minnow critical habitat is implemented. The various is not accurate, there is a defined users. process under the Data Quality Act for Our Response: This text is in error ‘‘Environmental Consequence’’ sections requesting a correction. The commenter and has been updated in the draft also contain a listing of potential new can follow the process outlined on our environmental assessment. However, management requirements for each Web site: http://www.fws.gov/ the analysis completed in the draft resource category. These procedural southwest/science/ economic analyses and in the draft changes and potential new management informationquality.html?region=5 under environmental assessment correctly requirements do not give the public any the U.S. Fish and Wildlife Service reflects occupancy status for the river idea of what changes will occur to Information Quality Guidelines. segments within this critical habitat ecosystem health or spikedace and designation. loach minnow habitat if the proposed Required Determinations (222) Comment: There are several critical habitat is implemented. At best additional alternatives that are the current environmental consequences Regulatory Planning and Review— consistent with the purpose and need of determinations infer that by Executive Order 12866 the proposed action and are not too implementing Service control over the The Office of Management and Budget remote, speculative or impractical for management of the federal spikedace (OMB) has determined that this rule is critical review as part of the NEPA and loach minnow critical habitat units not significant and has not reviewed process. (or lands with a Federal nexus), the this rule under Executive Order 12866 Our Response: The scope of physical and biological features for the (Regulatory Planning and Review). OMB reasonable alternatives to be considered spikedace and loach minnow will bases its determination upon the is a function of the purpose and need of improve to the point that the designated following four criteria: the proposed action. This critical habitat areas will again (1) Whether the rule will have an environmental assessment generally somehow sustain a population of the annual effect of $100 million or more on
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10905
the economy or adversely affect an small entities are significant, we impacts associated with the rulemaking economic sector, productivity, jobs, the consider the types of activities that as described in Chapters 3 through 10 environment, or other units of the might trigger regulatory impacts under and Appendix A of the analysis and government. this rule, as well as the types of project evaluates the potential for economic (2) Whether the rule will create modifications that may result. In impacts related to: (1) Mining; (2) inconsistencies with other Federal general, the term ‘‘significant economic Species Management; (3) Tribes; (4) agencies’ actions. impact’’ is meant to apply to a typical Transportation; (5) Fire Management; (3) Whether the rule will materially small business firm’s business (6) Water Management; and (7) Grazing. affect entitlements, grants, user fees, operations. The final economic analysis indicates loan programs or the rights and To determine if the rule could that incremental impacts are not obligations of their recipients. significantly affect a substantial number expected to impact small entities for (4) Whether the rule raises novel legal of small entities, we consider the mining, species management, tribal, or policy issues. number of small entities affected within transportation, or fire management Regulatory Flexibility Act (5 U.S.C. 601 particular types of economic activities activities. et seq.) (e.g., water use and management, The final economic analysis indicates grazing, mining, species management that incremental impacts associated Under the Regulatory Flexibility Act and recreational fishing, development, with water management, grazing, and (RFA; 5 U.S.C. 601 et seq.), as amended transportation, fire management, and development may potentially be borne by the Small Business Regulatory tribal activities). We apply the by small entities. The entities Enforcement Fairness Act (SBREFA) of ‘‘substantial number’’ test individually potentially affected under water 1996 (5 U.S.C. 801 et seq.), whenever an to each industry to determine if management include cotton farming, agency must publish a notice of certification is appropriate. However, hay farming, cotton ginning, and food rulemaking for any proposed or final the SBREFA does not explicitly define manufacturing. The potential rule, it must prepare and make available ‘‘substantial number’’ or ‘‘significant incremental costs to water management for public comment a regulatory economic impact.’’ Consequently, to activities that may be borne by small flexibility analysis that describes the assess whether a ‘‘substantial number’’ entities are estimated at $125,000 to effects of the rule on small entities of small entities is affected by these $252,000 on an annualized basis (small businesses, small organizations, designations, this analysis considers the (discounted at seven percent) over the and small government jurisdictions). relative number of small entities likely next 20 years. The final economic However, no regulatory flexibility to be impacted in an area. In some analysis indicates of the 312 entities in analysis is required if the head of an circumstances, especially with critical this sector, 47 (or 15 percent) that may agency certifies the rule will not have a habitat designations of limited extent, be small entities may be affected. If each significant economic impact on a we may aggregate across all industries of them are small and each undergoes substantial number of small entities. and consider whether the total number section 7 consultation, annualized The SBREFA amended the RFA to of small entities affected is substantial. impacts per small entity would be require Federal agencies to provide a In estimating the number of small expected to range from 0.16 to 0.32 certification statement of the factual entities potentially affected, we also percent of annual revenues. Based on basis for certifying that the rule will not consider whether their activities have our analysis, we have determined that have a significant economic impact on any Federal involvement. there will not be a significant impact to a substantial number of small entities. Designation of critical habitat only small businesses in this sector. In this final rule, we are certifying that affects activities authorized, funded, or Grazing entities potentially affected the critical habitat designations for carried out by Federal agencies. Some by the critical habitat rule include beef spikedace and loach minnow will not kinds of activities are unlikely to have cattle ranching and farming. The final have a significant economic impact on any Federal involvement and so will not economic analysis indicates of the 147 a substantial number of small entities. be affected by critical habitat entities in this sector, 33 (or 22 percent) The following discussion explains our designation. In areas where the species small entities may be affected. rationale. is present, Federal agencies already are Incremental costs to small grazing According to the Small Business required to consult with us under entities are estimated at $20,300 to Administration, small entities include section 7 of the Act on activities they $295,000 on an annualized basis. small organizations, such as authorize, fund, or carry out that may Assuming that all 33 entities were to independent nonprofit organizations; affect the spikedace or loach minnow. undergo section 7 consultation, and all small governmental jurisdictions, Federal agencies also must consult with of the entities are small, annualized including school boards and city and us if their activities may affect critical impacts per small entity are expected to town governments that serve fewer than habitat. Designation of critical habitat, range from 0.08 to 1.18 percent of 50,000 residents; as well as small therefore, could result in an additional annual revenues. Based on our analysis, businesses. Small businesses include economic impact on small entities due we have determined that there will not manufacturing and mining concerns to the requirement to reinitiate be a significant impact to small with fewer than 500 employees, consultation for ongoing Federal businesses in this sector. wholesale trade entities with fewer than activities (see Application of the Development entities potentially 100 employees, retail and service ‘‘Adverse Modification Standard’’ affected by the critical habitat businesses with less than $5 million in section). designations could include new single- annual sales, general and heavy In our final economic analysis of the family housing, new multifamily construction businesses with less than critical habitat designations, we housing construction, new housing $27.5 million in annual business, evaluated the potential economic effects operative builders, and land special trade contractors doing less than on small business entities resulting from subdivision. The final economic $11.5 million in annual business, and conservation actions related to the analysis indicates of the 4,673 entities agricultural businesses with annual designations of critical habitat for in this sector, that four (or 0.9 percent) sales less than $750,000. To determine spikedace and loach minnow. The entities could be affected. Incremental if potential economic impacts on these analysis is based on the estimated costs to small development firms are
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10906 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
estimated to range from $0 to $77,000 ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 on an annualized basis. Assuming that These terms are defined in 2 U.S.C. million or greater in any year; that is, it impacts are borne by four small entities 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ that undergo section 7 consultation, mandate’’ includes a regulation that under the Unfunded Mandates Reform annualized impacts are anticipated to ‘‘would impose an enforceable duty Act. The designation of critical habitat range from 0 to 0.30 percent of annual upon State, local, or tribal governments’’ imposes no obligations on State or local revenues. Based on our analysis, we with two exceptions. It excludes ‘‘a governments. By definition, Federal have determined that there will not be condition of Federal assistance.’’ It also agencies are not considered small a significant impact to small businesses excludes ‘‘a duty arising from entities, although the activities they in this sector. participation in a voluntary Federal fund or permit may be proposed or In summary, we have considered program,’’ unless the regulation ‘‘relates carried out by small entities. whether the proposed designation to a then-existing Federal program In the past, local county governments would result in a significant economic under which $500,000,000 or more is have indicated a concern in the impact on a substantial number of small provided annually to State, local, and perceived regulatory burden imposed by entities. Information for this analysis tribal governments under entitlement critical habitat designation on was gathered from the Small Business authority,’’ if the provision would management issues within the county, Administration, stakeholders, and the ‘‘increase the stringency of conditions of and particularly in relation to public Service. For the above reasons and assistance’’ or ‘‘place caps upon, or safety issues such as bridge and road based on currently available otherwise decrease, the Federal repair or flood management. These information, we certify that, if Government’s responsibility to provide counties have indicated that State promulgated, the designations of critical funding,’’ and the State, local, or tribal agencies might opt not to complete habitat for spikedace and loach minnow governments ‘‘lack authority’’ to adjust necessary repairs or management would not have a significant economic accordingly. At the time of enactment, activities, or would not pursue Federal impact on a substantial number of small these entitlement programs were: funding to address these issues if such business entities. Therefore, regulatory Medicaid; Aid to Families with actions could trigger a section 7 flexibility analysis is not required. Dependent Children work programs; consultation. We note that not all Energy Supply, Distribution, or Use— Child Nutrition; Food Stamps; Social actions would necessarily trigger section Executive Order 13211 Services Block Grants; Vocational 7 consultation unless a Federal nexus Rehabilitation State Grants; Foster Care, exists. Where a Federal nexus does Executive Order 13211 (Actions Adoption Assistance, and Independent Concerning Regulations That exist, the county or state have options Living; Family Support Welfare to facilitate the section 7 process. Significantly Affect Energy Supply, Services; and Child Support Programmatic consultations can provide Distribution, or Use) requires agencies Enforcement. ‘‘Federal private sector the planning agency with a long-term to prepare Statements of Energy Effects mandate’’ includes a regulation that ability to affect repairs as needed over when undertaking certain actions. OMB ‘‘would impose an enforceable duty a specified length of time, without has provided guidance for upon the private sector, except (i) a repeating the section 7 process. In implementing this Executive Order that condition of Federal assistance or (ii) a addition, the Service has emergency outlines nine outcomes that may duty arising from participation in a consultation procedures so that any constitute ‘‘a significant adverse effect’’ voluntary Federal program.’’ when compared to not taking the The designation of critical habitat management entity can carry out regulatory action under consideration. does not impose a legally binding duty necessary actions in which lives or The economic analysis finds that none on non-Federal Government entities or property are in danger without first of these criteria are relevant to this private parties. Under the Act, the only completing section 7 consultation. Once analysis. Thus, based on information in regulatory effect is that Federal agencies the emergency is handled, section 7 the economic analysis, there are no must ensure that their actions do not consultation can be completed. As such, expected energy-related impacts destroy or adversely modify critical a Small Government Agency Plan is not associated with designations of critical habitat under section 7. While non- required. habitat for spikedace and loach Federal entities that receive Federal Takings—Executive Order 12630 minnow. As such, the designation of funding, assistance, or permits, or that critical habitat is not expected to otherwise require approval or In accordance with Executive Order significantly affect energy supplies, authorization from a Federal agency for 12630 (Government Actions and distribution, or use. Therefore, this an action, may be indirectly impacted Interference with Constitutionally action is not a significant energy action, by the designation of critical habitat, the Protected Private Property Rights), we and no Statement of Energy Effects is legally binding duty to avoid have analyzed the potential takings required. destruction or adverse modification of implications of designating critical critical habitat rests squarely on the habitat for spikedace and loach minnow Unfunded Mandates Reform Act Federal agency. Furthermore, to the in a takings implications assessment. (2 U.S.C. 1501 et seq.) extent that non-Federal entities are Critical habitat designation does not In accordance with the Unfunded indirectly impacted because they affect landowner actions that do not Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate require Federal funding or permits, nor seq.), we make the following findings: in a voluntary Federal aid program, the does it preclude development of habitat (1) This rule will not produce a Unfunded Mandates Reform Act would conservation programs or issuance of Federal mandate. In general, a Federal not apply, nor would critical habitat incidental take permits to permit actions mandate is a provision in legislation, shift the costs of the large entitlement that do require Federal funding or statute, or regulation that would impose programs listed above onto State permits to go forward. The takings an enforceable duty upon State, local, or governments. implications assessment concludes that tribal governments, or the private sector, (2) We do not believe that this rule these designations of critical habitat for and includes both ‘‘Federal will significantly or uniquely affect spikedace and loach minnow do not intergovernmental mandates’’ and small governments because it will not pose significant takings implications for
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10907
lands within or affected by the spikedace and loach minnow within the including: Water resources; wetlands designations. designated areas to assist the public in and floodplains, natural resources (fish, understanding the habitat needs of the wildlife and plants), land use and Federalism—Executive Order 13132 species. management, Wildland fire In accordance with Executive Order management, recreation, 13132 (Federalism), this rule does not Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) socioeconomics, tribal trust resources, have significant Federalism effects. A and environmental justice. The scope of Federalism assessment is not required. This rule does not contain any new the effects were primarily limited to In keeping with Department of the collections of information that require those activities involving Federal Interior and Department of Commerce approval by OMB under the Paperwork actions, because critical habitat policy, we requested information from, Reduction Act of 1995 (44 U.S.C. 3501 designation does not have any impact and coordinated development of, this et seq.). This rule will not impose on the environment other than through critical habitat designation with recordkeeping or reporting requirements the section 7 consultation process under appropriate State resource agencies in on State or local governments, the Act which is conducted for Federal Arizona and New Mexico. We received individuals, businesses, or actions. Private actions that have no comments from both States and have organizations. An agency may not Federal involvement are not affected by addressed them in the Summary of conduct or sponsor, and a person is not critical habitat designation. Comments and Recommendations required to respond to, a collection of section of the rule. The designations of information unless it displays a Based on the review and evaluation of critical habitat in areas currently currently valid OMB control number. the information contained in the occupied by spikedace and loach environmental assessment, we National Environmental Policy Act minnow may impose few additional determined that the designations of (42 U.S.C. 4321 et seq.) regulatory restrictions to those currently critical habitat for spikedace and loach in place and, therefore, may have little It is our position that, outside the minnow do not constitute a major incremental impact on State and local jurisdiction of the U.S. Court of Appeals Federal action having a significant governments and their activities. The for the Tenth Circuit, we do not need to impact on the human environment designations may have some benefit to prepare environmental analyses under the meaning of section 102(2)(c) these governments in that the areas that pursuant to the NEPA (42 U.S.C. 4321 of NEPA. contain the physical and biological et seq.) in connection with designating Pursuant to the Council on features essential to the conservation of critical habitat under the Act. We Environmental Quality regulations for the species are more clearly defined, published a notice outlining our reasons implementing NEPA, preparation of an and the elements of the features of the for this determination in the Federal environmental impact statement is habitat necessary to the conservation of Register on October 25, 1983 (48 FR required if an action is determined to the species are specifically identified. 49534). This position was upheld by the significantly affect the quality of the This information does not alter where U.S. Court of Appeals for the Ninth human environment (40 CFR 1502.3). and what federally sponsored activities Circuit (Douglas County v. Babbitt, 48 Significance is determined by analyzing may occur. However, it may assist local F.3d 1495 (9th Cir. 1995), cert. denied the context and intensity of a proposed governments in long-range planning 516 U.S. 1042 (1996)). action (40 CFR 1508.27). Context refers (rather than having them wait for case- However, when the range of the to the setting of the proposed action and by-case section 7 consultations to species includes States within the Tenth includes consideration of the affected occur). Circuit, such as that of spikedace and region, affected interests, and locality Where State and local governments loach minnow, under the Tenth Circuit (40 CFR 1508.27[a]). The context of both require approval or authorization from a ruling in Catron County Board of short- and long-term effects of critical Federal agency for actions that may Commissioners v. U.S. Fish and Wildlife habitat designations are the critical affect critical habitat, consultation Service, 75 F.3d 1429 (10th Cir. 1996), habitat units in Apache, Cochise, Gila, under section 7(a)(2) would be required. we will undertake a NEPA analysis for Graham, Greenlee, Pinal, and Yavapai While non-Federal entities that receive the critical habitat designations and Counties, Arizona, and Catron, Grant, Federal funding, assistance, or permits, notify the public of the availability of and Hidalgo Counties, New Mexico, or that otherwise require approval or the draft environmental assessment for totaling about 1,168 km (726 mi) for authorization from a Federal agency for the critical habitat designations when it spikedace, and (742 mi) for loach an action, may be indirectly impacted is finished. minnow. The effects of critical habitat by the designations of critical habitat, We performed the NEPA analysis, and designation at this scale, although long- the legally binding duty to avoid drafts of the environmental assessment term, would be small. Intensity refers to destruction or adverse modification of were available for public comment on the severity of an impact and is critical habitat rests squarely on the October 4, 2011 (76 FR 61330). The final evaluated by considering ten factors Federal agency. environmental assessment has been (40 CFR 1508.27[b]). completed and is available for review Civil Justice Reform—Executive Order with the publication of this final rule. The intensity of potential impacts that 12988 You may obtain a copy of the final may result from designations of critical In accordance with Executive Order environmental assessment online at habitat for the spikedace and loach 12988 (Civil Justice Reform), the http://www.regulations.gov, by mail minnow under the proposed action is regulation meets the applicable from the Arizona Ecological Services not anticipated to be significant. This standards set forth in sections 3(a) and Field Office (see ADDRESSES), or by conclusion is reached based on the 3(b)(2) of the Order. We are designating visiting our Web site at http:// following findings in the environmental critical habitat in accordance with the www.fws.gov/southwest/es/Arizona/. assessment: provisions of the Act. This final rule The final environmental assessment (1) The potential impacts on uses standard property descriptions and included a detailed analysis of the environmental resources may be both identifies the physical and biological potential effects of the critical habitat beneficial and adverse, but would features essential to the conservation of designations on resource categories, generally be minor.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10908 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(2) There would be negligible to occur within the designations. The White Mountain Apache Tribe—We minor impacts on public health or safety coordination efforts with the tribes are coordinated early with the White from designations of critical habitat. described below, and additional detail Mountain Apache Tribe regarding the (3) The increased risks of wildland on the exclusions of each are provided critical habitat designations. A fire or flooding was analyzed and above in the Exclusions section. coordination meeting was held in determined to be minor. Yavapai-Apache Nation—We October 2010 to gain a better (4) Potential impacts from critical coordinated early with the Yavapai- understanding of any concerns White habitat designations on the quality of Apache Nation on the proposed rule for Mountain Apache Tribe might have the environment are unlikely to be spikedace and loach minnow critical regarding the upcoming proposed rule highly controversial. habitat. A coordination meeting was for spikedace and loach minnow critical (5) Designation of critical habitat for held in October 2010 to gain a better habitat. Representatives of the White spikedace and loach minnow is not a understanding of Tribal positions and Mountain Apache Tribe attended the precedent-setting action with significant concerns regarding the designations. We public hearing in October of 2011. We effects. have maintained contact with the Tribe subsequently received comments from (6) Designation of critical habitat through letters, phone calls, and emails, White Mountain Apache Tribe on the would not result in significant and have provided the Tribe with notice proposed rule, including the request for cumulative impacts. of publication dates of various a 4(b)(2) exclusion and a copy of their (7) Designation of critical habitat is documents. We received comments Loach Minnow Management Plan. Their not likely to affect sites, objects, or from the Tribe during the first open comment letter and management plan structures of historical, scientific, or comment period. Their comment letter detail various conservation measures cultural significance because Federal provided a copy of Tribal Resolution that will benefit loach minnow, and State laws enacted to protect and 46–2006, which details the development including adoption of various preserve those resources would address exclusion zone they have created for the ordinances, hiring of key personnel, and any such potential impacts. 100-year floodplain of the Verde River, contingency plans for disaster (8) The critical habitat designations where it crosses their lands. In addition, management. would have long-term, beneficial in their comment letter, the Tribe impacts for spikedace and loach After reviewing their comment letter detailed the actions they have taken in minnow. and management plan, and in (9) Critical habitat designations would the past several years under the recognition of our special Tribal not violate any Federal, State, or local resolution for protection of the Verde relationship with White Mountain laws or requirements imposed for the River, as noted above in the Exclusions Apache Tribe, we determined that protection of the environment. section. We have determined that the benefits of exclusion of the mainstem The effects of critical habitat benefits of excluding lands on the White River and East Fork White River designations at this scale would be Yavapai-Apache Nation outweigh the outweighed the benefits of including it insignificant. Therefore, we found that benefits of including these areas. in the designations of critical habitat for the designations will not significantly San Carlos Apache Tribe—The San the species. Carlos Apache Tribe submitted affect the quality of the human References Cited environment and an environmental comments during the second comment impact statement is not required. period. Within their comment letter the A complete list of all references cited Tribe notes their adherence to TEK, is available on the Internet at http:// Government-to-Government which is an ecosystem-based approach www.regulations.gov and upon request Relationship With Tribes to land and species management; their from the Arizona Ecological Services In accordance with the President’s 2005 Fishery Management Plan; Office (see FOR FURTHER INFORMATION memorandum of April 29, 1994 development of various codes and CONTACT). regulations that benefit the species and/ (Government-to-Government Relations Author(s) with Native American Tribal or their habitat; and a commitment to no Governments; 59 FR 22951), Executive longer stocking nonnative sportfish in The primary authors of this Order 13175 (Consultation and the Eagle Creek watershed. rulemaking are the staff members of the Coordination with Indian Tribal As noted in the Exclusions section Arizona Ecological Services Office. Governments), and the Department of above, we find that the Tribe’s lands List of Subjects in 50 CFR Part 17 the Interior’s manual at 512 DM 2, we should be excluded on the basis of our readily acknowledge our responsibility relationship with the Tribe, the goals of Endangered and threatened species, to communicate meaningfully with the FMP, and the information provided Exports, Imports, Reporting and recognized Federal Tribes on a during the second comment period. The recordkeeping requirements, government-to-government basis. In Tribe has focused on known areas of Transportation. accordance with Secretarial Order 3206 concern for the species management, Regulation Promulgation of June 5, 1997 (American Indian Tribal and has discontinued stocking of Rights, Federal-Tribal Trust nonnative fishes in the Bonita and Eagle Accordingly, we amend part 17, Responsibilities, and the Endangered Creek watersheds. The FMP contains subchapter B of chapter I, title 50 of the Species Act), we readily acknowledge goals of conserving and enhancing Code of Federal Regulations, as set forth our responsibilities to work directly native fishes on the Reservation; below: with tribes in developing programs for restoring native fishes and their healthy ecosystems, to acknowledge that habitats; and preventing, minimizing or PART 17—[AMENDED] tribal lands are not subject to the same mitigating impacts to native fishes, controls as Federal public lands, to among others. In addition, the Tribe has ■ 1. The authority citation for part 17 remain sensitive to Indian culture, and indicated that, through TEK, they continues to read as follows: to make information available to tribes. practice an ecosystem-based approach Authority: 16 U.S.C. 1361–1407; 16 U.S.C. For spikedace and loach minnow, to land and species based management 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– tribal lands associated with three tribes and preservation. 625, 100 Stat. 3500; unless otherwise noted.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10909
■ 2. Amend § 17.11(h) by revising the of Endangered and Threatened Wildlife § 17.11 Endangered and threatened entries for ‘‘Minnow, loach’’ and to read as follows: wildlife. ‘‘Spikedace’’ under ‘‘Fishes’’ in the List * * * * * (h) * * *
Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules
******* FISHES
******* Minnow, loach ...... Tiaroga cobitis ...... U.S.A. (AZ, NM), Entire ...... E 247 17.95(e) NA Mexico.
******* Spikedace ...... Meda fulgida ...... U.S.A. (AZ, NM), Entire ...... E 236 17.95(e) NA Mexico.
*******
■ 3. In § 17.44, remove and reserve Appropriate microhabitat types include periodic flooding or, if flows are paragraphs (p) and (q). pools, runs, riffles, and rapids over modified or regulated, a flow regime ■ 4. In § 17.95, amend paragraph (e) by sand, gravel, cobble, and rubble that allows for adequate river functions, revising the entries for ‘‘Loach Minnow substrates with low or moderate such as flows capable of transporting (Tiaroga cobitis)’’ and ‘‘Spikedace amounts of fine sediment and substrate sediments. (Meda fulgida),’’ to read as follows: embeddedness. Appropriate habitats (3) Critical habitat does not include § 17.95 Critical habitat—fish and wildlife. have a low stream gradient of less than manmade structures (such as buildings, 2.5 percent and are at elevations below * * * * * aqueducts, runways, roads, and other 2,500 m (8,202 ft). Water temperatures paved areas) and the land on which they (e) Fishes. should be in the general range of 8.0 to * * * * * ° ° are located existing within the legal 25.0 C (46.4 to 77 F). boundaries on the effective date of this Loach Minnow (Tiaroga cobitis) (ii) An abundant aquatic insect food rule. We have determined that all base consisting of mayflies, true flies, (1) Critical habitat units are depicted designated areas contain at least one black flies, caddis flies, stoneflies, and for Apache, Cochise, Gila, Graham, PCE for loach minnow. dragonflies. Greenlee, Pinal, and Yavapai Counties, (4) Critical habitat map units. Data Arizona, and for Catron, Grant, and (iii) Streams with no or no more than low levels of pollutants. layers defining map units were created Hidalgo Counties, New Mexico, on the on a base of USGS 7.5′ quadrangles maps below. (iv) Perennial flows or interrupted stream courses that are periodically along with shapefiles generated by the (2) Within these areas, the primary Arizona Land Resource Information constituent elements (PCE) of the dewatered but that serve as connective corridors between occupied or Service for land ownership, streams, physical or biological features essential counties, and the Public Land Survey to the conservation of loach minnow seasonally occupied habitat and through System. Information on species consist of six components: which the species may move when the (i) Habitat to support all egg, larval, habitat is wetted. locations was derived from databases juvenile, and adult loach minnow. This (v) No nonnative aquatic species, or developed by the Arizona Game and habitat includes perennial flows with a levels of nonnative aquatic species that Fish Department, the New Mexico stream depth of generally less than 1 m are sufficiently low to allow persistence Department of Game and Fish, and (3.3 ft), and with slow to swift flow of loach minnow. Arizona State University. velocities between 0 and 80 cm per (vi) Streams with a natural, (5) Note: Index map follows: second (0.0 and 31.5 in. per second). unregulated flow regime that allows for BILLING CODE 4310–55–P
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10910 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(6) Unit 1: Verde River Subbasin, Nation, which is excluded from this confluence with the Verde River in Yavapai County, Arizona. designation. Township 15 North, Range 4 East, (i) Verde River for approximately (ii) Granite Creek for approximately southeast quarter of section 20 upstream 118.5 km (73.6 mi), extending from the 3.2 km (2.0 mi), extending from the to the confluence with an unnamed confluence with Beaver and Wet Beaver confluence with the Verde River in tributary from the south in Township 17 Creek in Township 14 North, Range 5 Township 17 North, Range 2 West, North, Range 5 East, southeast quarter of East, southeast quarter of section 30 northeast quarter of section 14 upstream the northeast quarter of section 24. upstream to Sullivan Dam in Township to a spring in Township 17 North, Range (iv) Beaver Creek and Wet Beaver 17 North, Range 2 West, northwest 2 West, southwest quarter of the Creek for approximately 33.3 km (20.7 quarter of section 15. This mileage does southwest quarter of section 13. mi), extending from the confluence with not include the 1.2 km (0.8 mi) (iii) Oak Creek for approximately 54.3 the Verde River in Township 14 North, belonging to the Yavapai-Apache km (33.7 mi), extending from the Range 5 East, southeast quarter of
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.000 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10911
section 30 upstream to the confluence the Yavapai-Apache Nation, which is section 25 upstream to the old Fossil with Casner Canyon in Township 15 excluded from this designation. Diversion Dam site at Township 12 North, Range 6 East, northwest quarter (v) Fossil Creek for approximately North, Range 7 East, southeast quarter of of section 23. This mileage does not 22.2 km (13.8 mi) from its confluence section 14. include the 0.2 km (0.1 mi) belonging to with the Verde River at Township 11 (vi) Note: Map of Unit 1, Verde River North, Range 6 East, northeast quarter of Subbasin follows.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00103 Fmt 4701 Sfmt 4725 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.001 10912 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(7) Unit 2: Salt River Subbasin, North Fork East Fork Black River with an unnamed tributary at Township Apache and Gila Counties, Arizona. extending from the confluence with East 6 North, Range 29 East, southeast (i) East Fork Black River for Fork Black River at Township 5 North, quarter of section 32. approximately 19.1 km (11.9 mi) from Range 29 East, northwest quarter of (iv) Coyote Creek for approximately the confluence with the West Fork Black section 5 upstream to the confluence 3.4 km (2.1 mi) from the confluence River at Township 4 North, Range 28 with an unnamed tributary at Township East, southeast quarter of section 11 with East Fork Black River at Township 6 North, Range 29 East, center of Section 5 North, Range 29 East, northeast upstream to the confluence with an 30. unnamed tributary approximately 0.82 quarter of section 8 upstream to an km (0.51 mi) downstream of the (iii) Boneyard Creek for unnamed confluence at Township 5 Boneyard Creek confluence at Township approximately 2.3 km (1.4 mi) North, Range 29 East, northwest quarter 5 North, Range 29 East, northwest extending from the confluence with the of section 10. quarter of Section 5. East Fork Black River at Township 5 (v) Note: Map of Unit 2, Salt River (ii) North Fork East Fork Black River North, Range 29 East, SW quarter of Subbasin follows. for approximately 7.1 km (4.4 mi) of the section 5 upstream to the confluence
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10913
(8) Unit 3: San Pedro River Subbasin, southeast quarter of the northeast with Aravaipa Creek at Township 6 Cochise, Pinal, and Graham Counties, quarter of section 35. South, Range 19 East, section 19 Arizona. (ii) Deer Creek—3.7 km (2.3 mi) of the upstream to the confluence with Oak (i) Aravaipa Creek for approximately creek extending from the confluence Grove Canyon at Township 6 South, 44.9 km (27.9 mi) extending from the with Aravaipa Creek at Township 6 Range 19 east, section 32. confluence with the San Pedro River in South, Range 18 East, section 14 (iv) Hot Springs Canyon for Township 7 South, Range 16 East, upstream to the boundary of the approximately 9.3 km (5.8 mi) Aravaipa Wilderness at Township 6 center of section 9 upstream to the extending from the confluence with South, range 19 East, section 18. confluence with Stowe Gulch in Bass Canyon in Township 12 South, Township 6 South, Range 19 East, (iii) Turkey Creek—4.3 km (2.7 mi) of Range 20 East, northeast quarter of the creek extending from the confluence section 36 downstream to Township 12
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.002 10914 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
South, Range 20 East, southeast quarter Canyon in Township 11 South, Range confluence with Pine Canyon in of section 32. 20 East, northwest quarter of section 28. Township 12 South, Range 21 East, (v) Redfield Canyon for approximately (vi) Bass Canyon for approximately center of section 20. 6.5 km (4.0 mi) extending from 5.5 km (3.4 mi) from the confluence (vii) Note: Map of Unit 3, San Pedro Township 11 South, Range 19 East, with Hot Springs Canyon in Township River Subbasin follows. northeast quarter of section 36 upstream 12 South, Range 20 East, northeast to the confluence with Sycamore quarter of section 36 upstream to the
(9) Unit 4: Bonita Creek Subbasin, (i) Bonita Creek for approximately with the Gila River in Township 6 Graham County, Arizona. 23.8 km (14.8 mi) from the confluence South, Range 28 East, southeast quarter
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.003 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10915
of section 21 upstream to the confluence South, Range 27 East, southeast quarter (ii) Note: Map of Unit 4, Bonita Creek with Martinez Wash in Township 4 of section 27. Subbasin follows.
(10) Unit 5: Eagle Creek Subbasin, of the northwest quarter of section 23 Freeport-McMoRan, which is excluded Graham and Greenlee Counties, upstream to the confluence of East Eagle from this designation. Arizona. Creek in Township 2 North, Range 28 (ii) Note: Map of Unit 5, Eagle Creek (i) Eagle Creek for approximately 26.5 East, southwest quarter of section 20. Subbasin follows. km (16.5 mi) from the Freeport- This mileage does not include McMoRan diversion dam at Township 4 approximately 21.4 km (13.3 mi) of South, Range 28 East, southwest quarter Eagle Creek on lands belonging to
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.004 10916 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(11) Unit 6: San Francisco River (8.8 mi) of the San Francisco River on (iii) Negrito Creek for approximately Subbasin, Greenlee County, Arizona and lands belonging to Freeport-McMoRan, 6.8 km (4.2 mi) extending from the Catron County, New Mexico. which is excluded from this confluence with the Tularosa River at (i) San Francisco River for designation. Township 7 South, Range 18 West, approximately 189.5 km (117.7 mi) of (ii) Tularosa River for approximately southwest quarter of the northwest the San Francisco River extending from 30.0 km (18.6 mi) from the confluence quarter of section 19 upstream to the the confluence with the Gila River in with the San Francisco River at confluence with Cerco Canyon at Township 5 South, Range 29 East, Township 7 South, Range 19 West, Township 7 South, Range 18 West, west southeast quarter of section 21 upstream southwest quarter of section 23 boundary of section 22. to the northern boundary of Township upstream to the town of Cruzville at (iv) Whitewater Creek for 6 South, Range 19 West, section 2. This Township 6 South, Range 18 West, approximately 1.9 km (1.2 mi) from the mileage includes approximately 14.1 km southern boundary of section 1. confluence with the San Francisco River
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.005 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10917
at Township 11 South, Range 20 West, Township 11 South, Range 20 West, (v) Note: Map of Unit 6, San Francisco Section 27 upstream to the confluence southeast quarter of section 23. River Subbasin follows. with Little Whitewater Creek at
(12) Unit 7: Blue River Subbasin, of section 31 upstream to the confluence Blue Creeks at Township 7 South, Range Greenlee County, Arizona, and Catron of Campbell Blue and Dry Blue creeks 21 West, southeast quarter of section 6 County, New Mexico. at Township 7 South, Range 21 West, to the confluence with Coleman Canyon (i) Blue River for approximately 81.4 southeast quarter of section 6. in Township 4.5 North, Range 31 East, km (50.6 mi) from the confluence with (ii) Campbell Blue Creek for southwest quarter of the northeast the San Francisco River at Township 2 approximately 12.4 km (7.7 mi) from the quarter of section 32. South, Range 31 East, southeast quarter confluence of Dry Blue and Campbell
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.006 10918 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(iii) Little Blue Creek for section 28 upstream to a barrier falls at northeast quarter of the southwest approximately 5.1 km (3.1 mi) from the Township 6 South, Range 21 West, quarter of section 8. confluence with the Blue River at northeast quarter of section 29. (vi) Dry Blue Creek for approximately Township 1 South, Range 31 East, (v) Frieborn Creek for approximately 4.7 km (3.0 mi) from the confluence center of section 5 upstream to the 1.8 km (1.1 mi) from the confluence with Campbell Blue Creek at Township mouth of a canyon at Township 1 North, 7 South, Range 21 West, southeast with Dry Blue Creek at Township 7 Range 31 East, northeast quarter of quarter of Section 6 upstream to the South, Range 21 West, southwest section 29. confluence with Pace Creek in (iv) Pace Creek for approximately 1.2 quarter of the northwest quarter of Township 6 South, Range 21 West, km (0.8 mi) from the confluence with section 5 upstream to an unnamed southwest quarter of section 28. Dry Blue Creek at Township 6 South, tributary flowing from the south in (vii) Note: Map of Unit 7, Blue River Range 21 West, southwest quarter of Township 7 South, Range 21 West, Subbasin follows.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00110 Fmt 4701 Sfmt 4725 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.007 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10919
(13) Unit 8: Gila River Subbasin, Township 12 South, Range 14 West, east the eastern boundary of section 3 Catron, Grant, and Hidalgo Counties, boundary of Section 21. upstream to the confluence with New Mexico. (iii) Middle Fork Gila River for Blacksmith Canyon at Township 17 approximately 19.1 km (11.9 mi) of the (i) Gila River for approximately 153.5 South, Range 17 West, northwest Middle Fork Gila River extending from km (95.4 mi) from the confluence with quarter of section 3. This mileage does the confluence with West Fork Gila not include approximately 7.9 km (4.9 Moore Canyon at Township 18 South, River at Township 12 South, Range 14 mi) of Mangas Creek on lands belonging Range 21 West, southeast quarter of the West, southwest quarter of section 25 to Freeport-McMoRan, which are southwest quarter of section 32 upstream to the confluence of Brothers excluded from the designation. upstream to the confluence of the East West Canyon in Township 11 South, and West Forks of the Gila River at (vi) Bear Creek for approximately 29.5 Range 14 West, northeast quarter of km (18.4 mi) extending from Township Township 13 South, Range 13 West, section 33. 15 South, Range 17 West, eastern center of section 8. This mileage does (iv) East Fork Gila River for boundary of section 33 upstream to the not include approximately 11.5 km (7.2 approximately 42.1 km (26.2 mi) confluence with Sycamore and North mi) of the Gila River on lands owned by extending from the confluence with West Fork Gila River at Township 13 Fork Walnut Creek at Township 16 Freeport-McMoRan, which is excluded South, Range 15 West, eastern boundary from this designation. South, Range 13 West, center of section 8 upstream to the confluence of Beaver of section 15. This designation does not (ii) West Fork Gila River for and Taylor Creeks in Township 11 include approximately 1.9 km (1.2 mi) approximately 13.0 km (8.1 mi) from the South, Range 12 West, northeast quarter of Bear Creek on lands belonging to confluence with the East Fork Gila River of section 17. Freeport-McMoRan, which are excluded at Township 13 South, Range 13 West, (v) Mangas Creek for approximately from this designation. center of Section 8 upstream to the 1.2 km (0.8 mi) extending from (vii) Note: Map of Unit 8, Gila River confluence with EE Canyon at Township 17 South, Range 17 West, at Subbasin follows.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10920 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00112 Fmt 4701 Sfmt 4725 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.008 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10921
Spikedace (Meda fulgida) have a low gradient of less than that allows for adequate river functions, (1) Critical habitat units are depicted approximately 1.0 percent, at elevations such as flows capable of transporting for Cochise, Gila, Graham, Greenlee, below 2,100 m (6,890 ft). Water sediments. Pinal, and Yavapai Counties, Arizona, temperatures should be in the general (3) Critical habitat does not include and for Catron, Grant, and Hidalgo range of 8.0 to 28.0 °C (46.4 to 82.4 °F). manmade structures (such as buildings, Counties, New Mexico, on the maps (ii) An abundant aquatic insect food aqueducts, runways, roads, and other below. base consisting of mayflies, true flies, paved areas) and the land on which they (2) Within these areas, the primary black flies, caddis flies, stoneflies, and are located existing within the legal constituent elements (PCE) of the dragonflies. boundaries on the effective date of this physical or biological features essential (iii) Streams with no or no more than rule. We have determined that all to the conservation of spikedace consist low levels of pollutants. designated areas contain at least one of six components: (iv) Perennial flows, or interrupted PCE for spikedace. (i) Habitat to support all egg, larval, stream courses that are periodically (4) Critical habitat map units. Data juvenile, and adult spikedace. This dewatered but that serve as connective layers defining map units were created habitat includes perennial flows with a corridors between occupied or on a base of USGS 7.5′ quadrangles stream depth generally less than 1 m seasonally occupied habitat and through along with shapefiles generated by the (3.3 ft), and with slow to swift flow which the species may move when the Arizona Land Resource Information velocities between 5 and 80 cm per habitat is wetted. Service for land ownership, streams, second (1.9 and 31.5 in. per second). (v) No nonnative aquatic species, or counties, and the Public Land Survey Appropriate stream microhabitat types levels of nonnative aquatic species that System. Information on species include glides, runs, riffles, the margins are sufficiently low as to allow locations was derived from databases of pools and eddies, and backwater persistence of spikedace. developed by the Arizona Game and components over sand, gravel, and (vi) Streams with a natural, Fish Department, the New Mexico cobble substrates with low or moderate unregulated flow regime that allows for Department of Game and Fish, and amounts of fine sediment and substrate periodic flooding or, if flows are Arizona State University. embeddedness. Appropriate habitat will modified or regulated, a flow regime (5) Note: Index map follows:
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10922 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(6) Unit 1: Verde River Subbasin, excluded from this designation. Granite southeast quarter section 20 upstream to Yavapai County, Arizona. Creek for approximately 3.2 km (2.0 mi), the confluence with an unnamed (i) Verde River for approximately extending from the confluence with the tributary from the south in Township 17 170.6 km (105.9 mi), extending from the Verde River in Township 17 North, North, Range 5 East, southeast quarter of confluence with Fossil Creek in Range 2 West, northeast quarter section the northeast quarter of section 24. Township 11 North, Range 6 East, 14 upstream to a spring in Township 17 (iii) Beaver Creek/Wet Beaver Creek northeast quarter of section 25 upstream North, Range 2 West, southwest quarter for approximately 33.3 km (20.7 mi), to Sullivan Dam in Township 17 North, of the southwest quarter of section 13. extending from the confluence with the Range 2 West, northwest quarter of (ii) Oak Creek for approximately 54.3 Verde River in Township 14 North, section 15. This mileage does not km (33.7 mi), extending from the Range 5 East, southeast quarter of include the 1.2 km (0.8 mi) belonging to confluence with the Verde River in section 30 upstream to the confluence the Yavapai-Apache Nation, which is Township 15 North, Range 4 East, with Casner Canyon in Township 15
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.009 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10923
North, Range 6 East, northwest quarter Verde River in Township 13 North, with the Verde River at Township 11 of section 23. This mileage does not Range 5 East, center section 21, North, Range 6 East, northeast quarter of include the 0.2 km (0.1 mi) belonging to upstream to the confluence with Black section 25 upstream to the old Fossil the Yavapai-Apache Nation and Mountain Canyon in Township 13 Diversion Dam site at Township 12 excluded from these designations. North, Range 6 East, southeast quarter of North, Range 7 East, southeast quarter of (iv) West Clear Creek for section 17. section 14. approximately 10.9 km (6.8. mi), (v) Fossil Creek for approximately (vi) Note: Map of Unit 1, Verde River extending from the confluence with the 22.2 km (13.8 mi) from its confluence Subbasin follows.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00115 Fmt 4701 Sfmt 4725 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.010 10924 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(7) Unit 2: Salt River Subbasin, Gila to Lime Springs in Township 6 North, southeast quarter of section 36 upstream County, Arizona. Range 12 East, southwest quarter of to the confluence with Sevenmile (i) Tonto Creek for approximately 47.8 section 20. Canyon at Township 8 North, Range 13 km (29.7 mi) extending from the (iii) Rye Creek for approximately 2.8 East, northern boundary of section 20. confluence with Greenback Creek in km (1.8 mi) extending from the (v) Rock Creek for approximately 5.8 Township 5 North, Range 11 East, confluence with Tonto Creek in km (3.6 mi) extending from the northwest quarter of section 8 upstream Township 8 North, Range 10 East, confluence with Spring Creek at to the confluence with Houston Creek in northeast quarter of section 24 upstream Township 8 North, Range 12 East, Township 9 North, Range 11 East, to the confluence with Brady Canyon in southeast quarter of section 1 upstream northeast quarter of section 18. Township 8 North, Range 10 East, (ii) Greenback Creek for northwest quarter of section 14. to the confluence with Buzzard Roost approximately 15.1 km (9.4 mi) from the (iv) Spring Creek for approximately Canyon at Township 8 North, 12 East, confluence with Tonto Creek in 27.2 km (16.9 mi) extending from the center of section 24. Township 5 North, Range 11 East, confluence with the Tonto River at (vi) Note: Map of Unit 2, Salt River northwest quarter of section 8 upstream Township 10 North, Range 11 East, Subbasin follows.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10925
(8) Unit 3: San Pedro River Subbasin, km (2.3 mi) of the creek extending from Grove Canyon at Township 6 South, Cochise, Graham, and Pinal Counties, the confluence with Aravaipa Creek at Range 19 east, section 32. Arizona. Township 6 South, Range 18 East, (iii) Hot Springs Canyon for (i) Aravaipa Creek for approximately section 14 upstream to the boundary of approximately 9.3 km (5.8 mi) 44.9 km (27.9 mi) extending from the the Aravaipa Wilderness at Township 6 extending from the confluence with confluence with the San Pedro River in South, Range 19 East, section 18. Bass Canyon in Township 12 South, Township 7 South, Range 16 East, (ii) Turkey Creek—4.3 km (2.7 mi) of Range 20 East, northeast quarter of center of section 9 upstream to the the creek extending from the confluence section 36 downstream to Township 12 South, Range 20 East, southeast quarter confluence with Stowe Gulch in with Aravaipa Creek at Township 6 of section 32. Township 6 South, Range 19 East, South, Range 19 East, section 19 southeast quarter of the northeast upstream to the confluence with Oak (iv) Redfield Canyon for quarter of section 35. Deer Creek—3.7 approximately 6.5 km (4.0 mi)
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.011 10926 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
extending from Township 11 South, (v) Bass Canyon for approximately 5.5 South, Range 21 East, center of section Range 19 East, northeast quarter of km (3.4 mi) from the confluence with 20. section 36 upstream to the confluence Hot Springs Canyon in Township 12 (vi) Note: Map of Unit 3, San Pedro with Sycamore Canyon in Township 11 South, Range 20 East, northeast quarter River Subbasin follows. South, Range 20 East, northwest quarter of section 36 upstream to the confluence of section 28. with Pine Canyon in Township 12
(9) Unit 4: Bonita Creek Subbasin, with the Gila River in Township 6 South, Range 27 East, southeast quarter Graham County, Arizona. South, Range 28 East, southeast quarter of Section 27. (i) Bonita Creek for approximately of section 21 upstream to the confluence (ii) Note: Map of Unit 4, Bonita Creek 23.8 km (14.8 mi) from the confluence with Martinez Wash in Township 4 Subbasin follows.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.012 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10927
(10) Unit 5: Eagle Creek Subbasin, South, Range 28 East, southwest quarter approximately 21.4 km (13.3 mi) of Graham and Greenlee Counties, of the northwest quarter of section 23 Eagle Creek on lands belonging to Arizona. upstream to the confluence of East Eagle Freeport-McMoRan, which is excluded (i) Eagle Creek for approximately 26.5 Creek in Township 2 North, Range 28 from this designation. km (16.5 mi) from the Freeport- East, southwest quarter of section 20. (ii) Note: Map of Unit 5, Eagle Creek McMoRan diversion dam at Township 4 This mileage does not include Subbasin follows.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.013 10928 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(11) Unit 6: San Francisco River the confluence with the Gila River in 14.1 km (8.8 mi) of the San Francisco Subbasin, Greenlee County, Arizona, Arizona in Township 5 South, Range 29 River on lands belonging to Freeport- and Catron County, New Mexico. East, southeast quarter of section 21 McMoRan, which is excluded from this (i) San Francisco River for upstream to Township 6 South, Range designation. approximately 166.7 km (103.5 mi) of 19 West, section 2 in New Mexico. This (ii) Note: Map of Unit 6, San the San Francisco River extending from mileage does include approximately Francisco River Subbasin follows.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.014 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10929
(12) Unit 7: Blue River Subbasin, (ii) Campbell Blue Creek for Township 1 South, Range 31 East, Greenlee County, Arizona, and Catron approximately 12.4 km (7.7 mi) from the center Section 5 upstream to the mouth County, New Mexico. confluence of Dry Blue and Campbell of a canyon at Township 1 North, Range (i) Blue River for approximately 81.4 Blue Creeks at Township 7 South, Range 31 East, northeast quarter of section 29. km (50.6 mi) from the confluence with 21 West, southeast quarter of section 6 (iv) Pace Creek for approximately 1.2 to the confluence with Coleman Canyon the San Francisco River at Township km (0.8 mi) from the confluence with in Township 4.5 North, Range 31 East, 2S., Range 31 East, southeast quarter of Dry Blue Creek at Township 6 South, southwest quarter of the northeast section 31 upstream to the confluence of quarter of section 32. Range 21 West, southwest quarter of Campbell Blue and Dry Blue Creeks at Section 28 upstream to a barrier falls at Township 7 South, Range 21 West, (iii) Little Blue Creek for Township 6 South, Range 21 West, southeast quarter of section 6. approximately 5.1 km (3.1 mi) from the northeast quarter of section 29. confluence with the Blue River at
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.015 10930 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
(v) Frieborn Creek for approximately Township 7 South, Range 21 West, quarter of Section 6 upstream to the 1.8 km (1.1 mi) from the confluence northeast quarter of southwest quarter of confluence with Pace Creek in with Dry Blue Creek at Township 7 section 8. Township 6 South, Range 21 West, South, Range 21 West, southwest (vi) Dry Blue Creek for approximately southwest quarter of section 28. quarter of the northwest quarter of 4.7 km (3.0 mi) from the confluence (vii) Note: Map of Unit 7, Blue River section 5 upstream to an unnamed with Campbell Blue Creek at Township Subbasin follows. tributary flowing from the south in 7 South, Range 21 West, southeast
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00122 Fmt 4701 Sfmt 4725 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.016 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10931
(13) Unit 8: Gila River Subbasin, at Township 13 South, Range 13 West, 8 upstream to the confluence of Beaver Catron, Grant, and Hidalgo Counties, center of section 8 upstream to the and Taylor Creeks in Township 11 New Mexico. confluence with EE Canyon at South, Range 12 West, northeast quarter (i) Gila River for approximately 153.5 Township 12 South, Range 14 West, east of section 17. km (95.4 mi) from the confluence with boundary of Section 21. (v) Mangas Creek for approximately Moore Canyon at Township 18 South, (iii) Middle Fork Gila River for 1.2 km (0.8 mi) extending from Range 21 West, southeast quarter of the approximately 12.5 km (7.7 mi) of the Township 17 South, Range 17 West, at southwest quarter of section 32 Middle Fork Gila River extending from the eastern boundary of section 3 upstream to the confluence of the East the confluence with West Fork Gila upstream to the confluence with and West Forks of the Gila River at River at Township 12 South, Range 14 Township 13 South, Range 13 West, West, southwest quarter of section 25 Blacksmith Canyon at Township 17 center of section 8. This mileage does upstream to the confluence of Big Bear South, Range 17 West, northwest not include approximately 11.5 km (7.2 Canyon in Township 12 South, Range quarter of section 3. This mileage does mi) of the Gila River on lands owned by 14 West, southwest quarter of section 2. not include approximately 7.9 km (4.9 Freeport-McMoRan, which is excluded (iv) East Fork Gila River for mi) of Mangas Creek on lands belonging from this designation. approximately 42.1 km (26.2 mi) to Freeport-McMoRan, which are (ii) West Fork Gila River for extending from the confluence with excluded from the designation. approximately 13.0 km (8.1 mi) from the West Fork Gila River at Township 13 (vi) Note: Map of Unit 8, Gila River confluence with the East Fork Gila River South, Range 13 West, center of section Subbasin follows.
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 10932 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations
* * * * * Dated: February 7, 2012. Rachel Jacobson, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–3591 Filed 2–22–12; 8:45 am] BILLING CODE 4310–55–C
VerDate Mar<15>2010 17:28 Feb 22, 2012 Jkt 226001 PO 00000 Frm 00124 Fmt 4701 Sfmt 9990 E:\FR\FM\23FER2.SGM 23FER2 mstockstill on DSK4VPTVN1PROD with RULES2 ER23FE12.017