Inside This Issue Nonnative Aquatic Species to Habitat

Volume 24, No. 1 June 2012

HOT SPRINGS CANYON FISH BARRIER COMPLETED by Diane Laush, Wildlife Biologist, Bureau of Reclamation

he Bureau of Reclamation Native fish populations in Creek (2008) and most recently (Reclamation) completed the Gila River basin have deter- Hot Springs Canyon. Construc- Tconstruction of the Hot iorated significantly over the tion started in October 2011 on Springs Canyon fish barrier on past century and a half to the a fish barrier located on the December 13, 2010. The barrier point that 11 of 21 native fish Blue River approximately 0.5 is located on Hot Springs Can- species are now listed under the mile upstream of the San yon approximately 5.6 stream Endangered Species Act. In Francisco River confluence. miles upstream from the San addition to the listed species, Four additional fish barriers are Pedro River confluence. Fish one species has gone extinct required to be constructed, but barrier construction was ini- (Santa Cruz [Monkey Springs] alternative locations are still tially mandated by two U.S. pupfish [Cyprinodon arcuatus]) being considered. Fish and Wildlife Service and two other species have Aquatic habitats impacts in (FWS) biological opinions been placed on the candidate the Gila River Basin include (BO) (1994 and 2001) on the list (roundtail chub [Gila construction of dams for water impacts of Central Arizona robusta] and headwater chub storage, hydroelectric produc- Project (CAP) water transfers to [Gila nigra]). The remaining tion, and flood control; dewater- the Gila River Basin. These species have also declined, and ing of streams due to surface BO's were incorporated into five of them have been recom- diversion and ground-water and superseded by a third BO mended for Federal listing pumping for municipal, indus- issued on May 15, 2008. (Desert Fishes Team 2004). trial, and agricultural purposes; The CAP canal, declared These include the longfin dace watershed disturbances arising substantially complete in 1993, (Agosia chrysogaster), speckled from domestic livestock, over- begins near Lake Havasu and dace (Rhinichthys osculus), harvesting of timber, mining of continues through Phoenix and Sonora sucker (Catostomus commercially valuable ores; and Tucson terminating on the San insignis), desert sucker habitat loss due to expansion of Xavier District of the Tohono (Catostomus clarki), and flan- human populations (Dobbins O'odham Indian Reservation nelmouth sucker (Catostomus 1981). In addition, introduction south of Tucson. The CAP latipinnis). canal provides direct (and The purpose of the fish Cont. pg. 3 ..... Fish Barrier indirect) connections between barrier is to prevent or hinder the waters of the Colorado upstream movements of non- River Basin and waters of the native fish and other aquatic Gila River Basin. This pathway organisms into high-value provides an opportunity for native fish and amphibian Inside This Issue nonnative aquatic species to habitat. To date, fish barriers President’s Message ...... 2 access waters of the Gila River have been completed on New Treasurer ...... 6 basin and potentially cause Aravaipa Creek (2001), Legal Issues...... 7 harm to populations of native Cottonwood Creek (2004), Noteworthy Publications...... 13 fish. Fossil Creek (2004), Bonita The Arizo na Rip arian Co unc il 2 2012 Vol. 24 No . 1

PRESIDENT’S MESSAGE

reetings. Things have to maintain the quality of life in do a project while also main- been extra busy for the Gila River Valley. At our taining the landowner's need to Gmany of us. In this meeting we discussed how to continue his farming and ranch- President's Message I want to overcome natural and regula- ing operation. Stephanie and talk about what ARC has been tory hurdles that landowners Allen did a great job. You guys doing in the last few months. I face in doing conservation rock!!! will start with our fall meeting. projects. Our presenters cov- Our meeting on Friday cov- We had our 2011 fall campout ered a range of topics including ered a lot of issues and the in October at The Nature an overview of the geomorph- speakers were all outstanding. Conservancy's (TNC) Shield ology study conducted on the I have to say a big thank you to Ranch located along the beauti- Gila River, tools in the Endan- Jan Holder, Executive Director ful Verde River in Cottonwood. gered Species Act that provide for GWP who helped arrange Kim Schonek, TNC Preserve regulatory certainty, the Gila the speakers and organized the Manager, was our hostess. Our River Water Settlement Act Saturday field trip. Jan, thank focus was on the Verde River and how this effects water you for making this meeting and we had talks from Arizona users, conservation easements, successful. It was a pleasure Game and Fish, US Fish and and the types of projects being working with you – you are the Wildlife Service, and Friends along the Gila River. The best!!! And of course you are of the Verde River Greenway. crème de la crème was our Sat- awesome. We heard about native fish and urday field trip to an actual Some of you have told me endangered species issues as stream restoration project that that these were outstanding well as plans from the local was recently completed along meetings and that they were community on what they want the Gila River. very worthwhile. I truly appre- to see for the Verde River. The The field trip on Saturday ciate hearing those kind of weather, food, and friendship was a continuation of our comments because we try to were all perfect. We have Thursday workshop conducted have meetings where you walk begun planning our next fall by Stephanie Yard and Allen away learning something new, meeting so watch for an email Haden of Natural Channel making a new friend, and most and plan on coming. Design. The workshop dis- of all having a good time. Our annual meeting, our cussed planning and designing We are starting to plan our 25th anniversary meeting, was stream and riparian restoration annual meeting for next year. in March in Thatcher, AZ. The projects. In particular, how to If you have ideas please email meeting was them to me or one of the co-hosted by the other ARC Board Gila Watershed members. We want to do Partnership (GWP) meetings to be informative and the turnout was and provide a forum for great with local discussion. people along with I hope to see you at ARC members. our October fall meeting. GWP is an organization that formed in – Kris Randall, President the 1990s and is comprised of local landowners including ranchers, farmers, along with various state and federal agencies Stephanie Yard and Allen Haden of Natural Channel Design go who come together over the design for the restoration project on the Gila River. The Arizo na Rip arian Co unc il 3 2012 Vol. 24 No . 1

Fish Barrier...... from pg. 1 native fish or streams which can species and to restore historical be protected and renovated species diversity in the area. and establishment of nonnative (mechanical or chemical treat- Prior to the actual construc- aquatic organisms in the region ment of streams to remove non- tion of the fish barrier, numer- over the past century have native fish species) to replicate ous details must be coordinated polluted native fish habitat that rare stocks of native fish such as and completed. First, Rob remain (Miller 1961, Moyle et loach minnow (Tiaroga cobitis) Clarkson, Reclamation's fish al. 1986, Minckley 1991). This and spikedace (Meda fulgida). biologist, looked for a suitable physical and biological destab- Hot Springs Canyon sus- location to place the barrier. ilization of riverine systems has tains populations of five native Working in concert with led to a typical pattern in fish species: longfin dace, Reclamation engineer, Jeff Arizona where native fish speckled dace, Sonora sucker, Riley, a site was located that species tend to be restricted to desert sucker, and the endan- protects the maximum amount the upper reaches of drainage gered Gila chub (Gila of stream miles and is feasible basins (FWS 2001). intermedia). In October 2007, from a construction/engineering Consequently, the wide- the Bureau of Land Manage- standpoint. Once the location is spread situation in the Gila ment (BLM) working with the determined National Environ- River Basin is that remaining FWS, Arizona Game and Fish mental Policy Act (NEPA) tributary populations of native Department, Arizona State compliance must be completed. fishes cannot recolonize other University, Arizona State Land In the case of Hot Springs Can- tributaries from where they Department, Reclamation, yon an Environmental Assess- have been extirpated because of Forest Service and The Nature ment (EA) was prepared. large populations of predatory Conservancy stocked loach Endangered Species Act nonnative fish that reside in the minnow, spikedace, desert compliance is also completed at mainstem habitats connecting pupfish (Cyprinodon this time. After the NEPA them (Minckley 1999). As a macularius) and Gila topmin- process is completed, the engi- result, the mainstem rivers have now (Poeciliopsis occidentalis) neers prepare the construction become populations sinks for into three perennial streams of specifications. These “specs” native fish. For these reasons, the Muleshoe Ranch Coopera- provide the contractor with fish biologists have recom- tive Management Area includ- construction plans to build the mended concentrating restora- ing Hot Springs Canyon. The barrier as well as detail for all tion efforts on streams which objective of the stocking was to facets of the construction contain large assemblages of assist in the recovery of these including access, staging area location, limits of the construction zone and sensitive environmental areas. The Hot Springs Canyon fish barrier was constructed on land under the jurisdiction of the Safford District of the BLM. Reclamation and BLM cooperated on preparation of the EA and both agencies issued Findings of No Signifi- cant Impact (FONSI) on February 12, 2009. Fish barrier construction was delayed until the spring of 2010 due to an appeal of BLM’s decision on behalf of the Cattle Growers Association. The appeal was later dismissed. A contract was

Preconstruction view of fish barrier location. The Arizo na Rip arian Co unc il 4 2012 Vol. 24 No . 1

Laying down plywood from the end of the road to the streambed to avoid leaving tracks. awarded to BairCo Construc- equipment was flown into the especially concerned that tion from Lovell, Wyoming. barrier site except the impacts to the canyon habitat excavator. The 9-ft tall, 8-ft were minimized, resulting in The Hot Springs Canyon wide piece of equipment would additional coordination and fish barrier is located in an Area have required a Sky Crane to project modifications to address of Critical Environmental Con- lift. That expense resulted in the their concerns. cern, commonly referred to as decision to “walk” the excava- The Contractor set up an ACEC. Due to the remote- tor up the canyon and necessi- operations at the staging area ness of the location and sensi- tated permission to cross pri- located at a private airstrip tivity of the canyon habitat, all vate land. The landowners were about 4.5 miles from barrier site. It took 4 hours for the excavator to traverse the 4.5 miles while I, Reclamation's contract inspector and wildlife biologist, scouted the route in advance. Plywood was laid down from the end of the road to the streambed to avoid leaving tracks. The first 1,100 ft of tracks in the streambed were raked to obscure passage of the excavator through the wash at the landowner's request. Few obstacles were encoun- tered along the wider portions of Hot Springs Canyon. Prog- ress was slower once the canyon narrowed, but the con- Rock slide that blocked upstream access of excavator. The Arizo na Rip arian Co unc il 5 2012 Vol. 24 No . 1 tractor (Devin Bair) was able to maneuver the excavator up the canyon with little evidence of his passage. A rock slide which blocked the stream channel was discovered just weeks before construction was to start. This necessitated taking the excavator out of the channel and across a large mesquite bench. The contractor was able to maneuver across the site without cutting any major mesquite branches a testament to his expertise. Barrier construction was initiated by diverting the stream around the construction site and Bringing in construction supplies via helicopter. installing dewatering wells. These wells keep the construction area dry but must be moni- toring continually. Devin hiked the 0.25 mile up the canyon to the barrier site from the camp- site at 2:00 A.M. every morning to check on the motors running the pumps. Next, the excavation started, rock anchors which tie the barrier into the bedrock abutments were drilled and set. For this barrier which is rela- tively small (24 ft wide and 5 ft tall) the anchors were drilled 4 ft into the rock abutments. The Contractor set forms and installed the reinforcement steel Reinforcement steel installation. for the upstream and downstream scour walls. Scour walls The concrete was batched District (CAWCD) personnel extended approximately 16 ft at the airstrip and then flown will occasionally need to access vertically into the streambed to into the site in a bucket which the barrier in the future. preclude flood flows from holds 3/4 of a yard. The apron CAWCD will be responsible undercutting the structure and took 14 yards of concrete for long-term maintenance of compromising its stability. Fish requiring approximately 19 trips the structure. barriers also include an via helicopter. The entire “apron,” which is the flat con- project took 40 cubic yards of LITERATURE CITED crete structure immediately concrete and approximately 80 Desert Fishes Team. 2004. downstream of the barrier wall. trips, not counting mobilization Status of Unlisted Native This structure prevents devel- and demobilization. Fishes of the Gila River opment of a plunge pool which Actual barrier construction Basin, with Recommendat- potentially provides a suitable took a little over 3 weeks; the ions for Management. environment for non-native fish Contractor was onsite for 28 Desert Fishes Team Report to congregate below the barrier. days. Reclamation and Central Number 2. Arizona Water Conservation The Arizo na Rip arian Co unc il 6 2012 Vol. 24 No . 1

Completed fish barrier.

FWS (U.S. Fish and Wildlife the Gila River Basin Minckley, W. L., and J. N. Service). 2001. Revised (excluding the Santa Cruz Rinne. 1991. Native Fishes Biological Opinion on River subbasin). April 17, of Arid Lands: A Dwindling Transportation and Deliv- 2001. Phoenix, AZ. Resource of the Desert ery of Central Arizona Miller, R. R. 1961. Man and the Southwest. USDA For. Serv. Project Water to the Gila changing fish fauna of the Gen. Tech. Rpt. RM-206. River Basin (Hassayampa, American Southwest. Pap. Moyle, P. B., H. W. Li, and B. Agua Fria, Salt, Verde, San Michigan Academy of A. Barton. 1986. The Frank- Pedro, Middle and Upper Science, Arts, and Letters enstein effect: Impact of Gila Rivers, and Associated 46:365-404. introduced fishes on native Tributaries) in Arizona and Minckley, W. L. 1999. Ecolog- fishes in North America. New Mexico and its Poten- ical review and management Pages 415-426 in R.H. tial to Introduce and Spread recommendations for recov- Stroud, ed., Fish Culture in Nonnative Aquatic Species. ery of the endangered Gila Fisheries Management. With April 2001 back- topminnow. Great Basin American Fisheries Society, ground information on the Naturalist 59:230-244. Bethesda, MD. Central Arizona Project and nonnative aquatic species in

MEET OUR NEW ARC TREASURER John Hathaway has been a member of the Arizona Riparian Council since 2011, though he has long been associated with the Council's mission as former Statewide Watershed Coordinator for the Arizona Department of Environmental Quality (ADEQ), where he formed many of his working relationships with Council membership, and his current work as Watercourse Planning Manager for the Flood Control District of Maricopa County. He earned a B.S. (CE) from Union College in Schenectady, NY, and an M.S.C.E. at San Diego State University, specializing in surface water hydrology and river mechanics. Later studies include groundwater/surface water interaction at the University of Montana Flathead Lake Biological Research Station. He is a licensed civil engineer in California, Nevada, and Arizona and received the USEPA Stratospheric Ozone Protection Award in 1994 in recognition of his work at ADEQ. The Arizo na Rip arian Co unc il 7 2012 Vol. 24 No . 1

LEGAL ISSUES OF CONCERN By Richard Campbell

The Latest Piece in the Endangered Species Act “Puzzle”: Did the US Fish and Wildlife Service Adequately Take into Consideration the “Lost Historical Range” of the Flat-Tailed Horned Lizard in its 2011 Withdrawal of the Proposed Rule to List the Lizard as Threatened?

Editor’s Note: Rich is an Adjunct Professor of Law, Golden Gate University School of Law, San Francisco and Attorney for the U.S. Environmental Protection Agency, Region 9. The opinion expressed in this article are the author’s only and do not represent those of the U.S. Environmental Protection Agency or the Golden Gate University School of Law.

he latest chapter in the long-running dispute Tabout the listing of the Flat-Tailed Horned Lizard (Phrynosoma mcallii) as a threatened species under the Endangered Species Act (ESA) occurred on March 15, 2011, when the U.S. Fish and Wild- life Service (Service) withdrew Flat-Tailed Horned Lizard (Phrynosoma mcallii). its original Clinton-era pro- posal to list the Lizard as a torical range” of the species (as northernmost Sonoran Desert threatened species under the opposed to its current range) of Mexico (62 Fed. Reg. Act. See 58 Federal Register constitutes a significant portion 37852, July 15, 1997). Forty- 62624 (November 29, 1993); of the range of that species. two percent of lizard habitat 76 Fed. Reg. 14257 (March 15, The Service's consideration of occurs on private land (58 Fed. 2011). The decision by the the Lizard's lost historical Reg. 62625). The balance of Service to withdraw its pro- range in its 2011 decision not lizard habitat on public land is posed listing was made in to list it as threatened under the managed by the Bureau of response to the Ninth Circuit's Act is discussed below. Land Management (BLM) (58 decision in Tucson Herpetolo- Fed. Reg. 62628). gical Society v. Salazar, 566 BACKGROUND F.3d 870 (9th Cir. 2009). In Flat-Tailed Horned Lizard Proposed Listing Decision that case, the Court agreed with On November 29, 1993, the the Society that when the Ser- The Flat-Tailed Horned Lizard is on average 3 inches Service proposed to list the vice determines whether a Lizard as a threatened species species is endangered or long and has managed to adapt to the Sonoran Desert in (58 Fed. Reg. 62624). Habitat threatened throughout a signifi- loss caused by urban develop- cant portion of its range, the Arizona (including the Gila and Tinajas Atlas Mountains in ment, conversion of desert Service must take into consid- lands for agriculture, off- eration whether the “lost his- Yuma County), the Coachella Valley of California, and in the highway vehicle usage, and The Arizo na Rip arian Co unc il 8 2012 Vol. 24 No . 1 military activities (e.g., Gold- Arizona Game and Fish) Congress added the “signifi- water Bombing Range), had entered into a Conser- cant portion of its range” lan- coupled with inadequate regu- vation Agreement and guage to the ESA, at 16 U.S.C. latory mechanisms to stem this agreed to implement a § 1532(6), to allow the Service habitat loss on at least public Management Strategy to to take a flexible approach to lands managed by BLM, were protect Lizard habitat; wildlife management, i.e., one cited as reasons for the pro- 2. A significant portion of that would allow the Service to posed listing (58 Fed. Reg. Lizard habitat was no list a species that is threatened 62626). The Service noted that longer threatened by geo- in a “significant portion” of its fragmentation creates isolated thermal and oil and gas range even if that same species subpopulations that, because of development and pesticide is thriving in other geographic their reduced size, have an spraying as it had been in areas (Defenders of Wildlife v. increased probability of extinc- 1993; and Norton, 258 F.3d 1141 [9th tion (58 Fed. Reg. 62626-27 3. Lizard survey methodology Cir. 2001]). The Ninth Circuit (Nov. 29, 1993). was too uncertain to con- then noted that the Service’s In 1996, the Service esti- clusively demonstrate a 1997 withdrawal of its listing mated that man-made factors downward trend in popula- decision presented the court were responsible for the des- tions (62 Fed. Reg. 37859). with an opportunity to truction of 1,103,201 acres of In essence, the Service found “puzzl[e] out the meaning” of the Lizard’s estimated that the Lizard's current range what Congress meant when it 4,875,624-acre historic range on public land was sufficient to told the Service to take into (71 Fed. Reg. 36745, 36749-51 prevent listing even though it consideration “a significant Jun 28, 2006). In September was extirpated from a large portion” of a species' range 1996, a Service biologist percentage of its historical when making listing decision maintained listing was the range and faced continuing (Defenders of Wildlife v. appropriate action to take: threats on private land. Defen- Norton, 258 F.3d 1141 [9th Nothing has really ders of Wildlife (DOW) chal- Cir. 2001]). changed on the ground; lenged the 1997 withdrawal in In puzzling out the meaning and in some ways, the federal district court (in south- of “significant portion of its status of the lizard has ern California), but the district range,” the Ninth Circuit first continued to deterior- court upheld the Service's rejected the Service’s argument ate. If forced to publish decision. that it could rely on only an a final rule at this time, examination of the Lizard’s I do not believe we 2001 Ninth Circuit Decision current range on public land could make a case that DOW appealed the district (Defenders of Wildlife v. threats have been court decision to the Ninth Norton, 258 F.3d 1138, 1140). alleviated to the point Circuit (Defenders of Wildlife The Ninth Circuit found that that listing is no longer v. Norton, 258 F.3d 1136 [9th the Service’s distinction warranted. (As quoted Cir. 2001]). In that case, the between public and private in the Society's Initial Ninth Circuit first found that land explained much of the Brief to the Ninth due to the ambiguity of the dispute between the Service Circuit on July 3, 2000; phrase “significant portion of and DOW, and was respons- 2000 U.S. 9th Cir. its range,” the Service was ible, in large part, for the shift Briefs LEXIS 40 *8). entitled to deference in its between the Service’s initial A few months later, however, interpretation of the term, so findings that accompanied the on July 15, 1997, the Service long as the Service articulated a proposed rule and its decided it would not place the reasoned basis for its decision subsequent decision to with- Lizard on the Endangered and articulated a rational con- draw the rule. (Defenders of Species list (62 Fed. Reg. nection between the facts and Wildlife v. Norton, 258 F.3d 37852). Three reasons were the decision it made (Defenders 1140-1141). The Ninth Circuit provided: of Wildlife v. Norton, 258 F.3d concluded that the Service 1. BLM and other federal and 1141 [9th Cir. 2001]). The needed to take a more “flex- state agencies (including Ninth Circuit also found that ible” approach and look at both The Arizo na Rip arian Co unc il 9 2012 Vol. 24 No . 1 private and public lands when discretion in delin- n. 7, citing 68 Fed. Reg. considering historical range eating “a significant at 340-41). (Defenders of Wildlife v. portion of its range, Based on this and other evi- Norton, 258 F.3d 1145). since the term is not dence, the Service again The Court next rejected defined in the statute decided against listing the DOW’s assertion that a species (Defenders of Wildlife Lizard in 2003. This decision should be listed merely because v. Norton, 258 F.3d was subsequently challenged in it no longer inhabits a high per- 1143. federal district court (this time centage of its historical range. The Court granted, however, in Arizona) by the Tucson The Court explained, that if a species has lost a large Herpetological Society (and [I]t simply does not portion of its historical range, others, including DOW, Sierra make sense to assume the agency “must at least Club, and the Center for Bio- that the loss of a pre- explain [the] conclusion that logical Diversity) arguing that determined percentage the area in which the species the withdrawal did not comply of habitat or range can no longer live is not a with the Ninth Circuit’s 2001 would necessarily qual- ‘significant portion of its decision in Defenders. ify a species for listing. range’” (Defenders of Wildlife The district court agreed A species with an v. Norton, 258 F.3d 1145). The with the Tucson Herpetological exceptionally large Ninth Circuit directed the Ser- Society in a 2005 decision historical range may vice to take this into consider- where it found that the Service continue to enjoy ation in its next decision on “assumed without explanation healthy population whether to list the Lizard under that large swaths of lost habitat levels despite the loss of the Act (Defenders of Wildlife were of no significance at all” a substantial amount of v. Norton, 258 F.3d 1145). and ordered the Service to try suitable habitat. Simi- again (though the district court larly, a species with an 2003 Listing Decision found the Service’s assessment exceptionally small In the course of making its of threats to the Lizard’s cur- historical range may next listing decision, the Ser- rent range was adequate). The quickly become endan- vice solicited the opinion of Service withdrew its 2003 gered after the loss of four lizard experts: decision and restored the even a very small per- Of the four, two recom- Lizard to proposed listing centage of suitable mended listing the status while it reconsidered its habitat (Defenders of species as threatened, decision (70 Fed. Reg. 72776; Wildlife v. Norton, 258 one did not express a Dec. 7, 2005). F.3d 1143). firm opinion, and one The Ninth Circuit then con- concluded that listing 2006 Delisting Decision cluded that “a significant por- was not warranted. … After another public notice tion of its range” should be Kevin Young, the biolo- and comment period, the Ser- interpreted as follows: gist that did not favor vice again decided to withdraw [A] species can be listing, stated that a the proposed listing in 2006 extinct "throughout ... a 'significant portion of (71 Fed. Reg. 36,745; June 28, significant portion of its the [Lizard's] range' 2006). The Service noted that range" if there are has indeed been lost, the “sole purpose” of the 2006 major geographical but concluded that list- decision was to address the lost areas in which it is no ing would likely direct historical habitat issue that was longer viable but once resources away from the subject of the district was. Those areas need efforts to protect the court’s 2005 decision (71 Fed. not coincide with species on public lands, Reg. 36749). Again, the national or state polit- and toward unproduc- Society challenged this ical boundaries, tive efforts to protect decision in district court although they can. The lizard habitat on private (Tucson Herpetological Soc'y Secretary necessarily lands (566 F.3d at 875, v. Kempthorne, 2006 U.S. Dist. has a wide degree of LEXIS 70736; N.D. Ariz. The Arizo na Rip arian Co unc il 10 2012 Vol. 24 No . 1

2006). In 2007, after hearing that yesterday’s conver- tively relies on ambig- the challenge, the district court sion of suitable habitat uous studies as evi- upheld the Service’s 2006 lost to agriculture in the dence of persistence habitat analysis and listing Mexicali and Yuma (i.e., stable and viable decision: areas is not significant populations), and in After setting a temporal to the survival of turn argues that this baseline and defining today's lizards (Tucson ‘evidence’of persistence the subject area, the Herpetological Soc'y v. satisfies Defenders’ Secretary proceeded to Kempthorne, 2007 U.S. mandate and proves evaluate the signifi- Dist. LEXIS 50740 that the lizard’s lost cance of the lost histori- *27-28; N.D. Ariz. range is insignificant cal habitat. He con- 2007). for purposes of the cluded that the Coa- The Society appealed this deci- ESA. This conclusion is chella Valley area [in sion to the Ninth Circuit, first unreasonable. The California], including arguing the Service’s reasoning studies do not lead to its lost associated was inconsistent with the Ninth the conclusion that the habitat, was insigni- Circuit’s 2001 decision in lizard persists in a sub- ficant because of its Defenders because it merely stantial portion of its small size relative to the relied on pointing to some range, and therefore overall range of the areas where Lizard populations cannot support the species, the high level persisted to support a finding [Service]’s conclusion of fragmentation due to that threats to the species else- (Tucson Herpetological human development, the where were not significant. The Soc'y v. Kempthorne, lack of genetic, behav- Society argued the ESA 2007 U.S. Dist. LEXIS ioral, or ecological requires a more thorough 50740 *879; N.D. Ariz. differentiation, and the explanation. 2007). small size and impor- The Ninth Circuit again tance of the population Ninth Circuit 2009 Decision remanded the decision whether in general.… The In its 2009 Tucson Herpe- to list the Lizard back to the remaining parcels of tological Society decision, the Service for further reconsidera- lost historical habitat Ninth Circuit found, in part, tion based on better studies. In areas near Mexicali that the Service had relied on a dissent, Ninth Circuit Judge and Yuma were also limited and inconclusive Noonan made the following deemed insignificant. studies in its determination that observation that likely captured Not only has the the Lizard was persisting in its the Service's frustration at this species persisted for current range (particularly in point: nearly a century in the Mexico for which there were How many flat-tailed face of the steady habi- no studies provided), and that horned lizards are tat destruction, but the this reliance had adversely there? size of existing lizard impacted the Service’s lost No one knows the populations has not range analysis: answer to that question. declined and is not The absence of conclu- Nor does anyone know likely to decline in the sive evidence of persis- how many lizards dis- foreseeable future tence, standing alone, appeared when portions because of the loss of without persuasive evi- of their range disap- 1,103,201 acres of dence of widespread peared. It is supposed historic range, the Sec- decline, may not be that a diminution in retary found.… After enough to establish that range correlates with a surveying the ‘available the [Service] must list diminution in lizards. data concerning popu- the lizard as threatened This hypothesis is lation abundance, or endangered … But plausible. It has not trends, and threats,’ the this is a different case. been shown to be prob- Secretary concluded The [Service] affirma- able. Yet the case turns The Arizo na Rip arian Co unc il 11 2012 Vol. 24 No . 1

on what measures are is, Guess again (Tucson be less substantial than origin- necessary to keep this Herpetological Soc'y v. ally thought.” The Service also unknown population in Kempthorne, 2007 U.S. found that implementation of existence. The court Dist. LEXIS 50740 the Interagency Conservation concludes that the *882-883; N.D. Ariz. Agreement and associated [Service] erred in 2007). Rangewide Management finding that the lizard Strategy was reducing threats has not lost a signifi- March 15, 2011 Withdrawal in the United States and was cant portions of its of Proposed Rule To List benefitting the species through- range. The old method Lizard as Threatened out its current range. of counting lizards is Therefore, we conclude out. A new method has In its March 15, 2011 decision, the Service, as directed by that none of the existing not been tried very or potential threats are the Ninth Court, addressed the much. It's anybody's likely to cause the lost historical range issue guess whether the [Lizard] as an entire again. The Service determined lizards are multiplying species …to be in dan- the Lizard’s lost historical or declining. In a ger of extinction or range did not represent a signi- guessing contest one likely to become so ficant portion of the Lizard’s might defer to the within the foreseeable range for four reasons: government umpire. future throughout all or The court, however, 1. Historically lost habitat was a significant portion of finds the [Service's] lost decades ago and, des- its range (76 Fed. Reg. conclusion impacted by pite the amount of time that 14267-8). over-reliance on frag- has since transpired, the Whether the Service’s analysis menting evidence of the species has not experienced is legally adequate remains to lizard's persistence; so a continuing range contrac- be seen, and may be subject to the court decides to give tion due to the past loss of further legal challenge. What is the [Service] another habitat. clear is that as urbanization crack at the problem. 2. Historically lost habitat continues apace in Arizona, If the [Service] does “did not provide any spec- and in northern Mexico’s Baja not know what the ial or unique features or region, the requirement that the lizard population was to meet any life history needs Service take into adequate con- begin with, or what it of the [L]izards that made sideration the lost historical was in 1993, or what it those areas any more range of species that reside in is now in May 2009, significant than any other Arizona and which are pro- how will [it] know if it habitat.” posed for listing under the Act is increasing, staying 3. Historically lost range was will take on greater signifi- the same, or declining? not continuous and con- cance. A style of judging, tained natural barriers that It is also noteworthy that familiar to readers of separated relevant Lizard the Ninth Circuit’s 2009 the old English reports, population segments. Tucson Herpetological Society characterizes the judge 4. The Lizard populations decision was very recently as dubitante. That is most in jeopardy do not followed by the Ninth Circuit probably the most separately contribute sub- in its November 22, 2011, deci- accurate term for me, stantially to the resiliency, sion to remand back to the Ser- which leads me to con- redundancy, or repre- vice its decision to delist the cur in the majority sentation of the entire Grizzly Bear in the Yellow- opinion insofar as it species (76 Fed. Reg. stone region of the United rejects the contentions 14258). States. In that case, the Ninth of the Tucson Herpeto- The Service then found that Circuit found the Service did logical Society and to threats to the Lizard’s current not adequately consider evi- dissent from the remand range (including that in Mex- dence that brought into ques- whose command to the ico) “have been reduced, man- tion the Service’s conclusion Secretary of the Interior aged, or eliminated, or found to The Arizo na Rip arian Co unc il 12 2012 Vol. 24 No . 1 that the distinct population of made must be backed by firm cant portion of its range” in the Grizzlies in the Yellowstone data. As the following quote ESA and provide consistency region was stable: from the Tucson Herpetolog- for how it should be applied, The Yellowstone grizzly ical Society case makes clear aiding the agencies in making has been the focus of a certain assumptions no longer decisions on whether to add or laudable, decades-long apply: remove species from the feder- cooperative research There seems to be a al list of threatened and endan- effort-one that we hope tacit assumption that if gered wildlife and plants. The continues. It may be grizzlies survive in phrase is not defined in the that scientists will com- Canada and Alaska, ESA, but appears in the statu- pile data demonstrating that is good enough. It tory definitions of “endangered grizzly population is not good enough for species” and “threatened stability in the face of me …. Relegating species” in the ESA. whitebark pine declines. grizzlies to Alaska is Until the policy is final, the Such information, how- about like relegating Services have an obligation to ever, simply is not in the happiness to heaven; meet statutory timeframes and record before us. The one may never get make determinations in lack of any data show- there. – Aldo Leopold, response to petitions to list, ing a population decline A Sand County Alma- reclassify, and delist species. due to whitebark pine nac (1966:277) (Quoted During this interim period, The loss is not enough by the Ninth Circuit Services will consider the (Greater Yellowstone Court of Appeals in interpretations and principles in Coalition v. Servheen, Defenders of Wildlife v. this proposed policy as non- 665 F.3d 1015, 1030 Norton, 258 F.3d 1136, binding guidance in making (9th Cir. 2011), quoting [9th Cir. 2001]). individual listing determina- Tucson Herpetological tions. As nonbinding guidance, Soc'y, 566 F.3d at 879 the Services will apply these (“If the science on interpretations and principles population ... trends is ARC UPDATE TO LEGAL only as the circumstances undeveloped and warrant, and the agencies will unclear, the Secretary ISSUE OF CONCERN independently explain and cannot reasonably infer justify any decision made in that the absence of n part, as a result of the flat-tailed horned lizard this interim period in light of evidence of population the circumstances of the decline equates to evi- Ilisting decision and species under consideration. dence of persistence.”). resulting litigation, the US Fish and Wildlife Service and The draft policy can be viewed The Ninth Circuit’s 2011 at http://www.regulations.gov, decision is notable because its NOAA's National Marine Fisheries Service (Services), Docket No. effect is, in general, to delay [FWS-R9-ES-2011-0031]. the removal of ESA protections the two federal agencies for the Grizzly in the lower 48 responsible for administering states. the Endangered Species Act In conclusion, neither the (ESA), proposed a new federal courts nor the Service have policy that will help clarify been able to provide a defini- which species or populations of tive answer as to what amount species are eligible for protec- of “lost historical range” is tion under the ESA and will “significant” enough to warrant provide for earlier and more a listing under the ESA. But the effective opportunities to con- Ninth Court decisions regard- serve declining species. See 76 ing the Lizard in 2009 and the Fed. Reg. 76987 (December 9, Grizzly Bear in 2011 make 2011). clear that whatever decision is The proposed policy will define the key phrase “signifi- The Arizo na Rip arian Co unc il 13 2012 Vol. 24 No . 1

NOTEWORTHY PUBLICATIONS Kelly Mott Lacroix, Graduate Research Associate, Water Resources Research Center, University of Arizona

Katz, G. L., M. W. Denslow, consistently wet conditions at incorporate water needs of the and J. C. Stromberg. perennial sites and maintain the environment in the future. 2012. The Goldilocks processes that cause natural effect: Intermittent fluctuations in conditions at Poff, B., K. A. Koestner, D. streams sustain more non-perennial sites. G. Neary, and V. plant species than those Henderson. 2011. Threats with perennial or ephem- Megdal, S., J. Nadeau, and T. to riparian ecosystems in eral flow. Freshwater Tom. 2011. The forgotten western North America: Biology 57:467-480. sector: Arizona water law An analysis of existing and the environment. literature. Journal of the In arid regions, the majority Arizona Journal of American Water Resources of our stream miles consist of Environmental Law and Association intermittent and ephemeral Policy 1(2):244-291. 47(6):1241–1254. reaches. In this study the authors examine three inter- Although Arizona is Riparian ecosystems pro- rupted perennial rivers, i.e., renowned for its natural envir- vide a large portion of essential rivers with perennial, inter- onment, the water needs of that habitat in a very small area for mittent and ephemeral reaches, environment have been fre- flora and fauna in the West. To to determine how the differ- quently overlooked when we determine the major threats to ences in hydrology influence plan for and regulate water. In riparian ecosystems in western spatial and temporal patterns of this article the authors examine North America over the past species richness and species federal and state law as well as seven decades, the authors composition. In their study of state policy to determine the review 453 journal articles, three Arizona streams, the San extent to which environmental reports, books, and book Pedro River, Hassayampa water needs are, or are not, chapters. They identified 22 River and Cienega Creek, they recognized in Arizona. different threats and deter- find that patterns of species Through a review of laws such mined that the four primary richness varied between single- as the Clean Water Act, Endan- threats to riparian ecosystems year and multi-year time gered Species Act, Instream are grazing, dams, land use frames with the highest single Flow Rights and the 1980 change and invasive species. year richness at perennial sites Groundwater Management Act, Although grazing has been and the highest long-term rich- the authors determine that the noted as the primary threat ness at intermittent sites. The environment is not adequately since the 1980s, its influence authors also find that, on two of included within our current has diminished in the past the three rivers, ephemeral sites legal framework and in fact decade. In more recent years had the highest inter-annual many disincentives exist for the most noted threats riparian compositional variance and providing for environmental ecosystems in western North perennial streams had the low- water needs. They present a America face are invasive est, and that compositional rationale for why Arizona can species, dams and climate differences between various no longer ignore the environ- change. Interestingly, the types of hydrologic sites were ment as a water-using sector authors also found that threats dominated by species turnover and describe opportunities to riparian ecosystems are most as opposed to nestedness. within the current legal context frequently studied in Arizona, These conclusions provide evi- such as federal reserved water with 22.5% of all studies dence that to conserve riparian rights and voluntary trans- reviewed coming from this diversity in desert ecosystems actions that could be used to state. it is necessary to both protect The Arizo na Rip arian Co unc il 14 2012 Vol. 24 No . 1

Reynolds, L.V., and D. J. JAMES STEPHAN done so. When we got to “Who Cooper. 2011. Ecosystem do you know?” suddenly 10 response to removal of RENTHAL, 1944-2012 fingers didn't seem enough. exotic riparian shrubs “Viewing the Arizona He’d smile fondly of his and a transition to upland landscape, whether by road, air, recent five-year posting in vegetation. Plant Ecology or foot, I find myself enjoying Washington, DC, where in his 212:1243-1261. a warm sensation rise within spare time Jim contributed to me whenever I recognize a part an exhibit currently at the As a consequence of land of the land I have touched.” Smithsonian Museum of use, river regulation, changes Not his words, per se, but I'm Natural History. A must see, no in climate and invasive species, sure Jim felt this way. doubt. the composition of plant com- Jim was that way. Before his February 2012 munities have changed and His landscape was very retirement, Jim told me he many streams have become much alive. As much as he would become more active in incised. In this study the loved it, it was the people in it the Arizona Riparian Council. authors used soil seed banks to whose touch gave rise to his I was going to tease him the analyze the effects of removal eternal warmth. next time I saw him about of riparian shrubs and channel After 35 years of dedication missing the meeting in incision on the dynamics of to the Bureau of Land Manage- Thatcher. All who knew him ecosystem and plant commun- ment – especially the “land” will miss him. Those who don't ities in Canyon de Chelly part – James Stephan Renthal never did. National Monument, Arizona. left us suddenly May 6, 2012. – John Hathaway Their research analyzed seed Born April 4, 1944 in bank composition and differ- Chicago, Illinois, to Sid and ences in soil nitrogen, vegeta- Helen Renthal, Jim was a tion, groundwater levels, and proud alumnus of the Univer- seed rain between control, sity of Chicago. His first cut-stump and whole-plant encounter with Arizona came removal areas. Neither shrub during a 1953 family road trip. removal method increased His Dad, Sid, wanted to get a groundwater levels, but both feel for his job as the new methods decreased exotic plant writer for the 1950's TV cover and seed inputs. After Western, “Sky King!” two years there was an increase The rest is a history of a in native plant species, how- life-long love affair with the ever, because of the disconnect West, Barbara his dearest wife from the floodplain, native of 36 years, son David, and his species were predominantly delightful granddaughter, with native grasses. whom he would play make- believe games of “butterfly” and “airplane” for hours. After moving west, Jim earned a Master's Degree in Soil Science at the University of Arizona. Working in BLM field offices in Arizona, Idaho, and Oregon, he continued his love of the land – read: its precious water. Conversing with Jim was a gift. Sadly, I only got to know him in the past 2 years. Sadder still would be never to have The Arizo na Rip arian Co unc il 15 2012 Vol. 24 No . 1

The Arizona Riparian Council (ARC) was formed in 1986 as a result of the increasing concern over the alarming rate of loss of Arizona’s riparian areas. It is estimated that The Arizona Riparian Council <10% of Arizona’s original riparian acreage remains in its natural form. These habitats are considered Arizona’s most rare natural Officers communities. Kris Randall, President.(602) 242-0210 X250 The purpose of the Council is to provide for [email protected] the exchange of information on the status, Steve Plath, Vice President...... protection, and management of riparian systems [email protected] in Arizona. The term “riparian” is intended to Cindy Zisner, Secretary. . . . (480) 965-2490 include vegetation, habitats, or ecosystems that are associated with bodies of water (streams or [email protected] lakes) or are dependent on the existence of John Hathaway, Treasurer. . (602) 506-0503 perennial or ephemeral surface or subsurface [email protected] water drainage. Any person or organization interested in the management, protection, or At-Large Board Members scientific study of riparian systems, or some Alicyn Gitlin. . [email protected] related phase of riparian conservation is eligible Collis Lovely...... (928) 310-6665 for membership. Annual dues (January- December) are $20. Additional contributions are [email protected] gratefully accepted. Patty Cascio Maynard. . . . . (602) 568-3853 This newsletter is published three times a [email protected] year to communicate current events, issues, problems, and progress involving riparian Committee Chairs systems, to inform members about Council Activities...... Vacant business, and to provide a forum for you to express your views or news about riparian topics. The next issue will be mailed in Conservation September, the deadline for submittal of articles Tim Flood...... [email protected] is August 15, 2012. Please call or write with Bill Werner...... (602) 771-8412 suggestions, publications for review, announce- [email protected] ments, articles, and/or illustrations. Education Cindy Zisner...... (480) 965-2490 Cindy D. Zisner Arizona Riparian Council Global Institute of Sustainability Policy Arizona State University Kris Randall...... (602) 242-0210 X250 PO Box 875402 [email protected] Tempe AZ 85287-5402 Tom Hildebrandt...... [email protected] (480) 965-2490; FAX (480) 965-8087 [email protected]

web site: http://azriparian.org The Arizo na Rip arian Co unc il 16 2012 Vol. 24 No . 1

BT5 1005 Arizona Riparian Council Global Institute of Sustainability Arizona State University PO Box 875402 Tempe, AZ 85287-5402

CALENDAR

Arizona Riparian Council Board Meetings. The Board of Directors holds monthly meetings the third Wednesday of each month and all members are encouraged to participate. Please contact Cindy Zisner at (480) 965-2490 or [email protected] for time and location.

Save your October weekends for the fall meeting and don’t forget next spring!

Please remember to renew your dues – if it says PLEASE RENEW after your name above you need to send them in.