Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Spikedace (Meda fulgida) and the Loach Minnow (Tiaroga cobitis), 13356-13422 [07-1218]
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Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations
information on the spikedace or the
loach minnow, refer to the previous
final critical habitat designation for the
spikedace and loach minnow published
in the Federal Register on April 25,
2000 (65 FR 24328).
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018–AU33
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Spikedace (Meda
fulgida) and the Loach Minnow
(Tiaroga cobitis)
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
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AGENCY:
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), are
designating critical habitat for the
spikedace (Meda fulgida) and loach
minnow (Tiaroga cobitis) pursuant to
the Endangered Species Act of 1973, as
amended (Act). In total, approximately
522.2 river miles (mi) (840.4 kilometers
(km)) are designated as critical habitat.
Critical habitat is located in Catron,
Grant, and Hidalgo Counties in New
Mexico, and Apache, Graham, Greenlee,
Pinal, and Yavapai Counties in Arizona.
DATES: This final rule is effective April
20, 2007.
ADDRESSES: Comments and materials
received, as well as supporting
documentation used in the preparation
of this final rule, are available for public
inspection, by appointment, during
normal business hours at the U.S. Fish
and Wildlife Service, Arizona Ecological
Services Field Office, 2321 West Royal
Palm Road, Suite 103, Phoenix, AZ
85021–4951. The final rule, economic
analysis, environmental assessment, and
more-detailed color maps of the critical
habitat designation are also available via
the Internet at https://www.fws.gov/
arizonaes/. Geographic Information
System (GIS) files of the critical habitat
maps are also available via the Internet
at https://criticalhabitat.fws.gov/.
FOR FURTHER INFORMATION CONTACT:
Steven L. Spangle, Field Supervisor,
U.S. Fish and Wildlife Service, Arizona
Ecological Services Field Office, 2321
West Royal Palm Road, Suite 103,
Phoenix, AZ 85021–4951 (telephone
602–242–0210; facsimile 602–242–
2513). Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800–877–8339, 7
days a week and 24 hours a day.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those
topics directly relevant to designation of
critical habitat in this rule. For more
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Spikedace
Description and taxonomy. The
spikedace is a member of the minnow
family Cyprinidae. The spikedace was
first collected in 1851 from the Rio San
Pedro in Arizona and was described
from those specimens in 1856 by Girard.
It is the only species in the genus Meda.
The spikedace is a small, slim fish less
than 3 inches (in) (75 millimeters (mm)
in length (Sublette et al. 1990, p. 136).
It is characterized by an olive gray to
brownish back and silvery sides with
vertically elongated black specks.
Spikedace have spines in the dorsal fin
(Minckley 1973, pp. 82, 112, 115).
Distribution and Habitat. Spikedace
are found in moderate to large perennial
streams, where they inhabit shallow
riffles (shallow areas in a streambed
causing ripples) with sand, gravel, and
rubble substrates (Barber and Minckley
1966, p. 321; Propst et al. 1986, p. 12;
Rinne and Kroeger 1988, p. 1).
Recurrent flooding and a natural
hydrograph (physical conditions,
boundaries, flow, and related
characteristics of water) are very
important in maintaining the habitat of
spikedace and in helping the species
maintain a competitive edge over
invading nonnative aquatic species
(Minckley and Meffe 1987, p. 103–104;
Propst et al. 1986, pp. 3, 81, 85).
The spikedace was once common
throughout much of the Gila River
basin, including the mainstem Gila
River upstream of Phoenix, and the
Verde, Agua Fria, Salt, San Pedro, and
San Francisco subbasins. It occupies
suitable habitat in both the mainstem
reaches and moderate-gradient
tributaries, up to approximately 6,500
feet (ft) (2,000 meters (m)) in elevation
(Chamberlain 1904, p. 8; Cope and
Yarrow 1875, pp. 641–642; Gilbert and
Scofield 1898, pp. 487, 497; Miller 1960
and Hubbs, pp. 32–33).
Habitat destruction and competition
and predation by nonnative aquatic
species have severely reduced its range
and abundance. It is now restricted to
portions of the upper Gila River and the
East, West, and Middle Forks of the Gila
River in New Mexico and the middle
Gila River, lower San Pedro River,
Aravaipa Creek, Eagle Creek, and the
Verde River in Arizona (Anderson 1978,
pp. 14–17, 61–62; Bestgen 1985, p. 6;
Jakle 1992, p. 6; Marsh et al. 1989, pp.
2–3; Paroz et al. 2006, pp. 26, 37–41,
62–67; Propst et al. 1986, p. 1; Sublette
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et al. 1990, pp. 138–139), and is only
commonly found in surveys of Aravaipa
Creek and some parts of the upper Gila
River in New Mexico (Arizona Game
and Fish Department (AGFD) 2004;
Arizona State University 2002; Propst
2002, pp. 4, 16–33, Appendix II—Table
2; Propst et al. 1986, p. iv; Rienthal
2006, p. 2). Based on the available maps
and survey information, we estimate its
present range to be approximately 10 to
15 percent or less of its historical range,
and the status of the species within
occupied areas ranges from common to
very rare. Recent data indicate the
population in New Mexico has declined
in recent years (Paroz et al. 2006, p. 56).
Table 1 summarizes critical habitat
areas designated as critical habitat in
this final rule for spikedace, as well as
potential threats and records of
spikedace within those areas.
Loach Minnow
Description and taxonomy. The loach
minnow is a member of the minnow
family Cyprinidae. The loach minnow
was first collected in 1851 from the Rio
San Pedro in Arizona and was described
from those specimens in 1865 by Girard
(pp. 191–192). The loach minnow is a
small, slender, elongated fish less than
3 in (80 mm) in length. It is olive
colored overall, with black mottling or
splotches. Breeding males have vivid
red to red-orange markings on the bases
of fins and adjacent body, on the mouth
and lower head, and often on the
abdomen (Minckley 1973, p. 134;
Sublette et al. 1990, p. 186).
Distribution and Habitat. Loach
minnow are found in small to large
perennial streams, and use shallow,
turbulent riffles with primarily cobble
on the bottom in areas of swift currents
(Minckley 1973, p. 134; Propst and
Bestgen 1991, p. 32; Propst et al. 1988,
pp. 36–43; Rinne 1989, p. 111). The
loach minnow uses the space between,
and in the lee (sheltered) side of rocks
for resting and spawning. It is rare or
absent from habitats where fine
sediments fill the interstitial spaces
(small, narrow spaces between rocks or
other substrate) (Propst and Bestgen
1991; p. 33). Recurrent flooding and a
natural hydrograph are very important
in maintaining the habitat of loach
minnow and in helping the species
maintain a competitive edge over
invading nonnative aquatic species
(Propst and Bestgen 1991, pp. 33, 37).
The loach minnow was once locally
common throughout much of the Gila
River basin, including the mainstem
Gila River upstream of Phoenix, and the
Verde, Salt, San Pedro, and San
Francisco subbasins (Minckley 1973, p.
133–134; Lee et al. 1980, p. 365). It
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occupies suitable habitat in both the
mainstem reaches and moderategradient tributaries, up to about 8,200 ft
(2,500 m) in elevation. Habitat
destruction and competition and
predation by nonnative aquatic species
have severely reduced its range and
abundance (Carlson and Muth 1989, pp.
232–233; Fuller et al. 1990, p. 1;
Lachner et al. 1970, p. 22; Miller 1961,
pp. 365, 377, 397–398; Minckley 1973,
p. 135; Moyle 1986, pp. 28–34; Moyle et
al. 1986, pp. 416–423; Ono et al. 1983,
p. 90; Propst et al. 1988, p. 2, 64). It is
now restricted to portions of the upper
Gila, the San Francisco, and Tularosa
rivers in New Mexico; and the Blue
River and its tributaries Dry Blue,
Campbell Blue, Little Blue, Pace, and
Frieborn creeks; Aravaipa Creek and its
tributaries Turkey and Deer creeks;
Eagle Creek; East Fork White River; and
the Black River and the North Fork East
Fork Black River in Arizona (Bagley et
al. 1998, pp. 3–6, 8; Bagley et al. 1995,
multiple survey records; Barber and
Minckley 1966, p. 321; Britt 1982, pp.
6–7; Leon 1989, p. 1; Marsh et al. 1989,
pp. 7–8; Paroz et al. 2006, pp. 26, 37–
41, 62–67; Propst et al. 1988, pp. 12–17;
Propst and Bestgen 1991, p. 29; Propst
1996, multiple survey records; Springer
1995, pp. 6–7, 9–10), and is only
common in Aravaipa Creek and the Blue
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River in Arizona, and limited portions
of the upper San Francisco River, the
upper Gila River, and Tularosa River in
New Mexico (Paroz et al. 2006, pp. 55–
60; Propst and Bestgen 1991, pp. 29, 37).
The present range of the loach minnow
is estimated at 10 percent of its
historical range (Propst et al. 1988, p.
12), and the status of the species within
occupied areas ranges from common to
very rare. Table 1 summarizes critical
habitat areas designated for loach
minnow, as well as potential threats and
records of loach minnow within those
areas.
TABLE 1.—LOCATIONS OF SPIKEDACE AND LOACH MINNOW STREAM SEGMENTS DESIGNATED AS CRITICAL HABITAT,
THREATS TO THE SPECIES, LAST YEAR OF DOCUMENTED OCCUPANCY, AND SOURCE OF OCCUPANCY INFORMATION
Spikedace and/or loach
minnow critical habitat
areas
Last year occupancy
confirmed
Threats
Critical habitat distance
in mi (km)
Source
Complex 1—Verde River
Verde River—Spikedace
Nonnative fish species,
grazing, water diversions.
1999 ................................
43.0 mi (69.2 km) ............
AGFD 2004; ASU 2002;
Brouder 2002, p. 1.
Complex 2—Black River Complex
Boneyard Creek—Loach
minnow.
East Fork Black—Loach
minnow.
North Fork East Fork
Black—Loach minnow.
Recreational pressures,
nonnative fish species,
recent fire and related
retardant application,
ash, and sediment.
Recreational pressures,
nonnative fish species,
recent fire and related
retardant application,
ash, and sediment.
Recreational pressures,
nonnative fish species,
recent fire and related
retardant application,
ash, and sediment.
1996 ................................
1.4 mi (2.3 km) ................
AGFD 2004; ASU 2002.
2004 ................................
12.2 mi (19.7 km) ............
AGFD 2004; ASU 2002.
2004 ................................
4.4 mi (7.1 km) ................
AGFD 2004; ASU 2002;
Bagley et al. 1995, multiple
surveys; Lopez 2000, p. 1.
Complex 3—Middle Gila/Lower San Pedro/Aravaipa Creek
Aravaipa Creek—
Spikedace and Loach
minnow.
Deer Creek—Loach minnow.
Turkey Creek—Loach
minnow.
Gila River—Ashurst-Hayden Dam to San Pedro
Spikedace .................
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San Pedro River (lower)—
Spikedace.
Fire, some recreational
pressure, nonnative
pressures, water diversion, contaminants.
Fire, some recreational
pressure, low nonnative
pressures.
Fire, some recreational
pressure, nonnative
pressures.
2005 ................................
28.1 mi (45.3 km) ............
ADEQ 2006; AGFD 2004; ASU
2002; Rienthal 2006, pp. 2–
3.
2005 ................................
2.3 mi (3.6 km) ................
AGFD 2004; ASU 2002;
Rienthal 2006, p. 2.
2005 ................................
2.7 mi (4.3 km) ................
AGFD 2004; ASU 2002;
Rienthal 2006, p. 2.
Water diversions, grazing,
nonnative fish species.
Water diversions, grazing,
nonnative fish species,
mining.
1991 ................................
39.0 mi (62.8 km) ............
1966 (directly connected
to Aravaipa Creek, with
records from 2005).
13.4 mi (21.5 km) ............
AGFD 2004; ASU 2002; Jakle
1992, p. 6.
AGFD 2004; ASU 2002.
Complex 4—San Francisco and Blue Rivers
Eagle Creek—Loach minnow.
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Grazing, nonnative fish
species, water diversions, mining.
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17.7 mi (28.5 km) ............
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AGFD 2004; ASU 2002;
Bagley and Marsh 1997, pp.
1–2; Knowles 1994, pp. 1–2,
5; Marsh et al. 2003, pp.
666–668.
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TABLE 1.—LOCATIONS OF SPIKEDACE AND LOACH MINNOW STREAM SEGMENTS DESIGNATED AS CRITICAL HABITAT,
THREATS TO THE SPECIES, LAST YEAR OF DOCUMENTED OCCUPANCY, AND SOURCE OF OCCUPANCY INFORMATION—
Continued
Spikedace and/or loach
minnow critical habitat
areas
San Francisco River—
Loach minnow.
Tularosa River—Loach
minnow.
Frieborn Creek—Loach
minnow.
Negrito Creek—Loach
minnow.
Whitewater Creek—Loach
minnow.
Blue River—Loach minnow.
Campbell Blue Creek—
Loach minnow.
Little Blue Creek—Loach
minnow.
Dry Blue Creek—Loach
minnow.
Pace Creek—Loach minnow.
Threats
Last year occupancy
confirmed
Critical habitat distance
in mi (km)
Source
Grazing, water diversions,
nonnative fish species,
road construction and
maintenance, channelization.
Grazing, watershed disturbances.
Dispersed livestock grazing.
Grazing, watershed disturbances.
Grazing, watershed disturbances.
2005 ................................
126.5 mi (203.5 km) ........
AGFD 2004; ASU 2002; Paroz
et al. 2006, p. 67; Propst
2002, p. 13; Propst 2005, p.
10; Propst 2006, p. 2.
2002 ................................
18.6 mi (30.0 km) ............
1998 ................................
1.1 mi (1.8 km) ................
ASU 2002; Propst 2002, p. 9;
Propst 2005, p. 6.
ASU 2002.
1998 ................................
4.2 mi (6.8 km) ................
Miller 1998, pp. 4–5.
1984 (directly connected
to the San Francisco
River, with records
from 2005).
2004 ................................
1.1 mi (1.8 km) ................
ASU 2002; Propst et al. 1988,
p.15.
51.1 mi (82.2 km) ............
AGFD 2004; ASU 2002; Carter
2005; Propst 2002, p. 4.
2004 ................................
8.1 mi (13.1 km) ..............
1981 (directly connected
to the Blue River, with
records from 2004).
2001 ................................
2.8 mi (4.5 km) ................
AGFD 2004; ASU 2002; Carter
2005.
AGFD 2004; ASU 2002.
3.0 mi (4.8 km) ................
ASU 2002; Propst 2006, p. 2.
1998 ................................
0.8 mi (1.2 km) ................
ASU 2002.
Water diversions, nonnative fish species,
livestock grazing, road
construction.
Grazing, nonnative fish
species.
Grazing, nonnative fish
species.
Grazing ............................
Grazing, nonnative fish
species.
Complex 5—Upper Gila River
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East Fork Gila River—
Spikedace and Loach
minnow
Upper Gila River—
Spikedace and Loach
minnow.
Middle Fork Gila River—
Spikedace and Loach
minnow.
West Fork Gila River—
Spikedace and Loach
minnow.
Grazing, nonnative fish
species, ash flows from
wildfires.
Recreation, roads, grazing, nonnative fish species, water diversion.
Nonnative fish species,
Grazing, ash flows from
wildfires.
Nonnative fish species,
roads, ash flows from
wildfires.
Previous Federal Actions
We previously published a final
critical habitat designation on April 25,
2000 (65 FR 24328). In New Mexico
Cattle Growers’ Association and
Coalition of Arizona/New Mexico
Counties for Stable Economic Growth v.
United States Fish and Wildlife Service,
CIV 02–0199 JB/LCS (D.N.M), the
plaintiffs challenged the April 25, 2000,
critical habitat designation for the
spikedace and loach minnow because
the economic analysis had been
prepared using the same methods which
the Tenth Circuit had held to be invalid.
The Center for Biological Diversity
joined the lawsuit as a DefendantIntervenor. The Service agreed to a
voluntary vacatur of the critical habitat
designation, except for the Tonto Creek
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2000, 1998 ......................
26.1 mi (42.0 km) ............
2005 ................................
94.9 mi (152.7 km) ..........
1995, 1998 ......................
7.7 mi (12.3 km), 11.9 mi
(19.1 km).
2005, 2002 ......................
7.7 mi (12.4 km) ..............
Complex. On August 31, 2004, the
United States District Court for the
District of New Mexico set aside the
April 25, 2000, critical habitat
designation in its entirety and remanded
it to the Service for preparation of a new
proposed and final designation. On
December 20, 2005, we published a
proposed critical habitat designation (70
FR 75546).
For more information on previous
Federal actions concerning the
spikedace and loach minnow, including
listing documents published in 1985
and 1986 (50 FR 25380, June 18, 1985;
51 FR 39468, October 28, 1986; 51 FR
23769, July 1, 1986) as well as the first
critical habitat designation in 1994 (59
FR 10898, March 8, 1994; 59 FR 10906,
March 8, 1994), refer to the critical
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ASU 2002; Propst 2002, p. 27;
Propst et al. 1998, p.14–15;
Propst 2006, pp. 2.
ASU 2002; Propst 2002, pp. 4,
31.
ASU 2002; Paroz et al. 2006,
p. 63; Propst 2002, p. 22;
Propst, 2006, p. 2.
ASU 2002; Paroz et al. 2006,
p. 64; Propst 2002, p. 18;
Propst 2006, p. 2.
habitat designation published in the
Federal Register on April 25, 2000 (65
FR 24328).
Summary of Comments and
Recommendations
We requested written comments from
the public on the proposed designation
of critical habitat for the spikedace and
loach minnow on December 20, 2005
(70 FR 75546), and in two notices to
reopen the comment period on June 6,
2006 (71 FR 32496) and October 4, 2006
(71 FR 58574). We also contacted
appropriate Federal, State, and local
agencies; scientific organizations; and
other interested parties and invited
them to comment on the proposed rule.
We requested information on the
current status, distribution, and threats
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to the spikedace and loach minnow, as
well as information on the status of
other aquatic species in the historical
range of the spikedace and loach
minnow. We requested this information
in order to make a final critical habitat
determination based on the best
available scientific and commercial
data. We also requested information on
proposed exclusions of various areas
from the final critical habitat
designation. In addition, we held public
hearings on June 13 and 20, 2006, in
Silver City, NM, and Camp Verde, AZ,
respectively, to solicit comments on the
proposed rule. We published newspaper
articles inviting public comment and
announcing these public hearings in the
Arizona Republic, Arizona Daily Star,
Camp Verde Bugle, Sierra Vista Herald,
Tucson Citizen, Verde Independent, and
White Mountain Independent in
Arizona, and the Albuquerque Journal,
Albuquerque Tribune, and Silver City
Daily Press in New Mexico.
During the first public comment
period, which opened on December 20,
2005, and closed on February 21, 2006,
we received 23 comments directly
addressing the proposed critical habitat
designation (e-mails, letters, and faxes).
Of these, we received two comments
from peer reviewers, three from Federal
agencies, five from Tribes, one from a
State agency, seven from organizations,
and five from individuals. We also
received two requests for public
hearings. During the second comment
period, which opened on June 6, 2006,
and closed on July 6, 2006, we received
39 comments. Of these latter comments,
2 were from Federal agencies, 3 from
State agencies, and 34 from
organizations or individuals. During the
third comment period, which opened on
October 4, 2006, and closed on October
16, 2006, we received 11 comment
letters. Of these comments, three were
from Federal agencies and eight from
organizations and individuals.
Of the written comments received
during the first comment period, four
supported, eight were opposed, and six
included comments or information but
did not express support for or
opposition to the proposed critical
habitat designation. Of the written
comments received during the second
comment period, nine supported, 23
were opposed, and seven included
comments or information but did not
express support for or opposition to the
proposed listing and critical habitat
designation. Written comments received
during the third comment period were
specific to the proposals to exclude
portions of various streams due to
receipt of management plans for those
streams. Of these written comments,
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two supported exclusions in Eagle Creek
and the upper Gila River, three opposed
these exclusions, four proposed
additional exclusions in other areas, and
three included comments or information
but did not express support for or
opposition to the proposed exclusions.
We also received numerous comments
on the content and soundness of the
environmental assessment and
economic analysis. For the
environmental assessment, comments
focused on the adequacy of completing
an environmental assessment rather
than an environmental impact
statement, the inadequacy of the
comment period and opportunities for
public participation, the use of the 300foot buffer for the lateral extent of the
designation, the application of the
destruction or adverse modification
language, the adequacy of the
discussion of impacts of the proposed
action to water use and water rights, the
range of alternatives covered, and the
economic information provided in the
environmental assessment.
Comments on the economic analysis
included the suggestion that we failed to
estimate benefits of the proposed
designation; the adequacy and scope of
the analysis; impacts to small business
entities, ranching and farming
communities, and water use and water
rights; the Regulatory Flexibility Act;
the Verde River and estimated costs and
benefits of including it in the final
designation; and Tribal lands and
impacts to Tribes.
Responses to comments were grouped
into three categories below. Peer review
comments are listed first, followed by
comments received from the States.
Comments received from the public are
listed last. Because staff from the New
Mexico Department of Game and Fish
(NMDGF) responded as peer reviewers,
their comments are listed in the peer
review section, while those of the AGFD
are listed under State comments.
Peer Review
In accordance with our policy
published on July 1, 1994 (59 FR
34270), we solicited expert opinions
from 13 knowledgeable individuals with
scientific expertise that included
familiarity with the species, the
geographic region in which the species
occurs, and conservation biology
principles. These individuals
represented Federal agencies, State
agencies, university researchers, or
themselves as private individuals. We
received responses from two of the peer
reviewers, one as a private individual
and the other in the capacity of an
individual who works for the New
Mexico Department of Game and Fish.
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Peer review comments focused on the
reduction in the proposed critical
habitat designation from previous
designations, the area encompassed by
critical habitat, and potential threats to
the species, including the need to
expand ‘‘nonnative fish’’ to include
‘‘nonnative aquatic species.’’
We reviewed all comments received
from the peer reviewers and the public
for substantive issues and new
information regarding critical habitat for
the spikedace and loach minnow, and
addressed them in the following
summary.
Peer Reviewer Comments
(1) Comment: The reduction in stream
miles of critical habitat proposed for
designation from that previously
designated for the spikedace and loach
minnow provides no incentive for land
and resource management agencies to
launch projects that would restore
conditions for the enhancement of
spikedace and loach minnow. All of the
major stream course and complexes, and
many of the smaller tributaries, have
potential to provide elements necessary
for the recovery of these species and
should be included in critical habitat.
Our response: The Service’s process
for designating critical habitat has
evolved since prior designations of
critical habitat for the spikedace and
loach minnow. As required by section
4(b)(1)(A) of the Act, we used the best
scientific and commercial data available
in determining areas for designation as
critical habitat.
(2) Comment: In primary constituent
element (PCE) 4, ‘‘nonnative fish’’
should be modified to include any and
all nonnative aquatic species, including
the current component of nonnative
fishes and those that may become
established in the future, as well as
crayfishes, macroinvertebrates,
parasites, and disease-causing
pathogens.
Our response: We agree and we have
changed ‘‘nonnative aquatic fishes’’ in
the final rule to ‘‘nonnative aquatic
species.’’ In addition, language has been
added addressing additional nonnatives
and their sources, as well as their
potential effects on the native fish
community.
(3) Comment: Designating critical
habitat serves positive purposes. The
prohibition against adverse modification
is a powerful tool to protect unoccupied
seasonal or migratory habitat and
unoccupied habitat for population
expansion as part of recovery. The most
effective benefit from designating
critical habitat is the impetus it provides
to agencies and people to initiate
conservation activities for the target
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species and voluntarily curtail adverse
impacts. No evidence is provided
concluding that the (1) jeopardy
standard is sufficient to protect habitat
better than a critical habitat designation,
(2) that critical habitat designation
provides no education benefits better
obtained otherwise, or (3) that
conservation can be better achieved
through implementing management
plans rather than through implementing
section 7 and other provisions of the
Act.
Our response: Designation of critical
habitat is one tool for managing listed
species habitat. In addition to the
designation of critical habitat, we have
determined that other conservation
mechanisms including the recovery
planning process, section 6 funding to
States, section 7 consultations,
management plans, Safe Harbor
agreements, and other on-the-ground
strategies contribute to species
conservation. We believe these other
conservation measures provide greater
incentives and often greater
conservation. Please see ‘‘Exclusions
under Section 4(b)(2) of the Act’’ for
additional discussion.
(4) Comment: The Service should
reclassify both species to endangered
status, as a warranted but precluded
finding was published in 1994. Both
species have experienced significant
reductions in range and abundance
since that time, and their status in the
wild continues to deteriorate.
Reclassification would recognize the
precarious status of the species and give
higher priority for recovery actions.
Our response: We agree and in the
2006 Candidate Notice of Review
(CNOR) (71 FR 53756; September 12,
2006) we resubmit our 12-month finding
where we determine that reclassification
of both the spikedace and loach minnow
is warranted but precluded by other
higher priority listing actions. The 2006
CNOR provides a detailed discussion of
why these listing actions are precluded
by other higher priority listing actions.
We note that Federal and State agencies
and other cooperators are continuing
with recovery actions for the spikedace
and loach minnow in a concerted effort
to improve the status of these two fish.
(5) Comment: No information is
presented on effects of wildfire on
habitats (PCEs) each species occupies.
Since 2000, wildfires have burned much
of the West Fork Gila River watershed,
fine sediment deposition has increased
noticeably, and abundance of both
spikedace and loach minnow have
declined substantially at a permanent
site on West Fork Gila River that is
annually sampled.
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Our response: We have added wildfire
to the threats discussion within the unit
descriptions below and within Table 1
as a threat to the West Fork Gila River.
(6) Comment: The lateral extent of the
areas proposed for critical habitat is
logical considering the dynamic nature
of streams in the Gila River basin, and
the scientific understanding of the role
flood plains play in stream course
functioning. Defining a measurable
width that is wide enough to
incorporate flood flows beyond the
bankfull width is reasonable.
Our response: We agree with the
commenter on this point.
State Comments
(7) Comment: We suggest a rewording
of the statement regarding water quality
in the PCE section for both spikedace
and loach minnow to not require low
levels of pollutants in the water. As
written, these statements could be
interpreted to mean that low levels of
pollutants are needed.
Our response: We agree with this
comment, and have revised the wording
in the discussion of PCEs in the final
rule to indicate that suitable water
quality for spikedace and loach minnow
will contain no or only minimal
pollutant levels.
(8) Comment: The Arizona
Department of Transportation requests
that the Service provide estimated
acreages of proposed critical habitat for
each habitat complex. The total mileage
figures are inconsistent and total miles
should be provided for spikedace and
loach minnow. The total mileages in
Table 3 for New Mexico and Arizona are
reversed.
Our response: Because fishes occupy
stream habitat, we have determined it is
more appropriate to quantify the
delineation in terms of stream miles
rather than total acres. All mileage
figures throughout the rule and in the
tables have been checked for
consistency and adjusted where
necessary.
General Comments Issue 1: Biological
Concerns
(9) Some commentors have noted that
we have misinterpreted or overextrapolated information from various
sources, in particular the proposed rule
did not appear to include any studies
that specifically define ranges for ‘‘fine
sediment’’ or ‘‘substrate
embeddedness’’; therefore, the phrase
‘‘low or moderate amounts’’ appears
open to subjective interpretation.
Our response: For purposes of critical
habitat designation, low to moderate
amount of substrate embeddedness
means embeddedness that does not
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preclude deposition of eggs among sand
and gravel for spikedace, or on the
undersurfaces of large rocks for loach
minnow. Please see the discussion
under ‘‘Substrates’’ for both spikedace
and loach minnow for additional
information.
(10) Comment: The statement within
the proposed rule that ‘‘Flooding, as
part of a natural hydrograph,
temporarily removes nonnative fish
species, which are not adapted to
flooding’’ is an over-generalization.
Minckley and Meffe (1987) concluded
that nonnative fishes fared poorly in
canyon reaches by noting that some
nonnative species like green sunfish and
smallmouth bass rebounded quickly
from floods because they were streamadapted. Flooding may also kill or
displace native fishes. Some native
fishes exhibit the potential to reproduce
quickly after flooding, which could
account for some of the effects reported
by Minckley and Meffe (1987).
Our response: We have adjusted the
text to better reflect Minckley and Meffe
(1987).
(11) Comment: The most thriving
populations of these fishes tend to be in
flood blasted, warm, shallow, braided
channel refugia and at places where
vehicles splashed through streams,
inside corrals (through which streams
flowed), and in river channels within
mine sites which are regularly
bulldozed. The loach minnow is
thriving on private land at a mine where
heavy trucks cross the road several
times a day, resulting in an area that is
shallow and full of sediment.
Our response: We disagree with this
conclusion. While spikedace and/or
loach minnow are sometimes found in
association with low water crossings,
and while flooding is an important
component of habitat maintenance for
these species, we are not aware of any
locations where they occur in streams
flowing through corrals or within mine
sites which are regularly bulldozed. We
currently have survey records dating
from the late 1800s to the present for
these species, as well as numerous
studies that detail the habitat
requirements for the species, all of
which indicate that they occur in
habitat different than that described by
the commenter.
(12) Comment: The Gila River is not
critical habitat for the minnows because
extreme flood waters may kill small
fish. Small streams are better suited for
small fish, because large fish will
predate on the smaller fish.
Our response: Please refer to the
discussion on ‘‘Flooding’’ below under
the PCE discussion for spikedace. As
noted in that discussion, Minckley and
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Meffe (1987, p. 99–100) studied the
differential responses of native and
nonnative fishes in seven unregulated
and three regulated streams or stream
reaches that were sampled before and
after major flooding. They noted that
fish faunas of canyon-bound reaches of
unregulated streams invariably shifted
from a mixture of native and nonnative
fish species to predominantly, and in
some cases exclusively, native forms
after large floods.
(13) Comment: One commenter notes
that many of these minnows can be seen
in the Gila River.
Our response: While spikedace and
loach minnow do occur in the Gila
River, it is important to note that the
‘‘minnows’’ seen in the Gila River may
or may not be spikedace or loach
minnow. There are approximately 235
species of fishes that are within the
minnow family, Cyprinidae, in North
America (Bond 1979, p. 170). Spikedace
and loach minnow are members of this
family. Other small-bodied, native
minnows which are more commonly
found within the Gila River include
longfin dace (Agosia chrysogaster) and
speckled dace (Rhinichthys osculus).
These fish, even as adults, can be
confused with spikedace and loach
minnow. There are several other species
which are technically minnows and
may be confused with spikedace and
loach minnow when young. These
include native roundtail chub (Gila
robusta) and nonnative common carp
(Cyrpinus carpio), goldfish (Carassius
auratus), and fathead minnow
(Pimephales promelas) (Lee et al. 1980,
pp. 140–367).
(14) Comment: Spikedace were last
seen in the Verde River in 1999. They
may already be extinct.
Our response: Because the last record
for spikedace on the Verde River was
from 1999, this area still meets the 10year occupancy criteria used in
developing the critical habitat. We are
also aware of gaps in the survey record
in which spikedace were not found for
greater than 10 years, but then
reappeared. Surveys do not allow for
100 percent detection of a species,
particularly for species such as
spikedace that are hard to detect.
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General Comments Issue 2: Procedural
and Legal Compliance
(15) Comment: Several commenters
requested a 60-day extension of the
comment period, or indicated that two
public hearings and the comment
periods provided were inadequate to
provide comment on the proposed rule,
draft economic analysis, and the draft
environmental assessment.
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Our response: We believe the three
comment periods allowed for adequate
opportunity for public comment. A total
of 100 days was provided for document
review and the public to submit
comments.
(16) Comment: Reintroduction of the
spikedace and loach minnow to the
Verde River will result in killing and
poisoning of the non-native fish, leaving
the public with a non-fishable river. The
general public will be banned from
setting foot or paddling on the river area
or using the Verde River for recreation.
Our response: The designation of
critical habitat does not entail
reintroduction efforts of spikedace or
loach minnow. In addition, designation
of critical habitat does not set up
wildlife refuges or preserves, or require
the exclusion of all other uses. Critical
habitat was designated previously on
the Verde River for spikedace and loach
minnow from 2000 to 2004, during
which time recreation and use of this
area by the public continued.
(17) Comment: The Service appears
inconsistent in their critical habitat
designations in terms of the lateral
extent of the critical habitat designation.
There is no reference for best scientific
evidence in the determination of 300 ft
(91.4 m) as lateral extent. Prior rulings
for razorback sucker, Colorado
pikeminnow, humpback chub, and
bonytail chub define the lateral extent of
critical habitat as the 100-year
floodplain where PCEs occur, with the
caveat that potential areas of critical
habitat should be evaluated on a case by
case basis. The final ruling for woundfin
and Virgin River chub use the 100-year
floodplain.
Our response: Although we
considered using the 100-year
floodplain, as defined by the Federal
Emergency Management Agency
(FEMA), we found that it was not
included on standard topographic maps,
and the information was not readily
available from FEMA or from the U.S.
Army Corps of Engineers for the areas
designated as critical habitat, possibly
due to the remoteness of various stream
reaches. Therefore, we selected the 300foot lateral extent, rather than some
other delineation, for three reasons: (1)
The biological integrity and natural
dynamics of the river system are
maintained within this area (i.e., the
floodplain and its riparian vegetation
provide space for natural flooding
patterns and latitude for necessary
natural channel adjustments to maintain
appropriate channel morphology and
geometry, store water for slow release to
maintain base flows, provide protected
side channels and other protected areas,
and allow the river to meander within
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its main channel in response to large
flow events); (2) conservation of the
adjacent riparian area also helps provide
nutrient recharge and protection from
sediment and pollutants; and (3)
vegetated lateral zones are widely
recognized as providing a variety of
aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality (see U.S.
Army Corps of Engineers’ final notice
concerning Issuance and Modification
of Nationwide Permits, March 9, 2000,
65 FR 12818–12899). Please see the
section entitled ‘‘Lateral Extent’’ below
for more information. In addition, in
more recent rules we have used the 300
ft (91.4 m) width to define the lateral
extent of critical habitat for the Rio
Grande silvery minnow (February 19,
2003; 68 FR 8088), the Gila chub
(November 2, 2005; 70 FR 66664), and
the Arkansas River shiner (October 13,
2005; 70 FR 59808).
(18) Comment: A designation of 300 ft
(91.4 m) may impact roads or facilities.
Roads or facilities impacted by flooding
may require periodic maintenance.
Additionally, if a river shifts in response
to flooding, critical habitat would have
to shift and potentially affect the
rebuilding of diversion structures. The
proposed rule does not address what
happens when a river channel moves.
Our response: Prior critical habitat
designations for spikedace and loach
minnow from 2000 to 2004 did not
prevent maintenance or rebuilding of
structures damaged by flooding nor will
this final designation. Where critical
habitat is designated, activities funded,
authorized, or carried out in these areas
by Federal action agencies that may
affect the PCEs of the critical habitat,
may require consultation pursuant to
section 7 of the Act. The purpose of the
consultation is not to stop activities
from occurring, but to ensure that such
activities do not result in jeopardy to
listed species or adverse modification of
critical habitat. When determining final
critical habitat map boundaries, we
made every effort to avoid including
developed areas such as buildings,
paved areas, and other structures that
lack any PCEs for the spikedace and
loach minnow. Any such structures and
the land under them inadvertently left
inside critical habitat boundaries of this
final rule are excluded by text and are
not designated as critical habitat.
Specifically, lands located within the
boundaries of the critical habitat
designation, but that do not contain any
of the PCEs essential to the conservation
of the spikedace and loach minnow
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include: Existing paved roads; bridges;
parking lots; railroad tracks; railroad
trestles; water diversion and irrigation
canals outside natural stream channels;
active sand and gravel pits; regularly
cultivated agricultural land; and
residential, commercial, and industrial
developments.
Critical habitat includes the area of
bankfull width plus 300 ft (91.4 m) on
either side of the banks. Should the
active channel meander or shift we
anticipate that it would still be
contained within the 300 foot (91.4 m)
lateral extent of the designation (i.e. our
current critical habitat boundary); thus
we do not find that critical habitat will
shift as a result.
(19) Comment: The 300 ft (91.4 m)
lateral extent likely represents an
expansion of critical habitat to areas that
are not necessarily riparian habitat,
particularly on small streams.
Our response: Although the spikedace
and loach minnow cannot be found in
the riparian areas when they are dry,
these areas are periodically flooded and
provide habitat during high-water
periods. These areas also contribute to
PCEs 1 and 2 and contain PCEs 3 and
5. As noted in response to 18 above,
vegetated lateral zones are widely
recognized as providing a variety of
aquatic habitat for fish and other aquatic
organisms, moderation of water
temperature changes, and detritus for
aquatic food webs, and help improve or
maintain local water quality.
(20) Comment: The 300 ft (91.4 m)
designation needs additional defining. It
is unclear if it is to be measured up to
the slope of the bank or horizontally on
a map. In many reaches of the specific
rivers and streams in the designation,
the flowing channels are confined
within narrow canyon bottoms, and a
300 ft (91.4 m) buffer in some cases
extends several hundred feet vertically
up the side of the canyon. In addition,
bankfull width, while scientifically
valid and useful, may be hard to
determine in the field.
Our response: Critical habitat
includes the area of bankfull width plus
300 ft (91.4 m) on either side of the
banks, except where bordered by a
canyon wall. Since a canyon wall is not
defined as a PCE for the spikedace and
loach minnow it would not be
considered critical habitat. The 300 foot
lateral extent is not for the purpose of
creating a ‘‘buffer zone.’’ Rather, it
defines the lateral extent of those areas
we have determined contain or
contribute to the features (PCEs 3 and 5)
that are essential to the conservation of
these species (e.g., water quality, food
source, etc.).
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(21) Comment: The Service is
inconsistent in its treatment of, and fails
to properly analyze the impacts of,
groundwater wells and other potential
detrimental activities that are located
outside the 300 ft (91.4 m) lateral extent
of critical habitat.
Our response: Activities funded,
authorized, or carried out by Federal
action agencies that may affect the PCEs
of the critical habitat, may require
consultation pursuant to section 7 of the
Act. Thus, groundwater pumping
activities may require consultation
pursuant to section 7 of the Act if the
action agency determines that the
activity may affect the PCEs for the
spikedace or loach minnow, regardless
of whether the activity is occurring
within or outside the critical habitat
designation.
(22) Comment: The Service should
designate the areas within the active
floodplain that are necessary to support
the PCEs of spikedace and loach
minnow critical habitat for the recovery
of the species, as demonstrated by the
best available science. We suggest that
the Service look at hydrogeomorphic
and biological features to determine the
width along each segment where the
PCEs are likely to exist. Such
information may include specific return
intervals (5-, 10-, 50-year events),
floodplain features (ordinary high water
mark), or floodplain vegetation as
indicators of important habitat, which
can be mapped in the field along with
bankfull flow width.
Our response: As noted in our
response to comment 17 above, we do
not have this type of information
available to us and thus we selected the
300 ft (91.4 m) lateral extent as the best
available science to map the areas that
contain or contribute to the features that
are essential to the conservation of these
species.
(23) Comment: The best scientific
information currently available
recognizes that for most native fish
species, conservation cannot be
achieved without eliminating or greatly
suppressing nonnative fishes (Clarkson
et al. 2005). The common nonnative fish
occupying the same or overlapping
geographic areas with spikedace and
loach minnow are known to compete
with or prey on all life stages of native
fish (Pacey and Marsh 1998). Thus,
where nonnative fishes have high
abundance, and where there is limited
opportunity or ability for the Service to
manage these nonnative species due to
physical constraints of the river system
or political/social constraints, these
segments are unlikely to provide
important habitat for any of the
spikedace and loach minnow life stages
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regardless of the condition of other
PCEs. Nonnatives are especially a
problem for the San Francisco River,
Gila River, and Eagle Creek.
Our response: Critical habitat
designation is not the process through
which we rule out habitat suitability
due to threats, but the process through
which we identify habitat that provides
for one or more of the life history
functions of the species. As defined in
section 3(5)(A) of the Act, critical
habitat means ‘‘(i) the specific areas
within the geographical area occupied
by the species, at the time it is listed in
accordance with the provisions of
section 4 of the Act, on which are found
those physical or biological features (I)
essential to the conservation of the
species and (II) which may require
special management considerations or
protection.’’ During the designation
process, the Service identifies threats to
the best of our ability where they exist.
Identification of a threat within an area
does not mean that that area is no longer
suitable, rather that special management
or protections may be required. If an
area contains sufficient PCEs to provide
for one or more of the life history
functions of spikedace or loach
minnow, and if it was occupied at the
time the species was listed and is
currently occupied, it is reasonable to
include it within a proposed critical
habitat designation. The need to address
a particular threat, such as nonnative
fishes, in a portion of the critical habitat
designation may or may not arise in the
future. Further, describing both the
areas which support PCEs and the
threats to those areas assists resource
managers in their conservation planning
efforts for threatened and endangered
species like spikedace and loach
minnow.
(24) Comment: Absent clear scientific
evidence that intermittent stream
reaches are used by spikedace or loach
minnow to move between occupied
habitats, and are critical to their
recovery, the fifth PCE should not be
included as part of the final designation.
Our response: It was not our intent to
imply that spikedace or loach minnow
occupy intermittent reaches when water
is not present. We included
interconnected waters because
spikedace and loach minnow have the
ability to move between populated,
wetted areas, at least during certain flow
regimes or seasons. Because streams
provide continuous habitat when
connected, and because fish are mobile,
it is reasonable to conclude that
intermittent areas, when wetted, may be
used during fish movement. In addition,
some complexes include stream reaches
that play a role in the overall health of
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the aquatic ecosystem, and therefore,
the integrity of upstream and
downstream spikedace and loach
minnow habitat. Again, because stream
habitat is continuous, actions taking
place in an intermittent portion of the
channel can have effects in upstream
and downstream areas. Inclusion of
these intervening areas assures
protection of adjacent, perennial
reaches.
(25) Comment: There is no record or
document that summarizes or describes
in detail the PCE conditions that the
Service used as a decision-making tool
to select reaches.
Our response: As stated under the
‘‘Critical Habitat’’ subheading in the
final rule, the areas included within the
proposed critical habitat designation are
based not only on PCE conditions, but
also on whether or not an area was
occupied at listing and may require
special management considerations or
protections. There is no single record or
document that summarizes this
information. Instead, the Service looked
at various databases and survey records
to determine occupancy, as well as
habitat descriptions at various locations.
We relied on information provided in
survey reports and research documents
to describe conditions at various
locations. This information was then
synthesized to develop the proposed
critical habitat designation.
(26) Comment: As a final step before
the issuance of the proposed rule, the
Service should have ranked the suitable
habitat to determine which areas
possess the highest quality of PCEs.
Based on this ranking, the Service
would then have published the
proposed rule designating the portions
of suitable habitat needed to achieve
recovery goals. The proposed rule
would have also described areas of
suitable habitat identified by the Service
but not included in the proposed rule.
Our response: The regulations
governing critical habitat designations
do not require ranking of suitable
habitat. With species such as spikedace
and loach minnow, whose current
distribution is severely reduced
compared to historical distribution,
determining the highest quality of PCEs
is not a useful tool in developing a
recommendation, and inclusion of only
the highest ranking areas would not be
sufficient for recovery of these species.
The Service has developed a rule set
that we have determined identifies
those areas to be included as final
critical habitat. We have coupled that
rule set with the best scientific and
commercial information available
regarding species distribution, habitat
parameters, and life history, and have
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included those areas within the
designation.
(27) Comment: The preamble
articulates the following important
concept: ‘‘Where a subset of PCEs are
present (e.g., water temperature during
spawning), only those PCEs present at
designation will be protected.’’ This
concept should be reflected in the rule
language itself. The proposal is not
always clear as to what PCEs are present
in each stretch of river. For example,
with respect to the 39 mile stretch of the
Gila River included in the proposal, the
preamble states only that it contains
‘‘one or more’’ of four PCEs. This creates
uncertainty about what PCEs are present
in which segments, which could in turn
cause difficulties in future section 7
consultations regarding possible adverse
effects on critical habitat.
Our response: Within the discussion
immediately following Table 1, PCEs are
described for each complex. For
example, for the 39 mile stretch of the
Gila River addressed in this comment,
the proposed rule states that ‘‘Those
portions of the Gila River proposed for
designation contain one or more of the
PCEs, including sufficient flow
velocities and appropriate gradients,
substrates, depths, and habitat types
(i.e., pools, riffles).’’ This information
should be useful in future section 7
consultations.
(28) Comment: Page 75556 of the
proposed rule states ‘‘Where a subset of
the PCEs are present (e.g., water
temperature during spawning), only
those PCEs present at the time of
designation will be protected.’’
Implementation of this misguided
approach negates the conservation value
of the critical habitat designation
because lack of perennial water,
appropriate stream habitat, or high
abundance of predatory nonnative fish
precludes the survival or recovery of
spikedace or loach minnow. We believe
the Service needs to fully consider the
implication of this language in the
Proposed Rule, and reevaluate the
proposed reaches in light of the need to
contain all PCEs at the time of
designation, especially those reaches
that contain high numbers of nonnative
fish species.
Our response: Stream complexes as
part of this final rule making were
designated based on sufficient PCEs
being present to support spikedace and
loach minnow life processes. Some
complexes contain all PCEs and support
multiple life processes. Some segments
contain only a portion of the PCEs
necessary to support the spikedace and
loach minnow’s particular use of that
habitat. Where a subset of the PCEs are
present (such as water temperature
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during migration flows), it has been
noted that only PCEs present at
designation will be protected.
(29) Comment: With respect to the
PCEs, an additional quantitative value
that should be measured is the large
wood present in a system.
Our response: We agree that large
wood is an important factor to analyze
in assessing riparian ecosystem health;
however, we are not aware of any data
at this time that illustrates what amount
of large woody debris within a system
would constitute ideal conditions for
spikedace and loach minnow. Should
such information be developed in the
future, it would be another useful factor
in evaluating river system health and
habitat suitability for spikedace and
loach minnow.
(30) Comment: Flow velocity values
should be in feet per second, which is
a more appropriate field estimate and
ensures greater accuracy between
readings and reader. These values can
also be better correlated with historical
and stream gauge data.
Our response: While it may be more
useful to report flow velocity values in
feet per second, it is our practice to use
values and units of measurement as they
were reported by the author of the
research summarized.
(31) Microhabitat flows are highly
related to habitat complexity. Though it
is appropriate to define these flows,
there should be more emphasis on
habitat complexity and the functions
needed to create it such as floodplain
interaction, riparian condition, and
large wood recruitment.
Our response: We believe the final
rule accomplishes both of these
objectives. We have chosen to consider
overall riparian health, as well as
floodplain interaction and stream
health, by including riparian vegetation
and floodplain areas within the critical
habitat designation, as encompassed by
the 300 foot lateral zone. In addition, we
have attempted to define key
components of occupied habitat, as
defined in the PCEs. One of those
components relates to flow velocities.
We have incorporated the information
we have relevant to spikedace and loach
minnow within the rule.
(32) Comment: Because microhabitat
is variable and transient, gradient values
should be more generalized and at the
geomorphic reach level.
Our response: We are required to use
the best scientific and commercial
information available. At this time, no
assessment of gradient values at a
geomorphic reach level has been
completed for occupied or suitable
spikedace and loach minnow habitat.
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(33) Comment: In evaluating riparian
habitat, there should be two or more
native, riparian-obligate woody species
and two or more riparian-obligate
herbaceous species present and vigorous
(Winward 2000). In terms of species
diversity, all four age classes of native,
riparian-obligate woody species must be
present and vigorous. These classes are
seedling/sprout, young/sapling, mature/
decadent, and dead (Winward 2000).
Our response: We agree that a
diversity of composition leads to
healthier riparian habitat; however, we
do not have sufficient information of
this type tied to occupied spikedace and
loach minnow critical habitat to use in
developing an individual PCE. The
individual PCEs represent the actual
physical and biological parameters of
habitat used by the fish.
(34) Comment: Conflicting comments
were received on the temperature ranges
listed within the PCEs for spikedace and
loach minnow. In summary, we
received comments that the PCE
temperature range is broader (35 to
85 °F) than the literature indicates (48.2
and 71.6 °F), with the potential net
effect being an extension of stream
reaches both upstream and downstream
from areas actually likely to support the
species. A second commenter noted that
the Bonar et al. (2005) study found 100
percent survival of loach minnow at
28 °C (82 °F) and 100 percent survival of
spikedace at 30 °C (86 °F) corresponded
quite well with upper limits in the
proposed rule PCEs. A third commenter
noted that appropriate values should be
a maximum seven day average.
Our response: We have reviewed the
study completed by the University of
Arizona (Bonar et al. 2005) and
incorporated its findings into
discussions of temperature tolerances
within the final rule. The PCEs serve as
guidelines to resource managers in
evaluating the suitability of areas for
spikedace and loach minnow.
Temperature ranges provided are based
on the studies completed at various
occupied locations, and adequately
represent the habitat most suitable for
spikedace and loach minnow. In most
instances, resource managers do not
have the ability to develop seven day
averages. With respect to broadening the
range of the species by incorporating too
wide a range of suitable temperatures,
we note that we are using the Act’s
standard of best available scientific
information, and should temperatures at
these sites be found at the high point of
the range provided in this PCE, it would
already be within an area occupied by
the species, so the species’ range would
not be broadened.
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(35) Comment: Water depths of 1 to
30 inches are specified as a PCE for
adult, juvenile, and larval loach
minnow. No data or references are cited
to support any specific range of depths.
Additionally, pools aren’t appropriate
for spikedace and loach minnow, but
are suitable for predatory non-natives
that are significantly detrimental.
Our response: Water depths are
known for all occupied spikedace and
loach minnow sites, as discussed below.
Therefore, the range described in the
PCEs reflects the range considered to
provide suitable habitat for these fishes
by biologists familiar with the species.
Spikedace and loach minnow are less
likely to use pool habitat than other
types of habitat, however, Sublette et al.
(1990, p. 138) and Propst et al. (1986, p.
40) note that spikedace juveniles and
larvae are occasionally found in quiet
pools or backwaters lacking streamflow
(Sublette et al. 1990, p. 138). Barber et
al. (1970, pp. 11–12) also noted that
female spikedace occupy deeper pools
and eddies during portions of the
breeding season. In addition, Schreiber
(1978, pp. 40–41) found that the
availability of pool and run habitats
affects availability of prey species
consumed by loach minnow.
(36) Comment: Virtually any
perennial stream above 3,000 feet
elevation in Arizona displays the
characteristics cited by the Service in its
PCEs and thus they are not particularly
helpful in identifying the areas
necessary for the conservation of the
spikedace and loach minnow.
Our response: The PCEs are based on
the range of criteria developed following
review of research conducted at
occupied spikedace and loach minnow
sites. Use of the PCEs alone may result
in the inclusion of most streams above
3,000 feet in elevation. However,
coupled with occupancy information
and the geographic range of the species,
we are able to identify final critical
habitat for the spikedace and loach
minnow.
(37) Comment: Flood magnitude and
frequency deserve careful consideration
and incorporation as part of a ‘‘flood
frequency and magnitude’’ PCE. The
Service has failed to include important
hydrologic features in the analysis of
current habitat for spikedace and loach
minnow.
Our response: We agree that flooding
is a key process in maintaining suitable
habitat components for spikedace and
loach minnow, and have addressed this
in PCE 2. A PCE focused strictly on
flooding would be difficult to define, as
there is considerable variability in the
flood magnitude and frequency of
different systems. More importantly,
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flooding itself would be inappropriate
as a PCE as flooding is a process that
maintains the necessary components of
occupied habitat, whereas PCEs are the
features essential to the conservation of
the species. We determine those
physical and biological features that are
essential to the conservation of a given
species and that may require special
management considerations or
protection, rather than looking at the
processes that aid in developing those
features 50 CFR 424.12(b).
(38) Comment: Although the five
PCEs appear to be generally correct,
they are describing fine-grained
characteristics applicable to a squaremeter by square-meter assessment. Only
two PCEs are coarse-grained; (1) reaches
devoid of nonnative fish, and (2) stream
reaches that flow sporadically and
provide connective corridors between
occupied and seasonally occupied
reaches. The other PCEs are focused on
the biological requirements for
individual fish, rather than the
population or the species to which it
belongs.
Our response: We disagree with the
commenter on this point. It is true that
the PCEs focus on the biological needs
of the individual fish, but collectively,
the biological needs of the fish represent
the biological needs of the species. As
previously noted, critical habitat, as
stated in the Act, is defined as ‘‘* * *
specific areas * * * on which are found
the physical or biological features (I)
essential to the conservation of the
species * * *.’’ The Service has
determined that the PCEs, as defined by
studies in occupied areas, define the
features essential to the conservation of
the species.
(39) Comment: We request exclusion
of all areas within roadway right-ofways or easement limits because section
7 is required in these areas for projects
affecting threatened and endangered
species. Designation within right-ofways would have no additional benefit.
Our response: Developed lands,
including roadway right-of-ways, do not
contain the PCEs essential to the
conservation of the spikedace and loach
minnow. Federal action agencies are
only required to consult on activities
they authorize, fund, or carry out that
may affect the physical or biological
features determined in this rule to be
essential to conservation of these fish.
See also response to comment 18 above.
(40) Comment: The Bureau of
Reclamation lands are on the lower San
Pedro River and not the Gila River. This
mistake is also continued in the
regulation promulgation section.
Our response: According to GIS
landownership layers from the Arizona
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Land Resource Information System of
the Arizona State Land Department, the
Bureau of Reclamation lands referenced
by the commenter are on the Gila River
beginning at Township 4 South, Range
13 West, section 3.
(41) Comment: The critical habitat
designation allows for exclusions when
special management considerations are
not required based on management
plans. This policy should allow for land
management agencies to adopt species
management plans.
Our response: In this final rule, our
exclusion of areas covered by
management plans was made pursuant
to section 4(b)(2) of the Act, where we
determined that the benefits of
exclusion outweighed the benefits of
inclusion. These determinations were
not hindered by landownership.
(42) Ten years is insufficient to
determine presence or absence of
spikedace and loach minnow given the
elusiveness of the species, the difficulty
of obtaining a thorough sampling of
remote streams with difficult access,
and the low efficiency of sampling
techniques. There is greater biological
support to use a period of 20 to 40 years
as the standard for determining
‘‘occupancy.’’
Our response: We believe a period of
10 years is reasonable to determine
occupancy based on the fact that both
species are difficult to detect in surveys,
surveys have been infrequent or
inconsistent because many of the areas
where they occur are remote, and we
have areas where these species were not
detected for long periods of time (44
years) and then detected again.
Specifically, the methodology used
considers a stream segment occupied if
the spikedace or loach minnow has been
detected in the last 10 years or if the
stream segment is connected to a stream
segment with spikedace or loach
minnow records within the last 10
years. For example, we consider the
lower San Pedro River and the Gila
River ‘‘occupied’’ due to their
connections with Aravaipa Creek, an
area where we have documented
records of these fish from within the last
10 years. We have determined our
methodology is reasonable to determine
areas that meet the definition of critical
habitat.
(43) Comment: With respect to
occupancy, we do question the
assumption that all stream segments
with a ‘‘direct connection’’ to occupied
areas are themselves occupied. There is
little scientific basis for this assumption.
Our response: The language within
the rule states ‘‘We consider an area to
be occupied by the spikedace or loach
minnow if we have records to support
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occupancy within the last 10 years, or
where the stream segment is directly
connected to a segment with occupancy
records from within the last 10 years.’’
While we do not have occupancy
records for these connected areas within
the last 10 years, we believe it is
reasonable to consider these connected
areas to be occupied for the purposes of
critical habitat as they are part of a
larger contiguous complex with
documented occupancy within the last
10 years. We consider it reasonable
because of the elusiveness of the
species, the difficulty of obtaining a
thorough sampling of remote streams
with difficult access, and the low
efficiency of sampling techniques.
(44) Comment: The North Fork of the
White River and the mainstem White
River downstream of the confluence of
the North and East Forks should be
included in the designation. Records of
loach minnow within the last 10 years
exist for both streams.
Our response: These stream segments
occur on Tribal lands and we have no
information available to us to conclude
that these areas meet the definition of
critical habitat for the loach minnow.
Please see ‘‘Relationship of Critical
Habitat to Tribal Lands’’ below for
additional discussion of Tribal
management plan and protections that
exist for these fish on those lands.
(45) Comment: The Service should
use wording similar to that used in the
2000 critical habitat designation which
states ‘‘We have determined the primary
constituent elements essential to the
conservation of spikedace include, but
are not limited to * * *.’’ This provides
for inclusion of new scientific
information without the need for
cumbersome and expensive reproposal
of critical habitat.
Our response: We have determined
the revised language provides more
specifics and certainty about the PCEs,
and any revisions to a regulation as a
result of new information may only be
made through a new rulemaking
process.
(46) Comment: The proposed rule
incorrectly paraphrases the regulatory
definition of destruction or adverse
modification of critical habitat. The
paraphrased definition limits analysis of
destruction or adverse modification to
‘‘those physical or biological features
that were the basis for determining the
habitat to be critical’’, a limitation not
found in the regulatory definition.
Instead, the regulatory definition
directly addresses effects to the critical
habitat rather than a surrogate. The
paraphrased definition also omits the
regulatory definition’s inclusion of
diminution of the values of ‘‘both the
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survival and recovery of a listed
species.’’
Our response: The Service no longer
relies on the regulatory definition of
adverse modification of critical habitat.
Instead the Service relies on the
statutory provision of the Act to
complete the analysis on critical habitat.
Please see ‘‘General Principles of
Section 7 Consultations Used in the
4(b)(2) Balancing Process’’ below for
additional information.
(47) Comment: There is no
‘‘sufficiently unregulated hydrograph’’
on the Gila River below its confluence
with the San Pedro River. We do not
believe the PCEs identified by the
Service in the proposal are present in
this stretch. This section of the Gila
River (below the San Pedro) should be
removed from the critical habitat
designation.
Our response: While it may not
contain all of the PCEs, we have
determined it currently supports one or
more of them (i.e., low gradient,
appropriate water temperatures, and
pool, riffle, run, and backwater
components), and because of this and its
proximity to occupied areas, it remains
in the designation.
(48) Comment: We dispute the claim
that spikedace occupancy of the Verde
River was confirmed as recently as
1999. No spikedace have been
confirmed from the Verde River since at
least 1995. Thus, the Verde River does
not meet the Service’s own criteria for
critical habitat because there are no
records within the last 10 years.
Our response: The 1999 record is
considered by the Service as a
confirmed record. The spikedace in
question was captured and identified by
a qualified AGFD fisheries biologist
(AGFD 2004).
(49) Comment: The large amount of
privately owned land that is included in
the proposal is too great of a restriction
of use.
Our response: Critical habitat does not
affect private actions on private lands. A
designation of critical habitat requires
that Federal action agencies consult
with the Service on activities that they
fund, authorize, or carry out that may
affect critical habitat. We note that the
designated 105 mi (170 km) for
spikedace and the 126 mi (203 km) for
loach minnow of private lands is part of,
not in addition to, the total 522 mi (840
km).
(50) Comment: The adverse impacts of
critical habitat on non-Federal rights
and interests were exacerbated under
Gifford Pinchot, which increases the
impact of a critical habitat designation
on water and land uses by creating a
heightened standard for the
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‘‘destruction or adverse modification’’ of
critical habitat. More activities that
require a Federal permit or other
approval will violate section 7(a)(2) of
the Act and will require formal
consultation. When combined with the
Service’s use of section 7(a)(2) to
‘‘Federalize’’ and control non-Federal
projects, Gifford Pinchot will
dramatically increase the economic
impacts caused by the critical habitat
designation.
Our response: We recognize that
under the Gifford Pinchot decision,
critical habitat designations may
provide greater benefits to the recovery
of a species. This relates to the court’s
ruling that the two standards (e.g.
jeopardy and adverse modification) are
distinct and that adverse modification
evaluations require consideration of
impacts on the recovery of species. As
such, where appropriate, we analyze or
consider the effects of the Gifford
Pinchot decision in this rule, the
economic analysis, and the
environmental assessment. For example,
in light of the uncertainty concerning
the regulatory definition of adverse
modification, our current
methodological approach to conducting
economic analyses of our critical habitat
designations is to consider all
conservation-related costs. This
approach would include costs related to
sections 4, 7, 9, and 10 of the Act, and
should encompass costs that would be
considered and evaluated in light of the
Gifford Pinchot ruling. Additionally, in
this critical habitat designation, we are
designating areas that are occupied, as
defined elsewhere in this rule, by one or
both species; thus, there is already a
requirement for consultation with the
Service over any water and land use
actions that may affect these species.
The purpose of the consultation process
is not to ‘‘Federalize’’ private projects,
but to ensure that federally-sponsored
activities do not jeopardize listed
species or adversely modify or destroy
designated critical habitat.
(51) Comment: The Gila Settlement
and associated agreements allow the
State of New Mexico to divert for
consumptive use 14,000 acre feet of
water originally set aside under the
Central Arizona Project authorizing
legislation. The diversion of this
additional 14,000 acre-feet of water
almost doubles current adjudicated
withdrawal from the Gila and San
Francisco rivers and could significantly
impair river function and riparian
conditions and threaten native species
such as the loach minnow and
spikedace.
Our response: The Service is an active
partner on the Gila and San Francisco
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Rivers Technical Subcommittee, which
is evaluating the environmental impacts
of these water diversions from the upper
Gila and San Francisco rivers.
Considerations for spikedace and loach
minnow are prominent in those
discussions. We have identified water
diversions as a threat for spikedace and
loach minnow within this complex.
(52) Comment: The Upper Eagle Creek
Watershed Association has developed a
watershed plan in collaboration with
the Forest Service and the Arizona
Department of Environmental Quality.
This plan has addressed the loach
minnow and spikedace as endangered
fish that may occupy areas covered by
the plan. The plan guides the
community, permittees, and agencies in
developing the Upper Eagle Creek
Watershed into its greatest potential for
all species. On the basis of this plan and
the partnership with the people on the
land with all agencies, it would be best
to exclude Eagle Creek from the critical
habitat designation.
Our response: We appreciate the
efforts the Upper Eagle Creek Watershed
Association has taken to work
collaboratively with the Forest Service,
cooperators, and the Service.
Unfortunately, the Upper Eagle Creek
Watershed Management Plan was
received on the last day of the third
comment period, and was still in draft
form. For these reasons, we are not able
to consider the plan as a basis for
excluding Eagle Creek at this time. We
understand it is the intention of the
Association to finalize and implement
the plan, and we look forward to
working cooperatively with the
Association in these efforts. Once the
plan has been finalized and
implemented, we have the option of
excluding those portions of Eagle Creek
covered by the plan. As discussed in
‘‘Exclusions under Section 4(b)(2) of the
Act’’ below, we have excluded other
portions of Eagle Creek from critical
habitat based on other information
available to us.
(53) Comment: The Blue River should
be excluded from critical habitat in
order to ensure that the ongoing
coordination between the Service and
the Blue River Native Fisheries,
Research and Education Center is
unencumbered.
Our response: At this time we have no
documentation, such as a management
plan, to evaluate in terms of a potential
exclusion of the Blue River from the
critical habitat designation.
Additionally, the majority of property
along the Blue River is under Forest
Service management and management
activities for the conservation of the
spikedace and loach minnow would
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require coordination with the Forest
Service. We fully intend to continue our
ongoing coordination with the Blue
River Native Fisheries, Research and
Education Center. The designation of
critical habitat is a separate process
which will not hinder these efforts and
we commend the Center for their
interest in conserving the Blue River.
(54) Comment: The Service should
remove the Middle Verde River from the
final rule and retain the Upper Verde
River segment as critical habitat based
on: (1) The current biological conditions
within each river segment to conserve
the spikedace; (2) the existing physical
barrier (i.e., Allen Ditch Diversion)
between the Upper and Middle Verde
River, which likely precludes movement
and connectivity between reaches; (3)
the prevailing technical feasibility and
fisheries management emphasis of each
river segment; and (4) the high potential
economic burden to groundwater and
surface water users in the Middle Verde
River (i.e., Verde Valley) compared to
the Upper Verde River.
Our response: Pursuant to section
4(b)(2) of the Act we have excluded the
lower portion of the Verde River based
on economic costs. See exclusion
discussion below.
(55) Comment: One of the
requirements of critical habitat is that
these areas should be ‘‘protected from
disturbance or are representative of the
historic geographical and ecological
distributions of a species (50 CFR
§ 424.12(b)(1)–(5); 70 FR 75551;
December 20, 2005).’’ In other words, if
suitable locations are available
elsewhere, it does not make sense to
designate critical habitat along stream
reaches that are already impacted by
land or water use activities or will soon
be impacted by those activities. The
Service applied this criterion in some
places (e.g., the upper San Pedro River,
p. 75546) and portions of the Black
River complex (p. 75560) that were
found to have too high an abundance of
nonnative fish to be important habitat),
but did not apply it in others (i.e.,
middle Verde River, Gila River, and
lower San Pedro River). The Service
should apply this criteria and standards
consistently to evaluate each PCE
among all potentially suitable habitats
in a transparent process.
Our response: We do not agree that
critical habitat should not be designated
in areas that have experienced some
level of impact to the habitat. As
previously stated, designation of critical
habitat focuses on the areas that contain
the PCEs and provide for the
conservation of the species, rather than
the threats that may be present in an
area. Thus, our methodology focuses on
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occupied areas that contain the PCEs
and not on the type or level of threat
that occur in these areas. In addition, we
note that we have limited suitable
habitat remaining for these species such
that additional suitable locations are not
available elsewhere. See also our
response to comment 58 below.
(56) Comment: Bear Creek should be
designated as loach minnow critical
habitat from its junction with the Gila
River upstream to the junction with its
tributaries Cherry Creek and Little
Cherry Creek.
Our response: As noted in the notice
to reopen the comment period
published on June 6, 2006 (71 FR 32498,
p. 32496), we did not propose Bear
Creek because of the timeframe for
completion of the final rule and
associated documents. Information on
occupancy of Bear Creek was received
late in the process. Should critical
habitat be revised in the future, Bear
Creek would be considered for
inclusion.
(57) Comment: Due to seasonal lack of
water flows, Eagle Creek is unsuitable
habitat for designation below the Gila
and Salt River base line to the
confluence with Willow Creek.
Additionally, from Willow Creek to the
Phelps Dodge diversion dam, flows are
augmented to provide fresh water for
mining operations and for potable use at
the Morenci and Clifton townsites. This
portion of Eagle Creek does not qualify
for designation because: (1) These
augmented flows do not provide a
natural, unregulated hydrograph that
allow for adequate river functions; (2)
flow velocities are frequently higher
than those required for these native fish;
(3) pool, riffle, run, and backwater
components are not present; and (4)
non-native fish dominate this reach to
an extent detrimental to natives and
prevents the persistence or even
occupancy of loach minnow or
spikedace.
Our response: We do not agree with
this comment. While this portion of
Eagle Creek has been modified by both
addition of flows and by the diversion
structure, suitable habitat still exists. As
stated previously, we consider those
areas that meet our definition of
occupancy and support one or more of
the PCEs as areas the meet the definition
of critical habitat. Eagle Creek met these
criteria. As discussed below, we have
excluded portions of Eagle Creek
pursuant to section 4(b)(2) of the Act.
(58) Comment: Areas without threats
such as the San Francisco and the
middle reach of the mainstem Gila River
do not require special management
considerations or protection and thus
can not be designated as critical habitat
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under the Act. The critical habitat
designation will not protect the loach
minnow from the threat of nonnatives
and therefore special management is not
required.
Our response: The Act does not
require that critical habitat alleviate
threats to the species. We have
determined that various threats are
present in all the rivers we proposed as
critical habitat, as identified in Table 1.
As required by the Act and the
definition of critical habitat, we provide
a discussion of known threats for each
area to indicate that the biological and
physical features essential to the
conservation for these fish may require
special management considerations or
protection.
(59) Comment: Habitat requirements
for both of the species are different and
the Service should recognize this and
not combine them.
Our response: We agree that there are
differences in the habitat requirements
of both species and we have
distinguished this in our PCEs for each
of the fish. We note that it is not
unusual for streams to support habitat
types for both the spikedace and loach
minnow, often within the same reach,
and some streams are occupied by both
species (e.g., the Gila River and
Aravaipa Creek).
(60) Comment: The proposed rule
states that ‘‘individual streams are not
isolated, but are connected with others
to form areas or complexes.’’ This
statement does not hold true for
Complex 4. Eagle Creek is currently
isolated from the San Francisco and
Blue River complexes by a diversion
dam. The Blue River will become
inaccessible to upstream migration from
the rest of the complex if a proposed
fish barrier is constructed on the Blue
River.
Our response: We have clarified the
language in this final rule to indicate
that collections of streams in proximity
to each other were grouped together to
form a category called ‘‘complexes.’’
Streams need not be hydrologically
connected in order to be grouped
together.
(61) Comment: No spikedace have
been observed in Eagle Creek for 17
years, thus the segment does not meet
the criteria for occupancy.
Our response: We agree, as the last
record for spikedace in Eagle Creek was
in 1989. Thus, critical habitat for
spikedace in Eagle Creek has been
removed from the final rule. However,
Eagle Creek is considered critical habitat
for the loach minnow. As discussed in
the exclusion section below, portions of
Eagle Creek have been excluded from
the final rule.
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(62) Comment: For spikedace, the
Verde River from Tapco Diversion Dam
down to Fossil Creek should be
excluded. Although spikedace were
found in 1999 in areas upstream, they
have not been found downstream of the
Sycamore Creek confluence in over 20
years. Although this area is connected to
the occupied areas upstream, the Tapco
Dam and numerous nonnative fishes
occupy this reach and may serve to
disconnect it from the upstream areas.
Our response: We believe the Verde
River meets the definition of critical
habitat for spikedace as we consider this
area occupied based on occupancy
records from 1999. Additionally, the
Verde contains one or more of the PCEs
including appropriate flow velocities,
gradients, temperatures, habitat
components (pool, riffle, run and
backwater), and an abundant aquatic
insect food base, and it requires special
management or protection. However,
pursuant to section 4(b)(2) of the Act,
we have excluded the lower portion of
the Verde River (see ‘‘Exclusions under
Section 4(b)(2) of the Act’’ below).
(63) Comment: Regarding definition of
adverse modification, the Service’s
definition erroneously eliminates
congressional intent that critical habitat
designations provide protection not just
to survival of a species but to its
recovery as well. It was the opinion of
the court that ‘‘the purpose of
establishing ‘critical habitat’ is for
government to carve out territory that is
not only necessary for the species’
survival but also important for the
species’ recovery.’’ (Sierra Club v.
USFWS, 245 F.3d 434 (5th Cir. 2001).
The proposed rule for spikedace and
loach minnow rejects that approach and
relies on Service policy limiting critical
habitat to only those areas occupied by
the species.
Our response: The Act states, at
section 3(5)(c), that except in particular
circumstances determined by the
Secretary, critical habitat shall not
include the entire geographical area
which can be occupied by the
threatened or endangered species. Thus,
it is not the intent of the Act that we
designate critical habitat in all areas that
have the potential to become suitable
habitat or in all areas of historic habitat.
We have determined that our
methodology for determining those
areas containing features essential to the
conservation of the spikedace and loach
minnow complies with the intent of the
Act and does not include all areas
which can be occupied. Our
methodology resulted in areas being
proposed as critical habitat that are
within the geographical range occupied
by the spikedace and loach minnow and
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that contain the biological or physical
features essential to their conservation
and that may require special
management.
(64) Comment: The approach
proposed by the Service for determining
whether to exclude Tribal lands from
the final rule places undue weight on
the argument that inclusion of Tribal
lands will compromise government-togovernment relations, to the potential
detriment of species conservation goals.
Additionally, under relevant Federal
court precedent in Arizona, the Service
is not permitted to rely upon assurances
by the tribes that habitat will be
‘‘adequately managed’’ through the
implementation of Tribal management
plans as a basis for exclusion.
Our response: We disagree. See below
for our analyses of the exclusion of
Tribal lands pursuant to section 4(b)(2)
of the Act.
(65) Comment: Ten days is not
enough time to review all of these new
documents. There should be a delay in
designating critical habitat until the
information can be properly reviewed.
Our response: We agree that the last
comment period was shorter than we
would have preferred. However, we
have an obligation to submit for
publication a final rule on December 20,
2005, and thus we were not able to
accommodate a longer comment period.
In addition, we believe the three
comment periods allowed for adequate
opportunity for public comment. A total
of 100 days was provided for document
review and the public to submit
comments.
(66) Comment: The Phelps Dodge
plans should undergo peer review and
revision before being considered as
sufficient conservation management.
Our response: Although formal peer
review of management plans is not
conducted or required, the documents
are available for public review and
comment during the open comment
period.
(67) Comment: Phelps Dodge’s
Management Plan does not assure the
maintenance of the PCEs for the
spikedace and loach minnow.
Our response: We have determined
the formation of this working
relationship will promote the
conservation of the loach minnow and
spikedace and their PCEs on Phelps
Dodge’s property. See exclusion section
below for a more detailed discussion of
their management plans and analysis of
this exclusion.
(68) Comment: The proposed rule is
an inappropriate venue for changing the
regulatory definition of section 7
consultation ‘‘baseline.’’ Section 7
regulations (51 FR 19958) define
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environmental baseline to include the
past and present impacts of all Federal,
State, or private actions and other
human activities in the action area, the
anticipated impacts of all proposed
Federal projects in the action area that
have already undergone formal or early
section 7 consultation, and the impact
of State or private actions which are
contemporaneous with the consultation
in process. The proposed rule would
expand that definition to include
‘‘ongoing Federal actions at the time of
designation’’ regardless of whether they
have already undergone formal or early
section 7 consultation.
Our response: The language
referenced above has been removed
from this final rule.
General Comments Issue 3: National
Environmental Policy Act Compliance
(69) Comment: We believe the
analysis in the draft environmental
assessment to be simplistic and
conclusory (See Middle Rio Grande
Conservancy Dist. v. Norton). The
impacts on the environment will be
significant and controversial. The
critical habitat designation as proposed
is likely to result in adverse impacts on
riparian areas, not only within the
critical habitat itself, but also in the
areas located upstream and
downstream. The impacts on water use
and management are significant and
controversial.
Our response: We determined through
the EA that the overall environmental
effects of this action are insignificant.
An EIS is required only if we find that
the proposed action is expected to have
a significant impact on the human
environment. The completed studies,
evaluations, and public outreach
conducted by the Service have not
identified impacts resulting from the
proposed designation of critical habitat
that are clearly significant. The Service
has afforded substantial public input
and involvement, with two public
hearings and open houses. Each of these
events had a small participation level by
the public (less than 10 in Arizona, less
than 20 in New Mexico, and less than
30 written comments on the draft
environmental assessment). Based on
our analysis and comments received
from the public, we prepared a final EA
and made a Finding of No Significant
Impact (FONSI), negating the need for
preparation of an EIS. We have
determined our EA is consistent with
the spirit and intent of NEPA. The final
EA, FONSI, and final economic analysis
provide our rationale for determining
that critical habitat designation would
not have a significant effect on the
human environment. Those documents
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are available for public review (see
ADDRESSES section).
(70) Comment: The draft EA fails to
consider the impacts of critical habitat
on the Arizona Water Settlements Act of
2004, which authorizes the exchange of
Central Arizona Project (CAP) water
diverted from the Colorado River into
New Mexico from the Gila River. The
project is reasonably foreseeable
because New Mexico recently
negotiated and executed an exchange
agreement. The draft EA (p. 45)
acknowledges the project but fails to
discuss the impacts.
Our response: Page 49 of the EA states
that the San Carlos Apache Tribe is
concerned that the designation of
critical habitat for the spikedace and
loach minnow would further complicate
the procedure for getting the CAP
project approved. The Bureau of
Reclamation states that this project
would be reevaluated before an
exchange could occur and a new
consultation is likely.
(71) Comment: The Service failed to
consider a reasonable range of
alternatives to the proposed action in its
EA.
Our response: We disagree. The draft
EA considered a no-action alternative
and several action alternatives and
analyzed the adverse and beneficial
environmental impacts of each.
(72) Comment: One alternative that
seems worthy of consideration is the
designation of known occupied habitat,
rather than the designation of an entire
stream based upon limited sightings in
a limited area (e.g., Eagle Creek) or
consideration of designating only
Federal lands. The Service’s failure to
‘‘rigorously explore’’ and evaluate
reasonable alternatives is per se
arbitrary and capricious.
Our response: We disagree. The
alternatives considered are consistent
with the purpose and need of the action
of designating critical habitat. In
compliance with the Act, we must
propose for designation those areas that
we have determined are essential, as
well as those areas containing features
essential, to the conservation of the
spikedace and loach minnow. Only
considering Federal lands for
designation would not, in this case,
comply with the intent of the Act. As
discussed elsewhere in this rule, the
areas proposed for designation were
based on our definition of occupancy.
See also response to comment 71 above.
(73) Comments: In the NEPA analysis,
it should be recognized that there are
positive aspects that have been observed
from human culture and interaction.
That analysis is required by law.
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Our response: The purpose of a NEPA
analysis is to determine the potential
impacts of a proposed set of alternative
actions on the human environment. It is
not the purpose of NEPA to evaluate the
positive aspects of humans and their
environment.
General Comments Issue 4: Economic
Analysis
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General Methodology
(74) Comment: Two commenters
recommend that the Economic Analysis
discuss impact estimates for the Verde
River unit as two separate subunits: An
Upper Verde reach from Sullivan Dam
to the Allen Diversion and a Lower
Verde reach from the Allen Diversion to
Fossil Creek.
Our response: The Final Economic
Analysis (FEA) incorporates new
information received, and separates
costs associated with the Upper Verde
and Lower Verde River segments where
possible. This distinction is made most
apparent in sections 7 and 8, and
Appendix B of the FEA.
(75) Comment: One commenter states
that the economic analysis fails to
quantify the benefits associated with
critical habitat designation. The
commenter further states that although
the Verde Valley Complex is singled out
as the reach where the largest impacts
will occur, there is no basis for this
conclusion without exploring the ‘‘net
impacts’’ through incorporation of
benefit estimates and comparisons to
baseline.
Our response: Section 4(b)(2) of the
Act requires the Secretary to designate
critical habitat based on the best
scientific data available after taking into
consideration the economic impact, and
any other relevant impact, of specifying
any particular area as critical habitat.
The Service believes that society places
a value on conserving any and all
threatened and endangered species and
the habitats upon which they depend. In
our 4(b)(2) analysis below, we discuss
the economic benefits of excluding
portions of the Verde River and the
conservation benefits related to the
inclusion of this stream segment.
Although, in this case, we are not able
to quantify the monetary value of
critical habitat benefits in the Verde
Valley Complex, we did consider the
benefits that may be derived from a
critical habitat designation when
considering an exclusion pursuant to
section 4(b)(2).
The Service’s approach for estimating
economic impacts includes both
economic efficiency and distributional
effects. The measurement of economic
efficiency is based on the concept of
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opportunity costs, which reflect the
value of goods and services foregone in
order to comply with the effects of the
designation (e.g., lost economic
opportunity associated with restrictions
on land use). Where data are available,
the economic analysis does attempt to
measure the net economic impact. For
example, if the fencing of spikedace and
loach minnow habitat to restrict riparian
access for cattle is expected to result in
an increase in the number of individuals
visiting the site for wildlife viewing,
then the analysis would attempt to net
out the positive, offsetting economic
impacts associated with their visits (e.g.,
impacts that would be associated with
an increase in tourism spending).
However, no data were found that
would allow for the measurement of
such an impact, nor was such
information submitted during the public
comment period.
(76) Comment: One commenter states
that many of the economic impacts
attributed to spikedace and loach
minnow critical habitat in the Verde
Valley could be attributed to razorback
sucker critical habitat.
Our response: To the extent possible,
the FEA distinguishes costs related
specifically to spikedace and loach
minnow conservation where multiple
species are the subject of a single
conservation effort or section 7
consultation. In the case that another
species clearly drives a project
modification or conservation effort, the
associated costs are appropriately not
attributed to the spikedace and loach
minnow. In Section 6, the FEA includes
language that clarifies that the Verde
River is designated as critical habitat for
the razorback sucker.
Recreational Activities
(77) Comment: One commenter
expressed concern that the designation
of critical habitat will cause a loss of
recreational activities on units such as
the Verde River.
Our response: Potential changes to
recreational activities are discussed in
Section 6 of the FEA. Potential impacts
on recreational fishing losses are
specifically discussed and estimated in
Section 6.4.2 of the FEA. Potential costs
associated with lost recreational fishing
activity on the two stream segments
where non-native fish stocking currently
occurs are estimated to be $0 to $8.6
million, using a discount rate of seven
percent. As noted in Section 6.1.2, the
future impact of proposed critical
habitat on the stocking regimes in
affected reaches is unknown, as is the
reduction in fishing activity that would
occur if stocking is curtailed. Further, it
is unknown whether non-native trout
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may be replaced with stocked native
fish (e.g. Gila trout). Thus, this analysis
estimates the value of angler days at risk
if sportfish stocking were discontinued
on these reaches as part of the high end
estimates.
(78) Comment: One commenter states
concerns that the Economic Analysis
does not take into consideration the past
effects of fishing closures on the Blue
River and Eagle Creek on local
businesses. The comment states that one
store in Greenlee County closed as a
result of reduced fishing activity.
Our response: Section 6.1.1 of the
FEA states that ‘‘the AZGFD ceased
stocking of sportfish in Eagle Creek and
the Blue River in Apache-Sitgreaves
National Forest due to native fish
considerations in the late 1990s and
began stocking endangered Gila trout in
these reaches instead. Spikedace and
loach minnow were among numerous
species considered when these stocking
cessations were put in place. Although
several citizens at a public hearing held
in Thatcher, Arizona, in 1999 voiced
disappointment that the sites are no
longer stocked, these changes in
stocking have not affected the overall
number of fish stocked in Arizona.
However, there may have been
consumer surplus losses associated with
these closures because anglers may now
take trips to less preferred sites. It
should be noted that any past impacts
would have occurred prior to this
critical habitat rule taking effect.’’
Section 6 and Appendix B of the FEA
now highlight that the curtailment of
stocking in these reaches has caused
some economic impacts on local
businesses.
Water Use and Grazing Issues
(79) Comment: One commenter states
that exclusion of livestock from riparian
areas using fencing has actually had an
adverse effect on the spikedace and
loach minnow.
Our response: The Economic Analysis
recognizes that some controversy
surrounds the issue of the impacts of
livestock on native fish species. Section
4.1 of the FEA now states that ‘‘in
public comments, private ranchers have
suggested that current management has
been successful at mitigating the
negative effects of grazing on spikedace
and loach minnow habitat and that
further limitation of grazing would
create conditions conducive to nonnative species. Some commenters have
also suggested that fencing may be
detrimental to the species.’’
(80) Comment: One commenter stated
that estimates of riparian fencing and
maintenance costs in the Economic
Analysis are low.
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Our response: As presented in Section
4.4 of the FEA, fencing and maintenance
costs were developed using numerous
published sources, as well as through
discussions with both Forest Service
and BLM. Fencing costs are presented as
a range between $1,500 and $15,000 per
river mile of fence construction, with an
additional $110 to $2,600 in fence
maintenance.
(81) Comment: One commenter
suggests that data in the Economic
Analysis on agricultural establishments
in Greenlee County are incorrect. The
commenter provides information on
ranching operations on Eagle Creek. The
comment states that the Four Drag
Ranch, Seven Cross A Ranch, Anchor
Ranch, Double Circle Ranch, and Tule
Ranch are located on Eagle Creek.
Our response: Appendix B, Exhibits
B–2, B–3, and B–4 provide data on the
number of farm operations, number of
ranching operations, and annual sales
by county, as reported by the National
Agricultural Statistics Survey. Section 2
presents the number of establishments
and employees in the Agriculture,
Forestry, Hunting, and Fishing Support
industries, as reported by the U.S.
Census. A note was added to Exhibit 2–
7 that clarifies the source of the data
used and also refers readers to
Appendix B, Exhibits B–2 through B–4.
Although specific ranches are not
named, Section 4 estimates that impacts
on grazing activities on Eagle Creek may
range from $5,000 to $126,000 over the
next 20 years (discounted at seven
percent).
(82) Comment: One commenter states
that the potential loss of the ability to
divert surface water and possibly
groundwater is the most important
economic, social, and environmental
consideration in the Verde River unit,
and that the cost associated with such
a loss of water is not calculated into the
examples provided in Chapter 7 of the
Draft Economic Analysis.
Our response: Chapter 7 of the FEA
focuses on potential impacts to
residential and commercial
development construction activities in
critical habitat areas. Issues related to
water use are discussed in Chapter 3 of
the analysis. Section 3.5.1 specifically
discusses water use in the Verde Valley,
and provides estimates of the number of
potentially affected surface water users
and groundwater wells. Potentially
affected agricultural lands within the
Verde River Complex are valued at
between $3.1 million and $30.3 million.
(83) Comment: One commenter states
that the Economic Analysis did not
discuss decreed water rights associated
with surface water diversion ditches
and how those decreed rights will be
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adversely impacted by the critical
habitat designation, or what data will be
relied upon in determining subflow.
Our response: Section 3 of the
Economic Analysis states that future
impacts on water users are possible due
to spikedace and loach minnow
conservation efforts if less water is made
available for diversion to accommodate
the spikedace and loach minnow. The
analysis also states that there are
currently no data that indicate whether
existing or future diversions of water
(including groundwater use) reduce
stream flow or modify hydrologic
conditions to a degree that adversely
impact the spikedace and loach minnow
or their habitat. In addition, hydrologic
models are unavailable to assess the role
of any specific groundwater pumping
activity or surface water diversion in
determining stream flow or other
hydrologic conditions within critical
habitat. As such, this analysis does not
quantify the probability or extent to
which water use would need to be
curtailed or modified to remedy impacts
on spikedace and loach minnow. It
does, however, provide information on
the potential scale of the economic
impacts that could occur if requirements
associated with spikedace and loach
minnow conservation result in changes
in water diversions or conveyance.
Specifically, the analysis addresses
potential impacts on water used for
irrigated agriculture. The analysis states
that it is possible that irrigation
activities could be affected if farmers
make efforts to maintain adequate water
quantity and flow for the spikedace and
loach minnow in the future. Because
agricultural water use comprises 98
percent of surface water use and 81
percent of groundwater use in counties
that contain critical habitat, it appears
most likely that, if additional water
supplies are needed for these species,
they would come from current
agricultural water use. Thus, the
analysis assumes that to accommodate
spikedace and loach minnow, farmers
may give up water and cease to farm,
resulting in losses of agricultural land
value. Should irrigated agriculture be
curtailed to accommodate spikedace
and loach minnow, approximately 830
acres within proposed critical habitat, or
6,310 acres that fall in the vicinity of
critical habitat that are currently
irrigated for cropland agriculture could
be retired from production. The
irrigated crop production at risk of being
lost is valued at approximately $4.5
million ($2005) within proposed critical
habitat areas, or approximately $38.5
million ($2005) including lands that
rely on water diverted from proposed
critical habitat. Thus, the total cropland
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value potentially foregone ($38.5
million in $2005) is included in high
end estimates of impacts on water use.
(84) Comment: One commenter states
that nothing was included on the costs
to retire farm and ranchland along the
San Pedro River.
Our response: Section 3 of the
Economic Analysis identifies, to the
extent possible, water users potentially
affected by spikedace and loach
minnow conservation efforts. Exhibit 3–
7 includes a description of 64 acres of
cropland that fall within the San Pedro
River segment, and 720 acres of
cropland that fall within the vicinity of
proposed critical habitat. These acres
are valued at $394,000 to $4.5 million
(2005 dollars).
(85) Comment: Two commenters state
that the Economic Analysis fails to
consider impacts of the rule on the
Arizona Water Settlements Act of 2004,
Public Law 108–451.
Our response: Section 3.5.5 of the
FEA provides additional detail provided
by the commenters about the 2004
Arizona Water Settlements Act (Pub. L.
108–451) as it relates to the proposed
stretch of the Gila River in New Mexico.
(86) Comment: One commenter states
that the Economic Analysis makes no
attempt to quantify the impacts to
farming activities in the Gila Valley. The
commenter further states that the
Service cannot simply declare that, due
to data and model limitations, the
analysis is not able to answer the
question of whether impacts to water
users are likely.
Our response: Section 3.5.3 of the
FEA discusses potential impacts of
spikedace and loach minnow
conservation activities on the Middle
Gila/Lower San Pedro/Aravaipa Creek
Complex (Complex 3). As stated in the
analysis, ‘‘approximately 135 acres of
lands used for cropland irrigation are
located within Complex 3, and 1,220
acres are located in the valley that
contains proposed critical habitat. The
value of croplands in proposed critical
habitat is approximately $11,000, while
lands in the vicinity of proposed critical
habitat are valued at approximately $7.5
million. Approximately $15,000 in
Natural Resource Conservation Service
funding was allocated to farms in
proposed critical habitat areas on these
segments in 2005.’’ The value of these
at-risk agricultural lands are included in
impact estimates for this unit. Thus,
while the Economic Analysis does not
identify the likelihood of these impacts,
it does quantify them and include them
in potential future cost estimates.
(87) Comment: One commenter states
that the projected project modification
costs are estimated at $13,500 per water
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project resulting from the critical habitat
designation, and that this estimate is
based on estimates of costs at Fort
Huachuca. The commenter states that
project modification costs at Fort
Huachuca are costing ‘‘tens-of-millions
of dollars.’’ The commenter states that
Phelps Dodge has recently incurred
costs in excess of one million dollars for
southwestern willow flycatcher
mitigation, and thus water project cost
estimates for spikedace and loach
minnow critical habitat are low.
Our response: The FEA includes
specific cost estimates for particular
water projects expected to occur within
proposed critical habitat areas in
Chapter 3 of the FEA. Typical project
modifications for water projects in the
past have included minimizing
activities within the wetted channel,
ensuring no pollutants enter surface
waters, replanting riparian vegetation,
monitoring for up to ten years, and
conducting research studies. Future
project modifications are assumed to be
similar to those associated with a lowflow gauge installation to measure flow
in the Verde River that occurred as part
of a section 404 permit from U.S. Army
Corps of Engineers, or $13,500 per
project. Costs associated with the past
consultation on Fort Huachuca are not
included as part of these estimates, nor
are they included in the analysis, as Fort
Huachuca falls well outside the
boundaries of proposed critical habitat,
and downstream of proposed habitat
areas. Quantified costs associated with
water-related projects also include
potential costs associated with costs of
retiring agricultural cropland in order to
provide sufficient water for the species.
Potential costs to municipal, industrial
and Tribal water use are also discussed,
but not quantified. Expenditures made
on behalf of the southwestern willow
flycatcher are not relevant to this
analysis.
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Mining Impacts
(88) Comment: One commenter states
that the Economic Analysis failed to
adequately evaluate impacts to mining
operations and water use in the arid
southwest as a result of the proposed
designation, resulting in a dramatic
understatement of economic impacts.
The commenter commissioned a report
that estimates economic impacts to
Phelps’s Dodge’s operations at the
Tyrone Mine alone to exceed $100
million.
Our response: Section 5 of the FEA
evaluates potential impacts to mining
operations. Section 3 of the analysis
addresses impacts to water use that may
occur in order to protect the spikedace
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and loach minnow. Specifically, the
analysis states that:
‘‘While few active mineral mining
activities occur within the proposed critical
habitat, the mining industry has expressed
concern that water use by existing or
potential mining operations could be affected
by endangered species conservation
activities, particularly the designation of
critical habitat. Critical to an understanding
of the potential for impacts on water
diversions or conveyance is an
understanding of the probability and
magnitude of any such changes. As detailed
in this section, there is currently no data that
indicates whether existing or future
diversions of water for mining activities
(including groundwater use) reduces stream
flow or modifies hydrologic conditions to a
degree that adversely impacts the spikedace
and loach minnow or their habitat. In
addition, hydrologic models are unavailable
to assess the role of any specific mining
facility’s groundwater pumping or surface
water diversions in determining stream flow
or other hydrologic conditions within critical
habitat. As such, this analysis does not
quantify the probability or extent to which
water use for mining purposes would need to
be curtailed or modified to remedy impacts
on spikedace and loach minnow.
Given these data and model limitations,
this analysis does not answer the question of
whether impacts to mining operations are
likely (i.e., the probability of such impacts),
or define the expected magnitude of these
impacts. It does, however, provide
information on the potential scale of the
economic impact that could occur if
requirements associated with spikedace and
loach minnow conservation result in changes
in water diversions or conveyance.
Specifically, to allow for an understanding of
the economic activities that could be at risk
if modifications to water use or conveyance
are required, this analysis provides data on
the location of mining activities potentially
associated with CHD (critical habitat
designation) areas, as well as data on the
regional economic importance of these
operations.’’
The commenter provides hypothetical
situations in which water currently used
by mining operations may be lost to
mining activities, and calculates a value
of the lost water rights and associated
replacement costs. While we do not
disagree that, should the water be lost
to mining activities, such costs could
occur, there remains considerable
uncertainty as to the likelihood of such
events. Nonetheless, the revised
analysis includes estimates of potential
losses provided by the commenter in
Section 5 of the analysis, to provide
additional context for understanding the
potential magnitude of impacts, should
they occur.
(89) Comment: One commenter states
that the Economic Analysis does not
identify all of the Phelps Dodge mines
that may be affected by critical habitat
designation. Potentially affected mines
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include Morenci Mine, Tyrone Mine,
Christmas Mine, and United Verde
Mine. The commenter further states that
the Economic Analysis does not
consider potential effects to Phelps
Dodge grazing and agricultural activities
related to proposed critical habitat.
Our response: Section 5 of the Draft
Economic Analysis identified the
Morenci Mine, the Tyrone Mine, and
the Christmas Mine as being potentially
affected by proposed critical habitat.
Because the United Verde Mine falls
outside of proposed critical habitat and
has been inactive since 1953, it was not
specifically described in the Draft
Economic Analysis. The FEA now
includes a discussion of impacts to
United Verde Mine along with the other
mines. As described by the commenter,
current activities at the United Verde
Mine area primarily include leasing
water to agricultural activities. Potential
impacts of proposed critical habitat on
agricultural water use are addressed in
Section 3 of the FEA. Potential impacts
of proposed critical habitat on ranching
activities, for all landowners, are
addressed in Section 4 of the FEA.
(90) Comment: One commenter states
that the Economic Analysis fails to
consider the replacement costs
associated with water users that may be
impacted by the critical habitat
designation. These costs are extremely
high because water supplies in the west
are scarce and not easily replaceable.
Other costs relating to impacts on water
use not considered include search,
infrastructure, and lost profits from
curtailed operations at mining facilities.
Our response: The revised analysis
includes estimates of potential losses
provided by the commenter in Section
5 of the analysis. As stated in Response
87, it is not contested that, should water
be lost to mining activities as a result of
conservation activities for the spikedace
and loach minnow, costs to the mining
industry would be incurred. However,
considerable uncertainty exists as to the
likelihood, magnitude, and specific
costs of water losses.
Small Business Impacts
(91) Comment: One commenter states
that the Economic Analysis would be
clearer if it reported the number of
developers that are likely to be affected
in the small business analysis.
Our response: Appendix B, Small
Business and Energy Impacts Analyses,
considers the extent to which the
analytic results presented in the main
body of the FEA reflect potential future
impacts to small businesses. Appendix
B has been revised to provide additional
details about the number of developers
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potentially affected by proposed critical
habitat designation.
(92) Comment: One commenter states
that the Economic Analysis would be
stronger if it provided data on the
impact of critical habitat on small
entities that thrive on the area’s
recreational activities. To collect such
information, the commenter suggests
that the Service seek public input on the
reduction of fishing activity if stocking
is curtailed.
Our response: Appendix B considers
the extent to which the analytic results
presented in the main body of the FEA
reflect potential future impacts to small
businesses. As stated in the Appendix,
‘‘the future impact of proposed CHD on
the stocking regimes in these reaches is
unknown, as is the reduction in fishing
activity that would occur if stocking is
curtailed. Further, it is unknown
whether non-native fish stocking may be
replaced with catchable native fish
stocking (e.g. Apache trout). Thus, this
analysis estimates the value of angler
days at risk if sportfish stocking were
discontinued on these reaches as part of
the high end estimates. Angling trips are
valued at approximately $8.6 million
over 20 years (or $816,000 annually),
assuming a discount rate of 7 percent.
It should be noted that because State
fish managers typically identify
alternative sites for stocked fish when
areas are closed to stocking, these angler
days are likely to be redistributed to
other areas rather than lost altogether.
Thus, the high-end estimate does not
consider the possibility that rather than
not fishing at all, recreators will visit
alternative, less desirable fishing sites.
Existing models of angler behavior in
these areas were not available to refine
this estimate.’’ The Appendix further
states that ‘‘if, as in the high-end
estimate of impacts, angler trips to the
two stream reaches that currently stock
non-native fish are not undertaken,
localized impacts on anglers and, in
turn, small businesses that rely on
fishing activities could occur. These
impacts would be spread across a
variety of industries including food and
beverage stores, food service and
drinking places, accommodations,
transportation, and sporting goods.’’ To
conduct a survey of specific potential
effects of closures is beyond the scope
of this analysis. The revised Appendix
does, however, include a reference to
public comment received regarding a
past store closure that occurred due to
past area closures.
(93) Comment: One commenter states
that the average number of acres in
farms applied in the small business
analysis is skewed due to the inclusion
of a few very large (non small-business)
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farms. The commenter suggests that
using the median farm size would
improve results. The commenter also
states that, because the Economic
Analysis does not provide data on the
impacts on beef cattle ranching
operations, it is difficult to determine
whether there will be a significant
impact on this industry. The commenter
also states that using the average
revenues of all ranching operations,
including both large and small business,
likely skews the average to the upper
end by including a few large ranches.
Our response: Appendix B considers
the extent to which the analytic results
presented in the main body of the FEA
reflect potential future impacts to small
businesses. Appendix B has been
revised to estimate the number of
affected farms using average revenues as
well as using median revenues.
Appendix B does provide data on the
impact to beef cattle ranching
operations, including revenue data for
beef cattle ranching operations, the
number of ranches in each county, and
the expected impact of the proposed
rule on these entities. While specific
revenue data for affected small beef
cattle ranches is not readily available, a
proxy for this is developed in the
revised Appendix by eliminating the
revenue outlier (Pinal County) from the
average revenue estimates. This results
in an estimate of average revenues for
small ranches in the region of $42,500.
The analysis therefore estimates that
approximately 72 small ranching
operations may experience a reduction
in revenues of between 0.9 and 22
percent of annual revenues annually.
These ranches represent 4.7 percent of
ranches in affected counties, or one
percent of ranches in New Mexico and
Arizona.
(94) Comment: One commenter states
that estimated average revenue for
ranchers in Greenlee County of
$133,000 is incorrect, and that, given
the current drought, it is likely to be too
high.
Our response: Appendix B of the FEA
lists the average revenues for cattle and
calf ranches in Greenlee County as
$19,100. We have incorporated an
acknowledgement that revenue is
dependent on, and may fluctuate with,
natural conditions such as drought.
(95) Comment: One commenter states
that there is no attempt to define
baseline conditions in order to conduct
a ‘‘with’’ and ‘‘without’’ analysis as
prescribed by Executive Order 12866.
Our response: The economic analysis
estimates the total cost of species
conservation activities without
subtracting the impact of pre-existing
baseline regulations (i.e., the cost
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estimates are fully co-extensive). In
2001, the U.S. 10th Circuit Court of
Appeals instructed the Service to
conduct a full analysis of all of the
economic impacts of proposed critical
habitat designation, regardless of
whether those impacts are attributable
co-extensively to other causes (New
Mexico Cattle Growers Ass’n v.
U.S.F.W.S., 248 F.3d 1277 (10th Cir.
2001)). The economic analysis complies
with direction from the U.S. 10th
Circuit Court of Appeals.
Summary of Changes From Proposed
Rule
Based upon our review of the public
comments, economic analysis,
environmental assessment, issues
addressed at the public hearings, and
any new relevant information that may
have become available since the
publication of the proposal, we
reevaluated our proposed critical habitat
designation and made changes as
appropriate. Other than minor
clarifications and incorporation of
additional information on the species’
biology, status, and threats, this final
rule differs from the proposal by the
following:
(1) We excluded lands of the San
Carlos Apache, White Mountain
Apache, and Yavapai-Apache Tribes
pursuant to section 4(b)(2) of the Act
(see ‘‘Exclusions Under Section 4(b)(2)
of the Act’’ section below).
(2) We excluded lands owned by the
Phelps Dodge Corporation on the Gila
River and Eagle Creek pursuant to
section 4(b)(2) of the Act (see
‘‘Exclusion Under Section 4(b)(2) of the
Act’’ section below.)
(3) We excluded a portion of the
Verde River pursuant to section 4(b)(2)
of the Act (see ‘‘Exclusion Under
Section 4(b)(2) of the Act’’ section
below.)
(4) We modified the primary
constituent elements for clarity and to
reflect additional information received
during the public comment period.
(5) We made technical corrections to
township, range, section legal
descriptions, the confluence point of the
East Fork Black and North Fork East
Fork Black rivers, and the upstream
endpoint on Eagle Creek. Overall
mileage from the proposed to the final
designation was slightly reduced by
approximately 0.5 river miles as a result
of these corrections.
(6) Eagle Creek is no longer included
in the designation of critical habitat for
the spikedace, as further review of the
available information shows this area
does not meet our definition of
occupied, and therefore does not meet
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our criteria for defining critical habitat
for the spikedace.
Critical Habitat
Critical habitat is defined in section 3
of the Act as—(i) The specific areas
within the geographical area occupied
by a species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features (I) essential to the conservation
of the species and (II) that may require
special management considerations or
protection; and (ii) specific areas
outside the geographical area occupied
by a species at the time it is listed, upon
a determination that such areas are
essential for the conservation of the
species. Conservation, as defined under
section 3 of the Act, means to use and
the use of all methods and procedures
necessary that bring any endangered
species or threatened species to the
point at which the measures provided
pursuant to the Act are no longer
necessary. Such methods and
procedures include, but are not limited
to, all activities associated with
scientific resources management such as
research, census, law enforcement,
habitat acquisition and maintenance,
propagation, live trapping, and
transplantation, and, in the
extraordinary case where population
pressures within a given ecosystem
cannot be otherwise relieved, regulated
taking.
Critical habitat receives protection
under section 7 of the Act through the
prohibition against destruction or
adverse modification of critical habitat
with regard to actions carried out,
funded, or authorized by a Federal
agency. Section 7 requires consultation
on Federal actions that are likely to
result in the destruction or adverse
modification of critical habitat. The
designation of critical habitat does not
affect land ownership or establish a
refuge, wilderness, reserve, preserve, or
other conservation area. Such
designation does not allow government
or public access to private lands.
Section 7 is a purely protective measure
and does not require implementation of
restoration, recovery, or enhancement
measures.
To be included in a critical habitat
designation, the habitat within the area
occupied by the species must first have
features that are essential to the
conservation of the species. Critical
habitat designations identify, to the
extent known, using the best scientific
data available, habitat areas that provide
essential life cycle needs of the species
(i.e., areas on which are found the
primary constituent elements, as
defined at 50 CFR 424.12(b)).
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Habitat occupied at the time of listing
may be included in critical habitat only
if the features essential to the
conservation of the species therein may
require special management or
protection. Thus, we do not include
areas where existing management is
sufficient to conserve the species. (As
discussed below, such areas may also be
excluded from critical habitat pursuant
to section 4(b)(2).) Accordingly, when
the best available scientific data do not
demonstrate that the conservation needs
of the species require additional areas,
we will not designate critical habitat in
areas outside the geographical area
occupied by the species at the time of
listing. An area currently occupied by
the species but that was not known to
be occupied at the time of listing will
likely, but not always, be essential to the
conservation of the species and,
therefore, included in the critical habitat
designation.
The Service’s Policy on Information
Standards Under the Endangered
Species Act, published in the Federal
Register on July 1, 1994 (59 FR 34271),
along with Section 515 of the Treasury
and General Government
Appropriations Act for Fiscal Year 2001
(Pub. L. 106–554; H.R. 5658) and the
associated Information Quality
Guidelines issued by the Service
provide criteria and establish
procedures to ensure that decisions
made by the Service represent the best
scientific data available. They require
Service biologists, to the extent
consistent with the Act and with the use
of the best scientific data available, to
use primary and original sources of
information as the basis for
recommendations to designate critical
habitat. When determining which areas
are critical habitat, the Service generally
uses the listing package as a primary
source of information. Additional
information sources include the
recovery plan for the species, articles in
peer-reviewed journals, conservation
plans developed by States and counties,
scientific status surveys and studies,
biological assessments, or other
unpublished materials and expert
opinion or personal knowledge. All
information is used in accordance with
the provisions of Section 515 of the
Treasury and General Government
Appropriations Act for Fiscal Year 2001
(Pub. L. 106–554; H.R. 5658) and the
associated Information Quality
Guidelines issued by the Service.
Section 4 of the Act requires that we
designate critical habitat on the basis of
the best scientific and commercial data
available. Habitat is often dynamic, and
species may move from one area to
another over time. Furthermore, we
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recognize that designation of critical
habitat may not include all of the
habitat areas that may eventually be
determined to be necessary for the
recovery of the species. For these
reasons, critical habitat designations do
not signal that habitat outside the
designation is unimportant or may not
be required for recovery.
Areas that support populations, but
are outside the critical habitat
designation, will continue to be subject
to conservation actions implemented
under section 7(a)(1) of the Act and to
the regulatory protections afforded by
the section 7(a)(2) jeopardy standard, as
determined on the basis of the best
available information at the time of the
action. Federally funded or permitted
projects affecting listed species outside
their designated critical habitat areas
may still result in jeopardy findings in
some cases. Similarly, critical habitat
designations made on the basis of the
best available information at the time of
designation will not control the
direction and substance of future
recovery plans, habitat conservation
plans, or other species conservation
planning efforts if new information
available to these planning efforts calls
for a different outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i)
of the Act and regulations at 50 CFR
424.12, in determining which areas to
propose as critical habitat, we consider
those physical and biological features
(primary constituent elements (PCEs))
that are essential to the conservation of
the species, and within areas occupied
by the species at the time of listing, that
may require special management
considerations and protection. These
include, but are not limited to, space for
individual and population growth and
for normal behavior; food, water, air,
light, minerals or other nutritional or
physiological requirements; cover or
shelter; sites for breeding, reproduction,
or rearing of offspring; and habitats that
are protected from disturbance or are
representative of the historical,
geographical, and ecological
distributions of a species.
We determined the primary
constituent elements for spikedace and
loach minnow from studies on their
habitat requirements and population
biology including, but not limited to,
Barber et al. 1970, pp. 10–12; Minckley
1973; Anderson 1978, p. 7, 17, 31–37,
41, 54; Barber and Minckley 1983, pp.
34–39; Turner and Tafanelli 1983, pp.
15–20; Propst et al. 1986, p. 40–72, 82–
83; Hardy et al. 1990, pp. 19–20, 39;
Douglas et al. 1994, pp. 12–14; Rinne
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and Stefferud 1996, p. 14–17; and
Velasco 1997, pp. 5–6.
Spikedace
The specific primary constituent
elements required for the spikedace are
derived from the biological needs of the
species as described in the Background
section of this document and below.
Space for Individual and Population
Growth and Normal Behavior
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Habitat Preferences
Spikedace have differing habitat
requirements through their various life
stages. Generally, adult spikedace prefer
intermediate-sized streams with
moderate to swift currents over sand,
gravel, and cobble substrates (i.e.,
stream bottoms). Preferred water depths
of adults are less than 11.8 in (30 cm)
(Barber and Minckley 1966, p. 321;
Minckley 1973, p. 114; Anderson 1978,
p. 17; Rinne and Kroeger 1988, p. 1;
Hardy 1990, pp. 19–20, 39; Sublette et
al. 1990, p. 138; Rinne 1991, pp. 8–10;
Rinne 1999, p. 6). As discussed below,
larval and juvenile spikedace occupy
different habitats than adults.
Flow Velocities. Studies on flow
velocity have been completed on the
Gila River, Aravaipa Creek, and the
Verde River. In these studies, flows
measured in habitat occupied by adult
spikedace ranged from 23.3 to 70.0 cm/
second (9.2–27.6 in/second) (Barber and
Minckley 1966, p. 321; Hardy 1990, pp.
19–20, 39; Propst et al. 1986, p. 41;
Rinne 1991, pp. 9–10; Rinne and
Kroeger 1988, p. 1; Schreiber 1978, p. 4).
Studies on the Gila River indicated that
juvenile spikedace occupy areas with
velocities of approximately 16.8 cm/
second (6.6 in/second) while larval
spikedace were found in velocities of
8.4 cm/second (3.3 in/second) (Propst et
al. 1986, p. 41).
Propst et al. 1986 (pp. 47–49)
examined flow velocities in occupied
spikedace habitats as they varied by
season. During the warm season (June–
November), occupied spikedace habitats
in the Gila River had mean flow
velocities of 19.3 in/second (49.1 cm/
second) at one site and 7.4 in/second
(18.8 cm/second) at the second site.
During the cold season (December–
May), mean flow velocities at these
same sites were 15.5 in/second (39.4
cm/second) and 8.4 in/second (21.4 cm/
second). It is believed that spikedace
seek areas in the stream that offer
warmer water temperatures during
cooler seasons to offset their decreased
metabolic rates. Where water depth
remains fairly constant throughout the
year (e.g., the first site), slower
velocities provided pockets of warmer
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water temperatures in the stream. In
areas of fairly constant flow velocities
(e.g., the second site), warmer water
temperatures were found in those
portions of the stream with shallower
water (Propst et al. 1986, pp. 47–49).
Larval and juvenile spikedace, which
occupy different habitats than adults,
tend to occupy shallow, peripheral
portions of streams that have slower
currents (Anderson 1978, p.17; Propst et
al. 1986, pp. 40–41). Once they emerge
from the gravel of the spawning riffles,
spikedace larvae disperse to stream
margins where water velocity is very
slow or still. Larger larval and juvenile
spikedace (those fish 1.0 to 1.4 inches
(25.4 to 35.6 mm) in length) occurred
over a greater range of water velocities
than smaller larvae, but still occupied
water depths of less than 12.6 inches
(32.0 cm) (Propst et al. 1986, p. 40).
Juveniles and larvae are also
occasionally found in quiet pools or
backwaters (e.g., pools that are
connected with, but out of, the main
river channel) lacking streamflow
(Sublette et al. 1990, p. 138).
Outside of the breeding season, which
occurs between April and June, eighty
percent of the spikedace collected in a
Verde River study used run and glide
habitat. For this study, a glide was
defined as a portion of the stream with
a lower gradient (0.3 percent), versus a
run which had a slightly steeper
gradient (0.3–0.5 percent) (Rinne and
Stefferud 1996, p. 14). Spikedace in the
Gila River were most commonly found
in riffle areas of the stream with
moderate to swift currents (Anderson
1978, p. 17) and some run habitats (J.M.
Montgomery 1985, p. 21), as were
spikedace in Aravaipa Creek (Barber
and Minckley 1966, p. 321).
Seasonal differences in habitats
utilized by spikedace have been noted
in the upper Gila drainage, for both the
winter and breeding seasons. For
example, spikedace were found to use
shallower habitats (<6.6 inches, <16.8
cm) in the winter, and deeper habitats
(6.6 to 12.6 inches, 16.8–32.0 cm)
during warmer months (Propst et al.
1986, p. 47).
Specific habitat usage has been noted
for the breeding season as well. During
the breeding season, female and male
spikedace become segregated, with
females occupying deeper pools and
eddies and males occupying riffles
flowing over sand and gravel beds in
water approximately 3.1 to 5.9 inches
(7.9–15.0 cm) deep. Females then enter
the riffles occupied by the males before
ova are released into the water column
(Barber et al. 1970, pp.11–12).
Streams in the southwestern United
States have a wide fluctuation in flows
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and some are periodically dewatered.
While portions of stream segments
included in this designation may
experience dry periods, they are still
considered important because the
spikedace is adapted to stream systems
with fluctuating water levels. While
they can not persist in dewatered areas,
spikedace will use these areas as
connective corridors between occupied
or seasonally occupied habitat when
they are wetted.
Substrates. Spikedace are known to
occur in areas with low to moderate
amounts of fine sediment and substrate
embeddedness (filling in of spaces by
fine sediments), which are important
features for healthy development of
eggs. Spawning has been observed in
areas with sand and gravel beds and not
in areas where fine materials of a
particle size less than sand coats the
sand or gravel substrate, as described
above. Additionally, low to moderate
fine sediments ensure that eggs remain
well-oxygenated and will not suffocate
due to sediment deposition (Propst et al.
1986, p. 40).
Spikedace were found over sand and
gravel substrates in the glide-run and
low-gradient riffle habitats in both the
upper Verde (Rinne and Stefferud 1996,
p. 21) and the upper Gila (Propst et al.
1986, p. 40; Rinne and Deason 2000, p.
106). In a study of a small portion of the
Verde River, spikedace were found in
glide-run habitats where substrates were
characterized by approximately 29
percent sand or fines (silty sand) (Rinne
2001, p. 68). In other studies of the
Verde River over a two-year period,
spikedace were found in areas with a
percentage of fine content substrate that
varied from 1 to 28 percent (Rinne 2001,
p. 68). Neary et al. (1996, p. 24) noted
that spikedace were found in habitats
with substrates of less than 10 percent
sand. While there is some variability in
the percent of sand or fine substrate in
occupied spikedace habitat, Neary et al.
(1996, p. 24) concluded that, based on
the higher density of spikedace present
in areas with lower percentages of sand
in the substrate, spikedace favored
habitats with lower sand content.
Substrates are, in part, a reflection of
the gradients and velocities of the
streams in which they are found. Sand
and gravel typically decrease as gradient
and velocity increase (Rinne and
Stefferud 1996, p. 14). Spikedace
numbers in the Verde River increased
almost three times (from 18 to 52
individuals) when the fine component
of the substrate decreased from about 27
percent down to 7 percent (Neary et al.
1996, p. 26), indicating that spikedace
prefer habitats with lower amounts of
fines. Sand content in all glide-run
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spikedace habitats in the Verde and Gila
Rivers in 2000 was 18 and 20 percent
(Rinne 2001, p. 68). However, because
substrates are determined in part by
gradient and velocity of the stream, the
type of substrate should not be used
alone in determining suitable spikedace
habitat.
Sixty percent of spikedace larvae in
the Gila River were found over sanddominated substrates, while 18 percent
were found over gravel, and an
additional 18 percent found over
cobble-dominated substrates. While 45
percent of juvenile spikedace were
found over sand substrates, an
additional 45 percent of the juveniles
were found over gravel substrates, with
the remaining 9 percent associated with
cobble-dominated substrates (Propst et
al. 1986, p. 40).
The degree of substrate embeddedness
may also affect the prey base for
spikedace. As discussed below, mayflies
constitute a significant portion of the
spikedace diet. Suitable habitat for some
mayflies includes pebbles or gravel for
clinging (Pennak 1978, p. 539). Excess
sedimentation would cover or blanket
smaller pebbles and gravel, resulting in
a lack of suitable habitat for mayflies,
and a subsequent decrease in available
prey items for spikedace.
Flooding. Rainfall in the southwest is
generally characterized as bimodal, with
winter rains of longer duration and less
intensity and summer rains of shorter
duration and higher intensity. As we
discuss below, periodic flooding
appears to benefit spikedace in three
ways: (1) Removing excess sediment
from some portions of the stream; (2)
removing nonnative fish species from a
given area; and (3) increasing prey
species diversity.
Flooding in Aravaipa Creek has
resulted in the transport of heavier loads
of sediments such as cobble, gravel, and
sand that are deposited where the
stream widens, gradient flattens, and
velocity and turbulence decrease. Dams
formed by such deposition can
temporarily cause water to back up and
break into braids downstream of the
dam. The braided areas provide
excellent nurseries for larval and
juvenile fishes (Velasco 1997, pp. 28–
29).
On the Gila River in New Mexico,
flows fluctuate seasonally with
snowmelt, causing spring pulses and
occasional floods, and late-summer or
monsoonal rains producing floods of
varying intensity and duration. These
high flows benefit spikedace spawning
and foraging habitat (Propst et al. 1986,
p. 3) as described above. Peak floods can
modify channel morphology and sort
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and rearrange stream bed materials
(Stefferud and Rinne 1996, p. 80).
Floods likely benefit native fish by
breaking up embedded bottom materials
(Mueller 1984, p. 355). A study of the
Verde River analyzed the effects of
flooding in 1993 and 1995, finding that
these floods had notable effects on both
native and nonnative fish species.
Among other effects, these floods on the
Verde River either stimulated spawning
or enhanced recruitment of three of the
native species or may have eliminated
one of the nonnative fish species (Rinne
and Stefferud 1997, pp. 159, 162;
Stefferud and Rinne 1996, p. 80).
Minckley and Meffe 1987 (pp. 99,
100) found that flooding, as part of a
natural hydrograph, may temporarily
remove nonnative fish species, which
are not adapted to flooding. Thus
flooding consequently removes the
competitive pressures of nonnative fish
species on native fish species which
persist following the flood. Minckley
and Meffe (1987, p. 99–100) studied the
differential responses of native and
nonnative fishes in seven unregulated
and three regulated streams or stream
reaches that were sampled before and
after major flooding noted that fish
faunas of canyon-bound reaches of
unregulated streams invariably shifted
from a mixture of native and nonnative
fish species to predominantly, and in
some cases exclusively, native forms
after large floods. Samples from
regulated systems indicated relatively
few or no changes in species
composition due to releases from
upstream dams at low, controlled
volumes. However, during emergency
releases, effects to nonnative fish
species were similar to those seen with
flooding on unregulated systems.
There is some variability in fish
response to flooding. Some nonnative
species, such as smallmouth bass
(Micropterus dolomieui) and green
sunfish (Lepomis cyanellus), appear to
be partially adapted to flooding, and
often reappear in a few weeks (Minckley
and Meffe, p. 100). In addition,
Stefferud and Rinne (1996, p. 75) found
that late-winter flooding affected the
entire fish community, either
stimulating reproduction or promoting
recruitment (at least among the largersize fishes), and possibly eliminating
some nonnative species.
The onset of flooding also
corresponds with an increased diversity
of food items for spikedace. Reductions
in the mainstream invertebrates, such as
mayflies, cause the fish to expand its
food base in an opportunistic manner.
In addition, inflowing flood waters carry
terrestrial invertebrates, such as ants,
bees, and wasps (Hymenopterans), into
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aquatic areas (Barber and Minckley
1983, p.39).
Stream Gradient. Spikedace occupy
streams with low to moderate gradients
(Propst et al. 1986, p. 3; Rinne and
Stefferud 1996, p. 14; Stefferud and
Rinne 1996, p. 21; Sublette et al. 1990,
p. 138). Specific gradient data are
generally lacking, but the gradient of
occupied portions of Aravaipa Creek
and the Verde River varied between
approximately 0.3 to <1.0 percent
(Barber et al. 1970, p. 10; Rinne and
Kroeger 1988, p. 2; Rinne and Stefferud
1996, p. 14).
Habitat Protected From Disturbance or
Representative of the Historic
Geographical and Ecological
Distribution of a Species
Nonnative aquatic species. One of the
primary reasons for the decline of native
species is the presence of nonnative
fishes. Fish evolution in the arid
American west is linked to disruptive
geologic and climatic events that acted
in concert over evolutionary time to
decrease the availability and reliability
of aquatic ecosystems. The
fragmentation and reduction of aquatic
ecosystems resulted in a fish fauna that
was both diminished and restricted in
the arid west. Lacking exposure to a
wider range of species, western species
seem to lack the competitive abilities
and predator defenses developed by
fishes from regions where more species
are present (Douglas et al. 1994, pp. 9–
10). The introduction and spread of
nonnative species has been identified as
one of the major factors in the
continuing decline of native fishes
throughout North America and
particularly in the southwestern United
States (Miller 1961, p. 365, 377, 397–
398; Lachner et al. 1970, p. 22; Ono et
al. 1983, p. 90; Moyle 1986, pp. 28–34;
Moyle et al. 1986, pp. 416–423; Carlson
and Muth 1989, pp. 232–233; Fuller et
al. 1990, p. 1). Miller et al. (1989, p. 1)
concluded that nonnative species were
a causal factor in 68 percent of the fish
extinctions in North America in the last
100 years. For 70 percent of those fish
still extant, but considered to be
endangered or threatened, introduced
nonnative species are a primary cause of
the decline (Lassuy 1995, p. 392). In
Arizona, release or dispersal of recently
introduced nonnative aquatic organisms
is a continuing phenomenon (Rosen et
al. 1995, pp. 255–256, 258; U.S. Fish
and Wildlife Service 2001a, pp. 26–32).
Aquatic nonnative species are
introduced and spread into new areas
through a variety of mechanisms,
intentional and accidental, authorized
and unauthorized. Mechanisms for
nonnative dispersal in the southwestern
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United States include interbasin water
transfer, sport fish stocking,
aquaculture, aquarium releases,
baitbucket release (release of fish used
as bait by anglers), and biological
control (e.g., the introduction of one
species to control another species) (U.S.
Fish and Wildlife Service 2001a, pp. 13,
37).
In the Gila River basin, introduction
of nonnatives is considered a major
factor in the decline of all native fish
species (Minckley 1985, p. 20–21;
Williams et al. 1985, p. 1; Minckley and
Deacon 1991, p. 17). Aquatic and semiaquatic mammals, reptiles, amphibians,
crustaceans, mollusks (snails and
clams), insects, zoo- and phytoplankton,
parasites, disease organisms, algae, and
aquatic and riparian vascular plants that
are outside of their historical range have
all been documented to adversely affect
aquatic ecosystems (Cohen and Carlton
1995, pp. 1–8). As described below, the
nonnative fishes have been
demonstrated to pose a significant threat
to Gila River basin native fishes,
including spikedace and loach minnow
(Minckley 1985, p. 108–109; Williams et
al. 1985, p. 19). The aquatic ecosystem
of the central Gila River basin has
relatively small streams with warm
water and low gradients, and many of
the native aquatic species are small in
size. Therefore, much of the threat to
native fishes comes from small
nonnative fish species, as has also been
noted for southern Nevada aquatic
ecosystems (Deacon et al. 1964, p. 385).
Examples of this are the impacts of
mosquitofish (Gambusia affinis) and red
shiner (Cyprinella lutrensis), which may
compete with or prey upon native fish
in the Gila River basin (Meffe 1985, p.
173–174, 176–180; Douglas et al. 1994,
pp. 13–17).
The effects of nonnative fish
competition on spikedace can be
classified as either interference or
exploitive. Interference competition
occurs when individuals directly affect
others, such as by fighting, producing
toxins, or preying upon them (Schoener
1983, p. 257). Exploitive competition
occurs when individuals affect others
indirectly, such as through use of
common resources (Douglas et al. 1994,
p. 14).
Nonnative fishes known to occur
within the historical range of the
spikedace include channel catfish
(Ictalurus punctatus), flathead catfish
(Pylodictis olivaris), red shiner, fathead
minnow (Pimephales promelas), green
sunfish (Lepomis cyanellus), largemouth
bass (Micropterus salmoides),
smallmouth bass (Micropterus
dolomieui), rainbow trout (Oncorynchus
mykiss), mosquitofish, carp (Cyprinus
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carpo), bluegill (Lepomis macrochiris),
yellow bullhead (Ameiurus natalis),
black bullhead (Ameiurus melas), and
goldfish (Carassius auratus) (AGFD
Native Fish Database 2005, ASU 2002).
Additionally, as discussed below,
nonnative parasites introduced
incidentally with nonnative species may
threaten spikedace populations.
Although parasites are normal in fish
populations and typically do not cause
mortality in their host, the effects of
nonnative parasites can be significant,
especially when combined with other
stressors such as poor habitat conditions
(U.S. Geological Survey 2004, p. 1;
2005, p. 2–3).
There is evidence of the negative
impacts of nonnative predators on
native fishes for several stream reaches.
The effect of nonnative fish preying on
natives such as spikedace is classified as
interference competition. Channel
catfish, flathead catfish, and
smallmouth bass all prey on native
fishes including spikedace, as
evidenced by prey remains of native
fishes in the stomachs of these
predatory species (Propst et al. 1986, p.
82, Bonar et al. 2004, p. 13, 16–21).
Native fish species declines appear
linked to increases in nonnative fish
species. For example, in 1949, 52
spikedace were collected at Red Rock
while channel catfish composed only
1.65 percent of the 607 fish collected.
However, in 1977, only six spikedace
were located at the same site, and the
percentage of channel catfish had risen
to 14.5 percent of 169 fish collected.
The decline of spikedace and the
increase of channel catfish is likely
related (Anderson 1978, p. 51) because
of this correlation and the evidence of
predation by catfish on spikedace.
Similar interactions between native
and nonnative fishes were observed in
the upper reaches of the East Fork of the
Gila River. In this system, native fish
were limited, with spikedace being rare
or absent, while nonnative channel
catfish and smallmouth bass were
moderately common prior to 1983 and
1984 floods. Post-1983 flooding, adult
nonnative predators were generally
absent and spikedace were collected in
moderate numbers in 1985 (Propst et al.
1986, p. 83).
Green sunfish (Lepomis cyanellus) is
also thought to be a predator, likely
responsible for replacement of natives
like spikedace, through predation.
While no direct studies have been
completed on predation by green
sunfish on spikedace, they are a known
predator that occurs within occupied
spikedace areas.
Interference competition occurs with
species such as red shiner. Red shiner
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appear to be particularly detrimental to
spikedace because although spikedace
and shiners are naturally separated by
geography (i.e., allopatric), they occupy
essentially the same habitat types. Red
shiner has an inverse distribution
pattern to spikedace in that, generally,
where red shiner is present, spikedace
are absent (Minckley 1973, p. 138).
Where the two species occur together,
there is evidence of displacement of
spikedace to less suitable habitats that it
otherwise did not occupy (Marsh et al.
1989, pp. 67, 107). As a result, if red
shiners are present, suitable habitat
available for spikedace is reduced.
Range expansion and species recovery
may then be curtailed due to red shiner
presence.
One study focused on potential
impacts of red shiner on spikedace in
three areas; (1) Portions of the Gila River
and Aravaipa Creek having only
spikedace; (2) a portion of the Verde
River where spikedace and red shiner
have co-occurred for three decades; and
(3) a portion of the Gila River where red
shiner recently invaded areas and where
spikedace had never been recorded. The
study indicated that, for reaches where
only spikedace were present, spikedace
displayed a preference for slower
currents and smaller particles in the
substrate than were generally available
throughout the Gila River and Aravaipa
Creek systems. Where red shiner occur
in the Verde River, the study showed
that red shiner occupied waters that
were generally slower and with smaller
particle size in the substrate than were,
on average, available in the system. The
study concludes that spikedace, where
co-occurring with red shiner, move into
currents swifter than those selected
when in isolation, while red shiner
occupy the slower habitat, whether they
are alone or with spikedace (Douglas et
al. 1994, pp. 14–16).
Western mosquitofish were
introduced outside of their native range
to help control mosquitoes. Because of
their aggressive and predatory behavior,
mosquitofish may negatively affect
populations of small fish through
predation and competition (Courtenay
and Meffe 1989, p. 320, 322, 324).
Introduced mosquitofish have been
particularly destructive in the American
west where they have contributed to the
elimination or decline of populations of
federally threatened and endangered
species, such as the Gila topminnow
(Poeciliopsis occidentalis occidentalis)
(Courtenay and Meffe 1989, p. 323–324).
The Asian tapeworm
(Bothriocephalus acheilognathi) was
introduced into the United States via
imported grass carp in the early 1970s.
It has since become well established in
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the southeast and mid-southern United
States and has been recently found in
the southwest including the Gila Basin.
The definitive host in the life cycle of
the Asian tapeworm is cyprinid (fish in
the minnow family) fishes. There is a
potential threat to spikedace as well as
to the other native fishes in Arizona
because of the presence of this parasite
in the Gila Basin and the presence of
cyprinid fish. The Asian tapeworm
affects fish health in several ways. The
direct impacts to fish are through
impeding digestion of food as it passes
through the intestinal track, and loss of
nutrients as the worm feeds off the fish;
large enough numbers of worms cause
emaciation and starvation. An indirect
effect is that weakened fish are more
susceptible to infection by other
pathogens. This parasite can infest
many species of fish and is carried into
new areas along with nonnative fishes
or native fishes from contaminated
areas. Asian tapeworm may be a
significant source of mortality of other
fish species in the Colorado River basin
(U.S. Geological Survey 2004, p. 1,
2005, p. 2).
Anchor worm (Lernaea cyprinacea)
(Copepoda), also a nonnative species, is
an external parasite, and is unusual in
that it has little host specificity,
infecting a wide range of fishes and
amphibians. Additionally, infection has
been known to kill large numbers of fish
due to tissue damage and secondary
infection of the attachment site
(Hoffnagle and Cole 1997, p. 24).
Presence of this parasite in the Gila
River basin is a threat to the Gila chub
and other native fish. In July 1992, the
Bureau of Land Management (BLM)
found Gila chub that were heavily
parasitized by Lernaea cyprinacea in
Bonita Creek. These fish were likely
more susceptible to parasites due to
physiological stress as a result of
degraded habitat and decreased water
flows due to water withdrawals. Creef
and Clarkson (1993, p. 1, p. 5) suspected
that infestations by Lernaea cyprinacea
caused high mortality of stocked native
fish, razorback sucker (Xyrauchen
texanus) and Colorado pikeminnow
(Ptycocheilus lucius).
The nonnative parasite
Ichthyophthirius multifiliis (‘‘Ich’’) is a
potential threat to spikedace. ‘‘Ich’’
disease has occurred in some Arizona
streams, probably favored by high
temperatures and crowding as a result of
drought (Mpoame 1982, p. 46). This
protozoan becomes embedded under the
skin and within the gill tissues of
infected fish. When the ‘‘Ich’’ matures,
it leaves the fish, causing fluid loss,
physiological stress, and sites that are
susceptible to infection by other
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pathogens. If ‘‘Ich’’ is present in large
enough numbers they can also impact
respiration because of damaged gill
tissue. This parasite has been observed
on the Sonora sucker (Catostomus
insignis), a species common throughout
the Gila River basin, and ‘‘Ich’’ does not
appear to be hostspecific, so it could be
transmitted to other species. ‘‘Ich’’ is
known to be present in Aravaipa Creek
(Mpoame 1982, p. 46).
Food
Food Items. Spikedace are active,
highly mobile fish that visually inspect
drifting materials both at the surface and
within the water column. Gustatory
inspection, or taking potential prey
items into the mouth before either
swallowing or rejecting it, is also
common (Barber and Minckley 1983, p.
37). Prey body size is small, typically
ranging from 0.08 to 0.20 inches (2 to 5
mm) long (Anderson 1978, p. 36).
Stomach content analysis of
spikedace determined that mayflies,
caddisflies, true flies, stoneflies, and
dragonflies are all prey items for
spikedace. In one Gila River study, the
frequency of occurrence was 71 percent
for mayflies, 34 percent for true flies,
and 25 percent for caddisflies (Propst et
al. 1986, p. 59). A second Gila River
study of four samples determined that
total food volume was comprised of 72.7
percent mayflies, 17.6 percent
caddisflies, and 4.5 percent true flies
(Anderson 1978, pp. 31–32). At
Aravaipa Creek, mayflies, caddisflies,
true flies, stoneflies, and dragonflies
were all prey items for spikedace, as
were some winged insects and plant
materials (Schreiber 1978, pp. 12–16,
29, 35–37).
At Aravaipa Creek, spikedace
consumed a total of 36 different prey
items. Mayflies constituted the majority
of prey items, followed by true flies. Of
the mayflies consumed, 36.5 percent
were adults, while 33.3 percent were
nymphs. Terrestrial invertebrates,
including ants, wasps, and spiders, were
also consumed, as were beetles, true
bugs, caddisflies, and water fleas
(Barber and Minckley 1983, pp. 34–38).
Spikedace diet varies seasonally
(Barber and Minckley 1983, pp. 34–35).
Mayflies dominated stomach contents in
July, but declined in August and
September, increasing in importance
again between October and June. When
mayflies were available in lower
numbers, spikedace consumed a greater
variety of foods, including true bugs,
true flies, beetles, and spiders.
Spikedace diet varies with age class as
well. Young spikedace, which measure
less than 0.9 inches (22.9 mm) long, fed
on a diversity of small-bodied
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invertebrates occurring in and on
sediments along the margins of the
creek. True flies were found most
frequently, but water fleas and aerial
adults of aquatic and terrestrial insects
also provide significant parts of the diet.
As juveniles grow and migrate into the
swifter currents of the channel, mayfly
nymphs (invertebrates between the
larval and adult life stages, similar to
juveniles) and adults increase in
importance (Barber and Minckley 1983,
pp. 36–37).
Spikedace are very dependent on
aquatic insects for sustenance, and the
production of the aquatic insects
consumed by spikedace occurs mainly
in riffle habitats (Propst et al. 1986, p.
59). As a result, habitat selection
influences food items found in stomach
content analyses. Spikedace in pools
had eaten the least diverse foods while
those from riffles contained a greater
variety of taxa, indicating that the
presence of riffles in good condition and
abundance help to ensure that a
sufficient number and variety of prey
items will continue to be available for
spikedace (Barber and Minckley 1983,
pp. 36–37, 40).
Aquatic invertebrates that constitute
the bulk of the spikedace diet have
specific habitat parameters of their own.
Mayflies, which constituted the largest
percentage of prey items, spend their
immature stages in fresh water. Mayfly
nymphs occur in all types of fresh
waters, wherever there is an abundance
of oxygen, but they are most
characteristic of shallow water. Mayflies
found in spikedace stomach content
analyses consisted of individuals from
several genera, with individuals from
the genus Baetidae constituting the
highest percentage of prey from the
mayfly order in the study by Schreiber
(1978, p. 36). Baetidae are free-ranging
species of rapid waters that maintain
themselves in currents by clinging to
pebbles. Spikedace also consumed
individuals from two other mayfly
genera (Heptageniidae and
Ephemerellidae), which are considered
‘‘clinging species’’ as they cling tightly
to stones and other objects and may be
found in greatest abundance in crevices
and on the undersides of stones (Pennak
1978, p. 539). The importance of gravel
and cobble substrates is illustrated by
the fact that these prey species, which
make up the bulk of the spikedace diet,
require these surfaces to persist.
Water Quality
Pollutants. Water with no or only
minimal pollutant levels is essential for
the survival of spikedace. Spikedace
occur in areas where mining,
agriculture, livestock operations, and
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road construction and use are prevalent.
Various pollutants are associated with
these types of activities. For spikedace,
waters should have low levels of
pollutants such as copper, arsenic,
mercury and cadmium; human and
animal waste products; pesticides;
suspended sediments; and gasoline or
diesel fuels (Baker 2005). In addition,
for freshwater fish, dissolved oxygen
should generally be greater than 3.5
cubic centimeters per liter (cc/l) (Bond
1979, p. 215). Below this, some stress
may occur.
Fish kills have been documented in
the San Francisco River (Rathbun 1969,
pp. 1–2) and the San Pedro River
(Eberhardt 1981, pp. 1–4, 6–9, 11–12,
14, 16, and Tables 2–8), both of which
are within the species’ historical range.
In both instances, leaching ponds
associated with copper mines released
waters into the streams, resulting in
elevated levels of toxic chemicals. For
the San Pedro River, this included
elevated levels of iron, copper,
manganese, and zinc. Both incidents
resulted in die-offs of species inhabiting
the streams. Eberhardt (1981, pp. 1, 3,
9, 10, 14–15) notes that no bottomdwelling aquatic insects, live fish, or
aquatic vegetation of any kind were
found for a 60-mi (97 km) stretch of
river in the area affected by the spill.
Rathbun (1969, pp. 1–2) reported
similar results for the San Francisco
River. The possibility for similar
accidents, or pollution from other
sources, exists throughout the ranges of
these species due to their proximity to
mines, communities, agricultural areas,
and major transportation routes.
Temperature. Temperatures of
occupied spikedace habitat vary with
time of year. In May, water temperatures
at Aravaipa Creek were uniformly
66.2 °F (19 °C) (Barber et al. 1970, p. 11).
Summer water temperatures remained
at no more than 80.6 °F (27 °C) at
Aravaipa Creek (Barber et al. 1970, p.
14), and at a mean of 66.7 °F (19.3 °C)
between June and November on the Gila
River in the Forks area (at the Middle,
West, and East Forks) and 69.4 °F
(20.8 °C) in the Cliff-Gila Valley (Propst
et al. 1986, p. 47). Winter water
temperatures ranged between 69.1 °F
(20.6 °C) in November down to 48.0 °F
(8.9 °C) in December at Aravaipa Creek
(Barber and Minckley 1966, p. 316).
Between December and May, mean
temperature in the Forks area was
46.0 °F (7.8 °C), and 53.1 °F (11.7 °C) in
the Cliff-Gila Valley (Propst et al. 1986,
p. 57). The overall range represented by
these measures is between 46–80.6 °F
(7.8–27.0 °C).
Recent studies by the University of
Arizona focused on temperature
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tolerances of spikedace. In the study,
fish were acclimated to a given
temperature, and then temperatures
were increased by 1 °C (33.8 °F) per day
until test temperatures were reached.
The study determined that no spikedace
survived exposure of 30 days at 34 or
36 °C (93.2 or 96.8 °F), and that 50
percent mortality occurred after 30 days
at 32.1 °C (89.8 °F). In addition, growth
rate was slowed at 32 °C (89.6 °F), as
well as at lower test temperatures of
10 °C and 4 °C (50 and 39.2 °F). Multiple
behavioral and physiological changes
were observed indicating that fish
became stressed at 30, 32, and 33 °C (86,
89.6, and 91.4 °F) treatments. The study
concludes that temperature tolerance in
the wild may be lower due to the
influence of additional stressors,
including disease, predation,
competition, or poor water quality.
Survival of fish in the fluctuating
temperature trials in the study likely
indicates that exposure to higher
temperatures for short periods during a
day would be less stressful to spikedace.
The study concludes that 100 percent
survival of spikedace at 30 °C (86 °F) in
the experiment suggests that little
juvenile or adult mortality would occur
due to thermal stress if peak water
temperatures remain at or below that
level (Bonar et al. 2005, pp. 7–8, 29–30).
Reproduction and Rearing of Offspring
As discussed above under flow
velocities, spikedace use a variety of
habitat types within the channel during
their reproductive cycle and at various
life stages. Although not typically
associated with pools, pools are used by
female spikedace during the breeding
season while males remained in riffle
habitats. Females leave the pools,
generally on the downstream end of the
riffle, and swim upstream to males in
riffle habitat (Barber et al. 1970, pp.11–
12). Unlike loach minnow that deposit
their eggs in a hole or depression,
spikedace spawn in shallow riffles and
scatter their gametes (reproductive cells)
into the water column. Spikedace eggs
are adhesive and develop among the
gravel and cobble of the riffles following
spawning. Spawning in riffle habitat
ensures that the eggs are well
oxygenated and are not normally subject
to suffocation by sediment deposition
due to the swifter flows found in riffle
habitats. However, after the eggs have
adhered to the gravel and cobble
substrate, excessive sedimentation
could cause suffocation of the eggs
(Propst et al. 1986, p. 40).
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Primary Constituent Elements for the
Spikedace
Pursuant to our regulations, we are
required to identify the known physical
and biological features (primary
constituent elements) essential to the
conservation of the spikedace. All
stream complexes designated as critical
habitat for the spikedace are occupied,
are within the species’ historic
geographic range, and contain sufficient
PCEs to support at least one life history
function.
Based on our current knowledge of
the life history, biology, and ecology of
the species and the requirements of the
habitat to sustain the essential life
history functions of the species, we have
determined that the primary constituent
elements essential to the conservation of
the spikedace are:
1. Permanent, flowing water with no
or low levels of pollutants, including:
a. Living areas for adult spikedace
with slow to swift flow velocities
between 20 and 60 cm/second (8 and 24
in/second) in shallow water between
approximately 10 cm (4 in) and 1 meter
(40 in) in depth, with shear zones where
rapid flow borders slower flow, areas of
sheet flow (or smoother, less turbulent
flow) at the upper ends of mid-channel
sand/gravel bars, and eddies at
downstream riffle edges;
b. Living areas for juvenile spikedace
with slow to moderate water velocities
of approximately 18 cm/second (8 in/
second) or higher in shallow water
between approximately 3 cm (1.2 in)
and 1 meter (40 in) in depth;
c. Living areas for larval spikedace
with slow to moderate flow velocities of
approximately 10 cm/second (4 in/
second) or higher in shallow water
approximately 3 cm (1.2 in) to 1 meter
(40 in) in depth; and
d. Water with dissolved oxygen levels
greater than 3.5 cc/l and no or minimal
pollutant levels for pollutants such as
copper, arsenic, mercury, and cadmium;
human and animal waste products;
pesticides; suspended sediments; and
gasoline or diesel fuels.
2. Sand, gravel, and cobble substrates
with low or moderate amounts of fine
sediment and substrate embeddedness.
Suitable levels of embeddedness are
generally maintained by a natural,
unregulated hydrograph that allows for
periodic flooding or, if flows are
modified or regulated, a hydrograph that
allows for adequate river functions,
such as flows capable of transporting
sediments.
3. Streams that have:
a. Low gradients of less than
approximately 1.0 percent;
b. Water temperatures in the
approximate range of 35 to 86 °F (1.7 to
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30.0 °C) (with additional natural daily
and seasonal variation);
c. Pool, riffle, run, and backwater
components; and
d. An abundant aquatic insect food
base consisting of mayflies, true flies,
caddisflies, stoneflies, and dragonflies.
4. Habitat devoid of nonnative aquatic
species or habitat in which nonnative
aquatic species are at levels that allow
persistence of spikedace.
5. Areas within perennial, interrupted
stream courses that are periodically
dewatered but that serve as connective
corridors between occupied or
seasonally occupied habitat and through
which the species may move when the
habitat is wetted.
Units are designated based on
sufficient PCEs being present to support
one or more of the species’s life history
functions. Some units contain all PCEs
and support multiple life processes,
while some units contain only a portion
of the PCEs necessary to support the
species’ particular use of that habitat.
Where a subset of the PCEs is present at
the time of designation, this rule
protects those PCEs and thus the
conservation function of the habitat.
Loach Minnow
The specific primary constituent
elements required for the loach minnow
are derived from the biological needs of
the species as described in the
Background section of this proposal and
below.
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Space for Individual and Population
Growth and Normal Behavior
As noted for the spikedace above,
streams in the Southwestern United
States have a wide fluctuation in flows
and resulting habitat conditions at
different times of the year. Loach
minnow persist in these varying
conditions and, as discussed below,
several studies have documented habitat
conditions at occupied sites.
Habitat Preferences
Flow Velocities. Loach minnow live
on the bottom of small to large rivers,
preferring shallow, swift, and turbulent
riffles, living and feeding among clean,
loose, gravel-to-cobble substrates
(Anderson and Turner 1977, pp. 2, 6–7,
9, 12–13; Barber and Minckley 1966, p.
315; Britt 1982, pp. 10–13, 29–30; Lee
et al. 1980, p. 365; Marsh et al. 2003, p.
666; Minckley 1981, p. 165; Velasco
1997, p. 28). Loach minnow are
sometimes associated with filamentous
(threadlike) algae, which are attached to
the stream substrates (Anderson and
Turner 1977, p. 5; Lee et al. 1980, p.
365; Minckley 1981, p. 165). Specific
habitat use varies with the life stage of
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the fish, as well as geographic location.
As noted below, researchers have
documented a range of flows in areas
occupied by loach minnow.
Water Depth and Flow Velocities. One
study found loach minnow in varying
water depths by lifestage, with water
depth being 15.5 cm (6.1 in) for eggs,
10.6 cm (4.2 in) for larvae, 16.8 cm (6.6
in) for juveniles, and 18.3 cm (7.2 in) for
adults (Propst et al. 1988, p. 38).
Flow rate studies have been
completed on the Gila River, Tularosa
River, San Francisco River, Aravaipa
Creek, and Deer Creek. Measured flows
in habitat occupied by adult loach
minnow ranged from 9.6 to 31.2 in/
second (24.4 to 79.2 cm/second) (Barber
and Minckley 1966, p. 321; Propst et al.
1988, pp. 32, 36–39; Propst and Bestgen
1991, p. 33; Rinne 1989, pp. 112, 116).
There is geographic variation in flow
velocities used by adult loach minnow.
Adult loach minnow in the Gila River
preferred velocities of 1.2 to 14.4 in/
second (3.0 to 36.6 cm/second), while
those in Aravaipa Creek preferred
velocities of 15.6 to 20.4 in/second (39.6
to 51.8 cm/second). This may be due to
the fact that there were considerably
more areas of slow velocity available to
loach minnow in the Gila River, and
that there was more and larger cobble
substrate in the Gila River, which
creates more habitat of slower velocities
for loach minnow to use (Turner and
Tafanelli 1983, pp. 15–20).
Juvenile loach minnow generally
occurred in areas where velocities were
similar to those used by adults;
however, these areas had faster
velocities than those used by larvae. In
the Gila, San Francisco, and Tularosa
rivers, juveniles occupied areas with
mean velocities ranging between 1.2 and
33.6 in/second (3.0 and 85.3 cm/second)
(Propst et al. 1988, pp. 37–38; Propst
and Bestgen 1991, p. 32; Rinne 1989, p.
111; Turner and Tafanelli 1983, p. 26).
Larval loach minnow move from the
rocks under which they spawned to
areas with slower velocities than the
main stream after emergence, typically
remaining in areas with significantly
slower velocities than juveniles and
adults. Larval loach minnow in the Gila,
San Francisco, and Tularosa rivers
occupied areas that were shallower and
significantly slower than areas where
eggs were found. In the Gila, San
Francisco, and Tularosa rivers, and
Aravaipa Creek, larval loach minnow
occupied areas with flow velocities
ranging from 3.6 to 19.2 in/second (9.1
to 48.8 cm/second) (Propst et al. 1988,
p. 37; Propst and Bestgen 1991, p. 32).
The use of riffle habitat has been
documented in Aravaipa Creek (Barber
and Minckley 1966, p. 321; Rinne 1989,
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pp. 113, 116; Velasco 1997, pp. 5–6;
Vives and Minckley 1990, pp. 451–452),
Eagle Creek (Marsh et al. 2003, p. 666),
Tularosa River (Propst et al. 1984, pp.
7–12), and the Gila and San Francisco
rivers (Britt 1982, pp. 1, 5, 10–12, 29;
Propst and Bestgen 1991, p. 32; Propst
et al. 1984, pp. 7–12; Propst et al. 1988,
pp. 36–39). Loach minnow prefer
shallow, swift, and turbulent riffles.
However, loach minnow also occur in
stream segments that contain pool,
riffle, and run habitats on the Blue,
upper Gila, and San Francisco rivers
(AGFD 1994, pp. 1, 5–11; Bagley et al.
1995, pp. 11, 13, 16, 17, 22; J.M.
Montgomery 1985, p. 21).
Substrates. Loach minnow in
Aravaipa Creek occurred over a gravelpebble substrate with materials ranging
between 3 to 16 mm (0.12 to 0.63 in) in
diameter and, except in the summer,
were associated with the larger sizes of
available substrate. The use of larger
substrates was disproportionately
greater than expected based on overall
availability of substrate size in the
stream, indicating that loach minnow
have a preference for the larger substrate
and tend to use these substrate areas
rather than areas with smaller substrate
(Rinne 1989, pp. 112–114). For portions
of the upper Gila River occupied by
loach minnow in 1999 and 2000,
substrates were characterized by gravelpebble and cobble substrates, with 70
percent of the sites having a gravelpebble substrate, and 14 percent of the
sites having cobble substrate (Rinne
2001, p. 69).
Loach minnow in Aravaipa Creek and
the Gila River appeared to prefer cobble
and gravel, avoiding areas dominated by
sand or finer gravel. This may be due to
the fact that loach minnow maintain a
relatively stationary position on the
bottom of a stream in flowing water. An
irregular bottom, such as that created by
cobble or larger gravels, creates pockets
of lower water velocities around larger
rocks where loach minnow can remain
stationary with less energy expenditure
(Turner and Tafanelli 1983, pp. 24–25).
In the Gila and San Francisco rivers, the
majority of loach minnow captured
occurred in the upstream portion of a
riffle rather than in the central and
lower depositional sections of the riffle.
This is likely due to the availability of
interstitial spaces in the cobble-rubble
substrate, which became filled with
sediment more quickly in the central
and lower sections of a riffle section as
suspended sediment begins to settle to
the stream bottom (Propst et al. 1984, p.
12).
Loach minnow use different
substrates during different life stages.
Eggs occurred primarily on large gravel
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to rubble, while larvae were found
where substrate particles were smaller
than substrates used by embryos.
Juvenile fish occupy areas with
substrates of larger particle size than
larvae. Adults exhibited a narrower
preference for substrates than did
juveniles, and were most commonly
associated with gravel to cobble
substrates (Propst et al. 1988, pp. 36–39;
Propst and Bestgen 1991, pp. 32–33).
As noted above, streams in the
southwestern United States have a wide
fluctuation in flows and are periodically
dewatered. While portions of stream
segments included in this designation
may experience dry periods, they are
still considered important because the
loach minnow is adapted to this
changing environment and will use
these areas as connective corridors
when they are wetted.
Flooding. In areas where substantial
diversions or impoundments have been
constructed, loach minnow are less
likely to occur (Propst et al. 1988, pp.
63–64, Propst and Bestgen 1991, p. 37).
This is in part due to habitat changes
caused by the construction of the
diversions, and in part due to the
reduction of beneficial effects of
flooding on loach minnow habitat.
Flooding appears to positively affect
loach minnow population dynamics by
resulting in higher recruitment
(reproduction and survival of young)
and by decreasing the abundance of
nonnative fishes (Stefferud and Rinne
1996, p. 1).
The construction of water diversions,
by increasing water depth, has reduced
or eliminated riffle habitat in many
stream reaches. In addition, loach
minnow are generally absent in stream
reaches affected by impoundments.
While the specific factors responsible
for this is not known, it is likely related
to modification of thermal regimes,
habitat, food base, or discharge patterns
(Propst et al. 1988, p. 64; Minckley
1973, pp. 1–11).
Flooding also cleans, rearranges, and
rehabilitates important riffle habitat
(Propst et al. 1988, pp. 63–64). Flooding
allows for the scouring of sand and
gravel in riffle areas, which reduces the
degree of embeddedness of cobble and
boulder substrates (Britt 1982, p. 45).
Excessive sediment in the bedload, or
that sediment that moves by sliding or
rolling along the bed of the stream
(Leopold et al. 1992, p. 180) is typically
deposited at the downstream
undersurfaces of cobble and boulder
substrate components where flow
velocities are lowest, and can result in
a higher degree of embeddedness (Rinne
2001, p. 69). Following flooding,
cavities created under cobbles by
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scouring action of the flood waters
provides enhanced spawning habitat for
loach minnow.
Studies on the Gila, Tularosa, and San
Francisco rivers found that flooding is
primarily a positive influence on native
fish, and apparently had a positive
influence on the relative abundance of
loach minnow (Britt 1982, p. 45). Rather
than following a typical pattern of
winter mortality and population
decline, high levels of loach minnow
recruitment occurred after the flood,
and loach minnow relative abundance
remained high through the next spring.
Flooding enhanced and enlarged loach
minnow habitat, resulting in a greater
survivorship of individuals through
winter and spring (Propst et al. 1988, p.
51). Similar results were observed on
the Gila and San Francisco rivers
following flooding in 1978 (Britt 1982,
p. 45).
Natural flooding may also reduce the
negative impacts of nonnative fish
species on loach minnow. During
significant floods, nonnative species
introduced into western streams were
either displaced or destroyed, while
native species were able to maintain
their position in or adjacent to channel
habitats, persist in micro refuges or
recolonize should they be displaced
(Britt 1982, p. 46; Minckley and Meffe
1987, p. 97).
Stream Gradient. In addition to the
availability of riffle habitat, gradient
may influence the distribution and
abundance of loach minnow. In studies
of the San Francisco River, Gila River,
Aravaipa Creek, and the Blue River,
loach minnow occurred in stream
reaches where the gradient was
generally low, ranging from 0.3 to 2.2
percent (Rinne 1989, p. 109; Rinne
2001, p. 69).
Habitat Protected From Disturbance or
Representative of the Historic
Geographical and Ecological
Distribution of a Species
Nonnative aquatic species. As noted
under the discussion of nonnative fish
species in the spikedace primary
constituent elements section above,
nonnative aquatic species have been
introduced for a variety of reasons,
resulting in interference or exploitive
competition. Interference competition,
such as predation, may result from
interactions between loach minnow and
nonnative channel and flathead catfish.
Omnivorous channel catfish of all sizes
move into riffles to feed, preying on the
same animals most important to the
loach minnow diet. Juvenile flathead
catfish also feed in riffles in darkness.
Flathead catfish are piscivorous, even
when small. Loach minnow remains
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were found in the digestive tracts of
channel catfish (Propst et al. 1988, p. 64;
Propst and Bestgen 1991, p. 36).
Exploitive competition, or
competition for actual resources
(Schoener 1983, p. 257), may occur
between loach minnow and red shiner,
as red shiner is the nonnative fish
species most likely to occur in stream
habitats occupied by small loach
minnow. Red shiners occur in all places
known to be formerly occupied by loach
minnow, and are absent or rare in places
where loach minnow persists. Because
of this, red shiner has often been
implicated in the decline of loach
minnow, as well as other native fishes.
Loach minnow habitat is markedly
different from that of the red shiner, so
interaction between the two species was
unlikely to cause shifts in habitat use by
loach minnow (Marsh et al. 1989, p. 39).
Studies indicate that, instead, red shiner
move into voids left when native fishes
such as loach minnow are extirpated
due to habitat degradation in the area
(Bestgen and Propst 1987, p. 209). This
may preclude occupancy of this area by
loach minnow in the future, should
habitat conditions improve.
Prior to 1960, the GlenwoodPleasanton reach of the Gila River
supported a native fish community of
eight different species. Post-1960, four
of these species became uncommon, and
ultimately three of them were
extirpated. In studies completed
between 1961 and 1980, it was
determined that loach minnow was less
common than it had been, while
diversity of the nonnative fish
community had increased in
comparison to the pre-1960 period.
Following 1980, red shiner, fathead
minnow, and channel catfish were all
regularly collected. Drought and
diversions for irrigation resulted in a
decline in habitat quality, with canyon
reaches retaining habitat components
for native species. However,
establishment of nonnative fishes in the
canyon reaches then reduced the utility
of these areas for native species (Propst
et al. 1988, pp. 51–56).
The discussion on spikedace includes
information on other nonnative aquatic
species such as Asian tapeworm, anchor
worm, and Ich, which are also
detrimental to loach minnow.
Food
Food Items. Loach minnow are
opportunistic, benthic insectivores that
obtain their food from riffle-dwelling
larval mayflies, black flies, and true
flies, as well as from larvae of other
aquatic insect groups such as caddisflies
and stoneflies. Loach minnow in the
Gila, Tularosa, and San Francisco rivers
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consumed primarily true flies and
mayflies, with mayfly nymphs being an
important food item throughout the
year. Mayfly nymphs constituted the
most important food item throughout
the year for adults studied on the Gila
and San Francisco Rivers, while true fly
larvae were most common in the winter
months (Propst et al. 1988, p. 27; Propst
and Bestgen 1991, p. 35). In Aravaipa
Creek, loach minnow consumed 11
different prey items, including mayflies,
stoneflies, caddisflies, and true flies.
Mayflies constituted the largest
percentage of their diet during this
study except in January, when true flies
made up 54.3 percent of the total food
volume (Schreiber 1978, pp. 40–41).
Loach minnow consume different
prey items during their various life
stages. Both larvae and juveniles
primarily consumed true flies, which
constituted approximately 7 percent of
their food items in one year, and 49
percent the following year. Mayfly
nymphs were also an important dietary
element at 14 percent and 31 percent
during a one-year study. Few other
aquatic macroinvertebrates were
consumed (Propst et al. 1988, p. 27). In
a second study, true fly larvae and
mayfly naiads constituted the primary
food of larval and juvenile loach
minnow (Propst and Bestgen 1991,
p. 35).
The availability of pool and run
habitats affects availability of prey
species. While most of the food items of
loach minnow are riffle species, two are
not, including true fly larvae and mayfly
nymphs. Mayfly nymphs, at times,
made up 17 percent of the total food
volume of loach minnow in a study at
Aravaipa Creek (Schreiber 1978, pp. 40–
41). The presence of a variety of habitat
types is therefore important to the
persistence of loach minnow in a
stream, even while they are typically
associated with riffles.
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Water Quality
Pollutants. Water with no or only
minimal pollutant levels is important
for the conservation of loach minnow.
As with spikedace, loach minnow occur
in areas where mining, agriculture,
livestock operations, and road
construction are prevalent activities.
Various pollutants are associated with
these types of activities. For loach
minnow, waters should have low levels
of pollutants, such as copper, arsenic,
mercury, and cadmium; human and
animal waste products; pesticides;
suspended sediments; and gasoline or
diesel fuels (Baker 2005). In addition,
for freshwater fish, dissolved oxygen
should generally be greater than 3.5
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cc/l (Bond 1979, p. 215). Below this,
some stress may occur.
Fish kills associated with previous
mining accidents are detailed under the
spikedace PCEs above. These incidents
occurred within the historical range of
the loach minnow.
Temperatures. Loach minnow have a
fairly narrow range in temperature
tolerance, and their upstream
distributional limits in some areas may
be linked to low winter stream
temperature (Propst et al. 1988, p. 62).
Suitable temperature regimes appear to
be fairly consistent across geographic
areas. Studies of Aravaipa Creek, East
Fork White River, the San Francisco
River, and the Gila River determined
that loach minnow were present in areas
with water temperatures in the range of
48.2 to 71.6 °F (9 to 22 °C) (Britt 1982,
p. 31; Leon 1989, p. 1; Propst et al. 1988,
p. 62; Propst and Bestgen 1991, p. 33;
Vives and Minckley 1990, p. 451).
Recent studies by the University of
Arizona focused on temperature
tolerances of loach minnow. In the
study, fish were acclimated to a given
temperature, and then temperatures
were increased by 1 °C (33.8 °F) per day
until test temperatures were reached.
The study determined that no loach
minnow survived 30 days at 32 °C
(89.6 °F), and that 50 percent mortality
occurred after 30 days at 30.6 °C
(87.1 °F). In addition, growth rate was
slowed at 28 °C and 30 °C (82.4 and
86.0 °F) in comparison to growth at
25 °C (77 °F), indicating that loach
minnow were stressed at sub-lethal
temperatures. Survival of fish in the
fluctuating temperature trials of the
study likely indicates that exposure to
higher temperatures for short periods
during a day would be less stressful to
loach minnow. The study concludes
that temperature tolerance in the wild
may be lower due to the influence of
additional stressors, including disease,
predation, competition, or poor water
quality. The study concludes that 100
percent survival of loach minnow at
28 °C (82.4 °F) suggests that little
juvenile or adult mortality would occur
due to thermal stress if peak water
temperatures remain at or below that
level (Bonar et al. 2005, pp. 6–8, 28, 33).
Reproduction and Rearing of Offspring
Habitat conditions needed for
reproduction and rearing of offspring
include appropriate flow velocities,
substrates, sediment levels, and riffle
availability. Loach minnow place eggs
in areas with mean velocities ranging
between 2.4 to 15.6 in/second (3.0 to
39.6 cm/second) in the Gila, San
Francisco, West Fork, Middle Fork, and
East Fork Gila rivers (Britt 1982, pp. 29–
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30; Propst et al. 1988, p. 25; Propst and
Bestgen 1991, p. 34). Fungal infections
developed on egg masses found in slowvelocity waters of less than 2.4 in/
second (6.2 cm/second) (Propst et al.
1988, p. 25; Propst and Bestgen 1991, p.
34). Once hatched, areas of slower flows
appear important to larval loach
minnow as they have been found in
slower-velocity stream margins (Propst
et al. 1988, pp. 37–38).
Substrate type is important to
spawning as well. While loach minnow
spawning occurs in the same riffle
habitat that adults occupy, it is the
substrate that determines its suitability
for spawning. Eggs are deposited on the
undersurface of rocks or cobbles. Rocks
are generally flattened, have smooth
surfaces, and are angular. Rocks which
have eggs attached are generally
embedded on their upstream side in the
substrate. Eggs placed under rocks in
the Gila River, San Francisco River, and
Aravaipa Creek were placed on the
underside of rocks in nest cavities
formed by rocks of varying sizes (Britt
1982, pp. 29, 31; Propst et al. 1988, p.
21; Vives and Minckley 1990, pp. 451–
452).
Loach minnow spawning is the life
history stage most affected by sediment
or fines (Rinne 2001, p. 69). Because
deposition of eggs occurs on the
downstream undersurfaces of cobble
and boulder substrate components,
excessive fines in the bedload of a
system can fill in the areas where eggs
would otherwise be deposited,
especially in areas of slower velocities.
Primary Constituent Elements for the
Loach Minnow
Pursuant to our regulations, we are
required to identify the known physical
and biological features (primary
constituent elements) essential to the
conservation of the loach minnow. All
stream complexes designated as critical
habitat for the loach minnow are
considered occupied, within the
species’ historic geographic range, and
contain sufficient PCEs to support at
least one life history function.
Based on our current knowledge of
the life history, biology, and ecology of
the species and the requirements of the
habitat to sustain the essential life
history functions of the species, we have
determined that the primary constituent
elements essential to the conservation of
the loach minnow are:
1. Permanent, flowing water with no
or minimal pollutant levels, including:
a. Living areas for adult loach
minnow with moderate to swift flow
velocities between 9.0 to 32.0 in/second
(24 to 80 cm/second) in shallow water
between approximately 1.0 to 30 inches
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(3 cm to 75 cm) in depth, with gravel,
cobble, and rubble substrates;
b. Living areas for juvenile loach
minnow with moderate to swift flow
velocities between 1.0 and 34 in/second
(3.0 and 85.0 cm/second) in shallow
water between approximately 1.0 to 30
inches (3 cm to 75 cm) in depth with
sand, gravel, cobble, and rubble
substrates;
c. Living areas for larval loach
minnow with slow to moderate
velocities between 3.0 and 20.0 in/
second (9.0 to 50.0 cm/second) in
shallow water with sand, gravel, and
cobble substrates;
d. Spawning areas with slow to swift
flow velocities in shallow water where
cobble and rubble and the spaces
between them are not filled in by fine
dirt or sand; and
e. Water with dissolved oxygen levels
greater than 3.5 cc/l and no or minimal
pollutant levels for pollutants such as
copper, arsenic, mercury, and cadmium;
human and animal waste products;
pesticides; suspended sediments; and
gasoline or diesel fuels.
2. Sand, gravel, and cobble substrates
with low or moderate amounts of fine
sediment and substrate embeddedness.
Suitable levels of embeddedness are
generally maintained by a natural,
unregulated hydrograph that allows for
periodic flooding or, if flows are
modified or regulated, a hydrograph that
allows for adequate river functions,
such as flows capable of transporting
sediments.
3. Streams that have:
a. Low gradients of less than
approximately 2.5 percent;
b. Water temperatures in the
approximate range of 35 to 82 °F (1.7 to
27.8 °C) (with additional natural daily
and seasonal variation);
c. Pool, riffle, run, and backwater
components; and
d. An abundant aquatic insect food
base consisting of mayflies, true flies,
black flies, caddisflies, stoneflies, and
dragonflies.
4. Habitat devoid of nonnative aquatic
species or habitat in which nonnative
aquatic species are at levels that allow
persistence of loach minnow.
5. Areas within perennial, interrupted
stream courses that are periodically
dewatered but that serve as connective
corridors between occupied or
seasonally occupied habitat and through
which the species may move when the
habitat is wetted.
Units are designated based on
sufficient PCEs being present to support
one or more of the species’ life history
functions. Some units contain all PCEs
and support multiple life processes,
while some units contain only a portion
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of the PCEs necessary to support the
species’ particular use of that habitat.
Where a subset of the PCEs is present at
the time of designation, this rule
protects those PCEs and thus the
conservation function of the habitat.
Methods
As required by section 4(b) of the Act,
we used the best scientific data
available in determining areas that
contain the features essential to the
conservation of the spikedace and loach
minnow. In designating critical habitat
for the spikedace and loach minnow, we
solicited information from
knowledgeable biologists and reviewed
recommendations contained in State
wildlife resource reports. We also
reviewed the available literature
pertaining to habitat requirements,
historical localities, and current
localities of the two species. We used
data in reports submitted during section
7 consultations, research published in
peer-reviewed articles and presented in
academic theses and agency reports, and
regional GIS data layer coverages.
We have also reviewed historical and
current occurrence data, information
pertaining to habitat requirements for
these species, scientific information on
the biology and ecology of the two
species, general conservation biology
principles, and scientific information
cited in the Recovery Plans for these
two species. Of particular importance,
we reviewed databases, published
literature, and field notes to determine
the historical and current occurrence
data for the two species. The SONFishes
Database (ASU 2002) details occurrence
records from the 1800s through 1999.
The Heritage Database Management
System (HDMS) (AGFD 2004) contains
information for Arizona with some
overlap of SONFishes records, as well as
records from 1999 through 2004.
Agency and researcher field notes and
published literature contain additional
information on completed surveys and
species detections.
Criteria for Defining Critical Habitat
We are designating critical habitat on
lands within the geographical range
occupied at the time of listing and
currently occupied by either, or in some
cases both, the spikedace and loach
minnow. We consider an area to be
occupied by the spikedace or loach
minnow if we have records to support
occupancy within the last 10 years, or
where the stream segment is directly
connected to a segment with occupancy
records from within the last 10 years
(this is described within each unit
description below). The three connected
areas (see Table 1 above) included in the
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designation are within the historical
range of the species, contain one or
more of the PCEs required by spikedace
or loach minnow, have been occupied
in the past, and are directly connected
to a stream segment with records of
occupancy from 2004 or 2005 (see Table
1 above). For the following reasons we
believe that these areas are occupied for
the purposes of this critical habitat
designation: (1) The areas are directly
connected to stream segments with
recent occupancy records (2004 and
2005); (2) the stream segments are
connected and the fish can move
between them; (3) surveys have been
infrequent or inconsistent and
spikedace and loach minnow can be
difficult to detect in surveys; and (4) we
have other streams in which the species
were not detected for long periods
before being detected again [e.g., Eagle
Creek, where there was a 44 year gap
between loach minnow detections (see
Marsh et al. 2003, p. 666)]. We believe
a period of 10 years is reasonable to
determine occupancy based on the fact
that both species are difficult to detect
in surveys, surveys have been
infrequent or inconsistent because many
of the areas where they occur are
remote, and as noted above, we have
areas where these species were not
detected for long periods of time (44
years) and then detected again. The life
expectancy of spikedace and loach
minnow is 2 to 3 years. A period of 10
years would represent a time period that
provides for three to four generations of
spikedace and loach minnow.
We divided the overall historical
range into five river complexes, and
each critical habitat stream segment was
derived from within these larger
complexes. We believe this is a
reasonable approach because
populations in mainstem tributaries
may access a wider geographic area by
moving into smaller tributaries, while
populations in tributaries are afforded
the ability to disperse to other
tributaries via the mainstem river within
that complex. Overall, the complexes
included herein provide coverage
throughout the historical range of the
species, with exceptions for areas that
were excluded for specific reasons, as
detailed below (see ‘‘Exclusions under
Section 4(b)(2) of the Act’’ section
below). The critical habitat designation
constitutes our best assessment of areas
that contain sufficient features (PCEs)
essential to the conservation of
spikedace and loach minnow and that
require special management or
protection.
We are designating critical habitat in
areas that we have determined to be
occupied at the time of listing, and that
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contain sufficient primary constituent
elements to support life history
functions essential for the conservation
of the species. Lands were included in
the designation based on sufficient PCEs
being present to support the life
processes of the species. Some lands
contain all PCEs and support multiple
life processes. Some lands contain only
a portion of the PCEs necessary to
support the particular use of that
habitat. In determining whether an area
contains sufficient PCEs, the Service
looked at various databases and survey
records to determine occupancy, as well
as habitat descriptions at various
locations. We relied on information
provided in survey reports and research
documents to describe conditions at
various locations. This information was
then synthesized to develop the critical
habitat designation.
When determining final critical
habitat map boundaries, we made every
effort to avoid including developed
areas such as buildings, paved areas,
and other structures that lack any PCEs
for the spikedace and loach minnow.
Any such structures and the land under
them inadvertently left inside critical
habitat boundaries of this final rule are
excluded by text and are not designated
as critical habitat. Therefore, Federal
actions limited to these areas would not
trigger section 7 consultation, unless
they affect the species or primary
constituent elements in adjacent critical
habitat.
Lateral Extent
The areas designated as critical
habitat are designed to provide
sufficient riverine and associated
floodplain area for breeding, nonbreeding, and dispersing adult
spikedace and loach minnow, as well as
for the habitat needs of juvenile and
larval stages of these fishes. In general,
the primary constituent elements of
critical habitat for spikedace and loach
minnow include the riverine ecosystem
formed by the wetted channel and the
adjacent floodplains within 300 lateral
feet on either side of bankfull stage,
except where bounded by canyon walls.
Areas within the lateral extent also
contribute to PCEs 1 and 2 (water
quality) and contain PCEs 3 (food
source) and 5 (provide areas where the
fish may move through when wetted).
Spikedace and loach minnow use the
riverine ecosystem for feeding,
sheltering, and cover while breeding
and migrating. This designation takes
into account the naturally dynamic
nature of riverine systems and
floodplains (including riparian and
adjacent upland areas) that are an
integral part of the stream ecosystem.
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For example, riparian areas are
seasonally flooded habitats (i.e.,
wetlands) that are major contributors to
a variety of vital functions within the
associated stream channel (Federal
Interagency Stream Restoration Working
Group 1998, Brinson et al. 1981, pp. 2–
61, 2–69, 2–72, 2–75, 2–84 to 2–85).
They are responsible for energy and
nutrient cycling, filtering runoff,
absorbing and gradually releasing
floodwaters, recharging groundwater,
maintaining streamflows, protecting
stream banks from erosion, and
providing shade and cover for fish and
other aquatic species. Healthy riparian
and adjacent upland areas help ensure
water courses maintain the habitat
important for aquatic species (e.g., see
U.S. Forest Service 1979, pp. 18, 109,
158, 264, 285, 345; Middle Rio Grande
Biological Interagency Team 1993, pp.
64, 89, 94), including the spikedace and
loach minnow. Habitat quality within
the mainstem river channels in the
historical range of the spikedace and
loach minnow is intrinsically related to
the character of the floodplain and the
associated tributaries, side channels,
and backwater habitats that contribute
to the key habitat features (e.g.,
substrate, water quality, and water
quantity) in these reaches. We have
determined that a relatively intact
riparian area, along with periodic
flooding in a relatively natural pattern,
is important for maintaining the PCEs
necessary for long-term conservation of
the spikedace and loach minnow.
The lateral extent (width) of riparian
corridors fluctuates considerably
between a stream’s headwaters and its
mouth. The appropriate width for
riparian buffer strips has been the
subject of several studies (Castelle et al.
1994). Most Federal and State agencies
generally consider a zone 23–46 m (75–
150 ft) wide on each side of a stream to
be adequate (NRCS 1998; Moring et al.
1993; Lynch et al. 1985), although buffer
widths as wide as 152 m (500 ft) have
been recommended for achieving flood
attenuation benefits (Corps 1999). In
most instances, however, riparian buffer
zones are primarily intended to reduce
(i.e., buffer) detrimental impacts to the
stream from sources outside the river
channel. Consequently, while a riparian
corridor 23–46 m (75–150 ft) in width
may function adequately as a buffer, it
is likely inadequate to preserve the
natural processes that provide spikedace
and loach minnow primary constituent
elements.
The lateral extent of streams was set
at 300 ft (91.4 m) to either side of
bankfull stage to accommodate stream
meandering and high flows, and in
order to ensure that this designation
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contained the features essential to the
conservation of the species. Bankfull
stage is defined as the upper level of the
range of channel-forming flows which
transport the bulk of the available
sediment over time. Bankfull stage is
generally considered to be that level of
stream discharge reached just before
flows spill out onto the adjacent
floodplain. The discharge that occurs at
bankfull stage, in combination with the
range of flows that occur over a length
of time, govern the shape and size of the
river channel (Rosgen 1996, pp. 2–2 to
2–4; Leopold 1997, pp. 62–63, 66). The
use of bankfull stage and 300 ft (91.4 m)
on either side recognizes the naturally
dynamic nature of riverine systems,
recognizes that floodplains are an
integral part of the stream ecosystem,
and contains the area and associated
features essential to the conservation of
the species. A relatively intact
floodplain, along with the periodic
flooding in a relatively natural pattern,
is an important element in the
conservation of spikedace and loach
minnow.
We determined the 300-foot lateral
extent for several reasons. First, the
implementing regulations of the Act
require that critical habitat be defined
by reference points and lines as found
on standard topographic maps of the
area (50 CFR 424.12). Although we
considered using the 100-year
floodplain, as defined by the Federal
Emergency Management Agency
(FEMA), we found that it was not
included on standard topographic maps,
and the information was not readily
available from FEMA or from the Army
Corps of Engineers for the areas we are
proposing to designate. We suspect this
is related to the remoteness of many of
the stream reaches where these species
occur. Therefore, we selected the 300foot lateral extent, rather than some
other delineation, for three biological
reasons: (1) The biological integrity and
natural dynamics of the river system are
maintained within this area (i.e., the
floodplain and its riparian vegetation
provide space for natural flooding
patterns and latitude for necessary
natural channel adjustments to maintain
appropriate channel morphology and
geometry, store water for slow release to
maintain base flows, provide protected
side channels and other protected areas,
and allow the river to meander within
its main channel in response to large
flow events); (2) conservation of the
adjacent riparian area also helps provide
important nutrient recharge and
protection from sediment and
pollutants; and (3) vegetated lateral
zones are widely recognized as
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providing a variety of aquatic habitat
functions and values (e.g., aquatic
habitat for fish and other aquatic
organisms, moderation of water
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality (see U.S.
Army Corps of Engineers’ final notice
concerning Issuance and Modification
of Nationwide Permits, March 9, 2000,
65 FR 12818–12899).
Among other things, the floodplain
provides space for natural flooding
patterns and latitude for necessary
natural channel adjustments to maintain
channel morphology and geometry. We
conclude that a relatively intact riparian
area, along with periodic flooding in a
relatively natural pattern, is important
in maintaining the stream conditions
necessary for long-term survival and
recovery of the spikedace and loach
minnow.
Conservation of the river channel
alone is not sufficient to ensure the
survival and recovery of the spikedace
and loach minnow. For the reasons
discussed above, we believe the riparian
corridors adjacent to the river channel
provide an important function within
the areas designated as critical habitat.
Special Management Considerations or
Protections
When designating critical habitat, we
assess whether the areas determined to
be occupied at the time of listing,
contain the primary constituent
elements and may require special
management considerations or
protection. We believe each area
included in this final designation
requires special management and
protections as described in our unit
descriptions and Table 1.
Special management considerations
for each area will depend on the threats
to the spikedace and/or loach minnow
in that critical habitat area. For example,
threats requiring special management
include nonnative fish species and the
continued spread of nonnative fishes
into spikedace or loach minnow habitat.
Other threats requiring special
management include threat of fire,
retardant application during the fire,
and excessive ash and sediment
following the fire. On-going improper
livestock grazing can be a threat to
spikedace and loach minnow and their
habitats. Poor water quality and
adequate quantities of water for all life
stages of spikedace and loach minnow
threaten these fish and may require
special management actions or
protections. The construction of water
diversions, by increasing water depth,
has reduced or eliminated riffle habitat
in many stream reaches. In addition,
loach minnow are generally absent in
stream reaches affected by
impoundments. While the specific
factor responsible for this is not known,
it is likely related to modification of
thermal regimes, habitat, food base, or
discharge patterns. We have included
below in our description of each of the
critical habitat areas for the spikedace
and loach minnow a description of the
threats occurring in that area requiring
special management or protections.
When determining critical habitat
boundaries, we made every effort to
avoid the designation of developed
areas such as buildings, paved areas,
boat ramps and other structures that
lack PCEs for spikedace and loach
minnow. Any such structures do not
contain the PCEs and are not considered
part of the critical habitat designation.
This also applies to the land on which
such structures sit directly. Therefore,
Federal actions limited to these areas
would not trigger section 7
consultations, unless they affect the
species and/or PCEs in adjacent critical
habitat.
Critical Habitat Designation
Below are tables and descriptions of
the critical habitat segments, including
discussion of excluded and exempted
areas within each segment. For each
stream reach, the upstream and
downstream boundaries are described.
Additionally, critical habitat includes
the stream channels within the
identified stream reaches and areas
within these reaches and, as described
above, the area of bankfull width plus
300 lateral feet on either side of bankfull
width, except when the floodplain is
narrow and bounded by canyon walls.
This 300-foot width defines the lateral
extent of each area of critical habitat
that contains sufficient PCEs (3 and 5)
to provide for one or more of the life
history functions of the spikedace and
loach minnow.
The critical habitat designation for
both spikedace and loach minnow
includes five complexes totaling
approximately 522.2 mi (840.4 km) of
stream reaches (see Tables 1 and 2). The
spikedace and loach minnow critical
habitat areas described below constitute
our best assessment at this time of areas
determined to be occupied at the time
of listing, that contain the primary
constituent elements and may require
special management, and those
additional areas that were not occupied
at the time of listing but are currently
occupied and contain the features
essential to the conservation of the
species. Unless otherwise indicated, the
following areas identified in Table 1 and
in the unit descriptions below, are
designated as critical habitat for both
spikedace and loach minnow (see the
‘‘Regulation Promulgation’’ section of
this rule below for exact descriptions
and distances of boundaries). The
designation includes portions of 8
streams for spikedace and 21 streams for
loach minnow; however, individual
streams are not isolated, but are grouped
with others to form areas or
‘‘complexes.’’
Table 2 below provides approximate
area (mi/km) determined to meet the
definition of critical habitat for the
spikedace and loach minnow by State.
TABLE 2.—APPROXIMATE CRITICAL HABITAT IN STREAM MILES (MI) AND KILOMETERS (KM) BY STATE AND LANDOWNER
Arizona
mi (km)
Landowner
New Mexico
mi (km)
Total
mi (km)
170.4 (274.2)
8.0 (12.9)
2.1 (3.4)
90.2 (145.1)
167.7 (269.9)
1.3 (2.1)
0 (0)
82.5 (132.8)
338.1 (544.1)
9.3 (15)
2.1 (3.4)
172.7 (277.9)
Total ..........................................................................................................................
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Federal .............................................................................................................................
State .................................................................................................................................
Tribal ................................................................................................................................
Private ..............................................................................................................................
270.7 (435.6)
251.5 (404.8)
522.2 (840.4)
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13385
TABLE 3.—AREAS DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT FOR THE SPIKEDACE AND LOACH
MINNOW AND THE AREAS EXCLUDED FROM THE FINAL CRITICAL HABITAT DESIGNATION
[ac (ha)/mi (km)]
Area meeting the
definition of critical habitat
(mi/km)
State or geographic area
Area excluded
from the final
critical habitat
designation
(mi/km)
Arizona .............................................................................................................................................................
New Mexico .....................................................................................................................................................
373.7 (601.5)
258.8 (416.4)
103.1 (165.9)
7.3 (11.7)
Total ..........................................................................................................................................................
632.5 (1017.9)
110.3 (177.5)
sufficient PCEs (3 and 5) to provide for
one or more of the life history functions
of the spikedace and loach minnow. The
continuing presence of spikedace and
TABLE 4.—CRITICAL HABITAT UNITS
the existence of features that are
DESIGNATED FOR THE SPIKEDACE essential to the conservation of the
species create a high potential for
AND LOACH MINNOW
restoration of loach minnow to the
[Area estimates reflect all land within critical
Verde River system. Threats to this
habitat complexes]
critical habitat area requiring special
management and protections include
Critical habitat unit
Mi
Km
water diversions, improper livestock
1. Verde River ......................
43.0
69.2 grazing, and nonnative fish species (see
2. Black River .......................
18.1
29.1 Table 1 above).
3. Lower San Pedro/Gila
The landownership of this complex
River/Aravaipa Creek ........
85.5 137.5
consists of large blocks of U.S. Forest
4. Gila Box/San Francisco
River .................................. 235.0 378.2 Service lands in the upper and lower
5. Upper Gila River ............... 140.6 226.3 reaches, with significant areas of private
ownership in the Verde Valley. There
Total .................................. 522.2 840.4 are also lands belonging to Arizona
State Parks, Yavapai Apache Tribe, and
Complex 1—Verde River Complex—
the AGFD. The Verde River divides the
Yavapai County, Arizona
west and east halves of the Prescott
National Forest, and passes by or
Spikedace have been detected in the
through the towns of Camp Verde,
Verde River Complex since 1890. The
Middle Verde, Bridgeport, Cottonwood,
Verde River was known to be occupied
and Clarkdale.
by spikedace at the time of listing, and
Verde River Complex—Spikedace
is still considered to be occupied based
Only—43 mi (69.2 km) of river
on surveys documenting spikedace
extending from the Prescott and
presence as recently as 1999. This
Coconino National Forest boundary
complex was also historically occupied
with private lands upstream to Sullivan
by loach minnow, with records from
1890 and 1938 (ASU 2002, Brouder
Dam at Township 17 North, Range 2
2002, AGFD 2004). At this time, the
West, section 15. Sullivan Dam is at the
tributary streams of the Verde River are
upstream limit of perennial flow in the
believed to be unoccupied by both
mainstem of the Verde River. Perennial
species and are not being included as
flow results from a series of rivercritical habitat. The Verde River
channel springs and from Granite Creek.
Complex is unusual in that a relatively
The Verde River contains features
stable thermal and hydrologic regime is
essential to the conservation of the
found in the upper river and in Fossil
spikedace between its headwaters and
Creek, one of the tributaries to the Verde Fossil Creek. These portions of the
River. Also, spikedace in the Verde
Verde River provide a relatively stable
River are genetically distinct from all
thermal and hydrologic regime suitable
other spikedace populations (Tibbets
for spikedace. Below Fossil Creek, the
1993, pp. iii-iv, 34–35; Anderson and
Verde River has a larger flow and is
Hendrickson 1994, p. 154). The Verde
thought to offer little suitable habitat
River contains one or more of the
(i.e., does not contain sufficient PCEs)
primary constituent elements, including for spikedace or loach minnow. The
shear zones, sheet flow, and eddies, and Verde River below Fossil Creek is
an appropriate prey base. In addition,
within the historical range for both
the lateral extent of each segment within species, and comments on previous
this complex of critical habitat contains critical habitat designations from the
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The approximate area encompassed
within each critical habitat unit is
shown in Table 4.
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U.S. Forest Service indicated this
stretch of the river may offer substantial
value for spikedace and loach minnow
recovery. We will continue to seek
further information regarding the Verde
River and its role in conservation for
these two species and may consider
designation of the Verde River below
Fossil Creek in future potential
revisions of critical habitat. At this time,
however, we are excluding all land
south of the Coconino and Prescott
National Forest boundaries at the upper
end of the Verde Valley due to
disproportionate economic concerns
(see Exclusions under Section 4(b)(2)
below).
Complex 2—Black River Complex—
Apache and Greenlee Counties,
Arizona
The Salt River Sub-basin represents a
significant portion of loach minnow
historical range; however, loach
minnow have been extirpated from all
but a small portion of the Black and
White rivers. The Black River Complex
is considered important because it is the
only remaining population of loach
minnow on public lands in the Salt
River Sub-basin.
We are designating streams within
this complex as critical habitat for loach
minnow only. At this time, spikedace
are not known to historically occupy
areas at this elevation; however, the data
on maximum elevation for spikedace are
not definitive and if information
becomes available that differs from that
currently available, the Black River
Complex may be reevaluated for
spikedace critical habitat designation in
a future revision. Portions of the subbasin are unsuitable, either because of
topography or because of the presence
of reservoirs, stream channel alteration
by humans, or overwhelming nonnative
fish populations. However, other areas
within the sub-basin remain suitable.
Complex 2 was not known to be
occupied at listing, with first detections
of loach minnow occurring in 1996. It
is currently occupied by loach minnow
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(Bagley et al. 1995, multiple surveys;
Lopez 2000, p. 1; ASU 2002; AGFD
2004). Because the range of loach
minnow has been severely reduced, and
only a few streams remain occupied, the
Black River Complex is considered
essential to the loach minnow. In
addition, Complex 2 supports one or
more of the PCEs for loach minnow,
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). In addition, the lateral extent of
each segment within this complex of
critical habitat contains sufficient PCEs
(3 and 5) to provide for one or more of
the life history functions of the
spikedace and loach minnow. Threats in
this complex requiring special
management or protections include
improper livestock grazing, nonnative
fish, recreation, and sedimentation
including that from a recent fire that
destroyed vegetation (see Table 1). The
ownership of this complex is
predominantly U.S. Forest Service, with
a few small areas of private land. All
streams within the complex are within
the boundaries of the Apache-Sitgreaves
National Forest and include lands of the
White Mountain Apache Tribe.
(1) East Fork Black River—Loach
Minnow Only—12.2 mi (19.7 km) of
river extending from the confluence
with the West Fork Black River
upstream to the confluence with an
unnamed tributary approximately 0.51
mi (0.82 km) downstream of the
Boneyard Creek confluence. This area is
considered occupied based on records
from 1996, it is connected to the North
Fork East Fork Black River with
documented loach minnow records
from 2004, and contains one or more of
the primary constituent elements
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs).
(2) North Fork East Fork Black River—
Loach Minnow Only—4.4 mi (7.1 km) of
river extending from the confluence
with the East Fork Black River upstream
to the confluence with an unnamed
tributary. This area is occupied by loach
minnow based on surveys documenting
presence of loach minnow as recently as
2004. Above the unnamed tributary, the
river has finer substrate and lacks riffle
habitat, making it unsuitable for loach
minnow.
(3) Boneyard Creek—Loach Minnow
Only—1.4 mi (2.3 km) of creek
extending from the confluence with the
East Fork Black River upstream to the
confluence with an unnamed tributary.
Boneyard Creek contains one or more of
the primary constituent elements,
including sufficient flow velocities and
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appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). This area is considered to be
occupied based on records from 1996; it
is also connected to the North Fork East
Fork Black River which has documented
loach minnow records from 2004. This
area represents part of the only
occupied complex in the Salt River
basin.
(4) East Fork White River—Loach
Minnow Only—12.5 mi (20.1 km) of the
East Fork White River extending from
the confluence with the North Fork
White River and the East Fork White
River at Township 5 North, Range 22
East, section 35 upstream to Township
5 North, Range 23 East, southeast
quarter of section 13. This area was
occupied by loach minnow at the time
of listing and is reported to be currently
occupied by the White Mountain
Apache Tribe. This segment of the East
Fork White River contains sufficient
features to support one or more of the
life history functions of the loach
minnow that may include appropriate
gradient, temperature, habitat types
(pool, riffle, run, etc.), and low levels of
non-natives. Threats in this segment
requiring special management or
protections include water diversions
and recreation. The entirety of this
reach is located on lands belonging to
the White Mountain Apache Tribe. A
management plan for loach minnow has
been in place on these lands since 2000.
On the basis of this plan and our
partnership with the White Mountain
Apache Tribe, we are excluding this
area from final critical habitat pursuant
to section 4(b)(2) of the Act (see
‘‘Relationship of Critical Habitat to
Tribal Lands’’ section below for
additional information).
Complex 3—Middle Gila/Lower San
Pedro/Aravaipa Creek Complex—Pinal
and Graham Counties, Arizona
The portions of this complex
designated as critical habitat are within
the geographical range occupied by both
spikedace and loach minnow at their
listing and currently. Spikedace and
loach minnow have been present within
this complex since 1943, with
occupancy confirmed most recently in
2006 (ASU 2002, AGFD 2004, Rienthal
2006, p. 2–3). The portions of the Gila
and San Pedro rivers included within
this complex were not known to be
occupied at listing, with the first
detection on the Gila River occurring in
1991 (Jakle 1992, p. 6). However, this
area is connected via the San Pedro
River to Aravaipa Creek, which contains
one of the largest remaining populations
of spikedace, and is therefore
considered to be occupied for the
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purposes of critical habitat. Because the
distribution of spikedace is reduced to
populations in the Verde River,
Aravaipa Creek, and the Gila River in
New Mexico, all remaining populations
are considered important to the species.
This complex contains one or more of
the PCEs for both species including
sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). In addition, the lateral extent of
each segment within this complex of
critical habitat contains sufficient PCEs
(3 and 5) to provide for one or more of
the life history functions of the
spikedace and loach minnow. Ongoing
actions requiring special management or
protections in this area include wildfire,
some recreational pressure, low
nonnative pressures, water diversions,
and contaminants issues. Aravaipa
Creek supports the largest remaining
spikedace and loach minnow
populations in Arizona. Threats in this
complex requiring special management
or protections include water diversions,
improper livestock grazing, nonnative
fish, recreation, and mining (see Table
1). This area includes extensive BLM
land as well as extensive private land,
some State of Arizona lands, and a small
area of allotted land, used by the San
Carlos Apache Tribe. The lower
portions of the Gila River are Bureau of
Reclamation lands.
(1) Gila River—Spikedace Only—39.0
mi (62.8 km) of river extending from the
Ashurst-Hayden Dam upstream to the
confluence with the San Pedro River.
Spikedace were located in the Gila River
in 1991 (Jakle 1992, p. 6), and the Gila
River is connected with Aravaipa Creek,
which supports the largest remaining
spikedace population. Those portions of
the Gila River designated as critical
habitat contain one or more of the
primary constituent elements, including
sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., glides,
runs, eddies). Above the confluence
with the San Pedro River, flow in the
Gila River is highly regulated by the
Coolidge Dam and does not contain the
features essential to the conservation of
either species. Below the confluence,
the input of the San Pedro provides a
sufficiently unregulated hydrograph,
which is a feature essential to the
conservation of the spikedace. Threats
in this area requiring special
management or protections include
water diversions, improper livestock
grazing, and nonnative fish species.
This river is part of the complex that
contains the largest remaining
population of spikedace and loach
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minnow and contains the features
essential to the conservation of the
species.
(2) Lower San Pedro River—
Spikedace Only—13.4 mi (21.5 km) of
river extending from the confluence
with the Gila River upstream to the
confluence with Aravaipa Creek. This
area was occupied at the time of listing
and is considered to be occupied as it
is directly connected with Aravaipa
Creek, which supports the largest
remaining spikedace population. This
portion of the San Pedro River contains
one or more of the primary constituent
elements, including sufficient flow
velocities and appropriate gradients,
substrates, depths, and habitat types
(i.e., glides, runs, eddies). Existing flow
in the river comes from surface and
subsurface contributions from Aravaipa
Creek. Threats in this area requiring
special management or protections
include water diversions, nonnative
fish, improper livestock grazing, and
mining. This river is part of the complex
that contains the largest remaining
population of spikedace and loach
minnow and contains the features
essential to the conservation of the
species.
(3) Aravaipa Creek—28.1 mi (45.3 km)
of creek extending from the confluence
with the San Pedro River upstream to
the confluence with Stowe Gulch,
which is where the upstream limit of
sufficient perennial flow ends for either
species. Aravaipa Creek was occupied
by both spikedace and loach minnow at
the time of listing and continues to
support a substantial population of both
species (Rienthal 2006, p. 1–2).
Aravaipa Creek contains one or more of
the primary constituent elements,
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., runs,
riffles, glides, eddies). Threats in this
area requiring special management or
protections include water diversions,
nonnative fish, and recreational
pressures (see Table 1).
(4) Turkey Creek—Loach Minnow
Only—2.7 mi (4.3 km) of creek
extending from the confluence with
Aravaipa Creek upstream to the
confluence with Oak Grove Canyon.
This creek was occupied at the time of
listing and is currently occupied by
loach minnow (Rienthal 2006, p. 2–3).
Turkey Creek contains one or more of
the primary constituent elements,
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). Threats to this area requiring
special management or protections are
generally the same as for Aravaipa
Creek, and include water diversions,
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nonnative fish, and recreational
pressure (see Table 1). This creek is part
of the complex that contains the largest
remaining population of spikedace and
loach minnow and contains the features
essential to the conservation of the
species.
(5) Deer Creek—Loach Minnow
Only—2.3 mi (3.6 km) of creek
extending from the confluence with
Aravaipa Creek upstream to the
boundary of the Aravaipa Wilderness.
This stream was occupied at the time of
listing and is currently occupied by
loach minnow. Deer Creek contains one
or more of the primary constituent
elements essential to the conservation of
loach minnow, including sufficient flow
velocities and appropriate gradients,
substrates, depths, and habitat types
(i.e., riffles, runs). The threats to loach
minnow in this area are similar to those
for Aravaipa Creek, including water
diversions, nonnative fish, and
recreation. This creek is part of the
complex that contains the largest
remaining population of spikedace and
loach minnow and contains the features
essential to the conservation of the
species.
Complex 4—San Francisco and Blue
Rivers Complex—Graham and
Greenlee Counties, Arizona and Catron
County, New Mexico
The streams in this complex are
within the geographical range occupied
by the loach minnow and the spikedace.
The Blue River system and adjacent
portions of the San Francisco River
constitute the longest stretch of
occupied loach minnow habitat
unbroken by large areas of unsuitable
habitat. Loach minnow have been
present in this complex since 1840 up
to the present, including at its listing
(Miller 1998, pp. 4–5; ASU 2002; AGFD
2004; Carter 2005, pp. 1–9; Propst 2005,
p. 6; Propst 2006, p. 2). Within this
complex, Eagle Creek was known to be
occupied by spikedace at its listing
(ASU 2002; Marsh et al. 2003, pp. 666–
668; AGFD 2004), while Frieborn,
Negrito, and Pace creeks were not
known to be occupied at the time of
listing. For the areas not known to be
occupied at the time of listing, each of
these areas is currently occupied by
loach minnow, supports one or more of
the PCEs, and is connected to a stream
that is also currently occupied. Because
the distribution of loach minnow has
been severely reduced, these creeks are
considered essential to the species.
Streams in this complex contain one or
more of the PCEs for both species
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
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13387
runs). In addition, the lateral extent of
each segment within this complex of
critical habitat contains sufficient PCEs
(3 and 5) to provide for one or more of
the life history functions of the
spikedace and loach minnow. Threats in
this complex requiring special
management are described in the
individual stream reaches below. This
complex contains extensive U.S. Forest
Service land, some BLM land, and
scattered private, State of Arizona, and
NMDGF lands.
(1) Eagle Creek—Loach Minnow
Only—44.8 mi (71.9 km) of creek
extending from the Phelps-Dodge
Diversion Dam upstream to the
confluence of Dry Prong and East Eagle
creeks, including lands of the San
Carlos Apache Reservation and the
Phelps Dodge Corporation. Eagle Creek
was occupied by spikedace and loach
minnow at the time of listing. The most
current records of occupancy in Eagle
Creek are from 1997 for loach minnow
and 1989 for spikedace. Eagle Creek
contains one or more of the primary
constituent elements essential to the
conservation of loach minnow,
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). Threats within this area that
require special management or
protections include water diversions,
improper livestock grazing, nonnative
fish, and mining (see Table 1).
A section of Eagle Creek
approximately 17.2 mi (27.7 km) long
occurs on the San Carlos Apache
Reservation. We have received a
management plan from the San Carlos
Apache Tribe addressing native fishes.
On the basis of this plan and our
partnership with the San Carlos Apache
Tribe, we are excluding this area from
final critical habitat pursuant to section
4(b)(2) of the Act (see ‘‘Relationship of
Critical Habitat to Tribal Lands’’ section
below for additional information). An
additional 9.9 mi (15.7 km) are owned
by the Phelps Dodge Corporation. We
received a management plan from
Phelps Dodge addressing management
for spikedace and loach minnow. On the
basis of this plan, we are excluding their
lands from the final critical habitat
designation pursuant to section 4(b)(2)
of the Act (see ‘‘Exclusions under
Section 4(b)(2) of the Act’’ for additional
information).
(2) San Francisco River—Loach
Minnow Only—126.5 mi (203.5 km) of
river extending from the confluence
with the Gila River upstream to the
mouth of The Box, a canyon above the
town of Reserve. Loach minnow
occupied the San Francisco River at the
time of listing and occupy it presently,
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with occupancy verified in 2005. The
San Francisco River contains one or
more of the primary constituent
elements essential to the conservation of
loach minnow, including sufficient flow
velocities and appropriate gradients,
substrates, depths, and habitat types
(i.e., riffles, runs). Threats to this area
requiring special management or
protections include water diversions,
improper livestock grazing, and
nonnative fish species (see Table 1).
(3) Tularosa River—Loach Minnow
Only—18.6 mi (30.0 km) of river
extending from the confluence with the
San Francisco River upstream to the
town of Cruzville. Above Cruzville, the
river does not contain the features
essential to the conservation of the
species because of the small size of the
stream and a predominance of fine
substrates. This area includes one or
more of the primary constituent
elements essential to the conservation of
loach minnow, including sufficient flow
velocities and appropriate gradients,
substrates, depths, and habitat types
(i.e., riffles, runs). The Tularosa River
was occupied at the time of listing and
is known to be currently occupied based
on records as recent as 2002. Threats to
the species and its habitat in this area
that require special management or
protections include grazing and
nonnative fish (see Table 1).
(4) Negrito Creek—Loach Minnow
Only—4.2 mi (6.8 km) of creek
extending from the confluence with the
Tularosa River upstream to the
confluence with Cerco Canyon. Above
this area, the creek does not contain the
features essential to the conservation of
the species because of gradient and
channel morphology. Negrito Creek has
been occupied since listing, with the
most recent record from 1998 (Service
2005). In addition, this area is directly
connected to the Tularosa River, which
has occupancy records as recent as
2002. Negrito Creek contains one or
more of the primary constituent
elements essential to the conservation of
loach minnow, including sufficient flow
velocities and appropriate gradients,
substrates, depths, and habitat types
(i.e., riffles, runs). Threats to this area
requiring special management or
protections include improper livestock
grazing and nonnative fish (see Table 1).
(5) Whitewater Creek—Loach Minnow
Only—1.1 mi (1.8 km) of creek
extending from the confluence with the
San Francisco River upstream to the
confluence with the Little Whitewater
Creek. Upstream of this area the river
does not contain the features essential to
the conservation of the species because
of gradient and channel changes that
make the portion above Little
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Whitewater Creek unsuitable for loach
minnow. In addition, low water
temperatures likely influence the
upstream distributional limits (Propst
2006, p. 2). Whitewater Creek was
occupied at the time of listing, and is
connected with the San Francisco River,
which has documented loach minnow
records as recent as 2001. This area does
support one or more primary
constituent elements for loach minnow,
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). Threats to this area include
grazing and nonnative fish (see Table 1).
(6) Blue River—Loach Minnow
Only—51.1 mi (82.2 km) of river
extending from the confluence with the
San Francisco River upstream to the
confluence of Campbell Blue and Dry
Blue creeks. The Blue River was
occupied at the time of listing and
continues to be occupied by loach
minnow (Carter 2005, pp. 1–9). The
Blue River contains one or more of the
primary constituent elements essential
to the conservation of loach minnow,
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). Planning is underway among
several State and Federal agencies for
reintroduction of native fishes,
including spikedace, in the Blue River,
and thus the Blue River may be
considered for spikedace critical habitat
in future revisions of the designation.
Threats in this area include water
diversions, improper livestock grazing,
nonnative fish, and roads (see Table 1).
(7) Campbell Blue Creek—Loach
Minnow Only—8.1 mi (13.1 km) of
creek extending from the confluence of
Dry Blue and Campbell Blue creeks
upstream to the confluence with
Coleman Canyon. Areas above Coleman
Canyon do not contain the features
essential to the conservation of the
species because the creek becomes
steeper and rockier, making it
unsuitable for loach minnow. Campbell
Blue Creek is currently occupied (Carter
2005, pp. 1–9) and supports one or more
of the velocities and appropriate
gradients, substrates, depths, and
habitat types (i.e., riffles, runs). Threats
to this area requiring special
management or protections include
improper livestock grazing and
nonnative fish species (see Table 1).
(8) Dry Blue Creek—Loach Minnow
Only—3.0 mi (4.8 km) of creek
extending from the confluence with
Campbell Blue Creek upstream to the
confluence with Pace Creek. Dry Blue
Creek has been occupied by loach
minnow since listing and is occupied
with records dating from 2001. In
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addition, this area is connected with
Campbell Blue Creek, which has
documented loach minnow records as
recent as 2004. This area also contains
one or more of the primary constituent
elements essential to the conservation of
loach minnow, including sufficient flow
velocities and appropriate gradients,
substrates, depths, and habitat types
(i.e., riffles, runs). Threats to this area
requiring special management or
protections include improper livestock
grazing and nonnative fish species (see
Table 1).
(9) Pace Creek—Loach Minnow
Only—0.8 mi (1.2 km) of creek
extending from the confluence with Dry
Blue Creek upstream to a barrier falls.
Pace Creek has been occupied by loach
minnow since listing and is considered
currently occupied with the most recent
record from 1998. This area also
contains one or more of the primary
constituent elements essential to the
conservation of loach minnow,
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). Threats to this area requiring
special management or protections
include improper livestock grazing and
nonnative fish species (see Table 1).
(10) Frieborn Creek—Loach Minnow
Only—1.1 mi (1.8 km) of creek
extending from the confluence with Dry
Blue Creek upstream to an unnamed
tributary. Frieborn Creek has been
occupied by loach minnow since listing
and is currently occupied with the most
recent record from 1998. This area also
contains one or more of the primary
constituent elements essential to the
conservation of loach minnow,
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). Threats to this area requiring
special management or protections
include improper livestock grazing and
nonnative fish species (see Table 1).
(11) Little Blue Creek—Loach
Minnow Only—2.8 mi (4.5 km) of creek
extending from the confluence with the
Blue River upstream to the mouth of a
canyon. Little Blue Creek was occupied
at the time of listing and is considered
to be occupied as it is directly
connected with the Blue River, which
has documented loach minnow records
as recent as 2004. This area also
contains one or more of the primary
constituent elements essential to the
conservation of loach minnow including
sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). Threats requiring special
management or protections in this area
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include grazing and nonnative fish (see
Table 1).
Complex 5—Upper Gila River
Complex—Grant, Catron, and Hidalgo
Counties, New Mexico
Spikedace have been known to be
present in this complex since 1935 and
up through the present. Loach minnow
have been known to be present in this
complex since 1938 and up through the
present. This complex was occupied by
both spikedace and loach minnow at the
time of listing (Propst et al. 1998, p. 14–
15; ASU 2002; Propst 2002, p. 4, 22, 27,
31; Paroz et al. 2006, p. 63–64; Propst
2006, p. 2). This complex contains the
largest remaining populations of both
species in New Mexico. It is considered
to represent the ‘‘core’’ of what remains
of these species. Streams in this
complex contain one or more of the
PCEs for both species including
sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). In addition, the lateral extent of
each segment within this complex of
critical habitat contains sufficient PCEs
(3 and 5) to provide for one or more of
the life history functions of the
spikedace and loach minnow. Threats
requiring special management or
protections in this area are addressed in
each of the individual stream segment
descriptions below. The largest areas are
on U.S. Forest Service land, with small
private inholdings. There are large areas
of private lands in the Cliff-Gila Valley,
and the BLM administers significant
stretches upstream of the Arizona/New
Mexico border. There are also small
areas of NMDGF, National Park Service,
and State of New Mexico lands.
(1) Upper Gila River—102.2 mi (164.4
km) of river extending from the
confluence with Moore Canyon (near
the Arizona/New Mexico border)
upstream to the confluence of the East
and West Forks of the Gila River. The
Gila River was occupied by spikedace
and loach minnow at the time of listing
and continues to be occupied by both
species (ASU 2002, Propst 2002, pp. 2,
4, 29–33). The Gila River from its
confluence with the West Fork Gila and
East Fork Gila contains one or more
primary constituent elements for
spikedace and loach minnow, including
sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs, glides, eddies). Threats to this area
requiring special management or
protections include water diversions,
improper livestock grazing, recreation,
road construction, and nonnative fish
species (see Table 1). Approximately 7.2
mi (11.6 km) along the Gila River are
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owned by the Phelps Dodge
Corporation. We received a management
plan from Phelps Dodge addressing
management for spikedace and loach
minnow for these areas. On the basis of
this plan, we are excluding their lands
from the final critical habitat
designation pursuant to section 4(b)(2)
of the Act, and because of economic
impact concerns (see ‘‘Exclusion under
Section 4(b)(2) of the Act’’ for additional
information).
(2) East Fork Gila River—26.1 mi (42.0
km) of river extending from the
confluence with the West Fork Gila
River upstream to the confluence of
Beaver and Taylor creeks. This area was
occupied by both species at the time of
listing and both species have been
found there as recently as 2001. In
addition, this area is connected to
habitat currently occupied by spikedace
and loach minnow on the West Fork of
the Gila River. Portions of the East Fork
Gila River contain one or more of the
primary constituent elements essential
to the conservation of spikedace and
loach minnow including sufficient flow
velocities and appropriate gradients,
substrates, depths, and habitat types
(i.e., riffles, runs, glides, eddies).
Threats to this area requiring special
management or protections include
improper livestock grazing, nonnative
fish species, and ash flows from
wildfires (See Table 1).
(3) Middle Fork Gila River—
Spikedace Only—7.7 mi (12.3 km) of
river extending from the confluence
with the West Fork Gila River upstream
to the confluence with Big Bear Canyon.
This area is currently occupied (ASU
2002, Paroz et al. 2006, p. 63, Propst
2002, p. 22, Propst 2006, p. 2), and is
connected to currently occupied habitat
on the West Fork of the Gila River. The
Middle Fork Gila River contains one or
more of the primary constituent
elements essential to the conservation of
spikedace, including sufficient flow
velocities and appropriate gradients,
substrates, depths, and habitat types
(i.e., riffles, runs, glides, eddies).
Threats to this area requiring special
management or protections include
improper livestock grazing, nonnative
fish species, and ash flows and
increased sediment loading following
recent wildfires (See Table 1).
(4) Middle Fork Gila River—Loach
Minnow Only—11.9 mi (19.1 km) of
river extending from the confluence
with the West Fork Gila River upstream
to the confluence with Brothers West
Canyon. This area is currently occupied
(ASU 2002, Paroz et al. 2006, p. 63,
Propst 2002, p. 22, Propst 2006, p. 2)
and is connected to currently occupied
habitat on the West Fork of the Gila
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13389
River. Portions of the Middle Fork Gila
River contain one or more primary
constituent elements essential to the
conservation of loach minnow,
including sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs). Threats to this area requiring
special management or protections
include grazing, nonnative fish species,
and ash flows and increased sediment
loading following wildfires (See Table
1).
(5) West Fork Gila River—7.7 mi (12.4
km) of river extending from the
confluence with the East Fork Gila River
upstream to the confluence with EE
Canyon. This lower portion of the West
Fork Gila River was occupied by both
spikedace and loach minnow at the time
of listing and continues to be occupied
by both species. This area contains one
or more primary constituent elements
essential to the conservation of
spikedace and loach minnow, including
sufficient flow velocities and
appropriate gradients, substrates,
depths, and habitat types (i.e., riffles,
runs, glides, eddies). Above EE Canyon,
the river does not contain the features
essential to the conservation of the
species due to gradient and channel
morphology. Threats to this area
requiring special management or
protections include nonnative fish
species and ash flows and increased
sediment loading following wildfires
(See Table 1).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal
agencies, including the Service, to
ensure that actions they fund, authorize,
or carry out are not likely to destroy or
adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define
destruction or adverse modification as
‘‘a direct or indirect alteration that
appreciably diminishes the value of
critical habitat for both the survival and
recovery of a listed species. Such
alterations include, but are not limited
to, alterations adversely modifying any
of those physical or biological features
that were the basis for determining the
habitat to be critical.’’ However, recent
decisions by the 5th and 9th Circuit
Court of Appeals have invalidated this
definition. Pursuant to current national
policy and the statutory provisions of
the Act, destruction or adverse
modification is determined on the basis
of whether, with implementation of the
proposed Federal action, the affected
critical habitat would remain functional
(or retain the current ability for the
primary constituent elements to be
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functionally established) to serve the
intended conservation role for the
species.
Section 7(a) of the Act requires
Federal agencies, including the Service,
to evaluate their actions with respect to
any species that is proposed or listed as
endangered or threatened and with
respect to its critical habitat, if any is
proposed or designated. Regulations
implementing this interagency
cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires
Federal agencies to confer with us on
any action that is likely to jeopardize
the continued existence of a proposed
species or result in destruction or
adverse modification of proposed
critical habitat. This is a procedural
requirement only. However, once a
proposed species becomes listed, or
proposed critical habitat is designated
as final, the full prohibitions of section
7(a)(2) apply to any Federal action. The
primary utility of the conference
procedures is to maximize the
opportunity for a Federal agency to
adequately consider proposed species
and critical habitat and avoid potential
delays in implementing their proposed
action because of the section 7(a)(2)
compliance process, should those
species be listed or the critical habitat
designated.
Under conference procedures, the
Service may provide advisory
conservation recommendations to assist
the agency in eliminating conflicts that
may be caused by the proposed action.
The Service may conduct either
informal or formal conferences. Informal
conferences are typically used if the
proposed action is not likely to have any
adverse effects to the proposed species
or proposed critical habitat. Formal
conferences are typically used when the
Federal agency or the Service believes
the proposed action is likely to cause
adverse effects to proposed species or
critical habitat, inclusive of those that
may cause jeopardy or adverse
modification.
The results of an informal conference
are typically transmitted in a conference
report while the results of a formal
conference are typically transmitted in a
conference opinion. Conference
opinions on proposed critical habitat are
typically prepared according to 50 CFR
402.14, as if the proposed critical
habitat were designated. We may adopt
the conference opinion as the biological
opinion when the critical habitat is
designated, if no substantial new
information or changes in the action
alter the content of the opinion (see 50
CFR 402.10(d)). As noted above, any
conservation recommendations in a
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conference report or opinion are strictly
advisory.
If a species is listed or critical habitat
is designated, section 7(a)(2) of the Act
requires Federal agencies to ensure that
activities they authorize, fund, or carry
out are not likely to jeopardize the
continued existence of such a species or
to destroy or adversely modify its
critical habitat. If a Federal action may
affect a listed species or its critical
habitat, the responsible Federal agency
(action agency) must enter into
consultation with us. As a result of this
consultation, compliance with the
requirements of section 7(a)(2) will be
documented through the Service’s
issuance of: (1) A concurrence letter for
Federal actions that may affect, but are
not likely to adversely affect, listed
species or critical habitat; or (2) a
biological opinion for Federal actions
that may affect, but are likely to
adversely affect, listed species or critical
habitat.
When we issue a biological opinion
concluding that a project is likely to
result in jeopardy to a listed species or
the destruction or adverse modification
of critical habitat, we also provide
reasonable and prudent alternatives to
the project, if any are identifiable.
‘‘Reasonable and prudent alternatives’’
are defined at 50 CFR 402.02 as
alternative actions identified during
consultation that can be implemented in
a manner consistent with the intended
purpose of the action, that are consistent
with the scope of the Federal agency’s
legal authority and jurisdiction, that are
economically and technologically
feasible, and that the Director believes
would avoid jeopardy to the listed
species or destruction or adverse
modification of critical habitat.
Reasonable and prudent alternatives can
vary from slight project modifications to
extensive redesign or relocation of the
project. Costs associated with
implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require
Federal agencies to reinitiate
consultation on previously reviewed
actions in instances where a new
species is listed or critical habitat is
subsequently designated that may be
affected and the Federal agency has
retained discretionary involvement or
control over the action or such
discretionary involvement or control is
authorized by law. Consequently, some
Federal agencies may request
reinitiation of consultation with us on
actions for which formal consultation
has been completed, if those actions
may affect subsequently listed species
or designated critical habitat or
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adversely modify or destroy proposed
critical habitat.
Federal activities that may affect the
spikedace and loach minnow or their
designated critical habitat will require
section 7 consultation under the Act.
Activities on State, Tribal, local or
private lands requiring a Federal permit
(such as a permit from the Corps under
section 404 of the Clean Water Act or a
permit under section 10(a)(1)(B) of the
Act from the Service) or involving some
other Federal action (such as funding
from the Federal Highway
Administration, Federal Aviation
Administration, or the Federal
Emergency Management Agency) will
also be subject to the section 7
consultation process. Federal actions
not affecting listed species or critical
habitat, and actions on State, Tribal,
local, or private lands that are not
federally-funded, authorized, or
permitted, do not require section 7
consultations.
Application of the Jeopardy and
Adverse Modification Standards for
Actions Involving Effects to the
Spikedase and Loach Minnow and Their
Critical Habitat
Jeopardy Standard
Prior to and following designation of
critical habitat, the Service has applied
an analytical framework for spikedace
and loach minnow jeopardy analyses
that relies heavily on the importance of
core area populations to the survival
and recovery of the spikedace and loach
minnow. The section 7(a)(2) analysis is
focused not only on these populations
but also on the habitat conditions
necessary to support them.
The jeopardy analysis usually
expresses the survival and recovery
needs of the spikedace and loach
minnow in a qualitative fashion without
making distinctions between what is
necessary for survival and what is
necessary for recovery. Generally, if a
proposed Federal action is incompatible
with the viability of the affected core
area population(s), inclusive of
associated habitat conditions, a jeopardy
opinion is warranted because of the
relationship of each core area
population to the survival and recovery
of the species as a whole.
Adverse Modification Standard
For the reasons described in the
Director’s December 9, 2004
memorandum, the key factor related to
the adverse modification determination
is whether, with implementation of the
proposed Federal action, the affected
critical habitat would remain functional
(or retain the current ability for the
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primary constituent elements to be
functionally established) to serve the
intended conservation role for the
species. Generally, the conservation role
of spikedace and loach minnow critical
habitat units is to support viable core
area populations.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe in any
proposed or final regulation that
designates critical habitat those
activities involving a Federal action that
may destroy or adversely modify such
habitat, or that may be affected by such
designation. Activities that may destroy
or adversely modify critical habitat may
also jeopardize the continued existence
of the species.
Activities that may destroy or
adversely modify critical habitat are
those that alter the PCEs to an extent
that the conservation value of critical
habitat for the spikedace and loach
minnow is appreciably reduced.
Activities that, when carried out,
funded, or authorized by a Federal
agency, may affect critical habitat and
therefore result in consultation for the
spikedace and loach minnow include,
but are not limited to:
(1) Channelization, impoundment,
road and bridge construction,
deprivation of substrate source,
destruction and alteration of riparian
vegetation, reduction of available
floodplain, removal of gravel or
floodplain terrace materials, and
excessive sedimentation from mining,
livestock grazing, road construction,
timber harvest, off-road vehicle use, and
other watershed and floodplain
disturbances;
(2) actions that would significantly
and detrimentally alter the water
chemistry in any of the stream segments
listed above could destroy or adversely
modify the critical habitat of either or
both species. Such activities include,
but are not limited to, release of
chemical or biological pollutants into
the surface water or connected
groundwater at a point source or by
dispersed release (non-point source);
(3) actions that would introduce,
spread, or augment nonnative fish
species could destroy or adversely
modify the critical habitat of either or
both species; and
(4) actions that would result in the
removal of water from waterways. Such
activities include, but are not limited to,
construction and operation of canals
and interbasin water transfers.
We consider all of the units
designated as critical habitat, as well as
those that have been excluded, to
contain features essential to the
conservation of the spikedace and loach
minnow. All units are within the
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geographic range of the species, all were
occupied by the species at the time of
listing, and are likely to be used by the
spikedace and loach minnow. Federal
agencies already consult with us on
activities in areas currently occupied by
the spikedace and loach minnow, or if
the species may be affected by the
action, to ensure that their actions do
not jeopardize the continued existence
of the spikedace and loach minnow.
Exclusions Under Section 4(b)(2) of the
Act
Section 4(b)(2) of the Act states that
critical habitat shall be designated, and
revised, on the basis of the best
available scientific data after taking into
consideration the economic impact,
national security impact, and any other
relevant impact, of specifying any
particular area as critical habitat. The
Secretary may exclude an area from
critical habitat if [s]he determines that
the benefits of such exclusion outweigh
the benefits of specifying such area as
part of the critical habitat, unless he
determines, based on the best scientific
data available, that the failure to
designate such area as critical habitat
will result in the extinction of the
species. In making that determination,
the Secretary is afforded broad
discretion and the Congressional record
is clear that in making a determination
under the section the Secretary has
discretion as to which factors and how
much weight will be given to any factor.
Under section 4(b)(2), in considering
whether to exclude a particular area
from the designation, we must identify
the benefits of including the area in the
designation, identify the benefits of
excluding the area from the designation,
determine whether the benefits of
exclusion outweigh the benefits of
inclusion. If an exclusion is
contemplated, then we must determine
whether excluding the area would result
in the extinction of the species. In the
following sections, we address a number
of general issues that are relevant to the
exclusions we considered.
General Principles of Section 7
Consultations Used in the 4(b)(2)
Balancing Process
The most direct, and potentially
largest, regulatory benefit of critical
habitat is that federally authorized,
funded, or carried out activities require
consultation pursuant to section 7 of the
Act to ensure that they are not likely to
destroy or adversely modify critical
habitat. There are two limitations to this
regulatory effect. First, it only applies
where there is a Federal nexus—if there
is no Federal nexus, designation itself
does not restrict actions that destroy or
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adversely modify critical habitat.
Second, it only limits destruction or
adverse modification. By its nature, the
prohibition on adverse modification is
designed to ensure those areas that
contain the physical and biological
features essential to the conservation of
the species or unoccupied areas that are
essential to the conservation of the
species are not eroded. Critical habitat
designation alone, however, can not
require active management efforts
toward recovery.
Once consultation under section 7 of
the Act is triggered, the process may
conclude informally when the Service
concurs in writing that the proposed
Federal action is not likely to adversely
affect the listed species or its critical
habitat. However, if the Service
determines through informal
consultation that adverse impacts are
likely to occur, then formal consultation
would be initiated. Formal consultation
concludes with a biological opinion
issued by the Service on whether the
proposed Federal action is likely to
jeopardize the continued existence of a
listed species or result in destruction or
adverse modification of critical habitat,
with separate analyses being made
under both the jeopardy and the adverse
modification standards. For critical
habitat, a biological opinion that
concludes in a determination of no
destruction or adverse modification may
contain discretionary conservation
recommendations to minimize adverse
effects to primary constituent elements,
but it would not contain any mandatory
reasonable and prudent measures or
terms and conditions. Mandatory
measures and terms and conditions to
implement such measures are only
specified when the proposed action
would result in the incidental take of a
listed animal species. Reasonable and
prudent alternatives to the proposed
Federal action would only be suggested
when the biological opinion results in a
jeopardy or adverse modification
conclusion.
We also note that for 30 years prior to
the Ninth Circuit Court’s decision in
Gifford Pinchot, the Service conflated
the jeopardy standard with the standard
for destruction or adverse modification
of critical habitat when evaluating
federal actions that affect currently
occupied critical habitat. The Court
ruled that the two standards are distinct
and that adverse modification
evaluations require consideration of
impacts on the recovery of species.
Thus, under the Gifford Pinchot
decision, critical habitat designations
may provide greater benefits to the
recovery of a species. However, we
believe the conservation achieved
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through implementing management
plans is typically greater than would be
achieved through multiple site-by-site,
project-by-project, section 7
consultations involving consideration of
critical habitat. Management plans
commit resources to implement longterm management and protection to
particular habitat for at least one and
possibly other listed or sensitive
species. Section 7 consultations only
commit Federal agencies to prevent
adverse modification to critical habitat
caused by the particular project, and
they are not committed to provide
conservation or long-term benefits to
areas not affected by the proposed
project. Thus, any management plan
which considers enhancement or
recovery as the management standard
will often provide as much or more
benefit than a consultation for critical
habitat designation conducted under the
standards required by the Ninth Circuit
in the Gifford Pinchot decision.
The information provided in this
section applies to all the discussions
below that discuss the benefits of
inclusion and exclusion of critical
habitat in that it provides the framework
for the consultation process.
Educational Benefits of Critical Habitat
A benefit of including lands in critical
habitat is that the designation of critical
habitat serves to educate landowners,
State and local governments, and the
public regarding the potential
conservation value of an area. This
helps focus and promote conservation
efforts by other parties by clearly
delineating areas of high conservation
value for the spikedace and loach
minnow. In general the educational
benefit of a critical habitat designation
always exists, although in some cases it
may be redundant with other
educational effects. For example, habitat
conservation plans have significant
public input and may largely duplicate
the educational benefit of a critical
habitat designation. This benefit is
closely related to a second, more
indirect benefit: That designation of
critical habitat would inform State
agencies and local governments about
areas that could be conserved under
State laws or local ordinances.
However, we believe that there would
be little additional informational benefit
gained from the designation of critical
habitat for the exclusions discussed in
this rule because these areas are
included in this rule as having habitat
containing the features essential to the
conservation of the species.
Consequently, we believe that the
informational benefits are already
provided even though these areas are
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not designated as critical habitat.
Additionally, the purpose normally
served by the designation, that of
informing State agencies and local
governments about areas that would
benefit from protection and
enhancement of critical habitat for the
spikedace and loach minnow, is already
well established among State and local
governments, and Federal agencies in
those areas that we are excluding from
critical habitat in this rule on the basis
of other existing habitat management
protections.
The information provided in this
section applies to all the discussions
below that discuss the benefits of
inclusion and exclusion of critical
habitat.
Conservation Partnerships on NonFederal Lands
Most federally listed species in the
United States will not recover without
the cooperation of non-Federal
landowners. More than 60 percent of the
United States is privately owned
(National Wilderness Institute 1995),
and at least 80 percent of endangered or
threatened species occur either partially
or solely on private lands (Crouse et al.
2002). Stein et al. (1995) found that only
about 12 percent of listed species were
found almost exclusively on Federal
lands (90 to 100 percent of their known
occurrences restricted to Federal lands)
and that 50 percent of federally listed
species are not known to occur on
Federal lands at all.
Given the distribution of listed
species with respect to land ownership,
conservation of listed species in many
parts of the United States is dependent
upon working partnerships with a wide
variety of entities and the voluntary
cooperation of many non-Federal
landowners (Wilcove and Chen 1998,
Crouse et al. 2002, James 2002).
Building partnerships and promoting
voluntary cooperation of landowners is
essential to understanding the status of
species on non-Federal lands and is
necessary to implement recovery actions
such as reintroducing listed species,
active management, and habitat
protection.
Many non-Federal landowners derive
satisfaction in contributing to
endangered species recovery. The
Service promotes these private-sector
efforts through the Four Cs
philosophy—conservation through
communication, consultation, and
cooperation. This philosophy is evident
in Service programs such as HCPs, Safe
Harbor Agreements, Candidate
Conservation Agreements, Candidate
Conservation Agreements with
Assurances, and conservation challenge
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cost-share. Many private landowners,
however, are wary of the possible
consequences of encouraging
endangered species to their property,
and there is mounting evidence that
some regulatory actions by the Federal
government, while well-intentioned and
required by law, can (under certain
circumstances) have unintended
negative consequences for the
conservation of species on private lands
(Wilcove et al. 1996, Bean 2002, Conner
and Mathews 2002, James 2002, Koch
2002, Brook et al. 2003). Many
landowners fear a decline in their
property value due to real or perceived
restrictions on land-use options where
threatened or endangered species are
found, and more specifically, when
critical habitat is proposed or
designated. Consequently, harboring
endangered species is viewed by many
landowners as a liability, resulting in
anti-conservation incentives because
maintaining habitats that harbor
endangered species represents a risk to
future economic opportunities (Main et
al. 1999, Brook et al. 2003).
The purpose of designating critical
habitat is to contribute to the
conservation of threatened and
endangered species and the ecosystems
upon which they depend. The outcome
of the designation, triggering regulatory
requirements for actions funded,
authorized, or carried out by Federal
agencies under section 7 of the Act, can
sometimes be counterproductive to its
intended purpose on non-Federal lands.
According to some researchers, the
designation of critical habitat on private
lands significantly reduces the
likelihood that landowners will support
and carry out conservation actions
(Main et al. 1999, Bean 2002, Brook et
al. 2003). The magnitude of this
negative outcome is greatly amplified in
situations where active management
measures (such as reintroduction, fire
management, control of invasive
species) are necessary for species
conservation (Bean 2002). A critical
habitat designation cannot require such
actions on the lands being exempted
here.
The Service believes that the
judicious use of excluding specific areas
of non-federally owned lands from
critical habitat designations can
contribute to species recovery and
provide a superior level of conservation
than critical habitat alone. For example,
less than 17 percent of Hawaii is
federally owned, but the state is home
to more than 24 percent of all federally
listed species, most of which will not
recover without State and private
landowner cooperation. On the island of
Lanai, Castle and Cooke Resorts, LLC,
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which owns 99 percent of the island,
entered into a conservation agreement
with the Service. The conservation
agreement provides conservation
benefits to target species through
management actions that remove threats
(such as axis deer, mouflon sheep, rats,
invasive nonnative plants) from the
Lanaihale and East Lanai Regions.
Specific management actions include
fire control measures, nursery
propagation of native flora (including
the target species) and planting of such
flora. These actions will significantly
improve the habitat for all currently
occurring species. Due to the low
likelihood of a Federal nexus on the
island, we believe that the benefits of
excluding the lands covered by the
MOA exceeded the benefits of including
them. As stated in the final critical
habitat rule for endangered plants on
the Island of Lanai:
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On Lanai, simply preventing ‘‘harmful
activities’’ will not slow the extinction of
listed plant species. Where consistent with
the discretion provided by the Act, the
Service believes it is necessary to implement
policies that provide positive incentives to
private landowners to voluntarily conserve
natural resources and that remove or reduce
disincentives to conservation. While the
impact of providing these incentives may be
modest in economic terms, they can be
significant in terms of conservation benefits
that can stem from the cooperation of the
landowner. The continued participation of
Castle and Cooke Resorts, LLC, in the
existing Lanai Forest and Watershed
Partnership and other voluntary conservation
agreements will greatly enhance the Service’s
ability to further the recovery of these
endangered plants.
The Department of the Interior’s Four
C’s philosophy—conservation through
communication, consultation, and
cooperation—is the foundation for
developing the tools of conservation.
These tools include conservation grants,
funding for Partners for Fish and
Wildlife Program, the Coastal Program,
and cooperative-conservation challenge
cost-share grants. Our Private
Stewardship Grant program and
Landowner Incentive Program provide
assistance to private landowners in their
voluntary efforts to protect threatened,
imperiled, and endangered species,
including the development and
implementation of Habitat Conservation
Plans (HCPs).
Conservation agreements with nonFederal landowners (HCPs, contractual
conservation agreements, easements,
and stakeholder-negotiated State
regulations) enhance species
conservation by extending species
protections and providing for positive
management actions beyond those that
can be required through section 7
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consultations. In the past decade we
have encouraged non-Federal
landowners to enter into conservation
agreements, based on a view that we can
achieve greater species conservation on
non-Federal land through such
partnerships than we can through
coercive methods (61 FR 63854;
December 2, 1996).
Relationship of Critical Habitat to
Economic Impacts—Exclusions Under
Section 4(b)(2) of the Act
This section allows the Secretary to
exclude areas from critical habitat for
economic reasons if he determines that
the benefits of such exclusion exceed
the benefits of designating the area as
critical habitat, unless the exclusion
will result in the extinction of the
species concerned. Congress has
provided this discretionary authority to
the Secretary with respect to critical
habitat. Although economic and other
impacts may not be considered when
listing a species, Congress has expressly
required their consideration when
designating critical habitat.
In making the following exclusions,
we have in general considered that all
of the costs and other impacts predicted
in the economic analysis may not be
avoided by excluding the area, because
all of the areas in question are currently
occupied by the listed species and there
will be requirements for consultation
under section 7 of the Act, or for
permits under section 10 (henceforth
‘‘consultation’’), for any take of these
species, and other protections for the
species exist elsewhere in the Act and
under State and local laws and
regulations. In conducting economic
analyses, we are guided by the 10th
Circuit Court of Appeal’s ruling in the
New Mexico Cattle Growers Association
case (248 F.3d at 1285), which directed
us to consider all impacts, ‘‘regardless of
whether those impacts are attributable
co-extensively to other causes.’’ As
explained in the analysis, due to
possible overlapping regulatory schemes
and other reasons, some elements of the
analysis may also overstate some costs.
Conversely, the Ninth Circuit has
recently ruled (Gifford Pinchot, 378 F.3d
at 1071) that the Service’s regulations
defining ‘‘adverse modification’’ of
critical habitat are invalid because they
define adverse modification as affecting
both survival and recovery of a species.
The Court directed us to consider that
determinations of adverse modification
should be focused on impacts to
recovery. While we have not yet
proposed a new definition for public
review and comment, compliance with
the Court’s direction may result in
additional costs associated with the
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designation of critical habitat
(depending upon the outcome of the
rulemaking, as well as additional
benefits to the species). In light of the
uncertainty concerning the regulatory
definition of adverse modification, our
current methodological approach to
conducting economic analyses of our
critical habitat designations is to
consider all conservation-related costs.
This approach would include costs
related to sections 4, 7, 9, and 10 of the
Act, and should encompass costs that
would be considered and evaluated in
light of the Gifford Pinchot ruling.
In addition, we have received several
credible comments on the economic
analysis contending that it
underestimates, perhaps significantly,
the costs associated with this critical
habitat designation. Both of these factors
are a balancing consideration against the
possibility that some of the costs shown
in the economic analysis might be
attributable to other factors, or are
overly high, and so would not
necessarily be avoided by excluding the
area for which the costs are predicted
from this critical habitat designation.
Relationship of Critical Habitat to Tribal
Lands
In accordance with the Secretarial
Order 3206, ‘‘American Indian Tribal
Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act’’ (June 5, 1997); the
President’s memorandum of April 29,
1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951); Executive
Order 13175; and the relevant provision
of the Departmental Manual of the
Department of the Interior (512 DM 2),
we believe that fish, wildlife, and other
natural resources on tribal lands are
better managed under tribal authorities,
policies, and programs than through
Federal regulation wherever possible
and practicable. Based on this
philosophy, we believe that, in many
cases, designation of tribal lands as
critical habitat provides very little
additional benefit to threatened and
endangered species. Conversely, such
designation is often viewed by tribes as
an unwanted intrusion into tribal self
governance, thus compromising the
government-to-government relationship
essential to achieving our mutual goals
of managing for healthy ecosystems
upon which the viability of threatened
and endangered species populations
depend.
San Carlos Apache Tribe
The San Carlos Apache Tribe has one
stream within its tribal lands, Eagle
Creek, that is known to be currently
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occupied by the spikedace and loach
minnow and its tribal lands contain
features that are essential to the
conservation of the spikedace and loach
minnow. The Tribe has completed and
is implementing a Fisheries
Management Plan (FMP) that includes
specific management actions for the
spikedace and loach minnow and
conserves the PCEs. In this exclusion,
we considered several factors, including
our relationship with San Carlos
Apache Tribe, and the degree to which
the Tribe’s FMP provides specific
management for the spikedace and
loach minnow. Tribal governments
protect and manage their resources in
the manner that is most beneficial to
them. The San Carlos Apache Tribe
exercises legislative, administrative, and
judicial control over activities within
the boundaries of its lands.
Additionally, the Tribe has natural
resource programs and staff and has
enacted the FMP. In addition, as trustee
for land held in trust by the United
States for Indian Tribes, the Bureau of
Indian Affairs (BIA) provides technical
assistance to the San Carlos Apache
Tribe on management planning and
oversees a variety of programs on their
lands. Spikedace and loach minnow
conservation activities have been
ongoing on San Carlos Apache tribal
lands, and, prior to the completion of
their FMP, their natural resource
management was consistent with
management of habitat for this species.
The development and implementation
of the efforts formalized in the San
Carlos Apache Tribes FMP will
continue with or without critical habitat
designation.
The San Carlos Apache Tribe highly
values its wildlife and natural resources,
and is charged to preserve and protect
these resources under the Tribal
Constitution. Consequently, the Tribe
has long worked to manage the habitat
of wildlife on its tribal lands, including
the habitat of endangered and
threatened species. We understand that
it is the Tribe’s position that a
designation of critical habitat on its
lands improperly infringes upon its
tribal sovereignty and the right to selfgovernment.
The San Carlos Apache Tribes’ FMP
provides assurances and a conservation
benefit to the spikedace and loach
minnow. Implementation of the FMP
will result in protecting all known
spikedace and loach minnow habitat on
San Carlos Tribal Land and assures no
net habitat loss or permanent
modification will occur in the future.
The purpose of the FMP includes the
long-term conservation of native fishes,
including the spikedace and loach
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minnow, on tribal lands. The FMP
outlines actions to conserve, enhance,
and restore spikedace and loach
minnow PCEs, including efforts to
eliminate nonnative fishes from
spikedace and loach minnow habitat,
actions that could not be compelled by
a critical habitat designation. All habitat
restoration activities (whether it is to
rehabilitate or restore native plants) will
be conducted under reasonable
coordination with the Service. All
reasonable measures will be taken to
ensure that recreational activities do not
result in a net habitat loss or permanent
modification of the habitat. All
reasonable measures will be taken to
conduct livestock grazing activities in a
manner that will ensure the
conservation of spikedace and loach
minnow habitat. Within funding
limitations and under confidentiality
guidelines established by the Tribe, the
Tribe will cooperate with the Service to
monitor and survey spikedace and loach
minnow habitat, conduct research,
perform habitat restoration, remove
nonnative fish species, or conduct other
beneficial spikedace and loach minnow
management activities.
White Mountain Apache Tribe
The White Mountain Apache Tribe
has one stream within its tribal lands,
East Fork White River, that is known to
be currently occupied by loach minnow
and its tribal lands contain features that
are essential to the conservation of the
loach minnow. The White Mountain
Apache Tribe currently has a
management plan in place for loach
minnow. The plan was completed in
2000 and provides for, among other
conservation measures, inventory and
monitoring, water quality protection
ordinance, captive propagation, and
relocation to minimize loss from
catastrophic events such as fire and
drought. Prior to and since the plan was
developed, the Tribe has actively
managed for loach minnow. In this
exclusion, we considered several
factors, including our relationship with
the White Mountain Apache Tribe, and
the degree to which the Tribe’s
management plan provides specific
management for the loach minnow and
conserves its PCEs. Tribal governments
protect and manage their resources in
the manner that is most beneficial to
them. The White Mountain Apache
Tribe exercises legislative,
administrative, and judicial control over
activities within the boundaries of its
lands. Additionally, the Tribe has
natural resource programs and staff and
has been managing for the conservation
of the loach minnow. In addition, as
trustee for land held in trust by the
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United States for Indian Tribes, the BIA
provides technical assistance to the
White Mountain Apache Tribe on
management planning and oversees a
variety of programs on their lands.
The White Mountain Apache Tribe
highly values its wildlife and natural
resources, and is charged to preserve
and protect these resources under the
Tribal Constitution. Consequently, the
Tribe has long worked to manage the
habitat of wildlife on its tribal lands,
including the habitat of endangered and
threatened species. We understand that
it is the Tribe’s position that a
designation of critical habitat on its
lands improperly infringes upon its
tribal sovereignty and the right to selfgovernment.
Yavapai Apache Tribe
The Yavapai Apache Tribe has long
worked to protect the Verde River and
its surrounding habitat as it flows on the
lands of the Nation. The Nation is
implementing strong conservation
measures designed to preserve the
Verde River and its riparian corridor for
the benefit of all species, and in order
to protect the traditional and cultural
practices of the Nation. The Nation’s
continued efforts to work cooperatively
with the Service to protect federally
listed species have previously been
demonstrated through adoption of a
recent Southwestern Willow Flycatcher
Management Plan, dated May 25, 2005.
This document provides realistic and
practicable objectives for protection of
the riparian community on tribal lands.
This habitat is coextensive with the
habitat that was proposed for the
spikedace. Because the existing
Management Plan requires that the
habitat of the Verde River be protected
and preserved for the flycatcher, its
protections similarly extend to the
spikedace. In addition, the Tribe passed
a resolution on June 15, 2006,
confirming and declaring a riparian
conservation corridor along the Verde
River including 300 ft (91.4 m) on either
side of the river. Within the
conservation corridor stocking of nonnative fishes is prohibited, and livestock
grazing, construction and other
activities shall be minimized to assure
that no net loss of habitat for federally
listed species such as the spikedace and
loach minnow shall occur, and that no
permanent modification of habitat
important to listed species is allowed.
The Tribe will also take all reasonable
steps to coordinate with the Service
regarding recreational activities, habitat
restoration activities, or other activities
that may impact the habitat important to
the spikedace and loach minnow. The
Tribe will monitor habitat, including
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surveys for these fish and conduct
research or other activities to provide a
conservation benefit.
Below we determine, pursuant to a
4(b)(2) analysis, that those portions of
the Verde River below the Prescott and
Coconino National Forest boundary
with private lands above the Verde
Valley will be excluded from the final
designation based upon economic costs.
The Yavapai Apache tribal lands fall
within this area, and are excluded as
part of that overall exclusion. However,
we also find pursuant to our analysis
below that their lands should be
excluded on the basis of our
relationship with the Yavapai Apache
Tribe, and the Tribe’s management of
the Verde River that we believe provides
a conservation benefit to the spikedace.
(1) Benefits of Inclusion
Including lands of the San Carlos
Apache Tribe, the White Mountain
Apache Tribe, and the Yavapai Apache
Tribe in critical habitat would provide
some additional benefit from section 7
consultation, because we could consult
via the BIA on actions that may
adversely affect critical habitat.
Activities covered in previous
consultations include livestock grazing,
recreation, fish stocking, fire
management, bank stabilization
projects, and conservation measures that
benefited spikedace and/or loach
minnow. These measures included
monitoring, fence repair (to exclude
cattle from overusing and thereby
damaging habitat), and education
programs to inform the public of the
need to avoid actions that damage
habitat. However, we note that because
the spikedace and loach minnow are
listed species and are found on these
Tribal lands, section 7 consultation
under the jeopardy standard will still be
required if Tribal or BIA activities may
adversely affect spikedace or loach
minnow, regardless of whether these
lands are included in the final critical
habitat designation. As a result, we
expect that inclusion of San Carlos
Apache, White Mountain Apache, and
the Yavapai Apache Tribe lands in the
critical habitat designation would
provide only that additional habitat
protection accorded by critical habitat
as discussed by the Ninth Circuit Court
of Appeals in the Gifford Pinchot ruling
discussed above.
Nevertheless, few additional benefits
would be derived from including these
Tribal Lands in the spikedace and loach
minnow final critical habitat
designation beyond what will be
achieved through the implementation of
their management plans. As noted
above, the primary regulatory benefit of
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any designated critical habitat is that
federally funded or authorized activities
in such habitat require consultation
pursuant to section 7 of the Act. Such
consultation would ensure that
adequate protection is provided to avoid
destruction or adverse modification of
critical habitat. These three tribes have
already agreed under the terms of their
management plans and by tribal
resolution to protect riparian and
aquatic communities, to ensure no net
loss of habitat, to coordinate with the
Service in order to prevent any habitat
destruction, and to conduct activities
consistent with the conservation of all
native species, including the spikedace
and loach minnow and their PCEs.
As discussed above, we expect that
little additional educational benefit
would be derived from designating San
Carlos Apache, White Mountain
Apache, and Yavapai Apache tribal
lands as critical habitat. The additional
educational benefits that might arise
from critical habitat designation are
largely accomplished through the
multiple notice and comments which
accompany the development of this
critical habitat designation, as
evidenced by the Tribes working with
the Service to address habitat and
conservation needs for the spikedace
and loach minnow. Additionally, we
anticipate that the Tribes will continue
to actively participate in working
groups, and provide for the timely
exchange of management information.
The educational benefits important for
the long-term survival and conservation
of the spikedace and loach minnow are
being realized without designating this
area as critical habitat. Educational
benefits will continue on these lands
whether or not critical habitat is
designated because the Tribes already
recognize the importance of those
habitat areas to the spikedace and loach
minnow.
Another possible benefit is the
additional funding that may be
generated for habitat restoration or
improvement by having an area
designated as critical habitat. In some
instances, having an area designated as
critical habitat may improve the ranking
a project receives during evaluation for
funding. The Tribes often require
additional sources of funding in order to
conduct wildlife-related activities.
Therefore, having an area designated as
critical habitat could improve the
chances of the Tribes receiving funding
for spikedace or loach minnow related
projects. Additionally, occupancy by
spikedace or loach minnow also
provides benefits to be considered in
evaluating funding proposals. Because
there are areas of occupied habitat on
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these Tribal lands this may also help
secure funding for management of these
areas.
For these reasons, then, we believe
that designation of critical habitat
would provide some additional benefits.
(2) Benefits of Exclusion
The benefits of excluding San Carlos
Apache, White Mountain Apache, and
the Yavapai Apache tribal lands from
critical habitat include: (1) The
advancement of our Federal Indian
Trust obligations and our deference to
Tribes to develop and implement tribal
conservation and natural resource
management plans for their lands and
resources, which includes the spikedace
and loach minnow and other Federal
trust species; (2) the maintenance of
effective working relationships to
promote the conservation of the
spikedace and loach minnow and their
habitats; (3) the allowance for continued
meaningful collaboration and
cooperation on spikedace and loach
minnow management and other
resources of interest to the Federal
government; and (4) the provision of
conservation benefits to riparian
ecosystems and a host of species,
including the spikedace and loach
minnow and their habitat.
During the development of the
spikedace and loach minnow critical
habitat designation (and coordination
for other critical habitat proposals), and
other efforts such as conservation of
native fish species in general, we have
met and communicated with each of
these Tribes to discuss how they might
be affected by the regulations associated
with spikedace and loach minnow
conservation and the designation of
critical habitat. As such, we established
relationships with these Tribes specific
to spikedace and loach minnow
conservation. As part of our
relationship, we provided technical
assistance to the Tribes to develop
measures to conserve the spikedace and
loach minnow and their habitat on their
lands. These measures are contained
within their management plans and
tribal resolution that we have in our
supporting record. This proactive action
was conducted in accordance with
Secretarial Order 3206, ‘‘American
Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the
Endangered Species Act’’ (June 5, 1997);
the President’s memorandum of April
29, 1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951); Executive
Order 13175; and the relevant provision
of the Departmental Manual of the
Department of the Interior (512 DM 2).
We believe that the San Carlos Apache,
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White Mountain Apache, and the
Yavapai Apache Tribes should be the
governmental entities to manage and
promote the conservation of the
spikedace and loach minnow on their
lands. During our communication with
the Tribes, we recognized and endorsed
their fundamental right to provide for
tribal resource management activities,
including those relating to riparian
aquatic ecosystems.
The designation of critical habitat on
these Tribal lands would be expected to
adversely impact our working
relationship with them. In fact, during
our discussions with the Tribes, we
were informed that critical habitat
would be viewed as an intrusion on
their sovereign abilities to manage
natural resources in accordance with
their own policies, customs, and laws.
To this end, we found that the Tribes
would prefer to work with us on a
government-to-government basis. We
view this as a substantial benefit.
In addition to management/
conservation actions described for the
conservation of the spikedace and loach
minnow, we anticipate future
management/conservation plans to
include conservation efforts for other
listed species and their habitat. We
believe that many Tribes are willing to
work cooperatively with us to benefit
other listed species, but only if they
view the relationship as mutually
beneficial. Consequently, the
development of future voluntary
management actions for other listed
species will likely be contingent upon
whether the San Carlos Apache, White
Mountain Apache, and the Yavapai
Apache Tribal lands are designated as
critical habitat for the spikedace and
loach minnow. Thus, the benefit of
excluding these lands would be future
conservation efforts that would benefit
the spikedace and loach minnow as well
as other listed species.
Another benefit of excluding these
Tribal lands from the critical habitat
designation includes relieving
additional regulatory burden and costs
associated with the preparation of
portions of section 7 documents related
to critical habitat. While the cost of
adding these additional sections to
assessments and consultations is
relatively minor, there could be delays
which can generate real costs to some
project proponents. However, because
in this case critical habitat is being
excluded in occupied areas already
subject to section 7 consultation and a
jeopardy analysis, it is anticipated this
reduction would be minimal.
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(3) Benefits of the Exclusion Outweigh
the Benefits of Inclusion
Partnerships and Management Plans on
Private Lands
We find that the benefits of
designating critical habitat for the
spikedace and loach minnow on these
Tribal lands are small in comparison to
the benefits of the exclusion. Exclusion
would enhance the partnership efforts
focused on recovery of the spikedace
and loach minnow within these river
reaches. Excluding these areas also
would reduce some of the
administrative costs during consultation
pursuant to section 7 of the Act. We
discuss below additional economic
costs and an exclusion of a portion of
the Verde River that include tribal lands
of the Yavapai Apache Nation.
The Phelps Dodge Corporation
(Phelps Dodge) provided two
management plans to the Service during
the second open comment period. One
plan was provided for Eagle Creek in
southeastern Arizona, and the other is
for portions of the middle Gila River in
New Mexico. We provide a summary of
each of these plans below.
(4) The Exclusion Will Not Result in
Extinction of the Species
Because these river reaches on the
Tribal lands are occupied by the
spikedace and loach minnow, which are
protected from take under section 9 of
the Act, any actions that might kill
spikedace or loach minnow, including
habitat modification that would cause
death of either species, must either
undergo a consultation with the Service
under the requirements of section 7 of
the Act or receive a permit from us
under section 10 of the Act.
Additionally, we believe that the
exclusion of these lands from critical
habitat would not result in the
extinction of the spikedace or loach
minnow because their management
outlines and the provisions of a
resolution specifically address
conservation of these species. The tribal
management strategies outline actions to
conserve, enhance, and restore
spikedace and loach minnow habitat,
including efforts to eliminate nonnative
fishes from their habitat. Such efforts
provide greater conservation benefit
than would result from a designation of
critical habitat. This is because section
7 consultations for critical habitat only
consider listed species in the project
area evaluated and Federal agencies are
only committed to prevent adverse
modification to critical habitat caused
by the particular project and are not
committed to provide conservation or
long-term benefits to areas not affected
by the proposed project. Such efforts
provide greater conservation benefit
than would result for designation as
critical habitat. As a result, there is no
reason to believe that this exclusion
would result in extinction of the
species.
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Eagle Creek Management Plan
Phelps Dodge’s lands along Eagle
Creek are comprised of individual land
parcels adjoining the southern boundary
of the Apache-Sitgreaves National
Forests and the eastern boundary of San
Carlos Apache Tribe lands. The parcels
are not entirely connected; there are
intervening portions of Forest Service
and other private lands between parcels
of Phelps Dodge’s lands.
The management plan would affect
only those lands owned by Phelps
Dodge. Phelps Dodge owns
approximately 34 square miles of land
around the upper portions of Eagle
Creek; however, not all of lands
encompass or are adjacent to Eagle
Creek. Phelps Dodge owns land along
approximately 11.0 mi (17.8 km) of
Eagle Creek, which are covered by the
management plan. The Service has
determined that Eagle Creek currently
supports one of more of the PCEs for
loach minnow and is occupied by loach
minnow. In addition, we determined
(see Table 1) that nonnative aquatic
species, water diversions, and mining
are all potential threats within this area.
Phelps Dodge’s water supply for its
Morenci Mine operation is derived from
a variety of water rights, including a
Black River water transfer (supported by
a Central Arizona Project exchange),
several deep ground water wells, and
surface water from Eagle Creek, which
constitutes approximately six percent of
the natural flow of that Creek.
Phelps Dodge indicates within the
management plan that their overall goal
is to operate its Eagle Creek water
system to maintain perennial flows in
Eagle Creek from the confluence of
Willow Creek to the Phelps Dodge
diversion dam to the extent it is legally,
economically, and hydrologically
reasonable to do so. Within the
management plan, Phelps Dodge
developed goals for both the loach
minnow and spikedace within the
Phelps Dodge reach. These goals
regarding the two species include the
following: (1) Monitoring distribution
and abundance; (2) obtaining an
understanding of the population
dynamics as they relate to existing
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habitat conditions and land use
practices; (3) continuing historic land
use practices and water supply practices
which enhance water flows; and (4)
consideration of habitat when deviating
from such historic management
practices. With respect to monitoring,
Phelps Dodge has supported various
biological surveys and studies on Eagle
Creek, and intends to continue
participating in such research projects
in the near future. To gain a better
understanding of the population
dynamics of the loach minnow and
spikedace, Phelps Dodge proposes to
support the Rocky Mountain Research
Station in its research.
Phelps Dodge further intends to
utilize the management plan for loach
minnow and spikedace by doing the
following: (1) Form working
relationships with others that promote
the conservation of these fish and their
habitat; (2) develop the opportunity for
collaboration and cooperation on
management issues and other resources
of interest to the Federal government;
and (3) provide conservation benefits to
riparian ecosystems, including habitat
that may be or may potentially become
suitable.
To ensure continued conservation of
spikedace and loach minnow in Eagle
Creek, Phelps Dodge has also committed
to regular coordination with the Service,
which will include an annual summary
to the Service regarding implementation
of the management plan. Any deviations
from the plan will be addressed, as will
intended implementation of actions
under the plan for the following year.
Phelps Dodge will make all reasonable
efforts to provide the Service with
notice of any significant changes to the
management of its water supply system
that are outside the range of historic
operating parameters discussed in the
management plan. If any changes are
required, Phelps Dodge will consider
loach minnow and spikedace habitat
and any comments received from the
Service, and will make reasonable
efforts to minimize adverse impacts to
these fish and the PCEs to the extent
legally, economically, and practically
reasonable, so long as such actions do
not impair their ability to hold, exercise,
or modify their water rights.
Phelps Dodge will also make
reasonable efforts to coordinate their
water management activities by
attending regularly scheduled fisheries
management working group meetings to
stay abreast of ongoing management
issues and concerns within the overall
Eagle Creek area. Phelps Dodge will also
consider stream renovation projects for
Eagle Creek should the Service decide to
pursue them, provided they do not
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interfere with existing land and water
use and rights.
Gila River Management Plan
The Gila River Management Plan
covers riparian lands owned by Phelps
Dodge in the middle reach of the
mainstem Gila River south of Mogollon
Creek in New Mexico. Land ownership
in this area is principally Federal, with
irregularly dispersed private and State
lands.
The management plan would affect
only those lands owned by Phelps
Dodge. Phelps Dodge owns lands
surrounding or bordering approximately
7.3 mi (11.7 km) of the mainstem Gila
River. Some of the lands owned by
Phelps Dodge in this area are leased for
ranching and agriculture purposes,
including the U-Bar Ranch. The Service
has determined that these areas
currently support one or more of the
PCEs for spikedace and loach minnow,
and both species currently occupy this
portion of the stream. Those portions of
the mainstem Gila River on Phelps
Dodge lands support diversity and
abundance of native fishes. In addition,
this reach contains a high proportion of
favorable habitat types for spikedace
and loach minnow, including low
gradient riffles and glide-runs. In
addition, we determined (see Table 1)
that recreation, roads, grazing,
nonnative aquatic species, and water
diversions are potential threats in this
area that may require special
management or protections.
Phelps Dodge’s water rights and
delivery system in this area have been
developed and maintained to provide a
dependable and adequate water supply
for the operation of the Tyrone Mine.
The delivery system consists of a
diversion structure on the Gila River as
well as a retention facility (Bill Evans
Lake), and several wells. Surface water
is diverted from the Gila River at the
diversion structure for storage in Bill
Evans Lake and transported via pipeline
to the Tyrone Mine Facility.
Within the management plan, Phelps
Dodge commits to the following: (1)
Monitoring the distribution and
abundance of the loach minnow and
spikedace in the Gila River passing
through the Phelps Dodge Reach; (2)
obtaining an understanding of the
population dynamics of the loach
minnow and spikedace as they relate to
existing habitat conditions and land use
practices in the Gila River; (3)
continuing historic land use practices
and water supply practices which
enhance water flows in the Phelps
Dodge Reach, (4) and considering loach
minnow and spikedace habitat when
deviating from the historical
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13397
management practices. These
commitments will be carried out in the
same manner as described above under
the Eagle Creek Management Plan.
Within the management plan, Phelps
Dodge commits to coordinating with the
Service regarding management activities
on their lands. This coordination will
include an annual summary to the
Service regarding implementation of the
management plan. Any deviations from
the plan will be addressed, as will the
intended implementation of actions
under the plan for the following year.
The report will be provided to the
Service during the first quarter of each
calendar year.
Phelps Dodge will also make all
reasonable efforts to provide the Service
with notice of any significant changes to
the management of its water supply
system that are outside the range of
historic operating parameters discussed
in the management plan. If any changes
are required, Phelps Dodge will
consider loach minnow and spikedace
habitat and any comments received
from the Service, and will make
reasonable efforts to minimize adverse
impacts to the fish and their PCEs to the
extent legally, economically, and
practically reasonable, so long as such
actions do not impair their ability to
hold, exercise, or modify their water
rights.
Phelps Dodge will also make
reasonable efforts to coordinate their
water management activities by
attending regularly scheduled fisheries
management working group meetings to
stay abreast of ongoing management
issues and concerns within the overall
Gila River area. Phelps Dodge will also
consider stream renovation projects for
the Gila River should the Service decide
to pursue them, provided they do not
interfere with existing land and water
uses and rights.
The following analysis applies to both
the Eagle Creek and Gila River areas
covered by the Phelps Dodge’s
management plans, referred to as Plans
below.
(1) Benefits of Inclusion
There are few benefits in including
areas covered by these Plans in the final
critical habitat designation above those
benefits that will be achieved through
the implementation of these Plans,
including voluntary management and
restoration projects. As discussed above,
the principal benefit of any area
designated as final critical habitat is that
activities adversely affecting critical
habitat require consultation under
section 7 of the Act if a Federal action
is involved. Such consultation would
ensure that adequate protection is
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provided to avoid destruction or adverse
modification of critical habitat.
As of the date of this final rule, the
Service has not conducted any formal
consultations that have directly
addressed the impacts of mining
activities in the areas proposed as
critical habitat (Final Economic
Analysis 2004, pg. 5–3). There have,
however, been several informal
consultations regarding surface mining
since the listing of the species. In
addition, the Service conducted one
formal consultation on spikedace and
razorback sucker (Xyrauchen texanus)
regarding spillway repair to the Phelps
Dodge Diversion dam on Eagle Creek in
1996. This consultation did not directly
address impacts of the diversion dam
itself, though the Service recommended
that such a consultation be conducted.
The consultation found that the
proposed action was not likely to
adversely affect the fish species, and
recommended minimizing the use of
heavy equipment in the wetted area,
making reasonable efforts to ensure no
pollutants enter surface water, catch and
release of any spikedace found, as a well
as monitoring activities.
The small number of previous section
7 consultations during the past 20 years
since these species have been listed and
while critical habitat was designated
and the expectation that there will be
will be few if any future projects with
a Federal nexus gives us reasonable
grounds to believe that critical habitat
designation will create relatively few
benefits for the spikedace and loach
minnow in these areas. Since these
areas covered by the Plans are privately
owned, unless there is a Federal nexus
in connection with activities occurring
in these areas, the designation of critical
habitat will not require consultation
with the Service for such activities. It is
possible that the maintenance of the
Phelps Dodge Diversion dam could act
as a Federal nexus for consultation
because the diversion is likely subject to
U.S. Army Corps of Engineers permit
requirements. This could result in
consultation, but because these areas are
considered to be occupied by the
species, consultation would already take
place under the jeopardy standard (see
‘‘General Principles of Section 7
Consultations Used in the 4(b)(2)
Balancing Process’’ above). Moreover,
since the prior consultation on
maintenance of this structure found it
was ‘‘unlikely to adversely affect’’ the
species, it is not reasonable to anticipate
that a future consultation on
maintenance of the structure would
result in a finding of adverse
modification of the critical habitat.
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Another possible benefit is that the
designation of critical habitat can serve
to educate the public regarding the
potential conservation value (species
presence and their PCEs) of an area, and
this may focus and contribute to
conservation efforts by other parties by
clearly delineating areas of high
conservation value for certain species.
Any information about the spikedace
and loach minnow and its habitat that
reaches a wide audience, including
other parties engaged in conservation
activities, would be considered
valuable. However, Phelps Dodge is
currently working with the Service to
address the conservation of these fish
and to avoid impacts to their habitat
(PCEs), and the agreements they have
offered would institutionalize that
cooperation. Further, these areas were
included in the proposed designation,
which itself has reached a wide
audience, and has thus provided
information to the broader public about
the conservation value of these areas.
Thus, the educational benefits that
might follow critical habitat designation
have already been provided through the
multiple notice and comments which
accompanied the development of this
critical habitat designation and previous
designations. For these reasons, then,
we believe that designation of critical
habitat would have few, if any,
additional benefits beyond those that
will result from continued consultation
for the presence of these species.
(2) Benefits of Exclusion
We believe that significant benefits
would be realized by excluding these
areas from the final critical habitat
designation that include: (1) The
continuance and strengthening of our
relationship with Phelps Dodge to
promote the conservation of the
spikedace and loach minnow and their
habitat; (2) the allowance for
collaboration and cooperation in
surveys, monitoring, and research as we
work towards recovery of these species;
and (3) the conservation benefits to the
Gila River and Eagle Creek ecosystems
and spikedace and loach minnow
habitat that might not otherwise occur,
all as set out in the Plans summarized
above. Phelps Dodge is greatly
concerned about the possible impacts of
a critical habitat designation in this area
(James 2006, p. 7, 10–20) and is offering
these management plans as an
alternative. It is unlikely they would
proceed with them if these areas were
designated as critical habitat.
Phelps Dodge, including the U-Bar
Ranch that they own on the Gila River,
is an important land manager within
Eagle Creek and the Gila River
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watersheds. The surveys, monitoring,
research, and commitment to
collaborate with the Service on
restoration projects within these areas
document that conservation efforts will
occur for these fish and their habitat.
These activities and cooperation may
not occur if we were to designate critical
habitat on these private lands, and these
actions cannot be compelled by the
designation, particularly given the
expectation that there would be a very
limited, if any, federal nexus for having
a consultation on private activities here.
We believe that the results of these
activities promote long-term protection
and are aimed at conserving the
spikedace and loach minnow in these
areas. The benefits of excluding these
areas from critical habitat will
encourage the continued conservation,
land management, and coordination
with the Service. If these areas are
designated as critical habitat, we may
jeopardize future conservation, research,
and information sharing for the recovery
of the spikedace and loach minnow and
likely not secure any offsetting benefits
from the designation due to the
apparent lack of a federal nexus to
trigger consultation.
(3) Benefits of Exclusion Outweigh the
Benefits of Inclusion
In summary, the benefits of including
lands owned by Phelps Dodge in the
final critical habitat designation are
small, and are limited to minimal
educational benefits and potentially
some benefits through section 7
consultations. However, since these
lands are privately owned, unless a
Federal nexus exists, final critical
habitat would not result in a section 7
consultation. The lack of previous
section 7 consultations during the 20
years since these species have been
listed in these areas being excluded
from the final designation of critical
habitat give us reasonable grounds to
believe that such a Federal nexus is
unlikely to occur, or would likely occur
only for the subject of the prior
consultation, which resulted in a
finding of ‘‘unlikely to adversely affect’’
the species. We also note that the
requirement of Federal agencies to
consult with us on activities that may
affect these species still exists, whether
or not critical habitat is designated,
since these areas are considered
occupied. The benefits of excluding
these areas from designation as critical
habitat for the spikedace and loach
minnow are significant, and include
encouraging the continuation of
monitoring, surveys, research,
enhancement, and restoration activities
that will benefit spikedace and loach
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minnow PCEs. The exclusion of this
area will likely also provide additional
benefits to the species by encouraging a
cooperative working relationship with
Phelps Dodge. Although the benefits of
these management plans are less than
plans in other areas upon which
exclusions are often made (i.e. habitat
conservation plans), the likely lack of a
Federal nexus for these lands means
that the benefits of these plans still
exceed by the considerable margin the
benefits the species would receive from
the designation. We accordingly find
that the benefits of excluding these areas
from the final critical habitat
designation outweigh the benefits of
their inclusion.
(4) Exclusion Will Not Result in
Extinction of the Species
We have determined that exclusion of
areas covered by these Plans on the Gila
River and Eagle Creek will not result in
extinction of these species. Any actions
that might adversely affect the
spikedace and loach minnow must
undergo a consultation with the Service
under the requirements of section 7 of
the Act or receive a permit from us
under section 10. The spikedace and
loach minnow are protected from take
under section 9. The exclusions leave
these protections unchanged from those
which would exist if the excluded areas
were designated as final critical habitat.
Phelps Dodge is committed to greater
conservation measures on their land
than would be available through the
designation of critical habitat.
Accordingly, we have determined that
exclusion of these areas of Eagle Creek
and the Gila River as discussed above
under subsection 4(b)(2) of the Act will
not cause the extinction of the species.
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Economic Analysis
Section 4(b)(2) of the Act requires us
to designate critical habitat on the basis
of the best scientific information
available and to consider the economic
and other relevant impacts of
designating a particular area as critical
habitat. We may exclude areas from
critical habitat upon a determination
that the benefits of such exclusions
outweigh the benefits of specifying such
areas as critical habitat. We cannot
exclude such areas from critical habitat
when such exclusion will result in the
extinction of the species concerned.
Following the publication of the
proposed critical habitat designation,
we conducted an economic analysis to
estimate the potential economic effect of
the designation. The draft analysis was
made available for public review on
June 6, 2006 (71 FR 32496). We
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accepted comments on the draft analysis
until October 16, 2006.
The primary purpose of the economic
analysis is to estimate the potential
economic impacts associated with the
designation of critical habitat for the
spikedace and loach minnow. This
information is intended to assist the
Secretary in making decisions about
whether the benefits of excluding
particular areas from the designation
outweigh the benefits of including those
areas in the designation. This economic
analysis considers the economic
efficiency effects that may result from
the designation, including habitat
protections that may be coextensive
with the listing of the species. It also
addresses distribution of impacts,
including an assessment of the potential
effects on small entities and the energy
industry. This information can be used
by the Secretary to assess whether the
effects of the designation might unduly
burden a particular group or economic
sector.
This analysis focuses on the direct
and indirect costs of the rule. However,
economic impacts to land use activities
can exist in the absence of critical
habitat. These impacts may result from,
for example, local zoning laws, State
and natural resource laws, and
enforceable management plans and best
management practices applied by other
State and Federal agencies.
The economic analysis considers the
economic impacts of conservation
measures taken prior to and subsequent
to the final listing and designation of
critical habitat for the spikedace and
loach minnow. Pre-designation impacts
are typically defined as all management
efforts that have occurred since the time
of listing. The spikedace and loach
minnow were listed on July 1 and
October 28, 1986, respectively (51 FR
23769, 51 FR 39468). Our draft
economic analysis found that the total
post-designation costs associated with
the five proposed critical habitat units
are forecast to range from $25.2 to
$100.3 million over 20 years, with
discounted (7%) annual costs at $1.4 to
$6.7 million annually (IEc 2006, p. ES–
2). Estimated costs are primarily due to
impacts on water use and management,
species management, and recreation.
Based upon these estimates, we
conclude in the final analysis, which
reviewed and incorporated public
comments, that no significant economic
impacts are expected from the
designation of critical habitat for
spikedace and loach minnow, except for
the Verde River, as discussed in further
detail in the ‘‘Verde River’’ section
below. A copy of the economic analysis
is included in our supporting record
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and may be obtained by contacting the
Arizona Ecological Services Field Office
(see ADDRESSES section) or online at
https://www.fws.gov/southwest/es/
arizona/.
Verde River
As discussed in the ‘‘Summary of
Changes from the Proposed Rule’’
section above, we have determined that
proposed critical habitat on those
portions of the Verde River below the
Prescott and Coconino National Forest
boundary with private lands will not be
designated as final critical habitat due to
the potential economic impact of
designation. The economic analysis
estimates the potential future impacts
(2006–2025) associated with the entire
stretch of the Verde River to be $64.59
million (undiscounted dollars).
Although these costs do not account for
variance in river miles or population,
they are a full order of magnitude larger
than the estimated impacts for any other
stretch of river proposed as critical
habitat, and represent more than half of
the total estimated impacts ($100.3
million) for the entire proposed critical
habitat designation. Estimated
quantified costs on this reach primarily
stem from potential impacts to
agriculture, but also include impacts on
development and recreation activities.
Unquantified potential impacts could
include impacts to water users,
including Verde Valley municipalities
and the City of Prescott.
The economic analysis indicates that
most of these costs occur in the lower
portion of the Verde River where the
river runs through several communities
in the Verde Valley that are
experiencing rapid urban growth.
Therefore, we are excluding from the
final critical habitat designation the
lower portion of the Verde River below
the Prescott and Coconino National
Forest boundary with private lands due
to significant and disproportionate
economic impacts.
We have reached this determination
because we believe the benefits of
excluding these segments from the final
critical habitat designation outweigh the
benefits of including them as critical
habitat.
We have considered in making the
lower Verde River exclusion that all of
the costs estimated in the draft
economic analysis may not be avoided
by excluding this area. This is because
this area is currently occupied by the
spikedace and there will be
requirements for consultation under
section 7 of the Act or for permits under
section 10 for any take of the species.
Additionally, other protections for the
species exist elsewhere in the Act and
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under State and local laws and
regulations.
(1) Benefits of Inclusion
The primary conservation value of the
lower Verde River proposed critical
habitat segment is to sustain existing
populations. The area excluded from the
final designation is currently considered
occupied by the spikedace. If this area
is designated as critical habitat, any
actions with a Federal nexus which
might adversely modify or destroy the
critical habitat would require a
consultation with us. However,
inasmuch as this area is currently
occupied by the spikedace, consultation
for activities which might adversely
impact the species, including possibly
habitat modification (see definition of
‘‘harm’’ at 50 CFR 17.3) would be
required even without the critical
habitat designation. We recognize that
consultation for critical habitat would
likely provide some additional benefits
to the species under the provision of the
Gifford Pinchot decision.
As discussed above, we expect that
little additional educational benefits
would be derived from including this
area as critical habitat. The additional
educational benefits that might arise
from critical habitat designation are
largely accomplished through the
multiple notice and comments which
accompanied the development of this
critical habitat designation and previous
designations.
Designation of critical habitat in the
lower Verde River might result in
consultations with Federal agencies or
as part of intra-Service consultations for
HCPs that may lead to conservation
activities for the spikedace; however, we
believe any possible benefits would be
minimal as derived from critical habitat
because the spikedace is present in the
Verde River and consultations are
already likely to occur.
In summary, we believe that
designating this proposed segment as
final critical habitat would provide little
additional Federal regulatory benefits
for the species. Under the Gifford
Pinchot decision, critical habitat
designations may provide greater
benefits to recovery of a species than
was previously believed. Because the
proposed critical habitat is occupied by
the species, there must be consultation
with the Service for any action which
may adversely affect the species. Some
improvements in habitat quality might
result from a designation, but we believe
that they would be minimal, as
discussed above. The additional
educational benefits which might arise
from critical habitat designation are
largely accomplished through the
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multiple notice and comments which
accompanied the development of this
regulation, and contact with the affected
parties during development of the
economic analysis.
(2) Benefits of Exclusion
The benefits of excluding the lower
Verde River from critical habitat
designation are avoidance in up to
$64.59 million (undiscounted dollars) in
possible economic impacts, as set out in
the economic analysis. While the cost
estimate of $64.59 million is an estimate
of potential economic costs for the
entire Verde River, we are only
excluding the lower portion because we
believe the lower portion of the Verde
River accounts for some of the highest
cost areas since this is where the river
runs through several communities in the
Verde Valley that are experiencing rapid
urban growth. Additionally, as
discussed below, we find that the upper
portion of the Verde River is the most
important for conservation of the
spikedace because it accounts for 91
percent of the known locations of the
spikedace in the Verde River.
We also believe that excluding these
lands, and thus helping landowners and
water users avoid the additional costs
that would result from the designation,
will contribute to a more positive
climate for Habitat Conservation Plans
and other active conservation measures.
These generally provide greater
conservation benefits than result from
designation of critical habitat—even in
the post-Gifford Pinchot environment—
which requires only that the there be no
adverse modification resulting from
federally-related actions. Generally,
positive conservation efforts by
landowners contribute more towards
recovery of species than the mere
avoidance of adverse impacts required
under a critical habitat designation.
(3) Benefits of Exclusion Outweigh the
Benefits of Inclusion
We find that the benefits of
designating final critical habitat for the
spikedace on the lower portion of the
Verde River are small in comparison to
the benefits of exclusion. In making this
finding, we have weighed the benefits of
including the lower Verde River as final
critical habitat against the possible costs
imposed on private parties as a result of
the final critical habitat designation.
We have therefore excluded these
lands from the final critical habitat
designation pursuant to section 4(b)(2)
of the Act.
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(4) Exclusion Will Not Result in
Extinction of the Species
Because we consider the lower
portion of the Verde River to be
occupied by spikedace, a species
protected from take under section 9 of
the Act, any actions that might
adversely affect or result in take of the
spikdace, regardless of whether a
Federal is present, must undergo a
consultation with the Service under the
requirements of section 7 of the Act or
receive a permit from us under section
10 of the Act. This exclusion leaves
these protections unchanged from those
which would exist if the excluded areas
were designated as critical habitat.
Additionally, we have concluded that
excluding this area from final critical
habitat will not result in the extinction
of the spikedace because this exclusion
is only a small percentage of the overall
critical habitat designation and, as noted
above, 91 percent of the known
locations of the spikedace occur in the
upper Verde River, which is not being
excluded from the final critical habitat
designation.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order
12866, this document is a significant
rule in that it may raise novel legal and
policy issues, but will not have an
annual effect on the economy of $100
million or more or affect the economy
in a material way. Due to the tight
timeline for publication in the Federal
Register, the Office of Management and
Budget (OMB) has not formally
reviewed this rule. As explained above,
we prepared an economic analysis of
this action. We used this analysis to
meet the requirement of section 4(b)(2)
of the Act to determine the economic
consequences of designating the specific
areas as critical habitat. We also used it
to help determine whether to exclude
any area from critical habitat, as
provided for under section 4(b)(2) of the
Act, if we determine that the benefits of
such exclusion outweigh the benefits of
specifying such area as part of the
critical habitat, unless we determine,
based on the best scientific data
available, that the failure to designate
such area as critical habitat will result
in the extinction of the species.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.), as amended by the
Small Business Regulatory Enforcement
Fairness Act (5 U.S.C. 802(2))
(SBREFA), whenever an agency is
required to publish a notice of
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rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effects of the rule on small entities (i.e.,
small businesses, small organizations,
and small government jurisdictions).
However, no regulatory flexibility
analysis is required if the head of the
agency certifies the rule will not have a
significant economic impact on a
substantial number of small entities.
The SBREFA amended the Regulatory
Flexibility Act (RFA) to require Federal
agencies to provide a statement of the
factual basis for certifying that the rule
will not have a significant economic
impact on a substantial number of small
entities. The SBREFA also amended the
RFA to require a certification statement.
Small entities include small
organizations, such as independent
nonprofit organizations; small
governmental jurisdictions, including
school boards and city and town
governments that serve fewer than
50,000 residents; as well as small
businesses, Small businesses include
manufacturing and mining concerns
with fewer than 500 employees,
wholesale trade entities with fewer than
100 employees, retail and service
businesses with less than $5 million in
annual sales, general and heavy
construction businesses with less than
$27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts to these
small entities are significant, we
considered the types of activities that
might trigger regulatory impacts under
this designation as well as types of
project modifications that may result. In
general, the term significant economic
impact is meant to apply to a typical
small business firm’s business
operations.
To determine if the rule could
significantly affect a substantial number
of small entities, we considered the
number of small entities affected within
particular types of economic activities
(e.g., water management and use,
livestock grazing, Tribal activities,
residential and related development,
species-specific management activities,
recreation activities, fire management
activities, mining, and transportation).
We apply the ‘‘substantial number’’ test
individually to each industry to
determine if certification is appropriate.
However, the SBREFA does not
explicitly define ‘‘substantial number’’
or ‘‘significant economic impact.’’
Consequently, to assess whether a
‘‘substantial number’’ of small entities is
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affected by this designation, this
analysis considers the relative number
of small entities likely to be impacted in
an area. In some circumstances,
especially with critical habitat
designations of limited extent, we may
aggregate across all industries and
consider whether the total number of
small entities affected is substantial. In
estimating the numbers of small entities
potentially affected, we also considered
whether their activities have any
Federal involvement.
Designation of critical habitat only
affects activities conducted, funded, or
permitted by Federal agencies. Some
kinds of activities are unlikely to have
any Federal involvement and so will not
be affected by critical habitat
designation. In areas where the species
is present, Federal agencies already are
required to consult with us under
section 7 of the Act on activities they
fund, permit, or implement that may
affect the spikedace or loach minnow.
Federal agencies must also consult with
us if their activities may affect critical
habitat. Designation of critical habitat,
therefore, could result in an additional
economic impact on small entities due
to the requirement to reinitiate
consultation for ongoing Federal
activities.
Our economic analysis of this
designation evaluated the potential
economic effects on small business
entities and small governments resulting
from conservation actions related to the
listing of these species and proposed
designation of their critical habitat. We
evaluated small business entities in
water management and use, livestock
grazing activities, mining operations,
management activities specific to
spikedace and loach minnow,
recreation, residential and related
development, Tribes, transportation,
and fire management. Based on our
analysis, impacts are anticipated to
occur in Tribes, agricultural crop
production as it relates to water use and
management, livestock grazing,
residential and commercial
development, and recreation. The
following is a summary of the
information contained in Appendix B of
the economic analysis:
Tribes
The economic analysis estimates that
future impacts resulting from spikedace
and loach minnow conservation
activities on Tribal lands could include
administrative costs of consultations,
surveys and monitoring, development of
a Fisheries Management Plan,
modifications to grazing, fire
management, modifications to
recreational activities, and potential
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13401
project modifications to restoration
activities. The economic analysis
provides additional detail on
anticipated impacts; however, because
all Tribal lands have been excluded
under section 4(b)(2), these costs will
not be incurred.
Water Management and Use:
Agricultural Crop Production
The economic analysis notes that
spikedace and loach minnow
conservation activities have not
impacted crop production since the
listing of the species in 1986. The
economic analysis further notes that,
because agricultural water use
comprises 98 percent of surface water
use and 81 percent of groundwater use
in counties containing critical habitat
for spikedace and loach minnow, it is
likely that any additional water supplies
needed for the species would come from
agriculture. Therefore, the analysis
focuses on a potential scenario under
which farmers would give up
agricultural water use in an effort to
provide adequate water supply for the
species, leading to reductions in crop
production. The economic analysis
notes that, because of the uncertainty
involved in estimating the potential
reduction in agricultural production, the
scenario analyzed represents the highend estimate of impacts to water users.
Should this scenario be realized,
losses in land values associated with
transitioning irrigated cropland to nonirrigated lands will likely result, and
would range from $3,175 to $6,190 per
acre, depending on the area in which
critical habitat is located. A total of
6,310 acres of cropland are in the
vicinity of proposed critical habitat (i.e.,
in the same valley), and 810 of those
acres are located within the critical
habitat designation itself. The average
farm size in affected counties ranges
from 1,300 acres to 7,800 acres.
Assuming affected farms are averagesized for their counties, approximately
one to five farms could experience
reductions in crop production.
Alternatively, the median farm size in
affected counties ranges from 41 to
1,300 acres. Assuming affected farms are
median-sized for their counties,
approximately 4 to 199 farms could
experience reductions in crop
production. Under the assumption that
all farms are small (1,884 farms across
5 counties), the estimate of future
impacts (1 to 199) represents between
less than 1 percent to 6.5 percent of total
small farm operations in counties that
contain spikedace and loach minnow
critical habitat. The analysis assumes
that affected farms are small, so that
total future impacts represent less than
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1 percent to 6.5 percent of total small
farm operations in counties that contain
spikedace and loach minnow habitat.
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Livestock Grazing
The economic analysis notes that
ranching operations holding Federal
grazing allotment permits are
anticipated to experience economic
impacts as they implement species
conservation requirements for grazing
activities. The analysis assumes that
each Federal grazing allotment falling
within critical habitat is run by a unique
ranching operation, so that
approximately 76 ranching operations
may be impacted annually. These 76
ranches represent 4.7 percent of ranches
in the affected counties, or 1.0% of
ranches in New Mexico and Arizona.
Annual costs to each of these ranches
would be between $390 and $9,200 per
ranch. With average revenues per ranch
in this region at $166,700, these losses
represent between 0.2 and 5.5 percent of
each ranch’s estimated average
revenues.
The analysis notes that approximately
72 small ranching operations may
experience a reduction in revenues of
between 0.9 and 22 percent of annual
revenues annually. The analysis
concludes that the extent to which these
impacts are significant to any individual
ranch depends on its financial
conditions.
Residential and Commercial
Development
The analysis for residential and
commercial development concludes that
impacts are likely to occur in the Verde
River segment, as it contains a large
amount of private land, a relatively large
human population, and high projected
population growth potential in the next
20 years. The analysis notes that it is
likely that project modification costs
associated with spikedace and loach
minnow conservation activities would
be passed from the developer to the
existing landowner in the form of
reduced prices for raw land. The
landowners may be developers, farmers,
ranchers, or simply individuals or
families that are not registered
businesses, and the analysis concludes
that some of the existing landowners
may be small entities.
Impacts to developers are estimated to
include fencing costs, scientific studies,
surveying and monitoring requirements,
and possibly off-setting mitigation
(habitat set-aside). Costs are estimated to
range from $3.1 million to $4.8 million
per large development, or $3,900 to
$5,900 per housing unit ($190 to 300
annually, if costs are distributed evenly
over 20 years). Total impacts to
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development activities are estimated at
$3.4 to $5.2 million over 20 years, or
$319,000 to $419,000 annually
(assuming a discount rate of seven
percent). The analysis concludes that up
to 1,646 housing units could be built on
approximately 2,880 privately owned
acres within proposed critical habitat
over the next 20 years in Yavapai
County. The economic analysis provides
additional detail on anticipated impacts;
however, because we excluded the
middle and lower portions of the Verde
River under section 4(b)(2) of the Act,
the majority of these costs will not be
incurred.
Recreation
The analysis notes that areas currently
stocked with nonnative sportfish
include the Camp Verde area in the
Verde River in Complex 1 and the East
Fork Gila River in Complex 5. The
analysis states that the future impact of
the critical habitat designation on the
stocking regimes in these areas is
unknown, as is the reduction in fishing
activity that would occur if stocking is
curtailed, and whether or not nonnative
fish stocking might be replaced with
catchable native fish stocking (e.g.,
Apache trout). Because of these
unknowns, the analysis evaluated the
high-end cost of angler days at risk if
sportfish stocking were discontinued in
these reaches.
Angling trips are valued at $8.6
million over 20 years (or $816,000
annually), assuming a discount rate of
seven percent. The analysis notes that
State fish managers typically identify
alternative sites for stocked fish when
areas are closed to stocking, so that
angler days are likely to be redistributed
to other areas rather than lost altogether.
The high-end estimate does not consider
the possibility that recreators will visit
alternative fishing sites.
The two stream reaches where
impacts on recreation are anticipated to
occur are in Yavapai County, Arizona,
and Catron County, New Mexico. If
angler trips to the two stream reaches
are not lost, but instead are redistributed
to other streams, then regional impacts
on small businesses are likely to be
minimal. If, as in the high-end estimate
of impacts, angler trips to the two
stream reaches are not undertaken,
localized impacts on anglers, and in
turn small businesses that rely on
fishing activities, could occur. These
impacts would be spread across a
variety of industries including food and
beverage stores, food service and
drinking places, accommodations,
transportation, and sporting goods. The
analysis found that these industries
generate approximately $829 million in
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total annual sales for these two counties.
Based on 2001 National Survey of
Fishing, Hunting, and WildlifeAssociated Recreation for Arizona and
New Mexico, average expenditures per
fishing trip are approximately $37, with
the bulk of these expenditures occurring
in the food service and gasoline
industries. By multiplying this per-trip
estimate by the number of fishing trips
potentially lost due to spikedace and
loach minnow conservation activities (0
to 13,260 days per year, assuming one
day per trip), expenditures by these
anglers are estimated to be up to
$485,000 annually. The high-end
estimate of annual loss of trip
expenditures could therefore represent a
loss of approximately 0.06 percent of
annual revenues for affected businesses.
In general, two different mechanisms
in section 7 consultations could lead to
additional regulatory requirements for
the approximately four small
businesses, on average, that may be
required to consult with us each year
regarding their project’s impact on the
spikedace and loach minnow and their
habitat. First, if we conclude, in a
biological opinion, that a proposed
action is likely to jeopardize the
continued existence of a species or
adversely modify its critical habitat, we
can offer ‘‘reasonable and prudent
alternatives.’’ Reasonable and prudent
alternatives are alternative actions that
can be implemented in a manner
consistent with the scope of the Federal
agency’s legal authority and
jurisdiction, that are economically and
technologically feasible, and that would
avoid jeopardizing the continued
existence of listed species or result in
adverse modification of critical habitat.
A Federal agency and an applicant may
elect to implement a reasonable and
prudent alternative associated with a
biological opinion that has found
jeopardy or adverse modification of
critical habitat. An agency or applicant
could alternatively choose to seek an
exemption from the requirements of the
Act or proceed without implementing
the reasonable and prudent alternative.
However, unless an exemption were
obtained, the Federal agency or
applicant would be at risk of violating
section 7(a)(2) of the Act if it chose to
proceed without implementing the
reasonable and prudent alternatives.
Second, if we find that a proposed
action is not likely to jeopardize the
continued existence of a listed animal or
plant species, we may identify
reasonable and prudent measures
designed to minimize the amount or
extent of take and require the Federal
agency or applicant to implement such
measures through non-discretionary
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terms and conditions. We may also
identify discretionary conservation
recommendations designed to minimize
or avoid the adverse effects of a
proposed action on listed species or
critical habitat, help implement
recovery plans, or to develop
information that could contribute to the
recovery of the species.
Based on our experience with
consultations pursuant to section 7 of
the Act for all listed species, virtually
all projects—including those that, in
their initial proposed form, would result
in jeopardy or adverse modification
determinations in section 7
consultations—can be implemented
successfully with, at most, the adoption
of reasonable and prudent alternatives.
These measures, by definition, must be
economically feasible and within the
scope of authority of the Federal agency
involved in the consultation. We can
only describe the general kinds of
actions that may be identified in future
reasonable and prudent alternatives.
These are based on our understanding of
the needs of the species and the threats
it faces, as described in the final listing
rule and this critical habitat designation.
Within the final critical habitat units,
the types of Federal actions or
authorized activities that we have
identified as potential concerns are
carrying out, permitting, or funding of:
Livestock grazing, road and bridge
construction and maintenance, water
diversions (including maintenance of
diversion structures), recreation, gravel
mining, burning and wildfires, mining,
watershed disturbances, and the spread
of nonnative aquatic species.
It is likely that a developer or other
project proponent could modify a
project or take measures to protect the
spikedace and loach minnow. The kinds
of actions that may be included if future
reasonable and prudent alternatives
become necessary include conservation
set-asides, management of competing
nonnative species, restoration of
degraded habitat, and regular
monitoring. These are based on our
understanding of the needs of the
species and the threats it faces, as
described in the final listing rule and
proposed critical habitat designation.
These measures are not likely to result
in a significant economic impact to
project proponents.
In summary, we have considered
whether this critical habitat designation
would result in a significant economic
effect on a substantial number of small
entities. We have determined, for the
above reasons and based on currently
available information, that it is not
likely to affect a substantial number of
small entities. Federal involvement, and
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thus section 7 consultations, would be
limited to a subset of the area
designated. The most likely Federal
involvement could include actions
needing a section 404 permit under the
Clean Water Act (e.g., livestock grazing,
agricultural water developments,
recreation). A regulatory flexibility
analysis is not required.
Executive Order 13211
On May 18, 2001, the President issued
Executive Order 13211 (Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) on regulations that
significantly affect energy supply,
distribution, and use. Executive Order
13211 requires agencies to prepare
Statements of Energy Effects when
undertaking certain actions. This final
rule to designate critical habitat for the
spikedace and loach minnow is not
expected to significantly affect energy
supplies, distribution, or use. Therefore,
this action is not a significant energy
action, and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), the Service makes the following
findings:
(a) This rule will not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute or regulation that would impose
an enforceable duty upon State, local, or
Tribal governments, or the private sector
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or tribal governments’’
with two exceptions. It excludes ‘‘a
condition of federal assistance.’’ It also
excludes ‘‘a duty arising from
participation in a voluntary Federal
program,’’ unless the regulation ‘‘relates
to a then-existing Federal program
under which $500,000,000 or more is
provided annually to State, local, and
tribal governments under entitlement
authority,’’ if the provision would
‘‘increase the stringency of conditions of
assistance’’ or ‘‘place caps upon, or
otherwise decrease, the Federal
Government’s responsibility to provide
funding’’ and the State, local, or tribal
governments ‘‘lack authority’’ to adjust
accordingly. (At the time of enactment,
these entitlement programs were:
Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services
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13403
Block Grants; Vocational Rehabilitation
State Grants; Foster Care, Adoption
Assistance, and Independent Living;
Family Support Welfare Services; and
Child Support Enforcement.) ‘‘Federal
private sector mandate’’ includes a
regulation that ‘‘would impose an
enforceable duty upon the private
sector, except (i) a condition of Federal
assistance; or (ii) a duty arising from
participation in a voluntary Federal
program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions do not
destroy or adversely modify critical
habitat under section 7. While nonFederal entities who receive Federal
funding, assistance, or permits or who
otherwise require approval or
authorization from a Federal agency for
an action may be indirectly impacted by
the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply; additionally, critical habitat
would not shift the costs of the large
entitlement programs listed above on to
State governments.
(b) The economic analysis discusses
potential impacts of critical habitat
designation for spikedace and loach
minnow on water management
activities, livestock grazing, Tribes,
residential and commercial
development activities, recreation
activities, fire management activities,
mining, and transportation activities.
The analysis estimates that the total
costs of the rule could range from $25.2
to $100.3 million in undiscounted
dollars over 20 years. Impacts are
largely anticipated to affect water use
and management, recreation, and
livestock. Impacts on small governments
are not anticipated, or they are
anticipated to be passed on to
consumers in the form of price changes.
Consequently, for the reasons discussed
above, we do not believe that the
designation of critical habitat for the
spikedace and loach minnow will
significantly or uniquely affect small
government entities. As such, a Small
Government Agency Plan is not
required.
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Takings
In accordance with Executive Order
12630 (‘‘Government Actions and
Interference with Constitutionally
Protected Private Property Rights’’), we
have analyzed the potential takings
implications of designating critical
habitat for the spikedace and loach
minnow in a takings implications
assessment. The takings implications
assessment concludes that this
designation of critical habitat for these
fish does not pose significant takings
implications.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This rule does not contain any new
collections of information that require
approval by OMB under the Paperwork
Reduction Act. This rule will not
impose record keeping or reporting
requirements on State or local
governments, individuals, businesses, or
organizations. An agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
In accordance with Executive Order
13132, this rule does not have
significant Federalism effects. A
Federalism assessment is not required.
In keeping with Department of the
Interior policies, we requested
information from and coordinated
development of this critical habitat
designation with appropriate State
resource agencies in Arizona and New
Mexico. The designation of critical
habitat in areas currently occupied by
spikedace or loach minnow may impose
nominal additional regulatory
restrictions to those currently in place
and, therefore, may have little
incremental impact on State and local
governments and their activities. The
designation may have some benefit to
these governments in that the areas
containing features essential to the
conservation of this species are more
clearly defined, and the primary
constituent elements of the habitat
necessary to the conservation of this
species are specifically identified. While
making this definition and
identification does not alter where and
what federally sponsored activities may
occur, it may assist local governments in
long-range planning (rather than waiting
for case-by-case section 7 consultations
to occur).
It is our position that, outside the
Tenth Circuit, we do not need to
prepare environmental analyses as
defined by the NEPA in connection with
designating critical habitat under the
Endangered Species Act of 1973, as
amended. We published a notice
outlining our reasons for this
determination in the Federal Register
on October 25, 1983 (48 FR 49244). This
assertion was upheld in the courts of the
Ninth Circuit (Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. Ore.
1995), cert. denied 116 S. Ct. 698 (1996).
However, when the range of the species
includes States within the Tenth
Circuit, such as that of the spikedace
and loach minnow, pursuant to the
Tenth Circuit ruling in Catron County
Board of Commissioners v. U.S. Fish
and Wildlife Service, 75 F.3d 1429 (10th
Cir. 1996), we undertake a NEPA
analysis for critical habitat designation.
We conducted a NEPA evaluation and
notified the public of the draft
document’s availability on June 6, 2006
(71 FR 32496). We completed an
environmental assessment and finding
of no significant impact on the
designation of critical habitat for the
spikedace and loach minnow. The final
documents are available and can be
viewed online at https://www.fws.gov/
southwest/es/arizona/.
Civil Justice Reform
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Federalism
Government to Government
Relationship With Tribes
In accordance with Executive Order
12988, the Department of the Interior’s
Office of the Solicitor has determined
that this rule does not unduly burden
the judicial system and does meet the
requirements of sections 3(a) and 3(b)(2)
of the Order. We are designating critical
habitat in accordance with the
provisions of the Endangered Species
Act. This final rule uses standard
property descriptions and identifies the
primary constituent elements within the
designated areas to assist the public in
understanding the habitat needs of
spikedace and loach minnow.
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The purpose of Secretarial Order 3206
(Secretarial Order) is to ‘‘clarif(y) the
responsibilities of the component
agencies, bureaus, and offices of the
Department of the Interior and the
Department of Commerce, when actions
taken under authority of the Act and
associated implementing regulations
affect, or may affect, Indian lands, tribal
trust resources, or the exercise of
American Indian tribal rights.’’ If there
is potential that a tribal activity could
cause either direct or incidental take of
a species proposed for listing under the
Act, then meaningful government-togovernment consultation will occur to
try to harmonize the Federal trust
responsibility to Tribes and tribal
sovereignty with our statutory
responsibilities under the Act. The
Secretarial order also requires us to
consult with Tribes if the designation of
an area as critical habitat might impact
tribal trust resources, tribally owned fee
lands, or the exercise of tribal rights.
References Cited
A complete list of all references cited
in this rulemaking is upon request from
the Arizona Ecological Services Field
Office (see ADDRESSES section above).
Authors
The primary authors of this package
are the Arizona Ecological Services
Office staff (see ADDRESSES section
above).
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and record
keeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
Code of Federal Regulations as set forth
below:
I
PART 17—[AMENDED]
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 22951), Executive
Order 13175, and the Department of
Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. We
have excluded all Tribal lands from the
final critical habitat designation
pursuant to section 4(b)(2) of the Act.
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Secretarial Order 3206: American
Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the
Endangered Species Act
1. The authority citation for part 17
continues to read as follows:
I
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.95(e) by revising the
critical habitat entries for ‘‘Loach
Minnow (Tiaroga cobitis)’’ and
‘‘Spikedace (Meda fulgida)’’ to read as
follows:
I
§ 17.95
*
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Critical habitat—fish and wildlife.
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(e) Fishes.
*
*
*
*
Loach Minnow (Tiaroga Cobitis)
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(1) Critical habitat units are depicted
for Apache, Graham, Greenlee, and
Pinal Counties, Arizona; and Catron,
Grant, and Hidalgo Counties, New
Mexico, on the maps and as described
below.
(2) Within these areas, the primary
constituent elements of critical habitat
for loach minnow are the following:
(i) Permanent, flowing water with no
or low levels of pollutants, including:
(A) Living areas for adult loach
minnow with moderate to swift flow
velocities between 9.0 to 32.0 in/second
(24 to 80 cm/second) in shallow water
between approximately 1.0 to 30 inches
(3 cm to 75 cm) in depth, with gravel,
cobble, and rubble substrates;
(B) Living areas for juvenile loach
minnow with moderate to swift flow
velocities between 1.0 and 34 in/second
(3.0 and 85.0 cm/second) in shallow
water between approximately 1.0 to 30
inches (3 cm to 75 cm) in depth with
sand, gravel, cobble, and rubble
substrates;
(C) Living areas for larval loach
minnow with slow to moderate
velocities between 3.0 and 20.0 in/
second (9.0 to 50.0 cm/second) in
shallow water with sand, gravel, and
cobble substrates;
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(D) Spawning areas with slow to swift
flow velocities in shallow water where
cobble and rubble and the spaces
between them are not filled in by fine
dirt or sand; and
(E) Water with dissolved oxygen
levels greater than 3.5 cc/l and no or
minimal pollutant levels for pollutants
such as copper, arsenic, mercury, and
cadmium; human and animal waste
products; pesticides; suspended
sediments; and gasoline or diesel fuels.
(ii) Sand, gravel, and cobble substrates
with low or moderate amounts of fine
sediment and substrate embeddedness.
Suitable levels of embeddedness are
generally maintained by a natural,
unregulated hydrograph that allows for
periodic flooding or, if flows are
modified or regulated, a hydrograph that
allows for adequate river functions,
such as flows capable of transporting
sediments.
(iii) Streams that have:
(A) Low gradients of less than
approximately 2.5 percent;
(B) Water temperatures in the
approximate range of 35 to 86 °F (1.7 to
30.0 °C) (with additional natural daily
and seasonal variation);
(C) Pool, riffle, run, and backwater
components; and
(D) An abundant aquatic insect food
base consisting of mayflies, true flies,
black flies, caddisflies, stoneflies, and
dragonflies.
(iv) Habitat devoid of nonnative
aquatic species or habitat in which
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nonnative aquatic species are at levels
that allow persistence of loach minnow.
(v) Areas within perennial,
interrupted stream courses that are
periodically dewatered but that serve as
connective corridors between occupied
or seasonally occupied habitat and
through which the species may move
when the habitat is wetted.
(3) Each stream segment includes a
lateral component that consists of 300
feet (91.4 meters) on either side of the
stream channel measured from the
stream edge at bank full discharge. This
lateral component of critical habitat
contains and contributes to the physical
and biological features essential to the
loach minnow and is intended as a
surrogate for the 100-year floodplain.
(4) Critical habitat map areas. Data
layers defining map areas, and mapping
of critical habitat areas, was done using
Arc GIS and verifying with USGS 7.5′
quadrangles. Legal descriptions for New
Mexico and Arizona are based on the
Public Lands Survey System (PLSS).
Within this system, all coordinates
reported for New Mexico are in the New
Mexico Principal Meridian (NMPM),
while those in Arizona are in the Gila
and Salt River Meridian (GSRM). All
mileage calculations were performed
using GIS.
(5) Note: Index map of critical habitat
units for loach minnow (Map 1) follows:
BILLING CODE 4310–55–P
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(6) Complex 2—Black River, Apache
and Greenlee Counties, Arizona.
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(i) East Fork Black River—12.2 mi
(19.7 km) of river extending from the
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River at Township 4 North, Range 28
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East, section 11 upstream to the
confluence with unnamed tributary
approximately 0.51 mi (0.82 km)
downstream of the Boneyard Creek
confluence at Township 5 North, Range
29 East, section 5. Land ownership: U.S.
Forest Service (Apache—Sitgreaves
National Forest).
(ii) North Fork East Fork Black
River—4.4 mi (7.1 km) of river
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extending from the confluence with East
Fork Black River at Township 5 North,
Range 29 East, section 5 upstream to the
confluence with an unnamed tributary
at Township 6 North, Range 29 East,
section 30. Land ownership: U.S. Forest
Service (Apache—Sitgreaves National
Forest).
(iii) Boneyard Creek—1.4 mi (2.3 km)
of creek extending from the confluence
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with the East Fork Black River at
Township 5 North, Range 29 East,
section 5 upstream to the confluence
with an unnamed tributary at Township
6 North, Range 29 East, section 32. Land
ownership: U.S. Forest Service
(Apache—Sitgreaves National Forest).
(iv) Note: Map of Complex 2 (Black
River) of loach minnow critical habitat
(Map 2) follows:
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(7) Complex 3—Middle Gila/Lower
San Pedro/Aravaipa Creek, Pinal and
Graham Counties, Arizona.
(i) Aravaipa Creek—28.1 mi (45.3 km)
of creek extending from the confluence
with the San Pedro River at Township
7 South, Range 16 East, section 9
upstream to the confluence with Stowe
Gulch at Township 6 South, Range 19
East, section 35. Land ownership:
Bureau of Land Management, Tribal,
and State lands.
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(ii) Turkey Creek—2.7 mi (4.3 km) of
creek extending from the confluence
with Aravaipa Creek at Township 6
South, Range 19 East, section 19
upstream to the confluence with Oak
Grove Canyon at Township 6 South,
Range 19 East, section 32. Land
ownership: Bureau of Land
Management.
(iii) Deer Creek—2.3 mi (3.6 km) of
creek extending from the confluence
with Aravaipa Creek at Township 6
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13409
South, Range 18 East, section 14
upstream to the boundary of the
Aravaipa Wilderness at Township 6
South, Range 19 East, section 18. Land
ownership: Bureau of Land
Management.
(iv) Note: Map of Complex 3
(Aravaipa Creek) of loach minnow
critical habitat (Map 3) follows:
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(8) Complex 4—San Francisco and
Blue Rivers, Pinal and Graham
Counties, Arizona, and Catron County,
New Mexico.
(i) Eagle Creek—17.7 mi (28.5 km) of
creek extending from the Phelps—
Dodge Diversion Dam at Township 4
South, Range 28 East, section 23
upstream to the confluence of Dry Prong
and East Eagle Creeks at Township 2
North, Range 28 East, section 29,
excluding portions of the San Carlos
Reservation. Land ownership: U.S.
Forest Service (Apache—Sitgreaves
National Forest), and private lands.
(ii) San Francisco River—126.5 mi
(203.5 km) of river extending from the
confluence with the Gila River at
Township 5 South, Range 29 East,
section 21 upstream to the mouth of The
Box, a canyon above the town of
Reserve, at Township 6 South, Range 19
West, section 2. Land ownership:
Bureau of Land Management, U.S.
Forest Service (Apache–Sitgreaves
National Forest), State, and private
lands in Arizona, and U.S. Forest
Service (Gila National Forest) and
private lands in New Mexico.
(iii) Tularosa River—18.6 mi (30.0
km) of river extending from the
confluence with the San Francisco River
at Township 7 South, Range 19 West,
section 23 upstream to the town of
Cruzville at Township 6 South, Range
18 West, section 12. Land ownership:
U.S. Forest Service (Gila National
Forest) and private lands.
(iv) Negrito Creek—4.2 mi (6.8 km) of
creek extending from the confluence
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with the Tularosa River at Township 7
South, Range 18 West, section 19
upstream to the confluence with Cerco
Canyon at Township 7 South, Range 18
West, section 21. Land ownership: U.S.
Forest Service (Gila National Forest),
and private lands.
(v) Whitewater Creek—1.1 mi (1.8 km)
of creek extending from the confluence
with the San Francisco River at
Township 11 South, Range 20 West,
section 27 upstream to the confluence
with the Little Whitewater Creek at
Township 11 South, Range 20 West,
section 23. Land ownership: private
lands.
(vi) Blue River—51.1 mi (82.2 km) of
river extending from the confluence
with the San Francisco River at
Township 2 South, Range 31 East,
section 31 upstream to the confluence of
Campbell Blue and Dry Blue Creeks at
Township 6 South, Range 20 West,
section 6. Land ownership: U.S. Forest
Service (Apache–Sitgreaves National
Forest) and private lands in Arizona;
U.S. Forest Service (Gila National
Forest) in New Mexico.
(vii) Campbell Blue Creek—8.1 mi
(13.1 km) of creek extending from the
confluence of Dry Blue and Campbell
Blue Creeks at Township 6 South, Range
20 West, section 6 in New Mexico
upstream to the confluence with
Coleman Canyon at Township 4 North,
Range 31 East, section 32 in Arizona.
Land ownership: U.S. Forest Service
(Apache–Sitgreaves National Forest)
and private lands in Arizona; U.S.
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13411
Forest Service (Gila National Forest) in
New Mexico.
(viii) Dry Blue Creek—3.0 mile (4.8
km) of creek extending from the
confluence with Campbell Blue Creek at
Township 7 South, Range 21 West,
section 6 upstream to the confluence
with Pace Creek at Township 6 South,
Range 21 West, section 28. Land
ownership: U.S. Forest Service (Gila
National Forest).
(ix) Pace Creek—0.8 mile (1.2 km) of
creek extending from the confluence
with Dry Blue Creek at Township 6
South, Range 21 West, section 28
upstream to a barrier falls at Township
6 South, Range 21 West, section 29.
Land ownership: U.S. Forest Service
(Gila National Forest).
(x) Frieborn Creek—1.1 mi (1.8 km) of
creek extending from the confluence
with Dry Blue Creek at Township 7
South, Range 21 West, section 6
upstream to an unnamed tributary at
Township 7 South, range 21 West,
section 8. Land ownership: U.S. Forest
Service (Gila National Forest).
(xi) Little Blue Creek—2.8 mi (4.5 km)
of creek extending from the confluence
with the Blue River at Township 1
South, range 31 East, section 5 upstream
to the mouth of a canyon at Township
1 North, Range 31 East, section 29. Land
ownership: U.S. Forest Service
(Apache–Sitgreaves National Forest).
(xii) Note: Map of Complex 4 (San
Francisco and Blue Rivers) of loach
minnow critical habitat (Map 4) follows:
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(9) Complex 5—Upper Gila River
Complex, Catron, Grant, and Hidalgo
Counties, New Mexico.
(i) Upper Gila River—94.9 mi (152.7
km) of river extending from the
confluence with Moore Canyon (near
the Arizona/New Mexico border) at
Township 18 South, Range 21 West,
section 32 upstream to the confluence of
the East and West Forks of the Gila
River at Township 13 South, Range 13
West, section 8. Land ownership:
Bureau of Land Management, U.S.
Forest Service (Gila National Forest),
State, and private lands.
(ii) East Fork Gila River—26.1 mi
(42.0 km) of river extending from the
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confluence with the West Fork Gila
River at Township 11 South, Range 12
West, section 17 upstream to the
confluence of Beaver and Taylor creeks
at Township 13 South, Range 13 West,
section 8. Land ownership: U.S. Forest
Service (Gila National Forest) and
private lands.
(iii) Middle Fork Gila River—11.9 mi
(19.1 km) of river extending from the
confluence with the West Fork Gila
River at Township 12 South, Range 14
West, section 25 upstream to the
confluence with Brothers West Canyon
at Township 11 South, Range 14 West,
section 33. Land ownership: U.S. Forest
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13413
Service (Gila National Forest) and
private lands.
(iv) West Fork Gila River—7.7 mi
(12.4 km) of river extending from the
confluence with the East Fork Gila River
at Township 13 South, Range 13 West,
section 8 upstream to the confluence
with EE Canyon at Township 12 South,
Range 14 West, section 22. Land
ownership: U.S. Forest Service (Gila
National Forest), National Park Service,
and private lands.
(v) Note: Map of Complex 5 (Upper
Gila River Complex) of loach minnow
critical habitat (Map 5) follows:
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*
*
*
*
*
Spikedace (Meda fulgida)
jlentini on PROD1PC65 with RULES2
(1) Critical habitat units are depicted
for Graham, Greenlee, Pinal, and
Yavapai Counties, Arizona; and Catron,
Grant, and Hidalgo Counties, New
Mexico, on the maps and as described
below.
(2) Within these areas, the primary
constituent elements of critical habitat
for spikedace are the following:
(i) Permanent, flowing water with no
or minimal pollutant levels, including:
(A) Living areas for adult spikedace
with slow to swift flow velocities
between 20 and 60 cm/second (8 and 24
in/second) in shallow water between
approximately 10 cm (4 in) and 1 meter
(40 in) in depth, with shear zones where
rapid flow borders slower flow, areas of
sheet flow (or smoother, less turbulent
flow) at the upper ends of mid-channel
sand/gravel bars, and eddies at
downstream riffle edges;
(B) Living areas for juvenile spikedace
with slow to moderate water velocities
of approximately 18 cm/second (8 in/
second) or higher in shallow water
between approximately 3 cm (1.2 in)
and 1 meter (40 in) in depth;
(C) Living areas for larval spikedace
with slow to moderate flow velocities of
approximately 10 cm/second (4 in/
second) or higher in shallow water
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approximately 3 cm (1.2 in) to 1 meter
(40 in) in depth; and
(D) Water with dissolved oxygen
levels greater than 3.5 cc/l and no or
minimal pollutant levels for pollutants
such as copper, arsenic, mercury, and
cadmium; human and animal waste
products; pesticides; suspended
sediments; and gasoline or diesel fuels.
(ii) Sand, gravel, and cobble substrates
with low or moderate amounts of fine
sediment and substrate embeddedness.
Suitable levels of embeddedness are
generally maintained by a natural,
unregulated hydrograph that allows for
periodic flooding or, if flows are
modified or regulated, a hydrograph that
allows for adequate river functions,
such as flows capable of transporting
sediments.
(iii) Streams that have:
(A) Low gradients of less than
approximately 1.0 percent;
(B) Water temperatures in the
approximate range of 35 to 82 °F (1.7 to
27.8 °C) (with additional natural daily
and seasonal variation);
(C) Pool, riffle, run, and backwater
components; and
(D) An abundant aquatic insect food
base consisting of mayflies, true flies,
caddisflies, stoneflies, and dragonflies.
(iv) Habitat devoid of nonnative
aquatic species or habitat in which
nonnative aquatic species are at levels
that allow persistence of spikedace.
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(v) Areas within perennial,
interrupted stream courses that are
periodically dewatered but that serve as
connective corridors between occupied
or seasonally occupied habitat and
through which the species may move
when the habitat is wetted.
(3) Each stream segment includes a
lateral component that consists of 300
feet (91.4 meters) on either side of the
stream channel measured from the
stream edge at bank full discharge. This
lateral component of critical habitat
contains and contributes to the physical
and biological features essential to the
spikedace and is intended as a surrogate
for the 100-year floodplain.
(4) Critical habitat map areas. Data
layers defining map areas, and mapping
of critical habitat areas, was done using
Arc GIS and verifying with USGS 7.5′
quadrangles. Legal descriptions for New
Mexico and Arizona are based on the
Public Lands Survey System (PLSS).
Within this system, all coordinates
reported for New Mexico are in the New
Mexico Principal Meridian (NMPM),
while those in Arizona are in the Gila
and Salt River Meridian (GSRM). All
mileage calculations were performed
using GIS.
(5) Note: Index map of critical habitat
units for spikedace (Map 1), follows:
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(6) Complex 1—Verde River, Yavapai
County, Arizona.
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(i) Verde River—43.0 mi (69.2 km) of
river extending from the Prescott and
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Coconino National Forest boundary
with private lands at Township 17
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ownership: U.S. Forest Service
(Coconino and Prescott National
Forests), State, and private lands.
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(ii) Note: Map of Complex 1 (Verde
River) of spikedace critical habitat (Map
2) follows:
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North, Range 3 East, section 7, upstream
to Sullivan Dam at Township 17 North,
Range 2 West, section 15. Land
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(7) Complex 3—Middle Gila/Lower
San Pedro/Aravaipa Creek, Pinal and
Graham Counties, Arizona.
(i) Gila River—39.0 mi (62.8 km) of
river extending from the AshurstHayden Dam at Township 4 South,
Range 11 East, section 8 upstream to the
confluence with the San Pedro River at
Township 5 South, Range 15 East,
section 23. Land ownership: Bureau of
Reclamation, Bureau of Land
Management, State, and private lands.
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(ii) Lower San Pedro River—13.4 mi
(21.5 km) of river extending from the
confluence with the Gila River at
Township 5 South, Range 15 East,
section 23 upstream to the confluence
with Aravaipa Creek at Township 7
South, Range 16 East, section 9. Land
ownership: Bureau of Land
Management, Tribal, State, and private
lands.
(iii) Aravaipa Creek—28.1 mi (45.3
km) of creek extending from the
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confluence with the San Pedro River at
Township 7 South, Range 16 East,
section 9 upstream to the confluence
with Stowe Gulch at Township 6 South,
Range 19 East, section 35. Land
ownership: Bureau of Land
Management, Tribal, State, and private
lands.
(iv) Note: Map of Complex 3 (Middle
Gila/Lower San Pedro/Aravaipa Creek)
of spikedace critical habitat (Map 3)
follows:
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(8) Complex 5—Upper Gila River
Complex, Catron, Grant, and Hidalgo
Counties, New Mexico.
(i) Upper Gila River—94.9 mi (152.7
km) of river extending from the
confluence with Moore Canyon (near
the Arizona/New Mexico border) at
Township 18 South, Range 21 West,
section 32 upstream to the confluence of
the East and West Forks of the Gila
River at Township 13 South, Range 13
West, section 8, excluding lands owned
by the Phelps Dodge Corporation. Land
ownership: Bureau of Land
Management, U.S. Forest Service (Gila
National Forest), State, and private
lands.
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(ii) East Fork Gila River—26.1 mi
(42.0 km) of river extending from the
confluence with the West Fork Gila
River at Township 13 South, Range 13
West, section 8 upstream to the
confluence of Beaver and Taylor creeks
at Township 11 South, Range 12 West,
section 17. Land ownership: U.S. Forest
Service (Gila National Forest) and
private lands.
(iii) Middle Fork Gila River—7.7 mi
(12.3 km) of river extending from the
confluence with the West Fork Gila
River at Township 12 South, Range 14
West, section 25 upstream to the
confluence with Big Bear Canyon at
Township 12 South, Range 14 West,
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section 2. Land ownership: U.S. Forest
Service (Gila National Forest) and
private lands.
(iv) West Fork Gila River—7.7 mi
(12.4 km) of river extending from the
confluence with the East Fork Gila River
at Township 13 South, Range 13 West,
section 8 upstream to the confluence
with EE Canyon at Township 12 South,
Range 14 West, section 22. Land
ownership: U.S. Forest Service (Gila
National Forest), National Park Service,
and private lands.
(v) Note: Map of Complex 5 (Upper
Gila River Complex) of spikedace
critical habitat (Map 4) follows:
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*
*
Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / Rules and Regulations
*
*
Dated: March 6, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 07–1218 Filed 3–20–07; 8:45 am]
*
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]]>Agencies
[Federal Register Volume 72, Number 54 (Wednesday, March 21, 2007)]
[Rules and Regulations]
[Pages 13356-13422]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-1218]
[[Page 13355]]
-----------------------------------------------------------------------
Part II
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Spikedace (Meda fulgida) and the Loach Minnow (Tiaroga
cobitis); Final Rule
Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 /
Rules and Regulations
[[Page 13356]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU33
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Spikedace (Meda fulgida) and the Loach Minnow
(Tiaroga cobitis)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating critical habitat for the spikedace (Meda fulgida) and loach
minnow (Tiaroga cobitis) pursuant to the Endangered Species Act of
1973, as amended (Act). In total, approximately 522.2 river miles (mi)
(840.4 kilometers (km)) are designated as critical habitat. Critical
habitat is located in Catron, Grant, and Hidalgo Counties in New
Mexico, and Apache, Graham, Greenlee, Pinal, and Yavapai Counties in
Arizona.
DATES: This final rule is effective April 20, 2007.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection, by appointment, during normal business hours at
the U.S. Fish and Wildlife Service, Arizona Ecological Services Field
Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951.
The final rule, economic analysis, environmental assessment, and more-
detailed color maps of the critical habitat designation are also
available via the Internet at https://www.fws.gov/arizonaes/. Geographic
Information System (GIS) files of the critical habitat maps are also
available via the Internet at https://criticalhabitat.fws.gov/.
FOR FURTHER INFORMATION CONTACT: Steven L. Spangle, Field Supervisor,
U.S. Fish and Wildlife Service, Arizona Ecological Services Field
Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951
(telephone 602-242-0210; facsimile 602-242-2513). Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339, 7 days a week and 24
hours a day.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
designation of critical habitat in this rule. For more information on
the spikedace or the loach minnow, refer to the previous final critical
habitat designation for the spikedace and loach minnow published in the
Federal Register on April 25, 2000 (65 FR 24328).
Spikedace
Description and taxonomy. The spikedace is a member of the minnow
family Cyprinidae. The spikedace was first collected in 1851 from the
Rio San Pedro in Arizona and was described from those specimens in 1856
by Girard. It is the only species in the genus Meda. The spikedace is a
small, slim fish less than 3 inches (in) (75 millimeters (mm) in length
(Sublette et al. 1990, p. 136). It is characterized by an olive gray to
brownish back and silvery sides with vertically elongated black specks.
Spikedace have spines in the dorsal fin (Minckley 1973, pp. 82, 112,
115).
Distribution and Habitat. Spikedace are found in moderate to large
perennial streams, where they inhabit shallow riffles (shallow areas in
a streambed causing ripples) with sand, gravel, and rubble substrates
(Barber and Minckley 1966, p. 321; Propst et al. 1986, p. 12; Rinne and
Kroeger 1988, p. 1). Recurrent flooding and a natural hydrograph
(physical conditions, boundaries, flow, and related characteristics of
water) are very important in maintaining the habitat of spikedace and
in helping the species maintain a competitive edge over invading
nonnative aquatic species (Minckley and Meffe 1987, p. 103-104; Propst
et al. 1986, pp. 3, 81, 85).
The spikedace was once common throughout much of the Gila River
basin, including the mainstem Gila River upstream of Phoenix, and the
Verde, Agua Fria, Salt, San Pedro, and San Francisco subbasins. It
occupies suitable habitat in both the mainstem reaches and moderate-
gradient tributaries, up to approximately 6,500 feet (ft) (2,000 meters
(m)) in elevation (Chamberlain 1904, p. 8; Cope and Yarrow 1875, pp.
641-642; Gilbert and Scofield 1898, pp. 487, 497; Miller 1960 and
Hubbs, pp. 32-33).
Habitat destruction and competition and predation by nonnative
aquatic species have severely reduced its range and abundance. It is
now restricted to portions of the upper Gila River and the East, West,
and Middle Forks of the Gila River in New Mexico and the middle Gila
River, lower San Pedro River, Aravaipa Creek, Eagle Creek, and the
Verde River in Arizona (Anderson 1978, pp. 14-17, 61-62; Bestgen 1985,
p. 6; Jakle 1992, p. 6; Marsh et al. 1989, pp. 2-3; Paroz et al. 2006,
pp. 26, 37-41, 62-67; Propst et al. 1986, p. 1; Sublette et al. 1990,
pp. 138-139), and is only commonly found in surveys of Aravaipa Creek
and some parts of the upper Gila River in New Mexico (Arizona Game and
Fish Department (AGFD) 2004; Arizona State University 2002; Propst
2002, pp. 4, 16-33, Appendix II--Table 2; Propst et al. 1986, p. iv;
Rienthal 2006, p. 2). Based on the available maps and survey
information, we estimate its present range to be approximately 10 to 15
percent or less of its historical range, and the status of the species
within occupied areas ranges from common to very rare. Recent data
indicate the population in New Mexico has declined in recent years
(Paroz et al. 2006, p. 56). Table 1 summarizes critical habitat areas
designated as critical habitat in this final rule for spikedace, as
well as potential threats and records of spikedace within those areas.
Loach Minnow
Description and taxonomy. The loach minnow is a member of the
minnow family Cyprinidae. The loach minnow was first collected in 1851
from the Rio San Pedro in Arizona and was described from those
specimens in 1865 by Girard (pp. 191-192). The loach minnow is a small,
slender, elongated fish less than 3 in (80 mm) in length. It is olive
colored overall, with black mottling or splotches. Breeding males have
vivid red to red-orange markings on the bases of fins and adjacent
body, on the mouth and lower head, and often on the abdomen (Minckley
1973, p. 134; Sublette et al. 1990, p. 186).
Distribution and Habitat. Loach minnow are found in small to large
perennial streams, and use shallow, turbulent riffles with primarily
cobble on the bottom in areas of swift currents (Minckley 1973, p. 134;
Propst and Bestgen 1991, p. 32; Propst et al. 1988, pp. 36-43; Rinne
1989, p. 111). The loach minnow uses the space between, and in the lee
(sheltered) side of rocks for resting and spawning. It is rare or
absent from habitats where fine sediments fill the interstitial spaces
(small, narrow spaces between rocks or other substrate) (Propst and
Bestgen 1991; p. 33). Recurrent flooding and a natural hydrograph are
very important in maintaining the habitat of loach minnow and in
helping the species maintain a competitive edge over invading nonnative
aquatic species (Propst and Bestgen 1991, pp. 33, 37).
The loach minnow was once locally common throughout much of the
Gila River basin, including the mainstem Gila River upstream of
Phoenix, and the Verde, Salt, San Pedro, and San Francisco subbasins
(Minckley 1973, p. 133-134; Lee et al. 1980, p. 365). It
[[Page 13357]]
occupies suitable habitat in both the mainstem reaches and moderate-
gradient tributaries, up to about 8,200 ft (2,500 m) in elevation.
Habitat destruction and competition and predation by nonnative aquatic
species have severely reduced its range and abundance (Carlson and Muth
1989, pp. 232-233; Fuller et al. 1990, p. 1; Lachner et al. 1970, p.
22; Miller 1961, pp. 365, 377, 397-398; Minckley 1973, p. 135; Moyle
1986, pp. 28-34; Moyle et al. 1986, pp. 416-423; Ono et al. 1983, p.
90; Propst et al. 1988, p. 2, 64). It is now restricted to portions of
the upper Gila, the San Francisco, and Tularosa rivers in New Mexico;
and the Blue River and its tributaries Dry Blue, Campbell Blue, Little
Blue, Pace, and Frieborn creeks; Aravaipa Creek and its tributaries
Turkey and Deer creeks; Eagle Creek; East Fork White River; and the
Black River and the North Fork East Fork Black River in Arizona (Bagley
et al. 1998, pp. 3-6, 8; Bagley et al. 1995, multiple survey records;
Barber and Minckley 1966, p. 321; Britt 1982, pp. 6-7; Leon 1989, p. 1;
Marsh et al. 1989, pp. 7-8; Paroz et al. 2006, pp. 26, 37-41, 62-67;
Propst et al. 1988, pp. 12-17; Propst and Bestgen 1991, p. 29; Propst
1996, multiple survey records; Springer 1995, pp. 6-7, 9-10), and is
only common in Aravaipa Creek and the Blue River in Arizona, and
limited portions of the upper San Francisco River, the upper Gila
River, and Tularosa River in New Mexico (Paroz et al. 2006, pp. 55-60;
Propst and Bestgen 1991, pp. 29, 37). The present range of the loach
minnow is estimated at 10 percent of its historical range (Propst et
al. 1988, p. 12), and the status of the species within occupied areas
ranges from common to very rare. Table 1 summarizes critical habitat
areas designated for loach minnow, as well as potential threats and
records of loach minnow within those areas.
Table 1.--Locations of Spikedace and Loach Minnow Stream Segments Designated as Critical Habitat, Threats to the
Species, Last Year of Documented Occupancy, and Source of Occupancy Information
----------------------------------------------------------------------------------------------------------------
Last year Critical habitat
Spikedace and/or loach minnow Threats occupancy distance in mi Source
critical habitat areas confirmed (km)
----------------------------------------------------------------------------------------------------------------
Complex 1--Verde River
----------------------------------------------------------------------------------------------------------------
Verde River--Spikedace Nonnative fish 1999.............. 43.0 mi (69.2 km). AGFD 2004; ASU
species, grazing, 2002; Brouder
water diversions. 2002, p. 1.
----------------------------------------------------------------------------------------------------------------
Complex 2--Black River Complex
----------------------------------------------------------------------------------------------------------------
Boneyard Creek--Loach minnow.... Recreational 1996.............. 1.4 mi (2.3 km)... AGFD 2004; ASU
pressures, 2002.
nonnative fish
species, recent
fire and related
retardant
application, ash,
and sediment.
East Fork Black--Loach minnow... Recreational 2004.............. 12.2 mi (19.7 km). AGFD 2004; ASU
pressures, 2002.
nonnative fish
species, recent
fire and related
retardant
application, ash,
and sediment.
North Fork East Fork Black-- Recreational 2004.............. 4.4 mi (7.1 km)... AGFD 2004; ASU
Loach minnow. pressures, 2002; Bagley et
nonnative fish al. 1995,
species, recent multiple surveys;
fire and related Lopez 2000, p. 1.
retardant
application, ash,
and sediment.
----------------------------------------------------------------------------------------------------------------
Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek
----------------------------------------------------------------------------------------------------------------
Aravaipa Creek--Spikedace and Fire, some 2005.............. 28.1 mi (45.3 km). ADEQ 2006; AGFD
Loach minnow. recreational 2004; ASU 2002;
pressure, Rienthal 2006,
nonnative pp. 2-3.
pressures, water
diversion,
contaminants.
Deer Creek--Loach minnow........ Fire, some 2005.............. 2.3 mi (3.6 km)... AGFD 2004; ASU
recreational 2002; Rienthal
pressure, low 2006, p. 2.
nonnative
pressures.
Turkey Creek--Loach minnow...... Fire, some 2005.............. 2.7 mi (4.3 km)... AGFD 2004; ASU
recreational 2002; Rienthal
pressure, 2006, p. 2.
nonnative
pressures.
Gila River--Ashurst-Hayden Dam
to San Pedro
Spikedace................... Water diversions, 1991.............. 39.0 mi (62.8 km). AGFD 2004; ASU
grazing, 2002; Jakle 1992,
nonnative fish p. 6.
species.
San Pedro River (lower)-- Water diversions, 1966 (directly 13.4 mi (21.5 km). AGFD 2004; ASU
Spikedace. grazing, connected to 2002.
nonnative fish Aravaipa Creek,
species, mining. with records from
2005).
----------------------------------------------------------------------------------------------------------------
Complex 4--San Francisco and Blue Rivers
----------------------------------------------------------------------------------------------------------------
Eagle Creek--Loach minnow....... Grazing, nonnative 1997.............. 17.7 mi (28.5 km). AGFD 2004; ASU
fish species, 2002; Bagley and
water diversions, Marsh 1997, pp. 1-
mining. 2; Knowles 1994,
pp. 1-2, 5; Marsh
et al. 2003, pp.
666-668.
[[Page 13358]]
San Francisco River--Loach Grazing, water 2005.............. 126.5 mi (203.5 AGFD 2004; ASU
minnow. diversions, km). 2002; Paroz et
nonnative fish al. 2006, p. 67;
species, road Propst 2002, p.
construction and 13; Propst 2005,
maintenance, p. 10; Propst
channelization. 2006, p. 2.
Tularosa River--Loach minnow.... Grazing, watershed 2002.............. 18.6 mi (30.0 km). ASU 2002; Propst
disturbances. 2002, p. 9;
Propst 2005, p.
6.
Frieborn Creek--Loach minnow.... Dispersed 1998.............. 1.1 mi (1.8 km)... ASU 2002.
livestock grazing.
Negrito Creek--Loach minnow..... Grazing, watershed 1998.............. 4.2 mi (6.8 km)... Miller 1998, pp. 4-
disturbances. 5.
Whitewater Creek--Loach minnow.. Grazing, watershed 1984 (directly 1.1 mi (1.8 km)... ASU 2002; Propst
disturbances. connected to the et al. 1988,
San Francisco p.15.
River, with
records from
2005).
Blue River--Loach minnow........ Water diversions, 2004.............. 51.1 mi (82.2 km). AGFD 2004; ASU
nonnative fish 2002; Carter
species, 2005; Propst
livestock 2002, p. 4.
grazing, road
construction.
Campbell Blue Creek--Loach Grazing, nonnative 2004.............. 8.1 mi (13.1 km).. AGFD 2004; ASU
minnow. fish species. 2002; Carter
2005.
Little Blue Creek--Loach minnow. Grazing, nonnative 1981 (directly 2.8 mi (4.5 km)... AGFD 2004; ASU
fish species. connected to the 2002.
Blue River, with
records from
2004).
Dry Blue Creek--Loach minnow.... Grazing........... 2001.............. 3.0 mi (4.8 km)... ASU 2002; Propst
2006, p. 2.
Pace Creek--Loach minnow........ Grazing, nonnative 1998.............. 0.8 mi (1.2 km)... ASU 2002.
fish species.
----------------------------------------------------------------------------------------------------------------
Complex 5--Upper Gila River
----------------------------------------------------------------------------------------------------------------
East Fork Gila River--Spikedace Grazing, nonnative 2000, 1998........ 26.1 mi (42.0 km). ASU 2002; Propst
and Loach minnow fish species, ash 2002, p. 27;
flows from Propst et al.
wildfires. 1998, p.14-15;
Propst 2006, pp.
2.
Upper Gila River--Spikedace and Recreation, roads, 2005.............. 94.9 mi (152.7 km) ASU 2002; Propst
Loach minnow. grazing, 2002, pp. 4, 31.
nonnative fish
species, water
diversion.
Middle Fork Gila River-- Nonnative fish 1995, 1998........ 7.7 mi (12.3 km), ASU 2002; Paroz et
Spikedace and Loach minnow. species, Grazing, 11.9 mi (19.1 km). al. 2006, p. 63;
ash flows from Propst 2002, p.
wildfires. 22; Propst, 2006,
p. 2.
West Fork Gila River--Spikedace Nonnative fish 2005, 2002........ 7.7 mi (12.4 km).. ASU 2002; Paroz et
and Loach minnow. species, roads, al. 2006, p. 64;
ash flows from Propst 2002, p.
wildfires. 18; Propst 2006,
p. 2.
----------------------------------------------------------------------------------------------------------------
Previous Federal Actions
We previously published a final critical habitat designation on
April 25, 2000 (65 FR 24328). In New Mexico Cattle Growers' Association
and Coalition of Arizona/New Mexico Counties for Stable Economic Growth
v. United States Fish and Wildlife Service, CIV 02-0199 JB/LCS (D.N.M),
the plaintiffs challenged the April 25, 2000, critical habitat
designation for the spikedace and loach minnow because the economic
analysis had been prepared using the same methods which the Tenth
Circuit had held to be invalid. The Center for Biological Diversity
joined the lawsuit as a Defendant-Intervenor. The Service agreed to a
voluntary vacatur of the critical habitat designation, except for the
Tonto Creek Complex. On August 31, 2004, the United States District
Court for the District of New Mexico set aside the April 25, 2000,
critical habitat designation in its entirety and remanded it to the
Service for preparation of a new proposed and final designation. On
December 20, 2005, we published a proposed critical habitat designation
(70 FR 75546).
For more information on previous Federal actions concerning the
spikedace and loach minnow, including listing documents published in
1985 and 1986 (50 FR 25380, June 18, 1985; 51 FR 39468, October 28,
1986; 51 FR 23769, July 1, 1986) as well as the first critical habitat
designation in 1994 (59 FR 10898, March 8, 1994; 59 FR 10906, March 8,
1994), refer to the critical habitat designation published in the
Federal Register on April 25, 2000 (65 FR 24328).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the spikedace and loach minnow on
December 20, 2005 (70 FR 75546), and in two notices to reopen the
comment period on June 6, 2006 (71 FR 32496) and October 4, 2006 (71 FR
58574). We also contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties and
invited them to comment on the proposed rule. We requested information
on the current status, distribution, and threats
[[Page 13359]]
to the spikedace and loach minnow, as well as information on the status
of other aquatic species in the historical range of the spikedace and
loach minnow. We requested this information in order to make a final
critical habitat determination based on the best available scientific
and commercial data. We also requested information on proposed
exclusions of various areas from the final critical habitat
designation. In addition, we held public hearings on June 13 and 20,
2006, in Silver City, NM, and Camp Verde, AZ, respectively, to solicit
comments on the proposed rule. We published newspaper articles inviting
public comment and announcing these public hearings in the Arizona
Republic, Arizona Daily Star, Camp Verde Bugle, Sierra Vista Herald,
Tucson Citizen, Verde Independent, and White Mountain Independent in
Arizona, and the Albuquerque Journal, Albuquerque Tribune, and Silver
City Daily Press in New Mexico.
During the first public comment period, which opened on December
20, 2005, and closed on February 21, 2006, we received 23 comments
directly addressing the proposed critical habitat designation (e-mails,
letters, and faxes). Of these, we received two comments from peer
reviewers, three from Federal agencies, five from Tribes, one from a
State agency, seven from organizations, and five from individuals. We
also received two requests for public hearings. During the second
comment period, which opened on June 6, 2006, and closed on July 6,
2006, we received 39 comments. Of these latter comments, 2 were from
Federal agencies, 3 from State agencies, and 34 from organizations or
individuals. During the third comment period, which opened on October
4, 2006, and closed on October 16, 2006, we received 11 comment
letters. Of these comments, three were from Federal agencies and eight
from organizations and individuals.
Of the written comments received during the first comment period,
four supported, eight were opposed, and six included comments or
information but did not express support for or opposition to the
proposed critical habitat designation. Of the written comments received
during the second comment period, nine supported, 23 were opposed, and
seven included comments or information but did not express support for
or opposition to the proposed listing and critical habitat designation.
Written comments received during the third comment period were specific
to the proposals to exclude portions of various streams due to receipt
of management plans for those streams. Of these written comments, two
supported exclusions in Eagle Creek and the upper Gila River, three
opposed these exclusions, four proposed additional exclusions in other
areas, and three included comments or information but did not express
support for or opposition to the proposed exclusions.
We also received numerous comments on the content and soundness of
the environmental assessment and economic analysis. For the
environmental assessment, comments focused on the adequacy of
completing an environmental assessment rather than an environmental
impact statement, the inadequacy of the comment period and
opportunities for public participation, the use of the 300-foot buffer
for the lateral extent of the designation, the application of the
destruction or adverse modification language, the adequacy of the
discussion of impacts of the proposed action to water use and water
rights, the range of alternatives covered, and the economic information
provided in the environmental assessment.
Comments on the economic analysis included the suggestion that we
failed to estimate benefits of the proposed designation; the adequacy
and scope of the analysis; impacts to small business entities, ranching
and farming communities, and water use and water rights; the Regulatory
Flexibility Act; the Verde River and estimated costs and benefits of
including it in the final designation; and Tribal lands and impacts to
Tribes.
Responses to comments were grouped into three categories below.
Peer review comments are listed first, followed by comments received
from the States. Comments received from the public are listed last.
Because staff from the New Mexico Department of Game and Fish (NMDGF)
responded as peer reviewers, their comments are listed in the peer
review section, while those of the AGFD are listed under State
comments.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from 13 knowledgeable individuals
with scientific expertise that included familiarity with the species,
the geographic region in which the species occurs, and conservation
biology principles. These individuals represented Federal agencies,
State agencies, university researchers, or themselves as private
individuals. We received responses from two of the peer reviewers, one
as a private individual and the other in the capacity of an individual
who works for the New Mexico Department of Game and Fish. Peer review
comments focused on the reduction in the proposed critical habitat
designation from previous designations, the area encompassed by
critical habitat, and potential threats to the species, including the
need to expand ``nonnative fish'' to include ``nonnative aquatic
species.''
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the spikedace and loach minnow, and addressed them in the
following summary.
Peer Reviewer Comments
(1) Comment: The reduction in stream miles of critical habitat
proposed for designation from that previously designated for the
spikedace and loach minnow provides no incentive for land and resource
management agencies to launch projects that would restore conditions
for the enhancement of spikedace and loach minnow. All of the major
stream course and complexes, and many of the smaller tributaries, have
potential to provide elements necessary for the recovery of these
species and should be included in critical habitat.
Our response: The Service's process for designating critical
habitat has evolved since prior designations of critical habitat for
the spikedace and loach minnow. As required by section 4(b)(1)(A) of
the Act, we used the best scientific and commercial data available in
determining areas for designation as critical habitat.
(2) Comment: In primary constituent element (PCE) 4, ``nonnative
fish'' should be modified to include any and all nonnative aquatic
species, including the current component of nonnative fishes and those
that may become established in the future, as well as crayfishes,
macroinvertebrates, parasites, and disease-causing pathogens.
Our response: We agree and we have changed ``nonnative aquatic
fishes'' in the final rule to ``nonnative aquatic species.'' In
addition, language has been added addressing additional nonnatives and
their sources, as well as their potential effects on the native fish
community.
(3) Comment: Designating critical habitat serves positive purposes.
The prohibition against adverse modification is a powerful tool to
protect unoccupied seasonal or migratory habitat and unoccupied habitat
for population expansion as part of recovery. The most effective
benefit from designating critical habitat is the impetus it provides to
agencies and people to initiate conservation activities for the target
[[Page 13360]]
species and voluntarily curtail adverse impacts. No evidence is
provided concluding that the (1) jeopardy standard is sufficient to
protect habitat better than a critical habitat designation, (2) that
critical habitat designation provides no education benefits better
obtained otherwise, or (3) that conservation can be better achieved
through implementing management plans rather than through implementing
section 7 and other provisions of the Act.
Our response: Designation of critical habitat is one tool for
managing listed species habitat. In addition to the designation of
critical habitat, we have determined that other conservation mechanisms
including the recovery planning process, section 6 funding to States,
section 7 consultations, management plans, Safe Harbor agreements, and
other on-the-ground strategies contribute to species conservation. We
believe these other conservation measures provide greater incentives
and often greater conservation. Please see ``Exclusions under Section
4(b)(2) of the Act'' for additional discussion.
(4) Comment: The Service should reclassify both species to
endangered status, as a warranted but precluded finding was published
in 1994. Both species have experienced significant reductions in range
and abundance since that time, and their status in the wild continues
to deteriorate. Reclassification would recognize the precarious status
of the species and give higher priority for recovery actions.
Our response: We agree and in the 2006 Candidate Notice of Review
(CNOR) (71 FR 53756; September 12, 2006) we resubmit our 12-month
finding where we determine that reclassification of both the spikedace
and loach minnow is warranted but precluded by other higher priority
listing actions. The 2006 CNOR provides a detailed discussion of why
these listing actions are precluded by other higher priority listing
actions. We note that Federal and State agencies and other cooperators
are continuing with recovery actions for the spikedace and loach minnow
in a concerted effort to improve the status of these two fish.
(5) Comment: No information is presented on effects of wildfire on
habitats (PCEs) each species occupies. Since 2000, wildfires have
burned much of the West Fork Gila River watershed, fine sediment
deposition has increased noticeably, and abundance of both spikedace
and loach minnow have declined substantially at a permanent site on
West Fork Gila River that is annually sampled.
Our response: We have added wildfire to the threats discussion
within the unit descriptions below and within Table 1 as a threat to
the West Fork Gila River.
(6) Comment: The lateral extent of the areas proposed for critical
habitat is logical considering the dynamic nature of streams in the
Gila River basin, and the scientific understanding of the role flood
plains play in stream course functioning. Defining a measurable width
that is wide enough to incorporate flood flows beyond the bankfull
width is reasonable.
Our response: We agree with the commenter on this point.
State Comments
(7) Comment: We suggest a rewording of the statement regarding
water quality in the PCE section for both spikedace and loach minnow to
not require low levels of pollutants in the water. As written, these
statements could be interpreted to mean that low levels of pollutants
are needed.
Our response: We agree with this comment, and have revised the
wording in the discussion of PCEs in the final rule to indicate that
suitable water quality for spikedace and loach minnow will contain no
or only minimal pollutant levels.
(8) Comment: The Arizona Department of Transportation requests that
the Service provide estimated acreages of proposed critical habitat for
each habitat complex. The total mileage figures are inconsistent and
total miles should be provided for spikedace and loach minnow. The
total mileages in Table 3 for New Mexico and Arizona are reversed.
Our response: Because fishes occupy stream habitat, we have
determined it is more appropriate to quantify the delineation in terms
of stream miles rather than total acres. All mileage figures throughout
the rule and in the tables have been checked for consistency and
adjusted where necessary.
General Comments Issue 1: Biological Concerns
(9) Some commentors have noted that we have misinterpreted or over-
extrapolated information from various sources, in particular the
proposed rule did not appear to include any studies that specifically
define ranges for ``fine sediment'' or ``substrate embeddedness'';
therefore, the phrase ``low or moderate amounts'' appears open to
subjective interpretation.
Our response: For purposes of critical habitat designation, low to
moderate amount of substrate embeddedness means embeddedness that does
not preclude deposition of eggs among sand and gravel for spikedace, or
on the undersurfaces of large rocks for loach minnow. Please see the
discussion under ``Substrates'' for both spikedace and loach minnow for
additional information.
(10) Comment: The statement within the proposed rule that
``Flooding, as part of a natural hydrograph, temporarily removes
nonnative fish species, which are not adapted to flooding'' is an over-
generalization. Minckley and Meffe (1987) concluded that nonnative
fishes fared poorly in canyon reaches by noting that some nonnative
species like green sunfish and smallmouth bass rebounded quickly from
floods because they were stream-adapted. Flooding may also kill or
displace native fishes. Some native fishes exhibit the potential to
reproduce quickly after flooding, which could account for some of the
effects reported by Minckley and Meffe (1987).
Our response: We have adjusted the text to better reflect Minckley
and Meffe (1987).
(11) Comment: The most thriving populations of these fishes tend to
be in flood blasted, warm, shallow, braided channel refugia and at
places where vehicles splashed through streams, inside corrals (through
which streams flowed), and in river channels within mine sites which
are regularly bulldozed. The loach minnow is thriving on private land
at a mine where heavy trucks cross the road several times a day,
resulting in an area that is shallow and full of sediment.
Our response: We disagree with this conclusion. While spikedace
and/or loach minnow are sometimes found in association with low water
crossings, and while flooding is an important component of habitat
maintenance for these species, we are not aware of any locations where
they occur in streams flowing through corrals or within mine sites
which are regularly bulldozed. We currently have survey records dating
from the late 1800s to the present for these species, as well as
numerous studies that detail the habitat requirements for the species,
all of which indicate that they occur in habitat different than that
described by the commenter.
(12) Comment: The Gila River is not critical habitat for the
minnows because extreme flood waters may kill small fish. Small streams
are better suited for small fish, because large fish will predate on
the smaller fish.
Our response: Please refer to the discussion on ``Flooding'' below
under the PCE discussion for spikedace. As noted in that discussion,
Minckley and
[[Page 13361]]
Meffe (1987, p. 99-100) studied the differential responses of native
and nonnative fishes in seven unregulated and three regulated streams
or stream reaches that were sampled before and after major flooding.
They noted that fish faunas of canyon-bound reaches of unregulated
streams invariably shifted from a mixture of native and nonnative fish
species to predominantly, and in some cases exclusively, native forms
after large floods.
(13) Comment: One commenter notes that many of these minnows can be
seen in the Gila River.
Our response: While spikedace and loach minnow do occur in the Gila
River, it is important to note that the ``minnows'' seen in the Gila
River may or may not be spikedace or loach minnow. There are
approximately 235 species of fishes that are within the minnow family,
Cyprinidae, in North America (Bond 1979, p. 170). Spikedace and loach
minnow are members of this family. Other small-bodied, native minnows
which are more commonly found within the Gila River include longfin
dace (Agosia chrysogaster) and speckled dace (Rhinichthys osculus).
These fish, even as adults, can be confused with spikedace and loach
minnow. There are several other species which are technically minnows
and may be confused with spikedace and loach minnow when young. These
include native roundtail chub (Gila robusta) and nonnative common carp
(Cyrpinus carpio), goldfish (Carassius auratus), and fathead minnow
(Pimephales promelas) (Lee et al. 1980, pp. 140-367).
(14) Comment: Spikedace were last seen in the Verde River in 1999.
They may already be extinct.
Our response: Because the last record for spikedace on the Verde
River was from 1999, this area still meets the 10-year occupancy
criteria used in developing the critical habitat. We are also aware of
gaps in the survey record in which spikedace were not found for greater
than 10 years, but then reappeared. Surveys do not allow for 100
percent detection of a species, particularly for species such as
spikedace that are hard to detect.
General Comments Issue 2: Procedural and Legal Compliance
(15) Comment: Several commenters requested a 60-day extension of
the comment period, or indicated that two public hearings and the
comment periods provided were inadequate to provide comment on the
proposed rule, draft economic analysis, and the draft environmental
assessment.
Our response: We believe the three comment periods allowed for
adequate opportunity for public comment. A total of 100 days was
provided for document review and the public to submit comments.
(16) Comment: Reintroduction of the spikedace and loach minnow to
the Verde River will result in killing and poisoning of the non-native
fish, leaving the public with a non-fishable river. The general public
will be banned from setting foot or paddling on the river area or using
the Verde River for recreation.
Our response: The designation of critical habitat does not entail
reintroduction efforts of spikedace or loach minnow. In addition,
designation of critical habitat does not set up wildlife refuges or
preserves, or require the exclusion of all other uses. Critical habitat
was designated previously on the Verde River for spikedace and loach
minnow from 2000 to 2004, during which time recreation and use of this
area by the public continued.
(17) Comment: The Service appears inconsistent in their critical
habitat designations in terms of the lateral extent of the critical
habitat designation. There is no reference for best scientific evidence
in the determination of 300 ft (91.4 m) as lateral extent. Prior
rulings for razorback sucker, Colorado pikeminnow, humpback chub, and
bonytail chub define the lateral extent of critical habitat as the 100-
year floodplain where PCEs occur, with the caveat that potential areas
of critical habitat should be evaluated on a case by case basis. The
final ruling for woundfin and Virgin River chub use the 100-year
floodplain.
Our response: Although we considered using the 100-year floodplain,
as defined by the Federal Emergency Management Agency (FEMA), we found
that it was not included on standard topographic maps, and the
information was not readily available from FEMA or from the U.S. Army
Corps of Engineers for the areas designated as critical habitat,
possibly due to the remoteness of various stream reaches. Therefore, we
selected the 300-foot lateral extent, rather than some other
delineation, for three reasons: (1) The biological integrity and
natural dynamics of the river system are maintained within this area
(i.e., the floodplain and its riparian vegetation provide space for
natural flooding patterns and latitude for necessary natural channel
adjustments to maintain appropriate channel morphology and geometry,
store water for slow release to maintain base flows, provide protected
side channels and other protected areas, and allow the river to meander
within its main channel in response to large flow events); (2)
conservation of the adjacent riparian area also helps provide nutrient
recharge and protection from sediment and pollutants; and (3) vegetated
lateral zones are widely recognized as providing a variety of aquatic
habitat functions and values (e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water temperature changes, and
detritus for aquatic food webs) and help improve or maintain local
water quality (see U.S. Army Corps of Engineers' final notice
concerning Issuance and Modification of Nationwide Permits, March 9,
2000, 65 FR 12818-12899). Please see the section entitled ``Lateral
Extent'' below for more information. In addition, in more recent rules
we have used the 300 ft (91.4 m) width to define the lateral extent of
critical habitat for the Rio Grande silvery minnow (February 19, 2003;
68 FR 8088), the Gila chub (November 2, 2005; 70 FR 66664), and the
Arkansas River shiner (October 13, 2005; 70 FR 59808).
(18) Comment: A designation of 300 ft (91.4 m) may impact roads or
facilities. Roads or facilities impacted by flooding may require
periodic maintenance. Additionally, if a river shifts in response to
flooding, critical habitat would have to shift and potentially affect
the rebuilding of diversion structures. The proposed rule does not
address what happens when a river channel moves.
Our response: Prior critical habitat designations for spikedace and
loach minnow from 2000 to 2004 did not prevent maintenance or
rebuilding of structures damaged by flooding nor will this final
designation. Where critical habitat is designated, activities funded,
authorized, or carried out in these areas by Federal action agencies
that may affect the PCEs of the critical habitat, may require
consultation pursuant to section 7 of the Act. The purpose of the
consultation is not to stop activities from occurring, but to ensure
that such activities do not result in jeopardy to listed species or
adverse modification of critical habitat. When determining final
critical habitat map boundaries, we made every effort to avoid
including developed areas such as buildings, paved areas, and other
structures that lack any PCEs for the spikedace and loach minnow. Any
such structures and the land under them inadvertently left inside
critical habitat boundaries of this final rule are excluded by text and
are not designated as critical habitat. Specifically, lands located
within the boundaries of the critical habitat designation, but that do
not contain any of the PCEs essential to the conservation of the
spikedace and loach minnow
[[Page 13362]]
include: Existing paved roads; bridges; parking lots; railroad tracks;
railroad trestles; water diversion and irrigation canals outside
natural stream channels; active sand and gravel pits; regularly
cultivated agricultural land; and residential, commercial, and
industrial developments.
Critical habitat includes the area of bankfull width plus 300 ft
(91.4 m) on either side of the banks. Should the active channel meander
or shift we anticipate that it would still be contained within the 300
foot (91.4 m) lateral extent of the designation (i.e. our current
critical habitat boundary); thus we do not find that critical habitat
will shift as a result.
(19) Comment: The 300 ft (91.4 m) lateral extent likely represents
an expansion of critical habitat to areas that are not necessarily
riparian habitat, particularly on small streams.
Our response: Although the spikedace and loach minnow cannot be
found in the riparian areas when they are dry, these areas are
periodically flooded and provide habitat during high-water periods.
These areas also contribute to PCEs 1 and 2 and contain PCEs 3 and 5.
As noted in response to 18 above, vegetated lateral zones are widely
recognized as providing a variety of aquatic habitat for fish and other
aquatic organisms, moderation of water temperature changes, and
detritus for aquatic food webs, and help improve or maintain local
water quality.
(20) Comment: The 300 ft (91.4 m) designation needs additional
defining. It is unclear if it is to be measured up to the slope of the
bank or horizontally on a map. In many reaches of the specific rivers
and streams in the designation, the flowing channels are confined
within narrow canyon bottoms, and a 300 ft (91.4 m) buffer in some
cases extends several hundred feet vertically up the side of the
canyon. In addition, bankfull width, while scientifically valid and
useful, may be hard to determine in the field.
Our response: Critical habitat includes the area of bankfull width
plus 300 ft (91.4 m) on either side of the banks, except where bordered
by a canyon wall. Since a canyon wall is not defined as a PCE for the
spikedace and loach minnow it would not be considered critical habitat.
The 300 foot lateral extent is not for the purpose of creating a
``buffer zone.'' Rather, it defines the lateral extent of those areas
we have determined contain or contribute to the features (PCEs 3 and 5)
that are essential to the conservation of these species (e.g., water
quality, food source, etc.).
(21) Comment: The Service is inconsistent in its treatment of, and
fails to properly analyze the impacts of, groundwater wells and other
potential detrimental activities that are located outside the 300 ft
(91.4 m) lateral extent of critical habitat.
Our response: Activities funded, authorized, or carried out by
Federal action agencies that may affect the PCEs of the critical
habitat, may require consultation pursuant to section 7 of the Act.
Thus, groundwater pumping activities may require consultation pursuant
to section 7 of the Act if the action agency determines that the
activity may affect the PCEs for the spikedace or loach minnow,
regardless of whether the activity is occurring within or outside the
critical habitat designation.
(22) Comment: The Service should designate the areas within the
active floodplain that are necessary to support the PCEs of spikedace
and loach minnow critical habitat for the recovery of the species, as
demonstrated by the best available science. We suggest that the Service
look at hydrogeomorphic and biological features to determine the width
along each segment where the PCEs are likely to exist. Such information
may include specific return intervals (5-, 10-, 50-year events),
floodplain features (ordinary high water mark), or floodplain
vegetation as indicators of important habitat, which can be mapped in
the field along with bankfull flow width.
Our response: As noted in our response to comment 17 above, we do
not have this type of information available to us and thus we selected
the 300 ft (91.4 m) lateral extent as the best available science to map
the areas that contain or contribute to the features that are essential
to the conservation of these species.
(23) Comment: The best scientific information currently available
recognizes that for most native fish species, conservation cannot be
achieved without eliminating or greatly suppressing nonnative fishes
(Clarkson et al. 2005). The common nonnative fish occupying the same or
overlapping geographic areas with spikedace and loach minnow are known
to compete with or prey on all life stages of native fish (Pacey and
Marsh 1998). Thus, where nonnative fishes have high abundance, and
where there is limited opportunity or ability for the Service to manage
these nonnative species due to physical constraints of the river system
or political/social constraints, these segments are unlikely to provide
important habitat for any of the spikedace and loach minnow life stages
regardless of the condition of other PCEs. Nonnatives are especially a
problem for the San Francisco River, Gila River, and Eagle Creek.
Our response: Critical habitat designation is not the process
through which we rule out habitat suitability due to threats, but the
process through which we identify habitat that provides for one or more
of the life history functions of the species. As defined in section
3(5)(A) of the Act, critical habitat means ``(i) the specific areas
within the geographical area occupied by the species, at the time it is
listed in accordance with the provisions of section 4 of the Act, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protection.'' During the designation
process, the Service identifies threats to the best of our ability
where they exist. Identification of a threat within an area does not
mean that that area is no longer suitable, rather that special
management or protections may be required. If an area contains
sufficient PCEs to provide for one or more of the life history
functions of spikedace or loach minnow, and if it was occupied at the
time the species was listed and is currently occupied, it is reasonable
to include it within a proposed critical habitat designation. The need
to address a particular threat, such as nonnative fishes, in a portion
of the critical habitat designation may or may not arise in the future.
Further, describing both the areas which support PCEs and the threats
to those areas assists resource managers in their conservation planning
efforts for threatened and endangered species like spikedace and loach
minnow.
(24) Comment: Absent clear scientific evidence that intermittent
stream reaches are used by spikedace or loach minnow to move between
occupied habitats, and are critical to their recovery, the fifth PCE
should not be included as part of the final designation.
Our response: It was not our intent to imply that spikedace or
loach minnow occupy intermittent reaches when water is not present. We
included interconnected waters because spikedace and loach minnow have
the ability to move between populated, wetted areas, at least during
certain flow regimes or seasons. Because streams provide continuous
habitat when connected, and because fish are mobile, it is reasonable
to conclude that intermittent areas, when wetted, may be used during
fish movement. In addition, some complexes include stream reaches that
play a role in the overall health of
[[Page 13363]]
the aquatic ecosystem, and therefore, the integrity of upstream and
downstream spikedace and loach minnow habitat. Again, because stream
habitat is continuous, actions taking place in an intermittent portion
of the channel can have effects in upstream and downstream areas.
Inclusion of these intervening areas assures protection of adjacent,
perennial reaches.
(25) Comment: There is no record or document that summarizes or
describes in detail the PCE conditions that the Service used as a
decision-making tool to select reaches.
Our response: As stated under the ``Critical Habitat'' subheading
in the final rule, the areas included within the proposed critical
habitat designation are based not only on PCE conditions, but also on
whether or not an area was occupied at listing and may require special
management considerations or protections. There is no single record or
document that summarizes this information. Instead, the Service looked
at various databases and survey records to determine occupancy, as well
as habitat descriptions at various locations. We relied on information
provided in survey reports and research documents to describe
conditions at various locations. This information was then synthesized
to develop the proposed critical habitat designation.
(26) Comment: As a final step before the issuance of the proposed
rule, the Service should have ranked the suitable habitat to determine
which areas possess the highest quality of PCEs. Based on this ranking,
the Service would then have published the proposed rule designating the
portions of suitable habitat needed to achieve recovery goals. The
proposed rule would have also described areas of suitable habitat
identified by the Service but not included in the proposed rule.
Our response: The regulations governing critical habitat
designations do not require ranking of suitable habitat. With species
such as spikedace and loach minnow, whose current distribution is
severely reduced compared to historical distribution, determining the
highest quality of PCEs is not a useful tool in developing a
recommendation, and inclusion of only the highest ranking areas would
not be sufficient for recovery of these species. The Service has
developed a rule set that we have determined identifies those areas to
be included as final critical habitat. We have coupled that rule set
with the best scientific and commercial information available regarding
species distribution, habitat parameters, and life history, and have
included those areas within the designation.
(27) Comment: The preamble articulates the following important
concept: ``Where a subset of PCEs are present (e.g., water temperature
during spawning), only those PCEs present at designation will be
protected.'' This concept should be reflected in the rule language
itself. The proposal is not always clear as to what PCEs are present in
each stretch of river. For example, with respect to the 39 mile stretch
of the Gila River included in the proposal, the preamble states only
that it contains ``one or more'' of four PCEs. This creates uncertainty
about what PCEs are present in which segments, which could in turn
cause difficulties in future section 7 consultations regarding possible
adverse effects on critical habitat.
Our response: Within the discussion immediately following Table 1,
PCEs are described for each complex. For example, for the 39 mile
stretch of the Gila River addressed in this comment, the proposed rule
states that ``Those portions of the Gila River proposed for designation
contain one or more of the PCEs, including sufficient flow velocities
and appropriate gradients, substrates, depths, and habitat types (i.e.,
pools, riffles).'' This information should be useful in future section
7 consultations.
(28) Comment: Page 75556 of the proposed rule states ``Where a
subset of the PCEs are present (e.g., water temperature during
spawning), only those PCEs present at the time of designation will be
protected.'' Implementation of this misguided approach negates the
conservation value of the critical habitat designation because lack of
perennial water, appropriate stream habitat, or high abundance of
predatory nonnative fish precludes the survival or recovery of
spikedace or loach minnow. We believe the Service needs to fully
consider the implication of this language in the Proposed Rule, and
reevaluate the proposed reaches in light of the need to contain all
PCEs at the time of designation, especially those reaches that contain
high numbers of nonnative fish species.
Our response: Stream complexes as part of this final rule making
were designated based on sufficient PCEs being present to support
spikedace and loach minnow life processes. Some complexes contain all
PCEs and support multiple life processes. Some segments contain only a
portion of the PCEs necessary to support the spikedace and loach
minnow's particular use of that habitat. Where a subset of the PCEs are
present (such as water temperature during migration flows), it has been
noted that only PCEs present at designation will be protected.
(29) Comment: With respect to the PCEs, an additional quantitative
value that should be measured is the large wood present in a system.
Our response: We agree that large wood is an important factor to
analyze in assessing riparian ecosystem health; however, we are not
aware of any data at this time that illustrates what amount of large
woody debris within a system would constitute ideal conditions for
spikedace and loach minnow. Should such information be developed in the
future, it would be another useful factor in evaluating river system
health and habitat suitability for spikedace and loach minnow.
(30) Comment: Flow velocity values should be in feet per second,
which is a more appropriate field estimate and ensures greater accuracy
between readings and reader. These values can also be better correlated
with historical and stream gauge data.
Our response: While it may be more useful to report flow velocity
values in feet per second, it is our practice to use values and units
of measurement as they were reported by the author of the research
summarized.
(31) Microhabitat flows are highly related to habitat complexity.
Though it is appropriate to define these flows, there should be more
emphasis on habitat complexity and the functions needed to create it
such as floodplain interaction, riparian condition, and large wood
recruitment.
Our response: We believe the final rule accomplishes both of these
objectives. We have chosen to consider overall riparian health, as well
as floodplain interaction and stream health, by including riparian
vegetation and floodplain areas within the critical habitat
designation, as encompassed by the 300 foot lateral zone. In addition,
we have attempted to define key components of occupied habitat, as
defined in the PCEs. One of those components relates to flow
velocities. We have incorporated the information we have relevant to
spikedace and loach minnow within the rule.
(32) Comment: Because microhabitat is variable and transient,
gradient values should be more generalized and at the geomorphic reach
level.
Our response: We are required to use the best scientific and
commercial information available. At this time, no assessment of
gradient values at a geomorphic reach level has been completed for
occupied or suitable spikedace and loach minnow habitat.
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(33) Comment: In evaluating riparian habitat, there should be two
or more native, riparian-obligate woody species and two or more
riparian-obligate herbaceous species present and vigorous (Winward
2000). In terms of species diversity, all four age classes of native,
riparian-obligate woody species must be present and vigorous. These
classes are seedling/sprout, young/sapling, mature/decadent, and dead
(Winward 2000).
Our response: We agree that a diversity of composition leads to
healthier riparian habitat; however, we do not have sufficient
information of this type tied to occupied spikedace and loach minnow
critical habitat to use in developing an individual PCE. The individual
PCEs represent the actual physical and biological parameters of habitat
used by the fish.
(34) Comment: Conflicting comments were received on the temperature
ranges listed within the PCEs for spikedace and loach minnow. In
summary, we received comments that the PCE temperature range is broader
(35 to 85 [deg]F) than the literature indicates (48.2 and 71.6 [deg]F),
with the potential net effect being an extension of stream reaches both
upstream and downstream from areas actually likely to support the
species. A second commenter noted that the Bonar et al. (2005) study
found 100 percent survival of loach minnow at 28 [deg]C (82 [deg]F) and
100 percent survival of spikedace at 30 [deg]C (86 [deg]F) corresponded
quite well with upper limits in the proposed rule PCEs. A third
commenter noted that appropriate values should be a maximum seven day
average.
Our response: We have reviewed the study completed by the
University of Arizona (Bonar et al. 2005) and incorporated its findings
into discussions of temperature tolerances within the final rule. The
PCEs serve as guidelines to resource managers in evaluating the
suitability of areas for spikedace and loach minnow. Temperature ranges
provided are based on the studies completed at
