# Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Spikedace and the Loach Minnow

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URL: https://www.frixlaw.com/law-library/documents/fr%3A00-10202

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 25, 2000
- **Citation:** 65 FR 24328

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AF76
Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Spikedace and the Loach Minnow

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for the spikedace (
Meda fulgida
) and the loach minnow (
Tiarog
a (=
Rhinichthys
)
cobitis
).

We are designating occupied and unoccupied habitat that is essential for the recovery of these two species. We are designating as critical habitat a total of approximately 1,448 kilometers (km) (898 miles (mi)) of rivers and creeks for the two species. All of the total area is designated as critical habitat for the loach minnow, and approximately 1,302 km (807 mi) of that area is also designated as critical habitat for the spikedace. Critical habitat includes portions of the Gila, San Francisco, Blue, Black, Verde, and San Pedro Rivers, and some of their tributaries, in Apache, Cochise, Gila, Graham, Greenlee, Pima, Pinal, and Yavapai Counties in Arizona; and Catron, Grant, and Hidalgo Counties in New Mexico. Critical habitat includes the stream channels within the identified stream reaches and areas within these reaches potentially inundated by high flow events. These habitat areas provide for the physiological, behavioral, and ecological features (primary constituent elements) essential for the conservation of the spikedace and the loach minnow. Federal agencies proposing, authorizing, or funding actions that may affect the areas designated as critical habitat must consult with us on the effects of the proposed actions, pursuant to section 7(a)(2) of the Act.

DATES:

The effective date of this rule is May 25, 2000.

ADDRESSES:

You may inspect the complete file for this rule at the Arizona Ecological Services Office, U.S. Fish and Wildlife Service, 2321 W. Royal Palm Road, Suite 103, Phoenix, Arizona 85021, by appointment, during normal business hours.

FOR FURTHER INFORMATION CONTACT:

Paul Barrett, Arizona Ecological Services Office, at the above address; telephone 602/640-2720, facsimile 602/640-2730.

SUPPLEMENTARY INFORMATION:

Background

Spikedace

The spikedace is a small, slim fish less than 80 millimeters (mm) (3 inches (in)) long. It is characterized by very silvery sides and by spines in the dorsal and pelvic fins (Minckley 1973). This species is found in moderate to large perennial streams, where it inhabits shallow riffles with sand, gravel, and rubble substrates, and moderate to swift currents and swift pools over sand or gravel substrates (Barber
et al.
1970; Propst
et al.
1986; Rinne 1991). Specific habitat for this species consists of shear zones where rapid flow borders slower flow, areas of sheet flow at the upper ends of mid-channel sand/gravel bars; and eddies at downstream riffle edges (Propst
et al.
1986; Rinne and Kroeger 1988). Recurrent flooding and a natural hydrograph (physical conditions, boundaries, flow, and related characteristics of waters) are very important in maintaining the habitat of spikedace and in helping the species maintain a competitive edge over invading nonnative aquatic species (Propst
et al.
1986; Minckley and Meffe 1987).

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 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 mainstream reaches and moderate-gradient perennial tributaries, up to about 2,000 meters (m) (6,500 feet(ft)) elevation (Miller 1960; Chamberlain 1904; Gilbert and Scofield 1898; Cope and Yarrow 1875).

Habitat destruction and competition and predation by nonnative aquatic species have severely reduced its range and abundance. It is now restricted to approximately 466 km (289 mi) of stream in portions of the upper Gila River (Grant, Catron, and Hidalgo Counties, NM); middle Gila River (Pinal County, AZ); lower San Pedro River (Pinal County, AZ); Aravaipa Creek (Graham and Pinal Counties, AZ); Eagle Creek (Graham and Greenlee Counties, AZ); and the Verde River (Yavapai County, AZ) (Anderson 1978; Bestgen, 1985; Bettaso
et al.
1995; Jakle 1992; Marsh
et al.
1990; Propst
et al.
1985; Propst
et al.
1986; Stefferud and Rinne 1996; Sublette
et al.
1990). Its present range is only about 10-15 percent of the historical range and the status of the species within occupied areas ranges from common to very rare. At present, the species is common only in Aravaipa Creek and some parts of the upper Gila River in New Mexico.

Loach Minnow

The loach minnow is a small, slender, elongated fish less than 80 mm (3 in) long. It is olivaceous in color and strongly blotched with darker pigment. The mouth is oblique (slanting) and terminal, and the eyes are markedly directed upward (Minckley 1973). This species is found in small to large perennial streams, and uses shallow, turbulent riffles with primarily cobble substrate and swift currents (Minckley 1973; Propst and Bestgen 1991; Rinne 1989; Propst
et al.
1988). The loach minnow uses the spaces between, and in the lee of (sheltered side), larger substrate 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). 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
et al.
1986; Propst and Bestgen 1991).

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. 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. It occupies suitable habitat in both the mainstream reaches and moderate-gradient perennial tributaries, up to about 2,500 m (8,200 ft) elevation. Habitat destruction and competition and predation by nonnative aquatic species have severely reduced its range and abundance. It is now restricted to approximately 676 km (419 mi) of stream in portions of the upper Gila River (Grant, Catron, and Hidalgo Counties, NM); the San Francisco and Tularosa Rivers and their tributaries Negrito and Whitewater Creeks (Catron County, NM); the Blue River and its tributaries Dry Blue, Campbell Blue, Little Blue, Pace, and Frieborn Creeks (Greenlee County, AZ and Catron County, NM); Aravaipa Creek and its tributaries Turkey and Deer Creeks (Graham and Pinal Counties, AZ); Eagle

Creek (Graham and Greenlee Counties, AZ); the White River (Apache, Gila, and Navajo Counties, AZ); and the Black River (Apache and Greenlee Counties, AZ) (Bagley
et al.
1998; Bagley
et al.
1996; Barber and Minckley 1966; Bettaso
et al.
1995; Britt 1982; Leon 1989; Marsh
et al.
1990; Propst 1996; Propst and Bestgen 1991; Propst
et al.
1985; Springer 1995). The present range is only 15-20 percent of its historical range, and the status of the species within occupied areas ranges from common to very rare. At present, the species is common only in Aravaipa Creek, the Blue River, and limited portions of the San Francisco, upper Gila, and Tularosa Rivers in New Mexico.

Previous Federal Actions

The spikedace was included as a Category 1 candidate species in our December 30, 1982, Vertebrate Notice of Review (47 FR 58454). Category 1 included those taxa for which we had substantial biological information to support listing the species as endangered or threatened. We were petitioned on March 14, 1985, by the American Fisheries Society (AFS) and on March 18, 1985, by the Desert Fishes Council (DFC) to list the spikedace as threatened. Because the species was already under active petition by AFS, the DFC petition was considered a letter of comment. Our evaluation of the AFS petition revealed that the petitioned action was warranted, and we published a proposed rule to list this species as threatened with critical habitat on June 18, 1985 (50 FR 25390). We published the final rule listing the spikedace as a threatened species on July 1, 1986 (51 FR 23769). We did not finalize the proposed critical habitat designation at the time of listing but postponed the designation to allow us to gather and analyze economic data, in compliance with section 4(b)(2) of the Act.

We included the loach minnow as a Category 1 candidate species in the December 30, 1982, Vertebrate Notice of Review (47 FR 58454). On June 18, 1985 (50 FR 25380) we published a proposed rule to list this species as threatened with critical habitat. We published the final rule listing the loach minnow as a threatened species on October 28, 1986 (51 FR 39468). We did not finalize the proposed critical habitat designation at the time of listing but postponed the designation to allow us to gather and analyze economic data.

Section 4(a)(3) of the Act requires that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time a species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(2)) state that critical habitat is not determinable if information sufficient to perform required analyses of the impacts of the designation is lacking or if the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. At the time of listing of the spikedace and loach minnow, we found that critical habitat was not determinable because we had insufficient information to perform the required analyses of the impacts of the designation. As part of a settlement order of January 18, 1994, in
Greater Gila Biodiversity Project
v.
U.S. Fish and Wildlife Service,
CIV 93-1913 PHX/PGR, we finalized the critical habitat designations for both the spikedace and loach minnow on March 8, 1994 (59 FR 10906 and 10898 respectively).

Critical habitat for spikedace and loach minnow was set aside by court order in
Catron County Board of Commissioners, New Mexico
v.
U.S. Fish and Wildlife Service,
CIV No. 93-730 HB (D.N.M., 1994), aff'd, 75 F3d, 1429 (10th Cir. 1996). The court cited our failure to analyze the effects of critical habitat designation under the National Environmental Policy Act (NEPA) as its basis for setting aside critical habitat for the two species. The United States District Court for the District of Arizona recognized the effect of the
Catron County
ruling as a matter of comity (recognition given by the courts of one state or jurisdiction of the laws and judicial decisions of another) in the
Southwest Center for Biological Diversity
v.
Rogers,
CV 96-018-TUC-JMR (D. Ariz., Order of December 28, 1996). As a result of these court rulings, we removed the critical habitat description for spikedace and loach minnow from the Code of Federal Regulations on March 25, 1998 (63 FR 14378).

On September 20, 1999, the United States District Court for the District of New Mexico,
Southwest Center for Biological Diversity
v.
Clark,
CIV 98-0769 M/JHG, ordered us to complete designation of critical habitat for the spikedace and loach minnow by February 17, 2000. On October 6, 1999, the court amended the September 20, 1999 order to require us to make a critical habitat determination rather than requiring actual designation. We published our proposed rule to designate critical habitat in the
Federal Register
on December 10, 1999 (64 FR 69324).

On December 22, 1999, the court extended the deadline to complete our determination until April 21, 2000. Information regarding public notifications on the extension and hearing are given in the Summary of Comments and Recommendations section later in this rule.

We completed final recovery plans for spikedace and loach minnow in 1991 (Service 1991a, 1991b). We developed those plans with the assistance of the Desert Fishes Recovery Team and other biologists familiar with the species. This rule is based, in part, on recommendations offered in those recovery plans.

Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as—(i) the specific areas within the geographic 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 geographic 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. The term “conservation,” as defined in section 3(3) of the Act, means “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary” (i.e., the species is recovered and removed from the list of endangered and threatened species).

Section 4(b)(2) of the Act requires that we base critical habitat proposals upon the best scientific and commercial data available, taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude areas from critical habitat designation if we determine that the benefits of exclusion outweigh the benefits of including the areas as critical habitat, provided the exclusion will not result in the extinction of the species. A discussion of our analysis under 4(b)(2) of the Act is provided in the Exclusion for Economic and Other Relevant Impacts section of this final rule.

Critical Habitat Designation

In designating critical habitat for spikedace and loach minnow, we reviewed the overall approach to the conservation of the species since the species' listing in 1986. Additionally, we solicited information from knowledgeable biologists and recommendations from the Desert Fishes Recovery Team. We also

reviewed the available information pertaining to habitat requirements of the two species, including public comments and other material received during critical habitat proposals and previous designations.

We also considered the measures identified as necessary for recovery, as outlined in the species' recovery plans. Due to the need for additional information on the two species, habitats, threats, controllability of threats, restoration potentials, and other factors, no quantitative criteria for delisting spikedace and loach minnow were set forth in the recovery plans. However, the recovery plans recommend protection of existing populations, enhancement and restoration of habitats occupied by depleted populations, and reestablishment of the two species into selected streams within their historical ranges.

Both recovery plans recommend designation of critical habitat for all stream reaches proposed as critical habitat in 1985, plus consideration of additional stream reaches. Except for Eagle Creek, the recovery plans do not identify the specific stream reaches to be considered for critical habitat designation due to the lack of information available at that time to support such identifications. The recovery plans do identify potential areas for reestablishment of spikedace and loach minnow including the San Pedro River and its tributaries, the San Francisco River, Mescal Creek (a middle Gila River tributary), and Bonita Creek. The recovery plans also recommend evaluation and selection of other potential sites. Recovery Team discussions since 1991 identified the need for critical habitat designation in Hot Springs and Redfield Canyons; Aravaipa, Eagle, Bonita, Beaver, West Clear, Campbell Blue, and Dry Blue Creeks; and the Gila, Verde, San Pedro, San Francisco, Blue, Tularosa, and White Rivers.

The designated critical habitat described below constitutes our best assessment of areas needed for the conservation of spikedace and loach minnow and is based on the best scientific and commercial information available. The designated areas are essential to the conservation of the species because they either currently support populations of spikedace and/or loach minnow, or because they currently have, or have the potential for developing, the necessary requirements for survival, growth, and reproduction of the spikedace and/or loach minnow (see description of primary constituent elements, below). All of the designated areas require special management consideration and protection to ensure their contribution to the species' recovery.

Because of these species' precarious status, mere stabilization of spikedace and loach minnow at their present levels will not achieve conservation. Recovery through protection and enhancement of the existing populations, plus reestablishment of populations in suitable areas of historical range, are necessary for their survival. The recovery plans for both species state, “One of the most critical goals to be achieved toward recovery is establishment of secure self-reproducing populations in habitats from which the species has been extirpated” (Service 1991a, 1991b). We, therefore, determine that the unoccupied areas designated as critical habitat are essential for the conservation of the species.

Important factors we considered in selecting areas designated in this rule include specific geographic area or complex of areas factors, such as size, connectivity, and habitat diversity, as well as rangewide recovery considerations such as genetic diversity and representation of all major portions of the species' historical ranges. We designated critical habitat complexes of sufficient size to provide habitat for spikedace and/or loach minnow populations large enough to be self-sustaining over time, despite fluctuations in local conditions so that recovery of these species is possible.

The ability of the fish to repopulate areas where they are depleted or extirpated is vital to recovery. Each complex contains interconnected waters so that spikedace and loach minnow can move between areas, at least during certain flows or seasons. Some complexes include stream reaches that do not have substantial spikedace- or loach minnow-specific habitat, but which provide migration corridors as well as play a vital role in the overall health of the aquatic ecosystem and, therefore, the integrity of upstream and downstream spikedace and loach minnow habitats. Each complex includes habitat with a moderate to high degree of complexity, thus providing suitable habitat for all life stages of spikedace and loach minnow under a wide range of habitat fluctuations.

The areas we selected for critical habitat designation include populations containing all known remaining genetic diversity within the two species, with the possible exception of the fish on certain tribal lands, which we believe are capable of persistence without critical habitat designation (see discussion under American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act later in this rule). Areas selected for critical habitat designation include a representation of each major subbasin in the historical ranges of the species.

The designation includes all currently known populations of spikedace and loach minnow, except those on tribal lands. Uncertainty on upstream and downstream distributional limits of some populations may result in small areas of occupied habitat being excluded from the designation. However, based on the best available scientific information, we believe the areas included in this designation will be sufficient to conserve both species.

In order to provide for genetic variability for the loach minnow, the designation includes at least one remnant population for each major subbasin except the Verde subbasin, from which it has been completely extirpated. For spikedace, no remnant populations exist in the Agua Fria, Salt, and San Francisco/Blue subbasins. In those subbasins where no populations of spikedace or loach minnow currently exist, designated critical habitat includes currently unoccupied areas that have the potential and are important for restoration of the species, with the exception of the Agua Fria subbasin where no suitable areas are known to remain.

The inclusion of both occupied and currently unoccupied areas in the designated critical habitat for spikedace and loach minnow is in accordance with section 3(5)(A)(i) of the Act, which provides that areas outside the geographical area currently occupied by the species may meet the definition of critical habitat upon a determination that they are essential for the conservation of the species. Both spikedace and loach minnow are in danger of extinction, and their status is declining. In 1994, we determined that reclassification of spikedace and loach minnow from threatened to endangered was warranted; however, reclassification was precluded by other higher priority listing actions (59 FR 35303-35304). Although additional populations of loach minnow have been found since that time, they are small and their contribution to the status of the species is offset by declines in other populations. It is essential to protect all designated occupied areas as well as designated unoccupied areas that will provide habitat for reestablishment of the two species.

Both of the 1986 listing rules for spikedace and loach minnow conservatively estimated about 2,600 km (1,600 mi) of stream within the

species' historical ranges. Using newer techniques, a more current estimate is approximately 3,000 km (1,800 mi). This critical habitat designation includes approximately half that amount for loach minnow and less than half for spikedace. Although this is less than the historical ranges for both species, we believe that maintenance of viable spikedace and loach minnow populations within the designated areas can achieve recovery of these species.

For each stream reach designated, the up-and downstream-boundaries are described below. Critical habitat includes the stream channels within the identified stream reaches and areas within these reaches potentially inundated during high flow events. Where delineated, this will be the 100-year floodplain of the designated waterways as defined by the U.S. Army Corps of Engineers (COE). In areas where the 100-year floodplain has not been delineated or it is in dispute, the presence of alluvial soils (soils deposited by streams), obligate and facultative riparian vegetation (requiring and usually occurring in wetlands, respectively), abandoned river channels, or known high water marks can be used to determine the extent of the floodplain. This proposal takes into account the naturally dynamic nature of riverine systems and recognizes that floodplains are an integral part of the stream ecosystem. A relatively intact floodplain, along with the periodic flooding in a relatively natural pattern, are important elements necessary for long-term survival and recovery of spikedace and loach minnow. Among other things, 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, provide nutrient input and buffering from sediment and pollutants, store water for slow release to maintain base flows, and provide protected side channels and other protected areas for larval and juvenile spikedace and loach minnow.

Within the delineated critical habitat boundaries, only lands containing, or which have the potential to develop, those habitat components that are essential for the primary biological needs of the species are considered critical habitat. Existing human-constructed features and structures within this area, such as buildings, roads, railroads, and other features, do not contain, and do not have the potential to develop, those habitat components and are not considered critical habitat.

Unless otherwise indicated, the following areas are designated as critical habitat for both spikedace and loach minnow (see the Regulation Promulgation section of this rule for exact descriptions of boundaries). The designation includes portions of 24 and 36 streams for spikedace and loach minnow, respectively; however, individual streams are not isolated, but are connected with others to form areas or “complexes.” The complexes include those that currently support populations of the fishes, as well as some currently unoccupied by the species, but which are considered essential for reestablishing populations to achieve recovery. The distances and conversions below are approximate; more precise estimates are provided in the Regulation Promulgation section of this rule.

1. Verde River complex, Yavapai County, Arizona. The Verde River complex is currently occupied by spikedace. Its tributary streams are believed to be currently unoccupied by either species. The Verde River complex is unusual in that a relatively stable thermal and hydrologic regime is found in the upper river and in Fossil Creek. Also, spikedace in the Verde River are genetically (Tibbets 1993) and morphologically (Anderson and Hendrickson 1994) distinct from all other spikedace populations. The continuing presence of spikedace and the existence of suitable habitat create a high potential for restoration of loach minnow to the Verde system.

a. Verde River—171 km (106 mi) of river extending from the confluence with Fossil Creek upstream to Sullivan Dam, but excluding lands belonging to the Yavapai Apache Tribe. Sullivan Dam is at the upstream limit of perennial flow in the mainstem Verde River. Perennial flow results from a series of river-channel springs and from Granite Creek. Below Fossil Creek, the Verde River has a larger flow and was thought at the time of the proposal to offer little suitable habitat for spikedace or loach minnow. However, this is historical range for both species and comments from the U.S. Forest Service (USFS) indicate this stretch of the river may offer substantial value for spikedace and loach minnow recovery. We will seek further information regarding the role of this portion of the Verde River for the species and may consider its designation in future potential revisions of the critical habitat.

b. Fossil Creek—8 km (5 mi) of creek extending from the confluence with the Verde River upstream to the confluence with an unnamed tributary. The lower portion of Fossil Creek contains all elements of spikedace and loach minnow habitat at present, except sufficient discharge. Discharge is currently diverted for hydropower generation at the Childs/Irving Hydropower site. However, operators of the Childs/Irving Hydropower project have agreed to provide enhanced flows into lower Fossil Creek, although the amount of that flow restoration is still under negotiation.

c. West Clear Creek—12 km (7 mi) of creek extending from the confluence with the Verde River upstream to the confluence with Black Mountain Canyon. The lower portion of West Clear Creek was historically known to support the spikedace and contains suitable, although degraded, habitat for the fishes. Gradient and channel morphology changes above Black Mountain Canyon make the upstream area unsuitable for either species.

d. Beaver/Wet Beaver Creek—33 km (21 mi) of creek extending from the confluence with the Verde River upstream to the confluence with Casner Canyon. Beaver Creek, and its upstream extension in Wet Beaver Creek, historically supported spikedace and loach minnow and contains suitable, although degraded, habitat. Above Casner Canyon, gradient and channel morphology changes make the stream unsuitable for either species.

e. Oak Creek—54 km (34 mi) of creek extending from the confluence with the Verde River upstream to the confluence with an unnamed tributary (near the Yavapai/Coconino County boundary). The lower portion of Oak Creek is part of the historical range of the two species and contains suitable, although degraded, habitat. Above the unnamed tributary, the creek becomes unsuitable for either species due to urban and suburban development and to increasing gradient and substrate size.

f. Granite Creek—2.3 km (1.4 mi) of creek extending from the confluence with the Verde River upstream to a spring. Below the spring, which supplies much of the base flow of Granite Creek, there is suitable habitat for loach minnow. As a perennial tributary of the upper Verde River, Granite Creek is considered an important expansion area for spikedace recovery.

2. Black River complex, Apache and Greenlee Counties, Arizona. In response to comments received on the suitability of this complex, we have not designated any areas within the complex as critical habitat for spikedace. The basis for this deletion from the proposed rule is biological, given that 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. The Salt River subbasin is a significant portion of spikedace historical range and has no existing population of spikedace. Large areas of the subbasin are unsuitable, either because of topography or because of reservoirs, stream channel alteration by humans, or overwhelming nonnative species populations.

The Salt River subbasin is a significant portion of loach minnow historical range, but loach minnow have been extirpated from all but a small portion in the Black and White Rivers. As the only remaining population of loach minnow on public lands in the Salt River basin, the Black River complex is considered vital to survival and recovery of the species.

a. East Fork Black River—Loach minnow only: 8 km (5 mi) of river extending from the confluence with the West Fork Black River upstream to the confluence with Deer Creek. This area is occupied by loach minnow, although the downstream extent of the population is not well known. This population was only discovered in 1996.

b. North Fork of the East Fork Black River—Loach minnow only: 18 km (11 mi) of river extending from the confluence with Deer Creek upstream to the confluence with an unnamed tributary. This area is occupied by loach minnow, although the upstream portion of the population is not well known. Above the unnamed tributary, the river has finer substrate and lacks riffle habitat, making it unsuitable for loach minnow.

c. Beyond Creek—Loach minnow only: 2.3 km (1.4 mi) of creek extending from the confluence with the East Fork Black River upstream to the confluence with an unnamed tributary. Although no loach minnow have been found in Boneyard Creek, they are probably present based on the pattern of occupation of lower portions of small tributaries in other parts of the loach minnow range.

d. Coyote Creek—Loach minnow only: 3 km (2 mi) of creek extending from the confluence with the East Fork Black River upstream to the confluence with an unnamed tributary. Loach minnow are thought to use the lower portion of this creek as part of the population in the East Fork Black River.

e. West Fork Black River—Loach minnow only: 10 km (6 mi) of river extending from the confluence with the East Fork Black River upstream to the confluence with Hay Creek. Above Hay Creek, the gradient and channel morphology are unsuitable for loach minnow. The West Fork Black River is not known to be occupied by loach minnow at present. However, it is considered important for conservation of the Black River remnant of the Salt River subbasin population.

3. Tonto Creek complex, Gila County, Arizona. Spikedace are known to have occupied Tonto Creek, and loach minnow are presumed to have done so although no records exist. Suitable habitat still exists, although degradation has occurred due to watershed uses, water diversion, agriculture, roads, and nonnative species introduction. The presence of substantial areas of USFS lands make this one of the most promising areas for reestablishment of spikedace and loach minnow in the Salt River subbasin.

a. Tonto Creek—

Spikedace: 47 km (29 mi) of creek extending from the confluence with Greenback Creek upstream to the confluence with Houston Creek. The influence of Roosevelt Lake below Greenback Creek, and gradient and substrate changes above Houston Creek, make these reaches unsuitable for spikedace.

Loach minnow: 70 km (44 mi) of creek extending from the confluence with Greenback Creek upstream to the confluence with Haigler Creek. The influence of Roosevelt Lake above Greenback Creek and changes in channel morphology above Haigler Creek make those portions of the stream unsuitable for loach minnow.

b. Greenback Creek—(8 mi) of creek extending from the confluence with Tonto Creek upstream to Lime Springs.

c. Rye Creek—2.1 km (1.3 mi) of creek extending from the confluence with Tonto Creek upstream to the confluence with Brady Canyon. This area of Rye Creek still supports a native fish community indicating high potential for spikedace and loach minnow reestablishment.

4. Middle Gila/Lower San Pedro/Aravaipa Creek complex, Pinal and Graham Counties, Arizona. This complex is occupied by spikedace with its population status ranging from rare to common. Aravaipa Creek supports some of the best and most protected spikedace and loach minnow populations due to special use designations on Bureau of Land Management (BLM) land, substantial ownership by The Nature Conservancy, and planned construction of fish barriers to prevent invasion of nonnative fish species. Enhancement of downstream habitats in the San Pedro and Gila Rivers would contribute substantially to recovery of these species.

a. Gila River—63 km (39 mi) of river extending from Ashurst-Hayden Dam upstream to the confluence with the San Pedro River. A small population of spikedace currently occupies this area. At Ashurst-Hayden Dam, all water is diverted into a canal. Above the confluence with the San Pedro River, flow in the Gila River is highly regulated by San Carlos Dam and becomes marginally suitable for either species. Below the confluence, the input of the San Pedro provides a sufficiently unregulated hydrograph which is a primary constituent element of loach minnow and spikedace critical habitat.

b. San Pedro River—21 km (13 mi) of river extending from the confluence with the Gila River upstream to the confluence with Aravaipa Creek. This area is currently occupied by spikedace. It provides an important connection between the existing population of loach minnow in Aravaipa Creek and the recovery habitat in the Gila River. Existing flow in the river comes primarily from surface and subsurface contributions from Aravaipa Creek.

c. Aravaipa Creek—45 km (28 mi) of creek extending from the confluence with the San Pedro River upstream to the confluence with Stowe Gulch. Aravaipa Creek supports a substantial population of spikedace and loach minnow. Stowe Gulch is the upstream limit of sufficient perennial flow for either species.

d. Turkey Creek—Loach minnow only: 4 km (3 mi) of creek extending from the confluence with Aravaipa Creek upstream to the confluence with Oak Grove Canyon. This creek is occupied by loach minnow. A substantial portion of the flow in Turkey Creek comes from the Oak Grove Canyon tributary.

e. Deer Creek—Loach minnow only: 4 km (3 mi) of creek extending from the confluence with Aravaipa Creek upstream to the boundary of the Aravaipa Wilderness. This stream is occupied by loach minnow. Suitable habitat extends to the Wilderness boundary.

5. Middle-Upper San Pedro River complex, Cochise, Graham, and Pima Counties, Arizona. None of the habitat in this complex is currently occupied by spikedace or loach minnow. However, the San Pedro River is the type locality of spikedace (locality where an individual of a new species is found that is chosen to serve as the basis for describing a new species or variety), and this complex contains important restoration areas.

a. San Pedro River—74 km (46 mi) of river extending from the confluence with Alder Wash (near Redfield) upstream to the confluence with Ash Creek (near the Narrows). This middle portion of the river is expected to have increasing surface flow due to restoration activities, including riparian and channel restoration, watershed improvements, and groundwater pumping reductions.

b. Redfield Canyon—22 km (14 mi) of creek extending from the confluence with the San Pedro River upstream to the confluence with Sycamore Canyon. Above Sycamore Canyon, permanent water becomes too scarce, and the habitat becomes unsuitable.

c. Hot Springs Canyon—19 km (12 mi) of creek extending from the confluence with the San Pedro River upstream to the confluence with Bass Canyon. Hot Springs Canyon is currently unoccupied but contains suitable habitat for restoration of spikedace and loach minnow.

d. Bass Canyon—5 km (3 mi) of creek extending from the confluence with Hot Springs Canyon upstream to the confluence with Pine Canyon. Bass Canyon is an extension of the Hot Springs Canyon habitat.

e. San Pedro River—60 km (37 mi) of river extending from the confluence with the Babocomari River upstream to the U.S./Mexico border. Although currently unoccupied, this area is identified in BLM (1993) planning documents as a restoration area for spikedace and loach minnow.

6. Gila Box/San Francisco River complex, Graham and Greenlee Counties, Arizona and Catron County, New Mexico. The only spikedace population remaining in the complex is in Eagle Creek. Substantial restoration potential for spikedace exists in the remainder of the complex. This complex has the largest area of habitat suitable for spikedace restoration.

Most of this complex is occupied by loach minnow, although the status varies substantially from one portion to another. Only Bonita Creek, Little Blue Creek, and the Gila River are currently unoccupied. The Blue River system and adjacent portions of the San Francisco River are the longest stretch of occupied loach minnow habitat unbroken by large areas of unsuitable habitat. Management of Federal lands and resources in the Gila Box, Bonita Creek, and the Blue River are highly compatible with recovery goals, giving restoration of spikedace and loach minnow in this complex a high likelihood of success.

a. Gila River—36 km (23 mi) of river extending from the Brown Canal diversion, at the head of the Safford Valley, upstream to the confluence with Owl Canyon, at the upper end of the Gila Box. The Gila Box is not known to currently support spikedace, but is considered to have a high potential for restoration of both species. Both above and below the Gila Box, the Gila River is highly modified by agriculture, diversions, and urban development.

b. Bonita Creek—24 km (15 mi) of creek extending from the confluence with the Gila River upstream to the confluence with Martinez Wash. Bonita Creek has suitable habitat for spikedace and loach minnow. Bonita Creek above Martinez Wash lies on the San Carlos Apache Reservation, which is excluded from this designation.

c. Eagle Creek—73 km (45 mi) of creek extending from the Phelps-Dodge Diversion Dam upstream to the confluence of Dry Prong and East Eagle Creeks, but excluding lands of the San Carlos Apache Reservation. Because the creek repeatedly flows from private or USFS lands into the San Carlos Apache Reservation and back, it is difficult to separately calculate stream mileages on tribal lands. Therefore, the above mileage covers the entire stream segment and is not corrected for tribal exclusions. Eagle Creek supports a small population of spikedace. Below the Phelps-Dodge Diversion Dam the creek is often dry; however comments received on the proposed rule suggest the stretch of Eagle Creek below the dam may offer sufficient connective value and habitat value to justify its inclusion in critical habitat. This area may be considered for critical habitat in future revisions of this designation.

d. San Francisco River—

Spikedace: 182 km (113 mi) of river extending from the confluence with the Gila River upstream to the confluence with the Tularosa River. Habitat above the Tularosa River does not appear suitable for spikedace. The San Francisco River was historically occupied by spikedace and is important habitat for restoration of the species.

Loach minnow: 203 km (126 mi) 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 in the San Francisco River vary from common to rare throughout the length of the river.

e. Tularosa River—Loach minnow only: 30 km (19 mi) of river extending from the confluence with the San Francisco River upstream to the town of Cruzville. Above Cruzville, the habitat becomes unsuitable due to the small size of the stream and a predominance of fine substrates.

f. Negrito Creek—Loach minnow only: 7 km (4 mi) of creek extending from the confluence with the San Francisco River upstream to the confluence with Cerco Canyon. Above this area, gradient and channel morphology make the creek unsuitable for loach minnow.

g. Whitewater Creek—Loach minnow only: 2 km (1 mi) of creek extending from the confluence with the San Francisco River upstream to the confluence with Little Whitewater Creek. Upstream gradient and channel changes make the portion above Little Whitewater Creek unsuitable for loach minnow.

h. Blue River—82 km (51 mi) 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 is currently occupied by loach minnow but not currently occupied by spikedace, but planning among several State and Federal agencies for restoration of native fishes in the Blue River is under way.

i. Campbell Blue Creek—13 km (8 mi) of creek extending from the confluence of Dry Blue and Campbell Blue Creeks upstream to the confluence with Coleman Canyon. Above Coleman Canyon, the creek changes and becomes steeper and rockier, making it unsuitable for spikedace or loach minnow.

j. Dry Blue Creek—Loach minnow only: 5 km (3 mi) of creek extending from the confluence with Campbell Blue Creek upstream to the confluence with Pace Creek.

k. Pace Creek—Loach minnow only: 1.2 km (0.8 mi) of creek extending from the confluence with Dry Blue Creek upstream to a barrier falls.

l. Frieborn Creek—Loach minnow only: 1.8 km (1.1 mi) of creek extending from the confluence with Dry Blue Creek upstream to an unnamed tributary.

m. Little Blue Creek—5 km (3 mi) of creek extending from the confluence with the Blue River upstream to the mouth of a box canyon. Little Blue Creek is not currently occupied by spikedace or loach minnow, but contains suitable habitat and is considered an important restoration area for both species.

7. Upper Gila River complex, Grant, Catron, and Hidalgo Counties, New Mexico. This complex is occupied throughout by spikedace and loach minnow and contains the largest remaining populations of both species. It is considered to represent the “core” of what remains of the species. Because of the remoteness of the area, there is a relatively low degree of habitat threats.

a. Gila River—164 km (102 mi) 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. Spikedace and loach minnow are known to occupy the river into the Duncan-Virden Valley (Rinne 1999b).

b. East Fork Gila River—42 km (26 mi) of river extending from the confluence with the West Fork Gila River upstream to the confluence of Beaver and Taylor Creeks.

c. Middle Fork Gila River—

Spikedace: 12 km (8 mi) of river extending from the confluence with the West Fork Gila River upstream to the confluence with Big Bear Canyon.

Loach minnow: 19 km (12 mi) of river extending from the confluence with the West Fork Gila River upstream to the confluence with Brothers West Canyon

d. West Fork Gila River—12 km (8 mi) 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 is occupied by spikedace and loach minnow, but the river becomes unsuitable above EE Canyon due to gradient and channel morphology.

Primary Constituent Elements

The habitat features (primary constituent elements) that provide for the physiological, behavioral, and ecological requirements essential for the conservation of a species are described at 50 CFR 424.12 and include, but are not limited to, the following:

—Space for individual and population growth, and for normal behavior;

—Food, water, 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.

Spikedace

We determined the primary constituent elements for spikedace from studies on their habitat requirements and population biology including, but not limited to, Barber
et al.
1970; Minckley 1973; Anderson 1978; Barber and Minckley 1983; Turner and Taffanelli 1983; Barrett
et al.
1985; Propst
et al.
1986; Service 1989; Hardy
et al.
1990; Douglas
et al.
1994; Stefferud and Rinne 1996; Velasco 1997. These primary constituent elements include:

1. Permanent, flowing, unpolluted water;

2. Living areas for adult spikedace with slow to swift flow velocities in shallow water with shear zones where rapid flow borders slower flow, areas of sheet flow at the upper ends of mid-channel sand/gravel bars, and eddies at downstream riffle edges;

3. Living areas for juvenile spikedace with slow to moderate flow velocities in shallow water with moderate amounts of instream cover;

4. Living areas for larval spikedace with slow to moderate flow velocities in shallow water with abundant instream cover;

5. Sand, gravel, and cobble substrates with low to moderate amounts of fine sediment and substrate embeddedness;

6. Pool, riffle, run, and backwater components present in the aquatic habitat;

7. Low stream gradient;

8. Water temperatures in the approximate range of 1-30 °C (35-85 °F), with natural diurnal and seasonal variation;

9. Abundant aquatic insect food base;

10. Periodic natural flooding;

11. A natural, unregulated hydrograph or, if the flows are modified or regulated, then a hydrograph that demonstrates an ability to support a native fish community; and

12. Habitat devoid of nonnative aquatic species detrimental to spikedace, or habitat in which detrimental nonnative species are at levels which allow persistence of spikedace.

The areas we are designating as critical habitat for spikedace provide the above primary constituent elements or will be capable, with restoration or removal of detrimental nonnative species, of providing them. All of the designated areas require special management considerations or protection to ensure their contribution to the species' recovery.

Loach minnow

We determined the primary constituent elements for loach minnow from studies on their habitat requirements and population biology including, but not limited to, Barber and Minckley 1966; Minckley 1973; Schreiber 1978; Britt 1982; Turner and Taffanelli 1983; Service 1988; Rinne 1989; Hardy
et al.
1990; Vives and Minckley 1990; Propst and Bestgen 1991; Douglas
et al.
1994; Velasco 1997. These primary constituent elements include:

1. Permanent, flowing, unpolluted water;

2. Living areas for adult loach minnow with moderate to swift flow velocities in shallow water with gravel, cobble, and rubble substrates;

3. Living areas for juvenile loach minnow with moderate to swift flow velocities in shallow water with sand, gravel, cobble, and rubble substrates;

4. Living areas for larval loach minnow with slow to moderate velocities in shallow water with sand, gravel, and cobble substrates and abundant instream cover;

5. Spawning areas for loach minnow with slow to swift flow velocities in shallow water with uncemented cobble and rubble substrate;

6. Low amounts of fine sediment and substrate embeddedness;

7. Riffle, run, and backwater components present in the aquatic habitat;

9. Low to moderate stream gradient;

10. Water temperatures in the approximate range of 1-30°C (35-85°F), with natural diurnal and seasonal variation;

11. Abundant aquatic insect food base;

12. Periodic natural flooding;

13. A natural unregulated hydrograph or, if flows are modified or regulated, then a hydrograph that demonstrates an ability to support a native fish community; and

14. Habitat devoid of nonnative aquatic species detrimental to loach minnow, or habitat in which detrimental nonnative species are at levels which allow persistence of loach minnow.

The areas we are designating as critical habitat for loach minnow provide the above primary constituent elements or will be capable, with restoration or removal of detrimental nonnative species, of providing them. All of the designated areas require special management considerations or protection to ensure their contribution to the species' recovery.

Land Ownership

Table 1 shows land ownership for areas of critical habitat that are currently occupied by one or both species, and Table 2 shows land ownership for critical habitat that is unoccupied. A general description of land ownership in each complex follows.

Table 1.—Stream Distances in Kilometers (Miles) of Critical Habitat Occupied by Either Loach Minnow or Spikedace by County and Ownership

Private
State
Federal
Other Gov.
Total

Apache Co., AZ
0
0
11.3 (7.0)
0
11.3 (7.0)

Cochise Co., AZ
0
0
0
0
0

Gila Co., AZ
0
0
0
0
0

Graham Co., AZ
10.3 (6.4)
0
4.7 (2.9)
26.1 (16.2)
41.1 (25.5)

Greenlee Co., AZ
45.0 (27.9)
2.6 (1.6)
109.5 (67.9)
0
157.1 (97.4)

Pima Co., AZ
0
0
0
0
0

Pinal Co., AZ
58.5 (36.3)
6.8 (4.2)
48.2 (29.9)
1.0 (0.6)
114.5 (71.0)

Yavapai Co., AZ
56.5 (35.0)
5.8 (3.6)
52.2 (32.4)
*1.6 (1.0)
116.1 (72)

AZ Total
170.0 (105.4)
15.2 (9.4)
225.9 (140.4)
28.7 (17.8)
440.1 (272.9)

Catron Co., NM
79.0 (49.0)
5.3 (3.3)
145.2 (90.0)
0.8 (0.5)
230.3 (142.8)

Grant Co., NM
53.2 (33.0)
2.1 (1.3)
72.9 (45.2)
0
128.2 (79.5)

Hidalgo Co., NM
10.6 (6.6)
0
7.3 (4.5)
0
17.9 (11.1)

NM Total
142.8 (88.6)
7.4 (4.6)
225.4 (139.7)
0.8 (0.5)
376.4 (233.4)

Total
312.8 (194.0)
22.6 (14.0)
451.3 (280.4)
29.5 (18.3)
816.5 (506.3)

*This area is included in the total critical habitat mileages, but is excluded by description.

Table 2.—Stream Distances in Kilometers (Miles) of Critical Habitat Unoccupied by Either Loach Minnow or Spikedace by County and Ownership

Private
State
Federal
Other Gov.
Total

Apache Co., AZ
3.4 (2.1)
0
24.1 (15.0)
0
27.6 (17.1)

Cochise Co., AZ
17.3 (10.7)
5.6 (3.5)
61.2 (38.0)
0
84.1 (52.2)

Gila Co., AZ
12.0 (7.5)
0
81.6 (50.6)
0
93.6 (58.1)

Graham Co., AZ
21.1 (13.1)
13.9 (8.6)
50.1 (31.1)
5.5 (3.4)
90.6 (56.2)

Greenlee Co., AZ
30.6 (19.0)
3.9 (2.4)
18.9 (11.7)
0
53.4 (33.1)

Pima Co., AZ
70.6 (43.8)
3.2 (2.0)
0
0
73.9 (45.8)

Pinal Co., AZ
0
0
0
0
0

Yavapai Co., AZ
55.3 (34.3)
7.1 (4.4)
*95.2 (59.0)
0
*157.6 (97.7)

AZ Total
210.3 (130.5)
33.7 (20.9)
331.1 (205.4)
5.5 (3.4)
580.8 (360.2)

Catron Co., NM
0
0
0
0
0

Grant Co., NM
4.0 (2.5)
0
47.9 (29.7)
0
51.9 (32.2)

Hidalgo Co., NM
0
0
0
0
0

NM Total
4.0 (2.5)
0
47.9 (29.7)
0
51.9 (32.2)

Total
214.3 (133.0)
33.7 (20.9)
379.0 (235.1)
5.5 (3.4)
632.7 (392.4)

*Yavapai and Gila Counties share a border at Fossil Creek, the mileage for which is included in Gila County and not here.

1. Verde River complex—There are large blocks of USFS lands in the upper and lower reaches, with significant areas of private ownership in the Verde Valley and along the lower portions of Oak, Beaver, and West Clear Creeks. There are also lands belonging to the National Park Service (NPS), Arizona State Parks, and the Arizona Game and Fish Department (AGFD).

2. Black River complex—The ownership is predominantly USFS, with a few small areas of private land.

3. Tonto Creek complex—Land here is mostly USFS on the upper end, but significant areas of private ownership occur in the lower reaches.

4. Middle Gila/Lower San Pedro/Aravaipa Creek complex—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.

5. Middle-Upper San Pedro complex—The BLM is the largest landowner, and there are large areas of private ownership and smaller areas of State of Arizona lands.

6. Gila Box/San Francisco River complex—This complex contains extensive USFS land, some BLM land, and scattered private, State of Arizona, and New Mexico Department of Game and Fish (NMDGF) lands. A significant portion of Bonita Creek runs through the City of Safford.

7. Upper Gila River complex—The largest areas are on USFS 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, NPS, and State of New Mexico lands.

Significant private owners, with lands scattered among several of the designated critical habitat complexes, include Phelps-Dodge Corporation and The Nature Conservancy. A large number of other private landowners hold lands within the designated areas. Private lands are primarily used for grazing and agriculture, but also include towns, small-lot residences, and industrial areas.

Effect of Critical Habitat Designation

The Act requires Federal agencies to ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species.

Individuals, organizations, States, local and Tribal governments, and other non-Federal entities are only affected by the designation of critical habitat if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its proposed or designated critical habitat. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act and regulations at 50 CFR 402.10 require Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or to result in destruction or adverse modification of proposed critical habitat. If a species is subsequently listed or critical habitat is designated, then section 7(a)(2) 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 destroy or adversely modify its critical habitat. To that end, if a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. Regulations at 50 CFR 402.16 also require Federal agencies to reinitiate consultation in instances where we have already reviewed an action for its effects on a listed species if critical habitat is subsequently designated.

Section 4(b)(8) of the Act requires us, to the extent practicable, to include in any proposed or final regulation that designates critical habitat a description and evaluation of those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat include those that alter the primary constituent elements (defined above) to an extent that the value of critical habitat for both the survival and recovery of the spikedace or loach minnow is appreciably reduced.

To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. According to regulations at 50 CFR 402.02, actions likely to “jeopardize the continued existence” of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to “destroy or adversely modify” critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species.

Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned, particularly when the area of the proposed action is occupied by the species. In those cases, it is highly unlikely that additional modifications to the action would be required as a result of designating critical habitat. However, critical habitat may provide benefits towards recovery when designated in areas currently unoccupied by the species.

Actions on Federal lands that we reviewed in past consultations on spikedace and loach minnow include land management plans; land acquisition and disposal; road and bridge construction, maintenance, and repair; water diversion and development; reservoir construction; off-road vehicle use; livestock grazing and management; fencing; prescribed burning; powerline construction and repair; recovery actions for spikedace and loach minnow; game fish stocking; timber harvest; access easements; flood repair and control; groundwater development; channelization; and canal and other water transport facility construction and operation. Federal agencies involved with these activities include the USFS, BLM, Service, and Bureau of Reclamation.

Federal actions taken on private, State, or tribal lands on which we consulted in the past for spikedace and loach minnow include irrigation diversion construction and maintenance; flood repair and control; game fish stocking; timber harvest; water diversion and development; reservoir construction; water quality standards; and riparian habitat restoration. Federal agencies involved with these activities include the Natural Resources Conservation Service, Bureau of Reclamation, Environmental Protection Agency, Bureau of Indian Affairs, Indian Health Services, Federal Emergency Management Agency, and the Service.

Federal actions involving issuance of permits to private parties on which we consulted in the past for spikedace and loach minnow include issuance of National Pollution Discharge Elimination System permits by the Environmental Protection Agency and issuance of permits under section 404 of the Clean Water Act for dredging and filling in waterways by the COE. Private actions for which 404 permits were sought include road and bridge construction, repair and maintenance; flood control and repair; and water diversion construction and repair.

Since the original listing of spikedace and loach minnow in 1986, only three consultations ended in a finding that the proposed action would likely jeopardize the continued existence of spikedace and/or loach minnow. An additional four proposed actions received draft findings of jeopardy, but for three of those, the requests for consultation were withdrawn and the fourth is still in progress. For the three jeopardy findings, we developed reasonable and prudent alternatives that included changes to projects, and recommended or required measures to reduce or eliminate impacts to spikedace and loach minnow and to minimize the take of individuals. These alternatives removed the likelihood of jeopardy to the species.

As stated above, designation of critical habitat in areas occupied by spikedace or loach minnow is not expected to result in regulatory burden above that already in place due to the presence of the listed species. However, areas designated as critical habitat that are not currently occupied by the species may require protections similar to those provided to occupied areas under past consultations.

Any Federal activity that would significantly and detrimentally alter the minimum flow or the natural flow regime of 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, groundwater pumping, impoundment, water diversion, and hydropower generation.

Any Federal activity that would significantly and detrimentally alter watershed characteristics of any of the 41 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, vegetation manipulation, timber harvest, road construction and maintenance, human-ignited prescribed fire, livestock grazing, mining, and urban and suburban development.

Any Federal activity that would significantly and detrimentally alter the channel morphology of any of the 41

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, 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.

Any Federal activity that would significantly and detrimentally alter the water chemistry in any of the 41 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).

Any Federal activity that would introduce, spread, or augment nonnative aquatic species could destroy or adversely modify the critical habitat of either or both species. Such activities include, but are not limited to, stocking for sport, aesthetics, biological control, or other purposes; construction and operation of canals; and interbasin water transfers.

In some cases designation of critical habitat may assist in focusing conservation activities by identifying areas that contain essential habitat features (primary constituent elements), regardless of whether they are currently occupied by the listed species. This identification alerts the public and land management agencies to the importance of an area in the conservation of that species. Critical habitat also identifies areas that may require special management considerations or protection.

If you have questions regarding whether specific activities are likely to constitute destruction or adverse modification of critical habitat, contact the Field Supervisor, Arizona Ecological Services Office (see
ADDRESSES
section). Requests for copies of the regulations on listed wildlife and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Division of Endangered Species, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone 505-248-6920; facsimile 505-248-6788).

Economic Analysis

Section 4(b)(2) of the Act requires that we designate critical habitat on the basis of the best scientific and commercial information available and consider the economic and other relevant impacts of designating a particular area as critical habitat. We based this designation on the best available scientific information, including the recommendations in the species' recovery plans. We utilized the economic analysis, and took into consideration comments and information submitted during the public hearing and comment period, to make this final critical habitat designation. 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. We completed an economic analysis, which is available for public review. Send your requests for copies of the economic analysis to the Arizona Ecological Services Office (see
ADDRESSES
section) or visit our website at http://ifw2es.fws.gov/arizona.

Exclusion for Economic and Other Relevant Impacts

Based on comments provided by the BLM, our Economic Analysis identified Bonita Creek as an area with potential for high economic impacts associated with the designation of critical habitat for the spikedace and loach minnow. The analysis concluded that “Immediate action is required in case of flood control damage to [the City of Safford's] water supply in order to minimize the cost of repair. The cost of a stable, alternative water supply is prohibitive. There is a high probability of substantial cost to the City of Safford from the inability to repair storm damage to their water supply in a timely manner due to the requirement of a section 7 consultation if the Creek is designated critical habitat.”

Bonita Creek is an area that is necessary for the recovery of the probable unique spikedace gene pool presently occupying Eagle Creek. Furthermore, 50 CFR section 402.05 of our regulations provides for expedited consultation pursuant to section 7 of the Act during emergencies. Finally, Bonita Creek is occupied by the razorback sucker (
Xyrauchen texanus
), a species listed as endangered pursuant to the Act. Thus, consultation on water supply repair has and will occur regardless of the designation of critical habitat for the spikedace and loach minnow. In fact, in 1994, the Federal Emergency Management Agency consulted with us pursuant to section 7 of the Act regarding repairs to the City of Safford's water supply system in Bonita Creek. We concluded that repairs to the water system were not likely to jeopardize the continued existence of the razorback sucker. Impacts to the razorback sucker would be very similar to the impacts to the spikedace and thus, including Bonita Creek as critical habitat is not likely to change our section 7 consultation conclusions. For these reasons we conclude the benefits of designating Bonita Creek outweigh the benefits of excluding it from critical habitat designation.

Based on comments provided by Arizona Game and Fish Department (AGFD), our Economic Analysis identified the possible discontinuation of trout stocking programs as a potential for high economic loss to affected county economies. We are presently consulting on the stocking program, but because trout are not known to conflict with the recovery of either spikedace or loach minnow, we do not expect any impacts to the trout stocking program or county economies. Therefore, we conclude the benefits of designating critical habitat for the spikedace and loach minnow outweigh the benefits of excluding all areas where trout stocking occurs.

No tribal reservation lands are included in this designation, as discussed in more detail below. Nor are we including the Black River as critical habitat for spikedace in this final determination because information received during the comment period leads us to conclude that it is not suitable for spikedace recovery. The Black River is, however, designated as critical habitat for the loach minnow. After gathering economic data and conducting an analysis of the lands proposed for critical habitat designation, we determined that no other areas should be excluded from this designation for economic or other relevant considerations.

American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act

In accordance with the Presidential Memorandum of April 29, 1994, we believe that, to the maximum extent possible, 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 most cases, designation of tribal lands as critical habitat provides very little benefit to threatened and endangered species. This is especially true where the habitat is occupied by the species and is therefore already subject to protection under the Act. Conversely,

such designation is often viewed by tribes as unwarranted and 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.

As stated previously, section 4(b)(2) of the Act requires us to consider the economic and other relevant impacts of critical habitat designation, and authorizes us to exclude areas from designation upon finding that the benefits of exclusion outweigh the benefits of including the areas as critical habitat, so long as excluding those areas will not result in the extinction of the species concerned. In the proposed rule for this critical habitat designation we solicited information from interested parties on the anticipated economic and other relevant impacts of designation.

We identified stream reaches on the Fort Apache Indian Reservation (home of the White Mountain Apache Tribe), the San Carlos Apache Reservation, and the Yavapai Apache Reservation as possibly appropriate biologically for the designation of critical habitat, i.e., they contain the primary constituent elements of the species' critical habitat. The San Carlos, Tonto, White Mountain, and Yavapai Apache tribes all addressed this issue in their comments on the proposed rule. Below we evaluate the benefits of excluding these tribal lands from critical habitat and the benefits of including these areas. In addition, we assess the anticipated effects that designation of non-tribal lands can be expected to have on tribal trust resources, such as water deliveries.

1. Designation of Critical Habitat on Indian Reservations

The White Mountain Apache Tribe, which has currently occupied loach minnow habitat and potential loach minnow and potential spikedace habitat within its reservation boundaries, produced a Native Fishes Management Plan. After reviewing this plan, we determined that the tribe's management of the species will provide substantial protection for the relevant habitat areas, and that designation of critical habitat will provide little or no additional benefit to the species, particularly since the areas are occupied by the loach minnow.

Conversely, designation of critical habitat would be expected to adversely impact our working relationship with the Tribe, the maintenance of which has been extremely beneficial in implementing natural resource programs of mutual interest. In 1994 the Fish and Wildlife Service and White Mountain Apache Tribe signed a Statement of Relationship which formalized our commitment to work cooperatively with the tribe in promoting healthy ecosystems. Since that agreement we have worked cooperatively with the tribe to the significant benefit of threatened and endangered species. In addition to managing the habitats of the spikedace and loach minnow, these programs include management of the threatened Mexican spotted owl, management of healthy populations of threatened Apache trout, and other natural resource programs. After weighing the benefits of critical habitat designation on the Fort Apache Indian Reservation against the adverse impact on our cooperative natural resource programs, we find that the benefits of excluding Fort Apache Indian Reservation lands, in terms of the spikedace and loach minnow, as well as ecosystems in general, outweigh the benefits of including those areas as critical habitat.

In the case of the San Carlos Indian Reservation, we again believe that the principle of tribal self-governance is the overriding consideration and believe that Federal regulation through critical habitat designation will be viewed as an unwarranted and unwanted intrusion into tribal natural resource programs. This, in turn, will likely hamper our ability to continue important programs upon which endangered and threatened species depend. For example, we are currently cooperating with the San Carlos Apache Tribe on a very important spring restoration program for the benefit of the severely imperiled Gila topminnow. We also are cooperating on programs to benefit the endangered southwestern willow flycatcher, the Gila chub (a candidate for listing under the Act), and the Mexican spotted owl, among others. Given our belief that they are the entity best able to manage habitat for the spikedace and loach minnow, the fact that the areas considered for designation are already occupied by listed species and therefore receive protection under the Act, and the anticipated adverse impacts to our cooperative relationship that may result from critical habitat designation, we believe that the benefits of excluding areas of the San Carlos Apache Reservation from critical habitat outweigh the negligible benefits of designating those areas.

The Yavapai Apache Tribe holds approximately one river-mile of potential critical habitat on the Verde River, other parts of which are designated as critical habitat. We believe that current management is adequate as evidenced by the fact that the spikedace still occurs there, and that little benefit would accrue from critical habitat designation since the species is already protected under the Act. We further believe that tribal management of this reservation land would ultimately be of greater benefit to spikedace and loach minnow than would the designation of this small segment, since we hope to maintain a cooperative working relationship with the Yavapai Apache.

After carefully balancing the considerations involved in determining whether lands should be included or excluded from the designation of critical habitat, we determined that the benefits of promoting self-determination, allowing the tribes to develop conservation management on their lands, and the continued cooperative relationship in managing threatened and endangered species and their habitats, outweigh the benefits to be obtained from designating critical habitat for these two species. Exclusion of these lands from the designation will not result in extinction of either species.

These decisions were made in compliance with Public Law 106-113, which prohibits us from using any of our appropriated funds to implement two provisions of Secretarial Order 3206 (Secretarial Order)—(1) Principle 3(C)(ii), which prohibits the imposition of conservation restrictions involving incidental take if the conservation purposes of the restriction can be achieved by reasonable regulation of non-Indian activities, and (2) Appendix section 3(B)(4), which concerns the designation of critical habitat and includes the requirement that we consult with affected tribes. The Presidential Memorandum of April 29, 1994 also requires that we consult with tribes when contemplating regulations that may affect them, and the Act requires that we consider the relative benefits versus potential adverse consequences of critical habitat designations on all lands. Thus, our consultation with the tribes and our assessment of the ability to achieve conservation of spikedace and loach minnow without regulation of tribal lands were undertaken independently of the provisions of Secretarial 3206.

2. Possible Effects on Tribal Trust Resources From Critical Habitat Designation on Non-tribal Lands

We recognized that the Salt River Reservation, Fort McDowell Reservation, and Gila River Indian Reservation are all located downstream from designated critical habitat and depend on water deliveries from

upstream sources. We do not anticipate that designation of critical habitat on non-tribal lands will result in any impact on tribal trust resources or the exercise of tribal rights. Many of the tribal lands either have major impoundments on their reservations or lie below major impoundments, and the release of water from the impoundments is regulated by court decree or other actions which may be non-discretionary. Since non-discretionary actions are not subject to consultation under the Act, designation of critical habitat is unlikely to have any effect on water deliveries to the reservations. However, in complying with our responsibility to communicate with all tribes potentially affected by the designation, we solicited information during the comment period on potential effects to tribes or tribal resources that might result from this critical habitat designation. The comments are discussed below; none pointed out specific effects not considered in developing this rule.

Summary of Comments and Recommendations

In the December 10, 1999, proposed rule, all interested parties were requested to submit comments or information that might bear on the designation of critical habitat for the spikedace and loach minnow (64 FR 69324). The comment period was initially scheduled to close on January 14, 2000. Subsequently, the courts allowed us additional time in which to prepare and publish this final designation of critical habitat. Therefore on January 12, 2000, we announced in the
Federal Register
(65 FR 1845) extension of the comment period to February 14, 2000, and scheduling of an additional public hearing. In addition, we notified 525 interested parties of the comment period extension and additional public hearing by letter.

We contacted all appropriate State and Federal agencies, Tribes, county governments, scientific organizations, and other interested parties by mail and invited them to comment on the proposed rule as well as the draft economic analysis and Environmental Assessment. In addition, newspaper notices inviting public comment were published in the following newspapers in Arizona and New Mexico: The Arizona Republic, Tucson Citizen, Arizona Daily Star (Tucson), Albuquerque Tribune, Albuquerque Journal, Sierra Vista Herald, Eastern Arizona Courier, Santa Fe New Mexican, Silver City Daily Press, White Mountain Independent, The Verde Independent, Sedona Red Rock News, Cottonwood Journal Extra, and Camp Verde Journal. The inclusive dates of these publications were December 4-15, 1999, for the initial comment period and announcement of the first three public hearings.

We posted copies of the proposed rule, draft environmental assessment, and draft economic analysis on our Internet site and distributed them for display and inspection at public libraries in Prescott, Chino Valley, Camp Verde, City Of Cottonwood, Sedona, Sierra Vista, Huachuca City, Safford City and Graham County, Clifton-Greenlee County, Kearny, Tucson, Alpine, Greer, Mammoth, and San Manuel in Arizona; and Silver City and Reserve Village Hall in New Mexico.

We held hearings in Silver City, New Mexico, and Thatcher, Arizona, on December 15, 1999, and Camp Verde, Arizona, on December 16, 1999. Notices appeared in the previously named newspapers between January 13 and 19, 2000 to announce the extension of the public comment period until February 14, 2000, and the scheduling of an additional public hearing in Sierra Vista, Arizona on January 31, 2000. The December 10, 1999 (64 CFR 69324), and January 12, 2000 (65 CFR 1845), notices also announced the time and location of the four public hearings. A total of 495 people registered at the public hearings including 32 in Silver City, 111 in Thatcher, 24 in Camp Verde, and 328 in Sierra Vista. Transcripts of these hearings are available for inspection (see
ADDRESSES
section).

We requested four ichthyologists familiar with the species to peer review the proposed critical habitat designation. However, only two responded by the close of the comment period. One responded that as a member of the Desert Fishes Recovery Team he has provided data, advice, and general counsel and supports the proposal on biological grounds. The second also generally supported the proposed critical habitat, but cited a few areas he suggested be added to the proposal as well as some technical corrections to the document.

We received a total of 126 oral and 315 written comments during the comment period. Of those oral comments, 15 supported critical habitat designation and 111 were opposed to designation. Of the written comments, 35 supported designation, 263 were opposed to it, and 17 provided additional information only, or were nonsubstantive or not relevant to the proposed designation. Oral and written comments were received from the government of Mexico, one Congressional representative, two state legislators, two Federal agencies, three State agencies, nine local governments, five Tribal governments, and 297 private organizations, companies, or individuals.

All comments received were reviewed for substantive issues and new data regarding critical habitat and the biology and status of spikedace and loach minnow. Comments of similar nature are grouped into 7 issues relating specifically to critical habitat. These are addressed in the following summary.

Issue 1: Procedural and Legal-Compliance

The following comments and responses involve issues related to public involvement in the designation process and compliance with the Act and other laws, regulations, and policies. These comments do not include those addressing economic issues nor compliance with the NEPA, which are addressed under Issues 3 and 5, respectively.

Comment 1a:
The comment period was unreasonably short for the public to fully evaluate the proposed rule and associated documents; more public hearings were needed.

Our Response:
The initial public comment period was shorter than the 60 days required under our regulations (50 CFR 424.16(c)(2)). However, the initial schedule we developed to complete this designation was the result of a court-ordered deadline. The court originally ordered us to publish this final designation by February 17, 2000. To meet this deadline and allow time for analysis of public comments and preparation of the final rule, we needed to close the public comment period on January 14, 2000, resulting in an initial comment period of 36 days. Fortunately, both the plaintiffs and the court agreed to a 60-day extension of the deadline. As a result, we announced in the
Federal Register
(65 FR 1845) on January 12, 2000, as well as local newspapers, that we were extending the comment period until February 14, 2000, resulting in a total comment period of 65 days, thus exceeding the 60-day regulatory requirement.

The Act requires that at least one public hearing be held if requested. We held four hearings; thus we exceeded the statutory requirements.

Comment 1b:
The Service should prepare additional drafts of various documents and provide them to the public for review.

Our Response:
Drafts of both the economic analysis and Environmental Assessment associated with this designation were made available to the

public for review and comment. The final versions of those documents are available to the public (see
ADDRESSES
).

Comment 1c:
The public should have the opportunity to review comments provided by selected experts during the peer review process.

Our Response:
All comments submitted are part of the administrative record and, as such, are open to public review. It is also important to note that oral testimony at the public hearings, written comments from the general public, and comments received during the peer review process are considered equally in making our final determination.

Comment 1d:
Designation of portions of the rivers unoccupied by either of these fish species is outside the Service's authority and contrary to the requirements of the Act.

Our Response:
The definition of critical habitat in section 3(5)(A) of the Act includes “”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.” The term “conservation”, as defined in section 3(3) of the Act, means “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary” (i.e., the species is recovered and removed from the list of endangered and threatened species).

After weighing the best available information, including the species' recovery plans (U.S. Fish and Wildlife Service 1991a, 1991b), we conclude that the areas designated by this final rule that lie outside the geographical area occupied by the species at the time they were listed are essential for the recovery of the species and subsequent removal from the list of endangered and threatened species. We also note that the total area designated only represents approximately 45 and 50 percent of the areas believed historically occupied by the spikedace and loach minnow, respectively.

Comment 1e:
The Act states that areas outside the area occupied at the time of listing can be designated only if those areas are determined essential to the conservation of the species. The Service instead considered whether areas were occupied at the time of critical habitat designation. Therefore, some areas currently occupied, but that were not occupied at the time of listing, were not subject to the higher standard required of for unoccupied habitat (i.e., that those areas are essential for the conservation of the species).

Our Response:
The issue is moot since we determined that all areas designated as critical habitat are essential for conservation of these two species.

Comment 1f:
The critical habitat proposal represents virtually all suitable or potentially suitable habitat within the species' historical ranges. The Act prohibits such broad designation.

Our Response:
Section 3(5)(C) of the Act states that, except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by an endangered or threatened species. In this case critical habitat is designated in an estimated 45 and 50 percent of spikedace and loach minnow historical ranges, respectively. With proper restoration and management, much of the historical range would be suitable. The Secretary of the Interior has determined that the areas designated are essential to conserve these species.

Comment 1g:
Private lands should be excluded from critical habitat designation.

Our Response:
Section 4(b)(2) of the Act states “The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.” The Act does not require nor suggest that private lands should be excluded from designation, unless we find that the economic or other relevant impacts outweigh the benefit of critical habitat designation. For further information please see our discussion under Issue 3: Economic Comments. Designation of critical habitat on private lands would only have an effect in cases where Federal funding or a Federal permit is required for a project. For further information please see our discussion under Issue 7: Effects of Designation.

Comment 1h:
The critical habitat designation is based on insufficient data.

Our Response:
Section 4(b)(2) of the Act states “The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available . . .” Our recommendation is based on a considerable body of information on the biology and status of the species, as well as the effects of land-use practices on their continued existence. We agree that much remains to be learned about these species, and should credible, new information become available which contradicts the basis for this designation, we will reevaluate our analysis and, if appropriate, propose to modify this critical habitat designation. We have considered the best scientific information available at this time, as required by the Act. Please see more specific information in our response to comment 4i.

Comment 1i:
We should not designate critical habitat until specific recovery goals are set.

Our Response:
The Act does not allow the indefinite suspension of the determination of critical habitat. Thus, in general, we cannot delay the determination of critical habitat until final recovery plans are produced. However, in the cases of the spikedace and loach minnow, recovery plans were finalized in 1991. These plans recommend that critical habitat be designated for these species. The plans also recommend maintenance of occupied habitat and establishment of new populations within the species' historical ranges. In addition, we have continued working with the Desert Fishes Recovery Team since the plans were finalized, and believe this critical habitat designation is consistent with the recommendations of those scientists. We have thus met the requirement that the designation be based on the best scientific information available.

Comment 1j:
In relying on the Desert Fishes Recovery Team to identify which streams and rivers should be designated as critical habitat, the Service violated both the ESA and the Federal Advisory Committee Act (FACA). The ESA exempts Recovery Teams from FACA only for the purpose of developing and implementing recovery plans, not advising on critical habitat designation.
Alabama-Tombigbee Rivers Coalition
v.
Department of Interior
, 26 F.3d 1103 (11th Cir. 1994).

Our Response:
Section 4(f)(2) of the Endangered Species Act provides the Fish and Wildlife Service the authority to appoint recovery teams, which may consist of non-Federal personnel, for the purpose of assisting in the development and implementation of recovery plans. That section also exempts recovery teams from the provisions of FACA.

In the case of the spikedace and loach minnow, the Desert Fishes Recovery Team (Recovery Team) oversaw development of recovery plans for the two species, and suggested mechanisms to facilitate plan implementation in order to achieve the plans' conservation goals. Both recovery plans recommend designating critical habitat for the two species as a mechanism for recovery, and the Recovery Team has provided

suggestions on which areas should be included in such designation. The Recovery Team was acting appropriately within its role in advising on recovery plan implementation, and our consideration of Recovery Team recommendations is consistent with the Act's requirement that critical habitat determination be based on the best scientific information available.

This commenter cited
Alabama-Tombigbee Rivers Coalition
v.
Department of Interior
, 26 F.3d 1103 (11th Cir. 1994), as authority for its assertion that the Recovery Team's FACA exemption was limited. However,
Alabama-Tombigbee
did not involve a Recovery Team; it involved an “Advisory Team” assembled to advise the Service on whether listing of a species was warranted. The “Advisory Team” was never referred to as a Recovery Team nor was there any indication in the opinion that anyone asserted that the Advisory Team was exempt from FACA under the Act.

Comment 1k:
Contrary to statements in the proposed rule, the Service was not ordered to designate critical habitat. Rather, the amended court order of October 6, 1999, stated that the Service was to publish a final determination with respect to whether and to what extent critical habitat shall be designated. Thus, the Service should reconsider whether and to what extent critical habitat should be designated.

Our Response:
The commenter is correct that we cited the original court order of September 20, 1999, which ordered us to designate critical habitat, and that a subsequent court order amended the original order to require us to make a critical habitat determination rather than requiring actual designation. In complying with the amended court order, we made the determination that critical habitat designation is prudent for these two species, and that the areas proposed are essential for the species' conservation and thus the appropriate extent of critical habitat. The language in this final rule clarifies the distinction mentioned by the commenter, although such a correction has no material effect on the designation.

Comment 1l:
We failed to comply with the Farm Land Protection Act of 1981.

Our Response:
The stated purpose of the Farmland Protection Act of 1981, Public Law 97-98, 95 Stat. 1343, 7 USC 4201
et seq.
, was “to minimize the extent to which Federal programs contribute to the unnecessary and irreversible conversion of farmland to nonagricultural uses * * * ”; however, the Farmland Protection Act recognized that there might be instances where other national interests could override this provision. While Federal statutes may frequently appear to have conflicting provisions, it is the presumed intent of Congress that, to the extent possible, all laws be read in a way which allows them to be applied together. We do not read the Farmland Protection Act and the Endangered Species Act to be incompatible since this designation will not result in conversion of farmland to nonagricultural uses and nor any significant restrictions on agricultural uses.

Issue 2: Biological Concerns

The following comments and responses involve issues related to the biological basis for the designation.

Comment 2a.
The proposed critical habitat designation is substantially greater than critical habitat designated in 1994 and is thus excessive.

Our Response:
The 1994 designations of critical habitat were based on proposals published in 1985. Since 1985 there have been substantial additions to the information on spikedace and loach minnow, their habitat needs, and the existing condition and potential of most of the streams in the Gila River basin. In addition, in 1985 the concept of critical habitat was less developed than it is now, 15 years later. Evolution of thinking, along with a number of court decisions regarding the definition and uses of critical habitat, have led to the recognition that critical habitat may provide the most benefits to listed species when it is applied to unoccupied areas essential for recovery.

Of the areas included in this critical habitat designation for spikedace that were not included in the 1994 designation, 20 percent are based on new information about the species, its distribution, abundance, and habitat; 10 percent are to include sparsely occupied areas omitted from the 1985 proposal; 69 percent are currently unoccupied recovery areas and connecting corridors; and, 1 percent is an adjustment due to the increased accuracy of mileage calculations using Geographic Information System (GIS) capability. Of the areas included in this critical habitat designation for loach minnow that were not included in the 1994 designation, 15 percent are based on new information; 18 percent are sparsely occupied areas omitted from the 1985 proposal; 65 percent are currently unoccupied recovery areas and connecting corridors; and, 2 percent are an adjustment for GIS figures.

Comment 2b:
Neither spikedace nor loach minnow require the protection of the Act. The discovery of new populations since their listing should cause both species to be delisted or at least negate the need for critical habitat designation.

Our Response:
Both spikedace and loach minnow are listed as threatened. Recovery plans were finalized for both species in 1991. In 1994, we reevaluated the threats to the species and determined the status of the species was even more precarious than we had previously concluded, even with the discovery of new populations, and that they warranted listing as endangered. However, higher listing priorities, e.g., reviewing and listing imperiled species that are afforded no protection under the Act, have precluded us from reclassifying the spikedace and loach minnow as endangered. The status of both spikedace and loach minnow are declining.

Comment 2c:
The Service should limit critical habitat to aquatic and riparian zones.

Our Response:
In this final rule we have further clarified the areas within designated reaches as the stream channels and areas potentially inundated by high flow events. Where delineated, this is the 100-year floodplain of the designated waterways. This constitutes the present and reasonable future aquatic and riparian zones of the designated rivers and streams. Furthermore, within the delineated critical habitat boundaries, only lands containing, or which are likely to develop, those habitat components that are essential for the primary biological needs of the species are considered critical habitat. Existing human-constructed features and structures within this area, such as buildings, roads, railroads, and other features, do not contain, and do not have the potential to develop, those habitat components and are not considered critical habitat.

Comment 2e:
One commenter questioned the validity of designating sufficient critical habitat to protect all known remaining genetic diversity within the two species with the exception of fish on certain tribal lands.

Our Response:
The exclusion of tribal lands is discussed in the section titled American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act, and in section 6 of these responses to comments.

The range, numbers, and presumably genetic diversity of the species have already been much reduced. The remaining populations exhibit distinct genetic differences (Tibbets 1992, Tibbets 1993, A. Tibbets, pers. com., March 2000). Noss and Cooperrider (1994) identified reduced genetic

diversity as one of the factors which predispose small populations to extinction. Therefore, to conserve and recover the fishes to the point where they no longer require the protection of the Act and may be delisted, it is important to maintain and protect all remaining genetically diverse populations of these two species.

Comment 2f:
The Service did not provide sufficient information on the criteria used for including or omitting certain reaches in the critical habitat designation.

Our Response:
Please see the “Critical Habitat Designation” section of this Final Rule. As described in the section titled “B. Primary Constituent Elements”, we identified the habitat features (primary constituent elements) that provide for the physiological, behavioral, and ecological requirements essential for the conservation of each species. Within the historical range of the species, we identified areas which either provide the primary constituent elements or will be capable, with restoration, of providing them and which met the criteria discussed under Critical Habitat Designation in this rule. Then, based in part on recommendations from species experts including those on the Desert Fishes Recovery Team, we selected qualifying reaches within these areas necessary for the conservation of the fishes.

Comment 2g:
The definition of the lateral extent of critical habitat is undefined. The vague description of lateral extent, along with the discussion of what activities might adversely affect critical habitat, could be interpreted as including the entire watershed of the streams designated as critical habitat. In addition, there are areas within what appears to be the designation that do not contain the constituent elements, such as buildings or parking lots, that should not be included in the critical habitat.

Our Response:
We have clarified the lateral extent of the critical habitat in this rule. Although activities within the watershed may affect the critical habitat, it is not our intent to designate areas outside of the floodplain as critical habitat. We have also clarified that existing human-constructed features that do not meet the constituent elements are excluded by definition from the critical habitat designation.

Issue 3: Economic Analysis.

There were numerous comments that addressed economic issues.

Issue 3a:
Will critical habitat designation result in more consultations than would have occurred without the critical habitat designation?

Our Response:
We expect that the designation of critical habitat will result in more consultations, especially for activities which may affect unoccupied habitat. If these consultations result in any increased costs to the applicant, these costs will be attributable to critical habitat designation. However, consultations are only required of Federal agencies for those projects with a Federal nexus.

Issue 3b:
Are private lands affected by critical habitat designation if there is no Federal nexus?

Our Response:
Under Section 7 of the Endangered Species Act, private lands are not impacted by the designation of critical habitat unless there is a Federal nexus.

Issue 3c:
If permit requirements from a Federal agency change, is that a critical habitat impact?

Our Response:
There are many reasons why a permit requirement may change. Each Federal agency has enabling legislation that determines its mission and, consequently, what activities can occur on the land it manages, or for what activities the agency can otherwise issue permits. As more information becomes available about the environment, public activities on Federal land, or activities for which Federal agencies otherwise issue permits, may require changes to permit requirements. These may be due to the Federal agency's own legislation. In those cases, we have attributed any impact to the legislation requiring the change and not the Endangered Species Act. If permit requirements change on unoccupied habitat as a result of a consultation with us, then the impact would be attributable to critical habitat designation.

Issue 3d:
Critical habitat designation will drive away current and future businesses.

Our Response:
There is a common misconception that critical habitat designation will reduce business activity. Without a Federal nexus, there is no direct impact of critical habitat designation on private activities or businesses. In addition, restrictions resulting from the listing of the species are not attributable to critical habitat designation. In areas currently occupied by the species, little or no economic impact is expected to result from critical habitat designation. In unoccupied areas, some economic impacts may result. Our economic analysis considers those anticipated impacts, including effects on businesses. However, we believe that the benefits of designating critical habitat outweigh the benefits of excluding areas from designation.

Issue 3e:
Impacts on land uses next to the river were not evaluated in the economic analysis.

Our Response:
At the time of releasing the economic analysis of critical habitat designation, very little information was available to us on land uses next to the rivers. Subsequently, some Federal and State agencies have provided us with their management activities and expected changes relative to critical habitat. This new information is reflected in the final economic analysis.

Issue 3f:
The draft economic analysis only addresses 5 of the streams when the proposal includes many more streams.

Our Response:
The table with the analysis of 5 streams comes from study of the previous critical habitat designation. It was included in the draft economic analysis to illustrate the kinds of economic impacts for which we were seeking additional information. All streams in the final designation have been evaluated in the final economic analysis.

Issue 3g:
The Service must prepare an economic analysis that considers the total effect of listing and critical habitat.

Our Response:
Congress has stated that the listing of a species be based solely on biological considerations. As a result, an economic analysis of the listing of a species is not undertaken as part of the listing process. The current rule being considered is the designation of critical habitat and thus only economic and other relevant impacts of specifying any particular area as critical habitat are considered. A recent court decision on designation of critical habitat for the southwestern willow flycatcher
(Empidonax extimus trailli) New Mexico Cattle Growers et al.
v.
USFWS et al.,
CIV 98-0275 LH/DJs—ACE (D. Ariz. 1999) (on appeal) affirmed our approach of considering only the economic and other relevant impacts of critical habitat designation above and beyond those associated with listing the species.

Issue 3h:
The Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act analyses were inadequate.

Our Response: There were substantial data gaps that precluded a full analysis of the impact on small entities. A more complete analysis is in the administrative record for this designation, and is available for public review (see
ADDRESSES
).

Issue 3i:
There needs to be a takings implication assessment completed.

Our Response:
A taking implications assessment is in the administrative record for this designation, and is

available for public review (see
ADDRESSES
).

Issue 3j:
The economic analysis lacks dollar amounts for the impact on Agriculture, Recreation, Roads, Water Supply, and Private Development on page 26.

Our Response:
The table on page 26 of the draft economic analysis was reproduced from an earlier study and the blank entries were in the original document. We provide a more complete accounting of the impacts in the final economic analysis.

Issue 3k:
No economic analysis was done for the State of New Mexico.

Our Response:
The revised economic analysis includes information about Grant County, the only county in the State of New Mexico that contains critical habitat unoccupied by either the spikedace or the loach minnow.

Issue 3l:
An incorrect baseline was used for the economic analysis.

Our Response:
The baseline we used considered the Federal actions expected to occur in the absence of critical habitat. Thus, all Section 7 consultations with Federal agencies and other restrictions resulting from the listing of the species are considered part of the baseline and are not attributable to critical habitat designation. The only economic impacts attributable to critical habitat designation would be those resulting from Federal activities in unoccupied designated critical habitat and only those activities likely to destroy or adversely modify critical habitat.

Issue 3m:
The use of IMPLAN is not appropriate below the State level.

Our Response:
IMPLAN was not used in the draft economic analysis. However, the data sets that come with IMPLAN describe the economic activity at the county level, which provide a useful summary of the industries in the affected counties.

Issue 4:
Site-Specific Issues.

The following comments and responses involve issues related to the inclusion or exclusion of specific streams reaches or our methods for selecting appropriate areas for designation as critical habitat.

Comment 4a:
Several commenters pointed out errors in mileages, locations, or descriptions in the proposed rule.

Our Response:
Corrections have been made in the final rule to reflect these comments, where appropriate.

Comment 4b:
Commenters believed that the areas listed in table 3 (below) were unsuitable for designation or they recommended some areas for exclusion from designation.

Table 3.—Exclusion of Removal Recommendations in Comments

Stream reach
Not suitable for species

Not
occupied by
species

Conflict with economic, social, or other uses
Insufficient information
Nonnative species conflict

Not
essential or no benefit to species

Special mgmt.
consideration not needed

Detrimental to species mgmt.

Complex 1

Verde River above Valley
X
X

X

X

Verde River in Valley
X
X
X

X
X

Verde River below Valley
X
X

X
X

Granite Creek

X
X

Oak Creek
X
X
X
X
X
X

Beaver Creek
X
X

X
X
X

West Clear Creek
X
X
X
X
X
X

Fossil Creek
X
X
X

Complex 2

West Fork Black River
X
X
X

X

East Fork Black River
X

X

X

Coyote Creek
X

X
X
X
X

Boneyard Creek
X

X
X
X
X

Complex 3

Tonto Creek

X
X
X

X
X
X

Rye Creek
X
X
X
X
X
X
X
X

Greenback Creek

X
X
X

X
X
X

Complex 4

Middle Gila River
X
X
X

X

X

Lower San Pedro River
X
X

X

X

Aravaipa Creek

X
X

Turkey Creek

X

X

X

Deer Creek

X

X

X

Complex 5

Middle San Pedro River
X
X
X
X
X
X
X
X

Redfield Canyon

X

X

X

Hot Springs & Bass Canyons
X
X

X

X

Upper San Pedro River
X
X
X
X
X
X
X
X

Complex 6

Gila River at Box
X

X

X
X

Bonita Creek
X
X
X
X
X
X
X
X

Eagle Creek
X
X
X
X
X
X
X
X

Blue River
X

X
X
X

X

Little Blue Creek

X

X

Campbell Blue Creek

X
X

Dry Blue, Frieborn, & Pace Creeks

X

X

San Francisco River in AZ
X
X
X

X
X
X

San Francisco River in NM

X

X

Tularosa River

X
X

Negrito and Whitewater Creeks

X

Complex 7

Upper Gila River below Mogollon Creek
X

X
1

X

X
X
X
X

Upper Gila River above Mogollon Creek
X

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West Fork Gila River
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East Fork Gila River
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Middle Fork Gila River
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1
In part.

Our Response:
We carefully considered the information provided in the comments regarding requested exclusions and removals. Two streams were removed from the spikedace designation, as described previously. Areas suggested for exclusion that were retained, and our rationales, are provided in responses 4b1 through 4b19.

Comment 4b1:
There are no records of occurrence of spikedace and loach minnow in the Little Blue River, Redfield, Bass, and Hot Springs Canyons; Granite, Boneyard, Coyote, Greenback, Rye, Oak, and Bonita Creeks: the East, West, and Main Forks of the Black River; and the Gila Box. Therefore, these areas are not part of the historical range.

Our Response:
Because early collections of fishes from the Gila Basin were rare and occurred mostly along primary exploration and settlement travel routes, the complete distribution of most of our native fishes cannot be documented with specific museum specimens and records. By the time sampling of native fish became common in the 1960's and 1970's many of the streams had been modified or subjected to temporary adverse circumstances (such as total diversion of water or mine spills resulting in water-quality problems) to the point that many of the native fishes had already been extirpated. Thus, we can never know precisely what we have lost. Therefore, we must use the best available information to reconstruct the most probable composition of the historical ranges of spikedace and loach minnow. If a stream is (1) within the Gila basin; and (2) contains suitable or potential habitat for the species, or historical records indicate it once sustained such habitat, and there are records of those species from nearby areas, and there is no other reason to believe that the two species could not have occurred there (i.e. an impassable natural barrier); then those areas are considered to be part of the historical range of the species.

Comment 4b2:
Deer, Turkey, Wet Beaver/Beaver, and West Clear Creeks have no records of spikedace and/or loach minnow.

Our Response:
Deer and Turkey Creeks, tributaries of Aravaipa Creek, have recent records of loach minnow (USBLM 1995, University of Arizona museum specimens No. ASU 13517). The Beaver Creek complex has historical records of both spikedace and loach minnow from 1938 (Minckley 1993). West Clear Creek has historical records of spikedace from 1937 (Minckley 1993).

Comment 4b3:
Spikedace are extirpated from the middle Gila River and any spikedace found there were displaced by flooding from Aravaipa Creek.

Our Response:
Spikedace were recorded from the middle Gila River historically (Minckley 1973) and as recently as 1991 (Jakle 1992) and are not considered extirpated. Some commenters believe the 1991 record of one spikedace in the middle Gila River near Florence represents a fish displaced during some unspecified flood event from Aravaipa Creek, 50 miles upstream, and does not represent a population in the Gila River. However, in the year preceding the October sampling, there was only one marginally significant flood, which occurred in March (USGS discharge records). It is unlikely that such a relatively minor flood would displace spikedace 50 miles downstream and that the displaced fish would be surviving 6 months later in what the commenters assume is habitat unsuitable to support a resident population of spikedace. In addition, it is even more unlikely that, at the precise time of the only sampling conducted that year, the displaced fish would be present at one of the 7 sites sampled, totaling less than 1 mile of the 50 mile reach. Given the sparse sampling in the middle Gila, it is far more likely that the 1991 spikedace represents a small population of

spikedace either permanently resident in that area or which occupy the area in a periodically fluctuating pattern dependent upon conditions. Documentation of such small populations is very difficult and often results in false declarations of extirpation (Mayden and Kuhajda 1996).

Comment 4b4:
Spikedace are extirpated from the Middle Fork Gila River.

Our Response:
Spikedace have not been recorded at a long-term study site on the middle Fork Gila River since 1995 (Propst and Stefferud, unpub. data). No surveys of the rest of the stream have been conducted recently and the present status of the spikedace in the Middle Fork is uncertain. Failure to record spikedace for four years at a fixed sampling station may indicate a low population level but does not support a declaration of extirpation from the entire stream.

Comment 4b5:
Spikedace are extirpated from the Verde River.

Our Response:
Spikedace continue to be recorded from the Verde River, although since 1996 they have been very rare, with none found in 1997 and 1998 (Rinne et al. 1999a) and only two found in 1999. This dramatic fluctuation is similar to earlier fluctuations, although better documented.

Comment 4b6:
Loach minnow are extirpated from Eagle Creek; loach minnow found there since 1995 were stocked from elsewhere by organizations known to have programs for planting endangered species, and the 1994 records of loach minnow in Eagle Creek are not valid because they have not yet been published in a peer-reviewed journal.

Our Response:
Loach minnow were first recorded from Eagle Creek in 1950 (Univ. of Michigan museum specimens No. UMMZ 162744). Despite frequent sampling (Marsh et al.1990), they were not again recorded until 1994 (Knowles 1994, Knowles 1995). This illustrates the need for caution in concluding that a population has been extirpated. Fish, particularly small species with relatively cryptic habits, are often very difficult to locate when population levels are very low.

Loach minnow had been presumed, incorrectly, to be extirpated from Eagle Creek. Loach minnow were not stocked into Eagle Creek by any agency or governmental entity. We are not aware of, nor have we permitted, any nongovernmental groups to plant listed fish in Arizona. Genetic testing has shown the loach minnow in Eagle Creek to be a probable unique lineage differing from all other loach minnow. We have no evidence that these fish could have been planted from any other population (A. Tibbets, pers. comm. March, 2000). Sampling records from 1994 are considered valid records. Much of the monitoring of populations of endangered and threatened species is conducted by agencies and is placed into agency reports, such as the one in which these records are found. The 1995 Eagle Creek loach minnow records have also been vouchered with specimens in the Arizona State University Collection of Fishes (No. ASU165).

Comment 4b7:
Both spikedace and loach minnow have been extirpated from the upper Gila River below the Middle Box (below Redrock, New Mexico) and any spikedace or loach minnow found in that area were displaced by flooding from the Cliff-Gila Valley.

Our Response:
Spikedace and loach minnow continue to be found in the Gila River below the Middle Box, and depending upon conditions may be found from the mouth of the Box downstream to about the Arizona/New Mexico boundary. They were recorded near the Middle Box mouth and in the Lower Box at Fisherman's Point in 1998 (Propst and Stefferud unpub. data, Propst 1998) and at the Virden diversion in 1999 (Rinne et al. 1999b).

Comment 4b8:
The San Francisco River is not occupied by spikedace and is occupied by loach minnow only above the confluence with the Blue River.

Our Response:
The San Francisco River is currently occupied by loach minnow downstream from the mouth of the Blue River (Anderson and Turner 1977, J.M. Montgomery Consulting Engineers 1985, Bagley et al. 1995). The downstream extent of this population is not known precisely and likely fluctuates over time depending upon water and sediment levels, flooding, and other factors. However, it is known to extend at least 10-15 miles downstream from the confluence with the Blue River. Historical records of spikedace downstream (Minckley 1973) and upstream (Minckley 1973, Anderson 1978) from the lower San Francisco River, and the presence of apparently suitable habitat in that area, support the presumption of historical presence of spikedace. Past pollution events from the mines in the Clifton area, along with other human-caused alterations, caused the lower San Francsico River to be barren of fish at one time (Chamberlain 1904), have resulted in fish kills since that time (Rathbun 1969 as cited in Minckley and Sommerfeld 1979), and likely were a significant factor in the loss of spikedace and loach minnow from the lower San Francisco River and adjacent Gila River. The amelioration of these pollution events through modern management and regulation has eliminated them as a limiting factor to restoration of spikedace and other native species in the lower San Francisco River.

Comment 4b9:
The San Pedro River is not now and has never been occupied by either spikedace or loach minnow.

Our Response:
The San Pedro River is the type locality for spikedace and loach minnow. They were first collected there in 1840 and again in 1846 (Miller 1961), and were described from specimens taken there in 1851 (Girard 1856). They were taken periodically over the years; loach minnow were last recorded from the San Pedro in 1961 (University of Arizona museum No. UAZ95-190), and spikedace were last recorded there in 1966 (Arizona State University museum No. ASU 2282). See also responses to comments 4b16(c) and 4b16(j).

Comment 4b10:
It was suggested that areas which are occupied by spikedace or

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A00-10202. Public record. Not legal advice.