Endangered and Threatened Wildlife and Plants; Listing Gila Chub as Endangered With Critical Habitat
Federal RegisterNov 2, 2005
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AG16
Endangered and Threatened Wildlife and Plants; Listing Gila Chub as Endangered With Critical Habitat
AGENCY:
Fish and Wildlife Service, Interior.
ACTION:
Final rule.
SUMMARY:
We, the U.S. Fish and Wildlife Service (Service), list the Gila chub (
Gila intermedia
) as endangered with critical habitat under the Endangered Species Act of 1973, as amended (Act). Gila chub were historically found throughout the Gila River basin in southern Arizona, southwestern New Mexico, and northeastern Sonora, Mexico. The Gila chub has been reduced in numbers and distribution in the majority of its historical range (Minckley 1973; Weedman
et al.
1996). Where it is still present, populations are often small, fragmented, and at risk from known and potential threats and from random events such as drought, flood events, and wildfire. The primary threats to Gila chub include predation by and competition with nonnative organisms, including fish in the family Centrarchidae (
Micropterus
spp.,
Lepomis
spp.), other fish species, bullfrogs (
Rana catesbeiana
), and crayfish (
Orconectes virilis
), and habitat degradation from surface water diversions and ground water withdrawals. Secondary threats include habitat alteration, destruction, and fragmentation resulting from numerous factors that are discussed in this final rule. The current status of the Gila chub is much degraded from historical levels. The species exists as a few, small isolated, populations. The small size of these populations, and their degree of fragmentation and isolation, cause them to be highly susceptible to threats. We believe that due to the current reduced status of the Gila chub and the severity of threats, including nonnative species predation and habitat destruction, the Gila chub is likely to become extinct throughout all or a significant portion of its range. This final rule will implement the Federal protection and recovery provisions of the Act for this species. We are also designating approximately 160.3 river miles (mi) (258.1 kilometers (km)) of critical habitat located in Grant County, New Mexico, and Yavapai, Gila, Greenlee, Graham, Cochise, Santa Cruz, Pima, and Pinal Counties in Arizona.
DATES:
This final rule is effective December 2, 2005.
ADDRESSES:
Supporting documentation for this rulemaking is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951. The final rule, economic analysis, environmental assessment, and more detailed color maps of critical habitat are also available online at
http://www.fws.gov/arizonaes/.
GIS files of the critical habitat maps are also available online at
http://criticalhabitat.fws.gov/.
FOR FURTHER INFORMATION CONTACT:
Steven L. Spangle, Field Supervisor, Arizona Ecological Services Field Office (telephone, 602-242-0210; facsimile, 602-242-2513).
SUPPLEMENTARY INFORMATION:
This final rule lists the Gila chub as endangered and designates critical habitat.
Designation of Critical Habitat Provides Little Additional Protection to Species
In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and Implementing the Act
While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 470 species or 38 percent of the 1,253 listed species in the United States under the jurisdiction of the Service have designated critical habitat.
We address the habitat needs of all 1,253 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.
We note, however, that two courts found our definition of adverse modification to be invalid (March 15, 2001, decision of the United States Court Appeals for the Fifth Circuit,
Sierra Club
v.
U.S. Fish and Wildlife Service,
et al., F.3d 434 and the August 6, 2004, Ninth Circuit judicial opinion,
Gifford Pinchot Task Force, et al.
v.
United States Fish and Wildlife Service
). On December 9, 2004, the Director issued guidance to be used in making section 7 adverse modification determinations.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat
proposals due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides little additional protection to listed species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA). None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.
Background
It is our intent to discuss only those topics directly relevant to this final listing and critical habitat rule. For more information on biology of the Gila chub, refer to the August 9, 2002, proposed rule (67 FR 51948). However, some of the information presented in the proposed rule is discussed below in this final rule, where appropriate, such as the summary of factors affecting the species.
Description and taxonomy.
The Gila chub is a member of the minnow family Cyprinidae. The Gila chub is small-finned, deep-bodied, chubby (chunky), and darkly colored. Adult males average about 150 millimeters (mm) (6 inches (in)) in total length; females can exceed 200 mm (8 in). Scales are coarse, thick, and broadly overlapped, and radiate out from the base (Minckley 1973; Weedman
et al.
1996).
Baird and Girard (1854:28) published a description of the Gila chub, as
Gila gibbosa,
based on the type specimen collected in 1851 from the Santa Cruz River. For nomenclature reasons, the name was changed by Girard to
Tigoma intermedia
in 1856, working with specimens from the San Pedro River. Despite that and other name changes, the Gila chub has been recognized as a distinct species since the 1850s, with the exception of a short period in the mid-1900s when it was placed as a subspecies of
Gila robusta
(Miller 1945). For the past 30 years,
Gila intermedia
has been recognized as a full monotypic species, separate from the polytypic species
Gila robusta,
both currently accepted as valid species (Nelson et al. 2004). Minckley and DeMarais (2000) described a new species within the Gila River Basin,
Gila nigra.
It is similar to
Gila intermedia
in that it is another headwater-type chub, whereas
Gila robusta
is more often found in the mainstems of the major rivers within the Gila River Basin.
Gila intermedia
is the only species being addressed in this rule.
Distribution and Habitat.
Historically, Gila chub have been recorded in approximately 43 rivers, streams, and spring-fed tributaries throughout the Gila River basin in southwestern New Mexico, central and southeastern Arizona, and northern Sonora, Mexico (Miller and Lowe 1967; Minckley 1973; Rinne 1976; DeMarais 1986; Bestgen and Propst 1989). Several populations may have originally had basin-wide distributions (e.g., Babocomari River and Santa Cruz River).
Gila chub commonly inhabit pools in smaller streams, springs, and cienegas (a desert wetland), and can survive in small artificial impoundments, such as man made ponds (Miller 1946; Minckley 1973; Rinne 1975). Gila chub are highly secretive, preferring quiet, deeper waters, especially pools, or remaining near cover including terrestrial vegetation, boulders, and fallen logs (Minckley 1973).
Riparian and aquatic communities across the southwest have been degraded or destroyed by human activities (Hastings 1959; Hastings and Turner 1965; Henderickson and Minckley 1984; Tellman et al. 1997). Humans have affected southwestern riparian systems over a period of several thousand years. Before the 1800s, indigenous people and missionaries used southern Arizona cienegas and riparian areas mostly for subsistence enterprises, including woodcutting, agriculture (including livestock grazing), and food and fiber harvesting.
Historically, beaver also used riparian areas in the Gila River basin almost anywhere perennial water and appropriate vegetation could be found. The activities of beaver are believed to have helped promote Gila chub habitat by inhibiting erosion and downcutting of stream channels (Parker et al. 1985), and increasing ponded water behind their dams. Beaver were extirpated (i.e. lost from a particular area) from a majority of their range by the late 1800s and are still not abundant or have not recolonized areas where they have been extirpated and were historically common (Hoffmeister 1986). For example, beaver were extirpated from the Santa Cruz and San Pedro Rivers in Arizona. Loss of this large mammal and the dams they constructed may have contributed to rendering reaches of some streams and rivers unsuitable as habitat for the Gila chub.
There was a significant human population increase in southern Arizona and northern Sonora, Mexico, in the early to mid 1800s (Tellman et al. 1997). New immigrants substantially increased subsistence and commercial livestock production and agriculture. By the late 1800s, many southern Arizona watersheds were in poor condition primarily due to uncontrolled livestock grazing, mining, hay harvesting, timber harvesting, and other management practices, such as fire suppression (Bahre 1991; Humphrey 1985; Martin 1975). The watershed degradation caused by these management practices led to widespread erosion and channel entrenchment when above-average rainfall and flooding occurred in the late 1800s (Bryan 1925; Martin 1975; Hastings and Turner 1980; Dobyns 1981; Hendrickson and Minckley 1984; Sheridan 1986; Bahre 1991; Webb and Betancourt 1992). These events led to long-term stream, cienega, and riparian habitat degradation throughout southern Arizona and northern Mexico. Physical evidence of cienega and other riparian area alterations can be found in the black organic soils of the drainage cut banks in places like the San Rafael Valley (Hendrickson and Minckley 1984), and San Pedro River (Hereford 1993). Although these changes took place nearly a century ago, these ecosystems have not fully recovered, and in some areas may never recover.
We estimate, based on collection records, historical habitat data, the 1996 Arizona Game and Fish Department (AGFD) Gila chub status review (Weedman et al. 1996), and information in our files documenting currently occupied habitat (see Table 1), that the Gila chub has been eliminated from approximately 85 to 90 percent of its formerly occupied habitat. Of 47 known populations (see Table 1), 29 are considered occupied (i.e., Gila chub have been documented within the last 5 years); 4 of these are newly established populations. All 29 populations are considered small, isolated, and subject to some form of threat; nonnative species are present in 27 of the populations (Table 1). Weedman (1996) categorized the status of the Gila chub populations into one of four categories: (1) Stable-secure-Gila chubs are common, data over the last 5 to 10 years show a stable reproducing population, no nonnative predatory or competitive species are present, no current or future land use threats were identified; (2) Stable-threatened-Gila chub are common to uncommon, potential
threats by nonnatives exist, some habitat-altering land and water uses were identified, or lack of recruitment (i.e., reproduction and survival of young) was detected within the population; (3) Unstable-threatened—Gila chub are rare, have limited distribution, predatory or competitive nonnatives are present, or the habitat is modified or threatened; (4) Extirpated (i.e., liminated)-Gila chub are no longer found within a particular river system. These four categories are reflected in the following discussion of the current status of Gila chub populations beginning with the next paragraph, and are summarized for each of the currently known occupied populations and critical habitat areas in Table 1; threat information is also summarized for each population in Table 1. Of the 29 currently occupied populations, we estimate that 10 can be considered stable-threatened and 19 are considered unstable-threatened; none are considered stable-secure.
Table 1.—Gila Chub Locations (Major Drainages in Parentheses) Including Status Classification [Based on Weedman et al.1996; S=stable, U=unstable, T=threatened, E=Extirpated (See Distribution and Habitat Section)], Threats (From Service Files), Last Year of Documented Occupancy, and Source of Occupancy Information. No Information Was Available for Current Status and Threats on the Blue River
Gila Chub Locations
Status
classification
Threats
Last year
occupancy
confirmed
Source
Critical Habitat Areas
Area 1: Upper Gila River
Turkey Creek, NM (Gila River)
UT
Fire, grazing, nonnative species
2005
P.C. Marsh, ASU in litt. 2005.
Eagle/East Eagle Creek (Gila River)
UT
Fire, grazing, nonnative speices
2005
Marsh 2005.
Harden Cienega Creek (San Francisco River)
ST
Fire, grazing, nonnative species
2005
McKell 2005.
Dix Creek (San Francisco River)
ST
Fire, grazing
2005
McKell 2005.
Area 2: Middle Gila River Area
Mineral Creek/Devil's Canyon (Gila River)
UT
Fire, grazing, nonnative species
2000
Weedman et al. 2000.
Area 3: Babocomari River
O'Donnell Creek (Babocomari River)
UT
Fire, grazing, nonnative species
2004
Dean Foster, AGFD, in litt. 2005.
Turkey Creek (Babocomari River)
E
Fire, grazing, nonnative species
1991
Weedman et al. 1996.
Area 4: Lower San Pedro River
Bass Canyon (San Pedro River)
ST
Fire
2003
Bob Rogers, The Nature Conservancy (TNC), in litt. 2005.
Hot Springs Canyon (San Pedro River)
ST
Fire
2004
Bob Rogers, TNC, in litt. 2005.
Redfield Canyon (San Pedro River)
ST
Fire, grazing, nonnative species
2001
Bob Rogers, TNC, in litt. 2005.
Area 5: Lower Santa Cruz
Cienega Creek (lower, Santa Cruz River)
UT
Fire, nonnative species, water use
2005
Doug Duncan, in litt.
Cienega Creek (upper, Santa Cruz River)
ST
Fire, nonnative species
2005
Dean Foster, AGFD, in litt. 2005.
Mattie Canyon (Santa Cruz River)
UT
Fire, grazing, nonnative species
2005
Jeff Simms, BLM, in litt. 2005.
Empire Gulch (Santa Cruz River)
UT
Fire, grazing,
2001
(67 FR 51948).
Sabino Canyon (Santa Cruz River)
UT
Fire, nonnative species
2005
Service files.
Area 6: Verde River
Walker Creek (Verde River)
ST
Fire, grazing, nonnative species
2005
Service files.
Red Tank Draw (Verder River)
UT
Fire, grazing, nonnative species
2005
Service data.
Spring Creek (Verde River)
ST
Fire, grazing, nonnative species, residential development, water use
2005
Service files.
Williamson Valley Wash (Verde River)
UT
Nonnative species residential development, water use
2003
Bill Leibfried, in litt. 2005.
Area 7: Agua Fria
Little Sycamore Creek (Agua Fria River)
ST
Fire, grazing, nonnative species
2003
A .Silas, FS, pers. comm. 2005.
Sycamore Creek (Agua Fria River)
UT
Fire, grazing, nonnative species
2005
Hedwall et al. 2005.
Indian Creek (Agua Fria River)
UT
Fire, grazing, nonnative species
2005
J. Voeltz, AGFD in litt. 2005.
Silver Creek (Agua Fria River)
UT
Fire, grazing, nonnative species
2005
D. Weedman, AGFD in litt. 2005.
Larry Creek (Agua Fria River)
ST
Fire, grazing
2003
Service files.
Lousy Canyon (Agua Fria River)
ST
Fire, grazing
2005
Service files.
Locations Not in Critical Habitat Areas
Bonita Creek (Gila River)
ST
Fire, grazing, recreatoin, roads, water use, nonnative species
2005
Heidi Blasius, BLM, pers. com. 2005.
Blue River (Gila River)
No information
No information
2000
Weedman et al. (1996) Minckley and DeMarais (2000).
Romero Canyon (Santa Cruz River)
UT Introduced
Fire, nonnative species
2005
AGFD 2005a.
Bear Canyon (Santa Cruz River)
UT Introduced
Fire, nonnative species
2005
AGFD 2005a.
Sheehy Spring (Santa Cruz River)
UT
Fire, nonnative species
2005
D. Foster, AGFD, in litt. 2005.
Babocomari River at T4 Spring (San Pedro River)
UT
Fire, nonnative psecies
2005
D. Foster, AGFD, in litt. 2005.
Double R Canyon (San Pedro River)
UT
Fire
2003
Bob Rogers, TNC, in litt. 2005.
Wildcat Canyon (San Pedro River)
UT
Fire
2003
Bob Rogers, TNC, in litt. 2005.
Post Canyon (Babocomari River)
E
Fire, grazing, nonnative species
1989
Weedman et al. 1996.
Arroyo La Cieneguita, Mexico (San Pedro River)
E
Fire, grazing, nonnative species
1990
Varela-Romero et al. 1992.
Los Fresnos River, Mexico (San Pedro River)
E
Fire, grazing, nonnaative species
1990
Varela-Romero et al. 1992.
Localities Where the Gila chub is Believed Extirpated
Aqua Fria River
1966
Weedman et al. 1996.
Big Chino Wash (Verde River)
1950
Weedman et al. 1996.
Birmingham Pond (Santa Cruz River)
1943
Weedman et al. 1996.
Cave Creek/Seven Springs Wash (Salt River)
1978
Weedman et al. 1996.
Fish Creek (Salt River)
1965
Weedman et al. 1996.
Monkey Spring (Santa Cruz River)
1968
Weedman et al. 1996.
Queen Creek (Gila River)
1938
Weedman et al. 1996.
Arnett Creek (Gila River)
1945
Weedman et al. 1996.
San Pedro
1912
Weedman et al. 1996.
San Simon River
1939
Weedman et al. 1996.
Santa Cruz River
1977
Weedman et al. 1996.
Haunted Canyon (Salt River)
1959
University of Michigan Museum of Zoology [UMMZ] collection record 176179.
In New Mexico, Gila chub likely inhabited numerous tributaries of the Gila River basin historically. These include Apache Creek, Catron County; Duck Creek, Grant County; San Francisco River, Catron County; San Simon Cienega, Hidalgo County; and Turkey Creek, Grant County (Rinne 1969, 1976; Hubbard et al. 1979; Bestgen and Propst 1989; Sublette et al. 1990; Propst 1999). All of these populations are now extirpated (Bestgen and Propst 1989), with the exception of Turkey Creek (Propst 1999; P. C. Marsh, Arizona State University [ASU] in litt. 2005). We consider Turkey Creek unstable-threatened because the population was recently decimated by wildfire, and nonnative species are present (B. Thompson, New Mexico Game and Fish Department [NMGF], in litt. 2005).
In Arizona, Gila chub are known to have occupied portions of the Salt, Verde, Santa Cruz, San Pedro, San Carlos, San Simon, San Francisco, and Agua Fria drainages in addition to smaller tributaries of the mainstem Gila River. Small remnant populations remain in most of these drainages with the exception of the Salt and San Simon Rivers, where all known populations have been extirpated (Weedman et al. 1996; Propst 1999).
In the Verde River basin, Walker and Spring creeks, located in Yavapai County, chub populations are considered stable-threatened populations; the population in Williamson Valley Wash, also in Yavapai County, is considered unstable-threatened. The Santa Cruz River has five tributaries with extant populations of Gila chub, which include Bear, Romero, and Sabino canyons (Pima County) that were established this year (these are considered unstable-threatened); Sheehy Spring (Santa Cruz
County) has an unstable-threatened population (Arizona Game and Fish Department [AGFD] 2005a); and Cienega Creek (Pima and Santa Cruz Counties) has a stable-threatened population of Gila chub. The San Pedro River Basin has four extant, stable-threatened populations: Bass, Hot Springs, and Redfield canyons (Graham and Pima Counties), and O'Donnell Canyon (Santa Cruz County; B. Rogers, The Nature Conservancy (TNC), in litt. 2005; D. Foster, AGFD in litt. 2005). There is an unstable-threatened population of Gila chub at T4 Spring in the Babocomari River (Santa Cruz and Cochise Counties; D. Duncan, U.S. Fish and Wildlife Service in litt. 2003). The San Carlos River and the Blue River are tributaries to the Gila River (Gila and Graham Counties) on San Carlos Apache tribal lands. We are aware that Gila chub are extant on the Reservation, but we do not have information to document the status of Gila chub in those drainages.
The San Francisco River has two tributaries with extant populations, Dix Creek in Greenlee County, Arizona, and Harden Cienega in Greenlee County, Arizona, and Grant County, New Mexico. Based on surveys in June 2005, these populations appear to be doing well and can be characterized as stable-threatened (McKell 2005). The Agua Fria River has two tributaries with stable-threatened populations, Silver and Sycamore creeks (Yavapai County), as well as two unstable-threatened populations in Little Sycamore Creek and Indian Creek (Yavapai County) (Weedman et al. 1996; A. Silas, U.S. Forest Service [FS], pers. comm. 2005). In addition, there are two introduced populations in the Agua Fria River, Larry Creek and Lousy Canyon (Yavapai County); both appear to be stable-threatened based on recent surveys. Populations of all of the Aqua Fria populations may have been affected by wildfires that occurred in summer 2005 (Knowles et al. 2005). Two tributaries of the Gila River in Arizona have extant populations of Gila chub: Eagle Creek (Graham and Greenlee Counties) has an unstable-threatened population, and Bonita Creek (Graham County) has a stable-threatened population (Weedman et al. 1996; Marsh 2005; H. Blasius, Bureau of Land Management (BLM), in litt. 2005).
In Mexico, Gila chub historically occupied significant portions of the Santa Cruz and San Pedro river basins. The current known distribution of Gila chub in Mexico has been reduced to two small spring areas, Cienega los Fresnos and Cienega la Cienegita, adjacent to the Arroyo los Fresnos (tributary of the San Pedro River), within 1.2 mi (2 km) of the Arizona-Mexico border (Varela-Romero et al. 1992). No Gila chub remain in the Mexican portion of the Santa Cruz River basin (Weedman et al. 1996).
Establishment of new populations of Gila chub has been attempted in six sites in Arizona; five sites remain extant. Lousy Canyon and Larry Creek (Yavapai County) are tributaries to the Agua Fria River that were stocked with 200 Gila chub from Silver Creek on July 6, 1995. Recent surveys indicate that these populations are doing well, with good recruitment. Gardner Canyon (Cochise County) was stocked with 150 Gila chub from Turkey Creek (Santa Cruz County) in July 1988. Follow up surveys in May 1995 did not detect Gila chub in Gardner Canyon; 2005 surveys also did not detect the species (AGFD 2005a). In May 2005, Gila chub that were salvaged from Sabino Canyon during the Aspen fire in 2003 were returned to Sabino Canyon and introduced into two other streams in the Santa Catalina Mountains: approximately 350 Gila chub were stocked into Sabino Canyon, 120 into Romero Canyon, and 85 into Bear Canyon (all in Pima County; AGFD 2005a). The status information presented above is summarized in Table 1.
Previous Federal Actions
For more information on previous Federal actions concerning the Gila chub, refer to the proposed rule to list the Gila chub as endangered with critical habitat published in the
Federal Register
on August 9, 2002 (67 FR 51948). On May 18, 2004, the Center for Biological Diversity filed a complaint against the Department of the Interior because the Service had not published a final rule for the Gila chub in a timely manner. On August 3, 2004, the United States District Court of Arizona ordered that we, via a stipulated settlement agreement, submit for publication to the
Federal Register
, a final rule by October 21, 2005 (
Center for Biological Diversity
v.
Norton
, No. CV 04-2061 TUC CRP). On August 31, 2005 (70 FR 51732), we published a notice to reopen the public comment period on the August 9, 2002, proposed rule for 30 days and announce the availability of the draft economic analysis, draft environmental assessment, and hearing dates for the proposed listing and critical habitat designation for the Gila chub.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed listing and designation of critical habitat for the Gila chub on August 9, 2002 (67 FR 51948), and in our notice to reopen the comment period (August 31, 2005; 70 FR 51732). We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule. We also requested information pertaining to any actions that affect the Gila chub, its current status, distribution, and threats, and the status of nonnative fishes in the historical range of Gila chub. We requested this information in order to make a final listing determination based on the best available scientific and commercial data. We published newspaper notices inviting public comment and announcing the public hearings in the following newspapers in Arizona and New Mexico: Albuquerque Tribune, Albuquerque Journal, the Arizona Republic, Daily Courier (Prescott), Santa Fe New Mexican, Silver City Daily Press, Sierra Vista Herald, Tucson Citizen, Arizona Daily Star (Tucson), the Bulletin (Sonoita), Eastern Arizona Courier (Safford), the Verde Independent, Camp Verde Bugle, and the Copper Country News (Globe). On September 13, 14, and 15, 2005, we held public hearings in Silver City, New Mexico; Safford, Arizona; and Camp Verde, Arizona, respectively, to solicit comments on the proposed rule.
During the first comment period that opened on August 9, 2002, and closed on October 9, 2002, we received 97 pieces of correspondence (e-mails, letters, and faxes). Of these, we received 5 comments from Federal agencies, 1 from a State representative, and 91 from organizations or individuals. Thirty-one of the comments were requests for public hearings of which 26 concerned Willow Creek. During the second comment period that opened on August 31, 2005, and closed on September 30, 2005, we received 29 comments. Of these latter comments, 6 were from peer reviewers, 1 from another nation, 2 from Federal agencies, 3 from State agencies, and 17 from organizations or individuals.
Of the written comments received during the first comment period, 40 supported, 17 were opposed, and 44 included comments or information but did not express support for or opposition to the proposed listing and critical habitat designation. Of the written comments received during the second comment period, 18 supported, 0 were opposed, and 10 included comments or information but did not express support for or opposition to the proposed listing and critical habitat designation. We received a number of comments concerning Willow Creek in
Catron County, New Mexico. Willow Creek is neither occupied nor historical habitat for Gila chub and was not part of the proposed critical habitat determination. In addition, there are no plans to establish a population of Gila chub in Willow Creek. Therefore, these comments will not be addressed further. All substantive information written and verbal, provided during the public comment periods, either has been incorporated directly into this final determination or is addressed below. We also wish to recognize that the Mexican Federal Government commented on the proposed rule; the Director de Conservaci
on de la Vida Silvestre, Secretario de Medio Ambiente y Recursos Naturales, did not provide specific comment, but generally supported the listing. Similar comments are grouped together by issue.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from eight knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles, and that represented Federal agencies, State agencies, university researchers, and private consultants. We received responses from six of the peer reviewers; two of these were from State biologists via the Arizona and New Mexico Game and Fish Departments and were not specifically identified as peer review, and are addressed below as “State Comments.” Five of the six peer reviewers, including both State wildlife agencies, concurred with our methods and conclusions, supported our determination that the species is endangered, and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. A sixth peer reviewer suggested that we may have overestimated the extinction threat to Gila chub, and recommended that we consider listing the species as threatened. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
Peer Reviewer Comments
(1)
Comment:
Limiting critical habitat to only those areas that are occupied will not achieve the purposes of the Act and satisfy the definition of critical habitat, particularly when the proposed rule states that stabilization of the Gila chub at its present population level and distribution will not achieve conservation. Critical habitat should be expanded to include unoccupied areas that provide connectivity between populations to allow gene flow and repopulation of formerly occupied suitable habitat.
Our Response:
Section 3(5)(A) of the Act defines critical habitat as the specific areas within the geographical area occupied by the species on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection. In our critical habitat designation, we use the provisions outlined in section 3(5)(A) of the Act to evaluate those specific areas that contain the features that are essential to the conservation of the species and that may require special management considerations or protections. Critical habitat designation for the Gila chub includes many areas of known occupancy that have features that are essential to the conservation of the species, as well as one unoccupied area that we consider essential to the conservation of the Gila chub because of its connection with or proximity to known occupied areas. This is discussed in further detail in the “Justification for Including Unoccupied Areas” section below. We believe we have considered and applied to this designation the best available scientific information regarding the Gila chub. Thus, while not all areas important for potential Gila chub recovery were proposed as critical habitat, we believe this designation defines those areas that are essential. We also acknowledge that critical habitat can contribute to the overall recovery strategy for a listed species, but does not, by itself, achieve recovery. We encourage Federal and State agencies, Tribal governments, municipalities, private groups, and landowners to work with us as we develop a recovery plan for the Gila chub and to continue to work towards establishing additional populations and aid in the recovery of the species. As discussed in this rule, even if an area is not designated as critical habitat, it does not mean that area is not important for Gila chub recovery.
(2)
Comment:
Listing the Gila chub may not be supported because the Service's assertion that the Gila chub has lost 85-90 percent of its habitat is based on the assumptions that the Gila chub was distributed throughout contiguous river reaches containing suitable habitat, that status information indicates that 60 percent of the currently known populations are stable or secure, and that data necessary to determine status (i.e. quantitative abundance estimates and accurate historical records) for Gila chub are lacking. The Service should consider that the species may better meet the definition of threatened.
Our Response:
We disagree and refer to the “Background” section above for detailed information on our estimate of habitat loss. We also note that in some cases, entire rivers that were habitat for Gila chub have largely disappeared or been so degraded they no longer support the species (e.g., the Santa Cruz and San Pedro Rivers; Weedman et al. 1996; Tellman et al. 1997). The Gila chub has been eliminated from 12 streams (see Table 1). Sabino Creek would have been lost due to wildfire had it not been salvaged by Service, AGFD, and the FS in 2003, and three additional populations were salvaged this year in response to wildfires; the status of these populations post-fire has not yet been ascertained. Only two populations are free from nonnative species, and all populations are small and isolated and thus at risk (Fagan et al. 2002). The past decline, current threats, and status of Gila chub are well documented and reflected in this final rule.
(3)
Comment:
Conservation actions since the proposed rule was published have been insufficient to improve the status of the species to the point it is no longer endangered or threatened, indicating that existing regulatory protections, including concerted efforts by the States to conserve the Gila chub, are not sufficient to prevent its extinction.
Our Response:
We agree that the status of the Gila chub has not improved since the publication of the proposed rule, despite efforts to conserve the species. However, we value the cooperative conservation partnerships that have been formed between Federal and State agencies, municipalities, and the public to work to improve the status of the Gila chub, and we recognize that the decline of the species occurred over a number of years and that it would be difficult to address all threats facing the species in the short amount of time since the proposed listing. We will continue to pursue such partnerships and conservation projects involving the Gila chub following this final rule and as we develop a recovery plan. In “Inadequacy of Existing Regulatory Mechanisms” (Factor D) below, we discuss existing regulatory mechanisms as they relate to the protection being afforded to the Gila chub.
(4)
Comment:
Listing the Gila chub will alienate stakeholders that otherwise would have been amenable to conserving the species because the Act is so restrictive. Conservation agreements between the various
stakeholders would be a more effective method to conserve the Gila chub.
Our Response:
As discussed above, we agree that cooperative conservation utilizing partnerships between Federal and State agencies, municipalities, and the public is a good approach to conservation, and we have pursued such partnerships on numerous projects involving the Gila chub and will continue these partnerships after this final rule to list the chub as endangered is effective. However, we are required to list a species as endangered if we determine that the species is likely to become extinct throughout all or a significant portion of its range. After evaluating the current status of the species and threats to extant populations in the five factor analysis below, we have determined that the Gila chub is endangered.
(5)
Comment:
The Service needs to provide a more explicit explanation of the primary constituent elements (PCEs) that exist in each segment of critical habitat.
Our Response:
All of the areas that we have designated as critical habitat have one or more of the PCEs. We have provided in our area descriptions (below), those primary constituent elements that are present in each of the critical habitat areas.
(6)
Comment:
The confusing taxonomic history of the Gila chub has led to errors in the Service's estimation of its current and former range. The Service has thus likely overstated the species' historic range, inflated the degree to which the species has declined, and thus exaggerated its need for listing.
Our Response:
Gila intermedia
is part of the
Gila robusta
species complex that includes six other taxa:
G.cypha, G. elegans, G. nigra, G. robusta, G. r. jordani,
and
Gila seminuda
(Gerber et al. 2001); all of these species have experienced declines and face similar threats. The evolution of the species in the complex is novel in some respects, and research on the complex has led to insight about the various ways in which speciation occurs (Gerber et al. 2001; Minckley and DeMarais 2000). However, we have found that the taxonomy of the Gila chub has come to be well understood (Minckley and DeMarais 2000), and that Gila chub as a species is valid and qualifies as a taxon that may be listed under the Act (50 CFR 424.02(k)). As Minckley and DeMarais (2000) illustrate, the three forms of
Gila
represent distinct species that have consistently and repeatedly been identified in the same streams; based on this work, we are confident of our evaluation of the status of the species, its formerly occupied range, and its current distribution. Our consideration of Gila chub with regard to its status and consideration for listing has evolved as more information has become available regarding its biology, status, and threats, which is reflected in this final rule. We note that the status of the Gila chub has appreciably declined over the last 25 years, and we have information to document new threats facing the species, such as frequent catastrophic fires, also noted by both AGFD and NMGF in their comments on the proposed rule (B. Broschied, AGFD, in litt. 2005; B. Thompson, NMGF, in litt. 2005).
(7)
Comment:
Since the Gila chub resembles closely related taxa (i.e., the roundtail and headwater chubs), its listing will cause substantial enforcement problems for enforcing “take.” This could potentially cause significant economic impact to stakeholders, especially if the Service lists these other forms under similarity of appearance as defined in Section 4(e) of the Act. This problem is confounded because these forms also apparently interbreed.
Our Response:
Although the Gila, roundtail, and headwater chubs are closely related and appear similar, we find no need for listing the latter two under similarity of appearance for several reasons. The primary reason is that these species occur in geographically separate places. As Minckley and DeMarais (2001) stated, “persistent parapatry [geographic separation] of morphologically distinguishable
robusta,
intermedia,
and
nigra
[roundtail, Gila, and headwater chubs], has been documented, confirmed, and reconfirmed by collections since the 1920s * * * In no instance was any two of the three caught at the same locality.” Because roundtail chub is considered a sport fish in Arizona, we have considered unintended harvest of Gila chub as a potential threat to the species under our five factor analysis below. We do not believe this represents a significant threat to Gila chub because AGFD prohibits the collection of Gila chub without a permit, and allows possession of only 1 roundtail chub over 13 inches in total length (AGFD 2005c). Gila chub do not achieve this size, thus the existing AGFD regulations adequately protect Gila chub from this threat. Although the headwater chub is thought to be of hybrid origin from hybridization of related chubs in geologically recent times (Minckley and DeMarais 2001), we know of no evidence that the current three forms hybridize in nature.
(8)
Comment:
Listing the Gila chub may not be the most effective method for removing threats; the States have primary authority over regulating all non-listed aquatic organisms, including nonnative species, a primary threat to the Gila chub.
Our Response:
We realize that there are existing authorities which could and often do provide protection for the Gila chub, and the States have been and will continue to be a key partner in the conservation of the Gila chub. However, we have determined that the protection afforded by existing regulatory mechanisms is insufficient to preclude the listing of the Gila chub (see Inadequacy of Existing Regulatory Mechanisms (Factor D) below).
General Comments Issue 1: Biological Concerns
(9)
Comment:
The lateral extent of critical habitat should be expanded to include the 100-year floodplain or entire watersheds.
Our Response:
Critical habitat includes the stream channels within the identified stream reaches defined by upstream and downstream boundaries, as well as areas within these reaches potentially inundated during high flow events. Critical habitat also includes the area of bankfull width plus 300-feet on either side of the banks. The bankfull width is the width of the stream or river at bankfull discharge, i.e., the flow at which water begins to leave the channel and move into the floodplain (Rosgen 1996). Bankfull discharge, while a function of the size of the stream, is a fairly consistent feature related to the formation, maintenance, and dimensions of the stream channel (Rosgen 1996). This 300-foot width defines the lateral extent of those areas that contain the features that are essential to the species' conservation.
We determined the 300-foot lateral extent for several reasons. First, the implementing regulations of the Act require that critical habitat be defined by reference points and lines as found on standard topographic maps of the area (50 CFR 424.12). Although we considered using the 100-year floodplain, as defined by the Federal Emergency Management Agency (FEMA), we found that it was not included on standard topographic maps, and the information was not readily available from FEMA or from the U.S. Army Corps of Engineers for the areas designating critical habitat. We suspect this is related to the remoteness of various stream reaches. Therefore, we selected the 300-foot lateral extent, rather than some other delineation, for three biological reasons: (1) The
biological integrity and natural dynamics of the river system are maintained within this area (i.e., the floodplain and its riparian vegetation provide space for natural flooding patterns and latitude for necessary natural channel adjustments to maintain appropriate channel morphology and geometry, store water for slow release to maintain base flows, provide protected side channels and other protected areas, and allow the river to meander within its main channel in response to large flow events); (2) conservation of the adjacent riparian area also helps provide essential nutrient recharge and protection from sediment and pollutants; and (3) vegetated lateral zones are widely recognized as providing a variety of aquatic habitat functions and values (e.g., aquatic habitat for fish and other aquatic organisms, moderation of water temperature changes, and detritus for aquatic food webs) and help improve or maintain local water quality (see U.S. Army Corps of Engineers' final notice concerning Issuance and Modification of Nationwide Permits, March 9, 2000, 65 FR 12818-12899). Please see the section entitled “Critical Habitat” below for more information.
(10)
Comment:
Using a 300-foot distance from bankfull width as a lateral extent of critical habitat captures areas in some segments that are outside the floodplain, and thus should not be considered essential to Gila chub.
Our Response:
In the proposed rule, critical habitat segments were proposed to include “the stream channels within the identified stream reaches and areas within these reaches potentially inundated during high flow events.” Our intent is to capture areas that correspond to the 100-year floodplain. We determined that the 300 foot distance from the bankfull width was the best method to define this area. As described elsewhere in this rule, we find that all the critical habitat areas contain sufficient PCEs to provide for one or more of the life history functions of the Gila chub. We have also refined the designation, based upon comments received, to define more precisely the boundaries of the critical habitat designation.
(11)
Comment:
Critical habitat should be expanded to include additional occupied habitat in Indian Creek, Little Sycamore Creek, Sycamore Creek, and Bonita Creek; critical habitat in Spring Creek should be contracted to exclude unsuitable habitat at both ends.
Our Response:
We have slightly adjusted a number of the critical habitat stream segments, both to correct errors and to better capture areas of occupied habitat that contain the features that are essential to the conservation of the species. Also, Bonita Creek, Blue River, and portions of Spring and Cienega creeks have been excluded from the designation pursuant to 4(b)(2) of the Act.
(12)
Comment:
Birds or other native predators may be a threat, as opposed to anthropogenic (man made) causes.
Our Response:
Although a number of piscivorous birds occur throughout the range of the Gila chub, such as the great blue heron (
Ardea herodias
) and belted kingfisher (
Ceryle alcyon
), we found no information to support bird predation as a significant threat to Gila chub. Bird predation can, however, be a significant concern at fish hatcheries (U.S.D.A. Animal Plant Health Inspection Service 1997), where fish are concentrated in ponds or raceways, and thus may be a consideration in recovery actions for Gila chub that require use of such facilities.
(13)
Comment:
Gila chub is a member of a species assemblage in the genus
Gila
along with six other species, all of which warrant listing as endangered under the Act.
Our Response:
We are aware that
Gila intermedia
is part of a species complex. We also note that for taxonomically complex groups that warrant conservation, species-based approaches may be inadequate, and new approaches that conserve evolutionary processes that generate taxonomic biodiversity may be a preferable conservation strategy (Ennos et al. 2005). However, all of the fishes of the
Gila robusta
species complex are currently listed as endangered under the Act, with the exception of
G. nigra
and
G. robusta
(U.S. Fish and Wildlife Service 2005a). With regard to these two unlisted species, we published a positive 90-day finding on a petition to list a distinct population segment of
G. robusta
in the lower Colorado River basin, and to list
G. nigra
throughout its range, on July 12, 2005 (70 FR 39981).
G. robusta
is also part of a multistate conservation agreement that addresses conservation of the species throughout its range (Utah Department of Natural Resources 2004).
(14)
Comment:
The threats to Gila chub are largely unsubstantiated; much of the literature is overly general in nature and is not site- or species-specific, and thus the listing of Gila chub is not warranted.
Our Response:
The threats to Gila chub are well documented (see “Summary of Factors Affecting the Species” section below). The current status of the species is that it has been eliminated from approximately 85 to 90 percent of its formerly occupied habitat as a direct result of these threats (Weedman et al. 1996), and it currently exists as a collection of very small, isolated, and highly fragmented populations (Weedman et al. 1996; Service files presented in Table 1). In some cases, such as Sheehy Spring, a population exists in a habitat not much larger than a common backyard swimming pool. Because of this, the species is much more susceptible to threats such as predation and competition from nonnative species (Dudley and Matter 2000), habitat destruction from various land use practices (Weedman et al. 1996), stochastic events such as wildfire (Knowles et al. 2005), and an increased risk of extinction due the high degree of fragmentation of the remaining populations (Fagan et al. 2000). Although some of our citations are not specific to these species or the geographic area, the citations offer evidence that certain threats exist because similar examples have been documented elsewhere, and based on biological principles and effects observed in other fishes, we can draw reasonable conclusions about what we would expect to happen to this species were it not listed.
(15)
Comment:
The critical habitat designation is overly broad because it includes areas that are unoccupied and that have not been shown to be essential to the conservation of the species. Eagle, Turkey, Post, and Little Sycamore creeks are not occupied and so should not be included in critical habitat without a justification that these areas are essential to the conservation of the species. Critical habitat areas are not recovery areas, and critical habitat does not, in itself, lead to recovery of a species.
Our Response:
Gila chub were documented in Eagle Creek in 2005 (Marsh 2005), and in Little Sycamore Creek in 2005 (A. Silas, FS, pers. comm. 2005). In this final rule, all of the critical habitat areas have been documented as occupied by Gila chub within the last 5 years, with the exception of one: Turkey Creek (AZ). Gila chub were last detected in Turkey Creek in 1991. This tributary is connected to O'Donnell Creek, which was documented as occupied in 2004 (D. Foster, AGFD, in litt. 2005), and while we believe this stream can be recolonized naturally by Gila chub in high water years, we are also working with the AGFD to reestablish Gila chub in this stream. Turkey Creek contains sufficient PCEs to provide for one or more of the life history functions of the Gila chub. We provide further information on our determination that this area is essential to the conservation
of the species, pursuant to the definition in section 3(5)(A)(ii) of the Act, in the “Justification for Including Unoccupied Areas” section below. We are not including Post Canyon in the final designation (see the “Summary of Changes” section below).
(16)
Comment:
The term “banks” needs to be defined in the description of critical habitat.
Our Response:
As mentioned in response to comment 9 and 10 above, and discussed in the “Critical Habitat” discussion below, we defined “bank” to mean the line at which the stream is at “bankfull” discharge, as defined by Rosgen (1996), i.e., the flow at which water begins to leave the channel and move into the floodplain. While a function of the size of the stream, bankfull width is a consistent feature related to the formation, maintenance, and dimensions of the stream channel. Bankfull discharge is a quantifiable measure that is essential to classifying streams, to reducing variability in diagnosing stream impairment, and to determining management objectives for a given stream reach (Rosgen 1996).
(17)
Comment:
The Central Arizona Project (CAP) canal does not result in the transfer of nonnative species into the Gila River Basin.
Our Response:
There is a large body of research to support the contention that the CAP is a potential vector for nonnative aquatic species (U.S. Fish and Wildlife Service 2001a). Additionally, one nonnative species has been documented to have entered the Gila River Basin through the canal: striped bass (
Morone saxatalis
); another, pacu (
Piaractus brachypomus
) has invaded the Gila River Basin, potentially through the CAP; and numerous nonnative species appear to have increased their range within the Gila River Basin via the canal (U.S. Fish and Wildlife Service 1999a, 1999b, 2001a, 2001b).
We completed a section 7 consultation with the Bureau of Reclamation (Reclamation) on the effects of the CAP, and the resulting biological opinion addressed the transfer of nonnative species into the Gila River drainage (U.S. Fish and Wildlife Service 2001b). Recognizing the potential of the CAP to transfer nonnative species into the Gila River Basin and threaten listed native fish populations, Reclamation proposed to build a number of fish barriers to protect native fish populations in the Gila River Basin as a conservation measure. Building a concrete barrier on the lower segments of tributary streams is thought to prevent nonnative fish species from moving upstream, which protects the native fish populations above the barrier while allowing downstream passage of native fish. Future planned barriers include one on Bonita Creek, which is occupied by the Gila chub.
(18)
Comment:
The rule does not make clear what specific conservation actions would be necessary in proposed reaches of critical habitat to improve them to desired conditions for Gila chub.
Our Response:
All of the stream reaches included in the critical habitat designation contain sufficient PCEs to provide for one or more of the life history functions of the Gila chub and all but one area is considered occupied by Gila chub. During the development of a recovery plan for the Gila chub, specific voluntary actions will be identified to reach recovery, including measures to help maintain and improve habitat conditions for the Gila chub. For example, some measures may include restoring a natural flow regime, maintaining or establishing bank stability, providing instream cover such as downed logs and undercut banks, and maintaining healthy riparian vegetation and good water quality conditions (i.e. temperature, pH, few contaminants, low turbidity, adequate levels of dissolved oxygen).
(19)
Comment:
What factual scientific data is available to verify that Gila chub was native to the Verde River?
Our Response:
Gila chub were first reported as being collected from the Verde River Basin in 1890 at Chino, Arizona (Weedman et al. 1996). Collection records since that time include the following streams in the basin, some of which are still occupied by the species (see “Background” section above): Big Chino Wash, Oak Creek, Spring Creek, Walker Creek, Red Tank Draw, and Williamson Valley Wash (Weedman et al. 1996).
(20)
Comment:
It is unclear how designating critical habitat will ensure that these areas will be suitable for future introductions of Gila chub.
Our Response:
Designating critical habitat serves to identify the areas that contain the features that are essential to the conservation of the species, thus alerting Federal agencies to consider the species' conservation in design and implementation of the agencies' management actions. Designating critical habitat likewise provides guidance to non-Federal landowners on why these areas need special management and protection, as well as what activities are, or are not, likely to adversely affect critical habitat, see “Section 7” section below. Also, section 4(f) of the Act (16 U.S.C. 1533(f)) requires the preparation of a recovery plan for each listed species. Recovery plans provide guidance on what actions, including habitat maintenance and restoration, are necessary to recover a species. Designation of critical habitat can play an important role in providing a summary of the scientific knowledge of the habitat needs of a species. Likewise, designation of critical habitat helps the recovery process by providing information on how actions might impact the habitat of the species and information that can be used to develop a recovery plan.
(21)
Comment:
The proposed rule does not present sufficient evidence to conclude that the fish in Bonita Creek are Gila chub.
Our Response:
The population of
Gila
in Bonita Creek is recognized as Gila chub as described by Weedman et al. (1996) and Minckley and DeMarais (2000).
(22)
Comment:
The primary threat to Gila chub in Bonita Creek is nonnative aquatic species. The wells and infiltration gallery operated by the City of Safford on Bonita Creek create a barrier to the upstream migration of nonnative species, protecting Gila chub, and should probably be enhanced. The city's activities likely are the reason a population of Gila chub persists in Bonita Creek.
Our Response:
We agree. While the city's diversion of water does eliminate some stream habitat for the Gila chub, the barrier it creates to the upstream movement of a host of nonnative fishes from the mainstem Gila River is a conservation benefit to the species, and has likely contributed to the long-term persistence of the Bonita Creek population. We are working with Reclamation to create a physical barrier in Bonita Creek to provide long-term protection to Bontia Creek from invasion of nonnative fishes located downstream of this chub population.
(23)
Comment:
Disconnected reaches such as Mineral Creek do not support the purported goal that critical habitat provides connecting habitats between populations of Gila chub that are separated from each other.
Our Response:
As stated in our proposed rule (August 9, 2002; 67 FR 51948), connectivity is one of several important considerations in selecting areas included in this critical habitat designation. Also included are factors specific to each river system, such as presence of the PCEs, protection of genetic diversity, and representation of major portions of the species' historical range.
(24)
Comment:
The lower segment of Cienega Creek proposed as critical habitat and also defined in the August 31, 2005, notice (70 FR 51732) does not
contain the PCEs to support Gila chub, and the Service has incorrectly stated that this segment is entirely county-owned. Portions of this segment are privately owned, there are sand and gravel mining operations that do not contain the PCEs to support the species, and the segment is unoccupied by the species.
Our Response:
Gila chub were collected in lower Cienega Creek in 2002 (AGFD Heritage Data Management System) and documented in this critical habitat segment in 2005 (see Table 1), and we have found that the segment does contain the PCEs necessary to support the species. Sand and gravel mines do not contain the PCEs for the Gila chub and are not considered to be critical habitat. We have corrected the land ownership information to reflect the private ownership of parcels within this segment, and we have excluded privately owned lands in Cienega Creek due to the potential economic impacts identified in our economic analysis (see “Exclusions Under Section 4(b)(2) of the Act” section below).
General Comments Issue 2: Procedural and Legal Compliance
(25)
Comment:
Designation of critical habitat and species reintroductions will lead to undue restrictions on private landowners, and will negatively impact residents of nearby local communities. For example, designating critical habitat in Spring Creek would adversely affect the nearby community by interfering with road and bridge maintenance, flood damage repair, groundwater withdrawal for municipal use, treated effluent discharge to the creek from the community, and the recreational opportunities of nearby residents.
Our Response:
In general, private landowners are not affected by critical habitat. Critical habitat directly affects only Federal actions. Pursuant to section 7 of the Act, Federal agencies ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat. 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 land; require a Federal permit, license, or other authorization; or involve Federal funding (see “Effect of Critical Habitat Designation” section below). While many of the actions mentioned in the comment would involve a Federal action agency, and may trigger a section 7 consultation because Spring Creek is currently occupied, there is also a requirement to consult under section 7 for affects to the listed species alone, regardless of whether critical habitat is designated. We have also analyzed the impact of designating critical habitat on small entities, including small communities, in our draft environmental assessment and draft economic analysis. Based on these analyses, we have concluded that, although the designation of critical habitat will result in measurable social and economic effects to small communities, these will not be significant. We have also excluded privately owned lands in Spring Creek and in Cienega Creek due to potential economic impacts as identified in our economic analysis (see “Exclusions Under Section 4(b)(2) of the Act” section below).
(26)
Comment:
The Gila chub provides no sport fish opportunity and is of no economic value, so why should we protect it?
Our Response:
Congress has decided that any species threatened with extinction should be protected, without regard to economic value of the species or economic impact of the designation.
(27)
Comment:
Adding Gila chub to the endangered species list will deprive citizens of their right to vital water supplies.
Our Response:
Listing the Gila chub under the Act requires that Federal agencies consult with the Service on activities involving Federal funding, a Federal permit, Federal authorization, or other Federal actions. Formal consultation (under section 7 of the Act) is required when activities are likely to adversely affect the Gila chub or its designated critical habitat. Additionally, private citizens are prohibited from engaging in any activity that would result in “take” of a listed species (see the “Available Conservation Measures” section below for further information). Landowners may obtain a permit to “take” Gila chub incidental to otherwise lawful activities, such as withdrawing water from a stream, through a 10(a)(1)(B) permit and Habitat Conservation Plan. We note also that surface water flow within the Gila River basin is fully appropriated and subject to ongoing adjudication (U.S. Fish and Wildlife Service 2005b). The Arizona Department of Water Resources regulates surface water withdrawal via the Public Water Code, a law that provides that a person must apply for and obtain a permit in order to appropriate surface water. Groundwater pumping also has limited regulation under the Arizona Groundwater Code. However, the legal relationship between groundwater and surface water has not been established in Arizona. The New Mexico Office of the State Engineer administers groundwater and surface water rights in New Mexico. The New Mexico State Engineer's approval is required for almost every use of water in New Mexico. For example, permission is needed to make a new appropriation, drill a well, divert surface water, or change the place or purpose of use of an existing water right. Thus, any new claims on surface water or groundwater water in either State would also be subject to the permitting authority of these respective agencies.
(28)
Comment:
The Service has failed to make a 12-month finding on the Gila chub, violating the Act.
Our Response:
A 12-month finding may be published concurrently within a proposed rule (50 CFR 424.14(b)(3)(ii)). The proposed rule for the Gila chub published in the
Federal Register
on August 9, 2002, constituted our 12-month finding (67 FR 51948).
(29)
Comment:
The Service needs to provide a more explicit explanation of the PCEs that exist in each segment of critical habitat.
Our Response:
All of the areas that we have designated as critical habitat have one or more of the primary constituent elements. We have described in our area descriptions below those primary constituent elements present in each of the critical habitat areas.
(30)
Comment:
Areas proposed as critical habitat already have adequate management and protection. The Service should consider excluding these areas, and should also consider possible exclusions of Bonita Creek given the economic importance to the City of Safford and nearby communities.
Our Response:
In our critical habitat designation we use the provisions outlined in section 3(5)(A) of the Act to evaluate those specific areas defined by the features essential to the conservation of the species that may require special management considerations or protections. In our proposed rule (August 9, 2002; 67 FR 51948), we excluded Sheehy Spring in the San Rafael Valley and Wildcat and Double R canyons on the Muleshoe Preserve because these lands were managed under a conservation easement held by The Nature Conservancy and managed under the Muleshoe Ecosystem Management Plan, respectively (see “Exclusions Under Section 4(b)(2) of the Act” section below). Additionally, we have excluded the Blue River and part of Bonita Creek on lands of the San Carlos Apache Tribe from the designation of critical habitat for the Gila chub pursuant to section 4(b)(2) of the Act as discussed below (see “Exclusions Under Section 4(b)(2) of the
Act” section below). The San Carlos Apache Tribe has completed a fisheries management plan that includes the Gila chub and provides special management for this species. We have also formed a partnership with the City of Safford, BLM, and Reclamation to manage lands on Bonita Creek downstream of the San Carlos Apache Tribe. Based on this partnership, we have excluded Bonita Creek downstream of San Carlos Apache lands pursuant to section 4(b)(2) of the Act as discussed below (see “Exclusions Under Section 4(b)(2) of the Act” section below).
(31)
Comment:
The Service has not used the best scientific and commercial data available; for example, Weedman (1996) makes no mention of Mineral Creek, and the Service's proposed rule has only a vague reference to a survey in 2000 that found Gila chub but not in the reach identified as critical habitat.
Our Response:
With regard to presence/absence information, we use peer-reviewed literature, collection records, unpublished reports, or personal communications with qualified field biologists. In this case, we have several pieces of information to support the occupancy of Mineral Creek by Gila chub. Gila chub were first collected from Mineral Creek in 1993 by the AGFD (AGFD Native Fish Database), although this was not reported by Weedman et al. (1996). Gila chub were first reported from Mineral Creek in peer-reviewed literature in 2000 (Minckley and DeMarais 2000). The AGFD again surveyed Mineral Creek in 2000 and reported collecting Gila chub (Weedman 2000).
(32)
Comment:
There is not enough information available to determine Gila chub critical habitat.
Our Response:
While we acknowledge that there are gaps in our understanding of the biology of the species, we have sufficient information to identify those geographic areas occupied by the species that contain the features essential to the species and require special management considerations or protection.
(33)
Comment:
It is unclear if the proposed listing of Gila chub as endangered is regional in nature or confined to those areas of critical habitat.
Our Response:
The listing of the Gila chub is rangewide; thus upon the effective date of this rulemaking Gila chub will be considered endangered wherever found (See table in the “Regulation Promulgation” section below). Areas designated as critical habitat in this final rule represent a subset of the entire range of the species (see Table 1 below).
(34)
Comment:
The proposed designation does not provide adequate information about the population in Spring Creek, and specifically the threats to this population. Thus listing in Spring Creek is not justified.
Our Response:
When we consider a taxon for listing, unless we are considering a distinct population segment, we list the entire taxon, not individual populations. With respect to Spring Creek, this tributary was surveyed in 2005 on Forest Service lands in the middle of the area, and Gila chub were found to be abundant with multiple year classes represented, indicating good recruitment. The threats to the species are addressed below in the “Summary of Factors Affecting the Species” section.
(35)
Comment:
The Service has designated critical habitat on tribal land in areas where the Service admits it does not have current status information, and yet the Service has excluded other areas on private land due to a lack of information.
Our Response:
We have excluded lands of the San Carlos Apache Tribe from the designation pursuant to section 4(b)(2) of the Act (see “Exclusions Under Section 4(b)(2) of the Act” section below). The San Carlos Apache Tribal lands were the only tribal lands involved in this final designation.
(36)
Comment:
The Service knew in 1983 that the Gila chub warranted listing, despite gaps in available information. The 19-year delay resulted in its status declining further, but represents a good example that existing regulatory protections are inadequate.
Our Response:
We did first consider conservation of the Gila chub in 1982 when the species was listed as a category 1 candidate species (see “Previous Federal Actions” from the proposed rule, August 9, 2002, 67 FR 51948). We agree that we lacked much of the information we now have on the species, including a status review conducted by the AGFD (Weedman et al. 1996). We also agree that the status since that time has deteriorated, reflecting the severity of the threats to the species, including the lack of protection afforded by other forms of regulation (see “Inadequacy of Existing Regulatory Mechanisms” section below).
(37)
Comment:
The State of Arizona has initiated no actions to assess the status of or protect this species.
Our Response:
We disagree. The AGFD assisted the BLM with the establishment of Gila chub in Lousy Canyon and Larry Creek in 1995. The AGFD initiated the establishment of Gila chub into Romero and Bear Canyons concurrent with the reestablishment of Gila chub that were salvaged from the Aspen Fire into Sabino Canyon. AGFD has initiated several other reestablishment efforts of Gila chub in the Santa Cruz and San Pedro river basins that will likely take place in 2005 or 2006.
The Gila chub is considered a Wildlife of Special Concern in Arizona (AGFD 2005b), although this provides no regulatory protection. Arizona Game and Fish Commission Order 41 prohibits collection of, or fishing for, Gila chub in Arizona, except where such collection is authorized by special permit (AGFD 2005c). The AGFD does regulate the use of live bait and has restricted use of live bait in most of the Gila River system in Arizona (AGFD 2005c), which helps to reduce the number of nonnative species released into the Gila chub's habitat.
(38)
Comment:
The Service has not provided a “takings analysis.”
Our Response:
We conducted a takings analysis at the time of the proposed rule and as part of this final rule. The takings implications assessment concludes that the designation of critical habitat for the Gila chub does not pose significant takings implications.
(39)
Comment:
The Service should have evaluated existing conservation efforts under its Policy for Evaluation of Conservation Efforts (PECE) when making Listing Decisions.
Our Response:
Throughout this final rule, we have discussed ongoing conservation efforts of various agencies, and we have evaluated how these efforts have affected the status of and threats to the Gila chub with regard to listing. Our PECE policy refers to formalized efforts that are directed at conservation of a species. We are aware of no such efforts for the Gila chub; further, recent and ongoing actions to conserve the species have resulted in some success, but have been unable to improve the status of the Gila chub since the proposed rule.
(40)
Comment:
The Service should not designate critical habitat in Lousy Canyon and Larry Creek because these were relatively recent introductions of the species and extending the protection of critical habitat to these systems may not be supported because they may not have the PCEs necessary to support the long-term persistence of the Gila chub.
Our Response:
Gila chub were introduced into Lousy Canyon and Larry Creek in 1995. Since that time, these streams have been surveyed for fishes on a frequent basis, and Gila chub have consistently been documented, and are thriving, despite drought and wildfire events that threatened other
nearby populations of Gila chub. We believe that because Gila chub have persisted, and thrived, for 10 years in these systems, both these streams contain the PCEs necessary to support Gila chub. However, these stream segments are very small, isolated, and threatened by livestock grazing and the potential for wildfire. Given this information, we have found that Lousy Canyon and Larry Creek meet our definition of critical habitat because they have the physical and biological features essential to the conservation of the species, and require special management consideration.
(41)
Comment:
The Service cannot exclude tribal lands from the designation based on the development of a fisheries management plan because exclusions based on plans that are not part of the administrative record is improper, and existing case law (
Center for Biological Diversity
v.
Norton
) clearly rejected the Service's policy of solely excluding lands from critical habitat designations based on the rationale that “additional special management is not required if adequate management or protection is in place.”
Our Response:
The San Carlos Apache Tribe submitted a Fishery Management Plan to us on September 27, 2005, during the public comment period on the proposed rule. We have determined that it is appropriate to exclude critical habitat from the San Carlos Apache tribal lands as defined under section 4(b)(2) of the Act.
General Comments Issue 3: National Environmental Policy Act (NEPA) Compliance and Economic Analysis
(42)
Comment:
The Service has not provided a NEPA analysis or economic analysis.
Our Response:
We announced the availability of a draft NEPA analysis and draft economic analysis for the proposed designation of critical habitat for the Gila chub for public comment on August 31, 2005 (70 FR 51732). We have finalized these documents, and they are available to the public (see
ADDRESSES
section above), and online at
http://www.fws.gov/arizonaes/
.
(43)
Comment:
Designation of critical habitat will ruin property values.
Our Response:
Critical habitat designations do not by themselves constitute a burden in terms of Federal laws and regulations on private landowners carrying out private activities. When Federal approval or permit is required, or Federal funds are involved with a project proposed on private property that is likely to adversely modify or destroy critical habitat, then the critical habitat designation imposes Federal regulatory compliance obligations that can affect private landowners. Absent Federal approval, permits, or funding, the designation does not affect activities on private lands. Based on our economic analysis, we have determined that economic impacts from the designation of Gila chub critical habitat will not have a substantial or significant effect on small business entities.
(44)
Comment:
The proposed rule has not evaluated the economic effect of critical habitat on the San Carlos Apache Tribe as required in section 4(b)(2). The Service should not designate critical habitat on tribal land to avoid economic impacts to the tribe.
Our Response:
We have evaluated the economic impacts to the San Carlos Apache Tribe in our economic analysis, which we have made available to the public as a draft and final report. The final economic analysis is available online (
http://www.fws.gov/arizonaes/
). We have excluded the San Carlos Apache tribal lands from the designation (see the “Exclusions Under Section 4(b)(2) of the Act” section below).
(45)
Comment:
The draft economic analysis provides the costs to be used to judge the benefits of exclusion, but fails to analyze the benefits of inclusion. One commenter stated that economic benefits could include tourism to healthy riparian systems and water quality benefits to communities.
Our Response:
In the context of a critical habitat designation, the primary purpose of the rulemaking (i.e., the direct benefit) is to designate areas in need of special management that contain the features that are essential to the conservation of listed species.
The designation of critical habitat may result in two distinct categories of benefits to society: (1) Use; and (2) non-use benefits. Use benefits are simply the social benefits that accrue from the physical use of a resource. Visiting critical habitat to see endangered species in their natural habitat would be a primary example. Non-use benefits, in contrast, represent welfare gains from “just knowing' that a particular listed species” natural habitat is being specially managed for the survival and recovery of that species. Both use and non-use benefits may occur unaccompanied by any market transactions.
A primary reason for conducting this analysis is to provide information regarding the economic impacts associated with a proposed critical habitat designation. Section 4(b)(2) of the Act requires the Secretary to designate critical habitat based on the best scientific data available after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. Economic impacts can be both positive and negative and by definition, are observable through market transactions.
Where data are available, this analysis attempts to recognize and measure the net economic impact of the proposed designation. For example, if the fencing of a species' habitat to restrict motor vehicles results in an increase in the number of individuals visiting the site for wildlife viewing, then the analysis would recognize the potential for a positive economic impact and attempt to quantify the effect (e.g., impacts that would be associated with an increase in tourism spending by wildlife viewers). In this particular instance, however, the economic analysis did not identify any credible estimates or measures of positive economic impacts that could offset some of the negative economic impacts analyzed earlier in this analysis.
Under Executive Order 12866, OMB directs Federal agencies to provide an assessment of both the social costs and benefits of proposed regulatory actions. OMB's Circular A-4 distinguishes two types of economic benefits: direct benefits and ancillary benefits. Ancillary benefits are defined as favorable impacts of a rulemaking that are typically unrelated, or secondary, to the statutory purpose of the rulemaking. In the context of critical habitat, the primary purpose of the rulemaking (i.e., the direct benefit) is the potential to enhance conservation of the species. The published economics literature has documented that social welfare benefits can result from the conservation and recovery of endangered and threatened species. In its guidance for implementing Executive Order 12866, OMB acknowledges that it may not be feasible to monetize, or even quantify, the benefits of environmental regulations due to either an absence of defensible, relevant studies or a lack of resources on the implementing agency's part to conduct new research. Rather than rely on economic measures, the Service believes that the direct benefits of the proposed rule are best expressed in biological terms that can be weighed against the expected cost impacts of the rulemaking.
(46)
Comment:
The draft economic analysis fails to distinguish costs specific to critical habitat designation from the costs of listing and other co-extensive costs. The draft economic analysis includes a variety of costs due to factors other than critical habitat,
many of which will occur regardless of whether critical habitat is designated.
Our Response:
In conducting economic analyses, we are guided by the 10th Circuit Court of Appeal's ruling in the New Mexico Cattle Growers Association case (248 F.3d at 1285), which directed us to consider all impacts, “regardless of whether those impacts are attributable co-extensively to other causes.” As explained in the analysis, due to possible overlapping regulatory schemes and other reasons, there are also some elements of the analysis that may overstate some costs.
(47)
Comment:
We received questions regarding the draft economic analysis use of 10 cubic feet per second (cfs) streamflow as the minimum requirement for Gila chub, stating it is likely an overestimate.
Our Response:
Section 4.1 of the draft economic analysis states the Service believes a conservative approach is to assume that the Gila chub requires a minimum of 10 cfs of streamflow. However, the draft economic analysis does not utilize a 10 cfs streamflow value to quantify potential impacts to water supply, because flow data is incomplete in proposed areas, and specific water management changes that would be necessary to provide required flow are not known. Instead, the draft economic analysis considers streamflow requirements coupled with actual flow data for each area to identify areas where potential water management impacts associated with conservation activities for the Gila chub may occur. Section 4 of the draft economic analysis discusses the value of the water resources that are at risk within proposed critical habitat areas.
(48)
Comment:
The draft economic analysis makes a flawed assumption that all private entities will voluntarily undertake actions to mitigate for Gila chub. The draft economic analysis is predicated on an assumption that private parties will voluntarily undertake expensive actions to mitigate adverse impacts to Gila chub.
Our Response:
The draft economic analysis quantifies the costs of conservation efforts that have or may be undertaken for the Gila chub to avoid adverse impacts on the species or its habitat. Some of these actions may result from permitting or other Federal requirements, while other efforts may be undertaken by private actors to avoid adverse impacts on the species or its habitat. Thus, knowledge that one's actions are taking place within critical habitat areas may lead to some changes in these activities to avoid adversely affecting the species and its habitat.
(49)
Comment:
The draft economic analysis uses different (and incorrect) measures than the proposed rule for determining the location of proposed critical habitat. The draft economic analysis creates a 300-foot buffer from the centerline of the stream while the proposed critical habitat extends 300 feet from the bankfull width of the stream.
Our Response:
As discussed in section 2.1, the draft economic analysis approximates the acreage of proposed critical habitat by creating a buffer of 300 feet on either side of the proposed critical habitat centerline developed by the Service, because geographic data depicting the bankfull width of proposed stream segments were not available. This method was determined to be the best approximation of the lateral extent of the proposed critical habitat designation based on available data. We also believe that the difference would generally be less than 15 m (50 ft) and would not be significant to the overall analysis. To estimate land ownership, geographic data of current land ownership was overlaid with critical habitat polygons using GIS analysis using the 300-foot buffer.
(50)
Comment:
The final draft economic analysis is based on critical habitat as proposed in the August 9, 2002, proposed rule, rather than the August 31, 2005, revised proposed rule. As a result some economic impacts that are not within the revised critical habitat are improperly included as economic costs. The description in the draft economic analysis of the length of the Bonita Creek stream reach appears to be taken from the 2002 rule.
Our Response:
The final draft economic analysis is based on the revised August 31, 2005, proposed rule notice (70 FR 51732), using geographic data provided to Industrial Economics on May 16, 2005. A typographical error appeared in section 4.2, which stated the length of the proposed length of Bonita Creek incorrectly. This error has been fixed in the final draft economic analysis.
(51)
Comment:
The analysis of section 7 consultation and other “administrative” costs must segregate costs by species instead of attributing all costs from multi-species actions to Gila chub.
Our Response:
The draft economic analysis separates and includes administrative costs attributable to the Gila chub. If multiple species are considered in a consultation, the draft economic analysis assumes that the costs directly attributable to the Gila chub are equal to the costs of a single technical assistance or consultation. We agree that the cost of consultations that consider impacts to multiple species are likely to exceed the costs of consultations considering a single species, and this is taken into account in the analysis.
(52)
Comment:
New information was provided that 245 acres of deeded land is proposed to be developed into 102 residential lots at Spring Creek Ranch. Creating a 300-foot wide buffer on either side of the creek would eliminate 39 of the lots from future development, at a current lot value of $600,000. Thus, total impacts of critical habitat would be $23.4 million (the value of the land lost from development multiplied by the number of lots).
Our Response:
Information on this development was requested in section 7 of the draft economic analysis. The new information provided has been incorporated into section 7 of the final economic analysis. The project, as currently planned, will leave a 40 to 60 foot buffer from the stream, and will position lots outside of the 100-year flood plain. If this formation is sufficient to prevent impacts on Gila chub, then no additional economic impacts are anticipated. If, however, conservation efforts for the Gila chub result in the prohibition of all development within 300 feet of the bankfull width of the stream, economic impacts of up to $23.4 million could occur. The final economic analysis includes this range of economic impacts in section 7 of the analysis. We have also excluded privately owned lands in Spring Creek due to potential economic impacts as identified in our economic analysis (see “Exclusions Under Section 4(b)(2) of the Act” section below).
(53)
Comment:
The revised boundaries of Cienega Creek include property owned by Vail Valley Joint Venture private property. Joint Venture's two-acre dam site and diversion works are located within the proposed critical habitat. The replacement cost of 1,121.85 acre-feet of water annually would be $8 million to $9 million.
Our Response:
The Vail Valley Joint Venture site is used to exercise surface water rights on Cienega Creek held by the Del Lago Golf Club (Club) for turf and landscape irrigation. Part of the advantage of having this point of diversion for the Club is the low costs to operate and maintain the operations. If a change in water diversions or point of diversion were required, economic costs could be $8 million to $9 million, as estimated by the Club. These estimates provided in the public comment from Joint Venture and the Club are now incorporated into the
economic analysis. The likelihood that the Club would need to establish a new point of diversion or change its water diversions is unknown. We have also excluded privately owned lands in Cienega Creek due to the potential economic impacts as identified in our economic analysis (see “Exclusions Under Section 4(b)(2) of the Act” section below).
(54)
Comment:
The potential economic impacts of the critical habitat designation on the Morenci mine were not properly evaluated in the draft economic analysis. The Service did not properly evaluate the economic impacts to the mining industry or evaluate the socioeconomic impacts to the surrounding communities resulting from any negative impacts to mining.
Our Response:
The draft economic analysis discussed potential impacts to mining activities that were physically located within proposed critical habitat areas. Based on information provided during the public comment period from mining interests, the economic analysis has been revised to include information on potential impacts to the mining industry that could occur related to water diversions or withdrawals in proposed critical habitat for mining activities occurring outside of proposed critical habitat.
(55)
Comment:
The analysis of impacts to water development in Bonita Creek is based on faulty information resulting in illogical and unsupported conclusions that mistakenly attribute a cost of up to $9.5 million to critical habitat designation. Gila chub critical habitat would not limit the use of the City of Safford's water rights.
Our Response:
As stated in section 4.2 of the draft economic analysis, the Service could recommend, or the City of Safford could decide, that in order to prevent take of Gila chub the City must completely abandon its Bonita Creek infiltration gallery, resulting in a loss of available water to the City. Section 4.2 states that, while this scenario appears unlikely, information on this scenario is provided in order to understand the potential magnitude of impacts should it occur. The analysis concludes that, while the City could replace any lost volume from Bonita Creek sources from other active production wells and existing back-up wells, abandoning the Bonita Creek infiltration gallery could result in economic impacts to the City. The impact can be viewed in terms of a lost capital investment; the loss of an inexpensive, reliable, and local, high-quality water supply requiring very little treatment and transportation; and a constraint on the City's ability to flexibly and effectively manage regional water supply and demand. As a proxy for the value of this economic impact, this analysis calculates the cost to the City to replace water rights for a volume equal to the potential lost volume from Bonita Creek, both the currently unused volume and the volume of the entire water right. Total replacement costs are estimated to range from $2.5 million to $9.5 million in undiscounted dollars. We have excluded Bonita Creek from the designation (see “Exclusions Under Section 4(b)(2) of the Act” section below).
(56)
Comment:
We received questions on the inclusion of costs associated with Vail Water Company's Well #5. The analysis of water development in Cienega Creek assumes occurrence of future actions with no supporting data to indicate they are reasonably certain to occur.
Our Response:
Section 4.2 of the draft economic analysis quantifies the potential impacts to the Vail Water Company's operations on Cienega Creek. Although this well is not currently in use, Vail Water Company could begin pumping water from the well for non-potable uses and could use the water for potable use with some treatment. Therefore, it is appropriate to include replacement costs in the draft economic analysis as the potential upper bound of cost related to Gila chub conservation activities.
(57)
Comment:
The assumption that economically harvestable timber exists in proposed critical habitat areas on upper Blue River is unsupportable by data.
Our Response:
Section 6.2 of the draft economic analysis describes the potential impacts of limitations on timber harvest to the San Carlos Apache. The San Carlos Apache Tribe, who owns and manages the proposed critical habitat lands on the upper Blue River, identified that the area within the proposed critical habitat designation would be managed for timber harvest and production losses would be incurred as a result of increasing the current riparian timber buffer from 66 feet to 300 feet. The commenter does not provide evidence to dispute the statements made by the San Carlos Apache. The total value of timber losses estimated is $308,000 in undiscounted dollars, or $15,400 annually over 20 years.
(58)
Comment:
Restrictions on burning on the San Carlos Apache Reservation would be contrary to the best interests of Gila chub conservation and so are unlikely to result from critical habitat designation. This cost should not be included in the economic analysis.
Our Response:
The proposed rule identifies prescribed fire as one of the activities that may affect the Gila chub and require consultation (on Federal lands). The draft economic analysis does not state that restrictions on prescribed burning will occur on the San Carlos Apache Reservation. It states that if the Tribe were not able to perform fire management activities as planned, the risk of catastrophic fire on Tribal lands could increase. Cost estimates are not included for this activity.
(59)
Comment:
One commenter asked if the draft economic analysis factored in the costs of eliminating non-native game fish and the cost in lost tourism of eliminating those non-native game fish.
Our Response:
Section 8.3.3 of the draft economic analysis summarizes potential impacts to recreational activities. Based on information collected during the development of the economic analysis, the Gila chub does not occur in popular recreational fishing areas. In addition, non-native game fish stocking does not occur in any of the areas proposed for critical habitat designation. Significant economic impacts to recreational activities from Gila chub conservation activities within the proposed critical habitat designation are therefore not anticipated.
(60)
Comment:
The Service failed to evaluate a reasonable range of alternatives in its NEPA analysis.
Our Response:
Our environmental assessment considered a range of proposed alternatives that we believe are consistent with intent of NEPA. Under NEPA, alternatives are developed based upon the purpose and need for the project. It is not the purpose or intent of an environmental assessment to evaluate all possible situations and conditions, instead a range of alternatives that meet the purpose and need for this project were evaluated in the environmental assessment. The environmental assessment describes in section 2.1 how the alternatives were defined to meet the purpose and need of the project, which is the designation of critical habitat for the Gila chub.
(61)
Comment:
An environmental assessment is not adequate for an action of this magnitude; instead an environmental impact statement (EIS) is required.
Our Response:
Our environmental assessment considered a no-action alternative and an action alternative and discussed the adverse and beneficial environmental impacts of each. The impacts evaluated in the environmental assessment are for those associated with the designation of critical habitat above
those impacts due to listing alone. In that regard, we determined through the environmental assessment that the overall environmental effects of this action were not significant. An EIS is required only if we find that the proposed action is expected to have a significant impact on the human environment. Chapter 4 of the environmental assessment provides the basis for determining the significance of the proposed action and was conducted using Council on Environmental Quality regulations. Based on our analysis and comments received from the public, we prepared a final environmental assessment and made a Finding of No Significant Impact (FONSI), negating the need for preparation of an EIS. We believe our environmental assessment is consistent with the spirit and intent of NEPA. The final environmental assessment, FONSI, and final economic analysis provide our rationale for determining that critical habitat designation would not have a significant effect on the environment. Those documents are available for public review (see
ADDRESSES
section).
(62)
Comment:
Economic impacts to the mining industry and land development were not adequately evaluated.
Our Response:
We have made modifications to the final economic analysis to address these concerns.
(63)
Comment:
The Service improperly concludes critical habitat will result in minor and non-controversial impacts.
Our Response:
We believe the incremental impacts of designation of critical habitat above listing impacts are indeed minor. See also response to comment 61 above.
(64)
Comment:
The draft environmental assessment did not consider impacts on groundwater withdrawals by the mining industry.
Our Response:
Impacts to groundwater withdrawals by the mining industry would not be significantly greater with critical habitat than the impacts due to listing alone.
(65)
Comment:
The draft environmental assessment fails to adequately consider impacts to tribal resources and economic impacts due to designation of critical habitat on the San Carlos Apache lands.
Our Response:
With the exclusion of San Carlos Apache lands from critical habitat designation, no impacts are expected.
(66)
Comment:
Environmental justice concerns are not adequately considered in the NEPA analysis.
Our Response:
We feel environmental justice issues were addressed to the greatest extent possible.
(67)
Comment:
The draft economic analysis underestimates the economic impacts of designation, as well as the impacts on land management activities.
Our Response:
The majority of critical habitat is currently occupied by Gila chub. Therefore designation of critical habitat has only minor impacts beyond those of listing alone.
(68)
Comment:
The draft economic analysis ignores the “recovery” standard imposed by previous case law for determination of “adverse modification” to critical habitat.
Our Response:
We disagree. This standard is discussed on page 40 of the environmental assessment (Section 3.2.2.2) and in other sections.
Comments From States
Section 4(i) of the Act states: “the Secretary shall submit to the State agency a written justification for failure to adopt regulations consistent with the agency's comments or petition.” Comments received from States regarding the proposal to designate critical habitat for the Gila chub are addressed below. We received comments from AGFD, NMGF, and the New Mexico Interstate Stream Commission. As noted above, these comments were drafted in part by individuals from whom we also requested peer review. All three sets of comments acknowledged the decline of the Gila chub, the threats to the species, the need for its protection, and were generally supportive of the proposed rule.
(69)
State Comment:
Mule Creek in New Mexico provides the PCEs and should be included in the critical habitat designation.
Our Response:
Refer to our response to comment 1 above. We did not consider Mule Creek in our analysis of streams to propose for critical habitat because Gila chub had never been documented in this creek. We agree that Mule Creek appears to be suitable habitat for the species, and will work with New Mexico Game and Fish, and other interested stakeholders, to potentially introduce Gila chub to this stream, if feasible.
(70)
State Comment:
Much of the habitat occupied by the Gila chub is on private land. Designating critical habitat on these lands raises the possibility of placing unnecessary burdens upon and alienating those parties whose cooperation is vital for the successful implementation of appropriate conservation measures. The Service should carefully consider the benefits of fostering critical working relationships between Federal and private entities against a potential benefit that might occur by designating critical habitat for the Gila chub.
Our Response:
In general, private landowners are not affected by critical habitat. Critical habitat directly affects only Federal actions. Pursuant to section 7 of the Act, Federal agencies ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat. 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 land, require a Federal permit, license, or other authorization, or involve Federal funding (see “Effect of Critical Habitat Designation”). We agree that cooperative conservation partnerships with private land owners are an important element in the conservation of the Gila chub and we agree that designation of critical habitat can lead to lack of cooperation by affected landowners. We have pursued such partnerships on numerous projects involving the Gila chub and will continue these partnerships after the chub is listed, and we have carefully considered the effects of listing and critical habitat designation on these partnerships.
(71)
State Comment:
How will listing the Gila chub affect AGFD enforcement of sport fishing regulations for the roundtail chub? Is the Service considering listing other species of chub under 4(e)(A) of the Act regarding similarity of appearance cases?
Our Response:
Refer to our response to comment 7 above.
Summary of Changes from Proposed Rule
Based upon our review of the public comments, the economic analysis, environmental assessment, issues addressed at the public hearing, and any new relevant information that may have become available since the publication of the proposal, we reevaluated our proposed listing and critical habitat designation and made changes as appropriate. Other than minor clarifications and incorporation of additional information on the species' biology, status, and threats, this final rule differs from the proposal by the following: (1)We excluded lands of the San Carlos Tribal Apache Tribe pursuant to section 4(b)(2) of the Act (see “Exclusions Under Section 4(b)(2) of the Act” section below).
(2) We excluded Bonita Creek downstream of San Carlos Apache
Tribal lands, pursuant to section 4(b)(2) of the Act, based upon a partnership with the City of Safford, BLM, and Reclamation to manage lands on Bonita Creek (see “Exclusions Under Section 4(b)(2) of the Act” section below).
(3) We have excluded proposed critical habitat on 1.9 mi of the lower segment of Cienega Creek and on 1.9 mi of Spring Creek, pursuant to section 4(b)(2) of the Act, due to the potential economic impact of designating these segments.
(4) We modified the primary constituent elements for the Gila chub by adding “ * * * a high degree of streambank stability and healthy, intact riparian vegetative community * * *” and by broadening the range of water temperatures required for spawning to more accurately reflect data in our files, and providing examples of suitable ranges of water quality parameters (see “Primary Constituent Elements” section below).
(5) We are not including Post Canyon in the final designation of critical habitat based on recent information indicating that it went dry in 2005 and thus does not maintain sufficient PCEs necessary to support a population of Gila chub (AGFD 2005a). We therefore no longer believe that it meets the definition of critical habitat.
Summary of Factors Affecting the Species
Section 4 of the Act and regulations (50 CFR part 424) promulgated to implement the listing provisions of the Act set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in Section 4(a)(1). These factors and their application to the Gila chub (
Gila intermedia
) are described below.
Status of Species
As discussed in further detail above in the “Background” section, we estimate, based on collection records, historical habitat data, the 1996 Arizona Game and Fish Department Gila chub status review (Weedman et al. 1996), and information in our files documenting currently occupied habitat (see Table 1 above), that the Gila chub have been eliminated from 85 to 90 percent of formerly occupied habitat. This loss has occurred as a result of the introduction and spread of nonnative aquatic species that prey on and compete with the Gila chub, and habitat loss and degradation from a variety of actions, described in detail below, most notably water use that has led to drying of stream channels throughout the range of the Gila chub. Additionally, we estimate that 90 percent of the Gila chub's currently occupied habitat has been degraded, either by the presence of nonnative species or land use that degrades habitat, such as livestock grazing. We believe that, without the protection of the Act, the Gila chub is likely to go extinct throughout all or a significant portion of its range.
A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range
Within the historical range of the Gila chub, much wetland habitat has been destroyed or degraded, and loss of this habitat continues today (Minckley and Deacon 1991; Tellman et al. 1998; Propst 1999). Activities such as groundwater pumping, surface water diversions, impoundments, dams, channelization (straightening of the natural watercourse, typically for flood control purposes), improperly managed livestock grazing, wildfire, agriculture, mining, road building, residential development, and recreation all contribute to riparian and cienega habitat loss and degradation in Arizona and New Mexico (Minckley and Deacon 1991; Weedman et al. 1996; Tellman et al. 1998; Propst 1999). All of these activities are human-caused; thus the local and regional effects of these activities are expected to increase with an increasing human population because a larger human population will result in more of these kinds of activities. As of 2005, Arizona was listed as the second fastest in Statewide population growth in the nation, and from 2000-2003, two Arizona counties (Pinal and Yavapai, counties that contain about 40 percent of Gila chub populations) grew by over 10 percent; further, the population of the State of Arizona is projected to grow by 109 percent by the year 2030 (U.S. Census Bureau 2005).
Water withdrawals.
Growing water demands threaten the existence of southern Arizona perennial surface water in the Gila Basin, as well as the species that depend on it. Groundwater pumping has been a major factor in loss of surface water in springs, streams, and cienegas of Arizona, most notably in the Santa Cruz River Basin (Tellman et al. 1997). Since 1940, groundwater levels in Central Arizona have dropped over 220 feet, with Central Tucson subsiding in elevation at least one foot since 1950, due to this groundwater withdraw (Arizona Water Resources Research Center 2005). An example of the magnitude of these changes is the Santa Cruz River. Historically, the Santa Cruz River was occupied by the Gila chub throughout the drainage (Weedman et al. 1996). Today, the Santa Cruz River and its major tributaries in the Tucson area flow only in response to flood events (Webb and Betancourt 1992), and the Gila chub is extirpated (i.e. eliminated) in the mainstem Santa Cruz, occurring only in several small populations in tributaries of the Santa Cruz (see Table 1 above). We estimate the Gila chub has been eliminated from 95 percent of its former range in the Santa Cruz drainage (Weedman et al. 1996).
In addition to historical losses, groundwater pumping poses a threat to surface flows in the remaining Gila chub habitats in Eagle Creek and Cienega Creek. Groundwater withdrawal in Eagle Creek, primarily for water supply for a large open-pit copper mine at Morenci, dries portions of the stream. Groundwater pumping in the upper Cienega Creek drainage supports burgeoning ranchette development near the town of Sonoita. The city of Prescott and towns of Prescott Valley and Chino Valley are growing at an average rate of over 4 percent per year (U.S. Census Bureau 2005), and this growth is mostly based on groundwater pumping in the Verde River basin. The cities of Prescott and Prescott Valley recently purchased the JWK Ranch in the headwaters of the Verde River, with the intent of drilling new wells to supply up to 8,700 acre-feet (AF) of groundwater per year, which may have serious adverse effects on the mainstem and tributaries of the Verde River.
Increasing population growth in Sierra Vista will likely stimulate borderland development, with a concurrent water demand increase that could accelerate riparian area destruction and modification, and increase threats to plants and animals dependent on surface water, including the Gila chub. The San Pedro River in southern Arizona historically supported at least 13 native fish species, including Gila chub, but now supports only 2 (The Nature Conservancy 2000). One of the known factors that have contributed to the loss of Gila chub in the San Pedro River basin is the pumping of groundwater for agriculture and municipal uses. Groundwater pumping is expected to increase with human population growth. In anticipation of the growing population, Fort Huachuca Military Reservation has filed a claim for use of 435 AF per year of tributary surface water from the Gila River adjudication, in addition to its estimated 1,655 AF per year currently used (Arizona Department of Water
Resources 1991). Groundwater pumping is widely recognized as a threat to the San Pedro and Verde Rivers, and the wildlife that depend on these rivers (McKinnon 2005a).
Two tributary streams in the Verde River Basin are under increasing demands for water from surface and ground water withdrawal. Williamson Valley Wash has experienced a number of recent housing developments, and more are proposed. Although data are lacking, the effects of water withdrawal in this area combined with recent drought appear to have eliminated most of Gila chub habitat in this system (G. Price, Long Meadow Ranch Property Owners Association, in litt. 2002; L. Graser, Arizona Department of Water Resources, pers. comm. 2005). Spring Creek, a small system with only about 3 miles of habitat for the Gila chub, is the site of a proposed housing development that will be approximately 200 acres in size. The development will require three new groundwater wells for its water supply; hydrologic studies have not yet been completed (J. Himes, Himes Consulting, pers. comm. 2005), but the effects to surface water in Spring Creek could be significant.
Stream channelization and irrigation.
Sections of many Gila Basin rivers and streams have been and continue to be channelized for flood control, which disrupts natural channel dynamics and promotes the loss of riparian plant communities. Channelization changes the gradient of the stream above and below the channel. It increases streamflow in the channelized section, which results in increased rates of erosion of the stream and its tributaries, accompanied by gradual deposits of sediment in downstream reaches that may increase the risk of flooding (Emerson 1971; Simpson 1982). Channelization can affect Gila chub habitat by reducing its complexity, eliminating cover, reducing nutrient input, improving habitat for nonnative species, changing sediment transport, altering substrate size, and reducing the length of the stream (and therefore the amount of aquatic habitat available) (Gorman and Karr 1978; Simpson 1982; Schmetterling et al. 2001). Channelization will continue to contribute to riparian and aquatic habitat decline.
Irrigation directly from stream and cienega waters reduces or eliminates water in existing fish habitat. Fish can be carried into irrigation ditches, where they die following desiccation (drying) of the irrigation ditch. Irrigation dams prevent movement of fish between populations, resulting in genetic isolation within species; small populations are subject to genetic threats, such as inbreeding depression (reduced health due to elevated levels of inbreeding) and genetic drift (a reduction in gene flow within the species that can increase the probability of unhealthy traits; Meffe and Carrol 1994).
There are numerous surface water diversions in Gila chub habitats, including Spring Creek, Walker Creek, Mineral Creek, Dix Creek, and Eagle Creek. Larger dams may also prevent movement of fish between populations and dramatically alter the flow regime of streams through the impoundment of water (Ligon et al. 1995). The Arizona Water Settlements Act created legislation for the construction of a large water project in New Mexico, potentially a large dam. However, it is unclear at this time if this would effect the population of Gila chub in Turkey Creek.
Livestock grazing.
Livestock grazing can have adverse impacts on Gila chub habitat. Poor livestock-grazing management is widely believed to have been one of the most significant factors contributing to regional stream channel downcutting (the entrenchment of stream channels and creation of arroyos) in the late 1800s. Livestock grazing can destabilize stream channels and disturb riparian ecosystem functions (Herefore 1992; Tellman et al. 1997). Livestock can negatively affect Gila chub habitat through removal of riparian vegetation (Clary and Webster 1989; Clary and Medin 1990; Schulz and Leininger 1990; Armour et al. 1991; Fleishner 1994), which can result in reduced bank stability, fewer pools, and higher water temperatures (Meehan 1979; Kauffman and Krueger 1984; Swanson et al. 1982; Minckley and Rinne 1985; Fleishner 1994; Belsky et al. 1999). Livestock grazing can also cause increased sediment in the stream channel, due to streambank trampling and riparian vegetation loss (Weltz and Wood 1986; Waters 1995; Pearce et al. 1998). Livestock physically alter streambanks through trampling and shearing, leading to bank erosion (Platts and Nelson 1989; Trimble and Mendel 1995). In combination, loss of riparian vegetation and bank erosion can alter channel morphology, including increased erosion and deposition, downcutting, and an increased width/depth ratio, all of which lead to a loss of pool habitats required by the Gila chub, and to loss of shallow side and backwater habitats used by larval chub (Trimble and Mendel 1995; Belsky et al. 1999).
Livestock grazing administered by either the FS or BLM occurs in most of the streams and watersheds containing Gila chub. We have completed four formal conferences on the effects of livestock grazing on Gila chub. All four conferences found that livestock grazing resulted in adverse effects to Gila chub and its habitat (U.S. Fish and Wildlife Service 2005b), but is not likely to jeopardize the species or result in destruction or adverse modification of critical habitat.
Mining activities.
Mining activities were more widespread historically and may have constituted a greater threat in the past; however, the continued mining of sand and gravel, iron, gold, copper, or other materials remains a potential threat to the habitat of Gila chub. The recently proposed Gentry Iron Mine may be located within 1.6 km (1.0 mi) of two Gila chub populations on the Tonto National Forest. The effects of proposed mining activities, like the Gentry Iron Mine, on these populations are uncertain at this time, but may include adverse affects to water quality and lowered flow rates due to dewatering of nearby streams needed for mining operations. Sand and gravel mining removes riparian vegetation and destabilizes streambanks, which results in habitat loss for the Gila chub (Brown et al. 1998). Sand and gravel mining along the Santa Cruz, San Pedro, and Babocomari Rivers has had serious impacts in the past and continues to impact these rivers although at a reduced scale.
As noted above, groundwater pumping to support mining operations poses a threat to surface flows in the remaining Gila chub habitats in Eagle Creek from a large open-pit copper mine at Morenci which dries portions of the stream.
Roads.
Roads have adversely affected Gila chub habitat by increasing surface runoff and sedimentation, which can increase turbidity, reduce primary production, and reduce numbers of aquatic insects (Burns 1971; Eaglin and Hubert 1993). Roads require in-stream structures, such as culverts and bridges that remove aquatic habitat and can act as barriers to fish movement (Barrett et al. 1992; Warren and Pardew 1998). All of these activities negatively impact Gila chub by lowering water quality and by reducing the quality and quantity of pools, by filling them with sediments, reducing the quantity of large woody-debris necessary to form pools, and by imposing barriers to movement. The end result is deterioration of habitat for the Gila chub (Burns 1971; Eaglin and Hubert 1993).
Vehicular use of roads in creek bottoms can degrade Gila chub habitat and result in Gila chub mortality. Such use inhibits riparian plant growth,
breaks down banks, causes erosion, causes sedimentation, and increases turbidity in the stream, particularly where vehicles drive through the stream (especially immediately downstream of the vehicular activity). These effects are likely to result in wider and shallower stream channels (Armour 1977; Meehan 1991). This causes progressive adjustments in other variables of hydraulic geometry and results in changes to the configuration of pools, runs, riffles, and backwaters; levels of fine sediments and substrate embeddedness; availability of instream cover; and other fish habitat factors in the vicinity of vehicle crossings (Sullivan et al. 1987; Rosgen 1994). It also changes the way in which flood flows interact with the stream channel and may exacerbate flood damage to banks, channel bottoms, and riparian vegetation. The breaking down of stream banks by vehicles would reduce undercut banks and overhanging vegetation that chub use as cover.
Adverse effects of stream sedimentation to fish and fish habitat have been extensively documented (Murphy et al. 1981; Newcombe and MacDonald 1991; Barrett 1992). Excessive sedimentation may cause channel changes that are adverse to the Gila chub. Excessive sediment may fill backwaters and deep pools used by Gila chub, and sediment deposition in the main channel may cause a tendency toward stream braiding (e.g. the stream becomes wider, shallower, and has numerous channels as opposed to one channel), thus reducing adult chub habitat, as well. Excessive sediment may smother aquatic insects (Newcombe and MacDonald 1991), thereby reducing chub food production and availability, and related turbidity may reduce the chub's ability to see and capture food (Barrett et al. 1992). Fish fry and eggs could also be killed or injured if vehicles are driven through stream segments where these life stages occur. Larger fish are likely to swim away to avoid death or injury. Public vehicular use is also often associated with an elevated risk of human-caused fire.
New roads are proposed in association with housing developments in Williamson Valley Wash and Spring Creek; surveys within the last 5 years indicate that both of these streams provide high quality Gila chub habitat and are occupied by the species. In the past, roads in Bonita Creek traversed the streambed numerous times over its entire length. Use of the Bonita Creek road system created local disturbance of normal stream function including displacement and injury of fish, increased turbidity, and seasonal destruction of fish eggs and larvae at road crossings. Erosion of stream banks and terraces resulted in some areas, negatively affecting the condition of aquatic and associated riparian communities that support Gila chub (BLM 1998; U.S. Fish and Wildlife Service 2004a). BLM reduced the number of roads through the lower reaches of Bonita Creek from 15 miles (the entire reach of Bonita Creek in the Gila Box Riparian National Conservation Area (RNCA) to about 2 miles. There are still localized impacts, as described above, including some continued mortality of Gila chub, where roads follow or cross Bonita Creek. BLM's new roads and facilities in Bonita Creek, including camping and day use areas, limit and direct these recreational activities. Some trampling of vegetation and banks likely occurs, but is localized and minimal in areas of concentrated public use along Bonita Creek.
Much of the current range of the Gila chub occurs on public lands administered by the BLM and FS. Public use of these lands is high, and such use creates an elevated risk of human-caused fire. This risk exists in picnic and camping areas where fire can escape into wild lands. Directing public use to relatively fire-safe areas, as opposed to allowing people to camp and picnic anywhere, can reduce this risk. For example, BLM's improvements to recreational facilities in Bonita Creek over the last decade have served to reduce the risk of wildfire associated with public use.
Development activities.
Gila chub habitat is also increasingly threatened from urban and suburban development (Tellman et al. 1997). Urban and suburban development can affect Gila chub and their habitats in a number of ways, such as direct alteration of streambanks and floodplains from construction of buildings, gardens, pastures, and roads (Tellman et al. 1997), or as mentioned above, diversion of water, both from streams and connected groundwater (Glennon 1995). On a broader scale, urban and suburban development alters the watershed, which changes the hydrology, sediment regimes, and pollution input (Dunne and Leopold 1978; Horak 1989; Medina 1990; Reid 1993; Waters 1995). The introduction of nonnative plants and animals that can adversely affect Gila chub may also become more likely as nearby human populations increase due to activities, such as releases from home aquariums (Aquatic Nuisance Species Task Force 1994).
Suburban and urban development can degrade and eliminate Gila chub habitat. The Phoenix metropolitan area, founded in part due to its proximity to the Salt and Gila Rivers, is a population center of millions of people. As mentioned above, a new proposed development project would occupy a significant portion of the Spring Creek watershed. More generally, communities in the middle and upper Verde River watershed, such as the Prescott-Chino Valley, the Cottonwood-Clarkdale-Camp Verde communities, Strawberry, Pine, and Payson, are all seeing rapid population growth. The upper San Pedro River is also the location of rapid population growth in the Sierra Vista-Huachuca City-Tombstone area. Many of these communities are near Gila chub populations.
Human activities in the watershed have had substantial adverse impacts to Gila chub habitat. Watershed alteration is a cumulative result of many human uses, including timber harvest, livestock grazing, roads, recreation, channelization, and residential development. The combined effect of all of these actions results in a substantial loss and degradation of habitat (Burns 1971; Reid 1993). In Williamson Valley Wash, human uses (e.g., recreational use of off-road vehicles) in the highly erodible upper watershed have resulted in increased erosion and high loads of sediment. In 1993, flooding in Williamson Valley Wash carried enough sediment that the isolated pool where Gila chub were previously collected became completely filled with sand and gravel (Weedman et al. 1996).
B. Overutilization for Commercial, Recreational, Scientific or Educational Purposes
We have determined that overutilization for commercial, recreational, scientific or educational purposes are not a threat to the Gila chub. Collection of, or fishing for, Gila chub in Arizona is prohibited by Arizona Game and Fish Commission Order 41, except where such collection is authorized by special permit (AGFD 2005c). The collection of Gila chub is prohibited in the State of New Mexico except by special scientific permit (NMGF 2005). Collection of Gila chub is prohibited in Mexico except by special permit. A few individual fish may be caught incidentally by recreational anglers; however, most Gila chub populations do not occur in popular fishing areas. Although roundtail chub is a related species that looks quite similar and is considered a sport fish in Arizona, AGFD allows a possession bag limit of 1 fish 13 inches or larger (AGFD 2005c); because Gila chub do not grow larger than approximately 8 inches, and because Gila chub are in geographical
areas in which roundtail chub generally do not occur, we believe that angling for roundtail chub is not a threat to the Gila chub. No commercial uses exist for Gila chub. A limited amount of scientific collecting occurs, but does not pose a threat to Gila chub since it is regulated by the States.
C. Disease and Predation
The introduction and spread of nonnative species has been identified as one of the major factors in the continuing decline of native fishes throughout North America and particularly in the southwestern United States (Miller 1961; Lachner et al. 1970; Ono et al. 1983; Moyle 1986; Moyle et al. 1986; Carlson and Muth 1989; Cohen and Carlton 1995; Fuller et al. 1990). Miller (1989) concluded that nonnative species were a causal factor in 68 percent of the fish extinctions in North America in the last 100 years. For 70 percent of those fish still extant, but considered to be endangered or threatened, introduced nonnative species are a primary cause of the decline (Aquatic Nuisance Species Task Force 1994; Lassuy 1995). In Arizona, release or dispersal of recently introduced nonnative aquatic organisms is a continuing phenomenon (Rosen et al. 1995; U.S. Fish and Wildlife Service 2001a). Aquatic nonnative species are introduced and spread into new areas through a variety of mechanisms, intentional and accidental, authorized and unauthorized. Mechanisms for nonnative dispersal in the southwestern United States include interbasin water transfer, sport fish stocking, aquaculture, aquarium releases, bait-bucket release (release of fish used as bait by anglers), and biological control (e.g., the introduction of one species to control another species) (Aquatic Nuisance Species Task Force 1994; U.S. Fish and Wildlife Service 2001a).
Gila chub evolved in a fish community with low species diversity and where few predators existed, and as a result developed few or no mechanisms to deal with predation from nonnative species (Carlson and Muth 1989). In its habitats, the Gila chub was a predatory fish and experienced little or no predation or competition from other species. The introduction of more aggressive and competitive nonnative fish led to significant losses of Gila chub.
In the Gila River basin, introduction of nonnatives is considered a major factor in the decline of all native fish species (Minckley 1985; Williams et al. 1985; Minckley and Deacon 1991). Aquatic and semi-aquatic mammals, reptiles, amphibians, crustaceans, mollusks (snails and clams), insects, zoo- and phytoplankton, parasites, disease organisms, algae, and aquatic and riparian vascular plants that are outside of their historical range have all been documented to adversely affect aquatic ecosystems (Cohen and Carlton 1995). As described below, the nonnative fishes have been demonstrated to pose a significant threat to Gila River basin native fishes, including Gila chub (Minckley 1985; Williams et al. 1985; Minckley and Deacon 1991).
The aquatic ecosystem of the central Gila River basin has relatively small streams with warm water and low gradients, and many of the native aquatic species are small in size. Therefore, much of the threat to native fishes comes from small nonnative fish species, as has also been noted for southern Nevada aquatic ecosystems (Deacon et al. 1964). Examples of this are the impacts of mosquitofish (
Gambusia affinis
) and red shiner (
Cyprinella lutrensis
), which may compete with or prey upon native fish in the Gila River basin (Meffe 1985; Douglas et al. 1994).
Nonnative fishes known to occur within the historical range of Gila chub basin include channel catfish (
Ictalurus punctatus
), flathead catfish (
Pylodictis olivaris
), red shiner, fathead minnow (
Pimephales promelas
), green sunfish (
Lepomis cyanellus
), largemouth bass (
Micropterus salmoides
), smallmouth bass (
Micropterus dolomieui
), rainbow trout (
Oncorynchus mykiss
), western mosquitofish, carp (
Cyprinus carpo
) (Young and Bettaso 1994; Weedman et al. 1996), warmouth (
Lepomis gulosus
), bluegill (
Lepomis macrochiris
), yellow bullhead (
Ameiurus natalis
), black bullhead (
Ameiurus melas
), and goldfish (
Carassius auratus
) (AGFD Native Fish Database 2005). Additionally, as discussed below, nonnative parasites introduced incidentally with nonnative species may jeopardize Gila chub populations. Although parasites are normal in fish populations and typically do not cause mortality in their host, the effects of nonnative parasites can be significant, especially when combined with other stressors such as poor habitat conditions (U.S. Geological Survey 2004, 2005). Nonnative crayfish (virile crayfish) also prey on and compete with Gila chub (Carpenter 2000, 2005).
Dudley (1995) correlated green sunfish presence with Gila chub declines in Sabino Creek, Arizona, and documented predation by small green sunfish on young-of-the-year Gila chub. Dudley and Matter (2000) documented green sunfish predation on Gila chub and the displacement of Gila chub by green sunfish from preferred habitats; even small Green sunfish were highly predaceous on Gila chub. Unmack et al. (2003) found that in Silver Creek, Gila chub did not show signs of recruitment below a waterfall where they occurred with green sunfish; upstream, in the absence of green sunfish, Gila chub populations had multiple year classes and good recruitment.
Western mosquitofish were introduced outside of their native ranges to help control mosquitoes. Because of their aggressive and predatory behavior, mosquitofish may negatively affect populations of small fish through predation and competition (Courtenay and Meffe 1989; Aarn and Unmack 1998). Introduced mosquitofish have been particularly destructive in the American west where they have contributed to the elimination or decline of populations of federally-threatened and endangered species, such as the Gila topminnow (
Poeciliopsis occidentalis occidentalis
) (Courtenay and Meffe 1989). They often attack, shred fins, and sometimes kill other fish species. Mosquitofish are known to prey on eggs, larvae, and juveniles of various fishes, including the Gila chub.
Largemouth bass are intentionally introduced for the purpose of sport fishing. Introduced bass usually affect populations of small native fishes through predation, sometimes resulting in the decline or extinction of such species (Minckley 1973). Species that have suffered such effects include populations of Gila chub and Monkey spring pupfish (
Cyprinodon
sp.) (Minckley 1973).
The Asian tapeworm (
Bothriocephalus acheilognathi
) was introduced into the United States via imported grass carp in the early 1970s. It has since become well established in the southeast and mid-southern United States and has been recently found in the southwest including the Gila Basin. The definitive host in the life cycle of the Asian tapeworm is cyprinid (fish in the minnow family) fishes. There is a potential threat to the Gila chub as well as to the other native fishes in Arizona because of the presence of this parasite in the Gila Basin and the presence of cyprinid fish. The Asian tapeworm affects fish health in several ways. The direct impacts to fish are through impeding digestion of food as it passes through the intestinal track, and loss of nutrients as the worm feeds off the fish; large enough numbers of worms cause emaciation and starvation. An indirect effect is that weakened fish are more susceptible to infection by other
pathogens. This parasite can infest many species of fish and is carried into new areas along with nonnative fishes or native fishes from contaminated areas. Asian tapeworm may be a significant source of mortality of humpback chub in the Colorado River basin (U.S. Geological Survey 2004, 2005).
The nonnative parasite
Ichthyophthirius multifiliis
(“Ich”) is a potential threat to Gila chub. “Ich” disease has occurred in some Arizona streams, probably favored by high temperatures and crowding as a result of drought (Mpoame 1982). The deep, quiet waters in which Gila chub often occur (Minckley 1973) seem stable enough that “Ich” cysts do not wash away. This protozoan becomes embedded under the skin and within the gill tissues of infected fish. When the “Ich” matures, it leaves the fish, causing fluid loss, physiological stress, and sites that are susceptible to infection by other pathogens. If “Ich” is present in large enough numbers they can also impact respiration because of damaged gill tissue. This parasite has been observed on the Sonoran sucker (
Catostomus clakii
), a species common throughout the Gila River basin, and “Ich” does not appear to be host-specific, so it could be transmitted to other species. “Ich” outbreaks were observed and caused significant mortality in Gila chub salvaged from Silver Creek; presumably, the parasite was already present in the population prior to salvage (E. Gardner, AGFD, pers. comm. 2005).
Anchor worm (
Lernaea cyprinacea
) (Copepoda), also a nonnative species, is an external parasite, and is unusual in that it has little host specificity, infecting a wide range of fishes and amphibians. Additionally, infection has been known to kill large numbers of fish due to tissue damage and secondary infection of the attachment site (Hoffnagle and Cole 1997). Presence of this parasite in the Gila River basin is a threat to the Gila chub and other native fish. In July 1992, the BLM found Gila chub that were heavily parasitized by
Lernaea cyprinacea
in Bonita Creek. These fish were likely more susceptible to parasites due to physiological stress as a result of degraded habitat and decreased water flows due to water withdrawals. Clarkson and Creef (1993) suspected infestations by
Lernaea cyprinacea
in causing high mortality of stocked native fish, razorback sucker (
Xyrauchen texanus
) and Colorado pikeminnow (
Ptycocheilus lucius
).
D. The Inadequacy of Existing Regulatory Mechanisms
Existing regulatory mechanisms have not been adequate to prevent the continuing decline of Gila chub. Gila chub are primarily threatened by introductions of nonnative fishes. Fish introductions are illegal unless approved by the appropriate States. However, enforcement is difficult. Many nonnative fish populations are established through illegal introductions (Aquatic Nuisance Specie Task Force 1994). The use of live bait is permitted in Arizona for nine species of fish, crayfish, and tiger salamanders (
Ambystoma pigrimum
), all of which are nonnative to the State of Arizona and several of which are known to have serious adverse effects on native species, including the Gila chub. The portion of the State in which use of live bait is permitted is limited, and use of live bait is restricted in much of the Gila River system in Arizona (AGFD 2005c). The use of live bait is allowed in the Gila Basin in New Mexico (NMGF 2004).
The increasing restriction of live bait use will reduce the input of nonnative species into the Gila chub's habitat. However, it will do little to reduce unauthorized bait use or other forms of “bait-bucket” transfer (e.g., dumping of unwanted aquarium fish which may be invasive) not directly related to bait use. In fact, those other “bait-bucket” transfers are expected to increase as the human population of Arizona increases and as nonnative species become more available to the public through increased aquaculture, increased aquarium trade, and increased distribution through mechanisms such as the Central Arizona Project (CAP) aqueduct (Aquatic Nuisance Species Task Force 1994; U.S. Fish and Wildlife Service 2001a). The general public has been known to dump unwanted pet fish and other aquatic species into irrigation ditches such as the CAP aqueduct in the Phoenix metropolitan area (U.S. Fish and Wildlife Service 2001a).
A variety of existing international conventions and laws, and Federal and State regulations, provide limited protection to the Gila chub and its habitat. The Gila chub is included in Wildlife of Special Concern in Arizona, and State regulations prohibit collection of or fishing for Gila chub in Arizona except under special permit (AGFD 2005c). In New Mexico, Gila chub is listed as endangered, and collecting is prohibited except by special permit (NMGF 2004). In Mexico, the Gila chub is endangered and the collection of threatened and endangered species is prohibited (NORMA Oficial Mexicana 1994 (NOM-059-ECOL-1994)). The habitat of the Gila chub and other threatened and endangered species is protected from some activities in Mexico.
The Lacey Act, as amended (16 U.S.C. 3371 et seq.), provides some protection for the Gila chub. This legislation prohibits the import, export, sale, receipt, acquisition, purchase, and engagement in interstate or foreign commerce of any species taken, possessed, or sold in violation of any law, treaty, or regulation of the United States, any Tribal law, or any law or regulation of any State.
The Federal Land Policy Management Act of 1976 (43 U.S.C. 1701 et seq.) and the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.) direct Federal agencies to prepare programmatic-level management plans to guide long-term resource management decisions. In addition, the FS is required to manage habitat to maintain viable populations of existing native and desired nonnative vertebrate species in planning areas (36 CFR 219.19). These regulations have resulted in the preparation of a variety of land management plans by the FS and the BLM that address management and resource protection of areas that support, or in the past supported, populations of Gila chub. The FS has only limited ability to regulate introductions or stockings of nonnative species that prey on the Gila chub.
Many activities that affect the Gila chub and its habitat may occur outside of the States where the species occurs. For instance, activities such as atmospheric pollution from copper smelters or other actions that may be responsible for global amphibian declines may also affect Gila chub. State and Federal air quality regulations strictly regulate emissions from copper smelters, historically a major source of acidic rainfall and atmospheric cadmium and arsenic in southeastern Arizona, pollutants that may affect the Gila chub (Hale and Jarchow 1988). However, a major source of these pollutants has been copper smelters in Sonora, Mexico, which are not subject to the same regulations as in the United States (Hale et al. 1995; Blanchard and Stromberg 1987).
Wetland values and water quality of aquatic sites inhabited by the Gila chub are afforded varying protection under the Federal Water Pollution Control Act of 1948, as amended (33 U.S.C. 1251-1376) (known as the Clean Water Act), and Federal Executive Orders 11988 (Floodplain Management), and 11990 (Protection of Wetlands). Section 404 of
the Clean Water Act regulates dredging and filling activities in waterways.
The New Mexico Department of Game and Fish has adopted a wetland protection policy whereby the Department does not endorse any project that would result in a net decrease in either wetland acreage or wetland habitat values. This policy affords only limited protection to Gila chub habitat because it is advisory only; destruction or alteration of wetlands is not regulated by State law.
The State of Arizona Executive Order Number 89-16 (Streams and Riparian Resources), signed on June 10, 1989, directs State agencies to evaluate their actions and implement changes, as appropriate, to allow for restoration of riparian resources. Implementation of this regulation may reduce adverse effects of some State actions on the habitat of the Gila chub, although benefits to the species have not been documented.
Both Arizona and New Mexico regulate surface and groundwater withdrawal through the Arizona Department of Water Resources in Arizona and the Interstate Stream Commission and Office of the State Engineer for surface and groundwater in New Mexico. While these authorities provide some regulation that may provide protection to Gila chub habitat, in general, the Gila River basin, while fully appropriated, is subject to ongoing adjudication. In Arizona, significant regulation occurs only in Active Management Areas (AMAs); outside of these areas, there are no limits on groundwater pumping in Arizona (McKinnon 2005b; L. Graser, Arizona Department of Water Resources, pers. comm. 2005). All known Gila chub populations occur outside the designated AMAs.
In summary, the protection afforded by these and other Federal laws and regulations is inadequate to halt the loss of the Gila chub populations and their habitat.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Gila chub populations now remain fragmented and isolated to small stream segments and are vulnerable to those natural or manmade factors that might further reduce their population size. Random events, such as drought, floods, and wildfire, can decimate populations of Gila chub. Also, small populations are subject to genetic threats, such as inbreeding depression (reduced health due to elevated levels of inbreeding) and to genetic drift (a reduction in gene flow within the species that can increase the probability of unhealthy traits; Meffe and Carrol 1994).
Wildfires pose a threat to these remaining extant populations. The frequency and intensity of wildfires in the southwestern United States has increased over the past 10 years due to drought conditions, historical wildfire suppression activities, and increased recreational activities (e.g., camping). Efforts are underway to restore natural fire regimes to forest and grass lands. Gori and Backer (in press) found that using prescribed burns to mimic the historic fire regime improved watershed condition and Gila chub habitat in Hot Springs Creek. Unfortunately, most current work on restoring fire regimes is focused on areas of urban interface, and many decades will likely pass before natural fire cycles are restored on a landscape scale across the American southwest. A century of fire suppression has been exacerbated by livestock grazing that has led to unnaturally high fuel loadings (Cooper 1960; Covington and Moore 1994; Swetnam and Baison 1994; Touchan et al. 1995; White 1985). Forests that once frequently burned at low intensities now rarely burn, but when they do, it is often at stand-replacing intensity (Covington and Moore 1994). Fires in the southwest frequently occur during, or just prior to, the summer monsoon season. As a result, fires are often followed by rain that washes ash-laden debris into streams (Rinne 2004). It is usually such debris, rather than the fires themselves, that impact, and sometimes devastate fish populations (Rinne 2004), although direct effects from fire, including changes in temperature and water chemistry, can also cause fish morality. Indirect effects of fire also include watershed alteration that can alter streamflow, water quality, riparian vegetation, and instream sediment loads, all of which can drastically alter habitat for the Gila chub. Fire suppression can cause adverse affects to Gila chub from vegetation removal and road building, using fish habitats as water sources for fire fighting, and using fire retardants that are often toxic to aquatic species (see U.S. Fish and Wildlife Service 2004b for a thorough review of the effects of fire on fishes, including Gila chub, in Arizona).
The 2003 Aspen Fire in the Santa Catalina Mountains outside Tucson devastated the Gila chub population in Sabino Canyon. This population would have been extirpated were individual fish not salvaged by the Service, AGFD, and FS, and later reestablished using the salvaged stock (AGFD 2005a). The Cave Creek Complex Fire burned over 248,000 acres in summer 2005, threatening six Gila chub populations; individual fish were salvaged from Gila chub populations in Sycamore Creek, Indian Creek, and Silver Creek (Knowles et al. 2005).
The fragmentation of habitat and isolation of Gila chub populations has decreased the opportunity for additional gene flow to occur within these populations. Currently, the Gila chub has limited representation in each of the subunits within its historical range. As described above, dewatering has resulted in fragmentation of Gila chub populations, and water demands from a rapidly increasing human population are expected to further reduce habitat available to the Gila chub, and will likely further fragment populations. Fragmentation of Gila chub habitat increases vulnerability to extinction from threats of further habitat loss and competition from nonnative fish because immigration and recolonization from adjacent populations is less likely. In depth analyses of southwestern fish occurrence patterns (including Gila chub) led Fagan et al. (2002) to conclude that the number of occurrences or populations of a species is far less significant in determining extinction risk than is fragmentation of the species. Small populations and limited gene flow can also cause inbreeding depression and genetic drift that can further reduce the health of a population (Meffe and Carroll 1994). To achieve recovery, isolated populations may need to be augmented or Gila chub may need to be reintroduced into areas where they are extirpated.
Among the most important climatic factors affecting Arizona's rivers and streams is the variable pattern of rainfall, which includes winter precipitation and summer thunderstorms that can be accompanied by flash floods. Flooding is a natural part of the hydrological cycle and is an important part of a river regime. Life cycles of plant and aquatic life are tied to annual floods. Stream biota is adapted to the seasonal cycles of flooding and low flows, which helps determine the biomass of fishes. Many native stream fishes of the southwest are morphologically and behaviorally adapted to survive periodic flooding (Harrel 1978; Meffe 1984; Minckley and Deacon 1991). However, in some cases, such as Sabino Canyon in the Santa Catalina Mountains in southeastern Arizona, these erratic flows can decimate already reduced populations.
Extensive human alteration of watersheds that has occurred over the past 150 years in the lower Colorado River basin has resulted in changes in the hydrologic regimes of the rivers and
in the geomorphology of the river channels. Seasonal fluctuations in river channels due to droughts, floods, dams, and high human demand for water has had adverse impacts on the available surface flow, which restricted the distribution of Gila chub into small, isolated populations. This fragmentation of habitat makes the Gila chub very vulnerable to threats from further habitat loss and competition from nonnative fish. Drought has significantly increased substantial changes in the natural hydrology of southwest rivers and streams, including increased peak flows and lowered water tables. Droughts in the southwest may cause increased declines in Gila chub, particularly as human demand increases for the dwindling water supplies. This human-initiated change is exacerbated by the naturally highly variable climate of the area. Peaks of flood flows have increased in volume while moving through the system more rapidly, so that damaging floods have become more frequent and more destructive. This increase in destruction is also tied to removal of riparian vegetation and encroachment of agricultural fields and buildings upon the floodplain. Flooding destruction results in increased channelization and flood control measures that further alter the stream channel and hydrologic regime. On the other hand, low flows have become lower and last longer, thus decreasing habitat quantity and quality during critical times of the year for Gila chub.
Finding
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the Gila chub in determining that this species is in danger of extinction throughout all or a significant portion of its range. The habitat and range of the Gila chub are threatened with destruction, modification, and curtailment. Existing regulatory mechanisms do not provide adequate protection for these species, and other natural and manmade factors affect their continued existence. Because this species has a fragmented range, its populations are disconnected and isolated from each other, and potential habitat areas are isolated and separated by large areas of unsuitable habitat. Gila chub are therefore particularly vulnerable to localized extirpation should their habitat be degraded or destroyed. Because the connectivity of the habitat is limited, populations will have little opportunity to leave degraded habitat areas in search of suitable habitat. As a result, one contamination event, either physical or biological, or a period of drought in the aquatic habitat where the species is found could result in the loss of an entire population, of which there are few. Additionally, we have found that these fragmented populations are subject to a variety of imminent threats. Nonnative aquatic species, which can eliminate Gila chub via predation and competition, are present in many areas where there are populations of Gila chub. Arizona and New Mexico are arid States that are experiencing increasing human population growth, which is placing increasing demands on available water supplies. Surface water diversion and groundwater withdrawal threaten to eliminate numerous populations of the Gila chub. Habitat alteration due to numerous human activities threatens remaining Gila chub habitat.
The Act defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range, whereas a threatened species is defined as any species likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Without protections, the Gila chub will become extinct in the foreseeable future due to these primary threats: (1) 85 to 90 percent of Gila chub habitat has been degraded or destroyed, and further degradation and destruction is ongoing as a result of various land use activities that degrade habitat (such as livestock grazing and water use); (2) extant populations of Gila chub are small and occupy habitat that has become severely fragmented, reducing chances for recolonization; and (3) competition with, and predation from, nonnatives is a major and increasing threat. The current status of the species and the threats described above led us to determine that the Gila chub meets the definition of an endangered species pursuant to section 3 of the Act. We are therefore listing Gila chub as an endangered species in this final rule.
Critical Habitat
Critical habitat is defined in section 3 of the Act as—(i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands.
To be included in a critical habitat designation, the habitat within the area occupied by the species must first have features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical habitat only if the essential features thereon may require special management or protection. When the best available scientific data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. An area currently occupied by the species but was not known to be occupied at the time of listing will likely be essential to the conservation of the species and, therefore, included in the critical habitat designation.
The Service's Policy on Information Standards Under the Endangered Species Act, published in the
Federal Register
on July 1, 1994 (59 FR 34271), and section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (P.L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific data available. They require Service biologists to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas
are critical habitat, a primary source of information is generally the listing package for the species. Additional information sources include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (P.L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical habitat designation, will continue t
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