# Endangered and Threatened Wildlife and Plants; Endangered Species Status for Peppered Chub and Designation of Critical Habitat > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-03703 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** February 28, 2022 - **Citation:** 87 FR 11188 ## Text DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2019-0019; FF09E21000 FXES1111090FEDR 223] RIN 1018-BD29 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Peppered Chub and Designation of Critical Habitat AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for the peppered chub ( Macrhybopsis tetranema ), a freshwater fish species historically found in Colorado, Kansas, New Mexico, Oklahoma, and Texas, which is now extirpated from all but six percent of its historical range. We also designate critical habitat. In total, approximately 872 river miles (1,404 river kilometers) in New Mexico, Oklahoma, and Texas fall within the boundaries of the critical habitat designation. We are excluding approximately 197 river miles (317 river kilometers) of critical habitat in Kansas that was included in the proposed critical habitat designation. This rule adds the species to the List of Endangered and Threatened Wildlife and extends the Act's protections to the peppered chub designated critical habitat. DATES: This rule is effective March 30, 2022. ADDRESSES: This final rule is available on the internet at https://www.regulations.gov and https://www.fws.gov/southwest/es/arlingtontexas. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at https://www.regulations.gov at Docket No. FWS-R2-ES-2019-0019. The coordinates or plot points or both from which the maps are generated are included in the decision file for this critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS-R2-ES-2019-0019 and at https://www.fws.gov/southwest/es/arlingtontexas. Any additional tools or supporting information that we developed for this critical habitat designation will also be available at the Service's website set out above and at https://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor, U.S. Fish and Wildlife Service, Arlington, Texas, Ecological Services Field Office, 2005 Northeast Green Oaks Boulevard, Suite 140, Arlington, TX 76006; telephone 817-277-1100. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered in the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the peppered chub meets the definition of an endangered species; therefore, we are listing it as such and finalizing a designation of its critical habitat. Both listing a species as an endangered or threatened species and designating critical habitat can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process. What this document does. This rule lists the peppered chub ( Macrhybopsis tetranema ) as an endangered species and designates 872 river miles (1,404 river kilometers) in three units in Oklahoma, New Mexico, and Texas as critical habitat. The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that habitat degradation and fragmentation (Factor A), resulting from altered flow regimes, impoundments, and other stream fragmentation, adversely modified geomorphology, decreased water quality, and the introduction and proliferation of invasive species (aquatic and vegetative), pose the largest risk to the viability of the species. Changes in the hydrological regime are primarily related to habitat changes: The loss of flowing water, instream habitat fragmentation, disconnection of the floodplain, and impairment of water quality. The effects of climate change (Factor E) may be exacerbating habitat degradation and fragmentation. Although habitat degradation and fragmentation are the primary stressors to the peppered chub, we present a broader discussion of the threats to the species below. Additionally, we found that the existing regulatory mechanisms do not adequately reduce or remove the threats acting on the species and the threats continue to affect the species such that it warrants listing (Factor D). We are aware of no conservation efforts at this time that sufficiently reduce or remove the identified threats to the species and the threats continue to affect the species such that listing is warranted. The Service, States (New Mexico and Texas), and academic partners are conducting monitoring efforts, and plans for captive propagation efforts are underway, but none are finalized yet. Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such areas as part of critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. Previous Federal Actions Please refer to the proposed listing and critical habitat rule (85 FR 77108) for the peppered chub published on December 1, 2020, for a detailed description of previous Federal actions concerning this species. Summary of Changes From the Proposed Rule We reviewed the comments related to our proposed listing determination and critical habitat for the peppered chub (see Summary of Comments and Recommendations, below), completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act, reviewed our analysis of the physical or biological features essential to the long-term conservation of the peppered chub, and finalized the economic analysis of the designation. This final rule incorporates changes from our 2020 proposed listing and critical habitat rule (85 FR 77108; December 1, 2020) based on the comments that we received and have responded to in this document and considers efforts to conserve the peppered chub. Specifically, during the public comment period for the proposed rule, we received a request to exclude critical habitat from the State of Kansas because of an ongoing effort to include peppered chub in a candidate conservation agreement with assurances (CCAA) and a safe harbor agreement (SHA). The Kansas Aquatic Species Conservation Agreement: A Programmatic Safe Harbor Agreement and Candidate Conservation Agreement with Assurances for Fourteen Aquatic Species in Kansas (Agreement) was completed on December 15, 2021. The conservation efforts that will be undertaken because of the Agreement, and subsequent benefit to the species, outweigh the benefits of including these areas in the critical habitat designation. Based on our analysis, which incorporates the value of the Agreement, we are excluding Unit 3 and a portion of Unit 4 in Kansas, a net decrease of 196 river miles (rmi) from the proposed rule (table 3, below). More information can be found below in the Exclusions section. Summary of Comments and Recommendations In the proposed rule published on December 1, 2020 (85 FR 77108), we requested that all interested parties submit written comments on the proposal by February 1, 2021. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the USA Today on December 3, 2020. We did not receive any requests for a public hearing. During the comment period on the proposed listing and critical habitat rule, we received approximately 22 written comment letters. All substantive information received during the comment period has either been incorporated directly into this final determination or addressed in our responses below. Peer Reviewer Comments As discussed in Supporting Documents above, we received comments from one peer reviewer. We reviewed all comments we received from the peer reviewer for substantive issues and new information regarding the information contained in the species status assessment (SSA report). The peer reviewer generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions that improved the SSA report. Comments From States (1) Comment: Multiple State agency and industry commenters did not support designating unoccupied critical habitat within those States. Several indicated their view that the proposed unoccupied units would not support peppered chubs in their current conditions. Our response: Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Unoccupied areas designated as critical habitat are not limited to areas that could support a self-sustaining population in their current condition but rather must contain at least one of the physical or biological features (PBFs) determined by the Secretary to be essential for the conservation of the species (50 CFR 424.12). The areas that we have identified as critical habitat that are unoccupied contain at least one of the PBFs required by the peppered chub and are essential for the conservation of the species. The areas are more fully described below in the individual unit descriptions. Establishing healthy populations in these two currently unoccupied units (Unit 2 and Unit 4) would increase the resiliency, representation, and redundancy—and therefore, the viability—of the species. If established, each unoccupied unit contributes ecological diversity (representation) or guards against catastrophic events (redundancy) or both. (2) Comment: A State and multiple public commenters stated that designation of both occupied and unoccupied critical habitat would discourage private landowners from allowing access for monitoring and habitat restoration, as well as participating in reintroduction efforts. Our response: According to section 4(a)(3)(A) of the Act, the Secretary of the Interior shall, to the maximum extent prudent and determinable, concurrently with making a determination that a species is an endangered species or a threatened species, designate critical habitat for that species. As directed by the Act, we proposed as critical habitat those areas occupied by the species at the time of listing and that contain the physical or biological features essential for the conservation of the species, which may require special management considerations or protection. The Act does not provide for any distinction between land ownerships in those areas that meet the definition of critical habitat. When prudent, the Service is required to designate critical habitat under the Act. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. 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 the government or public to access private lands. The designation of critical habitat has little effect on private lands. This designation provides protection under section 7 of the Act and requires only Federal agencies to consult with the Service and ensure that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Because of this, we hope that we can continue our partnerships with local landowners within the historical range of the peppered chub and move collaboratively towards recovery of the species. (3) Comment: Several commenters stated that the designation of critical habitat is unnecessary because it would not provide any additional benefit to the species, and that existing regulatory mechanisms and habitat restoration efforts ( e.g., the Arkansas River Shiner Management plan) are adequate for the conservation of the species. Our response: The Service is not relieved of its statutory obligation to designate critical habitat based on the contention that it will not provide additional conservation benefit. In Ctr. for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003), the court held that the Act does not direct us to designate critical habitat only in those areas where “additional” special management considerations or protection is needed. See also Cape Hatteras Access Preservation Alliance v. U.S. Dept. of Interior, 731 F.Supp.2d (D.D.C. 2010). If any area provides the PBFs essential to the conservation of the species, even if that area is already well managed or protected, that area may still qualify as critical habitat under the statutory definition. The Canadian River Municipal Water Authority's Arkansas River Shiner Management Plan aims to maintain minimum flows and control invasive vegetative ( e.g., saltcedar) encroachment in the South Canadian River upstream of Lake Meredith in Texas to Logan, New Mexico. Although we commend the Canadian River Municipal Water Authority and its partners for investing time, effort, and funding for conservation on the Canadian River, the habitat conservation efforts for Arkansas River shiner to date have not resulted in an improvement of the status of the peppered chub. In identifying critical habitat for peppered chub, we identified those areas that meet the definition of critical habitat under section 3(5)(A) of the Act. Although management actions for one listed species may overlap other species' habitat or be mutually beneficial to multiple listed species, our analysis indicates that habitat conditions such as adequate stream flow and appropriate stream geomorphology have continued to decline from the condition needed to conserve the peppered chub. As a result, we conclude that this conservation plan, in its current form, is not sufficient to reduce the threats to the last population of peppered chub. Even with this conservation plan in place, the current resiliency of the Upper South Canadian River Resiliency Unit is in low condition. (4) Comment: Several commenters took issue with the SSA report not being peer reviewed at the time of the publication of the proposed rule. One commenter stated that the proposed rule format does not comply with the ESA and applicable implementing regulations in relying on an SSA that is not peer reviewed. The commenter cites the Service's peer review policy (59 FR 34270; July 1, 1994) and section II of the Office of Management and Budget's (OMB) December 16, 2004, Final Information Quality Bulletin for Peer Review (revised June 2012), which both require agencies to conduct peer review on influential scientific information prior to dissemination. Our response: Section II of the OMB December 16, 2004, Final Information Quality Bulletin for Peer Review requires each agency to subject influential scientific information to peer review prior to dissemination. The document further requires that, for dissemination of influential scientific information, agencies have broad discretion in determining what type of peer review is appropriate and what procedures should be employed to select appropriate reviewers. The Service follows its peer review policy (59 FR 34270), also referenced by the commenter. Section A(1)(a) of the peer review policy states that the Service will solicit the expert opinions of three appropriate and independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomy, population models, and supportive biological and ecological information for species under consideration for listing. The policy does not state that the peer review must occur prior to the comment period for a proposed listing nor that the Service is required to receive responses from peer reviewers prior to the comment period provided for the proposed listing. The Service actively sought peer review of the SSA and proposed rule as required by both the Final Information Quality Bulletin for Peer Review and the Service's peer review policy. We solicited peer review from nine independent peer reviewers on December 4, 2020. Since publication of the proposed rule, we solicited peer review a second time and received a response from one peer reviewer. Per the peer review policy, we summarize the peer review we received here in the Peer Reviewer Comments section. (5) Comment: One commenter stated that current restoration efforts, which depend on Federal funding, include the treatment of nonnative invasive species, mastication of standing dead invasive species, installation of riparian fencing where necessary, and maintenance of previously treated areas. Due to the dependence on Federal funding, any successful restoration efforts would be delayed and constrained by the consultation requirements imposed by the peppered chub's listing and critical habitat designation. Our response: The Act states that the Secretary shall make determinations required by subsection (a)(1) of the Act solely on the basis of the best scientific and commercial data available to her after conducting a review of the status of the species. Listing decisions are not dependent on possible funding delays caused by new consultation requirements imposed by the listing. However, critical habitat designations do consider the economic impacts including section 7 consultations. We conducted an economics analysis that found that there was likely to be no significant economic impact from this designation of critical habitat and that the additional costs are expected to be due to the additional incremental administrative costs from the consultation process in considering adverse modification of the critical habitat (IEc 2019, Section 6). Additionally, as stated below in the Available Conservation Measures section, following publication of this final rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Colorado, Kansas, New Mexico, Oklahoma, and Texas will be eligible for Federal funds to implement management actions that promote the protection or recovery of the peppered chub. (6) Comment: Several States and one industry commenter raised concerns about how the listing and designation of critical habitat will affect deliveries of water from reservoirs and groundwater pumping for municipal use and agriculture, and the potential regulatory and financial burdens of the proposed action on water delivery and use. Our response: Additional information about how we conducted our economic analysis, and how we incorporated water delivery and use, can be found in our screening memo (IEC 2019, entire) and our incremental effects memo (Service 2019, entire). The designation of critical habitat would not impose any such regulatory or financial burdens on non-Federal actions such as those indicated, where no Federal nexus exists. Groundwater pumping that does not occur on Federal lands would not be subject to regulation under section 7, so long as there is no Federal nexus. Further, no reservoirs and dams occur within the designated critical habitat units and would only be subject to section 7 consultation if there is a Federal nexus and an upstream dam may adversely modify the critical habitat designation. Additionally, when there is a Federal nexus, under section 7 of the Act when evaluating the effects on critical habitat, we consider impacts from ongoing State water management operations that are not within the agencies' discretion to modify to be part of the baseline of an effects analysis. Service policy states that section 7 consultation should result in measures that minimize the impacts of incidental take to the extent reasonable and prudent (Endangered Species Consultation Handbook, 4-50 (March 1998)). They should be developed in coordination with the action agency and applicant, if any, to ensure that the measures are reasonable, that they cause only minor changes to the project, and that they are within the legal authority and jurisdiction of the agency or applicant to carry out. Therefore, they must be implementable under the legal regimes that apply in the situation being analyzed. (7) Comment: Several commenters state that introducing section 10(j) experimental populations within the unoccupied critical habitat units stand a greater chance of making significant progress toward recovery of the species than does continued regulation of critical habitat and potential associated litigation. Our response: The Service has determined that the areas being designated as unoccupied critical habitat units are essential for the conservation of the species. Therefore, they meet the Act's definition of critical habitat and should be designated as such. Further, we find that section 10(j) experimental population would not provide for the protection for the habitat within these areas that we have determined is needed for the conservation of the species. (8) Comment: Two commenters raised concerns that the use of relative abundance as presented lacked scientific rigor and is being inappropriately interpreted. The commenters argued that conducting a trend analysis with relative abundance data provides weak evidence of one species' resiliency. Further, it is potentially misleading because it is affected by changes in abundance of other species in the catch, which may have no bearing on the status of the target species. Our response: Using relative abundance (also referred to as percent composition) to infer species abundance is not appropriate and would be misleading, as it is inherently driven by the abundance of other species. Although measures of absolute abundance and densities would have provided additional useful metrics for our resiliency analysis, the analysis was not possible due to data limitations. Instead, we calculated relative abundance to standardize the data (Anderson et al. 1995, p. 315; Brewer et al. 2007, p. 328; Perkin and Gido 2011, p. 373). As discussed in our SSA report, we assessed relative abundance “as one means to evaluate potential shifts in fish community structure” (not overall abundance), which is well established in the literature (Mendelson and Jennings 1992, entire; Weaver and Garman 1994, pp. 163, 166; Bonner and Wilde 2000, pp. 192-194; Onorato et al. 2000, pp. 142, 145-152). Potential change in community structure is one important indicator of ecosystem change and has implications for species resiliency within that system. We also examined two relative abundance metrics (Baseline Condition and Trend Analysis), but only the former was included as a metric for assessing peppered chub resiliency. Due to limited data for peppered chub, we determined that the quasi-Poisson regression that we used for trend analysis (which does account for variability in the data) was not appropriate for that species. Regarding the comment that the use of relative abundance data alone provides weak evidence of population resiliency, we agree. One should not draw conclusions from this measure alone assessing the resiliency of a population. As provided in our SSA, resiliency analyses for peppered chub considered eight metrics: Three examining population demographics and five examining habitat/flow metrics. (9) Comment: One commenter noted that the SSA considered the decade with the highest capture ratios (1990s; 95 percent) to be the baseline condition and deemed “good” condition to be within 20 percent of that scenario. The commenter argued that capture ratios in no other decade approach 95 percent, suggesting that this may be an anomalously high number rather than a true baseline. Our response: We evaluated the overall resiliency of each population of peppered chub using eight different metrics, one of those metrics was the capture ratio. Our capture ratio assessment was based on approximately 70 years of survey data, including 555 unique survey events. We separated the analysis by decade to evaluate differences over time, while still providing adequate number of surveys (per decade) to determine an “optimal” reference condition for this population resiliency metric. The decade referenced by the commenter included a total of 185 surveys spanning a ten-year period. Given the large number of surveys and relatively long span of time (particularly for a species that spawns annually), it is our determination that this decade serves as a reasonable representation of optimal capture ratios for a peppered chub population. We should also note that using the next best decade (2000s) as our optimal reference condition would still have resulted in a `fair' resiliency score for this metric. Our database indicates a total of 185 fish collection surveys in the 1990s from the Upper South Canadian River between Ute Reservoir and Lake Meredith, of which 176 surveys collected at least one peppered chub, resulting in a capture ratio of 95 percent. This compares to the 2000s, at which time 142 of 189 surveys (75 percent) collected peppered chub, and the 2010s during which the survey results were 48 of 101 (48 percent). Two variables that could artificially inflate the likelihood of capturing a peppered chub, thus affecting capture ratios, are greater survey effort and/or surveying locations more likely to have peppered chub. Neither of these two variables apply to the 1990s surveys. The total number of fish collected per site, on average, was greater in both the 2000s and 2010s, indicating effort in those decades was greater than in the 1990s. Additionally, the geographical distribution of surveys was relatively similar among decades, indicating that the higher ratios in the 1990s were not artificially driven by surveying sites more likely to have peppered chub. Based on information from our survey database, capture ratios of 95 percent in the 1990s correctly represent peppered chub presence at that time. (10) Comment: One commenter stated that the proposed rule overly relies on the SSA for an evaluation of species threats under each of the five listing factors, and neither the proposed rule nor SSA provides a systematic factor-by-factor evaluation of threats. The SSA is not intended to evaluate the identified threats for a species under each of the five listing factors, as is done in a 12-month finding and proposed rule under section 4(a)(1) of the Act. The commenter argues that the Service has failed to provide the most fundamental evaluation of the listing factors from the 12-month findings, as provided in section 4(a)(1) of the ESA. Our response: Under section 4(a)(1) of the Act, the Service may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We are also required to consider any conservation measures made by any State or foreign nation regarding the species. The Service provided the evaluation of the listing factors in the proposed rule in The basis for our action section and the Determination of Peppered Chub Status section (85 FR 77108; December 1, 2020). Using the SSA framework results in a biological risk assessment, the SSA report, which is designed to aid decisionmakers who must use the best available scientific information to make policy-guided decisions. The SSA informs, but is not, the decision. Using the conservation biology principles of representation, resiliency, redundancy, the SSA provides a scientifically rigorous characterization of species status that focuses on the likelihood that the species will sustain populations within in the wild beyond a biologically meaningful timeframe, its level of viability, along with key uncertainties in that characterization. The Determination of Peppered Chub Status section clearly articulates how we arrived at our determination for an endangered status using the five factors from section 4 of the Act (16 U.S.C. 1533). (11) Comment: One commenter asserted that the proposed rule relies on a paradigm that the peppered chub eggs and larvae need high water to keep the propagules suspended with subsequent return of fish to natal areas, tens or hundreds of miles upstream. The commenter argues that this paradigm ignores an alternative paradigm that the semi-buoyant eggs and larvae were historically retained near natal areas in laterally expansive floodplains and are now transported downstream because of a contemporary narrow and entrenched river channel. The commenter states that, in focusing on the perceived need to keep the propagules afloat with high water, the Service fails to recognize that, historically, most propagules probably did not drift longitudinally downstream but laterally into inundated floodplains and returned to the main channel with receding water levels. Our response: The proposed rule and SSA report recognize the potential utility of wetted floodplain habitats to support larval nursery habitat for peppered chub. The semi-buoyant eggs of peppered chub remain suspended in water until hatching, and thereby require currents to maintain suspension in the water column until sufficient development to a free-swimming stage (Bottrell et al 1964, p. 398; Robison and Buchanan 1988 p. 183; Wilde et al. 2000, p. 107). In more lentic habitats, eggs may be deposited on sediment and covered, leading to lack of oxygen and suffocation. This requirement for flows of some velocity does not necessarily translate to a need for “high water” in all natal areas. However, discharges of likely increased magnitude would be required for inundation of floodplains to serve as nursery habitats. Restored floodplains and managed river flows have potential to benefit peppered chub habitats. However, in recent history, there is often less water in the system and because of this water less frequently reaches the floodplain. Because the floodplains are less available for the reproduction of peppered chub, compared to historical conditions, river length is now more important for successful reproduction. The proposed rule and SSA use reach length as an indicator of habitat condition, since fish can successfully reproduce given adequate uninterrupted stream length as well. Sufficient reach length is needed to allow the time necessary for development of eggs and larvae floating downstream until they reach a motile, free-swimming stage. Larval fish may require strong currents to keep them suspended until they are capable of horizontal movement and are strong enough to leave the main channel. Physical barriers are likely unpassable by egg and larval fishes, and adults passing downstream remain isolated and unable to move downstream. This situation results in progressive impacts over time from upstream to downstream. Longer reach lengths may not be necessary to meet the needs of an individual peppered chub within its short lifetime. By facilitating reproduction and population growth, these unfragmented river segments guard against extirpation, and increase species resiliency. We are unaware of any data/information to conclude that a wetted floodplain in close proximity to natal areas would have the velocities to keep eggs buoyant for the appropriate amount of time necessary for fry development. (12) Comment: One commenter notes the discrepancies among definitions of proposed critical habitat for peppered chub (up to bankfull) and existing definitions of critical habitat for Arkansas River shiner (300 feet on each side of the river channel at bankfull) and the sharpnose and smalleye shiners (areas beyond the bankfull river channel by 98 feet on each side). The commenter recommends that these discrepancies be better explained and justified, as areas above bankfull discharge are important to provide food sources and are subject to encroachment by saltcedar and other invasive vegetation that translate into impacts on river geomorphology, instream habitat for imperiled fishes, and stream flows. Our response: Adjacent upland or terrestrial areas that are not below the ordinary bankfull (or high-water line) are not included in designated critical habitat. However, we would anticipate conducting section 7 consultations with Federal agencies for projects on Federal lands or for projects with a Federal nexus if a project had indirect impacts to the peppered chub's critical habitat or on the species itself. In general, activities in riparian areas should be conducted in such a manner as to protect adjacent streams. See Physical or Biological Features Essential to the Conservation of the Species (below). Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Public Comments (13) Comment: One commenter stated that oil and gas activity is widespread and designation of unoccupied critical habitat would impose unnecessarily significant costs without providing measurable, probable benefits for the protection of the species. These costs may preclude or render economically impractical oil and gas activities preventing private landowners from developing their minerals. Another commenter was concerned that the Service had not clearly delineated in the proposed rule to what extent, in the geographic areas occupied by the species, that livestock production might be subject to a section 9 enforcement and what economic impact such a critical habitat designation might have. Our response: The designation of critical habitat would not impose any such regulatory or financial burdens on non-Federal actions for private landowners such as those indicated, so long as there was no Federal nexus. If there is a Federal nexus and the action of the Federal agency may affect the species or its critical habitat designation, then the Federal agency would need to consult with the Service. We do identify oil and gas exploration and extraction activities as an activity that may require consultation to avoid adversely modifying critical habitat, under section 7(a)(2) of the Act and if there is a Federal nexus. If during consultation with a Federal agency, the Service finds that an activity is likely to adversely modify a critical habitat designation, the Service will work with the Federal agency to identify reasonable and prudent alternatives. Livestock production and exploration and extraction were taken into consideration during our economic analysis. For each unit, we found that there would be a non-significant incremental administrative cost from the designation to the Service and the Action agencies (IEc 2019, pg. 2). For further information, the full economic screening analysis can be viewed on https://www.regulations.gov. Section 9 of the Act covers prohibited acts as they relate to endangered species. The actions outlined in section 9 of the Act are prohibited after the effective date of this rule (see DATES , above). However, in the Available Conservation Measures section (below), we identify activities that are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements. In that list we include, normal livestock grazing and other standard ranching activities within riparian zones that do not destroy or significantly degrade peppered chub habitat. We had also included this in the proposed rule as well (85 FR 77108). (14) Comment: One commenter noted that the proposed rule suggests the Act would allow normal livestock grazing and other standard ranching activities within riparian zones that do not destroy or significantly degrade peppered chub habitat. However, the proposed rule does not identify what livestock activities would not constitute normal livestock grazing. Our response: We are not able to provide an exhaustive list of what activities would and would not constitute normal livestock grazing. However, activities that do not result in a violation of section 9 of the Act and are not subject to a Federal nexus would not be subject to section 11 (penalties and enforcement) of the Act. Based on our section 7 consultation experience within the historical range of peppered chub and because we contacted Federal agencies during our economics analysis and they did not comment on an increase in consultation for grazing (while they did anticipate increases in consultations for other activities; IEc 2019, entire), we anticipate consultations to be rare for grazing and ranching activities. We encourage all local landowners with questions specific to their property or project to contact their local Ecological Services Field Office. A list of field offices and their contact information can be found at: https://www.fws.gov/ecological-services/map/directory.html. (15) Comment: One commenter stated that the economic impact analysis does not discuss what impact the proposed critical habitat designation would have on Confined Animal Feeding Operations that discharge under Clean Water Act section 402 permits. Typically, each feedyard with over 1,000 head of cattle will have and maintain a National Pollution Discharge Elimination System (NPDES) permit under section 402 of the Clean Water Act. These permits are subject to renewal every 5 years. Under the proposed rule, feedyards with NPDES permits in the river basins where critical habitat is being proposed would likely be required to undergo a section 7 consultation. Our response: We considered animal feeding operations in our incremental effects memo (IEM) (IEM 2019, p. 9). Additionally, pollutant discharge and consultations with the Environmental Protection Agency were covered in the screening analysis that would cover the activity mentioned by the commenter (IEc 2019, pp. 7 & 8). The screening analysis found that the rule is unlikely to meet the threshold for an economically significant rule, with regard to costs (IEc 2019, pg. 2). Both documents can be found at: https://www.regulations.gov; Docket No. FWS-R2-ES-2019-0019. Supporting Documents A species status assessment (SSA) team prepared an SSA report for the Arkansas River shiner ( Notropis girardi ) and the peppered chub. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of these species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought peer review of the SSA report. We sent the SSA report to nine independent peer reviewers during two separate peer review requests and received one response. We solicited peer review a second time because we received no responses to our first request. The purpose of peer review is to ensure that our listing determinations and critical habitat designations are based on scientifically sound data, assumptions, and analyses. The peer reviewer who responded has expertise in the biology, habitat, and threats to several broadcast-spawning fish species. The Service also sent the SSA report to 21 partners, including scientists with expertise in peppered chub threats and habitat, for review. We received review from eight partners (Colorado Parks and Wildlife, New Mexico Game and Fish, Texas Parks and Wildlife, two individuals from Oklahoma Department of Wildlife Conservation, and three individuals from universities in Oklahoma). Information received from the peer reviewer and partners is incorporated into this final rule and informed our determination. We also considered all comments and information received from the public during the comment period. I. Final Listing Determination Background A full description of the species and its habitat can be found in chapter 2 of the SSA report. The peppered chub was historically known throughout the Arkansas River basin in Colorado, Kansas, New Mexico, Oklahoma, and Texas. Peppered chub were typically found in main channels of wide, shallow, sandy-bottomed rivers. The species prefers shallow channels where currents flow over clean fine sand, and, generally, adults avoid calm waters and silted stream bottoms. Peppered chub have adapted to tolerate the adverse conditions of the drought-prone prairie streams that they inhabit. The peppered chub is a small cyprinid minnow with a fusiform (tapering at both ends) body shape rapidly tapering to a conical head. It has a nearly transparent slender body with dark dots scattered on its back. Generally, adult fish reach a maximum length of 3 inches (in) (77 millimeters (mm)) and do not live beyond 2 years. Gilbert first described the peppered chub in 1886 (pp. 208-209). Prior to Eisenhour's 1999 dissertation (published 2004), the peppered chub was classified as one of six subspecies within the Macrhybopsis aestivalis (commonly: Speckled chub) complex. Eisenhour examined morphometrics (measurements of external shape), meristics (counts of features of fish), pigmentation, and tuberculation across the range of the complex. He concluded that the results supported the recognition of five individual species, including Macrhybopsis tetranema, or peppered chub. The American Fisheries Society also accepts the species as the peppered chub (Page et al. 2013, p. 28). Habitat for the peppered chub historically consisted of the main channels of wide, shallow, sandy-bottomed rivers and larger streams of the Arkansas River basin, with a noted preference for river segments nearer the headwaters, as compared to other Macrhybopsis in the Arkansas River basin. Adults prefer shallow channels where currents flow over clean fine sand and generally avoid calm waters and silted river bottoms. Peppered chub have key adaptations that enable them to tolerate the adverse conditions of the drought-prone prairie rivers that they inhabit, including a relatively high capacity to endure elevated temperatures and low dissolved oxygen concentrations. They also appear to be often associated with turbid waters. Peppered chub are members of a reproductive guild that broadcast-spawn semibuoyant eggs, which remain suspended in the water column by the current until hatching. This reproductive strategy appears to be an adaptation to highly variable environments where stream flows are unpredictable and suspended sediment deposition can cover eggs laid in nests or crevices. Without continuous stream flow of sufficient distance, eggs sink to the bottom where they may be covered with silt and suffocate due to the lack of oxygen. In addition to adequate stream discharge, an appropriate reach length is also needed to allow the time necessary for egg and larval development into a motile, free-swimming stage. After hatching, flowing water provides the extended development time needed by larval fish. Larval fish may require strong currents to keep them suspended in the water column until they are capable of horizontal movement and until the fish are strong enough to leave the main channel. Regulatory and Analytical Framework Regulatory Framework Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future. The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions. It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors. Analytical Framework The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be listed as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket FWS-R2-ES-2019-0019 on https://www.regulations.gov. To assess peppered chub viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm, or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability. The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision. Summary of Biological Status and Threats In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. For a more detailed description, refer to the SSA report (Service 2022, entire) and the proposed rule (85 FR 77108; December 1, 2020). Summary of Analysis A full description of our analysis (analytical methods, threats, current condition, and future condition for the peppered chub can be found in the SSA report (Service 2022); below, we present a summary of the results of the SSA. The peppered chub is a small cyprinid minnow once widespread and common in the western portion of the Arkansas River basin in Kansas, New Mexico, Oklahoma, Arkansas, and Texas. Habitat historically consisted of the main channels of wide, shallow, sandy bottomed rivers and larger streams of the Arkansas River basin, with peppered chubs appearing more adapted for headwater areas. Adults prefer shallow channels where currents flow over clean fine sand, and generally avoid calm waters and silted stream bottoms. Peppered chub have adapted to tolerate the adverse conditions of the drought-prone prairie streams they inhabit, including a high capacity to endure elevated temperatures and low dissolved oxygen concentrations. Peppered chub are members of a reproductive guild that broadcast spawns semibuoyant eggs, which are kept suspended until hatching in flowing water. This reproductive strategy appears to be an adaptation to highly variable environments where stream flows are unpredictable and suspended sediments and shifting sand can cover eggs laid in nests or crevices. Without stream flow, eggs sink to the bottom where they may be covered with silt and die. After hatching, adequate stream length likewise provides the extended flow time needed by larval fish which may require strong currents to keep them suspended in the water column until they are capable of horizontal movement and strong enough to leave the main channel. Channel complexity is also correlated with stream length resulting in slower transport rates in streams with wider and more braided channel morphology which allow more time for developing eggs and larva to reach their free-swimming stage. The peppered chub historically inhabited numerous rivers of the Arkansas River basin and, without the presence of dams or other structures, it is likely that individuals within populations exhibited some level of genetic exchange among these rivers. To analyze population-level resiliency, we divided the range of the peppered chub into five “resiliency units” or populations (we use those terms interchangeably in this document) (see figure below; we do not include the Lower Arkansas River in the resiliency units for the SSA for the peppered chub because that portion of the watershed is not part of the current or historical range of the species). We described population resiliency and assessed representation and redundancy among these units. However, to assess conditions within each resiliency unit at a somewhat finer scale, we subdivided each resiliency unit into multiple subunits. This downscaling allows us to compare differences in conditions within a given resiliency unit and to understand the drivers affecting current condition (see the SSA report for further details). ER28FE22.000 Maintaining representation in the form of genetic or ecological diversity is important to maintain the peppered chub's capacity to adapt to future environmental changes. The peppered chub must retain populations throughout its range to maintain the overall potential genetic and life-history attributes that can buffer the species' response to environmental changes over time. We define redundancy for the peppered chub as multiple, sufficiently resilient populations distributed throughout the species' historical range. Thus, multiple, adequately resilient populations, coupled with a relatively broad distribution, contribute to species-level viability. Risk Factors for Peppered Chub Stressors affecting the viability of the peppered chub include altered flow regimes (Factor A), impoundments and other stream fragmentation (Factor A), modified geomorphology (Factor A), decreased water quality (Factor A), and the introduction of invasive species (Factors A and C). The source of many of these stressors is the construction of dams and their impoundments (a body of water confined within an enclosure) which, in most cases, has drastically altered the natural flow regime and fragmented habitat. For example, a U.S. Geological Survey (USGS) stream gage on the Canadian River (near Amarillo, Texas) in the Lower South Canadian River resiliency unit has had a 69 percent decline in mean hydroperiod from pre-impoundment to post-impoundment, and the mean daily discharge (post-impoundment) is markedly lower (68 percent decline) since the completion of the reservoir. For a detailed description of the risk factors for peppered chub, see chapter 3 of the SSA report (Service 2022, pp. 22-38), below is only a summary of the risk factors. Altered Flow Regimes Peppered chub need a combination of varying flows (timing, duration, and magnitude) to support viable populations and maintain suitable habitat. Low flow periods (including isolated pooling) can impair or eliminate appropriate habitat for the species, and while adult peppered chub are adapted to and can typically survive these events for a short time, populations that regularly experience these conditions face compromised reproductive success and may not persist. Flow regime alterations that we considered during the SSA process include dams and their associated impoundments, the effects dams have on the natural flow regime, surface and groundwater extraction, and the effect of climate change on precipitation and drought. Stream Fragmentation Dams often fragment aquatic habitat and create impassable physical barriers to fish movement. Juvenile and adult peppered chub would likely be capable of passing downstream through small fish barriers such as weirs (low dams built to raise the level of water upstream), low-water crossings, and natural or manmade falls. However, no life stage of peppered chub is likely capable of successfully passing downstream through most reservoirs large enough to act as water supply or hydroelectric sources. Likewise, due to the small size and limited swimming ability of the peppered chub, upstream movement of adults (during spawning) would likely be prohibited by any impoundments (regardless of type or function), weirs, falls, pipeline reinforcements structures, and some low-water crossings. It is unlikely that egg and larval stages of peppered chub are capable of passing over a fish barrier. When fish (typically adults only) pass downstream of a smaller barrier, they remain isolated below the barrier and are unable to return to spawning areas upstream. This often results in incremental and progressive extirpation from an upstream to downstream direction (Perkin and Gido 2011, p. 374). Because of its need for flowing water to reproduce, peppered chub have been eliminated from shorter (generally less than 136 mi) reaches and typically persist only in river segments that are above a minimum threshold (Perkin and Gido 2011, p. 374). In addition, the blocking of movement of adult fish limits their ability to seek suitable habitat in more perennial, headwater reaches during drought conditions. Modified Geomorphology Decreases in stream flows in the South Canadian River have contributed to the decline or loss of wide, shallow sand-bed river channels that are characteristic of peppered chub habitat. Impoundments often reduce the magnitude and frequency of high flows, leading to bank stabilization and channel narrowing; alter streambank riparian communities; restrict downstream transport of nutrients that support ecosystem development; and alter river substrate (Poff et al. 1997, pp. 773-777; Mammoliti 2002, pp. 223-224). Impoundments also alter streamflow by reducing the availability or timing of water, leading to more frequent low-flow conditions, channel drying, pool isolation, and vegetative encroachment into the river channel. Reduction in flows reduces the peppered chub's reproductive success and decreases population resiliency. Additional alteration of historical physical habitat occurs when dams release sediment-starved water that alters the composition and distribution of the bed substrate. River and stream water velocity slows rapidly where water enters the standing water of reservoirs, resulting in the settlement of suspended sediment within the reservoir (Poff et al. 1997, p. 773). The resulting release of low turbidity, high-velocity water from dams scours the downstream reaches, causing the channel to incise and become further isolated from its natural floodplain. Further, such dam releases remove sand and gravel substrate preferred by the peppered chub. Decreased turbidity provides a competitive advantage to fishes that are not as well adapted to the naturally turbid water. When water is released from a main channel reservoir, fish species adapted to naturally turbid conditions of the South Canadian River, such as the peppered chub, are displaced by fish with competitive advantage in less turbid conditions, resulting in a reduction in available habitat and increased predation (Bonner and Wilde 2002, pp. 1205-1206), thereby negatively influencing species distribution and abundance. Degraded Water Quality Suitable water quality is necessary for a healthy aquatic community. Water quality may become impaired through direct contamination or the alteration of freshwater chemistry. Contaminants enter the environment through both point and nonpoint sources including spills, industrial pathways, municipal effluents, and agricultural runoff. These sources may contribute organic compounds, heavy metals, pesticides, herbicides, and a wide variety of newly emerging contaminants to the aquatic environment. An additional type of water quality impairment is the alteration of water quality parameters such as dissolved oxygen, temperature, and salinity levels. Dissolved oxygen levels may be reduced due to increased nutrient levels ( i.e., nitrogen and phosphorous) from agricultural runoff or wastewater effluent (eutrophication). Increased water temperature from more frequent low-flow/drought conditions and climate change can also exacerbate low dissolved oxygen levels, particularly when low-flow conditions strand fish in isolated pools. Similarly, fish stranded in isolated pools can be subjected to naturally concentrated salinity. Additionally, many freshwater systems and shallow aquifers have become increasingly saline due to salinized water recharge (Hoagstrom 2009, p. 35). This effect largely stems from irrigation return flows that have flushed accumulated salts from irrigated lands back into the system. Chloride concentrations have been increasing in the upper South Canadian River (Service 2022, p. 127). Additionally, arsenic levels in many of the rivers within the historical range of the peppered chub are above the Environmental Protection Agency's established levels for human health for the consumption of organisms but not above levels designed to protect freshwater aquatic communities. Arsenic levels have increased over time in the Cimarron River to the point that golden shiners ( Notemigonus crysoleucas ) exhibited avoidance behavior even though concentrations were below a toxic level (Hartwell et al. 1989, p. 452). It is a reasonable presumption that peppered chub would also demonstrate avoidance behavior at similar concentrations of arsenic, causing peppered chub distribution and movements to be disrupted, possibly further fragmenting or reducing the amount of available stream length necessary for all life stages. Introduction of Invasive Species The alteration of the hydrologic regime and geomorphology of rivers resulting from impoundments can cause the proliferation of larger, piscivorous fish not normally associated with unimpounded prairie rivers. This fish community conversion is exacerbated by the transfer or stocking of game species in areas that have undergone hydrologic regime or geomorphologic alterations. These species may include smallmouth bass ( Micropterus dolomieu ), largemouth bass ( Micropterus salmoides salmoides ), Florida largemouth bass ( Micropterus salmoides floridanus ), striped bass ( Morone saxatilis ), and channel catfish ( Ictalurus punctatus ) (Howell and Mauk 2011, pp. 11-12), which may prey upon peppered chubs. In a system similar to the Arkansas River Basin, eighteen fish species were introduced or immigrated into the Solomon River basin following impoundment and increased competition from these nonnative species may have contributed to the decline of native fish species (Eberle et al. 2002, p. 182, 188). While peppered chub declines throughout the species' range cannot be fully attributed to predation by invasive fishes, a shifting fish community (to more lentic (still water) adapted species) throughout the Lower South Canadian River has coincided with the extirpation of the peppered chub throughout this lower basin. The Upper South Canadian River (between Ute Reservoir and Lake Meredith) is an exception, where the natural fish community is still mostly intact (Service 2022, pp. 66-68). Synergistic Effects Many of the above-summarized risk factors may act synergistically or additively on the peppered chub. The combined impact of multiple stressors is likely more harmful than a single stressor acting alone. For example, resiliency of the peppered chub (in the Upper South Canadian River resiliency unit) is considered low due to river impoundment in combination with other stressors acting synergistically. The river is unimpeded for 179 river miles (288 river kilometers), which translates to a fair condition (see table 1, below). However, our flood frequency analysis in the Upper South Canadian River resiliency unit shows a decline to a level of null to fair, meaning flood events have significantly declined compared to historical conditions. As a result, the river channel has narrowed dramatically in many areas, resulting in unfavorable habitat for the peppered chub and a poor condition category for this habitat metric. This condition limits the access to and formation of new habitat necessary for egg/larval retention and nursery. The hydroperiod (a comparison between pre-impoundment and post-impoundment discharge) has changed so that discharge is in a null (greater than 90 percent decrease in discharge) to fair condition for peppered chub. Lastly, the low-flow conditions in the stretch are in a poor to fair condition, meaning that low-flow days are common or increasing and some areas are vulnerable to drying in drought years, which could affect the length of unimpeded river and lead to additional channel narrowing. For a full explanation of our habitat factor analysis, see chapter 4 of the SSA report. We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis. Current Condition of Peppered Chub Our analysis of current condition of the peppered chub is based on numerous scientific publications from species experts who concluded that by the year 2000, the peppered chub had significantly declined and was isolated to the Ninnescah River in Kansas and the South Canadian River between Ute Reservoir in New Mexico and Lake Meredith in the Texas panhandle (Luttrell et al. 1999, p. 983; Eisenhour 1999, p. 975; Eisenhour 2004; Service 2022, pp. 53-57). More recently, we assessed the current condition using survey efforts from 1,826 collections (from 2013 to 2017) with only 38 of those (2 percent) containing the peppered chub. Extensive recent survey efforts show that the peppered chub distribution is currently limited to the South Canadian River between Ute Reservoir in New Mexico and Lake Meredith in the Texas panhandle, which represents 6 percent of its historical range. The capture ratio in the Upper South Canadian River dropped to 45 percent, and peppered chubs were not collected in the Ninnescah River during this time. Historically, the peppered chub was known from five populations found in Colorado, Kansas, New Mexico, Oklahoma, and Texas. Several factors were responsible for the extirpation or abundance decline of the peppered chub in each of the resiliency units, as more fully set forth in the SSA report. However, habitat degradation and fragmentation has been primarily a result of water diversion and impoundments ( i.e., dams). Thus, the single remaining population (Upper South Canadian River) has low resiliency (see table 1, below). We consider the peppered chub to have limited representation in the form of genetic and ecological diversity because only a single functioning population remains. Extirpated populations of peppered chub contained genetic and morphological variation that have been lost. The peppered chub has “considerable stocks of genetic diversity” within this single population; however, the species lacks the representation of species with multiple populations occurring across varying landscapes (Osborne 2017, p. 9). Despite restrictions of its range due to impoundments and other habitat alterations, and a decline in abundance, it is possible that genetic variation is sufficient to allow for survival in the naturally occurring conditions of the arid prairie stream environments in which the species evolved. However, it is unknown if this species has the genetic variability or the time required to adapt to continuing habitat and flow alterations. To assess resiliency within each unit, we analyzed capture ratios, probability of capture trends, and relative abundance (demographic factors). We also analyzed habitat factors that were determined to have the most influence on the species: Stream fragment length, channel narrowing, flood frequency, hydroperiod (changes to the annual hydrograph most relevant to the species' lifecycle), and low flow conditions (habitat/flow factors). See table 1, below. Overall condition rankings for each resiliency unit were determined by combining the three demographic factors and five habitat/flow factors. For a more detailed description of the condition categories, see chapter 4 in the SSA report. Table 1—Current Resiliency of the Peppered Chub Population Demographic factors Capture ratio Probability of capture trend Relative abundance Habitat factors * Stream fragment length Channel narrowing Flood frequency Hydroperiod Low flow Current resiliency Upper Arkansas (includes Ninnescah and Salt Fork) Ø ** Ø Ø Fair Fair to Good Poor and Good Poor and Good Poor and Good Ø. Cimarron Ø Ø Ø Good Null to Good Null and Fair Poor and Fair Poor and Good Ø. North Canadian Ø Ø Ø Fair Null Null to Good Poor to Fair Poor to Good Ø. Lower South Canadian Ø Ø Ø Good Null to Good Poor to Fair Poor to Fair Fair and Good Ø. Upper South Canadian Fair Good Poor Fair Poor Null to Fair Null to Fair Poor to Fair Low. * The habitat factors are presented as gradients (to) or multiple conditions (and) per population. Because of the great lengths of the stream stretches, the habitat quality can vary widely throughout the unit. (See the SSA report for further information.) ** The Ø symbol means null (having or associated with the value zero). Because the peppered chub has been extirpated from all but one resiliency unit, it has a higher risk of extinction from a catastrophic event, due to a lack of redundancy across its range, compared to historical conditions. See the SSA report for the complete current condition analysis for the peppered chub (Service 2022). Future Condition of Peppered Chub As part of the SSA, we also developed multiple future condition scenarios to capture the range of uncertainties regarding future threats and the projected responses by the peppered chub. Our scenarios included a continuation of existing trends scenario and a water conservation with flow trends stabilizing scenario, which incorporated the current risk factors continuing the same trajectory that they are on now. These future scenarios project conditions that are worse for the peppered chub than the current condition or the water conservation with flow trends stabilizing scenario. Because we determined that the current condition of the peppered chub is consistent with an endangered species (see Determination of Peppered Chub Status, below), we are not presenting the results of the other future scenarios in this final rule. The other projected scenarios would also be endangered, as they forecast conditions that are the same or more at risk of extinction than the current condition. Please refer to the SSA report (Service 2022) for the full analysis of future scenarios. Conservation Efforts and Regulatory Mechanisms Since we proposed to list the peppered chub as endangered, The Kansas Aquatic Species Conservation Agreement: A Programmatic Safe Harbor Agreement and Candidate Conservation Agreement with Assurances for Fourteen Aquatic Species in Kansas (Agreement) was completed and includes the peppered chub. Further information about the agreement can be found in the Exclusions section below. The area of the range that is covered by the Agreement is currently unoccupied; therefore, the Agreement does not change our conclusions in the SSA report or the determination of status, outlined below. This species is listed as endangered in Kansas and protected under the authority of the State's Nongame and Endangered Species Conservation Act of 1975. The Kansas Department of Wildlife, Parks and Tourism (KDWPT) finalized a recovery plan for the peppered chub in May 2005. The recovery plan outlines specific strategies and methods to recover and delist the peppered chub in Kansas. The recovery plan also includes designated critical habitat as required for endangered species conservation and recovery. Kansas Administrative Regulations (K.A.R.) 115-15-3 provides for review and a permit system for any alterations to the critical habitat administered by KDWPT Ecological Services Section. The peppered chub has been listed as threatened in New Mexico since 1978 under the Wildlife Conservation Act (WCA). The State Game Commission is authorized and directed to establish such regulations as it may deem necessary to carry out all the provisions and purposes of the WCA. The WCA prohibits any person to take, possess, transport, export, process, sell or offer for sale, or ship the peppered chub, within the State of New Mexico. The species is listed as threatened in Texas and protected under Texas Parks and Wildlife Department (TPWD) Code. Under chapter 67 of this Code, Texas Parks and Wildlife Commission is authorized to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that TPWD considers necessary to manage the species. TPWD designation of the peppered chub as a threatened species prohibits take of the species. As discussed in the proposed rule, the Canadian River Municipal Water Authority (in conjunction with several partners) has a management plan in place for the Arkansas River shiner, a similar species that shares many of the same life-history characteristics and habitat requirements as the peppered chub. However, the management plan includes no conservation efforts specific to the peppered chub. Efforts are underway to begin a captive propagation program at the Kansas Aquatic Biodiversity Center and at the Tishomingo National Fish Hatchery in Oklahoma. However, these efforts are early in development and have not yet yielded improvements to the status of the species. Approximately 95 percent of the adjacent land within the historical range of the peppered chub is private land. Except for those management activities included above, during the comment period for the proposed rule, we were not made aware of other conservation plans or management activities that are in place with private landowners that are specific to the peppered chub. Despite the existing regulatory mechanisms and conservation efforts described above, the identified stressors continue to act on the species such that listing is warranted. Determination of Peppered Chub Status Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of endangered species or threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. The peppered chub faces threats from altered flow regimes ( e.g., dams and impoundments, groundwater extraction, and climate change effects on precipitation) (Factors A and E), stream fragmentation (Factor A), modified geomorphology (Factor A), poor water quality (Factor A), and introduction and proliferation of invasive species (Factors A and C). Because peppered chub rarely live beyond 2 years, the risk of species extinction from 2 (or more) successive years of low flow or drought conditions is high. These threats are currently acting on the peppered chub, and we expect them to continue or worsen into the future. We found no evidence of population- or species-level impacts from overutilization for commercial, recreational, scientific, or educational purposes (Factor B). In our analysis of the factors affecting the peppered chub, we found that despite the existing regulatory mechanisms and conservation efforts, the threats continue to affect the species such that listing is warranted (Factor D). The range of the peppered chub once included Colorado, Kansas, New Mexico, Oklahoma, and Texas, with populations in several streams and rivers. The peppered chub is now confined to a single population in the upper portion of the South Canadian River in Texas and New Mexico, which represents approximately 6 percent of the species' historical range. The one remaining population has declined from an average of approximately 14 percent relative abundance (a component of biodiversity) historically, to a current relative abundance of under 2 percent, meaning the fish community structure has shifted significantly from its baseline condition. Explained in detail in the SSA report, the fish community in this population is shifting away from its historical state, the peppered chub is becoming less common compared to other species in the community, and the species richness of the community is declining (Service 2022, pp. 63-68). This population has low resiliency, meaning that the population has a low probability of remaining extant and withstanding periodic or stochastic disturbances under its current condition. Representation has been reduced with the complete extirpation of populations in all but one resiliency unit and a range reduction of approximately 94 percent from its historical distribution. Species-level genetic and ecological diversity has been lost over time, as populations have become extirpated. Redundancy has declined dramatically because the peppered chub remains on the landscape in only one population. As such, the peppered chub is at greater risk of extinction due to a catastrophic event when compared to historical conditions. Status Throughout All of Its Range We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats and the cumulative effect of the threats under the section 4(a)(1) factors to peppered chub. We find that the species' resiliency, representation, and redundancy are at levels that put the species at risk of extinction throughout its range. Thus, we conclude that the peppered chub meets the definition of an endangered species because it is in danger of extinction throughout all of its range. We find that a threatened species status is not appropriate for the peppered chub because it is currently at risk of extinction, based on the threats and their current impacts on the species and the resulting current condition of the species. Status Throughout a Significant Portion of Its Range Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the peppered chub is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portions of its range. Because the peppered chub warrants listing as endangered throughout all of its range, our determination is consistent with the decision in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided the Services do not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Determination of Status Our review of the best available scientific and commercial information indicates that the peppered chub meets the definition of an endangered species. Therefore, we are listing the peppered chub as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below. The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems. Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website ( http://www.fws.gov/endangered ), or from our Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ). Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. Following publication of this final rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Colorado, Kansas, New Mexico, Oklahoma, and Texas will be eligible for Federal funds to implement management actions that promote the protection or recovery of the peppered chub. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants. Please let us know if you are interested in participating in recovery efforts for the peppered chub. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ). Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service. Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Service, U.S. Forest Service, Bureau of Land Management, and National Park Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq. ) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies. We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act. It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive: (1) Authorized taking of peppered chub in accordance with a permit issued by us pursuant to section 10 of the Act or with the terms of an incidental take statement pursuant to section 7 of the Act, or possessing specimens of this species that were collected prior to the effective date of this final regulation adding this species to the List of Endangered and Threatened Wildlife (see DATES ). (2) Normal, lawful recreational activities such as hiking, trail rides, camping, boating, hunting, and fishing, provided unused bait fish are not released back into the water. (3) Normal livestock grazing and other standard ranching activities within riparian zones that do not destroy or significantly degrade peppered chub habitat. (4) Routine implementation and maintenance of agricultural conservation practices specifically designed to minimize erosion of cropland ( e.g., terraces, dikes, grassed waterways, and conservation tillage). (5) Existing discharges into waters supporting the peppered chub, provided these activities are carried out in accordance with existing regulations and permit requirements ( e.g., activities subject to sections 402, 404, and 405 of the Clean Water Act), and improvements to existing irrigation, livestock, and domestic well structures, such as renovations, repairs, or replacement. Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive: (1) Unauthorized handling, collecting, possessing, selling, delivering, carrying, or transporting of the peppered chub, including interstate transportation across State lines and import or export across international boundaries. (2) Capture, survey, or collection of peppered chub specimens without a permit from the Service under section 10(a)(1)(A) of the Act. (3) Introduction of nonnative fish species that compete or hybridize with, displace, or prey upon peppered chub. (4) Unauthorized destruction or alteration of peppered chub habitat by dredging, channelization, impoundment, diversion, recreational vehicle operation within the stream channel, sand or gravel removal, or other activities that result in the destruction or significant degradation of channel stability, streamflow/water quantity, substrate composition, and water quality used by the species for foraging, cover, and spawning. (5) Unauthorized discharges (including violation of discharge permits), spills, or dumping of toxic chemicals, silt, household waste, or other pollutants ( e.g., sewage, oil and gasoline, heavy metals) into surface or ground waters or their adjoining riparian areas that support/sustain peppered chub. (6) Applications of pesticides, herbicides, fungicides, and other chemicals, including fertilizers, in violation of label restrictions. (7) Withdrawal of surface or ground waters to the point at which baseflows in water courses ( e.g., creeks, streams, rivers) occupied by the peppered chub diminish and habitat becomes unsuitable for the species. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ). II. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely, by vagrant individuals). Additionally, our regulations at 50 CFR 424.02 define the word “habitat,” for the purposes of designating critical habitat only, as the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not 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 also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (PBFs) (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those PBFs that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those PBFs that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. The implementing regulations at 50 CFR 424.12(b)(2) further delineate unoccupied critical habitat by setting out three specific parameters: (1) When designating critical habitat, the Secretary will first evaluate areas occupied by the species; (2) the Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species; and (3) for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those PBFs essential to the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our 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 we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; 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; other unpublished materials; or experts' opinions or personal knowledge. Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome. In our SSA report and the proposed listing determination for the peppered chub, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the peppered chub and that those threats in some way can be addressed by section 7(a)(2) consultation measures. Accordingly, such a designation could be beneficial to the species. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) has been met and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the peppered chub. We have also reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the peppered chub. Physical or Biological Features Essential to the Conservation of the Species In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species. In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance. We have analyzed: (1) The PBFs that are essential to the conservation of the species and which may require special management considerations or protection under the Act; (2) the criteria used to define the areas occupied at the time of listing for the species; and (3) the criteria used to identify critical habitat boundaries or unoccupied habitat suitable for designation. Any comments received on the proposed rule were taken into account when this analysis was undertaken to revise PBFs where necessary. Based on public comment we did not need to revise PBFs, identification criteria for the species, or where the PBFs exist on the landscape to determine the geographic extent of each critical habitat unit. Summary of Essential Physical or Biological Features We derive the specific PBFs essential to the conservation of peppered chub from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report (Service 2022, entire) and the discussion in the “Summary of Essential Physical or Biological Features” section of the preamble to the proposed rule (85 FR 77108; December 1, 2020). We have determined that the following PBFs are essential to the conservation of peppered chub: PBF 1: Unobstructed river segments greater than 127 river miles (rmi) (205 river kilometers (rkm)) in length that are characterized by a complex braided channel and substrates of predominantly sand, with some patches of silt, gravel, and cobble. PBF 2: Flowing water with adequate depths to support all life stages and episodes of elevated discharge to facilitate successful reproduction, channel and floodplain maintenance, and sediment transportation. PBF 3: Water of sufficient quality to support survival and reproduction, which includes, but is not limited to, the following conditions: (i) Water temperatures generally less than 98.2 degrees Fahrenheit (°F) (36.8 degrees Celsius (°C)); (ii) Dissolved oxygen concentrations generally greater than 3.7 parts per million (ppm); (iii) Conductivity generally less than 16.2 millisiemens per centimeter (mS/cm); (iv) pH generally ranging from 5.6 to 9.0; and (v) Sufficiently low petroleum and other pollutant concentrations such that reproduction and/or growth is not impaired. PBF 4: Native riparian vegetation capable of maintaining river water quality, providing a terrestrial prey base, and maintaining a healthy riparian ecosystem. PBF 5: A level of predatory or competitive, native or nonnative fish present such that any peppered chub population's resiliency is not affected. Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the peppered chub may require special management considerations or protections to reduce the following threats: (1) Altered flow regimes, including (but not limited to) dams and impoundments and groundwater extraction; (2) stream fragmentation; (3) modified geomorphology; (4) poor water quality; (5) impacts from introduction of invasive species (fish and vegetation) and the introduction of native competitors for sport fishing; and (6) other stressors including (but not limited to) gravel mining and dredging, commercial bait fish harvesting, and off-road vehicle use. Management activities that could ameliorate these threats include, but are not limited to: Development of groundwater conservation strategies; removal of impoundments or creation of fish passage, development of water release strategies for reservoirs; minimization of in-channel work from utility or road projects; maintenance of bank stability and revegetation of impacted areas; incorporation of integrated pest management strategies (for saltcedar ( Tamarix spp.) and other invasive plants); and development of best management practices to reduce pollutant discharges and to develop water conservation measures that reduce the need for water diversions. Criteria Used To Identify Critical Habitat As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are designating critical habitat in areas within the geographical area occupied by the species at the time of listing. We also are designating specific areas outside the geographical area occupied by the species because we have determined that a designation limited to occupied areas would be inadequate to ensure the conservation of the species. Designation of occupied areas alone is inadequate for conservation of the species because the current distribution of the species is much reduced from its historical range. We anticipate that recovery will require continued protection of the existing population and its habitat, as well as reintroduction of peppered chub into historically occupied areas, ensuring there are adequate numbers in stable populations and that these populations occur over a wide geographic area. This strategy will help to ensure that catastrophic events, such as the effects of drought, are unlikely to simultaneously affect all known populations. For these reasons, we are reasonably certain that these unoccupied areas will contribute to the conservation of the species. Moreover, both of the unoccupied areas that we are designating as critical habitat contain one or more of the PBFs required by the peppered chub and fall within the regulatory definition of “habitat” at 50 CFR 424.02. Additionally, rangewide recovery considerations, such as maintaining existing genetic diversity and striving for representation of all major portions of the species' current range, were considered in formulating this critical habitat designation. Sources of data for this critical habitat designation include multiple databases maintained by Arkansas Game and Fish Commission; Fishes of Texas; Colorado Parks and Wildlife Department; Kansas Department of Wildlife, Parks and Tourism; New Mexico Department of Game and Fish; New Mexico Interstate Stream Commission; Oklahoma Department of Environmental Quality; Texas Parks and Wildlife Department; Oklahoma State University; University of New Mexico Museum of Southwestern Biology; and New Mexico Department of Game and Fish, as well as numerous survey reports on rivers and streams throughout the species' range (see SSA report). We have also reviewed available information that pertains to the habitat requirements of this species. Sources of information on habitat requirements include studies conducted at occupied sites and published in peer-reviewed articles and agency reports, and data collected during monitoring efforts. Our review of occupied range of the peppered chub is based on numerous species experts who concluded that, by the year 2000, the peppered chub had significantly declined and was isolated to the South Fork Ninnescah River in Kansas and the South Canadian River between Ute Reservoir in New Mexico and Lake Meredith in the Texas panhandle (Luttrell et al. 1999, entire; Eisenhour 1999, entire; Eisenhour 2004, entire). Using data from more than 1,800 fish collections, we define “currently occupied” as river reaches with positive surveys from 2013 to 2017 (Service 2022, chapter 4). By the year 2013, the peppered chub was no longer being observed in the Ninnescah River in Kansas, despite extensive survey efforts. The peppered chub continues to be observed in surveys in the South Canadian River between the Ute Reservoir and Lake Meredith, and this is the only area we considered to be currently occupied. We are designating one occupied unit as critical habitat for the peppered chub in the upper South Canadian River. In summary, for areas within the geographic area occupied by the species at the time of listing (Upper South Canadian River; Unit 1), we delineated the critical habitat unit boundary using the following criteria: The one remaining population of peppered chub has a low level of resiliency (see table 1, above), and, because of its relatively short life cycle (~2 years), a series of back-to-back stochastic events could significantly reduce or extirpate the remaining population. The peppered chub range has been highly restricted (~6 percent remaining); therefore, its adaptive capacity (representation) has been dramatically reduced. The significantly reduced range reduces peppered chub exposure to ecologically diverse habitats and reduces its ability to adapt to changing environments over time. A low-resiliency single population provides little redundancy for the species, and a single catastrophic event could cause species extinction. Consequently, we have determined that occupied areas alone are not adequate for the conservation of the species. We evaluated whether any unoccupied areas are essential for the conservation of the species, and we are designating critical habitat in two units that are currently unoccupied. We have determined that each is essential for the conservation of the species. Both units have at least one of the PBFs essential to the conservation of the species, and we are reasonably certain that each will contribute to the conservation of the species. Our specific rationale for each unit can be found below in the unit descriptions. Peppered chub has been completely extirpated from all but a single river reach within its historical range. Additionally, the one remaining population was found to be in “low” condition in our resiliency analysis and protecting it alone would not sufficiently conserve the species. Additional healthy populations are needed because of the inherent threat from environmental stochasticity (such as a multiyear drought) and the possibility that the species could be extirpated in a relatively short period of time, given a 2-year life cycle. Furthermore, a single catastrophic event could extirpate the last remaining population, resulting in species extinction. As a result, additional healthy populations of the peppered chub must be established to increase its viability and to recover the species. Having at least two sufficiently resilient populations in the Canadian River and at least one population in each of the Ninnescah and Cimarron Rivers is essential for the conservation of the peppered chub. Representation and redundancy have both been dramatically reduced by the species' limited current range. Due to the species' constricted range, it currently has a limited scope of its historical ecological setting and, therefore, has little to no opportunity to adapt to a changing environment over time. The specific areas in these units encompass the minimum area of the species' historical range within the critical habitat designation, while still providing ecological diversity so that the species has the ability to evolve and adapt over time ( [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-03703. Public record. Not legal advice.