Endangered and Threatened Wildlife and Plants; Proposal To Determine the Pecos Pupfish (Cyprinodon pecosensis) To Be an Endangered Species

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE56

Endangered and Threatened Wildlife and Plants; Proposal To

Determine the Pecos Pupfish (Cyprinodon pecosensis) To Be an Endangered

Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list

the Pecos pupfish (Cyprinodon pecosensis) as an endangered species

without critical habitat under authority of the Endangered Species Act

of 1973, as amended (Act). The historical range of the Pecos pupfish

included the mainstream Pecos River and various lakes, gypsum

sinkholes, saline springs, and tributaries associated with the river

from the vicinity of Roswell, Chaves County, New Mexico, downstream to

the vicinity of Sheffield, Pecos County, Texas. The Pecos pupfish has

been replaced by sheepshead minnow (C. variegatus) x Pecos pupfish

hybrids throughout more than two-thirds of its historical range. The

Pecos pupfish was declining prior to introduction of the sheepshead

minnow, primarily as a result of competition and depredation by

nonnative fish species, and habitat loss caused by such factors as

water diversion, groundwater depletion, channelization, and watershed

disturbance (Sublette et al. 1990, Minckley et al. 1991). This

proposal, if made final, will implement Federal protection provided by

the Act for the Pecos pupfish.

DATES: Comments from all interested parties must be received by March

31, 1998. Public hearing requests must be received by March 16, 1998.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the Field Supervisor, Ecological Services Field Office, U.S.

Fish and Wildlife Service, 2105 Osuna NE., Albuquerque, New Mexico

87113. Comments and materials received will be available for public

inspection, by appointment, during normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT: Jennifer Fowler-Propst, Field

Supervisor, Ecological Services Field Office (Albuquerque) (see

ADDRESSES section) (telephone 505/761-4525).

SUPPLEMENTARY INFORMATION:

Background

The Pecos pupfish, described by Echelle and Echelle (1978), is a

member of the family Cyprinodontidae. The taxonomic status of the Pecos

pupfish had been uncertain for more than 30 years because of a previous

description of a pupfish (Cyprinodon bovinus) from the Pecos River

(Baird and Girard 1853). Type specimens from the Pecos River in the

original series were lost or in poor condition, but were assumed to be

the same as the Pecos pupfish until an extant population of C. bovinus

was found at Leon Springs, Texas, and confirmed as different from the

form in the Pecos River proper (Echelle and Miller 1974).

The Pecos pupfish is a small, deep-bodied (2.8 to 4.6 centimeter

(cm) (1.1 to 1.8 inch (in.)) standard length) gray-to-brown fish. Male

dorsal and anal fins are black almost to the margin with no yellow on

the dorsal, anal, or caudal fins. The lateral bars on the female are

typically broken into blotches ventrolaterally. The abdomen is

generally naked (i.e., without scales) except for a few scales in front

of the pelvic fins and a patch just behind the gill membrane isthmus.

There are 20 to 21 gill rakers, and usually 3 or 4 preorbital pores on

each side of the head (Echelle and Echelle 1978).

The Pecos pupfish is native to the Pecos River and its tributaries,

and nearby lakes, sinkholes, and saline springs in New Mexico and

Texas. The historical range of the species included the Pecos River

from Bitter Lake National Wildlife Refuge and Bottomless Lakes State

Park near Roswell, Chaves County, New Mexico, downstream approximately

650 km (404 mi) to the mouth of Independence Creek, southeast of

Sheffield, Pecos County, Texas (Wilde and Echelle 1992). It was also

found in gypsum sinkholes and saline springs at Bitter Lake National

Wildlife Refuge (including the Salt Creek Wilderness Area); sinkholes

and springs at Bottomless Lakes State Park (Brooks and Woods 1988); and

in Salt Creek, Reeves County, Texas.

In Texas, genetically pure populations of the Pecos pupfish are now

thought to occur only in the upper reaches of Salt Creek, Culberson and

Reeves counties, Texas (Wilde and Echelle 1992) and, less probably, in

2 water-filled gravel pits owned by the Phipps Gravel Company, in Pecos

County 10.8 km (6.7 mi) west of Grandfalls, Texas. In New Mexico, the

species still occurs in the Pecos River from north of Malaga upstream

to Bitter Lake National Wildlife Refuge. It continues to survive in the

Salt Creek Wilderness Area (North Tract) of Bitter Lake National

Wildlife Refuge, where it is found in sinkholes, springs and Salt Creek

(Brooks and Woods 1988, Sublette et al. 1990, Hoagstrom and Brooks

1997). It is also found at Bottomless Lakes State Park. This range

reduction represents a loss of more than two-thirds of the species'

former range (Echelle and Connor 1989).

Previous Federal Actions

In both the December 30, 1982, Review of Vertebrate Wildlife,

Notice of Review (47 FR 58454); and the September 18, 1985, Review of

Vertebrate Wildlife, Notice of Review (50 FR 37958), the Pecos pupfish

was included as a category 2 species. Category 2 candidates were those

species for which the Service had information indicating that listing

may be warranted but for which it lacked sufficient information on

status and threats to support issuance of proposed listing rules.

However, based on new information from more recent surveys, the Pecos

pupfish was identified as a Category 1 candidate in the January 6,

1989, Animal Notice of Review (54 FR 554) and in the November 21, 1991,

Animal Notice of Review (56 FR 58804). Category 1 candidates were those

species for which the Service had on file sufficient information to

support issuance of proposed listing rules. In the February 28, 1996,

Candidate Notice of Review (61 FR 7596), the Service discontinued the

designation of multiple categories of candidates, and only former

category 1 species are now recognized as candidates for listing

purposes. The Pecos pupfish remained as a candidate species in the

February 28, 1996, Notice of Review (61 FR 7596) and in the September

19, 1997, Notice of Review (62 FR 49398).

[[Page 4609]]

Pre-proposal letters requesting comments and information were

mailed to interested parties, including Federal, State, and local

agencies, in June 1991 and again in March 1997. Responses were received

to the 1991 request from three New Mexico State agencies, one Texas

State agency, a national wildlife refuge, three Federal agencies, three

scientific experts, and a county judge. One Federal agency, one State

agency, two universities, and one environmental group responded to the

1997 request. Where appropriate, the comments received were included in

this proposed rule. A presentation of the current known status of the

species was made at the Annual Meeting of the Pecos River Compact

Commission on April 17, 1997.

Summary of Factors Affecting the Species

Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations

(50 CFR part 424) promulgated to implement the listing provisions of

the Act set forth the procedures for adding species to the Federal

lists. A species may be determined to be an endangered or threatened

species due to one or more of the five factors described in section

4(a)(1). These factors and their application to the Pecos pupfish

(Cyprinodon pecosensis) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of Its Habitat or Range

Historical habitat of the Pecos pupfish in New Mexico has been

drastically altered or destroyed by human uses of the Pecos River and

activities in its watershed. These alterations include: conversion of

flowing waters into slack waters by impoundment; alteration of flow

regimes (including conversion of perennial flow to intermittent or no

flow, and the reduction, elimination, or modification of natural

flooding patterns); alteration of silt and bed loads; loss of marshes

and backwaters; increases or decreases in water temperatures; and

alteration of stream channel characteristics from well-defined, surface

level, heavily vegetated channels with a diversity of substrates and

habitats, to deeply cut unstable arroyos with little riparian

vegetation, uniform substrate, and little habitat diversity. Causes of

such alterations include: water diversion, damming, channelization,

channel down-cutting, excessive groundwater pumping with resultant

lowering of water tables, destruction of riparian vegetation, and other

watershed disturbances. These ongoing changes in habitat conditions,

along with displacement of the species by hybrids, threaten the

survival of the Pecos pupfish throughout its entire range (Wilde and

Echelle 1992).

Low velocity floodplain habitats adjacent to the main channel of

the Pecos River provide refugia for the small Pecos pupfish from high

flows in the main channel. These habitats are also characterized by

higher levels of productivity and more stable food sources for the

omnivorous pupfish. However, channelization and stream incision of the

Pecos River, exacerbated by encroachment and channel armoring by salt

cedar, have eliminated extensive floodplain habitat along the Pecos

River. Wetlands and marshes adjacent to the river, once regularly

flooded by peak river flows, are now dry or are only sporadically

wetted. Reduction of base flows also occurred as a result of dam

construction and reservoir operation, greatly reducing the number and

extent of these habitats linked to the main river channel. The

continuing loss of these floodplain habitats is a significant threat to

the Pecos pupfish.

Pecos pupfish living in sinkholes and springs are threatened by

groundwater depletion. In southeastern New Mexico, groundwater is the

primary water source for a variety of uses, including drinking water

and irrigation. This dependence on groundwater has lowered the water

tables, resulting in a decline in water levels in sinkholes and springs

where Pecos pupfish live. When the water table was higher, water flowed

between sinkholes; because the water table has been lowered, these

sinkholes are no longer interconnected (Lee Marlatt, U.S. Fish and

Wildlife Service, Bitter Lake National Wildlife Refuge, pers. comm.

1987). Because they are isolated from the river which is inhabited by

sheepshead minnows, sinkhole populations of Pecos pupfish are more

protected from the threat of hybridization than are river populations.

Because sinkhole populations are more protected from the threat of

hybridization, the loss of these populations would seriously affect the

survival of the species.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

The Service is unaware of threats to the species from these

factors. Pecos pupfish may occasionally be collected as bait by anglers

and as specimens for scientific study, but these uses probably have a

negligible effect on total population numbers.

C. Disease or Predation

The Service is unaware of threats to the species from disease.

Sinkholes that support introduced game fish have lower numbers of

pupfish than sinkholes without game fish (Echelle and Echelle 1978). As

the Pecos pupfish population is impacted by habitat loss and

degradation and refugia become scarce, predation may become a more

important threat.

D. The Inadequacy of Existing Regulatory Mechanisms

New Mexico State law provides limited protection for the Pecos

pupfish. The State of New Mexico lists the Pecos pupfish as a

threatened species. Threatened species, as defined by the State of New

Mexico, are those species ``* * * whose prospects of survival or

recruitment within the State are likely to be in jeopardy within the

foreseeable future.'' This designation provides the protection of the

New Mexico Wildlife Conservation Act (sections 17-2-37 through 17-2-46)

and prohibits taking of such species except under the issuance of a

scientific collecting permit. The State also has a limited ability to

protect the habitat of the species through the Habitat Protection Act

(sections 17-6-1 through 17-6-11) and through water quality statutes

and regulations. The species' habitat is also protected tangentially

through a provision of the Habitat Protection Act (section 17-4-14)

which makes it illegal to de-water areas used by game fish.

New Mexico water law does not include provisions for the

acquisition of instream water rights for protection of fish and

wildlife and their habitat. Thus, there are no opportunities for

protection of Pecos pupfish habitat in New Mexico through acquisition

of water rights to maintain instream flows.

The Pecos pupfish was listed as threatened by the State of Texas on

March 1, 1987. The State prohibits taking, possessing, and transporting

State-listed species or goods made from such species (Texas Parks and

Wildlife Code, section 68.015 (1975)). However, State-listing in Texas

provides no protection for the habitat of listed species.

State regulations in New Mexico and Texas allow for the use of live

bait in the Pecos River in areas containing the Pecos pupfish. This has

encouraged the spread of detrimental species, specifically the

sheepshead minnow, which replaces and/or hybridizes with the Pecos

pupfish (see factor E).

Although both New Mexico and Texas provide protection against

taking of the Pecos pupfish by virtue of State listing of the species,

neither State provides sufficient protection to the aquatic habitat of

the Pecos pupfish, and neither prohibits the introduction or spread of

[[Page 4610]]

such detrimental species as the sheepshead minnow.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

The primary cause for the recent (post 1980) range reduction of

Pecos pupfish is the introduction of the sheepshead minnow, a species

once confined to shallow, brackish, coastal waters of the Gulf and

Atlantic coasts of the continental United States. The two Cyprinodon

species appear to have little in the way of premating isolating

mechanisms and readily hybridize (Cokendolpher 1980). Hybridization

with and/or replacement by the sheepshead minnow poses a major threat

to the Pecos pupfish. The sheepshead minnow was introduced into the

Pecos River, probably in the vicinity of Pecos, Texas, sometime between

1980 and 1984. Sheepshead minnow x Pecos pupfish hybrids have since

moved upstream and downstream at a rapid pace despite the presence of

six irrigation diversion dams. The spread of hybrids has occurred both

naturally and presumably through ``bait bucket'' introductions.

By 1984, surveys at four sites along the Pecos River below Red

Bluff Reservoir, Texas, revealed evidence of hybridization between the

Pecos pupfish and sheepshead minnow (Echelle 1985). In the vicinity of

Pecos, Texas, the Pecos pupfish had been entirely replaced by

sheepshead minnow x Pecos pupfish hybrids. At sites ranging from 50 km

(31 mi) further upstream to 250 km (156 mi) downstream, evidence of

hybridization was still apparent, though less pronounced (Echelle and

Connor 1989).

Surveys in 1986 found the presence of genetic markers for

sheepshead minnows in pupfish from Red Bluff Reservoir, New Mexico

(Wilde and Echelle 1992). The introduction of sheepshead minnows into

Red Bluff Reservoir means that genetically pure populations of Pecos

pupfish south of Malaga, New Mexico (including the entire Texas

population in the Pecos River), have been or probably will be

eliminated except in areas not connected to the river or where

effective fish barriers prevent access to habitat now occupied by the

pupfish. In 1995, hybrids were taken from the Pecos River near the

Loving Bridge (Eddy County), New Mexico, which is upstream of the pure

pupfish population at Malaga Bend (Hoagstrom and Brooks, 1995).

The purity of the pupfish populations in Salt Creek, Texas, and in

the abandoned gravel pits near Grandfalls, Texas, is unknown. Both

populations occur on privately owned lands, and surveys have not been

conducted on these lands since 1989. Because the gravel pits are close

to the Pecos River and because hybrids occur in that portion of the

river, the gravel pit populations may not be genetically pure.

The northward expansion of sheepshead minnow x Pecos pupfish

hybrids had reduced the range of the Pecos pupfish by approximately 60

percent by the late 1980's (Wilde and Echelle 1992). Subsequent

expansion of the hybrids into the Pecos River upstream from Red Bluff

Reservoir has further constricted the range of the pupfish. Genetically

pure populations of Pecos pupfish may now occur only in off-channel

habitats. The river populations are most susceptible to replacement by

and/or hybridization with sheepshead minnow. However, the sinkhole

populations are also considered vulnerable to hybridization due to the

possibility of anglers releasing sheepshead minnows into sinkholes.

Sinkhole, lake, and spring populations may also be susceptible to

introductions of exotic fish species during periods of river flooding.

Flood waters have inundated sinkholes and springs and could allow

exotic species, including the sheepshead minnow, to access these

otherwise isolated sites.

Large scale fish kills caused by algal blooms occurred in the Pecos

River, Texas, in 1985 and 1986 (Rhodes and Hubbs 1992). Such algal

blooms may affect the Pecos pupfish (Rhodes and Hubbs 1992).

Other threats to the Pecos pupfish include nonnative fish

introductions and piscicide applications. Anglers interested in

developing sport fisheries in sinkholes apply piscicides to remove

unwanted fish species prior to introducing sport fish. Such

manipulation, although conducted in compliance with State laws, can

adversely affect or eliminate Pecos pupfish populations.

Oil spills from pipelines into Salt Creek in Texas have occurred

and represent an ongoing threat to water quality and Pecos pupfish

habitats.

The Service has carefully reviewed the status of the species and

assessed the best scientific and commercial information available

regarding the past, present, and future threats faced by this species

in determining to propose this rule. Based on this evaluation, the

preferred action is to list the Pecos pupfish as endangered. The

species has experienced a large population decline and great reduction

of its range. This species is in danger of becoming extinct throughout

all or a significant portion of its range. Threatened status would not

accurately reflect the population decline, vulnerability, and imminent

threats to this species. Critical habitat is not being proposed for the

reasons discussed below.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) the

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

considerations or protection and; (ii) specific areas outside the

geographic area occupied by a species at the time it is listed, upon a

determination that such areas are essential for the conservation of the

species. ``Conservation'' means the use of all methods and procedures

needed to bring the species to the point at which listing under the Act

is no longer necessary.

Section 4(a)(3) of the Act and implementing regulations (50 CFR

424.12) require that, to the maximum extent prudent and determinable,

the Secretary designate critical habitat at the time the species is

determined to be endangered or threatened. The Service finds that

designation of critical habitat is not prudent for the Pecos pupfish at

this time. Service regulations (50 CFR 424.12(a)(1)) state that

designation of critical habitat is not prudent when one or both of the

following situations exist--(1) The species is threatened by taking or

other human activity, and identification of critical habitat can be

expected to increase the degree of threat to the species, or (2) such

designation of critical habitat would not be beneficial to the species.

Critical habitat receives consideration under section 7 of the Act

with regard to actions carried out, authorized, or funded by a Federal

agency (see Available Conservation Measures section). As such,

designation of critical habitat may affect activities on Federal lands

and may affect activities on non-Federal lands where such a Federal

nexus exists. Under section 7 of the Act, Federal agencies are required

to ensure that their actions do not jeopardize the continued existence

of a species or result in destruction or adverse modification of

critical habitat. However, both jeopardizing the continued existence of

a species and adverse modification of critical habitat have similar

standards and thus similar thresholds for violation of section 7 of the

Act. In fact, biological opinions that conclude that a Federal agency

action is

[[Page 4611]]

likely to adversely modify critical habitat but not jeopardize the

species for which the critical habitat has been designated are

extremely rare. Also, the designation of critical habitat for the

purpose of informing Federal agencies of the locations of occupied

Pecos pupfish habitat is not necessary because the Service can inform

Federal agencies through other means. For these reasons, the

designation of critical habitat for the Pecos pupfish would provide no

additional benefit to the species beyond that conferred by listing, and

therefore, such designation is not prudent.

Occupied habitat for the Pecos pupfish occurs adjacent to and on

the Bitter Lake National Wildlife Refuge and the Bureau of Land

Management's (BLM) Bottomless Lakes Waterfowl Management Area. Because

these occupied habitats are well known to the managers of these Federal

lands, no adverse modification of this habitat is likely to occur

without consultation under section 7 of the Act. Because of the small

size of the species' current range, any adverse modification of the

species' critical habitat would also likely jeopardize the species'

continued existence. Designation of critical habitat for the Pecos

pupfish on Federal land, therefore, is not prudent because it would

provide no additional benefit to the species beyond that conferred by

listing.

Because the aquatic habitat of the Pecos pupfish is considered

``waters of the United States'' under section 404 of the Clean Water

Act, alteration of this habitat on private land may be regulated by the

Army Corps of Engineers (COE) and may require consultation under

section 7 of the Act. Certain other activities causing direct or

indirect effects to habitat on private lands also may involve a Federal

agency action. Although there may be COE or other Federal involvement

requiring consultation for activities occurring in the species' habitat

on private lands, because of the small size of the species' current

range, any consultation which would result in a finding that the

activity causes adverse modification of the species' critical habitat

would also likely result in a finding that the activity jeopardizes the

species' continued existence. Designation of critical habitat for the

Pecos pupfish on private land, therefore, is not prudent because it

would provide no additional benefit to the species beyond that

conferred by listing.

Protection of the habitat of the Pecos pupfish will be addressed

through the section 4 recovery process and the section 7 consultation

process. The Service believes that activities involving a Federal

action which may affect the Pecos pupfish can be identified without

designating critical habitat by providing Federal agencies with

information on the locations of occupied habitats and information on

the kinds of activities which could affect the species. For the reasons

discussed above, the Service finds that the designation of critical

habitat for the Pecos pupfish is not prudent.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened 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 actions by Federal, State, and local agencies, private

organizations, and individuals. The Act provides for possible land

acquisition and cooperation with the States and requires that recovery

actions be carried out for all listed species. The protection required

of Federal agencies and the prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(4) requires Federal agencies to confer

informally with the Service on any action that is likely to jeopardize

the continued existence of a proposed species or result in destruction

or adverse modification of proposed critical habitat. If a species is

listed subsequently, section 7(a)(2) requires Federal agencies to

ensure that activities they authorize, fund, or carry out are not

likely to jeopardize the continued existence of such a species or

destroy or adversely modify its critical habitat. If a Federal action

may affect a listed species or its critical habitat, the responsible

Federal agency must enter into formal consultation with the Service.

Activities which may involve a Federal agency action and which may

require conference and/or consultation as described in the preceding

paragraph include: ground water pumping which can lower the water level

in occupied sinkholes and springs; water diversion which dries streams;

and other activities which cause habitat destruction or degradation

including water quality degradation.

Lands along the Pecos River and tributaries are primarily privately

owned. However, small areas of BLM land exist along the Pecos River

between Fort Sumner and Roswell, New Mexico, and a short segment of the

Pecos River flows through the Bitter Lake National Wildlife Refuge.

Activities on private lands which may affect the Pecos pupfish or its

habitat and which involve a Federal agency action require conference

and/or consultation. Activities on BLM, Service, or other Federal lands

which may affect the Pecos pupfish or its habitat also require

conference and/or consultation.

Water use in the Pecos River basin is regulated by the States of

New Mexico and Texas in accordance with the Pecos River Compact

(Compact), a Congressionally approved agreement addressing allocation

of water between New Mexico and Texas. The U.S. Bureau of Reclamation

(BR) and the COE operate dams on the river, and thereby regulate flows,

in accordance with the Compact. The operation of dams by the BR and COE

requires conference and/or consultation.

Additionally, other Federal agency actions along the Pecos River

that may require conference and/or consultation include: Environmental

Protection Agency authorization of discharges under the National

Pollutant Discharge Elimination System (NPDES) and registration and

regulation of pesticides; Federal Highway Administration involvement in

road and bridge construction and maintenance; BLM issuance of grazing

permits and oil and gas leases; COE authorization of discharges of

dredged or fill material into waters of the United States under section

404 of the Clean Water Act (e.g., authorization of oil, gas, and water

pipeline construction); U.S. Department of Agriculture (USDA) Animal

and Plant Health Inspection Service programs (e.g., Rangeland

Grasshopper Cooperative Management); USDA Natural Resources

Conservation Service projects and technical assistance programs; USDA

Farm Service Agency programs (e.g., financial assistance for certain

irrigation projects); and the Department of Housing and Urban

Development's Small Cities Community Development Block Grant program.

The Act and its implementing regulations found at 50 CFR 17.21 set

forth a series of general trade prohibitions and exceptions that apply

to all endangered wildlife. These prohibitions, in part, make it

illegal for any person subject to the jurisdiction of the United States

to take (includes harass, harm, pursue, hunt, shoot,

[[Page 4612]]

wound, kill, trap, or collect; or to attempt any of these), import or

export, ship in interstate commerce in the course of commercial

activity, or sell or offer for sale in interstate or foreign commerce

any listed species. It also is illegal to possess, sell, deliver,

carry, transport, or ship any such wildlife that has been taken

illegally. Certain exceptions apply to agents of the Service and State

conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered wildlife species under certain circumstances.

Regulations governing permits are at 50 CFR 17.22 and 17.23. Such

permits are available for scientific purposes, to enhance the

propagation or survival of the species, and/or for incidental take in

connection with otherwise lawful activities.

It is the policy of the Service (July 1, 1994, 59 FR 34272) to

identify to the maximum extent practicable those activities that would

or would not constitute a violation of section 9 of the Act at the time

of listing. The intent of this policy is to increase public awareness

of the effect of listing on proposed or ongoing activities. The Service

believes that, based on the best available information, the following

actions will not result in a violation of section 9, provided these

activities are carried out in accordance with any existing regulations

and permit requirements:

1. Livestock grazing which does not destroy or significantly

degrade occupied Pecos pupfish habitat.

2. Groundwater pumping in areas where the groundwater is not

connected to riverine or sinkhole habitats occupied by Pecos pupfish.

3. Oil and gas exploration and drilling in areas where surface or

groundwater is not connected to habitats occupied by Pecos pupfish.

The following activities would likely violate section 9 of the Act:

1. Livestock grazing which causes destruction or significant

degradation of occupied Pecos pupfish habitat.

2. Stocking of piscivorous fish or introduction of sheepshead

minnows into habitat occupied by Pecos pupfish or into waters which are

connected to, or which during high flows become connected to, habitat

occupied by Pecos pupfish.

3. Pumping of groundwater which causes a significant reduction in

the quantity or quality of water in areas occupied by Pecos pupfish.

4. Channelization or other activities which cause dewatering of

habitats occupied by the Pecos pupfish.

5. Activities which cause significant degradation of surface water

or groundwater quality of habitat occupied by the Pecos pupfish.

The term ``significant degradation of habitat'' as used in the

descriptions of activities above, is that amount of degradation which

causes ``take'' of Pecos pupfish. Not all of the activities mentioned

above will result in violation of section 9 of the Act; only those

activities which result in ``take'' of Pecos pupfish are considered

violations of section 9. Contacts have been identified to assist the

public in determining whether a particular activity would be prohibited

under section 9 of the Act. In New Mexico, contact the Field

Supervisor, Ecological Services Field Office (Albuquerque) (see

ADDRESSES section). In Texas, contact the Field Supervisor, Ecological

Services Field Office, 10711 Bernet Road, Suite 200, Hartland Bank

Building, Austin, Texas 78758, (512/490-0057).

Public Comments Solicited

The Service intends that any final action resulting from this

proposal will be as accurate and as effective as possible. Therefore,

comments or suggestions from the public, other concerned governmental

agencies, the scientific community, industry, or any other interested

party concerning this proposed rule are hereby solicited. Comments

particularly are sought concerning:

(1) Biological, commercial trade, or other relevant data concerning

any threat (or lack thereof) to this species;

(2) The location of any additional populations of this species and

the reasons why any habitat should or should not be determined to be

critical habitat as provided by section 4 of the Act;

(3) Additional information concerning the range, distribution, and

population size of this species;

(4) Current or planned activities in the subject area and their

possible impacts on this species, and;

(5) Any other information related to the status of, or threats to,

the Pecos pupfish.

Final promulgation of the regulation on this species will take into

consideration the comments and any additional information received by

the Service, and such communications may lead to a final regulation

that differs from this proposal.

The Endangered Species Act provides for a public hearing on this

proposal, if requested. Requests must be received within 45 days of the

date of publication of the proposal. Such requests must be made in

writing and addressed to the Field Supervisor, Ecological Services

Field Office (Albuquerque) (see ADDRESSES section).

National Environmental Policy Act

The Fish and Wildlife Service has determined that an Environmental

Assessment, as defined under the authority of the National

Environmental Policy Act of 1969, need not be prepared in connection

with regulations adopted pursuant to section 4(a) of the Act. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

This rule does not contain collections of information that require

approval by the Office of Management and Budget under 44 U.S.C. 3501 et

seq.

References Cited

A complete list of all references cited herein, as well as others,

is available upon request from the Service's Ecological Services Field

Office (Albuquerque) (see ADDRESSES section).

Author: The primary author of this proposed rule is Jennifer

Fowler-Propst (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, it is hereby proposed to amend part 17, subchapter B

of chapter I, title 50 of the Code of Federal Regulations, as set forth

below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend section 17.11(h) by adding the following, in alphabetical

order under ``Fishes,'' to the List of Endangered and Threatened

Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

[[Page 4613]]

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Species Vertebrate

-------------------------------------------------------- population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

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Fishes

* * * * * * *

Pupfish, Pecos................... Cyprinodon USA (NM, TX)....... Entire............. E ........... NA NA

pecosensis.

* * * * * * *

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Dated: January 21, 1998.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98-2273 Filed 1-29-98; 8:45 am]

BILLING CODE 4310-55-P