Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule to List the Fish Virgin Spinedace as Threatened and Withdrawal of the Proposed Rule to Designate Critical Habitat for the Virgin Spinedace

DEPARTMENT OF THE INTERIOR

50 CFR Part 17

RIN 1018-AC53

Endangered and Threatened Wildlife and Plants; Withdrawal of the

Proposed Rule to List the Fish Virgin Spinedace as Threatened and

Withdrawal of the Proposed Rule to Designate Critical Habitat for the

Virgin Spinedace

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) withdraws the May

18, 1994, proposed rule (59 FR 25875) to list the fish Virgin spinedace

(Lepidomeda mollispinis mollispinis) as a threatened species and also

withdraws the portion of the April 5, 1995, proposed critical habitat

designation for the Virgin spinedace (60 FR 17296). The Virgin

spinedace, a small fish in the minnow family (Cyprinidae), is endemic

to the Virgin River drainage of southwestern Utah, northwestern

Arizona, and southeastern Nevada. The Virgin spinedace was once common

to abundant in clear water tributaries of the Virgin River and in some

mainstem reaches above Pah Tempe (La Verkin) Springs near Hurricane,

Utah. It was also occasionally found in most reaches of the river below

Pah Tempe Springs, with the exception of the mouth of Quail Creek and

the mouth of Beaver Dam Wash, where Virgin spinedace were once reported

common. Approximately 37 to 40 percent of Virgin spinedace historical

habitat has been lost due to human impacts which include the

introduction of nonnative fishes, dewatering for agricultural purposes,

mining, and urban development. These impacts have resulted in habitat

fragmentation and continue to threaten the existence of the Virgin

spinedace.

Subsequent to publication of the proposed rule, the State of Utah

developed the Virgin Spinedace Conservation Agreement and Strategy

(Agreement) for the Virgin spinedace to ensure that conservation

measures and recovery actions needed for the fish's continued existence

are initiated and carried out

lted in habitat

fragmentation and continue to threaten the existence of the Virgin

spinedace.

Subsequent to publication of the proposed rule, the State of Utah

developed the Virgin Spinedace Conservation Agreement and Strategy

(Agreement) for the Virgin spinedace to ensure that conservation

measures and recovery actions needed for the fish's continued existence

are initiated and carried out. In June 1995, the eight signatory

parties to the Agreement began implementation of the Agreement and its

associated strategy to reduce threats to the Virgin spinedace that

otherwise would warrant its listing as a threatened species under the

Endangered Species Act of 1973, as amended (Act). The Agreement will

reestablish and maintain water flows required for the Virgin spinedace

and will restore 50 percent of its lost historical habitat. On April

10, 1995, the Service's Salt Lake City Field Office received a letter

from one of the petitioners, the Bonneville Chapter of the American

Fisheries Society, stating that with the implementation of the

Agreement the Virgin spinedace no longer warrants listing. The other

petitioner, Southern Utah Wilderness Alliance, still supports listing

of the Virgin spinedace because of concerns that the Agreement will not

be fully implemented or recover the species.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the Utah Field Office,

Ecological Services, U.S. Fish and Wildlife Service, 145 East 1300

South, Suite 404, Salt Lake City, Utah 84115. The complete file for

this rule also will be available for public inspection at the

Washington County Public Library in St. George, Utah.

FOR FURTHER INFORMATION CONTACT: Mr. Robert D. Williams, Assistant

Field Supervisor, Salt Lake City Field Office, at the above address,

telephone (801) 524-5001.

SUPPLEMENTARY INFORMATION:

Background

ast 1300

South, Suite 404, Salt Lake City, Utah 84115. The complete file for

this rule also will be available for public inspection at the

Washington County Public Library in St. George, Utah.

FOR FURTHER INFORMATION CONTACT: Mr. Robert D. Williams, Assistant

Field Supervisor, Salt Lake City Field Office, at the above address,

telephone (801) 524-5001.

SUPPLEMENTARY INFORMATION:

Background

The Virgin spinedace belongs to one of three genera of a unique,

endemic tribe of western cyprinids, the Plagopterini. Adult Virgin

spinedace measure 80-120 mm (3-5 in) in length and have a broad, flat

silvery body with a brassy sheen. They are usually found in clear, cool

streams that are interspersed with pools, runs, and riffles. Rinne

(1971) found that Virgin spinedace inhabited pools, often with undercut

banks, debris, or boulders. The Virgin spinedace feeds primarily on

aquatic insect life (Rinne 1971, Gregor and Deacon 1988, Angradi et al.

1991), and their feeding habits are dependent upon the types of food

available. The Virgin spinedace is endemic to the Virgin River

drainage, a tributary to the Colorado River of southwestern Utah,

northwestern Arizona, and southeastern Nevada. The historical

distribution of the Virgin spinedace is not well documented (Valdez et

al. 1991). The species was probably common to abundant in tributaries

of the Virgin River and some mainstem reaches above

Pah Tempe (La Verkin) Springs, near Hurricane, Utah (Holden et al.

1974). The Virgin spinedace was probably less abundant in the mainstem

Virgin River below Pah Tempe Springs, with the exception of the mouths

of Quail Creek and Beaver Dam Wash, where the Virgin spinedace was a

common member of the fauna.

The proposal (59 FR 25875; May 18, 1994) to list the Virgin

spinedace as threatened and a subsequent proposal (60 FR 17296; April

5, 1995) to designate critical habitat were based on the decline in the

range of and continued threats to the species

h Tempe Springs, with the exception of the mouths

of Quail Creek and Beaver Dam Wash, where the Virgin spinedace was a

common member of the fauna.

The proposal (59 FR 25875; May 18, 1994) to list the Virgin

spinedace as threatened and a subsequent proposal (60 FR 17296; April

5, 1995) to designate critical habitat were based on the decline in the

range of and continued threats to the species. The present distribution

of Virgin spinedace is substantially smaller than its former range,

with approximately 37 to 40 percent (83 kilometers (km) or 52 miles

(mi)) of its habitat lost due to human impacts (Valdez et al. 1991,

Addley and Hardy 1993). Much of this habitat loss has occurred

recently. Approximately 60 percent of the habitat loss has occurred

since the 1950's and is directly related to construction of dams and

diversions in the Virgin River Basin (Dr. Craig Addley, Utah State

University, in litt. 1994). Stream reaches that historically contained

Virgin spinedace (but are now dewatered) include portions of the East

Fork of Beaver Dam Wash, the Santa Clara River downstream of Gunlock

Reservoir, Mogatsu Creek, Ash Creek near Toquerville, Leeds Creek,

North Creek, and the mainstem Virgin River between Quail Creek

Diversion and Pah Tempe Springs.

Previous Federal Action

On June 15, 1992, the Fish and Wildlife Service (Service) received

a petition from the Bonneville Chapter of the American Fisheries

Society to list the Virgin spinedace as an endangered species. On

August 17, 1992, another petition to list the Virgin spinedace was

received from the Southern Utah Wilderness Alliance. On March 16, 1993,

the Service published notice (58 FR 14169) of a finding that the

petitions presented substantial information indicating that listing of

the Virgin spinedace may be warranted and requested comments and

biological data on the status of the fish. On May 18, 1994, the Virgin

spinedace was proposed for listing as a threatened species (59 FR

25875)

hern Utah Wilderness Alliance. On March 16, 1993,

the Service published notice (58 FR 14169) of a finding that the

petitions presented substantial information indicating that listing of

the Virgin spinedace may be warranted and requested comments and

biological data on the status of the fish. On May 18, 1994, the Virgin

spinedace was proposed for listing as a threatened species (59 FR

25875). The Service requested independent review of the listing package

from three fish specialists. All three reviewers supported the listing

of the Virgin spinedace as threatened and that the Service's finding

was based on the best scientific information available. On April 5,

1995, the designation of critical habitat was proposed for the Virgin

spinedace, Virgin River chub (Gila seminuda), and woundfin (Plagopterus

argentissumus) (60 FR 17296). On April 11, 1995, the Service signed the

Agreement developed by the State of Utah.

Summary of Comments and Recommendations

In accordance with the July 1, 1994, Federal Register notice (59 FR

34270) which announced a statement of interagency cooperative policy

for peer review of activities under the Act (16 U.S.C. 1531 et seq.),

independent peer review was requested on the proposed listing of the

Virgin spinedace as a threatened species. This review process is

intended to complement the Service's existing public review process in

listing and recovery, and to ensure that the best biological and

commercial information is being used in the decision making process.

According to policy, when listing a species the Service is required to

r review was requested on the proposed listing of the

Virgin spinedace as a threatened species. This review process is

intended to complement the Service's existing public review process in

listing and recovery, and to ensure that the best biological and

commercial information is being used in the decision making process.

According to policy, when listing a species the Service is required to

(1) 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; (2) summarize in the final decision document (rule or

notice of withdrawal) the opinions of all independent peer reviewers

received on the species under consideration; and (3) include all such

reports, opinions, and other data in the administrative record of the

final decision.

The Service requested assistance in reviewing the listing package

on the Virgin spinedace from three independent fish specialists.

Specific questions addressed in the review included: (1) Does the

listing package present the scientific information correctly?; and (2)

Is the listing package biologically supportable? All three reviewers

supported the listing of the Virgin spinedace as a threatened species,

and agreed that the listing package presented the best scientific

information available and that it was biologically supportable.

Subsequent to the peer review process, the State of Utah established

the Agreement for the Virgin spinedace, including conservation measures

and recovery actions that will ensure the fish's survival.

In the May 18, 1994, proposed rule and associated notifications,

all interested parties were requested to submit factual reports or

information that might contribute to the development of a final rule to

list the Virgin spinedace as a threatened species

tablished

the Agreement for the Virgin spinedace, including conservation measures

and recovery actions that will ensure the fish's survival.

In the May 18, 1994, proposed rule and associated notifications,

all interested parties were requested to submit factual reports or

information that might contribute to the development of a final rule to

list the Virgin spinedace as a threatened species. Appropriate Federal

and State agencies, county governments, scientific organizations, and

other interested parties were contacted and requested to comment. A

notice inviting general public comment on the proposed listing was

published in the following newspapers: Salt Lake Tribune/Desert News,

St. George Daily Spectrum, Las Vegas Review Journal/Las Vegas Sun,

Kingman Daily Miner, and the Mesquite Desert Valley Times. Requests to

hold public hearings on the proposed listing were received from the

Washington County Water Conservancy District, and from Congressman

James H. Hansen's office (1st District, Utah). On June 30, 1994, the

Service published a notice in the Federal Register (59 FR 33724)

announcing the public hearing and extending the comment period until

August 17, 1994. In addition to the Federal Register notice and

announcements in newspapers, a letter was sent to all interested

parties announcing the date of the public hearing and the extended

closing date for public comment. The Service conducted a public hearing

on July 13, 1994, in St. George, Utah and 19 parties presented

testimony.

During the comment period, the Service received both written and

oral comments from 41 parties, including the testimony presented at the

public hearing. Comments were received from 1 Federal agency, 4 State

agencies, 11 city or county governments, 22 private individuals or

groups, and 3 representatives of the scientific community. Of the 41

comments received, 8 supported the proposed listing of the Virgin

spinedace as a threatened species, 32 opposed the listing, and 1

comment was neutral

luding the testimony presented at the

public hearing. Comments were received from 1 Federal agency, 4 State

agencies, 11 city or county governments, 22 private individuals or

groups, and 3 representatives of the scientific community. Of the 41

comments received, 8 supported the proposed listing of the Virgin

spinedace as a threatened species, 32 opposed the listing, and 1

comment was neutral. Written and oral statements from both the public

hearing and the comment period are combined in the following

discussion. In addition, information submitted by the commentors has

been incorporated into this notice of withdrawal. Comments questioning

the rule have been organized into specific issues. These issues and the

Service's response to each are summarized as follows:

Issue 1: A number of respondents objected to the Service's failure

to designate critical habitat concurrently with the listing of the

Virgin spinedace, claiming that the requirements set forth in the Act

for not designating critical habitat at the time of listing have not

been met.

Service Response: Section 4(a)(3) of the Act requires that to the

maximum extent prudent and determinable, the Secretary shall designate

critical habitat at the time a species is determined to be

endangered or threatened. Service regulations (50 CFR 424.12(a)(1))

state that designation of critical habitat at the time when a species

is proposed for listing is not prudent when one or both of the

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

other human activity, and it is expected that identification of

critical habitat will increase the degree of threat to the species; or

r threatened. Service regulations (50 CFR 424.12(a)(1))

state that designation of critical habitat at the time when a species

is proposed for listing is not prudent when one or both of the

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

other human activity, and it is expected that identification of

critical habitat will increase the degree of threat to the species; or

(2) such designation of critical habitat is not beneficial to the

survival of the species. The Service found that designation of critical

habitat for the Virgin spinedace was not prudent at the time of its

original listing (May 18, 1994). The primary intent of the Act is to

provide for the conservation and continued existence of wild

populations of endangered and threatened species and the ecosystems

upon which they depend. The Service believed that an aquatic ecosystem

approach to enacting conservation measures for the Virgin spinedace,

the woundfin, and the Virgin River chub at the same time would provide

greater benefit to each species than treating each species separately.

Thus, the Service proposed designation of critical habitat for all

three fishes in the same notice since their historical ranges overlap,

their life history requirements are similar, the threats to each

species are similar, and the economic consequences of designating

critical habitat will be similar. On April 5, 1995, the Service

proposed the designation of critical habitat for the woundfin, Virgin

River chub, and Virgin spinedace (60 FR 17296) with the intention of

finalizing this designation by no later than December 1, 1995.

Concurrent with this notice withdrawing the proposed listing of the

Virgin spinedace, the Service also withdraws that portion of designated

critical habitat identified for the species in the April 5, 1995,

Federal Register notice

habitat for the woundfin, Virgin

River chub, and Virgin spinedace (60 FR 17296) with the intention of

finalizing this designation by no later than December 1, 1995.

Concurrent with this notice withdrawing the proposed listing of the

Virgin spinedace, the Service also withdraws that portion of designated

critical habitat identified for the species in the April 5, 1995,

Federal Register notice.

Issue 2: A number of commentors (32) stated that there was

insufficient scientific evidence to justify the listing of the Virgin

spinedace, and that there were not enough data available to document a

true decline in population numbers.

Service Response: Section 4(a)(1) of the Act and regulations (50

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

Act set forth the procedures for adding species to the Federal lists. A

species may be determined to be an endangered or threatened species due

to one or more of the following five factors: (1) The present or

threatened destruction, modification, or curtailment of its habitat or

range; (2) overutilization for commercial, recreational, scientific, or

educational purposes; (3) disease or predation; (4) inadequacy of

existing regulatory mechanisms; and (5) other natural or human caused

factors affecting its continued existence. Section 4 of the Act also

states that after conducting a status review of a species, the

determination to list a species must be based on the best available

scientific and commercial information. The Service completed a status

review of the Virgin spinedace when preparing the proposed rule and

found evidence of real threats to the species. Valdez et al. (1991) and

Addley and Hardy (1993) published their findings on the population

status and distribution of the Virgin spinedace and their data were

cited by the Service as support for the proposed listing of the Virgin

spinedace as a threatened species

leted a status

review of the Virgin spinedace when preparing the proposed rule and

found evidence of real threats to the species. Valdez et al. (1991) and

Addley and Hardy (1993) published their findings on the population

status and distribution of the Virgin spinedace and their data were

cited by the Service as support for the proposed listing of the Virgin

spinedace as a threatened species.

Issue 3: Several commentors stated that listing was not warranted

given the current conservation efforts, including the Agreement being

developed by the State of Utah, and supported this Agreement in lieu of

listing the species.

Service Response: The Service participated in the development of

the Agreement and believes that its implementation will assist in the

recovery of the species. Conservation measures outlined in the

Agreement should help reduce actual and potential threats to the

species. Therefore, the listing of the Virgin spinedace is not

warranted at this time.

Issue 4: Several commentors stated that there is no evidence that

habitat loss, a primary threat to the species, is still occurring and

stated that the loss of historical habitat occurred decades ago.

Service Response: There are numerous reaches of the Virgin River

within Virgin spinedace historical or current habitat that support

existing or proposed commercial and noncommercial activities that may

result in future habitat losses to the species. Examples of Federal

projects which could have adverse effects upon Virgin spinedace habitat

are: the Sandstone Reservoir, Pah Tempe Pipeline, Halfway Wash Project,

Lake Powell Pipeline, water wheeling, water leasing, Washington Fields

Pumpback, and dewatering of springs for municipal and industrial

purposes. An evaluation of habitat loss over time has shown that

approximately 68 percent of Virgin spinedace habitat loss has occurred

in the last 45 years (Dr. Craig Addley, in litt. 1994)

: the Sandstone Reservoir, Pah Tempe Pipeline, Halfway Wash Project,

Lake Powell Pipeline, water wheeling, water leasing, Washington Fields

Pumpback, and dewatering of springs for municipal and industrial

purposes. An evaluation of habitat loss over time has shown that

approximately 68 percent of Virgin spinedace habitat loss has occurred

in the last 45 years (Dr. Craig Addley, in litt. 1994). Actions, when

implemented as part of the Agreement for the Virgin spinedace, will

result in restoration of at least 50 percent of its historic habitat.

If future projects impact Virgin spinedace habitat, the Agreement puts

in place a mechanism for habitat restoration, thus preventing further

decrease in Virgin spinedace habitat.

Issue 5: One respondent stated that the decline in Virgin spinedace

populations are a natural occurrence due to long term climatic changes.

Therefore, the species should be allowed to go extinct since it cannot

adapt to changes in the river system.

Service Response: In several reaches of the Virgin River where good

habitat remains, there are healthy populations of Virgin spinedace. In

the reaches of the river where habitat has been degraded, Virgin

spinedace populations have declined. These declines are the result of

direct threats to the species rather than due to ``long term climatic

changes.''

Issue 6: One commentor stated that listing the Virgin spinedace

would compromise efforts to manage and develop the region's water

resources in compliance with State and Federal laws. Also, the

``taking'' provisions of section 9 of the Act unnecessarily undermine

the efforts of local water users and State authorities to manage the

waters of the State for the benefit of Utah citizens.

Service Response: The listing of the Virgin spinedace as a

threatened species would not have modified or nullified any existing

State or Federal water laws, nor would it have ``taken'' any existing

water rights

' provisions of section 9 of the Act unnecessarily undermine

the efforts of local water users and State authorities to manage the

waters of the State for the benefit of Utah citizens.

Service Response: The listing of the Virgin spinedace as a

threatened species would not have modified or nullified any existing

State or Federal water laws, nor would it have ``taken'' any existing

water rights. The Service will consider State and Federal water laws

and local water user rights when protecting and recovering the Virgin

spinedace. Protective measures for listed species are provided for

under sections 7 and 9 of the Act. The section 9 ``takings'' provisions

of the Act are not intended to undermine State and local water usage,

but to insure that species are not harmed. Under certain circumstances,

section 10(a)(1)(B) of the Act allows permits to be issued to conduct

otherwise prohibited activities involving listed species. Such permits

provide for incidental taking of a species when in connection with an

otherwise lawful activity.

Issue 7: One commentor stated that there is no evidence that Virgin

spinedace occurred north of the Narrows on the Virgin River's North

Fork or east of Parunaweap Falls on the Virgin River's East Fork. Thus,

there is no evidence of Virgin spinedace habitat occurring in Kane

County.

Service Response: There is no evidence that Virgin spinedace

occurred north of the Narrows in the North Fork or east of Parunaweap

Falls in the East Fork of the Virgin River. However, the Virgin

spinedace is found in Shunes Creek, a tributary to the North Fork, and

also in the East Fork from Parunaweap Falls to the confluence with the

North

irgin spinedace habitat occurring in Kane

County.

Service Response: There is no evidence that Virgin spinedace

occurred north of the Narrows in the North Fork or east of Parunaweap

Falls in the East Fork of the Virgin River. However, the Virgin

spinedace is found in Shunes Creek, a tributary to the North Fork, and

also in the East Fork from Parunaweap Falls to the confluence with the

North

Fork. Both of these reaches are in Kane County, Utah.

Issue 8: Several commentors stated that, historically, many

stretches of the Virgin River dried up during summer, including a

stretch of the Virgin River's East Fork near Mt. Carmel Junction, and

the Santa Clara River downstream of the St. George-Clara diversion.

Consequently, there should be no instream flow requirements for these

reaches of the river.

Service Response: Virgin spinedace historically did not occur in

the Virgin River's East Fork near Mt. Carmel Junction. Listing of the

species would not have dictated instream flow requirements for this

juncture of the river. All instream flow requirements are addressed in

the Agreement.

Issue 9: Several commentors stated that more research needed to be

conducted on the Virgin spinedace before a decision to list the species

can be made. Specifically, if the species has declined in numbers,

there is insufficient evidence documenting the reasons for this

decline. They also stated that no current threats to the species have

been identified by researchers.

Service Response: Listing the Virgin spinedace would not have

precluded further research efforts. Valdez et al. (1991) reported a 40

percent decline in Virgin spinedace habitat along with a reduction in

population numbers. Declines in the numbers of Virgin spinedace have

resulted from numerous threats to the species. Section 4 of the Act

states that the determination to list a species must be based on the

best available scientific and commercial information after conducting a

status review of the species

91) reported a 40

percent decline in Virgin spinedace habitat along with a reduction in

population numbers. Declines in the numbers of Virgin spinedace have

resulted from numerous threats to the species. Section 4 of the Act

states that the determination to list a species must be based on the

best available scientific and commercial information after conducting a

status review of the species. The Service completed this review when

preparing the proposed rule and found evidence of real threats to the

species. Two recent publications (Valdez et al. 1991, Addley and Hardy

1993) assessed the population status and distribution of the Virgin

spinedace. The Service relied upon this information, in part, to

support the proposed listing of the Virgin spinedace as a threatened

species.

Issue 10: One commentor suggested that, in lieu of listing, the

Service should participate in the Virgin River Management Plan (Plan),

a cooperative multiagency agreement calling for the maintenance of

adequate water levels in the Virgin River, as set forth by the

Washington County Water Conservancy District.

Service Response: The Plan addresses only a portion of Virgin

spinedace habitat, since it was developed primarily for the Virgin

River chub and woundfin habitat in the mainstem Virgin River. Much of

the Virgin spinedace habitat occurs in tributaries and subtributaries

of the Virgin River which were not addressed in the Plan.

Issue 11: Several commentors stated that the results of the studies

cited in the proposed rule are inconsistent, and that the Valdez et al.

habitat, since it was developed primarily for the Virgin

River chub and woundfin habitat in the mainstem Virgin River. Much of

the Virgin spinedace habitat occurs in tributaries and subtributaries

of the Virgin River which were not addressed in the Plan.

Issue 11: Several commentors stated that the results of the studies

cited in the proposed rule are inconsistent, and that the Valdez et al.

(1991) and Addley and Hardy (1993) studies indicate an upward trend in

the Virgin spinedace population.

Service Response: Fish populations are subject to natural

fluctuations resulting from many environmental factors. Populations

fluctuate seasonally with highly inflated numbers of fishes following

the breeding season. Sampling for the two studies was conducted at

different times of the year. Addley and Hardy (1993) included larval

Virgin spinedace in their population counts while Valdez et al. (1991)

did not. When these differences are taken into account, the results

from the two studies are nearly identical.

Issue 12: Several commentors disagreed that dewatering of portions

of the Virgin River was a threat to the Virgin spinedace. They stated

that water diverted for irrigation is actually the key to maintaining

water further downstream during dry years because return flows feed the

river downstream late in summer and early fall, thus enhancing Virgin

spinedace habitat.

Service Response: Numerous reports (Cross 1975, Valdez et al. 1991,

Addley and Hardy 1993) have cited dewatering as a threat to the Virgin

spinedace. The reestablishment and maintenance of flows is identified

as one of the conservation measures to be implemented by the Agreement.

Water diverted for irrigation frequently results in complete dewatering

of portions of Virgin spinedace habitat. Historically, when these

reaches dried up, Virgin spinedace migrated to more suitable habitats.

Today, numerous dams and diversions isolate populations of Virgin

spinedace, making them vulnerable to the effects of dewatering

conservation measures to be implemented by the Agreement.

Water diverted for irrigation frequently results in complete dewatering

of portions of Virgin spinedace habitat. Historically, when these

reaches dried up, Virgin spinedace migrated to more suitable habitats.

Today, numerous dams and diversions isolate populations of Virgin

spinedace, making them vulnerable to the effects of dewatering. This

often translates into a high mortality rate. Return flows from

agricultural sources do augment summer flows in the river, but these

sources do not eliminate the negative impacts of upstream dewatering.

Issue 13: Several respondents believe that habitat degradation from

livestock grazing is not a threat to the species, since the effects of

grazing have been reduced since the early 1930's and 1940's.

Service Response: Livestock grazing has decreased along the Virgin

River since the early 1930's and 1940's, but there are still 18,000

head of cattle in Washington County alone. Cattle utilize riparian

areas, resulting in degraded Virgin spinedace habitat through

devegetation, stream bank erosion, siltation, and degraded water

quality. Valdez et al. (1991) identified 10 of 13 populations of Virgin

spinedace that are potentially threatened by grazing within riparian

areas and by runoff from nearby cattle feed lots. The Agreement

includes habitat enhancement projects such as: constructing and

maintaining boundary-line fences between Federal and private lands in

order to control unauthorized grazing; establishing intensive grazing

management programs for Federal lands along streams; and developing

conservation easements and barriers within the Virgin River floodplain

to help reduce additional agricultural impacts

ment

includes habitat enhancement projects such as: constructing and

maintaining boundary-line fences between Federal and private lands in

order to control unauthorized grazing; establishing intensive grazing

management programs for Federal lands along streams; and developing

conservation easements and barriers within the Virgin River floodplain

to help reduce additional agricultural impacts.

Issue 14: One respondent recommended that the final rule include a

special rule allowing for take in accordance with applicable State fish

and wildlife conservation laws, and with regulations under the Act for

scientific purposes, enhancement of propagation or survival of the

species, or other conservation purposes as specified in 50 CFR 17.44.

The respondent believed that a special rule would provide greater

management flexibility in the recovery of threatened species.

Service Response: The Act allows the Service to write special rules

for the conservation of threatened species. The withdrawal of the

proposed rule to list the Virgin spinedace as a threatened species

precludes any need for a special rule.

Issue 15: Several respondents believed that preserving water for

the commercial growth of the St. George area is more advantageous than

preserving a small fish in southern Utah.

Service Response: Section 2(a) of the Act states that wildlife and

plant species have intrinsic values (aesthetic, ecological,

educational, historical, recreational, and scientific) that are worth

preserving for the benefit of all citizens. The signing of the

Agreement puts in place a mechanism that sufficiently protects the

Virgin spinedace and addresses future water needs. Therefore, the

listing of the Virgin spinedace is not presently warranted.

Issue 16: Several respondents stated that listing the Virgin

spinedace would diminish the water supply now available for

agriculture

orth

preserving for the benefit of all citizens. The signing of the

Agreement puts in place a mechanism that sufficiently protects the

Virgin spinedace and addresses future water needs. Therefore, the

listing of the Virgin spinedace is not presently warranted.

Issue 16: Several respondents stated that listing the Virgin

spinedace would diminish the water supply now available for

agriculture. This, in turn, would decrease the value of private lands,

and increase the legal and administrative costs associated with

obtaining permits from the Federal bureaucracy. These effects would

increase economic and social hardships for the cities of Santa Clara

and Virgin. Additionally, the respondents stated this would cause a

cultural decay for the city of Santa Clara, whose orchards and tree-

lined streets (a city hallmark) would receive decreased amounts of

irrigation water.

Service Response: Under the Act, the Secretary shall make

determinations on the listing of species solely on the basis of the

best available scientific and commercial information without reference

to economic or other social impacts. The listing of the Virgin

spinedace would not affect existing water rights.

Summary of Factors Affecting the Species

After a thorough review and consideration of all available

information, coupled with the development of the Agreement, the Service

has concluded that the proposed rule to list the Virgin spinedace and

the corresponding portion of the proposed rule to designate critical

habitat should be withdrawn. 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 or deleting species from the Federal Lists. The Service

finds that evidence now available, as discussed below, does not justify

a final determination to add the spinedace to the List

should be withdrawn. 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 or deleting species from the Federal Lists. The Service

finds that evidence now available, as discussed below, does not justify

a final determination to add the spinedace to the List. A species may

be added or removed from the Lists based upon one or more of the five

factors described in section 4(a)(1) of the Act. These five listing

criteria are as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. While much Virgin spinedace

habitat has been destroyed, modified, and/or curtailed in the past, the

Agreement calls for enhancement and maintenance of Virgin spinedace

habitat. Habitat enhancement will be implemented for approximately 25

km (16 mi) of occupied habitat. Enhancement projects will focus on

those specific factors that have contributed to habitat degradation

such as agricultural activities, recreational use of riparian zones,

and activities that affect water quality. Enhancement projects will

include maintenance and construction of boundary-line fences between

Federal and private lands in order to control unauthorized grazing and

recreational use along the riparian zones. Grazing management programs

will be implemented for Federal lands bordering streams. Conservation

easements will be developed for the Virgin River floodplain to further

reduce habitat degradation. Additionally, mitigation for acceptable

future projects in occupied habitat will generally be based on a one to

one replacement of historical habitat.

B. Overutilization for commercial, recreational, scientific, or

educational purposes. Historically, Virgin spinedace were used as bait

fish in the lower Colorado River (Miller 1952)

irgin River floodplain to further

reduce habitat degradation. Additionally, mitigation for acceptable

future projects in occupied habitat will generally be based on a one to

one replacement of historical habitat.

B. Overutilization for commercial, recreational, scientific, or

educational purposes. Historically, Virgin spinedace were used as bait

fish in the lower Colorado River (Miller 1952). However,

overutilization is not reported as a factor in the continuing decline

of Virgin spinedace populations, and recent studies (Valdez et al.

1991, Addley and Hardy 1993) give no indication that overutilization

has negatively impacted Virgin spinedace populations.

C. Disease or predation. The introduction of nonnative fishes to

the Virgin River system has contributed to the decline of native fish

populations (Hardy 1991, U.S. Fish and Wildlife Service 1993). The

Agreement specifically addresses this issue. One of the five

conservation actions to be implemented by the Agreement is to

selectively control nonnative fishes. Management and control of

nonnative fishes will focus on stocking and introduction procedures, as

well as control and/or eradication of nonnative fishes in the Virgin

River basin. Specific management actions to remove the threats to

Virgin spinedace associated with nonnative species will be developed on

a reach by reach basis. Stocking procedures have been implemented by

the Utah Division of Wildlife Resources and the Nevada Division of

Wildlife that include prohibitions on: stocking of rainbow trout to

establish new self-sustaining populations; and stocking of brown trout,

brook trout, and channel catfish. Stocking all nonindigenous aquatic

species is prohibited by respective State regulations or is recommended

for prohibition by the Colorado River Wildlife Council. In addition,

there are restrictions on the stocking of largemouth bass and bluegill

sunfish in standing water impoundments, including existing mainstem

reservoirs, and other isolated ponds and reservoirs

trout, and channel catfish. Stocking all nonindigenous aquatic

species is prohibited by respective State regulations or is recommended

for prohibition by the Colorado River Wildlife Council. In addition,

there are restrictions on the stocking of largemouth bass and bluegill

sunfish in standing water impoundments, including existing mainstem

reservoirs, and other isolated ponds and reservoirs. Species targeted

for control and/or eradication include rainbow trout in the upper

reaches of Beaver Dam Wash (October 1995); green sunfish in the Santa

Clara River; and the red shiner in the mainstem Virgin River below the

Washington Fields Diversion (October 1995). The feasibility of

engineering fish barrier structures to control nonnative fish is also

being developed.

In addition to introduced fish species, several parasites have

invaded the Virgin River system, including the Asian tape worm

(Bothriocephalus acheilognathi) which was introduced to the Virgin

River system in 1986. This parasite weakens fish, making the fish more

vulnerable to stressful environmental conditions such as low water

levels. The Asian tape worm has not, as yet, been identified as a

parasite to the Virgin spinedace, but it has been reported from other

native fishes in the Virgin River. Addley and Hardy (1993) have

identified an unknown parasite infesting Virgin spinedace in the Ash

Creek drainage, but they were unable to determine the effects of this

parasite on the Virgin spinedace.

D. Inadequacy of existing regulatory mechanisms. The Virgin

spinedace is listed as State endangered in Utah and Arizona, and State

protected in Nevada. These States protect the species from direct take.

Although land ownership within the Virgin River Basin is divided and

administered among many Federal and State agencies, and also private

landowners, cooperation among the various groups is helping to protect

the Virgin spinedace

echanisms. The Virgin

spinedace is listed as State endangered in Utah and Arizona, and State

protected in Nevada. These States protect the species from direct take.

Although land ownership within the Virgin River Basin is divided and

administered among many Federal and State agencies, and also private

landowners, cooperation among the various groups is helping to protect

the Virgin spinedace. The Agreement is a multiagency agreement whose

signatories and participants include the Utah Division of Wildlife

Resources, Bureau of Land Management (Utah and Arizona State Offices),

National Park Service, Nevada Division of Wildlife, Arizona Game and

Fish Department, Washington County Water Conservancy District, and the

Service. The Agreement was developed to expedite conservation measures

needed for the continued existence and recovery of the Virgin

spinedace. It focuses on two objectives: (1) To reduce and eliminate

significant threats to the species, and (2) to enhance and/or stabilize

specific reaches of occupied and unoccupied historical habitat. These

objectives will be met through: reestablishment of population

maintenance flows for Virgin spinedace; enhancement and maintenance of

habitat; selectively controlling nonindigenous fishes; maintaining

genetic viability; monitoring populations and habitat; and developing a

mitigation plan and protocol for future activities that may affect

Virgin spinedace. When the Agreement is fully implemented, it will

provide for the recovery of the Virgin spinedace by establishing a

framework for interagency cooperation and coordination on conservation

efforts, setting recovery priorities, and estimating costs of various

tasks necessary to accomplish the recovery priorities. In addition to

the Agreement, other partnerships will be developed on specific actions

within the Virgin River basin involving other interested agencies or

groups.

E. Other natural or human caused factors affecting its continued

existence.

9 mi) of the Santa Clara River.

In addition to drought, other factors such as pollution, livestock

water diversions, and mining activities have negatively impacted the

Virgin spinedace by degrading its habitat. Under the Agreement, efforts

will be made to implement intensive grazing management programs on

Federal lands along riparian zones to control unauthorized grazing and

recreational use. Conservation easements and barriers within the Virgin

River floodplain will be developed to help reduce additional impacts

from agriculture, recreation, and development.

Implementation of the Agreement will result in the reestablishment

of Virgin spinedace in approximately 39 km (24 mi) of its historical

habitat and enhancement of currently occupied habitat. This will

involve the reestablishment of fish in areas that have not been

occupied for many years, and this effort will be monitored and

evaluated to determine the degree of success achieved. Changes in

nonnative stocking procedure will also be evaluated to determine the

degree of success. Therefore, until these evaluations are completed and

the degree of success determined, the Service will consider the Virgin

spinedace a species of concern. If the Agreement is successful, the

Virgin spinedace will no longer be considered a species of concern. If

the Agreement fails, the Virgin spinedace will be reevaluated for

possible listing.

The Service has carefully assessed the best scientific and

commercial data available regarding the past, present, and future

threats faced by this species. As stated in section 4(b)(1)(A) of the

Act, the Service shall take into account those efforts, if any, being

made by any State or foreign nation, or any political subdivision of a

State or foreign nation, to protect such species, whether by predator

control, protection of habitat and food supply or other conservation

practices, within any area under its jurisdiction

ats faced by this species. As stated in section 4(b)(1)(A) of the

Act, the Service shall take into account those efforts, if any, being

made by any State or foreign nation, or any political subdivision of a

State or foreign nation, to protect such species, whether by predator

control, protection of habitat and food supply or other conservation

practices, within any area under its jurisdiction.

The Service has evaluated each one of the five listing factors

discussed above after taking into account conservation efforts being

implemented on behalf of the Virgin spinedace. Based upon this

evaluation, the Service finds that the listing of the species as

proposed and the designation of critical habitat are no longer

warranted. The Service has determined that the Agreement, when fully

implemented, is expected to prevent any of the five listing factors

from causing the Virgin spinedace to become endangered in the

foreseeable future. Based on this decision, the Service withdraws the

proposed rule to list Virgin spinedace as threatened and withdraws that

portion of the proposed rule designating critical habitat that

addresses the Virgin spinedace.

Available Conservation Measures

An Agreement has been developed for the Virgin spinedace by the

Utah Department of Natural Resources in cooperation with the Bureau of

Land Management, National Park Service, Nevada Department of

Conservation and Natural Resources, Arizona Game and Fish Department,

Washington County Water Conservancy District, and the Service. This

Agreement focuses on reducing and eliminating significant threats and

enhancing and/or stabilizing specific reaches of occupied and

unoccupied historical habitats of the Virgin spinedace. When the

Agreement is fully implemented, it will provide for recovery of the

Virgin spinedace by establishing a framework for cooperation and

coordination among State and Federal agencies

the Service. This

Agreement focuses on reducing and eliminating significant threats and

enhancing and/or stabilizing specific reaches of occupied and

unoccupied historical habitats of the Virgin spinedace. When the

Agreement is fully implemented, it will provide for recovery of the

Virgin spinedace by establishing a framework for cooperation and

coordination among State and Federal agencies. It will also establish a

framework for conservation efforts, setting recovery priorities, and

establishing costs of various tasks necessary to accomplish the

recovery priorities.

References Cited

A complete list of all references cited is available upon request

from the Salt Lake City Field Office (see ADDRESSES above).

Authors

The primary authors of this document are Janet A. Mizzi and Henry

R. Maddux (see ADDRESSES above).

Authority: The authority for this action is section

4(b)(6)(B)(ii) of the Endangered Species Act of 1973, as amended (16

U.S.C. 1531 et seq.).

Dated: November 7, 1995.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 96-2484 Filed 2-5-96; 8:45 am]

BILLING CODE 4310-55-P