Federal Register, Volume 65 Issue 80 (Tuesday, April 25, 2000)

[Federal Register Volume 65, Number 80 (Tuesday, April 25, 2000)]
[Rules and Regulations]
[Pages 24328-24372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10202]

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Part V

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

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

Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF76

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat pursuant to the Endangered Species Act of 1973, as
amended (Act), for the spikedace (Meda fulgida) and the loach minnow
(Tiaroga (= Rhinichthys) cobitis).
We are designating occupied and unoccupied habitat that is
essential for the recovery of these two species. We are designating as
critical habitat a total of approximately 1,448 kilometers (km) (898
miles (mi)) of rivers and creeks for the two species. All of the total
area is designated as critical habitat for the loach minnow, and
approximately 1,302 km (807 mi) of that area is also designated as
critical habitat for the spikedace. Critical habitat includes portions
of the Gila, San Francisco, Blue, Black, Verde, and San Pedro Rivers,
and some of their tributaries, in Apache, Cochise, Gila, Graham,
Greenlee, Pima, Pinal, and Yavapai Counties in Arizona; and Catron,
Grant, and Hidalgo Counties in New Mexico. Critical habitat includes
the stream channels within the identified stream reaches and areas
within these reaches potentially inundated by high flow events. These
habitat areas provide for the physiological, behavioral, and ecological
features (primary constituent elements) essential for the conservation
of the spikedace and the loach minnow. Federal agencies proposing,
authorizing, or funding actions that may affect the areas designated as
critical habitat must consult with us on the effects of the proposed
actions, pursuant to section 7(a)(2) of the Act.

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

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

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

SUPPLEMENTARY INFORMATION:

Background

Spikedace

The spikedace is a small, slim fish less than 80 millimeters (mm)
(3 inches (in)) long. It is characterized by very silvery sides and by
spines in the dorsal and pelvic fins (Minckley 1973). This species is
found in moderate to large perennial streams, where it inhabits shallow
riffles with sand, gravel, and rubble substrates, and moderate to swift
currents and swift pools over sand or gravel substrates (Barber et al.
1970; Propst et al. 1986; Rinne 1991). Specific habitat for this
species consists of shear zones where rapid flow borders slower flow,
areas of sheet flow at the upper ends of mid-channel sand/gravel bars;
and eddies at downstream riffle edges (Propst et al. 1986; Rinne and
Kroeger 1988). Recurrent flooding and a natural hydrograph (physical
conditions, boundaries, flow, and related characteristics of waters)
are very important in maintaining the habitat of spikedace and in
helping the species maintain a competitive edge over invading nonnative
aquatic species (Propst et al. 1986; Minckley and Meffe 1987).
The spikedace was first collected in 1851 from the Rio San Pedro in
Arizona and was described from those specimens in 1856 by Girard. It is
the only species in the genus Meda. The spikedace was once common
throughout much of the Gila River basin, including the mainstem Gila
River upstream of Phoenix, and the Verde, Agua Fria, Salt, San Pedro,
and San Francisco subbasins. It occupies suitable habitat in both the
mainstream reaches and moderate-gradient perennial tributaries, up to
about 2,000 meters (m) (6,500 feet(ft)) elevation (Miller 1960;
Chamberlain 1904; Gilbert and Scofield 1898; Cope and Yarrow 1875).
Habitat destruction and competition and predation by nonnative
aquatic species have severely reduced its range and abundance. It is
now restricted to approximately 466 km (289 mi) of stream in portions
of the upper Gila River (Grant, Catron, and Hidalgo Counties, NM);
middle Gila River (Pinal County, AZ); lower San Pedro River (Pinal
County, AZ); Aravaipa Creek (Graham and Pinal Counties, AZ); Eagle
Creek (Graham and Greenlee Counties, AZ); and the Verde River (Yavapai
County, AZ) (Anderson 1978; Bestgen, 1985; Bettaso et al. 1995; Jakle
1992; Marsh et al. 1990; Propst et al. 1985; Propst et al. 1986;
Stefferud and Rinne 1996; Sublette et al. 1990). Its present range is
only about 10-15 percent of the historical range and the status of the
species within occupied areas ranges from common to very rare. At
present, the species is common only in Aravaipa Creek and some parts of
the upper Gila River in New Mexico.

Loach Minnow

The loach minnow is a small, slender, elongated fish less than 80
mm (3 in) long. It is olivaceous in color and strongly blotched with
darker pigment. The mouth is oblique (slanting) and terminal, and the
eyes are markedly directed upward (Minckley 1973). This species is
found in small to large perennial streams, and uses shallow, turbulent
riffles with primarily cobble substrate and swift currents (Minckley
1973; Propst and Bestgen 1991; Rinne 1989; Propst et al. 1988). The
loach minnow uses the spaces between, and in the lee of (sheltered
side), larger substrate for resting and spawning. It is rare or absent
from habitats where fine sediments fill the interstitial spaces (small,
narrow spaces between rocks or other substrate) (Propst and Bestgen
1991). Recurrent flooding and a natural hydrograph are very important
in maintaining the habitat of loach minnow and in helping the species
maintain a competitive edge over invading nonnative aquatic species
(Propst et al. 1986; Propst and Bestgen 1991).
The loach minnow was first collected in 1851 from the Rio San Pedro
in Arizona and was described from those specimens in 1865 by Girard.
The loach minnow was once locally common throughout much of the Gila
River basin, including the mainstem Gila River upstream of Phoenix, and
the Verde, Salt, San Pedro, and San Francisco subbasins. It occupies
suitable habitat in both the mainstream reaches and moderate-gradient
perennial tributaries, up to about 2,500 m (8,200 ft) elevation.
Habitat destruction and competition and predation by nonnative aquatic
species have severely reduced its range and abundance. It is now
restricted to approximately 676 km (419 mi) of stream in portions of
the upper Gila River (Grant, Catron, and Hidalgo Counties, NM); the San
Francisco and Tularosa Rivers and their tributaries Negrito and
Whitewater Creeks (Catron County, NM); the Blue River and its
tributaries Dry Blue, Campbell Blue, Little Blue, Pace, and Frieborn
Creeks (Greenlee County, AZ and Catron County, NM); Aravaipa Creek and
its tributaries Turkey and Deer Creeks (Graham and Pinal Counties, AZ);
Eagle

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

Previous Federal Actions

The spikedace was included as a Category 1 candidate species in our
December 30, 1982, Vertebrate Notice of Review (47 FR 58454). Category
1 included those taxa for which we had substantial biological
information to support listing the species as endangered or threatened.
We were petitioned on March 14, 1985, by the American Fisheries Society
(AFS) and on March 18, 1985, by the Desert Fishes Council (DFC) to list
the spikedace as threatened. Because the species was already under
active petition by AFS, the DFC petition was considered a letter of
comment. Our evaluation of the AFS petition revealed that the
petitioned action was warranted, and we published a proposed rule to
list this species as threatened with critical habitat on June 18, 1985
(50 FR 25390). We published the final rule listing the spikedace as a
threatened species on July 1, 1986 (51 FR 23769). We did not finalize
the proposed critical habitat designation at the time of listing but
postponed the designation to allow us to gather and analyze economic
data, in compliance with section 4(b)(2) of the Act.
We included the loach minnow as a Category 1 candidate species in
the December 30, 1982, Vertebrate Notice of Review (47 FR 58454). On
June 18, 1985 (50 FR 25380) we published a proposed rule to list this
species as threatened with critical habitat. We published the final
rule listing the loach minnow as a threatened species on October 28,
1986 (51 FR 39468). We did not finalize the proposed critical habitat
designation at the time of listing but postponed the designation to
allow us to gather and analyze economic data.
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time a species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(2)) state that critical habitat is not
determinable if information sufficient to perform required analyses of
the impacts of the designation is lacking or if the biological needs of
the species are not sufficiently well known to permit identification of
an area as critical habitat. At the time of listing of the spikedace
and loach minnow, we found that critical habitat was not determinable
because we had insufficient information to perform the required
analyses of the impacts of the designation. As part of a settlement
order of January 18, 1994, in Greater Gila Biodiversity Project v. U.S.
Fish and Wildlife Service, CIV 93-1913 PHX/PGR, we finalized the
critical habitat designations for both the spikedace and loach minnow
on March 8, 1994 (59 FR 10906 and 10898 respectively).
Critical habitat for spikedace and loach minnow was set aside by
court order in Catron County Board of Commissioners, New Mexico v. U.S.
Fish and Wildlife Service, CIV No. 93-730 HB (D.N.M., 1994), aff'd, 75
F3d, 1429 (10th Cir. 1996). The court cited our failure to analyze the
effects of critical habitat designation under the National
Environmental Policy Act (NEPA) as its basis for setting aside critical
habitat for the two species. The United States District Court for the
District of Arizona recognized the effect of the Catron County ruling
as a matter of comity (recognition given by the courts of one state or
jurisdiction of the laws and judicial decisions of another) in the
Southwest Center for Biological Diversity v. Rogers, CV 96-018-TUC-JMR
(D. Ariz., Order of December 28, 1996). As a result of these court
rulings, we removed the critical habitat description for spikedace and
loach minnow from the Code of Federal Regulations on March 25, 1998 (63
FR 14378).
On September 20, 1999, the United States District Court for the
District of New Mexico, Southwest Center for Biological Diversity v.
Clark, CIV 98-0769 M/JHG, ordered us to complete designation of
critical habitat for the spikedace and loach minnow by February 17,
2000. On October 6, 1999, the court amended the September 20, 1999
order to require us to make a critical habitat determination rather
than requiring actual designation. We published our proposed rule to
designate critical habitat in the Federal Register on December 10, 1999
(64 FR 69324).
On December 22, 1999, the court extended the deadline to complete
our determination until April 21, 2000. Information regarding public
notifications on the extension and hearing are given in the Summary of
Comments and Recommendations section later in this rule.
We completed final recovery plans for spikedace and loach minnow in
1991 (Service 1991a, 1991b). We developed those plans with the
assistance of the Desert Fishes Recovery Team and other biologists
familiar with the species. This rule is based, in part, on
recommendations offered in those recovery plans.

Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as--(i)
the specific areas within the geographic area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The term ``conservation,'' as defined in section 3(3) of the
Act, means ``to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to this Act are no longer
necessary'' (i.e., the species is recovered and removed from the list
of endangered and threatened species).
Section 4(b)(2) of the Act requires that we base critical habitat
proposals upon the best scientific and commercial data available,
taking into consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat. We may
exclude areas from critical habitat designation if we determine that
the benefits of exclusion outweigh the benefits of including the areas
as critical habitat, provided the exclusion will not result in the
extinction of the species. A discussion of our analysis under 4(b)(2)
of the Act is provided in the Exclusion for Economic and Other Relevant
Impacts section of this final rule.

Critical Habitat Designation

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

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reviewed the available information pertaining to habitat requirements
of the two species, including public comments and other material
received during critical habitat proposals and previous designations.
We also considered the measures identified as necessary for
recovery, as outlined in the species' recovery plans. Due to the need
for additional information on the two species, habitats, threats,
controllability of threats, restoration potentials, and other factors,
no quantitative criteria for delisting spikedace and loach minnow were
set forth in the recovery plans. However, the recovery plans recommend
protection of existing populations, enhancement and restoration of
habitats occupied by depleted populations, and reestablishment of the
two species into selected streams within their historical ranges.
Both recovery plans recommend designation of critical habitat for
all stream reaches proposed as critical habitat in 1985, plus
consideration of additional stream reaches. Except for Eagle Creek, the
recovery plans do not identify the specific stream reaches to be
considered for critical habitat designation due to the lack of
information available at that time to support such identifications. The
recovery plans do identify potential areas for reestablishment of
spikedace and loach minnow including the San Pedro River and its
tributaries, the San Francisco River, Mescal Creek (a middle Gila River
tributary), and Bonita Creek. The recovery plans also recommend
evaluation and selection of other potential sites. Recovery Team
discussions since 1991 identified the need for critical habitat
designation in Hot Springs and Redfield Canyons; Aravaipa, Eagle,
Bonita, Beaver, West Clear, Campbell Blue, and Dry Blue Creeks; and the
Gila, Verde, San Pedro, San Francisco, Blue, Tularosa, and White
Rivers.
The designated critical habitat described below constitutes our
best assessment of areas needed for the conservation of spikedace and
loach minnow and is based on the best scientific and commercial
information available. The designated areas are essential to the
conservation of the species because they either currently support
populations of spikedace and/or loach minnow, or because they currently
have, or have the potential for developing, the necessary requirements
for survival, growth, and reproduction of the spikedace and/or loach
minnow (see description of primary constituent elements, below). All of
the designated areas require special management consideration and
protection to ensure their contribution to the species' recovery.
Because of these species' precarious status, mere stabilization of
spikedace and loach minnow at their present levels will not achieve
conservation. Recovery through protection and enhancement of the
existing populations, plus reestablishment of populations in suitable
areas of historical range, are necessary for their survival. The
recovery plans for both species state, ``One of the most critical goals
to be achieved toward recovery is establishment of secure self-
reproducing populations in habitats from which the species has been
extirpated'' (Service 1991a, 1991b). We, therefore, determine that the
unoccupied areas designated as critical habitat are essential for the
conservation of the species.
Important factors we considered in selecting areas designated in
this rule include specific geographic area or complex of areas factors,
such as size, connectivity, and habitat diversity, as well as rangewide
recovery considerations such as genetic diversity and representation of
all major portions of the species' historical ranges. We designated
critical habitat complexes of sufficient size to provide habitat for
spikedace and/or loach minnow populations large enough to be self-
sustaining over time, despite fluctuations in local conditions so that
recovery of these species is possible.
The ability of the fish to repopulate areas where they are depleted
or extirpated is vital to recovery. Each complex contains
interconnected waters so that spikedace and loach minnow can move
between areas, at least during certain flows or seasons. Some complexes
include stream reaches that do not have substantial spikedace- or loach
minnow-specific habitat, but which provide migration corridors as well
as play a vital role in the overall health of the aquatic ecosystem
and, therefore, the integrity of upstream and downstream spikedace and
loach minnow habitats. Each complex includes habitat with a moderate to
high degree of complexity, thus providing suitable habitat for all life
stages of spikedace and loach minnow under a wide range of habitat
fluctuations.
The areas we selected for critical habitat designation include
populations containing all known remaining genetic diversity within the
two species, with the possible exception of the fish on certain tribal
lands, which we believe are capable of persistence without critical
habitat designation (see discussion under American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act later in this rule). Areas selected for critical habitat
designation include a representation of each major subbasin in the
historical ranges of the species.
The designation includes all currently known populations of
spikedace and loach minnow, except those on tribal lands. Uncertainty
on upstream and downstream distributional limits of some populations
may result in small areas of occupied habitat being excluded from the
designation. However, based on the best available scientific
information, we believe the areas included in this designation will be
sufficient to conserve both species.
In order to provide for genetic variability for the loach minnow,
the designation includes at least one remnant population for each major
subbasin except the Verde subbasin, from which it has been completely
extirpated. For spikedace, no remnant populations exist in the Agua
Fria, Salt, and San Francisco/Blue subbasins. In those subbasins where
no populations of spikedace or loach minnow currently exist, designated
critical habitat includes currently unoccupied areas that have the
potential and are important for restoration of the species, with the
exception of the Agua Fria subbasin where no suitable areas are known
to remain.
The inclusion of both occupied and currently unoccupied areas in
the designated critical habitat for spikedace and loach minnow is in
accordance with section 3(5)(A)(i) of the Act, which provides that
areas outside the geographical area currently occupied by the species
may meet the definition of critical habitat upon a determination that
they are essential for the conservation of the species. Both spikedace
and loach minnow are in danger of extinction, and their status is
declining. In 1994, we determined that reclassification of spikedace
and loach minnow from threatened to endangered was warranted; however,
reclassification was precluded by other higher priority listing actions
(59 FR 35303-35304). Although additional populations of loach minnow
have been found since that time, they are small and their contribution
to the status of the species is offset by declines in other
populations. It is essential to protect all designated occupied areas
as well as designated unoccupied areas that will provide habitat for
reestablishment of the two species.
Both of the 1986 listing rules for spikedace and loach minnow
conservatively estimated about 2,600 km (1,600 mi) of stream within the

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species' historical ranges. Using newer techniques, a more current
estimate is approximately 3,000 km (1,800 mi). This critical habitat
designation includes approximately half that amount for loach minnow
and less than half for spikedace. Although this is less than the
historical ranges for both species, we believe that maintenance of
viable spikedace and loach minnow populations within the designated
areas can achieve recovery of these species.
For each stream reach designated, the up-and downstream-boundaries
are described below. Critical habitat includes the stream channels
within the identified stream reaches and areas within these reaches
potentially inundated during high flow events. Where delineated, this
will be the 100-year floodplain of the designated waterways as defined
by the U.S. Army Corps of Engineers (COE). In areas where the 100-year
floodplain has not been delineated or it is in dispute, the presence of
alluvial soils (soils deposited by streams), obligate and facultative
riparian vegetation (requiring and usually occurring in wetlands,
respectively), abandoned river channels, or known high water marks can
be used to determine the extent of the floodplain. This proposal takes
into account the naturally dynamic nature of riverine systems and
recognizes that floodplains are an integral part of the stream
ecosystem. A relatively intact floodplain, along with the periodic
flooding in a relatively natural pattern, are important elements
necessary for long-term survival and recovery of spikedace and loach
minnow. Among other things, the floodplain and its riparian vegetation
provide space for natural flooding patterns and latitude for necessary
natural channel adjustments to maintain appropriate channel morphology
and geometry, provide nutrient input and buffering from sediment and
pollutants, store water for slow release to maintain base flows, and
provide protected side channels and other protected areas for larval
and juvenile spikedace and loach minnow.
Within the delineated critical habitat boundaries, only lands
containing, or which have the potential to develop, those habitat
components that are essential for the primary biological needs of the
species are considered critical habitat. Existing human-constructed
features and structures within this area, such as buildings, roads,
railroads, and other features, do not contain, and do not have the
potential to develop, those habitat components and are not considered
critical habitat.
Unless otherwise indicated, the following areas are designated as
critical habitat for both spikedace and loach minnow (see the
Regulation Promulgation section of this rule for exact descriptions of
boundaries). The designation includes portions of 24 and 36 streams for
spikedace and loach minnow, respectively; however, individual streams
are not isolated, but are connected with others to form areas or
``complexes.'' The complexes include those that currently support
populations of the fishes, as well as some currently unoccupied by the
species, but which are considered essential for reestablishing
populations to achieve recovery. The distances and conversions below
are approximate; more precise estimates are provided in the Regulation
Promulgation section of this rule.
1. Verde River complex, Yavapai County, Arizona. The Verde River
complex is currently occupied by spikedace. Its tributary streams are
believed to be currently unoccupied by either species. The Verde River
complex is unusual in that a relatively stable thermal and hydrologic
regime is found in the upper river and in Fossil Creek. Also, spikedace
in the Verde River are genetically (Tibbets 1993) and morphologically
(Anderson and Hendrickson 1994) distinct from all other spikedace
populations. The continuing presence of spikedace and the existence of
suitable habitat create a high potential for restoration of loach
minnow to the Verde system.
a. Verde River--171 km (106 mi) of river extending from the
confluence with Fossil Creek upstream to Sullivan Dam, but excluding
lands belonging to the Yavapai Apache Tribe. Sullivan Dam is at the
upstream limit of perennial flow in the mainstem Verde River. Perennial
flow results from a series of river-channel springs and from Granite
Creek. Below Fossil Creek, the Verde River has a larger flow and was
thought at the time of the proposal to offer little suitable habitat
for spikedace or loach minnow. However, this is historical range for
both species and comments from the U.S. Forest Service (USFS) indicate
this stretch of the river may offer substantial value for spikedace and
loach minnow recovery. We will seek further information regarding the
role of this portion of the Verde River for the species and may
consider its designation in future potential revisions of the critical
habitat.
b. Fossil Creek--8 km (5 mi) of creek extending from the confluence
with the Verde River upstream to the confluence with an unnamed
tributary. The lower portion of Fossil Creek contains all elements of
spikedace and loach minnow habitat at present, except sufficient
discharge. Discharge is currently diverted for hydropower generation at
the Childs/Irving Hydropower site. However, operators of the Childs/
Irving Hydropower project have agreed to provide enhanced flows into
lower Fossil Creek, although the amount of that flow restoration is
still under negotiation.
c. West Clear Creek--12 km (7 mi) of creek extending from the
confluence with the Verde River upstream to the confluence with Black
Mountain Canyon. The lower portion of West Clear Creek was historically
known to support the spikedace and contains suitable, although
degraded, habitat for the fishes. Gradient and channel morphology
changes above Black Mountain Canyon make the upstream area unsuitable
for either species.
d. Beaver/Wet Beaver Creek--33 km (21 mi) of creek extending from
the confluence with the Verde River upstream to the confluence with
Casner Canyon. Beaver Creek, and its upstream extension in Wet Beaver
Creek, historically supported spikedace and loach minnow and contains
suitable, although degraded, habitat. Above Casner Canyon, gradient and
channel morphology changes make the stream unsuitable for either
species.
e. Oak Creek--54 km (34 mi) of creek extending from the confluence
with the Verde River upstream to the confluence with an unnamed
tributary (near the Yavapai/Coconino County boundary). The lower
portion of Oak Creek is part of the historical range of the two species
and contains suitable, although degraded, habitat. Above the unnamed
tributary, the creek becomes unsuitable for either species due to urban
and suburban development and to increasing gradient and substrate size.
f. Granite Creek--2.3 km (1.4 mi) of creek extending from the
confluence with the Verde River upstream to a spring. Below the spring,
which supplies much of the base flow of Granite Creek, there is
suitable habitat for loach minnow. As a perennial tributary of the
upper Verde River, Granite Creek is considered an important expansion
area for spikedace recovery.
2. Black River complex, Apache and Greenlee Counties, Arizona. In
response to comments received on the suitability of this complex, we
have not designated any areas within the complex as critical habitat
for spikedace. The basis for this deletion from the proposed rule is
biological, given that spikedace are not known to historically occupy
areas at this elevation. However, the data on maximum elevation for
spikedace are

[[Page 24332]]

not definitive and if information becomes available that differs from
that currently available, the Black River complex may be reevaluated
for spikedace critical habitat designation. The Salt River subbasin is
a significant portion of spikedace historical range and has no existing
population of spikedace. Large areas of the subbasin are unsuitable,
either because of topography or because of reservoirs, stream channel
alteration by humans, or overwhelming nonnative species populations.
The Salt River subbasin is a significant portion of loach minnow
historical range, but loach minnow have been extirpated from all but a
small portion in the Black and White Rivers. As the only remaining
population of loach minnow on public lands in the Salt River basin, the
Black River complex is considered vital to survival and recovery of the
species.
a. East Fork Black River--Loach minnow only: 8 km (5 mi) of river
extending from the confluence with the West Fork Black River upstream
to the confluence with Deer Creek. This area is occupied by loach
minnow, although the downstream extent of the population is not well
known. This population was only discovered in 1996.
b. North Fork of the East Fork Black River--Loach minnow only: 18
km (11 mi) of river extending from the confluence with Deer Creek
upstream to the confluence with an unnamed tributary. This area is
occupied by loach minnow, although the upstream portion of the
population is not well known. Above the unnamed tributary, the river
has finer substrate and lacks riffle habitat, making it unsuitable for
loach minnow.
c. Beyond Creek--Loach minnow only: 2.3 km (1.4 mi) of creek
extending from the confluence with the East Fork Black River upstream
to the confluence with an unnamed tributary. Although no loach minnow
have been found in Boneyard Creek, they are probably present based on
the pattern of occupation of lower portions of small tributaries in
other parts of the loach minnow range.
d. Coyote Creek--Loach minnow only: 3 km (2 mi) of creek extending
from the confluence with the East Fork Black River upstream to the
confluence with an unnamed tributary. Loach minnow are thought to use
the lower portion of this creek as part of the population in the East
Fork Black River.
e. West Fork Black River--Loach minnow only: 10 km (6 mi) of river
extending from the confluence with the East Fork Black River upstream
to the confluence with Hay Creek. Above Hay Creek, the gradient and
channel morphology are unsuitable for loach minnow. The West Fork Black
River is not known to be occupied by loach minnow at present. However,
it is considered important for conservation of the Black River remnant
of the Salt River subbasin population.
3. Tonto Creek complex, Gila County, Arizona. Spikedace are known
to have occupied Tonto Creek, and loach minnow are presumed to have
done so although no records exist. Suitable habitat still exists,
although degradation has occurred due to watershed uses, water
diversion, agriculture, roads, and nonnative species introduction. The
presence of substantial areas of USFS lands make this one of the most
promising areas for reestablishment of spikedace and loach minnow in
the Salt River subbasin.
a. Tonto Creek--
Spikedace: 47 km (29 mi) of creek extending from the confluence
with Greenback Creek upstream to the confluence with Houston Creek. The
influence of Roosevelt Lake below Greenback Creek, and gradient and
substrate changes above Houston Creek, make these reaches unsuitable
for spikedace.
Loach minnow: 70 km (44 mi) of creek extending from the confluence
with Greenback Creek upstream to the confluence with Haigler Creek. The
influence of Roosevelt Lake above Greenback Creek and changes in
channel morphology above Haigler Creek make those portions of the
stream unsuitable for loach minnow.
b. Greenback Creek--(8 mi) of creek extending from the confluence
with Tonto Creek upstream to Lime Springs.
c. Rye Creek--2.1 km (1.3 mi) of creek extending from the
confluence with Tonto Creek upstream to the confluence with Brady
Canyon. This area of Rye Creek still supports a native fish community
indicating high potential for spikedace and loach minnow
reestablishment.
4. Middle Gila/Lower San Pedro/Aravaipa Creek complex, Pinal and
Graham Counties, Arizona. This complex is occupied by spikedace with
its population status ranging from rare to common. Aravaipa Creek
supports some of the best and most protected spikedace and loach minnow
populations due to special use designations on Bureau of Land
Management (BLM) land, substantial ownership by The Nature Conservancy,
and planned construction of fish barriers to prevent invasion of
nonnative fish species. Enhancement of downstream habitats in the San
Pedro and Gila Rivers would contribute substantially to recovery of
these species.
a. Gila River--63 km (39 mi) of river extending from Ashurst-Hayden
Dam upstream to the confluence with the San Pedro River. A small
population of spikedace currently occupies this area. At Ashurst-Hayden
Dam, all water is diverted into a canal. Above the confluence with the
San Pedro River, flow in the Gila River is highly regulated by San
Carlos Dam and becomes marginally suitable for either species. Below
the confluence, the input of the San Pedro provides a sufficiently
unregulated hydrograph which is a primary constituent element of loach
minnow and spikedace critical habitat.
b. San Pedro River--21 km (13 mi) of river extending from the
confluence with the Gila River upstream to the confluence with Aravaipa
Creek. This area is currently occupied by spikedace. It provides an
important connection between the existing population of loach minnow in
Aravaipa Creek and the recovery habitat in the Gila River. Existing
flow in the river comes primarily from surface and subsurface
contributions from Aravaipa Creek.
c. Aravaipa Creek--45 km (28 mi) of creek extending from the
confluence with the San Pedro River upstream to the confluence with
Stowe Gulch. Aravaipa Creek supports a substantial population of
spikedace and loach minnow. Stowe Gulch is the upstream limit of
sufficient perennial flow for either species.
d. Turkey Creek--Loach minnow only: 4 km (3 mi) of creek extending
from the confluence with Aravaipa Creek upstream to the confluence with
Oak Grove Canyon. This creek is occupied by loach minnow. A substantial
portion of the flow in Turkey Creek comes from the Oak Grove Canyon
tributary.
e. Deer Creek--Loach minnow only: 4 km (3 mi) of creek extending
from the confluence with Aravaipa Creek upstream to the boundary of the
Aravaipa Wilderness. This stream is occupied by loach minnow. Suitable
habitat extends to the Wilderness boundary.
5. Middle-Upper San Pedro River complex, Cochise, Graham, and Pima
Counties, Arizona. None of the habitat in this complex is currently
occupied by spikedace or loach minnow. However, the San Pedro River is
the type locality of spikedace (locality where an individual of a new
species is found that is chosen to serve as the basis for describing a
new species or variety), and this complex contains important
restoration areas.

[[Page 24333]]

a. San Pedro River--74 km (46 mi) of river extending from the
confluence with Alder Wash (near Redfield) upstream to the confluence
with Ash Creek (near the Narrows). This middle portion of the river is
expected to have increasing surface flow due to restoration activities,
including riparian and channel restoration, watershed improvements, and
groundwater pumping reductions.
b. Redfield Canyon--22 km (14 mi) of creek extending from the
confluence with the San Pedro River upstream to the confluence with
Sycamore Canyon. Above Sycamore Canyon, permanent water becomes too
scarce, and the habitat becomes unsuitable.
c. Hot Springs Canyon--19 km (12 mi) of creek extending from the
confluence with the San Pedro River upstream to the confluence with
Bass Canyon. Hot Springs Canyon is currently unoccupied but contains
suitable habitat for restoration of spikedace and loach minnow.
d. Bass Canyon--5 km (3 mi) of creek extending from the confluence
with Hot Springs Canyon upstream to the confluence with Pine Canyon.
Bass Canyon is an extension of the Hot Springs Canyon habitat.
e. San Pedro River--60 km (37 mi) of river extending from the
confluence with the Babocomari River upstream to the U.S./Mexico
border. Although currently unoccupied, this area is identified in BLM
(1993) planning documents as a restoration area for spikedace and loach
minnow.
6. Gila Box/San Francisco River complex, Graham and Greenlee
Counties, Arizona and Catron County, New Mexico. The only spikedace
population remaining in the complex is in Eagle Creek. Substantial
restoration potential for spikedace exists in the remainder of the
complex. This complex has the largest area of habitat suitable for
spikedace restoration.
Most of this complex is occupied by loach minnow, although the
status varies substantially from one portion to another. Only Bonita
Creek, Little Blue Creek, and the Gila River are currently unoccupied.
The Blue River system and adjacent portions of the San Francisco River
are the longest stretch of occupied loach minnow habitat unbroken by
large areas of unsuitable habitat. Management of Federal lands and
resources in the Gila Box, Bonita Creek, and the Blue River are highly
compatible with recovery goals, giving restoration of spikedace and
loach minnow in this complex a high likelihood of success.
a. Gila River--36 km (23 mi) of river extending from the Brown
Canal diversion, at the head of the Safford Valley, upstream to the
confluence with Owl Canyon, at the upper end of the Gila Box. The Gila
Box is not known to currently support spikedace, but is considered to
have a high potential for restoration of both species. Both above and
below the Gila Box, the Gila River is highly modified by agriculture,
diversions, and urban development.
b. Bonita Creek--24 km (15 mi) of creek extending from the
confluence with the Gila River upstream to the confluence with Martinez
Wash. Bonita Creek has suitable habitat for spikedace and loach minnow.
Bonita Creek above Martinez Wash lies on the San Carlos Apache
Reservation, which is excluded from this designation.
c. Eagle Creek--73 km (45 mi) of creek extending from the Phelps-
Dodge Diversion Dam upstream to the confluence of Dry Prong and East
Eagle Creeks, but excluding lands of the San Carlos Apache Reservation.
Because the creek repeatedly flows from private or USFS lands into the
San Carlos Apache Reservation and back, it is difficult to separately
calculate stream mileages on tribal lands. Therefore, the above mileage
covers the entire stream segment and is not corrected for tribal
exclusions. Eagle Creek supports a small population of spikedace. Below
the Phelps-Dodge Diversion Dam the creek is often dry; however comments
received on the proposed rule suggest the stretch of Eagle Creek below
the dam may offer sufficient connective value and habitat value to
justify its inclusion in critical habitat. This area may be considered
for critical habitat in future revisions of this designation.
d. San Francisco River--
Spikedace: 182 km (113 mi) of river extending from the confluence
with the Gila River upstream to the confluence with the Tularosa River.
Habitat above the Tularosa River does not appear suitable for
spikedace. The San Francisco River was historically occupied by
spikedace and is important habitat for restoration of the species.
Loach minnow: 203 km (126 mi) of river extending from the
confluence with the Gila River upstream to the mouth of The Box, a
canyon above the town of Reserve. Loach minnow in the San Francisco
River vary from common to rare throughout the length of the river.
e. Tularosa River--Loach minnow only: 30 km (19 mi) of river
extending from the confluence with the San Francisco River upstream to
the town of Cruzville. Above Cruzville, the habitat becomes unsuitable
due to the small size of the stream and a predominance of fine
substrates.
f. Negrito Creek--Loach minnow only: 7 km (4 mi) of creek extending
from the confluence with the San Francisco River upstream to the
confluence with Cerco Canyon. Above this area, gradient and channel
morphology make the creek unsuitable for loach minnow.
g. Whitewater Creek--Loach minnow only: 2 km (1 mi) of creek
extending from the confluence with the San Francisco River upstream to
the confluence with Little Whitewater Creek. Upstream gradient and
channel changes make the portion above Little Whitewater Creek
unsuitable for loach minnow.
h. Blue River--82 km (51 mi) of river extending from the confluence
with the San Francisco River upstream to the confluence of Campbell
Blue and Dry Blue Creeks. The Blue River is currently occupied by loach
minnow but not currently occupied by spikedace, but planning among
several State and Federal agencies for restoration of native fishes in
the Blue River is under way.
i. Campbell Blue Creek--13 km (8 mi) of creek extending from the
confluence of Dry Blue and Campbell Blue Creeks upstream to the
confluence with Coleman Canyon. Above Coleman Canyon, the creek changes
and becomes steeper and rockier, making it unsuitable for spikedace or
loach minnow.
j. Dry Blue Creek--Loach minnow only: 5 km (3 mi) of creek
extending from the confluence with Campbell Blue Creek upstream to the
confluence with Pace Creek.
k. Pace Creek--Loach minnow only: 1.2 km (0.8 mi) of creek
extending from the confluence with Dry Blue Creek upstream to a barrier
falls.
l. Frieborn Creek--Loach minnow only: 1.8 km (1.1 mi) of creek
extending from the confluence with Dry Blue Creek upstream to an
unnamed tributary.
m. Little Blue Creek--5 km (3 mi) of creek extending from the
confluence with the Blue River upstream to the mouth of a box canyon.
Little Blue Creek is not currently occupied by spikedace or loach
minnow, but contains suitable habitat and is considered an important
restoration area for both species.
7. Upper Gila River complex, Grant, Catron, and Hidalgo Counties,
New Mexico. This complex is occupied throughout by spikedace and loach
minnow and contains the largest remaining populations of both species.
It is considered to represent the ``core'' of what remains of the
species. Because of the remoteness of the area, there is a relatively
low degree of habitat threats.

[[Page 24334]]

a. Gila River--164 km (102 mi) of river extending from the
confluence with Moore Canyon (near the Arizona/New Mexico border)
upstream to the confluence of the East and West Forks. Spikedace and
loach minnow are known to occupy the river into the Duncan-Virden
Valley (Rinne 1999b).
b. East Fork Gila River--42 km (26 mi) of river extending from the
confluence with the West Fork Gila River upstream to the confluence of
Beaver and Taylor Creeks.
c. Middle Fork Gila River--
Spikedace: 12 km (8 mi) of river extending from the confluence with
the West Fork Gila River upstream to the confluence with Big Bear
Canyon.
Loach minnow: 19 km (12 mi) of river extending from the confluence
with the West Fork Gila River upstream to the confluence with Brothers
West Canyon
d. West Fork Gila River--12 km (8 mi) of river extending from the
confluence with the East Fork Gila River upstream to the confluence
with EE Canyon. This lower portion of the West Fork is occupied by
spikedace and loach minnow, but the river becomes unsuitable above EE
Canyon due to gradient and channel morphology.

Primary Constituent Elements

The habitat features (primary constituent elements) that provide
for the physiological, behavioral, and ecological requirements
essential for the conservation of a species are described at 50 CFR
424.12 and include, but are not limited to, the following:
--Space for individual and population growth, and for normal
behavior;
--Food, water, or other nutritional or physiological requirements;
--Cover or shelter;
--Sites for breeding, reproduction, or rearing of offspring; and
--Habitats that are protected from disturbance or are
representative of the historical geographical and ecological
distributions of a species.

Spikedace

We determined the primary constituent elements for spikedace from
studies on their habitat requirements and population biology including,
but not limited to, Barber et al. 1970; Minckley 1973; Anderson 1978;
Barber and Minckley 1983; Turner and Taffanelli 1983; Barrett et al.
1985; Propst et al. 1986; Service 1989; Hardy et al. 1990; Douglas et
al. 1994; Stefferud and Rinne 1996; Velasco 1997. These primary
constituent elements include:
1. Permanent, flowing, unpolluted water;
2. Living areas for adult spikedace with slow to swift flow
velocities in shallow water with shear zones where rapid flow borders
slower flow, areas of sheet flow at the upper ends of mid-channel sand/
gravel bars, and eddies at downstream riffle edges;
3. Living areas for juvenile spikedace with slow to moderate flow
velocities in shallow water with moderate amounts of instream cover;
4. Living areas for larval spikedace with slow to moderate flow
velocities in shallow water with abundant instream cover;
5. Sand, gravel, and cobble substrates with low to moderate amounts
of fine sediment and substrate embeddedness;
6. Pool, riffle, run, and backwater components present in the
aquatic habitat;
7. Low stream gradient;
8. Water temperatures in the approximate range of 1-30 deg.C (35-
85 deg.F), with natural diurnal and seasonal variation;
9. Abundant aquatic insect food base;
10. Periodic natural flooding;
11. A natural, unregulated hydrograph or, if the flows are modified
or regulated, then a hydrograph that demonstrates an ability to support
a native fish community; and
12. Habitat devoid of nonnative aquatic species detrimental to
spikedace, or habitat in which detrimental nonnative species are at
levels which allow persistence of spikedace.
The areas we are designating as critical habitat for spikedace
provide the above primary constituent elements or will be capable, with
restoration or removal of detrimental nonnative species, of providing
them. All of the designated areas require special management
considerations or protection to ensure their contribution to the
species' recovery.

Loach minnow

We determined the primary constituent elements for loach minnow
from studies on their habitat requirements and population biology
including, but not limited to, Barber and Minckley 1966; Minckley 1973;
Schreiber 1978; Britt 1982; Turner and Taffanelli 1983; Service 1988;
Rinne 1989; Hardy et al. 1990; Vives and Minckley 1990; Propst and
Bestgen 1991; Douglas et al. 1994; Velasco 1997. These primary
constituent elements include:
1. Permanent, flowing, unpolluted water;
2. Living areas for adult loach minnow with moderate to swift flow
velocities in shallow water with gravel, cobble, and rubble substrates;
3. Living areas for juvenile loach minnow with moderate to swift
flow velocities in shallow water with sand, gravel, cobble, and rubble
substrates;
4. Living areas for larval loach minnow with slow to moderate
velocities in shallow water with sand, gravel, and cobble substrates
and abundant instream cover;
5. Spawning areas for loach minnow with slow to swift flow
velocities in shallow water with uncemented cobble and rubble
substrate;
6. Low amounts of fine sediment and substrate embeddedness;
7. Riffle, run, and backwater components present in the aquatic
habitat;
9. Low to moderate stream gradient;
10. Water temperatures in the approximate range of 1-30 deg.C (35-
85 deg.F), with natural diurnal and seasonal variation;
11. Abundant aquatic insect food base;
12. Periodic natural flooding;
13. A natural unregulated hydrograph or, if flows are modified or
regulated, then a hydrograph that demonstrates an ability to support a
native fish community; and
14. Habitat devoid of nonnative aquatic species detrimental to
loach minnow, or habitat in which detrimental nonnative species are at
levels which allow persistence of loach minnow.
The areas we are designating as critical habitat for loach minnow
provide the above primary constituent elements or will be capable, with
restoration or removal of detrimental nonnative species, of providing
them. All of the designated areas require special management
considerations or protection to ensure their contribution to the
species' recovery.

Land Ownership

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

[[Page 24335]]

Table 1.--Stream Distances in Kilometers (Miles) of Critical Habitat Occupied by Either Loach Minnow or Spikedace by County and Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private State Federal Other Gov. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Apache Co., AZ..................................................... 0 0 11.3 (7.0) 0 11.3 (7.0)
Cochise Co., AZ.................................................... 0 0 0 0 0
Gila Co., AZ....................................................... 0 0 0 0 0
Graham Co., AZ..................................................... 10.3 (6.4) 0 4.7 (2.9) 26.1 (16.2) 41.1 (25.5)
Greenlee Co., AZ................................................... 45.0 (27.9) 2.6 (1.6) 109.5 (67.9) 0 157.1 (97.4)
Pima Co., AZ....................................................... 0 0 0 0 0
Pinal Co., AZ...................................................... 58.5 (36.3) 6.8 (4.2) 48.2 (29.9) 1.0 (0.6) 114.5 (71.0)
Yavapai Co., AZ.................................................... 56.5 (35.0) 5.8 (3.6) 52.2 (32.4) *1.6 (1.0) 116.1 (72)
------------------------------------------------------------------------------------
AZ Total....................................................... 170.0 (105.4) 15.2 (9.4) 225.9 (140.4) 28.7 (17.8) 440.1 (272.9)
====================================================================================
Catron Co., NM..................................................... 79.0 (49.0) 5.3 (3.3) 145.2 (90.0) 0.8 (0.5) 230.3 (142.8)
Grant Co., NM...................................................... 53.2 (33.0) 2.1 (1.3) 72.9 (45.2) 0 128.2 (79.5)
Hidalgo Co., NM.................................................... 10.6 (6.6) 0 7.3 (4.5) 0 17.9 (11.1)
NM Total....................................................... 142.8 (88.6) 7.4 (4.6) 225.4 (139.7) 0.8 (0.5) 376.4 (233.4)
------------------------------------------------------------------------------------
Total...................................................... 312.8 (194.0) 22.6 (14.0) 451.3 (280.4) 29.5 (18.3) 816.5 (506.3)
--------------------------------------------------------------------------------------------------------------------------------------------------------
*This area is included in the total critical habitat mileages, but is excluded by description.

Table 2.--Stream Distances in Kilometers (Miles) of Critical Habitat Unoccupied by Either Loach Minnow or Spikedace by County and Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private State Federal Other Gov. Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Apache Co., AZ..................................................... 3.4 (2.1) 0 24.1 (15.0) 0 27.6 (17.1)
Cochise Co., AZ.................................................... 17.3 (10.7) 5.6 (3.5) 61.2 (38.0) 0 84.1 (52.2)
Gila Co., AZ....................................................... 12.0 (7.5) 0 81.6 (50.6) 0 93.6 (58.1)
Graham Co., AZ..................................................... 21.1 (13.1) 13.9 (8.6) 50.1 (31.1) 5.5 (3.4) 90.6 (56.2)
Greenlee Co., AZ................................................... 30.6 (19.0) 3.9 (2.4) 18.9 (11.7) 0 53.4 (33.1)
Pima Co., AZ....................................................... 70.6 (43.8) 3.2 (2.0) 0 0 73.9 (45.8)
Pinal Co., AZ...................................................... 0 0 0 0 0
Yavapai Co., AZ.................................................... 55.3 (34.3) 7.1 (4.4) *95.2 (59.0) 0 *157.6 (97.7)
------------------------------------------------------------------------------------
AZ Total....................................................... 210.3 (130.5) 33.7 (20.9) 331.1 (205.4) 5.5 (3.4) 580.8 (360.2)
====================================================================================
Catron Co., NM..................................................... 0 0 0 0 0
Grant Co., NM...................................................... 4.0 (2.5) 0 47.9 (29.7) 0 51.9 (32.2)
Hidalgo Co., NM.................................................... 0 0 0 0 0
NM Total....................................................... 4.0 (2.5) 0 47.9 (29.7) 0 51.9 (32.2)
------------------------------------------------------------------------------------
Total...................................................... 214.3 (133.0) 33.7 (20.9) 379.0 (235.1) 5.5 (3.4) 632.7 (392.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Yavapai and Gila Counties share a border at Fossil Creek, the mileage for which is included in Gila County and not here.

1. Verde River complex--There are large blocks of USFS lands in the
upper and lower reaches, with significant areas of private ownership in
the Verde Valley and along the lower portions of Oak, Beaver, and West
Clear Creeks. There are also lands belonging to the National Park
Service (NPS), Arizona State Parks, and the Arizona Game and Fish
Department (AGFD).
2. Black River complex--The ownership is predominantly USFS, with a
few small areas of private land.
3. Tonto Creek complex--Land here is mostly USFS on the upper end,
but significant areas of private ownership occur in the lower reaches.
4. Middle Gila/Lower San Pedro/Aravaipa Creek complex--This area
includes extensive BLM land as well as extensive private land, some
State of Arizona lands, and a small area of allotted land used by the
San Carlos Apache Tribe.
5. Middle-Upper San Pedro complex--The BLM is the largest
landowner, and there are large areas of private ownership and smaller
areas of State of Arizona lands.
6. Gila Box/San Francisco River complex--This complex contains
extensive USFS land, some BLM land, and scattered private, State of
Arizona, and New Mexico Department of Game and Fish (NMDGF) lands. A
significant portion of Bonita Creek runs through the City of Safford.
7. Upper Gila River complex--The largest areas are on USFS land,
with small private inholdings. There are large areas of private lands
in the Cliff-Gila Valley, and the BLM administers significant stretches
upstream of the Arizona/New Mexico border. There are also small areas
of NMDGF, NPS, and State of New Mexico lands.
Significant private owners, with lands scattered among several of
the designated critical habitat complexes, include Phelps-Dodge
Corporation and The Nature Conservancy. A large number of other private
landowners hold lands within the designated areas. Private lands are
primarily used for grazing and agriculture, but also include towns,
small-lot residences, and industrial areas.

Effect of Critical Habitat Designation

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

[[Page 24336]]

Individuals, organizations, States, local and Tribal governments, and
other non-Federal entities are only affected by the designation of
critical habitat if their actions occur on Federal lands, require a
Federal permit, license, or other authorization, or involve Federal
funding.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its proposed or designated
critical habitat. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(4)
of the Act and regulations at 50 CFR 402.10 require Federal agencies to
confer with us on any action that is likely to jeopardize the continued
existence of a proposed species or to result in destruction or adverse
modification of proposed critical habitat. If a species is subsequently
listed or critical habitat is designated, then section 7(a)(2) requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of such
a species or destroy or adversely modify its critical habitat. To that
end, if a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency must enter into consultation
with us. Regulations at 50 CFR 402.16 also require Federal agencies to
reinitiate consultation in instances where we have already reviewed an
action for its effects on a listed species if critical habitat is
subsequently designated.
Section 4(b)(8) of the Act requires us, to the extent practicable,
to include in any proposed or final regulation that designates critical
habitat a description and evaluation of those activities involving a
Federal action that may adversely modify such habitat or that may be
affected by such designation. Activities that may destroy or adversely
modify critical habitat include those that alter the primary
constituent elements (defined above) to an extent that the value of
critical habitat for both the survival and recovery of the spikedace or
loach minnow is appreciably reduced.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. According to
regulations at 50 CFR 402.02, actions likely to ``jeopardize the
continued existence'' of a species are those that would appreciably
reduce the likelihood of the species' survival and recovery. Actions
likely to ``destroy or adversely modify'' critical habitat are those
that would appreciably reduce the value of critical habitat for the
survival and recovery of the listed species.
Common to both definitions is an appreciable detrimental effect on
both survival and recovery of a listed species. Given the similarity of
these definitions, actions likely to destroy or adversely modify
critical habitat would almost always result in jeopardy to the species
concerned, particularly when the area of the proposed action is
occupied by the species. In those cases, it is highly unlikely that
additional modifications to the action would be required as a result of
designating critical habitat. However, critical habitat may provide
benefits towards recovery when designated in areas currently unoccupied
by the species.
Actions on Federal lands that we reviewed in past consultations on
spikedace and loach minnow include land management plans; land
acquisition and disposal; road and bridge construction, maintenance,
and repair; water diversion and development; reservoir construction;
off-road vehicle use; livestock grazing and management; fencing;
prescribed burning; powerline construction and repair; recovery actions
for spikedace and loach minnow; game fish stocking; timber harvest;
access easements; flood repair and control; groundwater development;
channelization; and canal and other water transport facility
construction and operation. Federal agencies involved with these
activities include the USFS, BLM, Service, and Bureau of Reclamation.
Federal actions taken on private, State, or tribal lands on which
we consulted in the past for spikedace and loach minnow include
irrigation diversion construction and maintenance; flood repair and
control; game fish stocking; timber harvest; water diversion and
development; reservoir construction; water quality standards; and
riparian habitat restoration. Federal agencies involved with these
activities include the Natural Resources Conservation Service, Bureau
of Reclamation, Environmental Protection Agency, Bureau of Indian
Affairs, Indian Health Services, Federal Emergency Management Agency,
and the Service.
Federal actions involving issuance of permits to private parties on
which we consulted in the past for spikedace and loach minnow include
issuance of National Pollution Discharge Elimination System permits by
the Environmental Protection Agency and issuance of permits under
section 404 of the Clean Water Act for dredging and filling in
waterways by the COE. Private actions for which 404 permits were sought
include road and bridge construction, repair and maintenance; flood
control and repair; and water diversion construction and repair.
Since the original listing of spikedace and loach minnow in 1986,
only three consultations ended in a finding that the proposed action
would likely jeopardize the continued existence of spikedace and/or
loach minnow. An additional four proposed actions received draft
findings of jeopardy, but for three of those, the requests for
consultation were withdrawn and the fourth is still in progress. For
the three jeopardy findings, we developed reasonable and prudent
alternatives that included changes to projects, and recommended or
required measures to reduce or eliminate impacts to spikedace and loach
minnow and to minimize the take of individuals. These alternatives
removed the likelihood of jeopardy to the species.
As stated above, designation of critical habitat in areas occupied
by spikedace or loach minnow is not expected to result in regulatory
burden above that already in place due to the presence of the listed
species. However, areas designated as critical habitat that are not
currently occupied by the species may require protections similar to
those provided to occupied areas under past consultations.
Any Federal activity that would significantly and detrimentally
alter the minimum flow or the natural flow regime of any of the stream
segments listed above could destroy or adversely modify the critical
habitat of either or both species. Such activities include, but are not
limited to, groundwater pumping, impoundment, water diversion, and
hydropower generation.
Any Federal activity that would significantly and detrimentally
alter watershed characteristics of any of the 41 stream segments listed
above could destroy or adversely modify the critical habitat of either
or both species. Such activities include, but are not limited to,
vegetation manipulation, timber harvest, road construction and
maintenance, human-ignited prescribed fire, livestock grazing, mining,
and urban and suburban development.
Any Federal activity that would significantly and detrimentally
alter the channel morphology of any of the 41

[[Page 24337]]

stream segments listed above could destroy or adversely modify the
critical habitat of either or both species. Such activities include,
but are not limited to, channelization, impoundment, road and bridge
construction, deprivation of substrate source, destruction and
alteration of riparian vegetation, reduction of available floodplain,
removal of gravel or floodplain terrace materials, and excessive
sedimentation from mining, livestock grazing, road construction, timber
harvest, off-road vehicle use, and other watershed and floodplain
disturbances.
Any Federal activity that would significantly and detrimentally
alter the water chemistry in any of the 41 stream segments listed above
could destroy or adversely modify the critical habitat of either or
both species. Such activities include, but are not limited to, release
of chemical or biological pollutants into the surface water or
connected groundwater at a point source or by dispersed release (non-
point).
Any Federal activity that would introduce, spread, or augment
nonnative aquatic species could destroy or adversely modify the
critical habitat of either or both species. Such activities include,
but are not limited to, stocking for sport, aesthetics, biological
control, or other purposes; construction and operation of canals; and
interbasin water transfers.
In some cases designation of critical habitat may assist in
focusing conservation activities by identifying areas that contain
essential habitat features (primary constituent elements), regardless
of whether they are currently occupied by the listed species. This
identification alerts the public and land management agencies to the
importance of an area in the conservation of that species. Critical
habitat also identifies areas that may require special management
considerations or protection.
If you have questions regarding whether specific activities are
likely to constitute destruction or adverse modification of critical
habitat, contact the Field Supervisor, Arizona Ecological Services
Office (see ADDRESSES section). Requests for copies of the regulations
on listed wildlife and inquiries about prohibitions and permits may be
addressed to the U.S. Fish and Wildlife Service, Division of Endangered
Species, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone 505-
248-6920; facsimile 505-248-6788).

Economic Analysis

Section 4(b)(2) of the Act requires that we designate critical
habitat on the basis of the best scientific and commercial information
available and consider the economic and other relevant impacts of
designating a particular area as critical habitat. We based this
designation on the best available scientific information, including the
recommendations in the species' recovery plans. We utilized the
economic analysis, and took into consideration comments and information
submitted during the public hearing and comment period, to make this
final critical habitat designation. We may exclude areas from critical
habitat upon a determination that the benefits of such exclusions
outweigh the benefits of specifying such areas as critical habitat. We
cannot exclude such areas from critical habitat when such exclusion
will result in the extinction of the species. We completed an economic
analysis, which is available for public review. Send your requests for
copies of the economic analysis to the Arizona Ecological Services
Office (see ADDRESSES section) or visit our website at http://ifw2es.fws.gov/arizona.

Exclusion for Economic and Other Relevant Impacts

Based on comments provided by the BLM, our Economic Analysis
identified Bonita Creek as an area with potential for high economic
impacts associated with the designation of critical habitat for the
spikedace and loach minnow. The analysis concluded that ``Immediate
action is required in case of flood control damage to [the City of
Safford's] water supply in order to minimize the cost of repair. The
cost of a stable, alternative water supply is prohibitive. There is a
high probability of substantial cost to the City of Safford from the
inability to repair storm damage to their water supply in a timely
manner due to the requirement of a section 7 consultation if the Creek
is designated critical habitat.''
Bonita Creek is an area that is necessary for the recovery of the
probable unique spikedace gene pool presently occupying Eagle Creek.
Furthermore, 50 CFR section 402.05 of our regulations provides for
expedited consultation pursuant to section 7 of the Act during
emergencies. Finally, Bonita Creek is occupied by the razorback sucker
(Xyrauchen texanus), a species listed as endangered pursuant to the
Act. Thus, consultation on water supply repair has and will occur
regardless of the designation of critical habitat for the spikedace and
loach minnow. In fact, in 1994, the Federal Emergency Management Agency
consulted with us pursuant to section 7 of the Act regarding repairs to
the City of Safford's water supply system in Bonita Creek. We concluded
that repairs to the water system were not likely to jeopardize the
continued existence of the razorback sucker. Impacts to the razorback
sucker would be very similar to the impacts to the spikedace and thus,
including Bonita Creek as critical habitat is not likely to change our
section 7 consultation conclusions. For these reasons we conclude the
benefits of designating Bonita Creek outweigh the benefits of excluding
it from critical habitat designation.
Based on comments provided by Arizona Game and Fish Department
(AGFD), our Economic Analysis identified the possible discontinuation
of trout stocking programs as a potential for high economic loss to
affected county economies. We are presently consulting on the stocking
program, but because trout are not known to conflict with the recovery
of either spikedace or loach minnow, we do not expect any impacts to
the trout stocking program or county economies. Therefore, we conclude
the benefits of designating critical habitat for the spikedace and
loach minnow outweigh the benefits of excluding all areas where trout
stocking occurs.
No tribal reservation lands are included in this designation, as
discussed in more detail below. Nor are we including the Black River as
critical habitat for spikedace in this final determination because
information received during the comment period leads us to conclude
that it is not suitable for spikedace recovery. The Black River is,
however, designated as critical habitat for the loach minnow. After
gathering economic data and conducting an analysis of the lands
proposed for critical habitat designation, we determined that no other
areas should be excluded from this designation for economic or other
relevant considerations.

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

In accordance with the Presidential Memorandum of April 29, 1994,
we believe that, to the maximum extent possible, fish, wildlife, and
other natural resources on tribal lands are better managed under tribal
authorities, policies, and programs than through Federal regulation
wherever possible and practicable. Based on this philosophy, we believe
that, in most cases, designation of tribal lands as critical habitat
provides very little benefit to threatened and endangered species. This
is especially true where the habitat is occupied by the species and is
therefore already subject to protection under the Act. Conversely,

[[Page 24338]]

such designation is often viewed by tribes as unwarranted and unwanted
intrusion into tribal self governance, thus compromising the
government-to-government relationship essential to achieving our mutual
goals of managing for healthy ecosystems upon which the viability of
threatened and endangered species populations depend.
As stated previously, section 4(b)(2) of the Act requires us to
consider the economic and other relevant impacts of critical habitat
designation, and authorizes us to exclude areas from designation upon
finding that the benefits of exclusion outweigh the benefits of
including the areas as critical habitat, so long as excluding those
areas will not result in the extinction of the species concerned. In
the proposed rule for this critical habitat designation we solicited
information from interested parties on the anticipated economic and
other relevant impacts of designation.
We identified stream reaches on the Fort Apache Indian Reservation
(home of the White Mountain Apache Tribe), the San Carlos Apache
Reservation, and the Yavapai Apache Reservation as possibly appropriate
biologically for the designation of critical habitat, i.e., they
contain the primary constituent elements of the species' critical
habitat. The San Carlos, Tonto, White Mountain, and Yavapai Apache
tribes all addressed this issue in their comments on the proposed rule.
Below we evaluate the benefits of excluding these tribal lands from
critical habitat and the benefits of including these areas. In
addition, we assess the anticipated effects that designation of non-
tribal lands can be expected to have on tribal trust resources, such as
water deliveries.

1. Designation of Critical Habitat on Indian Reservations

The White Mountain Apache Tribe, which has currently occupied loach
minnow habitat and potential loach minnow and potential spikedace
habitat within its reservation boundaries, produced a Native Fishes
Management Plan. After reviewing this plan, we determined that the
tribe's management of the species will provide substantial protection
for the relevant habitat areas, and that designation of critical
habitat will provide little or no additional benefit to the species,
particularly since the areas are occupied by the loach minnow.
Conversely, designation of critical habitat would be expected to
adversely impact our working relationship with the Tribe, the
maintenance of which has been extremely beneficial in implementing
natural resource programs of mutual interest. In 1994 the Fish and
Wildlife Service and White Mountain Apache Tribe signed a Statement of
Relationship which formalized our commitment to work cooperatively with
the tribe in promoting healthy ecosystems. Since that agreement we have
worked cooperatively with the tribe to the significant benefit of
threatened and endangered species. In addition to managing the habitats
of the spikedace and loach minnow, these programs include management of
the threatened Mexican spotted owl, management of healthy populations
of threatened Apache trout, and other natural resource programs. After
weighing the benefits of critical habitat designation on the Fort
Apache Indian Reservation against the adverse impact on our cooperative
natural resource programs, we find that the benefits of excluding Fort
Apache Indian Reservation lands, in terms of the spikedace and loach
minnow, as well as ecosystems in general, outweigh the benefits of
including those areas as critical habitat.
In the case of the San Carlos Indian Reservation, we again believe
that the principle of tribal self-governance is the overriding
consideration and believe that Federal regulation through critical
habitat designation will be viewed as an unwarranted and unwanted
intrusion into tribal natural resource programs. This, in turn, will
likely hamper our ability to continue important programs upon which
endangered and threatened species depend. For example, we are currently
cooperating with the San Carlos Apache Tribe on a very important spring
restoration program for the benefit of the severely imperiled Gila
topminnow. We also are cooperating on programs to benefit the
endangered southwestern willow flycatcher, the Gila chub (a candidate
for listing under the Act), and the Mexican spotted owl, among others.
Given our belief that they are the entity best able to manage habitat
for the spikedace and loach minnow, the fact that the areas considered
for designation are already occupied by listed species and therefore
receive protection under the Act, and the anticipated adverse impacts
to our cooperative relationship that may result from critical habitat
designation, we believe that the benefits of excluding areas of the San
Carlos Apache Reservation from critical habitat outweigh the negligible
benefits of designating those areas.
The Yavapai Apache Tribe holds approximately one river-mile of
potential critical habitat on the Verde River, other parts of which are
designated as critical habitat. We believe that current management is
adequate as evidenced by the fact that the spikedace still occurs
there, and that little benefit would accrue from critical habitat
designation since the species is already protected under the Act. We
further believe that tribal management of this reservation land would
ultimately be of greater benefit to spikedace and loach minnow than
would the designation of this small segment, since we hope to maintain
a cooperative working relationship with the Yavapai Apache.
After carefully balancing the considerations involved in
determining whether lands should be included or excluded from the
designation of critical habitat, we determined that the benefits of
promoting self-determination, allowing the tribes to develop
conservation management on their lands, and the continued cooperative
relationship in managing threatened and endangered species and their
habitats, outweigh the benefits to be obtained from designating
critical habitat for these two species. Exclusion of these lands from
the designation will not result in extinction of either species.
These decisions were made in compliance with Public Law 106-113,
which prohibits us from using any of our appropriated funds to
implement two provisions of Secretarial Order 3206 (Secretarial
Order)--(1) Principle 3(C)(ii), which prohibits the imposition of
conservation restrictions involving incidental take if the conservation
purposes of the restriction can be achieved by reasonable regulation of
non-Indian activities, and (2) Appendix section 3(B)(4), which concerns
the designation of critical habitat and includes the requirement that
we consult with affected tribes. The Presidential Memorandum of April
29, 1994 also requires that we consult with tribes when contemplating
regulations that may affect them, and the Act requires that we consider
the relative benefits versus potential adverse consequences of critical
habitat designations on all lands. Thus, our consultation with the
tribes and our assessment of the ability to achieve conservation of
spikedace and loach minnow without regulation of tribal lands were
undertaken independently of the provisions of Secretarial 3206.

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

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

[[Page 24339]]

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

Summary of Comments and Recommendations

In the December 10, 1999, proposed rule, all interested parties
were requested to submit comments or information that might bear on the
designation of critical habitat for the spikedace and loach minnow (64
FR 69324). The comment period was initially scheduled to close on
January 14, 2000. Subsequently, the courts allowed us additional time
in which to prepare and publish this final designation of critical
habitat. Therefore on January 12, 2000, we announced in the Federal
Register (65 FR 1845) extension of the comment period to February 14,
2000, and scheduling of an additional public hearing. In addition, we
notified 525 interested parties of the comment period extension and
additional public hearing by letter.
We contacted all appropriate State and Federal agencies, Tribes,
county governments, scientific organizations, and other interested
parties by mail and invited them to comment on the proposed rule as
well as the draft economic analysis and Environmental Assessment. In
addition, newspaper notices inviting public comment were published in
the following newspapers in Arizona and New Mexico: The Arizona
Republic, Tucson Citizen, Arizona Daily Star (Tucson), Albuquerque
Tribune, Albuquerque Journal, Sierra Vista Herald, Eastern Arizona
Courier, Santa Fe New Mexican, Silver City Daily Press, White Mountain
Independent, The Verde Independent, Sedona Red Rock News, Cottonwood
Journal Extra, and Camp Verde Journal. The inclusive dates of these
publications were December 4-15, 1999, for the initial comment period
and announcement of the first three public hearings.
We posted copies of the proposed rule, draft environmental
assessment, and draft economic analysis on our Internet site and
distributed them for display and inspection at public libraries in
Prescott, Chino Valley, Camp Verde, City Of Cottonwood, Sedona, Sierra
Vista, Huachuca City, Safford City and Graham County, Clifton-Greenlee
County, Kearny, Tucson, Alpine, Greer, Mammoth, and San Manuel in
Arizona; and Silver City and Reserve Village Hall in New Mexico.
We held hearings in Silver City, New Mexico, and Thatcher, Arizona,
on December 15, 1999, and Camp Verde, Arizona, on December 16, 1999.
Notices appeared in the previously named newspapers between January 13
and 19, 2000 to announce the extension of the public comment period
until February 14, 2000, and the scheduling of an additional public
hearing in Sierra Vista, Arizona on January 31, 2000. The December 10,
1999 (64 CFR 69324), and January 12, 2000 (65 CFR 1845), notices also
announced the time and location of the four public hearings. A total of
495 people registered at the public hearings including 32 in Silver
City, 111 in Thatcher, 24 in Camp Verde, and 328 in Sierra Vista.
Transcripts of these hearings are available for inspection (see
ADDRESSES section).
We requested four ichthyologists familiar with the species to peer
review the proposed critical habitat designation. However, only two
responded by the close of the comment period. One responded that as a
member of the Desert Fishes Recovery Team he has provided data, advice,
and general counsel and supports the proposal on biological grounds.
The second also generally supported the proposed critical habitat, but
cited a few areas he suggested be added to the proposal as well as some
technical corrections to the document.
We received a total of 126 oral and 315 written comments during the
comment period. Of those oral comments, 15 supported critical habitat
designation and 111 were opposed to designation. Of the written
comments, 35 supported designation, 263 were opposed to it, and 17
provided additional information only, or were nonsubstantive or not
relevant to the proposed designation. Oral and written comments were
received from the government of Mexico, one Congressional
representative, two state legislators, two Federal agencies, three
State agencies, nine local governments, five Tribal governments, and
297 private organizations, companies, or individuals.
All comments received were reviewed for substantive issues and new
data regarding critical habitat and the biology and status of spikedace
and loach minnow. Comments of similar nature are grouped into 7 issues
relating specifically to critical habitat. These are addressed in the
following summary.

Issue 1: Procedural and Legal-Compliance

The following comments and responses involve issues related to
public involvement in the designation process and compliance with the
Act and other laws, regulations, and policies. These comments do not
include those addressing economic issues nor compliance with the NEPA,
which are addressed under Issues 3 and 5, respectively.
Comment 1a: The comment period was unreasonably short for the
public to fully evaluate the proposed rule and associated documents;
more public hearings were needed.
Our Response: The initial public comment period was shorter than
the 60 days required under our regulations (50 CFR 424.16(c)(2)).
However, the initial schedule we developed to complete this designation
was the result of a court-ordered deadline. The court originally
ordered us to publish this final designation by February 17, 2000. To
meet this deadline and allow time for analysis of public comments and
preparation of the final rule, we needed to close the public comment
period on January 14, 2000, resulting in an initial comment period of
36 days. Fortunately, both the plaintiffs and the court agreed to a 60-
day extension of the deadline. As a result, we announced in the Federal
Register (65 FR 1845) on January 12, 2000, as well as local newspapers,
that we were extending the comment period until February 14, 2000,
resulting in a total comment period of 65 days, thus exceeding the 60-
day regulatory requirement.
The Act requires that at least one public hearing be held if
requested. We held four hearings; thus we exceeded the statutory
requirements.
Comment 1b: The Service should prepare additional drafts of various
documents and provide them to the public for review.
Our Response: Drafts of both the economic analysis and
Environmental Assessment associated with this designation were made
available to the

[[Page 24340]]

public for review and comment. The final versions of those documents
are available to the public (see ADDRESSES).
Comment 1c: The public should have the opportunity to review
comments provided by selected experts during the peer review process.
Our Response: All comments submitted are part of the administrative
record and, as such, are open to public review. It is also important to
note that oral testimony at the public hearings, written comments from
the general public, and comments received during the peer review
process are considered equally in making our final determination.
Comment 1d: Designation of portions of the rivers unoccupied by
either of these fish species is outside the Service's authority and
contrary to the requirements of the Act.
Our Response: The definition of critical habitat in section 3(5)(A)
of the Act includes ``''specific areas outside the geographical area
occupied by a species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species.''
The term ``conservation'', as defined in section 3(3) of the Act, means
``to use and the use of all methods and procedures which are necessary
to bring any endangered species or threatened species to the point at
which the measures provided pursuant to this Act are no longer
necessary'' (i.e., the species is recovered and removed from the list
of endangered and threatened species).
After weighing the best available information, including the
species' recovery plans (U.S. Fish and Wildlife Service 1991a, 1991b),
we conclude that the areas designated by this final rule that lie
outside the geographical area occupied by the species at the time they
were listed are essential for the recovery of the species and
subsequent removal from the list of endangered and threatened species.
We also note that the total area designated only represents
approximately 45 and 50 percent of the areas believed historically
occupied by the spikedace and loach minnow, respectively.
Comment 1e: The Act states that areas outside the area occupied at
the time of listing can be designated only if those areas are
determined essential to the conservation of the species. The Service
instead considered whether areas were occupied at the time of critical
habitat designation. Therefore, some areas currently occupied, but that
were not occupied at the time of listing, were not subject to the
higher standard required of for unoccupied habitat (i.e., that those
areas are essential for the conservation of the species).
Our Response: The issue is moot since we determined that all areas
designated as critical habitat are essential for conservation of these
two species.
Comment 1f: The critical habitat proposal represents virtually all
suitable or potentially suitable habitat within the species' historical
ranges. The Act prohibits such broad designation.
Our Response: Section 3(5)(C) of the Act states that, except in
those circumstances determined by the Secretary, critical habitat shall
not include the entire geographical area which can be occupied by an
endangered or threatened species. In this case critical habitat is
designated in an estimated 45 and 50 percent of spikedace and loach
minnow historical ranges, respectively. With proper restoration and
management, much of the historical range would be suitable. The
Secretary of the Interior has determined that the areas designated are
essential to conserve these species.
Comment 1g: Private lands should be excluded from critical habitat
designation.
Our Response: Section 4(b)(2) of the Act states ``The Secretary
shall designate critical habitat, and make revisions thereto, under
subsection (a)(3) on the basis of the best scientific data available
and after taking into consideration the economic impact, and any other
relevant impact, of specifying any particular area as critical
habitat.'' The Act does not require nor suggest that private lands
should be excluded from designation, unless we find that the economic
or other relevant impacts outweigh the benefit of critical habitat
designation. For further information please see our discussion under
Issue 3: Economic Comments. Designation of critical habitat on private
lands would only have an effect in cases where Federal funding or a
Federal permit is required for a project. For further information
please see our discussion under Issue 7: Effects of Designation.
Comment 1h: The critical habitat designation is based on
insufficient data.
Our Response: Section 4(b)(2) of the Act states ``The Secretary
shall designate critical habitat, and make revisions thereto, under
subsection (a)(3) on the basis of the best scientific data available .
. .'' Our recommendation is based on a considerable body of information
on the biology and status of the species, as well as the effects of
land-use practices on their continued existence. We agree that much
remains to be learned about these species, and should credible, new
information become available which contradicts the basis for this
designation, we will reevaluate our analysis and, if appropriate,
propose to modify this critical habitat designation. We have considered
the best scientific information available at this time, as required by
the Act. Please see more specific information in our response to
comment 4i.
Comment 1i: We should not designate critical habitat until specific
recovery goals are set.
Our Response: The Act does not allow the indefinite suspension of
the determination of critical habitat. Thus, in general, we cannot
delay the determination of critical habitat until final recovery plans
are produced. However, in the cases of the spikedace and loach minnow,
recovery plans were finalized in 1991. These plans recommend that
critical habitat be designated for these species. The plans also
recommend maintenance of occupied habitat and establishment of new
populations within the species' historical ranges. In addition, we have
continued working with the Desert Fishes Recovery Team since the plans
were finalized, and believe this critical habitat designation is
consistent with the recommendations of those scientists. We have thus
met the requirement that the designation be based on the best
scientific information available.
Comment 1j: In relying on the Desert Fishes Recovery Team to
identify which streams and rivers should be designated as critical
habitat, the Service violated both the ESA and the Federal Advisory
Committee Act (FACA). The ESA exempts Recovery Teams from FACA only for
the purpose of developing and implementing recovery plans, not advising
on critical habitat designation. Alabama-Tombigbee Rivers Coalition v.
Department of Interior, 26 F.3d 1103 (11th Cir. 1994).
Our Response: Section 4(f)(2) of the Endangered Species Act
provides the Fish and Wildlife Service the authority to appoint
recovery teams, which may consist of non-Federal personnel, for the
purpose of assisting in the development and implementation of recovery
plans. That section also exempts recovery teams from the provisions of
FACA.
In the case of the spikedace and loach minnow, the Desert Fishes
Recovery Team (Recovery Team) oversaw development of recovery plans for
the two species, and suggested mechanisms to facilitate plan
implementation in order to achieve the plans' conservation goals. Both
recovery plans recommend designating critical habitat for the two
species as a mechanism for recovery, and the Recovery Team has provided

[[Page 24341]]

suggestions on which areas should be included in such designation. The
Recovery Team was acting appropriately within its role in advising on
recovery plan implementation, and our consideration of Recovery Team
recommendations is consistent with the Act's requirement that critical
habitat determination be based on the best scientific information
available.
This commenter cited Alabama-Tombigbee Rivers Coalition v.
Department of Interior, 26 F.3d 1103 (11th Cir. 1994), as authority for
its assertion that the Recovery Team's FACA exemption was limited.
However, Alabama-Tombigbee did not involve a Recovery Team; it involved
an ``Advisory Team'' assembled to advise the Service on whether listing
of a species was warranted. The ``Advisory Team'' was never referred to
as a Recovery Team nor was there any indication in the opinion that
anyone asserted that the Advisory Team was exempt from FACA under the
Act.
Comment 1k: Contrary to statements in the proposed rule, the
Service was not ordered to designate critical habitat. Rather, the
amended court order of October 6, 1999, stated that the Service was to
publish a final determination with respect to whether and to what
extent critical habitat shall be designated. Thus, the Service should
reconsider whether and to what extent critical habitat should be
designated.
Our Response: The commenter is correct that we cited the original
court order of September 20, 1999, which ordered us to designate
critical habitat, and that a subsequent court order amended the
original order to require us to make a critical habitat determination
rather than requiring actual designation. In complying with the amended
court order, we made the determination that critical habitat
designation is prudent for these two species, and that the areas
proposed are essential for the species' conservation and thus the
appropriate extent of critical habitat. The language in this final rule
clarifies the distinction mentioned by the commenter, although such a
correction has no material effect on the designation.
Comment 1l: We failed to comply with the Farm Land Protection Act
of 1981.
Our Response: The stated purpose of the Farmland Protection Act of
1981, Public Law 97-98, 95 Stat. 1343, 7 USC 4201 et seq., was ``to
minimize the extent to which Federal programs contribute to the
unnecessary and irreversible conversion of farmland to nonagricultural
uses * * * ''; however, the Farmland Protection Act recognized that
there might be instances where other national interests could override
this provision. While Federal statutes may frequently appear to have
conflicting provisions, it is the presumed intent of Congress that, to
the extent possible, all laws be read in a way which allows them to be
applied together. We do not read the Farmland Protection Act and the
Endangered Species Act to be incompatible since this designation will
not result in conversion of farmland to nonagricultural uses and nor
any significant restrictions on agricultural uses.

Issue 2: Biological Concerns

The following comments and responses involve issues related to the
biological basis for the designation.
Comment 2a. The proposed critical habitat designation is
substantially greater than critical habitat designated in 1994 and is
thus excessive.
Our Response: The 1994 designations of critical habitat were based
on proposals published in 1985. Since 1985 there have been substantial
additions to the information on spikedace and loach minnow, their
habitat needs, and the existing condition and potential of most of the
streams in the Gila River basin. In addition, in 1985 the concept of
critical habitat was less developed than it is now, 15 years later.
Evolution of thinking, along with a number of court decisions regarding
the definition and uses of critical habitat, have led to the
recognition that critical habitat may provide the most benefits to
listed species when it is applied to unoccupied areas essential for
recovery.
Of the areas included in this critical habitat designation for
spikedace that were not included in the 1994 designation, 20 percent
are based on new information about the species, its distribution,
abundance, and habitat; 10 percent are to include sparsely occupied
areas omitted from the 1985 proposal; 69 percent are currently
unoccupied recovery areas and connecting corridors; and, 1 percent is
an adjustment due to the increased accuracy of mileage calculations
using Geographic Information System (GIS) capability. Of the areas
included in this critical habitat designation for loach minnow that
were not included in the 1994 designation, 15 percent are based on new
information; 18 percent are sparsely occupied areas omitted from the
1985 proposal; 65 percent are currently unoccupied recovery areas and
connecting corridors; and, 2 percent are an adjustment for GIS figures.
Comment 2b: Neither spikedace nor loach minnow require the
protection of the Act. The discovery of new populations since their
listing should cause both species to be delisted or at least negate the
need for critical habitat designation.
Our Response: Both spikedace and loach minnow are listed as
threatened. Recovery plans were finalized for both species in 1991. In
1994, we reevaluated the threats to the species and determined the
status of the species was even more precarious than we had previously
concluded, even with the discovery of new populations, and that they
warranted listing as endangered. However, higher listing priorities,
e.g., reviewing and listing imperiled species that are afforded no
protection under the Act, have precluded us from reclassifying the
spikedace and loach minnow as endangered. The status of both spikedace
and loach minnow are declining.
Comment 2c: The Service should limit critical habitat to aquatic
and riparian zones.
Our Response: In this final rule we have further clarified the
areas within designated reaches as the stream channels and areas
potentially inundated by high flow events. Where delineated, this is
the 100-year floodplain of the designated waterways. This constitutes
the present and reasonable future aquatic and riparian zones of the
designated rivers and streams. Furthermore, within the delineated
critical habitat boundaries, only lands containing, or which are likely
to develop, those habitat components that are essential for the primary
biological needs of the species are considered critical habitat.
Existing human-constructed features and structures within this area,
such as buildings, roads, railroads, and other features, do not
contain, and do not have the potential to develop, those habitat
components and are not considered critical habitat.
Comment 2e: One commenter questioned the validity of designating
sufficient critical habitat to protect all known remaining genetic
diversity within the two species with the exception of fish on certain
tribal lands.
Our Response: The exclusion of tribal lands is discussed in the
section titled American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act, and in section 6 of
these responses to comments.
The range, numbers, and presumably genetic diversity of the species
have already been much reduced. The remaining populations exhibit
distinct genetic differences (Tibbets 1992, Tibbets 1993, A. Tibbets,
pers. com., March 2000). Noss and Cooperrider (1994) identified reduced
genetic

[[Page 24342]]

diversity as one of the factors which predispose small populations to
extinction. Therefore, to conserve and recover the fishes to the point
where they no longer require the protection of the Act and may be
delisted, it is important to maintain and protect all remaining
genetically diverse populations of these two species.
Comment 2f: The Service did not provide sufficient information on
the criteria used for including or omitting certain reaches in the
critical habitat designation.
Our Response: Please see the ``Critical Habitat Designation''
section of this Final Rule. As described in the section titled ``B.
Primary Constituent Elements'', we identified the habitat features
(primary constituent elements) that provide for the physiological,
behavioral, and ecological requirements essential for the conservation
of each species. Within the historical range of the species, we
identified areas which either provide the primary constituent elements
or will be capable, with restoration, of providing them and which met
the criteria discussed under Critical Habitat Designation in this rule.
Then, based in part on recommendations from species experts including
those on the Desert Fishes Recovery Team, we selected qualifying
reaches within these areas necessary for the conservation of the
fishes.
Comment 2g: The definition of the lateral extent of critical
habitat is undefined. The vague description of lateral extent, along
with the discussion of what activities might adversely affect critical
habitat, could be interpreted as including the entire watershed of the
streams designated as critical habitat. In addition, there are areas
within what appears to be the designation that do not contain the
constituent elements, such as buildings or parking lots, that should
not be included in the critical habitat.
Our Response: We have clarified the lateral extent of the critical
habitat in this rule. Although activities within the watershed may
affect the critical habitat, it is not our intent to designate areas
outside of the floodplain as critical habitat. We have also clarified
that existing human-constructed features that do not meet the
constituent elements are excluded by definition from the critical
habitat designation.

Issue 3: Economic Analysis.

There were numerous comments that addressed economic issues.
Issue 3a: Will critical habitat designation result in more
consultations than would have occurred without the critical habitat
designation?
Our Response: We expect that the designation of critical habitat
will result in more consultations, especially for activities which may
affect unoccupied habitat. If these consultations result in any
increased costs to the applicant, these costs will be attributable to
critical habitat designation. However, consultations are only required
of Federal agencies for those projects with a Federal nexus.
Issue 3b: Are private lands affected by critical habitat
designation if there is no Federal nexus?
Our Response: Under Section 7 of the Endangered Species Act,
private lands are not impacted by the designation of critical habitat
unless there is a Federal nexus.
Issue 3c: If permit requirements from a Federal agency change, is
that a critical habitat impact?
Our Response: There are many reasons why a permit requirement may
change. Each Federal agency has enabling legislation that determines
its mission and, consequently, what activities can occur on the land it
manages, or for what activities the agency can otherwise issue permits.
As more information becomes available about the environment, public
activities on Federal land, or activities for which Federal agencies
otherwise issue permits, may require changes to permit requirements.
These may be due to the Federal agency's own legislation. In those
cases, we have attributed any impact to the legislation requiring the
change and not the Endangered Species Act. If permit requirements
change on unoccupied habitat as a result of a consultation with us,
then the impact would be attributable to critical habitat designation.
Issue 3d: Critical habitat designation will drive away current and
future businesses.
Our Response: There is a common misconception that critical habitat
designation will reduce business activity. Without a Federal nexus,
there is no direct impact of critical habitat designation on private
activities or businesses. In addition, restrictions resulting from the
listing of the species are not attributable to critical habitat
designation. In areas currently occupied by the species, little or no
economic impact is expected to result from critical habitat
designation. In unoccupied areas, some economic impacts may result. Our
economic analysis considers those anticipated impacts, including
effects on businesses. However, we believe that the benefits of
designating critical habitat outweigh the benefits of excluding areas
from designation.
Issue 3e: Impacts on land uses next to the river were not evaluated
in the economic analysis.
Our Response: At the time of releasing the economic analysis of
critical habitat designation, very little information was available to
us on land uses next to the rivers. Subsequently, some Federal and
State agencies have provided us with their management activities and
expected changes relative to critical habitat. This new information is
reflected in the final economic analysis.
Issue 3f: The draft economic analysis only addresses 5 of the
streams when the proposal includes many more streams.
Our Response: The table with the analysis of 5 streams comes from
study of the previous critical habitat designation. It was included in
the draft economic analysis to illustrate the kinds of economic impacts
for which we were seeking additional information. All streams in the
final designation have been evaluated in the final economic analysis.
Issue 3g: The Service must prepare an economic analysis that
considers the total effect of listing and critical habitat.
Our Response: Congress has stated that the listing of a species be
based solely on biological considerations. As a result, an economic
analysis of the listing of a species is not undertaken as part of the
listing process. The current rule being considered is the designation
of critical habitat and thus only economic and other relevant impacts
of specifying any particular area as critical habitat are considered. A
recent court decision on designation of critical habitat for the
southwestern willow flycatcher (Empidonax extimus trailli) New Mexico
Cattle Growers et al. v. USFWS et al., CIV 98-0275 LH/DJs--ACE (D.
Ariz. 1999) (on appeal) affirmed our approach of considering only the
economic and other relevant impacts of critical habitat designation
above and beyond those associated with listing the species.
Issue 3h: The Regulatory Flexibility Act and the Small Business
Regulatory Enforcement Fairness Act analyses were inadequate.
Our Response: There were substantial data gaps that precluded a
full analysis of the impact on small entities. A more complete analysis
is in the administrative record for this designation, and is available
for public review (see ADDRESSES).
Issue 3i: There needs to be a takings implication assessment
completed.
Our Response: A taking implications assessment is in the
administrative record for this designation, and is

[[Page 24343]]

available for public review (see ADDRESSES).
Issue 3j: The economic analysis lacks dollar amounts for the impact
on Agriculture, Recreation, Roads, Water Supply, and Private
Development on page 26.
Our Response: The table on page 26 of the draft economic analysis
was reproduced from an earlier study and the blank entries were in the
original document. We provide a more complete accounting of the impacts
in the final economic analysis.
Issue 3k: No economic analysis was done for the State of New
Mexico.
Our Response: The revised economic analysis includes information
about Grant County, the only county in the State of New Mexico that
contains critical habitat unoccupied by either the spikedace or the
loach minnow.
Issue 3l: An incorrect baseline was used for the economic analysis.
Our Response: The baseline we used considered the Federal actions
expected to occur in the absence of critical habitat. Thus, all Section
7 consultations with Federal agencies and other restrictions resulting
from the listing of the species are considered part of the baseline and
are not attributable to critical habitat designation. The only economic
impacts attributable to critical habitat designation would be those
resulting from Federal activities in unoccupied designated critical
habitat and only those activities likely to destroy or adversely modify
critical habitat.
Issue 3m: The use of IMPLAN is not appropriate below the State
level.
Our Response: IMPLAN was not used in the draft economic analysis.
However, the data sets that come with IMPLAN describe the economic
activity at the county level, which provide a useful summary of the
industries in the affected counties.

Issue 4: Site-Specific Issues.

The following comments and responses involve issues related to the
inclusion or exclusion of specific streams reaches or our methods for
selecting appropriate areas for designation as critical habitat.
Comment 4a: Several commenters pointed out errors in mileages,
locations, or descriptions in the proposed rule.
Our Response: Corrections have been made in the final rule to
reflect these comments, where appropriate.
Comment 4b: Commenters believed that the areas listed in table 3
(below) were unsuitable for designation or they recommended some areas
for exclusion from designation.

Table 3.--Exclusion of Removal Recommendations in Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Conflict
Not with Nonnative Not Special mgmt. Detrimental
Stream reach Not suitable occupied by economic, Insufficient species essential or to species
for species species social, or information conflict no benefit consideration mgmt.
other uses to species not needed
--------------------------------------------------------------------------------------------------------------------------------------------------------
Complex 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Verde River above Valley............... X X X X
Verde River in Valley.................. X X X X X
Verde River below Valley............... X X X X
Granite Creek.......................... X X
Oak Creek.............................. X X X X X X
Beaver Creek........................... X X X X X
West Clear Creek....................... X X X X X X
Fossil Creek........................... X X X
--------------------------------------------------------------------------------------------------------------------------------------------------------
Complex 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
West Fork Black River.................. X X X X
East Fork Black River.................. X X X
Coyote Creek........................... X X X X X
Boneyard Creek......................... X X X X X
--------------------------------------------------------------------------------------------------------------------------------------------------------
Complex 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tonto Creek............................ X X X X X X
Rye Creek.............................. X X X X X X X X
Greenback Creek........................ X X X X X X
--------------------------------------------------------------------------------------------------------------------------------------------------------
Complex 4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Middle Gila River...................... X X X X X
Lower San Pedro River.................. X X X X
Aravaipa Creek......................... X X
Turkey Creek........................... X X X
Deer Creek............................. X X X
--------------------------------------------------------------------------------------------------------------------------------------------------------
Complex 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Middle San Pedro River................. X X X X X X X X
Redfield Canyon........................ X X X
Hot Springs & Bass Canyons............. X X X X
Upper San Pedro River.................. X X X X X X X X
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 24344]]

Complex 6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gila River at Box...................... X X X X
Bonita Creek........................... X X X X X X X X
Eagle Creek............................ X X X X X X X X
Blue River............................. X X X X X
Little Blue Creek...................... X X
Campbell Blue Creek.................... X X
Dry Blue, Frieborn, & Pace Creeks...... X X
San Francisco River in AZ.............. X X X X X X
San Francisco River in NM.............. X X
Tularosa River......................... X X
Negrito and Whitewater Creeks.......... X
--------------------------------------------------------------------------------------------------------------------------------------------------------
Complex 7
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Gila River below Mogollon Creek.. X X \1\ X X X X X
Upper Gila River above Mogollon Creek.. X X \1\ X X X X
West Fork Gila River................... X X X X X
East Fork Gila River................... X X X X X
Middle Fork Gila River................. X X X X X X
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ In part.

Our Response: We carefully considered the information provided in
the comments regarding requested exclusions and removals. Two streams
were removed from the spikedace designation, as described previously.
Areas suggested for exclusion that were retained, and our rationales,
are provided in responses 4b1 through 4b19.
Comment 4b1: There are no records of occurrence of spikedace and
loach minnow in the Little Blue River, Redfield, Bass, and Hot Springs
Canyons; Granite, Boneyard, Coyote, Greenback, Rye, Oak, and Bonita
Creeks: the East, West, and Main Forks of the Black River; and the Gila
Box. Therefore, these areas are not part of the historical range.
Our Response: Because early collections of fishes from the Gila
Basin were rare and occurred mostly along primary exploration and
settlement travel routes, the complete distribution of most of our
native fishes cannot be documented with specific museum specimens and
records. By the time sampling of native fish became common in the
1960's and 1970's many of the streams had been modified or subjected to
temporary adverse circumstances (such as total diversion of water or
mine spills resulting in water-quality problems) to the point that many
of the native fishes had already been extirpated. Thus, we can never
know precisely what we have lost. Therefore, we must use the best
available information to reconstruct the most probable composition of
the historical ranges of spikedace and loach minnow. If a stream is (1)
within the Gila basin; and (2) contains suitable or potential habitat
for the species, or historical records indicate it once sustained such
habitat, and there are records of those species from nearby areas, and
there is no other reason to believe that the two species could not have
occurred there (i.e. an impassable natural barrier); then those areas
are considered to be part of the historical range of the species.
Comment 4b2: Deer, Turkey, Wet Beaver/Beaver, and West Clear Creeks
have no records of spikedace and/or loach minnow.
Our Response: Deer and Turkey Creeks, tributaries of Aravaipa
Creek, have recent records of loach minnow (USBLM 1995, University of
Arizona museum specimens No. ASU 13517). The Beaver Creek complex has
historical records of both spikedace and loach minnow from 1938
(Minckley 1993). West Clear Creek has historical records of spikedace
from 1937 (Minckley 1993).
Comment 4b3: Spikedace are extirpated from the middle Gila River
and any spikedace found there were displaced by flooding from Aravaipa
Creek.
Our Response: Spikedace were recorded from the middle Gila River
historically (Minckley 1973) and as recently as 1991 (Jakle 1992) and
are not considered extirpated. Some commenters believe the 1991 record
of one spikedace in the middle Gila River near Florence represents a
fish displaced during some unspecified flood event from Aravaipa Creek,
50 miles upstream, and does not represent a population in the Gila
River. However, in the year preceding the October sampling, there was
only one marginally significant flood, which occurred in March (USGS
discharge records). It is unlikely that such a relatively minor flood
would displace spikedace 50 miles downstream and that the displaced
fish would be surviving 6 months later in what the commenters assume is
habitat unsuitable to support a resident population of spikedace. In
addition, it is even more unlikely that, at the precise time of the
only sampling conducted that year, the displaced fish would be present
at one of the 7 sites sampled, totaling less than 1 mile of the 50 mile
reach. Given the sparse sampling in the middle Gila, it is far more
likely that the 1991 spikedace represents a small population of

[[Page 24345]]

spikedace either permanently resident in that area or which occupy the
area in a periodically fluctuating pattern dependent upon conditions.
Documentation of such small populations is very difficult and often
results in false declarations of extirpation (Mayden and Kuhajda 1996).
Comment 4b4: Spikedace are extirpated from the Middle Fork Gila
River.
Our Response: Spikedace have not been recorded at a long-term study
site on the middle Fork Gila River since 1995 (Propst and Stefferud,
unpub. data). No surveys of the rest of the stream have been conducted
recently and the present status of the spikedace in the Middle Fork is
uncertain. Failure to record spikedace for four years at a fixed
sampling station may indicate a low population level but does not
support a declaration of extirpation from the entire stream.
Comment 4b5: Spikedace are extirpated from the Verde River.
Our Response: Spikedace continue to be recorded from the Verde
River, although since 1996 they have been very rare, with none found in
1997 and 1998 (Rinne et al. 1999a) and only two found in 1999. This
dramatic fluctuation is similar to earlier fluctuations, although
better documented.
Comment 4b6: Loach minnow are extirpated from Eagle Creek; loach
minnow found there since 1995 were stocked from elsewhere by
organizations known to have programs for planting endangered species,
and the 1994 records of loach minnow in Eagle Creek are not valid
because they have not yet been published in a peer-reviewed journal.
Our Response: Loach minnow were first recorded from Eagle Creek in
1950 (Univ. of Michigan museum specimens No. UMMZ 162744). Despite
frequent sampling (Marsh et al.1990), they were not again recorded
until 1994 (Knowles 1994, Knowles 1995). This illustrates the need for
caution in concluding that a population has been extirpated. Fish,
particularly small species with relatively cryptic habits, are often
very difficult to locate when population levels are very low.
Loach minnow had been presumed, incorrectly, to be extirpated from
Eagle Creek. Loach minnow were not stocked into Eagle Creek by any
agency or governmental entity. We are not aware of, nor have we
permitted, any nongovernmental groups to plant listed fish in Arizona.
Genetic testing has shown the loach minnow in Eagle Creek to be a
probable unique lineage differing from all other loach minnow. We have
no evidence that these fish could have been planted from any other
population (A. Tibbets, pers. comm. March, 2000). Sampling records from
1994 are considered valid records. Much of the monitoring of
populations of endangered and threatened species is conducted by
agencies and is placed into agency reports, such as the one in which
these records are found. The 1995 Eagle Creek loach minnow records have
also been vouchered with specimens in the Arizona State University
Collection of Fishes (No. ASU165).
Comment 4b7: Both spikedace and loach minnow have been extirpated
from the upper Gila River below the Middle Box (below Redrock, New
Mexico) and any spikedace or loach minnow found in that area were
displaced by flooding from the Cliff-Gila Valley.
Our Response: Spikedace and loach minnow continue to be found in
the Gila River below the Middle Box, and depending upon conditions may
be found from the mouth of the Box downstream to about the Arizona/New
Mexico boundary. They were recorded near the Middle Box mouth and in
the Lower Box at Fisherman's Point in 1998 (Propst and Stefferud unpub.
data, Propst 1998) and at the Virden diversion in 1999 (Rinne et al.
1999b).
Comment 4b8: The San Francisco River is not occupied by spikedace
and is occupied by loach minnow only above the confluence with the Blue
River.
Our Response: The San Francisco River is currently occupied by
loach minnow downstream from the mouth of the Blue River (Anderson and
Turner 1977, J.M. Montgomery Consulting Engineers 1985, Bagley et al.
1995). The downstream extent of this population is not known precisely
and likely fluctuates over time depending upon water and sediment
levels, flooding, and other factors. However, it is known to extend at
least 10-15 miles downstream from the confluence with the Blue River.
Historical records of spikedace downstream (Minckley 1973) and upstream
(Minckley 1973, Anderson 1978) from the lower San Francisco River, and
the presence of apparently suitable habitat in that area, support the
presumption of historical presence of spikedace. Past pollution events
from the mines in the Clifton area, along with other human-caused
alterations, caused the lower San Francsico River to be barren of fish
at one time (Chamberlain 1904), have resulted in fish kills since that
time (Rathbun 1969 as cited in Minckley and Sommerfeld 1979), and
likely were a significant factor in the loss of spikedace and loach
minnow from the lower San Francisco River and adjacent Gila River. The
amelioration of these pollution events through modern management and
regulation has eliminated them as a limiting factor to restoration of
spikedace and other native species in the lower San Francisco River.
Comment 4b9: The San Pedro River is not now and has never been
occupied by either spikedace or loach minnow.
Our Response: The San Pedro River is the type locality for
spikedace and loach minnow. They were first collected there in 1840 and
again in 1846 (Miller 1961), and were described from specimens taken
there in 1851 (Girard 1856). They were taken periodically over the
years; loach minnow were last recorded from the San Pedro in 1961
(University of Arizona museum No. UAZ95-190), and spikedace were last
recorded there in 1966 (Arizona State University museum No. ASU 2282).
See also responses to comments 4b16(c) and 4b16(j).
Comment 4b10: It was suggested that areas which are occupied by
spikedace or loach minnow only under certain conditions or which are
colonized during periods when streamflows are higher than average
should not be considered essential to the species and should be omitted
from the critical habitat.
Our Response: Spikedace and loach minnow, like many southwestern
fishes, have a life history pattern of expansion and retraction of
occupied areas in response to flow and other habitat conditions. To
ensure the survival and recovery of species with this type of pattern
it is essential to conserve not only the core habitat into which the
species shrinks in times of poor conditions, but also the habitat into
which it expands during times of good conditions (Moyle and Sato 1991,
Meffe and Carroll 1994). The absence of spikedace and/or loach minnow
from an area during certain periods or under certain conditions does
not mean it is in unoccupied habitat.
Comment 4b11: Several commenters suggested that, since several of
the proposed streams have portions that dry either seasonally, during
drought conditions, or for other periodic reasons, therefore those
streams do not meet the proposed constituent elements description of
permanent flowing water and so do not qualify as critical habitat for
spikedace and loach minnow.
Our Response: Spikedace and loach minnow, along with most of the
native fishes of the southwest, evolved in stream systems that had
portions which periodically lost flow. The species are adapted to this
phenomenon and persist in flowing areas that remain and

[[Page 24346]]

recolonize the dewatered areas once flow resumes. Over the past 150
years, the extent of areas in the Gila basin that periodically lose
flow has increased due to human alterations of the watersheds and
stream channels and diversion of the streamflows.
Hydrology-based definitions of streams as ``perennial,''
``intermittent'' (both spatially and temporally), or ``ephemeral'' are
confusing, often misused, and may not relate to fish needs. Although a
stream may be characterized by some as ``intermittent,'' it may still
have substantial areas where flow is permanent, although those areas
may not always be in precisely the same location. If sufficient areas
of flow persist, and if all other habitat needs are met, then the
stream is suitable for the two fish species whether or not there is
flow throughout all areas at all times. Aravaipa Creek, one of the best
remaining habitats for these two species, is an ``intermittent''
stream, which seldom flows in the upper half of its course, and often
does not flow for several miles above its confluence with the San Pedro
River (Minckley 1981). However, approximately 20-25 mi of stream
presently flow at all times and support healthy populations of
spikedace and loach minnow (Bettaso et al. 1995).
The critical habitat designation also specifically includes many
areas that lose flow periodically, and some which may be dry during
most times. Maintenance of those areas in a natural, or only slightly
modified, state is essential to spikedace and loach minnow. During high
flows they serve as connecting corridors for movement between the areas
of permanent flow and because they are important in maintenance of
natural channel geomorphology. Criteria for what might constitute
adverse modification of critical habitat may be different for these
stream reaches than for occupied or perennial flow areas; however,
their maintenance is essential to the long-term survival and recovery
of spikedace and loach minnow.
There are many areas in the critical habitat where flows are
artificially altered by human diversion and uses, up to and including
complete loss of flow. In some of these areas, changes in management
may potentially increase duration of flows and the length of stream
channel with permanent water, thus making them valuable for recovery
and survival of spikedace and loach minnow. A good example of this is
Fossil Creek, where the proposed relicensing of the Childs-Irving
hydropower plant would involve restoration of some level of flow to the
lower stream channel.
Comment 4b12: All streams proposed for designation of critical
habitat contain some nonnative aquatic species, raising comments from
many parties that none of the streams proposed meet the proposed
constituent elements description of few or no predatory or competitive
nonnative species present, and therefore do not qualify for designation
as critical habitat. Several commenters went further to state that no
stream that contains nonnative fish could be considered essential to
the conservation of spikedace and/or loach minnow.
Our Response: The constituent elements have been rewritten to
clarify the role of nonnative aquatic species in the suitability of
habitat for designation as critical for spikedace and loach minnow. The
level of nonnative species that may be present in habitat considered to
be suitable varies depending upon the circumstances. Some nonnative
species, such as rainbow trout, appear to have little effect on
spikedace or loach minnow (see response to comment 7b, below). Others,
such as flathead catfish (Pylodictis olivaris) have serious adverse
effects. In some streams, the habitat complexity and distribution may
allow spikedace and loach minnow to coexist with nonnative aquatic
species when, under other circumstances, that nonnative may eliminate
the two natives. Some unoccupied streams designated for critical
habitat may have nonnative species present that will be controlled or
removed before reestablishment of the two native fishes. Although the
fewer nonnative aquatic species that are present, the better the
situation for spikedace and loach minnow, the presence of nonnative
aquatic species does not eliminate an area from consideration as
critical habitat.
Comment 4b13: The upper end of Oak Creek and the Gila River in the
Duncan-Virden and Safford valleys were not included in the proposed
critical habitat, in part because of urban development. Therefore, the
San Francisco River in and below Clifton, the Gila Box, and portions of
the San Pedro and Verde Rivers do not qualify as critical habitat
because of urban and other human uses of those areas.
Our Response: Urban and suburban development alone do not
necessarily cause a stream to become unsuitable for spikedace or loach
minnow. For the upper end of Oak Creek, the substantial urban
development is not the only a factor considered in the omission of that
area from the proposed designation. Habitat in the portions of upper
Oak Creek omitted from the proposed designation rapidly becomes
increasingly unsuitable due to stream gradient, substrate, and other
inherent ecological factors. Because the adjacent designated habitat is
unoccupied, and since upper Oak Creek has no value as a movement
corridor to other suitable or occupied habitat, there are no overriding
reasons for extending the critical habitat designation to include the
small additional area that is in the urban zone.
The Duncan-Virden Valley is substantially altered by agricultural,
and, to a small extent, urban development, but still supports spikedace
and loach minnow in its upper portion (Rinne et al. 1996b). Information
received during the comment period indicates that more of this reach of
the Gila River may have been appropriate for consideration as critical
habitat, and its inclusion will be re-evaluated during future revision
of the critical habitat for spikedace and loach minnow.
The Safford Valley was historically suitable habitat for spikedace
and loach minnow, but is now highly altered, primarily by agricultural
practices, and provides only partially suitable habitat with potential
for improvement with management. Since it is adjacent to unoccupied
habitat and provides no movement corridor between more suitable areas,
the added value of including the valley portion of the stream was
considered low.
The lower San Francisco River, on the other hand, may be occupied
and is adjacent to documented occupied habitat. Although altered, it
still contains substantial areas of suitable habitat, and it provides a
connection between the occupied area and the unoccupied recovery area
in the Gila Box. The small amount of urbanization and the alterations
due to flood control and mining are not significant enough to negate
the value of the stretch for spikedace and loach minnow survival and
recovery. The Gila Box is in a National Riparian Conservation Area and
does not have urban or suburban development. There are no heavily
urbanized areas along the San Pedro River within the area proposed for
critical habitat. The Cottonwood-to-Camp Verde stretch of the Verde
Valley is heavily urbanized but still contains substantial suitable,
occupied habitat which, if appropriate diversion management takes
place, could be significantly improved. The area is also a connecting
corridor between occupied upstream areas and important unoccupied
downstream recovery areas.

[[Page 24347]]

Comment 4b14: The habitat in Oak Creek is not suitable for
spikedace or loach minnow due to heavy recreation use.
Our Response: We agree that heavy recreation use in Oak Creek may
be adversely impacting the stream and its fish habitat. However, we
believe that suitable habitat still exists for spikedace and loach
minnow and, with proper management, recreation and recovery of these
two fishes can be compatible.
Comment 4b15: Some comments contend that the San Francisco River
below its confluence with the Blue River and the Gila River in the Gila
Box are too large to be suitable for either spikedace or loach minnow
because they are larger than the Verde River below Fossil Creek, which
was not included in the designation. In addition, concern was expressed
that the Gila Box contains too much sediment to support spikedace and
loach minnow.
Our Response: The San Francisco River below its confluence with the
Blue River and the Gila River below its confluence with the San
Francisco are well within the historical range of both species and
contain suitable habitat. Median flows (discharge) at the gauging
station near Clifton on the San Francisco River are similar to those
for the Verde River near Clarkdale, within occupied spikedace habitat
(Pope et al. 1998). Median flows at the gauging station at the head of
the Safford Valley are about 25 percent less than those in the Verde
River below Fossil Creek (Pope et al. 1998). In addition, the Verde
River below Fossil Creek is well within the historical range of
spikedace and loach minnow and, as some commenters have pointed out,
has sufficient suitable habitat to meet critical habitat criteria.
Comment 4b16: Many commenters contend the San Pedro River does not
have suitable habitat for spikedace and loach minnow based on a number
of factors. These include--(a) The river was changed dramatically by a
late 1800's earthquake and no longer has permanent flowing water; (b)
toxic mine waste spills from Mexico occur periodically and are not
within our control; (c) the extirpation of spikedace and loach minnow
from the San Pedro 30 years ago is conclusive evidence that the habitat
is not suitable; (d) the gradient in the river is too high or too low;
(e) the substrate is not the appropriate size; (f) the San Pedro River
does not have a snowmelt hydrograph; (g) recent reestablishment of
beaver precludes spikedace and loach minnow occupation; (h) there is
too much water depletion by humans; (i) riparian vegetation is
destroying the aquatic habitat and increasing nonnative fish; and (j)
the statement that this is the ``type'' locality is inappropriate
because it is not the right type of habitat.
Our Response: (a) The fish of the upper San Pedro River are sampled
twice yearly, once by the BLM and once by the Bureau of Reclamation
(Stefferud and Stefferud 1989, 1990, 1998, Girmendonk et al. 1997,
Clarkson 1998, Marsh 1999). The Middle San Pedro is sampled annually by
the Bureau of Reclamation. Other, irregular samplings occur. This work
has confirmed that there is permanent water in the river, that flow
supports three native and several nonnative fish species, and that
there is suitable or potentially suitable habitat for spikedace and
loach minnow in both the upper and middle San Pedro River. Whatever the
effects of the 1887 earthquake on the habitat and flow of the San Pedro
River, spikedace and loach minnow were present prior to the earthquake
and for almost 100 years after the earthquake. Therefore, it is
unlikely that the earthquake was a definitive factor in the presence or
absence of habitat for spikedace and loach minnow.
(b) Toxic flow events in the past from mines near Cananea, Sonora,
Mexico, have had highly adverse effects to the fauna of the San Pedro
River (Eberhardt 1981). In fact, it is likely that such events in the
late 1960's and early 1970's were responsible for extirpating spikedace
and loach minnow from the San Pedro River. Other human activities in
the upper San Pedro River in Mexico can potentially adversely affect
the use of the U.S. portion by spikedace and loach minnow. However, we
intend to work with the governments of Mexico and Sonora to minimize
adverse effects.
(c) The overall gradient of a river doesn't change over 100 years,
barring serious geologic events. Although there was a substantial
earthquake in southeastern Arizona in 1887, there is no evidence that
it altered the overall gradient of the river (DuBois and Smith 1980,
Hereford 1993). The San Pedro River is the type locality of both
spikedace and loach minnow and supported both species when first
sampled in 1840 and for 120 years after that, demonstrating its
suitability for the two species. Please also see our response to
comment 4b9.
(d) Although fine substrate is predominant in most reaches of the
San Pedro River, the upper river in the Riparian National Conservation
area has significant areas of riffle habitat with gravel and cobble
substrates that are capable of supporting spikedace and loach minnow
(Stefferud and Stefferud 1989, Velasco 1993). The middle San Pedro
River, at present, has little substrate of suitable size for spikedace
and loach minnow. However, substrate size is a function of many other
river variables, such as velocity, flow volume, bank structure, and
sediment source. Personal observations by our biologists, along with
discussion with biologists from The Nature Conservancy, AGFD, BLM, and
the Desert Fishes Recovery Team support a conclusion that this portion
of the San Pedro River has a strong potential for enhancement to the
point where it may once again support healthy populations of spikedace
and loach minnow. One commenter compared average substrate particle
sizes in the San Pedro River with those in Aravaipa Creek and concluded
that since the latter were larger, the San Pedro River does not have
suitable substrate for spikedace and loach minnow. However, fish use
microhabitats within the overall stream and those microhabitats may
have substrates, or other constituents, that differ from the
``average.'' For example, a mile of stream may be primarily a shallow,
sandy run, but it may also contain deep pools at rock bends and root
wad overhangs. A fish which requires pools could not survive in the
average shallow depth and sandy substrate, but may still be present
because it uses the ``nonaverage'' habitat of pools.
(f) The role of snowmelt in the hydrograph of the San Pedro River
has not changed over the past 160 years, and spikedace and loach minnow
occupied the San Pedro River during at least 120 of those years. This
information supports a conclusion that a snowmelt hydrograph is not a
determining factor in suitability of a stream system for spikedace and
loach minnow.
(g) The BLM and the AGFD have assured us that the reestablishment
of beaver can be controlled and managed to prevent severe loss of
potential recovery for the two fishes. Beaver were native to the San
Pedro River and historically coexisted with spikedace and loach minnow,
both here and elsewhere. Given careful management, we believe that
beaver, spikedace, and loach minnow reestablishments can all succeed in
the San Pedro River.
(h) We are working closely with a number of Federal, State, and
local entities to ensure that flows in the San Pedro River continue.
(i) Although riparian vegetation does remove a certain portion of
the surface and subsurface flow of a river through evapotranspiration,
(the movement through, use of, and evaporation from the surface of
water by plants) it also provides many irreplaceable benefits to the
aquatic ecosystem (Auble et al.

[[Page 24348]]

1994, Bagley et al. 1998, Osborne and Kovacic 1997, USBLM 1990).
Without healthy riparian vegetation a stream is subject to, among other
things, increased erosion, increased water temperatures, and a decrease
in instream community diversity formed by streambanks and large woody
debris. Under some circumstances increased riparian vegetation may
increase nonnative fish species by increasing the types of habitats
favored by those species. However, a healthy riparian system will
provide a higher diversity of aquatic community types, thus allowing a
greater degree of coexistence between native and nonnative fishes.
(j) The San Pedro River is the ``type locality'' for spikedace and
loach minnow. The type locality of a species is simply the area from
which the ``type specimens'' were taken. Type specimens are those
preserved specimens that were used to first describe the species.
Please also see our response to comment 4b9.
Comment 4b17: There were many comments which contended that Eagle
Creek does not have suitable habitat for spikedace and loach minnow
based on a number of factors. These included--(a) it is an artificial
system with flows coming from a transbasin diversion and groundwater
pumping; (b) there are several distinct topographic stretches and
spikedace and loach minnow could not occupy all of those different
topographic areas; (c) the historical presence of beaver in Eagle Creek
make the system unsuitable to have ever supported spikedace and loach
minnow and the continued presence of beaver make the habitat presently
unsuitable for the two fish species; and (d) neither spikedace nor
loach minnow were ever present above Sheep Wash due to unsuitable
habitat historically and any suitable habitat there now will become
unsuitable as Eagle Creek in that area reverts to a more natural
system.
Our Response: (a) Spikedace and loach minnow are both known to have
historically occurred in Eagle Creek. Although the stream has been
modified by human augmentation of the flows, that modification has not
been sufficient to eliminate either species. The continued survival of
both species in the artificially modified stream supports the position
that the habitat is suitable. Modification of the stream does not
automatically disqualify an area from designation as critical habitat
and consideration as essential to the conservation of the species. The
artificial augmentation of Eagle Creek flows may help mitigate other
habitat alterations that have decreased natural flows in the system,
thus resulting in a system that is more ``natural'' than it would be
without the artificial augmentation.
(b) It is true that Eagle Creek has distinct topographic areas,
including canyon reaches and valley reaches. However, all of the
topographic areas within the proposed section of Eagle Creek contain
riffle habitats suitable for spikedace and loach minnow, although in
varying proportions. As stated in this rule, it is important to protect
areas of large enough size and connectivity to allow for fluctuations
in habitat over time and movement of fish between areas.
(c) Spikedace and loach minnow historically coexisted with beaver
in most, if not all, of their historical range. There is no evidence to
indicate that the presence of beaver preclude spikedace and loach
minnow presence.
(d) In 1950, Miller recorded loach minnow from near Sheep Wash
(Marsh et al. 1990). In 1994 and again in 1995, Arizona State
University personnel recorded loach minnow near Honeymoon Campground,
about 15 miles upstream from Sheep Wash (Knowles 1994, 1995). Spikedace
were first collected in 1985 (Bestgen 1985) in lower Eagle Creek. They
were collected near Sheep Wash through 1987, and have not been
collected since that time. There is presently suitable habitat for both
species throughout the upper area of Eagle Creek above Sheep Wash.
Although upper Eagle Creek has been substantially modified by human
activities, the topography, geology, and stream geomorphology indicate
that it is likely the stream in that area historically supported
suitable habitat for spikedace and loach minnow and that ``reversion''
to a more natural state will not prevent the presence of those two
species.
Comment 4b18: We received comments that no suitable habitat exists
on Fossil Creek for spikedace and loach minnow. This was based on a
1998 USFS NEPA compliance review on an adjacent livestock grazing
allotment. Commenters also felt the hydropower diversion of Fossil
Creek is favorable to spikedace and loach minnow because it prevents
upstream migration of nonnative fish, and believe it is premature to
assume flows in Fossil Creek will be enhanced as a result of hydropower
relicensing.
Our Response: The information on which the USFS finding was based
was not provided or available, therefore we cannot assess why it
differs from information in our files and that we have received from
other sources, including USFS documents regarding the Childs/Irving
hydropower relicensing.
The diversion of almost all flow from lower Fossil Creek for
hydropower does inhibit upstream migration of nonnative fish. However,
we believe there are more effective ways to prevent nonnative incursion
than flow diversion. The application of the hydropower licensee to the
Federal Energy Regulatory Commission includes a proposal to return some
flow to lower Fossil Creek. In addition, negotiations are ongoing that
may result in even larger flows in lower Fossil Creek. Either way, the
stream is expected to recover suitability for spikedace and loach
minnow.
Comment 4b19: One commenter felt that Rye Creek did not provide
suitable habitat for spikedace and loach minnow and that the statement
in the rule regarding the presence of a native fish community was in
error.
Our Response: Rye Creek is poorly sampled, but Abarca and Weedman
(1993) reported a fish community dominated by two native fishes--
longfin dace (Agosia chrysogaster) and desert sucker (Pantosteus
clarki), and Bancroft et al. (1980) also reported Sonora sucker
(Catostomus insignis), speckled dace (Rhinichthys osculus), and Gila
chub (Gila intermedia). In 1995, a sampling recorded all five of those
native species (Weedman et al. 1996), which is a large number of native
species remaining compared to most streams in the Gila Basin. Of the
seventeen native fishes of the Gila River basin, only one stream (Eagle
Creek) has eight species remaining, three others have seven (upper Gila
River in New Mexico, upper Verde River, and Aravaipa Creek), and the
San Francisco and Blue Rivers each have six species remaining. Two
nonnative species were also reported in Rye Creek in 1980, three in
1993, and three again in 1995, which composed less than 10 percent of
the fish present. The presence of this native fish community, plus the
presence of what is reported by biologists with expertise in spikedace
and loach minnow to be suitable habitat (J. Stefferud, USFS, pers. com.
February 2000) is sufficient evidence to include Rye Creek in the
designation. Suitable areas to recover spikedace and loach minnow in
the Salt River Basin are very limited and we believe it is important
that the Tonto Creek complex include more than just the mainstem.
Information on other suitable tributaries was provided by USFS comments
on the proposed rule. These tributaries may also provide recovery
habitat that may be considered for possible designation in a future
revision of the critical habitat for spikedace and loach minnow.

[[Page 24349]]

Comment 4c: Several commenters recommended additional areas be
included in the designation of critical habitat. Those areas are listed
in Table 4.
Our Response: Because of the requirement for all proposed
designation to undergo public review and comments, areas normally are
not added to the designation without an additional proposal. We will
consider all information provided on additional areas in future
revision of the critical habitat for spikedace and loach minnow. Based
on the best available science at this time, we determine that the areas
designated by this rule are sufficient to conserve the species. Our
responses on individual areas suggested for addition are given in Table
4.

Table 4.--Requests for Additions to Critical Habitat and Response
------------------------------------------------------------------------
Fish and
Reason for Wildlife
Complex number Stream reach recommended Service
addition response
------------------------------------------------------------------------
1.................... Sycamore Creek Why other Verde Except at
(upper Verde tributaries mouth,
basin). but not gradient too
Sycamore high and
Creek? habitat not
suitable.
1.................... Verde River Believe is Will seek
from Fossil Ck suitable for additional
to Sheep recovery of information.
Bridge. spikedace and
loach minnow.
1.................... Lower East Believe is Believe
Verde River. suitable for unsuitable--wi
recovery of ll seek
spikedace and additional
loach minnow. information.
1.................... Red Creek...... Believe it Will seek
suitable for additional
recovery of information.
spikedace and
loach minnow.
1.................... Lower Tangle Believe is Will seek
and Sycamore suitable for additional
Creeks (middle recovery of information.
Verde basin). spikedace and
loach minnow.
3.................... Slate and Gun May meet No information
Creek. criteria for on these
critical creeks--will
habitat. seek
information.
4.................... Mescal Creek... In spikedace Could
recovery plan contribute to
as possible diversity and
reintroduction complexity in
site. complex.
5.................... Babocomari May meet Lower and upper
River. criteria for ends not
critical suitable
habitat. habitat, no
information on
middle
portion--will
seek further
information.
6.................... Bonita Creek Has suitable Information
above Martinez habitat. from San
Wash. Carlos Dept.
of Nat.
Resources is
that no
suitable
habitat
exists.
6.................... Eagle Creek Omission is Would
below Phelps inconsistent contribute to
Dodge dam. with emphasis connectivity,
on continuity but has little
in critical habitat due to
habitat. water
diversion.
7.................... Mangas Creek... Believed to Channel is
have spikedace highly eroded
population. and no
significant
surface flow
during most
times--will
seek
information.
None................. Salome Creek... May meet Will seek
criteria for additional
critical information.
habitat.
None................. Cherry Creek... May meet Believe too
criteria for little low to
critical moderate
habitat. gradient areas
are present--
will seek
additional
information.
None................. White River.... Occupied and See section on
considered Tribal issues.
biologically
important.
None................. Gila River ``as Has similar Assuming
it flows potential to commenter
through areas proposed. meant Gila
Phoenix''. River south of
Phoenix, river
is diverted
and dry most
of time,
channel highly
degraded, not
suitable for
these fish.
------------------------------------------------------------------------

Comment 4d: Several commenters identified areas they believe have
no need for critical habitat designation.
Comment 4d1: Designation of critical habitat on Federal and State
lands is not needed, according to a number of commenters, because it is
already protected by a number of laws, regulations, policies, and
plans. Designation of critical habitat on private lands is also not
needed because they are privately owned and critical habitat
designation does not provide any protection.
Our Response: Although there is management ongoing on most Federal
lands, and to a limited extent on State and private lands, there
continue to be many threats to these two fishes. Critical habitat may
enhance management on Federal lands, and may help prevent adverse
impacts on private lands due to Federal actions.
Comment 4f2: Some comments suggested that critical habitat
designation is not necessary because the threats to the species are
from native and nonnative fish rather than habitat alteration or loss.
In support of this a report by Propst et al. (1986) was cited as
reporting that a nonnative fish, red shiner (Cyprinella lutrensis), and
two native fish, longfin dace, and speckled dace, are competitive
species known or observed to displace spikedace and loach minnow. One
comment also contends that three other native fish, Gila chub, Sonora
sucker, and desert sucker are predatory, with the implication they
consume spikedace and loach minnow to the detriment of those species.
Our Response: Both habitat alteration and loss and nonnative
competition, predation, and other effects have contributed
substantially to the threatened status of spikedace and loach minnow.
Furthermore, these factors are inextricably intertwined. Habitat
alteration has been a significant contributor to nonnative fish
invasion, spread, and adverse effect. In turn, nonnative species have
been a significant contribution to the inability of native fish to
thrive in altered habitats. There is no information to indicate that
either longfin dace or speckled dace adversely affect spikedace or
loach minnow and the 1986 report does not make those claims (D. Propst,
New Mexico Dept. of Game and Fish; pers. com. March, 2000). All four
species are native to the Gila River basin and longfin dace and
speckled

[[Page 24350]]

dace were part of the community of species in which spikedace and loach
minnow evolved. Differences in their habitat requirements enable the
four species to coexist in the same stretch of stream. Their relative
abundance may change due to habitat changes, but is not known to change
due to interspecific interactions.
Gila chub, although partly predatory, feeds mostly on organic
debris and invertebrates and occupies habitat quite different from that
of spikedace and loach minnow, thus making direct predation of Gila
chub on either spikedace, loach minnow, or any fish, an unlikely
occurrence (Weedman et al. 1996). Gila chub distribution has declined
substantially in the past 100 years and it shares few stream reaches
with either spikedace or loach minnow. Neither Sonora sucker nor desert
sucker are known to be predatory; they consume organic debris from the
substrate (Minckley 1973).
Comment 4d3: Some of the areas proposed are already included in
designated critical habitat for other species, such as the southwestern
willow flycatcher, razorback sucker (Xyrauchen texanus), Huachuca water
umbel (Lilaeopsis schaffneriana var. recurva), and cactus ferruginous
pygmy-owl (Glaucidium brasilianum cactorum). Therefore, some commenters
felt the additional protection for spikedace and loach minnow is
unnecessary and might lead to adverse effects on the species for which
the area was already designated as critical habitat.
Our Response: The habitat needs of spikedace and loach minnow are
not identical to those of the other four species whose designated
critical habitat overlaps that designated for the two fish. Therefore,
protection of the habitat of those species will not necessarily suffice
for spikedace and loach minnow, although we expect that protection of
the habitat of one species will often result in at least partial or
total protection for the other species in the same area. Also, the
critical habitat designation for other species would be removed upon
the delisting of those species. Thus, the protection provided from the
one species' designation does not assure the long-term protection for
others.
We do not anticipate protection of one of the species for which the
area is designated as critical habitat as being adverse to any of the
others. However, during section 7 consultation, we would consider the
interaction and possible conflict of requirements for different listed
species. The purpose of the Act is protection of ecosystems and we
encourage management of areas with listed species on ecosystem
principles which will ensure benefits to all the species in the area.
Comment 4e: Some comments compared the critical habitat to the
recovery plans for spikedace and loach minnow. In particular, a concern
was raised that some areas proposed for critical habitat were not
specifically identified in the recovery plans as recovery areas.
Our Response: Although the recovery plans for the two fishes
identify some areas specifically as having a strong recovery potential,
they also call for identification of other reaches with recovery
potential. That process has been ongoing in the nine years since the
recovery plans were prepared and discussions among experts on the
species have assisted us in identifying the areas in the designated
critical habitat.
Comment 4f: A number of comments were received that expressed
concern that designation of critical habitat would have adverse effects
on spikedace and loach minnow.
Comment 4f1: The Blue River was not occupied by loach minnow in
1904 but they became common by 1995 as a result of livestock grazing
management. Critical habitat designation will change grazing management
with adverse impacts to loach minnow.
Our Response: There are no known records of native fish from the
Blue River prior to 1904. In 1904, Chamberlain conducted a brief survey
of fishes of the Blue River from its mouth to the confluence with K.P.
Creek (Chamberlain 1904, Minckley 1999). He did not find loach minnow;
he found only one native fish, the longfin dace. The reason for the
scarcity of all other native fish is unknown, but probably relates to
the human alterations of the stream channel and watershed that led Aldo
Leopold to call the Blue River ``ruined'' (Leopold 1921, Leopold 1946).
Although Chamberlain's survey indicated that loach minnow were clearly
not common in that portion of the Blue River in 1904, it does not
provide evidence regarding historical occupation of spikedace and loach
minnow in the Blue River, nor does it alone support a conclusion that
either species was extirpated from the river. The next records of a
native fish survey in the Blue River are from 1977, when Anderson and
Turner found five species of native fish, including loach minnow. In
the mid-1990's, loach minnow were relatively common in the Blue River,
although they were the rarest of the five remaining native species
(AGFD 1994, Bagley et al. 1995).
We have no data to indicate that grazing management is responsible
for introducing or enhancing loach minnow in the Blue River. Caution
must be used in interpreting data from a point-in-time sample such as
Chamberlain's. Both spikedace and loach minnow exhibit the strong
fluctuations in population levels typical of small, short-lived
species, and 1904 may have been a low-point in their population cycles
for many reasons related or unrelated to livestock grazing or other
human influences.
Comment 4f2: A number of commenters alleged that designation of
critical habitat will be detrimental to spikedace and loach minnow by
removing human-caused disturbance (particularly livestock grazing) of
the aquatic ecosystem which will cause the habitat to change into an
unsuitable condition for spikedace and loach minnow. They believe the
altered habitat will be highly suitable for nonnative fish, thus
allowing them to expand and severely reduce or eliminate spikedace and
loach minnow. They cite the recent Verde River work of John Rinne, of
the USFS Rocky Mountain Research Station, which they believe was
overlooked in the proposed rule.
Our Response: It is correct that spikedace and loach minnow, along
with all of the native fish community of the Gila River basin, require
a certain level and type of disturbance in their habitat. The primary
factor in its natural disturbance regime is periodic flooding, although
other natural processes such as fire and erosion also contribute to the
natural disturbances influencing aquatic systems. These processes are a
characteristic of healthy dynamic river systems and natural flooding
and hydrographs are part of the constituent elements described above.
It is also true that under certain circumstances human-caused
disturbance may provide benefits to the species, such as rejuvenation
of spawning gravels or removal of nonnative species. However, there is
no information that indicates human-caused disturbance can mimic the
complex natural disturbance processes, with the possible exception of
prescribed burning.
We are aware of Dr. Rinne's work in the Verde River and did not
overlook the papers discussing his work (see our response to comment
4(g)) Dr. Rinne's work provides speculation on the potential connection
between the low population levels of spikedace in the Verde River that
have occurred concurrently with the removal of livestock from the
riparian corridor (Rinne 1999a, 1999b). Disturbance created by
livestock grazing or

[[Page 24351]]

bulldozing the stream channel are far different from that caused by
flooding.
Comment 4f3: Designation of critical habitat on private lands will
result in loss of access to those lands and therefore such designation
cannot be essential to the conservation (recovery) of the spikedace and
loach minnow.
Our Response: We will continue to work with any private landowners
whose lands support habitat occupied by, or presently or potentially
suitable for, spikedace and loach minnow, and who would like to
voluntarily cooperate in conservation activities. This would be the
case with or without critical habitat designation.
Comment 4f4: One commenter believes that exclusion of San Carlos
Tribal lands will preclude management of native fish in the middle Gila
River below the confluence with the San Pedro River due to incompatible
goals of the San Carlos Apache Tribe.
Our Response: We are not aware of any provision of the critical
habitat that would preclude management of native fish in the middle
Gila River. Furthermore, we do not believe self-management of San
Carlos Apache Tribal lands will negate the conservation of native
fishes in the middle Gila River.
Comment 4f5: Some commenters contend that the designation of
critical habitat for spikedace and loach minnow will prevent flood
control and human management of riparian vegetation, floodplain, and
streambank structure. This will prevent or complicate use of best
management practices and result in a loss of natural river functioning
and an increase in flooding and flood damage. Other commenters assert
that designation of critical habitat will hinder proper management of
native fishes and will prevent or inhibit removal or control of
undesirable nonnative species.
Our Response: We do not believe that natural river function
precludes flood control and human management of riparian vegetation,
floodplain, and streambank structure. Designation of critical habitat
will not prevent such human alterations of the ecosystem, but may
result in modifications of those human actions to ameliorate or avoid
the most serious of the adverse consequences of those actions to
spikedace and loach minnow. Designation of critical habitat will not
increase flooding, although it is hoped that through section 7
consultation we can ensure watershed management practices that will
alter flood patterns toward a more natural regime. A more natural
regime will have lower flood peaks and higher low flows. Increased
upland, riparian, and stream channel conditions should lead to greater
infiltration and bank storage, thus lowering flood peaks and increasing
base flows.
Critical habitat is not expected to hinder management of native
fishes. Such a result would be contrary to the purpose of the
designation. Since recovery of spikedace and loach minnow depends upon
some control and removal of undesirable nonnative species, we
anticipate that critical habitat designation will assist that effort by
identifying areas in need of such management and inhibiting actions
that increase nonnative introduction and distribution.
Comment 4f6: Many commenters were concerned about the role of
nonnative aquatic species, particularly fish, in the recovery of
spikedace and loach minnow. They believe that rivers within the Gila
basin cannot be restored for recovery of spikedace and loach minnow due
to the presence of nonnative species which some suggest cannot be
removed or controlled. They believe removal of adverse impacts or
improvement of habitat conditions will always favor nonnative species.
``Restoration'' will always result in increases in pools and loss of
riffles, runs and glides. Therefore, no areas of stream needing
restoration or habitat enhancement should be included in the critical
habitat.
Our Response: While restoration may provide enhanced opportunities
for nonnative species as well as for native species, this problem must
be dealt with on a site-specific basis. Restoration or enhancement
plans must consider this issue and provide for mechanisms to prevent
unacceptable adverse impacts from nonnative species. Nonnative species
in many cases can be completely removed using a variety of techniques.
In other cases, control measures can reduce nonnative populations to
acceptable levels.
Comment 4g: Several commenters felt that designation of critical
habitat should be delayed because they believe more information or
studies are needed for a valid decision. Others felt that the best
available scientific and commercial information was either not used or
was not sufficient and that the designation was based on faulty
information and ``bad science.'' The most commonly cited evidence of
this was what the commenters felt was failure to consider a body of
literature by Dr. John Rinne, of the U.S. Forest Service Rocky Mountain
Research Station. According to the commenters, Dr. Rinne has
information indicating that the accepted knowledge on spikedace and
loach minnow and their habitat is incorrect, that there is not clear
understanding of what spikedace and loach minnow habitat management
requires, that spikedace have been extirpated from the Verde River due
to removal of livestock grazing, that human disturbance is necessary to
the survival of these two fish, and that aquatic vegetation is harmful
to spikedace.
Our Response: The Act requires designation of critical habitat
using the best available information. Delaying designation to obtain
more information is not legally justified. If significant new
information arises that calls this designation into question, we can
revise it through a new proposal and final rule.
Dr. Rinne is the author of a number of papers, in peer reviewed
journals and other outlets, on spikedace, loach minnow, and other Gila
basin native fishes. All of Dr. Rinne's work was considered in our
analysis leading to the proposed designation (see also comment response
4f2). Dr. Rinne is a consultant on the Desert Fishes Recovery Team and
has participated exensively in our work on conservation of spikedace
and loach minnow. We are not aware of any statement in print by Dr.
Rinne that spikedace are extirpated from the Verde River, although he
has stated that spikedace is ``absent'' from the Verde (Rinne et al.
1999b) and that they are ``rare'' there (Rinne et al. 1999a). Spikedace
were collected from the Verde River in spring 1999 by AGFD (AGFD unpub.
data) and there is no information to support a finding of extirpation.
Dr. Rinne's work does not contain any significant new information
on distribution, biology, ecology, or other aspects of spikedace and
loach minnow that contradicts what has been found in earlier work by
him and other researchers. Dr. Rinne's conclusions regarding the role
of disturbance in spikedace habitat and the balance between nonnative
and native fishes has been primarily oriented toward natural flooding
and low flows (Stefferud and Rinne 1996, Rinne and Stefferud 1997,
Neary and Rinne 1998). We do not find any conclusion regarding the
necessity for human-caused disturbance in spikedace or loach minnow
habitat in any of Dr. Rinne's work. He has speculated on the role of
livestock grazing in stream habitat conditions and noted the downturn
in spikedace population that coincided with removal of livestock
grazing from the riparian corridor (Rinne 1999a). He has stated that he
believes we do not know enough about livestock grazing impacts on fish
and their habitat to make valid management decisions (Rinne 1999). Dr.

[[Page 24352]]

Rinne's views on some of these subjects do not necessarily reflect all
views in the scientific community working on desert fishes (Brooks et
al. 2000).
Comment 4h: Some commenters objected to use of any information not
in the peer-reviewed literature. Some also objected to use of survey or
study information that was not directly obtained by us. They believe it
is inappropriate for us to rely on the work of other entities.
Our Response: Much of the information regarding native fish
distribution and management is in agency documents and other non-peer
reviewed literature. This forms part of the best available information
on the species and it would be biologically unsupportable to make
decisions which ignore that information. Most of the surveys and
studies on native fish are conducted by entities other than us. We rely
heavily on information about these species and their habitats from
agencies such as the state game and fish agencies and universities.
Comment 4i: One commenter believes the Service overlooked important
information that spikedace can bury underground and survive extensive
periods without water. This person states that spikedace have been
found by local residents in rainwater puddles in upland areas, such as
the parking lot at the Duncan, Arizona, high school.
Our Response: There is no information in the scientific literature
or within the expertise of biologists working on spikedace to indicate
that spikedace can either bury underground or survive without water.
Available evidence indicates that spikedace die only minutes after
being removed from water. They can, however, survive in only small
amounts of water. In a streambed, there may be small pockets of water
between rocks and under overhanging banks or rocks that fish can use to
survive short periods of no flow. There have been no valid reports of
which we are aware of spikedace appearing in rainwater puddles in
upland areas.
Comment 4j: Some comments addressed the issues of continuity and
fragmentation. Because certain stretches of the San Pedro were not
included in the critical habitat designation, thus violating the
principles of habitat continuity expressed in the draft rule, one
commenter felt that no portion of the San Pedro River should be
included in the critical habitat designation. Other commenters believe
that the designated critical habitat should be broken up into small,
isolated segments without connecting corridors to help prevent
nonnative species from invading the critical habitat. They believe
designation of connecting areas as critical habitat will increase
nonnative fish movement and adverse effects to spikedace and loach
minnow.
Our Response: Although we attempted to designate critical habitat
areas that were large and diverse enough to provide for connections
between habitat areas, we omitted certain areas of the San Pedro River.
The upper San Pedro River in the Riparian National Conservation Area is
to some extent hydrologically disjunct from the middle San Pedro River
(see USGS hydrologic data). This, plus the signficant areas of no flow
and no permanent water and the level of channel alteration and ongoing
disturbance, led us to omit that area. The exclusion of those areas in
the critical habitat designation will not, per se, prevent nonnative
species from using those corridors and inclusion will not provide any
opportunities for nonnative movement that do not exit without the
designation. The middle San Pedro River and its tributaries of Redfield
and Hot Springs canyons form a complex that we think is of sufficient
size and complexity to justify a unit. The lower San Pedro receives
most of its flow from Aravaipa Creek and forms a unit more closely
aligned to Aravaipa Creek and the middle Gila River than to the middle
San Pedro River, at least under present conditions. If additional
information becomes available that indicates the omitted areas in the
San Pedro River should be included in the critical habitat, it may be
considered in any later revisions of the designation.
The designation of connecting areas in the critical habitat is, in
part, to provide the opportunity for spikedace and loach minnow to move
between stream sections, thus maintaining natural fluctuation patterns
and providing for recolonization of areas which have become depopulated
due to temporary conditions. The designation will also help keep those
areas in a condition where natural hydrographs and channel
geomorphology are maintained relatively intact.
Comment 4k: Commenters mentioned a number of pieces of information
which they felt were omitted from the proposed rule that should be
provided before any final decision on critical habitat. These included
the qualifications of Charles Girard to identify the type specimens of
spikedace and loach minnow from the San Pedro River in 1851; the
special management considerations or protections which would be needed
for each stream segment; the restoration measures that would be taken
to make each segment capable of providing the constituent elements;
streamflow data on all streams proposed for designation and analyses of
those data and their relationship to the habitat needs of spikedace and
loach minnow; an explanation of the science supporting the importance
of the floodplain in stream ecology; the recent science on ``river
pooling''; a discussion of fishery-livestock grazing dynamics; and
detailed genetic data to support the differentiation between
populations of spikedace and loach minnow.
Our Response: The proposed rule is a summary of the information
used to formulate the proposal for critical habitat designation, as
required by the Act. Detailed information can be obtained from the
literature cited in the proposed and final rules, the recovery plans
for these two species, as well as in many other literature sources. We
can provide assistance in obtaining literature on any of the above
subjects (see ADDRESSES section).
Comment 4l: A few commenters suggested that, rather than trying to
restore spikedace and loach minnow in the unoccupied areas proposed for
critical habitat, recovery for the species should be accomplished by
raising the two fish in captivity and selling them commercially for
aquarium fish and in private ponds.
Our Response: The purpose of the Act is to conserve listed species
and the ecosystems on which they depend. Relegating a species to
captivity does not conserve the ecosystem on which they depend. In
addition, spikedace and loach minnow require flowing streams, so are
not easily raised in captivity and do not survive well in aquaria or
ponds.
Comment 4m: Some commenters pointed out that spikedace and loach
minnow were unsuccessfully introduced in Sonoita Creek and Seven
Springs Wash. They believe this proves they cannot be successfully
established in any areas other than where they currently exist and
therefore no unoccupied areas should be included in the critical
habitat designation as there is no probability they can be used for
recovery.
Our Response: The 1968 stocking of spikedace and loach minnow into
Sonoita Creek and 1970 stocking of both into Seven-Springs Wash failed
(Minckley and Brooks 1985). The reasons for these failures are unknown;
however, repatriation techniques and information on these two species
and their habitat needs has increased substantially since 1970. Neither
Sonoita Creek nor Seven-Springs Wash have been proposed for critical
habitat for the two fish. We do not believe the failure of these
stockings discourages

[[Page 24353]]

future attempts to reestablish the species in areas where they have
been extirpated.

Issue 5: NEPA Compliance

Several commenters questioned the adequacy of our Environmental
Assessment (EA) and other aspects of our compliance with NEPA.
Comment 5a: The Fish and Wildlife Service should prepare an
Environmental Impact Statement (EIS) on this action.
Our Response: An EIS is required only in instances where a proposed
Federal action is expected to have a significant impact on the human
environment. In order to determine whether designation of critical
habitat would have such an effect, we prepared an EA of the effects of
the proposed designation. The draft EA was made available for public
comment on the day the proposed critical habitat rule was published in
the Federal Register. Following consideration of public comments, we
prepared a final EA and determined that critical habitat designation
does not constitute a major Federal action having a significant impact
on the human environment. That determination is documented in our
Finding of No Significant Impact (FONSI). Both the final EA and FONSI
are available for public review (see ADDRESSES).
Comment 5b: Several counties requested Joint Lead Agency or
Cooperating Agency status in preparation of an EIS for this critical
habitat designation. Why were those requests denied?
Our Response: Catron and Hidalgo Counties, New Mexico, each
requested Joint Lead Agency status to assist us in preparation of an
EIS on the critical habitat designation. In addition, Cochise County,
Arizona, requested either Joint Lead Agency or Cooperating Agency
status. When preparing an EIS, a Joint Lead Agency may be a Federal,
State, or local agency; however, a cooperating agency may only be
another Federal agency (40 CFR 1501.5 and 1501.6). In December, 1999,
we responded to those requests, stating that we were preparing an EA on
the proposed action and that, should the EA result in a determination
that an EIS was necessary, we would consider the counties' requests.
However, since the EA resulted in a FONSI (see response to comment 5a,
above), the issue of Joint Lead Agency or Cooperating Agency status on
preparation of an EIS became moot.
Comment 5c: The Service's range of alternatives considered in the
draft EA was inadequate.
Our Response: We reassessed and modified our analysis and believe
we considered sufficient alternatives in the Final Environmental
Assessment.

Issue 6: Tribal Issues

The following comments and responses involve issues related to our
treatment of Native American lands and properties during the
designation process.
Comment 6a: The exclusion of tribal lands places an unfair burden
on non-tribal lands designated as critical habitat.
Our Response: We do not agree with this commenter's assessment that
the exclusion of tribal lands places an unfair burden on non-tribal
lands within the designation. We are committed to working cooperatively
with all willing parties--private land owners as well as Federal and
State land managing agencies and Native American Indian Tribes in
developing conservation agreements, partnerships, and habitat
conservation plans which can make further Federal management of those
lands unnecessary.
In this case we concluded that the benefits of excluding Tribal
land from the designation outweighed the benefits of including the
land. Additionally, the White Mountain Apache Indian Tribe's native
fishes management plan will provide conservation for the species and
further Federal management under the critical habitat designation is
not needed for the species on the reservation. Furthermore, tribal
management of these native fish resources will also benefit native fish
management of adjacent non-tribal lands. Although neither the San
Carlos Apache nor Yavapai Apache tribes have developed conservation
plans for these species at this time, we believe that the benefits from
encouraging conservation through tribal self-governance outweighs the
benefits of inclusion in the critical habitat designation. See the
section titled ``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act'' for additional
discussion concerning the Service's decision regarding tribal lands.
Comment 6b: When referring to excluding tribal lands from critical
habitat designation, does this apply to lands owned by the Tribe, or
only to lands identified as being within the reservation boundary?
Our Response: All tribal lands containing potential critical
habitat for the spikedace or loach minnow that were ultimately excluded
from the designation are within reservation boundaries.

Issue 7: Effects of Designation

The following comments and responses involve issues related to the
effects of critical habitat designation on land management or other
activities.
Comment 7a: The Service should clarify how critical habitat
designation will affect specific land uses or management practices.
Our Response: We intended that the portion of this final rule
titled ``Effect of Critical Habitat Designation'' serve as a general
guide to clarify activities that may affect or destroy or adversely
modify critical habitat. However, specific Federal actions will still
need to be reviewed by the action agency. If the agency determines the
activity may affect critical habitat, they will consult with us under
section 7 of the Act. If it is determined that the activity is likely
to adversely modify critical habitat, we will work with the agency to
modify the activity to minimize negative impacts to critical habitat.
We will work with the agencies and affected public early in the
consultation process to avoid or minimize potential conflicts and,
whenever possible, find a solution which protects listed species and
their habitat while allowing the action to go forward in a manner
consistent with its intended purpose.
Comment 7b: The Service should clarify how critical habitat will
affect management of nonnative fish. Will stocking of trout and other
nonnative fish species be affected by the designation of critical
habitat on several creeks and streams in Arizona?
Our Response: We previously consulted on the winter rainbow trout
fishery in the middle Verde River and on trout stocking in the upper
Gila River. Trout stocking in those areas has proceeded. While each
situation must be evaluated on a case by case basis, we anticipate that
trout stocking may be compatible with recovery of the spikedace and
loach minnow in most situations because trout are not as predacious as
are many other nonnative fish, they only persist in the upper reaches
of these streams, and they do not survive the summer if they move
downstream into warmer waters. The stocking of nonnative fish species
other than trout, particularly in areas near, or connected to, habitat
for these listed species, regardless of critical habitat designation,
may require additional consultation when a Federal nexus exists and a
combination of techniques may be necessary to reduce the impacts.
Comment 7c: The designation of critical habitat will impose section
9 restrictions against taking of individuals

[[Page 24354]]

of these two species in areas that do not currently have those
restrictions.
Our Response: Section 9 of the Endangered Species Act prohibits the
harm or harassment of individuals of listed species. Prohibitions
against take would be present regardless of whether or not critical
habitat has been designated. If areas designated as critical habitat do
not have individuals of the listed species present, no take in the form
of harm or harassment would occur from activities on these areas and no
section 9 prohibitions would be in force. However, effects from
activities in unoccupied habitat that extend downstream to areas
occupied by a listed species could result in take, regardless of
whether or not critical habitat has been designated.

Summary of Changes From the Proposed Rule

There have been a number of minor changes from the text of the
proposed rule. We corrected errors in mileages and locations and made
other minor technical changes, additions, and deletions. We
incorporated information from comments into the text and have made
clarifications in response to comments.
In response to several comments, we clarified the lateral extent of
critical habitat designation. Where delineated, this will be the 100-
year floodplain of the designated waterways as defined by the U.S. Army
Corps of Engineers. In areas where the 100-year floodplain has not been
delineated or it is in dispute, the presence of alluvial soils (soils
deposited by streams), obligate and facultative riparian vegetation
(requiring and usually occurring in wetlands, respectively), abandoned
river channels, or known high water marks can be used to determine the
extent of the floodplain. We have also clarified that existing human-
constructed features and structures within the critical habitat
boundaries are not considered part of the critical habitat.
In response to a comment, we incorporated references to the October
6, 1999 amendment to the September 20, 1999 court order into this Final
Rule.
We added a section titled ``Exclusion for Economic and Other
Relevant Impacts'' to this Final Rule. We excluded the Fort Apache, San
Carlos Apache, and Yavapai Apache Indian Reservation lands under the
provisions of section 4(b)(2) of the Act.
We removed all stream reaches in complex 2, the Black River forks,
from the critical habitat designation for spikedace for biological
reasons. Comments received pointed out that the area is too high in
elevation to have sufficient recovery potential for spikedace.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this document is a
significant rule and has been reviewed by the Office of Management and
Budget (OMB), under Executive Order 12866. We prepared an economic
analysis of the proposed action to determine the economic consequences
of designating the specific areas as critical habitat. Table 5
summarizes the expected impacts of designating critical habitat for
spikedace and loach minnow. The draft economic analysis was available
for public review and comment during the comment period on the proposed
rule. The final economic analysis is available for public review (see
ADDRESSES section of this rule). We determined that this rule will not
significantly impact entitlements, grants, user fees, loan programs, or
the rights and obligations of their recipients (see Exclusion for
Economic and Other Relevant Impacts section of this final rule). This
rule will not raise novel legal or policy issues.

Table 5.--Impacts of Designating Critical Habitat for Spikedace and Loach Minnow
----------------------------------------------------------------------------------------------------------------
Activities potentially
affected by the designation
of critical habitat in Activities potentially affected by the
Categories of activities areas occupied by the designation of critical habitat in unoccupied
species (above those from areas
listing the species)
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially None....................... Activities such as those affecting waters of
Affected \1\. the United States by the Army Corps of
Engineers under section 404 of the Clean
Water Act; road construction and maintenance,
right-of-way designation, and regulation of
agricultural activities; construction of
roads and fences along the international
border with Mexico and associated immigration
enforcement activities by the Immigration and
Naturalization Service; construction of
communication sites licensed by the Federal
Communications Commission; and activities
funded by any Federal agency.
Private or other non-Federal None....................... Activities that require a Federal action
Activities Potentially Affected (permit, authorization, or funding) and that
\2\. involve such activities as removing or
destroying spikedace or loach minnow habitat
(as defined in the primary constituent
elements discussion) whether by mechanical,
chemical, or other means (e.g., water
diversions, grading, etc.); and that
appreciably decrease habitat value or quality
through indirect effects (e.g., edge effects,
invasion of exotic plants or animals, or
fragmentation).
----------------------------------------------------------------------------------------------------------------
\1\ Activities initiated by a Federal agency.
\2\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
funding.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

In the economic analysis (under section 4 of the Act), we
determined that designation of critical habitat will not have a
significant effect on a substantial number of small entities (see also
our discussion in the Exclusion for Economic and Other Relevant Impacts
section of this final rule). We determined that the designation of
critical habitat will not have any additional effects on these
activities in areas of critical habitat occupied by the species. We
also determined that there would be some, but not a significant,
additional effect for the unoccupied area of critical habitat.

[[Page 24355]]

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

In our economic analysis, we determined that designation of
critical habitat will not cause (a) Any effect on the economy of $100
million or more, (b) any increases in costs or prices for consumers;
individual industries; Federal, State, or local government agencies; or
geographic regions, or (c) any significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

As outlined in our economic analysis, this rule does not impose an
unfunded mandate on State, local or tribal governments or the private
sector of more than $100 million or greater in any year. The
designation does not have a significant or unique effect on State,
local, or tribal governments, or the private sector. It is not
necessary to provide a statement of the information required by the
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.). Small governments
will be affected only to the extent that any programs having Federal
funds, permits or other authorized activities must ensure that their
actions will not destroy or adversely modify the critical habitat.
However, as discussed above, these actions are currently subject to
equivalent restrictions through the listing protections of the species,
and no further restrictions are anticipated in areas of occupied
proposed critical habitat. We expect little additional effect for the
unoccupied areas of critical habitat, since unoccupied habitat that
occurs on State or other governmental land (other than Federal) is only
40 km (24 mi) of stream, or only 6 percent of the unoccupied habitat we
designated. There is no effect on Tribal land since we are not
designating any Tribal land as critical habitat.

Takings

In accordance with Executive Order 12630, this rule does not have
significant takings implications, and a takings implication assessment
is not required. This designation will not ``take'' private property.
Critical habitat designation is only applicable to Federal lands and to
private lands if a Federal nexus exists. We do not designate lands as
critical habitat unless the areas are essential to the conservation of
a species. The rule will not increase or decrease the current
restrictions on private property concerning take of spikedace or loach
minnow. Due to current public knowledge of the species protection, the
prohibition against take of these species both within and outside of
the designated areas, and the fact that critical habitat provides no
incremental restrictions in areas of occupied critical habitat, we do
not anticipate that property values will be affected by the critical
habitat designation. We expect little additional effect for the
unoccupied area of critical habitat since the land on which we might
expect some additional effect due to critical habitat designation,
should a Federal nexus exist (unoccupied nonFederal land), is only
approximately 17 percent of the total area designated. Additionally,
critical habitat designation does not preclude development of habitat
conservation plans and issuance of incidental take permits. Landowners
in areas that are included in the designated critical habitat will
continue to have opportunity to utilize their property in ways
consistent with the survival of the spikedace and loach minnow.

Federalism

In accordance with Executive Order 13132, this designation will not
affect the structure or role of States, and will not have direct,
substantial, or significant effects on States. A Federalism assessment
is not required. As previously stated, critical habitat is applicable
to Federal lands and to non-Federal lands only when a Federal nexus
exists. In keeping with Department of the Interior policy, we requested
information from and coordinated development of this critical habitat
designation with appropriate State resource agencies in Arizona and New
Mexico. In addition, both States have representatives on our recovery
team for these species. We will continue to coordinate any future
designation of critical habitat for spikedace and loach minnow with the
appropriate State agencies. The designation of critical habitat in
areas currently occupied by the spikedace and loach minnow imposes no
additional restrictions to those currently in place and, therefore, has
little incremental impact on State and local governments and their
activities. The designation of critical habitat in areas unoccupied by
the spikedace and loach minnow may have some incremental impact on
State and local governments and their activities that have Federal
funding, permits, or authorization. The incremental impact would come
from the need to consult with us under section 7 of the Act to ensure
that these actions will not destroy or adversely modify the critical
habitat. The designation may have some benefit to these governments in
that the areas essential to the conservation of the species are more
clearly defined, and the primary constituent elements of the habitat
necessary to the survival of the species are specifically identified.
While making this definition and identification does not alter where
and what federally sponsored activities may occur, it may assist these
local governments in long-range planning (rather than waiting for case-
by-case section 7 consultations to occur).

Civil Justice Reform

In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor determined that this rule does not
unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We designate critical habitat
in accordance with the provisions of the Act. We have made every effort
to ensure that this final determination contains no drafting errors,
provides clear standards, simplifies procedures, reduces burden, and is
clearly written such that litigation risk is minimized.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any information collection requirements
for which Office of Management and Budget approval under the Paperwork
Reduction Act is required.

National Environmental Policy Act

It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by NEPA in connection with
designating critical habitat under the Endangered Species Act of 1973,
as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld by the Ninth Circuit (Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct.
698 (1996)). However, when the ranges of the species include States
within the Tenth Circuit, such as those of the spikedace and loach
minnow, pursuant to the Tenth Circuit ruling in Catron County Board of
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th
Cir. 1996), we must undertake a NEPA analysis for critical habitat
designation. We have prepared a final Environmental Assessment on this
action as required by NEPA. As a result of that analysis, we found that
the designation of critical habitat for the spikedace and loach

[[Page 24356]]

minnow does not constitute a major Federal action significantly
affecting the quality of the human environment under the meaning of
section 102(2)(c) of NEPA. As such, an environmental impact statement
is not required. Send your requests for copies of the final EA and
FONSI for this designation to the Arizona Ecological Services Office
(see ADDRESSES section).

References Cited

A complete list of all references cited in this final rule is
available upon request from the Arizona Ecological Services Office (see
ADDRESSES section). Authors. The primary authors of this final rule are
Paul J. Barrett and Sally E. Stefferud (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we 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 Sec. 17.11(h), by revising the entry for ``minnow, loach''
and ``spikedace'' under ``FISHES'' to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Special
Historical range endangered or Status When listed Critical habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes

* * * * * * *
Minnow, loach................... Tiaroga U.S.A. (AZ, NM) entire............ T 247 Sec. 17.95(e) NA
(=Rhinichthys) Mexico.
cobitis.

* * * * * * *
Spikedace....................... Meda fulgida....... U.S.A. (AZ, NM), entire............ T 236 Sec. 17.95(e) NA
Mexico.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Amend section 17.95(e) by adding critical habitat for the
spikedace (Meda fulgida) in the same alphabetical order as this species
occurs in 17.11(h).

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(e) Fishes.
* * * * *
Spikedace (Meda fulgida)
1. Critical habitat units are depicted for Cochise, Gila,
Graham, Greenlee, Pima, Pinal, and Yavapai Counties, Arizona; and
Catron, Grant, and Hidalgo Counties, New Mexico, on the maps and as
described below.
2. Critical habitat includes the stream channels within the
identified stream reaches described below and areas within these
reaches potentially inundated by high flow events. Where delineated,
this is the 100-year floodplain of the designated waterways as
defined by the U.S. Army Corps of Engineers. In areas where the 100-
year floodplain has not been delineated or it is in dispute, the
presence of alluvial soils (soils deposited by streams), obligate
and facultative riparian vegetation (requiring and usually occurring
in wetlands respectively), abandoned river channels, or known high
water marks can be used to determine the extent of the floodplain.
Within these areas, only lands which provide the primary constituent
elements or which will be capable, with restoration, of providing
them, are considered critical habitat. Existing human-constructed
features and structures such as buildings, roads, etc., are not
considered critical habitat.
3. Within these areas, the primary constituent elements include,
but are not limited to, those habitat components that are essential
for the primary biological needs of foraging, sheltering, dispersal,
and reproduction. These elements include the following: (1)
Permanent, flowing, unpolluted water; (2) living areas for adult
spikedace with slow to swift flow velocities in shallow water with
shear zones where rapid flow borders slower flow, areas of sheet
flow at the upper ends of mid-channel sand/gravel bars, and eddies
at downstream riffle edges; (3) living areas for juveniles with slow
to moderate water velocities in shallow water with moderate amounts
of instream cover; (4) living areas for the larval stage with slow
to moderate flow velocities in shallow water with abundant instream
cover; (5) sand, gravel, and cobble substrates with low to moderate
amounts of fine sediment and substrate embeddedness; (6) pool,
riffle, run, and backwater components of the streams; (7) low stream
gradient; (8) water temperatures in the approximate range of 1-
30 deg. C (35-85 deg. F) with natural diurnal and seasonal
variation; (9) abundant aquatic insect food base; (10) periodic
natural flooding; (11) a natural, unregulated hydrograph, or if
flows are modified or regulated, then a hydrograph that demonstrates
an ability to support a native fish community; and (12) habitat
devoid of nonnative aquatic species detrimental to spikedace, or
habitat in which detrimental nonnative species are at levels which
allow persistence of spikedace.
4. Arizona (Gila and Salt River Meridian (GSRM) and New Mexico
(New Mexico Principal Meridian (NMPM)): Areas of land and water as
follows (physical features were identified using USGS 7.5'
quadrangle maps; river reach distances were derived from digital
data obtained from Arizona Land Resources Information System (ALRIS)
and New Mexico Resource Geographic Information System (RGIS)):

BILLING CODE 4310-55-P

[[Page 24357]]

[GRAPHIC] [TIFF OMITTED] TR25AP00.003

Spikedace (Meda fulgida)

[[Page 24358]]

Complex 1. Yavapai and Gila Counties, Arizona

a. Verde River for approximately 171.3 km (106.5 mi), extending
from the confluence with Fossil Creek in GSRM, T.11N., R.6E., NE\1/
4\ Sec. 25 upstream to Sullivan Dam in GSRM, T.17N., R.2W., NW\1/4\
Sec. 15.
b. Fossil Creek for approximately 7.6 km (4.7 mi), extending
from the confluence with the Verde River in GSRM, T.11.N., R.6E.,
NE\1/4\ Sec. 25 upstream to the confluence with an unnamed tributary
from the northwest in GSRM, T.11 \1/2\N., R.7E., center Sec. 29.
c. West Clear Creek for approximately 11.6 km (7.2 mi),
extending from the confluence with the Verde River in GSRM, T.13N.,
R.5E., center Sec. 21, upstream to the confluence with Black
Mountain Canyon in GSRM, T.13N., R.6E., SE\1/4\ Sec. 17.
d. Beaver Creek/Wet Beaver Creek for approximately 33.4 km
(20.8mi), extending from the confluence with the Verde River in
GSRM, T.14N., R.5E., SE\1/4\ Sec. 30 upstream to the confluence with
Casner Canyon in GSRM, T.15N., R.6E., NW\1/4\ Sec. 23.
e. Oak Creek for approximately 54.4 km (33.8 mi), extending from
the confluence with the Verde River in GSRM, T.15N., R.4E., SE\1/4\
Sec. 20 upstream to the confluence with an unnamed tributary from
the south in GSRM, T.17N., R.5E., SE\1/4\, NE\1/4\ Sec. 24.
f. Granite Creek for approximately 2.3 km (1.4 mi), extending
from the confluence with the Verde River in GSRM, T.17N., R.2W.,
NE\1/4\ Sec. 14 upstream to a spring in GSRM, T.17N., R.2W., SW\1/
4\, SW\1/4\, Sec. 13.
[GRAPHIC] [TIFF OMITTED] TR25AP00.004

[[Page 24359]]

Complex 3. Gila County, Arizona

a. Tonto Creek for approximately 47.0 km (29.2 mi), extending
from the confluence with Greenback Creek in GSRM, T.5N., R.11E.,
NW\1/4\ Sec. 8 upstream to the confluence with Houston Creek in
GSRM, T.9N., R.11E., NE\1/4\, Sec. 18.
b. Greenback Creek for approximately 13.5 km (8.4 mi), extending
from the confluence with Tonto Creek in GSRM, T.5N., R.11E., NW\1/4\
Sec. 8 upstream to Lime Springs in GSRM, T.6N., R.12E., SW\1/4\ Sec.
20.
c. Rye Creek for approximately 2.1 km (1.3 mi), extending from
the confluence with Tonto Creek in GSRM, T.8N., R.10E., SW\1/4\ Sec.
13 upstream to the confluence with Brady Canyon in GSRM, T.8N.,
R.10E., NE\1/4\ Sec. 14.
[GRAPHIC] [TIFF OMITTED] TR25AP00.005

[[Page 24360]]

Complex 4. Graham, and Pinal Counties, Arizona

[[Page 24361]]

Complex 5. Cochise, Graham, and Pima Counties, Arizona

a. San Pedro River for approximately 73.6 km (45.8 mi),
extending from the confluence with Alder Wash in GSRM, T.10S.,
R.18E., SW\1/4\ Sec.22 upstream to the confluence with Ash Creek in
GSRM, T.16S., R.20E., SE\1/4\ Sec. 6.
b. Redfield Canyon for approximately 22.3 km (13.9 mi),
extending from the confluence with the San Pedro River in GSRM,
T.11S., R.18E., SW\1/4\ Sec. 34 upstream to the confluence with
Sycamore Canyon in GSRM, T.11S., R.20E., NW\1/4\ Sec. 28.
c. Hot Springs Canyon for approximately 19.1 km (11.8 mi),
extending from the confluence with the San Pedro River in GSRM,
T.13S., R.19E., west center Sec.23 upstream to the confluence with
Bass Canyon in GSRM, T.12S., R.20E., NE\1/4\ Sec. 36.
d. Bass Canyon for approximately 5.1 km (3.2 mi), extending from
the confluence with Hot Springs Canyon in GSRM, T.12S., R.20E.,
NE\1/4\ Sec. 36 upstream to the confluence with Pine Canyon in GSRM,
T.12S., R.21E., center Sec. 20.
e. San Pedro River for approximately 60.0 km (37.2 mi),
extending from the confluence with the Babocomari River in the San
Juan de las Boquillas y Nogales land grant upstream to the U.S.
border with Mexico in GSRM, T.24S., R.22E., Sec. 19.
[GRAPHIC] [TIFF OMITTED] TR25AP00.007

[[Page 24362]]

Complex 6. Graham and Greenlee Counties, Arizona and Catron County, New
Mexico

[[Page 24363]]

Complex 7. Grant and Catron Counties, New Mexico

a. Gila River for approximately 164.4 km (102.2 mi), extending
from the confluence with Moore Canyon in NMPM, T.18S., R.21W., SE\1/
4\ SW\1/4\ Sec. 31 upstream to the confluence of the East and West
Forks of the Gila River in NMPM, T.13S., R.13W., center Sec. 8.
b. East Fork Gila River for approximately 42.1 km (26.1 mi),
extending from the confluence with the West Fork Gila River in NMPM,
T.13S., R.13W., center Sec. 8 upstream to the confluence of Beaver
and Taylor Creeks in NMPM, T.11S., R.12W., NE\1/4\ Sec. 17.
c. Middle Fork Gila River for approximately 12.3 km (7.7 mi),
extending from the confluence with the West Fork Gila River in NMPM,
T.12S., R.14W., SW\1/4\ Sec. 25 upstream to the confluence with Big
Bear Canyon in NMPM, T.12S., R.14W., NW\1/4\ Sec. 2.
d. West Fork Gila River for approximately 12.4 km (7.7 mi),
extending from the confluence with the East Fork Gila River in NMPM,
T.13S., R.13W., center Sec. 8 upstream to the confluence with EE
Canyon in NMPM, T.12S., R.14W., east boundary of Sec. 21.
[GRAPHIC] [TIFF OMITTED] TR25AP00.009

* * * * *

4. Amend section 17.95(e) by adding critical habitat for the loach
minnow (Tiaroga (= Rhinichthys) cobitis) in the same alphabetical order
as this species occurs in 17.11(h):

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(e) Fishes.
* * * * *

LOACH MINNOW (Tiaroga (=Rhinichthys) cobitis)

1. Critical habitat units are depicted for Apache, Cochise,
Gila, Graham, Greenlee, Pima, Pinal, and Yavapai Counties, Arizona;
and Catron and Grant Counties, New Mexico on the maps and as
described below.
2. Critical habitat includes the stream channels within the
identified stream reaches described below and areas within these
reaches potentially inundated by high flow events. Where delineated,
this is the 100-year floodplain of the designated waterways as
defined by the U.S. Army Corps of Engineers. In areas where the 100-
year floodplain has not been delineated or it is in dispute, the
presence of alluvial soils (soils deposited by streams), obligate
and facultative riparian vegetation (requiring and usually occurring
in wetlands respectively), abandoned river channels, or known high
water marks can be used to determine the extent of the floodplain.
Within these areas, only lands which provide the primary constituent
elements or which will be capable, with restoration, of providing
them, are considered critical habitat. Existing human-constructed
features and structures such as buildings, roads, etc., are not
considered critical habitat.
3. Within these areas, the primary constituent elements include,
but are not limited to, those habitat components that are essential
for the primary biological needs of foraging, sheltering, dispersal,
and reproduction. These elements include the following: (1)
Permanent flowing, unpolluted water; (2) living areas for adult
loach minnow with moderate to swift flow velocities in shallow water
with gravel, cobble, and rubble substrates; (3) living areas for
juvenile loach minnow with moderate to swift flow velocities in
shallow water with sand, gravel, cobble, and rubble substrates; (4)
living areas for larval loach minnow with slow to moderate
velocities in shallow water with sand, gravel, and cobble substrates
and abundant instream cover; (5) spawning areas with slow to swift
flow velocities in shallow water with uncemented cobble and rubble
substrate; (6) low amounts of fine sediment and substrate
embeddedness; (7) riffle, run, and backwater components present in
the aquatic habitat; (8) low to moderate stream gradient; (9) water
temperatures in the approximate range of 1-30 deg.C (35-85 deg.F)
with natural diurnal and seasonal variation; (10) abundant aquatic
insect food base; (11) periodic natural flooding; (12) a natural,
unregulated hydrograph, or if flows are modified or regulated, then
a hydrograph that demonstrates a retained ability to support a
native fish community; and (13) habitat devoid of nonnative aquatic
species detrimental to loach minnow, or habitat in which detrimental
nonnative species are at levels which allow persistence of loach
minnow.
4. Arizona (Gila and Salt River Meridian (GSRM)) and New Mexico
(New Mexico Principal Meridian (NMPM)): Areas of land and water as
follows (physical features were identified using USGS 7.5'
quadrangle maps; river reach distances were derived from digital
data obtained from Arizona Land Resources Information System (ALRIS)
and

[[Page 24364]]

New Mexico Resource Geographic Information System (RGIS)):
[GRAPHIC] [TIFF OMITTED] TR25AP00.010

LOACH MINNOW (Tiaroga (=Rhinichthys) cobitis)

[[Page 24365]]

Complex 1. Yavapai, and Gila Counties, Arizona

a. Verde River for approximately 171.3 km (106.5 mi), extending
from the confluence with Fossil Creek in GSRM, T.11N., R.6E., NE\1/
4\ Sec. 25 upstream to Sullivan Dam in GSRM, T.17N., R.2W., NW\1/4\
Sec. 15, excluding lands on the Yavapai Apache Indian Reservation.
b. Fossil Creek for approximately 7.6 km (4.7 mi), extending
from the confluence with the Verde River in GSRM, T.11N., R.6E.,
NE\1/4\ Sec. 25 upstream to the confluence with an unnamed tributary
from the northwest in GSRM, T.11 \1/2\N., R.7E., center Sec. 29.
c. West Clear Creek for approximately 11.6 km (7.2 mi),
extending from the confluence with the Verde River in GSRM, T.13N.,
R.5E., center Sec. 21, upstream to the confluence with Black
Mountain Canyon in GSRM, T.13N., R.6E., SE\1/4\ Sec. 17.
d. Beaver Creek/Wet Beaver Creek for approximately 33.4 km
(20.8mi), extending from the confluence with the Verde River in
GSRM, T.14N., R.5E., SE\1/4\ Sec. 30 upstream to the confluence with
Casner Canyon in GSRM, T.15N., R.6E., NW\1/4\ Sec. 23.
e. Oak Creek for approximately 54.4 km (33.8 mi), extending from
the confluence with the Verde River in GSRM, T.15N., R.4E., SE\1/4\
Sec. 20 upstream to the confluence with an unnamed tributary from
the south in GSRM, T.17N., R.5E., SE\1/4\, NE\1/4\ Sec. 24.
f. Granite Creek for approximately 2.3 km (1.4 mi), extending
from the confluence with the Verde River in GSRM, T.17N., R.2W.,
NE\1/4\ Sec. 14 upstream to a spring in GSRM, T.17N., R.2W., SW\1/
4\, SW\1/4\, Sec. 13.
[GRAPHIC] [TIFF OMITTED] TR25AP00.011

[[Page 24366]]

Complex 2. Apache and Greenlee Counties, Arizona

a. East Fork Black River for approximately 8.2 km (5.1 mi),
extending from the confluence with the West Fork Black River in
GSRM, T.4N., R.28E., SE\1/4\ Sec. 11 upstream to the confluence with
Deer Creek in GSRM, T.5N., R.29E., NW\1/4\ Sec. 30.
b. North Fork of the East Fork Black River for approximately
18.0 km (11.2 mi), extending from the confluence of the East Fork
Black River and Deer Creek in GSRM, T.5N., R.29E., NW\1/4\ Sec. 30
upstream to the confluence with an unnamed tributary flowing from
the east in GSRM, T.6N., R.29E., center Sec. 30.
c. Boneyard Creek for approximately 2.3 km (1.4 mi), extending
from the confluence with the North Fork of the East Fork Black River
in GSRM, T.5N, R.29E., SW\1/4\ Sec. 5 upstream to the confluence
with an unnamed tributary flowing from the east near Clabber City in
GSRM, T.6N., R.29E., SE\1/4\ SE\1/4\ Sec. 32.
d. Coyote Creek for approximately 3.1 km (2.0 mi), extending
from the confluence with the North Fork of the East Fork Black River
in GSRM, T.5N., R.29E., NE\1/4\ Sec. 8 upstream to the confluence
with an unnamed tributary flowing from the south in GSRM, T.5N.,
R.19E., NW\1/4\ Sec. 10.
e. West Fork Black River for approximately 10.3 km (6.4 mi),
extending from the confluence with the East Fork Black River in
GSRM, T.4N, R.28E., SE\1/4\ Sec. 11 upstream to the confluence with
Hay Creek in GSRM, T.5N., R.28E., SE\1/4\, Sec. 19.
[GRAPHIC] [TIFF OMITTED] TR25AP00.012

[[Page 24367]]

Complex 3. Gila County, Arizona

a. Tonto Creek for approximately 70.3 km (43.7 mi), extending
from the confluence with Greenback Creek in GSRM, T.5N., R.11E.,
NW\1/4\ Sec. 8 upstream to the confluence with Haigler Creek in
GSRM, T.10N., R.12E., NW\1/4\, Sec. 14.
b. Greenback Creek for approximately 13.5 km (8.4 mi), extending
from the confluence with Tonto Creek in GSRM, T.5N., R.11E., NW\1/4\
Sec. 8 upstream to Lime Springs in GSRM, T.6N., R.12E., SW\1/4\ Sec.
20.
c. Rye Creek for approximately 2.1 km (1.3 mi), extending from
the confluence with Tonto Creek in GSRM, T.8N., R.10E., SW\1/4\ Sec.
13 upstream to the confluence with Brady Canyon in GSRM, T.8N.,
R.10E., NE\1/4\ Sec. 14.
[GRAPHIC] [TIFF OMITTED] TR25AP00.013

[[Page 24368]]

Complex 4. Graham and Pinal Counties, Arizona

a. Gila River for approximately 62.8 km (39.0 mi), extending
from Ashurst-Hayden Dam in GSRM, T.4S., R.11E., NW\1/4\ Sec. 8
upstream to the confluence with the San Pedro River in GSRM, T.5S.,
R.15E., center Sec. 23.
b. San Pedro River for approximately 21.4 km (13.3 mi),
extending from the confluence with the Gila River in GSRM, T.5S.,
R.15E., center Sec. 23 upstream to the confluence with Aravaipa
Creek in GSRM, T.7S., R.16E., center Sec. 9.
c. Aravaipa Creek for approximately 45.3 km (28.1 mi), extending
from the confluence with the San Pedro River in GSRM, T.7S., R.16E.,
center Sec. 9 upstream to the confluence with Stowe Gulch in GSRM,
T.6S., R.19E., SE\1/4\ of the NE\1/4\ Sec. 35.
d. Turkey Creek for approximately 4.3 km (2.7 mi), extending
from the confluence with Aravaipa Creek in GSRM, T.6S., R.19E.,
center Sec. 19 upstream to the confluence with Oak Grove Canyon in
GSRM, T.6S., R.19E., SW\1/4\ Sec. 32.
f. Deer Creek for approximately 3.6 km (2.3 mi), extending from
the confluence with Aravaipa Creek in GSRM, T.6S., R.18E., SE\1/4\
of the SE\1/4\ Sec. 14 upstream to the boundary of the Aravaipa
Wilderness at GSRM, T.6S., R.18E., east boundary Sec. 13.
[GRAPHIC] [TIFF OMITTED] TR25AP00.014

[[Page 24369]]

Complex 5. Cochise, Graham, and Pima Counties, Arizona

a. San Pedro River for approximately 73.6 km (45.8 mi),
extending from the confluence with Alder Wash in GSRM, T.10S.,
R.18E., SW\1/4\ Sec. 22 upstream to the confluence with Ash Creek in
GSRM, T.16S., R.20E., SE\1/4\ Sec. 6.
b. Redfield Canyon for approximately 22.3 km (13.9 mi),
extending from the confluence with the San Pedro River in GSRM,
T.11S., R.18E., SW\1/4\ Sec. 34 upstream to the confluence with
Sycamore Canyon in GSRM, T.11S., R.20E., NW\1/4\ Sec. 28.
c. Hot Springs Canyon for approximately 19.1 km (11.8 mi),
extending from the confluence with the San Pedro River in GSRM,
T.13S., R.19E., west center Sec. 23 upstream to the confluence with
Bass Canyon in GSRM, T.12S., R.20E., NE\1/4\ Sec. 36.
d. Bass Canyon for approximately 5.1 km (3.2 mi), extending from
the confluence with Hot Springs Canyon in GSRM, T.12S., R.20E.,
NE\1/4\ Sec. 36 upstream to the confluence with Pine Canyon in GSRM,
T.12S., R.21E., center Sec. 20.
e. San Pedro River for approximately 60.0 km (37.2 mi),
extending from the confluence with the Babocomari River in the San
Juan de las Boquillas y Nogales land grant upstream to the U.S.
border with Mexico in GSRM, T.24S., R.22E., Sec. 19.
[GRAPHIC] [TIFF OMITTED] TR25AP00.015

[[Page 24370]]

Complex 6. Graham and Greenlee Counties, Arizona and Catron County, New
Mexico

a. Gila River for approximately 36.3 km (22.6 mi), extending
from the Brown Canal diversion at the head of the Safford Valley in
GSRM, T.6S., R.28E., SE\1/4\ Sec. 30 upstream to the confluence with
Owl Canyon in GSRM, T.5S., R.30E., SW\1/4\ Sec. 30.
b. Bonita Creek for approximately 23.5 km (14.6 mi), extending
from the confluence with the Gila River in GSRM, T.6S., R.28E.,
SE\1/4\ Sec. 21 upstream to the confluence with Martinez Wash in
GSRM, T.4S., R.27E., SE\1/4\ Sec. 27.
c. Eagle Creek for approximately 72.8 km (45.2 mi), extending
from the Phelps-Dodge diversion dam in GSRM, T.4S., R.28E., NW\1/4\
Sec. 23 upstream to the confluence of Dry Prong and East Eagle
Creeks in GSRM, T.2N., R.28E., SW\1/4\ Sec. 20, excluding lands on
the San Carlos Apache Indian Reservation.
d. San Francisco River for approximately 203.3 km (126.3 mi),
extending from the confluence with the Gila River in GSRM, T.5S.,
R.29E., SE\1/4\ Sec. 21 upstream to the mouth of The Box canyon in
NMPM, T.6S., R.19W., SW\1/4\ of the NW\1/4\ Sec. 2.
e. Tularosa River for approximately 30.0 km (18.6 mi), extending
from the confluence with the San Francisco River in NMPM, T.7S.,
R.19W., SW\1/4\ Sec. 23 upstream to NMPM, T.6S., R.18W, south
boundary Sec. 1.
f. Negrito Creek for approximately 6.8 km (4.2 mi), extending
from the confluence with the Tularosa River in NMPM, T.7S., R.18W.,
SW\1/4\ of the NW\1/4\ Sec. 19 upstream to the confluence with Cerco
Canyon in NMPM, T.7S., R.18W., west boundary Sec. 22.
g. Whitewater Creek for approximately 1.8 km (1.2 mi), extending
from the confluence with the San Francisco River in NMPM, T.11S.,
R.20W., SE\1/4\ Sec. 27 upstream to the confluence with Little
Whitewater Creek in NMPM, T.11S., R.20W., SE\1/4\ Sec. 23.
h. Blue River for approximately 81.9 km (51.0 mi), extending
from the confluence with the San Francisco River in GSRM, T.2S.,
R.31E., SE\1/4\ Sec. 31 upstream to the confluence of Campbell and
Dry Blue Creeks in NMPM, T.7S., R.21W., SE\1/4\ Sec. 6.
i. Campbell Blue Creek for approximately 13.1 km (8.2 mi),
extending from the confluence with Dry Blue Creek in NMPM, T.7S.,
R.21W., SE\1/4\ Sec. 6 upstream to the confluence with Coleman Creek
in GSRM, T.4 \1/2\ N., R.31E., SW\1/4\ of the NE\1/4\ Sec. 32.
j. Dry Blue Creek for approximately 4.7 km (3.0 mi), extending
from the confluence with Campbell Blue Creek in NMPM, T.7S., R.21W.,
SE\1/4\ Sec. 6 upstream to the confluence with Pace Creek in NMPM,
T.6S., R.21W., SW\1/4\ Sec. 28.
k. Pace Creek for approximately 1.2 km (0.8 mi), extending from
the confluence with Dry Blue Creek in NMPM, T.6S., R.21W., SW\1/4\
Sec. 28 upstream to the barrier falls in NMPM, T.6S., R.21W., SW\1/
4\ Sec. 28.
l. Frieborn Creek for approximately 1.8 km (1.2 mi), extending
from the confluence with Dry Blue Creek in NMPM, T.7S., R.21W.,
SW\1/4\ NW\1/4\ Sec. 5 upstream to the confluence with an unnamed
tributary flowing from the south in NMPM, T.7S., R.21W., NE\1/4\
SW\1/4\ Sec. 8.
m. Little Blue Creek for approximately 4.5 km (2.8 mi),
extending from the confluence with the Blue River in GSRM, T.1S.,
R.31E., center Sec. 5 upstream to the mouth of a box canyon in GSRM,
T.1N., R.31E., NE\1/4\ SE\1/4\ Sec. 29.

[[Page 24371]]

[GRAPHIC] [TIFF OMITTED] TR25AP00.016

[[Page 24372]]

Complex 7. Grant and Catron Counties, New Mexico.

a. Gila River for approximately 164.4 km (102.2 mi), extending
from the confluence with Moore Canyon in NMPM, T.18S., R.21W., SE\1/
4\ SW\1/4\ Sec. 31 upstream to the confluence of the East and West
Forks of the Gila River in NMPM, T.13S., R.13W., center Sec. 8.
b. East Fork Gila River for approximately 42.1 km (26.1 mi),
extending from the confluence with the West Fork Gila River in NMPM,
T.13S., R.13W., center Sec. 8 upstream to the confluence of Beaver
and Taylor Creeks in NMPM, T.11S., R.12W., NE\1/4\ Sec. 17.
c. Middle Fork Gila River for approximately 19.1 km (11.8 mi),
extending from the confluence with the West Fork Gila River in NMPM,
T.12S., R.14W., SW\1/4\ Sec. 25 upstream to the confluence with
Brothers West Canyon in NMPM, T.11S., R.14W., NE\1/4\ Sec. 33.
d. West Fork Gila River for approximately 12.4 km (7.7 mi),
extending from the confluence with the East Fork Gila River in NMPM,
T.13S., R.13W., center Sec. 8 upstream to the confluence with EE
Canyon in NMPM, T.12S., R.14W., east boundary of Sec. 21.
[GRAPHIC] [TIFF OMITTED] TR25AP00.017

Dated: April 18, 2000.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-10202 Filed 4-21-00; 8:45 am]
BILLING CODE 4310-55-P