Department of the Interior · loach minnow on March 8, 1994 (59 FR 10906 and 10898 respectively)....

Tuesday,

April 25, 2000

Part V

Department of theInteriorFish and Wildlife Service

50 CFR Part 17Endangered and Threatened Wildlife andPlants; Final Designation of CriticalHabitat for the Spikedace and the LoachMinnow; Final Rule

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24328 Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF76

Endangered and Threatened Wildlifeand Plants; Final Designation ofCritical Habitat for the Spikedace andthe Loach Minnow

AGENCY: Fish and Wildlife Service,Interior.ACTION: Final rule.

SUMMARY: We, the U.S. Fish andWildlife Service (Service), designatecritical habitat pursuant to theEndangered Species Act of 1973, asamended (Act), for the spikedace (Medafulgida) and the loach minnow (Tiaroga(= Rhinichthys) cobitis).

We are designating occupied andunoccupied habitat that is essential forthe recovery of these two species. Weare designating as critical habitat a totalof approximately 1,448 kilometers (km)(898 miles (mi)) of rivers and creeks forthe two species. All of the total area isdesignated as critical habitat for theloach minnow, and approximately 1,302km (807 mi) of that area is alsodesignated as critical habitat for thespikedace. Critical habitat includesportions of the Gila, San Francisco,Blue, Black, Verde, and San PedroRivers, and some of their tributaries, inApache, Cochise, Gila, Graham,Greenlee, Pima, Pinal, and YavapaiCounties in Arizona; and Catron, Grant,and Hidalgo Counties in New Mexico.Critical habitat includes the streamchannels within the identified streamreaches and areas within these reachespotentially inundated by high flowevents. These habitat areas provide forthe physiological, behavioral, andecological features (primary constituentelements) essential for the conservationof the spikedace and the loach minnow.Federal agencies proposing, authorizing,or funding actions that may affect theareas designated as critical habitat mustconsult with us on the effects of theproposed actions, pursuant to section7(a)(2) of the Act.DATES: The effective date of this rule isMay 25, 2000.ADDRESSES: You may inspect thecomplete file for this rule at the ArizonaEcological Services Office, U.S. Fish andWildlife Service, 2321 W. Royal PalmRoad, Suite 103, Phoenix, Arizona85021, by appointment, during normalbusiness hours.FOR FURTHER INFORMATION CONTACT: PaulBarrett, Arizona Ecological Services

Office, at the above address; telephone602/640–2720, facsimile 602/640–2730.SUPPLEMENTARY INFORMATION:

Background

SpikedaceThe spikedace is a small, slim fish

less than 80 millimeters (mm) (3 inches(in)) long. It is characterized by verysilvery sides and by spines in the dorsaland pelvic fins (Minckley 1973). Thisspecies is found in moderate to largeperennial streams, where it inhabitsshallow riffles with sand, gravel, andrubble substrates, and moderate to swiftcurrents and swift pools over sand orgravel substrates (Barber et al. 1970;Propst et al. 1986; Rinne 1991). Specifichabitat for this species consists of shearzones where rapid flow borders slowerflow, areas of sheet flow at the upperends of mid-channel sand/gravel bars;and eddies at downstream riffle edges(Propst et al. 1986; Rinne and Kroeger1988). Recurrent flooding and a naturalhydrograph (physical conditions,boundaries, flow, and relatedcharacteristics of waters) are veryimportant in maintaining the habitat ofspikedace and in helping the speciesmaintain a competitive edge overinvading nonnative aquatic species(Propst et al. 1986; Minckley and Meffe1987).

The spikedace was first collected in1851 from the Rio San Pedro in Arizonaand was described from thosespecimens in 1856 by Girard. It is theonly species in the genus Meda. Thespikedace was once commonthroughout much of the Gila Riverbasin, including the mainstem GilaRiver upstream of Phoenix, and theVerde, Agua Fria, Salt, San Pedro, andSan Francisco subbasins. It occupiessuitable habitat in both the mainstreamreaches and moderate-gradientperennial tributaries, up to about 2,000meters (m) (6,500 feet(ft)) elevation(Miller 1960; Chamberlain 1904; Gilbertand Scofield 1898; Cope and Yarrow1875).

Habitat destruction and competitionand predation by nonnative aquaticspecies have severely reduced its rangeand abundance. It is now restricted toapproximately 466 km (289 mi) ofstream in portions of the upper GilaRiver (Grant, Catron, and HidalgoCounties, NM); middle Gila River (PinalCounty, AZ); lower San Pedro River(Pinal County, AZ); Aravaipa Creek(Graham and Pinal Counties, AZ); EagleCreek (Graham and Greenlee Counties,AZ); and the Verde River (YavapaiCounty, 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 Rinne1996; Sublette et al. 1990). Its presentrange is only about 10–15 percent of thehistorical range and the status of thespecies within occupied areas rangesfrom common to very rare. At present,the species is common only in AravaipaCreek and some parts of the upper GilaRiver in New Mexico.

Loach MinnowThe loach minnow is a small, slender,

elongated fish less than 80 mm (3 in)long. It is olivaceous in color andstrongly blotched with darker pigment.The mouth is oblique (slanting) andterminal, and the eyes are markedlydirected upward (Minckley 1973). Thisspecies is found in small to largeperennial streams, and uses shallow,turbulent riffles with primarily cobblesubstrate and swift currents (Minckley1973; Propst and Bestgen 1991; Rinne1989; Propst et al. 1988). The loachminnow uses the spaces between, andin the lee of (sheltered side), largersubstrate for resting and spawning. It israre or absent from habitats where finesediments fill the interstitial spaces(small, narrow spaces between rocks orother substrate) (Propst and Bestgen1991). Recurrent flooding and a naturalhydrograph are very important inmaintaining the habitat of loachminnow and in helping the speciesmaintain a competitive edge overinvading nonnative aquatic species(Propst et al. 1986; Propst and Bestgen1991).

The loach minnow was first collectedin 1851 from the Rio San Pedro inArizona and was described from thosespecimens in 1865 by Girard. The loachminnow was once locally commonthroughout much of the Gila Riverbasin, including the mainstem GilaRiver upstream of Phoenix, and theVerde, Salt, San Pedro, and SanFrancisco subbasins. It occupies suitablehabitat in both the mainstream reachesand moderate-gradient perennialtributaries, up to about 2,500 m (8,200ft) elevation. Habitat destruction andcompetition and predation by nonnativeaquatic species have severely reducedits range and abundance. It is nowrestricted to approximately 676 km (419mi) of stream in portions of the upperGila River (Grant, Catron, and HidalgoCounties, NM); the San Francisco andTularosa Rivers and their tributariesNegrito and Whitewater Creeks (CatronCounty, NM); the Blue River and itstributaries Dry Blue, Campbell Blue,Little Blue, Pace, and Frieborn Creeks(Greenlee County, AZ and CatronCounty, NM); Aravaipa Creek and itstributaries Turkey and Deer Creeks(Graham and Pinal Counties, AZ); Eagle


24329Federal Register / Vol. 65, No. 80 / Tuesday, April 25, 2000 / Rules and Regulations

Creek (Graham and Greenlee Counties,AZ); the White River (Apache, Gila, andNavajo Counties, AZ); and the BlackRiver (Apache and Greenlee Counties,AZ) (Bagley et al. 1998; Bagley et al.1996; Barber and Minckley 1966;Bettaso et al. 1995; Britt 1982; Leon1989; Marsh et al. 1990; Propst 1996;Propst and Bestgen 1991; Propst et al.1985; Springer 1995). The present rangeis only 15–20 percent of its historicalrange, and the status of the specieswithin occupied areas ranges fromcommon to very rare. At present, thespecies is common only in AravaipaCreek, the Blue River, and limitedportions of the San Francisco, upperGila, and Tularosa Rivers in NewMexico.

Previous Federal ActionsThe spikedace was included as a

Category 1 candidate species in ourDecember 30, 1982, Vertebrate Notice ofReview (47 FR 58454). Category 1included those taxa for which we hadsubstantial biological information tosupport listing the species asendangered or threatened. We werepetitioned on March 14, 1985, by theAmerican Fisheries Society (AFS) andon March 18, 1985, by the Desert FishesCouncil (DFC) to list the spikedace asthreatened. Because the species wasalready under active petition by AFS,the DFC petition was considered a letterof comment. Our evaluation of the AFSpetition revealed that the petitionedaction was warranted, and we publisheda proposed rule to list this species asthreatened with critical habitat on June18, 1985 (50 FR 25390). We publishedthe final rule listing the spikedace as athreatened species on July 1, 1986 (51FR 23769). We did not finalize theproposed critical habitat designation atthe time of listing but postponed thedesignation to allow us to gather andanalyze economic data, in compliancewith section 4(b)(2) of the Act.

We included the loach minnow as aCategory 1 candidate species in theDecember 30, 1982, Vertebrate Notice ofReview (47 FR 58454). On June 18, 1985(50 FR 25380) we published a proposedrule to list this species as threatenedwith critical habitat. We published thefinal rule listing the loach minnow as athreatened species on October 28, 1986(51 FR 39468). We did not finalize theproposed critical habitat designation atthe time of listing but postponed thedesignation to allow us to gather andanalyze economic data.

Section 4(a)(3) of the Act requiresthat, to the maximum extent prudentand determinable, the Secretarydesignate critical habitat at the time aspecies is determined to be endangered

or threatened. Our regulations (50 CFR424.12(a)(2)) state that critical habitat isnot determinable if informationsufficient to perform required analysesof the impacts of the designation islacking or if the biological needs of thespecies are not sufficiently well knownto permit identification of an area ascritical habitat. At the time of listing ofthe spikedace and loach minnow, wefound that critical habitat was notdeterminable because we hadinsufficient information to perform therequired analyses of the impacts of thedesignation. As part of a settlementorder of January 18, 1994, in GreaterGila Biodiversity Project v. U.S. Fishand Wildlife Service, CIV 93–1913 PHX/PGR, we finalized the critical habitatdesignations for both the spikedace andloach minnow on March 8, 1994 (59 FR10906 and 10898 respectively).

Critical habitat for spikedace andloach minnow was set aside by courtorder in Catron County Board ofCommissioners, 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 citedour failure to analyze the effects ofcritical habitat designation under theNational Environmental Policy Act(NEPA) as its basis for setting asidecritical habitat for the two species. TheUnited States District Court for theDistrict of Arizona recognized the effectof the Catron County ruling as a matterof comity (recognition given by thecourts of one state or jurisdiction of thelaws and judicial decisions of another)in the Southwest Center for BiologicalDiversity 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 habitatdescription for spikedace and loachminnow from the Code of FederalRegulations on March 25, 1998 (63 FR14378).

On September 20, 1999, the UnitedStates District Court for the District ofNew Mexico, Southwest Center forBiological Diversity v. Clark, CIV 98–0769 M/JHG, ordered us to completedesignation of critical habitat for thespikedace and loach minnow byFebruary 17, 2000. On October 6, 1999,the court amended the September 20,1999 order to require us to make acritical habitat determination ratherthan requiring actual designation. Wepublished our proposed rule todesignate critical habitat in the FederalRegister on December 10, 1999 (64 FR69324).

On December 22, 1999, the courtextended the deadline to complete ourdetermination until April 21, 2000.Information regarding public

notifications on the extension andhearing are given in the Summary ofComments and Recommendationssection later in this rule.

We completed final recovery plans forspikedace and loach minnow in 1991(Service 1991a, 1991b). We developedthose plans with the assistance of theDesert Fishes Recovery Team and otherbiologists familiar with the species. Thisrule is based, in part, onrecommendations offered in thoserecovery plans.

Critical HabitatCritical habitat is defined in section

3(5)(A) of the Act as—(i) the specificareas within the geographic areaoccupied by a species, at the time it islisted in accordance with the Act, onwhich are found those physical orbiological features (I) essential to theconservation of the species and (II) thatmay require special managementconsiderations or protection and; (ii)specific areas outside the geographicarea occupied by a species at the timeit is listed, upon a determination thatsuch areas are essential for theconservation of the species. The term‘‘conservation,’’ as defined in section3(3) of the Act, means ‘‘to use and theuse of all methods and procedureswhich are necessary to bring anyendangered species or threatenedspecies to the point at which themeasures provided pursuant to this Actare no longer necessary’’ (i.e., thespecies is recovered and removed fromthe list of endangered and threatenedspecies).

Section 4(b)(2) of the Act requires thatwe base critical habitat proposals uponthe best scientific and commercial dataavailable, taking into consideration theeconomic impact, and any otherrelevant impact, of specifying anyparticular area as critical habitat. Wemay exclude areas from critical habitatdesignation if we determine that thebenefits of exclusion outweigh thebenefits of including the areas as criticalhabitat, provided the exclusion will notresult in the extinction of the species. Adiscussion of our analysis under 4(b)(2)of the Act is provided in the Exclusionfor Economic and Other RelevantImpacts section of this final rule.

Critical Habitat DesignationIn designating critical habitat for

spikedace and loach minnow, wereviewed the overall approach to theconservation of the species since thespecies’ listing in 1986. Additionally,we solicited information fromknowledgeable biologists andrecommendations from the DesertFishes Recovery Team. We also



reviewed the available informationpertaining to habitat requirements of thetwo species, including public commentsand other material received duringcritical habitat proposals and previousdesignations.

We also considered the measuresidentified as necessary for recovery, asoutlined in the species’ recovery plans.Due to the need for additionalinformation on the two species, habitats,threats, controllability of threats,restoration potentials, and other factors,no quantitative criteria for delistingspikedace and loach minnow were setforth in the recovery plans. However,the recovery plans recommendprotection of existing populations,enhancement and restoration of habitatsoccupied by depleted populations, andreestablishment of the two species intoselected streams within their historicalranges.

Both recovery plans recommenddesignation of critical habitat for allstream reaches proposed as criticalhabitat in 1985, plus consideration ofadditional stream reaches. Except forEagle Creek, the recovery plans do notidentify the specific stream reaches tobe considered for critical habitatdesignation due to the lack ofinformation available at that time tosupport such identifications. Therecovery plans do identify potentialareas for reestablishment of spikedaceand loach minnow including the SanPedro River and its tributaries, the SanFrancisco River, Mescal Creek (a middleGila River tributary), and Bonita Creek.The recovery plans also recommendevaluation and selection of otherpotential sites. Recovery Teamdiscussions since 1991 identified theneed for critical habitat designation inHot Springs and Redfield Canyons;Aravaipa, Eagle, Bonita, Beaver, WestClear, Campbell Blue, and Dry BlueCreeks; and the Gila, Verde, San Pedro,San Francisco, Blue, Tularosa, andWhite Rivers.

The designated critical habitatdescribed below constitutes our bestassessment of areas needed for theconservation of spikedace and loachminnow and is based on the bestscientific and commercial informationavailable. The designated areas areessential to the conservation of thespecies because they either currentlysupport populations of spikedace and/orloach minnow, or because theycurrently have, or have the potential fordeveloping, the necessary requirementsfor survival, growth, and reproductionof the spikedace and/or loach minnow(see description of primary constituentelements, below). All of the designatedareas require special management

consideration and protection to ensuretheir contribution to the species’recovery.

Because of these species’ precariousstatus, mere stabilization of spikedaceand loach minnow at their presentlevels will not achieve conservation.Recovery through protection andenhancement of the existingpopulations, plus reestablishment ofpopulations in suitable areas ofhistorical range, are necessary for theirsurvival. The recovery plans for bothspecies state, ‘‘One of the most criticalgoals to be achieved toward recovery isestablishment of secure self-reproducingpopulations in habitats from which thespecies has been extirpated’’ (Service1991a, 1991b). We, therefore, determinethat the unoccupied areas designated ascritical habitat are essential for theconservation of the species.

Important factors we considered inselecting areas designated in this ruleinclude specific geographic area orcomplex of areas factors, such as size,connectivity, and habitat diversity, aswell as rangewide recoveryconsiderations such as genetic diversityand representation of all major portionsof the species’ historical ranges. Wedesignated critical habitat complexes ofsufficient size to provide habitat forspikedace and/or loach minnowpopulations large enough to be self-sustaining over time, despitefluctuations in local conditions so thatrecovery of these species is possible.

The ability of the fish to repopulateareas where they are depleted orextirpated is vital to recovery. Eachcomplex contains interconnected watersso that spikedace and loach minnow canmove between areas, at least duringcertain flows or seasons. Somecomplexes include stream reaches thatdo not have substantial spikedace- orloach minnow-specific habitat, butwhich provide migration corridors aswell as play a vital role in the overallhealth of the aquatic ecosystem and,therefore, the integrity of upstream anddownstream spikedace and loachminnow habitats. Each complexincludes habitat with a moderate to highdegree of complexity, thus providingsuitable habitat for all life stages ofspikedace and loach minnow under awide range of habitat fluctuations.

The areas we selected for criticalhabitat designation include populationscontaining all known remaining geneticdiversity within the two species, withthe possible exception of the fish oncertain tribal lands, which we believeare capable of persistence withoutcritical habitat designation (seediscussion under American IndianTribal Rights, Federal-Tribal Trust

Responsibilities, and the EndangeredSpecies Act later in this rule). Areasselected for critical habitat designationinclude a representation of each majorsubbasin in the historical ranges of thespecies.

The designation includes all currentlyknown populations of spikedace andloach minnow, except those on triballands. Uncertainty on upstream anddownstream distributional limits ofsome populations may result in smallareas of occupied habitat beingexcluded from the designation.However, based on the best availablescientific information, we believe theareas included in this designation willbe sufficient to conserve both species.

In order to provide for geneticvariability for the loach minnow, thedesignation includes at least oneremnant population for each majorsubbasin except the Verde subbasin,from which it has been completelyextirpated. For spikedace, no remnantpopulations exist in the Agua Fria, Salt,and San Francisco/Blue subbasins. Inthose subbasins where no populationsof spikedace or loach minnow currentlyexist, designated critical habitatincludes currently unoccupied areasthat have the potential and areimportant for restoration of the species,with the exception of the Agua Friasubbasin where no suitable areas areknown to remain.

The inclusion of both occupied andcurrently unoccupied areas in thedesignated critical habitat for spikedaceand loach minnow is in accordancewith section 3(5)(A)(i) of the Act, whichprovides that areas outside thegeographical area currently occupied bythe species may meet the definition ofcritical habitat upon a determinationthat they are essential for theconservation of the species. Bothspikedace and loach minnow are indanger of extinction, and their status isdeclining. In 1994, we determined thatreclassification of spikedace and loachminnow from threatened to endangeredwas warranted; however,reclassification was precluded by otherhigher priority listing actions (59 FR35303–35304). Although additionalpopulations of loach minnow have beenfound since that time, they are smalland their contribution to the status ofthe species is offset by declines in otherpopulations. It is essential to protect alldesignated occupied areas as well asdesignated unoccupied areas that willprovide habitat for reestablishment ofthe two species.

Both of the 1986 listing rules forspikedace and loach minnowconservatively estimated about 2,600km (1,600 mi) of stream within the



species’ historical ranges. Using newertechniques, a more current estimate isapproximately 3,000 km (1,800 mi).This critical habitat designationincludes approximately half thatamount for loach minnow and less thanhalf for spikedace. Although this is lessthan the historical ranges for bothspecies, we believe that maintenance ofviable spikedace and loach minnowpopulations within the designated areascan achieve recovery of these species.

For each stream reach designated, theup-and downstream-boundaries aredescribed below. Critical habitatincludes the stream channels within theidentified stream reaches and areaswithin these reaches potentiallyinundated during high flow events.Where delineated, this will be the 100-year floodplain of the designatedwaterways as defined by the U.S. ArmyCorps of Engineers (COE). In areaswhere the 100-year floodplain has notbeen delineated or it is in dispute, thepresence of alluvial soils (soilsdeposited by streams), obligate andfacultative riparian vegetation (requiringand usually occurring in wetlands,respectively), abandoned river channels,or known high water marks can be usedto determine the extent of thefloodplain. This proposal takes intoaccount the naturally dynamic nature ofriverine systems and recognizes thatfloodplains are an integral part of thestream ecosystem. A relatively intactfloodplain, along with the periodicflooding in a relatively natural pattern,are important elements necessary forlong-term survival and recovery ofspikedace and loach minnow. Amongother things, the floodplain and itsriparian vegetation provide space fornatural flooding patterns and latitudefor necessary natural channeladjustments to maintain appropriatechannel morphology and geometry,provide nutrient input and bufferingfrom sediment and pollutants, storewater for slow release to maintain baseflows, and provide protected sidechannels and other protected areas forlarval and juvenile spikedace and loachminnow.

Within the delineated critical habitatboundaries, only lands containing, orwhich have the potential to develop,those habitat components that areessential for the primary biologicalneeds of the species are consideredcritical habitat. Existing human-constructed features and structureswithin this area, such as buildings,roads, railroads, and other features, donot contain, and do not have thepotential to develop, those habitatcomponents and are not consideredcritical habitat.

Unless otherwise indicated, thefollowing areas are designated as criticalhabitat for both spikedace and loachminnow (see the RegulationPromulgation section of this rule forexact descriptions of boundaries). Thedesignation includes portions of 24 and36 streams for spikedace and loachminnow, respectively; however,individual streams are not isolated, butare connected with others to form areasor ‘‘complexes.’’ The complexes includethose that currently support populationsof the fishes, as well as some currentlyunoccupied by the species, but whichare considered essential forreestablishing populations to achieverecovery. The distances and conversionsbelow are approximate; more preciseestimates are provided in the RegulationPromulgation section of this rule.

1. Verde River complex, YavapaiCounty, Arizona. The Verde Rivercomplex is currently occupied byspikedace. Its tributary streams arebelieved to be currently unoccupied byeither species. The Verde River complexis unusual in that a relatively stablethermal and hydrologic regime is foundin the upper river and in Fossil Creek.Also, spikedace in the Verde River aregenetically (Tibbets 1993) andmorphologically (Anderson andHendrickson 1994) distinct from allother spikedace populations. Thecontinuing presence of spikedace andthe existence of suitable habitat create ahigh potential for restoration of loachminnow to the Verde system.

a. Verde River—171 km (106 mi) ofriver extending from the confluencewith Fossil Creek upstream to SullivanDam, but excluding lands belonging tothe Yavapai Apache Tribe. SullivanDam is at the upstream limit ofperennial flow in the mainstem VerdeRiver. Perennial flow results from aseries of river-channel springs and fromGranite Creek. Below Fossil Creek, theVerde River has a larger flow and wasthought at the time of the proposal tooffer little suitable habitat for spikedaceor loach minnow. However, this ishistorical range for both species andcomments from the U.S. Forest Service(USFS) indicate this stretch of the rivermay offer substantial value forspikedace and loach minnow recovery.We will seek further informationregarding the role of this portion of theVerde River for the species and mayconsider its designation in futurepotential revisions of the critical habitat.

b. Fossil Creek—8 km (5 mi) of creekextending from the confluence with theVerde River upstream to the confluencewith an unnamed tributary. The lowerportion of Fossil Creek contains allelements of spikedace and loach

minnow habitat at present, exceptsufficient discharge. Discharge iscurrently diverted for hydropowergeneration at the Childs/IrvingHydropower site. However, operators ofthe Childs/Irving Hydropower projecthave agreed to provide enhanced flowsinto lower Fossil Creek, although theamount of that flow restoration is stillunder negotiation.

c. West Clear Creek—12 km (7 mi) ofcreek extending from the confluencewith the Verde River upstream to theconfluence with Black MountainCanyon. The lower portion of WestClear Creek was historically known tosupport the spikedace and containssuitable, although degraded, habitat forthe fishes. Gradient and channelmorphology changes above BlackMountain Canyon make the upstreamarea unsuitable for either species.

d. Beaver/Wet Beaver Creek—33 km(21 mi) of creek extending from theconfluence with the Verde Riverupstream to the confluence with CasnerCanyon. Beaver Creek, and its upstreamextension in Wet Beaver Creek,historically supported spikedace andloach minnow and contains suitable,although degraded, habitat. AboveCasner Canyon, gradient and channelmorphology changes make the streamunsuitable for either species.

e. Oak Creek—54 km (34 mi) of creekextending from the confluence with theVerde River upstream to the confluencewith an unnamed tributary (near theYavapai/Coconino County boundary).The lower portion of Oak Creek is partof the historical range of the two speciesand contains suitable, althoughdegraded, habitat. Above the unnamedtributary, the creek becomes unsuitablefor either species due to urban andsuburban development and toincreasing gradient and substrate size.

f. Granite Creek—2.3 km (1.4 mi) ofcreek extending from the confluencewith the Verde River upstream to aspring. Below the spring, whichsupplies much of the base flow ofGranite Creek, there is suitable habitatfor loach minnow. As a perennialtributary of the upper Verde River,Granite Creek is considered animportant expansion area for spikedacerecovery.

2. Black River complex, Apache andGreenlee Counties, Arizona. In responseto comments received on the suitabilityof this complex, we have not designatedany areas within the complex as criticalhabitat for spikedace. The basis for thisdeletion from the proposed rule isbiological, given that spikedace are notknown to historically occupy areas atthis elevation. However, the data onmaximum elevation for spikedace are



not definitive and if informationbecomes available that differs from thatcurrently available, the Black Rivercomplex may be reevaluated forspikedace critical habitat designation.The Salt River subbasin is a significantportion of spikedace historical rangeand has no existing population ofspikedace. Large areas of the subbasinare unsuitable, either because oftopography or because of reservoirs,stream channel alteration by humans, oroverwhelming nonnative speciespopulations.

The Salt River subbasin is asignificant portion of loach minnowhistorical range, but loach minnow havebeen extirpated from all but a smallportion in the Black and White Rivers.As the only remaining population ofloach minnow on public lands in theSalt River basin, the Black Rivercomplex is considered vital to survivaland recovery of the species.

a. East Fork Black River—Loachminnow only: 8 km (5 mi) of riverextending from the confluence with theWest Fork Black River upstream to theconfluence with Deer Creek. This area isoccupied by loach minnow, althoughthe downstream extent of thepopulation is not well known. Thispopulation was only discovered in1996.

b. North Fork of the East Fork BlackRiver—Loach minnow only: 18 km (11mi) of river extending from theconfluence with Deer Creek upstream tothe confluence with an unnamedtributary. This area is occupied by loachminnow, although the upstream portionof the population is not well known.Above the unnamed tributary, the riverhas finer substrate and lacks rifflehabitat, making it unsuitable for loachminnow.

c. Beyond Creek—Loach minnowonly: 2.3 km (1.4 mi) of creek extendingfrom the confluence with the East ForkBlack River upstream to the confluencewith an unnamed tributary. Althoughno loach minnow have been found inBoneyard Creek, they are probablypresent based on the pattern ofoccupation of lower portions of smalltributaries in other parts of the loachminnow range.

d. Coyote Creek—Loach minnowonly: 3 km (2 mi) of creek extendingfrom the confluence with the East ForkBlack River upstream to the confluencewith an unnamed tributary. Loachminnow are thought to use the lowerportion of this creek as part of thepopulation in the East Fork Black River.

e. West Fork Black River—Loachminnow only: 10 km (6 mi) of riverextending from the confluence with theEast Fork Black River upstream to the

confluence with Hay Creek. Above HayCreek, the gradient and channelmorphology are unsuitable for loachminnow. The West Fork Black River isnot known to be occupied by loachminnow at present. However, it isconsidered important for conservationof the Black River remnant of the SaltRiver subbasin population.

3. Tonto Creek complex, Gila County,Arizona. Spikedace are known to haveoccupied Tonto Creek, and loachminnow are presumed to have done soalthough no records exist. Suitablehabitat still exists, although degradationhas occurred due to watershed uses,water diversion, agriculture, roads, andnonnative species introduction. Thepresence of substantial areas of USFSlands make this one of the mostpromising areas for reestablishment ofspikedace and loach minnow in the SaltRiver subbasin.

a. Tonto Creek—Spikedace: 47 km (29 mi) of creek

extending from the confluence withGreenback Creek upstream to theconfluence with Houston Creek. Theinfluence of Roosevelt Lake belowGreenback Creek, and gradient andsubstrate changes above Houston Creek,make these reaches unsuitable forspikedace.

Loach minnow: 70 km (44 mi) ofcreek extending from the confluencewith Greenback Creek upstream to theconfluence with Haigler Creek. Theinfluence of Roosevelt Lake aboveGreenback Creek and changes inchannel morphology above HaiglerCreek make those portions of the streamunsuitable for loach minnow.

b. Greenback Creek—(8 mi) of creekextending from the confluence withTonto Creek upstream to Lime Springs.

c. Rye Creek—2.1 km (1.3 mi) of creekextending from the confluence withTonto Creek upstream to the confluencewith Brady Canyon. This area of RyeCreek still supports a native fishcommunity indicating high potential forspikedace and loach minnowreestablishment.

4. Middle Gila/Lower San Pedro/Aravaipa Creek complex, Pinal andGraham Counties, Arizona. Thiscomplex is occupied by spikedace withits population status ranging from rareto common. Aravaipa Creek supportssome of the best and most protectedspikedace and loach minnowpopulations due to special usedesignations on Bureau of LandManagement (BLM) land, substantialownership by The Nature Conservancy,and planned construction of fishbarriers to prevent invasion ofnonnative fish species. Enhancement ofdownstream habitats in the San Pedro

and Gila Rivers would contributesubstantially to recovery of thesespecies.

a. Gila River—63 km (39 mi) of riverextending from Ashurst-Hayden Damupstream to the confluence with the SanPedro River. A small population ofspikedace currently occupies this area.At Ashurst-Hayden Dam, all water isdiverted into a canal. Above theconfluence with the San Pedro River,flow in the Gila River is highlyregulated by San Carlos Dam andbecomes marginally suitable for eitherspecies. Below the confluence, the inputof the San Pedro provides a sufficientlyunregulated hydrograph which is aprimary constituent element of loachminnow and spikedace critical habitat.

b. San Pedro River—21 km (13 mi) ofriver extending from the confluencewith the Gila River upstream to theconfluence with Aravaipa Creek. Thisarea is currently occupied by spikedace.It provides an important connectionbetween the existing population ofloach minnow in Aravaipa Creek andthe recovery habitat in the Gila River.Existing flow in the river comesprimarily from surface and subsurfacecontributions from Aravaipa Creek.

c. Aravaipa Creek—45 km (28 mi) ofcreek extending from the confluencewith the San Pedro River upstream tothe confluence with Stowe Gulch.Aravaipa Creek supports a substantialpopulation of spikedace and loachminnow. Stowe Gulch is the upstreamlimit of sufficient perennial flow foreither species.

d. Turkey Creek—Loach minnowonly: 4 km (3 mi) of creek extendingfrom the confluence with AravaipaCreek upstream to the confluence withOak Grove Canyon. This creek isoccupied by loach minnow. Asubstantial portion of the flow in TurkeyCreek comes from the Oak GroveCanyon tributary.

e. Deer Creek—Loach minnow only: 4km (3 mi) of creek extending from theconfluence with Aravaipa Creekupstream to the boundary of theAravaipa Wilderness. This stream isoccupied by loach minnow. Suitablehabitat extends to the Wildernessboundary.

5. Middle-Upper San Pedro Rivercomplex, Cochise, Graham, and PimaCounties, Arizona. None of the habitatin this complex is currently occupied byspikedace or loach minnow. However,the San Pedro River is the type localityof spikedace (locality where anindividual of a new species is foundthat is chosen to serve as the basis fordescribing a new species or variety), andthis complex contains importantrestoration areas.



a. San Pedro River—74 km (46 mi) ofriver extending from the confluencewith Alder Wash (near Redfield)upstream to the confluence with AshCreek (near the Narrows). This middleportion of the river is expected to haveincreasing surface flow due torestoration activities, including riparianand channel restoration, watershedimprovements, and groundwaterpumping reductions.

b. Redfield Canyon—22 km (14 mi) ofcreek extending from the confluencewith the San Pedro River upstream tothe confluence with Sycamore Canyon.Above Sycamore Canyon, permanentwater becomes too scarce, and thehabitat becomes unsuitable.

c. Hot Springs Canyon—19 km (12 mi)of creek extending from the confluencewith the San Pedro River upstream tothe confluence with Bass Canyon. HotSprings Canyon is currently unoccupiedbut contains suitable habitat forrestoration of spikedace and loachminnow.

d. Bass Canyon—5 km (3 mi) of creekextending from the confluence with HotSprings Canyon upstream to theconfluence with Pine Canyon. BassCanyon is an extension of the HotSprings Canyon habitat.

e. San Pedro River—60 km (37 mi) ofriver extending from the confluencewith the Babocomari River upstream tothe U.S./Mexico border. Althoughcurrently unoccupied, this area isidentified in BLM (1993) planningdocuments as a restoration area forspikedace and loach minnow.

6. Gila Box/San Francisco Rivercomplex, Graham and GreenleeCounties, Arizona and Catron County,New Mexico. The only spikedacepopulation remaining in the complex isin Eagle Creek. Substantial restorationpotential for spikedace exists in theremainder of the complex. This complexhas the largest area of habitat suitablefor spikedace restoration.

Most of this complex is occupied byloach minnow, although the statusvaries substantially from one portion toanother. Only Bonita Creek, Little BlueCreek, and the Gila River are currentlyunoccupied. The Blue River system andadjacent portions of the San FranciscoRiver are the longest stretch of occupiedloach minnow habitat unbroken by largeareas of unsuitable habitat. Managementof Federal lands and resources in theGila Box, Bonita Creek, and the BlueRiver are highly compatible withrecovery goals, giving restoration ofspikedace and loach minnow in thiscomplex a high likelihood of success.

a. Gila River—36 km (23 mi) of riverextending from the Brown Canaldiversion, at the head of the Safford

Valley, upstream to the confluence withOwl Canyon, at the upper end of theGila Box. The Gila Box is not known tocurrently support spikedace, but isconsidered to have a high potential forrestoration of both species. Both aboveand below the Gila Box, the Gila Riveris highly modified by agriculture,diversions, and urban development.

b. Bonita Creek—24 km (15 mi) ofcreek extending from the confluencewith the Gila River upstream to theconfluence with Martinez Wash. BonitaCreek has suitable habitat for spikedaceand loach minnow. Bonita Creek aboveMartinez Wash lies on the San CarlosApache Reservation, which is excludedfrom this designation.

c. Eagle Creek—73 km (45 mi) of creekextending from the Phelps-DodgeDiversion Dam upstream to theconfluence of Dry Prong and East EagleCreeks, but excluding lands of the SanCarlos Apache Reservation. Because thecreek repeatedly flows from private orUSFS lands into the San Carlos ApacheReservation and back, it is difficult toseparately calculate stream mileages ontribal lands. Therefore, the abovemileage covers the entire streamsegment and is not corrected for tribalexclusions. Eagle Creek supports a smallpopulation of spikedace. Below thePhelps-Dodge Diversion Dam the creekis often dry; however commentsreceived on the proposed rule suggestthe stretch of Eagle Creek below the dammay offer sufficient connective valueand habitat value to justify its inclusionin critical habitat. This area may beconsidered for critical habitat in futurerevisions of this designation.

d. San Francisco River—Spikedace: 182 km (113 mi) of river

extending from the confluence with theGila River upstream to the confluencewith the Tularosa River. Habitat abovethe Tularosa River does not appearsuitable for spikedace. The SanFrancisco River was historicallyoccupied by spikedace and is importanthabitat for restoration of the species.

Loach minnow: 203 km (126 mi) ofriver extending from the confluencewith the Gila River upstream to themouth of The Box, a canyon above thetown of Reserve. Loach minnow in theSan Francisco River vary from commonto rare throughout the length of theriver.

e. Tularosa River—Loach minnowonly: 30 km (19 mi) of river extendingfrom the confluence with the SanFrancisco River upstream to the town ofCruzville. Above Cruzville, the habitatbecomes unsuitable due to the smallsize of the stream and a predominanceof fine substrates.

f. Negrito Creek—Loach minnow only:7 km (4 mi) of creek extending from theconfluence with the San Francisco Riverupstream to the confluence with CercoCanyon. Above this area, gradient andchannel morphology make the creekunsuitable for loach minnow.

g. Whitewater Creek—Loach minnowonly: 2 km (1 mi) of creek extendingfrom the confluence with the SanFrancisco River upstream to theconfluence with Little WhitewaterCreek. Upstream gradient and channelchanges make the portion above LittleWhitewater Creek unsuitable for loachminnow.

h. Blue River—82 km (51 mi) of riverextending from the confluence with theSan Francisco River upstream to theconfluence of Campbell Blue and DryBlue Creeks. The Blue River is currentlyoccupied by loach minnow but notcurrently occupied by spikedace, butplanning among several State andFederal agencies for restoration of nativefishes in the Blue River is under way.

i. Campbell Blue Creek—13 km (8 mi)of creek extending from the confluenceof Dry Blue and Campbell Blue Creeksupstream to the confluence withColeman Canyon. Above ColemanCanyon, the creek changes and becomessteeper and rockier, making itunsuitable for spikedace or loachminnow.

j. Dry Blue Creek—Loach minnowonly: 5 km (3 mi) of creek extendingfrom the confluence with Campbell BlueCreek upstream to the confluence withPace Creek.

k. Pace Creek—Loach minnow only:1.2 km (0.8 mi) of creek extending fromthe confluence with Dry Blue Creekupstream to a barrier falls.

l. Frieborn Creek—Loach minnowonly: 1.8 km (1.1 mi) of creek extendingfrom the confluence with Dry BlueCreek upstream to an unnamedtributary.

m. Little Blue Creek—5 km (3 mi) ofcreek extending from the confluencewith the Blue River upstream to themouth of a box canyon. Little BlueCreek is not currently occupied byspikedace or loach minnow, butcontains suitable habitat and isconsidered an important restoration areafor both species.

7. Upper Gila River complex, Grant,Catron, and Hidalgo Counties, NewMexico. This complex is occupiedthroughout by spikedace and loachminnow and contains the largestremaining populations of both species.It is considered to represent the ‘‘core’’of what remains of the species. Becauseof the remoteness of the area, there is arelatively low degree of habitat threats.



a. Gila River—164 km (102 mi) ofriver extending from the confluencewith Moore Canyon (near the Arizona/New Mexico border) upstream to theconfluence of the East and West Forks.Spikedace and loach minnow areknown to occupy the river into theDuncan-Virden Valley (Rinne 1999b).

b. East Fork Gila River—42 km (26 mi)of river extending from the confluencewith the West Fork Gila River upstreamto the confluence of Beaver and TaylorCreeks.

c. Middle Fork Gila River—Spikedace: 12 km (8 mi) of river

extending from the confluence with theWest Fork Gila River upstream to theconfluence with Big Bear Canyon.

Loach minnow: 19 km (12 mi) of riverextending from the confluence with theWest Fork Gila River upstream to theconfluence with Brothers West Canyon

d. West Fork Gila River—12 km (8 mi)of river extending from the confluencewith the East Fork Gila River upstreamto the confluence with EE Canyon. Thislower portion of the West Fork isoccupied by spikedace and loachminnow, but the river becomesunsuitable above EE Canyon due togradient and channel morphology.

Primary Constituent Elements

The habitat features (primaryconstituent elements) that provide forthe physiological, behavioral, andecological requirements essential for theconservation of a species are describedat 50 CFR 424.12 and include, but arenot limited to, the following:

—Space for individual andpopulation growth, and for normalbehavior;

—Food, water, or other nutritional orphysiological requirements;

—Cover or shelter;—Sites for breeding, reproduction, or

rearing of offspring; and—Habitats that are protected from

disturbance or are representative of thehistorical geographical and ecologicaldistributions of a species.

Spikedace

We determined the primaryconstituent elements for spikedace fromstudies on their habitat requirementsand population biology including, butnot limited to, Barber et al. 1970;Minckley 1973; Anderson 1978; Barberand Minckley 1983; Turner andTaffanelli 1983; Barrett et al. 1985;Propst et al. 1986; Service 1989; Hardyet al. 1990; Douglas et al. 1994;Stefferud and Rinne 1996; Velasco 1997.

These primary constituent elementsinclude:

1. Permanent, flowing, unpollutedwater;

2. Living areas for adult spikedacewith slow to swift flow velocities inshallow water with shear zones whererapid flow borders slower flow, areas ofsheet flow at the upper ends of mid-channel sand/gravel bars, and eddies atdownstream riffle edges;

3. Living areas for juvenile spikedacewith slow to moderate flow velocities inshallow water with moderate amountsof instream cover;

4. Living areas for larval spikedacewith slow to moderate flow velocities inshallow water with abundant instreamcover;

5. Sand, gravel, and cobble substrateswith low to moderate amounts of finesediment and substrate embeddedness;

6. Pool, riffle, run, and backwatercomponents present in the aquatichabitat;

7. Low stream gradient;8. Water temperatures in the

approximate range of 1–30 °C (35–85°F), with natural diurnal and seasonalvariation;

9. Abundant aquatic insect food base;10. Periodic natural flooding;11. A natural, unregulated hydrograph

or, if the flows are modified orregulated, then a hydrograph thatdemonstrates an ability to support anative fish community; and

12. Habitat devoid of nonnativeaquatic species detrimental tospikedace, or habitat in whichdetrimental nonnative species are atlevels which allow persistence ofspikedace.

The areas we are designating ascritical habitat for spikedace provide theabove primary constituent elements orwill be capable, with restoration orremoval of detrimental nonnativespecies, of providing them. All of thedesignated areas require specialmanagement considerations orprotection to ensure their contributionto the species’ recovery.

Loach minnowWe determined the primary

constituent elements for loach minnowfrom studies on their habitatrequirements and population biologyincluding, but not limited to, Barber andMinckley 1966; Minckley 1973;Schreiber 1978; Britt 1982; Turner andTaffanelli 1983; Service 1988; Rinne1989; Hardy et al. 1990; Vives andMinckley 1990; Propst and Bestgen1991; Douglas et al. 1994; Velasco 1997.

These primary constituent elementsinclude:

1. Permanent, flowing, unpollutedwater;

2. Living areas for adult loachminnow with moderate to swift flowvelocities in shallow water with gravel,cobble, and rubble substrates;

3. Living areas for juvenile loachminnow with moderate to swift flowvelocities in shallow water with sand,gravel, cobble, and rubble substrates;

4. Living areas for larval loachminnow with slow to moderatevelocities in shallow water with sand,gravel, and cobble substrates andabundant instream cover;

5. Spawning areas for loach minnowwith slow to swift flow velocities inshallow water with uncemented cobbleand rubble substrate;

6. Low amounts of fine sediment andsubstrate embeddedness;

7. Riffle, run, and backwatercomponents present in the aquatichabitat;

9. Low to moderate stream gradient;10. Water temperatures in the

approximate range of 1–30°C (35–85°F),with natural diurnal and seasonalvariation;

11. Abundant aquatic insect foodbase;

12. Periodic natural flooding;13. A natural unregulated hydrograph

or, if flows are modified or regulated,then a hydrograph that demonstrates anability to support a native fishcommunity; and

14. Habitat devoid of nonnativeaquatic species detrimental to loachminnow, or habitat in whichdetrimental nonnative species are atlevels which allow persistence of loachminnow.

The areas we are designating ascritical habitat for loach minnowprovide the above primary constituentelements or will be capable, withrestoration or removal of detrimentalnonnative species, of providing them.All of the designated areas requirespecial management considerations orprotection to ensure their contributionto the species’ recovery.

Land Ownership

Table 1 shows land ownership forareas of critical habitat that are currentlyoccupied by one or both species, andTable 2 shows land ownership forcritical habitat that is unoccupied. Ageneral description of land ownershipin each complex follows.



TABLE 1.—STREAM DISTANCES IN KILOMETERS (MILES) OF CRITICAL HABITAT OCCUPIED BY EITHER LOACH MINNOW ORSPIKEDACE 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 0Gila Co., AZ ............................................................... 0 0 0 0 0Graham 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 0Pinal 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 MINNOWOR 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 0Yavapai 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 0Grant 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 arelarge blocks of USFS lands in the upperand lower reaches, with significantareas of private ownership in the VerdeValley and along the lower portions ofOak, Beaver, and West Clear Creeks.There are also lands belonging to theNational Park Service (NPS), ArizonaState Parks, and the Arizona Game andFish Department (AGFD).

2. Black River complex—Theownership is predominantly USFS, witha few small areas of private land.

3. Tonto Creek complex—Land here ismostly USFS on the upper end, butsignificant areas of private ownershipoccur in the lower reaches.

4. Middle Gila/Lower San Pedro/Aravaipa Creek complex—This areaincludes extensive BLM land as well asextensive private land, some State ofArizona lands, and a small area of

allotted land used by the San CarlosApache Tribe.

5. Middle-Upper San Pedrocomplex—The BLM is the largestlandowner, and there are large areas ofprivate ownership and smaller areas ofState of Arizona lands.

6. Gila Box/San Francisco Rivercomplex—This complex containsextensive USFS land, some BLM land,and scattered private, State of Arizona,and New Mexico Department of Gameand Fish (NMDGF) lands. A significantportion of Bonita Creek runs through theCity of Safford.

7. Upper Gila River complex—Thelargest areas are on USFS land, withsmall private inholdings. There are largeareas of private lands in the Cliff-GilaValley, and the BLM administerssignificant stretches upstream of theArizona/New Mexico border. There are

also small areas of NMDGF, NPS, andState of New Mexico lands.

Significant private owners, with landsscattered among several of thedesignated critical habitat complexes,include Phelps-Dodge Corporation andThe Nature Conservancy. A largenumber of other private landownershold lands within the designated areas.Private lands are primarily used forgrazing and agriculture, but also includetowns, small-lot residences, andindustrial areas.

Effect of Critical Habitat Designation

The Act requires Federal agencies toensure that actions they fund, authorize,or carry out do not destroy or adverselymodify critical habitat to the extent thatthe action appreciably diminishes thevalue of the critical habitat for thesurvival and recovery of the species.



Individuals, organizations, States, localand Tribal governments, and other non-Federal entities are only affected by thedesignation of critical habitat if theiractions occur on Federal lands, requirea Federal permit, license, or otherauthorization, or involve Federalfunding.

Section 7(a) of the Act requiresFederal agencies to evaluate theiractions with respect to any species thatis proposed or listed as endangered orthreatened and with respect to itsproposed or designated critical habitat.Regulations implementing thisinteragency cooperation provision of theAct are codified at 50 CFR part 402.Section 7(a)(4) of the Act andregulations at 50 CFR 402.10 requireFederal agencies to confer with us onany action that is likely to jeopardizethe continued existence of a proposedspecies or to result in destruction oradverse modification of proposedcritical habitat. If a species issubsequently listed or critical habitat isdesignated, then section 7(a)(2) requiresFederal agencies to ensure that activitiesthey authorize, fund, or carry out are notlikely to jeopardize the continuedexistence of such a species or destroy oradversely modify its critical habitat. Tothat end, if a Federal action may affecta listed species or its critical habitat, theresponsible Federal agency must enterinto consultation with us. Regulations at50 CFR 402.16 also require Federalagencies to reinitiate consultation ininstances where we have alreadyreviewed an action for its effects on alisted species if critical habitat issubsequently designated.

Section 4(b)(8) of the Act requires us,to the extent practicable, to include inany proposed or final regulation thatdesignates critical habitat a descriptionand evaluation of those activitiesinvolving a Federal action that mayadversely modify such habitat or thatmay be affected by such designation.Activities that may destroy or adverselymodify critical habitat include thosethat alter the primary constituentelements (defined above) to an extentthat the value of critical habitat for boththe survival and recovery of thespikedace or loach minnow isappreciably reduced.

To properly portray the effects ofcritical habitat designation, we mustfirst compare the section 7 requirementsfor actions that may affect criticalhabitat with the requirements foractions that may affect a listed species.Section 7 prohibits actions funded,authorized, or carried out by Federalagencies from jeopardizing thecontinued existence of a listed speciesor destroying or adversely modifying the

listed species’ critical habitat.According to regulations at 50 CFR402.02, actions likely to ‘‘jeopardize thecontinued existence’’ of a species arethose that would appreciably reduce thelikelihood of the species’ survival andrecovery. Actions likely to ‘‘destroy oradversely modify’’ critical habitat arethose that would appreciably reduce thevalue of critical habitat for the survivaland recovery of the listed species.

Common to both definitions is anappreciable detrimental effect on bothsurvival and recovery of a listed species.Given the similarity of these definitions,actions likely to destroy or adverselymodify critical habitat would almostalways result in jeopardy to the speciesconcerned, particularly when the area ofthe proposed action is occupied by thespecies. In those cases, it is highlyunlikely that additional modifications tothe action would be required as a resultof designating critical habitat. However,critical habitat may provide benefitstowards recovery when designated inareas currently unoccupied by thespecies.

Actions on Federal lands that wereviewed in past consultations onspikedace and loach minnow includeland management plans; landacquisition and disposal; road andbridge construction, maintenance, andrepair; water diversion anddevelopment; reservoir construction;off-road vehicle use; livestock grazingand management; fencing; prescribedburning; powerline construction andrepair; recovery actions for spikedaceand loach minnow; game fish stocking;timber harvest; access easements; floodrepair and control; groundwaterdevelopment; channelization; and canaland other water transport facilityconstruction and operation. Federalagencies involved with these activitiesinclude the USFS, BLM, Service, andBureau of Reclamation.

Federal actions taken on private,State, or tribal lands on which weconsulted in the past for spikedace andloach minnow include irrigationdiversion construction andmaintenance; flood repair and control;game fish stocking; timber harvest;water diversion and development;reservoir construction; water qualitystandards; and riparian habitatrestoration. Federal agencies involvedwith these activities include the NaturalResources Conservation Service, Bureauof Reclamation, EnvironmentalProtection Agency, Bureau of IndianAffairs, Indian Health Services, FederalEmergency Management Agency, andthe Service.

Federal actions involving issuance ofpermits to private parties on which we

consulted in the past for spikedace andloach minnow include issuance ofNational Pollution DischargeElimination System permits by theEnvironmental Protection Agency andissuance of permits under section 404 ofthe Clean Water Act for dredging andfilling in waterways by the COE. Privateactions for which 404 permits weresought include road and bridgeconstruction, repair and maintenance;flood control and repair; and waterdiversion construction and repair.

Since the original listing of spikedaceand loach minnow in 1986, only threeconsultations ended in a finding that theproposed action would likely jeopardizethe continued existence of spikedaceand/or loach minnow. An additionalfour proposed actions received draftfindings of jeopardy, but for three ofthose, the requests for consultation werewithdrawn and the fourth is still inprogress. For the three jeopardyfindings, we developed reasonable andprudent alternatives that includedchanges to projects, and recommendedor required measures to reduce oreliminate impacts to spikedace andloach minnow and to minimize the takeof individuals. These alternativesremoved the likelihood of jeopardy tothe species.

As stated above, designation ofcritical habitat in areas occupied byspikedace or loach minnow is notexpected to result in regulatory burdenabove that already in place due to thepresence of the listed species. However,areas designated as critical habitat thatare not currently occupied by thespecies may require protections similarto those provided to occupied areasunder past consultations.

Any Federal activity that wouldsignificantly and detrimentally alter theminimum flow or the natural flowregime of any of the stream segmentslisted above could destroy or adverselymodify the critical habitat of either orboth species. Such activities include,but are not limited to, groundwaterpumping, impoundment, waterdiversion, and hydropower generation.

Any Federal activity that wouldsignificantly and detrimentally alterwatershed characteristics of any of the41 stream segments listed above coulddestroy or adversely modify the criticalhabitat of either or both species. Suchactivities include, but are not limited to,vegetation manipulation, timber harvest,road construction and maintenance,human-ignited prescribed fire, livestockgrazing, mining, and urban andsuburban development.

Any Federal activity that wouldsignificantly and detrimentally alter thechannel morphology of any of the 41



stream segments listed above coulddestroy or adversely modify the criticalhabitat of either or both species. Suchactivities include, but are not limited to,channelization, impoundment, road andbridge construction, deprivation ofsubstrate source, destruction andalteration of riparian vegetation,reduction of available floodplain,removal of gravel or floodplain terracematerials, and excessive sedimentationfrom mining, livestock grazing, roadconstruction, timber harvest, off-roadvehicle use, and other watershed andfloodplain disturbances.

Any Federal activity that wouldsignificantly and detrimentally alter thewater chemistry in any of the 41 streamsegments listed above could destroy oradversely modify the critical habitat ofeither or both species. Such activitiesinclude, but are not limited to, releaseof chemical or biological pollutants intothe surface water or connectedgroundwater at a point source or bydispersed release (non-point).

Any Federal activity that wouldintroduce, spread, or augment nonnativeaquatic species could destroy oradversely modify the critical habitat ofeither or both species. Such activitiesinclude, but are not limited to, stockingfor sport, aesthetics, biological control,or other purposes; construction andoperation of canals; and interbasinwater transfers.

In some cases designation of criticalhabitat may assist in focusingconservation activities by identifyingareas that contain essential habitatfeatures (primary constituent elements),regardless of whether they are currentlyoccupied by the listed species. Thisidentification alerts the public and landmanagement agencies to the importanceof an area in the conservation of thatspecies. Critical habitat also identifiesareas that may require specialmanagement considerations orprotection.

If you have questions regardingwhether specific activities are likely toconstitute destruction or adversemodification of critical habitat, contactthe Field Supervisor, Arizona EcologicalServices Office (see ADDRESSES section).Requests for copies of the regulations onlisted wildlife and inquiries aboutprohibitions and permits may beaddressed to the U.S. Fish and WildlifeService, Division of EndangeredSpecies, P.O. Box 1306, Albuquerque,New Mexico 87103 (telephone 505–248–6920; facsimile 505–248–6788).

Economic AnalysisSection 4(b)(2) of the Act requires that

we designate critical habitat on the basisof the best scientific and commercial

information available and consider theeconomic and other relevant impacts ofdesignating a particular area as criticalhabitat. We based this designation onthe best available scientific information,including the recommendations in thespecies’ recovery plans. We utilized theeconomic analysis, and took intoconsideration comments andinformation submitted during the publichearing and comment period, to makethis final critical habitat designation.We may exclude areas from criticalhabitat upon a determination that thebenefits of such exclusions outweigh thebenefits of specifying such areas ascritical habitat. We cannot exclude suchareas from critical habitat when suchexclusion will result in the extinction ofthe species. We completed an economicanalysis, which is available for publicreview. Send your requests for copies ofthe economic analysis to the ArizonaEcological Services Office (seeADDRESSES section) or visit our websiteat http://ifw2es.fws.gov/arizona.

Exclusion for Economic and OtherRelevant Impacts

Based on comments provided by theBLM, our Economic Analysis identifiedBonita Creek as an area with potentialfor high economic impacts associatedwith the designation of critical habitatfor the spikedace and loach minnow.The analysis concluded that ‘‘Immediateaction is required in case of floodcontrol damage to [the City of Safford’s]water supply in order to minimize thecost of repair. The cost of a stable,alternative water supply is prohibitive.There is a high probability of substantialcost to the City of Safford from theinability to repair storm damage to theirwater supply in a timely manner due tothe requirement of a section 7consultation if the Creek is designatedcritical habitat.’’

Bonita Creek is an area that isnecessary for the recovery of theprobable unique spikedace gene poolpresently occupying Eagle Creek.Furthermore, 50 CFR section 402.05 ofour regulations provides for expeditedconsultation pursuant to section 7 of theAct during emergencies. Finally, BonitaCreek is occupied by the razorbacksucker (Xyrauchen texanus), a specieslisted as endangered pursuant to theAct. Thus, consultation on water supplyrepair has and will occur regardless ofthe designation of critical habitat for thespikedace and loach minnow. In fact, in1994, the Federal EmergencyManagement Agency consulted with uspursuant to section 7 of the Actregarding repairs to the City of Safford’swater supply system in Bonita Creek.We concluded that repairs to the water

system were not likely to jeopardize thecontinued existence of the razorbacksucker. Impacts to the razorback suckerwould be very similar to the impacts tothe spikedace and thus, includingBonita Creek as critical habitat is notlikely to change our section 7consultation conclusions. For thesereasons we conclude the benefits ofdesignating Bonita Creek outweigh thebenefits of excluding it from criticalhabitat designation.

Based on comments provided byArizona Game and Fish Department(AGFD), our Economic Analysisidentified the possible discontinuationof trout stocking programs as a potentialfor high economic loss to affectedcounty economies. We are presentlyconsulting on the stocking program, butbecause trout are not known to conflictwith the recovery of either spikedace orloach minnow, we do not expect anyimpacts to the trout stocking program orcounty economies. Therefore, weconclude the benefits of designatingcritical habitat for the spikedace andloach minnow outweigh the benefits ofexcluding all areas where trout stockingoccurs.

No tribal reservation lands areincluded in this designation, asdiscussed in more detail below. Nor arewe including the Black River as criticalhabitat for spikedace in this finaldetermination because informationreceived during the comment periodleads us to conclude that it is notsuitable for spikedace recovery. TheBlack River is, however, designated ascritical habitat for the loach minnow.After gathering economic data andconducting an analysis of the landsproposed for critical habitat designation,we determined that no other areasshould be excluded from thisdesignation for economic or otherrelevant considerations.

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

In accordance with the PresidentialMemorandum of April 29, 1994, webelieve that, to the maximum extentpossible, fish, wildlife, and othernatural resources on tribal lands arebetter managed under tribal authorities,policies, and programs than throughFederal regulation wherever possibleand practicable. Based on thisphilosophy, we believe that, in mostcases, designation of tribal lands ascritical habitat provides very littlebenefit to threatened and endangeredspecies. This is especially true wherethe habitat is occupied by the speciesand is therefore already subject toprotection under the Act. Conversely,



such designation is often viewed bytribes as unwarranted and unwantedintrusion into tribal self governance,thus compromising the government-to-government relationship essential toachieving our mutual goals of managingfor healthy ecosystems upon which theviability of threatened and endangeredspecies populations depend.

As stated previously, section 4(b)(2) ofthe Act requires us to consider theeconomic and other relevant impacts ofcritical habitat designation, andauthorizes us to exclude areas fromdesignation upon finding that thebenefits of exclusion outweigh thebenefits of including the areas as criticalhabitat, so long as excluding those areaswill not result in the extinction of thespecies concerned. In the proposed rulefor this critical habitat designation wesolicited information from interestedparties on the anticipated economic andother relevant impacts of designation.

We identified stream reaches on theFort Apache Indian Reservation (homeof the White Mountain Apache Tribe),the San Carlos Apache Reservation, andthe Yavapai Apache Reservation aspossibly appropriate biologically for thedesignation of critical habitat, i.e., theycontain the primary constituentelements of the species’ critical habitat.The San Carlos, Tonto, White Mountain,and Yavapai Apache tribes all addressedthis issue in their comments on theproposed rule. Below we evaluate thebenefits of excluding these tribal landsfrom critical habitat and the benefits ofincluding these areas. In addition, weassess the anticipated effects thatdesignation of non-tribal lands can beexpected to have on tribal trustresources, such as water deliveries.

1. Designation of Critical Habitat onIndian Reservations

The White Mountain Apache Tribe,which has currently occupied loachminnow habitat and potential loachminnow and potential spikedace habitatwithin its reservation boundaries,produced a Native Fishes ManagementPlan. After reviewing this plan, wedetermined that the tribe’s managementof the species will provide substantialprotection for the relevant habitat areas,and that designation of critical habitatwill provide little or no additionalbenefit to the species, particularly sincethe areas are occupied by the loachminnow.

Conversely, designation of criticalhabitat would be expected to adverselyimpact our working relationship withthe Tribe, the maintenance of which hasbeen extremely beneficial inimplementing natural resourceprograms of mutual interest. In 1994 the

Fish and Wildlife Service and WhiteMountain Apache Tribe signed aStatement of Relationship whichformalized our commitment to workcooperatively with the tribe inpromoting healthy ecosystems. Sincethat agreement we have workedcooperatively with the tribe to thesignificant benefit of threatened andendangered species. In addition tomanaging the habitats of the spikedaceand loach minnow, these programsinclude management of the threatenedMexican spotted owl, management ofhealthy populations of threatenedApache trout, and other natural resourceprograms. After weighing the benefits ofcritical habitat designation on the FortApache Indian Reservation against theadverse impact on our cooperativenatural resource programs, we find thatthe benefits of excluding Fort ApacheIndian Reservation lands, in terms of thespikedace and loach minnow, as well asecosystems in general, outweigh thebenefits of including those areas ascritical habitat.

In the case of the San Carlos IndianReservation, we again believe that theprinciple of tribal self-governance is theoverriding consideration and believethat Federal regulation through criticalhabitat designation will be viewed as anunwarranted and unwanted intrusioninto tribal natural resource programs.This, in turn, will likely hamper ourability to continue important programsupon which endangered and threatenedspecies depend. For example, we arecurrently cooperating with the SanCarlos Apache Tribe on a veryimportant spring restoration program forthe benefit of the severely imperiledGila topminnow. We also arecooperating on programs to benefit theendangered southwestern willowflycatcher, the Gila chub (a candidatefor listing under the Act), and theMexican spotted owl, among others.Given our belief that they are the entitybest able to manage habitat for thespikedace and loach minnow, the factthat the areas considered for designationare already occupied by listed speciesand therefore receive protection underthe Act, and the anticipated adverseimpacts to our cooperative relationshipthat may result from critical habitatdesignation, we believe that the benefitsof excluding areas of the San CarlosApache Reservation from critical habitatoutweigh the negligible benefits ofdesignating those areas.

The Yavapai Apache Tribe holdsapproximately one river-mile ofpotential critical habitat on the VerdeRiver, other parts of which aredesignated as critical habitat. Webelieve that current management is

adequate as evidenced by the fact thatthe spikedace still occurs there, and thatlittle benefit would accrue from criticalhabitat designation since the species isalready protected under the Act. Wefurther believe that tribal managementof this reservation land wouldultimately be of greater benefit tospikedace and loach minnow thanwould the designation of this smallsegment, since we hope to maintain acooperative working relationship withthe Yavapai Apache.

After carefully balancing theconsiderations involved in determiningwhether lands should be included orexcluded from the designation of criticalhabitat, we determined that the benefitsof promoting self-determination,allowing the tribes to developconservation management on theirlands, and the continued cooperativerelationship in managing threatened andendangered species and their habitats,outweigh the benefits to be obtainedfrom designating critical habitat forthese two species. Exclusion of theselands from the designation will notresult in extinction of either species.

These decisions were made incompliance with Public Law 106–113,which prohibits us from using any ofour appropriated funds to implementtwo provisions of Secretarial Order 3206(Secretarial Order)—(1) Principle3(C)(ii), which prohibits the impositionof conservation restrictions involvingincidental take if the conservationpurposes of the restriction can beachieved by reasonable regulation ofnon-Indian activities, and (2) Appendixsection 3(B)(4), which concerns thedesignation of critical habitat andincludes the requirement that weconsult with affected tribes. ThePresidential Memorandum of April 29,1994 also requires that we consult withtribes when contemplating regulationsthat may affect them, and the Actrequires that we consider the relativebenefits versus potential adverseconsequences of critical habitatdesignations on all lands. Thus, ourconsultation with the tribes and ourassessment of the ability to achieveconservation of spikedace and loachminnow without regulation of triballands were undertaken independently ofthe provisions of Secretarial 3206.

2. Possible Effects on Tribal TrustResources From Critical HabitatDesignation on Non-tribal Lands

We recognized that the Salt RiverReservation, Fort McDowellReservation, and Gila River IndianReservation are all located downstreamfrom designated critical habitat anddepend on water deliveries from



upstream sources. We do not anticipatethat designation of critical habitat onnon-tribal lands will result in anyimpact on tribal trust resources or theexercise of tribal rights. Many of thetribal lands either have majorimpoundments on their reservations orlie below major impoundments, and therelease of water from the impoundmentsis regulated by court decree or otheractions which may be non-discretionary. Since non-discretionaryactions are not subject to consultationunder the Act, designation of criticalhabitat is unlikely to have any effect onwater deliveries to the reservations.However, in complying with ourresponsibility to communicate with alltribes potentially affected by thedesignation, we solicited informationduring the comment period on potentialeffects to tribes or tribal resources thatmight result from this critical habitatdesignation. The comments arediscussed below; none pointed outspecific effects not considered indeveloping this rule.

Summary of Comments andRecommendations

In the December 10, 1999, proposedrule, all interested parties wererequested to submit comments orinformation that might bear on thedesignation of critical habitat for thespikedace and loach minnow (64 FR69324). The comment period wasinitially scheduled to close on January14, 2000. Subsequently, the courtsallowed us additional time in which toprepare and publish this finaldesignation of critical habitat. Thereforeon January 12, 2000, we announced inthe Federal Register (65 FR 1845)extension of the comment period toFebruary 14, 2000, and scheduling of anadditional public hearing. In addition,we notified 525 interested parties of thecomment period extension andadditional public hearing by letter.

We contacted all appropriate Stateand Federal agencies, Tribes, countygovernments, scientific organizations,and other interested parties by mail andinvited them to comment on theproposed rule as well as the drafteconomic analysis and EnvironmentalAssessment. In addition, newspapernotices inviting public comment werepublished in the following newspapersin Arizona and New Mexico: TheArizona Republic, Tucson Citizen,Arizona Daily Star (Tucson),Albuquerque Tribune, AlbuquerqueJournal, Sierra Vista Herald, EasternArizona Courier, Santa Fe NewMexican, Silver City Daily Press, WhiteMountain Independent, The VerdeIndependent, Sedona Red Rock News,

Cottonwood Journal Extra, and CampVerde Journal. The inclusive dates ofthese publications were December 4–15,1999, for the initial comment period andannouncement of the first three publichearings.

We posted copies of the proposedrule, draft environmental assessment,and draft economic analysis on ourInternet site and distributed them fordisplay and inspection at publiclibraries 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, andSan Manuel in Arizona; and Silver Cityand Reserve Village Hall in NewMexico.

We held hearings in Silver City, NewMexico, and Thatcher, Arizona, onDecember 15, 1999, and Camp Verde,Arizona, on December 16, 1999. Noticesappeared in the previously namednewspapers between January 13 and 19,2000 to announce the extension of thepublic comment period until February14, 2000, and the scheduling of anadditional public hearing in SierraVista, Arizona on January 31, 2000. TheDecember 10, 1999 (64 CFR 69324), andJanuary 12, 2000 (65 CFR 1845), noticesalso announced the time and location ofthe four public hearings. A total of 495people registered at the public hearingsincluding 32 in Silver City, 111 inThatcher, 24 in Camp Verde, and 328 inSierra Vista. Transcripts of thesehearings are available for inspection (seeADDRESSES section).

We requested four ichthyologistsfamiliar with the species to peer reviewthe proposed critical habitatdesignation. However, only tworesponded by the close of the commentperiod. One responded that as a memberof the Desert Fishes Recovery Team hehas provided data, advice, and generalcounsel and supports the proposal onbiological grounds. The second alsogenerally supported the proposedcritical habitat, but cited a few areas hesuggested be added to the proposal aswell as some technical corrections to thedocument.

We received a total of 126 oral and315 written comments during thecomment period. Of those oralcomments, 15 supported critical habitatdesignation and 111 were opposed todesignation. Of the written comments,35 supported designation, 263 wereopposed to it, and 17 providedadditional information only, or werenonsubstantive or not relevant to theproposed designation. Oral and writtencomments were received from thegovernment of Mexico, one

Congressional representative, two statelegislators, two Federal agencies, threeState agencies, nine local governments,five Tribal governments, and 297 privateorganizations, companies, orindividuals.

All comments received were reviewedfor substantive issues and new dataregarding critical habitat and the biologyand status of spikedace and loachminnow. Comments of similar natureare grouped into 7 issues relatingspecifically to critical habitat. These areaddressed in the following summary.

Issue 1: Procedural and Legal-Compliance

The following comments andresponses involve issues related topublic involvement in the designationprocess and compliance with the Actand other laws, regulations, andpolicies. These comments do notinclude those addressing economicissues nor compliance with the NEPA,which are addressed under Issues 3 and5, respectively.

Comment 1a: The comment periodwas unreasonably short for the public tofully evaluate the proposed rule andassociated documents; more publichearings were needed.

Our Response: The initial publiccomment period was shorter than the 60days required under our regulations (50CFR 424.16(c)(2)). However, the initialschedule we developed to complete thisdesignation was the result of a court-ordered deadline. The court originallyordered us to publish this finaldesignation by February 17, 2000. Tomeet this deadline and allow time foranalysis of public comments andpreparation of the final rule, we neededto close the public comment period onJanuary 14, 2000, resulting in an initialcomment period of 36 days. Fortunately,both the plaintiffs and the court agreedto a 60-day extension of the deadline.As a result, we announced in theFederal Register (65 FR 1845) onJanuary 12, 2000, as well as localnewspapers, that we were extending thecomment period until February 14,2000, resulting in a total commentperiod of 65 days, thus exceeding the60-day regulatory requirement.

The Act requires that at least onepublic hearing be held if requested. Weheld four hearings; thus we exceededthe statutory requirements.

Comment 1b: The Service shouldprepare additional drafts of variousdocuments and provide them to thepublic for review.

Our Response: Drafts of both theeconomic analysis and EnvironmentalAssessment associated with thisdesignation were made available to the



public for review and comment. Thefinal versions of those documents areavailable to the public (see ADDRESSES).

Comment 1c: The public should havethe opportunity to review commentsprovided by selected experts during thepeer review process.

Our Response: All commentssubmitted are part of the administrativerecord and, as such, are open to publicreview. It is also important to note thatoral testimony at the public hearings,written comments from the generalpublic, and comments received duringthe peer review process are consideredequally in making our finaldetermination.

Comment 1d: Designation of portionsof the rivers unoccupied by either ofthese fish species is outside theService’s authority and contrary to therequirements of the Act.

Our Response: The definition ofcritical habitat in section 3(5)(A) of theAct includes ‘‘’’specific areas outsidethe geographical area occupied by aspecies at the time it is listed, upon adetermination that such areas areessential for the conservation of thespecies.’’ The term ‘‘conservation’’, asdefined in section 3(3) of the Act, means‘‘to use and the use of all methods andprocedures which are necessary to bringany endangered species or threatenedspecies to the point at which themeasures provided pursuant to this Actare no longer necessary’’ (i.e., thespecies is recovered and removed fromthe list of endangered and threatenedspecies).

After weighing the best availableinformation, including the species’recovery plans (U.S. Fish and WildlifeService 1991a, 1991b), we conclude thatthe areas designated by this final rulethat lie outside the geographical areaoccupied by the species at the time theywere listed are essential for the recoveryof the species and subsequent removalfrom the list of endangered andthreatened species. We also note thatthe total area designated only representsapproximately 45 and 50 percent of theareas believed historically occupied bythe spikedace and loach minnow,respectively.

Comment 1e: The Act states that areasoutside the area occupied at the time oflisting can be designated only if thoseareas are determined essential to theconservation of the species. The Serviceinstead considered whether areas wereoccupied at the time of critical habitatdesignation. Therefore, some areascurrently occupied, but that were notoccupied at the time of listing, were notsubject to the higher standard requiredof for unoccupied habitat (i.e., that those

areas are essential for the conservationof the species).

Our Response: The issue is moot sincewe determined that all areas designatedas critical habitat are essential forconservation of these two species.

Comment 1f: The critical habitatproposal represents virtually all suitableor potentially suitable habitat within thespecies’ historical ranges. The Actprohibits such broad designation.

Our Response: Section 3(5)(C) of theAct states that, except in thosecircumstances determined by theSecretary, critical habitat shall notinclude the entire geographical areawhich can be occupied by anendangered or threatened species. Inthis case critical habitat is designated inan estimated 45 and 50 percent ofspikedace and loach minnow historicalranges, respectively. With properrestoration and management, much ofthe historical range would be suitable.The Secretary of the Interior hasdetermined that the areas designated areessential to conserve these species.

Comment 1g: Private lands should beexcluded from critical habitatdesignation.

Our Response: Section 4(b)(2) of theAct states ‘‘The Secretary shalldesignate critical habitat, and makerevisions thereto, under subsection(a)(3) on the basis of the best scientificdata available and after taking intoconsideration the economic impact, andany other relevant impact, of specifyingany particular area as critical habitat.’’The Act does not require nor suggestthat private lands should be excludedfrom designation, unless we find thatthe economic or other relevant impactsoutweigh the benefit of critical habitatdesignation. For further informationplease see our discussion under Issue 3:Economic Comments. Designation ofcritical habitat on private lands wouldonly have an effect in cases whereFederal funding or a Federal permit isrequired for a project. For furtherinformation please see our discussionunder Issue 7: Effects of Designation.

Comment 1h: The critical habitatdesignation is based on insufficientdata.

Our Response: Section 4(b)(2) of theAct states ‘‘The Secretary shalldesignate critical habitat, and makerevisions thereto, under subsection(a)(3) on the basis of the best scientificdata available . . .’’ Ourrecommendation is based on aconsiderable body of information on thebiology and status of the species, as wellas the effects of land-use practices ontheir continued existence. We agree thatmuch remains to be learned about thesespecies, and should credible, new

information become available whichcontradicts the basis for thisdesignation, we will reevaluate ouranalysis and, if appropriate, propose tomodify this critical habitat designation.We have considered the best scientificinformation available at this time, asrequired by the Act. Please see morespecific information in our response tocomment 4i.

Comment 1i: We should not designatecritical habitat until specific recoverygoals are set.

Our Response: The Act does not allowthe indefinite suspension of thedetermination of critical habitat. Thus,in general, we cannot delay thedetermination of critical habitat untilfinal recovery plans are produced.However, in the cases of the spikedaceand loach minnow, recovery plans werefinalized in 1991. These plansrecommend that critical habitat bedesignated for these species. The plansalso recommend maintenance ofoccupied habitat and establishment ofnew populations within the species’historical ranges. In addition, we havecontinued working with the DesertFishes Recovery Team since the planswere finalized, and believe this criticalhabitat designation is consistent withthe recommendations of those scientists.We have thus met the requirement thatthe designation be based on the bestscientific information available.

Comment 1j: In relying on the DesertFishes Recovery Team to identify whichstreams and rivers should be designatedas critical habitat, the Service violatedboth the ESA and the Federal AdvisoryCommittee Act (FACA). The ESAexempts Recovery Teams from FACAonly for the purpose of developing andimplementing recovery plans, notadvising 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 theEndangered Species Act provides theFish and Wildlife Service the authorityto appoint recovery teams, which mayconsist of non-Federal personnel, for thepurpose of assisting in the developmentand implementation of recovery plans.That section also exempts recoveryteams from the provisions of FACA.

In the case of the spikedace and loachminnow, the Desert Fishes RecoveryTeam (Recovery Team) oversawdevelopment of recovery plans for thetwo species, and suggested mechanismsto facilitate plan implementation inorder to achieve the plans’ conservationgoals. Both recovery plans recommenddesignating critical habitat for the twospecies as a mechanism for recovery,and the Recovery Team has provided



suggestions on which areas should beincluded in such designation. TheRecovery Team was acting appropriatelywithin its role in advising on recoveryplan implementation, and ourconsideration of Recovery Teamrecommendations is consistent with theAct’s requirement that critical habitatdetermination be based on the bestscientific information available.

This commenter cited Alabama-Tombigbee Rivers Coalition v.Department of Interior, 26 F.3d 1103(11th Cir. 1994), as authority for itsassertion that the Recovery Team’sFACA exemption was limited. However,Alabama-Tombigbee did not involve aRecovery Team; it involved an‘‘Advisory Team’’ assembled to advisethe Service on whether listing of aspecies was warranted. The ‘‘AdvisoryTeam’’ was never referred to as aRecovery Team nor was there anyindication in the opinion that anyoneasserted that the Advisory Team wasexempt from FACA under the Act.

Comment 1k: Contrary to statementsin the proposed rule, the Service wasnot ordered to designate critical habitat.Rather, the amended court order ofOctober 6, 1999, stated that the Servicewas to publish a final determinationwith respect to whether and to whatextent critical habitat shall bedesignated. Thus, the Service shouldreconsider whether and to what extentcritical habitat should be designated.

Our Response: The commenter iscorrect that we cited the original courtorder of September 20, 1999, whichordered us to designate critical habitat,and that a subsequent court orderamended the original order to require usto make a critical habitat determinationrather than requiring actual designation.In complying with the amended courtorder, we made the determination thatcritical habitat designation is prudentfor these two species, and that the areasproposed are essential for the species’conservation and thus the appropriateextent of critical habitat. The languagein this final rule clarifies the distinctionmentioned by the commenter, althoughsuch a correction has no material effecton the designation.

Comment 1l: We failed to complywith the Farm Land Protection Act of1981.

Our Response: The stated purpose ofthe Farmland Protection Act of 1981,Public Law 97–98, 95 Stat. 1343, 7 USC4201 et seq., was ‘‘to minimize theextent to which Federal programscontribute to the unnecessary andirreversible conversion of farmland tononagricultural uses * * * ’’; however,the Farmland Protection Act recognizedthat there might be instances where

other national interests could overridethis provision. While Federal statutesmay frequently appear to haveconflicting provisions, it is thepresumed intent of Congress that, to theextent possible, all laws be read in away which allows them to be appliedtogether. We do not read the FarmlandProtection Act and the EndangeredSpecies Act to be incompatible sincethis designation will not result inconversion of farmland tononagricultural uses and nor anysignificant restrictions on agriculturaluses.

Issue 2: Biological ConcernsThe following comments and

responses involve issues related to thebiological basis for the designation.

Comment 2a. The proposed criticalhabitat designation is substantiallygreater than critical habitat designatedin 1994 and is thus excessive.

Our Response: The 1994 designationsof critical habitat were based onproposals published in 1985. Since 1985there have been substantial additions tothe information on spikedace and loachminnow, their habitat needs, and theexisting condition and potential of mostof the streams in the Gila River basin.In addition, in 1985 the concept ofcritical habitat was less developed thanit is now, 15 years later. Evolution ofthinking, along with a number of courtdecisions regarding the definition anduses of critical habitat, have led to therecognition that critical habitat mayprovide the most benefits to listedspecies when it is applied tounoccupied areas essential for recovery.

Of the areas included in this criticalhabitat designation for spikedace thatwere not included in the 1994designation, 20 percent are based onnew information about the species, itsdistribution, abundance, and habitat; 10percent are to include sparsely occupiedareas omitted from the 1985 proposal;69 percent are currently unoccupiedrecovery areas and connecting corridors;and, 1 percent is an adjustment due tothe increased accuracy of mileagecalculations using GeographicInformation System (GIS) capability. Ofthe areas included in this critical habitatdesignation for loach minnow that werenot included in the 1994 designation, 15percent are based on new information;18 percent are sparsely occupied areasomitted from the 1985 proposal; 65percent are currently unoccupiedrecovery areas and connecting corridors;and, 2 percent are an adjustment for GISfigures.

Comment 2b: Neither spikedace norloach minnow require the protection ofthe Act. The discovery of new

populations since their listing shouldcause both species to be delisted or atleast negate the need for critical habitatdesignation.

Our Response: Both spikedace andloach minnow are listed as threatened.Recovery plans were finalized for bothspecies in 1991. In 1994, we reevaluatedthe threats to the species anddetermined the status of the species waseven more precarious than we hadpreviously concluded, even with thediscovery of new populations, and thatthey warranted listing as endangered.However, higher listing priorities, e.g.,reviewing and listing imperiled speciesthat are afforded no protection underthe Act, have precluded us fromreclassifying the spikedace and loachminnow as endangered. The status ofboth spikedace and loach minnow aredeclining.

Comment 2c: The Service shouldlimit critical habitat to aquatic andriparian zones.

Our Response: In this final rule wehave further clarified the areas withindesignated reaches as the streamchannels and areas potentiallyinundated by high flow events. Wheredelineated, this is the 100-yearfloodplain of the designated waterways.This constitutes the present andreasonable future aquatic and riparianzones of the designated rivers andstreams. Furthermore, within thedelineated critical habitat boundaries,only lands containing, or which arelikely to develop, those habitatcomponents that are essential for theprimary biological needs of the speciesare considered critical habitat. Existinghuman-constructed features andstructures within this area, such asbuildings, roads, railroads, and otherfeatures, do not contain, and do nothave the potential to develop, thosehabitat components and are notconsidered critical habitat.

Comment 2e: One commenterquestioned the validity of designatingsufficient critical habitat to protect allknown remaining genetic diversitywithin the two species with theexception of fish on certain tribal lands.

Our Response: The exclusion of triballands is discussed in the section titledAmerican Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and theEndangered Species Act, and in section6 of these responses to comments.

The range, numbers, and presumablygenetic diversity of the species havealready been much reduced. Theremaining populations exhibit distinctgenetic differences (Tibbets 1992,Tibbets 1993, A. Tibbets, pers. com.,March 2000). Noss and Cooperrider(1994) identified reduced genetic



diversity as one of the factors whichpredispose small populations toextinction. Therefore, to conserve andrecover the fishes to the point wherethey no longer require the protection ofthe Act and may be delisted, it isimportant to maintain and protect allremaining genetically diversepopulations of these two species.

Comment 2f: The Service did notprovide sufficient information on thecriteria used for including or omittingcertain reaches in the critical habitatdesignation.

Our Response: Please see the ‘‘CriticalHabitat Designation’’ section of thisFinal Rule. As described in the sectiontitled ‘‘B. Primary ConstituentElements’’, we identified the habitatfeatures (primary constituent elements)that provide for the physiological,behavioral, and ecological requirementsessential for the conservation of eachspecies. Within the historical range ofthe species, we identified areas whicheither provide the primary constituentelements or will be capable, withrestoration, of providing them andwhich met the criteria discussed underCritical Habitat Designation in this rule.Then, based in part onrecommendations from species expertsincluding those on the Desert FishesRecovery Team, we selected qualifyingreaches within these areas necessary forthe conservation of the fishes.

Comment 2g: The definition of thelateral extent of critical habitat isundefined. The vague description oflateral extent, along with the discussionof what activities might adversely affectcritical habitat, could be interpreted asincluding the entire watershed of thestreams designated as critical habitat. Inaddition, there are areas within whatappears to be the designation that do notcontain the constituent elements, suchas buildings or parking lots, that shouldnot be included in the critical habitat.

Our Response: We have clarified thelateral extent of the critical habitat inthis rule. Although activities within thewatershed may affect the critical habitat,it is not our intent to designate areasoutside of the floodplain as criticalhabitat. We have also clarified thatexisting human-constructed featuresthat do not meet the constituentelements are excluded by definitionfrom the critical habitat designation.

Issue 3: Economic Analysis.

There were numerous comments thataddressed economic issues.

Issue 3a: Will critical habitatdesignation result in more consultationsthan would have occurred without thecritical habitat designation?

Our Response: We expect that thedesignation of critical habitat will resultin more consultations, especially foractivities which may affect unoccupiedhabitat. If these consultations result inany increased costs to the applicant,these costs will be attributable to criticalhabitat designation. However,consultations are only required ofFederal agencies for those projects witha Federal nexus.

Issue 3b: Are private lands affected bycritical habitat designation if there is noFederal nexus?

Our Response: Under Section 7 of theEndangered Species Act, private landsare not impacted by the designation ofcritical habitat unless there is a Federalnexus.

Issue 3c: If permit requirements froma Federal agency change, is that acritical habitat impact?

Our Response: There are manyreasons why a permit requirement maychange. Each Federal agency hasenabling legislation that determines itsmission and, consequently, whatactivities can occur on the land itmanages, or for what activities theagency can otherwise issue permits. Asmore information becomes availableabout the environment, public activitieson Federal land, or activities for whichFederal agencies otherwise issuepermits, may require changes to permitrequirements. These may be due to theFederal agency’s own legislation. Inthose cases, we have attributed anyimpact to the legislation requiring thechange and not the Endangered SpeciesAct. If permit requirements change onunoccupied habitat as a result of aconsultation with us, then the impactwould be attributable to critical habitatdesignation.

Issue 3d: Critical habitat designationwill drive away current and futurebusinesses.

Our Response: There is a commonmisconception that critical habitatdesignation will reduce businessactivity. Without a Federal nexus, thereis no direct impact of critical habitatdesignation on private activities orbusinesses. In addition, restrictionsresulting from the listing of the speciesare not attributable to critical habitatdesignation. In areas currently occupiedby the species, little or no economicimpact is expected to result from criticalhabitat designation. In unoccupiedareas, some economic impacts mayresult. Our economic analysis considersthose anticipated impacts, includingeffects on businesses. However, webelieve that the benefits of designatingcritical habitat outweigh the benefits ofexcluding areas from designation.

Issue 3e: Impacts on land uses next tothe river were not evaluated in theeconomic analysis.

Our Response: At the time of releasingthe economic analysis of critical habitatdesignation, very little information wasavailable to us on land uses next to therivers. Subsequently, some Federal andState agencies have provided us withtheir management activities andexpected changes relative to criticalhabitat. This new information isreflected in the final economic analysis.

Issue 3f: The draft economic analysisonly addresses 5 of the streams whenthe proposal includes many morestreams.

Our Response: The table with theanalysis of 5 streams comes from studyof the previous critical habitatdesignation. It was included in the drafteconomic analysis to illustrate the kindsof economic impacts for which we wereseeking additional information. Allstreams in the final designation havebeen evaluated in the final economicanalysis.

Issue 3g: The Service must prepare aneconomic analysis that considers thetotal effect of listing and critical habitat.

Our Response: Congress has statedthat the listing of a species be basedsolely on biological considerations. As aresult, an economic analysis of thelisting of a species is not undertaken aspart of the listing process. The currentrule being considered is the designationof critical habitat and thus onlyeconomic and other relevant impacts ofspecifying any particular area as criticalhabitat are considered. A recent courtdecision on designation of criticalhabitat for the southwestern willowflycatcher (Empidonax extimus trailli)New Mexico Cattle Growers et al. v.USFWS et al., CIV 98–0275 LH/DJs—ACE (D. Ariz. 1999) (on appeal) affirmedour approach of considering only theeconomic and other relevant impacts ofcritical habitat designation above andbeyond those associated with listing thespecies.

Issue 3h: The Regulatory FlexibilityAct and the Small Business RegulatoryEnforcement Fairness Act analyses wereinadequate.

Our Response: There were substantialdata gaps that precluded a full analysisof the impact on small entities. A morecomplete analysis is in theadministrative record for thisdesignation, and is available for publicreview (see ADDRESSES).

Issue 3i: There needs to be a takingsimplication assessment completed.

Our Response: A taking implicationsassessment is in the administrativerecord for this designation, and is



available for public review (seeADDRESSES).

Issue 3j: The economic analysis lacksdollar amounts for the impact onAgriculture, Recreation, Roads, WaterSupply, and Private Development onpage 26.

Our Response: The table on page 26of the draft economic analysis wasreproduced from an earlier study andthe blank entries were in the originaldocument. We provide a more completeaccounting of the impacts in the finaleconomic analysis.

Issue 3k: No economic analysis wasdone for the State of New Mexico.

Our Response: The revised economicanalysis includes information aboutGrant County, the only county in theState of New Mexico that containscritical habitat unoccupied by either thespikedace or the loach minnow.

Issue 3l: An incorrect baseline wasused for the economic analysis.

Our Response: The baseline we usedconsidered the Federal actions expectedto occur in the absence of criticalhabitat. Thus, all Section 7consultations with Federal agencies andother restrictions resulting from thelisting of the species are considered partof the baseline and are not attributableto critical habitat designation. The onlyeconomic impacts attributable to criticalhabitat designation would be thoseresulting from Federal activities inunoccupied designated critical habitatand only those activities likely todestroy or adversely modify criticalhabitat.

Issue 3m: The use of IMPLAN is notappropriate below the State level.

Our Response: IMPLAN was not usedin the draft economic analysis.However, the data sets that come withIMPLAN describe the economic activityat the county level, which provide a

useful summary of the industries in theaffected counties.

Issue 4: Site-Specific Issues.

The following comments andresponses involve issues related to theinclusion or exclusion of specificstreams reaches or our methods forselecting appropriate areas fordesignation as critical habitat.

Comment 4a: Several commenterspointed out errors in mileages,locations, or descriptions in theproposed rule.

Our Response: Corrections have beenmade in the final rule to reflect thesecomments, where appropriate.

Comment 4b: Commenters believedthat the areas listed in table 3 (below)were unsuitable for designation or theyrecommended some areas for exclusionfrom designation.

TABLE 3.—EXCLUSION OF REMOVAL RECOMMENDATIONS IN COMMENTS

Stream reach Not suitablefor species

Notoccupied by

species

Conflict witheconomic,social, or

other uses

Insufficientinformation

Nonnativespeciesconflict

Notessential orno benefit to

species

Specialmgmt.

consider-ation notneeded

Detrimentalto species

mgmt.

Complex 1

Verde River above Valley X X X XVerde River in Valley ....... X X X X XVerde River below Valley X X X XGranite Creek ................... X XOak Creek ........................ X X X X X XBeaver Creek ................... X X X X XWest Clear Creek ............ X X X X X XFossil Creek ..................... X X X

Complex 2

West Fork Black River ..... X X X XEast Fork Black River ...... X X XCoyote Creek ................... X X X X XBoneyard Creek ............... X X X X X

Complex 3

Tonto Creek ..................... X X X X X XRye Creek ........................ X X X X X X X XGreenback Creek ............. X X X X X X

Complex 4

Middle Gila River ............. X X X X XLower San Pedro River ... X X X XAravaipa Creek ................ X XTurkey Creek ................... X X XDeer Creek ....................... X X X

Complex 5

Middle San Pedro River ... X X X X X X X XRedfield Canyon .............. X X XHot Springs & Bass Can-

yons .............................. X X X XUpper San Pedro River ... X X X X X X X X



TABLE 3.—EXCLUSION OF REMOVAL RECOMMENDATIONS IN COMMENTS—Continued

Stream reach Not suitablefor species

Notoccupied by

species

Conflict witheconomic,social, or

other uses

Insufficientinformation

Nonnativespeciesconflict

Notessential orno benefit to

species

Specialmgmt.

consider-ation notneeded

Detrimentalto species

mgmt.

Complex 6

Gila River at Box .............. X X X XBonita Creek .................... X X X X X X X XEagle Creek ..................... X X X X X X X XBlue River ........................ X X X X XLittle Blue Creek .............. X XCampbell Blue Creek ....... X XDry Blue, Frieborn, &

Pace Creeks ................. X XSan Francisco River in AZ X X X X X XSan Francisco River in

NM ................................ X XTularosa River .................. X XNegrito and Whitewater

Creeks .......................... X

Complex 7

Upper Gila River belowMogollon Creek ............ X X 1 X X X X X

Upper Gila River aboveMogollon Creek ............ X X 1 X X X X

West Fork Gila River ....... X X X X XEast Fork Gila River ........ X X X X XMiddle Fork Gila River ..... X X X X X X

1 In part.

Our Response: We carefullyconsidered the information provided inthe comments regarding requestedexclusions and removals. Two streamswere removed from the spikedacedesignation, as described previously.Areas suggested for exclusion that wereretained, and our rationales, areprovided in responses 4b1 through4b19.

Comment 4b1: There are no records ofoccurrence of spikedace and loachminnow in the Little Blue River,Redfield, Bass, and Hot SpringsCanyons; Granite, Boneyard, Coyote,Greenback, Rye, Oak, and Bonita Creeks:the East, West, and Main Forks of theBlack River; and the Gila Box.Therefore, these areas are not part of thehistorical range.

Our Response: Because earlycollections of fishes from the Gila Basinwere rare and occurred mostly alongprimary exploration and settlementtravel routes, the complete distributionof most of our native fishes cannot bedocumented with specific museumspecimens and records. By the timesampling of native fish became commonin the 1960’s and 1970’s many of thestreams had been modified or subjectedto temporary adverse circumstances(such as total diversion of water or minespills resulting in water-qualityproblems) to the point that many of the

native fishes had already beenextirpated. Thus, we can never knowprecisely what we have lost. Therefore,we must use the best availableinformation to reconstruct the mostprobable composition of the historicalranges of spikedace and loach minnow.If a stream is (1) within the Gila basin;and (2) contains suitable or potentialhabitat for the species, or historicalrecords indicate it once sustained suchhabitat, and there are records of thosespecies from nearby areas, and there isno other reason to believe that the twospecies could not have occurred there(i.e. an impassable natural barrier); thenthose areas are considered to be part ofthe historical range of the species.

Comment 4b2: Deer, Turkey, WetBeaver/Beaver, and West Clear Creekshave no records of spikedace and/orloach minnow.

Our Response: Deer and TurkeyCreeks, tributaries of Aravaipa Creek,have recent records of loach minnow(USBLM 1995, University of Arizonamuseum specimens No. ASU 13517).The Beaver Creek complex hashistorical records of both spikedace andloach minnow from 1938 (Minckley1993). West Clear Creek has historicalrecords of spikedace from 1937(Minckley 1993).

Comment 4b3: Spikedace areextirpated from the middle Gila River

and any spikedace found there weredisplaced by flooding from AravaipaCreek.

Our Response: Spikedace wererecorded from the middle Gila Riverhistorically (Minckley 1973) and asrecently as 1991 (Jakle 1992) and are notconsidered extirpated. Somecommenters believe the 1991 record ofone spikedace in the middle Gila Rivernear Florence represents a fishdisplaced during some unspecifiedflood event from Aravaipa Creek, 50miles upstream, and does not representa population in the Gila River. However,in the year preceding the Octobersampling, there was only one marginallysignificant flood, which occurred inMarch (USGS discharge records). It isunlikely that such a relatively minorflood would displace spikedace 50miles downstream and that thedisplaced fish would be surviving 6months later in what the commentersassume is habitat unsuitable to supporta resident population of spikedace. Inaddition, it is even more unlikely that,at the precise time of the only samplingconducted that year, the displaced fishwould be present at one of the 7 sitessampled, totaling less than 1 mile of the50 mile reach. Given the sparsesampling in the middle Gila, it is farmore likely that the 1991 spikedacerepresents a small population of



spikedace either permanently residentin that area or which occupy the area ina periodically fluctuating patterndependent upon conditions.Documentation of such smallpopulations is very difficult and oftenresults in false declarations ofextirpation (Mayden and Kuhajda 1996).

Comment 4b4: Spikedace areextirpated from the Middle Fork GilaRiver.

Our Response: Spikedace have notbeen recorded at a long-term study siteon the middle Fork Gila River since1995 (Propst and Stefferud, unpub.data). No surveys of the rest of thestream have been conducted recentlyand the present status of the spikedacein the Middle Fork is uncertain. Failureto record spikedace for four years at afixed sampling station may indicate alow population level but does notsupport a declaration of extirpationfrom the entire stream.

Comment 4b5: Spikedace areextirpated from the Verde River.

Our Response: Spikedace continue tobe recorded from the Verde River,although since 1996 they have been veryrare, with none found in 1997 and 1998(Rinne et al. 1999a) and only two foundin 1999. This dramatic fluctuation issimilar to earlier fluctuations, althoughbetter documented.

Comment 4b6: Loach minnow areextirpated from Eagle Creek; loachminnow found there since 1995 werestocked from elsewhere by organizationsknown to have programs for plantingendangered species, and the 1994records of loach minnow in Eagle Creekare not valid because they have not yetbeen published in a peer-reviewedjournal.

Our Response: Loach minnow werefirst recorded from Eagle Creek in 1950(Univ. of Michigan museum specimensNo. UMMZ 162744). Despite frequentsampling (Marsh et al.1990), they werenot again recorded until 1994 (Knowles1994, Knowles 1995). This illustratesthe need for caution in concluding thata population has been extirpated. Fish,particularly small species withrelatively cryptic habits, are often verydifficult to locate when populationlevels are very low.

Loach minnow had been presumed,incorrectly, to be extirpated from EagleCreek. Loach minnow were not stockedinto Eagle Creek by any agency orgovernmental entity. We are not awareof, nor have we permitted, anynongovernmental groups to plant listedfish in Arizona. Genetic testing hasshown the loach minnow in Eagle Creekto be a probable unique lineage differingfrom all other loach minnow. We haveno evidence that these fish could have

been planted from any other population(A. Tibbets, pers. comm. March, 2000).Sampling records from 1994 areconsidered valid records. Much of themonitoring of populations ofendangered and threatened species isconducted by agencies and is placedinto agency reports, such as the one inwhich these records are found. The1995 Eagle Creek loach minnow recordshave also been vouchered withspecimens in the Arizona StateUniversity Collection of Fishes (No.ASU165).

Comment 4b7: Both spikedace andloach minnow have been extirpatedfrom the upper Gila River below theMiddle Box (below Redrock, NewMexico) and any spikedace or loachminnow found in that area weredisplaced by flooding from the Cliff-GilaValley.

Our Response: Spikedace and loachminnow continue to be found in theGila River below the Middle Box, anddepending upon conditions may befound from the mouth of the Boxdownstream to about the Arizona/NewMexico boundary. They were recordednear the Middle Box mouth and in theLower Box at Fisherman’s Point in 1998(Propst and Stefferud unpub. data,Propst 1998) and at the Virden diversionin 1999 (Rinne et al. 1999b).

Comment 4b8: The San FranciscoRiver is not occupied by spikedace andis occupied by loach minnow onlyabove the confluence with the BlueRiver.

Our Response: The San FranciscoRiver is currently occupied by loachminnow downstream from the mouth ofthe Blue River (Anderson and Turner1977, J.M. Montgomery ConsultingEngineers 1985, Bagley et al. 1995). Thedownstream extent of this population isnot known precisely and likelyfluctuates over time depending uponwater and sediment levels, flooding, andother factors. However, it is known toextend at least 10–15 miles downstreamfrom the confluence with the BlueRiver. Historical records of spikedacedownstream (Minckley 1973) andupstream (Minckley 1973, Anderson1978) from the lower San FranciscoRiver, and the presence of apparentlysuitable habitat in that area, support thepresumption of historical presence ofspikedace. Past pollution events fromthe mines in the Clifton area, along withother human-caused alterations, causedthe lower San Francsico River to bebarren of fish at one time (Chamberlain1904), have resulted in fish kills sincethat time (Rathbun 1969 as cited inMinckley and Sommerfeld 1979), andlikely were a significant factor in theloss of spikedace and loach minnow

from the lower San Francisco River andadjacent Gila River. The amelioration ofthese pollution events through modernmanagement and regulation haseliminated them as a limiting factor torestoration of spikedace and othernative species in the lower SanFrancisco River.

Comment 4b9: The San Pedro River isnot now and has never been occupiedby either spikedace or loach minnow.

Our Response: The San Pedro River isthe type locality for spikedace and loachminnow. They were first collected therein 1840 and again in 1846 (Miller 1961),and were described from specimenstaken there in 1851 (Girard 1856). Theywere taken periodically over the years;loach minnow were last recorded fromthe San Pedro in 1961 (University ofArizona museum No. UAZ95–190), andspikedace were last recorded there in1966 (Arizona State University museumNo. ASU 2282). See also responses tocomments 4b16(c) and 4b16(j).

Comment 4b10: It was suggested thatareas which are occupied by spikedaceor loach minnow only under certainconditions or which are colonizedduring periods when streamflows arehigher than average should not beconsidered essential to the species andshould be omitted from the criticalhabitat.

Our Response: Spikedace and loachminnow, like many southwestern fishes,have a life history pattern of expansionand retraction of occupied areas inresponse to flow and other habitatconditions. To ensure the survival andrecovery of species with this type ofpattern it is essential to conserve notonly the core habitat into which thespecies shrinks in times of poorconditions, but also the habitat intowhich it expands during times of goodconditions (Moyle and Sato 1991, Meffeand Carroll 1994). The absence ofspikedace and/or loach minnow from anarea during certain periods or undercertain conditions does not mean it is inunoccupied habitat.

Comment 4b11: Several commenterssuggested that, since several of theproposed streams have portions that dryeither seasonally, during droughtconditions, or for other periodicreasons, therefore those streams do notmeet the proposed constituent elementsdescription of permanent flowing waterand so do not qualify as critical habitatfor spikedace and loach minnow.

Our Response: Spikedace and loachminnow, along with most of the nativefishes of the southwest, evolved instream systems that had portions whichperiodically lost flow. The species areadapted to this phenomenon and persistin flowing areas that remain and



recolonize the dewatered areas onceflow resumes. Over the past 150 years,the extent of areas in the Gila basin thatperiodically lose flow has increased dueto human alterations of the watershedsand stream channels and diversion ofthe streamflows.

Hydrology-based definitions ofstreams as ‘‘perennial,’’ ‘‘intermittent’’(both spatially and temporally), or‘‘ephemeral’’ are confusing, oftenmisused, and may not relate to fishneeds. Although a stream may becharacterized by some as ‘‘intermittent,’’it may still have substantial areas whereflow is permanent, although those areasmay not always be in precisely the samelocation. If sufficient areas of flowpersist, and if all other habitat needs aremet, then the stream is suitable for thetwo fish species whether or not there isflow throughout all areas at all times.Aravaipa Creek, one of the bestremaining habitats for these two species,is an ‘‘intermittent’’ stream, whichseldom flows in the upper half of itscourse, and often does not flow forseveral miles above its confluence withthe San Pedro River (Minckley 1981).However, approximately 20–25 mi ofstream presently flow at all times andsupport healthy populations ofspikedace and loach minnow (Bettaso etal. 1995).

The critical habitat designation alsospecifically includes many areas thatlose flow periodically, and some whichmay be dry during most times.Maintenance of those areas in a natural,or only slightly modified, state isessential to spikedace and loachminnow. During high flows they serveas connecting corridors for movementbetween the areas of permanent flowand because they are important inmaintenance of natural channelgeomorphology. Criteria for what mightconstitute adverse modification ofcritical habitat may be different for thesestream reaches than for occupied orperennial flow areas; however, theirmaintenance is essential to the long-term survival and recovery of spikedaceand loach minnow.

There are many areas in the criticalhabitat where flows are artificiallyaltered by human diversion and uses,up to and including complete loss offlow. In some of these areas, changes inmanagement may potentially increaseduration of flows and the length ofstream channel with permanent water,thus making them valuable for recoveryand survival of spikedace and loachminnow. A good example of this isFossil Creek, where the proposedrelicensing of the Childs-Irvinghydropower plant would involve

restoration of some level of flow to thelower stream channel.

Comment 4b12: All streams proposedfor designation of critical habitatcontain some nonnative aquatic species,raising comments from many partiesthat none of the streams proposed meetthe proposed constituent elementsdescription of few or no predatory orcompetitive nonnative species present,and therefore do not qualify fordesignation as critical habitat. Severalcommenters went further to state that nostream that contains nonnative fishcould be considered essential to theconservation of spikedace and/or loachminnow.

Our Response: The constituentelements have been rewritten to clarifythe role of nonnative aquatic species inthe suitability of habitat for designationas critical for spikedace and loachminnow. The level of nonnative speciesthat may be present in habitatconsidered to be suitable variesdepending upon the circumstances.Some nonnative species, such asrainbow trout, appear to have littleeffect on spikedace or loach minnow(see response to comment 7b, below).Others, such as flathead catfish(Pylodictis olivaris) have serious adverseeffects. In some streams, the habitatcomplexity and distribution may allowspikedace and loach minnow to coexistwith nonnative aquatic species when,under other circumstances, thatnonnative may eliminate the twonatives. Some unoccupied streamsdesignated for critical habitat may havenonnative species present that will becontrolled or removed beforereestablishment of the two native fishes.Although the fewer nonnative aquaticspecies that are present, the better thesituation for spikedace and loachminnow, the presence of nonnativeaquatic species does not eliminate anarea from consideration as criticalhabitat.

Comment 4b13: The upper end of OakCreek and the Gila River in the Duncan-Virden and Safford valleys were notincluded in the proposed criticalhabitat, in part because of urbandevelopment. Therefore, the SanFrancisco River in and below Clifton,the Gila Box, and portions of the SanPedro and Verde Rivers do not qualifyas critical habitat because of urban andother human uses of those areas.

Our Response: Urban and suburbandevelopment alone do not necessarilycause a stream to become unsuitable forspikedace or loach minnow. For theupper end of Oak Creek, the substantialurban development is not the only afactor considered in the omission of thatarea from the proposed designation.

Habitat in the portions of upper OakCreek omitted from the proposeddesignation rapidly becomesincreasingly unsuitable due to streamgradient, substrate, and other inherentecological factors. Because the adjacentdesignated habitat is unoccupied, andsince upper Oak Creek has no value asa movement corridor to other suitable oroccupied habitat, there are nooverriding reasons for extending thecritical habitat designation to includethe small additional area that is in theurban zone.

The Duncan-Virden Valley issubstantially altered by agricultural,and, to a small extent, urbandevelopment, but still supportsspikedace and loach minnow in itsupper portion (Rinne et al. 1996b).Information received during thecomment period indicates that more ofthis reach of the Gila River may havebeen appropriate for consideration ascritical habitat, and its inclusion will bere-evaluated during future revision ofthe critical habitat for spikedace andloach minnow.

The Safford Valley was historicallysuitable habitat for spikedace and loachminnow, but is now highly altered,primarily by agricultural practices, andprovides only partially suitable habitatwith potential for improvement withmanagement. Since it is adjacent tounoccupied habitat and provides nomovement corridor between moresuitable areas, the added value ofincluding the valley portion of thestream was considered low.

The lower San Francisco River, on theother hand, may be occupied and isadjacent to documented occupiedhabitat. Although altered, it stillcontains substantial areas of suitablehabitat, and it provides a connectionbetween the occupied area and theunoccupied recovery area in the GilaBox. The small amount of urbanizationand the alterations due to flood controland mining are not significant enough tonegate the value of the stretch forspikedace and loach minnow survivaland recovery. The Gila Box is in aNational Riparian Conservation Areaand does not have urban or suburbandevelopment. There are no heavilyurbanized areas along the San PedroRiver within the area proposed forcritical habitat. The Cottonwood-to-Camp Verde stretch of the Verde Valleyis heavily urbanized but still containssubstantial suitable, occupied habitatwhich, if appropriate diversionmanagement takes place, could besignificantly improved. The area is alsoa connecting corridor between occupiedupstream areas and importantunoccupied downstream recovery areas.



Comment 4b14: The habitat in OakCreek is not suitable for spikedace orloach minnow due to heavy recreationuse.

Our Response: We agree that heavyrecreation use in Oak Creek may beadversely impacting the stream and itsfish habitat. However, we believe thatsuitable habitat still exists for spikedaceand loach minnow and, with propermanagement, recreation and recovery ofthese two fishes can be compatible.

Comment 4b15: Some commentscontend that the San Francisco Riverbelow its confluence with the BlueRiver and the Gila River in the Gila Boxare too large to be suitable for eitherspikedace or loach minnow becausethey are larger than the Verde Riverbelow Fossil Creek, which was notincluded in the designation. In addition,concern was expressed that the Gila Boxcontains too much sediment to supportspikedace and loach minnow.

Our Response: The San FranciscoRiver below its confluence with theBlue River and the Gila River below itsconfluence with the San Francisco arewell within the historical range of bothspecies and contain suitable habitat.Median flows (discharge) at the gaugingstation near Clifton on the SanFrancisco River are similar to those forthe Verde River near Clarkdale, withinoccupied spikedace habitat (Pope et al.1998). Median flows at the gaugingstation at the head of the Safford Valleyare about 25 percent less than those inthe Verde River below Fossil Creek(Pope et al. 1998). In addition, the VerdeRiver below Fossil Creek is well withinthe historical range of spikedace andloach minnow and, as some commentershave pointed out, has sufficient suitablehabitat to meet critical habitat criteria.

Comment 4b16: Many commenterscontend the San Pedro River does nothave suitable habitat for spikedace andloach minnow based on a number offactors. These include—(a) The riverwas changed dramatically by a late1800’s earthquake and no longer haspermanent flowing water; (b) toxic minewaste spills from Mexico occurperiodically and are not within ourcontrol; (c) the extirpation of spikedaceand loach minnow from the San Pedro30 years ago is conclusive evidence thatthe habitat is not suitable; (d) thegradient in the river is too high or toolow; (e) the substrate is not theappropriate size; (f) the San Pedro Riverdoes not have a snowmelt hydrograph;(g) recent reestablishment of beaverprecludes spikedace and loach minnowoccupation; (h) there is too much waterdepletion by humans; (i) riparianvegetation is destroying the aquatichabitat and increasing nonnative fish;

and (j) the statement that this is the‘‘type’’ locality is inappropriate becauseit is not the right type of habitat.

Our Response: (a) The fish of theupper San Pedro River are sampledtwice yearly, once by the BLM and onceby the Bureau of Reclamation (Stefferudand Stefferud 1989, 1990, 1998,Girmendonk et al. 1997, Clarkson 1998,Marsh 1999). The Middle San Pedro issampled annually by the Bureau ofReclamation. Other, irregular samplingsoccur. This work has confirmed thatthere is permanent water in the river,that flow supports three native andseveral nonnative fish species, and thatthere is suitable or potentially suitablehabitat for spikedace and loach minnowin both the upper and middle San PedroRiver. Whatever the effects of the 1887earthquake on the habitat and flow ofthe San Pedro River, spikedace andloach minnow were present prior to theearthquake and for almost 100 yearsafter the earthquake. Therefore, it isunlikely that the earthquake was adefinitive factor in the presence orabsence of habitat for spikedace andloach minnow.

(b) Toxic flow events in the past frommines near Cananea, Sonora, Mexico,have had highly adverse effects to thefauna of the San Pedro River (Eberhardt1981). In fact, it is likely that suchevents in the late 1960’s and early1970’s were responsible for extirpatingspikedace and loach minnow from theSan Pedro River. Other human activitiesin the upper San Pedro River in Mexicocan potentially adversely affect the useof the U.S. portion by spikedace andloach minnow. However, we intend towork with the governments of Mexicoand Sonora to minimize adverse effects.

(c) The overall gradient of a riverdoesn’t change over 100 years, barringserious geologic events. Although therewas a substantial earthquake insoutheastern Arizona in 1887, there isno evidence that it altered the overallgradient of the river (DuBois and Smith1980, Hereford 1993). The San PedroRiver is the type locality of bothspikedace and loach minnow andsupported both species when firstsampled in 1840 and for 120 years afterthat, demonstrating its suitability for thetwo species. Please also see ourresponse to comment 4b9.

(d) Although fine substrate ispredominant in most reaches of the SanPedro River, the upper river in theRiparian National Conservation area hassignificant areas of riffle habitat withgravel and cobble substrates that arecapable of supporting spikedace andloach minnow (Stefferud and Stefferud1989, Velasco 1993). The middle SanPedro River, at present, has little

substrate of suitable size for spikedaceand loach minnow. However, substratesize is a function of many other rivervariables, such as velocity, flow volume,bank structure, and sediment source.Personal observations by our biologists,along with discussion with biologistsfrom The Nature Conservancy, AGFD,BLM, and the Desert Fishes RecoveryTeam support a conclusion that thisportion of the San Pedro River has astrong potential for enhancement to thepoint where it may once again supporthealthy populations of spikedace andloach minnow. One commentercompared average substrate particlesizes in the San Pedro River with thosein Aravaipa Creek and concluded thatsince the latter were larger, the SanPedro River does not have suitablesubstrate for spikedace and loachminnow. However, fish usemicrohabitats within the overall streamand those microhabitats may havesubstrates, or other constituents, thatdiffer from the ‘‘average.’’ For example,a mile of stream may be primarily ashallow, sandy run, but it may alsocontain deep pools at rock bends androot wad overhangs. A fish whichrequires pools could not survive in theaverage shallow depth and sandysubstrate, but may still be presentbecause it uses the ‘‘nonaverage’’ habitatof pools.

(f) The role of snowmelt in thehydrograph of the San Pedro River hasnot changed over the past 160 years, andspikedace and loach minnow occupiedthe San Pedro River during at least 120of those years. This informationsupports a conclusion that a snowmelthydrograph is not a determining factorin suitability of a stream system forspikedace and loach minnow.

(g) The BLM and the AGFD haveassured us that the reestablishment ofbeaver can be controlled and managedto prevent severe loss of potentialrecovery for the two fishes. Beaver werenative to the San Pedro River andhistorically coexisted with spikedaceand loach minnow, both here andelsewhere. Given careful management,we believe that beaver, spikedace, andloach minnow reestablishments can allsucceed in the San Pedro River.

(h) We are working closely with anumber of Federal, State, and localentities to ensure that flows in the SanPedro River continue.

(i) Although riparian vegetation doesremove a certain portion of the surfaceand subsurface flow of a river throughevapotranspiration, (the movementthrough, use of, and evaporation fromthe surface of water by plants) it alsoprovides many irreplaceable benefits tothe aquatic ecosystem (Auble et al.



1994, Bagley et al. 1998, Osborne andKovacic 1997, USBLM 1990). Withouthealthy riparian vegetation a stream issubject to, among other things,increased erosion, increased watertemperatures, and a decrease ininstream community diversity formedby streambanks and large woody debris.Under some circumstances increasedriparian vegetation may increasenonnative fish species by increasing thetypes of habitats favored by thosespecies. However, a healthy ripariansystem will provide a higher diversity ofaquatic community types, thus allowinga greater degree of coexistence betweennative and nonnative fishes.

(j) The San Pedro River is the ‘‘typelocality’’ for spikedace and loachminnow. The type locality of a speciesis simply the area from which the ‘‘typespecimens’’ were taken. Type specimensare those preserved specimens that wereused to first describe the species. Pleasealso see our response to comment 4b9.

Comment 4b17: There were manycomments which contended that EagleCreek does not have suitable habitat forspikedace and loach minnow based ona number of factors. These included—(a)it is an artificial system with flowscoming from a transbasin diversion andgroundwater pumping; (b) there areseveral distinct topographic stretchesand spikedace and loach minnow couldnot occupy all of those differenttopographic areas; (c) the historicalpresence of beaver in Eagle Creek makethe system unsuitable to have eversupported spikedace and loach minnowand the continued presence of beavermake the habitat presently unsuitablefor the two fish species; and (d) neitherspikedace nor loach minnow were everpresent above Sheep Wash due tounsuitable habitat historically and anysuitable habitat there now will becomeunsuitable as Eagle Creek in that areareverts to a more natural system.

Our Response: (a) Spikedace andloach minnow are both known to havehistorically occurred in Eagle Creek.Although the stream has been modifiedby human augmentation of the flows,that modification has not been sufficientto eliminate either species. Thecontinued survival of both species inthe artificially modified stream supportsthe position that the habitat is suitable.Modification of the stream does notautomatically disqualify an area fromdesignation as critical habitat andconsideration as essential to theconservation of the species. Theartificial augmentation of Eagle Creekflows may help mitigate other habitatalterations that have decreased naturalflows in the system, thus resulting in asystem that is more ‘‘natural’’ than it

would be without the artificialaugmentation.

(b) It is true that Eagle Creek hasdistinct topographic areas, includingcanyon reaches and valley reaches.However, all of the topographic areaswithin the proposed section of EagleCreek contain riffle habitats suitable forspikedace and loach minnow, althoughin varying proportions. As stated in thisrule, it is important to protect areas oflarge enough size and connectivity toallow for fluctuations in habitat overtime and movement of fish betweenareas.

(c) Spikedace and loach minnowhistorically coexisted with beaver inmost, if not all, of their historical range.There is no evidence to indicate that thepresence of beaver preclude spikedaceand loach minnow presence.

(d) In 1950, Miller recorded loachminnow from near Sheep Wash (Marshet al. 1990). In 1994 and again in 1995,Arizona State University personnelrecorded loach minnow nearHoneymoon Campground, about 15miles upstream from Sheep Wash(Knowles 1994, 1995). Spikedace werefirst collected in 1985 (Bestgen 1985) inlower Eagle Creek. They were collectednear Sheep Wash through 1987, andhave not been collected since that time.There is presently suitable habitat forboth species throughout the upper areaof Eagle Creek above Sheep Wash.Although upper Eagle Creek has beensubstantially modified by humanactivities, the topography, geology, andstream geomorphology indicate that it islikely the stream in that area historicallysupported suitable habitat for spikedaceand loach minnow and that ‘‘reversion’’to a more natural state will not preventthe presence of those two species.

Comment 4b18: We receivedcomments that no suitable habitat existson Fossil Creek for spikedace and loachminnow. This was based on a 1998USFS NEPA compliance review on anadjacent livestock grazing allotment.Commenters also felt the hydropowerdiversion of Fossil Creek is favorable tospikedace and loach minnow because itprevents upstream migration ofnonnative fish, and believe it ispremature to assume flows in FossilCreek will be enhanced as a result ofhydropower relicensing.

Our Response: The information onwhich the USFS finding was based wasnot provided or available, therefore wecannot assess why it differs frominformation in our files and that wehave received from other sources,including USFS documents regardingthe Childs/Irving hydropowerrelicensing.

The diversion of almost all flow fromlower Fossil Creek for hydropower doesinhibit upstream migration of nonnativefish. However, we believe there aremore effective ways to preventnonnative incursion than flowdiversion. The application of thehydropower licensee to the FederalEnergy Regulatory Commission includesa proposal to return some flow to lowerFossil Creek. In addition, negotiationsare ongoing that may result in evenlarger flows in lower Fossil Creek.Either way, the stream is expected torecover suitability for spikedace andloach minnow.

Comment 4b19: One commenter feltthat Rye Creek did not provide suitablehabitat for spikedace and loach minnowand that the statement in the ruleregarding the presence of a native fishcommunity was in error.

Our Response: Rye Creek is poorlysampled, but Abarca and Weedman(1993) reported a fish communitydominated by two native fishes—longfindace (Agosia chrysogaster) and desertsucker (Pantosteus clarki), and Bancroftet al. (1980) also reported Sonora sucker(Catostomus insignis), speckled dace(Rhinichthys osculus), and Gila chub(Gila intermedia). In 1995, a samplingrecorded all five of those native species(Weedman et al. 1996), which is a largenumber of native species remainingcompared to most streams in the GilaBasin. Of the seventeen native fishes ofthe Gila River basin, only one stream(Eagle Creek) has eight speciesremaining, three others have seven(upper Gila River in New Mexico, upperVerde River, and Aravaipa Creek), andthe San Francisco and Blue Rivers eachhave six species remaining. Twononnative species were also reported inRye Creek in 1980, three in 1993, andthree again in 1995, which composedless than 10 percent of the fish present.The presence of this native fishcommunity, plus the presence of whatis reported by biologists with expertisein spikedace and loach minnow to besuitable habitat (J. Stefferud, USFS,pers. com. February 2000) is sufficientevidence to include Rye Creek in thedesignation. Suitable areas to recoverspikedace and loach minnow in the SaltRiver Basin are very limited and webelieve it is important that the TontoCreek complex include more than justthe mainstem. Information on othersuitable tributaries was provided byUSFS comments on the proposed rule.These tributaries may also providerecovery habitat that may be consideredfor possible designation in a futurerevision of the critical habitat forspikedace and loach minnow.



Comment 4c: Several commentersrecommended additional areas beincluded in the designation of criticalhabitat. Those areas are listed in Table4.

Our Response: Because of therequirement for all proposed

designation to undergo public reviewand comments, areas normally are notadded to the designation without anadditional proposal. We will considerall information provided on additionalareas in future revision of the criticalhabitat for spikedace and loach

minnow. Based on the best availablescience at this time, we determine thatthe areas designated by this rule aresufficient to conserve the species. Ourresponses on individual areas suggestedfor addition are given in Table 4.

TABLE 4.—REQUESTS FOR ADDITIONS TO CRITICAL HABITAT AND RESPONSE

Complex number Stream reach Reason for recommended addition Fish and Wildlife Service response

1 ......................... Sycamore Creek (upper Verde basin) ... Why other Verde tributaries but notSycamore Creek?

Except at mouth, gradient too high andhabitat not suitable.

1 ......................... Verde River from Fossil Ck to SheepBridge.

Believe is suitable for recovery ofspikedace and loach minnow.

Will seek additional information.

1 ......................... Lower East Verde River ......................... Believe is suitable for recovery ofspikedace and loach minnow.

Believe unsuitable—will seek additionalinformation.

1 ......................... Red Creek .............................................. Believe it suitable for recovery ofspikedace and loach minnow.


1 ......................... Lower Tangle and Sycamore Creeks(middle Verde basin).

Believe is suitable for recovery ofspikedace and loach minnow.


3 ......................... Slate and Gun Creek ............................. May meet criteria for critical habitat ...... No information on these creeks—willseek information.

4 ......................... Mescal Creek ......................................... In spikedace recovery plan as possiblereintroduction site.

Could contribute to diversity and com-plexity in complex.

5 ......................... Babocomari River .................................. May meet criteria for critical habitat ...... Lower and upper ends not suitablehabitat, no information on middle por-tion—will seek further information.

6 ......................... Bonita Creek above Martinez Wash ...... Has suitable habitat ............................... Information from San Carlos Dept. ofNat. Resources is that no suitablehabitat exists.

6 ......................... Eagle Creek below Phelps Dodge dam Omission is inconsistent with emphasison continuity in critical habitat.

Would contribute to connectivity, buthas little habitat due to water diver-sion.

7 ......................... Mangas Creek ........................................ Believed to have spikedace population Channel is highly eroded and no signifi-cant surface flow during most times—will seek information.

None .................. Salome Creek ........................................ May meet criteria for critical habitat ....... Will seek additional information.None .................. Cherry Creek .......................................... May meet criteria for critical habitat ....... Believe too little low to moderate gra-

dient areas are present—will seek ad-ditional information.

None .................. White River ............................................ Occupied and considered biologicallyimportant.

See section on Tribal issues.

None .................. Gila River ‘‘as it flows through Phoenix’’ Has similar potential to areas proposed Assuming commenter meant Gila Riversouth of Phoenix, river is diverted anddry most of time, channel highly de-graded, not suitable for these fish.

Comment 4d: Several commentersidentified areas they believe have noneed for critical habitat designation.

Comment 4d1: Designation of criticalhabitat on Federal and State lands is notneeded, according to a number ofcommenters, because it is alreadyprotected by a number of laws,regulations, policies, and plans.Designation of critical habitat on privatelands is also not needed because theyare privately owned and critical habitatdesignation does not provide anyprotection.

Our Response: Although there ismanagement ongoing on most Federallands, and to a limited extent on Stateand private lands, there continue to bemany threats to these two fishes. Criticalhabitat may enhance management onFederal lands, and may help prevent

adverse impacts on private lands due toFederal actions.

Comment 4f2: Some commentssuggested that critical habitatdesignation is not necessary because thethreats to the species are from nativeand nonnative fish rather than habitatalteration or loss. In support of this areport by Propst et al. (1986) was citedas reporting that a nonnative fish, redshiner (Cyprinella lutrensis), and twonative fish, longfin dace, and speckleddace, are competitive species known orobserved to displace spikedace andloach minnow. One comment alsocontends that three other native fish,Gila chub, Sonora sucker, and desertsucker are predatory, with theimplication they consume spikedaceand loach minnow to the detriment ofthose species.

Our Response: Both habitat alterationand loss and nonnative competition,predation, and other effects havecontributed substantially to thethreatened status of spikedace and loachminnow. Furthermore, these factors areinextricably intertwined. Habitatalteration has been a significantcontributor to nonnative fish invasion,spread, and adverse effect. In turn,nonnative species have been asignificant contribution to the inabilityof native fish to thrive in alteredhabitats. There is no information toindicate that either longfin dace orspeckled dace adversely affectspikedace or loach minnow and the1986 report does not make those claims(D. Propst, New Mexico Dept. of Gameand Fish; pers. com. March, 2000). Allfour species are native to the Gila Riverbasin and longfin dace and speckled



dace were part of the community ofspecies in which spikedace and loachminnow evolved. Differences in theirhabitat requirements enable the fourspecies to coexist in the same stretch ofstream. Their relative abundance maychange due to habitat changes, but is notknown to change due to interspecificinteractions.

Gila chub, although partly predatory,feeds mostly on organic debris andinvertebrates and occupies habitat quitedifferent from that of spikedace andloach minnow, thus making directpredation of Gila chub on eitherspikedace, loach minnow, or any fish,an unlikely occurrence (Weedman et al.1996). Gila chub distribution hasdeclined substantially in the past 100years and it shares few stream reacheswith either spikedace or loach minnow.Neither Sonora sucker nor desert suckerare known to be predatory; theyconsume organic debris from thesubstrate (Minckley 1973).

Comment 4d3: Some of the areasproposed are already included indesignated critical habitat for otherspecies, such as the southwesternwillow flycatcher, razorback sucker(Xyrauchen texanus), Huachuca waterumbel (Lilaeopsis schaffneriana var.recurva), and cactus ferruginous pygmy-owl (Glaucidium brasilianumcactorum). Therefore, some commentersfelt the additional protection forspikedace and loach minnow isunnecessary and might lead to adverseeffects on the species for which the areawas already designated as criticalhabitat.

Our Response: The habitat needs ofspikedace and loach minnow are notidentical to those of the other fourspecies whose designated criticalhabitat overlaps that designated for thetwo fish. Therefore, protection of thehabitat of those species will notnecessarily suffice for spikedace andloach minnow, although we expect thatprotection of the habitat of one specieswill often result in at least partial ortotal protection for the other species inthe same area. Also, the critical habitatdesignation for other species would beremoved upon the delisting of thosespecies. Thus, the protection providedfrom the one species’ designation doesnot assure the long-term protection forothers.

We do not anticipate protection of oneof the species for which the area isdesignated as critical habitat as beingadverse to any of the others. However,during section 7 consultation, we wouldconsider the interaction and possibleconflict of requirements for differentlisted species. The purpose of the Act isprotection of ecosystems and we

encourage management of areas withlisted species on ecosystem principleswhich will ensure benefits to all thespecies in the area.

Comment 4e: Some commentscompared the critical habitat to therecovery plans for spikedace and loachminnow. In particular, a concern wasraised that some areas proposed forcritical habitat were not specificallyidentified in the recovery plans asrecovery areas.

Our Response: Although the recoveryplans for the two fishes identify someareas specifically as having a strongrecovery potential, they also call foridentification of other reaches withrecovery potential. That process hasbeen ongoing in the nine years since therecovery plans were prepared anddiscussions among experts on thespecies have assisted us in identifyingthe areas in the designated criticalhabitat.

Comment 4f: A number of commentswere received that expressed concernthat designation of critical habitatwould have adverse effects on spikedaceand loach minnow.

Comment 4f1: The Blue River was notoccupied by loach minnow in 1904 butthey became common by 1995 as aresult of livestock grazing management.Critical habitat designation will changegrazing management with adverseimpacts to loach minnow.

Our Response: There are no knownrecords of native fish from the BlueRiver prior to 1904. In 1904,Chamberlain conducted a brief survey offishes of the Blue River from its mouthto the confluence with K.P. Creek(Chamberlain 1904, Minckley 1999). Hedid not find loach minnow; he foundonly one native fish, the longfin dace.The reason for the scarcity of all othernative fish is unknown, but probablyrelates to the human alterations of thestream channel and watershed that ledAldo Leopold to call the Blue River‘‘ruined’’ (Leopold 1921, Leopold 1946).Although Chamberlain’s surveyindicated that loach minnow wereclearly not common in that portion ofthe Blue River in 1904, it does notprovide evidence regarding historicaloccupation of spikedace and loachminnow in the Blue River, nor does italone support a conclusion that eitherspecies was extirpated from the river.The next records of a native fish surveyin the Blue River are from 1977, whenAnderson and Turner found five speciesof native fish, including loach minnow.In the mid-1990’s, loach minnow wererelatively common in the Blue River,although they were the rarest of the fiveremaining native species (AGFD 1994,Bagley et al. 1995).

We have no data to indicate thatgrazing management is responsible forintroducing or enhancing loach minnowin the Blue River. Caution must be usedin interpreting data from a point-in-timesample such as Chamberlain’s. Bothspikedace and loach minnow exhibit thestrong fluctuations in population levelstypical of small, short-lived species, and1904 may have been a low-point in theirpopulation cycles for many reasonsrelated or unrelated to livestock grazingor other human influences.

Comment 4f2: A number ofcommenters alleged that designation ofcritical habitat will be detrimental tospikedace and loach minnow byremoving human-caused disturbance(particularly livestock grazing) of theaquatic ecosystem which will cause thehabitat to change into an unsuitablecondition for spikedace and loachminnow. They believe the alteredhabitat will be highly suitable fornonnative fish, thus allowing them toexpand and severely reduce or eliminatespikedace and loach minnow. They citethe recent Verde River work of JohnRinne, of the USFS Rocky MountainResearch Station, which they believewas overlooked in the proposed rule.

Our Response: It is correct thatspikedace and loach minnow, alongwith all of the native fish community ofthe Gila River basin, require a certainlevel and type of disturbance in theirhabitat. The primary factor in its naturaldisturbance regime is periodic flooding,although other natural processes such asfire and erosion also contribute to thenatural disturbances influencing aquaticsystems. These processes are acharacteristic of healthy dynamic riversystems and natural flooding andhydrographs are part of the constituentelements described above.

It is also true that under certaincircumstances human-causeddisturbance may provide benefits to thespecies, such as rejuvenation ofspawning gravels or removal ofnonnative species. However, there is noinformation that indicates human-caused disturbance can mimic thecomplex natural disturbance processes,with the possible exception ofprescribed burning.

We are aware of Dr. Rinne’s work inthe Verde River and did not overlookthe papers discussing his work (see ourresponse to comment 4(g)) Dr. Rinne’swork provides speculation on thepotential connection between the lowpopulation levels of spikedace in theVerde River that have occurredconcurrently with the removal oflivestock from the riparian corridor(Rinne 1999a, 1999b). Disturbancecreated by livestock grazing or



bulldozing the stream channel are fardifferent from that caused by flooding.

Comment 4f3: Designation of criticalhabitat on private lands will result inloss of access to those lands andtherefore such designation cannot beessential to the conservation (recovery)of the spikedace and loach minnow.

Our Response: We will continue towork with any private landownerswhose lands support habitat occupiedby, or presently or potentially suitablefor, spikedace and loach minnow, andwho would like to voluntarily cooperatein conservation activities. This wouldbe the case with or without criticalhabitat designation.

Comment 4f4: One commenterbelieves that exclusion of San CarlosTribal lands will preclude managementof native fish in the middle Gila Riverbelow the confluence with the SanPedro River due to incompatible goals ofthe San Carlos Apache Tribe.

Our Response: We are not aware ofany provision of the critical habitat thatwould preclude management of nativefish in the middle Gila River.Furthermore, we do not believe self-management of San Carlos ApacheTribal lands will negate theconservation of native fishes in themiddle Gila River.

Comment 4f5: Some commenterscontend that the designation of criticalhabitat for spikedace and loach minnowwill prevent flood control and humanmanagement of riparian vegetation,floodplain, and streambank structure.This will prevent or complicate use ofbest management practices and result ina loss of natural river functioning andan increase in flooding and flooddamage. Other commenters assert thatdesignation of critical habitat willhinder proper management of nativefishes and will prevent or inhibitremoval or control of undesirablenonnative species.

Our Response: We do not believe thatnatural river function precludes floodcontrol and human management ofriparian vegetation, floodplain, andstreambank structure. Designation ofcritical habitat will not prevent suchhuman alterations of the ecosystem, butmay result in modifications of thosehuman actions to ameliorate or avoidthe most serious of the adverseconsequences of those actions tospikedace and loach minnow.Designation of critical habitat will notincrease flooding, although it is hopedthat through section 7 consultation wecan ensure watershed managementpractices that will alter flood patternstoward a more natural regime. A morenatural regime will have lower floodpeaks and higher low flows. Increased

upland, riparian, and stream channelconditions should lead to greaterinfiltration and bank storage, thuslowering flood peaks and increasingbase flows.

Critical habitat is not expected tohinder management of native fishes.Such a result would be contrary to thepurpose of the designation. Sincerecovery of spikedace and loachminnow depends upon some controland removal of undesirable nonnativespecies, we anticipate that criticalhabitat designation will assist that effortby identifying areas in need of suchmanagement and inhibiting actions thatincrease nonnative introduction anddistribution.

Comment 4f6: Many commenterswere concerned about the role ofnonnative aquatic species, particularlyfish, in the recovery of spikedace andloach minnow. They believe that riverswithin the Gila basin cannot be restoredfor recovery of spikedace and loachminnow due to the presence ofnonnative species which some suggestcannot be removed or controlled. Theybelieve removal of adverse impacts orimprovement of habitat conditions willalways favor nonnative species.‘‘Restoration’’ will always result inincreases in pools and loss of riffles,runs and glides. Therefore, no areas ofstream needing restoration or habitatenhancement should be included in thecritical habitat.

Our Response: While restoration mayprovide enhanced opportunities fornonnative species as well as for nativespecies, this problem must be dealt withon a site-specific basis. Restoration orenhancement plans must consider thisissue and provide for mechanisms toprevent unacceptable adverse impactsfrom nonnative species. Nonnativespecies in many cases can be completelyremoved using a variety of techniques.In other cases, control measures canreduce nonnative populations toacceptable levels.

Comment 4g: Several commenters feltthat designation of critical habitatshould be delayed because they believemore information or studies are neededfor a valid decision. Others felt that thebest available scientific and commercialinformation was either not used or wasnot sufficient and that the designationwas based on faulty information and‘‘bad science.’’ The most commonlycited evidence of this was what thecommenters felt was failure to considera body of literature by Dr. John Rinne,of the U.S. Forest Service RockyMountain Research Station. Accordingto the commenters, Dr. Rinne hasinformation indicating that the acceptedknowledge on spikedace and loach

minnow and their habitat is incorrect,that there is not clear understanding ofwhat spikedace and loach minnowhabitat management requires, thatspikedace have been extirpated from theVerde River due to removal of livestockgrazing, that human disturbance isnecessary to the survival of these twofish, and that aquatic vegetation isharmful to spikedace.

Our Response: The Act requiresdesignation of critical habitat using thebest available information. Delayingdesignation to obtain more informationis not legally justified. If significant newinformation arises that calls thisdesignation into question, we can reviseit through a new proposal and final rule.

Dr. Rinne is the author of a numberof papers, in peer reviewed journals andother outlets, on spikedace, loachminnow, and other Gila basin nativefishes. All of Dr. Rinne’s work wasconsidered in our analysis leading to theproposed designation (see also commentresponse 4f2). Dr. Rinne is a consultanton the Desert Fishes Recovery Team andhas participated exensively in our workon conservation of spikedace and loachminnow. We are not aware of anystatement in print by Dr. Rinne thatspikedace are extirpated from the VerdeRiver, although he has stated thatspikedace is ‘‘absent’’ from the Verde(Rinne et al. 1999b) and that they are‘‘rare’’ there (Rinne et al. 1999a).Spikedace were collected from theVerde River in spring 1999 by AGFD(AGFD unpub. data) and there is noinformation to support a finding ofextirpation.

Dr. Rinne’s work does not contain anysignificant new information ondistribution, biology, ecology, or otheraspects of spikedace and loach minnowthat contradicts what has been found inearlier work by him and otherresearchers. Dr. Rinne’s conclusionsregarding the role of disturbance inspikedace habitat and the balancebetween nonnative and native fishes hasbeen primarily oriented toward naturalflooding and low flows (Stefferud andRinne 1996, Rinne and Stefferud 1997,Neary and Rinne 1998). We do not findany conclusion regarding the necessityfor human-caused disturbance inspikedace or loach minnow habitat inany of Dr. Rinne’s work. He hasspeculated on the role of livestockgrazing in stream habitat conditions andnoted the downturn in spikedacepopulation that coincided with removalof livestock grazing from the ripariancorridor (Rinne 1999a). He has statedthat he believes we do not know enoughabout livestock grazing impacts on fishand their habitat to make validmanagement decisions (Rinne 1999). Dr.



Rinne’s views on some of these subjectsdo not necessarily reflect all views inthe scientific community working ondesert fishes (Brooks et al. 2000).

Comment 4h: Some commentersobjected to use of any information notin the peer-reviewed literature. Somealso objected to use of survey or studyinformation that was not directlyobtained by us. They believe it isinappropriate for us to rely on the workof other entities.

Our Response: Much of theinformation regarding native fishdistribution and management is inagency documents and other non-peerreviewed literature. This forms part ofthe best available information on thespecies and it would be biologicallyunsupportable to make decisions whichignore that information. Most of thesurveys and studies on native fish areconducted by entities other than us. Werely heavily on information about thesespecies and their habitats from agenciessuch as the state game and fish agenciesand universities.

Comment 4i: One commenter believesthe Service overlooked importantinformation that spikedace can buryunderground and survive extensiveperiods without water. This personstates that spikedace have been foundby local residents in rainwater puddlesin upland areas, such as the parking lotat the Duncan, Arizona, high school.

Our Response: There is noinformation in the scientific literature orwithin the expertise of biologistsworking on spikedace to indicate thatspikedace can either bury undergroundor survive without water. Availableevidence indicates that spikedace dieonly minutes after being removed fromwater. They can, however, survive inonly small amounts of water. In astreambed, there may be small pocketsof water between rocks and underoverhanging banks or rocks that fish canuse to survive short periods of no flow.There have been no valid reports ofwhich we are aware of spikedaceappearing in rainwater puddles inupland areas.

Comment 4j: Some commentsaddressed the issues of continuity andfragmentation. Because certain stretchesof the San Pedro were not included inthe critical habitat designation, thusviolating the principles of habitatcontinuity expressed in the draft rule,one commenter felt that no portion ofthe San Pedro River should be includedin the critical habitat designation. Othercommenters believe that the designatedcritical habitat should be broken up intosmall, isolated segments withoutconnecting corridors to help preventnonnative species from invading the

critical habitat. They believedesignation of connecting areas ascritical habitat will increase nonnativefish movement and adverse effects tospikedace and loach minnow.

Our Response: Although weattempted to designate critical habitatareas that were large and diverse enoughto provide for connections betweenhabitat areas, we omitted certain areasof the San Pedro River. The upper SanPedro River in the Riparian NationalConservation Area is to some extenthydrologically disjunct from the middleSan Pedro River (see USGS hydrologicdata). This, plus the signficant areas ofno flow and no permanent water andthe level of channel alteration andongoing disturbance, led us to omit thatarea. The exclusion of those areas in thecritical habitat designation will not, perse, prevent nonnative species fromusing those corridors and inclusion willnot provide any opportunities fornonnative movement that do not exitwithout the designation. The middleSan Pedro River and its tributaries ofRedfield and Hot Springs canyons forma complex that we think is of sufficientsize and complexity to justify a unit.The lower San Pedro receives most of itsflow from Aravaipa Creek and forms aunit more closely aligned to AravaipaCreek and the middle Gila River than tothe middle San Pedro River, at leastunder present conditions. If additionalinformation becomes available thatindicates the omitted areas in the SanPedro River should be included in thecritical habitat, it may be considered inany later revisions of the designation.

The designation of connecting areasin the critical habitat is, in part, toprovide the opportunity for spikedaceand loach minnow to move betweenstream sections, thus maintainingnatural fluctuation patterns andproviding for recolonization of areaswhich have become depopulated due totemporary conditions. The designationwill also help keep those areas in acondition where natural hydrographsand channel geomorphology aremaintained relatively intact.

Comment 4k: Commenters mentioneda number of pieces of informationwhich they felt were omitted from theproposed rule that should be providedbefore any final decision on criticalhabitat. These included thequalifications of Charles Girard toidentify the type specimens ofspikedace and loach minnow from theSan Pedro River in 1851; the specialmanagement considerations orprotections which would be needed foreach stream segment; the restorationmeasures that would be taken to makeeach segment capable of providing the

constituent elements; streamflow dataon all streams proposed for designationand analyses of those data and theirrelationship to the habitat needs ofspikedace and loach minnow; anexplanation of the science supportingthe importance of the floodplain instream ecology; the recent science on‘‘river pooling’’; a discussion of fishery-livestock grazing dynamics; anddetailed genetic data to support thedifferentiation between populations ofspikedace and loach minnow.

Our Response: The proposed rule is asummary of the information used toformulate the proposal for criticalhabitat designation, as required by theAct. Detailed information can beobtained from the literature cited in theproposed and final rules, the recoveryplans for these two species, as well asin many other literature sources. We canprovide assistance in obtainingliterature on any of the above subjects(see ADDRESSES section).

Comment 4l: A few commenterssuggested that, rather than trying torestore spikedace and loach minnow inthe unoccupied areas proposed forcritical habitat, recovery for the speciesshould be accomplished by raising thetwo fish in captivity and selling themcommercially for aquarium fish and inprivate ponds.

Our Response: The purpose of the Actis to conserve listed species and theecosystems on which they depend.Relegating a species to captivity doesnot conserve the ecosystem on whichthey depend. In addition, spikedace andloach minnow require flowing streams,so are not easily raised in captivity anddo not survive well in aquaria or ponds.

Comment 4m: Some commenterspointed out that spikedace and loachminnow were unsuccessfullyintroduced in Sonoita Creek and SevenSprings Wash. They believe this provesthey cannot be successfully establishedin any areas other than where theycurrently exist and therefore nounoccupied areas should be included inthe critical habitat designation as thereis no probability they can be used forrecovery.

Our Response: The 1968 stocking ofspikedace and loach minnow intoSonoita Creek and 1970 stocking of bothinto Seven-Springs Wash failed(Minckley and Brooks 1985). Thereasons for these failures are unknown;however, repatriation techniques andinformation on these two species andtheir habitat needs has increasedsubstantially since 1970. NeitherSonoita Creek nor Seven-Springs Washhave been proposed for critical habitatfor the two fish. We do not believe thefailure of these stockings discourages



future attempts to reestablish thespecies in areas where they have beenextirpated.

Issue 5: NEPA Compliance

Several commenters questioned theadequacy of our EnvironmentalAssessment (EA) and other aspects ofour compliance with NEPA.

Comment 5a: The Fish and WildlifeService should prepare anEnvironmental Impact Statement (EIS)on this action.

Our Response: An EIS is requiredonly in instances where a proposedFederal action is expected to have asignificant impact on the humanenvironment. In order to determinewhether designation of critical habitatwould have such an effect, we preparedan EA of the effects of the proposeddesignation. The draft EA was madeavailable for public comment on the daythe proposed critical habitat rule waspublished in the Federal Register.Following consideration of publiccomments, we prepared a final EA anddetermined that critical habitatdesignation does not constitute a majorFederal action having a significantimpact on the human environment. Thatdetermination is documented in ourFinding of No Significant Impact(FONSI). Both the final EA and FONSIare available for public review (seeADDRESSES).

Comment 5b: Several countiesrequested Joint Lead Agency orCooperating Agency status inpreparation of an EIS for this criticalhabitat designation. Why were thoserequests denied?

Our Response: Catron and HidalgoCounties, New Mexico, each requestedJoint Lead Agency status to assist us inpreparation of an EIS on the criticalhabitat designation. In addition, CochiseCounty, Arizona, requested either JointLead Agency or Cooperating Agencystatus. When preparing an EIS, a JointLead Agency may be a Federal, State, orlocal agency; however, a cooperatingagency may only be another Federalagency (40 CFR 1501.5 and 1501.6). InDecember, 1999, we responded to thoserequests, stating that we were preparingan EA on the proposed action and that,should the EA result in a determinationthat an EIS was necessary, we wouldconsider the counties’ requests.However, since the EA resulted in aFONSI (see response to comment 5a,above), the issue of Joint Lead Agencyor Cooperating Agency status onpreparation of an EIS became moot.

Comment 5c: The Service’s range ofalternatives considered in the draft EAwas inadequate.

Our Response: We reassessed andmodified our analysis and believe weconsidered sufficient alternatives in theFinal Environmental Assessment.

Issue 6: Tribal IssuesThe following comments and

responses involve issues related to ourtreatment of Native American lands andproperties during the designationprocess.

Comment 6a: The exclusion of triballands places an unfair burden on non-tribal lands designated as criticalhabitat.

Our Response: We do not agree withthis commenter’s assessment that theexclusion of tribal lands places anunfair burden on non-tribal landswithin the designation. We arecommitted to working cooperativelywith all willing parties—private landowners as well as Federal and State landmanaging agencies and Native AmericanIndian Tribes in developingconservation agreements, partnerships,and habitat conservation plans whichcan make further Federal managementof those lands unnecessary.

In this case we concluded that thebenefits of excluding Tribal land fromthe designation outweighed the benefitsof including the land. Additionally, theWhite Mountain Apache Indian Tribe’snative fishes management plan willprovide conservation for the species andfurther Federal management under thecritical habitat designation is notneeded for the species on thereservation. Furthermore, tribalmanagement of these native fishresources will also benefit native fishmanagement of adjacent non-triballands. Although neither the San CarlosApache nor Yavapai Apache tribes havedeveloped conservation plans for thesespecies at this time, we believe that thebenefits from encouraging conservationthrough tribal self-governanceoutweighs the benefits of inclusion inthe critical habitat designation. See thesection titled ‘‘American Indian TribalRights, Federal-Tribal TrustResponsibilities, and the EndangeredSpecies Act’’ for additional discussionconcerning the Service’s decisionregarding tribal lands.

Comment 6b: When referring toexcluding tribal lands from criticalhabitat designation, does this apply tolands owned by the Tribe, or only tolands identified as being within thereservation boundary?

Our Response: All tribal landscontaining potential critical habitat forthe spikedace or loach minnow thatwere ultimately excluded from thedesignation are within reservationboundaries.

Issue 7: Effects of Designation

The following comments andresponses involve issues related to theeffects of critical habitat designation onland management or other activities.

Comment 7a: The Service shouldclarify how critical habitat designationwill affect specific land uses ormanagement practices.

Our Response: We intended that theportion of this final rule titled ‘‘Effect ofCritical Habitat Designation’’ serve as ageneral guide to clarify activities thatmay affect or destroy or adverselymodify critical habitat. However,specific Federal actions will still need tobe reviewed by the action agency. If theagency determines the activity mayaffect critical habitat, they will consultwith us under section 7 of the Act. If itis determined that the activity is likelyto adversely modify critical habitat, wewill work with the agency to modify theactivity to minimize negative impacts tocritical habitat. We will work with theagencies and affected public early in theconsultation process to avoid orminimize potential conflicts and,whenever possible, find a solutionwhich protects listed species and theirhabitat while allowing the action to goforward in a manner consistent with itsintended purpose.

Comment 7b: The Service shouldclarify how critical habitat will affectmanagement of nonnative fish. Willstocking of trout and other nonnativefish species be affected by thedesignation of critical habitat on severalcreeks and streams in Arizona?

Our Response: We previouslyconsulted on the winter rainbow troutfishery in the middle Verde River andon trout stocking in the upper GilaRiver. Trout stocking in those areas hasproceeded. While each situation mustbe evaluated on a case by case basis, weanticipate that trout stocking may becompatible with recovery of thespikedace and loach minnow in mostsituations because trout are not aspredacious as are many other nonnativefish, they only persist in the upperreaches of these streams, and they donot survive the summer if they movedownstream into warmer waters. Thestocking of nonnative fish species otherthan trout, particularly in areas near, orconnected to, habitat for these listedspecies, regardless of critical habitatdesignation, may require additionalconsultation when a Federal nexusexists and a combination of techniquesmay be necessary to reduce the impacts.

Comment 7c: The designation ofcritical habitat will impose section 9restrictions against taking of individuals



of these two species in areas that do notcurrently have those restrictions.

Our Response: Section 9 of theEndangered Species Act prohibits theharm or harassment of individuals oflisted species. Prohibitions against takewould be present regardless of whetheror not critical habitat has beendesignated. If areas designated ascritical habitat do not have individualsof the listed species present, no take inthe form of harm or harassment wouldoccur from activities on these areas andno section 9 prohibitions would be inforce. However, effects from activities inunoccupied habitat that extenddownstream to areas occupied by alisted species could result in take,regardless of whether or not criticalhabitat has been designated.

Summary of Changes From theProposed Rule

There have been a number of minorchanges from the text of the proposedrule. We corrected errors in mileagesand locations and made other minortechnical changes, additions, anddeletions. We incorporated informationfrom comments into the text and havemade clarifications in response tocomments.

In response to several comments, weclarified the lateral extent of critical

habitat designation. Where delineated,this will be the 100-year floodplain ofthe designated waterways as defined bythe U.S. Army Corps of Engineers. Inareas where the 100-year floodplain hasnot been delineated or it is in dispute,the presence of alluvial soils (soilsdeposited by streams), obligate andfacultative riparian vegetation (requiringand usually occurring in wetlands,respectively), abandoned river channels,or known high water marks can be usedto determine the extent of thefloodplain. We have also clarified thatexisting human-constructed featuresand structures within the critical habitatboundaries are not considered part ofthe critical habitat.

In response to a comment, weincorporated references to the October6, 1999 amendment to the September20, 1999 court order into this FinalRule.

We added a section titled ‘‘Exclusionfor Economic and Other RelevantImpacts’’ to this Final Rule. Weexcluded the Fort Apache, San CarlosApache, and Yavapai Apache IndianReservation lands under the provisionsof section 4(b)(2) of the Act.

We removed all stream reaches incomplex 2, the Black River forks, fromthe critical habitat designation forspikedace for biological reasons.

Comments received pointed out that thearea is too high in elevation to havesufficient recovery potential forspikedace.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order12866, this document is a significantrule and has been reviewed by theOffice of Management and Budget(OMB), under Executive Order 12866.We prepared an economic analysis ofthe proposed action to determine theeconomic consequences of designatingthe specific areas as critical habitat.Table 5 summarizes the expectedimpacts of designating critical habitatfor spikedace and loach minnow. Thedraft economic analysis was availablefor public review and comment duringthe comment period on the proposedrule. The final economic analysis isavailable for public review (seeADDRESSES section of this rule). Wedetermined that this rule will notsignificantly impact entitlements,grants, user fees, loan programs, or therights and obligations of their recipients(see Exclusion for Economic and OtherRelevant Impacts section of this finalrule). This rule will not raise novel legalor policy issues.

TABLE 5.—IMPACTS OF DESIGNATING CRITICAL HABITAT FOR SPIKEDACE AND LOACH MINNOW

Categories of activities

Activities potentially affected bythe designation of critical habitatin areas occupied by the species(above those from listing the spe-

cies)

Activities potentially affected by the designation of critical habitat inunoccupied areas

Federal Activities Potentially Af-fected 1.

None .............................................. Activities such as those affecting waters of the United States by theArmy Corps of Engineers under section 404 of the Clean WaterAct; road construction and maintenance, right-of-way designation,and regulation of agricultural activities; construction of roads andfences along the international border with Mexico and associatedimmigration enforcement activities by the Immigration and Natu-ralization Service; construction of communication sites licensed bythe Federal Communications Commission; and activities funded byany Federal agency.

Private or other non-Federal Activi-ties Potentially Affected 2.

None .............................................. Activities that require a Federal action (permit, authorization, or fund-ing) and that involve such activities as removing or destroyingspikedace or loach minnow habitat (as defined in the primary con-stituent elements discussion) whether by mechanical, chemical, orother means (e.g., water diversions, grading, etc.); and that appre-ciably decrease habitat value or quality through indirect effects(e.g., edge effects, invasion of exotic plants or animals, or frag-mentation).

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. 601et seq.)

In the economic analysis (undersection 4 of the Act), we determinedthat designation of critical habitat willnot have a significant effect on asubstantial number of small entities (see

also our discussion in the Exclusion forEconomic and Other Relevant Impactssection of this final rule). Wedetermined that the designation ofcritical habitat will not have anyadditional effects on these activities inareas of critical habitat occupied by the

species. We also determined that therewould be some, but not a significant,additional effect for the unoccupied areaof critical habitat.



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

In our economic analysis, wedetermined that designation of criticalhabitat will not cause (a) Any effect onthe economy of $100 million or more,(b) any increases in costs or prices forconsumers; individual industries;Federal, State, or local governmentagencies; or geographic regions, or (c)any significant adverse effects oncompetition, employment, investment,productivity, innovation, or the abilityof U.S.-based enterprises to competewith foreign-based enterprises.

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

As outlined in our economic analysis,this rule does not impose an unfundedmandate on State, local or tribalgovernments or the private sector ofmore than $100 million or greater in anyyear. The designation does not have asignificant or unique effect on State,local, or tribal governments, or theprivate sector. It is not necessary toprovide a statement of the informationrequired by the Unfunded MandatesReform Act (2 U.S.C. 1531 et seq.).Small governments will be affected onlyto the extent that any programs havingFederal funds, permits or otherauthorized activities must ensure thattheir actions will not destroy oradversely modify the critical habitat.However, as discussed above, theseactions are currently subject toequivalent restrictions through thelisting protections of the species, and nofurther restrictions are anticipated inareas of occupied proposed criticalhabitat. We expect little additionaleffect for the unoccupied areas ofcritical habitat, since unoccupiedhabitat that occurs on State or othergovernmental land (other than Federal)is only 40 km (24 mi) of stream, or only6 percent of the unoccupied habitat wedesignated. There is no effect on Triballand since we are not designating anyTribal land as critical habitat.

Takings

In accordance with Executive Order12630, this rule does not havesignificant takings implications, and atakings implication assessment is notrequired. This designation will not‘‘take’’ private property. Critical habitatdesignation is only applicable to Federallands and to private lands if a Federalnexus exists. We do not designate landsas critical habitat unless the areas areessential to the conservation of aspecies. The rule will not increase ordecrease the current restrictions onprivate property concerning take of

spikedace or loach minnow. Due tocurrent public knowledge of the speciesprotection, the prohibition against takeof these species both within and outsideof the designated areas, and the fact thatcritical habitat provides no incrementalrestrictions in areas of occupied criticalhabitat, we do not anticipate thatproperty values will be affected by thecritical habitat designation. We expectlittle additional effect for theunoccupied area of critical habitat sincethe land on which we might expectsome additional effect due to criticalhabitat designation, should a Federalnexus exist (unoccupied nonFederalland), is only approximately 17 percentof the total area designated.Additionally, critical habitatdesignation does not precludedevelopment of habitat conservationplans and issuance of incidental takepermits. Landowners in areas that areincluded in the designated criticalhabitat will continue to haveopportunity to utilize their property inways consistent with the survival of thespikedace and loach minnow.

FederalismIn accordance with Executive Order

13132, this designation will not affectthe structure or role of States, and willnot have direct, substantial, orsignificant effects on States. AFederalism assessment is not required.As previously stated, critical habitat isapplicable to Federal lands and to non-Federal lands only when a Federalnexus exists. In keeping withDepartment of the Interior policy, werequested information from andcoordinated development of this criticalhabitat designation with appropriateState resource agencies in Arizona andNew Mexico. In addition, both Stateshave representatives on our recoveryteam for these species. We will continueto coordinate any future designation ofcritical habitat for spikedace and loachminnow with the appropriate Stateagencies. The designation of criticalhabitat in areas currently occupied bythe spikedace and loach minnowimposes no additional restrictions tothose currently in place and, therefore,has little incremental impact on Stateand local governments and theiractivities. The designation of criticalhabitat in areas unoccupied by thespikedace and loach minnow may havesome incremental impact on State andlocal governments and their activitiesthat have Federal funding, permits, orauthorization. The incremental impactwould come from the need to consultwith us under section 7 of the Act toensure that these actions will notdestroy or adversely modify the critical

habitat. The designation may have somebenefit to these governments in that theareas essential to the conservation of thespecies are more clearly defined, andthe primary constituent elements of thehabitat necessary to the survival of thespecies are specifically identified. Whilemaking this definition andidentification does not alter where andwhat federally sponsored activities mayoccur, it may assist these localgovernments in long-range planning(rather than waiting for case-by-casesection 7 consultations to occur).

Civil Justice ReformIn accordance with Executive Order

12988, the Department of the Interior’sOffice of the Solicitor determined thatthis rule does not unduly burden thejudicial system and meets therequirements of sections 3(a) and 3(b)(2)of the Order. We designate criticalhabitat in accordance with theprovisions of the Act. We have madeevery effort to ensure that this finaldetermination contains no draftingerrors, provides clear standards,simplifies procedures, reduces burden,and is clearly written such thatlitigation risk is minimized.

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

This rule does not contain anyinformation collection requirements forwhich Office of Management andBudget approval under the PaperworkReduction Act is required.

National Environmental Policy ActIt is our position that, outside the

Tenth Circuit, we do not need toprepare environmental analyses asdefined by NEPA in connection withdesignating critical habitat under theEndangered Species Act of 1973, asamended. We published a noticeoutlining our reasons for thisdetermination in the Federal Registeron October 25, 1983 (48 FR 49244). Thisassertion was upheld by the NinthCircuit (Douglas County v. Babbitt, 48F.3d 1495 (9th Cir. Ore. 1995), cert.denied 116 S. Ct. 698 (1996)). However,when the ranges of the species includeStates within the Tenth Circuit, such asthose of the spikedace and loachminnow, pursuant to the Tenth Circuitruling in Catron County Board ofCommissioners v. U.S. Fish and WildlifeService, 75 F.3d 1429 (10th Cir. 1996),we must undertake a NEPA analysis forcritical habitat designation. We haveprepared a final EnvironmentalAssessment on this action as requiredby NEPA. As a result of that analysis,we found that the designation of criticalhabitat for the spikedace and loach



minnow does not constitute a majorFederal action significantly affecting thequality of the human environmentunder the meaning of section 102(2)(c)of NEPA. As such, an environmentalimpact statement is not required. Sendyour requests for copies of the final EAand FONSI for this designation to theArizona Ecological Services Office (seeADDRESSES section).

References Cited

A complete list of all references citedin this final rule is available uponrequest from the Arizona EcologicalServices Office (see ADDRESSES section).

Authors. The primary authors of thisfinal 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 andrecordkeeping requirements,Transportation.

Regulation Promulgation

Accordingly, we amend part 17,subchapter B of chapter I, title 50 of theCode of Federal Regulations as set forthbelow:

PART 17—[AMENDED]

1. The authority citation for part 17continues 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 § 17.11(h), by revising theentry for ‘‘minnow, loach’’ and‘‘spikedace’’ under ‘‘FISHES’’ to read asfollows:

§ 17.11 Endangered and threatenedwildlife.

* * * * *(h) * * *

SpeciesHistorical range

Vertebrate popu-lation where endan-gered or threatened

Status When listed Criticalhabitat

SpecialrulesCommon name Scientific name

* * * * * * *FISHES

* * * * * * *Minnow, loach .......... Tiaroga

(=Rhinichthys)cobitis.

U.S.A. (AZ, NM)Mexico.

entire ....................... T 247 § 17.95(e) NA

* * * * * * *Spikedace ................. Meda fulgida ........... U.S.A. (AZ, NM),

Mexico.entire ....................... T 236 § 17.95(e) NA

* * * * * * *

3. Amend section 17.95(e) by addingcritical habitat for the spikedace (Medafulgida) in the same alphabetical orderas this species occurs in 17.11(h).

§ 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 streamchannels within the identified stream reachesdescribed below and areas within thesereaches potentially inundated by high flowevents. Where delineated, this is the 100-yearfloodplain of the designated waterways asdefined by the U.S. Army Corps of Engineers.In areas where the 100-year floodplain hasnot been delineated or it is in dispute, thepresence of alluvial soils (soils deposited bystreams), obligate and facultative riparianvegetation (requiring and usually occurringin wetlands respectively), abandoned river

channels, or known high water marks can beused to determine the extent of thefloodplain. Within these areas, only landswhich provide the primary constituentelements or which will be capable, withrestoration, of providing them, areconsidered critical habitat. Existing human-constructed features and structures such asbuildings, roads, etc., are not consideredcritical habitat.

3. Within these areas, the primaryconstituent elements include, but are notlimited to, those habitat components that areessential for the primary biological needs offoraging, sheltering, dispersal, andreproduction. These elements include thefollowing: (1) Permanent, flowing,unpolluted water; (2) living areas for adultspikedace with slow to swift flow velocitiesin shallow water with shear zones whererapid flow borders slower flow, areas of sheetflow at the upper ends of mid-channel sand/gravel bars, and eddies at downstream riffleedges; (3) living areas for juveniles with slowto moderate water velocities in shallow waterwith moderate amounts of instream cover; (4)living areas for the larval stage with slow tomoderate flow velocities in shallow waterwith abundant instream cover; (5) sand,

gravel, and cobble substrates with low tomoderate amounts of fine sediment andsubstrate embeddedness; (6) pool, riffle, run,and backwater components of the streams; (7)low stream gradient; (8) water temperaturesin the approximate range of 1–30° C (35–85°F) with natural diurnal and seasonalvariation; (9) abundant aquatic insect foodbase; (10) periodic natural flooding; (11) anatural, unregulated hydrograph, or if flowsare modified or regulated, then a hydrographthat demonstrates an ability to support anative fish community; and (12) habitatdevoid of nonnative aquatic speciesdetrimental to spikedace, or habitat in whichdetrimental nonnative species are at levelswhich allow persistence of spikedace.

4. Arizona (Gila and Salt River Meridian(GSRM) and New Mexico (New MexicoPrincipal Meridian (NMPM)): Areas of landand water as follows (physical features wereidentified using USGS 7.5′ quadrangle maps;river reach distances were derived fromdigital data obtained from Arizona LandResources Information System (ALRIS) andNew Mexico Resource GeographicInformation System (RGIS)):

BILLING CODE 4310–55–P



Spikedace (Meda fulgida)



Complex 1. Yavapai and Gila Counties,Arizona

a. Verde River for approximately 171.3 km(106.5 mi), extending from the confluencewith Fossil Creek in GSRM, T.11N., R.6E.,NE1⁄4 Sec. 25 upstream to Sullivan Dam inGSRM, T.17N., R.2W., NW1⁄4 Sec. 15.

b. Fossil Creek for approximately 7.6 km(4.7 mi), extending from the confluence withthe Verde River in GSRM, T.11.N., R.6E.,NE1⁄4 Sec. 25 upstream to the confluencewith an unnamed tributary from the

northwest in GSRM, T.11 1⁄2N., R.7E., centerSec. 29.

c. West Clear Creek for approximately 11.6km (7.2 mi), extending from the confluencewith the Verde River in GSRM, T.13N., R.5E.,center Sec. 21, upstream to the confluencewith Black Mountain Canyon in GSRM,T.13N., R.6E., SE1⁄4 Sec. 17.

d. Beaver Creek/Wet Beaver Creek forapproximately 33.4 km (20.8mi), extendingfrom the confluence with the Verde River inGSRM, T.14N., R.5E., SE1⁄4 Sec. 30 upstream

to the confluence with Casner Canyon inGSRM, T.15N., R.6E., NW1⁄4 Sec. 23.

e. Oak Creek for approximately 54.4 km(33.8 mi), extending from the confluencewith the Verde River in GSRM, T.15N., R.4E.,SE1⁄4 Sec. 20 upstream to the confluence withan unnamed tributary from the south inGSRM, T.17N., R.5E., SE1⁄4, NE1⁄4 Sec. 24.

f. Granite Creek for approximately 2.3 km(1.4 mi), extending from the confluence withthe Verde River in GSRM, T.17N., R.2W.,NE1⁄4 Sec. 14 upstream to a spring in GSRM,T.17N., R.2W., SW1⁄4, SW1⁄4, Sec. 13.



Complex 3. Gila County, Arizona

a. Tonto Creek for approximately 47.0 km(29.2 mi), extending from the confluencewith Greenback Creek in GSRM, T.5N.,R.11E., NW1⁄4 Sec. 8 upstream to the

confluence with Houston Creek in GSRM,T.9N., R.11E., NE1⁄4, Sec. 18.

b. Greenback Creek for approximately 13.5km (8.4 mi), extending from the confluencewith Tonto Creek in GSRM, T.5N., R.11E.,NW1⁄4 Sec. 8 upstream to Lime Springs inGSRM, T.6N., R.12E., SW1⁄4 Sec. 20.

c. Rye Creek for approximately 2.1 km (1.3mi), extending from the confluence withTonto Creek in GSRM, T.8N., R.10E., SW1⁄4Sec. 13 upstream to the confluence withBrady Canyon in GSRM, T.8N., R.10E., NE1⁄4Sec. 14.



Complex 4. Graham, and Pinal Counties,Arizona

a. Gila River for approximately 62.8 km(39.0 mi), extending from Ashurst-HaydenDam in GSRM, T.4S., R.11E., NW1⁄4 Sec. 8upstream to the confluence with the San

Pedro River in GSRM, T.5S., R.15E., centerSec. 23.

b. San Pedro River for approximately 21.4km (13.3 mi), extending from the confluencewith the Gila River in GSRM, T.5S., R.15E.,center Sec. 23 upstream to the confluencewith Aravaipa Creek in GSRM, T.7S., R.16E.,center Sec. 9.

c. Aravaipa Creek for approximately 45.3km (28.1 mi), extending from the confluencewith the San Pedro River in GSRM, T.7S.,R.16E., center Sec. 9 upstream to theconfluence with Stowe Gulch in GSRM,T.6S., R.19E., SE1⁄4 of the NE1⁄4 Sec. 35.



Complex 5. Cochise, Graham, and PimaCounties, Arizona

a. San Pedro River for approximately 73.6km (45.8 mi), extending from the confluencewith Alder Wash in GSRM, T.10S., R.18E.,SW1⁄4 Sec.22 upstream to the confluencewith Ash Creek in GSRM, T.16S., R.20E.,SE1⁄4 Sec. 6.

b. Redfield Canyon for approximately 22.3km (13.9 mi), extending from the confluencewith the San Pedro River in GSRM, T.11S.,

R.18E., SW1⁄4 Sec. 34 upstream to theconfluence with Sycamore Canyon in GSRM,T.11S., R.20E., NW1⁄4 Sec. 28.

c. Hot Springs Canyon for approximately19.1 km (11.8 mi), extending from theconfluence with the San Pedro River inGSRM, T.13S., R.19E., west center Sec.23upstream to the confluence with Bass Canyonin GSRM, T.12S., R.20E., NE1⁄4 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.,NE1⁄4 Sec. 36 upstream to the confluencewith Pine Canyon in GSRM, T.12S., R.21E.,center Sec. 20.

e. San Pedro River for approximately 60.0km (37.2 mi), extending from the confluencewith the Babocomari River in the San Juande las Boquillas y Nogales land grantupstream to the U.S. border with Mexico inGSRM, T.24S., R.22E., Sec. 19.



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 Canaldiversion at the head of the Safford Valley inGSRM, T.6S., R.28E., SE1⁄4 Sec. 30 upstreamto the confluence with Owl Canyon inGSRM, T.5S., R.30E., SW1⁄4 Sec. 30.

b. Bonita Creek for approximately 23.5 km(14.6 mi), extending from the confluencewith the Gila River in GSRM, T.6S., R.28E.,SE1⁄4 Sec. 21 upstream to the confluence withMartinez Wash in GSRM, T.4S., R.27E., SE1⁄4Sec.27.

c. Eagle Creek for approximately 72.8 km(45.2 mi), extending from the Phelps-Dodgediversion dam in GSRM, T.4S., R.28E., NW1⁄4Sec. 23 upstream to the confluence of DryProng and East Eagle Creeks in GSRM, T.2N.,R.28E., SW1⁄4 Sec. 20, excluding lands on theSan Carlos Apache Indian Reservation.

d. San Francisco River for approximately181.5 km (113.2 mi), extending from theconfluence with the Gila River in GSRM,T.5S., R.29E., SE1⁄4 Sec. 21 upstream to theconfluence with the Tularosa River in theNMPM, T.7S., R.19W., SW1⁄4 Sec. 23.

e. Blue River for approximately 81.9 km(51.0 mi), extending from the confluencewith the San Francisco River in GSRM, T.2S.,

R.31E., SE1⁄4 Sec. 31 upstream to theconfluence of Campbell and Dry Blue Creeksin NMPM, T.7S., R.21W., SE1⁄4 Sec. 6.

f. Campbell Blue Creek for approximately13.1 km (8.2 mi), extending from theconfluence with Dry Blue Creek in NMPM,T.7S., R.21W., SE1⁄4 Sec. 6 upstream to theconfluence with Coleman Creek in GSRM,T.4 1⁄2 N., R.31E., SW1⁄4 of the NE1⁄4 Sec. 32.

g. Little Blue Creek for approximately 4.5km (2.8 mi), extending from the confluencewith the Blue River in GSRM, T.1S., R.31E.,center Sec. 5 upstream to the mouth of a boxcanyon in GSRM, T.1N., R.31E., NE1⁄4 SE1⁄4Sec. 29.



Complex 7. Grant and Catron Counties, NewMexico

a. Gila River for approximately 164.4 km(102.2 mi), extending from the confluencewith Moore Canyon in NMPM, T.18S.,R.21W., SE1⁄4 SW1⁄4 Sec. 31 upstream to theconfluence of the East and West Forks of theGila River in NMPM, T.13S., R.13W., centerSec. 8.

b. East Fork Gila River for approximately42.1 km (26.1 mi), extending from theconfluence with the West Fork Gila River inNMPM, T.13S., R.13W., center Sec. 8upstream to the confluence of Beaver andTaylor Creeks in NMPM, T.11S., R.12W.,NE1⁄4 Sec. 17.

c. Middle Fork Gila River forapproximately 12.3 km (7.7 mi), extendingfrom the confluence with the West Fork GilaRiver in NMPM, T.12S., R.14W., SW1⁄4 Sec.

25 upstream to the confluence with Big BearCanyon in NMPM, T.12S., R.14W., NW1⁄4Sec. 2.

d. West Fork Gila River for approximately12.4 km (7.7 mi), extending from theconfluence with the East Fork Gila River inNMPM, T.13S., R.13W., center Sec. 8upstream to the confluence with EE Canyonin NMPM, T.12S., R.14W., east boundary ofSec. 21.

* * * * *4. Amend section 17.95(e) by adding

critical habitat for the loach minnow(Tiaroga (= Rhinichthys) cobitis) in thesame alphabetical order as this speciesoccurs in 17.11(h):

§ 17.95 Critical habitat—fish and wildlife.

* * * * *(e) Fishes.

* * * * *LOACH MINNOW (Tiaroga (=Rhinichthys)cobitis)

1. Critical habitat units are depicted forApache, Cochise, Gila, Graham, Greenlee,Pima, Pinal, and Yavapai Counties, Arizona;and Catron and Grant Counties, New Mexicoon the maps and as described below.

2. Critical habitat includes the streamchannels within the identified stream reachesdescribed below and areas within thesereaches potentially inundated by high flowevents. Where delineated, this is the 100-yearfloodplain of the designated waterways asdefined by the U.S. Army Corps of Engineers.In areas where the 100-year floodplain hasnot been delineated or it is in dispute, thepresence of alluvial soils (soils deposited by

streams), obligate and facultative riparianvegetation (requiring and usually occurringin wetlands respectively), abandoned riverchannels, or known high water marks can beused to determine the extent of thefloodplain. Within these areas, only landswhich provide the primary constituentelements or which will be capable, withrestoration, of providing them, areconsidered critical habitat. Existing human-constructed features and structures such asbuildings, roads, etc., are not consideredcritical habitat.

3. Within these areas, the primaryconstituent elements include, but are notlimited to, those habitat components that areessential for the primary biological needs offoraging, sheltering, dispersal, andreproduction. These elements include thefollowing: (1) Permanent flowing, unpollutedwater; (2) living areas for adult loach minnowwith moderate to swift flow velocities inshallow water with gravel, cobble, and rubblesubstrates; (3) living areas for juvenile loachminnow with moderate to swift flowvelocities in shallow water with sand, gravel,cobble, and rubble substrates; (4) living areasfor larval loach minnow with slow tomoderate velocities in shallow water withsand, gravel, and cobble substrates and

abundant instream cover; (5) spawning areaswith slow to swift flow velocities in shallowwater with uncemented cobble and rubblesubstrate; (6) low amounts of fine sedimentand substrate embeddedness; (7) riffle, run,and backwater components present in theaquatic habitat; (8) low to moderate streamgradient; (9) water temperatures in theapproximate range of 1–30 °C (35–85 °F) withnatural diurnal and seasonal variation; (10)abundant aquatic insect food base; (11)periodic natural flooding; (12) a natural,unregulated hydrograph, or if flows aremodified or regulated, then a hydrograph thatdemonstrates a retained ability to support anative fish community; and (13) habitatdevoid of nonnative aquatic speciesdetrimental to loach minnow, or habitat inwhich detrimental nonnative species are atlevels which allow persistence of loachminnow.

4. Arizona (Gila and Salt River Meridian(GSRM)) and New Mexico (New MexicoPrincipal Meridian (NMPM)): Areas of landand water as follows (physical features wereidentified using USGS 7.5′ quadrangle maps;river reach distances were derived fromdigital data obtained from Arizona LandResources Information System (ALRIS) and



New Mexico Resource GeographicInformation System (RGIS)):

LOACH MINNOW (Tiaroga (=Rhinichthys)cobitis)



Complex 1. Yavapai, and Gila Counties,Arizona

a. Verde River for approximately 171.3 km(106.5 mi), extending from the confluencewith Fossil Creek in GSRM, T.11N., R.6E.,NE1⁄4 Sec. 25 upstream to Sullivan Dam inGSRM, T.17N., R.2W., NW1⁄4 Sec. 15,excluding lands on the Yavapai ApacheIndian Reservation.

b. Fossil Creek for approximately 7.6 km(4.7 mi), extending from the confluence withthe Verde River in GSRM, T.11N., R.6E.,NE1⁄4 Sec. 25 upstream to the confluence

with an unnamed tributary from thenorthwest in GSRM, T.11 1⁄2N., R.7E., centerSec. 29.

c. West Clear Creek for approximately 11.6km (7.2 mi), extending from the confluencewith the Verde River in GSRM, T.13N., R.5E.,center Sec. 21, upstream to the confluencewith Black Mountain Canyon in GSRM,T.13N., R.6E., SE1⁄4 Sec. 17.

d. Beaver Creek/Wet Beaver Creek forapproximately 33.4 km (20.8mi), extendingfrom the confluence with the Verde River inGSRM, T.14N., R.5E., SE1⁄4 Sec. 30 upstream

to the confluence with Casner Canyon inGSRM, T.15N., R.6E., NW1⁄4 Sec. 23.

e. Oak Creek for approximately 54.4 km(33.8 mi), extending from the confluencewith the Verde River in GSRM, T.15N., R.4E.,SE1⁄4 Sec. 20 upstream to the confluence withan unnamed tributary from the south inGSRM, T.17N., R.5E., SE1⁄4, NE1⁄4 Sec. 24.

f. Granite Creek for approximately 2.3 km(1.4 mi), extending from the confluence withthe Verde River in GSRM, T.17N., R.2W.,NE1⁄4 Sec. 14 upstream to a spring in GSRM,T.17N., R.2W., SW1⁄4, SW1⁄4, Sec. 13.



Complex 2. Apache and Greenlee Counties,Arizona

a. East Fork Black River for approximately8.2 km (5.1 mi), extending from theconfluence with the West Fork Black River inGSRM, T.4N., R.28E., SE1⁄4 Sec. 11 upstreamto the confluence with Deer Creek in GSRM,T.5N., R.29E., NW1⁄4 Sec. 30.

b. North Fork of the East Fork Black Riverfor approximately 18.0 km (11.2 mi),extending from the confluence of the EastFork Black River and Deer Creek in GSRM,

T.5N., R.29E., NW1⁄4 Sec. 30 upstream to theconfluence with an unnamed tributaryflowing from the east in GSRM, T.6N.,R.29E., center Sec. 30.

c. Boneyard Creek for approximately 2.3km (1.4 mi), extending from the confluencewith the North Fork of the East Fork BlackRiver in GSRM, T.5N, R.29E., SW1⁄4 Sec. 5upstream to the confluence with an unnamedtributary flowing from the east near ClabberCity in GSRM, T.6N., R.29E., SE1⁄4 SE1⁄4 Sec.32.

d. Coyote Creek for approximately 3.1 km(2.0 mi), extending from the confluence withthe North Fork of the East Fork Black Riverin GSRM, T.5N., R.29E., NE1⁄4 Sec. 8upstream to the confluence with an unnamedtributary flowing from the south in GSRM,T.5N., R.19E., NW1⁄4 Sec. 10.

e. West Fork Black River for approximately10.3 km (6.4 mi), extending from theconfluence with the East Fork Black River inGSRM, T.4N, R.28E., SE1⁄4 Sec. 11 upstreamto the confluence with Hay Creek in GSRM,T.5N., R.28E., SE1⁄4, Sec. 19.



Complex 3. Gila County, Arizona

a. Tonto Creek for approximately 70.3 km(43.7 mi), extending from the confluencewith Greenback Creek in GSRM, T.5N.,R.11E., NW1⁄4 Sec. 8 upstream to the

confluence with Haigler Creek in GSRM,T.10N., R.12E., NW1⁄4, Sec. 14.

b. Greenback Creek for approximately 13.5km (8.4 mi), extending from the confluencewith Tonto Creek in GSRM, T.5N., R.11E.,NW1⁄4 Sec. 8 upstream to Lime Springs inGSRM, T.6N., R.12E., SW1⁄4 Sec. 20.

c. Rye Creek for approximately 2.1 km (1.3mi), extending from the confluence withTonto Creek in GSRM, T.8N., R.10E., SW1⁄4Sec. 13 upstream to the confluence withBrady Canyon in GSRM, T.8N., R.10E., NE1⁄4Sec. 14.



Complex 4. Graham and Pinal Counties,Arizona

a. Gila River for approximately 62.8 km(39.0 mi), extending from Ashurst-HaydenDam in GSRM, T.4S., R.11E., NW1⁄4 Sec. 8upstream to the confluence with the SanPedro River in GSRM, T.5S., R.15E., centerSec. 23.

b. San Pedro River for approximately 21.4km (13.3 mi), extending from the confluencewith the Gila River in GSRM, T.5S., R.15E.,

center Sec. 23 upstream to the confluencewith Aravaipa Creek in GSRM, T.7S., R.16E.,center Sec. 9.

c. Aravaipa Creek for approximately 45.3km (28.1 mi), extending from the confluencewith the San Pedro River in GSRM, T.7S.,R.16E., center Sec. 9 upstream to theconfluence with Stowe Gulch in GSRM,T.6S., R.19E., SE1⁄4 of the NE1⁄4 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 confluencewith Oak Grove Canyon in GSRM, T.6S.,R.19E., SW1⁄4 Sec. 32.

f. Deer Creek for approximately 3.6 km (2.3mi), extending from the confluence withAravaipa Creek in GSRM, T.6S., R.18E., SE1⁄4of the SE1⁄4 Sec. 14 upstream to the boundaryof the Aravaipa Wilderness at GSRM, T.6S.,R.18E., east boundary Sec. 13.



Complex 5. Cochise, Graham, and PimaCounties, Arizona

a. San Pedro River for approximately 73.6km (45.8 mi), extending from the confluencewith Alder Wash in GSRM, T.10S., R.18E.,SW1⁄4 Sec. 22 upstream to the confluencewith Ash Creek in GSRM, T.16S., R.20E.,SE1⁄4 Sec. 6.

b. Redfield Canyon for approximately 22.3km (13.9 mi), extending from the confluencewith the San Pedro River in GSRM, T.11S.,

R.18E., SW1⁄4 Sec. 34 upstream to theconfluence with Sycamore Canyon in GSRM,T.11S., R.20E., NW1⁄4 Sec. 28.

c. Hot Springs Canyon for approximately19.1 km (11.8 mi), extending from theconfluence with the San Pedro River inGSRM, T.13S., R.19E., west center Sec. 23upstream to the confluence with Bass Canyonin GSRM, T.12S., R.20E., NE1⁄4 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.,NE1⁄4 Sec. 36 upstream to the confluencewith Pine Canyon in GSRM, T.12S., R.21E.,center Sec. 20.

e. San Pedro River for approximately 60.0km (37.2 mi), extending from the confluencewith the Babocomari River in the San Juande las Boquillas y Nogales land grantupstream to the U.S. border with Mexico inGSRM, T.24S., R.22E., Sec. 19.



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 Canaldiversion at the head of the Safford Valley inGSRM, T.6S., R.28E., SE1⁄4 Sec. 30 upstreamto the confluence with Owl Canyon inGSRM, T.5S., R.30E., SW1⁄4 Sec. 30.

b. Bonita Creek for approximately 23.5 km(14.6 mi), extending from the confluencewith the Gila River in GSRM, T.6S., R.28E.,SE1⁄4 Sec. 21 upstream to the confluence withMartinez Wash in GSRM, T.4S., R.27E., SE1⁄4Sec. 27.

c. Eagle Creek for approximately 72.8 km(45.2 mi), extending from the Phelps-Dodgediversion dam in GSRM, T.4S., R.28E., NW1⁄4Sec. 23 upstream to the confluence of DryProng and East Eagle Creeks in GSRM, T.2N.,R.28E., SW1⁄4 Sec. 20, excluding lands on theSan Carlos Apache Indian Reservation.

d. San Francisco River for approximately203.3 km (126.3 mi), extending from theconfluence with the Gila River in GSRM,T.5S., R.29E., SE1⁄4 Sec. 21 upstream to themouth of The Box canyon in NMPM, T.6S.,R.19W., SW1⁄4 of the NW1⁄4 Sec. 2.

e. Tularosa River for approximately 30.0km (18.6 mi), extending from the confluencewith the San Francisco River in NMPM,T.7S., R.19W., SW1⁄4 Sec. 23 upstream toNMPM, T.6S., R.18W, south boundary Sec. 1.

f. Negrito Creek for approximately 6.8 km(4.2 mi), extending from the confluence withthe Tularosa River in NMPM, T.7S., R.18W.,SW1⁄4 of the NW1⁄4 Sec. 19 upstream to theconfluence with Cerco Canyon in NMPM,T.7S., R.18W., west boundary Sec. 22.

g. Whitewater Creek for approximately 1.8km (1.2 mi), extending from the confluencewith the San Francisco River in NMPM,T.11S., R.20W., SE1⁄4 Sec. 27 upstream to theconfluence with Little Whitewater Creek inNMPM, T.11S., R.20W., SE1⁄4 Sec. 23.

h. Blue River for approximately 81.9 km(51.0 mi), extending from the confluencewith the San Francisco River in GSRM, T.2S.,R.31E., SE1⁄4 Sec. 31 upstream to theconfluence of Campbell and Dry Blue Creeksin NMPM, T.7S., R.21W., SE1⁄4 Sec. 6.

i. Campbell Blue Creek for approximately13.1 km (8.2 mi), extending from theconfluence with Dry Blue Creek in NMPM,T.7S., R.21W., SE1⁄4 Sec. 6 upstream to the

confluence with Coleman Creek in GSRM,T.4 1⁄2 N., R.31E., SW1⁄4 of the NE1⁄4 Sec. 32.

j. Dry Blue Creek for approximately 4.7 km(3.0 mi), extending from the confluence withCampbell Blue Creek in NMPM, T.7S.,R.21W., SE1⁄4 Sec. 6 upstream to theconfluence with Pace Creek in NMPM, T.6S.,R.21W., SW1⁄4 Sec. 28.

k. Pace Creek for approximately 1.2 km (0.8mi), extending from the confluence with DryBlue Creek in NMPM, T.6S., R.21W., SW1⁄4Sec. 28 upstream to the barrier falls inNMPM, T.6S., R.21W., SW1⁄4 Sec. 28.

l. Frieborn Creek for approximately 1.8 km(1.2 mi), extending from the confluence withDry Blue Creek in NMPM, T.7S., R.21W.,SW1⁄4 NW1⁄4 Sec. 5 upstream to theconfluence with an unnamed tributaryflowing from the south in NMPM, T.7S.,R.21W., NE1⁄4 SW1⁄4 Sec. 8.

m. Little Blue Creek for approximately 4.5km (2.8 mi), extending from the confluencewith the Blue River in GSRM, T.1S., R.31E.,center Sec. 5 upstream to the mouth of a boxcanyon in GSRM, T.1N., R.31E., NE1⁄4 SE1⁄4Sec. 29.



Complex 7. Grant and Catron Counties, NewMexico.

a. Gila River for approximately 164.4 km(102.2 mi), extending from the confluencewith Moore Canyon in NMPM, T.18S.,R.21W., SE1⁄4 SW1⁄4 Sec. 31 upstream to theconfluence of the East and West Forks of theGila River in NMPM, T.13S., R.13W., centerSec. 8.

b. East Fork Gila River for approximately42.1 km (26.1 mi), extending from theconfluence with the West Fork Gila River inNMPM, T.13S., R.13W., center Sec. 8upstream to the confluence of Beaver andTaylor Creeks in NMPM, T.11S., R.12W.,NE1⁄4 Sec. 17.

c. Middle Fork Gila River forapproximately 19.1 km (11.8 mi), extendingfrom the confluence with the West Fork GilaRiver in NMPM, T.12S., R.14W., SW1⁄4 Sec.

25 upstream to the confluence with BrothersWest Canyon in NMPM, T.11S., R.14W.,NE1⁄4 Sec. 33.

d. West Fork Gila River for approximately12.4 km (7.7 mi), extending from theconfluence with the East Fork Gila River inNMPM, T.13S., R.13W., center Sec. 8upstream to the confluence with EE Canyonin NMPM, T.12S., R.14W., east boundary ofSec. 21.

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


Department of the Interior · loach minnow on March 8, 1994 (59 FR 10906 and 10898 respectively)....

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Transcript of Department of the Interior · loach minnow on March 8, 1994 (59 FR 10906 and 10898 respectively)....