[Federal Register Volume 70, Number 211 (Wednesday, November 2, 2005)]
[Rules and Regulations]
[Pages 66664-66721]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-21498]



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Part IV





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Listing Gila Chub as 
Endangered With Critical Habitat; Final Rule

Federal Register / Vol. 70, No. 211 / Wednesday, November 2, 2005 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG16


Endangered and Threatened Wildlife and Plants; Listing Gila Chub 
as Endangered With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), list the 
Gila chub (Gila intermedia) as endangered with critical habitat under 
the Endangered Species Act of 1973, as amended (Act). Gila chub were 
historically found throughout the Gila River basin in southern Arizona, 
southwestern New Mexico, and northeastern Sonora, Mexico. The Gila chub 
has been reduced in numbers and distribution in the majority of its 
historical range (Minckley 1973; Weedman et al. 1996). Where it is 
still present, populations are often small, fragmented, and at risk 
from known and potential threats and from random events such as 
drought, flood events, and wildfire. The primary threats to Gila chub 
include predation by and competition with nonnative organisms, 
including fish in the family Centrarchidae (Micropterus spp., Lepomis 
spp.), other fish species, bullfrogs (Rana catesbeiana), and crayfish 
(Orconectes virilis), and habitat degradation from surface water 
diversions and ground water withdrawals. Secondary threats include 
habitat alteration, destruction, and fragmentation resulting from 
numerous factors that are discussed in this final rule. The current 
status of the Gila chub is much degraded from historical levels. The 
species exists as a few, small isolated, populations. The small size of 
these populations, and their degree of fragmentation and isolation, 
cause them to be highly susceptible to threats. We believe that due to 
the current reduced status of the Gila chub and the severity of 
threats, including nonnative species predation and habitat destruction, 
the Gila chub is likely to become extinct throughout all or a 
significant portion of its range. This final rule will implement the 
Federal protection and recovery provisions of the Act for this species. 
We are also designating approximately 160.3 river miles (mi) (258.1 
kilometers (km)) of critical habitat located in Grant County, New 
Mexico, and Yavapai, Gila, Greenlee, Graham, Cochise, Santa Cruz, Pima, 
and Pinal Counties in Arizona.

DATES: This final rule is effective December 2, 2005.

ADDRESSES: Supporting documentation for this rulemaking is available 
for public inspection, by appointment, during normal business hours at 
the U.S. Fish and Wildlife Service, Arizona Ecological Services Field 
Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951. 
The final rule, economic analysis, environmental assessment, and more 
detailed color maps of critical habitat are also available online at 
http://www.fws.gov/arizonaes/. GIS files of the critical habitat maps 
are also available online at http://criticalhabitat.fws.gov/.

FOR FURTHER INFORMATION CONTACT: Steven L. Spangle, Field Supervisor, 
Arizona Ecological Services Field Office (telephone, 602-242-0210; 
facsimile, 602-242-2513).

SUPPLEMENTARY INFORMATION: This final rule lists the Gila chub as 
endangered and designates critical habitat.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 470 species or 38 percent 
of the 1,253 listed species in the United States under the jurisdiction 
of the Service have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, and 
the section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service, et al., F.3d 434 and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force, et al. v. United 
States Fish and Wildlife Service). On December 9, 2004, the Director 
issued guidance to be used in making section 7 adverse modification 
determinations.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat

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proposals due to the risks associated with noncompliance with 
judicially imposed deadlines. This in turn fosters a second round of 
litigation in which those who fear adverse impacts from critical 
habitat designations challenge those designations. The cycle of 
litigation appears endless, is very expensive, and in the final 
analysis provides little additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
this final listing and critical habitat rule. For more information on 
biology of the Gila chub, refer to the August 9, 2002, proposed rule 
(67 FR 51948). However, some of the information presented in the 
proposed rule is discussed below in this final rule, where appropriate, 
such as the summary of factors affecting the species.
    Description and taxonomy. The Gila chub is a member of the minnow 
family Cyprinidae. The Gila chub is small-finned, deep-bodied, chubby 
(chunky), and darkly colored. Adult males average about 150 millimeters 
(mm) (6 inches (in)) in total length; females can exceed 200 mm (8 in). 
Scales are coarse, thick, and broadly overlapped, and radiate out from 
the base (Minckley 1973; Weedman et al. 1996).
    Baird and Girard (1854:28) published a description of the Gila 
chub, as Gila gibbosa, based on the type specimen collected in 1851 
from the Santa Cruz River. For nomenclature reasons, the name was 
changed by Girard to Tigoma intermedia in 1856, working with specimens 
from the San Pedro River. Despite that and other name changes, the Gila 
chub has been recognized as a distinct species since the 1850s, with 
the exception of a short period in the mid-1900s when it was placed as 
a subspecies of Gila robusta (Miller 1945). For the past 30 years, Gila 
intermedia has been recognized as a full monotypic species, separate 
from the polytypic species Gila robusta, both currently accepted as 
valid species (Nelson et al. 2004). Minckley and DeMarais (2000) 
described a new species within the Gila River Basin, Gila nigra. It is 
similar to Gila intermedia in that it is another headwater-type chub, 
whereas Gila robusta is more often found in the mainstems of the major 
rivers within the Gila River Basin. Gila intermedia is the only species 
being addressed in this rule.
    Distribution and Habitat. Historically, Gila chub have been 
recorded in approximately 43 rivers, streams, and spring-fed 
tributaries throughout the Gila River basin in southwestern New Mexico, 
central and southeastern Arizona, and northern Sonora, Mexico (Miller 
and Lowe 1967; Minckley 1973; Rinne 1976; DeMarais 1986; Bestgen and 
Propst 1989). Several populations may have originally had basin-wide 
distributions (e.g., Babocomari River and Santa Cruz River).
    Gila chub commonly inhabit pools in smaller streams, springs, and 
cienegas (a desert wetland), and can survive in small artificial 
impoundments, such as man made ponds (Miller 1946; Minckley 1973; Rinne 
1975). Gila chub are highly secretive, preferring quiet, deeper waters, 
especially pools, or remaining near cover including terrestrial 
vegetation, boulders, and fallen logs (Minckley 1973).
    Riparian and aquatic communities across the southwest have been 
degraded or destroyed by human activities (Hastings 1959; Hastings and 
Turner 1965; Henderickson and Minckley 1984; Tellman et al. 1997). 
Humans have affected southwestern riparian systems over a period of 
several thousand years. Before the 1800s, indigenous people and 
missionaries used southern Arizona cienegas and riparian areas mostly 
for subsistence enterprises, including woodcutting, agriculture 
(including livestock grazing), and food and fiber harvesting.
    Historically, beaver also used riparian areas in the Gila River 
basin almost anywhere perennial water and appropriate vegetation could 
be found. The activities of beaver are believed to have helped promote 
Gila chub habitat by inhibiting erosion and downcutting of stream 
channels (Parker et al. 1985), and increasing ponded water behind their 
dams. Beaver were extirpated (i.e. lost from a particular area) from a 
majority of their range by the late 1800s and are still not abundant or 
have not recolonized areas where they have been extirpated and were 
historically common (Hoffmeister 1986). For example, beaver were 
extirpated from the Santa Cruz and San Pedro Rivers in Arizona. Loss of 
this large mammal and the dams they constructed may have contributed to 
rendering reaches of some streams and rivers unsuitable as habitat for 
the Gila chub.
    There was a significant human population increase in southern 
Arizona and northern Sonora, Mexico, in the early to mid 1800s (Tellman 
et al. 1997). New immigrants substantially increased subsistence and 
commercial livestock production and agriculture. By the late 1800s, 
many southern Arizona watersheds were in poor condition primarily due 
to uncontrolled livestock grazing, mining, hay harvesting, timber 
harvesting, and other management practices, such as fire suppression 
(Bahre 1991; Humphrey 1985; Martin 1975). The watershed degradation 
caused by these management practices led to widespread erosion and 
channel entrenchment when above-average rainfall and flooding occurred 
in the late 1800s (Bryan 1925; Martin 1975; Hastings and Turner 1980; 
Dobyns 1981; Hendrickson and Minckley 1984; Sheridan 1986; Bahre 1991; 
Webb and Betancourt 1992). These events led to long-term stream, 
cienega, and riparian habitat degradation throughout southern Arizona 
and northern Mexico. Physical evidence of cienega and other riparian 
area alterations can be found in the black organic soils of the 
drainage cut banks in places like the San Rafael Valley (Hendrickson 
and Minckley 1984), and San Pedro River (Hereford 1993). Although these 
changes took place nearly a century ago, these ecosystems have not 
fully recovered, and in some areas may never recover.
    We estimate, based on collection records, historical habitat data, 
the 1996 Arizona Game and Fish Department (AGFD) Gila chub status 
review (Weedman et al. 1996), and information in our files documenting 
currently occupied habitat (see Table 1), that the Gila chub has been 
eliminated from approximately 85 to 90 percent of its formerly occupied 
habitat. Of 47 known populations (see Table 1), 29 are considered 
occupied (i.e., Gila chub have been documented within the last 5 
years); 4 of these are newly established populations. All 29 
populations are considered small, isolated, and subject to some form of 
threat; nonnative species are present in 27 of the populations (Table 
1). Weedman (1996) categorized the status of the Gila chub populations 
into one of four categories: (1) Stable-secure-Gila chubs are common, 
data over the last 5 to 10 years show a stable reproducing population, 
no nonnative predatory or competitive species are present, no current 
or future land use threats were identified; (2) Stable-threatened-Gila 
chub are common to uncommon, potential

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threats by nonnatives exist, some habitat-altering land and water uses 
were identified, or lack of recruitment (i.e., reproduction and 
survival of young) was detected within the population; (3) Unstable-
threatened--Gila chub are rare, have limited distribution, predatory or 
competitive nonnatives are present, or the habitat is modified or 
threatened; (4) Extirpated (i.e., liminated)-Gila chub are no longer 
found within a particular river system. These four categories are 
reflected in the following discussion of the current status of Gila 
chub populations beginning with the next paragraph, and are summarized 
for each of the currently known occupied populations and critical 
habitat areas in Table 1; threat information is also summarized for 
each population in Table 1. Of the 29 currently occupied populations, 
we estimate that 10 can be considered stable-threatened and 19 are 
considered unstable-threatened; none are considered stable-secure.

Table 1.--Gila Chub Locations (Major Drainages in Parentheses) Including Status Classification [Based on Weedman
  et al.1996; S=stable, U=unstable, T=threatened, E=Extirpated (See Distribution and Habitat Section)], Threats
(From Service Files), Last Year of Documented Occupancy, and Source of Occupancy Information. No Information Was
                           Available for Current Status and Threats on the Blue River
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                                                                                  Last year
       Gila Chub Locations         Status  classification         Threats         occupancy         Source
                                                                                  confirmed
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                                             Critical Habitat Areas
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Area 1: Upper Gila River
    Turkey Creek, NM (Gila        UT                        Fire, grazing,              2005  P.C. Marsh, ASU in
     River).                                                 nonnative species.                litt. 2005.
    Eagle/East Eagle Creek (Gila  UT                        Fire, grazing,              2005  Marsh 2005.
     River).                                                 nonnative speices.
    Harden Cienega Creek (San     ST                        Fire, grazing,              2005  McKell 2005.
     Francisco River).                                       nonnative species.
    Dix Creek (San Francisco      ST                        Fire, grazing.....          2005  McKell 2005.
     River).
Area 2: Middle Gila River Area
    Mineral Creek/Devil's Canyon  UT                        Fire, grazing,              2000  Weedman et al.
     (Gila River).                                           nonnative species.                2000.
Area 3: Babocomari River
    O'Donnell Creek (Babocomari   UT                        Fire, grazing,              2004  Dean Foster, AGFD,
     River).                                                 nonnative species.                in litt. 2005.
    Turkey Creek (Babocomari      E                         Fire, grazing,              1991  Weedman et al.
     River).                                                 nonnative species.                1996.
Area 4: Lower San Pedro River
    Bass Canyon (San Pedro        ST                        Fire..............          2003  Bob Rogers, The
     River).                                                                                   Nature
                                                                                               Conservancy
                                                                                               (TNC), in litt.
                                                                                               2005.
    Hot Springs Canyon (San       ST                        Fire..............          2004  Bob Rogers, TNC,
     Pedro River).                                                                             in litt. 2005.
    Redfield Canyon (San Pedro    ST                        Fire, grazing,              2001  Bob Rogers, TNC,
     River).                                                 nonnative species.                in litt. 2005.
Area 5: Lower Santa Cruz
    Cienega Creek (lower, Santa   UT                        Fire, nonnative             2005  Doug Duncan, in
     Cruz River).                                            species, water                    litt.
                                                             use.
    Cienega Creek (upper, Santa   ST                        Fire, nonnative             2005  Dean Foster, AGFD,
     Cruz River).                                            species.                          in litt. 2005.
    Mattie Canyon (Santa Cruz     UT                        Fire, grazing,              2005  Jeff Simms, BLM,
     River).                                                 nonnative species.                in litt. 2005.
    Empire Gulch (Santa Cruz      UT                        Fire, grazing,....          2001  (67 FR 51948).
     River).
    Sabino Canyon (Santa Cruz     UT                        Fire, nonnative             2005  Service files.
     River).                                                 species.
Area 6: Verde River
    Walker Creek (Verde River)..  ST                        Fire, grazing,              2005  Service files.
                                                             nonnative species.
    Red Tank Draw (Verder River)  UT                        Fire, grazing,              2005  Service data.
                                                             nonnative species.
    Spring Creek (Verde River)..  ST                        Fire, grazing,              2005  Service files.
                                                             nonnative
                                                             species,
                                                             residential
                                                             development,
                                                             water use.
    Williamson Valley Wash        UT                        Nonnative species           2003  Bill Leibfried, in
     (Verde River).                                          residential                       litt. 2005.
                                                             development,
                                                             water use.
Area 7: Agua Fria
    Little Sycamore Creek (Agua   ST                        Fire, grazing,              2003  A .Silas, FS,
     Fria River).                                            nonnative species.                pers. comm. 2005.
    Sycamore Creek (Agua Fria     UT                        Fire, grazing,              2005  Hedwall et al.
     River).                                                 nonnative species.                2005.
    Indian Creek (Agua Fria       UT                        Fire, grazing,              2005  J. Voeltz, AGFD in
     River).                                                 nonnative species.                litt. 2005.
    Silver Creek (Agua Fria       UT                        Fire, grazing,              2005  D. Weedman, AGFD
     River).                                                 nonnative species.                in litt. 2005.
    Larry Creek (Agua Fria        ST                        Fire, grazing.....          2003  Service files.
     River).

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    Lousy Canyon (Agua Fria       ST                        Fire, grazing.....          2005  Service files.
     River).
---------------------------------
                                     Locations Not in Critical Habitat Areas
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Bonita Creek (Gila River).......  ST                        Fire, grazing,              2005  Heidi Blasius,
                                                             recreatoin,                       BLM, pers. com.
                                                             roads, water use,                 2005.
                                                             nonnative species.
Blue River (Gila River).........  No information            No information....          2000  Weedman et al.
                                                                                               (1996) Minckley
                                                                                               and DeMarais
                                                                                               (2000).
Romero Canyon (Santa Cruz River)  UT Introduced             Fire, nonnative             2005  AGFD 2005a.
                                                             species.
Bear Canyon (Santa Cruz River)..  UT Introduced             Fire, nonnative             2005  AGFD 2005a.
                                                             species.
Sheehy Spring (Santa Cruz River)  UT                        Fire, nonnative             2005  D. Foster, AGFD,
                                                             species.                          in litt. 2005.
Babocomari River at T4 Spring     UT                        Fire, nonnative             2005  D. Foster, AGFD,
 (San Pedro River).                                          psecies.                          in litt. 2005.
Double R Canyon (San Pedro        UT                        Fire..............          2003  Bob Rogers, TNC,
 River).                                                                                       in litt. 2005.
Wildcat Canyon (San Pedro River)  UT                        Fire..............          2003  Bob Rogers, TNC,
                                                                                               in litt. 2005.
Post Canyon (Babocomari River)..  E                         Fire, grazing,              1989  Weedman et al.
                                                             nonnative species.                1996.
Arroyo La Cieneguita, Mexico      E                         Fire, grazing,              1990  Varela-Romero et
 (San Pedro River).                                          nonnative species.                al. 1992.
Los Fresnos River, Mexico (San    E                         Fire, grazing,              1990  Varela-Romero et
 Pedro River).                                               nonnaative                        al. 1992.
                                                             species.
---------------------------------
                              Localities Where the Gila chub is Believed Extirpated
----------------------------------------------------------------------------------------------------------------
Aqua Fria River.................  ........................  ..................          1966  Weedman et al.
                                                                                               1996.
Big Chino Wash (Verde River)....  ........................  ..................          1950  Weedman et al.
                                                                                               1996.
Birmingham Pond (Santa Cruz       ........................  ..................          1943  Weedman et al.
 River).                                                                                       1996.
Cave Creek/Seven Springs Wash     ........................  ..................          1978  Weedman et al.
 (Salt River).                                                                                 1996.
Fish Creek (Salt River).........  ........................  ..................          1965  Weedman et al.
                                                                                               1996.
Monkey Spring (Santa Cruz River)  ........................  ..................          1968  Weedman et al.
                                                                                               1996.
Queen Creek (Gila River)........  ........................  ..................          1938  Weedman et al.
                                                                                               1996.
Arnett Creek (Gila River).......  ........................  ..................          1945  Weedman et al.
                                                                                               1996.
San Pedro.......................  ........................  ..................          1912  Weedman et al.
                                                                                               1996.
San Simon River.................  ........................  ..................          1939  Weedman et al.
                                                                                               1996.
Santa Cruz River................  ........................  ..................          1977  Weedman et al.
                                                                                               1996.
Haunted Canyon (Salt River).....  ........................  ..................          1959  University of
                                                                                               Michigan Museum
                                                                                               of Zoology [UMMZ]
                                                                                               collection record
                                                                                               176179.
----------------------------------------------------------------------------------------------------------------

    In New Mexico, Gila chub likely inhabited numerous tributaries of 
the Gila River basin historically. These include Apache Creek, Catron 
County; Duck Creek, Grant County; San Francisco River, Catron County; 
San Simon Cienega, Hidalgo County; and Turkey Creek, Grant County 
(Rinne 1969, 1976; Hubbard et al. 1979; Bestgen and Propst 1989; 
Sublette et al. 1990; Propst 1999). All of these populations are now 
extirpated (Bestgen and Propst 1989), with the exception of Turkey 
Creek (Propst 1999; P. C. Marsh, Arizona State University [ASU] in 
litt. 2005). We consider Turkey Creek unstable-threatened because the 
population was recently decimated by wildfire, and nonnative species 
are present (B. Thompson, New Mexico Game and Fish Department [NMGF], 
in litt. 2005).
    In Arizona, Gila chub are known to have occupied portions of the 
Salt, Verde, Santa Cruz, San Pedro, San Carlos, San Simon, San 
Francisco, and Agua Fria drainages in addition to smaller tributaries 
of the mainstem Gila River. Small remnant populations remain in most of 
these drainages with the exception of the Salt and San Simon Rivers, 
where all known populations have been extirpated (Weedman et al. 1996; 
Propst 1999).
    In the Verde River basin, Walker and Spring creeks, located in 
Yavapai County, chub populations are considered stable-threatened 
populations; the population in Williamson Valley Wash, also in Yavapai 
County, is considered unstable-threatened. The Santa Cruz River has 
five tributaries with extant populations of Gila chub, which include 
Bear, Romero, and Sabino canyons (Pima County) that were established 
this year (these are considered unstable-threatened); Sheehy Spring 
(Santa Cruz

[[Page 66668]]

County) has an unstable-threatened population (Arizona Game and Fish 
Department [AGFD] 2005a); and Cienega Creek (Pima and Santa Cruz 
Counties) has a stable-threatened population of Gila chub. The San 
Pedro River Basin has four extant, stable-threatened populations: Bass, 
Hot Springs, and Redfield canyons (Graham and Pima Counties), and 
O'Donnell Canyon (Santa Cruz County; B. Rogers, The Nature Conservancy 
(TNC), in litt. 2005; D. Foster, AGFD in litt. 2005). There is an 
unstable-threatened population of Gila chub at T4 Spring in the 
Babocomari River (Santa Cruz and Cochise Counties; D. Duncan, U.S. Fish 
and Wildlife Service in litt. 2003). The San Carlos River and the Blue 
River are tributaries to the Gila River (Gila and Graham Counties) on 
San Carlos Apache tribal lands. We are aware that Gila chub are extant 
on the Reservation, but we do not have information to document the 
status of Gila chub in those drainages.
    The San Francisco River has two tributaries with extant 
populations, Dix Creek in Greenlee County, Arizona, and Harden Cienega 
in Greenlee County, Arizona, and Grant County, New Mexico. Based on 
surveys in June 2005, these populations appear to be doing well and can 
be characterized as stable-threatened (McKell 2005). The Agua Fria 
River has two tributaries with stable-threatened populations, Silver 
and Sycamore creeks (Yavapai County), as well as two unstable-
threatened populations in Little Sycamore Creek and Indian Creek 
(Yavapai County) (Weedman et al. 1996; A. Silas, U.S. Forest Service 
[FS], pers. comm. 2005). In addition, there are two introduced 
populations in the Agua Fria River, Larry Creek and Lousy Canyon 
(Yavapai County); both appear to be stable-threatened based on recent 
surveys. Populations of all of the Aqua Fria populations may have been 
affected by wildfires that occurred in summer 2005 (Knowles et al. 
2005). Two tributaries of the Gila River in Arizona have extant 
populations of Gila chub: Eagle Creek (Graham and Greenlee Counties) 
has an unstable-threatened population, and Bonita Creek (Graham County) 
has a stable-threatened population (Weedman et al. 1996; Marsh 2005; H. 
Blasius, Bureau of Land Management (BLM), in litt. 2005).
    In Mexico, Gila chub historically occupied significant portions of 
the Santa Cruz and San Pedro river basins. The current known 
distribution of Gila chub in Mexico has been reduced to two small 
spring areas, Cienega los Fresnos and Cienega la Cienegita, adjacent to 
the Arroyo los Fresnos (tributary of the San Pedro River), within 1.2 
mi (2 km) of the Arizona-Mexico border (Varela-Romero et al. 1992). No 
Gila chub remain in the Mexican portion of the Santa Cruz River basin 
(Weedman et al. 1996).
    Establishment of new populations of Gila chub has been attempted in 
six sites in Arizona; five sites remain extant. Lousy Canyon and Larry 
Creek (Yavapai County) are tributaries to the Agua Fria River that were 
stocked with 200 Gila chub from Silver Creek on July 6, 1995. Recent 
surveys indicate that these populations are doing well, with good 
recruitment. Gardner Canyon (Cochise County) was stocked with 150 Gila 
chub from Turkey Creek (Santa Cruz County) in July 1988. Follow up 
surveys in May 1995 did not detect Gila chub in Gardner Canyon; 2005 
surveys also did not detect the species (AGFD 2005a). In May 2005, Gila 
chub that were salvaged from Sabino Canyon during the Aspen fire in 
2003 were returned to Sabino Canyon and introduced into two other 
streams in the Santa Catalina Mountains: approximately 350 Gila chub 
were stocked into Sabino Canyon, 120 into Romero Canyon, and 85 into 
Bear Canyon (all in Pima County; AGFD 2005a). The status information 
presented above is summarized in Table 1.

Previous Federal Actions

    For more information on previous Federal actions concerning the 
Gila chub, refer to the proposed rule to list the Gila chub as 
endangered with critical habitat published in the Federal Register on 
August 9, 2002 (67 FR 51948). On May 18, 2004, the Center for 
Biological Diversity filed a complaint against the Department of the 
Interior because the Service had not published a final rule for the 
Gila chub in a timely manner. On August 3, 2004, the United States 
District Court of Arizona ordered that we, via a stipulated settlement 
agreement, submit for publication to the Federal Register, a final rule 
by October 21, 2005 (Center for Biological Diversity v. Norton, No. CV 
04-2061 TUC CRP). On August 31, 2005 (70 FR 51732), we published a 
notice to reopen the public comment period on the August 9, 2002, 
proposed rule for 30 days and announce the availability of the draft 
economic analysis, draft environmental assessment, and hearing dates 
for the proposed listing and critical habitat designation for the Gila 
chub.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
listing and designation of critical habitat for the Gila chub on August 
9, 2002 (67 FR 51948), and in our notice to reopen the comment period 
(August 31, 2005; 70 FR 51732). We also contacted appropriate Federal, 
State, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule. We 
also requested information pertaining to any actions that affect the 
Gila chub, its current status, distribution, and threats, and the 
status of nonnative fishes in the historical range of Gila chub. We 
requested this information in order to make a final listing 
determination based on the best available scientific and commercial 
data. We published newspaper notices inviting public comment and 
announcing the public hearings in the following newspapers in Arizona 
and New Mexico: Albuquerque Tribune, Albuquerque Journal, the Arizona 
Republic, Daily Courier (Prescott), Santa Fe New Mexican, Silver City 
Daily Press, Sierra Vista Herald, Tucson Citizen, Arizona Daily Star 
(Tucson), the Bulletin (Sonoita), Eastern Arizona Courier (Safford), 
the Verde Independent, Camp Verde Bugle, and the Copper Country News 
(Globe). On September 13, 14, and 15, 2005, we held public hearings in 
Silver City, New Mexico; Safford, Arizona; and Camp Verde, Arizona, 
respectively, to solicit comments on the proposed rule.
    During the first comment period that opened on August 9, 2002, and 
closed on October 9, 2002, we received 97 pieces of correspondence (e-
mails, letters, and faxes). Of these, we received 5 comments from 
Federal agencies, 1 from a State representative, and 91 from 
organizations or individuals. Thirty-one of the comments were requests 
for public hearings of which 26 concerned Willow Creek. During the 
second comment period that opened on August 31, 2005, and closed on 
September 30, 2005, we received 29 comments. Of these latter comments, 
6 were from peer reviewers, 1 from another nation, 2 from Federal 
agencies, 3 from State agencies, and 17 from organizations or 
individuals.
    Of the written comments received during the first comment period, 
40 supported, 17 were opposed, and 44 included comments or information 
but did not express support for or opposition to the proposed listing 
and critical habitat designation. Of the written comments received 
during the second comment period, 18 supported, 0 were opposed, and 10 
included comments or information but did not express support for or 
opposition to the proposed listing and critical habitat designation. We 
received a number of comments concerning Willow Creek in

[[Page 66669]]

Catron County, New Mexico. Willow Creek is neither occupied nor 
historical habitat for Gila chub and was not part of the proposed 
critical habitat determination. In addition, there are no plans to 
establish a population of Gila chub in Willow Creek. Therefore, these 
comments will not be addressed further. All substantive information 
written and verbal, provided during the public comment periods, either 
has been incorporated directly into this final determination or is 
addressed below. We also wish to recognize that the Mexican Federal 
Government commented on the proposed rule; the Director de Conservacion 
de la Vida Silvestre, Secretario de Medio Ambiente y Recursos 
Naturales, did not provide specific comment, but generally supported 
the listing. Similar comments are grouped together by issue.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from eight knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles, and that represented Federal agencies, 
State agencies, university researchers, and private consultants. We 
received responses from six of the peer reviewers; two of these were 
from State biologists via the Arizona and New Mexico Game and Fish 
Departments and were not specifically identified as peer review, and 
are addressed below as ``State Comments.'' Five of the six peer 
reviewers, including both State wildlife agencies, concurred with our 
methods and conclusions, supported our determination that the species 
is endangered, and provided additional information, clarifications, and 
suggestions to improve the final critical habitat rule. A sixth peer 
reviewer suggested that we may have overestimated the extinction threat 
to Gila chub, and recommended that we consider listing the species as 
threatened. Peer reviewer comments are addressed in the following 
summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: Limiting critical habitat to only those areas that are 
occupied will not achieve the purposes of the Act and satisfy the 
definition of critical habitat, particularly when the proposed rule 
states that stabilization of the Gila chub at its present population 
level and distribution will not achieve conservation. Critical habitat 
should be expanded to include unoccupied areas that provide 
connectivity between populations to allow gene flow and repopulation of 
formerly occupied suitable habitat.
    Our Response: Section 3(5)(A) of the Act defines critical habitat 
as the specific areas within the geographical area occupied by the 
species on which are found those physical and biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection. In our critical 
habitat designation, we use the provisions outlined in section 3(5)(A) 
of the Act to evaluate those specific areas that contain the features 
that are essential to the conservation of the species and that may 
require special management considerations or protections. Critical 
habitat designation for the Gila chub includes many areas of known 
occupancy that have features that are essential to the conservation of 
the species, as well as one unoccupied area that we consider essential 
to the conservation of the Gila chub because of its connection with or 
proximity to known occupied areas. This is discussed in further detail 
in the ``Justification for Including Unoccupied Areas'' section below. 
We believe we have considered and applied to this designation the best 
available scientific information regarding the Gila chub. Thus, while 
not all areas important for potential Gila chub recovery were proposed 
as critical habitat, we believe this designation defines those areas 
that are essential. We also acknowledge that critical habitat can 
contribute to the overall recovery strategy for a listed species, but 
does not, by itself, achieve recovery. We encourage Federal and State 
agencies, Tribal governments, municipalities, private groups, and 
landowners to work with us as we develop a recovery plan for the Gila 
chub and to continue to work towards establishing additional 
populations and aid in the recovery of the species. As discussed in 
this rule, even if an area is not designated as critical habitat, it 
does not mean that area is not important for Gila chub recovery.
    (2) Comment: Listing the Gila chub may not be supported because the 
Service's assertion that the Gila chub has lost 85-90 percent of its 
habitat is based on the assumptions that the Gila chub was distributed 
throughout contiguous river reaches containing suitable habitat, that 
status information indicates that 60 percent of the currently known 
populations are stable or secure, and that data necessary to determine 
status (i.e. quantitative abundance estimates and accurate historical 
records) for Gila chub are lacking. The Service should consider that 
the species may better meet the definition of threatened.
    Our Response: We disagree and refer to the ``Background'' section 
above for detailed information on our estimate of habitat loss. We also 
note that in some cases, entire rivers that were habitat for Gila chub 
have largely disappeared or been so degraded they no longer support the 
species (e.g., the Santa Cruz and San Pedro Rivers; Weedman et al. 
1996; Tellman et al. 1997). The Gila chub has been eliminated from 12 
streams (see Table 1). Sabino Creek would have been lost due to 
wildfire had it not been salvaged by Service, AGFD, and the FS in 2003, 
and three additional populations were salvaged this year in response to 
wildfires; the status of these populations post-fire has not yet been 
ascertained. Only two populations are free from nonnative species, and 
all populations are small and isolated and thus at risk (Fagan et al. 
2002). The past decline, current threats, and status of Gila chub are 
well documented and reflected in this final rule.
    (3) Comment: Conservation actions since the proposed rule was 
published have been insufficient to improve the status of the species 
to the point it is no longer endangered or threatened, indicating that 
existing regulatory protections, including concerted efforts by the 
States to conserve the Gila chub, are not sufficient to prevent its 
extinction.
    Our Response: We agree that the status of the Gila chub has not 
improved since the publication of the proposed rule, despite efforts to 
conserve the species. However, we value the cooperative conservation 
partnerships that have been formed between Federal and State agencies, 
municipalities, and the public to work to improve the status of the 
Gila chub, and we recognize that the decline of the species occurred 
over a number of years and that it would be difficult to address all 
threats facing the species in the short amount of time since the 
proposed listing. We will continue to pursue such partnerships and 
conservation projects involving the Gila chub following this final rule 
and as we develop a recovery plan. In ``Inadequacy of Existing 
Regulatory Mechanisms'' (Factor D) below, we discuss existing 
regulatory mechanisms as they relate to the protection being afforded 
to the Gila chub.
    (4) Comment: Listing the Gila chub will alienate stakeholders that 
otherwise would have been amenable to conserving the species because 
the Act is so restrictive. Conservation agreements between the various

[[Page 66670]]

stakeholders would be a more effective method to conserve the Gila 
chub.
    Our Response: As discussed above, we agree that cooperative 
conservation utilizing partnerships between Federal and State agencies, 
municipalities, and the public is a good approach to conservation, and 
we have pursued such partnerships on numerous projects involving the 
Gila chub and will continue these partnerships after this final rule to 
list the chub as endangered is effective. However, we are required to 
list a species as endangered if we determine that the species is likely 
to become extinct throughout all or a significant portion of its range. 
After evaluating the current status of the species and threats to 
extant populations in the five factor analysis below, we have 
determined that the Gila chub is endangered.
    (5) Comment: The Service needs to provide a more explicit 
explanation of the primary constituent elements (PCEs) that exist in 
each segment of critical habitat.
    Our Response: All of the areas that we have designated as critical 
habitat have one or more of the PCEs. We have provided in our area 
descriptions (below), those primary constituent elements that are 
present in each of the critical habitat areas.
    (6) Comment: The confusing taxonomic history of the Gila chub has 
led to errors in the Service's estimation of its current and former 
range. The Service has thus likely overstated the species' historic 
range, inflated the degree to which the species has declined, and thus 
exaggerated its need for listing.
    Our Response: Gila intermedia is part of the Gila robusta species 
complex that includes six other taxa: G.cypha, G. elegans, G. nigra, G. 
robusta, G. r. jordani, and Gila seminuda (Gerber et al. 2001); all of 
these species have experienced declines and face similar threats. The 
evolution of the species in the complex is novel in some respects, and 
research on the complex has led to insight about the various ways in 
which speciation occurs (Gerber et al. 2001; Minckley and DeMarais 
2000). However, we have found that the taxonomy of the Gila chub has 
come to be well understood (Minckley and DeMarais 2000), and that Gila 
chub as a species is valid and qualifies as a taxon that may be listed 
under the Act (50 CFR 424.02(k)). As Minckley and DeMarais (2000) 
illustrate, the three forms of Gila represent distinct species that 
have consistently and repeatedly been identified in the same streams; 
based on this work, we are confident of our evaluation of the status of 
the species, its formerly occupied range, and its current distribution. 
Our consideration of Gila chub with regard to its status and 
consideration for listing has evolved as more information has become 
available regarding its biology, status, and threats, which is 
reflected in this final rule. We note that the status of the Gila chub 
has appreciably declined over the last 25 years, and we have 
information to document new threats facing the species, such as 
frequent catastrophic fires, also noted by both AGFD and NMGF in their 
comments on the proposed rule (B. Broschied, AGFD, in litt. 2005; B. 
Thompson, NMGF, in litt. 2005).
    (7) Comment: Since the Gila chub resembles closely related taxa 
(i.e., the roundtail and headwater chubs), its listing will cause 
substantial enforcement problems for enforcing ``take.'' This could 
potentially cause significant economic impact to stakeholders, 
especially if the Service lists these other forms under similarity of 
appearance as defined in Section 4(e) of the Act. This problem is 
confounded because these forms also apparently interbreed.
    Our Response: Although the Gila, roundtail, and headwater chubs are 
closely related and appear similar, we find no need for listing the 
latter two under similarity of appearance for several reasons. The 
primary reason is that these species occur in geographically separate 
places. As Minckley and DeMarais (2001) stated, ``persistent parapatry 
[geographic separation] of morphologically distinguishable robusta, 
intermedia, and nigra [roundtail, Gila, and headwater chubs], has been 
documented, confirmed, and reconfirmed by collections since the 1920s * 
* * In no instance was any two of the three caught at the same 
locality.'' Because roundtail chub is considered a sport fish in 
Arizona, we have considered unintended harvest of Gila chub as a 
potential threat to the species under our five factor analysis below. 
We do not believe this represents a significant threat to Gila chub 
because AGFD prohibits the collection of Gila chub without a permit, 
and allows possession of only 1 roundtail chub over 13 inches in total 
length (AGFD 2005c). Gila chub do not achieve this size, thus the 
existing AGFD regulations adequately protect Gila chub from this 
threat. Although the headwater chub is thought to be of hybrid origin 
from hybridization of related chubs in geologically recent times 
(Minckley and DeMarais 2001), we know of no evidence that the current 
three forms hybridize in nature.
    (8) Comment: Listing the Gila chub may not be the most effective 
method for removing threats; the States have primary authority over 
regulating all non-listed aquatic organisms, including nonnative 
species, a primary threat to the Gila chub.
    Our Response: We realize that there are existing authorities which 
could and often do provide protection for the Gila chub, and the States 
have been and will continue to be a key partner in the conservation of 
the Gila chub. However, we have determined that the protection afforded 
by existing regulatory mechanisms is insufficient to preclude the 
listing of the Gila chub (see Inadequacy of Existing Regulatory 
Mechanisms (Factor D) below).

General Comments Issue 1: Biological Concerns

    (9) Comment: The lateral extent of critical habitat should be 
expanded to include the 100-year floodplain or entire watersheds.
    Our Response: Critical habitat includes the stream channels within 
the identified stream reaches defined by upstream and downstream 
boundaries, as well as areas within these reaches potentially inundated 
during high flow events. Critical habitat also includes the area of 
bankfull width plus 300-feet on either side of the banks. The bankfull 
width is the width of the stream or river at bankfull discharge, i.e., 
the flow at which water begins to leave the channel and move into the 
floodplain (Rosgen 1996). Bankfull discharge, while a function of the 
size of the stream, is a fairly consistent feature related to the 
formation, maintenance, and dimensions of the stream channel (Rosgen 
1996). This 300-foot width defines the lateral extent of those areas 
that contain the features that are essential to the species' 
conservation.
    We determined the 300-foot lateral extent for several reasons. 
First, the implementing regulations of the Act require that critical 
habitat be defined by reference points and lines as found on standard 
topographic maps of the area (50 CFR 424.12). Although we considered 
using the 100-year floodplain, as defined by the Federal Emergency 
Management Agency (FEMA), we found that it was not included on standard 
topographic maps, and the information was not readily available from 
FEMA or from the U.S. Army Corps of Engineers for the areas designating 
critical habitat. We suspect this is related to the remoteness of 
various stream reaches. Therefore, we selected the 300-foot lateral 
extent, rather than some other delineation, for three biological 
reasons: (1) The

[[Page 66671]]

biological integrity and natural dynamics of the river system are 
maintained within this area (i.e., the floodplain and its riparian 
vegetation provide space for natural flooding patterns and latitude for 
necessary natural channel adjustments to maintain appropriate channel 
morphology and geometry, store water for slow release to maintain base 
flows, provide protected side channels and other protected areas, and 
allow the river to meander within its main channel in response to large 
flow events); (2) conservation of the adjacent riparian area also helps 
provide essential nutrient recharge and protection from sediment and 
pollutants; and (3) vegetated lateral zones are widely recognized as 
providing a variety of aquatic habitat functions and values (e.g., 
aquatic habitat for fish and other aquatic organisms, moderation of 
water temperature changes, and detritus for aquatic food webs) and help 
improve or maintain local water quality (see U.S. Army Corps of 
Engineers' final notice concerning Issuance and Modification of 
Nationwide Permits, March 9, 2000, 65 FR 12818-12899). Please see the 
section entitled ``Critical Habitat'' below for more information.
    (10) Comment: Using a 300-foot distance from bankfull width as a 
lateral extent of critical habitat captures areas in some segments that 
are outside the floodplain, and thus should not be considered essential 
to Gila chub.
    Our Response: In the proposed rule, critical habitat segments were 
proposed to include ``the stream channels within the identified stream 
reaches and areas within these reaches potentially inundated during 
high flow events.'' Our intent is to capture areas that correspond to 
the 100-year floodplain. We determined that the 300 foot distance from 
the bankfull width was the best method to define this area. As 
described elsewhere in this rule, we find that all the critical habitat 
areas contain sufficient PCEs to provide for one or more of the life 
history functions of the Gila chub. We have also refined the 
designation, based upon comments received, to define more precisely the 
boundaries of the critical habitat designation.
    (11) Comment: Critical habitat should be expanded to include 
additional occupied habitat in Indian Creek, Little Sycamore Creek, 
Sycamore Creek, and Bonita Creek; critical habitat in Spring Creek 
should be contracted to exclude unsuitable habitat at both ends.
    Our Response: We have slightly adjusted a number of the critical 
habitat stream segments, both to correct errors and to better capture 
areas of occupied habitat that contain the features that are essential 
to the conservation of the species. Also, Bonita Creek, Blue River, and 
portions of Spring and Cienega creeks have been excluded from the 
designation pursuant to 4(b)(2) of the Act.
    (12) Comment: Birds or other native predators may be a threat, as 
opposed to anthropogenic (man made) causes.
    Our Response: Although a number of piscivorous birds occur 
throughout the range of the Gila chub, such as the great blue heron 
(Ardea herodias) and belted kingfisher (Ceryle alcyon), we found no 
information to support bird predation as a significant threat to Gila 
chub. Bird predation can, however, be a significant concern at fish 
hatcheries (U.S.D.A. Animal Plant Health Inspection Service 1997), 
where fish are concentrated in ponds or raceways, and thus may be a 
consideration in recovery actions for Gila chub that require use of 
such facilities.
    (13) Comment: Gila chub is a member of a species assemblage in the 
genus Gila along with six other species, all of which warrant listing 
as endangered under the Act.
    Our Response: We are aware that Gila intermedia is part of a 
species complex. We also note that for taxonomically complex groups 
that warrant conservation, species-based approaches may be inadequate, 
and new approaches that conserve evolutionary processes that generate 
taxonomic biodiversity may be a preferable conservation strategy (Ennos 
et al. 2005). However, all of the fishes of the Gila robusta species 
complex are currently listed as endangered under the Act, with the 
exception of G. nigra and G. robusta (U.S. Fish and Wildlife Service 
2005a). With regard to these two unlisted species, we published a 
positive 90-day finding on a petition to list a distinct population 
segment of G. robusta in the lower Colorado River basin, and to list G. 
nigra throughout its range, on July 12, 2005 (70 FR 39981). G. robusta 
is also part of a multistate conservation agreement that addresses 
conservation of the species throughout its range (Utah Department of 
Natural Resources 2004).
    (14) Comment: The threats to Gila chub are largely unsubstantiated; 
much of the literature is overly general in nature and is not site- or 
species-specific, and thus the listing of Gila chub is not warranted.
    Our Response: The threats to Gila chub are well documented (see 
``Summary of Factors Affecting the Species'' section below). The 
current status of the species is that it has been eliminated from 
approximately 85 to 90 percent of its formerly occupied habitat as a 
direct result of these threats (Weedman et al. 1996), and it currently 
exists as a collection of very small, isolated, and highly fragmented 
populations (Weedman et al. 1996; Service files presented in Table 1). 
In some cases, such as Sheehy Spring, a population exists in a habitat 
not much larger than a common backyard swimming pool. Because of this, 
the species is much more susceptible to threats such as predation and 
competition from nonnative species (Dudley and Matter 2000), habitat 
destruction from various land use practices (Weedman et al. 1996), 
stochastic events such as wildfire (Knowles et al. 2005), and an 
increased risk of extinction due the high degree of fragmentation of 
the remaining populations (Fagan et al. 2000). Although some of our 
citations are not specific to these species or the geographic area, the 
citations offer evidence that certain threats exist because similar 
examples have been documented elsewhere, and based on biological 
principles and effects observed in other fishes, we can draw reasonable 
conclusions about what we would expect to happen to this species were 
it not listed.
    (15) Comment: The critical habitat designation is overly broad 
because it includes areas that are unoccupied and that have not been 
shown to be essential to the conservation of the species. Eagle, 
Turkey, Post, and Little Sycamore creeks are not occupied and so should 
not be included in critical habitat without a justification that these 
areas are essential to the conservation of the species. Critical 
habitat areas are not recovery areas, and critical habitat does not, in 
itself, lead to recovery of a species.
    Our Response: Gila chub were documented in Eagle Creek in 2005 
(Marsh 2005), and in Little Sycamore Creek in 2005 (A. Silas, FS, pers. 
comm. 2005). In this final rule, all of the critical habitat areas have 
been documented as occupied by Gila chub within the last 5 years, with 
the exception of one: Turkey Creek (AZ). Gila chub were last detected 
in Turkey Creek in 1991. This tributary is connected to O'Donnell 
Creek, which was documented as occupied in 2004 (D. Foster, AGFD, in 
litt. 2005), and while we believe this stream can be recolonized 
naturally by Gila chub in high water years, we are also working with 
the AGFD to reestablish Gila chub in this stream. Turkey Creek contains 
sufficient PCEs to provide for one or more of the life history 
functions of the Gila chub. We provide further information on our 
determination that this area is essential to the conservation

[[Page 66672]]

of the species, pursuant to the definition in section 3(5)(A)(ii) of 
the Act, in the ``Justification for Including Unoccupied Areas'' 
section below. We are not including Post Canyon in the final 
designation (see the ``Summary of Changes'' section below).
    (16) Comment: The term ``banks'' needs to be defined in the 
description of critical habitat.
    Our Response: As mentioned in response to comment 9 and 10 above, 
and discussed in the ``Critical Habitat'' discussion below, we defined 
``bank'' to mean the line at which the stream is at ``bankfull'' 
discharge, as defined by Rosgen (1996), i.e., the flow at which water 
begins to leave the channel and move into the floodplain. While a 
function of the size of the stream, bankfull width is a consistent 
feature related to the formation, maintenance, and dimensions of the 
stream channel. Bankfull discharge is a quantifiable measure that is 
essential to classifying streams, to reducing variability in diagnosing 
stream impairment, and to determining management objectives for a given 
stream reach (Rosgen 1996).
    (17) Comment: The Central Arizona Project (CAP) canal does not 
result in the transfer of nonnative species into the Gila River Basin.
    Our Response: There is a large body of research to support the 
contention that the CAP is a potential vector for nonnative aquatic 
species (U.S. Fish and Wildlife Service 2001a). Additionally, one 
nonnative species has been documented to have entered the Gila River 
Basin through the canal: striped bass (Morone saxatalis); another, pacu 
(Piaractus brachypomus) has invaded the Gila River Basin, potentially 
through the CAP; and numerous nonnative species appear to have 
increased their range within the Gila River Basin via the canal (U.S. 
Fish and Wildlife Service 1999a, 1999b, 2001a, 2001b).
    We completed a section 7 consultation with the Bureau of 
Reclamation (Reclamation) on the effects of the CAP, and the resulting 
biological opinion addressed the transfer of nonnative species into the 
Gila River drainage (U.S. Fish and Wildlife Service 2001b). Recognizing 
the potential of the CAP to transfer nonnative species into the Gila 
River Basin and threaten listed native fish populations, Reclamation 
proposed to build a number of fish barriers to protect native fish 
populations in the Gila River Basin as a conservation measure. Building 
a concrete barrier on the lower segments of tributary streams is 
thought to prevent nonnative fish species from moving upstream, which 
protects the native fish populations above the barrier while allowing 
downstream passage of native fish. Future planned barriers include one 
on Bonita Creek, which is occupied by the Gila chub.
    (18) Comment: The rule does not make clear what specific 
conservation actions would be necessary in proposed reaches of critical 
habitat to improve them to desired conditions for Gila chub.
    Our Response: All of the stream reaches included in the critical 
habitat designation contain sufficient PCEs to provide for one or more 
of the life history functions of the Gila chub and all but one area is 
considered occupied by Gila chub. During the development of a recovery 
plan for the Gila chub, specific voluntary actions will be identified 
to reach recovery, including measures to help maintain and improve 
habitat conditions for the Gila chub. For example, some measures may 
include restoring a natural flow regime, maintaining or establishing 
bank stability, providing instream cover such as downed logs and 
undercut banks, and maintaining healthy riparian vegetation and good 
water quality conditions (i.e. temperature, pH, few contaminants, low 
turbidity, adequate levels of dissolved oxygen).
    (19) Comment: What factual scientific data is available to verify 
that Gila chub was native to the Verde River?
    Our Response: Gila chub were first reported as being collected from 
the Verde River Basin in 1890 at Chino, Arizona (Weedman et al. 1996). 
Collection records since that time include the following streams in the 
basin, some of which are still occupied by the species (see 
``Background'' section above): Big Chino Wash, Oak Creek, Spring Creek, 
Walker Creek, Red Tank Draw, and Williamson Valley Wash (Weedman et al. 
1996).
    (20) Comment: It is unclear how designating critical habitat will 
ensure that these areas will be suitable for future introductions of 
Gila chub.
    Our Response: Designating critical habitat serves to identify the 
areas that contain the features that are essential to the conservation 
of the species, thus alerting Federal agencies to consider the species' 
conservation in design and implementation of the agencies' management 
actions. Designating critical habitat likewise provides guidance to 
non-Federal landowners on why these areas need special management and 
protection, as well as what activities are, or are not, likely to 
adversely affect critical habitat, see ``Section 7'' section below. 
Also, section 4(f) of the Act (16 U.S.C. 1533(f)) requires the 
preparation of a recovery plan for each listed species. Recovery plans 
provide guidance on what actions, including habitat maintenance and 
restoration, are necessary to recover a species. Designation of 
critical habitat can play an important role in providing a summary of 
the scientific knowledge of the habitat needs of a species. Likewise, 
designation of critical habitat helps the recovery process by providing 
information on how actions might impact the habitat of the species and 
information that can be used to develop a recovery plan.
    (21) Comment: The proposed rule does not present sufficient 
evidence to conclude that the fish in Bonita Creek are Gila chub.
    Our Response: The population of Gila in Bonita Creek is recognized 
as Gila chub as described by Weedman et al. (1996) and Minckley and 
DeMarais (2000).
    (22) Comment: The primary threat to Gila chub in Bonita Creek is 
nonnative aquatic species. The wells and infiltration gallery operated 
by the City of Safford on Bonita Creek create a barrier to the upstream 
migration of nonnative species, protecting Gila chub, and should 
probably be enhanced. The city's activities likely are the reason a 
population of Gila chub persists in Bonita Creek.
    Our Response: We agree. While the city's diversion of water does 
eliminate some stream habitat for the Gila chub, the barrier it creates 
to the upstream movement of a host of nonnative fishes from the 
mainstem Gila River is a conservation benefit to the species, and has 
likely contributed to the long-term persistence of the Bonita Creek 
population. We are working with Reclamation to create a physical 
barrier in Bonita Creek to provide long-term protection to Bontia Creek 
from invasion of nonnative fishes located downstream of this chub 
population.
    (23) Comment: Disconnected reaches such as Mineral Creek do not 
support the purported goal that critical habitat provides connecting 
habitats between populations of Gila chub that are separated from each 
other.
    Our Response: As stated in our proposed rule (August 9, 2002; 67 FR 
51948), connectivity is one of several important considerations in 
selecting areas included in this critical habitat designation. Also 
included are factors specific to each river system, such as presence of 
the PCEs, protection of genetic diversity, and representation of major 
portions of the species' historical range.
    (24) Comment: The lower segment of Cienega Creek proposed as 
critical habitat and also defined in the August 31, 2005, notice (70 FR 
51732) does not

[[Page 66673]]

contain the PCEs to support Gila chub, and the Service has incorrectly 
stated that this segment is entirely county-owned. Portions of this 
segment are privately owned, there are sand and gravel mining 
operations that do not contain the PCEs to support the species, and the 
segment is unoccupied by the species.
    Our Response: Gila chub were collected in lower Cienega Creek in 
2002 (AGFD Heritage Data Management System) and documented in this 
critical habitat segment in 2005 (see Table 1), and we have found that 
the segment does contain the PCEs necessary to support the species. 
Sand and gravel mines do not contain the PCEs for the Gila chub and are 
not considered to be critical habitat. We have corrected the land 
ownership information to reflect the private ownership of parcels 
within this segment, and we have excluded privately owned lands in 
Cienega Creek due to the potential economic impacts identified in our 
economic analysis (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section below).

General Comments Issue 2: Procedural and Legal Compliance

    (25) Comment: Designation of critical habitat and species 
reintroductions will lead to undue restrictions on private landowners, 
and will negatively impact residents of nearby local communities. For 
example, designating critical habitat in Spring Creek would adversely 
affect the nearby community by interfering with road and bridge 
maintenance, flood damage repair, groundwater withdrawal for municipal 
use, treated effluent discharge to the creek from the community, and 
the recreational opportunities of nearby residents.
    Our Response: In general, private landowners are not affected by 
critical habitat. Critical habitat directly affects only Federal 
actions. Pursuant to section 7 of the Act, Federal agencies ensure that 
actions they fund, authorize, or carry out do not destroy or adversely 
modify critical habitat. Individuals, organizations, States, local and 
Tribal governments, and other non-Federal entities are only affected by 
the designation of critical habitat if their actions occur on Federal 
land; require a Federal permit, license, or other authorization; or 
involve Federal funding (see ``Effect of Critical Habitat Designation'' 
section below). While many of the actions mentioned in the comment 
would involve a Federal action agency, and may trigger a section 7 
consultation because Spring Creek is currently occupied, there is also 
a requirement to consult under section 7 for affects to the listed 
species alone, regardless of whether critical habitat is designated. We 
have also analyzed the impact of designating critical habitat on small 
entities, including small communities, in our draft environmental 
assessment and draft economic analysis. Based on these analyses, we 
have concluded that, although the designation of critical habitat will 
result in measurable social and economic effects to small communities, 
these will not be significant. We have also excluded privately owned 
lands in Spring Creek and in Cienega Creek due to potential economic 
impacts as identified in our economic analysis (see ``Exclusions Under 
Section 4(b)(2) of the Act'' section below).
    (26) Comment: The Gila chub provides no sport fish opportunity and 
is of no economic value, so why should we protect it?
    Our Response: Congress has decided that any species threatened with 
extinction should be protected, without regard to economic value of the 
species or economic impact of the designation.
    (27) Comment: Adding Gila chub to the endangered species list will 
deprive citizens of their right to vital water supplies.
    Our Response: Listing the Gila chub under the Act requires that 
Federal agencies consult with the Service on activities involving 
Federal funding, a Federal permit, Federal authorization, or other 
Federal actions. Formal consultation (under section 7 of the Act) is 
required when activities are likely to adversely affect the Gila chub 
or its designated critical habitat. Additionally, private citizens are 
prohibited from engaging in any activity that would result in ``take'' 
of a listed species (see the ``Available Conservation Measures'' 
section below for further information). Landowners may obtain a permit 
to ``take'' Gila chub incidental to otherwise lawful activities, such 
as withdrawing water from a stream, through a 10(a)(1)(B) permit and 
Habitat Conservation Plan. We note also that surface water flow within 
the Gila River basin is fully appropriated and subject to ongoing 
adjudication (U.S. Fish and Wildlife Service 2005b). The Arizona 
Department of Water Resources regulates surface water withdrawal via 
the Public Water Code, a law that provides that a person must apply for 
and obtain a permit in order to appropriate surface water. Groundwater 
pumping also has limited regulation under the Arizona Groundwater Code. 
However, the legal relationship between groundwater and surface water 
has not been established in Arizona. The New Mexico Office of the State 
Engineer administers groundwater and surface water rights in New 
Mexico. The New Mexico State Engineer's approval is required for almost 
every use of water in New Mexico. For example, permission is needed to 
make a new appropriation, drill a well, divert surface water, or change 
the place or purpose of use of an existing water right. Thus, any new 
claims on surface water or groundwater water in either State would also 
be subject to the permitting authority of these respective agencies.
    (28) Comment: The Service has failed to make a 12-month finding on 
the Gila chub, violating the Act.
    Our Response: A 12-month finding may be published concurrently 
within a proposed rule (50 CFR 424.14(b)(3)(ii)). The proposed rule for 
the Gila chub published in the Federal Register on August 9, 2002, 
constituted our 12-month finding (67 FR 51948).
    (29) Comment: The Service needs to provide a more explicit 
explanation of the PCEs that exist in each segment of critical habitat.
    Our Response: All of the areas that we have designated as critical 
habitat have one or more of the primary constituent elements. We have 
described in our area descriptions below those primary constituent 
elements present in each of the critical habitat areas.
    (30) Comment: Areas proposed as critical habitat already have 
adequate management and protection. The Service should consider 
excluding these areas, and should also consider possible exclusions of 
Bonita Creek given the economic importance to the City of Safford and 
nearby communities.
    Our Response: In our critical habitat designation we use the 
provisions outlined in section 3(5)(A) of the Act to evaluate those 
specific areas defined by the features essential to the conservation of 
the species that may require special management considerations or 
protections. In our proposed rule (August 9, 2002; 67 FR 51948), we 
excluded Sheehy Spring in the San Rafael Valley and Wildcat and Double 
R canyons on the Muleshoe Preserve because these lands were managed 
under a conservation easement held by The Nature Conservancy and 
managed under the Muleshoe Ecosystem Management Plan, respectively (see 
``Exclusions Under Section 4(b)(2) of the Act'' section below). 
Additionally, we have excluded the Blue River and part of Bonita Creek 
on lands of the San Carlos Apache Tribe from the designation of 
critical habitat for the Gila chub pursuant to section 4(b)(2) of the 
Act as discussed below (see ``Exclusions Under Section 4(b)(2) of the

[[Page 66674]]

Act'' section below). The San Carlos Apache Tribe has completed a 
fisheries management plan that includes the Gila chub and provides 
special management for this species. We have also formed a partnership 
with the City of Safford, BLM, and Reclamation to manage lands on 
Bonita Creek downstream of the San Carlos Apache Tribe. Based on this 
partnership, we have excluded Bonita Creek downstream of San Carlos 
Apache lands pursuant to section 4(b)(2) of the Act as discussed below 
(see ``Exclusions Under Section 4(b)(2) of the Act'' section below).
    (31) Comment: The Service has not used the best scientific and 
commercial data available; for example, Weedman (1996) makes no mention 
of Mineral Creek, and the Service's proposed rule has only a vague 
reference to a survey in 2000 that found Gila chub but not in the reach 
identified as critical habitat.
    Our Response: With regard to presence/absence information, we use 
peer-reviewed literature, collection records, unpublished reports, or 
personal communications with qualified field biologists. In this case, 
we have several pieces of information to support the occupancy of 
Mineral Creek by Gila chub. Gila chub were first collected from Mineral 
Creek in 1993 by the AGFD (AGFD Native Fish Database), although this 
was not reported by Weedman et al. (1996). Gila chub were first 
reported from Mineral Creek in peer-reviewed literature in 2000 
(Minckley and DeMarais 2000). The AGFD again surveyed Mineral Creek in 
2000 and reported collecting Gila chub (Weedman 2000).
    (32) Comment: There is not enough information available to 
determine Gila chub critical habitat.
    Our Response: While we acknowledge that there are gaps in our 
understanding of the biology of the species, we have sufficient 
information to identify those geographic areas occupied by the species 
that contain the features essential to the species and require special 
management considerations or protection.
    (33) Comment: It is unclear if the proposed listing of Gila chub as 
endangered is regional in nature or confined to those areas of critical 
habitat.
    Our Response: The listing of the Gila chub is rangewide; thus upon 
the effective date of this rulemaking Gila chub will be considered 
endangered wherever found (See table in the ``Regulation Promulgation'' 
section below). Areas designated as critical habitat in this final rule 
represent a subset of the entire range of the species (see Table 1 
below).
    (34) Comment: The proposed designation does not provide adequate 
information about the population in Spring Creek, and specifically the 
threats to this population. Thus listing in Spring Creek is not 
justified.
    Our Response: When we consider a taxon for listing, unless we are 
considering a distinct population segment, we list the entire taxon, 
not individual populations. With respect to Spring Creek, this 
tributary was surveyed in 2005 on Forest Service lands in the middle of 
the area, and Gila chub were found to be abundant with multiple year 
classes represented, indicating good recruitment. The threats to the 
species are addressed below in the ``Summary of Factors Affecting the 
Species'' section.
    (35) Comment: The Service has designated critical habitat on tribal 
land in areas where the Service admits it does not have current status 
information, and yet the Service has excluded other areas on private 
land due to a lack of information.
    Our Response: We have excluded lands of the San Carlos Apache Tribe 
from the designation pursuant to section 4(b)(2) of the Act (see 
``Exclusions Under Section 4(b)(2) of the Act'' section below). The San 
Carlos Apache Tribal lands were the only tribal lands involved in this 
final designation.
    (36) Comment: The Service knew in 1983 that the Gila chub warranted 
listing, despite gaps in available information. The 19-year delay 
resulted in its status declining further, but represents a good example 
that existing regulatory protections are inadequate.
    Our Response: We did first consider conservation of the Gila chub 
in 1982 when the species was listed as a category 1 candidate species 
(see ``Previous Federal Actions'' from the proposed rule, August 9, 
2002, 67 FR 51948). We agree that we lacked much of the information we 
now have on the species, including a status review conducted by the 
AGFD (Weedman et al. 1996). We also agree that the status since that 
time has deteriorated, reflecting the severity of the threats to the 
species, including the lack of protection afforded by other forms of 
regulation (see ``Inadequacy of Existing Regulatory Mechanisms'' 
section below).
    (37) Comment: The State of Arizona has initiated no actions to 
assess the status of or protect this species.
    Our Response: We disagree. The AGFD assisted the BLM with the 
establishment of Gila chub in Lousy Canyon and Larry Creek in 1995. The 
AGFD initiated the establishment of Gila chub into Romero and Bear 
Canyons concurrent with the reestablishment of Gila chub that were 
salvaged from the Aspen Fire into Sabino Canyon. AGFD has initiated 
several other reestablishment efforts of Gila chub in the Santa Cruz 
and San Pedro river basins that will likely take place in 2005 or 2006.
    The Gila chub is considered a Wildlife of Special Concern in 
Arizona (AGFD 2005b), although this provides no regulatory protection. 
Arizona Game and Fish Commission Order 41 prohibits collection of, or 
fishing for, Gila chub in Arizona, except where such collection is 
authorized by special permit (AGFD 2005c). The AGFD does regulate the 
use of live bait and has restricted use of live bait in most of the 
Gila River system in Arizona (AGFD 2005c), which helps to reduce the 
number of nonnative species released into the Gila chub's habitat.
    (38) Comment: The Service has not provided a ``takings analysis.''
    Our Response: We conducted a takings analysis at the time of the 
proposed rule and as part of this final rule. The takings implications 
assessment concludes that the designation of critical habitat for the 
Gila chub does not pose significant takings implications.
    (39) Comment: The Service should have evaluated existing 
conservation efforts under its Policy for Evaluation of Conservation 
Efforts (PECE) when making Listing Decisions.
    Our Response: Throughout this final rule, we have discussed ongoing 
conservation efforts of various agencies, and we have evaluated how 
these efforts have affected the status of and threats to the Gila chub 
with regard to listing. Our PECE policy refers to formalized efforts 
that are directed at conservation of a species. We are aware of no such 
efforts for the Gila chub; further, recent and ongoing actions to 
conserve the species have resulted in some success, but have been 
unable to improve the status of the Gila chub since the proposed rule.
    (40) Comment: The Service should not designate critical habitat in 
Lousy Canyon and Larry Creek because these were relatively recent 
introductions of the species and extending the protection of critical 
habitat to these systems may not be supported because they may not have 
the PCEs necessary to support the long-term persistence of the Gila 
chub.
    Our Response: Gila chub were introduced into Lousy Canyon and Larry 
Creek in 1995. Since that time, these streams have been surveyed for 
fishes on a frequent basis, and Gila chub have consistently been 
documented, and are thriving, despite drought and wildfire events that 
threatened other

[[Page 66675]]

nearby populations of Gila chub. We believe that because Gila chub have 
persisted, and thrived, for 10 years in these systems, both these 
streams contain the PCEs necessary to support Gila chub. However, these 
stream segments are very small, isolated, and threatened by livestock 
grazing and the potential for wildfire. Given this information, we have 
found that Lousy Canyon and Larry Creek meet our definition of critical 
habitat because they have the physical and biological features 
essential to the conservation of the species, and require special 
management consideration.
    (41) Comment: The Service cannot exclude tribal lands from the 
designation based on the development of a fisheries management plan 
because exclusions based on plans that are not part of the 
administrative record is improper, and existing case law (Center for 
Biological Diversity v. Norton) clearly rejected the Service's policy 
of solely excluding lands from critical habitat designations based on 
the rationale that ``additional special management is not required if 
adequate management or protection is in place.''
    Our Response: The San Carlos Apache Tribe submitted a Fishery 
Management Plan to us on September 27, 2005, during the public comment 
period on the proposed rule. We have determined that it is appropriate 
to exclude critical habitat from the San Carlos Apache tribal lands as 
defined under section 4(b)(2) of the Act.

General Comments Issue 3: National Environmental Policy Act (NEPA) 
Compliance and Economic Analysis

    (42) Comment: The Service has not provided a NEPA analysis or 
economic analysis.
    Our Response: We announced the availability of a draft NEPA 
analysis and draft economic analysis for the proposed designation of 
critical habitat for the Gila chub for public comment on August 31, 
2005 (70 FR 51732). We have finalized these documents, and they are 
available to the public (see ADDRESSES section above), and online at 
http://www.fws.gov/arizonaes/.
    (43) Comment: Designation of critical habitat will ruin property 
values.
    Our Response: Critical habitat designations do not by themselves 
constitute a burden in terms of Federal laws and regulations on private 
landowners carrying out private activities. When Federal approval or 
permit is required, or Federal funds are involved with a project 
proposed on private property that is likely to adversely modify or 
destroy critical habitat, then the critical habitat designation imposes 
Federal regulatory compliance obligations that can affect private 
landowners. Absent Federal approval, permits, or funding, the 
designation does not affect activities on private lands. Based on our 
economic analysis, we have determined that economic impacts from the 
designation of Gila chub critical habitat will not have a substantial 
or significant effect on small business entities.
    (44) Comment: The proposed rule has not evaluated the economic 
effect of critical habitat on the San Carlos Apache Tribe as required 
in section 4(b)(2). The Service should not designate critical habitat 
on tribal land to avoid economic impacts to the tribe.
    Our Response: We have evaluated the economic impacts to the San 
Carlos Apache Tribe in our economic analysis, which we have made 
available to the public as a draft and final report. The final economic 
analysis is available online (http://www.fws.gov/arizonaes/). We have 
excluded the San Carlos Apache tribal lands from the designation (see 
the ``Exclusions Under Section 4(b)(2) of the Act'' section below).
    (45) Comment: The draft economic analysis provides the costs to be 
used to judge the benefits of exclusion, but fails to analyze the 
benefits of inclusion. One commenter stated that economic benefits 
could include tourism to healthy riparian systems and water quality 
benefits to communities.
    Our Response: In the context of a critical habitat designation, the 
primary purpose of the rulemaking (i.e., the direct benefit) is to 
designate areas in need of special management that contain the features 
that are essential to the conservation of listed species.
    The designation of critical habitat may result in two distinct 
categories of benefits to society: (1) Use; and (2) non-use benefits. 
Use benefits are simply the social benefits that accrue from the 
physical use of a resource. Visiting critical habitat to see endangered 
species in their natural habitat would be a primary example. Non-use 
benefits, in contrast, represent welfare gains from ``just knowing' 
that a particular listed species'' natural habitat is being specially 
managed for the survival and recovery of that species. Both use and 
non-use benefits may occur unaccompanied by any market transactions.
    A primary reason for conducting this analysis is to provide 
information regarding the economic impacts associated with a proposed 
critical habitat designation. Section 4(b)(2) of the Act requires the 
Secretary to designate critical habitat based on the best scientific 
data available after taking into consideration the economic impact, and 
any other relevant impact, of specifying any particular area as 
critical habitat. Economic impacts can be both positive and negative 
and by definition, are observable through market transactions.
    Where data are available, this analysis attempts to recognize and 
measure the net economic impact of the proposed designation. For 
example, if the fencing of a species' habitat to restrict motor 
vehicles results in an increase in the number of individuals visiting 
the site for wildlife viewing, then the analysis would recognize the 
potential for a positive economic impact and attempt to quantify the 
effect (e.g., impacts that would be associated with an increase in 
tourism spending by wildlife viewers). In this particular instance, 
however, the economic analysis did not identify any credible estimates 
or measures of positive economic impacts that could offset some of the 
negative economic impacts analyzed earlier in this analysis.
    Under Executive Order 12866, OMB directs Federal agencies to 
provide an assessment of both the social costs and benefits of proposed 
regulatory actions. OMB's Circular A-4 distinguishes two types of 
economic benefits: direct benefits and ancillary benefits. Ancillary 
benefits are defined as favorable impacts of a rulemaking that are 
typically unrelated, or secondary, to the statutory purpose of the 
rulemaking. In the context of critical habitat, the primary purpose of 
the rulemaking (i.e., the direct benefit) is the potential to enhance 
conservation of the species. The published economics literature has 
documented that social welfare benefits can result from the 
conservation and recovery of endangered and threatened species. In its 
guidance for implementing Executive Order 12866, OMB acknowledges that 
it may not be feasible to monetize, or even quantify, the benefits of 
environmental regulations due to either an absence of defensible, 
relevant studies or a lack of resources on the implementing agency's 
part to conduct new research. Rather than rely on economic measures, 
the Service believes that the direct benefits of the proposed rule are 
best expressed in biological terms that can be weighed against the 
expected cost impacts of the rulemaking.
    (46) Comment: The draft economic analysis fails to distinguish 
costs specific to critical habitat designation from the costs of 
listing and other co-extensive costs. The draft economic analysis 
includes a variety of costs due to factors other than critical habitat,

[[Page 66676]]

many of which will occur regardless of whether critical habitat is 
designated.
    Our Response: In conducting economic analyses, we are guided by the 
10th Circuit Court of Appeal's ruling in the New Mexico Cattle Growers 
Association case (248 F.3d at 1285), which directed us to consider all 
impacts, ``regardless of whether those impacts are attributable co-
extensively to other causes.'' As explained in the analysis, due to 
possible overlapping regulatory schemes and other reasons, there are 
also some elements of the analysis that may overstate some costs.
    (47) Comment: We received questions regarding the draft economic 
analysis use of 10 cubic feet per second (cfs) streamflow as the 
minimum requirement for Gila chub, stating it is likely an 
overestimate.
    Our Response: Section 4.1 of the draft economic analysis states the 
Service believes a conservative approach is to assume that the Gila 
chub requires a minimum of 10 cfs of streamflow. However, the draft 
economic analysis does not utilize a 10 cfs streamflow value to 
quantify potential impacts to water supply, because flow data is 
incomplete in proposed areas, and specific water management changes 
that would be necessary to provide required flow are not known. 
Instead, the draft economic analysis considers streamflow requirements 
coupled with actual flow data for each area to identify areas where 
potential water management impacts associated with conservation 
activities for the Gila chub may occur. Section 4 of the draft economic 
analysis discusses the value of the water resources that are at risk 
within proposed critical habitat areas.
    (48) Comment: The draft economic analysis makes a flawed assumption 
that all private entities will voluntarily undertake actions to 
mitigate for Gila chub. The draft economic analysis is predicated on an 
assumption that private parties will voluntarily undertake expensive 
actions to mitigate adverse impacts to Gila chub.
    Our Response: The draft economic analysis quantifies the costs of 
conservation efforts that have or may be undertaken for the Gila chub 
to avoid adverse impacts on the species or its habitat. Some of these 
actions may result from permitting or other Federal requirements, while 
other efforts may be undertaken by private actors to avoid adverse 
impacts on the species or its habitat. Thus, knowledge that one's 
actions are taking place within critical habitat areas may lead to some 
changes in these activities to avoid adversely affecting the species 
and its habitat.
    (49) Comment: The draft economic analysis uses different (and 
incorrect) measures than the proposed rule for determining the location 
of proposed critical habitat. The draft economic analysis creates a 
300-foot buffer from the centerline of the stream while the proposed 
critical habitat extends 300 feet from the bankfull width of the 
stream.
    Our Response: As discussed in section 2.1, the draft economic 
analysis approximates the acreage of proposed critical habitat by 
creating a buffer of 300 feet on either side of the proposed critical 
habitat centerline developed by the Service, because geographic data 
depicting the bankfull width of proposed stream segments were not 
available. This method was determined to be the best approximation of 
the lateral extent of the proposed critical habitat designation based 
on available data. We also believe that the difference would generally 
be less than 15 m (50 ft) and would not be significant to the overall 
analysis. To estimate land ownership, geographic data of current land 
ownership was overlaid with critical habitat polygons using GIS 
analysis using the 300-foot buffer.
    (50) Comment: The final draft economic analysis is based on 
critical habitat as proposed in the August 9, 2002, proposed rule, 
rather than the August 31, 2005, revised proposed rule. As a result 
some economic impacts that are not within the revised critical habitat 
are improperly included as economic costs. The description in the draft 
economic analysis of the length of the Bonita Creek stream reach 
appears to be taken from the 2002 rule.
    Our Response: The final draft economic analysis is based on the 
revised August 31, 2005, proposed rule notice (70 FR 51732), using 
geographic data provided to Industrial Economics on May 16, 2005. A 
typographical error appeared in section 4.2, which stated the length of 
the proposed length of Bonita Creek incorrectly. This error has been 
fixed in the final draft economic analysis.
    (51) Comment: The analysis of section 7 consultation and other 
``administrative'' costs must segregate costs by species instead of 
attributing all costs from multi-species actions to Gila chub.
    Our Response: The draft economic analysis separates and includes 
administrative costs attributable to the Gila chub. If multiple species 
are considered in a consultation, the draft economic analysis assumes 
that the costs directly attributable to the Gila chub are equal to the 
costs of a single technical assistance or consultation. We agree that 
the cost of consultations that consider impacts to multiple species are 
likely to exceed the costs of consultations considering a single 
species, and this is taken into account in the analysis.
    (52) Comment: New information was provided that 245 acres of deeded 
land is proposed to be developed into 102 residential lots at Spring 
Creek Ranch. Creating a 300-foot wide buffer on either side of the 
creek would eliminate 39 of the lots from future development, at a 
current lot value of $600,000. Thus, total impacts of critical habitat 
would be $23.4 million (the value of the land lost from development 
multiplied by the number of lots).
    Our Response: Information on this development was requested in 
section 7 of the draft economic analysis. The new information provided 
has been incorporated into section 7 of the final economic analysis. 
The project, as currently planned, will leave a 40 to 60 foot buffer 
from the stream, and will position lots outside of the 100-year flood 
plain. If this formation is sufficient to prevent impacts on Gila chub, 
then no additional economic impacts are anticipated. If, however, 
conservation efforts for the Gila chub result in the prohibition of all 
development within 300 feet of the bankfull width of the stream, 
economic impacts of up to $23.4 million could occur. The final economic 
analysis includes this range of economic impacts in section 7 of the 
analysis. We have also excluded privately owned lands in Spring Creek 
due to potential economic impacts as identified in our economic 
analysis (see ``Exclusions Under Section 4(b)(2) of the Act'' section 
below).
    (53) Comment: The revised boundaries of Cienega Creek include 
property owned by Vail Valley Joint Venture private property. Joint 
Venture's two-acre dam site and diversion works are located within the 
proposed critical habitat. The replacement cost of 1,121.85 acre-feet 
of water annually would be $8 million to $9 million.
    Our Response: The Vail Valley Joint Venture site is used to 
exercise surface water rights on Cienega Creek held by the Del Lago 
Golf Club (Club) for turf and landscape irrigation. Part of the 
advantage of having this point of diversion for the Club is the low 
costs to operate and maintain the operations. If a change in water 
diversions or point of diversion were required, economic costs could be 
$8 million to $9 million, as estimated by the Club. These estimates 
provided in the public comment from Joint Venture and the Club are now 
incorporated into the

[[Page 66677]]

economic analysis. The likelihood that the Club would need to establish 
a new point of diversion or change its water diversions is unknown. We 
have also excluded privately owned lands in Cienega Creek due to the 
potential economic impacts as identified in our economic analysis (see 
``Exclusions Under Section 4(b)(2) of the Act'' section below).
    (54) Comment: The potential economic impacts of the critical 
habitat designation on the Morenci mine were not properly evaluated in 
the draft economic analysis. The Service did not properly evaluate the 
economic impacts to the mining industry or evaluate the socioeconomic 
impacts to the surrounding communities resulting from any negative 
impacts to mining.
    Our Response: The draft economic analysis discussed potential 
impacts to mining activities that were physically located within 
proposed critical habitat areas. Based on information provided during 
the public comment period from mining interests, the economic analysis 
has been revised to include information on potential impacts to the 
mining industry that could occur related to water diversions or 
withdrawals in proposed critical habitat for mining activities 
occurring outside of proposed critical habitat.
    (55) Comment: The analysis of impacts to water development in 
Bonita Creek is based on faulty information resulting in illogical and 
unsupported conclusions that mistakenly attribute a cost of up to $9.5 
million to critical habitat designation. Gila chub critical habitat 
would not limit the use of the City of Safford's water rights.
    Our Response: As stated in section 4.2 of the draft economic 
analysis, the Service could recommend, or the City of Safford could 
decide, that in order to prevent take of Gila chub the City must 
completely abandon its Bonita Creek infiltration gallery, resulting in 
a loss of available water to the City. Section 4.2 states that, while 
this scenario appears unlikely, information on this scenario is 
provided in order to understand the potential magnitude of impacts 
should it occur. The analysis concludes that, while the City could 
replace any lost volume from Bonita Creek sources from other active 
production wells and existing back-up wells, abandoning the Bonita 
Creek infiltration gallery could result in economic impacts to the 
City. The impact can be viewed in terms of a lost capital investment; 
the loss of an inexpensive, reliable, and local, high-quality water 
supply requiring very little treatment and transportation; and a 
constraint on the City's ability to flexibly and effectively manage 
regional water supply and demand. As a proxy for the value of this 
economic impact, this analysis calculates the cost to the City to 
replace water rights for a volume equal to the potential lost volume 
from Bonita Creek, both the currently unused volume and the volume of 
the entire water right. Total replacement costs are estimated to range 
from $2.5 million to $9.5 million in undiscounted dollars. We have 
excluded Bonita Creek from the designation (see ``Exclusions Under 
Section 4(b)(2) of the Act'' section below).
    (56) Comment: We received questions on the inclusion of costs 
associated with Vail Water Company's Well 5. The analysis of 
water development in Cienega Creek assumes occurrence of future actions 
with no supporting data to indicate they are reasonably certain to 
occur.
    Our Response: Section 4.2 of the draft economic analysis quantifies 
the potential impacts to the Vail Water Company's operations on Cienega 
Creek. Although this well is not currently in use, Vail Water Company 
could begin pumping water from the well for non-potable uses and could 
use the water for potable use with some treatment. Therefore, it is 
appropriate to include replacement costs in the draft economic analysis 
as the potential upper bound of cost related to Gila chub conservation 
activities.
    (57) Comment: The assumption that economically harvestable timber 
exists in proposed critical habitat areas on upper Blue River is 
unsupportable by data.
    Our Response: Section 6.2 of the draft economic analysis describes 
the potential impacts of limitations on timber harvest to the San 
Carlos Apache. The San Carlos Apache Tribe, who owns and manages the 
proposed critical habitat lands on the upper Blue River, identified 
that the area within the proposed critical habitat designation would be 
managed for timber harvest and production losses would be incurred as a 
result of increasing the current riparian timber buffer from 66 feet to 
300 feet. The commenter does not provide evidence to dispute the 
statements made by the San Carlos Apache. The total value of timber 
losses estimated is $308,000 in undiscounted dollars, or $15,400 
annually over 20 years.
    (58) Comment: Restrictions on burning on the San Carlos Apache 
Reservation would be contrary to the best interests of Gila chub 
conservation and so are unlikely to result from critical habitat 
designation. This cost should not be included in the economic analysis.
    Our Response: The proposed rule identifies prescribed fire as one 
of the activities that may affect the Gila chub and require 
consultation (on Federal lands). The draft economic analysis does not 
state that restrictions on prescribed burning will occur on the San 
Carlos Apache Reservation. It states that if the Tribe were not able to 
perform fire management activities as planned, the risk of catastrophic 
fire on Tribal lands could increase. Cost estimates are not included 
for this activity.
    (59) Comment: One commenter asked if the draft economic analysis 
factored in the costs of eliminating non-native game fish and the cost 
in lost tourism of eliminating those non-native game fish.
    Our Response: Section 8.3.3 of the draft economic analysis 
summarizes potential impacts to recreational activities. Based on 
information collected during the development of the economic analysis, 
the Gila chub does not occur in popular recreational fishing areas. In 
addition, non-native game fish stocking does not occur in any of the 
areas proposed for critical habitat designation. Significant economic 
impacts to recreational activities from Gila chub conservation 
activities within the proposed critical habitat designation are 
therefore not anticipated.
    (60) Comment: The Service failed to evaluate a reasonable range of 
alternatives in its NEPA analysis.
    Our Response: Our environmental assessment considered a range of 
proposed alternatives that we believe are consistent with intent of 
NEPA. Under NEPA, alternatives are developed based upon the purpose and 
need for the project. It is not the purpose or intent of an 
environmental assessment to evaluate all possible situations and 
conditions, instead a range of alternatives that meet the purpose and 
need for this project were evaluated in the environmental assessment. 
The environmental assessment describes in section 2.1 how the 
alternatives were defined to meet the purpose and need of the project, 
which is the designation of critical habitat for the Gila chub.
    (61) Comment: An environmental assessment is not adequate for an 
action of this magnitude; instead an environmental impact statement 
(EIS) is required.
    Our Response: Our environmental assessment considered a no-action 
alternative and an action alternative and discussed the adverse and 
beneficial environmental impacts of each. The impacts evaluated in the 
environmental assessment are for those associated with the designation 
of critical habitat above

[[Page 66678]]

those impacts due to listing alone. In that regard, we determined 
through the environmental assessment that the overall environmental 
effects of this action were not significant. An EIS is required only if 
we find that the proposed action is expected to have a significant 
impact on the human environment. Chapter 4 of the environmental 
assessment provides the basis for determining the significance of the 
proposed action and was conducted using Council on Environmental 
Quality regulations. Based on our analysis and comments received from 
the public, we prepared a final environmental assessment and made a 
Finding of No Significant Impact (FONSI), negating the need for 
preparation of an EIS. We believe our environmental assessment is 
consistent with the spirit and intent of NEPA. The final environmental 
assessment, FONSI, and final economic analysis provide our rationale 
for determining that critical habitat designation would not have a 
significant effect on the environment. Those documents are available 
for public review (see ADDRESSES section).
    (62) Comment: Economic impacts to the mining industry and land 
development were not adequately evaluated.
    Our Response: We have made modifications to the final economic 
analysis to address these concerns.
    (63) Comment: The Service improperly concludes critical habitat 
will result in minor and non-controversial impacts.
    Our Response: We believe the incremental impacts of designation of 
critical habitat above listing impacts are indeed minor. See also 
response to comment 61 above.
    (64) Comment: The draft environmental assessment did not consider 
impacts on groundwater withdrawals by the mining industry.
    Our Response: Impacts to groundwater withdrawals by the mining 
industry would not be significantly greater with critical habitat than 
the impacts due to listing alone.
    (65) Comment: The draft environmental assessment fails to 
adequately consider impacts to tribal resources and economic impacts 
due to designation of critical habitat on the San Carlos Apache lands.
    Our Response: With the exclusion of San Carlos Apache lands from 
critical habitat designation, no impacts are expected.
    (66) Comment: Environmental justice concerns are not adequately 
considered in the NEPA analysis.
    Our Response: We feel environmental justice issues were addressed 
to the greatest extent possible.
    (67) Comment: The draft economic analysis underestimates the 
economic impacts of designation, as well as the impacts on land 
management activities.
    Our Response: The majority of critical habitat is currently 
occupied by Gila chub. Therefore designation of critical habitat has 
only minor impacts beyond those of listing alone.
    (68) Comment: The draft economic analysis ignores the ``recovery'' 
standard imposed by previous case law for determination of ``adverse 
modification'' to critical habitat.
    Our Response: We disagree. This standard is discussed on page 40 of 
the environmental assessment (Section 3.2.2.2) and in other sections.

Comments From States

    Section 4(i) of the Act states: ``the Secretary shall submit to the 
State agency a written justification for failure to adopt regulations 
consistent with the agency's comments or petition.'' Comments received 
from States regarding the proposal to designate critical habitat for 
the Gila chub are addressed below. We received comments from AGFD, 
NMGF, and the New Mexico Interstate Stream Commission. As noted above, 
these comments were drafted in part by individuals from whom we also 
requested peer review. All three sets of comments acknowledged the 
decline of the Gila chub, the threats to the species, the need for its 
protection, and were generally supportive of the proposed rule.
    (69) State Comment: Mule Creek in New Mexico provides the PCEs and 
should be included in the critical habitat designation.
    Our Response: Refer to our response to comment 1 above. We did not 
consider Mule Creek in our analysis of streams to propose for critical 
habitat because Gila chub had never been documented in this creek. We 
agree that Mule Creek appears to be suitable habitat for the species, 
and will work with New Mexico Game and Fish, and other interested 
stakeholders, to potentially introduce Gila chub to this stream, if 
feasible.
    (70) State Comment: Much of the habitat occupied by the Gila chub 
is on private land. Designating critical habitat on these lands raises 
the possibility of placing unnecessary burdens upon and alienating 
those parties whose cooperation is vital for the successful 
implementation of appropriate conservation measures. The Service should 
carefully consider the benefits of fostering critical working 
relationships between Federal and private entities against a potential 
benefit that might occur by designating critical habitat for the Gila 
chub.
    Our Response: In general, private landowners are not affected by 
critical habitat. Critical habitat directly affects only Federal 
actions. Pursuant to section 7 of the Act, Federal agencies ensure that 
actions they fund, authorize, or carry out do not destroy or adversely 
modify critical habitat. Individuals, organizations, States, local and 
Tribal governments, and other non-Federal entities are only affected by 
the designation of critical habitat if their actions occur on Federal 
land, require a Federal permit, license, or other authorization, or 
involve Federal funding (see ``Effect of Critical Habitat 
Designation''). We agree that cooperative conservation partnerships 
with private land owners are an important element in the conservation 
of the Gila chub and we agree that designation of critical habitat can 
lead to lack of cooperation by affected landowners. We have pursued 
such partnerships on numerous projects involving the Gila chub and will 
continue these partnerships after the chub is listed, and we have 
carefully considered the effects of listing and critical habitat 
designation on these partnerships.
    (71) State Comment: How will listing the Gila chub affect AGFD 
enforcement of sport fishing regulations for the roundtail chub? Is the 
Service considering listing other species of chub under 4(e)(A) of the 
Act regarding similarity of appearance cases?
    Our Response: Refer to our response to comment 7 above.

Summary of Changes from Proposed Rule

    Based upon our review of the public comments, the economic 
analysis, environmental assessment, issues addressed at the public 
hearing, and any new relevant information that may have become 
available since the publication of the proposal, we reevaluated our 
proposed listing and critical habitat designation and made changes as 
appropriate. Other than minor clarifications and incorporation of 
additional information on the species' biology, status, and threats, 
this final rule differs from the proposal by the following: (1)We 
excluded lands of the San Carlos Tribal Apache Tribe pursuant to 
section 4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of 
the Act'' section below).
    (2) We excluded Bonita Creek downstream of San Carlos Apache

[[Page 66679]]

Tribal lands, pursuant to section 4(b)(2) of the Act, based upon a 
partnership with the City of Safford, BLM, and Reclamation to manage 
lands on Bonita Creek (see ``Exclusions Under Section 4(b)(2) of the 
Act'' section below).
    (3) We have excluded proposed critical habitat on 1.9 mi of the 
lower segment of Cienega Creek and on 1.9 mi of Spring Creek, pursuant 
to section 4(b)(2) of the Act, due to the potential economic impact of 
designating these segments.
    (4) We modified the primary constituent elements for the Gila chub 
by adding `` * * * a high degree of streambank stability and healthy, 
intact riparian vegetative community * * *'' and by broadening the 
range of water temperatures required for spawning to more accurately 
reflect data in our files, and providing examples of suitable ranges of 
water quality parameters (see ``Primary Constituent Elements'' section 
below).
    (5) We are not including Post Canyon in the final designation of 
critical habitat based on recent information indicating that it went 
dry in 2005 and thus does not maintain sufficient PCEs necessary to 
support a population of Gila chub (AGFD 2005a). We therefore no longer 
believe that it meets the definition of critical habitat.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal Lists of Endangered and Threatened 
Wildlife and Plants. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
Section 4(a)(1). These factors and their application to the Gila chub 
(Gila intermedia) are described below.

Status of Species

    As discussed in further detail above in the ``Background'' section, 
we estimate, based on collection records, historical habitat data, the 
1996 Arizona Game and Fish Department Gila chub status review (Weedman 
et al. 1996), and information in our files documenting currently 
occupied habitat (see Table 1 above), that the Gila chub have been 
eliminated from 85 to 90 percent of formerly occupied habitat. This 
loss has occurred as a result of the introduction and spread of 
nonnative aquatic species that prey on and compete with the Gila chub, 
and habitat loss and degradation from a variety of actions, described 
in detail below, most notably water use that has led to drying of 
stream channels throughout the range of the Gila chub. Additionally, we 
estimate that 90 percent of the Gila chub's currently occupied habitat 
has been degraded, either by the presence of nonnative species or land 
use that degrades habitat, such as livestock grazing. We believe that, 
without the protection of the Act, the Gila chub is likely to go 
extinct throughout all or a significant portion of its range.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Within the historical range of the Gila chub, much wetland habitat 
has been destroyed or degraded, and loss of this habitat continues 
today (Minckley and Deacon 1991; Tellman et al. 1998; Propst 1999). 
Activities such as groundwater pumping, surface water diversions, 
impoundments, dams, channelization (straightening of the natural 
watercourse, typically for flood control purposes), improperly managed 
livestock grazing, wildfire, agriculture, mining, road building, 
residential development, and recreation all contribute to riparian and 
cienega habitat loss and degradation in Arizona and New Mexico 
(Minckley and Deacon 1991; Weedman et al. 1996; Tellman et al. 1998; 
Propst 1999). All of these activities are human-caused; thus the local 
and regional effects of these activities are expected to increase with 
an increasing human population because a larger human population will 
result in more of these kinds of activities. As of 2005, Arizona was 
listed as the second fastest in Statewide population growth in the 
nation, and from 2000-2003, two Arizona counties (Pinal and Yavapai, 
counties that contain about 40 percent of Gila chub populations) grew 
by over 10 percent; further, the population of the State of Arizona is 
projected to grow by 109 percent by the year 2030 (U.S. Census Bureau 
2005).
    Water withdrawals. Growing water demands threaten the existence of 
southern Arizona perennial surface water in the Gila Basin, as well as 
the species that depend on it. Groundwater pumping has been a major 
factor in loss of surface water in springs, streams, and cienegas of 
Arizona, most notably in the Santa Cruz River Basin (Tellman et al. 
1997). Since 1940, groundwater levels in Central Arizona have dropped 
over 220 feet, with Central Tucson subsiding in elevation at least one 
foot since 1950, due to this groundwater withdraw (Arizona Water 
Resources Research Center 2005). An example of the magnitude of these 
changes is the Santa Cruz River. Historically, the Santa Cruz River was 
occupied by the Gila chub throughout the drainage (Weedman et al. 
1996). Today, the Santa Cruz River and its major tributaries in the 
Tucson area flow only in response to flood events (Webb and Betancourt 
1992), and the Gila chub is extirpated (i.e. eliminated) in the 
mainstem Santa Cruz, occurring only in several small populations in 
tributaries of the Santa Cruz (see Table 1 above). We estimate the Gila 
chub has been eliminated from 95 percent of its former range in the 
Santa Cruz drainage (Weedman et al. 1996).
    In addition to historical losses, groundwater pumping poses a 
threat to surface flows in the remaining Gila chub habitats in Eagle 
Creek and Cienega Creek. Groundwater withdrawal in Eagle Creek, 
primarily for water supply for a large open-pit copper mine at Morenci, 
dries portions of the stream. Groundwater pumping in the upper Cienega 
Creek drainage supports burgeoning ranchette development near the town 
of Sonoita. The city of Prescott and towns of Prescott Valley and Chino 
Valley are growing at an average rate of over 4 percent per year (U.S. 
Census Bureau 2005), and this growth is mostly based on groundwater 
pumping in the Verde River basin. The cities of Prescott and Prescott 
Valley recently purchased the JWK Ranch in the headwaters of the Verde 
River, with the intent of drilling new wells to supply up to 8,700 
acre-feet (AF) of groundwater per year, which may have serious adverse 
effects on the mainstem and tributaries of the Verde River.
    Increasing population growth in Sierra Vista will likely stimulate 
borderland development, with a concurrent water demand increase that 
could accelerate riparian area destruction and modification, and 
increase threats to plants and animals dependent on surface water, 
including the Gila chub. The San Pedro River in southern Arizona 
historically supported at least 13 native fish species, including Gila 
chub, but now supports only 2 (The Nature Conservancy 2000). One of the 
known factors that have contributed to the loss of Gila chub in the San 
Pedro River basin is the pumping of groundwater for agriculture and 
municipal uses. Groundwater pumping is expected to increase with human 
population growth. In anticipation of the growing population, Fort 
Huachuca Military Reservation has filed a claim for use of 435 AF per 
year of tributary surface water from the Gila River adjudication, in 
addition to its estimated 1,655 AF per year currently used (Arizona 
Department of Water

[[Page 66680]]

Resources 1991). Groundwater pumping is widely recognized as a threat 
to the San Pedro and Verde Rivers, and the wildlife that depend on 
these rivers (McKinnon 2005a).
    Two tributary streams in the Verde River Basin are under increasing 
demands for water from surface and ground water withdrawal. Williamson 
Valley Wash has experienced a number of recent housing developments, 
and more are proposed. Although data are lacking, the effects of water 
withdrawal in this area combined with recent drought appear to have 
eliminated most of Gila chub habitat in this system (G. Price, Long 
Meadow Ranch Property Owners Association, in litt. 2002; L. Graser, 
Arizona Department of Water Resources, pers. comm. 2005). Spring Creek, 
a small system with only about 3 miles of habitat for the Gila chub, is 
the site of a proposed housing development that will be approximately 
200 acres in size. The development will require three new groundwater 
wells for its water supply; hydrologic studies have not yet been 
completed (J. Himes, Himes Consulting, pers. comm. 2005), but the 
effects to surface water in Spring Creek could be significant.
    Stream channelization and irrigation. Sections of many Gila Basin 
rivers and streams have been and continue to be channelized for flood 
control, which disrupts natural channel dynamics and promotes the loss 
of riparian plant communities. Channelization changes the gradient of 
the stream above and below the channel. It increases streamflow in the 
channelized section, which results in increased rates of erosion of the 
stream and its tributaries, accompanied by gradual deposits of sediment 
in downstream reaches that may increase the risk of flooding (Emerson 
1971; Simpson 1982). Channelization can affect Gila chub habitat by 
reducing its complexity, eliminating cover, reducing nutrient input, 
improving habitat for nonnative species, changing sediment transport, 
altering substrate size, and reducing the length of the stream (and 
therefore the amount of aquatic habitat available) (Gorman and Karr 
1978; Simpson 1982; Schmetterling et al. 2001). Channelization will 
continue to contribute to riparian and aquatic habitat decline.
    Irrigation directly from stream and cienega waters reduces or 
eliminates water in existing fish habitat. Fish can be carried into 
irrigation ditches, where they die following desiccation (drying) of 
the irrigation ditch. Irrigation dams prevent movement of fish between 
populations, resulting in genetic isolation within species; small 
populations are subject to genetic threats, such as inbreeding 
depression (reduced health due to elevated levels of inbreeding) and 
genetic drift (a reduction in gene flow within the species that can 
increase the probability of unhealthy traits; Meffe and Carrol 1994).
    There are numerous surface water diversions in Gila chub habitats, 
including Spring Creek, Walker Creek, Mineral Creek, Dix Creek, and 
Eagle Creek. Larger dams may also prevent movement of fish between 
populations and dramatically alter the flow regime of streams through 
the impoundment of water (Ligon et al. 1995). The Arizona Water 
Settlements Act created legislation for the construction of a large 
water project in New Mexico, potentially a large dam. However, it is 
unclear at this time if this would effect the population of Gila chub 
in Turkey Creek.
    Livestock grazing. Livestock grazing can have adverse impacts on 
Gila chub habitat. Poor livestock-grazing management is widely believed 
to have been one of the most significant factors contributing to 
regional stream channel downcutting (the entrenchment of stream 
channels and creation of arroyos) in the late 1800s. Livestock grazing 
can destabilize stream channels and disturb riparian ecosystem 
functions (Herefore 1992; Tellman et al. 1997). Livestock can 
negatively affect Gila chub habitat through removal of riparian 
vegetation (Clary and Webster 1989; Clary and Medin 1990; Schulz and 
Leininger 1990; Armour et al. 1991; Fleishner 1994), which can result 
in reduced bank stability, fewer pools, and higher water temperatures 
(Meehan 1979; Kauffman and Krueger 1984; Swanson et al. 1982; Minckley 
and Rinne 1985; Fleishner 1994; Belsky et al. 1999). Livestock grazing 
can also cause increased sediment in the stream channel, due to 
streambank trampling and riparian vegetation loss (Weltz and Wood 1986; 
Waters 1995; Pearce et al. 1998). Livestock physically alter 
streambanks through trampling and shearing, leading to bank erosion 
(Platts and Nelson 1989; Trimble and Mendel 1995). In combination, loss 
of riparian vegetation and bank erosion can alter channel morphology, 
including increased erosion and deposition, downcutting, and an 
increased width/depth ratio, all of which lead to a loss of pool 
habitats required by the Gila chub, and to loss of shallow side and 
backwater habitats used by larval chub (Trimble and Mendel 1995; Belsky 
et al. 1999).
    Livestock grazing administered by either the FS or BLM occurs in 
most of the streams and watersheds containing Gila chub. We have 
completed four formal conferences on the effects of livestock grazing 
on Gila chub. All four conferences found that livestock grazing 
resulted in adverse effects to Gila chub and its habitat (U.S. Fish and 
Wildlife Service 2005b), but is not likely to jeopardize the species or 
result in destruction or adverse modification of critical habitat.
    Mining activities. Mining activities were more widespread 
historically and may have constituted a greater threat in the past; 
however, the continued mining of sand and gravel, iron, gold, copper, 
or other materials remains a potential threat to the habitat of Gila 
chub. The recently proposed Gentry Iron Mine may be located within 1.6 
km (1.0 mi) of two Gila chub populations on the Tonto National Forest. 
The effects of proposed mining activities, like the Gentry Iron Mine, 
on these populations are uncertain at this time, but may include 
adverse affects to water quality and lowered flow rates due to 
dewatering of nearby streams needed for mining operations. Sand and 
gravel mining removes riparian vegetation and destabilizes streambanks, 
which results in habitat loss for the Gila chub (Brown et al. 1998). 
Sand and gravel mining along the Santa Cruz, San Pedro, and Babocomari 
Rivers has had serious impacts in the past and continues to impact 
these rivers although at a reduced scale.
    As noted above, groundwater pumping to support mining operations 
poses a threat to surface flows in the remaining Gila chub habitats in 
Eagle Creek from a large open-pit copper mine at Morenci which dries 
portions of the stream.
    Roads. Roads have adversely affected Gila chub habitat by 
increasing surface runoff and sedimentation, which can increase 
turbidity, reduce primary production, and reduce numbers of aquatic 
insects (Burns 1971; Eaglin and Hubert 1993). Roads require in-stream 
structures, such as culverts and bridges that remove aquatic habitat 
and can act as barriers to fish movement (Barrett et al. 1992; Warren 
and Pardew 1998). All of these activities negatively impact Gila chub 
by lowering water quality and by reducing the quality and quantity of 
pools, by filling them with sediments, reducing the quantity of large 
woody-debris necessary to form pools, and by imposing barriers to 
movement. The end result is deterioration of habitat for the Gila chub 
(Burns 1971; Eaglin and Hubert 1993).
    Vehicular use of roads in creek bottoms can degrade Gila chub 
habitat and result in Gila chub mortality. Such use inhibits riparian 
plant growth,

[[Page 66681]]

breaks down banks, causes erosion, causes sedimentation, and increases 
turbidity in the stream, particularly where vehicles drive through the 
stream (especially immediately downstream of the vehicular activity). 
These effects are likely to result in wider and shallower stream 
channels (Armour 1977; Meehan 1991). This causes progressive 
adjustments in other variables of hydraulic geometry and results in 
changes to the configuration of pools, runs, riffles, and backwaters; 
levels of fine sediments and substrate embeddedness; availability of 
instream cover; and other fish habitat factors in the vicinity of 
vehicle crossings (Sullivan et al. 1987; Rosgen 1994). It also changes 
the way in which flood flows interact with the stream channel and may 
exacerbate flood damage to banks, channel bottoms, and riparian 
vegetation. The breaking down of stream banks by vehicles would reduce 
undercut banks and overhanging vegetation that chub use as cover.
    Adverse effects of stream sedimentation to fish and fish habitat 
have been extensively documented (Murphy et al. 1981; Newcombe and 
MacDonald 1991; Barrett 1992). Excessive sedimentation may cause 
channel changes that are adverse to the Gila chub. Excessive sediment 
may fill backwaters and deep pools used by Gila chub, and sediment 
deposition in the main channel may cause a tendency toward stream 
braiding (e.g. the stream becomes wider, shallower, and has numerous 
channels as opposed to one channel), thus reducing adult chub habitat, 
as well. Excessive sediment may smother aquatic insects (Newcombe and 
MacDonald 1991), thereby reducing chub food production and 
availability, and related turbidity may reduce the chub's ability to 
see and capture food (Barrett et al. 1992). Fish fry and eggs could 
also be killed or injured if vehicles are driven through stream 
segments where these life stages occur. Larger fish are likely to swim 
away to avoid death or injury. Public vehicular use is also often 
associated with an elevated risk of human-caused fire.
    New roads are proposed in association with housing developments in 
Williamson Valley Wash and Spring Creek; surveys within the last 5 
years indicate that both of these streams provide high quality Gila 
chub habitat and are occupied by the species. In the past, roads in 
Bonita Creek traversed the streambed numerous times over its entire 
length. Use of the Bonita Creek road system created local disturbance 
of normal stream function including displacement and injury of fish, 
increased turbidity, and seasonal destruction of fish eggs and larvae 
at road crossings. Erosion of stream banks and terraces resulted in 
some areas, negatively affecting the condition of aquatic and 
associated riparian communities that support Gila chub (BLM 1998; U.S. 
Fish and Wildlife Service 2004a). BLM reduced the number of roads 
through the lower reaches of Bonita Creek from 15 miles (the entire 
reach of Bonita Creek in the Gila Box Riparian National Conservation 
Area (RNCA) to about 2 miles. There are still localized impacts, as 
described above, including some continued mortality of Gila chub, where 
roads follow or cross Bonita Creek. BLM's new roads and facilities in 
Bonita Creek, including camping and day use areas, limit and direct 
these recreational activities. Some trampling of vegetation and banks 
likely occurs, but is localized and minimal in areas of concentrated 
public use along Bonita Creek.
    Much of the current range of the Gila chub occurs on public lands 
administered by the BLM and FS. Public use of these lands is high, and 
such use creates an elevated risk of human-caused fire. This risk 
exists in picnic and camping areas where fire can escape into wild 
lands. Directing public use to relatively fire-safe areas, as opposed 
to allowing people to camp and picnic anywhere, can reduce this risk. 
For example, BLM's improvements to recreational facilities in Bonita 
Creek over the last decade have served to reduce the risk of wildfire 
associated with public use.
    Development activities. Gila chub habitat is also increasingly 
threatened from urban and suburban development (Tellman et al. 1997). 
Urban and suburban development can affect Gila chub and their habitats 
in a number of ways, such as direct alteration of streambanks and 
floodplains from construction of buildings, gardens, pastures, and 
roads (Tellman et al. 1997), or as mentioned above, diversion of water, 
both from streams and connected groundwater (Glennon 1995). On a 
broader scale, urban and suburban development alters the watershed, 
which changes the hydrology, sediment regimes, and pollution input 
(Dunne and Leopold 1978; Horak 1989; Medina 1990; Reid 1993; Waters 
1995). The introduction of nonnative plants and animals that can 
adversely affect Gila chub may also become more likely as nearby human 
populations increase due to activities, such as releases from home 
aquariums (Aquatic Nuisance Species Task Force 1994).
    Suburban and urban development can degrade and eliminate Gila chub 
habitat. The Phoenix metropolitan area, founded in part due to its 
proximity to the Salt and Gila Rivers, is a population center of 
millions of people. As mentioned above, a new proposed development 
project would occupy a significant portion of the Spring Creek 
watershed. More generally, communities in the middle and upper Verde 
River watershed, such as the Prescott-Chino Valley, the Cottonwood-
Clarkdale-Camp Verde communities, Strawberry, Pine, and Payson, are all 
seeing rapid population growth. The upper San Pedro River is also the 
location of rapid population growth in the Sierra Vista-Huachuca City-
Tombstone area. Many of these communities are near Gila chub 
populations.
    Human activities in the watershed have had substantial adverse 
impacts to Gila chub habitat. Watershed alteration is a cumulative 
result of many human uses, including timber harvest, livestock grazing, 
roads, recreation, channelization, and residential development. The 
combined effect of all of these actions results in a substantial loss 
and degradation of habitat (Burns 1971; Reid 1993). In Williamson 
Valley Wash, human uses (e.g., recreational use of off-road vehicles) 
in the highly erodible upper watershed have resulted in increased 
erosion and high loads of sediment. In 1993, flooding in Williamson 
Valley Wash carried enough sediment that the isolated pool where Gila 
chub were previously collected became completely filled with sand and 
gravel (Weedman et al. 1996).

B. Overutilization for Commercial, Recreational, Scientific or 
Educational Purposes

    We have determined that overutilization for commercial, 
recreational, scientific or educational purposes are not a threat to 
the Gila chub. Collection of, or fishing for, Gila chub in Arizona is 
prohibited by Arizona Game and Fish Commission Order 41, except where 
such collection is authorized by special permit (AGFD 2005c). The 
collection of Gila chub is prohibited in the State of New Mexico except 
by special scientific permit (NMGF 2005). Collection of Gila chub is 
prohibited in Mexico except by special permit. A few individual fish 
may be caught incidentally by recreational anglers; however, most Gila 
chub populations do not occur in popular fishing areas. Although 
roundtail chub is a related species that looks quite similar and is 
considered a sport fish in Arizona, AGFD allows a possession bag limit 
of 1 fish 13 inches or larger (AGFD 2005c); because Gila chub do not 
grow larger than approximately 8 inches, and because Gila chub are in 
geographical

[[Page 66682]]

areas in which roundtail chub generally do not occur, we believe that 
angling for roundtail chub is not a threat to the Gila chub. No 
commercial uses exist for Gila chub. A limited amount of scientific 
collecting occurs, but does not pose a threat to Gila chub since it is 
regulated by the States.

C. Disease and Predation

    The introduction and spread of nonnative species has been 
identified as one of the major factors in the continuing decline of 
native fishes throughout North America and particularly in the 
southwestern United States (Miller 1961; Lachner et al. 1970; Ono et 
al. 1983; Moyle 1986; Moyle et al. 1986; Carlson and Muth 1989; Cohen 
and Carlton 1995; Fuller et al. 1990). Miller (1989) concluded that 
nonnative species were a causal factor in 68 percent of the fish 
extinctions in North America in the last 100 years. For 70 percent of 
those fish still extant, but considered to be endangered or threatened, 
introduced nonnative species are a primary cause of the decline 
(Aquatic Nuisance Species Task Force 1994; Lassuy 1995). In Arizona, 
release or dispersal of recently introduced nonnative aquatic organisms 
is a continuing phenomenon (Rosen et al. 1995; U.S. Fish and Wildlife 
Service 2001a). Aquatic nonnative species are introduced and spread 
into new areas through a variety of mechanisms, intentional and 
accidental, authorized and unauthorized. Mechanisms for nonnative 
dispersal in the southwestern United States include interbasin water 
transfer, sport fish stocking, aquaculture, aquarium releases, bait-
bucket release (release of fish used as bait by anglers), and 
biological control (e.g., the introduction of one species to control 
another species) (Aquatic Nuisance Species Task Force 1994; U.S. Fish 
and Wildlife Service 2001a).
    Gila chub evolved in a fish community with low species diversity 
and where few predators existed, and as a result developed few or no 
mechanisms to deal with predation from nonnative species (Carlson and 
Muth 1989). In its habitats, the Gila chub was a predatory fish and 
experienced little or no predation or competition from other species. 
The introduction of more aggressive and competitive nonnative fish led 
to significant losses of Gila chub.
    In the Gila River basin, introduction of nonnatives is considered a 
major factor in the decline of all native fish species (Minckley 1985; 
Williams et al. 1985; Minckley and Deacon 1991). Aquatic and semi-
aquatic mammals, reptiles, amphibians, crustaceans, mollusks (snails 
and clams), insects, zoo- and phytoplankton, parasites, disease 
organisms, algae, and aquatic and riparian vascular plants that are 
outside of their historical range have all been documented to adversely 
affect aquatic ecosystems (Cohen and Carlton 1995). As described below, 
the nonnative fishes have been demonstrated to pose a significant 
threat to Gila River basin native fishes, including Gila chub (Minckley 
1985; Williams et al. 1985; Minckley and Deacon 1991).
    The aquatic ecosystem of the central Gila River basin has 
relatively small streams with warm water and low gradients, and many of 
the native aquatic species are small in size. Therefore, much of the 
threat to native fishes comes from small nonnative fish species, as has 
also been noted for southern Nevada aquatic ecosystems (Deacon et al. 
1964). Examples of this are the impacts of mosquitofish (Gambusia 
affinis) and red shiner (Cyprinella lutrensis), which may compete with 
or prey upon native fish in the Gila River basin (Meffe 1985; Douglas 
et al. 1994).
    Nonnative fishes known to occur within the historical range of Gila 
chub basin include channel catfish (Ictalurus punctatus), flathead 
catfish (Pylodictis olivaris), red shiner, fathead minnow (Pimephales 
promelas), green sunfish (Lepomis cyanellus), largemouth bass 
(Micropterus salmoides), smallmouth bass (Micropterus dolomieui), 
rainbow trout (Oncorynchus mykiss), western mosquitofish, carp 
(Cyprinus carpo) (Young and Bettaso 1994; Weedman et al. 1996), 
warmouth (Lepomis gulosus), bluegill (Lepomis macrochiris), yellow 
bullhead (Ameiurus natalis), black bullhead (Ameiurus melas), and 
goldfish (Carassius auratus) (AGFD Native Fish Database 2005). 
Additionally, as discussed below, nonnative parasites introduced 
incidentally with nonnative species may jeopardize Gila chub 
populations. Although parasites are normal in fish populations and 
typically do not cause mortality in their host, the effects of 
nonnative parasites can be significant, especially when combined with 
other stressors such as poor habitat conditions (U.S. Geological Survey 
2004, 2005). Nonnative crayfish (virile crayfish) also prey on and 
compete with Gila chub (Carpenter 2000, 2005).
    Dudley (1995) correlated green sunfish presence with Gila chub 
declines in Sabino Creek, Arizona, and documented predation by small 
green sunfish on young-of-the-year Gila chub. Dudley and Matter (2000) 
documented green sunfish predation on Gila chub and the displacement of 
Gila chub by green sunfish from preferred habitats; even small Green 
sunfish were highly predaceous on Gila chub. Unmack et al. (2003) found 
that in Silver Creek, Gila chub did not show signs of recruitment below 
a waterfall where they occurred with green sunfish; upstream, in the 
absence of green sunfish, Gila chub populations had multiple year 
classes and good recruitment.
    Western mosquitofish were introduced outside of their native ranges 
to help control mosquitoes. Because of their aggressive and predatory 
behavior, mosquitofish may negatively affect populations of small fish 
through predation and competition (Courtenay and Meffe 1989; Aarn and 
Unmack 1998). Introduced mosquitofish have been particularly 
destructive in the American west where they have contributed to the 
elimination or decline of populations of federally-threatened and 
endangered species, such as the Gila topminnow (Poeciliopsis 
occidentalis occidentalis) (Courtenay and Meffe 1989). They often 
attack, shred fins, and sometimes kill other fish species. Mosquitofish 
are known to prey on eggs, larvae, and juveniles of various fishes, 
including the Gila chub.
    Largemouth bass are intentionally introduced for the purpose of 
sport fishing. Introduced bass usually affect populations of small 
native fishes through predation, sometimes resulting in the decline or 
extinction of such species (Minckley 1973). Species that have suffered 
such effects include populations of Gila chub and Monkey spring pupfish 
(Cyprinodon sp.) (Minckley 1973).
    The Asian tapeworm (Bothriocephalus acheilognathi) was introduced 
into the United States via imported grass carp in the early 1970s. It 
has since become well established in the southeast and mid-southern 
United States and has been recently found in the southwest including 
the Gila Basin. The definitive host in the life cycle of the Asian 
tapeworm is cyprinid (fish in the minnow family) fishes. There is a 
potential threat to the Gila chub as well as to the other native fishes 
in Arizona because of the presence of this parasite in the Gila Basin 
and the presence of cyprinid fish. The Asian tapeworm affects fish 
health in several ways. The direct impacts to fish are through impeding 
digestion of food as it passes through the intestinal track, and loss 
of nutrients as the worm feeds off the fish; large enough numbers of 
worms cause emaciation and starvation. An indirect effect is that 
weakened fish are more susceptible to infection by other

[[Page 66683]]

pathogens. This parasite can infest many species of fish and is carried 
into new areas along with nonnative fishes or native fishes from 
contaminated areas. Asian tapeworm may be a significant source of 
mortality of humpback chub in the Colorado River basin (U.S. Geological 
Survey 2004, 2005).
    The nonnative parasite Ichthyophthirius multifiliis (``Ich'') is a 
potential threat to Gila chub. ``Ich'' disease has occurred in some 
Arizona streams, probably favored by high temperatures and crowding as 
a result of drought (Mpoame 1982). The deep, quiet waters in which Gila 
chub often occur (Minckley 1973) seem stable enough that ``Ich'' cysts 
do not wash away. This protozoan becomes embedded under the skin and 
within the gill tissues of infected fish. When the ``Ich'' matures, it 
leaves the fish, causing fluid loss, physiological stress, and sites 
that are susceptible to infection by other pathogens. If ``Ich'' is 
present in large enough numbers they can also impact respiration 
because of damaged gill tissue. This parasite has been observed on the 
Sonoran sucker (Catostomus clakii), a species common throughout the 
Gila River basin, and ``Ich'' does not appear to be host-specific, so 
it could be transmitted to other species. ``Ich'' outbreaks were 
observed and caused significant mortality in Gila chub salvaged from 
Silver Creek; presumably, the parasite was already present in the 
population prior to salvage (E. Gardner, AGFD, pers. comm. 2005).
    Anchor worm (Lernaea cyprinacea) (Copepoda), also a nonnative 
species, is an external parasite, and is unusual in that it has little 
host specificity, infecting a wide range of fishes and amphibians. 
Additionally, infection has been known to kill large numbers of fish 
due to tissue damage and secondary infection of the attachment site 
(Hoffnagle and Cole 1997). Presence of this parasite in the Gila River 
basin is a threat to the Gila chub and other native fish. In July 1992, 
the BLM found Gila chub that were heavily parasitized by Lernaea 
cyprinacea in Bonita Creek. These fish were likely more susceptible to 
parasites due to physiological stress as a result of degraded habitat 
and decreased water flows due to water withdrawals. Clarkson and Creef 
(1993) suspected infestations by Lernaea cyprinacea in causing high 
mortality of stocked native fish, razorback sucker (Xyrauchen texanus) 
and Colorado pikeminnow (Ptycocheilus lucius).

D. The Inadequacy of Existing Regulatory Mechanisms

    Existing regulatory mechanisms have not been adequate to prevent 
the continuing decline of Gila chub. Gila chub are primarily threatened 
by introductions of nonnative fishes. Fish introductions are illegal 
unless approved by the appropriate States. However, enforcement is 
difficult. Many nonnative fish populations are established through 
illegal introductions (Aquatic Nuisance Specie Task Force 1994). The 
use of live bait is permitted in Arizona for nine species of fish, 
crayfish, and tiger salamanders (Ambystoma pigrimum), all of which are 
nonnative to the State of Arizona and several of which are known to 
have serious adverse effects on native species, including the Gila 
chub. The portion of the State in which use of live bait is permitted 
is limited, and use of live bait is restricted in much of the Gila 
River system in Arizona (AGFD 2005c). The use of live bait is allowed 
in the Gila Basin in New Mexico (NMGF 2004).
    The increasing restriction of live bait use will reduce the input 
of nonnative species into the Gila chub's habitat. However, it will do 
little to reduce unauthorized bait use or other forms of ``bait-
bucket'' transfer (e.g., dumping of unwanted aquarium fish which may be 
invasive) not directly related to bait use. In fact, those other 
``bait-bucket'' transfers are expected to increase as the human 
population of Arizona increases and as nonnative species become more 
available to the public through increased aquaculture, increased 
aquarium trade, and increased distribution through mechanisms such as 
the Central Arizona Project (CAP) aqueduct (Aquatic Nuisance Species 
Task Force 1994; U.S. Fish and Wildlife Service 2001a). The general 
public has been known to dump unwanted pet fish and other aquatic 
species into irrigation ditches such as the CAP aqueduct in the Phoenix 
metropolitan area (U.S. Fish and Wildlife Service 2001a).
    A variety of existing international conventions and laws, and 
Federal and State regulations, provide limited protection to the Gila 
chub and its habitat. The Gila chub is included in Wildlife of Special 
Concern in Arizona, and State regulations prohibit collection of or 
fishing for Gila chub in Arizona except under special permit (AGFD 
2005c). In New Mexico, Gila chub is listed as endangered, and 
collecting is prohibited except by special permit (NMGF 2004). In 
Mexico, the Gila chub is endangered and the collection of threatened 
and endangered species is prohibited (NORMA Oficial Mexicana 1994 (NOM-
059-ECOL-1994)). The habitat of the Gila chub and other threatened and 
endangered species is protected from some activities in Mexico.
    The Lacey Act, as amended (16 U.S.C. 3371 et seq.), provides some 
protection for the Gila chub. This legislation prohibits the import, 
export, sale, receipt, acquisition, purchase, and engagement in 
interstate or foreign commerce of any species taken, possessed, or sold 
in violation of any law, treaty, or regulation of the United States, 
any Tribal law, or any law or regulation of any State.
    The Federal Land Policy Management Act of 1976 (43 U.S.C. 1701 et 
seq.) and the National Forest Management Act of 1976 (16 U.S.C. 1600 et 
seq.) direct Federal agencies to prepare programmatic-level management 
plans to guide long-term resource management decisions. In addition, 
the FS is required to manage habitat to maintain viable populations of 
existing native and desired nonnative vertebrate species in planning 
areas (36 CFR 219.19). These regulations have resulted in the 
preparation of a variety of land management plans by the FS and the BLM 
that address management and resource protection of areas that support, 
or in the past supported, populations of Gila chub. The FS has only 
limited ability to regulate introductions or stockings of nonnative 
species that prey on the Gila chub.
    Many activities that affect the Gila chub and its habitat may occur 
outside of the States where the species occurs. For instance, 
activities such as atmospheric pollution from copper smelters or other 
actions that may be responsible for global amphibian declines may also 
affect Gila chub. State and Federal air quality regulations strictly 
regulate emissions from copper smelters, historically a major source of 
acidic rainfall and atmospheric cadmium and arsenic in southeastern 
Arizona, pollutants that may affect the Gila chub (Hale and Jarchow 
1988). However, a major source of these pollutants has been copper 
smelters in Sonora, Mexico, which are not subject to the same 
regulations as in the United States (Hale et al. 1995; Blanchard and 
Stromberg 1987).
    Wetland values and water quality of aquatic sites inhabited by the 
Gila chub are afforded varying protection under the Federal Water 
Pollution Control Act of 1948, as amended (33 U.S.C. 1251-1376) (known 
as the Clean Water Act), and Federal Executive Orders 11988 (Floodplain 
Management), and 11990 (Protection of Wetlands). Section 404 of

[[Page 66684]]

the Clean Water Act regulates dredging and filling activities in 
waterways.
    The New Mexico Department of Game and Fish has adopted a wetland 
protection policy whereby the Department does not endorse any project 
that would result in a net decrease in either wetland acreage or 
wetland habitat values. This policy affords only limited protection to 
Gila chub habitat because it is advisory only; destruction or 
alteration of wetlands is not regulated by State law.
    The State of Arizona Executive Order Number 89-16 (Streams and 
Riparian Resources), signed on June 10, 1989, directs State agencies to 
evaluate their actions and implement changes, as appropriate, to allow 
for restoration of riparian resources. Implementation of this 
regulation may reduce adverse effects of some State actions on the 
habitat of the Gila chub, although benefits to the species have not 
been documented.
    Both Arizona and New Mexico regulate surface and groundwater 
withdrawal through the Arizona Department of Water Resources in Arizona 
and the Interstate Stream Commission and Office of the State Engineer 
for surface and groundwater in New Mexico. While these authorities 
provide some regulation that may provide protection to Gila chub 
habitat, in general, the Gila River basin, while fully appropriated, is 
subject to ongoing adjudication. In Arizona, significant regulation 
occurs only in Active Management Areas (AMAs); outside of these areas, 
there are no limits on groundwater pumping in Arizona (McKinnon 2005b; 
L. Graser, Arizona Department of Water Resources, pers. comm. 2005). 
All known Gila chub populations occur outside the designated AMAs.
    In summary, the protection afforded by these and other Federal laws 
and regulations is inadequate to halt the loss of the Gila chub 
populations and their habitat.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Gila chub populations now remain fragmented and isolated to small 
stream segments and are vulnerable to those natural or manmade factors 
that might further reduce their population size. Random events, such as 
drought, floods, and wildfire, can decimate populations of Gila chub. 
Also, small populations are subject to genetic threats, such as 
inbreeding depression (reduced health due to elevated levels of 
inbreeding) and to genetic drift (a reduction in gene flow within the 
species that can increase the probability of unhealthy traits; Meffe 
and Carrol 1994).
    Wildfires pose a threat to these remaining extant populations. The 
frequency and intensity of wildfires in the southwestern United States 
has increased over the past 10 years due to drought conditions, 
historical wildfire suppression activities, and increased recreational 
activities (e.g., camping). Efforts are underway to restore natural 
fire regimes to forest and grass lands. Gori and Backer (in press) 
found that using prescribed burns to mimic the historic fire regime 
improved watershed condition and Gila chub habitat in Hot Springs 
Creek. Unfortunately, most current work on restoring fire regimes is 
focused on areas of urban interface, and many decades will likely pass 
before natural fire cycles are restored on a landscape scale across the 
American southwest. A century of fire suppression has been exacerbated 
by livestock grazing that has led to unnaturally high fuel loadings 
(Cooper 1960; Covington and Moore 1994; Swetnam and Baison 1994; 
Touchan et al. 1995; White 1985). Forests that once frequently burned 
at low intensities now rarely burn, but when they do, it is often at 
stand-replacing intensity (Covington and Moore 1994). Fires in the 
southwest frequently occur during, or just prior to, the summer monsoon 
season. As a result, fires are often followed by rain that washes ash-
laden debris into streams (Rinne 2004). It is usually such debris, 
rather than the fires themselves, that impact, and sometimes devastate 
fish populations (Rinne 2004), although direct effects from fire, 
including changes in temperature and water chemistry, can also cause 
fish morality. Indirect effects of fire also include watershed 
alteration that can alter streamflow, water quality, riparian 
vegetation, and instream sediment loads, all of which can drastically 
alter habitat for the Gila chub. Fire suppression can cause adverse 
affects to Gila chub from vegetation removal and road building, using 
fish habitats as water sources for fire fighting, and using fire 
retardants that are often toxic to aquatic species (see U.S. Fish and 
Wildlife Service 2004b for a thorough review of the effects of fire on 
fishes, including Gila chub, in Arizona).
    The 2003 Aspen Fire in the Santa Catalina Mountains outside Tucson 
devastated the Gila chub population in Sabino Canyon. This population 
would have been extirpated were individual fish not salvaged by the 
Service, AGFD, and FS, and later reestablished using the salvaged stock 
(AGFD 2005a). The Cave Creek Complex Fire burned over 248,000 acres in 
summer 2005, threatening six Gila chub populations; individual fish 
were salvaged from Gila chub populations in Sycamore Creek, Indian 
Creek, and Silver Creek (Knowles et al. 2005).
    The fragmentation of habitat and isolation of Gila chub populations 
has decreased the opportunity for additional gene flow to occur within 
these populations. Currently, the Gila chub has limited representation 
in each of the subunits within its historical range. As described 
above, dewatering has resulted in fragmentation of Gila chub 
populations, and water demands from a rapidly increasing human 
population are expected to further reduce habitat available to the Gila 
chub, and will likely further fragment populations. Fragmentation of 
Gila chub habitat increases vulnerability to extinction from threats of 
further habitat loss and competition from nonnative fish because 
immigration and recolonization from adjacent populations is less 
likely. In depth analyses of southwestern fish occurrence patterns 
(including Gila chub) led Fagan et al. (2002) to conclude that the 
number of occurrences or populations of a species is far less 
significant in determining extinction risk than is fragmentation of the 
species. Small populations and limited gene flow can also cause 
inbreeding depression and genetic drift that can further reduce the 
health of a population (Meffe and Carroll 1994). To achieve recovery, 
isolated populations may need to be augmented or Gila chub may need to 
be reintroduced into areas where they are extirpated.
    Among the most important climatic factors affecting Arizona's 
rivers and streams is the variable pattern of rainfall, which includes 
winter precipitation and summer thunderstorms that can be accompanied 
by flash floods. Flooding is a natural part of the hydrological cycle 
and is an important part of a river regime. Life cycles of plant and 
aquatic life are tied to annual floods. Stream biota is adapted to the 
seasonal cycles of flooding and low flows, which helps determine the 
biomass of fishes. Many native stream fishes of the southwest are 
morphologically and behaviorally adapted to survive periodic flooding 
(Harrel 1978; Meffe 1984; Minckley and Deacon 1991). However, in some 
cases, such as Sabino Canyon in the Santa Catalina Mountains in 
southeastern Arizona, these erratic flows can decimate already reduced 
populations.
    Extensive human alteration of watersheds that has occurred over the 
past 150 years in the lower Colorado River basin has resulted in 
changes in the hydrologic regimes of the rivers and

[[Page 66685]]

in the geomorphology of the river channels. Seasonal fluctuations in 
river channels due to droughts, floods, dams, and high human demand for 
water has had adverse impacts on the available surface flow, which 
restricted the distribution of Gila chub into small, isolated 
populations. This fragmentation of habitat makes the Gila chub very 
vulnerable to threats from further habitat loss and competition from 
nonnative fish. Drought has significantly increased substantial changes 
in the natural hydrology of southwest rivers and streams, including 
increased peak flows and lowered water tables. Droughts in the 
southwest may cause increased declines in Gila chub, particularly as 
human demand increases for the dwindling water supplies. This human-
initiated change is exacerbated by the naturally highly variable 
climate of the area. Peaks of flood flows have increased in volume 
while moving through the system more rapidly, so that damaging floods 
have become more frequent and more destructive. This increase in 
destruction is also tied to removal of riparian vegetation and 
encroachment of agricultural fields and buildings upon the floodplain. 
Flooding destruction results in increased channelization and flood 
control measures that further alter the stream channel and hydrologic 
regime. On the other hand, low flows have become lower and last longer, 
thus decreasing habitat quantity and quality during critical times of 
the year for Gila chub.

Finding

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the Gila chub in determining that this species is in danger of 
extinction throughout all or a significant portion of its range. The 
habitat and range of the Gila chub are threatened with destruction, 
modification, and curtailment. Existing regulatory mechanisms do not 
provide adequate protection for these species, and other natural and 
manmade factors affect their continued existence. Because this species 
has a fragmented range, its populations are disconnected and isolated 
from each other, and potential habitat areas are isolated and separated 
by large areas of unsuitable habitat. Gila chub are therefore 
particularly vulnerable to localized extirpation should their habitat 
be degraded or destroyed. Because the connectivity of the habitat is 
limited, populations will have little opportunity to leave degraded 
habitat areas in search of suitable habitat. As a result, one 
contamination event, either physical or biological, or a period of 
drought in the aquatic habitat where the species is found could result 
in the loss of an entire population, of which there are few. 
Additionally, we have found that these fragmented populations are 
subject to a variety of imminent threats. Nonnative aquatic species, 
which can eliminate Gila chub via predation and competition, are 
present in many areas where there are populations of Gila chub. Arizona 
and New Mexico are arid States that are experiencing increasing human 
population growth, which is placing increasing demands on available 
water supplies. Surface water diversion and groundwater withdrawal 
threaten to eliminate numerous populations of the Gila chub. Habitat 
alteration due to numerous human activities threatens remaining Gila 
chub habitat.
    The Act defines an endangered species as one that is in danger of 
extinction throughout all or a significant portion of its range, 
whereas a threatened species is defined as any species likely to become 
endangered within the foreseeable future throughout all or a 
significant portion of its range. Without protections, the Gila chub 
will become extinct in the foreseeable future due to these primary 
threats: (1) 85 to 90 percent of Gila chub habitat has been degraded or 
destroyed, and further degradation and destruction is ongoing as a 
result of various land use activities that degrade habitat (such as 
livestock grazing and water use); (2) extant populations of Gila chub 
are small and occupy habitat that has become severely fragmented, 
reducing chances for recolonization; and (3) competition with, and 
predation from, nonnatives is a major and increasing threat. The 
current status of the species and the threats described above led us to 
determine that the Gila chub meets the definition of an endangered 
species pursuant to section 3 of the Act. We are therefore listing Gila 
chub as an endangered species in this final rule.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures that are necessary to bring an endangered or a threatened 
species to the point at which listing under the Act is no longer 
necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. When the best available scientific data do 
not demonstrate that the conservation needs of the species so require, 
we will not designate critical habitat in areas outside the 
geographical area occupied by the species at the time of listing. An 
area currently occupied by the species but was not known to be occupied 
at the time of listing will likely be essential to the conservation of 
the species and, therefore, included in the critical habitat 
designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (P.L. 106-554; H.R. 5658) and 
the associated Information Quality Guidelines issued by the Service, 
provide criteria, establish procedures, and provide guidance to ensure 
that decisions made by the Service represent the best scientific data 
available. They require Service biologists to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat. When determining which 
areas

[[Page 66686]]

are critical habitat, a primary source of information is generally the 
listing package for the species. Additional information sources include 
the recovery plan for the species, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion or personal knowledge. All information is 
used in accordance with the provisions of section 515 of the Treasury 
and General Government Appropriations Act for Fiscal Year 2001 (P.L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that are contain the 
features that are essential to the conservation of the Gila chub. In 
proposing critical habitat for the Gila chub, we solicited information 
from knowledgeable biologists and reviewed recommendations contained in 
State wildlife resource reports (e.g., Weedman et al. 1996). We also 
reviewed the available literature pertaining to habitat requirements, 
historical localities, and current localities of the Gila chub. We used 
data in reports submitted during section 7 consultations, research 
published in peer-reviewed articles and presented in academic theses 
and agency reports, and regional Geographic Information System (GIS) 
data layer coverages.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific data available and to consider those physical and 
biological features (primary constituent elements (PCEs)) that are 
essential to the conservation of the species, and that may require 
special management considerations and protection. These include, but 
are not limited to: space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    The specific primary constituent elements required of Gila chub 
habitat are derived from the biological needs of the Gila chub as 
described below.

Space for Individual and Population Growth and Normal Behavior

    Gila chub are highly secretive animals, preferring quiet deeper 
waters, especially pools, or they remain near cover, including 
terrestrial vegetation, boulders, and fallen logs (Minckley 1973). 
Undercut banks created by overhanging terrestrial vegetation with dense 
roots growing into pool edges provide ideal cover for this species 
(Nelson 1993). Gila chub can survive in larger stream habitat, such as 
the San Carlos River, and artificial habitats, like the Buckeye Canal 
(Stout et al. 1970; Rinne 1976). Gila chub interact with spring and 
small stream fishes regularly (Meffe 1985), but prefer deeper waters 
(Minckley 1973).
    Adults often are found in deep pools and below areas with swift 
current, as in the Gila chub habitats found in Bass Canyon and Hot 
Springs in the Muleshoe Preserve area. Young-of-the-year (fish that are 
less than 1 year old) inhabit shallow water among plants or eddies, 
while older juveniles use higher-velocity stream areas (Minckley 1973; 
Minckley and Deacon 1991). Tiny young stay in the shallowest water 
among plants; juveniles move into currents for a time, then return to 
pools where they grow larger (Minckley 1973). Griffith and Tiersch 
(1989) collected Gila chubs from both riffles and pools in Redfield 
Canyon. Dudley (1995) found that Gila chubs in Sabino Creek were highly 
reclusive in winter, occupying dark interstitial (small and closely 
narrow) space. Adults were found in deep water with small substrates, 
but often away from cover. Sub-adults were more active and visible in 
the summer and were observed farther from cover. Sub-adults were 
observed more frequently in shallow areas with measurable current as 
water temperatures increased.
    The naturally dynamic nature of riverine systems and floodplains 
(including riparian and adjacent upland areas) are an integral part of 
the stream ecosystem. For example, riparian areas are seasonally 
flooded habitats (i.e., wetlands) that are major contributors to a 
variety of vital functions within the associated stream channel 
(Federal Interagency Stream Restoration Working Group 1998, Brinson et 
al. 1981). They are responsible for energy and nutrient cycling, 
filtering runoff, absorbing and gradually releasing floodwaters, 
recharging groundwater, maintaining streamflows, protecting stream 
banks from erosion, and providing shade and cover for fish and other 
aquatic species. Healthy riparian and adjacent upland areas help ensure 
water courses maintain the habitat components essential to aquatic 
species (e.g., see FS 1979; Middle Rio Grande Biological Interagency 
Team 1993; Briggs 1996), including the Gila chub. We believe a 
relatively intact riparian area, along with periodic flooding in a 
relatively natural pattern, is important in maintaining the stream 
conditions necessary for long-term conservation of the Gila chub.

Habitats Protected From Disturbance or Representative of the Historic 
Geographical and Ecological Distribution of a Species

    Gila chub evolved in a fish community with low species diversity 
and with few predators, and as a result developed limited ability to 
survive predation (Carlson and Muth 1989; see Factor C. ``Disease and 
Predation'' section above). In its habitats, the Gila chub was probably 
the most predatory fish and experienced little or no competition. The 
introduction of more aggressive and competitive nonnative fish has led 
to significant losses of Gila chub. Nonnative crayfish also appear to 
prey on and compete with Gila chub

[[Page 66687]]

(Carpenter 2000, 2005). A number of nonnative parasites are also a 
threat to Gila chub (see Factor C. ``Disease and Predation'' section 
above).

Food

    Griffith and Tiersch (1989) observed that Gila chub are omnivorous 
(feed on both plants and animals). Adults appear to be principally 
carnivorous, feeding on large and small terrestrial and aquatic insects 
and sometimes other small fishes (Rinne and Minckley 1991). Smaller 
individuals often feed on organic debris and aquatic plants, especially 
filamentous (threadlike) algae, and less intensely on diatoms 
(unicellular or colonial algae).
    Griffith and Tiersch (1989) dissected 27 Gila chub stomachs from 
Refield Canyon, finding aquatic material that included speckled dace 
(Rhinichtys osculus) and dobsonfly nymphs (order Megaloptera). 
Terrestrial insects included primarily ants, with some caterpillars and 
beetles. Diatoms (algae) were most common by volume. Bottom feeding may 
also occur, as suggested by presence of small gravel particles.

Water Quality

    Water quality is also an issue for the Gila chub. Excessive 
sedimentation is the primary threat to water quality for the Gila chub 
(as discussed in Factor A. ``The Present or Threatened Destruction, 
Modification, or Curtailment of Its Habitat or Range'' section above). 
In addition, mining activity can also introduce contaminants. For 
example, Gila chub that are found in Mineral Creek are limited to 
waters that are above a large mine. Water from the mine is drained back 
into Mineral Creek and no Gila chub have been found at this area.
    A recent study of Gila chub in Sabino and Cienega creeks documented 
water quality at various times of the year and found that water 
temperature, pH, dissolved oxygen, and conductivity ranged from 10.5 
[deg]C to 25.19 [deg]C, 7 to 9.5, 6.22 mg/l to 10.13 mg/l, and 125 
mmhos to 438 mmhos, respectively, in Sabino Creek. Gila chub were 
captured in Cienega Creek in habitats with mid-day water temperature, 
pH, dissolved oxygen, and conductivity ranging from 11.17 [deg]C to 
23.2 [deg]C, 6.58 to 8.9, 1.26 mg/l to 10.25 mg/l, and 469 mmhos to 760 
mmhos, respectively.

Reproduction and Rearing of Offspring

    Spawning probably occurs over beds of submerged aquatic vegetation 
or root wads (Weedman et al. 1996). Nelson (1993) attempted to identify 
cover and substrate types, duration of spawning, breeding color 
changes, and water temperature during spawning in Cienega Creek, 
Arizona. He concluded that warmer water temperatures, 20 to 24 degrees 
Celsius (C) (68 to 75.2 degrees Farenheit (F)), appear to increase 
breeding color intensities. Thus, warmer water temperatures may 
contribute to successful spawning. For the roundtail chub (Gila 
robusta), a close relative of the Gila chub, spawning has been 
documented at temperatures of 14 to 24 [deg]C (57.2 to 75.2 [deg]F), 
with 18 to 20 [deg]C (64.4 to 68 [deg]C) most commonly noted 
(Bezzerides and Bestgen 2002). A recent study of culture of Gila chub 
found that 20 [deg]C to 29 [deg]C was suitable for rearing juvenile 
Gila chub, with higher temperatures resulting in faster growth (A. 
Schultz, University of Arizona, in litt. 2005).
    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the Gila chub's primary constituent elements are:
    (1) Perennial pools, areas of higher velocity between pools, and 
areas of shallow water among plants or eddies all found in headwaters, 
springs, and cienegas, generally of smaller tributaries;
    (2) Water temperatures for spawning ranging from 17 to 24 [deg]C 
(62.6 to 75.2 [deg]F), and seasonally appropriate temperatures for all 
life stages (varying from approximately 10 [deg]C to 30 [deg]C).
    (3) Water quality with reduced levels of contaminants, including 
excessive levels of sediments adverse to Gila chub health, and adequate 
levels of pH (e.g. ranging from 6.5 to 9.5), dissolved oxygen (e.g. 
ranging from 3.0 to 10.0) and conductivity (e.g. 100 to 1000 mmhos).
    (4) Food base consisting of invertebrates (e.g. aquatic and 
terrestrial insects) and aquatic plants (e.g. diatoms and filamentous 
green algae);
    (5) Sufficient cover consisting of downed logs in the water 
channel, submerged aquatic vegetation, submerged large tree root wads, 
undercut banks with sufficient overhanging vegetation, large rocks and 
boulders with overhangs, a high degree of streambank stability, and a 
healthy, intact riparian vegetation community;
    (6) Habitat devoid of nonnative aquatic species detrimental to Gila 
chub or habitat in which detrimental nonnatives are kept at a level 
that allows Gila chub to continue to survive and reproduce; and
    (7) Streams that maintain a natural flow pattern including periodic 
flooding.
    Each of the areas designated in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the Gila chub. In some cases, the PCEs exist as a result 
of ongoing Federal actions. As a result, ongoing Federal actions at the 
time of designation will be included in the baseline in any 
consultation conducted subsequent to this designation.

Criteria for Defining Critical Habitat

    In designating critical habitat for the Gila chub, we reviewed 
information within our files and recommendations contained in State 
wildlife resource reports (e.g., Weeman et al. 1996). We also reviewed 
the available scientific literature pertaining to habitat requirements, 
historic localities, and current localities for this species. We are 
not aware of any reliable information that is currently available to us 
that was not considered in this designation process. This final 
determination relies on our best assessment of areas with features that 
are essential to the conservation of the species. Much remains to be 
learned about this species; should credible new information become 
available that contradicts this designation, we will reevaluate our 
analysis and, if appropriate, propose to modify this critical habitat 
designation, depending on available funding and staffing.
    We are designating critical habitat on lands that we have 
determined are occupied at the time of listing and have the features 
that are essential to the conservation of the species, and those 
additional areas found to be essential to the conservation of the 
species. All of the critical habitat areas are within the area 
historically occupied by the species and require special management 
consideration and protection. We note that one area included in this 
designation is not occupied (see ``Justification for Including 
Unoccupied Areas'' below).
    Important considerations in selection of this critical habitat 
designation include factors specific to each river system, such as 
size, connectivity, and habitat diversity, as well as rangewide 
recovery considerations, such as genetic diversity and representation 
of major portions of the species' historical range. Each area contains 
stream reaches that are in close proximity to nearby stream reaches 
with interconnected waters so that Gila chub can move between areas, at 
least during certain flows or seasons. The ability of the fish to 
repopulate areas where they have been depleted or extirpated is vital 
to recovery. Additionally, these reaches play a vital

[[Page 66688]]

role in the overall health of the aquatic ecosystem and, therefore, the 
integrity of upstream and downstream Gila chub habitats.
    Stabilization of the Gila chub at its present population level and 
distribution will not achieve conservation. The overall trend in the 
status of the Gila chub has been characterized by dramatic declines in 
numbers and range despite the fact that this species evolved in rapidly 
fluctuating, harsh environments. Known Gila chub populations remain 
fragmented and isolated to essentially very small stream segments and 
are vulnerable to those natural or manmade factors that might further 
reduce population size. If recovery actions fail to reverse the decline 
of Gila chub in its historical range, the species' vulnerability to 
catastrophic events, such as the introduction of the green sunfish or a 
prolonged period of low or no flow, would increase. Recovery through 
protection and enhancement of the existing populations, plus 
reestablishment of populations in suitable areas of historical range, 
are necessary for the species' survival and recovery. As previously 
stated, repatriation of Gila chub from extant populations will be 
evaluated as a means to recover the Gila chub in unoccupied portions of 
its historical habitat. Future restoration efforts will occur, pending 
completion of an approved recovery plan and genetic work to determine 
the suitability of using Gila chub from the extant populations in 
repatriation efforts.
    We divided the overall historical range into seven river subareas, 
and each critical habitat stream segment was derived from within these 
main river subareas. We have used these main river areas for points of 
reference in defining our critical habitat boundaries, but we are 
designating critical habitat only in tributaries of these main rivers, 
and not the main rivers themselves. The designated critical habitat 
constitutes our best assessment of areas that contain the essential 
features (PCEs) for the conservation of the Gila chub and that may 
require special management or protection.
    When determining critical habitat boundaries, we made every effort 
to avoid the designation of developed areas such as buildings, paved 
areas, boat ramps and other structures that lack PCEs for Gila chub. 
Any such structures do not contain the PCEs and are not considered part 
of the critical habitat designation. This also applies to the land on 
which such structures sit directly. Therefore, Federal actions limited 
to these areas would not trigger section 7 consultations, unless they 
affect the species and/or PCEs in adjacent critical habitat.
    Segments were designated based on sufficient PCEs being present to 
support Gila chub life processes. Some segments contain all PCEs and 
support multiple life processes. Some segments contain only a portion 
of the PCEs necessary to support the particular use of that habitat by 
the Gila chub. Where a subset of the PCEs are present (e.g., water 
temperature during spawning) it has been noted that only PCEs present 
at designation will be protected.
    A brief discussion of each area designated as critical habitat is 
provided in the area descriptions below. Additional detailed 
documentation concerning these areas is contained in our supporting 
record for this rulemaking.

Justification for Including Unoccupied Areas

    As background for this discussion, we note that during the 
development of this designation we documented all streams for which 
there were historical records for Gila chub. We found that the 1996 
AGFD status report on the species had captured most of the historical 
Gila chub records, with the exception of one, Haunted Canyon, which was 
collected by R.R. Miller in 1959 (UMMZ collection record 176179). We 
then documented all currently known occupied streams by consulting 
agencies (including AGFD and NMGF) and university researchers, and by 
conducting our own surveys. This information is portrayed in Table 1 
above, and summarized in the ``Background'' section. Based on our 
evaluation of existing information, we have concluded that there is one 
area, that includes 6.3 km (3.9 mi) of Turkey Creek (AZ) that is 
unoccupied (i.e., does not meet our definition of occupied, as we do 
not have records to support occupancy within the last 5 years), but 
meets our definition of critical habitat in that it is essential to the 
conservation of species. Gila chub were last detected in Turkey Creek 
(AZ) in 1991; thus the species occupied this stream in recent times. We 
performed surveys of Turkey Creek in 2005 and determined that it 
contains sufficient PCEs to provide for one or more of the life history 
functions of the Gila chub. We believe that this stream could support 
Gila chub, and we are working with the AGFD to reestablish Gila chub 
into this system.
    Critical habitat is defined in section 3 paragraph (5)(A) of the 
Act as (i) the specific areas within the geographic area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features (I) essential to the 
conservation of the species and (II) that may require special 
management consideration or protection; and (ii) specific areas outside 
the geographic area occupied by a species at the time it is listed, 
upon determination that such areas are essential for the conservation 
of the species. As stated in the proposed rule (August 9, 2002; 67 FR 
51948), reestablishment of populations into suitable areas of the Gila 
chub's historical range will be necessary for the conservation of the 
species. Protecting unoccupied areas, such as Turkey Creek in this case 
by designating it as critical habitat, can help to ensure that they 
will maintain the existing PCEs and provide for the future 
reestablishment of Gila chub for the purposes of recovery. We believe 
Turkey Creek represents important habitat that: (1) Has been documented 
to have been recently occupied by the species; (2) are in proximity to 
occupied areas and hydrologically connected to them during wet years; 
(3) contains sufficient PCEs to support the life history functions of 
the Gila chub; and (4) as noted above, are currently the subject of a 
Service/AZGDF partnership to reestablish the Gila chub in this area.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the primary 
constituent elements and may require special management considerations 
or protection. We believe each area included in this final designation 
requires special management and protections based upon our five factor 
threats analysis provided above. Table 1 also identifies the specific 
threats to each area.
    Special management considerations for each area will depend on the 
threats to the Gila chub in that critical habitat area. For example, 
special management that addresses the threat of nonnative species could 
include efforts to remove nonnative species from a creek, via chemical 
compounds that kill fish (e.g. rhotenone) but otherwise do not harm the 
environment, and construction of fish barriers that prevent the 
upstream movement of nonnative fishes into Gila chub habitat. Special 
management that addresses the threat of fire could include using 
prescribed fire to reduce fuel loads and prevent catastrophic 
wildfires, and salvaging individuals from populations that are 
threatened by wildfire. Livestock grazing is only a threat to Gila chub 
if not properly

[[Page 66689]]

managed. Proper management may include the use of fencing, rest 
rotation grazing systems, and other improvements to allotments such as 
new water tanks. With regard to water use, maintaining high quality and 
adequate quantities of water for all life stages of Gila chub may 
involve special management actions such as retaining an adequate buffer 
of riparian vegetation to help filter out sediment and contaminants, 
and maintaining streamflow via sustainable levels of ground and surface 
water use. We have included below in our description of each of the 
critical habitat areas for the chub a description of the threats 
occurring in that area requiring special management or protections.

Critical Habitat Designation

    We are designating approximately 160.3 mi (258.1 km) of stream 
reaches as critical habitat. Critical habitat vital for the 
conservation of Gila chub includes: Cienegas, headwaters, spring-fed 
streams, perennial streams (Vives 1990), and spring-fed ponds (Minckley 
1973). Historically, the range of the Gila chub covered over one-
quarter of southeastern Arizona. The Gila chub now occupies about 10 to 
15 percent of its historical range. Current populations of Gila chub 
are now scattered in small disconnected habitats throughout the 
following counties: Grant County, New Mexico, and Yavapai, Gila, 
Coconino, Pinal, Graham, Pima, Santa Cruz, Cochise, and Greenlee 
counties, Arizona.
    For each stream reach, the upstream and downstream boundaries are 
described below. Additionally, critical habitat includes the stream 
channels within the identified stream reaches and areas within these 
reaches potentially inundated during high flow events. Critical habitat 
includes the area of bankfull width plus 300 feet on either side of the 
banks. The bankfull width is the width of the stream or river at 
bankfull discharge, i.e., the flow at which water begins to leave the 
channel and move into the floodplain (Rosgen 1996). Bankfull discharge 
while a function of the size of the stream, is a fairly consistent 
feature related to the formation, maintenance, and dimensions of the 
stream channel (Rosgen 1996). We chose the bankfull width because 
bankfull discharge and width are quantifiable measures as are required 
to accurately classify a stream channel and make sound decisions about 
management of the stream and its watershed. This 300-foot width defines 
the lateral extent of each area of critical habitat that contains 
sufficient PCEs to provide for one or more of the life history 
functions of the Gila chub.
    We determined the 300-foot lateral extent for several reasons. 
First, the implementing regulations of the Act require that critical 
habitat be defined by reference points and lines as found on standard 
topographic maps of the area (50 CFR 424.12). Although we considered 
using the 100-year floodplain, as defined by the Federal Emergency 
Management Agency (FEMA), we found that it was not included on standard 
topographic maps, and the information was not readily available from 
FEMA or from the Army Corps of Engineers for the areas we are proposing 
to designate. We suspect this is related to the remoteness of many of 
the stream reaches where the Gila chub occurs. Therefore, we selected 
the 300-foot lateral extent, rather than some other delineation, for 
three biological reasons: (1) The biological integrity and natural 
dynamics of the river system are maintained within this area (i.e., the 
floodplain and its riparian vegetation provide space for natural 
flooding patterns and latitude for necessary natural channel 
adjustments to maintain appropriate channel morphology and geometry, 
store water for slow release to maintain base flows, provide protected 
side channels and other protected areas, and allow the river to meander 
within its main channel in response to large flow events); (2) 
conservation of the adjacent riparian area also helps provide essential 
nutrient recharge and protection from sediment and pollutants; and (3) 
vegetated lateral zones are widely recognized as providing a variety of 
aquatic habitat functions and values (e.g., aquatic habitat for fish 
and other aquatic organisms, moderation of water temperature changes, 
and detritus for aquatic food webs) and help improve or maintain local 
water quality (see U.S. Army Corps of Engineers' final notice 
concerning Issuance and Modification of Nationwide Permits, March 9, 
2000, 65 FR 12818-12899).
    This designation takes into account the naturally dynamic nature of 
riverine systems and recognizes that floodplains (including riparian 
areas) are an integral part of the stream ecosystem. For example, 
riparian areas are seasonally flooded habitats (e.g., wetlands) that 
are major contributors to a variety of vital functions within the 
associated stream channel (Federal Interagency Stream Restoration 
Working Group 1998; Brinson et al. 1981). They are responsible for 
energy and nutrient cycling, filtering runoff, absorbing and gradually 
releasing floodwaters, recharging groundwater, maintaining streamflows, 
protecting stream banks from erosion, and providing shade and cover for 
fish and other aquatic species. Healthy riparian areas help ensure 
water courses maintain the habitat components essential to aquatic 
species (Briggs 1996), including the Gila chub. Habitat quality within 
the mainstem river channels in the historical range of the Gila chub is 
intrinsically related to the character of the floodplain and the 
associated tributaries, side channels, and backwater habitats that 
contribute to the key habitat features (e.g., substrate, water quality, 
and water quantity) in these reaches.
    Among other things, the floodplain provides space for natural 
flooding patterns and latitude for necessary natural channel 
adjustments to maintain channel morphology and geometry. We believe a 
relatively intact riparian area, along with periodic flooding in a 
relatively natural pattern, are important in maintaining the stream 
conditions necessary for long-term survival and recovery of the Gila 
chub.
    Conservation of the river channel alone is not sufficient to ensure 
the survival and recovery of the Gila chub. For the reasons discussed 
above, we believe the riparian corridors adjacent to the river channel 
provide an important function for the protection and maintenance of 
critical habitat.
    The final designation includes seven river areas with a total of 
160.3 mi (258.1 km) of stream reaches (see Table 2 below). We are not 
designating mainstem river channels that may have been historically 
used by Gila chub as migration corridors and are currently considered 
outside of the occupied range of the Gila chub. In addition, most of 
these major rivers no longer contain suitable habitat to serve as 
migration corridors for movement of Gila chub. Instead, we are 
designating certain small tributary streams within the watershed of the 
rivers listed below. The seven areas designated as critical habitat 
are: (1) Upper Gila River Area; (2) Middle Gila River Area; (3) 
Babocomari River Area; (4) Lower San Pedro River Area; (5) Lower Santa 
Cruz River Area Area; (6) Upper Verde River Area; and (7) Aqua Fria 
River Area.
    Tables 2, 3, and 4 below show the lands being designated as 
critical habitat by landowner and State, by individual Federal 
landowner for each State, and by ownership of lands excluded pursuant 
to section 4(b)(2) of the Act, respectively.

[[Page 66690]]



     Table 2.--Approximate Critical Habitat in Stream Kilometers (km) and Miles (mi) by State and Landowner
----------------------------------------------------------------------------------------------------------------
                                                          New Mexico  km
                       Land owner                              (mi)         Arizona  km (mi)    Total  km (mi)
----------------------------------------------------------------------------------------------------------------
Federal................................................       18.9 (11.7)       153.1 (95.1)       172.0 (106.8)
State..................................................                 0        17.5 (10.9)         17.5 (10.9)
County.................................................                 0         13.6 (8.4)          13.6 (8.4)
Private................................................         4.0 (2.5)        51.0 (31.7)         55.0 (34.2)
                                                        -------------------
    Total..............................................       22.9 (14.2)      235.2 (146.1)       258.1 (160.3)
----------------------------------------------------------------------------------------------------------------


Table 3.--Approximate Critical Habitat in Stream Kilometers (km) and Miles (mi) by Individual Federal Landowners
----------------------------------------------------------------------------------------------------------------
                                                           New Mexico km
                       Land owner                              (mi)         Arizona  km (mi)    Total  km (mi)
----------------------------------------------------------------------------------------------------------------
Gila National Forest...................................       18.9 (11.7)                  0         18.9 (11.7)
Apache-Sitgreaves National Forest......................                 0        50.5 (31.4)         50.5 (31.4)
Coconino National Forest...............................                 0        16.9 (10.5)         16.9 (10.5)
Coronado National Forest...............................                 0         13.9 (8.7)          13.9 (8.7)
Prescott National Forest...............................                 0        21.0 (13.1)         21.0 (13.1)
Tonto National Forest..................................                 0          7.4 (4.6)           7.4 (4.6)
                                                        -------------------
    Subtotal...........................................       18.9 (11.7)       109.7 (68.3)        128.6 (80.0)
                                                        -------------------
BLM--Phoenix District..................................                 0          7.7 (4.8)           7.7 (4.8)
BLM--Safford District..................................                 0         11.9 (7.4)          11.9 (7.4)
BLM--Tucson District...................................                 0        23.7 (14.8)         23.7 (14.8)
                                                        -------------------
    Subtotal...........................................                 0        43.4 (27.0)         43.4 (27.0)
                                                        ===================
    Total..............................................       18.9 (11.7)       153.1 (95.1)       172.0 (106.8)
----------------------------------------------------------------------------------------------------------------


 Table 4.--Approximate Critical Habitat Excluded in This Final Rule on the Basis of Section 4(b)(2) of the Act,
                              in Stream Kilometers (km) and Miles (mi) by Landowner
----------------------------------------------------------------------------------------------------------------
                                                          New Mexico  km
                       Land owner                              (mi)         Arizona  km (mi)     Total km (mi)
----------------------------------------------------------------------------------------------------------------
Tribal.................................................                 0        47.1 (29.3)         47.1 (29.3)
BLM....................................................                 0         15.8 (9.8)          15.8 (9.8)
Private................................................                 0         14.2 (8.9)          14.2 (8.9)
                                                        -------------------
    Total..............................................                 0        77.1 (48.0)         77.1 (48.0)
----------------------------------------------------------------------------------------------------------------

    Below we present brief descriptions of all areas and the segments 
within each area, reasons why each area and segment meets the 
definition of critical habitat for the Gila chub, a discussion of 
occupancy and a general description of land ownership. See Table 1 for 
specific occupancy data and sources of information; see the maps and 
legal description of critical habitat in the ``Regulation 
Promulgation'' section below for more specific coordinate information.

Area 1: Upper Gila River Area

    This area lies in Grant County, New Mexico, and Greenlee County, 
Arizona. Critical habitat includes several tributary streams: Turkey 
Creek, Dix Creek, Harden Cienega Creek, Eagle Creek, and East Eagle 
Creek. All of these segments are currently occupied by the Gila chub. 
These tributaries represent the few remaining tributaries of a low 
desert river that currently provide the necessary habitat for the Gila 
chub, in a largely natural state. Threats to this critical habitat area 
requiring special management and protections include fire, grazing, and 
nonnative species (see Table 1 above).
    a. Turkey Creek (New Mexico)--22.3 km (13.8 mi) of creek extending 
from the edge of the Gila Wilderness boundary and continuing upstream 
into the Gila Wilderness in the Gila National Forest. Turkey Creek 
contains one or more of the primary constituent elements, including 
perennial pools and the necessary vegetation that provides cover. 
Turkey Creek supports a population of Gila chub; surveys confirmed the 
species presence in 2005 (P. C. Marsh, ASU, in litt. 2005). Land 
ownership is entirely Gila National Forest and private.
    b. Eagle Creek and East Eagle Creek--39.2 km (24.4 mi) of creek 
extending from the confluence of Eagle Creek with an unnamed tributary 
upstream to its confluence with East Eagle Creek, and including East 
Eagle Creek to its headwaters just south of Highway 191. Nine other 
native fishes known to

[[Page 66691]]

occupy Eagle Creek include loach minnow (Tiaroga cobitis), spikedace 
(Meda fulgida), longfin dace (Agozia chrysogaster), speckled dace, 
Sonora sucker (Catostomus insignis), desert sucker (Catostomus 
clarkii), razorback sucker, roundtail chub, and an undetermined trout 
species (Oncorhynchus sp.). This upper portion of Eagle Creek contains 
one or more of the primary constituent elements, including a series of 
permanent pools with riffle (shallow area in a streambed causing 
ripples), run areas between these pools, and the necessary vegetation 
that provides cover. A diversion dam just below the end of the proposed 
critical habitat reach acts as a barrier to prevent nonnatives from 
invading from the Gila River. Periodic flooding appears to decrease the 
presence of nonnatives, subsequently decreasing the impacts to native 
fishes by nonnatives in Eagle Creek above this diversion dam (Marsh et 
al. 1990). East Eagle Creek contains one or more of the primary 
constituent elements, including a series of permanent pools with 
riffle, run areas between these pools, and the necessary vegetation 
that provides cover. East Eagle Creek is also hydrologically connected 
to Eagle Creek. Gila chub were most recently documented in Eagle Creek 
in 2005 (Marsh 2005). Land ownership for this segment is predominantly 
FS, but includes some private land.
    c. Harden Cienega Creek--22.6 km (14.0 mi) of creek extending from 
its confluence with the San Francisco River in and continuing upstream 
to its headwaters. Harden Cienega Creek contains one or more of the 
primary constituent elements, including perennial pools and the 
necessary vegetation that provides cover. AGFD surveyed this stream in 
2005 and found Gila chub to be abundant (McKell 2005). Land ownership 
for this segment is Apache-Sitgreaves National Forest, Gila National 
Forest, and private inholdings.
    d. Dix Creek--Portions of the Creek beginning 1.0 mile upstream 
from its confluence with the San Francisco River at a natural rock 
barrier and continuing upstream for 0.9 km (0.6 mi.) to the confluence 
of the right and left forks of Dix Creek. This critical habitat area 
also includes the Left Prong of Dix Creek as it continues upstream 2.0 
km (1.2 mi), and the Right Prong of Dix Creek as it continues upstream 
4.8 km (3.0 mi). The barrier at the lower end of Dix Creek appears to 
be effective in isolating the upper drainages from nonnative fish. Dix 
Creek contains one or more of the primary constituent elements, 
including perennial pools, and is devoid of nonnatives. AGFD surveyed 
this stream in 2005 and found Gila chub to be abundant (McKell 2005). 
Land ownership for these segments is entirely Apache-Sitgreaves 
National Forest.

Area 2: Middle Gila River Area

    This area lies in Graham, Gila, and Pinal counties, Arizona. 
Critical habitat includes a tributary stream as critical habitat: 
Mineral Creek. The Mineral Creek population of Gila chub fills a gap of 
what was previously determined unoccupied habitat within the Middle 
Gila River Area. This may help to expand future populations of Gila 
chub in the Middle Gila River Area. Critical habitat within Mineral 
Creek consists of 14.4 km (8.9 mi) of creek extending from the 
confluence with Devil's Canyon upstream to its headwaters. Gila chub 
currently occupy Mineral Creek, and this area contains one or more of 
the primary constituent elements, including perennial pools, the 
necessary vegetation that provides cover, and adequate water quality. 
Below this area, Mineral Creek flows through a mine, where it has been 
contaminated and does not provide suitable habitat. AGFD documented 
Gila chub in Mineral Creek in 2000 (Weedman 2000). The area below the 
mine is not being designated as critical habitat. Land ownership for 
this segment is Tonto National Forest, Arizona State lands, and 
private. Threats to this critical habitat area requiring special 
management and protections include fire, grazing, and nonnative species 
(see Table 1 above).

Area 3: Babocomari River Area

    This area lies in Santa Cruz County, Arizona. Historically the 
Babocomari River was a perennial stream which flowed through cienegas 
and marshlands all the way to the San Pedro River. However, livestock 
overgrazing destroyed much of the river. In 1995, AGFD found that the 
only water use was a large impoundment in the river, on the Babocomari 
Ranch. Perennial flows begin upstream from this impoundment near T-4 
Spring. Gila chub were first collected from the Babocomari River in 
1892 near Fort Huachuca Military Reservation and again in 1950, 
approximately 3.5 mi below the Babocomari Ranch (Weedman et al. 1996). 
Tributaries to this area include O'Donnell Canyon and Turkey Creek, 
which are designated as critical habitat. Threats to this critical 
habitat area requiring special management and protections include fire, 
grazing, and nonnative species (see Table 1 above).
    a. O'Donnell Canyon--10.0 km (6.2 mi) of creek extending from its 
confluence with Turkey Creek upstream to the confluences of Western, 
Middle, and Pauline Canyons. O'Donnell Canyon provides the full range 
of primary constituent elements necessary for the conservation of the 
Gila chub. AGFD surveyed O'Donnell Creek and found Gila chub in 
O'Donnell Creek, although at very low numbers, in 2004 (Dean Foster, 
AGFD, in litt. 2005). Land ownership is BLM, Coronado National Forest, 
and private.
    b. Turkey Creek--6.3 km (3.9 mi) of creek extending from its 
confluence with O'Donnell Canyon upstream to where Turkey Creek crosses 
AZ Highway 83. Turkey Creek contains one or more of the primary 
constituent elements, including perennial pools, the necessary 
vegetation that provides cover, and adequate water quality. Gila chub 
have not been detected in Turkey Creek since 1991, although in wet 
years this segment is connected to occupied habitat in O'Donnell Creek 
(Weedman et al. 1996). Land ownership is Coronado National Forest and 
private lands.

Area 4: Lower San Pedro River Area

    This area lies in Graham and Cochise counties, Arizona. Gila chub 
currently exist in several tributaries of this segment of the San Pedro 
River. Historically, Gila chub most likely occurred on both sides of 
the lower San Pedro River; however, documentation of Gila chub presence 
only exists for the east-side drainages. We are only designating 
critical habitat for the east-side drainage areas. Threats to this 
critical habitat area requiring special management and protections 
include fire, grazing, and nonnative species (see Table 1 above).
    a. Bass Canyon--5.5 km (3.4 mi) of creek extending from its 
confluence with Hot Springs Canyon upstream to the confluence with Pine 
Canyon. Perennial water was documented by Dave Gori (TNC, in litt., 
1995) for this stream from the confluence with Hot Springs Canyon 
upstream 4.8 km (3.0 mi). The remainder of the stream was dry for 8 km 
(5.0 mi). All the State land in the Muleshoe Preserve was traded to the 
BLM and is managed by TNC. Beginning in 1991, biologists with TNC 
established eight fixed sample stations in Bass Canyon, five in Hot 
Springs, and three in Double R Canyon. Beginning in 1992, random pools 
were also sampled in the streams each year. Gila chub were collected 
from 1992 to 2003 in Bass Canyon (B. Rogers, TNC, in litt. 2005). Bass 
Canyon contains one or more of the primary constituent elements, 
including perennial pools, the necessary vegetation that provides 
cover, and adequate water quality. Land ownership includes BLM and 
privately owned lands.

[[Page 66692]]

    b. Hot Springs Canyon--10.5 km (6.5 mi) of creek extending from its 
confluence with Bass Canyon downstream. The occurrence of Gila chub 
within this reach of Hot Springs Canyon is sporadic due to the limited 
number of pools; however, Gila chub are commonly found where good pool 
habitat exists in Hot Springs Canyon (per. comm. TNC, 2000). Hot 
Springs Canyon contains one or more of the primary constituent 
elements, including perennial pools, the necessary vegetation that 
provides cover, and adequate water quality. Gila chub were found in Hot 
Springs Canyon in 2004 (B. Rogers, TNC, in litt. 2005). Land ownership 
includes BLM, State lands, and private.
    c. Redfield Canyon--9.8 km (6.1 mi) of creek extending from its 
confluence with Sycamore Canyon downstream. The first documented 
collection of Gila chub in Redfield Canyon was in 1961. A number of 
collections of Gila chub occurred from 1976 to 1983, and most recently 
in 2003. Redfield Canyon contains one of the few populations of Gila 
chub for which population studies have been conducted (Griffith and 
Tiersch 1989). Fall Fish Count (FFC) sites were established and 
surveyed by volunteers from 1988 to 1990. TNC established monitoring 
stations from 1991 to 1994. Gila chub were collected each year, and 
they were the most abundant species caught in 1991 (72% of the total 
fish caught) (Weedman et al. 1996). TNC surveyed Redfield Canyon in 
November 2001, and Gila chub were documented. This segment of Redfield 
Canyon is remote and relatively pristine. Additionally, no livestock 
grazing is permitted, which contributes to the existence of the primary 
constituent elements for the Gila chub. Redfield Canyon has an abundant 
and healthy Gila chub population. Redfield Canyon contains one or more 
of the primary constituent elements, including perennial pools, the 
necessary vegetation that provides cover, and adequate water quality. 
Land ownership includes BLM, State lands, and private.

Area 5: Lower Santa Cruz River Area

    This area lies in Pima County, Arizona. Tributaries included in the 
critical habitat designation are Cienega Creek, Mattie Canyon, Empire 
Gulch, and Sabino Canyon. Threats to this critical habitat area 
requiring special management and protections include fire, grazing, and 
nonnative species (see Table 1 above).
    a. Cienega Creek--There are two segments of critical habitat 
designated in Cienega Creek. The first segment is in the lower part of 
the drainage, and includes 14.2 km (8.8 mi) of creek extending from 
where Cienega Creek becomes Pantano Wash to where it crosses Interstate 
10. The second segment is in the upper part of the drainage and extends 
from its confluence with Empire Gulch on BLM lands to a point 13.6 km 
(8.4 mi) downstream. Perennial water exists within the lower segment in 
the Cienega Creek Natural Preserve managed by the Pima County Flood 
Control District. In June 2005, Gila chub were documented in this lower 
segment of Cienega Creek. The upper segment of Cienega Creek is 
considered to be one of the finest natural habitats for the Gila chub, 
and was the only stream segment with a population of Gila chub 
considered stable-secure by Weedman et al. (1996). Fish inventories of 
Cienega Creek and its tributaries, Mattie Canyon and Empire Gulch, have 
been conducted since 1989 by seining, electrofishing, and visual 
observation. Composition of native fish in Cienega Creek varies from 
its upper to lower reaches, as well as from year to year. Fish sampling 
is difficult in Cienega Creek because of the large volume of vegetation 
cover, great pool depths, and undercut banks. Visual observation and 
electrofishing data show that a large population of adult Gila chub 
occupy the upper perennial segment of Cienega Creek. Visual 
observations of adult Gila chub made for the aquatic habitat inventory 
in 1989 and 1990 found 368 chub along the upper perennial length of 
Cienega Creek. This estimate is undoubtedly low due to water turbidity 
in some reaches, vegetation cover, and the secretive nature of Gila 
chub. Cienega Creek contains one or more of the primary constituent 
elements, including perennial pools, the necessary vegetation that 
provides cover, and adequate water quality. Gila chub were found in the 
upper segment of Cienega Creek in 2004 (D. Foster, AGFD, pers. comm. 
2005) and in the lower segment in 2005 (D. Duncan, Service, in litt. 
2005). Land ownership for the upper segment is BLM. The lower segment 
is owned by Pima County.
    b. Mattie Canyon--4.0 km (2.5 mi) of creek extending from its 
confluence with Cienega Creek upstream to the BLM Boundary. Gila chub 
were observed in Mattie Canyon in 2005 (J. Simms, BLM in litt. 2005). 
Mattie Canyon contains one or more of the primary constituent elements, 
including perennial pools, the necessary vegetation that provides 
cover, and adequate water quality. Land ownership is BLM.
    c. Empire Gulch--5.2 km (3.2 mi) of creek extending from its 
confluence with Cienega Creek continuing upstream through BLM lands. 
The majority of this reach is on BLM land and contains one or more of 
the primary constituent elements, including perennial pools, the 
necessary vegetation that provides cover, and adequate water quality. 
Gila chub were documented in Empire Gulch in 1995 and in 2001 (67 FR 
51948). Land ownership is BLM.
    d. Sabino Canyon--11.1 km (6.9 mi) of creek extending from the 
southern boundary of the Coronado National Forest upstream to its 
confluence with the West Fork of Sabino Canyon. Sabino Canyon is 
managed by the Coronado National Forest. Sabino Canyon was devastated 
by the Aspen Fire in July 2003. Gila chub were salvaged during the 
fire, and later returned in May 2005 (AGFD 2005a). Sabino Canyon 
contains one or more of the primary constituent elements, including 
perennial pools and adequate water quality. Land ownership is Coronado 
National Forest.

Area 6: Upper Verde River Area

    This area lies in Yavapai County, Arizona. We are designating four 
tributaries within the Verde River drainage as critical habitat: Walker 
Creek, Red Tank Draw, Silver Creek, and Williamson Valley Wash. The 
Upper Verde River is the northwestern most part of the Gila chub's 
historical range. Conserving these Gila chub populations will help 
maintain representation of the species throughout its historical range. 
All of these segments have at least one of the primary constituent 
elements present. Threats to this critical habitat area requiring 
special management and protections include fire, grazing, residential 
development, water use, and nonnative species (see Table 1 above).
    a. Walker Creek--7.6 km (4.7 mi) of creek extending from Prescott 
National Forest Road 618 upstream to its confluence with Spring Creek. 
The earliest known collection of Gila chub was in 1978 by J. Rinne 
(Weedman 1996). Walker Creek was surveyed in 1994 by AGFD at five 
different locations; Gila chub were collected at three of those 
locations. Gila chub were collected in Walker Creek by Service 
biologists in 2005 (Service data). The ephemeral nature of the lower 
end of Walker Creek appears to be limiting the invasion of nonnative 
species from Wet Beaver Creek (Weedman et al. 1996); the only nonnative 
species found in 2005 were virile crayfish (Orconectes virilis). Walker 
Creek contains one or more of the primary constituent elements, 
including perennial pools and the necessary vegetation that provides

[[Page 66693]]

cover. Land ownership is Coconino National Forest and private lands.
    b. Red Tank Draw--11.1 km (6.9 mi) of creek extending from the 
National Park Service boundary just upstream of its confluence with Wet 
Beaver Creek upstream to the confluence of Mullican and Rarick canyons. 
Red Tank Draw is an intermittent stream that offers abundant Gila chub 
habitat in the form of perennial pools. Gila chub were documented in 
Red Tank Draw in 1996 by AGFD, and by the Service in 2005. Green 
sunfish and virile crayfish are present in the downstream reaches of 
this stream segment. Red Tank Draw contains one or more of the primary 
constituent elements, including perennial pools and the necessary 
vegetation that provides cover. Land ownership is Coconino National 
Forest and private.
    c. Spring Creek--5.7 km (3.6 mi) of creek including all non-private 
lands extending from the boundary of Forest Service land and continuing 
upstream to the Arizona Highway 89A crossing. Gila chub were documented 
in 2005 in Spring Creek by Service biologists (Service data). Spring 
Creek contains all of primary constituent elements, with the exception 
of habitat free from nonnative aquatic species; virile crayfish are the 
only nonnative present. Four other native fish species occur in Spring 
Creek: speckled dace, longfin dace, Sonora sucker, and desert sucker. 
Land ownership is Coconino National Forest and private.
    d. Williamson Valley Wash--7.2 km (4.4 mi) of creek extending from 
the gauging station upstream to the crossing of the Williamson Valley 
Road. In 1990 Williamson Valley Wash was surveyed for Gila chub and 
collected on the Matli Ranch, and a large stretch of stream had 
perennial water (Weedman et al. 1996). In July 2001, Williamson Valley 
Wash was resurveyed, and Gila chub were abundant (Bryan Bagley in litt. 
2001), although they appear to have become much more rare since that 
time (Bill Leibfried, in litt. 2005). Williamson Valley Wash contains 
the full range of primary constituent elements necessary for the 
conservation of the Gila chub. Williamson Valley Wash is entirely on 
private lands.

Area 7: Agua Fria River Area

    This area lies in Yavapai County, Arizona. There are six 
tributaries in the Agua Fria River that are designated as critical 
habitat, all of which are currently occupied by Gila chub: Little 
Sycamore Creek, Sycamore Creek, Indian Creek, Silver Creek, Lousy 
Canyon, and Larry Creek. The Agua Fria River Area represents part of 
the upper northwest area of the historical range of the Gila chub, and 
current Gila chub populations in the six drainages of this river area 
are healthy. There have been no reports of any diseases associated with 
the Gila chub in this area. Survey results indicate a good 
representation of all age classes. However, the Cave Creek Complex Fire 
burned over 248,000 acres in summer 2005, threatening Gila chub 
populations in this area; individual fish were salvaged from Gila chub 
populations in Sycamore Creek, Indian Creek, and Silver Creek (Knowles 
et al. 2005). Gila chub were introduced to Larry Creek and Lousy Canyon 
as a conservation action in July 1995 (Weedman et al. 1996) by the BLM. 
Conserving these Gila chub populations will help maintain 
representation of the species throughout its historical range. Threats 
to this critical habitat area requiring special management and 
protections include fire, grazing, and nonnative species (see Table 1 
above).
    a. Little Sycamore Creek--4.7 km (2.9 mi) of creek extending from 
its confluence with Sycamore Creek upstream. This segment is 
intermittent but always contains some habitat in the form of perennial 
pools; Gila chub expand into larger habitats when they are available. 
Little Sycamore Creek contains one or more of the primary constituent 
elements, including perennial pools, the necessary vegetation that 
provides cover, and adequate water quality. Gila chub were documented 
in Little Sycamore Creek in 2003 (A. Silas, FS, pers. comm. 2005). Land 
ownership is Prescott National Forest and private.
    b. Sycamore Creek--18.3 km (11.4 mi) of creek extending from its 
confluence with Little Sycamore Creek upstream to Nelson Place Spring. 
Sycamore Creek is perennial throughout most of its length, with the 
last 3 km (2 mi) being intermittent. Gila chub were documented in 
Sycamore Creek in 2005 when they were removed as part of a salvage 
effort to secure the population from the effects of the Cave Creek 
Complex Fire (Hedwall et al. 2005). In surveys in 2002, there were no 
nonnatives collected and all age classes were represented. Gila chub 
distribution was limited to the area between the Double T Waterfall and 
the Rock Bottom Box totaling a length of 5 km (3.0 mi) of habitat. Both 
of these sites are effective fish barriers and seem to have served to 
prevent nonnatives from invading this upper section of Sycamore Creek. 
Due to the remoteness of this area, it is unlikely that additional 
threats to the existing Gila chub population will be of concern. 
Livestock grazing is very limited in the upper portion of this reach 
due to the canyons and inaccessibility to the stream. However, below 
the fish barriers, livestock have access to these areas. Sycamore Creek 
contains one or more of the primary constituent elements, including 
perennial pools, the necessary vegetation that provides cover, and 
adequate water quality. Land ownership is Prescott National Forest and 
private.
    c. Indian Creek--8.4 km (5.2 mi) of creek extending from Upper 
Water Springs downstream into BLM lands. Gila chub were first collected 
in Indian Creek in May 1995. Gila chub were salvaged from Indian Creek 
in 2005 to secure the population from the Cave Creek Complex Fire (J. 
Voeltz, AGFD in litt. 2005). Similar to Little Sycamore Creek, this 
segment is intermittent, but there is always some habitat available in 
the form of perennial pools; Gila chub expand into larger habitats when 
they are available. Indian Creek contains one or more of the primary 
constituent elements, including perennial pools and the necessary 
vegetation that provides cover (per. comm. BLM 2002). Land ownership is 
BLM, Prescott National Forest, and private.
    d. Silver Creek--8.5 km (5.3 mi) of creek extending from a spring 
on FS lands downstream onto BLM lands, all of which is located above a 
natural waterfall/barrier located 4 km (2.5 mi) above the confluence 
with the Agua Fria River. The earliest record of Gila chub collected in 
Silver Creek was in 1980. Due to high recruitment of young-of-the-year, 
Silver Creek was the source of Gila chub that were translocated to 
Larry Creek and Lousy Canyon in July 1995. Gila chub were salvaged from 
Silver Creek to protect the population from the Cave Creek Complex Fire 
in 2005 (D. Weedman, AGFD in litt. 2005). Silver Creek contains one or 
more of the primary constituent elements, including perennial pools and 
the necessary vegetation that provides cover (per. comm. BLM 2002). 
Land ownership is Tonto National Forest and BLM.
    e. Lousy Canyon--Extending from the confluence of an unnamed 
tributary upstream to the fork with an another unnamed tributary 
approximately 0.6 km (0.4 mi) upstream. In 1995, BLM introduced Gila 
chub from Silver Creek into Lousy Canyon. In 2005, the Service surveyed 
the stream and observed Gila chub. Lousy Creek contains one or more of 
the primary constituent elements, including perennial pools and the 
necessary vegetation that provides cover. In addition, this area is 
within a canyon, and it is inaccessible to cattle due to the geological 
nature of the canyon, which acts as a barrier. Land ownership is BLM.

[[Page 66694]]

    f. Larry Creek--Portions of the creek from an unnamed tributary 
upstream 0.7 km (0.4 mi) to the confluence of two adjoining unnamed 
tributaries. In 1995, BLM introduced Gila chub from Silver Creek into 
Larry Creek, and the population appears to be thriving (Service files). 
Larry Creek contains one or more of the primary constituent elements, 
including perennial pools and the necessary vegetation that provides 
cover (Service files). In addition, this area is within a canyon, and 
it is inaccessible to cattle due to the geological nature of the canyon 
which acts as a barrier. The Service visually surveyed Larry Creek in 
2003 and found Gila chub to be abundant. Land ownership is BLM.

Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact of specifying any 
particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    In our critical habitat designations, we use the provision outlined 
in section 4(b)(2) of the Act to evaluate those specific areas that 
contain the features essential to the conservation of the species to 
determine which areas to propose and subsequently finalize (i.e., 
designate) as critical habitat. On the basis of our evaluation, we have 
determined that the benefits of excluding certain lands from the 
designation of critical habitat for the Gila chub outweigh the benefits 
of their inclusion, and have subsequently excluded those lands from 
this designation pursuant to section 4(b)(2) of the Act as discussed 
below.
    Areas excluded pursuant to section 4(b)(2) may include, but are not 
limited to, Tribal conservation plans/programs that cover the species 
and partnerships, conservation plans/easements, or other type of 
formalized relationship/agreement on private lands. The relationship of 
critical habitat to these types of areas is discussed in detail in the 
following paragraphs.
    After consideration under section 4(b)(2), the following areas of 
habitat have been excluded from critical habitat for the Gila chub: 
Bonita Creek and Blue River within the tribal lands of the San Carlos 
Apache Nation; Bonita Creek on BLM and private lands of the City of 
Safford; and portions of proposed areas 5(a) and 6(c) to address 
economic impacts. A detailed analysis of our exclusion of these lands 
under section 4(b)(2) of the Act is provided in the paragraphs that 
follow.

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest, regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it only limits destruction 
or adverse modification. By its nature, the prohibition on adverse 
modification is designed to ensure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species are not eroded. Critical habitat designation alone, 
however, does not require specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
reasonable and prudent alternatives to the proposed Federal action 
would only be issued when the biological opinion results in a jeopardy 
or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. The Court ruled that the Service could no longer equate the 
two standards and that adverse modification evaluations require 
consideration of impacts on the recovery of species. Thus, under the 
Gifford Pinchot decision, critical habitat designations may provide 
greater benefits to the recovery of a species. However, we believe the 
conservation achieved through implementing management plans is 
typically greater than would be achieved through multiple site-by-site, 
project-by-project, section 7 consultations involving consideration of 
critical habitat. Management plans commit resources to implement long-
term management and protection to particular habitat for at least one 
and possibly other listed or sensitive species. Section 7 consultations 
only commit Federal agencies to prevent adverse modification to 
critical habitat caused by the particular project, and they are not 
committed to provide conservation or long-term benefits to areas not 
affected by the proposed project. Thus, any management plan which 
considers enhancement or recovery as the management standard will 
always provide as much or more benefit than a consultation for critical 
habitat designation conducted under the standards required by the Ninth 
Circuit in the Gifford Pinchot decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

Educational Benefits of Critical Habitat

    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the Gila chub. In general the educational benefit of a critical 
habitat designation always exists, although in some cases it may be 
redundant with other educational effects. For example, habitat 
conservation plans have significant public input and may largely 
duplicate the educational benefit of a critical habitat designation. 
This benefit is closely related to a second, more

[[Page 66695]]

indirect benefit: That designation of critical habitat would inform 
State agencies and local governments about areas that could be 
conserved under State laws or local ordinances.
    However, we believe that there would be little additional 
informational benefit gained from the designation of critical habitat 
for the exclusions we are making in this rule because these areas were 
included in the proposed rule as having essential Gila chub habitat. 
Consequently, we believe that the informational benefits are already 
provided even though these areas are not designated as critical 
habitat. Additionally, the purpose normally served by the designation 
of informing State agencies and local governments about areas which 
would benefit from protection and enhancement of habitat for the Gila 
chub is already well established among State and local governments, and 
Federal agencies in those areas that we are excluding from critical 
habitat in this rule on the basis of other existing habitat management 
protections.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat.

San Carlos Apache Tribe

Relationship of Critical Habitat to American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and 
the relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2), we believe that fish, wildlife, and other 
natural resources on tribal lands are better managed under tribal 
authorities, policies, and programs than through Federal regulation 
wherever possible and practicable. Based on this philosophy, we believe 
that, in many cases, designation of tribal lands as critical habitat 
provides very little additional benefit to threatened and endangered 
species. Conversely, such designation is often viewed by tribes as an 
unwanted intrusion into tribal self governance, thus compromising the 
government-to-government relationship essential to achieving our mutual 
goals of managing for healthy ecosystems upon which the viability of 
threatened and endangered species populations depend.
    The San Carlos Apache Tribe has two streams within its tribal 
lands, the Blue River and a portion of Bonita Creek, that are known to 
be currently occupied by Gila chub and its tribal lands contain 
features that are essential to the conservation of the Gila chub. The 
Tribe has completed and is implementing a Fisheries Management Plan 
(FMP) that includes specific management actions for the Gila chub. In 
making our determination with regard to tribal lands, we considered 
several factors, including our relationship with San Carlos Apache 
Tribe, and the degree to which the Tribe's FMP provides specific 
management for the Gila chub. Tribal governments protect and manage 
their resources in the manner that is most beneficial to them. The San 
Carlos Apache Tribe exercises legislative, administrative, and judicial 
control over activities within the boundaries of its lands. 
Additionally, the Tribe has a natural resource programs and staff and 
have enacted the FMP. In addition, as trustee for land held in trust by 
the United States for Indian Tribes, the Bureau of Indian Affairs (BIA) 
provides technical assistance to the San Carlos Apache Tribe on 
management planning and oversees a variety of programs on their lands. 
Gila chub conservation activities have been ongoing on San Carlos 
Apache tribal lands, and, prior to the completion of their FMP, their 
natural resource management, while not specific to the Gila chub, was 
consistent with management of habitat for this species. The development 
and implementation of the efforts formalized in the San Carlos Apache 
Tribes FMP will continue with or without critical habitat designation.
    The San Carlos Apache Tribe highly values its wildlife and natural 
resources, and is charged to preserve and protect these resources under 
the Tribal Constitution. Consequently, the Tribe has long worked to 
manage the habitat of wildlife on its tribal lands, including the 
habitat of endangered and threatened species. We understand that it is 
the Tribe's position that a designation of critical habitat on its 
lands improperly infringes upon its tribal sovereignty and the right to 
self-government.
    The San Carlos Apache Tribes FMP provides assurances and a 
conservation benefit to the Gila chub. Implementation of the FMP will 
result in protecting all known Gila chub habitat on San Carlos Tribal 
Land and assures no net habitat loss or permanent modification will 
occur in the future. The purpose of the FMP includes the long-term 
conservation of native fishes, including Gila chub, on tribal lands. 
The FMP outlines actions to conserve, enhance, and restore Gila chub 
habitat, including efforts to eliminate nonnative fishes from Gila chub 
habitat. All habitat restoration activities (whether it is to 
rehabilitate or restore native plants) will be conducted under 
reasonable coordination with the Service. All reasonable measures will 
be taken to ensure that recreational activities do not result in a net 
habitat loss or permanent modification of the habitat. All reasonable 
measures will be taken to conduct livestock grazing activities in a 
manner that will ensure the conservation of Gila chub habitat. Within 
funding limitations and under confidentiality guidelines established by 
the Tribe, the Tribe will cooperate with the Service to monitor and 
survey Gila chub habitat, conduct research, perform habitat 
restoration, remove nonnative aquatic species, or conduct other 
beneficial Gila chub management activities.
    As a result of the assurances, protections, and conservation 
benefit provided for the Gila chub and its habitat on San Carlos Apache 
Tribal lands described above, we are excluding the Blue River and 
portions of Bonita Creek occurring on tribal lands from the Middle Gila 
River Area.
(1) Benefits of Inclusion
    Including lands of the San Carlos Apache Tribe in critical habitat 
would provide some additional benefit from section 7 consultation, 
because we could consult via the Bureau of Indian Affairs (BIA) on 
actions that could adversely affect critical habitat. Although we have 
not formally conferenced with BIA on any actions affecting Gila chub, 
we have conducted six formal conferences with BLM and FS that have 
involved proposed critical habitat. Activities covered in these 
conferences included livestock grazing, recreation, fish stocking, fire 
management, and bank stabilization, and conservation measures that 
benefited Gila chub critical habitat included monitoring, fence repair 
(to exclude cattle from overusing and thereby damaging Gila chub 
habitat), and education programs to inform the public of the need to 
avoid actions that damage habitat. However, we note that because the 
Gila chub will still be listed under this final rule and will be found 
on San Carlos Apache tribal lands, section 7 consultation under the 
jeopardy standard will still be required if Tribal or BIA activities 
would affect Gila chub, regardless of our excluding

[[Page 66696]]

these lands from the critical habitat designation. As a result, we 
expect that inclusion of San Carlos Apache tribal lands would provide 
only that additional habitat protection accorded by critical habitat as 
discussed by the Ninth Circuit Court of Appeals in the Gifford Pinchot 
ruling discussed above.
    Nevertheless, few additional benefits would be derived from 
including these Tribal Lands in a Gila chub critical habitat 
designation beyond what will be achieved through the implementation of 
the FMP. As noted above, the primary regulatory benefit of any 
designated critical habitat is that federally funded or authorized 
activities in such habitat require consultation pursuant to section 7 
of the Act. Such consultation would ensure that adequate protection is 
provided to avoid destruction or adverse modification of critical 
habitat. The San Carlos Apache Tribe has already agreed under the terms 
of their FMP to protect Gila chub habitat (PCEs), to ensure no net 
loss, to coordinate with the Service in order to prevent any habitat 
destruction, and to conduct activities consistent with the conservation 
of the Gila chub and its PCEs.
    As discussed above, we expect that little additional educational 
benefit would be derived from designating lands (Blue River and Bonita 
Creek) of the San Carlos Apache as critical habitat. The additional 
educational benefits that might arise from critical habitat designation 
are largely accomplished through the multiple notice and comments which 
accompanied the development of this critical habitat designation, as 
evidenced by the San Carlos Apache Tribe currently working with the 
Service to address habitat and conservation needs for the Gila chub. 
Additionally, we anticipate that the San Carlos Apache Tribe will 
continue to actively participate in working groups, and provide for the 
timely exchange of management information. The educational benefits 
important for the long-term survival and conservation of the Gila chub 
are being realized without designating this area as critical habitat. 
Educational benefits will continue on these lands if they are excluded 
from the designation, because the FMP already recognizes the importance 
of those habitat areas to the Gila chub.
    Another possible benefit is the additional funding that may be 
generated for habitat restoration or improvement by having an area 
designated as critical habitat. In some instances, having an area 
designated as critical habitat may improve the ranking a project 
receives during evaluation for funding. The San Carlos Apache Tribe 
often requires additional sources of funding in order to conduct 
wildlife-related activities. Therefore, having an area designated as 
critical habitat could improve the chances of Tribe receiving funding 
for Gila chub-related projects. Additionally, occupancy by Gila chub 
also provides benefits to be considered in evaluating funding 
proposals. Because there are areas of occupied habitat on San Carlos 
Apache lands, the listing of the Gila chub may help secure funding for 
management of these areas.
    For these reasons, then, we believe that designation of critical 
habitat would provide some additional benefits.
(2) Benefits of Exclusion
    The benefits of excluding the San Carlos Apache Tribal lands from 
critical habitat include: (1) The advancement of our Federal Indian 
Trust obligations and our deference to Tribes to develop and implement 
tribal conservation and natural resource management plans for their 
lands and resources, which includes the Gila chub and other Federal 
trust species; (2) the maintenance of effective working relationships 
to promote the conservation of the Gila chub and their habitat; (3) the 
allowance for continued meaningful collaboration and cooperation on 
Gila chub management and other resources of interest to the Federal 
government; (4) the provision of conservation benefits to riparian 
ecosystems and a host of species, including the Gila chub and its 
habitat, that might not otherwise occur; and (5) the reduction or 
elimination of administrative and/or project modification costs as 
analyzed in the economic analysis.
    During the development of the Gila chub critical habitat proposal 
(and coordination for other critical habitat proposals), and other 
efforts such as conservation of native fish species in general, we have 
met and communicated with the San Carlos Apache Tribe to discuss how 
they might be affected by the regulations associated with Gila chub 
conservation and the designation of critical habitat. As such, we 
established relationships with the San Carlos Apache Tribe specific to 
Gila chub conservation. As part of our relationship, we provided 
technical assistance to the San Carlos Apache Tribe to develop measures 
to conserve the Gila chub and its habitat on their lands. These 
measures are contained within the FMP that we have in our supporting 
record for this decision (see discussion above). This proactive action 
was conducted in accordance with Secretarial Order 3206, ``American 
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and 
the relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2). We believe that the San Carlos Apache Tribe 
should be the governmental entity to manage and promote the 
conservation of the Gila chub on their lands. During our communication 
with the San Carlos Apache Tribe, we recognized and endorsed their 
fundamental right to provide for tribal resource management activities, 
including those relating to riparian ecosystems.
    The designation of critical habitat on the San Carlos Apache Tribal 
lands would be expected to adversely impact our working relationship 
with them. In fact, during our discussions with the San Carlos Apache 
Tribe and from comments received, we were informed that critical 
habitat would be viewed as an intrusion on their sovereign abilities to 
manage natural resources in accordance with their own policies, 
customs, and laws. To this end, we found that the San Carlos Apache 
Tribe would prefer to work with us on a government-to-government basis. 
For these reasons, we believe that our working relationship with the 
San Carlos Apache Tribe would be better maintained if they are excluded 
from the designation of critical for the Gila chub. We view this as a 
substantial benefit.
    We indicated in the proposed rule (August 9, 2002; 67 FR 51948) 
that in our final decision concerning designation of critical habitat 
on the San Carlos Apache Tribal lands, we would consider our 
relationship with the San Carlos Apache Tribe and whether they 
developed a Gila chub FMP. We identified that the San Carlos Apache 
Tribe had a draft FMP. We also discussed our continued cooperation with 
the San Carlos Apache Tribe during the comment period on the 
development of the FMP. During the comment period, we received input 
from the San Carlos Apache Tribe and BIA offices expressing the view 
that designating critical habitat for the Gila chub on Tribal land 
would adversely affect the Service's working relationship with the San 
Carlos Apache Tribe. They noted the beneficial cooperative working 
relationships between the Service and the San Carlos Apache Tribe that 
have assisted in the conservation and recovery of listed species and 
other natural resources. They indicated that critical habitat

[[Page 66697]]

designation on the San Carlos Apache Tribe would amount to additional 
Federal regulation of their sovereign lands, and would be viewed as an 
unwarranted and unwanted intrusion into Tribal natural resource 
programs. We conclude that our working relationships with the San 
Carlos Apache Tribe on a government-to-government basis has been 
extremely beneficial in implementing natural resource programs of 
mutual interest (including the protection of Gila chubs and their 
PCEs), and that these productive relationships would be compromised by 
critical habitat designation of the San Carlos Apache Tribal lands.
    In addition to management/conservation actions described for the 
conservation of the Gila chub, we anticipate future management/
conservation plans to include conservation efforts for other listed 
species and their habitat. We believe that many Tribes and Pueblos are 
willing to work cooperatively with us to benefit other listed species, 
but only if they view the relationship as mutually beneficial. 
Consequently, the development of future voluntary management actions 
for other listed species will likely be contingent upon whether the San 
Carlos Apache Tribal lands are designated as critical habitat for the 
Gila chub. Thus, the benefit of excluding these lands would be future 
conservation efforts that would benefit other listed species.
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this area of the proposed 
critical habitat would be $37,000 to $321,200 annually (discounted at 7 
percent). These costs would be incurred as a result of changes in 
grazing management, fire management, recreation, timber harvest, and 
costs associated with compliance with Act. Excluding this reach could 
allow some or all of these costs to be avoided. However, considering 
that this area is currently occupied by the species, consultation for 
activities that might adversely impact the species, including possible 
habitat modification, would be required even without the critical 
habitat designation; thus the possible economic benefits might not 
materialize.
    Another benefit of excluding the San Carlos Apache Tribal lands 
from the critical habitat designation includes relieving additional 
regulatory burden and costs associated with the preparation of portions 
of section 7 documents related to critical habitat. While the cost of 
adding these additional sections to assessments and consultations is 
relatively minor, there could be delays which can generate real costs 
to some project proponents. However, because in this case critical 
habitat was only proposed for occupied areas already subject to section 
7 consultation and a jeopardy analysis, it is anticipated this 
reduction would be minimal.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of designating critical habitat for the 
Gila chub on San Carlos Apache Tribe lands are small in comparison to 
the benefits of exclusion. Exclusion would enhance the partnership 
efforts focused on recovery of the Gila chub within this reach and 
encourage other stakeholders to become a part of this cooperative 
effort. Excluding this area also would reduce some of the 
administrative costs during consultation pursuant to section 7 of the 
Act.
(4) Exclusion Will Not Result in Extinction of the Species
    The San Carlos Apache Tribe has committed to greater conservation 
measures on these areas than would be available through the designation 
of critical habitat. Because areas of the San Carlos Apache tribal 
lands are occupied by the Gila chub which is protected from take under 
section 9 of the Act, any actions that might kill Gila chub including 
habitat modification that would cause death of the Gila chub, must 
either undergo a consultation with the Service under the requirements 
of section 7 of the Act or receive a permit from us under section 10 of 
the Act. Additionally, we have concluded that excluding these lands 
from critical habitat will not result in the extinction of the Gila 
chub because the FMP specifically addresses conservation of the Gila 
chub. The purpose of the FMP includes the long-term conservation of 
native fishes, including Gila chub, on tribal lands. The FMP outlines 
actions to conserve, enhance, and restore Gila chub habitat, including 
efforts to eliminate nonnative fishes from Gila chub habitat. Such 
efforts provide greater conservation benefit than would result for 
designation as critical habitat. This is because section 7 
consultations for critical habitat only consider listed species in the 
project area evaluated and Federal agencies are only committed to 
prevent adverse modification to critical habitat caused by the 
particular project and are not committed to provide conservation or 
long-term benefits to areas not affected by the proposed project. Such 
efforts provide greater conservation benefit than would result for 
designation as critical habitat. As a result, there is no reason to 
believe that this exclusion would result in extinction of the species.
    Accordingly, we have determined that the lands of the San Carlos 
Apache Tribe should be excluded pursuant to 4(b)(2) of the Act because 
the benefits of excluding these lands from critical habitat outweigh 
the benefits of their inclusion, and the exclusion of these lands from 
the designation will not result in the extinction of the species.

Gila Box Riparian National Conservation Area and the Bonita Creek 
Partnership

    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that proposed critical habitat in 
Bonita Creek, Graham County, Arizona, will not be designated as 
critical habitat due to our partnership with the BLM, Reclamation, and 
City of Safford. The City of Safford operates an infiltration gallery 
within Bonita Creek. The infiltration gallery uses submerged intake 
pipes to pull water from Bonita Creek which is then transported across 
BLM land via pipeline to the City of Safford where it is used for 
drinking water. The city is developing a Memorandum of Understanding 
(MOU) with BLM to jointly manage the water delivery system, and other 
common elements of the area. BLM manages lands both upstream and 
downstream of the private parcel on which the city's gallery occurs as 
part of the Gila Box Riparian National Conservation Area (RNCA). We 
have reached this determination because we believe the benefits of 
excluding this segment from the final critical habitat designation 
outweigh the benefits of designating the creek as critical habitat.
    The portion of Bonita Creek located within the RNCA provides 
excellent habitat for Gila chub. Healthy Gila chub populations have 
long been documented in Bonita Creek upstream of the city's 
infiltration gallery. Although they are present downstream, they are at 
much lower numbers, presumably due to the presence of a number of 
nonnative fish species. The city's infiltration gallery, by creating a 
dry reach of Bonita Creek, for many years has apparently acted as a 
barrier to the upstream movement of nonnative fishes, protecting areas 
upstream of the gallery occupied by native fish species, including Gila 
chub. Reclamation is also planning to build a fish barrier on Bonita 
Creek below the City's infiltration gallery to further this protection.
    BLM has a commitment to work toward conserving federally-listed

[[Page 66698]]

species in Bonita Creek that has existed for over a decade. As the 
primary land manager, they have conducted intensive monitoring for Gila 
chub, and funded research on the life history of Gila chub. They have 
also provided a law enforcement ranger to patrol the Gila Box RNCA, 
which helps reduce the threat of vandalism or introduction of nonnative 
fishes into the Gila chub habitat. BLM has also developed the Gila Box 
RNCA Management Plan, which provides management direction for all 
activities that occur in the RNCA. This plan specifically addresses 
wildlife conservation within Bonita Creek, including native fishes such 
as Gila chub. Guidelines for the construction of new roads, closures of 
old roads, development of recreational facilities, management of 
recreation, management of grazing, management of riparian areas 
including riparian vegetation, watershed management, and water quality 
management are all covered in the RNCA management plan, and this 
management is focused on improving habitats within the RNCA, including 
those of the Gila chub.
    BLM's Gila Box RNCA management plan also details how BLM will work 
cooperatively with the City of Safford to provide for their management 
needs, while reducing potential adverse effects to the resources of the 
RNCA. The associated management action is to work with the City to 
support the management goals of the RNCA along with the management 
needs of the City and the effective operation of the public water 
system. The City of Safford is developing an MOU with BLM to formalize 
this arrangement, and this MOU will specifically address the 
conservation of native fishes, including the Gila chub. Additionally, 
we are working with Reclamation to build a concrete barrier on Bonita 
Creek downstream of the City's infiltration gallery to further protect 
the creek from the invasion of nonnative fishes, and to reintroduce 
several federally-listed native fish species, both as conservation 
measures for Reclamation's operation of the Central Arizona Project 
canal (U.S. Fish and Wildlife Service 2001b). Collectively, our 
partnership has contributed to immediate and long-term benefits to the 
conservation and recovery of protected species.
(1) Benefits of Inclusion
    As stated in the environmental assessment, the primary conservation 
value of the proposed critical habitat segments is to sustain existing 
populations. As discussed in the ``General Principles of Section 7 
Consultations Used in the 4(b)(2) Balancing Process'' section above, 
the threshold for reaching destruction or adverse modification would 
likely require a reduction in the capability of the habitat to sustain 
existing populations. Given that this area of Bonita Creek is being 
managed to benefit wildlife, including the Gila chub, it is highly 
unlikely that projects would be considered for this area that would 
result in depreciable diminishment or a long-term reduction of the 
capability of the habitat to sustain existing populations. To the 
contrary, activities occurring on these lands have provided benefits, 
as described above, to the Gila chub and are expected to continue to do 
so. To date, the Service has conducted nine formal consultations for 
BLM on management of lands within the RNCA, including three conference 
opinions since the Gila chub was proposed for listing in 2003 (U.S. 
Fish and Wildlife Service 2004a). These consultations/conferences 
involved management actions administered by BLM, all of which are 
covered in the RNCA management plan which provides long-term 
conservation benefits to the species and its PCEs and none resulted in 
adverse modification to proposed critical habitat.
    As discussed above, we expect that little additional educational 
benefits would be derived from including Bonita Creek in the critical 
habitat designation. The additional educational benefits that might 
arise from critical habitat designation are largely accomplished 
through the multiple notice and comments that accompanied the 
development of this critical habitat designation. Because BLM is the 
primary land manager, they have conducted surveys and habitat 
monitoring for Gila chub at Bonita Creek. Therefore, the potential 
designation of critical habitat at Bonita Creek would not provide this 
educational benefit because BLM, and the City of Safford via the MOU, 
already know the fish are present and are studying its habitat. BLM is 
also already aware that Bonita Creek has a robust population of Gila 
chub that are important to conservation goals of the species. Likewise 
the City of Safford is aware of this through the MOU, as is 
Reclamation, through its conservation measure to build a fish barrier 
to protect the Bonita Creek fishery.
(2) Benefits of Exclusion
    The benefits of excluding Bonita Creek from critical habitat 
designation include recognizing the value of partnerships with BLM and 
the City of Safford, encouraging actions that benefit multiple species, 
encouraging local participation in conservation of valuable habitat for 
multiple species, facilitating the cooperative activities provided by 
the Service, and reducing or eliminating administrative and/or project 
modification costs as analyzed in the economic analysis. Additionally, 
our existing partnership and the integration of Federal land management 
will generate a consistent management approach at Bonita Creek.
    The partnership and cohesive management at Bonita Creek will 
maintain habitat (PCEs) for Gila chub for the long-term. This 
partnership has already generated the development, finalization, and 
implementation of Gila Box RNCA management plan that provides long-term 
conservation benefits to the species and its PCEs. When finalized, the 
MOU will further this conservation benefit. In addition to maintaining 
habitat for the long-term at Bonita Creek, this partnership will 
include the development of species status and distribution information 
for the Gila chub needed to guide conservation efforts and assist in 
species conservation outside the area, and the creation of innovative 
solutions to conserve species that can be applied wherever similar 
needs exist, irrespective of land ownership. The partnership with BLM, 
Reclamation, and the City of Safford also facilitates other cooperative 
activities with other similarly situated industry, communities, and 
landowners. Continued cooperative relations with the City of Safford 
are expected to influence other future partners and lead to greater 
conservation than would be achieved through multiple section 7 
consultations.
    Non-Federal landowners or water operators such as the City of 
Safford are motivated to work with Reclamation, BLM, and the Service 
collaboratively to develop voluntary conservation efforts because of 
the economic benefits of such a partnership. Bonita Creek is valuable 
to the city both as a clean water supply, and as a tourist destination. 
Collaboration of this type often provides greater conservation benefits 
than could be achieved through strictly regulatory approaches, such as 
a critical habitat designation. The conservation benefits resulting 
from this collaborative approach are built upon a foundation of mutual 
trust and understanding. It takes considerable time and effort to 
establish this foundation, which is one reason it often takes several 
years to develop such partnerships. Excluding this area from critical 
habitat would help promote and honor that trust by providing certainty 
for partners that, once appropriate conservation measures have been 
agreed

[[Page 66699]]

to, additional consultation will not be necessary.
    In discussions with the Service, the BLM and the City of Safford 
have indicated they view critical habitat designation as unwarranted, 
and that designation could undermine the conservation benefits that 
would be provided by their MOU. There is a concern by BLM and the City 
of Safford that designation of critical habitat at Bonita Creek has the 
potential to threaten the delivery of water to the City of Safford and 
other towns served by the city such as Thatcher and Soloman. Should 
this ever come to pass, the results could be significant; however, we 
do not believe that scenario is reasonably foreseeable. The Service's 
commitment will encourage continued partnerships with these entities 
that could result in additional conservation plans or additional lands 
protected. Exclusion of areas where our partnership has been 
established following years of collaborative efforts will result in 
habitat protection for the Gila chub, preservation of these 
partnerships, and in promoting more effective conservation actions in 
the future.
    The economic analysis conducted for this proposal estimates that 
the costs associated with designating this segment of the proposed 
critical habitat would be about $0.25 to $1.02 million annually. Almost 
all of this cost is related to changes in water use and management 
required for conservation of the Gila chub. Excluding this reach could 
allow some or all of these costs to be avoided. However, considering 
that this area is currently occupied by the species, section 7 
consultation for activities which might adversely impact the species, 
including possible habitat modification, would be required even without 
the critical habitat designation, and thus the possible economic 
benefits might not materialize.
    Another benefit of excluding Bonita Creek from the critical habitat 
designation includes relieving additional regulatory burden and costs 
associated with the preparation of portions of section 7 consultation 
documents related to critical habitat. While the cost of adding these 
additional sections to assessments and consultations is relatively 
minor, there could be delays which can generate real costs to some 
project proponents. However, because critical habitat in this case is 
only proposed for occupied areas already subject to section 7 
consultation and a jeopardy analysis, it is anticipated this reduction 
would be minimal.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of designating critical habitat for the 
Gila chub at Bonita Creek are small in comparison to the benefits of 
exclusion. In making this finding, we have weighed the benefits of 
including Bonita Creek as critical habitat to the benefits of these 
lands without critical habitat, with management based on our existing 
partnership and management by the BLM and City of Safford. Excluding 
Bonita Creek would reduce some additional administrative effort and 
cost during the consultation process pursuant to section 7 of the Act. 
Excluding Bonita Creek would continue to help foster development of 
future partnerships and strengthen our relationship with stakeholders. 
To date, BLM management has fostered the development, presence, and 
protection of Gila chub habitat. Because Bonita Creek is within the 
RCNA, we believe there is virtually no risk of development or extensive 
land-use by the BLM that would be expected to result in adverse 
modification. Excluding Bonita Creek promotes our partnership with the 
City of Safford by eliminating the concern of the City of Safford 
regarding the possible risk of loss of water delivery capabilities.
    We have, therefore, concluded that the current BLM management of 
this area, along with the partnership with BLM, the City of Safford, 
and Reclamation, and the conservation commitment to Gila chub habitat 
of these entities, outweigh those benefits that would result from the 
area being included in the designation. We have therefore excluded 
these lands from the final critical habitat designation pursuant to 
section 4(b)(2) of the Act.
(4) Exclusion Will Not Result in Extinction of the Species
    The City of Safford, Reclamation, and BLM are committing to greater 
conservation measures on these areas than would be available through 
the designation of critical habitat. As described above, the BLM has 
developed the Gila Box RNCA Management Plan, which provides management 
direction for all activities that occur in the RNCA. This plan 
specifically addresses wildlife conservation within Bonita Creek, 
including native fishes such as Gila chub. Additionally, because this 
segment is occupied by the Gila chub, which is protected from take 
under section 9 of the Act, any actions that might kill the Gila chub, 
including habitat modification that would cause the death of Gila chub 
must either undergo a consultation with the Service under the 
requirements of section 7 of the Act or receive a permit from us under 
section 10 of the Act. This exclusion leaves these protections 
unchanged from those which would exist if the excluded areas were 
designated as critical habitat. Such efforts provide greater 
conservation benefit than would result for designation as critical 
habitat. This is because section 7 consultations for critical habitat 
only consider listed species in the project area evaluated and Federal 
agencies are only committed to prevent adverse modification to critical 
habitat caused by the particular project and are not committed to 
provide conservation or long-term benefits to areas not affected by the 
proposed project. Critical habitat is also being designated for the 
Gila chub in other areas that will be accorded the protection from 
adverse modification by Federal actions using the conservation standard 
based on the Ninth Circuit decision in Gifford Pinchot, and the Gila 
chub occurs on other lands not being designated as critical habitat 
that are protected and managed explicitly to protect natural habitat 
values. These considerations, along with the continued persistence of 
the Gila chub in Bonita Creek due in part to the partnership BLM, the 
City of Safford, and Reclamation, lead us to conclude that there is no 
reason to believe that this exclusion would result in extinction of the 
species.

Private Lands Proposed for Area 5(a)--Lower Cienega Creek and Area 
6(c)--Spring Creek

    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that proposed critical habitat on 1.9 
mi of the lower segment of Cienega Creek and on 1.9 mi of Spring Creek 
will not be designated as critical habitat due to the potential 
economic impact of designating these segments. The economic analysis 
indicates possible cost impacts of nearly $36 million from these two 
segments. This is both a significant impact and a highly 
disproportionate one. The small amount of proposed critical habitat we 
are excluding in these two areas bore more than half of the projected 
cost impacts from the entire designation (summarized in Exhibit ES-2 of 
the economic analysis).
    The economic analysis indicates a cost of nearly $40 million for 
these two areas overall, but $4 million of this is attributed to a 
segment of BLM lands on Cienega Creek that we are not

[[Page 66700]]

excluding. The Service has conducted a consultation with BLM over the 
water use addressed in the economic analysis, although that is not 
reflected in the analysis, and we accordingly believe that cost is 
unlikely to occur.
    We have reached this determination because we believe the benefits 
of excluding these segments from the final critical habitat designation 
outweigh the benefits of designating them as critical habitat.
    Section 4(b)(2) allows the Secretary to exclude areas from critical 
habitat for economic reasons if she determines that the benefits of 
such exclusion exceed the benefits of designating the area as critical 
habitat, unless the exclusion will result in the extinction of the 
species concerned. This is a discretionary authority Congress has 
provided to the Secretary with respect to critical habitat. Although 
economic and other impacts may not be considered when listing a 
species, Congress has expressly required their consideration when 
designating critical habitat. Exclusions under this section for non-
economic reasons are addressed above.
    In general, we have considered in making these two exclusions that 
all of the costs predicted in the economic analysis may not be avoided 
by excluding the area, due to the fact that the areas in question are 
currently occupied by the species and there will be requirements for 
consultation under section 7 of the Act, or for permits under section 
10 for any take of the species, and other protections for the species 
exist elsewhere in the Act and under State and local laws and 
regulations. As explained in the analysis, due to the uncertainty 
associated with future consultations, cost estimates are given as a 
range rather than a single number. We are also aware, and have 
considered in making the exclusions, that the low end estimate for the 
Spring Creek exclusion is a minimal amount, and that there is no 
certainty that either the high or low cost estimates for the Cienega 
Creek exclusion will occur absent the exclusion. However, there is a 
real risk that these costs might result.
(1) Benefits of Inclusion
    As stated in the environmental assessment and addressed above, the 
primary conservation value of the proposed critical habitat segments is 
to sustain existing populations. The areas excluded are currently 
occupied by the species. If these areas were designated as critical 
habitat, any actions with a Federal nexus which might adversely modify 
the critical habitat would require a consultation with us. However, 
inasmuch as this area is currently occupied by the species, 
consultation for activities which might adversely impact the species, 
including possibly habitat modification (see definition of ``harm'' at 
50 CFR 17.3) would be required even without the critical habitat 
designation. We recognize that consultation for critical habitat would 
likely provide some additional benefits to the species under the 
provision of the Gifford Pinchot decision; however, we believe that 
such benefits are minimal as discussed above.
    As discussed above, we expect that little additional educational 
benefits would be derived from including these two areas as critical 
habitat. The additional educational benefits that might arise from 
critical habitat designation are largely accomplished through the 
multiple notice and comments which accompanied the development of this 
critical habitat designation. We have been in contact with the land 
owners in the course of developing the economic analysis, and they are 
already aware that maintaining habitat quality on their lands for the 
Gila chub is important to conservation of the species.
    Some benefits could be derived if water currently available to 
private entities at the Cienega Creek segment were required to be made 
available to Gila chub. Additionally, designation of critical habitat 
in the Spring Creek segment might result in consultations with Federal 
agencies or as part of intra-Service consultations for HCPs that may 
lead to higher quality habitat in that segment of the creek; however, 
we believe any possible benefits would be minimal as derived from 
critical habitat because the chub is present in the creek and 
consultations are already likely to occur. Designation of critical 
habitat in the Spring Creek segment might result in consultations that 
lead to higher quality habitat in that segment of the creek. However, 
preliminary discussions have begun from which we believe there may be a 
formal consultation via a Federal nexus involving permits required by 
the Clean Water Act. Because Gila chub are present in Spring Creek, 
this potential consultation would have to take place regardless of the 
presence of critical habitat. We believe that although some additional 
benefit may occur from critical habitat, any additional benefit would 
be minimal.
    In summary, we believe that designating these proposed segments as 
critical habitat would provide little additional Federal regulatory 
benefits for the species. Under the Gifford Pinchot decision, critical 
habitat designations may provide greater benefits to recovery of a 
species than was previously believed. Because the proposed critical 
habitat is occupied by the species, there must be consultation with the 
Service over any action which might impact it. Some improvements in 
habitat quality or water quantity might result from a designation, but 
we believe that they would be minimal, as discussed above. The 
additional educational benefits which might arise from critical habitat 
designation are largely accomplished through the multiple notice and 
comments which accompanied the development of this regulation, and 
contact with the affected parties during development of the economic 
analysis.
(2) Benefits of Exclusion
    The benefits of excluding these segments from critical habitat 
designation are avoidance in up to $36 million in possible economic 
impacts, as set out in the economic analysis.
    We also believe that excluding these lands, and thus helping 
landowners and water users avoid the additional costs that would result 
from the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures. 
These generally provide greater conservation benefits than result from 
designation of critical habitat--even in the post-Gifford Pinchot 
environment--which requires only that the there be no adverse 
modification resulting from Federally-related actions.
    Generally, positive conservation efforts by landowners contribute 
more towards recovery of species than the mere avoidance of adverse 
impacts required under a critical habitat designation.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of designating critical habitat for the 
Gila chub on these two segments of Cienega Creek and Spring Creek are 
small in comparison to the benefits of exclusion. As indicated above, 
we believe that designation of these stream segments will provide only 
minimal benefit to the species. In making this finding, we have weighed 
the benefits of including these segments as critical habitat against 
the possible costs imposed on private parties as a result of the 
designation.
    We have therefore excluded these lands from the final critical 
habitat designation pursuant to section 4(b)(2) of the Act.

[[Page 66701]]

(4) Exclusion Will Not Result in Extinction of the Species
    Because these areas are occupied by the Gila chub, which is 
protected from take under section 9 of the Act, any actions that might 
adversely affect or result in take of the Gila chub, regardless of 
whether the Federal nexus needed to trigger consultation for critical 
habitat is present, must undergo a consultation with the Service under 
the requirements of section 7 of the Act or receive a permit from us 
under section 10 of the Act. This exclusion leaves these protections 
unchanged from those which would exist if the excluded areas were 
designated as critical habitat. Additionally, we have concluded that 
excluding these lands from critical habitat will not result in the 
extinction of the Gila chub because these exclusions are only a small 
percentage of the overall critical habitat designation. The majority of 
the area proposed as critical habitat for this species is being 
designated as critical habitat.

Effect of Critical Habitat Designation

Section 7 Consultation

    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency learns whether the Service regards the proposed action as 
consistent with section 7(a)(2) or if the Service can suggest 
modifications that would avoid jeopardy or adverse modification.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect the Gila chub or its designated 
critical habitat will require section 7 consultation. Activities on 
private or State lands requiring a permit from a Federal agency, such 
as a permit from the Corps under section 404 of the Clean Water Act, a 
section 10(a)(1)(B) permit from the Service, or some other Federal 
action, including funding (e.g., Federal Highway Administration (FHA), 
Federal Aviation Administration, or Federal Emergency Management Agency 
(FEMA)), will also continue to be subject to the section 7 consultation 
process. Federal actions not affecting listed species or critical 
habitat, and actions on non-Federal and private lands that are not 
federally-funded, authorized, or permitted, do not require section 7 
consultations.
    Since we proposed critical habitat for the Gila chub on August 9, 
2002 (67 FR 51948), we have issued a number of formal conference 
reports as requested by several Federal agencies. Formal conference 
reports on proposed critical habitat contain a biological opinion that 
is prepared according to 50 CFR 402.14, as if critical habitat were 
designated as final. We may adopt these formal conference reports as 
the biological opinion with this final critical habitat designation, if 
no significant new information or changes in the action alter the 
content of the opinion (see 50 CFR 402.10 (d)).
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat, or that may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat may 
also jeopardize the continued existence of the Gila chub. Each of the 
specific areas designated in this rule as critical habitat for the Gila 
chub have been determined to contain sufficient PCEs to provide for one 
or more of the life history functions for the Gila chub. In some cases, 
the PCEs exist as a result of ongoing Federal actions. As a result, 
ongoing Federal actions at the time of designation will be included in 
the baseline in any consultation pursuant to section 7 of the Act 
conducted subsequent to this designation. Federal activities that, when 
carried out, may adversely affect critical habitat for the Gila chub 
include, but are not limited to:
    (1) Any activity that would significantly alter the minimum flow or 
the natural flow regime of any of the designated stream segments. Such 
activities may include, but are not limited to, groundwater pumping, 
impoundment, water diversion, and hydropower generation.
    (2) Any activity that might significantly alter watershed 
characteristics of any of the designated segments. Such activities may 
include, but are not limited to, vegetation manipulation (e.g., 
prescribed burns, timber harvest), road construction and maintenance, 
naturally ignited fire (e.g., lightning), livestock grazing, and 
mining.
    (3) Any activity that would significantly alter the channel 
morphology of any of the designated stream segments. Such activities 
may include, but are not limited to, channelization; impoundment; road 
and bridge construction; removal of substrate source; destruction and 
alteration of riparian vegetation; reduction of available floodplain; 
removal of gravel or floodplain terrace materials; and sedimentation 
from mining, livestock grazing, road construction, timber harvest, off-
road vehicle use, and other watershed and floodplain disturbance.
    (4) Any activity that would significantly alter the water chemistry 
in any of the designated stream segments. Such activities may include, 
but are not limited to, release of chemical or biological pollutants 
into the surface waters or connected groundwater at a point source or 
by dispersed release (non-point).
    (5) Any activity that would introduce, spread, or augment nonnative 
aquatic species into any of the designated stream segments. Such 
activities may include, but are not limited to, stocking for sport, 
aesthetics, biological control, or other purposes; use of live bait 
fish, aquaculture, or dumping of aquarium fish or other species; 
construction and

[[Page 66702]]

operation of canals; and interbasin water transfers (i.e. CAP 
aqueduct).
    If you have any questions regarding whether specific activities 
will likely constitute destruction or adverse modification of critical 
habitat, contact the Field Supervisor, Arizona Ecological Services 
Office (see ADDRESSES section above). Requests for copies of the 
regulations on listed wildlife and inquiries about permits may be 
addressed to the U.S. Fish and Wildlife Service, Division of Endangered 
Species, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone (505) 
248-6920; facsimile (505) 248-6788).

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in public 
awareness and conservation actions by Federal, State, and local 
agencies private organizations, and individuals. The Act provides for 
possible land acquisition and cooperation with the States and requires 
that recovery actions be carried out for all listed species. The 
protection required of Federal agencies and the prohibitions against 
taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species listed as endangered 
or threatened and with respect to its critical habitat, if any is being 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
formal consultation with the Service.
    The Gila chub occurs primarily on Federal lands managed by 
Coronado, Apache-Sitgreaves, Tonto, Prescott, Coconino, and Gila 
National Forests, and by the BLM. Examples of Federal actions that may 
affect the Gila chub include, but are not limited to, dredge-and-fill 
activities, livestock grazing programs, construction and maintenance of 
stock tanks (pond), logging and other vegetation manipulation 
activities, flood protection and repair measures, channelization, water 
development, construction and management of recreation sites, road and 
bridge construction and maintenance, fish stocking, issuance of rights-
of-way, prescribed fire, and discretionary actions authorizing mining. 
These and other Federal actions would require section 7 consultation if 
the action agency determines that the proposed action may affect listed 
species.
    Also subject to section 7 consultation are development activities 
on private and State lands when such activity is conducted by, funded 
by, or permitted by a Federal agency. Examples include permits issued 
under section 404 or 402 of the Clean Water Act from the Corps or the 
EPA respectively. Federal actions not affecting the species, as well as 
actions on private lands that are not federally-funded or permitted, 
would not require section 7 consultation.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. These prohibitions, codified at 50 CFR 17.21, in part, make 
it illegal for any person subject to the jurisdiction of the United 
States to take (including harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect; or attempt any of these), import or 
export, ship in interstate commerce in the course of a commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. It is also illegal to possess, sell, deliver, 
carry, transport, or ship any wildlife that has been taken illegally. 
Certain exceptions apply to agents of the Service and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances.
    Regulations governing permits for endangered species are codified 
at 50 CFR 17.22 and 17.23. Such permits are available for scientific 
purposes, to enhance the propagation or survival of the species, and/or 
for incidental take in connection with otherwise lawful activities. 
Requests for copies of the regulations regarding listed wildlife and 
inquires about permits may be addressed to U.S. Fish and Wildlife 
Service Branch of Endangered Species, P.O. Box 1306, Albuquerque, NM 
87103 (505) 248-6657 fax (505) 248-6922.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable those 
activities that would not constitute a violation of section 9 of the 
Act. The intent of this policy is to increase public awareness as to 
the effects of this listing on future and ongoing activities within the 
species' range. We believe, based on the best available information 
that the following actions will not result in a violation of section 9:
    (1) Actions that may affect the Gila chub that are authorized, 
funded, or carried out by a Federal agency when the action is conducted 
in accordance with an incidental take statement issued by us pursuant 
to section 7 of the Act, or for which such action will not result in 
take;
    (2) Actions that may result in take of Gila chub when the action is 
conducted in accordance with a permit under section 10 of the Act;
    (3) Recreational activities such as hiking, off-road vehicle use, 
camping, and hunting in the vicinity of occupied Gila chub habitat that 
do not destroy or significantly degrade Gila chub habitat;
    (4) Release, diversion, or withdrawal of water from or near Gila 
chub habitat in a manner that does not displace or result in 
desiccation or death of eggs, larvae, or adults, does not disrupt 
spawning activities, or does not favor introduction of nonnative 
predators; and does not alter vegetation.
    Activities involving this species that we believe could be 
considered a violation of section 9 include, but are not limited to, 
the following:
    (1) Unauthorized collection, capture, or handling of the species;
    (2) Intentional introduction of nonnative predators, such as 
nonnative fish and crayfish, into occupied Gila chub habitat;
    (3) Water diversion, groundwater pumping, water releases, or other 
water-management activities that result in displacement of eggs, 
larvae, or adults; disruption of spawning activities; introduction of 
nonnative predators; or significant alteration of vegetation within 
occupied Gila chub habitat;
    (4) Discharge or dumping of hazardous materials, silt, or other 
pollutants into waters supporting Gila chub;
    (5) Possession, sale, delivery, transport, or shipment of illegally 
taken Gila chub;
    (6) Actions that take Gila chub that are not authorized by either a 
permit under section 10 of the Act or an incidental take statement 
under section 7 of the Act, or are not exempted from the section 9 take 
prohibitions; and
    (7) Recreational activities such as off-road vehicle use in the 
vicinity of occupied Gila chub habitat that destroys or significantly 
degrades Gila chub habitat.
    Not all the activities mentioned above will result in a violation 
of section 9 of the Act; only those activities that result

[[Page 66703]]

in ``take'' of Gila chub would be considered violations of section 9. 
We will review other activities not identified above on a case-by-case 
basis to determine whether they may be likely to result in violation of 
section 9 of the Act.
    If you have questions regarding whether specific activities will 
likely violate section 9, contact the Arizona Ecological Services Field 
Office (see ADDRESSES section above).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific data available and to 
consider the economic impact, impact to national security, and other 
relevant impacts of designating a particular area as critical habitat. 
We based this designation on the best available scientific information. 
We utilized the economic analysis, and took into consideration comments 
and information submitted during the public hearing and comment periods 
to make this final listing and critical habitat determination. We may 
exclude areas from critical habitat upon a determination that the 
benefits of such exclusions outweigh the benefits of specifying such 
areas as critical habitat. We cannot exclude such areas from critical 
habitat when such exclusion will result in the extinction of the 
species.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the Gila chub. This information is intended to assist the 
Secretary in making decisions about whether the benefits of excluding 
particular areas from the designation outweigh the benefits of 
including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    A draft analysis of the economic effects of the proposed critical 
habitat designation was prepared and made available for public review 
(August 31, 2005; 70 FR 51732). The economic analysis considers the 
economic impacts of conservation measures taken prior to and subsequent 
to the final listing and designation of critical habitat for the Gila 
chub. Pre-designation impacts are typically defined as all management 
efforts that have occurred since the time of listing. The Gila chub has 
not been listed, but was proposed for listing on August 9, 2002 (67 FR 
51948). Our draft economic analysis found that the total post-
designation costs associated with the seven proposed critical habitat 
areas are forecast to range from $11.3 million to $28.1 million in 
constant dollars over 20 years, or $0.8 million to $1.9 million 
annually (Service 2005a). Estimated costs are primarily due to impacts 
on water management, livestock grazing, livestock grazing and timber 
management on San Carlos Apache Tribal lands, and fire management and 
other activities (species and habitat management, recreation, fire 
management, mining, and transportation activities).
    Based upon these estimates, we conclude in the final analysis, 
which reviewed and incorporated public comments, that no significant 
economic impacts are expected from the designation of critical habitat 
for Gila chub. A copy of the economic analysis is included in our 
supporting record and may be obtained by contacting the Arizona 
Ecological Services Field Office (see ADDRESSES section) or online at 
http://www.fws.gov/arizonaes/.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, based on our economic analysis, it is not anticipated that the 
designation of critical habitat for the Gila chub would result in an 
annual effect on the economy of $100 million or more or affect the 
economy in a material way. Due to the timeline for publication in the 
Federal Register, the Office of Management and Budget (OMB) has not 
formally reviewed this final rule or accompanying economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, then the agency will need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then 
evaluate alternative regulatory approaches, where feasible, when 
promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat, providing that the benefits of 
such exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. Based upon our draft 
economic analysis we certified in our August 31, 2005 (70 FR 51732), 
Federal Register notice that this designation would not result in a 
significant effect as defined under SBREFA.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations and small governmental jurisdictions, including school 
boards and city and

[[Page 66704]]

town governments that serve fewer than 50,000 residents, as well as 
small businesses (13 CFR 121.201). Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we considered the types of 
activities that might trigger regulatory impacts under this designation 
as well as types of project modifications that may result. In general, 
the term significant economic impact is meant to apply to a typical 
small business firm's business operations.
    To determine if the designation of critical habitat for the Gila 
chub would affect a substantial number of small entities, we considered 
the number of small entities affected within particular types of 
economic activities (e.g., water management and use, livestock grazing, 
San Carlos Apache Tribal activities, residential and related 
development, Gila chub-specific management activities, recreation 
activities, fire management activities, mining, and transportation). We 
considered each industry or category individually to determine if 
certification is appropriate. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies; non-Federal activities are not affected by the 
designation. Federal agencies must consult with us if their activities 
may affect designated critical habitat. Consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process.
    Our economic analysis of this designation evaluated the potential 
economic effects on small business entities and small governments 
resulting from conservation actions related to the listing of this 
species and proposed designation of its critical habitat. We evaluated 
small business entities in nine categories: Water management and use, 
livestock grazing activities, San Carlos Apache Tribal activities, 
residential and related development, Gila chub-specific management 
activities, recreation activities, fire management activities, mining, 
and transportation. Based on our analysis, impacts are anticipated to 
occur in livestock grazing. The following is a summary of the 
information contained in Appendix B of the economic analysis:

Livestock Grazing Activities

    Ranching operations are anticipated to be impacted by conservation 
activities for the Gila chub. Approximately 16 ranching operations may 
be impacted annually. Annual costs to each of these 16 ranching 
operations may be between $1,400 and $11,700. Average revenues of a 
ranch in the region of the proposed critical habitat designation are 
$144,000. These potential losses represent between 1 and 8 percent of 
each ranch's estimated average revenues. Exhibit B-2 in the economic 
analysis presents the average revenues of ranches by county. Of the 118 
beef cattle ranching and farming operations (NAICS 112111) in Arizona 
counties with proposed Gila chub critical habitat, 92 percent are 
considered small businesses. Therefore, 15 small ranching operations 
(92 percent of 16 operations) may experience a reduction in revenues of 
between 1 and 8 percent annually. The extent to which these impacts are 
significant to any of these ranching operations will depend on the 
individual financial conditions of the ranch.
    Based on these data, we have determined that this designation would 
not affect a substantial number of small businesses involved in or 
affected by livestock grazing. As such, we are certifying that this 
designation of critical habitat would not result in a significant 
economic impact on a substantial number of small entities. Please refer 
to Appendix B of our economic analysis for this designation for a more 
detailed discussion of potential economic impacts to small business 
entities. Since we have excluded Bonita Creek, Blue River, Cienega 
Creek, and Spring Creek from the final designation pursuant to section 
4(b)(2) of the Act, as discussed above, we have determined that this 
designation would not affect a substantial number of small businesses 
involved in or affected by water management activities or timber 
harvest.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This final rule is considered 
a significant regulatory action under E.O. 12866 due to its potentially 
raising novel legal and policy issues, but it is not expected to 
significantly affect energy supplies, distribution, or use. Appendix B 
of the economic analysis provides a discussion and analysis of this 
determination. The Office of Management and Budget has provided 
guidance for implementing this Executive Order that outlines nine 
outcomes that may constitute ``a significant adverse effect'' when 
compared without the regulatory action under consideration. The 
economic analysis finds that none of these criteria are relevant to 
this analysis; thus, energy-related impacts associated with Gila chub 
conservation activities within critical habitat are not expected.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. (At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal

[[Page 66705]]

private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, or permits, or that otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) The economic analysis discusses potential impacts of critical 
habitat designation for the Gila chub on water management activities, 
livestock grazing, Tribes, residential and commercial development 
activities, recreation activities, fire management activities, mining, 
and transportation activities. The analysis estimates that annual costs 
of the rule could range from $20.6 million to $61.8 million in 
undiscounted dollars over 20 years ($1.5 million to $3.8 million 
annually). Impacts are largely anticipated to affect water operators 
and Federal and State agencies, with some effects on livestock grazing 
operations. Impacts on small governments are not anticipated, or they 
are anticipated to be passed through to consumers. For example, costs 
to water operations would be expected to be passed on to consumers in 
the form of price changes. Consequently, for the reasons discussed 
above, we do not believe that the designation of critical habitat for 
the Gila chub will significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Gila chub in a takings 
implications assessment. The takings implications assessment concludes 
that this designation of critical habitat for the Gila chub does not 
pose significant takings implications.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, the 
Service requested information from, and coordinated development of this 
critical habitat designation with, appropriate State resource agencies 
in Arizona and New Mexico. The impact of the designation on State and 
local governments and their activities was fully considered in the 
economic analysis. As discussed above, the designation of critical 
habitat for the Gila chub would have little incremental impact on State 
and local governments and their activities. In fact, the designation of 
critical habitat may have some benefit to the State and local resource 
agencies in that the areas with features that are essential to the 
conservation of this species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the conservation of 
this species are specifically identified.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We are designating critical habitat in accordance 
with the provisions of the Act, as amended. This rule uses standard 
property descriptions and identifies the primary constituent elements 
within the designated areas to assist the public in understanding the 
habitat needs that are essential for the conservation of the Gila chub.

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

    This rule does not contain new or revised information collection 
for which Office of Management and Budget approval is required under 
the Paperwork Reduction Act. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts 
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
Ore. 1995), cert. denied 116 S. Ct. 698 (1996). However, when the range 
of the species includes States within the Tenth Circuit, such as that 
of the Gila chub, pursuant to the Tenth Circuit ruling in Catron County 
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 
(10th Cir. 1996), we undertake a NEPA analysis for critical habitat 
designation. We conducted a NEPA evaluation and notified the public of 
the draft document's availability on August 31, 2005 (70 FR 51732). We 
completed an environmental assessment and finding of no significant 
impact on the designation of critical habitat for the Gila chub; the 
final document is available and can be viewed online at http://www/
fws.gov/arizonaes/.

Secretarial Order 3206: American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act

    The purpose of Secretarial Order 3206 (Secretarial Order) is to 
``clarif(y) the responsibilities of the component agencies, bureaus, 
and offices of the Department of the Interior and the Department of 
Commerce, when actions taken under authority of the Act and associated 
implementing regulations affect, or may affect, Indian lands, tribal 
trust resources, or the exercise of American Indian tribal rights.'' If 
there is potential that a tribal activity could cause either direct or 
incidental take of a species proposed for listing under the Act, then 
meaningful government-to-government consultation will occur to try to 
harmonize the Federal trust responsibility to tribes and tribal 
sovereignty with our statutory responsibilities under the Act. The 
Secretarial Order also requires us to consult with tribes if the 
designation of an area as critical habitat might impact tribal trust 
resources, tribally owned fee lands, or the exercise of tribal rights. 
We have excluded Tribal lands of the San Carlos Apache Nation from the 
critical habitat designation pursuant to section 4(b)(2) of the Act.

[[Page 66706]]

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Arizona Ecological Services Field 
Office (see ADDRESSES section).

Author

    The primary authors of this rule are the Arizona Ecological 
Services Field Office staff (see ADDRESSES section) (telephone 602/242-
0210).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. Amend Sec.  17.11(h) by adding an entry for ``Chub, Gila'', in 
alphabetical order under ``FISHES'', to the List of Endangered and 
Threatened Wildlife, to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                     Vertebrate
---------------------------------------------------------                         population where                                Critical     Special
                                                             Historic range         endangered or        Status    When listed    habitat       rules
            Common name                Scientific name                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes
 
                                                                      * * * * * * *
Chub, Gila........................  Gila intermedia.....  U.S.A. (AZ, NM),      Entire..............          755  ...........     17.95(e)           NA
                                                           Mexico..
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.95 (e) by adding critical habitat for Gila chub (Gila 
intermedia), in the same alphabetical order as this species occurs in 
Sec.  17.11(h), to read has follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Gila chub (Gila intermedia)
    (1) Critical habitat for the Gila chub in Grant County, New Mexico, 
and Yavapai, Gila, Greenlee, Graham, Cochise, Pima, Santa Cruz, and 
Pinal Counties in Arizona is described in detail and depicted on the 
following maps below.
    (2) Within these areas, the primary constituent elements are the 
following:
    (i) Perennial pools, areas of higher velocity between pool areas, 
and areas of shallow water among plants or eddies all found in small 
segments of headwaters, springs, or cienegas of smaller tributaries;
    (ii) Water temperatures for spawning ranging from 17 to 24[deg] C 
(62.6 to 75.2[deg] F), and seasonally appropriate temperatures for all 
life stages (e.g. varying from approximately 10[deg]C to 30[deg]C);
    (iii) Water quality with reduced levels of contaminants, including 
excessive levels of sediments adverse to Gila chub health, and adequate 
levels of pH (e.g. ranging from 6.5 to 9.5), dissolved oxygen (e.g. 
ranging from 3.0 to 10.0) and conductivity (e.g. 100 to 1000 mmhos);
    (iv) Food base consisting of invertebrates (e.g., aquatic and 
terrestrial insects) and aquatic plants (e.g., diatoms and filamentous 
green algae);
    (v) Sufficient cover consisting of downed logs in the water 
channel, submerged aquatic vegetation, submerged large tree root wads, 
undercut banks with sufficient overhanging vegetation, large rocks and 
boulders with overhangs, and a high degree of streambank stability and 
healthy, intact riparian vegetative community;
    (vi) Habitat devoid of nonnative aquatic species detrimental to 
Gila chub or habitat in which detrimental nonnatives are kept at a 
level that allows Gila chub to continue to survive and reproduce; and
    (vii) Streams that maintain a natural flow pattern including 
periodic flooding.
    (3) Each stream segment includes a lateral component that consists 
of 300 feet on either side of the stream channel measured from the 
stream edge at bank full discharge. This lateral component of critical 
habitat is intended as a surrogate for the 100-year floodplain.
    (4) Lands located within the boundaries of the critical habitat 
designation, but are excluded by definition include: Existing paved 
roads; bridges; parking lots; dikes; levees; diversion structures; 
railroad tracks; railroad trestles; water diversion canals outside of 
natural stream channels; active gravel pits; cultivated agricultural 
land; and residential, commercial, and industrial developments. These 
developed areas do not contain any of the primary constituent elements, 
do not provide habitat or biological features essential to the 
conservation of the Gila chub, and generally will not contribute to the 
species' recovery.
    (5) Critical Habitat Map Areas. Data layers defining map areas, and 
mapping of critical habitat areas, was done using Arc GIS and verifying 
with USGS 7.5' quadrangles. Legal descriptions for New Mexico and 
Arizona are based on the Public Lands Survey System (PLSS). Within this 
system, all coordinates reported for New Mexico are in the New Mexico 
Principal Meridian (NMPM), while those in Arizona are in the Gila and 
Salt River Meridian (GSRM). Township has been abbreviated as ``T'', 
Range as ``R'', and section as ``sec.'' Where possible, the ending or 
starting points have been described to the nearest quarter-section, 
abbreviated as ``\1/4\''. Cardinal directions are also abbreviated (N = 
North, S = South, W = West, and E = East). All mileage calculations 
were performed using GIS.
    (6) Note: Map 1 (index map) follows:

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[[Page 66708]]


    (7) Area 1: Upper Gila River--Grant County, New Mexico, and 
Greenlee County, Arizona.
    (i) Turkey Creek: 22.3 km (13.8 mi) of creek extending from the 
edge of the Gila Wilderness boundary at T14S, R16W, sec. 15 NW\1/4\ and 
continuing upstream to T13S, R15W, sec. 30 NE\1/4\. Land ownership: 
Gila National Forest and private.
    (ii) Eagle Creek and East Eagle Creek: 39.2 km (24.4 mi) of creek 
extending from its confluence with an unnamed tributary at T1N, R28E, 
sec. 31 SW\1/4\ upstream to the headwaters of East Eagle Creek just 
south of Highway 191 in T3N, R29E, sec. 28 SE\1/4\. Land ownership: 
Apache-Sitgreaves National Forest and private.
    (iii) Harden Cienega Creek: 22.6 km (14.0 mi) of creek extending 
from its confluence with the San Francisco River in GSRM T3S, R31E, 
sec. 3 SE\1/4\ upstream to the headwaters in NMPM T14S, R21W, sec. 6 
NE\1/4\. Land ownership: Apache-Sitgreaves National Forest, Gila 
National Forest, and private.
    (iv) Dix Creek: Portions of the Creek beginning 1.0 mile upstream 
from its confluence with the San Francisco River at a natural rock 
barrier in T3S, R31E, sec. 9 NE\1/4\ continuing upstream for 0.9 km 
(0.6 mi.) to the confluence of the right and left prongs of Dix Creek 
in T3S, R31E, sec. 9 center. Includes Left Prong of Dix Creek upstream 
of its confluence with Dix Creek 2.0 km (1.2 mi) to T3S, R31E, section 
15 NW\1/4\. Land ownership: Apache-Sitgreaves National Forest. Includes 
the Right Prong of Dix Creek continuing upstream of its confluence with 
Dix Creek 4.8 km (3.0 mi) to T3S, R31E, section 20 SE\1/4\. Land 
ownership: Apache-Sitgreaves National Forest.
    (v) Note: Map of Area 1, Gila River, (Map 2) follows:

[[Page 66709]]

[GRAPHIC] [TIFF OMITTED] TR02NO05.037


[[Page 66710]]


    (8) Area 2: Middle Gila River--Gila and Pinal Counties, Arizona.
    (i) Mineral Creek: 14.4 km (9.0 mi) of creek extending from its 
confluence with Devil's Canyon in T2S, R13E, section 35 NW\1/4\ 
continuing upstream to its headwaters in T2S, R14E, sec. 15 center at 
the confluence of Mineral Creek and an unknown drainage. Land 
ownership: Tonto National Forest, State, and private.
    (ii) Note: Map of Area Upper Gila River, (Map 3) follows:

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[[Page 66712]]


    (9) Area 3: Babocomari River--Santa Cruz County, Arizona.
    (i) O'Donnell Canyon: 10.0 km (6.2 mi) of creek extending from its 
confluence with Turkey Creek at T21S, R18E, sec. 22 SE\1/4\ upstream to 
the confluences of Western, Middle, and Pauline Canyons in T22S, R18E, 
sec. 17 NE\1/4\. Land ownership: Bureau of Land Management, Coronado 
National Forest, and private.
    (ii) Turkey Creek: 6.3 km (3.9 mi) of creek extending from its 
confluence with O'Donnell Canyon in T21S, R18E, sec. 22 SE\1/4\ 
upstream to where Turkey Creek crosses AZ Highway 83 in T22S, R18E, 
sec. 9 NE\1/4\. Land ownership: Coronado National Forest, and private.
    (iii) Note: Map of Area 3, Babocomari River, (Map 4) follows:

[[Page 66713]]

[GRAPHIC] [TIFF OMITTED] TR02NO05.039


[[Page 66714]]


    (10) Area 4: Lower San Pedro River--Cochise and Graham Counties, 
Arizona.
    (i) Bass Canyon: 5.5 km (3.4 mi) of creek extending from its 
confluence with Hot Springs Canyon in T12S, R20E, sec. 36 NE\1/4\ 
upstream to the confluence with Pine Canyon in T12S, R21E, sec. 20 
SW\1/4\. Land ownership: Bureau of Land Management and private.
    (ii) Hot Springs Canyon: 10.5 km (6.5 mi) of creek extending from 
T13S R20E, sec. 5 NW\1/4\ continuing upstream to its confluence with 
Bass Canyon in T12S, R20E, sec. 36 NE\1/4\. Land ownership: Bureau of 
Land Management, State, and private (The Nature Conservancy).
    (iii) Redfield Canyon: 9.8 km (6.1 mi) of creek extending from the 
western boundary of T11S, R19E, section 35 upstream to its confluence 
with Sycamore Canyon in T11S, R20E, sec. 28 NE\1/4\. Land ownership: 
Bureau of Land Management, State, and private.
    (iv) Note: Map of Area 4, Lower San Pedro River, (Map 5) follows:

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[GRAPHIC] [TIFF OMITTED] TR02NO05.040


[[Page 66716]]


    (11) Area 5: Lower Santa Cruz River--Pima County, Arizona.
    (i) Cienega Creek: (Two Segments). First segment includes 14.2 km 
(8.8 mi) of creek extending from where Cienega Creek becomes Pantano 
Wash T16S, R16E, at the boundary of sec. 14 and sec. 23 to where it 
crosses Interstate 10 at T17S, R17E, sec. 1 NW\1/4\. Land ownership: 
County and State Trust. Second segment includes 13.6 km (8.4 mi) of 
creek extending from T18S, R18E, sec. 6 S\1/2\ to its confluence with 
Empire Gulch at T19S, R17E, sec. 3 SE\1/4\. Land ownership: Bureau of 
Land Management and State.
    (ii) Mattie Canyon: 4.0 km (2.5 mi) of creek extending from its 
confluence with Cienega Creek in T18S, R17E, sec. 23 NE\1/4\ upstream 
to the Bureau of Land Management Boundary in T18S, R17E, sec. 25 SW\1/
4\. Land Ownership: Bureau of Land Management.
    (iii) Empire Gulch: 5.2 km (3.2 mi) of creek extending from its 
confluence with Cienega Creek in T19S, R17E, sec. 3 SE\1/4\ continuing 
upstream to T19S, R17E, sec. 16 NW\1/4\ on the western boundary of 
section 16. Land Ownership: Bureau of Land Management and State.
    (iv) Sabino Canyon: 11.1 km (6.9 mi) of creek extending from the 
southern boundary of the Coronado National Forest in T13S, R15E, sec. 9 
SE\1/4\ upstream to its confluence with the West Fork of Sabino 
Canyonin T12S, R15E, sec. 22 NE\1/4\. Land ownership: Coronado National 
Forest.
    (v) Note: Map of Area 5, Lower Santa Cruz River, (Map 6) follows:

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[[Page 66718]]


    (12) Area 6: Upper Verde River--Yavapai County, Arizona.
    (i) Walker Creek: 7.6 km (4.7 mi) of creek extending from Prescott 
National Forest Road 618 in T15N, R6E, sec. 33 SW\1/4\ upstream to its 
confluence with Spring Creek in T14N, R6E, sec. 1, SE\1/4\. Land 
ownership: Coconino National Forest and private.
    (ii) Red Tank Draw: 11.1 km (6.9 mi) of creek extending from the 
National Park Service boundary just upstream of its confluence with Wet 
Beaver Creek in T15N, R6E, sec. 31 NE\1/4\ upstream to the confluence 
of Mullican and Rarick canyons in T15N, R6E, sec. 2 NW\1/4\. Land 
ownership: Coconino National Forest and private.
    (iii) Spring Creek: 2.7 km (1.7 mi) of creek including all non-
private land extending from T16N, R4E, sec. 27 SE\1/4\ at the boundary 
of Forest Service land and continuing upstream to the Arizona Highway 
89A crossing in T16N, R4E, sec. 16 SE\1/4\. Land ownership: Coconino 
National Forest, and State.
    (iv) Williamson Valley Wash: 7.2 km (4.4 mi) of creek extending 
from the gauging station in T17N, R3W, sec. 7 SE\1/4\ upstream to the 
crossing of the Williamson Valley Road in T17N, R4W, sec. 36 NE\1/4\. 
Land ownership: private.
    (v) Note: Map of Area 6, Upper Verde River, (Map 7) follows:

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[[Page 66720]]


    (13) Area 7: Agua Fria River--Yavapai County, Arizona.
    (i) Little Sycamore Creek: 4.7 km (2.9 mi) of creek extending from 
its confluence with Sycamore Creek in T11N, R4E, sec. 6 SW\1/4\ 
upstream to T11N, R4E, sec. 4 NE\1/4\. Land ownership: Prescott 
National Forest and private.
    (ii) Sycamore Creek: 18.3 km (11.4 mi) of creek extending from its 
confluence with Little Sycamore Creek at T11N, R4E, sec. 6 SW\1/4\ 
upstream to Nelson Place Spring in T11N, R5E, sec. 21 NE\1/4\. Land 
ownership: Prescott National Forest and private.
    (iii) Indian Creek: 8.4 km (5.2 mi) of creek extending from T11N, 
R3E, sec. 35 NE\1/4\ to Upper Water Springs in T11N, R4E, sec. 16 SE\1/
4\. Land ownership: Bureau of Land Management, Prescott National 
Forest, and private.
    (iv) Silver Creek: 8.5 km (5.3 mi) of creek extending from T10N, 
R3E, sec. 10 SE\1/4\ continuing upstream to the spring in T10N, R4E, 
Sec. 4 SW\1/4\. Land ownership: Tonto National Forest and Bureau of 
Land Management.
    (v) Lousy Canyon: Portions of the creek from the confluence of an 
unnamed tributary upstream to the fork with an unnamed tributary 
approximately 0.6 km (0.4 mi) upstream, all entirely T9N, R3E, sec. 5 
NW\1/4\. Land ownership: Bureau of Land Management.
    (vi) Larry Creek: Portions of the creek from an unnamed tributary 
and continuing upstream 0.7 km (0.4 mi) to the confluence of two 
adjoining unnamed tributaries, entirely within T9N, R3E, sec. 9 NW\1/
4\. Land ownership: Bureau of Land Management.
    (vii) Note: Map of Area 7, Aqua Fria River, (Map 8) follows:

[[Page 66721]]

[GRAPHIC] [TIFF OMITTED] TR02NO05.043

* * * * *

    Dated: October 24, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-21498 Filed 11-1-05; 8:45 am]
BILLING CODE 4310-55-C