[Federal Register Volume 72, Number 54 (Wednesday, March 21, 2007)]
[Rules and Regulations]
[Pages 13355-13422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1218]



[[Page 13355]]

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Part II





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; Designation of Critical 
Habitat for the Spikedace (Meda fulgida) and the Loach Minnow (Tiaroga 
cobitis); Final Rule

Federal Register / Vol. 72, No. 54 / Wednesday, March 21, 2007 / 
Rules and Regulations

[[Page 13356]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU33


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Spikedace (Meda fulgida) and the Loach Minnow 
(Tiaroga cobitis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the spikedace (Meda fulgida) and loach 
minnow (Tiaroga cobitis) pursuant to the Endangered Species Act of 
1973, as amended (Act). In total, approximately 522.2 river miles (mi) 
(840.4 kilometers (km)) are designated as critical habitat. Critical 
habitat is located in Catron, Grant, and Hidalgo Counties in New 
Mexico, and Apache, Graham, Greenlee, Pinal, and Yavapai Counties in 
Arizona.

DATES: This final rule is effective April 20, 2007.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are 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 the critical habitat designation are also 
available via the Internet at http://www.fws.gov/arizonaes/. Geographic 
Information System (GIS) files of the critical habitat maps are also 
available via the Internet at http://criticalhabitat.fws.gov/.

FOR FURTHER INFORMATION CONTACT: Steven L. Spangle, Field Supervisor, 
U.S. Fish and Wildlife Service, Arizona Ecological Services Field 
Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951 
(telephone 602-242-0210; facsimile 602-242-2513). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339, 7 days a week and 24 
hours a day.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
designation of critical habitat in this rule. For more information on 
the spikedace or the loach minnow, refer to the previous final critical 
habitat designation for the spikedace and loach minnow published in the 
Federal Register on April 25, 2000 (65 FR 24328).

Spikedace

    Description and taxonomy. The spikedace is a member of the minnow 
family Cyprinidae. The spikedace was first collected in 1851 from the 
Rio San Pedro in Arizona and was described from those specimens in 1856 
by Girard. It is the only species in the genus Meda. The spikedace is a 
small, slim fish less than 3 inches (in) (75 millimeters (mm) in length 
(Sublette et al. 1990, p. 136). It is characterized by an olive gray to 
brownish back and silvery sides with vertically elongated black specks. 
Spikedace have spines in the dorsal fin (Minckley 1973, pp. 82, 112, 
115).
    Distribution and Habitat. Spikedace are found in moderate to large 
perennial streams, where they inhabit shallow riffles (shallow areas in 
a streambed causing ripples) with sand, gravel, and rubble substrates 
(Barber and Minckley 1966, p. 321; Propst et al. 1986, p. 12; Rinne and 
Kroeger 1988, p. 1). Recurrent flooding and a natural hydrograph 
(physical conditions, boundaries, flow, and related characteristics of 
water) are very important in maintaining the habitat of spikedace and 
in helping the species maintain a competitive edge over invading 
nonnative aquatic species (Minckley and Meffe 1987, p. 103-104; Propst 
et al. 1986, pp. 3, 81, 85).
    The spikedace was once common throughout much of the Gila River 
basin, including the mainstem Gila River upstream of Phoenix, and the 
Verde, Agua Fria, Salt, San Pedro, and San Francisco subbasins. It 
occupies suitable habitat in both the mainstem reaches and moderate-
gradient tributaries, up to approximately 6,500 feet (ft) (2,000 meters 
(m)) in elevation (Chamberlain 1904, p. 8; Cope and Yarrow 1875, pp. 
641-642; Gilbert and Scofield 1898, pp. 487, 497; Miller 1960 and 
Hubbs, pp. 32-33).
    Habitat destruction and competition and predation by nonnative 
aquatic species have severely reduced its range and abundance. It is 
now restricted to portions of the upper Gila River and the East, West, 
and Middle Forks of the Gila River in New Mexico and the middle Gila 
River, lower San Pedro River, Aravaipa Creek, Eagle Creek, and the 
Verde River in Arizona (Anderson 1978, pp. 14-17, 61-62; Bestgen 1985, 
p. 6; Jakle 1992, p. 6; Marsh et al. 1989, pp. 2-3; Paroz et al. 2006, 
pp. 26, 37-41, 62-67; Propst et al. 1986, p. 1; Sublette et al. 1990, 
pp. 138-139), and is only commonly found in surveys of Aravaipa Creek 
and some parts of the upper Gila River in New Mexico (Arizona Game and 
Fish Department (AGFD) 2004; Arizona State University 2002; Propst 
2002, pp. 4, 16-33, Appendix II--Table 2; Propst et al. 1986, p. iv; 
Rienthal 2006, p. 2). Based on the available maps and survey 
information, we estimate its present range to be approximately 10 to 15 
percent or less of its historical range, and the status of the species 
within occupied areas ranges from common to very rare. Recent data 
indicate the population in New Mexico has declined in recent years 
(Paroz et al. 2006, p. 56). Table 1 summarizes critical habitat areas 
designated as critical habitat in this final rule for spikedace, as 
well as potential threats and records of spikedace within those areas.

Loach Minnow

    Description and taxonomy. The loach minnow is a member of the 
minnow family Cyprinidae. The loach minnow was first collected in 1851 
from the Rio San Pedro in Arizona and was described from those 
specimens in 1865 by Girard (pp. 191-192). The loach minnow is a small, 
slender, elongated fish less than 3 in (80 mm) in length. It is olive 
colored overall, with black mottling or splotches. Breeding males have 
vivid red to red-orange markings on the bases of fins and adjacent 
body, on the mouth and lower head, and often on the abdomen (Minckley 
1973, p. 134; Sublette et al. 1990, p. 186).
    Distribution and Habitat. Loach minnow are found in small to large 
perennial streams, and use shallow, turbulent riffles with primarily 
cobble on the bottom in areas of swift currents (Minckley 1973, p. 134; 
Propst and Bestgen 1991, p. 32; Propst et al. 1988, pp. 36-43; Rinne 
1989, p. 111). The loach minnow uses the space between, and in the lee 
(sheltered) side of rocks for resting and spawning. It is rare or 
absent from habitats where fine sediments fill the interstitial spaces 
(small, narrow spaces between rocks or other substrate) (Propst and 
Bestgen 1991; p. 33). Recurrent flooding and a natural hydrograph are 
very important in maintaining the habitat of loach minnow and in 
helping the species maintain a competitive edge over invading nonnative 
aquatic species (Propst and Bestgen 1991, pp. 33, 37).
    The loach minnow was once locally common throughout much of the 
Gila River basin, including the mainstem Gila River upstream of 
Phoenix, and the Verde, Salt, San Pedro, and San Francisco subbasins 
(Minckley 1973, p. 133-134; Lee et al. 1980, p. 365). It

[[Page 13357]]

occupies suitable habitat in both the mainstem reaches and moderate-
gradient tributaries, up to about 8,200 ft (2,500 m) in elevation. 
Habitat destruction and competition and predation by nonnative aquatic 
species have severely reduced its range and abundance (Carlson and Muth 
1989, pp. 232-233; Fuller et al. 1990, p. 1; Lachner et al. 1970, p. 
22; Miller 1961, pp. 365, 377, 397-398; Minckley 1973, p. 135; Moyle 
1986, pp. 28-34; Moyle et al. 1986, pp. 416-423; Ono et al. 1983, p. 
90; Propst et al. 1988, p. 2, 64). It is now restricted to portions of 
the upper Gila, the San Francisco, and Tularosa rivers in New Mexico; 
and the Blue River and its tributaries Dry Blue, Campbell Blue, Little 
Blue, Pace, and Frieborn creeks; Aravaipa Creek and its tributaries 
Turkey and Deer creeks; Eagle Creek; East Fork White River; and the 
Black River and the North Fork East Fork Black River in Arizona (Bagley 
et al. 1998, pp. 3-6, 8; Bagley et al. 1995, multiple survey records; 
Barber and Minckley 1966, p. 321; Britt 1982, pp. 6-7; Leon 1989, p. 1; 
Marsh et al. 1989, pp. 7-8; Paroz et al. 2006, pp. 26, 37-41, 62-67; 
Propst et al. 1988, pp. 12-17; Propst and Bestgen 1991, p. 29; Propst 
1996, multiple survey records; Springer 1995, pp. 6-7, 9-10), and is 
only common in Aravaipa Creek and the Blue River in Arizona, and 
limited portions of the upper San Francisco River, the upper Gila 
River, and Tularosa River in New Mexico (Paroz et al. 2006, pp. 55-60; 
Propst and Bestgen 1991, pp. 29, 37). The present range of the loach 
minnow is estimated at 10 percent of its historical range (Propst et 
al. 1988, p. 12), and the status of the species within occupied areas 
ranges from common to very rare. Table 1 summarizes critical habitat 
areas designated for loach minnow, as well as potential threats and 
records of loach minnow within those areas.

Table 1.--Locations of Spikedace and Loach Minnow Stream Segments Designated as Critical Habitat, Threats to the
                 Species, Last Year of Documented Occupancy, and Source of Occupancy Information
----------------------------------------------------------------------------------------------------------------
                                                           Last year       Critical habitat
  Spikedace and/or loach minnow         Threats            occupancy        distance  in mi         Source
     critical habitat areas                                confirmed             (km)
----------------------------------------------------------------------------------------------------------------
                                             Complex 1--Verde River
----------------------------------------------------------------------------------------------------------------
Verde River--Spikedace            Nonnative fish      1999..............  43.0 mi (69.2 km).  AGFD 2004; ASU
                                   species, grazing,                                           2002; Brouder
                                   water diversions.                                           2002, p. 1.
----------------------------------------------------------------------------------------------------------------
                                         Complex 2--Black River Complex
----------------------------------------------------------------------------------------------------------------
Boneyard Creek--Loach minnow....  Recreational        1996..............  1.4 mi (2.3 km)...  AGFD 2004; ASU
                                   pressures,                                                  2002.
                                   nonnative fish
                                   species, recent
                                   fire and related
                                   retardant
                                   application, ash,
                                   and sediment.
East Fork Black--Loach minnow...  Recreational        2004..............  12.2 mi (19.7 km).  AGFD 2004; ASU
                                   pressures,                                                  2002.
                                   nonnative fish
                                   species, recent
                                   fire and related
                                   retardant
                                   application, ash,
                                   and sediment.
North Fork East Fork Black--      Recreational        2004..............  4.4 mi (7.1 km)...  AGFD 2004; ASU
 Loach minnow.                     pressures,                                                  2002; Bagley et
                                   nonnative fish                                              al. 1995,
                                   species, recent                                             multiple surveys;
                                   fire and related                                            Lopez 2000, p. 1.
                                   retardant
                                   application, ash,
                                   and sediment.
----------------------------------------------------------------------------------------------------------------
                              Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek
----------------------------------------------------------------------------------------------------------------
Aravaipa Creek--Spikedace and     Fire, some          2005..............  28.1 mi (45.3 km).  ADEQ 2006; AGFD
 Loach minnow.                     recreational                                                2004; ASU 2002;
                                   pressure,                                                   Rienthal 2006,
                                   nonnative                                                   pp. 2-3.
                                   pressures, water
                                   diversion,
                                   contaminants.
Deer Creek--Loach minnow........  Fire, some          2005..............  2.3 mi (3.6 km)...  AGFD 2004; ASU
                                   recreational                                                2002; Rienthal
                                   pressure, low                                               2006, p. 2.
                                   nonnative
                                   pressures.
Turkey Creek--Loach minnow......  Fire, some          2005..............  2.7 mi (4.3 km)...  AGFD 2004; ASU
                                   recreational                                                2002; Rienthal
                                   pressure,                                                   2006, p. 2.
                                   nonnative
                                   pressures.
Gila River--Ashurst-Hayden Dam
 to San Pedro
    Spikedace...................  Water diversions,   1991..............  39.0 mi (62.8 km).  AGFD 2004; ASU
                                   grazing,                                                    2002; Jakle 1992,
                                   nonnative fish                                              p. 6.
                                   species.
San Pedro River (lower)--         Water diversions,   1966 (directly      13.4 mi (21.5 km).  AGFD 2004; ASU
 Spikedace.                        grazing,            connected to                            2002.
                                   nonnative fish      Aravaipa Creek,
                                   species, mining.    with records from
                                                       2005).
----------------------------------------------------------------------------------------------------------------
                                    Complex 4--San Francisco and Blue Rivers
----------------------------------------------------------------------------------------------------------------
Eagle Creek--Loach minnow.......  Grazing, nonnative  1997..............  17.7 mi (28.5 km).  AGFD 2004; ASU
                                   fish species,                                               2002; Bagley and
                                   water diversions,                                           Marsh 1997, pp. 1-
                                   mining.                                                     2; Knowles 1994,
                                                                                               pp. 1-2, 5; Marsh
                                                                                               et al. 2003, pp.
                                                                                               666-668.

[[Page 13358]]

 
San Francisco River--Loach        Grazing, water      2005..............  126.5 mi (203.5     AGFD 2004; ASU
 minnow.                           diversions,                             km).                2002; Paroz et
                                   nonnative fish                                              al. 2006, p. 67;
                                   species, road                                               Propst 2002, p.
                                   construction and                                            13; Propst 2005,
                                   maintenance,                                                p. 10; Propst
                                   channelization.                                             2006, p. 2.
Tularosa River--Loach minnow....  Grazing, watershed  2002..............  18.6 mi (30.0 km).  ASU 2002; Propst
                                   disturbances.                                               2002, p. 9;
                                                                                               Propst 2005, p.
                                                                                               6.
Frieborn Creek--Loach minnow....  Dispersed           1998..............  1.1 mi (1.8 km)...  ASU 2002.
                                   livestock grazing.
Negrito Creek--Loach minnow.....  Grazing, watershed  1998..............  4.2 mi (6.8 km)...  Miller 1998, pp. 4-
                                   disturbances.                                               5.
Whitewater Creek--Loach minnow..  Grazing, watershed  1984 (directly      1.1 mi (1.8 km)...  ASU 2002; Propst
                                   disturbances.       connected to the                        et al. 1988,
                                                       San Francisco                           p.15.
                                                       River, with
                                                       records from
                                                       2005).
Blue River--Loach minnow........  Water diversions,   2004..............  51.1 mi (82.2 km).  AGFD 2004; ASU
                                   nonnative fish                                              2002; Carter
                                   species,                                                    2005; Propst
                                   livestock                                                   2002, p. 4.
                                   grazing, road
                                   construction.
Campbell Blue Creek--Loach        Grazing, nonnative  2004..............  8.1 mi (13.1 km)..  AGFD 2004; ASU
 minnow.                           fish species.                                               2002; Carter
                                                                                               2005.
Little Blue Creek--Loach minnow.  Grazing, nonnative  1981 (directly      2.8 mi (4.5 km)...  AGFD 2004; ASU
                                   fish species.       connected to the                        2002.
                                                       Blue River, with
                                                       records from
                                                       2004).
Dry Blue Creek--Loach minnow....  Grazing...........  2001..............  3.0 mi (4.8 km)...  ASU 2002; Propst
                                                                                               2006, p. 2.
Pace Creek--Loach minnow........  Grazing, nonnative  1998..............  0.8 mi (1.2 km)...  ASU 2002.
                                   fish species.
----------------------------------------------------------------------------------------------------------------
                                           Complex 5--Upper Gila River
----------------------------------------------------------------------------------------------------------------
East Fork Gila River--Spikedace   Grazing, nonnative  2000, 1998........  26.1 mi (42.0 km).  ASU 2002; Propst
 and Loach minnow                  fish species, ash                                           2002, p. 27;
                                   flows from                                                  Propst et al.
                                   wildfires.                                                  1998, p.14-15;
                                                                                               Propst 2006, pp.
                                                                                               2.
Upper Gila River--Spikedace and   Recreation, roads,  2005..............  94.9 mi (152.7 km)  ASU 2002; Propst
 Loach minnow.                     grazing,                                                    2002, pp. 4, 31.
                                   nonnative fish
                                   species, water
                                   diversion.
Middle Fork Gila River--          Nonnative fish      1995, 1998........  7.7 mi (12.3 km),   ASU 2002; Paroz et
 Spikedace and Loach minnow.       species, Grazing,                       11.9 mi (19.1 km).  al. 2006, p. 63;
                                   ash flows from                                              Propst 2002, p.
                                   wildfires.                                                  22; Propst, 2006,
                                                                                               p. 2.
West Fork Gila River--Spikedace   Nonnative fish      2005, 2002........  7.7 mi (12.4 km)..  ASU 2002; Paroz et
 and Loach minnow.                 species, roads,                                             al. 2006, p. 64;
                                   ash flows from                                              Propst 2002, p.
                                   wildfires.                                                  18; Propst 2006,
                                                                                               p. 2.
----------------------------------------------------------------------------------------------------------------

Previous Federal Actions

    We previously published a final critical habitat designation on 
April 25, 2000 (65 FR 24328). In New Mexico Cattle Growers' Association 
and Coalition of Arizona/New Mexico Counties for Stable Economic Growth 
v. United States Fish and Wildlife Service, CIV 02-0199 JB/LCS (D.N.M), 
the plaintiffs challenged the April 25, 2000, critical habitat 
designation for the spikedace and loach minnow because the economic 
analysis had been prepared using the same methods which the Tenth 
Circuit had held to be invalid. The Center for Biological Diversity 
joined the lawsuit as a Defendant-Intervenor. The Service agreed to a 
voluntary vacatur of the critical habitat designation, except for the 
Tonto Creek Complex. On August 31, 2004, the United States District 
Court for the District of New Mexico set aside the April 25, 2000, 
critical habitat designation in its entirety and remanded it to the 
Service for preparation of a new proposed and final designation. On 
December 20, 2005, we published a proposed critical habitat designation 
(70 FR 75546).
    For more information on previous Federal actions concerning the 
spikedace and loach minnow, including listing documents published in 
1985 and 1986 (50 FR 25380, June 18, 1985; 51 FR 39468, October 28, 
1986; 51 FR 23769, July 1, 1986) as well as the first critical habitat 
designation in 1994 (59 FR 10898, March 8, 1994; 59 FR 10906, March 8, 
1994), refer to the critical habitat designation published in the 
Federal Register on April 25, 2000 (65 FR 24328).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the spikedace and loach minnow on 
December 20, 2005 (70 FR 75546), and in two notices to reopen the 
comment period on June 6, 2006 (71 FR 32496) and October 4, 2006 (71 FR 
58574). 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 requested information 
on the current status, distribution, and threats

[[Page 13359]]

to the spikedace and loach minnow, as well as information on the status 
of other aquatic species in the historical range of the spikedace and 
loach minnow. We requested this information in order to make a final 
critical habitat determination based on the best available scientific 
and commercial data. We also requested information on proposed 
exclusions of various areas from the final critical habitat 
designation. In addition, we held public hearings on June 13 and 20, 
2006, in Silver City, NM, and Camp Verde, AZ, respectively, to solicit 
comments on the proposed rule. We published newspaper articles inviting 
public comment and announcing these public hearings in the Arizona 
Republic, Arizona Daily Star, Camp Verde Bugle, Sierra Vista Herald, 
Tucson Citizen, Verde Independent, and White Mountain Independent in 
Arizona, and the Albuquerque Journal, Albuquerque Tribune, and Silver 
City Daily Press in New Mexico.
    During the first public comment period, which opened on December 
20, 2005, and closed on February 21, 2006, we received 23 comments 
directly addressing the proposed critical habitat designation (e-mails, 
letters, and faxes). Of these, we received two comments from peer 
reviewers, three from Federal agencies, five from Tribes, one from a 
State agency, seven from organizations, and five from individuals. We 
also received two requests for public hearings. During the second 
comment period, which opened on June 6, 2006, and closed on July 6, 
2006, we received 39 comments. Of these latter comments, 2 were from 
Federal agencies, 3 from State agencies, and 34 from organizations or 
individuals. During the third comment period, which opened on October 
4, 2006, and closed on October 16, 2006, we received 11 comment 
letters. Of these comments, three were from Federal agencies and eight 
from organizations and individuals.
    Of the written comments received during the first comment period, 
four supported, eight were opposed, and six included comments or 
information but did not express support for or opposition to the 
proposed critical habitat designation. Of the written comments received 
during the second comment period, nine supported, 23 were opposed, and 
seven included comments or information but did not express support for 
or opposition to the proposed listing and critical habitat designation. 
Written comments received during the third comment period were specific 
to the proposals to exclude portions of various streams due to receipt 
of management plans for those streams. Of these written comments, two 
supported exclusions in Eagle Creek and the upper Gila River, three 
opposed these exclusions, four proposed additional exclusions in other 
areas, and three included comments or information but did not express 
support for or opposition to the proposed exclusions.
    We also received numerous comments on the content and soundness of 
the environmental assessment and economic analysis. For the 
environmental assessment, comments focused on the adequacy of 
completing an environmental assessment rather than an environmental 
impact statement, the inadequacy of the comment period and 
opportunities for public participation, the use of the 300-foot buffer 
for the lateral extent of the designation, the application of the 
destruction or adverse modification language, the adequacy of the 
discussion of impacts of the proposed action to water use and water 
rights, the range of alternatives covered, and the economic information 
provided in the environmental assessment.
    Comments on the economic analysis included the suggestion that we 
failed to estimate benefits of the proposed designation; the adequacy 
and scope of the analysis; impacts to small business entities, ranching 
and farming communities, and water use and water rights; the Regulatory 
Flexibility Act; the Verde River and estimated costs and benefits of 
including it in the final designation; and Tribal lands and impacts to 
Tribes.
    Responses to comments were grouped into three categories below. 
Peer review comments are listed first, followed by comments received 
from the States. Comments received from the public are listed last. 
Because staff from the New Mexico Department of Game and Fish (NMDGF) 
responded as peer reviewers, their comments are listed in the peer 
review section, while those of the AGFD are listed under State 
comments.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from 13 knowledgeable individuals 
with scientific expertise that included familiarity with the species, 
the geographic region in which the species occurs, and conservation 
biology principles. These individuals represented Federal agencies, 
State agencies, university researchers, or themselves as private 
individuals. We received responses from two of the peer reviewers, one 
as a private individual and the other in the capacity of an individual 
who works for the New Mexico Department of Game and Fish. Peer review 
comments focused on the reduction in the proposed critical habitat 
designation from previous designations, the area encompassed by 
critical habitat, and potential threats to the species, including the 
need to expand ``nonnative fish'' to include ``nonnative aquatic 
species.''
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the spikedace and loach minnow, and addressed them in the 
following summary.

Peer Reviewer Comments

    (1) Comment: The reduction in stream miles of critical habitat 
proposed for designation from that previously designated for the 
spikedace and loach minnow provides no incentive for land and resource 
management agencies to launch projects that would restore conditions 
for the enhancement of spikedace and loach minnow. All of the major 
stream course and complexes, and many of the smaller tributaries, have 
potential to provide elements necessary for the recovery of these 
species and should be included in critical habitat.
    Our response: The Service's process for designating critical 
habitat has evolved since prior designations of critical habitat for 
the spikedace and loach minnow. As required by section 4(b)(1)(A) of 
the Act, we used the best scientific and commercial data available in 
determining areas for designation as critical habitat.
    (2) Comment: In primary constituent element (PCE) 4, ``nonnative 
fish'' should be modified to include any and all nonnative aquatic 
species, including the current component of nonnative fishes and those 
that may become established in the future, as well as crayfishes, 
macroinvertebrates, parasites, and disease-causing pathogens.
    Our response: We agree and we have changed ``nonnative aquatic 
fishes'' in the final rule to ``nonnative aquatic species.'' In 
addition, language has been added addressing additional nonnatives and 
their sources, as well as their potential effects on the native fish 
community.
    (3) Comment: Designating critical habitat serves positive purposes. 
The prohibition against adverse modification is a powerful tool to 
protect unoccupied seasonal or migratory habitat and unoccupied habitat 
for population expansion as part of recovery. The most effective 
benefit from designating critical habitat is the impetus it provides to 
agencies and people to initiate conservation activities for the target

[[Page 13360]]

species and voluntarily curtail adverse impacts. No evidence is 
provided concluding that the (1) jeopardy standard is sufficient to 
protect habitat better than a critical habitat designation, (2) that 
critical habitat designation provides no education benefits better 
obtained otherwise, or (3) that conservation can be better achieved 
through implementing management plans rather than through implementing 
section 7 and other provisions of the Act.
    Our response: Designation of critical habitat is one tool for 
managing listed species habitat. In addition to the designation of 
critical habitat, we have determined that other conservation mechanisms 
including the recovery planning process, section 6 funding to States, 
section 7 consultations, management plans, Safe Harbor agreements, and 
other on-the-ground strategies contribute to species conservation. We 
believe these other conservation measures provide greater incentives 
and often greater conservation. Please see ``Exclusions under Section 
4(b)(2) of the Act'' for additional discussion.
    (4) Comment: The Service should reclassify both species to 
endangered status, as a warranted but precluded finding was published 
in 1994. Both species have experienced significant reductions in range 
and abundance since that time, and their status in the wild continues 
to deteriorate. Reclassification would recognize the precarious status 
of the species and give higher priority for recovery actions.
    Our response: We agree and in the 2006 Candidate Notice of Review 
(CNOR) (71 FR 53756; September 12, 2006) we resubmit our 12-month 
finding where we determine that reclassification of both the spikedace 
and loach minnow is warranted but precluded by other higher priority 
listing actions. The 2006 CNOR provides a detailed discussion of why 
these listing actions are precluded by other higher priority listing 
actions. We note that Federal and State agencies and other cooperators 
are continuing with recovery actions for the spikedace and loach minnow 
in a concerted effort to improve the status of these two fish.
    (5) Comment: No information is presented on effects of wildfire on 
habitats (PCEs) each species occupies. Since 2000, wildfires have 
burned much of the West Fork Gila River watershed, fine sediment 
deposition has increased noticeably, and abundance of both spikedace 
and loach minnow have declined substantially at a permanent site on 
West Fork Gila River that is annually sampled.
    Our response: We have added wildfire to the threats discussion 
within the unit descriptions below and within Table 1 as a threat to 
the West Fork Gila River.
    (6) Comment: The lateral extent of the areas proposed for critical 
habitat is logical considering the dynamic nature of streams in the 
Gila River basin, and the scientific understanding of the role flood 
plains play in stream course functioning. Defining a measurable width 
that is wide enough to incorporate flood flows beyond the bankfull 
width is reasonable.
    Our response: We agree with the commenter on this point.

State Comments

    (7) Comment: We suggest a rewording of the statement regarding 
water quality in the PCE section for both spikedace and loach minnow to 
not require low levels of pollutants in the water. As written, these 
statements could be interpreted to mean that low levels of pollutants 
are needed.
    Our response: We agree with this comment, and have revised the 
wording in the discussion of PCEs in the final rule to indicate that 
suitable water quality for spikedace and loach minnow will contain no 
or only minimal pollutant levels.
    (8) Comment: The Arizona Department of Transportation requests that 
the Service provide estimated acreages of proposed critical habitat for 
each habitat complex. The total mileage figures are inconsistent and 
total miles should be provided for spikedace and loach minnow. The 
total mileages in Table 3 for New Mexico and Arizona are reversed.
    Our response: Because fishes occupy stream habitat, we have 
determined it is more appropriate to quantify the delineation in terms 
of stream miles rather than total acres. All mileage figures throughout 
the rule and in the tables have been checked for consistency and 
adjusted where necessary.

General Comments Issue 1: Biological Concerns

    (9) Some commentors have noted that we have misinterpreted or over-
extrapolated information from various sources, in particular the 
proposed rule did not appear to include any studies that specifically 
define ranges for ``fine sediment'' or ``substrate embeddedness''; 
therefore, the phrase ``low or moderate amounts'' appears open to 
subjective interpretation.
    Our response: For purposes of critical habitat designation, low to 
moderate amount of substrate embeddedness means embeddedness that does 
not preclude deposition of eggs among sand and gravel for spikedace, or 
on the undersurfaces of large rocks for loach minnow. Please see the 
discussion under ``Substrates'' for both spikedace and loach minnow for 
additional information.
    (10) Comment: The statement within the proposed rule that 
``Flooding, as part of a natural hydrograph, temporarily removes 
nonnative fish species, which are not adapted to flooding'' is an over-
generalization. Minckley and Meffe (1987) concluded that nonnative 
fishes fared poorly in canyon reaches by noting that some nonnative 
species like green sunfish and smallmouth bass rebounded quickly from 
floods because they were stream-adapted. Flooding may also kill or 
displace native fishes. Some native fishes exhibit the potential to 
reproduce quickly after flooding, which could account for some of the 
effects reported by Minckley and Meffe (1987).
    Our response: We have adjusted the text to better reflect Minckley 
and Meffe (1987).
    (11) Comment: The most thriving populations of these fishes tend to 
be in flood blasted, warm, shallow, braided channel refugia and at 
places where vehicles splashed through streams, inside corrals (through 
which streams flowed), and in river channels within mine sites which 
are regularly bulldozed. The loach minnow is thriving on private land 
at a mine where heavy trucks cross the road several times a day, 
resulting in an area that is shallow and full of sediment.
    Our response: We disagree with this conclusion. While spikedace 
and/or loach minnow are sometimes found in association with low water 
crossings, and while flooding is an important component of habitat 
maintenance for these species, we are not aware of any locations where 
they occur in streams flowing through corrals or within mine sites 
which are regularly bulldozed. We currently have survey records dating 
from the late 1800s to the present for these species, as well as 
numerous studies that detail the habitat requirements for the species, 
all of which indicate that they occur in habitat different than that 
described by the commenter.
    (12) Comment: The Gila River is not critical habitat for the 
minnows because extreme flood waters may kill small fish. Small streams 
are better suited for small fish, because large fish will predate on 
the smaller fish.
    Our response: Please refer to the discussion on ``Flooding'' below 
under the PCE discussion for spikedace. As noted in that discussion, 
Minckley and

[[Page 13361]]

Meffe (1987, p. 99-100) studied the differential responses of native 
and nonnative fishes in seven unregulated and three regulated streams 
or stream reaches that were sampled before and after major flooding. 
They noted that fish faunas of canyon-bound reaches of unregulated 
streams invariably shifted from a mixture of native and nonnative fish 
species to predominantly, and in some cases exclusively, native forms 
after large floods.
    (13) Comment: One commenter notes that many of these minnows can be 
seen in the Gila River.
    Our response: While spikedace and loach minnow do occur in the Gila 
River, it is important to note that the ``minnows'' seen in the Gila 
River may or may not be spikedace or loach minnow. There are 
approximately 235 species of fishes that are within the minnow family, 
Cyprinidae, in North America (Bond 1979, p. 170). Spikedace and loach 
minnow are members of this family. Other small-bodied, native minnows 
which are more commonly found within the Gila River include longfin 
dace (Agosia chrysogaster) and speckled dace (Rhinichthys osculus). 
These fish, even as adults, can be confused with spikedace and loach 
minnow. There are several other species which are technically minnows 
and may be confused with spikedace and loach minnow when young. These 
include native roundtail chub (Gila robusta) and nonnative common carp 
(Cyrpinus carpio), goldfish (Carassius auratus), and fathead minnow 
(Pimephales promelas) (Lee et al. 1980, pp. 140-367).
    (14) Comment: Spikedace were last seen in the Verde River in 1999. 
They may already be extinct.
    Our response: Because the last record for spikedace on the Verde 
River was from 1999, this area still meets the 10-year occupancy 
criteria used in developing the critical habitat. We are also aware of 
gaps in the survey record in which spikedace were not found for greater 
than 10 years, but then reappeared. Surveys do not allow for 100 
percent detection of a species, particularly for species such as 
spikedace that are hard to detect.

General Comments Issue 2: Procedural and Legal Compliance

    (15) Comment: Several commenters requested a 60-day extension of 
the comment period, or indicated that two public hearings and the 
comment periods provided were inadequate to provide comment on the 
proposed rule, draft economic analysis, and the draft environmental 
assessment.
    Our response: We believe the three comment periods allowed for 
adequate opportunity for public comment. A total of 100 days was 
provided for document review and the public to submit comments.
    (16) Comment: Reintroduction of the spikedace and loach minnow to 
the Verde River will result in killing and poisoning of the non-native 
fish, leaving the public with a non-fishable river. The general public 
will be banned from setting foot or paddling on the river area or using 
the Verde River for recreation.
    Our response: The designation of critical habitat does not entail 
reintroduction efforts of spikedace or loach minnow. In addition, 
designation of critical habitat does not set up wildlife refuges or 
preserves, or require the exclusion of all other uses. Critical habitat 
was designated previously on the Verde River for spikedace and loach 
minnow from 2000 to 2004, during which time recreation and use of this 
area by the public continued.
    (17) Comment: The Service appears inconsistent in their critical 
habitat designations in terms of the lateral extent of the critical 
habitat designation. There is no reference for best scientific evidence 
in the determination of 300 ft (91.4 m) as lateral extent. Prior 
rulings for razorback sucker, Colorado pikeminnow, humpback chub, and 
bonytail chub define the lateral extent of critical habitat as the 100-
year floodplain where PCEs occur, with the caveat that potential areas 
of critical habitat should be evaluated on a case by case basis. The 
final ruling for woundfin and Virgin River chub use the 100-year 
floodplain.
    Our response: 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 designated as critical habitat, 
possibly due to the remoteness of various stream reaches. Therefore, we 
selected the 300-foot lateral extent, rather than some other 
delineation, for three 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 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 ``Lateral 
Extent'' below for more information. In addition, in more recent rules 
we have used the 300 ft (91.4 m) width to define the lateral extent of 
critical habitat for the Rio Grande silvery minnow (February 19, 2003; 
68 FR 8088), the Gila chub (November 2, 2005; 70 FR 66664), and the 
Arkansas River shiner (October 13, 2005; 70 FR 59808).
    (18) Comment: A designation of 300 ft (91.4 m) may impact roads or 
facilities. Roads or facilities impacted by flooding may require 
periodic maintenance. Additionally, if a river shifts in response to 
flooding, critical habitat would have to shift and potentially affect 
the rebuilding of diversion structures. The proposed rule does not 
address what happens when a river channel moves.
    Our response: Prior critical habitat designations for spikedace and 
loach minnow from 2000 to 2004 did not prevent maintenance or 
rebuilding of structures damaged by flooding nor will this final 
designation. Where critical habitat is designated, activities funded, 
authorized, or carried out in these areas by Federal action agencies 
that may affect the PCEs of the critical habitat, may require 
consultation pursuant to section 7 of the Act. The purpose of the 
consultation is not to stop activities from occurring, but to ensure 
that such activities do not result in jeopardy to listed species or 
adverse modification of critical habitat. When determining final 
critical habitat map boundaries, we made every effort to avoid 
including developed areas such as buildings, paved areas, and other 
structures that lack any PCEs for the spikedace and loach minnow. Any 
such structures and the land under them inadvertently left inside 
critical habitat boundaries of this final rule are excluded by text and 
are not designated as critical habitat. Specifically, lands located 
within the boundaries of the critical habitat designation, but that do 
not contain any of the PCEs essential to the conservation of the 
spikedace and loach minnow

[[Page 13362]]

include: Existing paved roads; bridges; parking lots; railroad tracks; 
railroad trestles; water diversion and irrigation canals outside 
natural stream channels; active sand and gravel pits; regularly 
cultivated agricultural land; and residential, commercial, and 
industrial developments.
    Critical habitat includes the area of bankfull width plus 300 ft 
(91.4 m) on either side of the banks. Should the active channel meander 
or shift we anticipate that it would still be contained within the 300 
foot (91.4 m) lateral extent of the designation (i.e. our current 
critical habitat boundary); thus we do not find that critical habitat 
will shift as a result.
    (19) Comment: The 300 ft (91.4 m) lateral extent likely represents 
an expansion of critical habitat to areas that are not necessarily 
riparian habitat, particularly on small streams.
    Our response: Although the spikedace and loach minnow cannot be 
found in the riparian areas when they are dry, these areas are 
periodically flooded and provide habitat during high-water periods. 
These areas also contribute to PCEs 1 and 2 and contain PCEs 3 and 5. 
As noted in response to 18 above, vegetated lateral zones are widely 
recognized as providing a variety of 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.
    (20) Comment: The 300 ft (91.4 m) designation needs additional 
defining. It is unclear if it is to be measured up to the slope of the 
bank or horizontally on a map. In many reaches of the specific rivers 
and streams in the designation, the flowing channels are confined 
within narrow canyon bottoms, and a 300 ft (91.4 m) buffer in some 
cases extends several hundred feet vertically up the side of the 
canyon. In addition, bankfull width, while scientifically valid and 
useful, may be hard to determine in the field.
    Our response: Critical habitat includes the area of bankfull width 
plus 300 ft (91.4 m) on either side of the banks, except where bordered 
by a canyon wall. Since a canyon wall is not defined as a PCE for the 
spikedace and loach minnow it would not be considered critical habitat. 
The 300 foot lateral extent is not for the purpose of creating a 
``buffer zone.'' Rather, it defines the lateral extent of those areas 
we have determined contain or contribute to the features (PCEs 3 and 5) 
that are essential to the conservation of these species (e.g., water 
quality, food source, etc.).
    (21) Comment: The Service is inconsistent in its treatment of, and 
fails to properly analyze the impacts of, groundwater wells and other 
potential detrimental activities that are located outside the 300 ft 
(91.4 m) lateral extent of critical habitat.
    Our response: Activities funded, authorized, or carried out by 
Federal action agencies that may affect the PCEs of the critical 
habitat, may require consultation pursuant to section 7 of the Act. 
Thus, groundwater pumping activities may require consultation pursuant 
to section 7 of the Act if the action agency determines that the 
activity may affect the PCEs for the spikedace or loach minnow, 
regardless of whether the activity is occurring within or outside the 
critical habitat designation.
    (22) Comment: The Service should designate the areas within the 
active floodplain that are necessary to support the PCEs of spikedace 
and loach minnow critical habitat for the recovery of the species, as 
demonstrated by the best available science. We suggest that the Service 
look at hydrogeomorphic and biological features to determine the width 
along each segment where the PCEs are likely to exist. Such information 
may include specific return intervals (5-, 10-, 50-year events), 
floodplain features (ordinary high water mark), or floodplain 
vegetation as indicators of important habitat, which can be mapped in 
the field along with bankfull flow width.
    Our response: As noted in our response to comment 17 above, we do 
not have this type of information available to us and thus we selected 
the 300 ft (91.4 m) lateral extent as the best available science to map 
the areas that contain or contribute to the features that are essential 
to the conservation of these species.
    (23) Comment: The best scientific information currently available 
recognizes that for most native fish species, conservation cannot be 
achieved without eliminating or greatly suppressing nonnative fishes 
(Clarkson et al. 2005). The common nonnative fish occupying the same or 
overlapping geographic areas with spikedace and loach minnow are known 
to compete with or prey on all life stages of native fish (Pacey and 
Marsh 1998). Thus, where nonnative fishes have high abundance, and 
where there is limited opportunity or ability for the Service to manage 
these nonnative species due to physical constraints of the river system 
or political/social constraints, these segments are unlikely to provide 
important habitat for any of the spikedace and loach minnow life stages 
regardless of the condition of other PCEs. Nonnatives are especially a 
problem for the San Francisco River, Gila River, and Eagle Creek.
    Our response: Critical habitat designation is not the process 
through which we rule out habitat suitability due to threats, but the 
process through which we identify habitat that provides for one or more 
of the life history functions of the species. As defined in section 
3(5)(A) of the Act, critical habitat means ``(i) the specific areas 
within the geographical area occupied by the species, at the time it is 
listed in accordance with the provisions of section 4 of the Act, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protection.'' During the designation 
process, the Service identifies threats to the best of our ability 
where they exist. Identification of a threat within an area does not 
mean that that area is no longer suitable, rather that special 
management or protections may be required. If an area contains 
sufficient PCEs to provide for one or more of the life history 
functions of spikedace or loach minnow, and if it was occupied at the 
time the species was listed and is currently occupied, it is reasonable 
to include it within a proposed critical habitat designation. The need 
to address a particular threat, such as nonnative fishes, in a portion 
of the critical habitat designation may or may not arise in the future. 
Further, describing both the areas which support PCEs and the threats 
to those areas assists resource managers in their conservation planning 
efforts for threatened and endangered species like spikedace and loach 
minnow.
    (24) Comment: Absent clear scientific evidence that intermittent 
stream reaches are used by spikedace or loach minnow to move between 
occupied habitats, and are critical to their recovery, the fifth PCE 
should not be included as part of the final designation.
    Our response: It was not our intent to imply that spikedace or 
loach minnow occupy intermittent reaches when water is not present. We 
included interconnected waters because spikedace and loach minnow have 
the ability to move between populated, wetted areas, at least during 
certain flow regimes or seasons. Because streams provide continuous 
habitat when connected, and because fish are mobile, it is reasonable 
to conclude that intermittent areas, when wetted, may be used during 
fish movement. In addition, some complexes include stream reaches that 
play a role in the overall health of

[[Page 13363]]

the aquatic ecosystem, and therefore, the integrity of upstream and 
downstream spikedace and loach minnow habitat. Again, because stream 
habitat is continuous, actions taking place in an intermittent portion 
of the channel can have effects in upstream and downstream areas. 
Inclusion of these intervening areas assures protection of adjacent, 
perennial reaches.
    (25) Comment: There is no record or document that summarizes or 
describes in detail the PCE conditions that the Service used as a 
decision-making tool to select reaches.
    Our response: As stated under the ``Critical Habitat'' subheading 
in the final rule, the areas included within the proposed critical 
habitat designation are based not only on PCE conditions, but also on 
whether or not an area was occupied at listing and may require special 
management considerations or protections. There is no single record or 
document that summarizes this information. Instead, the Service looked 
at various databases and survey records to determine occupancy, as well 
as habitat descriptions at various locations. We relied on information 
provided in survey reports and research documents to describe 
conditions at various locations. This information was then synthesized 
to develop the proposed critical habitat designation.
    (26) Comment: As a final step before the issuance of the proposed 
rule, the Service should have ranked the suitable habitat to determine 
which areas possess the highest quality of PCEs. Based on this ranking, 
the Service would then have published the proposed rule designating the 
portions of suitable habitat needed to achieve recovery goals. The 
proposed rule would have also described areas of suitable habitat 
identified by the Service but not included in the proposed rule.
    Our response: The regulations governing critical habitat 
designations do not require ranking of suitable habitat. With species 
such as spikedace and loach minnow, whose current distribution is 
severely reduced compared to historical distribution, determining the 
highest quality of PCEs is not a useful tool in developing a 
recommendation, and inclusion of only the highest ranking areas would 
not be sufficient for recovery of these species. The Service has 
developed a rule set that we have determined identifies those areas to 
be included as final critical habitat. We have coupled that rule set 
with the best scientific and commercial information available regarding 
species distribution, habitat parameters, and life history, and have 
included those areas within the designation.
    (27) Comment: The preamble articulates the following important 
concept: ``Where a subset of PCEs are present (e.g., water temperature 
during spawning), only those PCEs present at designation will be 
protected.'' This concept should be reflected in the rule language 
itself. The proposal is not always clear as to what PCEs are present in 
each stretch of river. For example, with respect to the 39 mile stretch 
of the Gila River included in the proposal, the preamble states only 
that it contains ``one or more'' of four PCEs. This creates uncertainty 
about what PCEs are present in which segments, which could in turn 
cause difficulties in future section 7 consultations regarding possible 
adverse effects on critical habitat.
    Our response: Within the discussion immediately following Table 1, 
PCEs are described for each complex. For example, for the 39 mile 
stretch of the Gila River addressed in this comment, the proposed rule 
states that ``Those portions of the Gila River proposed for designation 
contain one or more of the PCEs, including sufficient flow velocities 
and appropriate gradients, substrates, depths, and habitat types (i.e., 
pools, riffles).'' This information should be useful in future section 
7 consultations.
    (28) Comment: Page 75556 of the proposed rule states ``Where a 
subset of the PCEs are present (e.g., water temperature during 
spawning), only those PCEs present at the time of designation will be 
protected.'' Implementation of this misguided approach negates the 
conservation value of the critical habitat designation because lack of 
perennial water, appropriate stream habitat, or high abundance of 
predatory nonnative fish precludes the survival or recovery of 
spikedace or loach minnow. We believe the Service needs to fully 
consider the implication of this language in the Proposed Rule, and 
reevaluate the proposed reaches in light of the need to contain all 
PCEs at the time of designation, especially those reaches that contain 
high numbers of nonnative fish species.
    Our response: Stream complexes as part of this final rule making 
were designated based on sufficient PCEs being present to support 
spikedace and loach minnow life processes. Some complexes contain all 
PCEs and support multiple life processes. Some segments contain only a 
portion of the PCEs necessary to support the spikedace and loach 
minnow's particular use of that habitat. Where a subset of the PCEs are 
present (such as water temperature during migration flows), it has been 
noted that only PCEs present at designation will be protected.
    (29) Comment: With respect to the PCEs, an additional quantitative 
value that should be measured is the large wood present in a system.
    Our response: We agree that large wood is an important factor to 
analyze in assessing riparian ecosystem health; however, we are not 
aware of any data at this time that illustrates what amount of large 
woody debris within a system would constitute ideal conditions for 
spikedace and loach minnow. Should such information be developed in the 
future, it would be another useful factor in evaluating river system 
health and habitat suitability for spikedace and loach minnow.
    (30) Comment: Flow velocity values should be in feet per second, 
which is a more appropriate field estimate and ensures greater accuracy 
between readings and reader. These values can also be better correlated 
with historical and stream gauge data.
    Our response: While it may be more useful to report flow velocity 
values in feet per second, it is our practice to use values and units 
of measurement as they were reported by the author of the research 
summarized.
    (31) Microhabitat flows are highly related to habitat complexity. 
Though it is appropriate to define these flows, there should be more 
emphasis on habitat complexity and the functions needed to create it 
such as floodplain interaction, riparian condition, and large wood 
recruitment.
    Our response: We believe the final rule accomplishes both of these 
objectives. We have chosen to consider overall riparian health, as well 
as floodplain interaction and stream health, by including riparian 
vegetation and floodplain areas within the critical habitat 
designation, as encompassed by the 300 foot lateral zone. In addition, 
we have attempted to define key components of occupied habitat, as 
defined in the PCEs. One of those components relates to flow 
velocities. We have incorporated the information we have relevant to 
spikedace and loach minnow within the rule.
    (32) Comment: Because microhabitat is variable and transient, 
gradient values should be more generalized and at the geomorphic reach 
level.
    Our response: We are required to use the best scientific and 
commercial information available. At this time, no assessment of 
gradient values at a geomorphic reach level has been completed for 
occupied or suitable spikedace and loach minnow habitat.

[[Page 13364]]

    (33) Comment: In evaluating riparian habitat, there should be two 
or more native, riparian-obligate woody species and two or more 
riparian-obligate herbaceous species present and vigorous (Winward 
2000). In terms of species diversity, all four age classes of native, 
riparian-obligate woody species must be present and vigorous. These 
classes are seedling/sprout, young/sapling, mature/decadent, and dead 
(Winward 2000).
    Our response: We agree that a diversity of composition leads to 
healthier riparian habitat; however, we do not have sufficient 
information of this type tied to occupied spikedace and loach minnow 
critical habitat to use in developing an individual PCE. The individual 
PCEs represent the actual physical and biological parameters of habitat 
used by the fish.
    (34) Comment: Conflicting comments were received on the temperature 
ranges listed within the PCEs for spikedace and loach minnow. In 
summary, we received comments that the PCE temperature range is broader 
(35 to 85 [deg]F) than the literature indicates (48.2 and 71.6 [deg]F), 
with the potential net effect being an extension of stream reaches both 
upstream and downstream from areas actually likely to support the 
species. A second commenter noted that the Bonar et al. (2005) study 
found 100 percent survival of loach minnow at 28 [deg]C (82 [deg]F) and 
100 percent survival of spikedace at 30 [deg]C (86 [deg]F) corresponded 
quite well with upper limits in the proposed rule PCEs. A third 
commenter noted that appropriate values should be a maximum seven day 
average.
    Our response: We have reviewed the study completed by the 
University of Arizona (Bonar et al. 2005) and incorporated its findings 
into discussions of temperature tolerances within the final rule. The 
PCEs serve as guidelines to resource managers in evaluating the 
suitability of areas for spikedace and loach minnow. Temperature ranges 
provided are based on the studies completed at various occupied 
locations, and adequately represent the habitat most suitable for 
spikedace and loach minnow. In most instances, resource managers do not 
have the ability to develop seven day averages. With respect to 
broadening the range of the species by incorporating too wide a range 
of suitable temperatures, we note that we are using the Act's standard 
of best available scientific information, and should temperatures at 
these sites be found at the high point of the range provided in this 
PCE, it would already be within an area occupied by the species, so the 
species' range would not be broadened.
    (35) Comment: Water depths of 1 to 30 inches are specified as a PCE 
for adult, juvenile, and larval loach minnow. No data or references are 
cited to support any specific range of depths. Additionally, pools 
aren't appropriate for spikedace and loach minnow, but are suitable for 
predatory non-natives that are significantly detrimental.
    Our response: Water depths are known for all occupied spikedace and 
loach minnow sites, as discussed below. Therefore, the range described 
in the PCEs reflects the range considered to provide suitable habitat 
for these fishes by biologists familiar with the species.
    Spikedace and loach minnow are less likely to use pool habitat than 
other types of habitat, however, Sublette et al. (1990, p. 138) and 
Propst et al. (1986, p. 40) note that spikedace juveniles and larvae 
are occasionally found in quiet pools or backwaters lacking streamflow 
(Sublette et al. 1990, p. 138). Barber et al. (1970, pp. 11-12) also 
noted that female spikedace occupy deeper pools and eddies during 
portions of the breeding season. In addition, Schreiber (1978, pp. 40-
41) found that the availability of pool and run habitats affects 
availability of prey species consumed by loach minnow.
    (36) Comment: Virtually any perennial stream above 3,000 feet 
elevation in Arizona displays the characteristics cited by the Service 
in its PCEs and thus they are not particularly helpful in identifying 
the areas necessary for the conservation of the spikedace and loach 
minnow.
    Our response: The PCEs are based on the range of criteria developed 
following review of research conducted at occupied spikedace and loach 
minnow sites. Use of the PCEs alone may result in the inclusion of most 
streams above 3,000 feet in elevation. However, coupled with occupancy 
information and the geographic range of the species, we are able to 
identify final critical habitat for the spikedace and loach minnow.
    (37) Comment: Flood magnitude and frequency deserve careful 
consideration and incorporation as part of a ``flood frequency and 
magnitude'' PCE. The Service has failed to include important hydrologic 
features in the analysis of current habitat for spikedace and loach 
minnow.
    Our response: We agree that flooding is a key process in 
maintaining suitable habitat components for spikedace and loach minnow, 
and have addressed this in PCE 2. A PCE focused strictly on flooding 
would be difficult to define, as there is considerable variability in 
the flood magnitude and frequency of different systems. More 
importantly, flooding itself would be inappropriate as a PCE as 
flooding is a process that maintains the necessary components of 
occupied habitat, whereas PCEs are the features essential to the 
conservation of the species. We determine those physical and biological 
features that are essential to the conservation of a given species and 
that may require special management considerations or protection, 
rather than looking at the processes that aid in developing those 
features 50 CFR 424.12(b).
    (38) Comment: Although the five PCEs appear to be generally 
correct, they are describing fine-grained characteristics applicable to 
a square-meter by square-meter assessment. Only two PCEs are coarse-
grained; (1) reaches devoid of nonnative fish, and (2) stream reaches 
that flow sporadically and provide connective corridors between 
occupied and seasonally occupied reaches. The other PCEs are focused on 
the biological requirements for individual fish, rather than the 
population or the species to which it belongs.
    Our response: We disagree with the commenter on this point. It is 
true that the PCEs focus on the biological needs of the individual 
fish, but collectively, the biological needs of the fish represent the 
biological needs of the species. As previously noted, critical habitat, 
as stated in the Act, is defined as ``* * * specific areas * * * on 
which are found the physical or biological features (I) essential to 
the conservation of the species * * *.'' The Service has determined 
that the PCEs, as defined by studies in occupied areas, define the 
features essential to the conservation of the species.
    (39) Comment: We request exclusion of all areas within roadway 
right-of-ways or easement limits because section 7 is required in these 
areas for projects affecting threatened and endangered species. 
Designation within right-of-ways would have no additional benefit.
    Our response: Developed lands, including roadway right-of-ways, do 
not contain the PCEs essential to the conservation of the spikedace and 
loach minnow. Federal action agencies are only required to consult on 
activities they authorize, fund, or carry out that may affect the 
physical or biological features determined in this rule to be essential 
to conservation of these fish. See also response to comment 18 above.
    (40) Comment: The Bureau of Reclamation lands are on the lower San 
Pedro River and not the Gila River. This mistake is also continued in 
the regulation promulgation section.
    Our response: According to GIS landownership layers from the 
Arizona

[[Page 13365]]

Land Resource Information System of the Arizona State Land Department, 
the Bureau of Reclamation lands referenced by the commenter are on the 
Gila River beginning at Township 4 South, Range 13 West, section 3.
    (41) Comment: The critical habitat designation allows for 
exclusions when special management considerations are not required 
based on management plans. This policy should allow for land management 
agencies to adopt species management plans.
    Our response: In this final rule, our exclusion of areas covered by 
management plans was made pursuant to section 4(b)(2) of the Act, where 
we determined that the benefits of exclusion outweighed the benefits of 
inclusion. These determinations were not hindered by landownership.
    (42) Ten years is insufficient to determine presence or absence of 
spikedace and loach minnow given the elusiveness of the species, the 
difficulty of obtaining a thorough sampling of remote streams with 
difficult access, and the low efficiency of sampling techniques. There 
is greater biological support to use a period of 20 to 40 years as the 
standard for determining ``occupancy.''
    Our response: We believe a period of 10 years is reasonable to 
determine occupancy based on the fact that both species are difficult 
to detect in surveys, surveys have been infrequent or inconsistent 
because many of the areas where they occur are remote, and we have 
areas where these species were not detected for long periods of time 
(44 years) and then detected again. Specifically, the methodology used 
considers a stream segment occupied if the spikedace or loach minnow 
has been detected in the last 10 years or if the stream segment is 
connected to a stream segment with spikedace or loach minnow records 
within the last 10 years. For example, we consider the lower San Pedro 
River and the Gila River ``occupied'' due to their connections with 
Aravaipa Creek, an area where we have documented records of these fish 
from within the last 10 years. We have determined our methodology is 
reasonable to determine areas that meet the definition of critical 
habitat.
    (43) Comment: With respect to occupancy, we do question the 
assumption that all stream segments with a ``direct connection'' to 
occupied areas are themselves occupied. There is little scientific 
basis for this assumption.
    Our response: The language within the rule states ``We consider an 
area to be occupied by the spikedace or loach minnow if we have records 
to support occupancy within the last 10 years, or where the stream 
segment is directly connected to a segment with occupancy records from 
within the last 10 years.'' While we do not have occupancy records for 
these connected areas within the last 10 years, we believe it is 
reasonable to consider these connected areas to be occupied for the 
purposes of critical habitat as they are part of a larger contiguous 
complex with documented occupancy within the last 10 years. We consider 
it reasonable because of the elusiveness of the species, the difficulty 
of obtaining a thorough sampling of remote streams with difficult 
access, and the low efficiency of sampling techniques.
    (44) Comment: The North Fork of the White River and the mainstem 
White River downstream of the confluence of the North and East Forks 
should be included in the designation. Records of loach minnow within 
the last 10 years exist for both streams.
    Our response: These stream segments occur on Tribal lands and we 
have no information available to us to conclude that these areas meet 
the definition of critical habitat for the loach minnow. Please see 
``Relationship of Critical Habitat to Tribal Lands'' below for 
additional discussion of Tribal management plan and protections that 
exist for these fish on those lands.
    (45) Comment: The Service should use wording similar to that used 
in the 2000 critical habitat designation which states ``We have 
determined the primary constituent elements essential to the 
conservation of spikedace include, but are not limited to * * *.'' This 
provides for inclusion of new scientific information without the need 
for cumbersome and expensive reproposal of critical habitat.
    Our response: We have determined the revised language provides more 
specifics and certainty about the PCEs, and any revisions to a 
regulation as a result of new information may only be made through a 
new rulemaking process.
    (46) Comment: The proposed rule incorrectly paraphrases the 
regulatory definition of destruction or adverse modification of 
critical habitat. The paraphrased definition limits analysis of 
destruction or adverse modification to ``those physical or biological 
features that were the basis for determining the habitat to be 
critical'', a limitation not found in the regulatory definition. 
Instead, the regulatory definition directly addresses effects to the 
critical habitat rather than a surrogate. The paraphrased definition 
also omits the regulatory definition's inclusion of diminution of the 
values of ``both the survival and recovery of a listed species.''
    Our response: The Service no longer relies on the regulatory 
definition of adverse modification of critical habitat. Instead the 
Service relies on the statutory provision of the Act to complete the 
analysis on critical habitat. Please see ``General Principles of 
Section 7 Consultations Used in the 4(b)(2) Balancing Process'' below 
for additional information.
    (47) Comment: There is no ``sufficiently unregulated hydrograph'' 
on the Gila River below its confluence with the San Pedro River. We do 
not believe the PCEs identified by the Service in the proposal are 
present in this stretch. This section of the Gila River (below the San 
Pedro) should be removed from the critical habitat designation.
    Our response: While it may not contain all of the PCEs, we have 
determined it currently supports one or more of them (i.e., low 
gradient, appropriate water temperatures, and pool, riffle, run, and 
backwater components), and because of this and its proximity to 
occupied areas, it remains in the designation.
    (48) Comment: We dispute the claim that spikedace occupancy of the 
Verde River was confirmed as recently as 1999. No spikedace have been 
confirmed from the Verde River since at least 1995. Thus, the Verde 
River does not meet the Service's own criteria for critical habitat 
because there are no records within the last 10 years.
    Our response: The 1999 record is considered by the Service as a 
confirmed record. The spikedace in question was captured and identified 
by a qualified AGFD fisheries biologist (AGFD 2004).
    (49) Comment: The large amount of privately owned land that is 
included in the proposal is too great of a restriction of use.
    Our response: Critical habitat does not affect private actions on 
private lands. A designation of critical habitat requires that Federal 
action agencies consult with the Service on activities that they fund, 
authorize, or carry out that may affect critical habitat. We note that 
the designated 105 mi (170 km) for spikedace and the 126 mi (203 km) 
for loach minnow of private lands is part of, not in addition to, the 
total 522 mi (840 km).
    (50) Comment: The adverse impacts of critical habitat on non-
Federal rights and interests were exacerbated under Gifford Pinchot, 
which increases the impact of a critical habitat designation on water 
and land uses by creating a heightened standard for the

[[Page 13366]]

``destruction or adverse modification'' of critical habitat. More 
activities that require a Federal permit or other approval will violate 
section 7(a)(2) of the Act and will require formal consultation. When 
combined with the Service's use of section 7(a)(2) to ``Federalize'' 
and control non-Federal projects, Gifford Pinchot will dramatically 
increase the economic impacts caused by the critical habitat 
designation.
    Our response: We recognize that under the Gifford Pinchot decision, 
critical habitat designations may provide greater benefits to the 
recovery of a species. This relates to the court's ruling that the two 
standards (e.g. jeopardy and adverse modification) are distinct and 
that adverse modification evaluations require consideration of impacts 
on the recovery of species. As such, where appropriate, we analyze or 
consider the effects of the Gifford Pinchot decision in this rule, the 
economic analysis, and the environmental assessment. For example, in 
light of the uncertainty concerning the regulatory definition of 
adverse modification, our current methodological approach to conducting 
economic analyses of our critical habitat designations is to consider 
all conservation-related costs. This approach would include costs 
related to sections 4, 7, 9, and 10 of the Act, and should encompass 
costs that would be considered and evaluated in light of the Gifford 
Pinchot ruling. Additionally, in this critical habitat designation, we 
are designating areas that are occupied, as defined elsewhere in this 
rule, by one or both species; thus, there is already a requirement for 
consultation with the Service over any water and land use actions that 
may affect these species. The purpose of the consultation process is 
not to ``Federalize'' private projects, but to ensure that federally-
sponsored activities do not jeopardize listed species or adversely 
modify or destroy designated critical habitat.
    (51) Comment: The Gila Settlement and associated agreements allow 
the State of New Mexico to divert for consumptive use 14,000 acre feet 
of water originally set aside under the Central Arizona Project 
authorizing legislation. The diversion of this additional 14,000 acre-
feet of water almost doubles current adjudicated withdrawal from the 
Gila and San Francisco rivers and could significantly impair river 
function and riparian conditions and threaten native species such as 
the loach minnow and spikedace.
    Our response: The Service is an active partner on the Gila and San 
Francisco Rivers Technical Subcommittee, which is evaluating the 
environmental impacts of these water diversions from the upper Gila and 
San Francisco rivers. Considerations for spikedace and loach minnow are 
prominent in those discussions. We have identified water diversions as 
a threat for spikedace and loach minnow within this complex.
    (52) Comment: The Upper Eagle Creek Watershed Association has 
developed a watershed plan in collaboration with the Forest Service and 
the Arizona Department of Environmental Quality. This plan has 
addressed the loach minnow and spikedace as endangered fish that may 
occupy areas covered by the plan. The plan guides the community, 
permittees, and agencies in developing the Upper Eagle Creek Watershed 
into its greatest potential for all species. On the basis of this plan 
and the partnership with the people on the land with all agencies, it 
would be best to exclude Eagle Creek from the critical habitat 
designation.
    Our response: We appreciate the efforts the Upper Eagle Creek 
Watershed Association has taken to work collaboratively with the Forest 
Service, cooperators, and the Service. Unfortunately, the Upper Eagle 
Creek Watershed Management Plan was received on the last day of the 
third comment period, and was still in draft form. For these reasons, 
we are not able to consider the plan as a basis for excluding Eagle 
Creek at this time. We understand it is the intention of the 
Association to finalize and implement the plan, and we look forward to 
working cooperatively with the Association in these efforts. Once the 
plan has been finalized and implemented, we have the option of 
excluding those portions of Eagle Creek covered by the plan. As 
discussed in ``Exclusions under Section 4(b)(2) of the Act'' below, we 
have excluded other portions of Eagle Creek from critical habitat based 
on other information available to us.
    (53) Comment: The Blue River should be excluded from critical 
habitat in order to ensure that the ongoing coordination between the 
Service and the Blue River Native Fisheries, Research and Education 
Center is unencumbered.
    Our response: At this time we have no documentation, such as a 
management plan, to evaluate in terms of a potential exclusion of the 
Blue River from the critical habitat designation. Additionally, the 
majority of property along the Blue River is under Forest Service 
management and management activities for the conservation of the 
spikedace and loach minnow would require coordination with the Forest 
Service. We fully intend to continue our ongoing coordination with the 
Blue River Native Fisheries, Research and Education Center. The 
designation of critical habitat is a separate process which will not 
hinder these efforts and we commend the Center for their interest in 
conserving the Blue River.
    (54) Comment: The Service should remove the Middle Verde River from 
the final rule and retain the Upper Verde River segment as critical 
habitat based on: (1) The current biological conditions within each 
river segment to conserve the spikedace; (2) the existing physical 
barrier (i.e., Allen Ditch Diversion) between the Upper and Middle 
Verde River, which likely precludes movement and connectivity between 
reaches; (3) the prevailing technical feasibility and fisheries 
management emphasis of each river segment; and (4) the high potential 
economic burden to groundwater and surface water users in the Middle 
Verde River (i.e., Verde Valley) compared to the Upper Verde River.
    Our response: Pursuant to section 4(b)(2) of the Act we have 
excluded the lower portion of the Verde River based on economic costs. 
See exclusion discussion below.
    (55) Comment: One of the requirements of critical habitat is that 
these areas should be ``protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species (50 CFR Sec.  424.12(b)(1)-(5); 70 FR 75551; 
December 20, 2005).'' In other words, if suitable locations are 
available elsewhere, it does not make sense to designate critical 
habitat along stream reaches that are already impacted by land or water 
use activities or will soon be impacted by those activities. The 
Service applied this criterion in some places (e.g., the upper San 
Pedro River, p. 75546) and portions of the Black River complex (p. 
75560) that were found to have too high an abundance of nonnative fish 
to be important habitat), but did not apply it in others (i.e., middle 
Verde River, Gila River, and lower San Pedro River). The Service should 
apply this criteria and standards consistently to evaluate each PCE 
among all potentially suitable habitats in a transparent process.
    Our response: We do not agree that critical habitat should not be 
designated in areas that have experienced some level of impact to the 
habitat. As previously stated, designation of critical habitat focuses 
on the areas that contain the PCEs and provide for the conservation of 
the species, rather than the threats that may be present in an area. 
Thus, our methodology focuses on

[[Page 13367]]

occupied areas that contain the PCEs and not on the type or level of 
threat that occur in these areas. In addition, we note that we have 
limited suitable habitat remaining for these species such that 
additional suitable locations are not available elsewhere. See also our 
response to comment 58 below.
    (56) Comment: Bear Creek should be designated as loach minnow 
critical habitat from its junction with the Gila River upstream to the 
junction with its tributaries Cherry Creek and Little Cherry Creek.
    Our response: As noted in the notice to reopen the comment period 
published on June 6, 2006 (71 FR 32498, p. 32496), we did not propose 
Bear Creek because of the timeframe for completion of the final rule 
and associated documents. Information on occupancy of Bear Creek was 
received late in the process. Should critical habitat be revised in the 
future, Bear Creek would be considered for inclusion.
    (57) Comment: Due to seasonal lack of water flows, Eagle Creek is 
unsuitable habitat for designation below the Gila and Salt River base 
line to the confluence with Willow Creek. Additionally, from Willow 
Creek to the Phelps Dodge diversion dam, flows are augmented to provide 
fresh water for mining operations and for potable use at the Morenci 
and Clifton townsites. This portion of Eagle Creek does not qualify for 
designation because: (1) These augmented flows do not provide a 
natural, unregulated hydrograph that allow for adequate river 
functions; (2) flow velocities are frequently higher than those 
required for these native fish; (3) pool, riffle, run, and backwater 
components are not present; and (4) non-native fish dominate this reach 
to an extent detrimental to natives and prevents the persistence or 
even occupancy of loach minnow or spikedace.
    Our response: We do not agree with this comment. While this portion 
of Eagle Creek has been modified by both addition of flows and by the 
diversion structure, suitable habitat still exists. As stated 
previously, we consider those areas that meet our definition of 
occupancy and support one or more of the PCEs as areas the meet the 
definition of critical habitat. Eagle Creek met these criteria. As 
discussed below, we have excluded portions of Eagle Creek pursuant to 
section 4(b)(2) of the Act.
    (58) Comment: Areas without threats such as the San Francisco and 
the middle reach of the mainstem Gila River do not require special 
management considerations or protection and thus can not be designated 
as critical habitat under the Act. The critical habitat designation 
will not protect the loach minnow from the threat of nonnatives and 
therefore special management is not required.
    Our response: The Act does not require that critical habitat 
alleviate threats to the species. We have determined that various 
threats are present in all the rivers we proposed as critical habitat, 
as identified in Table 1. As required by the Act and the definition of 
critical habitat, we provide a discussion of known threats for each 
area to indicate that the biological and physical features essential to 
the conservation for these fish may require special management 
considerations or protection.
    (59) Comment: Habitat requirements for both of the species are 
different and the Service should recognize this and not combine them.
    Our response: We agree that there are differences in the habitat 
requirements of both species and we have distinguished this in our PCEs 
for each of the fish. We note that it is not unusual for streams to 
support habitat types for both the spikedace and loach minnow, often 
within the same reach, and some streams are occupied by both species 
(e.g., the Gila River and Aravaipa Creek).
    (60) Comment: The proposed rule states that ``individual streams 
are not isolated, but are connected with others to form areas or 
complexes.'' This statement does not hold true for Complex 4. Eagle 
Creek is currently isolated from the San Francisco and Blue River 
complexes by a diversion dam. The Blue River will become inaccessible 
to upstream migration from the rest of the complex if a proposed fish 
barrier is constructed on the Blue River.
    Our response: We have clarified the language in this final rule to 
indicate that collections of streams in proximity to each other were 
grouped together to form a category called ``complexes.'' Streams need 
not be hydrologically connected in order to be grouped together.
    (61) Comment: No spikedace have been observed in Eagle Creek for 17 
years, thus the segment does not meet the criteria for occupancy.
    Our response: We agree, as the last record for spikedace in Eagle 
Creek was in 1989. Thus, critical habitat for spikedace in Eagle Creek 
has been removed from the final rule. However, Eagle Creek is 
considered critical habitat for the loach minnow. As discussed in the 
exclusion section below, portions of Eagle Creek have been excluded 
from the final rule.
    (62) Comment: For spikedace, the Verde River from Tapco Diversion 
Dam down to Fossil Creek should be excluded. Although spikedace were 
found in 1999 in areas upstream, they have not been found downstream of 
the Sycamore Creek confluence in over 20 years. Although this area is 
connected to the occupied areas upstream, the Tapco Dam and numerous 
nonnative fishes occupy this reach and may serve to disconnect it from 
the upstream areas.
    Our response: We believe the Verde River meets the definition of 
critical habitat for spikedace as we consider this area occupied based 
on occupancy records from 1999. Additionally, the Verde contains one or 
more of the PCEs including appropriate flow velocities, gradients, 
temperatures, habitat components (pool, riffle, run and backwater), and 
an abundant aquatic insect food base, and it requires special 
management or protection. However, pursuant to section 4(b)(2) of the 
Act, we have excluded the lower portion of the Verde River (see 
``Exclusions under Section 4(b)(2) of the Act'' below).
    (63) Comment: Regarding definition of adverse modification, the 
Service's definition erroneously eliminates congressional intent that 
critical habitat designations provide protection not just to survival 
of a species but to its recovery as well. It was the opinion of the 
court that ``the purpose of establishing `critical habitat' is for 
government to carve out territory that is not only necessary for the 
species' survival but also important for the species' recovery.'' 
(Sierra Club v. USFWS, 245 F.3d 434 (5th Cir. 2001). The proposed rule 
for spikedace and loach minnow rejects that approach and relies on 
Service policy limiting critical habitat to only those areas occupied 
by the species.
    Our response: The Act states, at section 3(5)(c), that except in 
particular circumstances determined by the Secretary, critical habitat 
shall not include the entire geographical area which can be occupied by 
the threatened or endangered species. Thus, it is not the intent of the 
Act that we designate critical habitat in all areas that have the 
potential to become suitable habitat or in all areas of historic 
habitat. We have determined that our methodology for determining those 
areas containing features essential to the conservation of the 
spikedace and loach minnow complies with the intent of the Act and does 
not include all areas which can be occupied. Our methodology resulted 
in areas being proposed as critical habitat that are within the 
geographical range occupied by the spikedace and loach minnow and

[[Page 13368]]

that contain the biological or physical features essential to their 
conservation and that may require special management.
    (64) Comment: The approach proposed by the Service for determining 
whether to exclude Tribal lands from the final rule places undue weight 
on the argument that inclusion of Tribal lands will compromise 
government-to-government relations, to the potential detriment of 
species conservation goals. Additionally, under relevant Federal court 
precedent in Arizona, the Service is not permitted to rely upon 
assurances by the tribes that habitat will be ``adequately managed'' 
through the implementation of Tribal management plans as a basis for 
exclusion.
    Our response: We disagree. See below for our analyses of the 
exclusion of Tribal lands pursuant to section 4(b)(2) of the Act.
    (65) Comment: Ten days is not enough time to review all of these 
new documents. There should be a delay in designating critical habitat 
until the information can be properly reviewed.
    Our response: We agree that the last comment period was shorter 
than we would have preferred. However, we have an obligation to submit 
for publication a final rule on December 20, 2005, and thus we were not 
able to accommodate a longer comment period. In addition, we believe 
the three comment periods allowed for adequate opportunity for public 
comment. A total of 100 days was provided for document review and the 
public to submit comments.
    (66) Comment: The Phelps Dodge plans should undergo peer review and 
revision before being considered as sufficient conservation management.
    Our response: Although formal peer review of management plans is 
not conducted or required, the documents are available for public 
review and comment during the open comment period.
    (67) Comment: Phelps Dodge's Management Plan does not assure the 
maintenance of the PCEs for the spikedace and loach minnow.
    Our response: We have determined the formation of this working 
relationship will promote the conservation of the loach minnow and 
spikedace and their PCEs on Phelps Dodge's property. See exclusion 
section below for a more detailed discussion of their management plans 
and analysis of this exclusion.
    (68) Comment: The proposed rule is an inappropriate venue for 
changing the regulatory definition of section 7 consultation 
``baseline.'' Section 7 regulations (51 FR 19958) define environmental 
baseline to include the past and present impacts of all Federal, State, 
or private actions and other human activities in the action area, the 
anticipated impacts of all proposed Federal projects in the action area 
that have already undergone formal or early section 7 consultation, and 
the impact of State or private actions which are contemporaneous with 
the consultation in process. The proposed rule would expand that 
definition to include ``ongoing Federal actions at the time of 
designation'' regardless of whether they have already undergone formal 
or early section 7 consultation.
    Our response: The language referenced above has been removed from 
this final rule.

General Comments Issue 3: National Environmental Policy Act Compliance

    (69) Comment: We believe the analysis in the draft environmental 
assessment to be simplistic and conclusory (See Middle Rio Grande 
Conservancy Dist. v. Norton). The impacts on the environment will be 
significant and controversial. The critical habitat designation as 
proposed is likely to result in adverse impacts on riparian areas, not 
only within the critical habitat itself, but also in the areas located 
upstream and downstream. The impacts on water use and management are 
significant and controversial.
    Our response: We determined through the EA that the overall 
environmental effects of this action are insignificant. An EIS is 
required only if we find that the proposed action is expected to have a 
significant impact on the human environment. The completed studies, 
evaluations, and public outreach conducted by the Service have not 
identified impacts resulting from the proposed designation of critical 
habitat that are clearly significant. The Service has afforded 
substantial public input and involvement, with two public hearings and 
open houses. Each of these events had a small participation level by 
the public (less than 10 in Arizona, less than 20 in New Mexico, and 
less than 30 written comments on the draft environmental assessment). 
Based on our analysis and comments received from the public, we 
prepared a final EA and made a Finding of No Significant Impact 
(FONSI), negating the need for preparation of an EIS. We have 
determined our EA is consistent with the spirit and intent of NEPA. The 
final EA, FONSI, and final economic analysis provide our rationale for 
determining that critical habitat designation would not have a 
significant effect on the human environment. Those documents are 
available for public review (see ADDRESSES section).
    (70) Comment: The draft EA fails to consider the impacts of 
critical habitat on the Arizona Water Settlements Act of 2004, which 
authorizes the exchange of Central Arizona Project (CAP) water diverted 
from the Colorado River into New Mexico from the Gila River. The 
project is reasonably foreseeable because New Mexico recently 
negotiated and executed an exchange agreement. The draft EA (p. 45) 
acknowledges the project but fails to discuss the impacts.
    Our response: Page 49 of the EA states that the San Carlos Apache 
Tribe is concerned that the designation of critical habitat for the 
spikedace and loach minnow would further complicate the procedure for 
getting the CAP project approved. The Bureau of Reclamation states that 
this project would be reevaluated before an exchange could occur and a 
new consultation is likely.
    (71) Comment: The Service failed to consider a reasonable range of 
alternatives to the proposed action in its EA.
    Our response: We disagree. The draft EA considered a no-action 
alternative and several action alternatives and analyzed the adverse 
and beneficial environmental impacts of each.
    (72) Comment: One alternative that seems worthy of consideration is 
the designation of known occupied habitat, rather than the designation 
of an entire stream based upon limited sightings in a limited area 
(e.g., Eagle Creek) or consideration of designating only Federal lands. 
The Service's failure to ``rigorously explore'' and evaluate reasonable 
alternatives is per se arbitrary and capricious.
    Our response: We disagree. The alternatives considered are 
consistent with the purpose and need of the action of designating 
critical habitat. In compliance with the Act, we must propose for 
designation those areas that we have determined are essential, as well 
as those areas containing features essential, to the conservation of 
the spikedace and loach minnow. Only considering Federal lands for 
designation would not, in this case, comply with the intent of the Act. 
As discussed elsewhere in this rule, the areas proposed for designation 
were based on our definition of occupancy. See also response to comment 
71 above.
    (73) Comments: In the NEPA analysis, it should be recognized that 
there are positive aspects that have been observed from human culture 
and interaction. That analysis is required by law.

[[Page 13369]]

    Our response: The purpose of a NEPA analysis is to determine the 
potential impacts of a proposed set of alternative actions on the human 
environment. It is not the purpose of NEPA to evaluate the positive 
aspects of humans and their environment.

General Comments Issue 4: Economic Analysis

General Methodology
    (74) Comment: Two commenters recommend that the Economic Analysis 
discuss impact estimates for the Verde River unit as two separate 
subunits: An Upper Verde reach from Sullivan Dam to the Allen Diversion 
and a Lower Verde reach from the Allen Diversion to Fossil Creek.
    Our response: The Final Economic Analysis (FEA) incorporates new 
information received, and separates costs associated with the Upper 
Verde and Lower Verde River segments where possible. This distinction 
is made most apparent in sections 7 and 8, and Appendix B of the FEA.
    (75) Comment: One commenter states that the economic analysis fails 
to quantify the benefits associated with critical habitat designation. 
The commenter further states that although the Verde Valley Complex is 
singled out as the reach where the largest impacts will occur, there is 
no basis for this conclusion without exploring the ``net impacts'' 
through incorporation of benefit estimates and comparisons to baseline.
    Our response: 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. 
The Service believes that society places a value on conserving any and 
all threatened and endangered species and the habitats upon which they 
depend. In our 4(b)(2) analysis below, we discuss the economic benefits 
of excluding portions of the Verde River and the conservation benefits 
related to the inclusion of this stream segment. Although, in this 
case, we are not able to quantify the monetary value of critical 
habitat benefits in the Verde Valley Complex, we did consider the 
benefits that may be derived from a critical habitat designation when 
considering an exclusion pursuant to section 4(b)(2).
    The Service's approach for estimating economic impacts includes 
both economic efficiency and distributional effects. The measurement of 
economic efficiency is based on the concept of opportunity costs, which 
reflect the value of goods and services foregone in order to comply 
with the effects of the designation (e.g., lost economic opportunity 
associated with restrictions on land use). Where data are available, 
the economic analysis does attempt to measure the net economic impact. 
For example, if the fencing of spikedace and loach minnow habitat to 
restrict riparian access for cattle is expected to result in an 
increase in the number of individuals visiting the site for wildlife 
viewing, then the analysis would attempt to net out the positive, 
offsetting economic impacts associated with their visits (e.g., impacts 
that would be associated with an increase in tourism spending). 
However, no data were found that would allow for the measurement of 
such an impact, nor was such information submitted during the public 
comment period.
    (76) Comment: One commenter states that many of the economic 
impacts attributed to spikedace and loach minnow critical habitat in 
the Verde Valley could be attributed to razorback sucker critical 
habitat.
    Our response: To the extent possible, the FEA distinguishes costs 
related specifically to spikedace and loach minnow conservation where 
multiple species are the subject of a single conservation effort or 
section 7 consultation. In the case that another species clearly drives 
a project modification or conservation effort, the associated costs are 
appropriately not attributed to the spikedace and loach minnow. In 
Section 6, the FEA includes language that clarifies that the Verde 
River is designated as critical habitat for the razorback sucker.
Recreational Activities
    (77) Comment: One commenter expressed concern that the designation 
of critical habitat will cause a loss of recreational activities on 
units such as the Verde River.
    Our response: Potential changes to recreational activities are 
discussed in Section 6 of the FEA. Potential impacts on recreational 
fishing losses are specifically discussed and estimated in Section 
6.4.2 of the FEA. Potential costs associated with lost recreational 
fishing activity on the two stream segments where non-native fish 
stocking currently occurs are estimated to be $0 to $8.6 million, using 
a discount rate of seven percent. As noted in Section 6.1.2, the future 
impact of proposed critical habitat on the stocking regimes in affected 
reaches is unknown, as is the reduction in fishing activity that would 
occur if stocking is curtailed. Further, it is unknown whether non-
native trout may be replaced with stocked native fish (e.g. Gila 
trout). Thus, this analysis estimates the value of angler days at risk 
if sportfish stocking were discontinued on these reaches as part of the 
high end estimates.
    (78) Comment: One commenter states concerns that the Economic 
Analysis does not take into consideration the past effects of fishing 
closures on the Blue River and Eagle Creek on local businesses. The 
comment states that one store in Greenlee County closed as a result of 
reduced fishing activity.
    Our response: Section 6.1.1 of the FEA states that ``the AZGFD 
ceased stocking of sportfish in Eagle Creek and the Blue River in 
Apache-Sitgreaves National Forest due to native fish considerations in 
the late 1990s and began stocking endangered Gila trout in these 
reaches instead. Spikedace and loach minnow were among numerous species 
considered when these stocking cessations were put in place. Although 
several citizens at a public hearing held in Thatcher, Arizona, in 1999 
voiced disappointment that the sites are no longer stocked, these 
changes in stocking have not affected the overall number of fish 
stocked in Arizona. However, there may have been consumer surplus 
losses associated with these closures because anglers may now take 
trips to less preferred sites. It should be noted that any past impacts 
would have occurred prior to this critical habitat rule taking 
effect.'' Section 6 and Appendix B of the FEA now highlight that the 
curtailment of stocking in these reaches has caused some economic 
impacts on local businesses.
Water Use and Grazing Issues
    (79) Comment: One commenter states that exclusion of livestock from 
riparian areas using fencing has actually had an adverse effect on the 
spikedace and loach minnow.
    Our response: The Economic Analysis recognizes that some 
controversy surrounds the issue of the impacts of livestock on native 
fish species. Section 4.1 of the FEA now states that ``in public 
comments, private ranchers have suggested that current management has 
been successful at mitigating the negative effects of grazing on 
spikedace and loach minnow habitat and that further limitation of 
grazing would create conditions conducive to non-native species. Some 
commenters have also suggested that fencing may be detrimental to the 
species.''
    (80) Comment: One commenter stated that estimates of riparian 
fencing and maintenance costs in the Economic Analysis are low.

[[Page 13370]]

    Our response: As presented in Section 4.4 of the FEA, fencing and 
maintenance costs were developed using numerous published sources, as 
well as through discussions with both Forest Service and BLM. Fencing 
costs are presented as a range between $1,500 and $15,000 per river 
mile of fence construction, with an additional $110 to $2,600 in fence 
maintenance.
    (81) Comment: One commenter suggests that data in the Economic 
Analysis on agricultural establishments in Greenlee County are 
incorrect. The commenter provides information on ranching operations on 
Eagle Creek. The comment states that the Four Drag Ranch, Seven Cross A 
Ranch, Anchor Ranch, Double Circle Ranch, and Tule Ranch are located on 
Eagle Creek.
    Our response: Appendix B, Exhibits B-2, B-3, and B-4 provide data 
on the number of farm operations, number of ranching operations, and 
annual sales by county, as reported by the National Agricultural 
Statistics Survey. Section 2 presents the number of establishments and 
employees in the Agriculture, Forestry, Hunting, and Fishing Support 
industries, as reported by the U.S. Census. A note was added to Exhibit 
2-7 that clarifies the source of the data used and also refers readers 
to Appendix B, Exhibits B-2 through B-4. Although specific ranches are 
not named, Section 4 estimates that impacts on grazing activities on 
Eagle Creek may range from $5,000 to $126,000 over the next 20 years 
(discounted at seven percent).
    (82) Comment: One commenter states that the potential loss of the 
ability to divert surface water and possibly groundwater is the most 
important economic, social, and environmental consideration in the 
Verde River unit, and that the cost associated with such a loss of 
water is not calculated into the examples provided in Chapter 7 of the 
Draft Economic Analysis.
    Our response: Chapter 7 of the FEA focuses on potential impacts to 
residential and commercial development construction activities in 
critical habitat areas. Issues related to water use are discussed in 
Chapter 3 of the analysis. Section 3.5.1 specifically discusses water 
use in the Verde Valley, and provides estimates of the number of 
potentially affected surface water users and groundwater wells. 
Potentially affected agricultural lands within the Verde River Complex 
are valued at between $3.1 million and $30.3 million.
    (83) Comment: One commenter states that the Economic Analysis did 
not discuss decreed water rights associated with surface water 
diversion ditches and how those decreed rights will be adversely 
impacted by the critical habitat designation, or what data will be 
relied upon in determining subflow.
    Our response: Section 3 of the Economic Analysis states that future 
impacts on water users are possible due to spikedace and loach minnow 
conservation efforts if less water is made available for diversion to 
accommodate the spikedace and loach minnow. The analysis also states 
that there are currently no data that indicate whether existing or 
future diversions of water (including groundwater use) reduce stream 
flow or modify hydrologic conditions to a degree that adversely impact 
the spikedace and loach minnow or their habitat. In addition, 
hydrologic models are unavailable to assess the role of any specific 
groundwater pumping activity or surface water diversion in determining 
stream flow or other hydrologic conditions within critical habitat. As 
such, this analysis does not quantify the probability or extent to 
which water use would need to be curtailed or modified to remedy 
impacts on spikedace and loach minnow. It does, however, provide 
information on the potential scale of the economic impacts that could 
occur if requirements associated with spikedace and loach minnow 
conservation result in changes in water diversions or conveyance.
    Specifically, the analysis addresses potential impacts on water 
used for irrigated agriculture. The analysis states that it is possible 
that irrigation activities could be affected if farmers make efforts to 
maintain adequate water quantity and flow for the spikedace and loach 
minnow in the future. Because agricultural water use comprises 98 
percent of surface water use and 81 percent of groundwater use in 
counties that contain critical habitat, it appears most likely that, if 
additional water supplies are needed for these species, they would come 
from current agricultural water use. Thus, the analysis assumes that to 
accommodate spikedace and loach minnow, farmers may give up water and 
cease to farm, resulting in losses of agricultural land value. Should 
irrigated agriculture be curtailed to accommodate spikedace and loach 
minnow, approximately 830 acres within proposed critical habitat, or 
6,310 acres that fall in the vicinity of critical habitat that are 
currently irrigated for cropland agriculture could be retired from 
production. The irrigated crop production at risk of being lost is 
valued at approximately $4.5 million ($2005) within proposed critical 
habitat areas, or approximately $38.5 million ($2005) including lands 
that rely on water diverted from proposed critical habitat. Thus, the 
total cropland value potentially foregone ($38.5 million in $2005) is 
included in high end estimates of impacts on water use.
    (84) Comment: One commenter states that nothing was included on the 
costs to retire farm and ranchland along the San Pedro River.
    Our response: Section 3 of the Economic Analysis identifies, to the 
extent possible, water users potentially affected by spikedace and 
loach minnow conservation efforts. Exhibit 3-7 includes a description 
of 64 acres of cropland that fall within the San Pedro River segment, 
and 720 acres of cropland that fall within the vicinity of proposed 
critical habitat. These acres are valued at $394,000 to $4.5 million 
(2005 dollars).
    (85) Comment: Two commenters state that the Economic Analysis fails 
to consider impacts of the rule on the Arizona Water Settlements Act of 
2004, Public Law 108-451.
    Our response: Section 3.5.5 of the FEA provides additional detail 
provided by the commenters about the 2004 Arizona Water Settlements Act 
(Pub. L. 108-451) as it relates to the proposed stretch of the Gila 
River in New Mexico.
    (86) Comment: One commenter states that the Economic Analysis makes 
no attempt to quantify the impacts to farming activities in the Gila 
Valley. The commenter further states that the Service cannot simply 
declare that, due to data and model limitations, the analysis is not 
able to answer the question of whether impacts to water users are 
likely.
    Our response: Section 3.5.3 of the FEA discusses potential impacts 
of spikedace and loach minnow conservation activities on the Middle 
Gila/Lower San Pedro/Aravaipa Creek Complex (Complex 3). As stated in 
the analysis, ``approximately 135 acres of lands used for cropland 
irrigation are located within Complex 3, and 1,220 acres are located in 
the valley that contains proposed critical habitat. The value of 
croplands in proposed critical habitat is approximately $11,000, while 
lands in the vicinity of proposed critical habitat are valued at 
approximately $7.5 million. Approximately $15,000 in Natural Resource 
Conservation Service funding was allocated to farms in proposed 
critical habitat areas on these segments in 2005.'' The value of these 
at-risk agricultural lands are included in impact estimates for this 
unit. Thus, while the Economic Analysis does not identify the 
likelihood of these impacts, it does quantify them and include them in 
potential future cost estimates.
    (87) Comment: One commenter states that the projected project 
modification costs are estimated at $13,500 per water

[[Page 13371]]

project resulting from the critical habitat designation, and that this 
estimate is based on estimates of costs at Fort Huachuca. The commenter 
states that project modification costs at Fort Huachuca are costing 
``tens-of-millions of dollars.'' The commenter states that Phelps Dodge 
has recently incurred costs in excess of one million dollars for 
southwestern willow flycatcher mitigation, and thus water project cost 
estimates for spikedace and loach minnow critical habitat are low.
    Our response: The FEA includes specific cost estimates for 
particular water projects expected to occur within proposed critical 
habitat areas in Chapter 3 of the FEA. Typical project modifications 
for water projects in the past have included minimizing activities 
within the wetted channel, ensuring no pollutants enter surface waters, 
replanting riparian vegetation, monitoring for up to ten years, and 
conducting research studies. Future project modifications are assumed 
to be similar to those associated with a low-flow gauge installation to 
measure flow in the Verde River that occurred as part of a section 404 
permit from U.S. Army Corps of Engineers, or $13,500 per project. Costs 
associated with the past consultation on Fort Huachuca are not included 
as part of these estimates, nor are they included in the analysis, as 
Fort Huachuca falls well outside the boundaries of proposed critical 
habitat, and downstream of proposed habitat areas. Quantified costs 
associated with water-related projects also include potential costs 
associated with costs of retiring agricultural cropland in order to 
provide sufficient water for the species. Potential costs to municipal, 
industrial and Tribal water use are also discussed, but not quantified. 
Expenditures made on behalf of the southwestern willow flycatcher are 
not relevant to this analysis.
Mining Impacts
    (88) Comment: One commenter states that the Economic Analysis 
failed to adequately evaluate impacts to mining operations and water 
use in the arid southwest as a result of the proposed designation, 
resulting in a dramatic understatement of economic impacts. The 
commenter commissioned a report that estimates economic impacts to 
Phelps's Dodge's operations at the Tyrone Mine alone to exceed $100 
million.
    Our response: Section 5 of the FEA evaluates potential impacts to 
mining operations. Section 3 of the analysis addresses impacts to water 
use that may occur in order to protect the spikedace and loach minnow. 
Specifically, the analysis states that:

    ``While few active mineral mining activities occur within the 
proposed critical habitat, the mining industry has expressed concern 
that water use by existing or potential mining operations could be 
affected by endangered species conservation activities, particularly 
the designation of critical habitat. Critical to an understanding of 
the potential for impacts on water diversions or conveyance is an 
understanding of the probability and magnitude of any such changes. 
As detailed in this section, there is currently no data that 
indicates whether existing or future diversions of water for mining 
activities (including groundwater use) reduces stream flow or 
modifies hydrologic conditions to a degree that adversely impacts 
the spikedace and loach minnow or their habitat. In addition, 
hydrologic models are unavailable to assess the role of any specific 
mining facility's groundwater pumping or surface water diversions in 
determining stream flow or other hydrologic conditions within 
critical habitat. As such, this analysis does not quantify the 
probability or extent to which water use for mining purposes would 
need to be curtailed or modified to remedy impacts on spikedace and 
loach minnow.
    Given these data and model limitations, this analysis does not 
answer the question of whether impacts to mining operations are 
likely (i.e., the probability of such impacts), or define the 
expected magnitude of these impacts. It does, however, provide 
information on the potential scale of the economic impact that could 
occur if requirements associated with spikedace and loach minnow 
conservation result in changes in water diversions or conveyance. 
Specifically, to allow for an understanding of the economic 
activities that could be at risk if modifications to water use or 
conveyance are required, this analysis provides data on the location 
of mining activities potentially associated with CHD (critical 
habitat designation) areas, as well as data on the regional economic 
importance of these operations.''

    The commenter provides hypothetical situations in which water 
currently used by mining operations may be lost to mining activities, 
and calculates a value of the lost water rights and associated 
replacement costs. While we do not disagree that, should the water be 
lost to mining activities, such costs could occur, there remains 
considerable uncertainty as to the likelihood of such events. 
Nonetheless, the revised analysis includes estimates of potential 
losses provided by the commenter in Section 5 of the analysis, to 
provide additional context for understanding the potential magnitude of 
impacts, should they occur.
    (89) Comment: One commenter states that the Economic Analysis does 
not identify all of the Phelps Dodge mines that may be affected by 
critical habitat designation. Potentially affected mines include 
Morenci Mine, Tyrone Mine, Christmas Mine, and United Verde Mine. The 
commenter further states that the Economic Analysis does not consider 
potential effects to Phelps Dodge grazing and agricultural activities 
related to proposed critical habitat.
    Our response: Section 5 of the Draft Economic Analysis identified 
the Morenci Mine, the Tyrone Mine, and the Christmas Mine as being 
potentially affected by proposed critical habitat. Because the United 
Verde Mine falls outside of proposed critical habitat and has been 
inactive since 1953, it was not specifically described in the Draft 
Economic Analysis. The FEA now includes a discussion of impacts to 
United Verde Mine along with the other mines. As described by the 
commenter, current activities at the United Verde Mine area primarily 
include leasing water to agricultural activities. Potential impacts of 
proposed critical habitat on agricultural water use are addressed in 
Section 3 of the FEA. Potential impacts of proposed critical habitat on 
ranching activities, for all landowners, are addressed in Section 4 of 
the FEA.
    (90) Comment: One commenter states that the Economic Analysis fails 
to consider the replacement costs associated with water users that may 
be impacted by the critical habitat designation. These costs are 
extremely high because water supplies in the west are scarce and not 
easily replaceable. Other costs relating to impacts on water use not 
considered include search, infrastructure, and lost profits from 
curtailed operations at mining facilities.
    Our response: The revised analysis includes estimates of potential 
losses provided by the commenter in Section 5 of the analysis. As 
stated in Response 87, it is not contested that, should water be lost 
to mining activities as a result of conservation activities for the 
spikedace and loach minnow, costs to the mining industry would be 
incurred. However, considerable uncertainty exists as to the 
likelihood, magnitude, and specific costs of water losses.
Small Business Impacts
    (91) Comment: One commenter states that the Economic Analysis would 
be clearer if it reported the number of developers that are likely to 
be affected in the small business analysis.
    Our response: Appendix B, Small Business and Energy Impacts 
Analyses, considers the extent to which the analytic results presented 
in the main body of the FEA reflect potential future impacts to small 
businesses. Appendix B has been revised to provide additional details 
about the number of developers

[[Page 13372]]

potentially affected by proposed critical habitat designation.
    (92) Comment: One commenter states that the Economic Analysis would 
be stronger if it provided data on the impact of critical habitat on 
small entities that thrive on the area's recreational activities. To 
collect such information, the commenter suggests that the Service seek 
public input on the reduction of fishing activity if stocking is 
curtailed.
    Our response: Appendix B considers the extent to which the analytic 
results presented in the main body of the FEA reflect potential future 
impacts to small businesses. As stated in the Appendix, ``the future 
impact of proposed CHD on the stocking regimes in these reaches is 
unknown, as is the reduction in fishing activity that would occur if 
stocking is curtailed. Further, it is unknown whether non-native fish 
stocking may be replaced with catchable native fish stocking (e.g. 
Apache trout). Thus, this analysis estimates the value of angler days 
at risk if sportfish stocking were discontinued on these reaches as 
part of the high end estimates. Angling trips are valued at 
approximately $8.6 million over 20 years (or $816,000 annually), 
assuming a discount rate of 7 percent. It should be noted that because 
State fish managers typically identify alternative sites for stocked 
fish when areas are closed to stocking, these angler days are likely to 
be redistributed to other areas rather than lost altogether. Thus, the 
high-end estimate does not consider the possibility that rather than 
not fishing at all, recreators will visit alternative, less desirable 
fishing sites. Existing models of angler behavior in these areas were 
not available to refine this estimate.'' The Appendix further states 
that ``if, as in the high-end estimate of impacts, angler trips to the 
two stream reaches that currently stock non-native fish are not 
undertaken, localized impacts on anglers and, in turn, small businesses 
that rely on fishing activities could occur. These impacts would be 
spread across a variety of industries including food and beverage 
stores, food service and drinking places, accommodations, 
transportation, and sporting goods.'' To conduct a survey of specific 
potential effects of closures is beyond the scope of this analysis. The 
revised Appendix does, however, include a reference to public comment 
received regarding a past store closure that occurred due to past area 
closures.
    (93) Comment: One commenter states that the average number of acres 
in farms applied in the small business analysis is skewed due to the 
inclusion of a few very large (non small-business) farms. The commenter 
suggests that using the median farm size would improve results. The 
commenter also states that, because the Economic Analysis does not 
provide data on the impacts on beef cattle ranching operations, it is 
difficult to determine whether there will be a significant impact on 
this industry. The commenter also states that using the average 
revenues of all ranching operations, including both large and small 
business, likely skews the average to the upper end by including a few 
large ranches.
    Our response: Appendix B considers the extent to which the analytic 
results presented in the main body of the FEA reflect potential future 
impacts to small businesses. Appendix B has been revised to estimate 
the number of affected farms using average revenues as well as using 
median revenues. Appendix B does provide data on the impact to beef 
cattle ranching operations, including revenue data for beef cattle 
ranching operations, the number of ranches in each county, and the 
expected impact of the proposed rule on these entities. While specific 
revenue data for affected small beef cattle ranches is not readily 
available, a proxy for this is developed in the revised Appendix by 
eliminating the revenue outlier (Pinal County) from the average revenue 
estimates. This results in an estimate of average revenues for small 
ranches in the region of $42,500. The analysis therefore estimates that 
approximately 72 small ranching operations may experience a reduction 
in revenues of between 0.9 and 22 percent of annual revenues annually. 
These ranches represent 4.7 percent of ranches in affected counties, or 
one percent of ranches in New Mexico and Arizona.
    (94) Comment: One commenter states that estimated average revenue 
for ranchers in Greenlee County of $133,000 is incorrect, and that, 
given the current drought, it is likely to be too high.
    Our response: Appendix B of the FEA lists the average revenues for 
cattle and calf ranches in Greenlee County as $19,100. We have 
incorporated an acknowledgement that revenue is dependent on, and may 
fluctuate with, natural conditions such as drought.
    (95) Comment: One commenter states that there is no attempt to 
define baseline conditions in order to conduct a ``with'' and 
``without'' analysis as prescribed by Executive Order 12866.
    Our response: The economic analysis estimates the total cost of 
species conservation activities without subtracting the impact of pre-
existing baseline regulations (i.e., the cost estimates are fully co-
extensive). In 2001, the U.S. 10th Circuit Court of Appeals instructed 
the Service to conduct a full analysis of all of the economic impacts 
of proposed critical habitat designation, regardless of whether those 
impacts are attributable co-extensively to other causes (New Mexico 
Cattle Growers Ass'n v. U.S.F.W.S., 248 F.3d 1277 (10th Cir. 2001)). 
The economic analysis complies with direction from the U.S. 10th 
Circuit Court of Appeals.

Summary of Changes From Proposed Rule

    Based upon our review of the public comments, economic analysis, 
environmental assessment, issues addressed at the public hearings, and 
any new relevant information that may have become available since the 
publication of the proposal, we reevaluated our proposed 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 Apache, White Mountain 
Apache, and Yavapai-Apache Tribes pursuant to section 4(b)(2) of the 
Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section 
below).
    (2) We excluded lands owned by the Phelps Dodge Corporation on the 
Gila River and Eagle Creek pursuant to section 4(b)(2) of the Act (see 
``Exclusion Under Section 4(b)(2) of the Act'' section below.)
    (3) We excluded a portion of the Verde River pursuant to section 
4(b)(2) of the Act (see ``Exclusion Under Section 4(b)(2) of the Act'' 
section below.)
    (4) We modified the primary constituent elements for clarity and to 
reflect additional information received during the public comment 
period.
    (5) We made technical corrections to township, range, section legal 
descriptions, the confluence point of the East Fork Black and North 
Fork East Fork Black rivers, and the upstream endpoint on Eagle Creek. 
Overall mileage from the proposed to the final designation was slightly 
reduced by approximately 0.5 river miles as a result of these 
corrections.
    (6) Eagle Creek is no longer included in the designation of 
critical habitat for the spikedace, as further review of the available 
information shows this area does not meet our definition of occupied, 
and therefore does not meet

[[Page 13373]]

our criteria for defining critical habitat for the spikedace.

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, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures necessary that bring 
any endangered species or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, regulated taking.
    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. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    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 features essential to the conservation of the 
species therein may require special management or protection. Thus, we 
do not include areas where existing management is sufficient to 
conserve the species. (As discussed below, such areas may also be 
excluded from critical habitat pursuant to section 4(b)(2).) 
Accordingly, when the best available scientific data do not demonstrate 
that the conservation needs of the species require additional areas, 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 that was not known to be occupied at the 
time of listing will likely, but not always, 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), along with Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the Service 
provide criteria and establish procedures 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 are critical 
habitat, the Service generally uses the listing package as a primary 
source of information. 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 (Pub. 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 and commercial 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.

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 consider those physical and biological features (primary 
constituent elements (PCEs)) that are essential to the conservation of 
the species, and within areas occupied by the species at the time of 
listing, 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, or rearing of offspring; and 
habitats that are protected from disturbance or are representative of 
the historical, geographical, and ecological distributions of a 
species.
    We determined the primary constituent elements for spikedace and 
loach minnow from studies on their habitat requirements and population 
biology including, but not limited to, Barber et al. 1970, pp. 10-12; 
Minckley 1973; Anderson 1978, p. 7, 17, 31-37, 41, 54; Barber and 
Minckley 1983, pp. 34-39; Turner and Tafanelli 1983, pp. 15-20; Propst 
et al. 1986, p. 40-72, 82-83; Hardy et al. 1990, pp. 19-20, 39; Douglas 
et al. 1994, pp. 12-14; Rinne

[[Page 13374]]

and Stefferud 1996, p. 14-17; and Velasco 1997, pp. 5-6.

Spikedace

    The specific primary constituent elements required for the 
spikedace are derived from the biological needs of the species as 
described in the Background section of this document and below.

Space for Individual and Population Growth and Normal Behavior

Habitat Preferences
    Spikedace have differing habitat requirements through their various 
life stages. Generally, adult spikedace prefer intermediate-sized 
streams with moderate to swift currents over sand, gravel, and cobble 
substrates (i.e., stream bottoms). Preferred water depths of adults are 
less than 11.8 in (30 cm) (Barber and Minckley 1966, p. 321; Minckley 
1973, p. 114; Anderson 1978, p. 17; Rinne and Kroeger 1988, p. 1; Hardy 
1990, pp. 19-20, 39; Sublette et al. 1990, p. 138; Rinne 1991, pp. 8-
10; Rinne 1999, p. 6). As discussed below, larval and juvenile 
spikedace occupy different habitats than adults.
    Flow Velocities. Studies on flow velocity have been completed on 
the Gila River, Aravaipa Creek, and the Verde River. In these studies, 
flows measured in habitat occupied by adult spikedace ranged from 23.3 
to 70.0 cm/second (9.2-27.6 in/second) (Barber and Minckley 1966, p. 
321; Hardy 1990, pp. 19-20, 39; Propst et al. 1986, p. 41; Rinne 1991, 
pp. 9-10; Rinne and Kroeger 1988, p. 1; Schreiber 1978, p. 4). Studies 
on the Gila River indicated that juvenile spikedace occupy areas with 
velocities of approximately 16.8 cm/second (6.6 in/second) while larval 
spikedace were found in velocities of 8.4 cm/second (3.3 in/second) 
(Propst et al. 1986, p. 41).
    Propst et al. 1986 (pp. 47-49) examined flow velocities in occupied 
spikedace habitats as they varied by season. During the warm season 
(June-November), occupied spikedace habitats in the Gila River had mean 
flow velocities of 19.3 in/second (49.1 cm/second) at one site and 7.4 
in/second (18.8 cm/second) at the second site. During the cold season 
(December-May), mean flow velocities at these same sites were 15.5 in/
second (39.4 cm/second) and 8.4 in/second (21.4 cm/second). It is 
believed that spikedace seek areas in the stream that offer warmer 
water temperatures during cooler seasons to offset their decreased 
metabolic rates. Where water depth remains fairly constant throughout 
the year (e.g., the first site), slower velocities provided pockets of 
warmer water temperatures in the stream. In areas of fairly constant 
flow velocities (e.g., the second site), warmer water temperatures were 
found in those portions of the stream with shallower water (Propst et 
al. 1986, pp. 47-49).
    Larval and juvenile spikedace, which occupy different habitats than 
adults, tend to occupy shallow, peripheral portions of streams that 
have slower currents (Anderson 1978, p.17; Propst et al. 1986, pp. 40-
41). Once they emerge from the gravel of the spawning riffles, 
spikedace larvae disperse to stream margins where water velocity is 
very slow or still. Larger larval and juvenile spikedace (those fish 
1.0 to 1.4 inches (25.4 to 35.6 mm) in length) occurred over a greater 
range of water velocities than smaller larvae, but still occupied water 
depths of less than 12.6 inches (32.0 cm) (Propst et al. 1986, p. 40). 
Juveniles and larvae are also occasionally found in quiet pools or 
backwaters (e.g., pools that are connected with, but out of, the main 
river channel) lacking streamflow (Sublette et al. 1990, p. 138).
    Outside of the breeding season, which occurs between April and 
June, eighty percent of the spikedace collected in a Verde River study 
used run and glide habitat. For this study, a glide was defined as a 
portion of the stream with a lower gradient (0.3 percent), versus a run 
which had a slightly steeper gradient (0.3-0.5 percent) (Rinne and 
Stefferud 1996, p. 14). Spikedace in the Gila River were most commonly 
found in riffle areas of the stream with moderate to swift currents 
(Anderson 1978, p. 17) and some run habitats (J.M. Montgomery 1985, p. 
21), as were spikedace in Aravaipa Creek (Barber and Minckley 1966, p. 
321).
    Seasonal differences in habitats utilized by spikedace have been 
noted in the upper Gila drainage, for both the winter and breeding 
seasons. For example, spikedace were found to use shallower habitats 
(<6.6 inches, <16.8 cm) in the winter, and deeper habitats (6.6 to 12.6 
inches, 16.8-32.0 cm) during warmer months (Propst et al. 1986, p. 47).
    Specific habitat usage has been noted for the breeding season as 
well. During the breeding season, female and male spikedace become 
segregated, with females occupying deeper pools and eddies and males 
occupying riffles flowing over sand and gravel beds in water 
approximately 3.1 to 5.9 inches (7.9-15.0 cm) deep. Females then enter 
the riffles occupied by the males before ova are released into the 
water column (Barber et al. 1970, pp.11-12).
    Streams in the southwestern United States have a wide fluctuation 
in flows and some are periodically dewatered. While portions of stream 
segments included in this designation may experience dry periods, they 
are still considered important because the spikedace is adapted to 
stream systems with fluctuating water levels. While they can not 
persist in dewatered areas, spikedace will use these areas as 
connective corridors between occupied or seasonally occupied habitat 
when they are wetted.
    Substrates. Spikedace are known to occur in areas with low to 
moderate amounts of fine sediment and substrate embeddedness (filling 
in of spaces by fine sediments), which are important features for 
healthy development of eggs. Spawning has been observed in areas with 
sand and gravel beds and not in areas where fine materials of a 
particle size less than sand coats the sand or gravel substrate, as 
described above. Additionally, low to moderate fine sediments ensure 
that eggs remain well-oxygenated and will not suffocate due to sediment 
deposition (Propst et al. 1986, p. 40).
    Spikedace were found over sand and gravel substrates in the glide-
run and low-gradient riffle habitats in both the upper Verde (Rinne and 
Stefferud 1996, p. 21) and the upper Gila (Propst et al. 1986, p. 40; 
Rinne and Deason 2000, p. 106). In a study of a small portion of the 
Verde River, spikedace were found in glide-run habitats where 
substrates were characterized by approximately 29 percent sand or fines 
(silty sand) (Rinne 2001, p. 68). In other studies of the Verde River 
over a two-year period, spikedace were found in areas with a percentage 
of fine content substrate that varied from 1 to 28 percent (Rinne 2001, 
p. 68). Neary et al. (1996, p. 24) noted that spikedace were found in 
habitats with substrates of less than 10 percent sand. While there is 
some variability in the percent of sand or fine substrate in occupied 
spikedace habitat, Neary et al. (1996, p. 24) concluded that, based on 
the higher density of spikedace present in areas with lower percentages 
of sand in the substrate, spikedace favored habitats with lower sand 
content.
    Substrates are, in part, a reflection of the gradients and 
velocities of the streams in which they are found. Sand and gravel 
typically decrease as gradient and velocity increase (Rinne and 
Stefferud 1996, p. 14). Spikedace numbers in the Verde River increased 
almost three times (from 18 to 52 individuals) when the fine component 
of the substrate decreased from about 27 percent down to 7 percent 
(Neary et al. 1996, p. 26), indicating that spikedace prefer habitats 
with lower amounts of fines. Sand content in all glide-run

[[Page 13375]]

spikedace habitats in the Verde and Gila Rivers in 2000 was 18 and 20 
percent (Rinne 2001, p. 68). However, because substrates are determined 
in part by gradient and velocity of the stream, the type of substrate 
should not be used alone in determining suitable spikedace habitat.
    Sixty percent of spikedace larvae in the Gila River were found over 
sand-dominated substrates, while 18 percent were found over gravel, and 
an additional 18 percent found over cobble-dominated substrates. While 
45 percent of juvenile spikedace were found over sand substrates, an 
additional 45 percent of the juveniles were found over gravel 
substrates, with the remaining 9 percent associated with cobble-
dominated substrates (Propst et al. 1986, p. 40).
    The degree of substrate embeddedness may also affect the prey base 
for spikedace. As discussed below, mayflies constitute a significant 
portion of the spikedace diet. Suitable habitat for some mayflies 
includes pebbles or gravel for clinging (Pennak 1978, p. 539). Excess 
sedimentation would cover or blanket smaller pebbles and gravel, 
resulting in a lack of suitable habitat for mayflies, and a subsequent 
decrease in available prey items for spikedace.
    Flooding. Rainfall in the southwest is generally characterized as 
bimodal, with winter rains of longer duration and less intensity and 
summer rains of shorter duration and higher intensity. As we discuss 
below, periodic flooding appears to benefit spikedace in three ways: 
(1) Removing excess sediment from some portions of the stream; (2) 
removing nonnative fish species from a given area; and (3) increasing 
prey species diversity.
    Flooding in Aravaipa Creek has resulted in the transport of heavier 
loads of sediments such as cobble, gravel, and sand that are deposited 
where the stream widens, gradient flattens, and velocity and turbulence 
decrease. Dams formed by such deposition can temporarily cause water to 
back up and break into braids downstream of the dam. The braided areas 
provide excellent nurseries for larval and juvenile fishes (Velasco 
1997, pp. 28-29).
    On the Gila River in New Mexico, flows fluctuate seasonally with 
snowmelt, causing spring pulses and occasional floods, and late-summer 
or monsoonal rains producing floods of varying intensity and duration. 
These high flows benefit spikedace spawning and foraging habitat 
(Propst et al. 1986, p. 3) as described above. Peak floods can modify 
channel morphology and sort and rearrange stream bed materials 
(Stefferud and Rinne 1996, p. 80).
    Floods likely benefit native fish by breaking up embedded bottom 
materials (Mueller 1984, p. 355). A study of the Verde River analyzed 
the effects of flooding in 1993 and 1995, finding that these floods had 
notable effects on both native and nonnative fish species. Among other 
effects, these floods on the Verde River either stimulated spawning or 
enhanced recruitment of three of the native species or may have 
eliminated one of the nonnative fish species (Rinne and Stefferud 1997, 
pp. 159, 162; Stefferud and Rinne 1996, p. 80).
    Minckley and Meffe 1987 (pp. 99, 100) found that flooding, as part 
of a natural hydrograph, may temporarily remove nonnative fish species, 
which are not adapted to flooding. Thus flooding consequently removes 
the competitive pressures of nonnative fish species on native fish 
species which persist following the flood. Minckley and Meffe (1987, p. 
99-100) studied the differential responses of native and nonnative 
fishes in seven unregulated and three regulated streams or stream 
reaches that were sampled before and after major flooding noted that 
fish faunas of canyon-bound reaches of unregulated streams invariably 
shifted from a mixture of native and nonnative fish species to 
predominantly, and in some cases exclusively, native forms after large 
floods. Samples from regulated systems indicated relatively few or no 
changes in species composition due to releases from upstream dams at 
low, controlled volumes. However, during emergency releases, effects to 
nonnative fish species were similar to those seen with flooding on 
unregulated systems.
    There is some variability in fish response to flooding. Some 
nonnative species, such as smallmouth bass (Micropterus dolomieui) and 
green sunfish (Lepomis cyanellus), appear to be partially adapted to 
flooding, and often reappear in a few weeks (Minckley and Meffe, p. 
100). In addition, Stefferud and Rinne (1996, p. 75) found that late-
winter flooding affected the entire fish community, either stimulating 
reproduction or promoting recruitment (at least among the larger-size 
fishes), and possibly eliminating some nonnative species.
    The onset of flooding also corresponds with an increased diversity 
of food items for spikedace. Reductions in the mainstream 
invertebrates, such as mayflies, cause the fish to expand its food base 
in an opportunistic manner. In addition, inflowing flood waters carry 
terrestrial invertebrates, such as ants, bees, and wasps 
(Hymenopterans), into aquatic areas (Barber and Minckley 1983, p.39).
    Stream Gradient. Spikedace occupy streams with low to moderate 
gradients (Propst et al. 1986, p. 3; Rinne and Stefferud 1996, p. 14; 
Stefferud and Rinne 1996, p. 21; Sublette et al. 1990, p. 138). 
Specific gradient data are generally lacking, but the gradient of 
occupied portions of Aravaipa Creek and the Verde River varied between 
approximately 0.3 to <1.0 percent (Barber et al. 1970, p. 10; Rinne and 
Kroeger 1988, p. 2; Rinne and Stefferud 1996, p. 14).
Habitat Protected From Disturbance or Representative of the Historic 
Geographical and Ecological Distribution of a Species
    Nonnative aquatic species. One of the primary reasons for the 
decline of native species is the presence of nonnative fishes. Fish 
evolution in the arid American west is linked to disruptive geologic 
and climatic events that acted in concert over evolutionary time to 
decrease the availability and reliability of aquatic ecosystems. The 
fragmentation and reduction of aquatic ecosystems resulted in a fish 
fauna that was both diminished and restricted in the arid west. Lacking 
exposure to a wider range of species, western species seem to lack the 
competitive abilities and predator defenses developed by fishes from 
regions where more species are present (Douglas et al. 1994, pp. 9-10). 
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, p. 365, 377, 397-398; Lachner et al. 1970, p. 22; 
Ono et al. 1983, p. 90; Moyle 1986, pp. 28-34; Moyle et al. 1986, pp. 
416-423; Carlson and Muth 1989, pp. 232-233; Fuller et al. 1990, p. 1). 
Miller et al. (1989, p. 1) 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 (Lassuy 1995, p. 392). In Arizona, 
release or dispersal of recently introduced nonnative aquatic organisms 
is a continuing phenomenon (Rosen et al. 1995, pp. 255-256, 258; U.S. 
Fish and Wildlife Service 2001a, pp. 26-32). 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

[[Page 13376]]

United States include interbasin water transfer, sport fish stocking, 
aquaculture, aquarium releases, baitbucket release (release of fish 
used as bait by anglers), and biological control (e.g., the 
introduction of one species to control another species) (U.S. Fish and 
Wildlife Service 2001a, pp. 13, 37).
    In the Gila River basin, introduction of nonnatives is considered a 
major factor in the decline of all native fish species (Minckley 1985, 
p. 20-21; Williams et al. 1985, p. 1; Minckley and Deacon 1991, p. 17). 
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, pp. 1-8). As described below, the nonnative fishes have been 
demonstrated to pose a significant threat to Gila River basin native 
fishes, including spikedace and loach minnow (Minckley 1985, p. 108-
109; Williams et al. 1985, p. 19). 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, p. 385). 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, p. 173-174, 176-180; Douglas et 
al. 1994, pp. 13-17).
    The effects of nonnative fish competition on spikedace can be 
classified as either interference or exploitive. Interference 
competition occurs when individuals directly affect others, such as by 
fighting, producing toxins, or preying upon them (Schoener 1983, p. 
257). Exploitive competition occurs when individuals affect others 
indirectly, such as through use of common resources (Douglas et al. 
1994, p. 14).
    Nonnative fishes known to occur within the historical range of the 
spikedace 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), mosquitofish, carp (Cyprinus 
carpo), bluegill (Lepomis macrochiris), yellow bullhead (Ameiurus 
natalis), black bullhead (Ameiurus melas), and goldfish (Carassius 
auratus) (AGFD Native Fish Database 2005, ASU 2002). Additionally, as 
discussed below, nonnative parasites introduced incidentally with 
nonnative species may threaten spikedace 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, p. 1; 2005, p. 2-3).
    There is evidence of the negative impacts of nonnative predators on 
native fishes for several stream reaches. The effect of nonnative fish 
preying on natives such as spikedace is classified as interference 
competition. Channel catfish, flathead catfish, and smallmouth bass all 
prey on native fishes including spikedace, as evidenced by prey remains 
of native fishes in the stomachs of these predatory species (Propst et 
al. 1986, p. 82, Bonar et al. 2004, p. 13, 16-21). Native fish species 
declines appear linked to increases in nonnative fish species. For 
example, in 1949, 52 spikedace were collected at Red Rock while channel 
catfish composed only 1.65 percent of the 607 fish collected. However, 
in 1977, only six spikedace were located at the same site, and the 
percentage of channel catfish had risen to 14.5 percent of 169 fish 
collected. The decline of spikedace and the increase of channel catfish 
is likely related (Anderson 1978, p. 51) because of this correlation 
and the evidence of predation by catfish on spikedace.
    Similar interactions between native and nonnative fishes were 
observed in the upper reaches of the East Fork of the Gila River. In 
this system, native fish were limited, with spikedace being rare or 
absent, while nonnative channel catfish and smallmouth bass were 
moderately common prior to 1983 and 1984 floods. Post-1983 flooding, 
adult nonnative predators were generally absent and spikedace were 
collected in moderate numbers in 1985 (Propst et al. 1986, p. 83).
    Green sunfish (Lepomis cyanellus) is also thought to be a predator, 
likely responsible for replacement of natives like spikedace, through 
predation. While no direct studies have been completed on predation by 
green sunfish on spikedace, they are a known predator that occurs 
within occupied spikedace areas.
    Interference competition occurs with species such as red shiner. 
Red shiner appear to be particularly detrimental to spikedace because 
although spikedace and shiners are naturally separated by geography 
(i.e., allopatric), they occupy essentially the same habitat types. Red 
shiner has an inverse distribution pattern to spikedace in that, 
generally, where red shiner is present, spikedace are absent (Minckley 
1973, p. 138). Where the two species occur together, there is evidence 
of displacement of spikedace to less suitable habitats that it 
otherwise did not occupy (Marsh et al. 1989, pp. 67, 107). As a result, 
if red shiners are present, suitable habitat available for spikedace is 
reduced. Range expansion and species recovery may then be curtailed due 
to red shiner presence.
    One study focused on potential impacts of red shiner on spikedace 
in three areas; (1) Portions of the Gila River and Aravaipa Creek 
having only spikedace; (2) a portion of the Verde River where spikedace 
and red shiner have co-occurred for three decades; and (3) a portion of 
the Gila River where red shiner recently invaded areas and where 
spikedace had never been recorded. The study indicated that, for 
reaches where only spikedace were present, spikedace displayed a 
preference for slower currents and smaller particles in the substrate 
than were generally available throughout the Gila River and Aravaipa 
Creek systems. Where red shiner occur in the Verde River, the study 
showed that red shiner occupied waters that were generally slower and 
with smaller particle size in the substrate than were, on average, 
available in the system. The study concludes that spikedace, where co-
occurring with red shiner, move into currents swifter than those 
selected when in isolation, while red shiner occupy the slower habitat, 
whether they are alone or with spikedace (Douglas et al. 1994, pp. 14-
16).
    Western mosquitofish were introduced outside of their native range 
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, p. 320, 
322, 324). 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, p. 323-324).
    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

[[Page 13377]]

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 spikedace 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 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 other fish species in the Colorado River basin (U.S. 
Geological Survey 2004, p. 1, 2005, p. 2).
    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, p. 24). Presence of this parasite in the Gila 
River basin is a threat to the Gila chub and other native fish. In July 
1992, the Bureau of Land Management (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. Creef and Clarkson (1993, p. 1, p. 5) suspected that 
infestations by Lernaea cyprinacea caused high mortality of stocked 
native fish, razorback sucker (Xyrauchen texanus) and Colorado 
pikeminnow (Ptycocheilus lucius).
    The nonnative parasite Ichthyophthirius multifiliis (``Ich'') is a 
potential threat to spikedace. ``Ich'' disease has occurred in some 
Arizona streams, probably favored by high temperatures and crowding as 
a result of drought (Mpoame 1982, p. 46). 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 Sonora sucker (Catostomus insignis), a species 
common throughout the Gila River basin, and ``Ich'' does not appear to 
be hostspecific, so it could be transmitted to other species. ``Ich'' 
is known to be present in Aravaipa Creek (Mpoame 1982, p. 46).

Food

    Food Items. Spikedace are active, highly mobile fish that visually 
inspect drifting materials both at the surface and within the water 
column. Gustatory inspection, or taking potential prey items into the 
mouth before either swallowing or rejecting it, is also common (Barber 
and Minckley 1983, p. 37). Prey body size is small, typically ranging 
from 0.08 to 0.20 inches (2 to 5 mm) long (Anderson 1978, p. 36).
    Stomach content analysis of spikedace determined that mayflies, 
caddisflies, true flies, stoneflies, and dragonflies are all prey items 
for spikedace. In one Gila River study, the frequency of occurrence was 
71 percent for mayflies, 34 percent for true flies, and 25 percent for 
caddisflies (Propst et al. 1986, p. 59). A second Gila River study of 
four samples determined that total food volume was comprised of 72.7 
percent mayflies, 17.6 percent caddisflies, and 4.5 percent true flies 
(Anderson 1978, pp. 31-32). At Aravaipa Creek, mayflies, caddisflies, 
true flies, stoneflies, and dragonflies were all prey items for 
spikedace, as were some winged insects and plant materials (Schreiber 
1978, pp. 12-16, 29, 35-37).
    At Aravaipa Creek, spikedace consumed a total of 36 different prey 
items. Mayflies constituted the majority of prey items, followed by 
true flies. Of the mayflies consumed, 36.5 percent were adults, while 
33.3 percent were nymphs. Terrestrial invertebrates, including ants, 
wasps, and spiders, were also consumed, as were beetles, true bugs, 
caddisflies, and water fleas (Barber and Minckley 1983, pp. 34-38).
    Spikedace diet varies seasonally (Barber and Minckley 1983, pp. 34-
35). Mayflies dominated stomach contents in July, but declined in 
August and September, increasing in importance again between October 
and June. When mayflies were available in lower numbers, spikedace 
consumed a greater variety of foods, including true bugs, true flies, 
beetles, and spiders.
    Spikedace diet varies with age class as well. Young spikedace, 
which measure less than 0.9 inches (22.9 mm) long, fed on a diversity 
of small-bodied invertebrates occurring in and on sediments along the 
margins of the creek. True flies were found most frequently, but water 
fleas and aerial adults of aquatic and terrestrial insects also provide 
significant parts of the diet. As juveniles grow and migrate into the 
swifter currents of the channel, mayfly nymphs (invertebrates between 
the larval and adult life stages, similar to juveniles) and adults 
increase in importance (Barber and Minckley 1983, pp. 36-37).
    Spikedace are very dependent on aquatic insects for sustenance, and 
the production of the aquatic insects consumed by spikedace occurs 
mainly in riffle habitats (Propst et al. 1986, p. 59). As a result, 
habitat selection influences food items found in stomach content 
analyses. Spikedace in pools had eaten the least diverse foods while 
those from riffles contained a greater variety of taxa, indicating that 
the presence of riffles in good condition and abundance help to ensure 
that a sufficient number and variety of prey items will continue to be 
available for spikedace (Barber and Minckley 1983, pp. 36-37, 40).
    Aquatic invertebrates that constitute the bulk of the spikedace 
diet have specific habitat parameters of their own. Mayflies, which 
constituted the largest percentage of prey items, spend their immature 
stages in fresh water. Mayfly nymphs occur in all types of fresh 
waters, wherever there is an abundance of oxygen, but they are most 
characteristic of shallow water. Mayflies found in spikedace stomach 
content analyses consisted of individuals from several genera, with 
individuals from the genus Baetidae constituting the highest percentage 
of prey from the mayfly order in the study by Schreiber (1978, p. 36). 
Baetidae are free-ranging species of rapid waters that maintain 
themselves in currents by clinging to pebbles. Spikedace also consumed 
individuals from two other mayfly genera (Heptageniidae and 
Ephemerellidae), which are considered ``clinging species'' as they 
cling tightly to stones and other objects and may be found in greatest 
abundance in crevices and on the undersides of stones (Pennak 1978, p. 
539). The importance of gravel and cobble substrates is illustrated by 
the fact that these prey species, which make up the bulk of the 
spikedace diet, require these surfaces to persist.

Water Quality

    Pollutants. Water with no or only minimal pollutant levels is 
essential for the survival of spikedace. Spikedace occur in areas where 
mining, agriculture, livestock operations, and

[[Page 13378]]

road construction and use are prevalent. Various pollutants are 
associated with these types of activities. For spikedace, waters should 
have low levels of pollutants such as copper, arsenic, mercury and 
cadmium; human and animal waste products; pesticides; suspended 
sediments; and gasoline or diesel fuels (Baker 2005). In addition, for 
freshwater fish, dissolved oxygen should generally be greater than 3.5 
cubic centimeters per liter (cc/l) (Bond 1979, p. 215). Below this, 
some stress may occur.
    Fish kills have been documented in the San Francisco River (Rathbun 
1969, pp. 1-2) and the San Pedro River (Eberhardt 1981, pp. 1-4, 6-9, 
11-12, 14, 16, and Tables 2-8), both of which are within the species' 
historical range. In both instances, leaching ponds associated with 
copper mines released waters into the streams, resulting in elevated 
levels of toxic chemicals. For the San Pedro River, this included 
elevated levels of iron, copper, manganese, and zinc. Both incidents 
resulted in die-offs of species inhabiting the streams. Eberhardt 
(1981, pp. 1, 3, 9, 10, 14-15) notes that no bottom-dwelling aquatic 
insects, live fish, or aquatic vegetation of any kind were found for a 
60-mi (97 km) stretch of river in the area affected by the spill. 
Rathbun (1969, pp. 1-2) reported similar results for the San Francisco 
River. The possibility for similar accidents, or pollution from other 
sources, exists throughout the ranges of these species due to their 
proximity to mines, communities, agricultural areas, and major 
transportation routes.
    Temperature. Temperatures of occupied spikedace habitat vary with 
time of year. In May, water temperatures at Aravaipa Creek were 
uniformly 66.2 [deg]F (19 [deg]C) (Barber et al. 1970, p. 11). Summer 
water temperatures remained at no more than 80.6 [deg]F (27 [deg]C) at 
Aravaipa Creek (Barber et al. 1970, p. 14), and at a mean of 66.7 
[deg]F (19.3 [deg]C) between June and November on the Gila River in the 
Forks area (at the Middle, West, and East Forks) and 69.4 [deg]F (20.8 
[deg]C) in the Cliff-Gila Valley (Propst et al. 1986, p. 47). Winter 
water temperatures ranged between 69.1 [deg]F (20.6 [deg]C) in November 
down to 48.0 [deg]F (8.9 [deg]C) in December at Aravaipa Creek (Barber 
and Minckley 1966, p. 316). Between December and May, mean temperature 
in the Forks area was 46.0 [deg]F (7.8 [deg]C), and 53.1 [deg]F (11.7 
[deg]C) in the Cliff-Gila Valley (Propst et al. 1986, p. 57). The 
overall range represented by these measures is between 46-80.6 [deg]F 
(7.8-27.0 [deg]C).
    Recent studies by the University of Arizona focused on temperature 
tolerances of spikedace. In the study, fish were acclimated to a given 
temperature, and then temperatures were increased by 1 [deg]C (33.8 
[deg]F) per day until test temperatures were reached. The study 
determined that no spikedace survived exposure of 30 days at 34 or 36 
[deg]C (93.2 or 96.8 [deg]F), and that 50 percent mortality occurred 
after 30 days at 32.1 [deg]C (89.8 [deg]F). In addition, growth rate 
was slowed at 32 [deg]C (89.6 [deg]F), as well as at lower test 
temperatures of 10 [deg]C and 4 [deg]C (50 and 39.2 [deg]F). Multiple 
behavioral and physiological changes were observed indicating that fish 
became stressed at 30, 32, and 33 [deg]C (86, 89.6, and 91.4 [deg]F) 
treatments. The study concludes that temperature tolerance in the wild 
may be lower due to the influence of additional stressors, including 
disease, predation, competition, or poor water quality. Survival of 
fish in the fluctuating temperature trials in the study likely 
indicates that exposure to higher temperatures for short periods during 
a day would be less stressful to spikedace. The study concludes that 
100 percent survival of spikedace at 30 [deg]C (86 [deg]F) in the 
experiment suggests that little juvenile or adult mortality would occur 
due to thermal stress if peak water temperatures remain at or below 
that level (Bonar et al. 2005, pp. 7-8, 29-30).

Reproduction and Rearing of Offspring

    As discussed above under flow velocities, spikedace use a variety 
of habitat types within the channel during their reproductive cycle and 
at various life stages. Although not typically associated with pools, 
pools are used by female spikedace during the breeding season while 
males remained in riffle habitats. Females leave the pools, generally 
on the downstream end of the riffle, and swim upstream to males in 
riffle habitat (Barber et al. 1970, pp.11-12). Unlike loach minnow that 
deposit their eggs in a hole or depression, spikedace spawn in shallow 
riffles and scatter their gametes (reproductive cells) into the water 
column. Spikedace eggs are adhesive and develop among the gravel and 
cobble of the riffles following spawning. Spawning in riffle habitat 
ensures that the eggs are well oxygenated and are not normally subject 
to suffocation by sediment deposition due to the swifter flows found in 
riffle habitats. However, after the eggs have adhered to the gravel and 
cobble substrate, excessive sedimentation could cause suffocation of 
the eggs (Propst et al. 1986, p. 40).

Primary Constituent Elements for the Spikedace

    Pursuant to our regulations, we are required to identify the known 
physical and biological features (primary constituent elements) 
essential to the conservation of the spikedace. All stream complexes 
designated as critical habitat for the spikedace are occupied, are 
within the species' historic geographic range, and contain sufficient 
PCEs to support at least one life history function.
    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 primary constituent elements essential to the conservation of 
the spikedace are:
    1. Permanent, flowing water with no or low levels of pollutants, 
including:
    a. Living areas for adult spikedace with slow to swift flow 
velocities between 20 and 60 cm/second (8 and 24 in/second) in shallow 
water between approximately 10 cm (4 in) and 1 meter (40 in) in depth, 
with shear zones where rapid flow borders slower flow, areas of sheet 
flow (or smoother, less turbulent flow) at the upper ends of mid-
channel sand/gravel bars, and eddies at downstream riffle edges;
    b. Living areas for juvenile spikedace with slow to moderate water 
velocities of approximately 18 cm/second (8 in/second) or higher in 
shallow water between approximately 3 cm (1.2 in) and 1 meter (40 in) 
in depth;
    c. Living areas for larval spikedace with slow to moderate flow 
velocities of approximately 10 cm/second (4 in/second) or higher in 
shallow water approximately 3 cm (1.2 in) to 1 meter (40 in) in depth; 
and
    d. Water with dissolved oxygen levels greater than 3.5 cc/l and no 
or minimal pollutant levels for pollutants such as copper, arsenic, 
mercury, and cadmium; human and animal waste products; pesticides; 
suspended sediments; and gasoline or diesel fuels.
    2. Sand, gravel, and cobble substrates with low or moderate amounts 
of fine sediment and substrate embeddedness. Suitable levels of 
embeddedness are generally maintained by a natural, unregulated 
hydrograph that allows for periodic flooding or, if flows are modified 
or regulated, a hydrograph that allows for adequate river functions, 
such as flows capable of transporting sediments.
    3. Streams that have:
    a. Low gradients of less than approximately 1.0 percent;
    b. Water temperatures in the approximate range of 35 to 86 [deg]F 
(1.7 to

[[Page 13379]]

30.0 [deg]C) (with additional natural daily and seasonal variation);
    c. Pool, riffle, run, and backwater components; and
    d. An abundant aquatic insect food base consisting of mayflies, 
true flies, caddisflies, stoneflies, and dragonflies.
    4. Habitat devoid of nonnative aquatic species or habitat in which 
nonnative aquatic species are at levels that allow persistence of 
spikedace.
    5. Areas within perennial, interrupted stream courses that are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    Units are designated based on sufficient PCEs being present to 
support one or more of the species's life history functions. Some units 
contain all PCEs and support multiple life processes, while some units 
contain only a portion of the PCEs necessary to support the species' 
particular use of that habitat. Where a subset of the PCEs is present 
at the time of designation, this rule protects those PCEs and thus the 
conservation function of the habitat.

Loach Minnow

    The specific primary constituent elements required for the loach 
minnow are derived from the biological needs of the species as 
described in the Background section of this proposal and below.

Space for Individual and Population Growth and Normal Behavior

    As noted for the spikedace above, streams in the Southwestern 
United States have a wide fluctuation in flows and resulting habitat 
conditions at different times of the year. Loach minnow persist in 
these varying conditions and, as discussed below, several studies have 
documented habitat conditions at occupied sites.

Habitat Preferences

    Flow Velocities. Loach minnow live on the bottom of small to large 
rivers, preferring shallow, swift, and turbulent riffles, living and 
feeding among clean, loose, gravel-to-cobble substrates (Anderson and 
Turner 1977, pp. 2, 6-7, 9, 12-13; Barber and Minckley 1966, p. 315; 
Britt 1982, pp. 10-13, 29-30; Lee et al. 1980, p. 365; Marsh et al. 
2003, p. 666; Minckley 1981, p. 165; Velasco 1997, p. 28). Loach minnow 
are sometimes associated with filamentous (threadlike) algae, which are 
attached to the stream substrates (Anderson and Turner 1977, p. 5; Lee 
et al. 1980, p. 365; Minckley 1981, p. 165). Specific habitat use 
varies with the life stage of the fish, as well as geographic location. 
As noted below, researchers have documented a range of flows in areas 
occupied by loach minnow.
    Water Depth and Flow Velocities. One study found loach minnow in 
varying water depths by lifestage, with water depth being 15.5 cm (6.1 
in) for eggs, 10.6 cm (4.2 in) for larvae, 16.8 cm (6.6 in) for 
juveniles, and 18.3 cm (7.2 in) for adults (Propst et al. 1988, p. 38).
    Flow rate studies have been completed on the Gila River, Tularosa 
River, San Francisco River, Aravaipa Creek, and Deer Creek. Measured 
flows in habitat occupied by adult loach minnow ranged from 9.6 to 31.2 
in/second (24.4 to 79.2 cm/second) (Barber and Minckley 1966, p. 321; 
Propst et al. 1988, pp. 32, 36-39; Propst and Bestgen 1991, p. 33; 
Rinne 1989, pp. 112, 116). There is geographic variation in flow 
velocities used by adult loach minnow. Adult loach minnow in the Gila 
River preferred velocities of 1.2 to 14.4 in/second (3.0 to 36.6 cm/
second), while those in Aravaipa Creek preferred velocities of 15.6 to 
20.4 in/second (39.6 to 51.8 cm/second). This may be due to the fact 
that there were considerably more areas of slow velocity available to 
loach minnow in the Gila River, and that there was more and larger 
cobble substrate in the Gila River, which creates more habitat of 
slower velocities for loach minnow to use (Turner and Tafanelli 1983, 
pp. 15-20).
    Juvenile loach minnow generally occurred in areas where velocities 
were similar to those used by adults; however, these areas had faster 
velocities than those used by larvae. In the Gila, San Francisco, and 
Tularosa rivers, juveniles occupied areas with mean velocities ranging 
between 1.2 and 33.6 in/second (3.0 and 85.3 cm/second) (Propst et al. 
1988, pp. 37-38; Propst and Bestgen 1991, p. 32; Rinne 1989, p. 111; 
Turner and Tafanelli 1983, p. 26). Larval loach minnow move from the 
rocks under which they spawned to areas with slower velocities than the 
main stream after emergence, typically remaining in areas with 
significantly slower velocities than juveniles and adults. Larval loach 
minnow in the Gila, San Francisco, and Tularosa rivers occupied areas 
that were shallower and significantly slower than areas where eggs were 
found. In the Gila, San Francisco, and Tularosa rivers, and Aravaipa 
Creek, larval loach minnow occupied areas with flow velocities ranging 
from 3.6 to 19.2 in/second (9.1 to 48.8 cm/second) (Propst et al. 1988, 
p. 37; Propst and Bestgen 1991, p. 32).
    The use of riffle habitat has been documented in Aravaipa Creek 
(Barber and Minckley 1966, p. 321; Rinne 1989, pp. 113, 116; Velasco 
1997, pp. 5-6; Vives and Minckley 1990, pp. 451-452), Eagle Creek 
(Marsh et al. 2003, p. 666), Tularosa River (Propst et al. 1984, pp. 7-
12), and the Gila and San Francisco rivers (Britt 1982, pp. 1, 5, 10-
12, 29; Propst and Bestgen 1991, p. 32; Propst et al. 1984, pp. 7-12; 
Propst et al. 1988, pp. 36-39). Loach minnow prefer shallow, swift, and 
turbulent riffles. However, loach minnow also occur in stream segments 
that contain pool, riffle, and run habitats on the Blue, upper Gila, 
and San Francisco rivers (AGFD 1994, pp. 1, 5-11; Bagley et al. 1995, 
pp. 11, 13, 16, 17, 22; J.M. Montgomery 1985, p. 21).
    Substrates. Loach minnow in Aravaipa Creek occurred over a gravel-
pebble substrate with materials ranging between 3 to 16 mm (0.12 to 
0.63 in) in diameter and, except in the summer, were associated with 
the larger sizes of available substrate. The use of larger substrates 
was disproportionately greater than expected based on overall 
availability of substrate size in the stream, indicating that loach 
minnow have a preference for the larger substrate and tend to use these 
substrate areas rather than areas with smaller substrate (Rinne 1989, 
pp. 112-114). For portions of the upper Gila River occupied by loach 
minnow in 1999 and 2000, substrates were characterized by gravel-pebble 
and cobble substrates, with 70 percent of the sites having a gravel-
pebble substrate, and 14 percent of the sites having cobble substrate 
(Rinne 2001, p. 69).
    Loach minnow in Aravaipa Creek and the Gila River appeared to 
prefer cobble and gravel, avoiding areas dominated by sand or finer 
gravel. This may be due to the fact that loach minnow maintain a 
relatively stationary position on the bottom of a stream in flowing 
water. An irregular bottom, such as that created by cobble or larger 
gravels, creates pockets of lower water velocities around larger rocks 
where loach minnow can remain stationary with less energy expenditure 
(Turner and Tafanelli 1983, pp. 24-25). In the Gila and San Francisco 
rivers, the majority of loach minnow captured occurred in the upstream 
portion of a riffle rather than in the central and lower depositional 
sections of the riffle. This is likely due to the availability of 
interstitial spaces in the cobble-rubble substrate, which became filled 
with sediment more quickly in the central and lower sections of a 
riffle section as suspended sediment begins to settle to the stream 
bottom (Propst et al. 1984, p. 12).
    Loach minnow use different substrates during different life stages. 
Eggs occurred primarily on large gravel

[[Page 13380]]

to rubble, while larvae were found where substrate particles were 
smaller than substrates used by embryos. Juvenile fish occupy areas 
with substrates of larger particle size than larvae. Adults exhibited a 
narrower preference for substrates than did juveniles, and were most 
commonly associated with gravel to cobble substrates (Propst et al. 
1988, pp. 36-39; Propst and Bestgen 1991, pp. 32-33).
    As noted above, streams in the southwestern United States have a 
wide fluctuation in flows and are periodically dewatered. While 
portions of stream segments included in this designation may experience 
dry periods, they are still considered important because the loach 
minnow is adapted to this changing environment and will use these areas 
as connective corridors when they are wetted.
    Flooding. In areas where substantial diversions or impoundments 
have been constructed, loach minnow are less likely to occur (Propst et 
al. 1988, pp. 63-64, Propst and Bestgen 1991, p. 37). This is in part 
due to habitat changes caused by the construction of the diversions, 
and in part due to the reduction of beneficial effects of flooding on 
loach minnow habitat. Flooding appears to positively affect loach 
minnow population dynamics by resulting in higher recruitment 
(reproduction and survival of young) and by decreasing the abundance of 
nonnative fishes (Stefferud and Rinne 1996, p. 1).
    The construction of water diversions, by increasing water depth, 
has reduced or eliminated riffle habitat in many stream reaches. In 
addition, loach minnow are generally absent in stream reaches affected 
by impoundments. While the specific factors responsible for this is not 
known, it is likely related to modification of thermal regimes, 
habitat, food base, or discharge patterns (Propst et al. 1988, p. 64; 
Minckley 1973, pp. 1-11).
    Flooding also cleans, rearranges, and rehabilitates important 
riffle habitat (Propst et al. 1988, pp. 63-64). Flooding allows for the 
scouring of sand and gravel in riffle areas, which reduces the degree 
of embeddedness of cobble and boulder substrates (Britt 1982, p. 45). 
Excessive sediment in the bedload, or that sediment that moves by 
sliding or rolling along the bed of the stream (Leopold et al. 1992, p. 
180) is typically deposited at the downstream undersurfaces of cobble 
and boulder substrate components where flow velocities are lowest, and 
can result in a higher degree of embeddedness (Rinne 2001, p. 69). 
Following flooding, cavities created under cobbles by scouring action 
of the flood waters provides enhanced spawning habitat for loach 
minnow.
    Studies on the Gila, Tularosa, and San Francisco rivers found that 
flooding is primarily a positive influence on native fish, and 
apparently had a positive influence on the relative abundance of loach 
minnow (Britt 1982, p. 45). Rather than following a typical pattern of 
winter mortality and population decline, high levels of loach minnow 
recruitment occurred after the flood, and loach minnow relative 
abundance remained high through the next spring. Flooding enhanced and 
enlarged loach minnow habitat, resulting in a greater survivorship of 
individuals through winter and spring (Propst et al. 1988, p. 51). 
Similar results were observed on the Gila and San Francisco rivers 
following flooding in 1978 (Britt 1982, p. 45).
    Natural flooding may also reduce the negative impacts of nonnative 
fish species on loach minnow. During significant floods, nonnative 
species introduced into western streams were either displaced or 
destroyed, while native species were able to maintain their position in 
or adjacent to channel habitats, persist in micro refuges or recolonize 
should they be displaced (Britt 1982, p. 46; Minckley and Meffe 1987, 
p. 97).
    Stream Gradient. In addition to the availability of riffle habitat, 
gradient may influence the distribution and abundance of loach minnow. 
In studies of the San Francisco River, Gila River, Aravaipa Creek, and 
the Blue River, loach minnow occurred in stream reaches where the 
gradient was generally low, ranging from 0.3 to 2.2 percent (Rinne 
1989, p. 109; Rinne 2001, p. 69).

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

    Nonnative aquatic species. As noted under the discussion of 
nonnative fish species in the spikedace primary constituent elements 
section above, nonnative aquatic species have been introduced for a 
variety of reasons, resulting in interference or exploitive 
competition. Interference competition, such as predation, may result 
from interactions between loach minnow and nonnative channel and 
flathead catfish. Omnivorous channel catfish of all sizes move into 
riffles to feed, preying on the same animals most important to the 
loach minnow diet. Juvenile flathead catfish also feed in riffles in 
darkness. Flathead catfish are piscivorous, even when small. Loach 
minnow remains were found in the digestive tracts of channel catfish 
(Propst et al. 1988, p. 64; Propst and Bestgen 1991, p. 36).
    Exploitive competition, or competition for actual resources 
(Schoener 1983, p. 257), may occur between loach minnow and red shiner, 
as red shiner is the nonnative fish species most likely to occur in 
stream habitats occupied by small loach minnow. Red shiners occur in 
all places known to be formerly occupied by loach minnow, and are 
absent or rare in places where loach minnow persists. Because of this, 
red shiner has often been implicated in the decline of loach minnow, as 
well as other native fishes. Loach minnow habitat is markedly different 
from that of the red shiner, so interaction between the two species was 
unlikely to cause shifts in habitat use by loach minnow (Marsh et al. 
1989, p. 39). Studies indicate that, instead, red shiner move into 
voids left when native fishes such as loach minnow are extirpated due 
to habitat degradation in the area (Bestgen and Propst 1987, p. 209). 
This may preclude occupancy of this area by loach minnow in the future, 
should habitat conditions improve.
    Prior to 1960, the Glenwood-Pleasanton reach of the Gila River 
supported a native fish community of eight different species. Post-
1960, four of these species became uncommon, and ultimately three of 
them were extirpated. In studies completed between 1961 and 1980, it 
was determined that loach minnow was less common than it had been, 
while diversity of the nonnative fish community had increased in 
comparison to the pre-1960 period. Following 1980, red shiner, fathead 
minnow, and channel catfish were all regularly collected. Drought and 
diversions for irrigation resulted in a decline in habitat quality, 
with canyon reaches retaining habitat components for native species. 
However, establishment of nonnative fishes in the canyon reaches then 
reduced the utility of these areas for native species (Propst et al. 
1988, pp. 51-56).
    The discussion on spikedace includes information on other nonnative 
aquatic species such as Asian tapeworm, anchor worm, and Ich, which are 
also detrimental to loach minnow.

Food

    Food Items. Loach minnow are opportunistic, benthic insectivores 
that obtain their food from riffle-dwelling larval mayflies, black 
flies, and true flies, as well as from larvae of other aquatic insect 
groups such as caddisflies and stoneflies. Loach minnow in the Gila, 
Tularosa, and San Francisco rivers

[[Page 13381]]

consumed primarily true flies and mayflies, with mayfly nymphs being an 
important food item throughout the year. Mayfly nymphs constituted the 
most important food item throughout the year for adults studied on the 
Gila and San Francisco Rivers, while true fly larvae were most common 
in the winter months (Propst et al. 1988, p. 27; Propst and Bestgen 
1991, p. 35). In Aravaipa Creek, loach minnow consumed 11 different 
prey items, including mayflies, stoneflies, caddisflies, and true 
flies. Mayflies constituted the largest percentage of their diet during 
this study except in January, when true flies made up 54.3 percent of 
the total food volume (Schreiber 1978, pp. 40-41).
    Loach minnow consume different prey items during their various life 
stages. Both larvae and juveniles primarily consumed true flies, which 
constituted approximately 7 percent of their food items in one year, 
and 49 percent the following year. Mayfly nymphs were also an important 
dietary element at 14 percent and 31 percent during a one-year study. 
Few other aquatic macroinvertebrates were consumed (Propst et al. 1988, 
p. 27). In a second study, true fly larvae and mayfly naiads 
constituted the primary food of larval and juvenile loach minnow 
(Propst and Bestgen 1991, p. 35).
    The availability of pool and run habitats affects availability of 
prey species. While most of the food items of loach minnow are riffle 
species, two are not, including true fly larvae and mayfly nymphs. 
Mayfly nymphs, at times, made up 17 percent of the total food volume of 
loach minnow in a study at Aravaipa Creek (Schreiber 1978, pp. 40-41). 
The presence of a variety of habitat types is therefore important to 
the persistence of loach minnow in a stream, even while they are 
typically associated with riffles.

Water Quality

    Pollutants. Water with no or only minimal pollutant levels is 
important for the conservation of loach minnow. As with spikedace, 
loach minnow occur in areas where mining, agriculture, livestock 
operations, and road construction are prevalent activities. Various 
pollutants are associated with these types of activities. For loach 
minnow, waters should have low levels of pollutants, such as copper, 
arsenic, mercury, and cadmium; human and animal waste products; 
pesticides; suspended sediments; and gasoline or diesel fuels (Baker 
2005). In addition, for freshwater fish, dissolved oxygen should 
generally be greater than 3.5 cc/l (Bond 1979, p. 215). Below this, 
some stress may occur.
    Fish kills associated with previous mining accidents are detailed 
under the spikedace PCEs above. These incidents occurred within the 
historical range of the loach minnow.
    Temperatures. Loach minnow have a fairly narrow range in 
temperature tolerance, and their upstream distributional limits in some 
areas may be linked to low winter stream temperature (Propst et al. 
1988, p. 62). Suitable temperature regimes appear to be fairly 
consistent across geographic areas. Studies of Aravaipa Creek, East 
Fork White River, the San Francisco River, and the Gila River 
determined that loach minnow were present in areas with water 
temperatures in the range of 48.2 to 71.6 [deg]F (9 to 22 [deg]C) 
(Britt 1982, p. 31; Leon 1989, p. 1; Propst et al. 1988, p. 62; Propst 
and Bestgen 1991, p. 33; Vives and Minckley 1990, p. 451).
    Recent studies by the University of Arizona focused on temperature 
tolerances of loach minnow. In the study, fish were acclimated to a 
given temperature, and then temperatures were increased by 1 [deg]C 
(33.8 [deg]F) per day until test temperatures were reached. The study 
determined that no loach minnow survived 30 days at 32 [deg]C (89.6 
[deg]F), and that 50 percent mortality occurred after 30 days at 30.6 
[deg]C (87.1 [deg]F). In addition, growth rate was slowed at 28 [deg]C 
and 30 [deg]C (82.4 and 86.0 [deg]F) in comparison to growth at 25 
[deg]C (77 [deg]F), indicating that loach minnow were stressed at sub-
lethal temperatures. Survival of fish in the fluctuating temperature 
trials of the study likely indicates that exposure to higher 
temperatures for short periods during a day would be less stressful to 
loach minnow. The study concludes that temperature tolerance in the 
wild may be lower due to the influence of additional stressors, 
including disease, predation, competition, or poor water quality. The 
study concludes that 100 percent survival of loach minnow at 28 [deg]C 
(82.4 [deg]F) suggests that little juvenile or adult mortality would 
occur due to thermal stress if peak water temperatures remain at or 
below that level (Bonar et al. 2005, pp. 6-8, 28, 33).

Reproduction and Rearing of Offspring

    Habitat conditions needed for reproduction and rearing of offspring 
include appropriate flow velocities, substrates, sediment levels, and 
riffle availability. Loach minnow place eggs in areas with mean 
velocities ranging between 2.4 to 15.6 in/second (3.0 to 39.6 cm/
second) in the Gila, San Francisco, West Fork, Middle Fork, and East 
Fork Gila rivers (Britt 1982, pp. 29-30; Propst et al. 1988, p. 25; 
Propst and Bestgen 1991, p. 34). Fungal infections developed on egg 
masses found in slow-velocity waters of less than 2.4 in/second (6.2 
cm/second) (Propst et al. 1988, p. 25; Propst and Bestgen 1991, p. 34). 
Once hatched, areas of slower flows appear important to larval loach 
minnow as they have been found in slower-velocity stream margins 
(Propst et al. 1988, pp. 37-38).
    Substrate type is important to spawning as well. While loach minnow 
spawning occurs in the same riffle habitat that adults occupy, it is 
the substrate that determines its suitability for spawning. Eggs are 
deposited on the undersurface of rocks or cobbles. Rocks are generally 
flattened, have smooth surfaces, and are angular. Rocks which have eggs 
attached are generally embedded on their upstream side in the 
substrate. Eggs placed under rocks in the Gila River, San Francisco 
River, and Aravaipa Creek were placed on the underside of rocks in nest 
cavities formed by rocks of varying sizes (Britt 1982, pp. 29, 31; 
Propst et al. 1988, p. 21; Vives and Minckley 1990, pp. 451-452).
    Loach minnow spawning is the life history stage most affected by 
sediment or fines (Rinne 2001, p. 69). Because deposition of eggs 
occurs on the downstream undersurfaces of cobble and boulder substrate 
components, excessive fines in the bedload of a system can fill in the 
areas where eggs would otherwise be deposited, especially in areas of 
slower velocities.

Primary Constituent Elements for the Loach Minnow

    Pursuant to our regulations, we are required to identify the known 
physical and biological features (primary constituent elements) 
essential to the conservation of the loach minnow. All stream complexes 
designated as critical habitat for the loach minnow are considered 
occupied, within the species' historic geographic range, and contain 
sufficient PCEs to support at least one life history function.
    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 primary constituent elements essential to the conservation of 
the loach minnow are:
    1. Permanent, flowing water with no or minimal pollutant levels, 
including:
    a. Living areas for adult loach minnow with moderate to swift flow 
velocities between 9.0 to 32.0 in/second (24 to 80 cm/second) in 
shallow water between approximately 1.0 to 30 inches

[[Page 13382]]

(3 cm to 75 cm) in depth, with gravel, cobble, and rubble substrates;
    b. Living areas for juvenile loach minnow with moderate to swift 
flow velocities between 1.0 and 34 in/second (3.0 and 85.0 cm/second) 
in shallow water between approximately 1.0 to 30 inches (3 cm to 75 cm) 
in depth with sand, gravel, cobble, and rubble substrates;
    c. Living areas for larval loach minnow with slow to moderate 
velocities between 3.0 and 20.0 in/second (9.0 to 50.0 cm/second) in 
shallow water with sand, gravel, and cobble substrates;
    d. Spawning areas with slow to swift flow velocities in shallow 
water where cobble and rubble and the spaces between them are not 
filled in by fine dirt or sand; and
    e. Water with dissolved oxygen levels greater than 3.5 cc/l and no 
or minimal pollutant levels for pollutants such as copper, arsenic, 
mercury, and cadmium; human and animal waste products; pesticides; 
suspended sediments; and gasoline or diesel fuels.
    2. Sand, gravel, and cobble substrates with low or moderate amounts 
of fine sediment and substrate embeddedness. Suitable levels of 
embeddedness are generally maintained by a natural, unregulated 
hydrograph that allows for periodic flooding or, if flows are modified 
or regulated, a hydrograph that allows for adequate river functions, 
such as flows capable of transporting sediments.
    3. Streams that have:
    a. Low gradients of less than approximately 2.5 percent;
    b. Water temperatures in the approximate range of 35 to 82 [deg]F 
(1.7 to 27.8 [deg]C) (with additional natural daily and seasonal 
variation);
    c. Pool, riffle, run, and backwater components; and
    d. An abundant aquatic insect food base consisting of mayflies, 
true flies, black flies, caddisflies, stoneflies, and dragonflies.
    4. Habitat devoid of nonnative aquatic species or habitat in which 
nonnative aquatic species are at levels that allow persistence of loach 
minnow.
    5. Areas within perennial, interrupted stream courses that are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    Units are designated based on sufficient PCEs being present to 
support one or more of the species' life history functions. Some units 
contain all PCEs and support multiple life processes, while some units 
contain only a portion of the PCEs necessary to support the species' 
particular use of that habitat. Where a subset of the PCEs is present 
at the time of designation, this rule protects those PCEs and thus the 
conservation function of the habitat.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas that contain the features essential 
to the conservation of the spikedace and loach minnow. In designating 
critical habitat for the spikedace and loach minnow, we solicited 
information from knowledgeable biologists and reviewed recommendations 
contained in State wildlife resource reports. We also reviewed the 
available literature pertaining to habitat requirements, historical 
localities, and current localities of the two species. 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 GIS data layer coverages.
    We have also reviewed historical and current occurrence data, 
information pertaining to habitat requirements for these species, 
scientific information on the biology and ecology of the two species, 
general conservation biology principles, and scientific information 
cited in the Recovery Plans for these two species. Of particular 
importance, we reviewed databases, published literature, and field 
notes to determine the historical and current occurrence data for the 
two species. The SONFishes Database (ASU 2002) details occurrence 
records from the 1800s through 1999. The Heritage Database Management 
System (HDMS) (AGFD 2004) contains information for Arizona with some 
overlap of SONFishes records, as well as records from 1999 through 
2004. Agency and researcher field notes and published literature 
contain additional information on completed surveys and species 
detections.

Criteria for Defining Critical Habitat

    We are designating critical habitat on lands within the 
geographical range occupied at the time of listing and currently 
occupied by either, or in some cases both, the spikedace and loach 
minnow. We consider an area to be occupied by the spikedace or loach 
minnow if we have records to support occupancy within the last 10 
years, or where the stream segment is directly connected to a segment 
with occupancy records from within the last 10 years (this is described 
within each unit description below). The three connected areas (see 
Table 1 above) included in the designation are within the historical 
range of the species, contain one or more of the PCEs required by 
spikedace or loach minnow, have been occupied in the past, and are 
directly connected to a stream segment with records of occupancy from 
2004 or 2005 (see Table 1 above). For the following reasons we believe 
that these areas are occupied for the purposes of this critical habitat 
designation: (1) The areas are directly connected to stream segments 
with recent occupancy records (2004 and 2005); (2) the stream segments 
are connected and the fish can move between them; (3) surveys have been 
infrequent or inconsistent and spikedace and loach minnow can be 
difficult to detect in surveys; and (4) we have other streams in which 
the species were not detected for long periods before being detected 
again [e.g., Eagle Creek, where there was a 44 year gap between loach 
minnow detections (see Marsh et al. 2003, p. 666)]. We believe a period 
of 10 years is reasonable to determine occupancy based on the fact that 
both species are difficult to detect in surveys, surveys have been 
infrequent or inconsistent because many of the areas where they occur 
are remote, and as noted above, we have areas where these species were 
not detected for long periods of time (44 years) and then detected 
again. The life expectancy of spikedace and loach minnow is 2 to 3 
years. A period of 10 years would represent a time period that provides 
for three to four generations of spikedace and loach minnow.
    We divided the overall historical range into five river complexes, 
and each critical habitat stream segment was derived from within these 
larger complexes. We believe this is a reasonable approach because 
populations in mainstem tributaries may access a wider geographic area 
by moving into smaller tributaries, while populations in tributaries 
are afforded the ability to disperse to other tributaries via the 
mainstem river within that complex. Overall, the complexes included 
herein provide coverage throughout the historical range of the species, 
with exceptions for areas that were excluded for specific reasons, as 
detailed below (see ``Exclusions under Section 4(b)(2) of the Act'' 
section below). The critical habitat designation constitutes our best 
assessment of areas that contain sufficient features (PCEs) essential 
to the conservation of spikedace and loach minnow and that require 
special management or protection.
    We are designating critical habitat in areas that we have 
determined to be occupied at the time of listing, and that

[[Page 13383]]

contain sufficient primary constituent elements to support life history 
functions essential for the conservation of the species. Lands were 
included in the designation based on sufficient PCEs being present to 
support the life processes of the species. Some lands contain all PCEs 
and support multiple life processes. Some lands contain only a portion 
of the PCEs necessary to support the particular use of that habitat. In 
determining whether an area contains sufficient PCEs, the Service 
looked at various databases and survey records to determine occupancy, 
as well as habitat descriptions at various locations. We relied on 
information provided in survey reports and research documents to 
describe conditions at various locations. This information was then 
synthesized to develop the critical habitat designation.
    When determining final critical habitat map boundaries, we made 
every effort to avoid including developed areas such as buildings, 
paved areas, and other structures that lack any PCEs for the spikedace 
and loach minnow. Any such structures and the land under them 
inadvertently left inside critical habitat boundaries of this final 
rule are excluded by text and are not designated as critical habitat. 
Therefore, Federal actions limited to these areas would not trigger 
section 7 consultation, unless they affect the species or primary 
constituent elements in adjacent critical habitat.

Lateral Extent

    The areas designated as critical habitat are designed to provide 
sufficient riverine and associated floodplain area for breeding, non-
breeding, and dispersing adult spikedace and loach minnow, as well as 
for the habitat needs of juvenile and larval stages of these fishes. In 
general, the primary constituent elements of critical habitat for 
spikedace and loach minnow include the riverine ecosystem formed by the 
wetted channel and the adjacent floodplains within 300 lateral feet on 
either side of bankfull stage, except where bounded by canyon walls. 
Areas within the lateral extent also contribute to PCEs 1 and 2 (water 
quality) and contain PCEs 3 (food source) and 5 (provide areas where 
the fish may move through when wetted). Spikedace and loach minnow use 
the riverine ecosystem for feeding, sheltering, and cover while 
breeding and migrating. This designation takes into account the 
naturally dynamic nature of riverine systems and floodplains (including 
riparian and adjacent upland areas) that 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, 
pp. 2-61, 2-69, 2-72, 2-75, 2-84 to 2-85). 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 important for 
aquatic species (e.g., see U.S. Forest Service 1979, pp. 18, 109, 158, 
264, 285, 345; Middle Rio Grande Biological Interagency Team 1993, pp. 
64, 89, 94), including the spikedace and loach minnow. Habitat quality 
within the mainstem river channels in the historical range of the 
spikedace and loach minnow 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. We have 
determined that a relatively intact riparian area, along with periodic 
flooding in a relatively natural pattern, is important for maintaining 
the PCEs necessary for long-term conservation of the spikedace and 
loach minnow.
    The lateral extent (width) of riparian corridors fluctuates 
considerably between a stream's headwaters and its mouth. The 
appropriate width for riparian buffer strips has been the subject of 
several studies (Castelle et al. 1994). Most Federal and State agencies 
generally consider a zone 23-46 m (75-150 ft) wide on each side of a 
stream to be adequate (NRCS 1998; Moring et al. 1993; Lynch et al. 
1985), although buffer widths as wide as 152 m (500 ft) have been 
recommended for achieving flood attenuation benefits (Corps 1999). In 
most instances, however, riparian buffer zones are primarily intended 
to reduce (i.e., buffer) detrimental impacts to the stream from sources 
outside the river channel. Consequently, while a riparian corridor 23-
46 m (75-150 ft) in width may function adequately as a buffer, it is 
likely inadequate to preserve the natural processes that provide 
spikedace and loach minnow primary constituent elements.
    The lateral extent of streams was set at 300 ft (91.4 m) to either 
side of bankfull stage to accommodate stream meandering and high flows, 
and in order to ensure that this designation contained the features 
essential to the conservation of the species. Bankfull stage is defined 
as the upper level of the range of channel-forming flows which 
transport the bulk of the available sediment over time. Bankfull stage 
is generally considered to be that level of stream discharge reached 
just before flows spill out onto the adjacent floodplain. The discharge 
that occurs at bankfull stage, in combination with the range of flows 
that occur over a length of time, govern the shape and size of the 
river channel (Rosgen 1996, pp. 2-2 to 2-4; Leopold 1997, pp. 62-63, 
66). The use of bankfull stage and 300 ft (91.4 m) on either side 
recognizes the naturally dynamic nature of riverine systems, recognizes 
that floodplains are an integral part of the stream ecosystem, and 
contains the area and associated features essential to the conservation 
of the species. A relatively intact floodplain, along with the periodic 
flooding in a relatively natural pattern, is an important element in 
the conservation of spikedace and loach minnow.
    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 these species occur. 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 important 
nutrient recharge and protection from sediment and pollutants; and (3) 
vegetated lateral zones are widely recognized as

[[Page 13384]]

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).
    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 conclude 
that 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 survival and recovery of the 
spikedace and loach minnow.
    Conservation of the river channel alone is not sufficient to ensure 
the survival and recovery of the spikedace and loach minnow. For the 
reasons discussed above, we believe the riparian corridors adjacent to 
the river channel provide an important function within the areas 
designated as critical habitat.

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 as described in our unit 
descriptions and Table 1.
    Special management considerations for each area will depend on the 
threats to the spikedace and/or loach minnow in that critical habitat 
area. For example, threats requiring special management include 
nonnative fish species and the continued spread of nonnative fishes 
into spikedace or loach minnow habitat. Other threats requiring special 
management include threat of fire, retardant application during the 
fire, and excessive ash and sediment following the fire. On-going 
improper livestock grazing can be a threat to spikedace and loach 
minnow and their habitats. Poor water quality and adequate quantities 
of water for all life stages of spikedace and loach minnow threaten 
these fish and may require special management actions or protections. 
The construction of water diversions, by increasing water depth, has 
reduced or eliminated riffle habitat in many stream reaches. In 
addition, loach minnow are generally absent in stream reaches affected 
by impoundments. While the specific factor responsible for this is not 
known, it is likely related to modification of thermal regimes, 
habitat, food base, or discharge patterns. We have included below in 
our description of each of the critical habitat areas for the spikedace 
and loach minnow a description of the threats occurring in that area 
requiring special management or protections.
    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 spikedace and 
loach minnow. 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.

Critical Habitat Designation

    Below are tables and descriptions of the critical habitat segments, 
including discussion of excluded and exempted areas within each 
segment. For each stream reach, the upstream and downstream boundaries 
are described. Additionally, critical habitat includes the stream 
channels within the identified stream reaches and areas within these 
reaches and, as described above, the area of bankfull width plus 300 
lateral feet on either side of bankfull width, except when the 
floodplain is narrow and bounded by canyon walls. This 300-foot width 
defines the lateral extent of each area of critical habitat that 
contains sufficient PCEs (3 and 5) to provide for one or more of the 
life history functions of the spikedace and loach minnow.
    The critical habitat designation for both spikedace and loach 
minnow includes five complexes totaling approximately 522.2 mi (840.4 
km) of stream reaches (see Tables 1 and 2). The spikedace and loach 
minnow critical habitat areas described below constitute our best 
assessment at this time of areas determined to be occupied at the time 
of listing, that contain the primary constituent elements and may 
require special management, and those additional areas that were not 
occupied at the time of listing but are currently occupied and contain 
the features essential to the conservation of the species. Unless 
otherwise indicated, the following areas identified in Table 1 and in 
the unit descriptions below, are designated as critical habitat for 
both spikedace and loach minnow (see the ``Regulation Promulgation'' 
section of this rule below for exact descriptions and distances of 
boundaries). The designation includes portions of 8 streams for 
spikedace and 21 streams for loach minnow; however, individual streams 
are not isolated, but are grouped with others to form areas or 
``complexes.''
    Table 2 below provides approximate area (mi/km) determined to meet 
the definition of critical habitat for the spikedace and loach minnow 
by State.

     Table 2.--Approximate Critical Habitat in Stream Miles (mi) and Kilometers (km) by State and Landowner
----------------------------------------------------------------------------------------------------------------
                                                                               New Mexico  mi
                         Landowner                          Arizona  mi (km)        (km)         Total  mi (km)
----------------------------------------------------------------------------------------------------------------
Federal...................................................     170.4 (274.2)     167.7 (269.9)     338.1 (544.1)
State.....................................................        8.0 (12.9)         1.3 (2.1)          9.3 (15)
Tribal....................................................         2.1 (3.4)             0 (0)         2.1 (3.4)
Private...................................................      90.2 (145.1)      82.5 (132.8)     172.7 (277.9)
                                                           -----------------------------------------------------
    Total.................................................     270.7 (435.6)     251.5 (404.8)     522.2 (840.4)
----------------------------------------------------------------------------------------------------------------


[[Page 13385]]


  Table 3.--Areas Determined To Meet the Definition of Critical Habitat
for the Spikedace and Loach Minnow and the Areas Excluded From the Final
                      Critical Habitat Designation
                            [ac (ha)/mi (km)]
------------------------------------------------------------------------
                                                          Area excluded
                                      Area meeting the   from the final
      State or geographic area          definition of   critical habitat
                                      critical habitat  designation  (mi/
                                           (mi/km)             km)
------------------------------------------------------------------------
Arizona.............................     373.7 (601.5)     103.1 (165.9)
New Mexico..........................     258.8 (416.4)        7.3 (11.7)
                                     -----------------------------------
    Total...........................    632.5 (1017.9)     110.3 (177.5)
------------------------------------------------------------------------

    The approximate area encompassed within each critical habitat unit 
is shown in Table 4.

 Table 4.--Critical Habitat Units Designated for the Spikedace and Loach
                                 Minnow
   [Area estimates reflect all land within critical habitat complexes]
------------------------------------------------------------------------
                  Critical habitat unit                     Mi      Km
------------------------------------------------------------------------
1. Verde River..........................................    43.0    69.2
2. Black River..........................................    18.1    29.1
3. Lower San Pedro/Gila River/Aravaipa Creek............    85.5   137.5
4. Gila Box/San Francisco River.........................   235.0   378.2
5. Upper Gila River.....................................   140.6   226.3
                                                         ---------------
  Total.................................................   522.2   840.4
------------------------------------------------------------------------

Complex 1--Verde River Complex--Yavapai County, Arizona

    Spikedace have been detected in the Verde River Complex since 1890. 
The Verde River was known to be occupied by spikedace at the time of 
listing, and is still considered to be occupied based on surveys 
documenting spikedace presence as recently as 1999. This complex was 
also historically occupied by loach minnow, with records from 1890 and 
1938 (ASU 2002, Brouder 2002, AGFD 2004). At this time, the tributary 
streams of the Verde River are believed to be unoccupied by both 
species and are not being included as critical habitat. The Verde River 
Complex is unusual in that a relatively stable thermal and hydrologic 
regime is found in the upper river and in Fossil Creek, one of the 
tributaries to the Verde River. Also, spikedace in the Verde River are 
genetically distinct from all other spikedace populations (Tibbets 
1993, pp. iii-iv, 34-35; Anderson and Hendrickson 1994, p. 154). The 
Verde River contains one or more of the primary constituent elements, 
including shear zones, sheet flow, and eddies, and an appropriate prey 
base. In addition, the lateral extent of each segment within this 
complex of critical habitat contains sufficient PCEs (3 and 5) to 
provide for one or more of the life history functions of the spikedace 
and loach minnow. The continuing presence of spikedace and the 
existence of features that are essential to the conservation of the 
species create a high potential for restoration of loach minnow to the 
Verde River system. Threats to this critical habitat area requiring 
special management and protections include water diversions, improper 
livestock grazing, and nonnative fish species (see Table 1 above).
    The landownership of this complex consists of large blocks of U.S. 
Forest Service lands in the upper and lower reaches, with significant 
areas of private ownership in the Verde Valley. There are also lands 
belonging to Arizona State Parks, Yavapai Apache Tribe, and the AGFD. 
The Verde River divides the west and east halves of the Prescott 
National Forest, and passes by or through the towns of Camp Verde, 
Middle Verde, Bridgeport, Cottonwood, and Clarkdale.
    Verde River Complex--Spikedace Only--43 mi (69.2 km) of river 
extending from the Prescott and Coconino National Forest boundary with 
private lands upstream to Sullivan Dam at Township 17 North, Range 2 
West, section 15. Sullivan Dam is at the upstream limit of perennial 
flow in the mainstem of the Verde River. Perennial flow results from a 
series of river-channel springs and from Granite Creek. The Verde River 
contains features essential to the conservation of the spikedace 
between its headwaters and Fossil Creek. These portions of the Verde 
River provide a relatively stable thermal and hydrologic regime 
suitable for spikedace. Below Fossil Creek, the Verde River has a 
larger flow and is thought to offer little suitable habitat (i.e., does 
not contain sufficient PCEs) for spikedace or loach minnow. The Verde 
River below Fossil Creek is within the historical range for both 
species, and comments on previous critical habitat designations from 
the U.S. Forest Service indicated this stretch of the river may offer 
substantial value for spikedace and loach minnow recovery. We will 
continue to seek further information regarding the Verde River and its 
role in conservation for these two species and may consider designation 
of the Verde River below Fossil Creek in future potential revisions of 
critical habitat. At this time, however, we are excluding all land 
south of the Coconino and Prescott National Forest boundaries at the 
upper end of the Verde Valley due to disproportionate economic concerns 
(see Exclusions under Section 4(b)(2) below).

Complex 2--Black River Complex--Apache and Greenlee Counties, Arizona

    The Salt River Sub-basin represents a significant portion of loach 
minnow historical range; however, loach minnow have been extirpated 
from all but a small portion of the Black and White rivers. The Black 
River Complex is considered important because it is the only remaining 
population of loach minnow on public lands in the Salt River Sub-basin.
    We are designating streams within this complex as critical habitat 
for loach minnow only. At this time, spikedace are not known to 
historically occupy areas at this elevation; however, the data on 
maximum elevation for spikedace are not definitive and if information 
becomes available that differs from that currently available, the Black 
River Complex may be reevaluated for spikedace critical habitat 
designation in a future revision. Portions of the sub-basin are 
unsuitable, either because of topography or because of the presence of 
reservoirs, stream channel alteration by humans, or overwhelming 
nonnative fish populations. However, other areas within the sub-basin 
remain suitable. Complex 2 was not known to be occupied at listing, 
with first detections of loach minnow occurring in 1996. It is 
currently occupied by loach minnow

[[Page 13386]]

(Bagley et al. 1995, multiple surveys; Lopez 2000, p. 1; ASU 2002; AGFD 
2004). Because the range of loach minnow has been severely reduced, and 
only a few streams remain occupied, the Black River Complex is 
considered essential to the loach minnow. In addition, Complex 2 
supports one or more of the PCEs for loach minnow, including sufficient 
flow velocities and appropriate gradients, substrates, depths, and 
habitat types (i.e., riffles, runs). In addition, the lateral extent of 
each segment within this complex of critical habitat contains 
sufficient PCEs (3 and 5) to provide for one or more of the life 
history functions of the spikedace and loach minnow. Threats in this 
complex requiring special management or protections include improper 
livestock grazing, nonnative fish, recreation, and sedimentation 
including that from a recent fire that destroyed vegetation (see Table 
1). The ownership of this complex is predominantly U.S. Forest Service, 
with a few small areas of private land. All streams within the complex 
are within the boundaries of the Apache-Sitgreaves National Forest and 
include lands of the White Mountain Apache Tribe.
    (1) East Fork Black River--Loach Minnow Only--12.2 mi (19.7 km) of 
river extending from the confluence with the West Fork Black River 
upstream to the confluence with an unnamed tributary approximately 0.51 
mi (0.82 km) downstream of the Boneyard Creek confluence. This area is 
considered occupied based on records from 1996, it is connected to the 
North Fork East Fork Black River with documented loach minnow records 
from 2004, and contains one or more of the primary constituent elements 
including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., riffles, runs).
    (2) North Fork East Fork Black River--Loach Minnow Only--4.4 mi 
(7.1 km) of river extending from the confluence with the East Fork 
Black River upstream to the confluence with an unnamed tributary. This 
area is occupied by loach minnow based on surveys documenting presence 
of loach minnow as recently as 2004. Above the unnamed tributary, the 
river has finer substrate and lacks riffle habitat, making it 
unsuitable for loach minnow.
    (3) Boneyard Creek--Loach Minnow Only--1.4 mi (2.3 km) of creek 
extending from the confluence with the East Fork Black River upstream 
to the confluence with an unnamed tributary. Boneyard Creek contains 
one or more of the primary constituent elements, including sufficient 
flow velocities and appropriate gradients, substrates, depths, and 
habitat types (i.e., riffles, runs). This area is considered to be 
occupied based on records from 1996; it is also connected to the North 
Fork East Fork Black River which has documented loach minnow records 
from 2004. This area represents part of the only occupied complex in 
the Salt River basin.
    (4) East Fork White River--Loach Minnow Only--12.5 mi (20.1 km) of 
the East Fork White River extending from the confluence with the North 
Fork White River and the East Fork White River at Township 5 North, 
Range 22 East, section 35 upstream to Township 5 North, Range 23 East, 
southeast quarter of section 13. This area was occupied by loach minnow 
at the time of listing and is reported to be currently occupied by the 
White Mountain Apache Tribe. This segment of the East Fork White River 
contains sufficient features to support one or more of the life history 
functions of the loach minnow that may include appropriate gradient, 
temperature, habitat types (pool, riffle, run, etc.), and low levels of 
non-natives. Threats in this segment requiring special management or 
protections include water diversions and recreation. The entirety of 
this reach is located on lands belonging to the White Mountain Apache 
Tribe. A management plan for loach minnow has been in place on these 
lands since 2000. On the basis of this plan and our partnership with 
the White Mountain Apache Tribe, we are excluding this area from final 
critical habitat pursuant to section 4(b)(2) of the Act (see 
``Relationship of Critical Habitat to Tribal Lands'' section below for 
additional information).

Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek Complex--Pinal 
and Graham Counties, Arizona

    The portions of this complex designated as critical habitat are 
within the geographical range occupied by both spikedace and loach 
minnow at their listing and currently. Spikedace and loach minnow have 
been present within this complex since 1943, with occupancy confirmed 
most recently in 2006 (ASU 2002, AGFD 2004, Rienthal 2006, p. 2-3). The 
portions of the Gila and San Pedro rivers included within this complex 
were not known to be occupied at listing, with the first detection on 
the Gila River occurring in 1991 (Jakle 1992, p. 6). However, this area 
is connected via the San Pedro River to Aravaipa Creek, which contains 
one of the largest remaining populations of spikedace, and is therefore 
considered to be occupied for the purposes of critical habitat. Because 
the distribution of spikedace is reduced to populations in the Verde 
River, Aravaipa Creek, and the Gila River in New Mexico, all remaining 
populations are considered important to the species. This complex 
contains one or more of the PCEs for both species including sufficient 
flow velocities and appropriate gradients, substrates, depths, and 
habitat types (i.e., riffles, runs). In addition, the lateral extent of 
each segment within this complex of critical habitat contains 
sufficient PCEs (3 and 5) to provide for one or more of the life 
history functions of the spikedace and loach minnow. Ongoing actions 
requiring special management or protections in this area include 
wildfire, some recreational pressure, low nonnative pressures, water 
diversions, and contaminants issues. Aravaipa Creek supports the 
largest remaining spikedace and loach minnow populations in Arizona. 
Threats in this complex requiring special management or protections 
include water diversions, improper livestock grazing, nonnative fish, 
recreation, and mining (see Table 1). This area includes extensive BLM 
land as well as extensive private land, some State of Arizona lands, 
and a small area of allotted land, used by the San Carlos Apache Tribe. 
The lower portions of the Gila River are Bureau of Reclamation lands.
    (1) Gila River--Spikedace Only--39.0 mi (62.8 km) of river 
extending from the Ashurst-Hayden Dam upstream to the confluence with 
the San Pedro River. Spikedace were located in the Gila River in 1991 
(Jakle 1992, p. 6), and the Gila River is connected with Aravaipa 
Creek, which supports the largest remaining spikedace population. Those 
portions of the Gila River designated as critical habitat contain one 
or more of the primary constituent elements, including sufficient flow 
velocities and appropriate gradients, substrates, depths, and habitat 
types (i.e., glides, runs, eddies). Above the confluence with the San 
Pedro River, flow in the Gila River is highly regulated by the Coolidge 
Dam and does not contain the features essential to the conservation of 
either species. Below the confluence, the input of the San Pedro 
provides a sufficiently unregulated hydrograph, which is a feature 
essential to the conservation of the spikedace. Threats in this area 
requiring special management or protections include water diversions, 
improper livestock grazing, and nonnative fish species. This river is 
part of the complex that contains the largest remaining population of 
spikedace and loach

[[Page 13387]]

minnow and contains the features essential to the conservation of the 
species.
    (2) Lower San Pedro River--Spikedace Only--13.4 mi (21.5 km) of 
river extending from the confluence with the Gila River upstream to the 
confluence with Aravaipa Creek. This area was occupied at the time of 
listing and is considered to be occupied as it is directly connected 
with Aravaipa Creek, which supports the largest remaining spikedace 
population. This portion of the San Pedro River contains one or more of 
the primary constituent elements, including sufficient flow velocities 
and appropriate gradients, substrates, depths, and habitat types (i.e., 
glides, runs, eddies). Existing flow in the river comes from surface 
and subsurface contributions from Aravaipa Creek. Threats in this area 
requiring special management or protections include water diversions, 
nonnative fish, improper livestock grazing, and mining. This river is 
part of the complex that contains the largest remaining population of 
spikedace and loach minnow and contains the features essential to the 
conservation of the species.
    (3) Aravaipa Creek--28.1 mi (45.3 km) of creek extending from the 
confluence with the San Pedro River upstream to the confluence with 
Stowe Gulch, which is where the upstream limit of sufficient perennial 
flow ends for either species. Aravaipa Creek was occupied by both 
spikedace and loach minnow at the time of listing and continues to 
support a substantial population of both species (Rienthal 2006, p. 1-
2). Aravaipa Creek contains one or more of the primary constituent 
elements, including sufficient flow velocities and appropriate 
gradients, substrates, depths, and habitat types (i.e., runs, riffles, 
glides, eddies). Threats in this area requiring special management or 
protections include water diversions, nonnative fish, and recreational 
pressures (see Table 1).
    (4) Turkey Creek--Loach Minnow Only--2.7 mi (4.3 km) of creek 
extending from the confluence with Aravaipa Creek upstream to the 
confluence with Oak Grove Canyon. This creek was occupied at the time 
of listing and is currently occupied by loach minnow (Rienthal 2006, p. 
2-3). Turkey Creek contains one or more of the primary constituent 
elements, including sufficient flow velocities and appropriate 
gradients, substrates, depths, and habitat types (i.e., riffles, runs). 
Threats to this area requiring special management or protections are 
generally the same as for Aravaipa Creek, and include water diversions, 
nonnative fish, and recreational pressure (see Table 1). This creek is 
part of the complex that contains the largest remaining population of 
spikedace and loach minnow and contains the features essential to the 
conservation of the species.
    (5) Deer Creek--Loach Minnow Only--2.3 mi (3.6 km) of creek 
extending from the confluence with Aravaipa Creek upstream to the 
boundary of the Aravaipa Wilderness. This stream was occupied at the 
time of listing and is currently occupied by loach minnow. Deer Creek 
contains one or more of the primary constituent elements essential to 
the conservation of loach minnow, including sufficient flow velocities 
and appropriate gradients, substrates, depths, and habitat types (i.e., 
riffles, runs). The threats to loach minnow in this area are similar to 
those for Aravaipa Creek, including water diversions, nonnative fish, 
and recreation. This creek is part of the complex that contains the 
largest remaining population of spikedace and loach minnow and contains 
the features essential to the conservation of the species.

Complex 4--San Francisco and Blue Rivers Complex--Graham and Greenlee 
Counties, Arizona and Catron County, New Mexico

    The streams in this complex are within the geographical range 
occupied by the loach minnow and the spikedace. The Blue River system 
and adjacent portions of the San Francisco River constitute the longest 
stretch of occupied loach minnow habitat unbroken by large areas of 
unsuitable habitat. Loach minnow have been present in this complex 
since 1840 up to the present, including at its listing (Miller 1998, 
pp. 4-5; ASU 2002; AGFD 2004; Carter 2005, pp. 1-9; Propst 2005, p. 6; 
Propst 2006, p. 2). Within this complex, Eagle Creek was known to be 
occupied by spikedace at its listing (ASU 2002; Marsh et al. 2003, pp. 
666-668; AGFD 2004), while Frieborn, Negrito, and Pace creeks were not 
known to be occupied at the time of listing. For the areas not known to 
be occupied at the time of listing, each of these areas is currently 
occupied by loach minnow, supports one or more of the PCEs, and is 
connected to a stream that is also currently occupied. Because the 
distribution of loach minnow has been severely reduced, these creeks 
are considered essential to the species. Streams in this complex 
contain one or more of the PCEs for both species including sufficient 
flow velocities and appropriate gradients, substrates, depths, and 
habitat types (i.e., riffles, runs). In addition, the lateral extent of 
each segment within this complex of critical habitat contains 
sufficient PCEs (3 and 5) to provide for one or more of the life 
history functions of the spikedace and loach minnow. Threats in this 
complex requiring special management are described in the individual 
stream reaches below. This complex contains extensive U.S. Forest 
Service land, some BLM land, and scattered private, State of Arizona, 
and NMDGF lands.
    (1) Eagle Creek--Loach Minnow Only--44.8 mi (71.9 km) of creek 
extending from the Phelps-Dodge Diversion Dam upstream to the 
confluence of Dry Prong and East Eagle creeks, including lands of the 
San Carlos Apache Reservation and the Phelps Dodge Corporation. Eagle 
Creek was occupied by spikedace and loach minnow at the time of 
listing. The most current records of occupancy in Eagle Creek are from 
1997 for loach minnow and 1989 for spikedace. Eagle Creek contains one 
or more of the primary constituent elements essential to the 
conservation of loach minnow, including sufficient flow velocities and 
appropriate gradients, substrates, depths, and habitat types (i.e., 
riffles, runs). Threats within this area that require special 
management or protections include water diversions, improper livestock 
grazing, nonnative fish, and mining (see Table 1).
    A section of Eagle Creek approximately 17.2 mi (27.7 km) long 
occurs on the San Carlos Apache Reservation. We have received a 
management plan from the San Carlos Apache Tribe addressing native 
fishes. On the basis of this plan and our partnership with the San 
Carlos Apache Tribe, we are excluding this area from final critical 
habitat pursuant to section 4(b)(2) of the Act (see ``Relationship of 
Critical Habitat to Tribal Lands'' section below for additional 
information). An additional 9.9 mi (15.7 km) are owned by the Phelps 
Dodge Corporation. We received a management plan from Phelps Dodge 
addressing management for spikedace and loach minnow. On the basis of 
this plan, we are excluding their lands from the final critical habitat 
designation pursuant to section 4(b)(2) of the Act (see ``Exclusions 
under Section 4(b)(2) of the Act'' for additional information).
    (2) San Francisco River--Loach Minnow Only--126.5 mi (203.5 km) of 
river extending from the confluence with the Gila River upstream to the 
mouth of The Box, a canyon above the town of Reserve. Loach minnow 
occupied the San Francisco River at the time of listing and occupy it 
presently,

[[Page 13388]]

with occupancy verified in 2005. The San Francisco River contains one 
or more of the primary constituent elements essential to the 
conservation of loach minnow, including sufficient flow velocities and 
appropriate gradients, substrates, depths, and habitat types (i.e., 
riffles, runs). Threats to this area requiring special management or 
protections include water diversions, improper livestock grazing, and 
nonnative fish species (see Table 1).
    (3) Tularosa River--Loach Minnow Only--18.6 mi (30.0 km) of river 
extending from the confluence with the San Francisco River upstream to 
the town of Cruzville. Above Cruzville, the river does not contain the 
features essential to the conservation of the species because of the 
small size of the stream and a predominance of fine substrates. This 
area includes one or more of the primary constituent elements essential 
to the conservation of loach minnow, including sufficient flow 
velocities and appropriate gradients, substrates, depths, and habitat 
types (i.e., riffles, runs). The Tularosa River was occupied at the 
time of listing and is known to be currently occupied based on records 
as recent as 2002. Threats to the species and its habitat in this area 
that require special management or protections include grazing and 
nonnative fish (see Table 1).
    (4) Negrito Creek--Loach Minnow Only--4.2 mi (6.8 km) of creek 
extending from the confluence with the Tularosa River upstream to the 
confluence with Cerco Canyon. Above this area, the creek does not 
contain the features essential to the conservation of the species 
because of gradient and channel morphology. Negrito Creek has been 
occupied since listing, with the most recent record from 1998 (Service 
2005). In addition, this area is directly connected to the Tularosa 
River, which has occupancy records as recent as 2002. Negrito Creek 
contains one or more of the primary constituent elements essential to 
the conservation of loach minnow, including sufficient flow velocities 
and appropriate gradients, substrates, depths, and habitat types (i.e., 
riffles, runs). Threats to this area requiring special management or 
protections include improper livestock grazing and nonnative fish (see 
Table 1).
    (5) Whitewater Creek--Loach Minnow Only--1.1 mi (1.8 km) of creek 
extending from the confluence with the San Francisco River upstream to 
the confluence with the Little Whitewater Creek. Upstream of this area 
the river does not contain the features essential to the conservation 
of the species because of gradient and channel changes that make the 
portion above Little Whitewater Creek unsuitable for loach minnow. In 
addition, low water temperatures likely influence the upstream 
distributional limits (Propst 2006, p. 2). Whitewater Creek was 
occupied at the time of listing, and is connected with the San 
Francisco River, which has documented loach minnow records as recent as 
2001. This area does support one or more primary constituent elements 
for loach minnow, including sufficient flow velocities and appropriate 
gradients, substrates, depths, and habitat types (i.e., riffles, runs). 
Threats to this area include grazing and nonnative fish (see Table 1).
    (6) Blue River--Loach Minnow Only--51.1 mi (82.2 km) of river 
extending from the confluence with the San Francisco River upstream to 
the confluence of Campbell Blue and Dry Blue creeks. The Blue River was 
occupied at the time of listing and continues to be occupied by loach 
minnow (Carter 2005, pp. 1-9). The Blue River contains one or more of 
the primary constituent elements essential to the conservation of loach 
minnow, including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., riffles, runs). Planning 
is underway among several State and Federal agencies for reintroduction 
of native fishes, including spikedace, in the Blue River, and thus the 
Blue River may be considered for spikedace critical habitat in future 
revisions of the designation. Threats in this area include water 
diversions, improper livestock grazing, nonnative fish, and roads (see 
Table 1).
    (7) Campbell Blue Creek--Loach Minnow Only--8.1 mi (13.1 km) of 
creek extending from the confluence of Dry Blue and Campbell Blue 
creeks upstream to the confluence with Coleman Canyon. Areas above 
Coleman Canyon do not contain the features essential to the 
conservation of the species because the creek becomes steeper and 
rockier, making it unsuitable for loach minnow. Campbell Blue Creek is 
currently occupied (Carter 2005, pp. 1-9) and supports one or more of 
the velocities and appropriate gradients, substrates, depths, and 
habitat types (i.e., riffles, runs). Threats to this area requiring 
special management or protections include improper livestock grazing 
and nonnative fish species (see Table 1).
    (8) Dry Blue Creek--Loach Minnow Only--3.0 mi (4.8 km) of creek 
extending from the confluence with Campbell Blue Creek upstream to the 
confluence with Pace Creek. Dry Blue Creek has been occupied by loach 
minnow since listing and is occupied with records dating from 2001. In 
addition, this area is connected with Campbell Blue Creek, which has 
documented loach minnow records as recent as 2004. This area also 
contains one or more of the primary constituent elements essential to 
the conservation of loach minnow, including sufficient flow velocities 
and appropriate gradients, substrates, depths, and habitat types (i.e., 
riffles, runs). Threats to this area requiring special management or 
protections include improper livestock grazing and nonnative fish 
species (see Table 1).
    (9) Pace Creek--Loach Minnow Only--0.8 mi (1.2 km) of creek 
extending from the confluence with Dry Blue Creek upstream to a barrier 
falls. Pace Creek has been occupied by loach minnow since listing and 
is considered currently occupied with the most recent record from 1998. 
This area also contains one or more of the primary constituent elements 
essential to the conservation of loach minnow, including sufficient 
flow velocities and appropriate gradients, substrates, depths, and 
habitat types (i.e., riffles, runs). Threats to this area requiring 
special management or protections include improper livestock grazing 
and nonnative fish species (see Table 1).
    (10) Frieborn Creek--Loach Minnow Only--1.1 mi (1.8 km) of creek 
extending from the confluence with Dry Blue Creek upstream to an 
unnamed tributary. Frieborn Creek has been occupied by loach minnow 
since listing and is currently occupied with the most recent record 
from 1998. This area also contains one or more of the primary 
constituent elements essential to the conservation of loach minnow, 
including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., riffles, runs). Threats to 
this area requiring special management or protections include improper 
livestock grazing and nonnative fish species (see Table 1).
    (11) Little Blue Creek--Loach Minnow Only--2.8 mi (4.5 km) of creek 
extending from the confluence with the Blue River upstream to the mouth 
of a canyon. Little Blue Creek was occupied at the time of listing and 
is considered to be occupied as it is directly connected with the Blue 
River, which has documented loach minnow records as recent as 2004. 
This area also contains one or more of the primary constituent elements 
essential to the conservation of loach minnow including sufficient flow 
velocities and appropriate gradients, substrates, depths, and habitat 
types (i.e., riffles, runs). Threats requiring special management or 
protections in this area

[[Page 13389]]

include grazing and nonnative fish (see Table 1).

Complex 5--Upper Gila River Complex--Grant, Catron, and Hidalgo 
Counties, New Mexico

    Spikedace have been known to be present in this complex since 1935 
and up through the present. Loach minnow have been known to be present 
in this complex since 1938 and up through the present. This complex was 
occupied by both spikedace and loach minnow at the time of listing 
(Propst et al. 1998, p. 14-15; ASU 2002; Propst 2002, p. 4, 22, 27, 31; 
Paroz et al. 2006, p. 63-64; Propst 2006, p. 2). This complex contains 
the largest remaining populations of both species in New Mexico. It is 
considered to represent the ``core'' of what remains of these species. 
Streams in this complex contain one or more of the PCEs for both 
species including sufficient flow velocities and appropriate gradients, 
substrates, depths, and habitat types (i.e., riffles, runs). In 
addition, the lateral extent of each segment within this complex of 
critical habitat contains sufficient PCEs (3 and 5) to provide for one 
or more of the life history functions of the spikedace and loach 
minnow. Threats requiring special management or protections in this 
area are addressed in each of the individual stream segment 
descriptions below. The largest areas are on U.S. Forest Service land, 
with small private inholdings. There are large areas of private lands 
in the Cliff-Gila Valley, and the BLM administers significant stretches 
upstream of the Arizona/New Mexico border. There are also small areas 
of NMDGF, National Park Service, and State of New Mexico lands.
    (1) Upper Gila River--102.2 mi (164.4 km) of river extending from 
the confluence with Moore Canyon (near the Arizona/New Mexico border) 
upstream to the confluence of the East and West Forks of the Gila 
River. The Gila River was occupied by spikedace and loach minnow at the 
time of listing and continues to be occupied by both species (ASU 2002, 
Propst 2002, pp. 2, 4, 29-33). The Gila River from its confluence with 
the West Fork Gila and East Fork Gila contains one or more primary 
constituent elements for spikedace and loach minnow, including 
sufficient flow velocities and appropriate gradients, substrates, 
depths, and habitat types (i.e., riffles, runs, glides, eddies). 
Threats to this area requiring special management or protections 
include water diversions, improper livestock grazing, recreation, road 
construction, and nonnative fish species (see Table 1). Approximately 
7.2 mi (11.6 km) along the Gila River are owned by the Phelps Dodge 
Corporation. We received a management plan from Phelps Dodge addressing 
management for spikedace and loach minnow for these areas. On the basis 
of this plan, we are excluding their lands from the final critical 
habitat designation pursuant to section 4(b)(2) of the Act, and because 
of economic impact concerns (see ``Exclusion under Section 4(b)(2) of 
the Act'' for additional information).
    (2) East Fork Gila River--26.1 mi (42.0 km) of river extending from 
the confluence with the West Fork Gila River upstream to the confluence 
of Beaver and Taylor creeks. This area was occupied by both species at 
the time of listing and both species have been found there as recently 
as 2001. In addition, this area is connected to habitat currently 
occupied by spikedace and loach minnow on the West Fork of the Gila 
River. Portions of the East Fork Gila River contain one or more of the 
primary constituent elements essential to the conservation of spikedace 
and loach minnow including sufficient flow velocities and appropriate 
gradients, substrates, depths, and habitat types (i.e., riffles, runs, 
glides, eddies). Threats to this area requiring special management or 
protections include improper livestock grazing, nonnative fish species, 
and ash flows from wildfires (See Table 1).
    (3) Middle Fork Gila River--Spikedace Only--7.7 mi (12.3 km) of 
river extending from the confluence with the West Fork Gila River 
upstream to the confluence with Big Bear Canyon. This area is currently 
occupied (ASU 2002, Paroz et al. 2006, p. 63, Propst 2002, p. 22, 
Propst 2006, p. 2), and is connected to currently occupied habitat on 
the West Fork of the Gila River. The Middle Fork Gila River contains 
one or more of the primary constituent elements essential to the 
conservation of spikedace, including sufficient flow velocities and 
appropriate gradients, substrates, depths, and habitat types (i.e., 
riffles, runs, glides, eddies). Threats to this area requiring special 
management or protections include improper livestock grazing, nonnative 
fish species, and ash flows and increased sediment loading following 
recent wildfires (See Table 1).
    (4) Middle Fork Gila River--Loach Minnow Only--11.9 mi (19.1 km) of 
river extending from the confluence with the West Fork Gila River 
upstream to the confluence with Brothers West Canyon. This area is 
currently occupied (ASU 2002, Paroz et al. 2006, p. 63, Propst 2002, p. 
22, Propst 2006, p. 2) and is connected to currently occupied habitat 
on the West Fork of the Gila River. Portions of the Middle Fork Gila 
River contain one or more primary constituent elements essential to the 
conservation of loach minnow, including sufficient flow velocities and 
appropriate gradients, substrates, depths, and habitat types (i.e., 
riffles, runs). Threats to this area requiring special management or 
protections include grazing, nonnative fish species, and ash flows and 
increased sediment loading following wildfires (See Table 1).
    (5) West Fork Gila River--7.7 mi (12.4 km) of river extending from 
the confluence with the East Fork Gila River upstream to the confluence 
with EE Canyon. This lower portion of the West Fork Gila River was 
occupied by both spikedace and loach minnow at the time of listing and 
continues to be occupied by both species. This area contains one or 
more primary constituent elements essential to the conservation of 
spikedace and loach minnow, including sufficient flow velocities and 
appropriate gradients, substrates, depths, and habitat types (i.e., 
riffles, runs, glides, eddies). Above EE Canyon, the river does not 
contain the features essential to the conservation of the species due 
to gradient and channel morphology. Threats to this area requiring 
special management or protections include nonnative fish species and 
ash flows and increased sediment loading following wildfires (See Table 
1).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition. Pursuant to current 
national policy and the statutory provisions of the Act, destruction or 
adverse modification is determined on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain the current ability for the 
primary constituent elements to be

[[Page 13390]]

functionally established) to serve the intended conservation role for 
the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action because of 
the section 7(a)(2) compliance process, should those species be listed 
or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, 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 (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or 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 
jeopardy to the listed species or 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 a new 
species is listed or critical habitat is subsequently designated that 
may be affected 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 with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect the spikedace and loach minnow 
or their designated critical habitat will require section 7 
consultation under the Act. Activities on State, Tribal, local or 
private lands requiring a Federal permit (such as a permit from the 
Corps under section 404 of the Clean Water Act or a permit under 
section 10(a)(1)(B) of the Act from the Service) or involving some 
other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local, or private lands 
that are not federally-funded, authorized, or permitted, do not require 
section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Spikedase and Loach Minnow and Their 
Critical Habitat

Jeopardy Standard

    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for spikedace and loach minnow 
jeopardy analyses that relies heavily on the importance of core area 
populations to the survival and recovery of the spikedace and loach 
minnow. The section 7(a)(2) analysis is focused not only on these 
populations but also on the habitat conditions necessary to support 
them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the spikedace and loach minnow in a qualitative fashion 
without making distinctions between what is necessary for survival and 
what is necessary for recovery. Generally, if a proposed Federal action 
is incompatible with the viability of the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
opinion is warranted because of the relationship of each core area 
population to the survival and recovery of the species as a whole.

Adverse Modification Standard

    For the reasons described in the Director's December 9, 2004 
memorandum, the key factor related to the adverse modification 
determination is whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the

[[Page 13391]]

primary constituent elements to be functionally established) to serve 
the intended conservation role for the species. Generally, the 
conservation role of spikedace and loach minnow critical habitat units 
is to support viable core area populations.
    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 destroy or 
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 species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for the spikedace and loach minnow is appreciably 
reduced. Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore result in 
consultation for the spikedace and loach minnow include, but are not 
limited to:
    (1) Channelization, impoundment, road and bridge construction, 
deprivation of substrate source, destruction and alteration of riparian 
vegetation, reduction of available floodplain, removal of gravel or 
floodplain terrace materials, and excessive sedimentation from mining, 
livestock grazing, road construction, timber harvest, off-road vehicle 
use, and other watershed and floodplain disturbances;
    (2) actions that would significantly and detrimentally alter the 
water chemistry in any of the stream segments listed above could 
destroy or adversely modify the critical habitat of either or both 
species. Such activities include, but are not limited to, release of 
chemical or biological pollutants into the surface water or connected 
groundwater at a point source or by dispersed release (non-point 
source);
    (3) actions that would introduce, spread, or augment nonnative fish 
species could destroy or adversely modify the critical habitat of 
either or both species; and
    (4) actions that would result in the removal of water from 
waterways. Such activities include, but are not limited to, 
construction and operation of canals and interbasin water transfers.
    We consider all of the units designated as critical habitat, as 
well as those that have been excluded, to contain features essential to 
the conservation of the spikedace and loach minnow. All units are 
within the geographic range of the species, all were occupied by the 
species at the time of listing, and are likely to be used by the 
spikedace and loach minnow. Federal agencies already consult with us on 
activities in areas currently occupied by the spikedace and loach 
minnow, or if the species may be affected by the action, to ensure that 
their actions do not jeopardize the continued existence of the 
spikedace and loach minnow.

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. The Secretary may exclude an area 
from critical habitat if [s]he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion and the 
Congressional record is clear that in making a determination under the 
section the Secretary has discretion as to which factors and how much 
weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, determine whether the benefits 
of exclusion outweigh the benefits of inclusion. If an exclusion is 
contemplated, then we must determine whether excluding the area would 
result in the extinction of the species. In the following sections, we 
address a number of general issues that are relevant to the exclusions 
we considered.

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, can not require active management efforts 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 
measures and terms and conditions to implement such measures are only 
specified when the proposed action would result in the incidental take 
of a listed animal species. Reasonable and prudent alternatives to the 
proposed Federal action would only be suggested 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 conflated the jeopardy 
standard with the standard for destruction or adverse modification of 
critical habitat when evaluating federal actions that affect currently 
occupied critical habitat. The Court ruled that the two standards are 
distinct 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

[[Page 13392]]

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 often 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 spikedace and loach minnow. 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 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 discussed in this rule because these areas are 
included in this rule as having habitat containing the features 
essential to the conservation of the species. 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, that of informing State agencies 
and local governments about areas that would benefit from protection 
and enhancement of critical habitat for the spikedace and loach minnow, 
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.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995), and at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002). 
Stein et al. (1995) found that only about 12 percent of listed species 
were found almost exclusively on Federal lands (90 to 100 percent of 
their known occurrences restricted to Federal lands) and that 50 
percent of federally listed species are not known to occur on Federal 
lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998, Crouse et al. 2002, James 2002). Building 
partnerships and promoting voluntary cooperation of landowners is 
essential to understanding the status of species on non-Federal lands 
and is necessary to implement recovery actions such as reintroducing 
listed species, active management, and habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species recovery. The Service promotes these private-sector 
efforts through the Four Cs philosophy--conservation through 
communication, consultation, and cooperation. This philosophy is 
evident in Service programs such as HCPs, Safe Harbor Agreements, 
Candidate Conservation Agreements, Candidate Conservation Agreements 
with Assurances, and conservation challenge cost-share. Many private 
landowners, however, are wary of the possible consequences of 
encouraging endangered species to their property, and there is mounting 
evidence that some regulatory actions by the Federal government, while 
well-intentioned and required by law, can (under certain circumstances) 
have unintended negative consequences for the conservation of species 
on private lands (Wilcove et al. 1996, Bean 2002, Conner and Mathews 
2002, James 2002, Koch 2002, Brook et al. 2003). Many landowners fear a 
decline in their property value due to real or perceived restrictions 
on land-use options where threatened or endangered species are found, 
and more specifically, when critical habitat is proposed or designated. 
Consequently, harboring endangered species is viewed by many landowners 
as a liability, resulting in anti-conservation incentives because 
maintaining habitats that harbor endangered species represents a risk 
to future economic opportunities (Main et al. 1999, Brook et al. 2003).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999, Bean 
2002, Brook et al. 2003). The magnitude of this negative outcome is 
greatly amplified in situations where active management measures (such 
as reintroduction, fire management, control of invasive species) are 
necessary for species conservation (Bean 2002). A critical habitat 
designation cannot require such actions on the lands being exempted 
here.
    The Service believes that the judicious use of excluding specific 
areas of non-federally owned lands from critical habitat designations 
can contribute to species recovery and provide a superior level of 
conservation than critical habitat alone. For example, less than 17 
percent of Hawaii is federally owned, but the state is home to more 
than 24 percent of all federally listed species, most of which will not 
recover without State and private landowner cooperation. On the island 
of Lanai, Castle and Cooke Resorts, LLC,

[[Page 13393]]

which owns 99 percent of the island, entered into a conservation 
agreement with the Service. The conservation agreement provides 
conservation benefits to target species through management actions that 
remove threats (such as axis deer, mouflon sheep, rats, invasive 
nonnative plants) from the Lanaihale and East Lanai Regions. Specific 
management actions include fire control measures, nursery propagation 
of native flora (including the target species) and planting of such 
flora. These actions will significantly improve the habitat for all 
currently occurring species. Due to the low likelihood of a Federal 
nexus on the island, we believe that the benefits of excluding the 
lands covered by the MOA exceeded the benefits of including them. As 
stated in the final critical habitat rule for endangered plants on the 
Island of Lanai:

    On Lanai, simply preventing ``harmful activities'' will not slow 
the extinction of listed plant species. Where consistent with the 
discretion provided by the Act, the Service believes it is necessary 
to implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove 
or reduce disincentives to conservation. While the impact of 
providing these incentives may be modest in economic terms, they can 
be significant in terms of conservation benefits that can stem from 
the cooperation of the landowner. The continued participation of 
Castle and Cooke Resorts, LLC, in the existing Lanai Forest and 
Watershed Partnership and other voluntary conservation agreements 
will greatly enhance the Service's ability to further the recovery 
of these endangered plants.

    The Department of the Interior's Four C's philosophy--conservation 
through communication, consultation, and cooperation--is the foundation 
for developing the tools of conservation. These tools include 
conservation grants, funding for Partners for Fish and Wildlife 
Program, the Coastal Program, and cooperative-conservation challenge 
cost-share grants. Our Private Stewardship Grant program and Landowner 
Incentive Program provide assistance to private landowners in their 
voluntary efforts to protect threatened, imperiled, and endangered 
species, including the development and implementation of Habitat 
Conservation Plans (HCPs).
    Conservation agreements with non-Federal landowners (HCPs, 
contractual conservation agreements, easements, and stakeholder-
negotiated State regulations) enhance species conservation by extending 
species protections and providing for positive management actions 
beyond those that can be required through section 7 consultations. In 
the past decade we have encouraged non-Federal landowners to enter into 
conservation agreements, based on a view that we can achieve greater 
species conservation on non-Federal land through such partnerships than 
we can through coercive methods (61 FR 63854; December 2, 1996).

Relationship of Critical Habitat to Economic Impacts--Exclusions Under 
Section 4(b)(2) of the Act

    This section allows the Secretary to exclude areas from critical 
habitat for economic reasons if he 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. Congress has provided this discretionary authority 
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.
    In making the following exclusions, we have in general considered 
that all of the costs and other impacts predicted in the economic 
analysis may not be avoided by excluding the area, because all of the 
areas in question are currently occupied by the listed species and 
there will be requirements for consultation under section 7 of the Act, 
or for permits under section 10 (henceforth ``consultation''), for any 
take of these species, and other protections for the species exist 
elsewhere in the Act and under State and local laws and regulations. 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, some elements of the 
analysis may also overstate some costs.
    Conversely, the Ninth Circuit has recently ruled (Gifford Pinchot, 
378 F.3d at 1071) that the Service's regulations defining ``adverse 
modification'' of critical habitat are invalid because they define 
adverse modification as affecting both survival and recovery of a 
species. The Court directed us to consider that determinations of 
adverse modification should be focused on impacts to recovery. While we 
have not yet proposed a new definition for public review and comment, 
compliance with the Court's direction may result in additional costs 
associated with the designation of critical habitat (depending upon the 
outcome of the rulemaking, as well as additional benefits to the 
species). In light of the uncertainty concerning the regulatory 
definition of adverse modification, our current methodological approach 
to conducting economic analyses of our critical habitat designations is 
to consider all conservation-related costs. This approach would include 
costs related to sections 4, 7, 9, and 10 of the Act, and should 
encompass costs that would be considered and evaluated in light of the 
Gifford Pinchot ruling.
    In addition, we have received several credible comments on the 
economic analysis contending that it underestimates, perhaps 
significantly, the costs associated with this critical habitat 
designation. Both of these factors are a balancing consideration 
against the possibility that some of the costs shown in the economic 
analysis might be attributable to other factors, or are overly high, 
and so would not necessarily be avoided by excluding the area for which 
the costs are predicted from this critical habitat designation.

Relationship of Critical Habitat to Tribal Lands

    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.
San Carlos Apache Tribe
    The San Carlos Apache Tribe has one stream within its tribal lands, 
Eagle Creek, that is known to be currently

[[Page 13394]]

occupied by the spikedace and loach minnow and its tribal lands contain 
features that are essential to the conservation of the spikedace and 
loach minnow. The Tribe has completed and is implementing a Fisheries 
Management Plan (FMP) that includes specific management actions for the 
spikedace and loach minnow and conserves the PCEs. In this exclusion, 
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 spikedace and loach minnow. 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 natural 
resource programs and staff and has 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. Spikedace and loach minnow conservation 
activities have been ongoing on San Carlos Apache tribal lands, and, 
prior to the completion of their FMP, their natural resource management 
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 spikedace and loach minnow. Implementation 
of the FMP will result in protecting all known spikedace and loach 
minnow 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 
the spikedace and loach minnow, on tribal lands. The FMP outlines 
actions to conserve, enhance, and restore spikedace and loach minnow 
PCEs, including efforts to eliminate nonnative fishes from spikedace 
and loach minnow habitat, actions that could not be compelled by a 
critical habitat designation. 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 spikedace and loach minnow habitat. Within funding 
limitations and under confidentiality guidelines established by the 
Tribe, the Tribe will cooperate with the Service to monitor and survey 
spikedace and loach minnow habitat, conduct research, perform habitat 
restoration, remove nonnative fish species, or conduct other beneficial 
spikedace and loach minnow management activities.
White Mountain Apache Tribe
    The White Mountain Apache Tribe has one stream within its tribal 
lands, East Fork White River, that is known to be currently occupied by 
loach minnow and its tribal lands contain features that are essential 
to the conservation of the loach minnow. The White Mountain Apache 
Tribe currently has a management plan in place for loach minnow. The 
plan was completed in 2000 and provides for, among other conservation 
measures, inventory and monitoring, water quality protection ordinance, 
captive propagation, and relocation to minimize loss from catastrophic 
events such as fire and drought. Prior to and since the plan was 
developed, the Tribe has actively managed for loach minnow. In this 
exclusion, we considered several factors, including our relationship 
with the White Mountain Apache Tribe, and the degree to which the 
Tribe's management plan provides specific management for the loach 
minnow and conserves its PCEs. Tribal governments protect and manage 
their resources in the manner that is most beneficial to them. The 
White Mountain Apache Tribe exercises legislative, administrative, and 
judicial control over activities within the boundaries of its lands. 
Additionally, the Tribe has natural resource programs and staff and has 
been managing for the conservation of the loach minnow. In addition, as 
trustee for land held in trust by the United States for Indian Tribes, 
the BIA provides technical assistance to the White Mountain Apache 
Tribe on management planning and oversees a variety of programs on 
their lands.
    The White Mountain 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.
Yavapai Apache Tribe
    The Yavapai Apache Tribe has long worked to protect the Verde River 
and its surrounding habitat as it flows on the lands of the Nation. The 
Nation is implementing strong conservation measures designed to 
preserve the Verde River and its riparian corridor for the benefit of 
all species, and in order to protect the traditional and cultural 
practices of the Nation. The Nation's continued efforts to work 
cooperatively with the Service to protect federally listed species have 
previously been demonstrated through adoption of a recent Southwestern 
Willow Flycatcher Management Plan, dated May 25, 2005. This document 
provides realistic and practicable objectives for protection of the 
riparian community on tribal lands. This habitat is coextensive with 
the habitat that was proposed for the spikedace. Because the existing 
Management Plan requires that the habitat of the Verde River be 
protected and preserved for the flycatcher, its protections similarly 
extend to the spikedace. In addition, the Tribe passed a resolution on 
June 15, 2006, confirming and declaring a riparian conservation 
corridor along the Verde River including 300 ft (91.4 m) on either side 
of the river. Within the conservation corridor stocking of non-native 
fishes is prohibited, and livestock grazing, construction and other 
activities shall be minimized to assure that no net loss of habitat for 
federally listed species such as the spikedace and loach minnow shall 
occur, and that no permanent modification of habitat important to 
listed species is allowed. The Tribe will also take all reasonable 
steps to coordinate with the Service regarding recreational activities, 
habitat restoration activities, or other activities that may impact the 
habitat important to the spikedace and loach minnow. The Tribe will 
monitor habitat, including

[[Page 13395]]

surveys for these fish and conduct research or other activities to 
provide a conservation benefit.
    Below we determine, pursuant to a 4(b)(2) analysis, that those 
portions of the Verde River below the Prescott and Coconino National 
Forest boundary with private lands above the Verde Valley will be 
excluded from the final designation based upon economic costs. The 
Yavapai Apache tribal lands fall within this area, and are excluded as 
part of that overall exclusion. However, we also find pursuant to our 
analysis below that their lands should be excluded on the basis of our 
relationship with the Yavapai Apache Tribe, and the Tribe's management 
of the Verde River that we believe provides a conservation benefit to 
the spikedace.
(1) Benefits of Inclusion
    Including lands of the San Carlos Apache Tribe, the White Mountain 
Apache Tribe, and the Yavapai Apache Tribe in critical habitat would 
provide some additional benefit from section 7 consultation, because we 
could consult via the BIA on actions that may adversely affect critical 
habitat. Activities covered in previous consultations include livestock 
grazing, recreation, fish stocking, fire management, bank stabilization 
projects, and conservation measures that benefited spikedace and/or 
loach minnow. These measures included monitoring, fence repair (to 
exclude cattle from overusing and thereby damaging habitat), and 
education programs to inform the public of the need to avoid actions 
that damage habitat. However, we note that because the spikedace and 
loach minnow are listed species and are found on these Tribal lands, 
section 7 consultation under the jeopardy standard will still be 
required if Tribal or BIA activities may adversely affect spikedace or 
loach minnow, regardless of whether these lands are included in the 
final critical habitat designation. As a result, we expect that 
inclusion of San Carlos Apache, White Mountain Apache, and the Yavapai 
Apache Tribe lands in the critical habitat designation 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 the spikedace and loach minnow final 
critical habitat designation beyond what will be achieved through the 
implementation of their management plans. 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. These three tribes have already 
agreed under the terms of their management plans and by tribal 
resolution to protect riparian and aquatic communities, to ensure no 
net loss of habitat, to coordinate with the Service in order to prevent 
any habitat destruction, and to conduct activities consistent with the 
conservation of all native species, including the spikedace and loach 
minnow and their PCEs.
    As discussed above, we expect that little additional educational 
benefit would be derived from designating San Carlos Apache, White 
Mountain Apache, and Yavapai Apache tribal lands as critical habitat. 
The additional educational benefits that might arise from critical 
habitat designation are largely accomplished through the multiple 
notice and comments which accompany the development of this critical 
habitat designation, as evidenced by the Tribes working with the 
Service to address habitat and conservation needs for the spikedace and 
loach minnow. Additionally, we anticipate that the Tribes 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 spikedace and loach 
minnow are being realized without designating this area as critical 
habitat. Educational benefits will continue on these lands whether or 
not critical habitat is designated because the Tribes already recognize 
the importance of those habitat areas to the spikedace and loach 
minnow.
    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 Tribes often require 
additional sources of funding in order to conduct wildlife-related 
activities. Therefore, having an area designated as critical habitat 
could improve the chances of the Tribes receiving funding for spikedace 
or loach minnow related projects. Additionally, occupancy by spikedace 
or loach minnow also provides benefits to be considered in evaluating 
funding proposals. Because there are areas of occupied habitat on these 
Tribal lands this may also 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 San Carlos Apache, White Mountain Apache, 
and the Yavapai 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 spikedace and loach minnow and other Federal trust 
species; (2) the maintenance of effective working relationships to 
promote the conservation of the spikedace and loach minnow and their 
habitats; (3) the allowance for continued meaningful collaboration and 
cooperation on spikedace and loach minnow management and other 
resources of interest to the Federal government; and (4) the provision 
of conservation benefits to riparian ecosystems and a host of species, 
including the spikedace and loach minnow and their habitat.
    During the development of the spikedace and loach minnow critical 
habitat designation (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 each of these 
Tribes to discuss how they might be affected by the regulations 
associated with spikedace and loach minnow conservation and the 
designation of critical habitat. As such, we established relationships 
with these Tribes specific to spikedace and loach minnow conservation. 
As part of our relationship, we provided technical assistance to the 
Tribes to develop measures to conserve the spikedace and loach minnow 
and their habitat on their lands. These measures are contained within 
their management plans and tribal resolution that we have in our 
supporting record. 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,

[[Page 13396]]

White Mountain Apache, and the Yavapai Apache Tribes should be the 
governmental entities to manage and promote the conservation of the 
spikedace and loach minnow on their lands. During our communication 
with the Tribes, we recognized and endorsed their fundamental right to 
provide for tribal resource management activities, including those 
relating to riparian aquatic ecosystems.
    The designation of critical habitat on these Tribal lands would be 
expected to adversely impact our working relationship with them. In 
fact, during our discussions with the Tribes, 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 Tribes 
would prefer to work with us on a government-to-government basis. We 
view this as a substantial benefit.
    In addition to management/conservation actions described for the 
conservation of the spikedace and loach minnow, we anticipate future 
management/conservation plans to include conservation efforts for other 
listed species and their habitat. We believe that many Tribes 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, White Mountain Apache, and the Yavapai Apache Tribal 
lands are designated as critical habitat for the spikedace and loach 
minnow. Thus, the benefit of excluding these lands would be future 
conservation efforts that would benefit the spikedace and loach minnow 
as well as other listed species.
    Another benefit of excluding these 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 is 
being excluded in occupied areas already subject to section 7 
consultation and a jeopardy analysis, it is anticipated this reduction 
would be minimal.
(3) Benefits of the Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of designating critical habitat for the 
spikedace and loach minnow on these Tribal lands are small in 
comparison to the benefits of the exclusion. Exclusion would enhance 
the partnership efforts focused on recovery of the spikedace and loach 
minnow within these river reaches. Excluding these areas also would 
reduce some of the administrative costs during consultation pursuant to 
section 7 of the Act. We discuss below additional economic costs and an 
exclusion of a portion of the Verde River that include tribal lands of 
the Yavapai Apache Nation.
(4) The Exclusion Will Not Result in Extinction of the Species
    Because these river reaches on the Tribal lands are occupied by the 
spikedace and loach minnow, which are protected from take under section 
9 of the Act, any actions that might kill spikedace or loach minnow, 
including habitat modification that would cause death of either 
species, 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 believe that the exclusion of 
these lands from critical habitat would not result in the extinction of 
the spikedace or loach minnow because their management outlines and the 
provisions of a resolution specifically address conservation of these 
species. The tribal management strategies outline actions to conserve, 
enhance, and restore spikedace and loach minnow habitat, including 
efforts to eliminate nonnative fishes from their habitat. Such efforts 
provide greater conservation benefit than would result from a 
designation of 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.

Partnerships and Management Plans on Private Lands

    The Phelps Dodge Corporation (Phelps Dodge) provided two management 
plans to the Service during the second open comment period. One plan 
was provided for Eagle Creek in southeastern Arizona, and the other is 
for portions of the middle Gila River in New Mexico. We provide a 
summary of each of these plans below.
Eagle Creek Management Plan
    Phelps Dodge's lands along Eagle Creek are comprised of individual 
land parcels adjoining the southern boundary of the Apache-Sitgreaves 
National Forests and the eastern boundary of San Carlos Apache Tribe 
lands. The parcels are not entirely connected; there are intervening 
portions of Forest Service and other private lands between parcels of 
Phelps Dodge's lands.
    The management plan would affect only those lands owned by Phelps 
Dodge. Phelps Dodge owns approximately 34 square miles of land around 
the upper portions of Eagle Creek; however, not all of lands encompass 
or are adjacent to Eagle Creek. Phelps Dodge owns land along 
approximately 11.0 mi (17.8 km) of Eagle Creek, which are covered by 
the management plan. The Service has determined that Eagle Creek 
currently supports one of more of the PCEs for loach minnow and is 
occupied by loach minnow. In addition, we determined (see Table 1) that 
nonnative aquatic species, water diversions, and mining are all 
potential threats within this area.
    Phelps Dodge's water supply for its Morenci Mine operation is 
derived from a variety of water rights, including a Black River water 
transfer (supported by a Central Arizona Project exchange), several 
deep ground water wells, and surface water from Eagle Creek, which 
constitutes approximately six percent of the natural flow of that 
Creek.
    Phelps Dodge indicates within the management plan that their 
overall goal is to operate its Eagle Creek water system to maintain 
perennial flows in Eagle Creek from the confluence of Willow Creek to 
the Phelps Dodge diversion dam to the extent it is legally, 
economically, and hydrologically reasonable to do so. Within the 
management plan, Phelps Dodge developed goals for both the loach minnow 
and spikedace within the Phelps Dodge reach. These goals regarding the 
two species include the following: (1) Monitoring distribution and 
abundance; (2) obtaining an understanding of the population dynamics as 
they relate to existing

[[Page 13397]]

habitat conditions and land use practices; (3) continuing historic land 
use practices and water supply practices which enhance water flows; and 
(4) consideration of habitat when deviating from such historic 
management practices. With respect to monitoring, Phelps Dodge has 
supported various biological surveys and studies on Eagle Creek, and 
intends to continue participating in such research projects in the near 
future. To gain a better understanding of the population dynamics of 
the loach minnow and spikedace, Phelps Dodge proposes to support the 
Rocky Mountain Research Station in its research.
    Phelps Dodge further intends to utilize the management plan for 
loach minnow and spikedace by doing the following: (1) Form working 
relationships with others that promote the conservation of these fish 
and their habitat; (2) develop the opportunity for collaboration and 
cooperation on management issues and other resources of interest to the 
Federal government; and (3) provide conservation benefits to riparian 
ecosystems, including habitat that may be or may potentially become 
suitable.
    To ensure continued conservation of spikedace and loach minnow in 
Eagle Creek, Phelps Dodge has also committed to regular coordination 
with the Service, which will include an annual summary to the Service 
regarding implementation of the management plan. Any deviations from 
the plan will be addressed, as will intended implementation of actions 
under the plan for the following year. Phelps Dodge will make all 
reasonable efforts to provide the Service with notice of any 
significant changes to the management of its water supply system that 
are outside the range of historic operating parameters discussed in the 
management plan. If any changes are required, Phelps Dodge will 
consider loach minnow and spikedace habitat and any comments received 
from the Service, and will make reasonable efforts to minimize adverse 
impacts to these fish and the PCEs to the extent legally, economically, 
and practically reasonable, so long as such actions do not impair their 
ability to hold, exercise, or modify their water rights.
    Phelps Dodge will also make reasonable efforts to coordinate their 
water management activities by attending regularly scheduled fisheries 
management working group meetings to stay abreast of ongoing management 
issues and concerns within the overall Eagle Creek area. Phelps Dodge 
will also consider stream renovation projects for Eagle Creek should 
the Service decide to pursue them, provided they do not interfere with 
existing land and water use and rights.
Gila River Management Plan
    The Gila River Management Plan covers riparian lands owned by 
Phelps Dodge in the middle reach of the mainstem Gila River south of 
Mogollon Creek in New Mexico. Land ownership in this area is 
principally Federal, with irregularly dispersed private and State 
lands.
    The management plan would affect only those lands owned by Phelps 
Dodge. Phelps Dodge owns lands surrounding or bordering approximately 
7.3 mi (11.7 km) of the mainstem Gila River. Some of the lands owned by 
Phelps Dodge in this area are leased for ranching and agriculture 
purposes, including the U-Bar Ranch. The Service has determined that 
these areas currently support one or more of the PCEs for spikedace and 
loach minnow, and both species currently occupy this portion of the 
stream. Those portions of the mainstem Gila River on Phelps Dodge lands 
support diversity and abundance of native fishes. In addition, this 
reach contains a high proportion of favorable habitat types for 
spikedace and loach minnow, including low gradient riffles and glide-
runs. In addition, we determined (see Table 1) that recreation, roads, 
grazing, nonnative aquatic species, and water diversions are potential 
threats in this area that may require special management or 
protections.
    Phelps Dodge's water rights and delivery system in this area have 
been developed and maintained to provide a dependable and adequate 
water supply for the operation of the Tyrone Mine. The delivery system 
consists of a diversion structure on the Gila River as well as a 
retention facility (Bill Evans Lake), and several wells. Surface water 
is diverted from the Gila River at the diversion structure for storage 
in Bill Evans Lake and transported via pipeline to the Tyrone Mine 
Facility.
    Within the management plan, Phelps Dodge commits to the following: 
(1) Monitoring the distribution and abundance of the loach minnow and 
spikedace in the Gila River passing through the Phelps Dodge Reach; (2) 
obtaining an understanding of the population dynamics of the loach 
minnow and spikedace as they relate to existing habitat conditions and 
land use practices in the Gila River; (3) continuing historic land use 
practices and water supply practices which enhance water flows in the 
Phelps Dodge Reach, (4) and considering loach minnow and spikedace 
habitat when deviating from the historical management practices. These 
commitments will be carried out in the same manner as described above 
under the Eagle Creek Management Plan.
    Within the management plan, Phelps Dodge commits to coordinating 
with the Service regarding management activities on their lands. This 
coordination will include an annual summary to the Service regarding 
implementation of the management plan. Any deviations from the plan 
will be addressed, as will the intended implementation of actions under 
the plan for the following year. The report will be provided to the 
Service during the first quarter of each calendar year.
    Phelps Dodge will also make all reasonable efforts to provide the 
Service with notice of any significant changes to the management of its 
water supply system that are outside the range of historic operating 
parameters discussed in the management plan. If any changes are 
required, Phelps Dodge will consider loach minnow and spikedace habitat 
and any comments received from the Service, and will make reasonable 
efforts to minimize adverse impacts to the fish and their PCEs to the 
extent legally, economically, and practically reasonable, so long as 
such actions do not impair their ability to hold, exercise, or modify 
their water rights.
    Phelps Dodge will also make reasonable efforts to coordinate their 
water management activities by attending regularly scheduled fisheries 
management working group meetings to stay abreast of ongoing management 
issues and concerns within the overall Gila River area. Phelps Dodge 
will also consider stream renovation projects for the Gila River should 
the Service decide to pursue them, provided they do not interfere with 
existing land and water uses and rights.
    The following analysis applies to both the Eagle Creek and Gila 
River areas covered by the Phelps Dodge's management plans, referred to 
as Plans below.
(1) Benefits of Inclusion
    There are few benefits in including areas covered by these Plans in 
the final critical habitat designation above those benefits that will 
be achieved through the implementation of these Plans, including 
voluntary management and restoration projects. As discussed above, the 
principal benefit of any area designated as final critical habitat is 
that activities adversely affecting critical habitat require 
consultation under section 7 of the Act if a Federal action is 
involved. Such consultation would ensure that adequate protection is

[[Page 13398]]

provided to avoid destruction or adverse modification of critical 
habitat.
    As of the date of this final rule, the Service has not conducted 
any formal consultations that have directly addressed the impacts of 
mining activities in the areas proposed as critical habitat (Final 
Economic Analysis 2004, pg. 5-3). There have, however, been several 
informal consultations regarding surface mining since the listing of 
the species. In addition, the Service conducted one formal consultation 
on spikedace and razorback sucker (Xyrauchen texanus) regarding 
spillway repair to the Phelps Dodge Diversion dam on Eagle Creek in 
1996. This consultation did not directly address impacts of the 
diversion dam itself, though the Service recommended that such a 
consultation be conducted. The consultation found that the proposed 
action was not likely to adversely affect the fish species, and 
recommended minimizing the use of heavy equipment in the wetted area, 
making reasonable efforts to ensure no pollutants enter surface water, 
catch and release of any spikedace found, as a well as monitoring 
activities.
    The small number of previous section 7 consultations during the 
past 20 years since these species have been listed and while critical 
habitat was designated and the expectation that there will be will be 
few if any future projects with a Federal nexus gives us reasonable 
grounds to believe that critical habitat designation will create 
relatively few benefits for the spikedace and loach minnow in these 
areas. Since these areas covered by the Plans are privately owned, 
unless there is a Federal nexus in connection with activities occurring 
in these areas, the designation of critical habitat will not require 
consultation with the Service for such activities. It is possible that 
the maintenance of the Phelps Dodge Diversion dam could act as a 
Federal nexus for consultation because the diversion is likely subject 
to U.S. Army Corps of Engineers permit requirements. This could result 
in consultation, but because these areas are considered to be occupied 
by the species, consultation would already take place under the 
jeopardy standard (see ``General Principles of Section 7 Consultations 
Used in the 4(b)(2) Balancing Process'' above). Moreover, since the 
prior consultation on maintenance of this structure found it was 
``unlikely to adversely affect'' the species, it is not reasonable to 
anticipate that a future consultation on maintenance of the structure 
would result in a finding of adverse modification of the critical 
habitat.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value (species presence and their PCEs) of an area, and 
this may focus and contribute to conservation efforts by other parties 
by clearly delineating areas of high conservation value for certain 
species. Any information about the spikedace and loach minnow and its 
habitat that reaches a wide audience, including other parties engaged 
in conservation activities, would be considered valuable. However, 
Phelps Dodge is currently working with the Service to address the 
conservation of these fish and to avoid impacts to their habitat 
(PCEs), and the agreements they have offered would institutionalize 
that cooperation. Further, these areas were included in the proposed 
designation, which itself has reached a wide audience, and has thus 
provided information to the broader public about the conservation value 
of these areas. Thus, the educational benefits that might follow 
critical habitat designation have already been provided through the 
multiple notice and comments which accompanied the development of this 
critical habitat designation and previous designations. For these 
reasons, then, we believe that designation of critical habitat would 
have few, if any, additional benefits beyond those that will result 
from continued consultation for the presence of these species.
(2) Benefits of Exclusion
    We believe that significant benefits would be realized by excluding 
these areas from the final critical habitat designation that include: 
(1) The continuance and strengthening of our relationship with Phelps 
Dodge to promote the conservation of the spikedace and loach minnow and 
their habitat; (2) the allowance for collaboration and cooperation in 
surveys, monitoring, and research as we work towards recovery of these 
species; and (3) the conservation benefits to the Gila River and Eagle 
Creek ecosystems and spikedace and loach minnow habitat that might not 
otherwise occur, all as set out in the Plans summarized above. Phelps 
Dodge is greatly concerned about the possible impacts of a critical 
habitat designation in this area (James 2006, p. 7, 10-20) and is 
offering these management plans as an alternative. It is unlikely they 
would proceed with them if these areas were designated as critical 
habitat.
    Phelps Dodge, including the U-Bar Ranch that they own on the Gila 
River, is an important land manager within Eagle Creek and the Gila 
River watersheds. The surveys, monitoring, research, and commitment to 
collaborate with the Service on restoration projects within these areas 
document that conservation efforts will occur for these fish and their 
habitat. These activities and cooperation may not occur if we were to 
designate critical habitat on these private lands, and these actions 
cannot be compelled by the designation, particularly given the 
expectation that there would be a very limited, if any, federal nexus 
for having a consultation on private activities here. We believe that 
the results of these activities promote long-term protection and are 
aimed at conserving the spikedace and loach minnow in these areas. The 
benefits of excluding these areas from critical habitat will encourage 
the continued conservation, land management, and coordination with the 
Service. If these areas are designated as critical habitat, we may 
jeopardize future conservation, research, and information sharing for 
the recovery of the spikedace and loach minnow and likely not secure 
any offsetting benefits from the designation due to the apparent lack 
of a federal nexus to trigger consultation.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    In summary, the benefits of including lands owned by Phelps Dodge 
in the final critical habitat designation are small, and are limited to 
minimal educational benefits and potentially some benefits through 
section 7 consultations. However, since these lands are privately 
owned, unless a Federal nexus exists, final critical habitat would not 
result in a section 7 consultation. The lack of previous section 7 
consultations during the 20 years since these species have been listed 
in these areas being excluded from the final designation of critical 
habitat give us reasonable grounds to believe that such a Federal nexus 
is unlikely to occur, or would likely occur only for the subject of the 
prior consultation, which resulted in a finding of ``unlikely to 
adversely affect'' the species. We also note that the requirement of 
Federal agencies to consult with us on activities that may affect these 
species still exists, whether or not critical habitat is designated, 
since these areas are considered occupied. The benefits of excluding 
these areas from designation as critical habitat for the spikedace and 
loach minnow are significant, and include encouraging the continuation 
of monitoring, surveys, research, enhancement, and restoration 
activities that will benefit spikedace and loach

[[Page 13399]]

minnow PCEs. The exclusion of this area will likely also provide 
additional benefits to the species by encouraging a cooperative working 
relationship with Phelps Dodge. Although the benefits of these 
management plans are less than plans in other areas upon which 
exclusions are often made (i.e. habitat conservation plans), the likely 
lack of a Federal nexus for these lands means that the benefits of 
these plans still exceed by the considerable margin the benefits the 
species would receive from the designation. We accordingly find that 
the benefits of excluding these areas from the final critical habitat 
designation outweigh the benefits of their inclusion.
(4) Exclusion Will Not Result in Extinction of the Species
    We have determined that exclusion of areas covered by these Plans 
on the Gila River and Eagle Creek will not result in extinction of 
these species. Any actions that might adversely affect the spikedace 
and loach minnow 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. The spikedace and loach minnow are protected from take 
under section 9. The exclusions leave these protections unchanged from 
those which would exist if the excluded areas were designated as final 
critical habitat. Phelps Dodge is committed to greater conservation 
measures on their land than would be available through the designation 
of critical habitat. Accordingly, we have determined that exclusion of 
these areas of Eagle Creek and the Gila River as discussed above under 
subsection 4(b)(2) of the Act will not cause the extinction of the 
species.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available and 
to consider the economic and other relevant impacts of designating a 
particular area as critical habitat. 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 concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on June 6, 2006 (71 FR 32496). We 
accepted comments on the draft analysis until October 16, 2006.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the spikedace and loach minnow. 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 coextensive 
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.
    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 spikedace and loach 
minnow. Pre-designation impacts are typically defined as all management 
efforts that have occurred since the time of listing. The spikedace and 
loach minnow were listed on July 1 and October 28, 1986, respectively 
(51 FR 23769, 51 FR 39468). Our draft economic analysis found that the 
total post-designation costs associated with the five proposed critical 
habitat units are forecast to range from $25.2 to $100.3 million over 
20 years, with discounted (7%) annual costs at $1.4 to $6.7 million 
annually (IEc 2006, p. ES-2). Estimated costs are primarily due to 
impacts on water use and management, species management, and 
recreation.
    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 spikedace and loach minnow, except for the Verde River, as 
discussed in further detail in the ``Verde River'' section below. 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/southwest/es/arizona/.

Verde River

    As discussed in the ``Summary of Changes from the Proposed Rule'' 
section above, we have determined that proposed critical habitat on 
those portions of the Verde River below the Prescott and Coconino 
National Forest boundary with private lands will not be designated as 
final critical habitat due to the potential economic impact of 
designation. The economic analysis estimates the potential future 
impacts (2006-2025) associated with the entire stretch of the Verde 
River to be $64.59 million (undiscounted dollars). Although these costs 
do not account for variance in river miles or population, they are a 
full order of magnitude larger than the estimated impacts for any other 
stretch of river proposed as critical habitat, and represent more than 
half of the total estimated impacts ($100.3 million) for the entire 
proposed critical habitat designation. Estimated quantified costs on 
this reach primarily stem from potential impacts to agriculture, but 
also include impacts on development and recreation activities. 
Unquantified potential impacts could include impacts to water users, 
including Verde Valley municipalities and the City of Prescott.
    The economic analysis indicates that most of these costs occur in 
the lower portion of the Verde River where the river runs through 
several communities in the Verde Valley that are experiencing rapid 
urban growth. Therefore, we are excluding from the final critical 
habitat designation the lower portion of the Verde River below the 
Prescott and Coconino National Forest boundary with private lands due 
to significant and disproportionate economic impacts.
    We have reached this determination because we believe the benefits 
of excluding these segments from the final critical habitat designation 
outweigh the benefits of including them as critical habitat.
    We have considered in making the lower Verde River exclusion that 
all of the costs estimated in the draft economic analysis may not be 
avoided by excluding this area. This is because this area is currently 
occupied by the spikedace 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. Additionally, other protections for the 
species exist elsewhere in the Act and

[[Page 13400]]

under State and local laws and regulations.
(1) Benefits of Inclusion
    The primary conservation value of the lower Verde River proposed 
critical habitat segment is to sustain existing populations. The area 
excluded from the final designation is currently considered occupied by 
the spikedace. If this area is designated as critical habitat, any 
actions with a Federal nexus which might adversely modify or destroy 
the critical habitat would require a consultation with us. However, 
inasmuch as this area is currently occupied by the spikedace, 
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.
    As discussed above, we expect that little additional educational 
benefits would be derived from including this area 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 and previous designations.
    Designation of critical habitat in the lower Verde River might 
result in consultations with Federal agencies or as part of intra-
Service consultations for HCPs that may lead to conservation activities 
for the spikedace; however, we believe any possible benefits would be 
minimal as derived from critical habitat because the spikedace is 
present in the Verde River and consultations are already likely to 
occur.
    In summary, we believe that designating this proposed segment as 
final 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 for any action which may adversely affect 
the species. Some improvements in habitat quality 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 the lower Verde River from critical 
habitat designation are avoidance in up to $64.59 million (undiscounted 
dollars) in possible economic impacts, as set out in the economic 
analysis. While the cost estimate of $64.59 million is an estimate of 
potential economic costs for the entire Verde River, we are only 
excluding the lower portion because we believe the lower portion of the 
Verde River accounts for some of the highest cost areas since this is 
where the river runs through several communities in the Verde Valley 
that are experiencing rapid urban growth. Additionally, as discussed 
below, we find that the upper portion of the Verde River is the most 
important for conservation of the spikedace because it accounts for 91 
percent of the known locations of the spikedace in the Verde River.
    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 final critical habitat for 
the spikedace on the lower portion of the Verde River are small in 
comparison to the benefits of exclusion. In making this finding, we 
have weighed the benefits of including the lower Verde River as final 
critical habitat against the possible costs imposed on private parties 
as a result of the final critical habitat 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
    Because we consider the lower portion of the Verde River to be 
occupied by spikedace, a species protected from take under section 9 of 
the Act, any actions that might adversely affect or result in take of 
the spikdace, regardless of whether a Federal 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 this area from final 
critical habitat will not result in the extinction of the spikedace 
because this exclusion is only a small percentage of the overall 
critical habitat designation and, as noted above, 91 percent of the 
known locations of the spikedace occur in the upper Verde River, which 
is not being excluded from the final critical habitat designation.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but will not have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2) of the 
Act, if we determine that the benefits of such exclusion outweigh the 
benefits of specifying such area as part of the critical habitat, 
unless we determine, based on the best scientific data available, that 
the failure to designate such area as critical habitat will result in 
the extinction of the species.

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

    Under the Regulatory Flexibility Act (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

[[Page 13401]]

rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects 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 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities. The SBREFA also amended the RFA to require a 
certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses, 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 rule could significantly 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, Tribal activities, residential 
and related development, species-specific management activities, 
recreation activities, fire management activities, mining, and 
transportation). We apply the ``substantial number'' test individually 
to each industry to determine if certification is appropriate. However, 
the SBREFA does not explicitly define ``substantial number'' or 
``significant economic impact.'' Consequently, to assess whether a 
``substantial number'' of small entities is affected by this 
designation, this analysis considers the relative number of small 
entities likely to be impacted in an area. In some circumstances, 
especially with critical habitat designations of limited extent, we may 
aggregate across all industries and consider whether the total number 
of small entities affected is substantial. In estimating the numbers of 
small entities potentially affected, we also considered whether their 
activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect the spikedace or loach minnow. Federal agencies must also 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities.
    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 these 
species and proposed designation of their critical habitat. We 
evaluated small business entities in water management and use, 
livestock grazing activities, mining operations, management activities 
specific to spikedace and loach minnow, recreation, residential and 
related development, Tribes, transportation, and fire management. Based 
on our analysis, impacts are anticipated to occur in Tribes, 
agricultural crop production as it relates to water use and management, 
livestock grazing, residential and commercial development, and 
recreation. The following is a summary of the information contained in 
Appendix B of the economic analysis:
Tribes
    The economic analysis estimates that future impacts resulting from 
spikedace and loach minnow conservation activities on Tribal lands 
could include administrative costs of consultations, surveys and 
monitoring, development of a Fisheries Management Plan, modifications 
to grazing, fire management, modifications to recreational activities, 
and potential project modifications to restoration activities. The 
economic analysis provides additional detail on anticipated impacts; 
however, because all Tribal lands have been excluded under section 
4(b)(2), these costs will not be incurred.

Water Management and Use: Agricultural Crop Production

    The economic analysis notes that spikedace and loach minnow 
conservation activities have not impacted crop production since the 
listing of the species in 1986. The economic analysis further notes 
that, because agricultural water use comprises 98 percent of surface 
water use and 81 percent of groundwater use in counties containing 
critical habitat for spikedace and loach minnow, it is likely that any 
additional water supplies needed for the species would come from 
agriculture. Therefore, the analysis focuses on a potential scenario 
under which farmers would give up agricultural water use in an effort 
to provide adequate water supply for the species, leading to reductions 
in crop production. The economic analysis notes that, because of the 
uncertainty involved in estimating the potential reduction in 
agricultural production, the scenario analyzed represents the high-end 
estimate of impacts to water users.
    Should this scenario be realized, losses in land values associated 
with transitioning irrigated cropland to non-irrigated lands will 
likely result, and would range from $3,175 to $6,190 per acre, 
depending on the area in which critical habitat is located. A total of 
6,310 acres of cropland are in the vicinity of proposed critical 
habitat (i.e., in the same valley), and 810 of those acres are located 
within the critical habitat designation itself. The average farm size 
in affected counties ranges from 1,300 acres to 7,800 acres. Assuming 
affected farms are average-sized for their counties, approximately one 
to five farms could experience reductions in crop production. 
Alternatively, the median farm size in affected counties ranges from 41 
to 1,300 acres. Assuming affected farms are median-sized for their 
counties, approximately 4 to 199 farms could experience reductions in 
crop production. Under the assumption that all farms are small (1,884 
farms across 5 counties), the estimate of future impacts (1 to 199) 
represents between less than 1 percent to 6.5 percent of total small 
farm operations in counties that contain spikedace and loach minnow 
critical habitat. The analysis assumes that affected farms are small, 
so that total future impacts represent less than

[[Page 13402]]

1 percent to 6.5 percent of total small farm operations in counties 
that contain spikedace and loach minnow habitat.

Livestock Grazing

    The economic analysis notes that ranching operations holding 
Federal grazing allotment permits are anticipated to experience 
economic impacts as they implement species conservation requirements 
for grazing activities. The analysis assumes that each Federal grazing 
allotment falling within critical habitat is run by a unique ranching 
operation, so that approximately 76 ranching operations may be impacted 
annually. These 76 ranches represent 4.7 percent of ranches in the 
affected counties, or 1.0% of ranches in New Mexico and Arizona. Annual 
costs to each of these ranches would be between $390 and $9,200 per 
ranch. With average revenues per ranch in this region at $166,700, 
these losses represent between 0.2 and 5.5 percent of each ranch's 
estimated average revenues.
    The analysis notes that approximately 72 small ranching operations 
may experience a reduction in revenues of between 0.9 and 22 percent of 
annual revenues annually. The analysis concludes that the extent to 
which these impacts are significant to any individual ranch depends on 
its financial conditions.

Residential and Commercial Development

    The analysis for residential and commercial development concludes 
that impacts are likely to occur in the Verde River segment, as it 
contains a large amount of private land, a relatively large human 
population, and high projected population growth potential in the next 
20 years. The analysis notes that it is likely that project 
modification costs associated with spikedace and loach minnow 
conservation activities would be passed from the developer to the 
existing landowner in the form of reduced prices for raw land. The 
landowners may be developers, farmers, ranchers, or simply individuals 
or families that are not registered businesses, and the analysis 
concludes that some of the existing landowners may be small entities.
    Impacts to developers are estimated to include fencing costs, 
scientific studies, surveying and monitoring requirements, and possibly 
off-setting mitigation (habitat set-aside). Costs are estimated to 
range from $3.1 million to $4.8 million per large development, or 
$3,900 to $5,900 per housing unit ($190 to 300 annually, if costs are 
distributed evenly over 20 years). Total impacts to development 
activities are estimated at $3.4 to $5.2 million over 20 years, or 
$319,000 to $419,000 annually (assuming a discount rate of seven 
percent). The analysis concludes that up to 1,646 housing units could 
be built on approximately 2,880 privately owned acres within proposed 
critical habitat over the next 20 years in Yavapai County. The economic 
analysis provides additional detail on anticipated impacts; however, 
because we excluded the middle and lower portions of the Verde River 
under section 4(b)(2) of the Act, the majority of these costs will not 
be incurred.

Recreation

    The analysis notes that areas currently stocked with nonnative 
sportfish include the Camp Verde area in the Verde River in Complex 1 
and the East Fork Gila River in Complex 5. The analysis states that the 
future impact of the critical habitat designation on the stocking 
regimes in these areas is unknown, as is the reduction in fishing 
activity that would occur if stocking is curtailed, and whether or not 
nonnative fish stocking might be replaced with catchable native fish 
stocking (e.g., Apache trout). Because of these unknowns, the analysis 
evaluated the high-end cost of angler days at risk if sportfish 
stocking were discontinued in these reaches.
    Angling trips are valued at $8.6 million over 20 years (or $816,000 
annually), assuming a discount rate of seven percent. The analysis 
notes that State fish managers typically identify alternative sites for 
stocked fish when areas are closed to stocking, so that angler days are 
likely to be redistributed to other areas rather than lost altogether. 
The high-end estimate does not consider the possibility that recreators 
will visit alternative fishing sites.
    The two stream reaches where impacts on recreation are anticipated 
to occur are in Yavapai County, Arizona, and Catron County, New Mexico. 
If angler trips to the two stream reaches are not lost, but instead are 
redistributed to other streams, then regional impacts on small 
businesses are likely to be minimal. If, as in the high-end estimate of 
impacts, angler trips to the two stream reaches are not undertaken, 
localized impacts on anglers, and in turn small businesses that rely on 
fishing activities, could occur. These impacts would be spread across a 
variety of industries including food and beverage stores, food service 
and drinking places, accommodations, transportation, and sporting 
goods. The analysis found that these industries generate approximately 
$829 million in total annual sales for these two counties. Based on 
2001 National Survey of Fishing, Hunting, and Wildlife-Associated 
Recreation for Arizona and New Mexico, average expenditures per fishing 
trip are approximately $37, with the bulk of these expenditures 
occurring in the food service and gasoline industries. By multiplying 
this per-trip estimate by the number of fishing trips potentially lost 
due to spikedace and loach minnow conservation activities (0 to 13,260 
days per year, assuming one day per trip), expenditures by these 
anglers are estimated to be up to $485,000 annually. The high-end 
estimate of annual loss of trip expenditures could therefore represent 
a loss of approximately 0.06 percent of annual revenues for affected 
businesses.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the approximately 
four small businesses, on average, that may be required to consult with 
us each year regarding their project's impact on the spikedace and 
loach minnow and their habitat. First, if we conclude, in a biological 
opinion, that a proposed action is likely to jeopardize the continued 
existence of a species or adversely modify its critical habitat, we can 
offer ``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would avoid jeopardizing the continued existence of 
listed species or result in adverse modification of critical habitat. A 
Federal agency and an applicant may elect to implement a reasonable and 
prudent alternative associated with a biological opinion that has found 
jeopardy or adverse modification of critical habitat. An agency or 
applicant could alternatively choose to seek an exemption from the 
requirements of the Act or proceed without implementing the reasonable 
and prudent alternative. However, unless an exemption were obtained, 
the Federal agency or applicant would be at risk of violating section 
7(a)(2) of the Act if it chose to proceed without implementing the 
reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary

[[Page 13403]]

terms and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this critical habitat designation. Within the final 
critical habitat units, the types of Federal actions or authorized 
activities that we have identified as potential concerns are carrying 
out, permitting, or funding of: Livestock grazing, road and bridge 
construction and maintenance, water diversions (including maintenance 
of diversion structures), recreation, gravel mining, burning and 
wildfires, mining, watershed disturbances, and the spread of nonnative 
aquatic species.
    It is likely that a developer or other project proponent could 
modify a project or take measures to protect the spikedace and loach 
minnow. The kinds of actions that may be included if future reasonable 
and prudent alternatives become necessary include conservation set-
asides, management of competing nonnative species, restoration of 
degraded habitat, and regular monitoring. These are based on our 
understanding of the needs of the species and the threats it faces, as 
described in the final listing rule and proposed critical habitat 
designation. These measures are not likely to result in a significant 
economic impact to project proponents.
    In summary, we have considered whether this critical habitat 
designation would result in a significant economic effect on a 
substantial number of small entities. We have determined, for the above 
reasons and based on currently available information, that it is not 
likely to affect a substantial number of small entities. Federal 
involvement, and thus section 7 consultations, would be limited to a 
subset of the area designated. The most likely Federal involvement 
could include actions needing a section 404 permit under the Clean 
Water Act (e.g., livestock grazing, agricultural water developments, 
recreation). A regulatory flexibility analysis is not required.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 
(Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. Executive Order 13211 requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. This final rule to designate critical habitat for the 
spikedace and loach minnow is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), 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 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. While non-Federal entities who receive Federal 
funding, assistance, or permits or who otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, 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; additionally, 
critical habitat would not 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 spikedace and loach minnow 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 the total costs of the rule could range from $25.2 to 
$100.3 million in undiscounted dollars over 20 years. Impacts are 
largely anticipated to affect water use and management, recreation, and 
livestock. Impacts on small governments are not anticipated, or they 
are anticipated 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 spikedace and 
loach minnow will significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

[[Page 13404]]

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 spikedace and loach minnow in a 
takings implications assessment. The takings implications assessment 
concludes that this designation of critical habitat for these fish 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 policies, we 
requested information from and coordinated development of this critical 
habitat designation with appropriate State resource agencies in Arizona 
and New Mexico. The designation of critical habitat in areas currently 
occupied by spikedace or loach minnow may impose nominal additional 
regulatory restrictions to those currently in place and, therefore, may 
have little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas containing features 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. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist local governments in long-range 
planning (rather than waiting for case-by-case section 7 consultations 
to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet 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 Endangered Species 
Act. This final rule uses standard property descriptions and identifies 
the primary constituent elements within the designated areas to assist 
the public in understanding the habitat needs of spikedace and loach 
minnow.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose record keeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. 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 Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld 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 spikedace 
and loach minnow, pursuant to the Tenth Circuit ruling in Catron County 
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 
(10th Cir. 1996), we undertake a NEPA analysis for critical habitat 
designation. We conducted a NEPA evaluation and notified the public of 
the draft document's availability on June 6, 2006 (71 FR 32496). We 
completed an environmental assessment and finding of no significant 
impact on the designation of critical habitat for the spikedace and 
loach minnow. The final documents are available and can be viewed 
online at http://www.fws.gov/southwest/es/arizona/.

Government to Government Relationship With Tribes

    In accordance with 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 Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have excluded all Tribal 
lands from the final critical habitat designation pursuant to section 
4(b)(2) of the Act.

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.

References Cited

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

Authors

    The primary authors of this package are the Arizona Ecological 
Services Office staff (see ADDRESSES section above).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping 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.  17.95(e) by revising the critical habitat entries for 
``Loach Minnow (Tiaroga cobitis)'' and ``Spikedace (Meda fulgida)'' to 
read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *

[[Page 13405]]

    (e) Fishes.
* * * * *

Loach Minnow (Tiaroga Cobitis)

    (1) Critical habitat units are depicted for Apache, Graham, 
Greenlee, and Pinal Counties, Arizona; and Catron, Grant, and Hidalgo 
Counties, New Mexico, on the maps and as described below.
    (2) Within these areas, the primary constituent elements of 
critical habitat for loach minnow are the following:
    (i) Permanent, flowing water with no or low levels of pollutants, 
including:
    (A) Living areas for adult loach minnow with moderate to swift flow 
velocities between 9.0 to 32.0 in/second (24 to 80 cm/second) in 
shallow water between approximately 1.0 to 30 inches (3 cm to 75 cm) in 
depth, with gravel, cobble, and rubble substrates;
    (B) Living areas for juvenile loach minnow with moderate to swift 
flow velocities between 1.0 and 34 in/second (3.0 and 85.0 cm/second) 
in shallow water between approximately 1.0 to 30 inches (3 cm to 75 cm) 
in depth with sand, gravel, cobble, and rubble substrates;
    (C) Living areas for larval loach minnow with slow to moderate 
velocities between 3.0 and 20.0 in/second (9.0 to 50.0 cm/second) in 
shallow water with sand, gravel, and cobble substrates;
    (D) Spawning areas with slow to swift flow velocities in shallow 
water where cobble and rubble and the spaces between them are not 
filled in by fine dirt or sand; and
    (E) Water with dissolved oxygen levels greater than 3.5 cc/l and no 
or minimal pollutant levels for pollutants such as copper, arsenic, 
mercury, and cadmium; human and animal waste products; pesticides; 
suspended sediments; and gasoline or diesel fuels.
    (ii) Sand, gravel, and cobble substrates with low or moderate 
amounts of fine sediment and substrate embeddedness. Suitable levels of 
embeddedness are generally maintained by a natural, unregulated 
hydrograph that allows for periodic flooding or, if flows are modified 
or regulated, a hydrograph that allows for adequate river functions, 
such as flows capable of transporting sediments.
    (iii) Streams that have:
    (A) Low gradients of less than approximately 2.5 percent;
    (B) Water temperatures in the approximate range of 35 to 86 [deg]F 
(1.7 to 30.0 [deg]C) (with additional natural daily and seasonal 
variation);
    (C) Pool, riffle, run, and backwater components; and
    (D) An abundant aquatic insect food base consisting of mayflies, 
true flies, black flies, caddisflies, stoneflies, and dragonflies.
    (iv) Habitat devoid of nonnative aquatic species or habitat in 
which nonnative aquatic species are at levels that allow persistence of 
loach minnow.
    (v) Areas within perennial, interrupted stream courses that are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    (3) Each stream segment includes a lateral component that consists 
of 300 feet (91.4 meters) on either side of the stream channel measured 
from the stream edge at bank full discharge. This lateral component of 
critical habitat contains and contributes to the physical and 
biological features essential to the loach minnow and is intended as a 
surrogate for the 100-year floodplain.
    (4) 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[foot] 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). All mileage calculations were performed 
using GIS.
    (5) Note: Index map of critical habitat units for loach minnow (Map 
1) follows:
BILLING CODE 4310-55-P

[[Page 13406]]

[GRAPHIC] [TIFF OMITTED] TR21MR07.000

    (6) Complex 2--Black River, Apache and Greenlee Counties, Arizona.
    (i) East Fork Black River--12.2 mi (19.7 km) of river extending 
from the confluence with the West Fork Black River at Township 4 North, 
Range 28

[[Page 13407]]

East, section 11 upstream to the confluence with unnamed tributary 
approximately 0.51 mi (0.82 km) downstream of the Boneyard Creek 
confluence at Township 5 North, Range 29 East, section 5. Land 
ownership: U.S. Forest Service (Apache--Sitgreaves National Forest).
    (ii) North Fork East Fork Black River--4.4 mi (7.1 km) of river 
extending from the confluence with East Fork Black River at Township 5 
North, Range 29 East, section 5 upstream to the confluence with an 
unnamed tributary at Township 6 North, Range 29 East, section 30. Land 
ownership: U.S. Forest Service (Apache--Sitgreaves National Forest).
    (iii) Boneyard Creek--1.4 mi (2.3 km) of creek extending from the 
confluence with the East Fork Black River at Township 5 North, Range 29 
East, section 5 upstream to the confluence with an unnamed tributary at 
Township 6 North, Range 29 East, section 32. Land ownership: U.S. 
Forest Service (Apache--Sitgreaves National Forest).
    (iv) Note: Map of Complex 2 (Black River) of loach minnow critical 
habitat (Map 2) follows:

[[Page 13408]]

[GRAPHIC] [TIFF OMITTED] TR21MR07.001


[[Page 13409]]


    (7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal 
and Graham Counties, Arizona.
    (i) Aravaipa Creek--28.1 mi (45.3 km) of creek extending from the 
confluence with the San Pedro River at Township 7 South, Range 16 East, 
section 9 upstream to the confluence with Stowe Gulch at Township 6 
South, Range 19 East, section 35. Land ownership: Bureau of Land 
Management, Tribal, and State lands.
    (ii) Turkey Creek--2.7 mi (4.3 km) of creek extending from the 
confluence with Aravaipa Creek at Township 6 South, Range 19 East, 
section 19 upstream to the confluence with Oak Grove Canyon at Township 
6 South, Range 19 East, section 32. Land ownership: Bureau of Land 
Management.
    (iii) Deer Creek--2.3 mi (3.6 km) of creek extending from the 
confluence with Aravaipa Creek at Township 6 South, Range 18 East, 
section 14 upstream to the boundary of the Aravaipa Wilderness at 
Township 6 South, Range 19 East, section 18. Land ownership: Bureau of 
Land Management.
    (iv) Note: Map of Complex 3 (Aravaipa Creek) of loach minnow 
critical habitat (Map 3) follows:

[[Page 13410]]

[GRAPHIC] [TIFF OMITTED] TR21MR07.002


[[Page 13411]]


    (8) Complex 4--San Francisco and Blue Rivers, Pinal and Graham 
Counties, Arizona, and Catron County, New Mexico.
    (i) Eagle Creek--17.7 mi (28.5 km) of creek extending from the 
Phelps--Dodge Diversion Dam at Township 4 South, Range 28 East, section 
23 upstream to the confluence of Dry Prong and East Eagle Creeks at 
Township 2 North, Range 28 East, section 29, excluding portions of the 
San Carlos Reservation. Land ownership: U.S. Forest Service (Apache--
Sitgreaves National Forest), and private lands.
    (ii) San Francisco River--126.5 mi (203.5 km) of river extending 
from the confluence with the Gila River at Township 5 South, Range 29 
East, section 21 upstream to the mouth of The Box, a canyon above the 
town of Reserve, at Township 6 South, Range 19 West, section 2. Land 
ownership: Bureau of Land Management, U.S. Forest Service (Apache-
Sitgreaves National Forest), State, and private lands in Arizona, and 
U.S. Forest Service (Gila National Forest) and private lands in New 
Mexico.
    (iii) Tularosa River--18.6 mi (30.0 km) of river extending from the 
confluence with the San Francisco River at Township 7 South, Range 19 
West, section 23 upstream to the town of Cruzville at Township 6 South, 
Range 18 West, section 12. Land ownership: U.S. Forest Service (Gila 
National Forest) and private lands.
    (iv) Negrito Creek--4.2 mi (6.8 km) of creek extending from the 
confluence with the Tularosa River at Township 7 South, Range 18 West, 
section 19 upstream to the confluence with Cerco Canyon at Township 7 
South, Range 18 West, section 21. Land ownership: U.S. Forest Service 
(Gila National Forest), and private lands.
    (v) Whitewater Creek--1.1 mi (1.8 km) of creek extending from the 
confluence with the San Francisco River at Township 11 South, Range 20 
West, section 27 upstream to the confluence with the Little Whitewater 
Creek at Township 11 South, Range 20 West, section 23. Land ownership: 
private lands.
    (vi) Blue River--51.1 mi (82.2 km) of river extending from the 
confluence with the San Francisco River at Township 2 South, Range 31 
East, section 31 upstream to the confluence of Campbell Blue and Dry 
Blue Creeks at Township 6 South, Range 20 West, section 6. Land 
ownership: U.S. Forest Service (Apache-Sitgreaves National Forest) and 
private lands in Arizona; U.S. Forest Service (Gila National Forest) in 
New Mexico.
    (vii) Campbell Blue Creek--8.1 mi (13.1 km) of creek extending from 
the confluence of Dry Blue and Campbell Blue Creeks at Township 6 
South, Range 20 West, section 6 in New Mexico upstream to the 
confluence with Coleman Canyon at Township 4 North, Range 31 East, 
section 32 in Arizona. Land ownership: U.S. Forest Service (Apache-
Sitgreaves National Forest) and private lands in Arizona; U.S. Forest 
Service (Gila National Forest) in New Mexico.
    (viii) Dry Blue Creek--3.0 mile (4.8 km) of creek extending from 
the confluence with Campbell Blue Creek at Township 7 South, Range 21 
West, section 6 upstream to the confluence with Pace Creek at Township 
6 South, Range 21 West, section 28. Land ownership: U.S. Forest Service 
(Gila National Forest).
    (ix) Pace Creek--0.8 mile (1.2 km) of creek extending from the 
confluence with Dry Blue Creek at Township 6 South, Range 21 West, 
section 28 upstream to a barrier falls at Township 6 South, Range 21 
West, section 29. Land ownership: U.S. Forest Service (Gila National 
Forest).
    (x) Frieborn Creek--1.1 mi (1.8 km) of creek extending from the 
confluence with Dry Blue Creek at Township 7 South, Range 21 West, 
section 6 upstream to an unnamed tributary at Township 7 South, range 
21 West, section 8. Land ownership: U.S. Forest Service (Gila National 
Forest).
    (xi) Little Blue Creek--2.8 mi (4.5 km) of creek extending from the 
confluence with the Blue River at Township 1 South, range 31 East, 
section 5 upstream to the mouth of a canyon at Township 1 North, Range 
31 East, section 29. Land ownership: U.S. Forest Service (Apache-
Sitgreaves National Forest).
    (xii) Note: Map of Complex 4 (San Francisco and Blue Rivers) of 
loach minnow critical habitat (Map 4) follows:

[[Page 13412]]

[GRAPHIC] [TIFF OMITTED] TR21MR07.003


[[Page 13413]]


    (9) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo 
Counties, New Mexico.
    (i) Upper Gila River--94.9 mi (152.7 km) of river extending from 
the confluence with Moore Canyon (near the Arizona/New Mexico border) 
at Township 18 South, Range 21 West, section 32 upstream to the 
confluence of the East and West Forks of the Gila River at Township 13 
South, Range 13 West, section 8. Land ownership: Bureau of Land 
Management, U.S. Forest Service (Gila National Forest), State, and 
private lands.
    (ii) East Fork Gila River--26.1 mi (42.0 km) of river extending 
from the confluence with the West Fork Gila River at Township 11 South, 
Range 12 West, section 17 upstream to the confluence of Beaver and 
Taylor creeks at Township 13 South, Range 13 West, section 8. Land 
ownership: U.S. Forest Service (Gila National Forest) and private 
lands.
    (iii) Middle Fork Gila River--11.9 mi (19.1 km) of river extending 
from the confluence with the West Fork Gila River at Township 12 South, 
Range 14 West, section 25 upstream to the confluence with Brothers West 
Canyon at Township 11 South, Range 14 West, section 33. Land ownership: 
U.S. Forest Service (Gila National Forest) and private lands.
    (iv) West Fork Gila River--7.7 mi (12.4 km) of river extending from 
the confluence with the East Fork Gila River at Township 13 South, 
Range 13 West, section 8 upstream to the confluence with EE Canyon at 
Township 12 South, Range 14 West, section 22. Land ownership: U.S. 
Forest Service (Gila National Forest), National Park Service, and 
private lands.
    (v) Note: Map of Complex 5 (Upper Gila River Complex) of loach 
minnow critical habitat (Map 5) follows:

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[[Page 13415]]


* * * * *

Spikedace (Meda fulgida)

    (1) Critical habitat units are depicted for Graham, Greenlee, 
Pinal, and Yavapai Counties, Arizona; and Catron, Grant, and Hidalgo 
Counties, New Mexico, on the maps and as described below.
    (2) Within these areas, the primary constituent elements of 
critical habitat for spikedace are the following:
    (i) Permanent, flowing water with no or minimal pollutant levels, 
including:
    (A) Living areas for adult spikedace with slow to swift flow 
velocities between 20 and 60 cm/second (8 and 24 in/second) in shallow 
water between approximately 10 cm (4 in) and 1 meter (40 in) in depth, 
with shear zones where rapid flow borders slower flow, areas of sheet 
flow (or smoother, less turbulent flow) at the upper ends of mid-
channel sand/gravel bars, and eddies at downstream riffle edges;
    (B) Living areas for juvenile spikedace with slow to moderate water 
velocities of approximately 18 cm/second (8 in/second) or higher in 
shallow water between approximately 3 cm (1.2 in) and 1 meter (40 in) 
in depth;
    (C) Living areas for larval spikedace with slow to moderate flow 
velocities of approximately 10 cm/second (4 in/second) or higher in 
shallow water approximately 3 cm (1.2 in) to 1 meter (40 in) in depth; 
and
    (D) Water with dissolved oxygen levels greater than 3.5 cc/l and no 
or minimal pollutant levels for pollutants such as copper, arsenic, 
mercury, and cadmium; human and animal waste products; pesticides; 
suspended sediments; and gasoline or diesel fuels.
    (ii) Sand, gravel, and cobble substrates with low or moderate 
amounts of fine sediment and substrate embeddedness. Suitable levels of 
embeddedness are generally maintained by a natural, unregulated 
hydrograph that allows for periodic flooding or, if flows are modified 
or regulated, a hydrograph that allows for adequate river functions, 
such as flows capable of transporting sediments.
    (iii) Streams that have:
    (A) Low gradients of less than approximately 1.0 percent;
    (B) Water temperatures in the approximate range of 35 to 82 [deg]F 
(1.7 to 27.8 [deg]C) (with additional natural daily and seasonal 
variation);
    (C) Pool, riffle, run, and backwater components; and
    (D) An abundant aquatic insect food base consisting of mayflies, 
true flies, caddisflies, stoneflies, and dragonflies.
    (iv) Habitat devoid of nonnative aquatic species or habitat in 
which nonnative aquatic species are at levels that allow persistence of 
spikedace.
    (v) Areas within perennial, interrupted stream courses that are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    (3) Each stream segment includes a lateral component that consists 
of 300 feet (91.4 meters) on either side of the stream channel measured 
from the stream edge at bank full discharge. This lateral component of 
critical habitat contains and contributes to the physical and 
biological features essential to the spikedace and is intended as a 
surrogate for the 100-year floodplain.
    (4) 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). All mileage calculations were performed 
using GIS.
    (5) Note: Index map of critical habitat units for spikedace (Map 
1), follows:
BILLING CODE 4310-55-P

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    (6) Complex 1--Verde River, Yavapai County, Arizona.
    (i) Verde River--43.0 mi (69.2 km) of river extending from the 
Prescott and Coconino National Forest boundary with private lands at 
Township 17

[[Page 13417]]

North, Range 3 East, section 7, upstream to Sullivan Dam at Township 17 
North, Range 2 West, section 15. Land ownership: U.S. Forest Service 
(Coconino and Prescott National Forests), State, and private lands.
    (ii) Note: Map of Complex 1 (Verde River) of spikedace critical 
habitat (Map 2) follows:
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[[Page 13418]]


    (7) Complex 3--Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal 
and Graham Counties, Arizona.
    (i) Gila River--39.0 mi (62.8 km) of river extending from the 
Ashurst-Hayden Dam at Township 4 South, Range 11 East, section 8 
upstream to the confluence with the San Pedro River at Township 5 
South, Range 15 East, section 23. Land ownership: Bureau of 
Reclamation, Bureau of Land Management, State, and private lands.
    (ii) Lower San Pedro River--13.4 mi (21.5 km) of river extending 
from the confluence with the Gila River at Township 5 South, Range 15 
East, section 23 upstream to the confluence with Aravaipa Creek at 
Township 7 South, Range 16 East, section 9. Land ownership: Bureau of 
Land Management, Tribal, State, and private lands.
    (iii) Aravaipa Creek--28.1 mi (45.3 km) of creek extending from the 
confluence with the San Pedro River at Township 7 South, Range 16 East, 
section 9 upstream to the confluence with Stowe Gulch at Township 6 
South, Range 19 East, section 35. Land ownership: Bureau of Land 
Management, Tribal, State, and private lands.
    (iv) Note: Map of Complex 3 (Middle Gila/Lower San Pedro/Aravaipa 
Creek) of spikedace critical habitat (Map 3) follows:

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    (8) Complex 5--Upper Gila River Complex, Catron, Grant, and Hidalgo 
Counties, New Mexico.
    (i) Upper Gila River--94.9 mi (152.7 km) of river extending from 
the confluence with Moore Canyon (near the Arizona/New Mexico border) 
at Township 18 South, Range 21 West, section 32 upstream to the 
confluence of the East and West Forks of the Gila River at Township 13 
South, Range 13 West, section 8, excluding lands owned by the Phelps 
Dodge Corporation. Land ownership: Bureau of Land Management, U.S. 
Forest Service (Gila National Forest), State, and private lands.
    (ii) East Fork Gila River--26.1 mi (42.0 km) of river extending 
from the confluence with the West Fork Gila River at Township 13 South, 
Range 13 West, section 8 upstream to the confluence of Beaver and 
Taylor creeks at Township 11 South, Range 12 West, section 17. Land 
ownership: U.S. Forest Service (Gila National Forest) and private 
lands.
    (iii) Middle Fork Gila River--7.7 mi (12.3 km) of river extending 
from the confluence with the West Fork Gila River at Township 12 South, 
Range 14 West, section 25 upstream to the confluence with Big Bear 
Canyon at Township 12 South, Range 14 West, section 2. Land ownership: 
U.S. Forest Service (Gila National Forest) and private lands.
    (iv) West Fork Gila River--7.7 mi (12.4 km) of river extending from 
the confluence with the East Fork Gila River at Township 13 South, 
Range 13 West, section 8 upstream to the confluence with EE Canyon at 
Township 12 South, Range 14 West, section 22. Land ownership: U.S. 
Forest Service (Gila National Forest), National Park Service, and 
private lands.
    (v) Note: Map of Complex 5 (Upper Gila River Complex) of spikedace 
critical habitat (Map 4) follows:

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* * * * *

    Dated: March 6, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. 07-1218 Filed 3-20-07; 8:45 am]
BILLING CODE 4310-55-P