Federal Register, Volume 87 Issue 39 (Monday, February 28, 2022)
[Federal Register Volume 87, Number 39 (Monday, February 28, 2022)]
[Rules and Regulations]
[Pages 11188-11220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03703]
[[Page 11187]]
Vol. 87
Monday,
No. 39
February 28, 2022
Part III
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; Endangered Species
Status for Peppered Chub and Designation of Critical Habitat; Final
Rule
Federal Register / Vol. 87 , No. 39 / Monday, February 28, 2022 /
Rules and Regulations
[[Page 11188]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2019-0019; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BD29
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Peppered Chub and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended, for the peppered chub (Macrhybopsis tetranema), a
freshwater fish species historically found in Colorado, Kansas, New
Mexico, Oklahoma, and Texas, which is now extirpated from all but six
percent of its historical range. We also designate critical habitat. In
total, approximately 872 river miles (1,404 river kilometers) in New
Mexico, Oklahoma, and Texas fall within the boundaries of the critical
habitat designation. We are excluding approximately 197 river miles
(317 river kilometers) of critical habitat in Kansas that was included
in the proposed critical habitat designation. This rule adds the
species to the List of Endangered and Threatened Wildlife and extends
the Act's protections to the peppered chub designated critical habitat.
DATES: This rule is effective March 30, 2022.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov and https://www.fws.gov/southwest/es/arlingtontexas. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2019-0019.
The coordinates or plot points or both from which the maps are
generated are included in the decision file for this critical habitat
designation and are available at https://www.regulations.gov at Docket
No. FWS-R2-ES-2019-0019 and at https://www.fws.gov/southwest/es/arlingtontexas. Any additional tools or supporting information that we
developed for this critical habitat designation will also be available
at the Service's website set out above and at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor, U.S.
Fish and Wildlife Service, Arlington, Texas, Ecological Services Field
Office, 2005 Northeast Green Oaks Boulevard, Suite 140, Arlington, TX
76006; telephone 817-277-1100. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Relay Service at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). If we
determine that a species warrants listing, we must list the species
promptly and designate the species' critical habitat to the maximum
extent prudent and determinable. We have determined that the peppered
chub meets the definition of an endangered species; therefore, we are
listing it as such and finalizing a designation of its critical
habitat. Both listing a species as an endangered or threatened species
and designating critical habitat can be completed only by issuing a
rule through the Administrative Procedure Act rulemaking process.
What this document does. This rule lists the peppered chub
(Macrhybopsis tetranema) as an endangered species and designates 872
river miles (1,404 river kilometers) in three units in Oklahoma, New
Mexico, and Texas as critical habitat.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
We have determined that habitat degradation and fragmentation
(Factor A), resulting from altered flow regimes, impoundments, and
other stream fragmentation, adversely modified geomorphology, decreased
water quality, and the introduction and proliferation of invasive
species (aquatic and vegetative), pose the largest risk to the
viability of the species. Changes in the hydrological regime are
primarily related to habitat changes: The loss of flowing water,
instream habitat fragmentation, disconnection of the floodplain, and
impairment of water quality. The effects of climate change (Factor E)
may be exacerbating habitat degradation and fragmentation.
Although habitat degradation and fragmentation are the primary
stressors to the peppered chub, we present a broader discussion of the
threats to the species below. Additionally, we found that the existing
regulatory mechanisms do not adequately reduce or remove the threats
acting on the species and the threats continue to affect the species
such that it warrants listing (Factor D). We are aware of no
conservation efforts at this time that sufficiently reduce or remove
the identified threats to the species and the threats continue to
affect the species such that listing is warranted. The Service, States
(New Mexico and Texas), and academic partners are conducting monitoring
efforts, and plans for captive propagation efforts are underway, but
none are finalized yet.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, 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 protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
The Secretary may exclude an area from critical habitat if she
determines that the benefits of such exclusion outweigh the benefits of
specifying such areas as part of critical habitat, unless she
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.
[[Page 11189]]
Previous Federal Actions
Please refer to the proposed listing and critical habitat rule (85
FR 77108) for the peppered chub published on December 1, 2020, for a
detailed description of previous Federal actions concerning this
species.
Summary of Changes From the Proposed Rule
We reviewed the comments related to our proposed listing
determination and critical habitat for the peppered chub (see Summary
of Comments and Recommendations, below), completed our analysis of
areas considered for exclusion under section 4(b)(2) of the Act,
reviewed our analysis of the physical or biological features essential
to the long-term conservation of the peppered chub, and finalized the
economic analysis of the designation. This final rule incorporates
changes from our 2020 proposed listing and critical habitat rule (85 FR
77108; December 1, 2020) based on the comments that we received and
have responded to in this document and considers efforts to conserve
the peppered chub.
Specifically, during the public comment period for the proposed
rule, we received a request to exclude critical habitat from the State
of Kansas because of an ongoing effort to include peppered chub in a
candidate conservation agreement with assurances (CCAA) and a safe
harbor agreement (SHA). The Kansas Aquatic Species Conservation
Agreement: A Programmatic Safe Harbor Agreement and Candidate
Conservation Agreement with Assurances for Fourteen Aquatic Species in
Kansas (Agreement) was completed on December 15, 2021. The conservation
efforts that will be undertaken because of the Agreement, and
subsequent benefit to the species, outweigh the benefits of including
these areas in the critical habitat designation. Based on our analysis,
which incorporates the value of the Agreement, we are excluding Unit 3
and a portion of Unit 4 in Kansas, a net decrease of 196 river miles
(rmi) from the proposed rule (table 3, below). More information can be
found below in the Exclusions section.
Summary of Comments and Recommendations
In the proposed rule published on December 1, 2020 (85 FR 77108),
we requested that all interested parties submit written comments on the
proposal by February 1, 2021. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
USA Today on December 3, 2020. We did not receive any requests for a
public hearing.
During the comment period on the proposed listing and critical
habitat rule, we received approximately 22 written comment letters. All
substantive information received during the comment period has either
been incorporated directly into this final determination or addressed
in our responses below.
Peer Reviewer Comments
As discussed in Supporting Documents above, we received comments
from one peer reviewer. We reviewed all comments we received from the
peer reviewer for substantive issues and new information regarding the
information contained in the species status assessment (SSA report).
The peer reviewer generally concurred with our methods and conclusions,
and provided additional information, clarifications, and suggestions
that improved the SSA report.
Comments From States
(1) Comment: Multiple State agency and industry commenters did not
support designating unoccupied critical habitat within those States.
Several indicated their view that the proposed unoccupied units would
not support peppered chubs in their current conditions.
Our response: Section 3(5)(A) of the Act defines critical habitat
as (i) the specific areas within the geographical area occupied by the
species, at the time it is listed, 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
protections; and (ii) specific areas outside the geographical area
occupied by the species at the time it is listed, upon a determination
by the Secretary that such areas are essential for the conservation of
the species. Unoccupied areas designated as critical habitat are not
limited to areas that could support a self-sustaining population in
their current condition but rather must contain at least one of the
physical or biological features (PBFs) determined by the Secretary to
be essential for the conservation of the species (50 CFR 424.12).
The areas that we have identified as critical habitat that are
unoccupied contain at least one of the PBFs required by the peppered
chub and are essential for the conservation of the species. The areas
are more fully described below in the individual unit descriptions.
Establishing healthy populations in these two currently unoccupied
units (Unit 2 and Unit 4) would increase the resiliency,
representation, and redundancy--and therefore, the viability--of the
species. If established, each unoccupied unit contributes ecological
diversity (representation) or guards against catastrophic events
(redundancy) or both.
(2) Comment: A State and multiple public commenters stated that
designation of both occupied and unoccupied critical habitat would
discourage private landowners from allowing access for monitoring and
habitat restoration, as well as participating in reintroduction
efforts.
Our response: According to section 4(a)(3)(A) of the Act, the
Secretary of the Interior shall, to the maximum extent prudent and
determinable, concurrently with making a determination that a species
is an endangered species or a threatened species, designate critical
habitat for that species. As directed by the Act, we proposed as
critical habitat those areas occupied by the species at the time of
listing and that contain the physical or biological features essential
for the conservation of the species, which may require special
management considerations or protection. The Act does not provide for
any distinction between land ownerships in those areas that meet the
definition of critical habitat.
When prudent, the Service is required to designate critical habitat
under the Act. The Act does not authorize the Service to regulate
private actions on private lands or confiscate private property as a
result of critical habitat designation. Designation of critical habitat
does not affect land ownership, or establish any closures, or
restrictions on use of or access to the designated areas. 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 the government or
public to access private lands.
The designation of critical habitat has little effect on private
lands. This designation provides protection under section 7 of the Act
and requires only Federal agencies to consult with the Service and
ensure that any action they authorize, fund, or carry out is not likely
to result in the destruction or adverse modification of critical
habitat. Because of this, we hope that we can continue our partnerships
with local landowners within the historical range of the
[[Page 11190]]
peppered chub and move collaboratively towards recovery of the species.
(3) Comment: Several commenters stated that the designation of
critical habitat is unnecessary because it would not provide any
additional benefit to the species, and that existing regulatory
mechanisms and habitat restoration efforts (e.g., the Arkansas River
Shiner Management plan) are adequate for the conservation of the
species.
Our response: The Service is not relieved of its statutory
obligation to designate critical habitat based on the contention that
it will not provide additional conservation benefit. In Ctr. for
Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003),
the court held that the Act does not direct us to designate critical
habitat only in those areas where ``additional'' special management
considerations or protection is needed. See also Cape Hatteras Access
Preservation Alliance v. U.S. Dept. of Interior, 731 F.Supp.2d (D.D.C.
2010). If any area provides the PBFs essential to the conservation of
the species, even if that area is already well managed or protected,
that area may still qualify as critical habitat under the statutory
definition.
The Canadian River Municipal Water Authority's Arkansas River
Shiner Management Plan aims to maintain minimum flows and control
invasive vegetative (e.g., saltcedar) encroachment in the South
Canadian River upstream of Lake Meredith in Texas to Logan, New Mexico.
Although we commend the Canadian River Municipal Water Authority and
its partners for investing time, effort, and funding for conservation
on the Canadian River, the habitat conservation efforts for Arkansas
River shiner to date have not resulted in an improvement of the status
of the peppered chub. In identifying critical habitat for peppered
chub, we identified those areas that meet the definition of critical
habitat under section 3(5)(A) of the Act. Although management actions
for one listed species may overlap other species' habitat or be
mutually beneficial to multiple listed species, our analysis indicates
that habitat conditions such as adequate stream flow and appropriate
stream geomorphology have continued to decline from the condition
needed to conserve the peppered chub. As a result, we conclude that
this conservation plan, in its current form, is not sufficient to
reduce the threats to the last population of peppered chub. Even with
this conservation plan in place, the current resiliency of the Upper
South Canadian River Resiliency Unit is in low condition.
(4) Comment: Several commenters took issue with the SSA report not
being peer reviewed at the time of the publication of the proposed
rule. One commenter stated that the proposed rule format does not
comply with the ESA and applicable implementing regulations in relying
on an SSA that is not peer reviewed. The commenter cites the Service's
peer review policy (59 FR 34270; July 1, 1994) and section II of the
Office of Management and Budget's (OMB) December 16, 2004, Final
Information Quality Bulletin for Peer Review (revised June 2012), which
both require agencies to conduct peer review on influential scientific
information prior to dissemination.
Our response: Section II of the OMB December 16, 2004, Final
Information Quality Bulletin for Peer Review requires each agency to
subject influential scientific information to peer review prior to
dissemination. The document further requires that, for dissemination of
influential scientific information, agencies have broad discretion in
determining what type of peer review is appropriate and what procedures
should be employed to select appropriate reviewers. The Service follows
its peer review policy (59 FR 34270), also referenced by the commenter.
Section A(1)(a) of the peer review policy states that the Service will
solicit the expert opinions of three appropriate and independent
specialists regarding pertinent scientific or commercial data and
assumptions relating to the taxonomy, population models, and supportive
biological and ecological information for species under consideration
for listing. The policy does not state that the peer review must occur
prior to the comment period for a proposed listing nor that the Service
is required to receive responses from peer reviewers prior to the
comment period provided for the proposed listing.
The Service actively sought peer review of the SSA and proposed
rule as required by both the Final Information Quality Bulletin for
Peer Review and the Service's peer review policy. We solicited peer
review from nine independent peer reviewers on December 4, 2020. Since
publication of the proposed rule, we solicited peer review a second
time and received a response from one peer reviewer. Per the peer
review policy, we summarize the peer review we received here in the
Peer Reviewer Comments section.
(5) Comment: One commenter stated that current restoration efforts,
which depend on Federal funding, include the treatment of nonnative
invasive species, mastication of standing dead invasive species,
installation of riparian fencing where necessary, and maintenance of
previously treated areas. Due to the dependence on Federal funding, any
successful restoration efforts would be delayed and constrained by the
consultation requirements imposed by the peppered chub's listing and
critical habitat designation.
Our response: The Act states that the Secretary shall make
determinations required by subsection (a)(1) of the Act solely on the
basis of the best scientific and commercial data available to her after
conducting a review of the status of the species. Listing decisions are
not dependent on possible funding delays caused by new consultation
requirements imposed by the listing. However, critical habitat
designations do consider the economic impacts including section 7
consultations. We conducted an economics analysis that found that there
was likely to be no significant economic impact from this designation
of critical habitat and that the additional costs are expected to be
due to the additional incremental administrative costs from the
consultation process in considering adverse modification of the
critical habitat (IEc 2019, Section 6).
Additionally, as stated below in the Available Conservation
Measures section, following publication of this final rule, funding for
recovery actions will be available from a variety of sources, including
Federal budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the States of Colorado,
Kansas, New Mexico, Oklahoma, and Texas will be eligible for Federal
funds to implement management actions that promote the protection or
recovery of the peppered chub.
(6) Comment: Several States and one industry commenter raised
concerns about how the listing and designation of critical habitat will
affect deliveries of water from reservoirs and groundwater pumping for
municipal use and agriculture, and the potential regulatory and
financial burdens of the proposed action on water delivery and use.
Our response: Additional information about how we conducted our
economic analysis, and how we incorporated water delivery and use, can
be found in our screening memo (IEC 2019, entire) and our incremental
effects memo (Service 2019, entire). The designation of critical
habitat would not impose any such regulatory or financial burdens on
non-Federal actions such as those indicated, where no Federal nexus
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exists. Groundwater pumping that does not occur on Federal lands would
not be subject to regulation under section 7, so long as there is no
Federal nexus. Further, no reservoirs and dams occur within the
designated critical habitat units and would only be subject to section
7 consultation if there is a Federal nexus and an upstream dam may
adversely modify the critical habitat designation. Additionally, when
there is a Federal nexus, under section 7 of the Act when evaluating
the effects on critical habitat, we consider impacts from ongoing State
water management operations that are not within the agencies'
discretion to modify to be part of the baseline of an effects analysis.
Service policy states that section 7 consultation should result in
measures that minimize the impacts of incidental take to the extent
reasonable and prudent (Endangered Species Consultation Handbook, 4-50
(March 1998)). They should be developed in coordination with the action
agency and applicant, if any, to ensure that the measures are
reasonable, that they cause only minor changes to the project, and that
they are within the legal authority and jurisdiction of the agency or
applicant to carry out. Therefore, they must be implementable under the
legal regimes that apply in the situation being analyzed.
(7) Comment: Several commenters state that introducing section
10(j) experimental populations within the unoccupied critical habitat
units stand a greater chance of making significant progress toward
recovery of the species than does continued regulation of critical
habitat and potential associated litigation.
Our response: The Service has determined that the areas being
designated as unoccupied critical habitat units are essential for the
conservation of the species. Therefore, they meet the Act's definition
of critical habitat and should be designated as such. Further, we find
that section 10(j) experimental population would not provide for the
protection for the habitat within these areas that we have determined
is needed for the conservation of the species.
(8) Comment: Two commenters raised concerns that the use of
relative abundance as presented lacked scientific rigor and is being
inappropriately interpreted. The commenters argued that conducting a
trend analysis with relative abundance data provides weak evidence of
one species' resiliency. Further, it is potentially misleading because
it is affected by changes in abundance of other species in the catch,
which may have no bearing on the status of the target species.
Our response: Using relative abundance (also referred to as percent
composition) to infer species abundance is not appropriate and would be
misleading, as it is inherently driven by the abundance of other
species. Although measures of absolute abundance and densities would
have provided additional useful metrics for our resiliency analysis,
the analysis was not possible due to data limitations. Instead, we
calculated relative abundance to standardize the data (Anderson et al.
1995, p. 315; Brewer et al. 2007, p. 328; Perkin and Gido 2011, p.
373). As discussed in our SSA report, we assessed relative abundance
``as one means to evaluate potential shifts in fish community
structure'' (not overall abundance), which is well established in the
literature (Mendelson and Jennings 1992, entire; Weaver and Garman
1994, pp. 163, 166; Bonner and Wilde 2000, pp. 192-194; Onorato et al.
2000, pp. 142, 145-152). Potential change in community structure is one
important indicator of ecosystem change and has implications for
species resiliency within that system. We also examined two relative
abundance metrics (Baseline Condition and Trend Analysis), but only the
former was included as a metric for assessing peppered chub resiliency.
Due to limited data for peppered chub, we determined that the quasi-
Poisson regression that we used for trend analysis (which does account
for variability in the data) was not appropriate for that species.
Regarding the comment that the use of relative abundance data alone
provides weak evidence of population resiliency, we agree. One should
not draw conclusions from this measure alone assessing the resiliency
of a population. As provided in our SSA, resiliency analyses for
peppered chub considered eight metrics: Three examining population
demographics and five examining habitat/flow metrics.
(9) Comment: One commenter noted that the SSA considered the decade
with the highest capture ratios (1990s; 95 percent) to be the baseline
condition and deemed ``good'' condition to be within 20 percent of that
scenario. The commenter argued that capture ratios in no other decade
approach 95 percent, suggesting that this may be an anomalously high
number rather than a true baseline.
Our response: We evaluated the overall resiliency of each
population of peppered chub using eight different metrics, one of those
metrics was the capture ratio. Our capture ratio assessment was based
on approximately 70 years of survey data, including 555 unique survey
events. We separated the analysis by decade to evaluate differences
over time, while still providing adequate number of surveys (per
decade) to determine an ``optimal'' reference condition for this
population resiliency metric. The decade referenced by the commenter
included a total of 185 surveys spanning a ten-year period. Given the
large number of surveys and relatively long span of time (particularly
for a species that spawns annually), it is our determination that this
decade serves as a reasonable representation of optimal capture ratios
for a peppered chub population. We should also note that using the next
best decade (2000s) as our optimal reference condition would still have
resulted in a `fair' resiliency score for this metric. Our database
indicates a total of 185 fish collection surveys in the 1990s from the
Upper South Canadian River between Ute Reservoir and Lake Meredith, of
which 176 surveys collected at least one peppered chub, resulting in a
capture ratio of 95 percent. This compares to the 2000s, at which time
142 of 189 surveys (75 percent) collected peppered chub, and the 2010s
during which the survey results were 48 of 101 (48 percent). Two
variables that could artificially inflate the likelihood of capturing a
peppered chub, thus affecting capture ratios, are greater survey effort
and/or surveying locations more likely to have peppered chub. Neither
of these two variables apply to the 1990s surveys. The total number of
fish collected per site, on average, was greater in both the 2000s and
2010s, indicating effort in those decades was greater than in the
1990s. Additionally, the geographical distribution of surveys was
relatively similar among decades, indicating that the higher ratios in
the 1990s were not artificially driven by surveying sites more likely
to have peppered chub. Based on information from our survey database,
capture ratios of 95 percent in the 1990s correctly represent peppered
chub presence at that time.
(10) Comment: One commenter stated that the proposed rule overly
relies on the SSA for an evaluation of species threats under each of
the five listing factors, and neither the proposed rule nor SSA
provides a systematic factor-by-factor evaluation of threats. The SSA
is not intended to evaluate the identified threats for a species under
each of the five listing factors, as is done in a 12-month finding and
proposed rule under section 4(a)(1) of the Act. The commenter argues
that the Service has failed to provide the most fundamental
[[Page 11192]]
evaluation of the listing factors from the 12-month findings, as
provided in section 4(a)(1) of the ESA.
Our response: Under section 4(a)(1) of the Act, the Service may
determine that a species is an endangered or threatened species based
on any of five factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We are also required to consider any
conservation measures made by any State or foreign nation regarding the
species. The Service provided the evaluation of the listing factors in
the proposed rule in The basis for our action section and the
Determination of Peppered Chub Status section (85 FR 77108; December 1,
2020).
Using the SSA framework results in a biological risk assessment,
the SSA report, which is designed to aid decisionmakers who must use
the best available scientific information to make policy-guided
decisions. The SSA informs, but is not, the decision. Using the
conservation biology principles of representation, resiliency,
redundancy, the SSA provides a scientifically rigorous characterization
of species status that focuses on the likelihood that the species will
sustain populations within in the wild beyond a biologically meaningful
timeframe, its level of viability, along with key uncertainties in that
characterization.
The Determination of Peppered Chub Status section clearly
articulates how we arrived at our determination for an endangered
status using the five factors from section 4 of the Act (16 U.S.C.
1533).
(11) Comment: One commenter asserted that the proposed rule relies
on a paradigm that the peppered chub eggs and larvae need high water to
keep the propagules suspended with subsequent return of fish to natal
areas, tens or hundreds of miles upstream. The commenter argues that
this paradigm ignores an alternative paradigm that the semi-buoyant
eggs and larvae were historically retained near natal areas in
laterally expansive floodplains and are now transported downstream
because of a contemporary narrow and entrenched river channel. The
commenter states that, in focusing on the perceived need to keep the
propagules afloat with high water, the Service fails to recognize that,
historically, most propagules probably did not drift longitudinally
downstream but laterally into inundated floodplains and returned to the
main channel with receding water levels.
Our response: The proposed rule and SSA report recognize the
potential utility of wetted floodplain habitats to support larval
nursery habitat for peppered chub. The semi-buoyant eggs of peppered
chub remain suspended in water until hatching, and thereby require
currents to maintain suspension in the water column until sufficient
development to a free-swimming stage (Bottrell et al 1964, p. 398;
Robison and Buchanan 1988 p. 183; Wilde et al. 2000, p. 107). In more
lentic habitats, eggs may be deposited on sediment and covered, leading
to lack of oxygen and suffocation. This requirement for flows of some
velocity does not necessarily translate to a need for ``high water'' in
all natal areas. However, discharges of likely increased magnitude
would be required for inundation of floodplains to serve as nursery
habitats. Restored floodplains and managed river flows have potential
to benefit peppered chub habitats. However, in recent history, there is
often less water in the system and because of this water less
frequently reaches the floodplain.
Because the floodplains are less available for the reproduction of
peppered chub, compared to historical conditions, river length is now
more important for successful reproduction. The proposed rule and SSA
use reach length as an indicator of habitat condition, since fish can
successfully reproduce given adequate uninterrupted stream length as
well. Sufficient reach length is needed to allow the time necessary for
development of eggs and larvae floating downstream until they reach a
motile, free-swimming stage. Larval fish may require strong currents to
keep them suspended until they are capable of horizontal movement and
are strong enough to leave the main channel. Physical barriers are
likely unpassable by egg and larval fishes, and adults passing
downstream remain isolated and unable to move downstream. This
situation results in progressive impacts over time from upstream to
downstream. Longer reach lengths may not be necessary to meet the needs
of an individual peppered chub within its short lifetime. By
facilitating reproduction and population growth, these unfragmented
river segments guard against extirpation, and increase species
resiliency. We are unaware of any data/information to conclude that a
wetted floodplain in close proximity to natal areas would have the
velocities to keep eggs buoyant for the appropriate amount of time
necessary for fry development.
(12) Comment: One commenter notes the discrepancies among
definitions of proposed critical habitat for peppered chub (up to
bankfull) and existing definitions of critical habitat for Arkansas
River shiner (300 feet on each side of the river channel at bankfull)
and the sharpnose and smalleye shiners (areas beyond the bankfull river
channel by 98 feet on each side). The commenter recommends that these
discrepancies be better explained and justified, as areas above
bankfull discharge are important to provide food sources and are
subject to encroachment by saltcedar and other invasive vegetation that
translate into impacts on river geomorphology, instream habitat for
imperiled fishes, and stream flows.
Our response: Adjacent upland or terrestrial areas that are not
below the ordinary bankfull (or high-water line) are not included in
designated critical habitat. However, we would anticipate conducting
section 7 consultations with Federal agencies for projects on Federal
lands or for projects with a Federal nexus if a project had indirect
impacts to the peppered chub's critical habitat or on the species
itself. In general, activities in riparian areas should be conducted in
such a manner as to protect adjacent streams. See Physical or
Biological Features Essential to the Conservation of the Species
(below). Where a landowner requests Federal agency funding or
authorization for an action that may affect a listed species or
critical habitat, the consultation requirements of section 7(a)(2) of
the Act apply, but even in the event of a destruction or adverse
modification finding, the obligation of the Federal action agency and
the landowner is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
Public Comments
(13) Comment: One commenter stated that oil and gas activity is
widespread and designation of unoccupied critical habitat would impose
unnecessarily significant costs without providing measurable, probable
benefits for the protection of the species. These costs may preclude or
render economically impractical oil and gas activities preventing
private landowners from developing their minerals. Another commenter
was concerned that the Service had not clearly delineated in the
proposed rule to what extent, in the geographic areas occupied by the
species, that livestock production might be subject to a section 9
enforcement and what economic impact such a critical habitat
designation might have.
[[Page 11193]]
Our response: The designation of critical habitat would not impose
any such regulatory or financial burdens on non-Federal actions for
private landowners such as those indicated, so long as there was no
Federal nexus. If there is a Federal nexus and the action of the
Federal agency may affect the species or its critical habitat
designation, then the Federal agency would need to consult with the
Service. We do identify oil and gas exploration and extraction
activities as an activity that may require consultation to avoid
adversely modifying critical habitat, under section 7(a)(2) of the Act
and if there is a Federal nexus. If during consultation with a Federal
agency, the Service finds that an activity is likely to adversely
modify a critical habitat designation, the Service will work with the
Federal agency to identify reasonable and prudent alternatives.
Livestock production and exploration and extraction were taken into
consideration during our economic analysis. For each unit, we found
that there would be a non-significant incremental administrative cost
from the designation to the Service and the Action agencies (IEc 2019,
pg. 2). For further information, the full economic screening analysis
can be viewed on https://www.regulations.gov.
Section 9 of the Act covers prohibited acts as they relate to
endangered species. The actions outlined in section 9 of the Act are
prohibited after the effective date of this rule (see DATES, above).
However, in the Available Conservation Measures section (below), we
identify activities that are unlikely to result in a violation of
section 9, if these activities are carried out in accordance with
existing regulations and permit requirements. In that list we include,
normal livestock grazing and other standard ranching activities within
riparian zones that do not destroy or significantly degrade peppered
chub habitat. We had also included this in the proposed rule as well
(85 FR 77108).
(14) Comment: One commenter noted that the proposed rule suggests
the Act would allow normal livestock grazing and other standard
ranching activities within riparian zones that do not destroy or
significantly degrade peppered chub habitat. However, the proposed rule
does not identify what livestock activities would not constitute normal
livestock grazing.
Our response: We are not able to provide an exhaustive list of what
activities would and would not constitute normal livestock grazing.
However, activities that do not result in a violation of section 9 of
the Act and are not subject to a Federal nexus would not be subject to
section 11 (penalties and enforcement) of the Act. Based on our section
7 consultation experience within the historical range of peppered chub
and because we contacted Federal agencies during our economics analysis
and they did not comment on an increase in consultation for grazing
(while they did anticipate increases in consultations for other
activities; IEc 2019, entire), we anticipate consultations to be rare
for grazing and ranching activities. We encourage all local landowners
with questions specific to their property or project to contact their
local Ecological Services Field Office. A list of field offices and
their contact information can be found at: https://www.fws.gov/ecological-services/map/directory.html.
(15) Comment: One commenter stated that the economic impact
analysis does not discuss what impact the proposed critical habitat
designation would have on Confined Animal Feeding Operations that
discharge under Clean Water Act section 402 permits. Typically, each
feedyard with over 1,000 head of cattle will have and maintain a
National Pollution Discharge Elimination System (NPDES) permit under
section 402 of the Clean Water Act. These permits are subject to
renewal every 5 years. Under the proposed rule, feedyards with NPDES
permits in the river basins where critical habitat is being proposed
would likely be required to undergo a section 7 consultation.
Our response: We considered animal feeding operations in our
incremental effects memo (IEM) (IEM 2019, p. 9). Additionally,
pollutant discharge and consultations with the Environmental Protection
Agency were covered in the screening analysis that would cover the
activity mentioned by the commenter (IEc 2019, pp. 7 & 8). The
screening analysis found that the rule is unlikely to meet the
threshold for an economically significant rule, with regard to costs
(IEc 2019, pg. 2). Both documents can be found at: https://www.regulations.gov; Docket No. FWS-R2-ES-2019-0019.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the Arkansas River shiner (Notropis girardi) and the peppered chub. The
SSA team was composed of Service biologists, in consultation with other
species experts. The SSA report represents a compilation of the best
scientific and commercial data available concerning the status of these
species, including the impacts of past, present, and future factors
(both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the SSA report.
We sent the SSA report to nine independent peer reviewers during two
separate peer review requests and received one response. We solicited
peer review a second time because we received no responses to our first
request. The purpose of peer review is to ensure that our listing
determinations and critical habitat designations are based on
scientifically sound data, assumptions, and analyses. The peer reviewer
who responded has expertise in the biology, habitat, and threats to
several broadcast-spawning fish species. The Service also sent the SSA
report to 21 partners, including scientists with expertise in peppered
chub threats and habitat, for review. We received review from eight
partners (Colorado Parks and Wildlife, New Mexico Game and Fish, Texas
Parks and Wildlife, two individuals from Oklahoma Department of
Wildlife Conservation, and three individuals from universities in
Oklahoma). Information received from the peer reviewer and partners is
incorporated into this final rule and informed our determination. We
also considered all comments and information received from the public
during the comment period.
I. Final Listing Determination
Background
A full description of the species and its habitat can be found in
chapter 2 of the SSA report. The peppered chub was historically known
throughout the Arkansas River basin in Colorado, Kansas, New Mexico,
Oklahoma, and Texas. Peppered chub were typically found in main
channels of wide, shallow, sandy-bottomed rivers. The species prefers
shallow channels where currents flow over clean fine sand, and,
generally, adults avoid calm waters and silted stream bottoms. Peppered
chub have adapted to tolerate the adverse conditions of the drought-
prone prairie streams that they inhabit. The peppered chub is a small
cyprinid minnow with a fusiform (tapering at both ends) body shape
rapidly tapering to a conical head. It has a nearly transparent slender
body with dark dots scattered on its back. Generally, adult fish reach
a maximum length of 3 inches (in) (77 millimeters (mm)) and do not live
beyond 2 years.
Gilbert first described the peppered chub in 1886 (pp. 208-209).
Prior to Eisenhour's 1999 dissertation
[[Page 11194]]
(published 2004), the peppered chub was classified as one of six
subspecies within the Macrhybopsis aestivalis (commonly: Speckled chub)
complex. Eisenhour examined morphometrics (measurements of external
shape), meristics (counts of features of fish), pigmentation, and
tuberculation across the range of the complex. He concluded that the
results supported the recognition of five individual species, including
Macrhybopsis tetranema, or peppered chub. The American Fisheries
Society also accepts the species as the peppered chub (Page et al.
2013, p. 28).
Habitat for the peppered chub historically consisted of the main
channels of wide, shallow, sandy-bottomed rivers and larger streams of
the Arkansas River basin, with a noted preference for river segments
nearer the headwaters, as compared to other Macrhybopsis in the
Arkansas River basin. Adults prefer shallow channels where currents
flow over clean fine sand and generally avoid calm waters and silted
river bottoms. Peppered chub have key adaptations that enable them to
tolerate the adverse conditions of the drought-prone prairie rivers
that they inhabit, including a relatively high capacity to endure
elevated temperatures and low dissolved oxygen concentrations. They
also appear to be often associated with turbid waters.
Peppered chub are members of a reproductive guild that broadcast-
spawn semibuoyant eggs, which remain suspended in the water column by
the current until hatching. This reproductive strategy appears to be an
adaptation to highly variable environments where stream flows are
unpredictable and suspended sediment deposition can cover eggs laid in
nests or crevices. Without continuous stream flow of sufficient
distance, eggs sink to the bottom where they may be covered with silt
and suffocate due to the lack of oxygen. In addition to adequate stream
discharge, an appropriate reach length is also needed to allow the time
necessary for egg and larval development into a motile, free-swimming
stage. After hatching, flowing water provides the extended development
time needed by larval fish. Larval fish may require strong currents to
keep them suspended in the water column until they are capable of
horizontal movement and until the fish are strong enough to leave the
main channel.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. The
Act defines an ``endangered species'' as a species that is in danger of
extinction throughout all or a significant portion of its range, and a
``threatened species'' as a species that is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether any species is an endangered species or a threatened species
because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be listed as an endangered or
threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the SSA report; the full SSA
report can be found at Docket
[[Page 11195]]
FWS-R2-ES-2019-0019 on https://www.regulations.gov.
To assess peppered chub viability, we used the three conservation
biology principles of resiliency, redundancy, and representation
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the
ability of the species to withstand environmental and demographic
stochasticity (for example, wet or dry, warm, or cold years),
redundancy supports the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation supports the ability of the species to adapt over
time to long-term changes in the environment (for example, climate
changes). In general, the more resilient and redundant a species is and
the more representation it has, the more likely it is to sustain
populations over time, even under changing environmental conditions.
Using these principles, we identified the species' ecological
requirements for survival and reproduction at the individual,
population, and species levels, and described the beneficial and risk
factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. For a more detailed
description, refer to the SSA report (Service 2022, entire) and the
proposed rule (85 FR 77108; December 1, 2020).
Summary of Analysis
A full description of our analysis (analytical methods, threats,
current condition, and future condition for the peppered chub can be
found in the SSA report (Service 2022); below, we present a summary of
the results of the SSA.
The peppered chub is a small cyprinid minnow once widespread and
common in the western portion of the Arkansas River basin in Kansas,
New Mexico, Oklahoma, Arkansas, and Texas.
Habitat historically consisted of the main channels of wide,
shallow, sandy bottomed rivers and larger streams of the Arkansas River
basin, with peppered chubs appearing more adapted for headwater areas.
Adults prefer shallow channels where currents flow over clean fine
sand, and generally avoid calm waters and silted stream bottoms.
Peppered chub have adapted to tolerate the adverse conditions of the
drought-prone prairie streams they inhabit, including a high capacity
to endure elevated temperatures and low dissolved oxygen
concentrations.
Peppered chub are members of a reproductive guild that broadcast
spawns semibuoyant eggs, which are kept suspended until hatching in
flowing water. This reproductive strategy appears to be an adaptation
to highly variable environments where stream flows are unpredictable
and suspended sediments and shifting sand can cover eggs laid in nests
or crevices. Without stream flow, eggs sink to the bottom where they
may be covered with silt and die. After hatching, adequate stream
length likewise provides the extended flow time needed by larval fish
which may require strong currents to keep them suspended in the water
column until they are capable of horizontal movement and strong enough
to leave the main channel. Channel complexity is also correlated with
stream length resulting in slower transport rates in streams with wider
and more braided channel morphology which allow more time for
developing eggs and larva to reach their free-swimming stage.
The peppered chub historically inhabited numerous rivers of the
Arkansas River basin and, without the presence of dams or other
structures, it is likely that individuals within populations exhibited
some level of genetic exchange among these rivers. To analyze
population-level resiliency, we divided the range of the peppered chub
into five ``resiliency units'' or populations (we use those terms
interchangeably in this document) (see figure below; we do not include
the Lower Arkansas River in the resiliency units for the SSA for the
peppered chub because that portion of the watershed is not part of the
current or historical range of the species). We described population
resiliency and assessed representation and redundancy among these
units. However, to assess conditions within each resiliency unit at a
somewhat finer scale, we subdivided each resiliency unit into multiple
subunits. This downscaling allows us to compare differences in
conditions within a given resiliency unit and to understand the drivers
affecting current condition (see the SSA report for further details).
[[Page 11196]]
[GRAPHIC] [TIFF OMITTED] TR28FE22.000
Maintaining representation in the form of genetic or ecological
diversity is important to maintain the peppered chub's capacity to
adapt to future environmental changes. The peppered chub must retain
populations throughout its range to maintain the overall potential
genetic and life-history attributes that can buffer the species'
response to environmental changes over time. We define redundancy for
the peppered chub as multiple, sufficiently resilient populations
distributed throughout the species' historical range. Thus, multiple,
adequately resilient populations, coupled with a relatively broad
distribution, contribute to species-level viability.
Risk Factors for Peppered Chub
Stressors affecting the viability of the peppered chub include
altered flow regimes (Factor A), impoundments and other stream
fragmentation (Factor A), modified geomorphology (Factor A), decreased
water quality (Factor A), and the introduction of invasive species
(Factors A and C). The source of many of these stressors is the
construction of dams and their impoundments (a body of water confined
within an enclosure) which, in most cases, has drastically altered the
natural flow regime and fragmented habitat. For example, a U.S.
Geological Survey (USGS) stream gage on the Canadian River (near
Amarillo, Texas) in the Lower South Canadian River resiliency unit has
had a 69 percent decline in mean hydroperiod from pre-impoundment to
post-impoundment, and the mean daily discharge (post-impoundment) is
markedly lower (68 percent decline) since the completion of the
reservoir. For a detailed description of the risk factors for peppered
chub, see chapter 3 of the SSA report (Service 2022, pp. 22-38), below
is only a summary of the risk factors.
Altered Flow Regimes
Peppered chub need a combination of varying flows (timing,
duration, and magnitude) to support viable populations and maintain
suitable habitat. Low flow periods (including isolated pooling) can
impair or eliminate appropriate habitat for the species, and while
adult peppered chub are adapted to and can typically survive these
events for a short time, populations that regularly experience these
conditions face compromised reproductive success and may not persist.
Flow regime alterations that we considered during the SSA process
include dams and their associated impoundments, the effects dams have
on the natural flow regime, surface and groundwater extraction, and the
effect of climate change on precipitation and drought.
Stream Fragmentation
Dams often fragment aquatic habitat and create impassable physical
barriers to fish movement. Juvenile and adult peppered chub would
likely be capable of passing downstream through small fish barriers
such as weirs (low dams built to raise the level of water upstream),
low-water crossings, and natural or manmade falls. However, no life
stage of peppered chub is likely capable of successfully passing
downstream through most reservoirs large enough to act as water supply
or hydroelectric sources. Likewise, due to the small size and limited
swimming ability of the peppered chub, upstream movement of adults
(during spawning) would likely be prohibited by any impoundments
(regardless of type or function), weirs, falls, pipeline reinforcements
structures, and some low-water crossings.
It is unlikely that egg and larval stages of peppered chub are
capable of passing over a fish barrier. When fish (typically adults
only) pass downstream of a smaller barrier, they remain isolated below
the barrier and are unable to return to spawning areas upstream. This
often results in incremental and progressive extirpation from an
upstream to downstream direction (Perkin and Gido 2011, p. 374).
Because of its need for flowing water to reproduce, peppered chub have
been
[[Page 11197]]
eliminated from shorter (generally less than 136 mi) reaches and
typically persist only in river segments that are above a minimum
threshold (Perkin and Gido 2011, p. 374). In addition, the blocking of
movement of adult fish limits their ability to seek suitable habitat in
more perennial, headwater reaches during drought conditions.
Modified Geomorphology
Decreases in stream flows in the South Canadian River have
contributed to the decline or loss of wide, shallow sand-bed river
channels that are characteristic of peppered chub habitat. Impoundments
often reduce the magnitude and frequency of high flows, leading to bank
stabilization and channel narrowing; alter streambank riparian
communities; restrict downstream transport of nutrients that support
ecosystem development; and alter river substrate (Poff et al. 1997, pp.
773-777; Mammoliti 2002, pp. 223-224). Impoundments also alter
streamflow by reducing the availability or timing of water, leading to
more frequent low-flow conditions, channel drying, pool isolation, and
vegetative encroachment into the river channel. Reduction in flows
reduces the peppered chub's reproductive success and decreases
population resiliency.
Additional alteration of historical physical habitat occurs when
dams release sediment-starved water that alters the composition and
distribution of the bed substrate. River and stream water velocity
slows rapidly where water enters the standing water of reservoirs,
resulting in the settlement of suspended sediment within the reservoir
(Poff et al. 1997, p. 773). The resulting release of low turbidity,
high-velocity water from dams scours the downstream reaches, causing
the channel to incise and become further isolated from its natural
floodplain. Further, such dam releases remove sand and gravel substrate
preferred by the peppered chub. Decreased turbidity provides a
competitive advantage to fishes that are not as well adapted to the
naturally turbid water. When water is released from a main channel
reservoir, fish species adapted to naturally turbid conditions of the
South Canadian River, such as the peppered chub, are displaced by fish
with competitive advantage in less turbid conditions, resulting in a
reduction in available habitat and increased predation (Bonner and
Wilde 2002, pp. 1205-1206), thereby negatively influencing species
distribution and abundance.
Degraded Water Quality
Suitable water quality is necessary for a healthy aquatic
community. Water quality may become impaired through direct
contamination or the alteration of freshwater chemistry. Contaminants
enter the environment through both point and nonpoint sources including
spills, industrial pathways, municipal effluents, and agricultural
runoff. These sources may contribute organic compounds, heavy metals,
pesticides, herbicides, and a wide variety of newly emerging
contaminants to the aquatic environment. An additional type of water
quality impairment is the alteration of water quality parameters such
as dissolved oxygen, temperature, and salinity levels. Dissolved oxygen
levels may be reduced due to increased nutrient levels (i.e., nitrogen
and phosphorous) from agricultural runoff or wastewater effluent
(eutrophication). Increased water temperature from more frequent low-
flow/drought conditions and climate change can also exacerbate low
dissolved oxygen levels, particularly when low-flow conditions strand
fish in isolated pools. Similarly, fish stranded in isolated pools can
be subjected to naturally concentrated salinity. Additionally, many
freshwater systems and shallow aquifers have become increasingly saline
due to salinized water recharge (Hoagstrom 2009, p. 35). This effect
largely stems from irrigation return flows that have flushed
accumulated salts from irrigated lands back into the system.
Chloride concentrations have been increasing in the upper South
Canadian River (Service 2022, p. 127). Additionally, arsenic levels in
many of the rivers within the historical range of the peppered chub are
above the Environmental Protection Agency's established levels for
human health for the consumption of organisms but not above levels
designed to protect freshwater aquatic communities. Arsenic levels have
increased over time in the Cimarron River to the point that golden
shiners (Notemigonus crysoleucas) exhibited avoidance behavior even
though concentrations were below a toxic level (Hartwell et al. 1989,
p. 452). It is a reasonable presumption that peppered chub would also
demonstrate avoidance behavior at similar concentrations of arsenic,
causing peppered chub distribution and movements to be disrupted,
possibly further fragmenting or reducing the amount of available stream
length necessary for all life stages.
Introduction of Invasive Species
The alteration of the hydrologic regime and geomorphology of rivers
resulting from impoundments can cause the proliferation of larger,
piscivorous fish not normally associated with unimpounded prairie
rivers. This fish community conversion is exacerbated by the transfer
or stocking of game species in areas that have undergone hydrologic
regime or geomorphologic alterations. These species may include
smallmouth bass (Micropterus dolomieu), largemouth bass (Micropterus
salmoides salmoides), Florida largemouth bass (Micropterus salmoides
floridanus), striped bass (Morone saxatilis), and channel catfish
(Ictalurus punctatus) (Howell and Mauk 2011, pp. 11-12), which may prey
upon peppered chubs. In a system similar to the Arkansas River Basin,
eighteen fish species were introduced or immigrated into the Solomon
River basin following impoundment and increased competition from these
nonnative species may have contributed to the decline of native fish
species (Eberle et al. 2002, p. 182, 188). While peppered chub declines
throughout the species' range cannot be fully attributed to predation
by invasive fishes, a shifting fish community (to more lentic (still
water) adapted species) throughout the Lower South Canadian River has
coincided with the extirpation of the peppered chub throughout this
lower basin. The Upper South Canadian River (between Ute Reservoir and
Lake Meredith) is an exception, where the natural fish community is
still mostly intact (Service 2022, pp. 66-68).
Synergistic Effects
Many of the above-summarized risk factors may act synergistically
or additively on the peppered chub. The combined impact of multiple
stressors is likely more harmful than a single stressor acting alone.
For example, resiliency of the peppered chub (in the Upper South
Canadian River resiliency unit) is considered low due to river
impoundment in combination with other stressors acting synergistically.
The river is unimpeded for 179 river miles (288 river kilometers),
which translates to a fair condition (see table 1, below). However, our
flood frequency analysis in the Upper South Canadian River resiliency
unit shows a decline to a level of null to fair, meaning flood events
have significantly declined compared to historical conditions. As a
result, the river channel has narrowed dramatically in many areas,
resulting in unfavorable habitat for the peppered chub and a poor
condition category for
[[Page 11198]]
this habitat metric. This condition limits the access to and formation
of new habitat necessary for egg/larval retention and nursery. The
hydroperiod (a comparison between pre-impoundment and post-impoundment
discharge) has changed so that discharge is in a null (greater than 90
percent decrease in discharge) to fair condition for peppered chub.
Lastly, the low-flow conditions in the stretch are in a poor to fair
condition, meaning that low-flow days are common or increasing and some
areas are vulnerable to drying in drought years, which could affect the
length of unimpeded river and lead to additional channel narrowing. For
a full explanation of our habitat factor analysis, see chapter 4 of the
SSA report.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Current Condition of Peppered Chub
Our analysis of current condition of the peppered chub is based on
numerous scientific publications from species experts who concluded
that by the year 2000, the peppered chub had significantly declined and
was isolated to the Ninnescah River in Kansas and the South Canadian
River between Ute Reservoir in New Mexico and Lake Meredith in the
Texas panhandle (Luttrell et al. 1999, p. 983; Eisenhour 1999, p. 975;
Eisenhour 2004; Service 2022, pp. 53-57). More recently, we assessed
the current condition using survey efforts from 1,826 collections (from
2013 to 2017) with only 38 of those (2 percent) containing the peppered
chub. Extensive recent survey efforts show that the peppered chub
distribution is currently limited to the South Canadian River between
Ute Reservoir in New Mexico and Lake Meredith in the Texas panhandle,
which represents 6 percent of its historical range. The capture ratio
in the Upper South Canadian River dropped to 45 percent, and peppered
chubs were not collected in the Ninnescah River during this time.
Historically, the peppered chub was known from five populations
found in Colorado, Kansas, New Mexico, Oklahoma, and Texas. Several
factors were responsible for the extirpation or abundance decline of
the peppered chub in each of the resiliency units, as more fully set
forth in the SSA report. However, habitat degradation and fragmentation
has been primarily a result of water diversion and impoundments (i.e.,
dams). Thus, the single remaining population (Upper South Canadian
River) has low resiliency (see table 1, below).
We consider the peppered chub to have limited representation in the
form of genetic and ecological diversity because only a single
functioning population remains. Extirpated populations of peppered chub
contained genetic and morphological variation that have been lost. The
peppered chub has ``considerable stocks of genetic diversity'' within
this single population; however, the species lacks the representation
of species with multiple populations occurring across varying
landscapes (Osborne 2017, p. 9). Despite restrictions of its range due
to impoundments and other habitat alterations, and a decline in
abundance, it is possible that genetic variation is sufficient to allow
for survival in the naturally occurring conditions of the arid prairie
stream environments in which the species evolved. However, it is
unknown if this species has the genetic variability or the time
required to adapt to continuing habitat and flow alterations.
To assess resiliency within each unit, we analyzed capture ratios,
probability of capture trends, and relative abundance (demographic
factors). We also analyzed habitat factors that were determined to have
the most influence on the species: Stream fragment length, channel
narrowing, flood frequency, hydroperiod (changes to the annual
hydrograph most relevant to the species' lifecycle), and low flow
conditions (habitat/flow factors). See table 1, below. Overall
condition rankings for each resiliency unit were determined by
combining the three demographic factors and five habitat/flow factors.
For a more detailed description of the condition categories, see
chapter 4 in the SSA report.
Table 1--Current Resiliency of the Peppered Chub
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Demographic factors Habitat factors *
------------------------------------------------------------------------------------------------------------------------------------------------ Current
Population Probability of Relative Stream fragment Channel resiliency
Capture ratio capture trend abundance length narrowing Flood frequency Hydroperiod Low flow
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Arkansas (includes [Oslash] **..... [Oslash]........ [Oslash]........ Fair............ Fair to Good.... Poor and Good... Poor and Good... Poor and Good... [Oslash].
Ninnescah and Salt Fork).
Cimarron...................... [Oslash]........ [Oslash]........ [Oslash]........ Good............ Null to Good.... Null and Fair... Poor and Fair... Poor and Good... [Oslash].
North Canadian................ [Oslash]........ [Oslash]........ [Oslash]........ Fair............ Null............ Null to Good.... Poor to Fair.... Poor to Good.... [Oslash].
Lower South Canadian.......... [Oslash]........ [Oslash]........ [Oslash]........ Good............ Null to Good.... Poor to Fair.... Poor to Fair.... Fair and Good... [Oslash].
Upper South Canadian.......... Fair............ Good............ Poor............ Fair............ Poor............ Null to Fair.... Null to Fair.... Poor to Fair.... Low.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* The habitat factors are presented as gradients (to) or multiple conditions (and) per population. Because of the great lengths of the stream stretches, the habitat quality can vary widely
throughout the unit. (See the SSA report for further information.)
** The [Oslash] symbol means null (having or associated with the value zero).
Because the peppered chub has been extirpated from all but one
resiliency unit, it has a higher risk of extinction from a catastrophic
event, due to a lack of redundancy across its range, compared to
historical conditions. See the SSA report for the complete current
condition analysis for the peppered chub (Service 2022).
[[Page 11199]]
Future Condition of Peppered Chub
As part of the SSA, we also developed multiple future condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the peppered chub. Our scenarios
included a continuation of existing trends scenario and a water
conservation with flow trends stabilizing scenario, which incorporated
the current risk factors continuing the same trajectory that they are
on now. These future scenarios project conditions that are worse for
the peppered chub than the current condition or the water conservation
with flow trends stabilizing scenario. Because we determined that the
current condition of the peppered chub is consistent with an endangered
species (see Determination of Peppered Chub Status, below), we are not
presenting the results of the other future scenarios in this final
rule. The other projected scenarios would also be endangered, as they
forecast conditions that are the same or more at risk of extinction
than the current condition. Please refer to the SSA report (Service
2022) for the full analysis of future scenarios.
Conservation Efforts and Regulatory Mechanisms
Since we proposed to list the peppered chub as endangered, The
Kansas Aquatic Species Conservation Agreement: A Programmatic Safe
Harbor Agreement and Candidate Conservation Agreement with Assurances
for Fourteen Aquatic Species in Kansas (Agreement) was completed and
includes the peppered chub. Further information about the agreement can
be found in the Exclusions section below. The area of the range that is
covered by the Agreement is currently unoccupied; therefore, the
Agreement does not change our conclusions in the SSA report or the
determination of status, outlined below.
This species is listed as endangered in Kansas and protected under
the authority of the State's Nongame and Endangered Species
Conservation Act of 1975. The Kansas Department of Wildlife, Parks and
Tourism (KDWPT) finalized a recovery plan for the peppered chub in May
2005. The recovery plan outlines specific strategies and methods to
recover and delist the peppered chub in Kansas. The recovery plan also
includes designated critical habitat as required for endangered species
conservation and recovery. Kansas Administrative Regulations (K.A.R.)
115-15-3 provides for review and a permit system for any alterations to
the critical habitat administered by KDWPT Ecological Services Section.
The peppered chub has been listed as threatened in New Mexico since
1978 under the Wildlife Conservation Act (WCA). The State Game
Commission is authorized and directed to establish such regulations as
it may deem necessary to carry out all the provisions and purposes of
the WCA. The WCA prohibits any person to take, possess, transport,
export, process, sell or offer for sale, or ship the peppered chub,
within the State of New Mexico.
The species is listed as threatened in Texas and protected under
Texas Parks and Wildlife Department (TPWD) Code. Under chapter 67 of
this Code, Texas Parks and Wildlife Commission is authorized to
establish any limits on the taking, possession, propagation,
transportation, importation, exportation, sale, or offering for sale of
nongame fish or wildlife that TPWD considers necessary to manage the
species. TPWD designation of the peppered chub as a threatened species
prohibits take of the species.
As discussed in the proposed rule, the Canadian River Municipal
Water Authority (in conjunction with several partners) has a management
plan in place for the Arkansas River shiner, a similar species that
shares many of the same life-history characteristics and habitat
requirements as the peppered chub. However, the management plan
includes no conservation efforts specific to the peppered chub.
Efforts are underway to begin a captive propagation program at the
Kansas Aquatic Biodiversity Center and at the Tishomingo National Fish
Hatchery in Oklahoma. However, these efforts are early in development
and have not yet yielded improvements to the status of the species.
Approximately 95 percent of the adjacent land within the historical
range of the peppered chub is private land. Except for those management
activities included above, during the comment period for the proposed
rule, we were not made aware of other conservation plans or management
activities that are in place with private landowners that are specific
to the peppered chub.
Despite the existing regulatory mechanisms and conservation efforts
described above, the identified stressors continue to act on the
species such that listing is warranted.
Determination of Peppered Chub Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species that is in danger of extinction throughout all or a significant
portion of its range and a ``threatened species'' as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of endangered
species or threatened species because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment
of its habitat or range; (B) Overutilization for commercial,
recreational, scientific, or educational purposes; (C) Disease or
predation; (D) The inadequacy of existing regulatory mechanisms; or (E)
Other natural or manmade factors affecting its continued existence.
The peppered chub faces threats from altered flow regimes (e.g.,
dams and impoundments, groundwater extraction, and climate change
effects on precipitation) (Factors A and E), stream fragmentation
(Factor A), modified geomorphology (Factor A), poor water quality
(Factor A), and introduction and proliferation of invasive species
(Factors A and C). Because peppered chub rarely live beyond 2 years,
the risk of species extinction from 2 (or more) successive years of low
flow or drought conditions is high. These threats are currently acting
on the peppered chub, and we expect them to continue or worsen into the
future. We found no evidence of population- or species-level impacts
from overutilization for commercial, recreational, scientific, or
educational purposes (Factor B). In our analysis of the factors
affecting the peppered chub, we found that despite the existing
regulatory mechanisms and conservation efforts, the threats continue to
affect the species such that listing is warranted (Factor D).
The range of the peppered chub once included Colorado, Kansas, New
Mexico, Oklahoma, and Texas, with populations in several streams and
rivers. The peppered chub is now confined to a single population in the
upper portion of the South Canadian River in Texas and New Mexico,
which represents approximately 6 percent of the species' historical
range. The one remaining population has declined from an average of
approximately 14 percent relative abundance (a component of
biodiversity) historically, to a current relative abundance of under 2
percent, meaning the fish community structure has shifted significantly
from its baseline condition. Explained in detail in the SSA report, the
fish community
[[Page 11200]]
in this population is shifting away from its historical state, the
peppered chub is becoming less common compared to other species in the
community, and the species richness of the community is declining
(Service 2022, pp. 63-68). This population has low resiliency, meaning
that the population has a low probability of remaining extant and
withstanding periodic or stochastic disturbances under its current
condition. Representation has been reduced with the complete
extirpation of populations in all but one resiliency unit and a range
reduction of approximately 94 percent from its historical distribution.
Species-level genetic and ecological diversity has been lost over time,
as populations have become extirpated. Redundancy has declined
dramatically because the peppered chub remains on the landscape in only
one population. As such, the peppered chub is at greater risk of
extinction due to a catastrophic event when compared to historical
conditions.
Status Throughout All of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
and the cumulative effect of the threats under the section 4(a)(1)
factors to peppered chub. We find that the species' resiliency,
representation, and redundancy are at levels that put the species at
risk of extinction throughout its range. Thus, we conclude that the
peppered chub meets the definition of an endangered species because it
is in danger of extinction throughout all of its range. We find that a
threatened species status is not appropriate for the peppered chub
because it is currently at risk of extinction, based on the threats and
their current impacts on the species and the resulting current
condition of the species.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the peppered chub is in danger of
extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portions of its range. Because
the peppered chub warrants listing as endangered throughout all of its
range, our determination is consistent with the decision in Center for
Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020),
in which the court vacated the aspect of the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (79 FR 37578; July 1, 2014) that provided the
Services do not undertake an analysis of significant portions of a
species' range if the species warrants listing as threatened throughout
all of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the peppered chub meets the definition of an
endangered species. Therefore, we are listing the peppered chub as an
endangered species in accordance with sections 3(6) and 4(a)(1) of the
Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(http://www.fws.gov/endangered), or from our Arlington, Texas,
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Following publication of this final rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the States of Colorado,
Kansas, New Mexico, Oklahoma, and Texas will be eligible for Federal
funds to implement management actions that promote the protection or
recovery of the peppered chub. Information on our grant programs that
are available to aid species recovery can be found at: http://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for the peppered chub. Additionally, we invite you to
submit
[[Page 11201]]
any new information on this species whenever it becomes available and
any information you may have for recovery planning purposes (see FOR
FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the Service, U.S. Forest
Service, Bureau of Land Management, and National Park Service; issuance
of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the
U.S. Army Corps of Engineers; and construction and maintenance of roads
or highways by the Federal Highway Administration.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circ*mstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Authorized taking of peppered chub in accordance with a permit
issued by us pursuant to section 10 of the Act or with the terms of an
incidental take statement pursuant to section 7 of the Act, or
possessing specimens of this species that were collected prior to the
effective date of this final regulation adding this species to the List
of Endangered and Threatened Wildlife (see DATES).
(2) Normal, lawful recreational activities such as hiking, trail
rides, camping, boating, hunting, and fishing, provided unused bait
fish are not released back into the water.
(3) Normal livestock grazing and other standard ranching activities
within riparian zones that do not destroy or significantly degrade
peppered chub habitat.
(4) Routine implementation and maintenance of agricultural
conservation practices specifically designed to minimize erosion of
cropland (e.g., terraces, dikes, grassed waterways, and conservation
tillage).
(5) Existing discharges into waters supporting the peppered chub,
provided these activities are carried out in accordance with existing
regulations and permit requirements (e.g., activities subject to
sections 402, 404, and 405 of the Clean Water Act), and improvements to
existing irrigation, livestock, and domestic well structures, such as
renovations, repairs, or replacement.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Unauthorized handling, collecting, possessing, selling,
delivering, carrying, or transporting of the peppered chub, including
interstate transportation across State lines and import or export
across international boundaries.
(2) Capture, survey, or collection of peppered chub specimens
without a permit from the Service under section 10(a)(1)(A) of the Act.
(3) Introduction of nonnative fish species that compete or
hybridize with, displace, or prey upon peppered chub.
(4) Unauthorized destruction or alteration of peppered chub habitat
by dredging, channelization, impoundment, diversion, recreational
vehicle operation within the stream channel, sand or gravel removal, or
other activities that result in the destruction or significant
degradation of channel stability, streamflow/water quantity, substrate
composition, and water quality used by the species for foraging, cover,
and spawning.
(5) Unauthorized discharges (including violation of discharge
permits), spills, or dumping of toxic chemicals, silt, household waste,
or other pollutants (e.g., sewage, oil and gasoline, heavy metals) into
surface or ground waters or their adjoining riparian areas that
support/sustain peppered chub.
(6) Applications of pesticides, herbicides, fungicides, and other
chemicals, including fertilizers, in violation of label restrictions.
(7) Withdrawal of surface or ground waters to the point at which
baseflows in water courses (e.g., creeks, streams, rivers) occupied by
the peppered chub diminish and habitat becomes unsuitable for the
species.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Arlington,
Texas, Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
[[Page 11202]]
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely, by vagrant individuals). Additionally, our regulations
at 50 CFR 424.02 define the word ``habitat,'' for the purposes of
designating critical habitat only, as the abiotic and biotic setting
that currently or periodically contains the resources and conditions
necessary to support one or more life processes of a species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered 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, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not 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 also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (PBFs) (1) which are essential
to the conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those PBFs that are essential
to the conservation of the species (such as space, food, cover, and
protected habitat). In identifying those PBFs that occur in specific
occupied areas, we focus on the specific features that are essential to
support the life-history needs of the species, including, but not
limited to, water characteristics, soil type, geological features,
prey, vegetation, symbiotic species, or other features. A feature may
be a single habitat characteristic or a more complex combination of
habitat characteristics. Features may include habitat characteristics
that support ephemeral or dynamic habitat conditions. Features may also
be expressed in terms relating to principles of conservation biology,
such as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
only consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) for an
unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those PBFs essential to the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
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 we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; 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; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2)
[[Page 11203]]
regulatory protections afforded by the requirement in section 7(a)(2)
of the Act for Federal agencies to ensure their actions are not likely
to jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. 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 at the time of those planning efforts calls for a different
outcome.
In our SSA report and the proposed listing determination for the
peppered chub, we determined that the present or threatened
destruction, modification, or curtailment of habitat or range is a
threat to the peppered chub and that those threats in some way can be
addressed by section 7(a)(2) consultation measures. Accordingly, such a
designation could be beneficial to the species. Therefore, because none
of the circ*mstances enumerated in our regulations at 50 CFR
424.12(a)(1) has been met and because there are no other circ*mstances
the Secretary has identified for which this designation of critical
habitat would be not prudent, we have determined that the designation
of critical habitat is prudent for the peppered chub. We have also
reviewed the available information pertaining to the biological needs
of the species and habitat characteristics where the species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the peppered chub.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions.
Features may also be expressed in terms relating to principles of
conservation biology, such as patch size, distribution distances, and
connectivity. For example, physical features essential to the
conservation of the species might include gravel of a particular size
required for spawning, alkaline soil for seed germination, protective
cover for migration, or susceptibility to flooding or fire that
maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or a particular level of nonnative species consistent with
conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics 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 (or development) of offspring; and habitats that are protected
from disturbance.
We have analyzed: (1) The PBFs that are essential to the
conservation of the species and which may require special management
considerations or protection under the Act; (2) the criteria used to
define the areas occupied at the time of listing for the species; and
(3) the criteria used to identify critical habitat boundaries or
unoccupied habitat suitable for designation. Any comments received on
the proposed rule were taken into account when this analysis was
undertaken to revise PBFs where necessary. Based on public comment we
did not need to revise PBFs, identification criteria for the species,
or where the PBFs exist on the landscape to determine the geographic
extent of each critical habitat unit.
Summary of Essential Physical or Biological Features
We derive the specific PBFs essential to the conservation of
peppered chub from studies of the species' habitat, ecology, and life
history as described below. Additional information can be found in the
SSA report (Service 2022, entire) and the discussion in the ``Summary
of Essential Physical or Biological Features'' section of the preamble
to the proposed rule (85 FR 77108; December 1, 2020).
We have determined that the following PBFs are essential to the
conservation of peppered chub:
PBF 1: Unobstructed river segments greater than 127 river miles
(rmi) (205 river kilometers (rkm)) in length that are characterized by
a complex braided channel and substrates of predominantly sand, with
some patches of silt, gravel, and cobble.
PBF 2: Flowing water with adequate depths to support all life
stages and episodes of elevated discharge to facilitate successful
reproduction, channel and floodplain maintenance, and sediment
transportation.
PBF 3: Water of sufficient quality to support survival and
reproduction, which includes, but is not limited to, the following
conditions:
(i) Water temperatures generally less than 98.2 degrees Fahrenheit
([deg]F) (36.8 degrees Celsius ([deg]C));
(ii) Dissolved oxygen concentrations generally greater than 3.7
parts per million (ppm);
(iii) Conductivity generally less than 16.2 millisiemens per
centimeter (mS/cm);
(iv) pH generally ranging from 5.6 to 9.0; and
(v) Sufficiently low petroleum and other pollutant concentrations
such that reproduction and/or growth is not impaired.
PBF 4: Native riparian vegetation capable of maintaining river
water quality, providing a terrestrial prey base, and maintaining a
healthy riparian ecosystem.
PBF 5: A level of predatory or competitive, native or nonnative
fish present such that any peppered chub population's resiliency is not
affected.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the
[[Page 11204]]
species at the time of listing contain features which are essential to
the conservation of the species and which may require special
management considerations or protection. The features essential to the
conservation of the peppered chub may require special management
considerations or protections to reduce the following threats: (1)
Altered flow regimes, including (but not limited to) dams and
impoundments and groundwater extraction; (2) stream fragmentation; (3)
modified geomorphology; (4) poor water quality; (5) impacts from
introduction of invasive species (fish and vegetation) and the
introduction of native competitors for sport fishing; and (6) other
stressors including (but not limited to) gravel mining and dredging,
commercial bait fish harvesting, and off-road vehicle use.
Management activities that could ameliorate these threats include,
but are not limited to: Development of groundwater conservation
strategies; removal of impoundments or creation of fish passage,
development of water release strategies for reservoirs; minimization of
in-channel work from utility or road projects; maintenance of bank
stability and revegetation of impacted areas; incorporation of
integrated pest management strategies (for saltcedar (Tamarix spp.) and
other invasive plants); and development of best management practices to
reduce pollutant discharges and to develop water conservation measures
that reduce the need for water diversions.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are designating critical
habitat in areas within the geographical area occupied by the species
at the time of listing. We also are designating specific areas outside
the geographical area occupied by the species because we have
determined that a designation limited to occupied areas would be
inadequate to ensure the conservation of the species.
Designation of occupied areas alone is inadequate for conservation
of the species because the current distribution of the species is much
reduced from its historical range. We anticipate that recovery will
require continued protection of the existing population and its
habitat, as well as reintroduction of peppered chub into historically
occupied areas, ensuring there are adequate numbers in stable
populations and that these populations occur over a wide geographic
area. This strategy will help to ensure that catastrophic events, such
as the effects of drought, are unlikely to simultaneously affect all
known populations. For these reasons, we are reasonably certain that
these unoccupied areas will contribute to the conservation of the
species. Moreover, both of the unoccupied areas that we are designating
as critical habitat contain one or more of the PBFs required by the
peppered chub and fall within the regulatory definition of ``habitat''
at 50 CFR 424.02. Additionally, rangewide recovery considerations, such
as maintaining existing genetic diversity and striving for
representation of all major portions of the species' current range,
were considered in formulating this critical habitat designation.
Sources of data for this critical habitat designation include
multiple databases maintained by Arkansas Game and Fish Commission;
Fishes of Texas; Colorado Parks and Wildlife Department; Kansas
Department of Wildlife, Parks and Tourism; New Mexico Department of
Game and Fish; New Mexico Interstate Stream Commission; Oklahoma
Department of Environmental Quality; Texas Parks and Wildlife
Department; Oklahoma State University; University of New Mexico Museum
of Southwestern Biology; and New Mexico Department of Game and Fish, as
well as numerous survey reports on rivers and streams throughout the
species' range (see SSA report). We have also reviewed available
information that pertains to the habitat requirements of this species.
Sources of information on habitat requirements include studies
conducted at occupied sites and published in peer-reviewed articles and
agency reports, and data collected during monitoring efforts.
Our review of occupied range of the peppered chub is based on
numerous species experts who concluded that, by the year 2000, the
peppered chub had significantly declined and was isolated to the South
Fork Ninnescah River in Kansas and the South Canadian River between Ute
Reservoir in New Mexico and Lake Meredith in the Texas panhandle
(Luttrell et al. 1999, entire; Eisenhour 1999, entire; Eisenhour 2004,
entire). Using data from more than 1,800 fish collections, we define
``currently occupied'' as river reaches with positive surveys from 2013
to 2017 (Service 2022, chapter 4). By the year 2013, the peppered chub
was no longer being observed in the Ninnescah River in Kansas, despite
extensive survey efforts. The peppered chub continues to be observed in
surveys in the South Canadian River between the Ute Reservoir and Lake
Meredith, and this is the only area we considered to be currently
occupied. We are designating one occupied unit as critical habitat for
the peppered chub in the upper South Canadian River.
In summary, for areas within the geographic area occupied by the
species at the time of listing (Upper South Canadian River; Unit 1), we
delineated the critical habitat unit boundary using the following
criteria:
The one remaining population of peppered chub has a low level of
resiliency (see table 1, above), and, because of its relatively short
life cycle (~2 years), a series of back-to-back stochastic events could
significantly reduce or extirpate the remaining population. The
peppered chub range has been highly restricted (~6 percent remaining);
therefore, its adaptive capacity (representation) has been dramatically
reduced. The significantly reduced range reduces peppered chub exposure
to ecologically diverse habitats and reduces its ability to adapt to
changing environments over time.
A low-resiliency single population provides little redundancy for
the species, and a single catastrophic event could cause species
extinction. Consequently, we have determined that occupied areas alone
are not adequate for the conservation of the species. We evaluated
whether any unoccupied areas are essential for the conservation of the
species, and we are designating critical habitat in two units that are
currently unoccupied. We have determined that each is essential for the
conservation of the species. Both units have at least one of the PBFs
essential to the conservation of the species, and we are reasonably
certain that each will contribute to the conservation of the species.
Our specific rationale for each unit can be found below in the unit
descriptions.
Peppered chub has been completely extirpated from all but a single
river reach within its historical range. Additionally, the one
remaining population was found to be in ``low'' condition in our
resiliency analysis and protecting it alone would not sufficiently
conserve the species. Additional healthy populations are needed because
of the inherent threat from environmental stochasticity (such as a
multiyear drought) and the
[[Page 11205]]
possibility that the species could be extirpated in a relatively short
period of time, given a 2-year life cycle. Furthermore, a single
catastrophic event could extirpate the last remaining population,
resulting in species extinction.
As a result, additional healthy populations of the peppered chub
must be established to increase its viability and to recover the
species. Having at least two sufficiently resilient populations in the
Canadian River and at least one population in each of the Ninnescah and
Cimarron Rivers is essential for the conservation of the peppered chub.
Representation and redundancy have both been dramatically reduced by
the species' limited current range. Due to the species' constricted
range, it currently has a limited scope of its historical ecological
setting and, therefore, has little to no opportunity to adapt to a
changing environment over time.
The specific areas in these units encompass the minimum area of the
species' historical range within the critical habitat designation,
while still providing ecological diversity so that the species has the
ability to evolve and adapt over time (representation) and ensure that
the species has an adequate level of redundancy to guard against future
catastrophic events.
These areas also represent the areas within the historical range
with the best potential for recovery of the species due to their
current conditions and likely suitability for reintroductions, based on
uninterrupted stream length, overall habitat condition, and the
presence of some or all of the PBFs essential to the conservation of
the species. The unoccupied units that we have selected to designate
for the peppered chub represent the smallest number of units that could
be designated while still capturing the widest range of historical
ecological settings and increasing redundancy. We are finalizing a
designation with only three units (see table 2, below), because one
unit from the proposed rule is being excluded based on our analysis
under section 4(b)(2) of the Act (see Exclusions section below).
In addition to representation concerns, redundancy has been
dramatically reduced and must be improved in order for the species to
maintain viability into the future. The peppered chub was once common
among several streams throughout the Arkansas River Basin and was
highly redundant because it existed in many streams across a range. The
species now occurs in one river segment in a small portion of its
historical range. The species needs healthy populations distributed
across its historical range to guard against catastrophic events. The
two unoccupied units that were selected to capture the species'
historical ecological settings are also essential to increasing the
redundancy of the species.
Accordingly, we designate one unoccupied unit in the Canadian River
and one unoccupied unit in the Cimarron River. Establishing healthy
populations in these two currently unoccupied units would increase the
resiliency, representation, and redundancy (viability) of the species.
If reintroduced populations become established, each unoccupied unit
will contribute ecological diversity (representation) or guard against
catastrophic events (redundancy) or both. As described below in the
individual unit descriptions, each unit contains one or more of the
PBFs and is reasonably certain to contribute to the conservation of the
species and meet the definition of habitat at 50 CFR 424.02.
See table 2, below for a summary of the critical habitat unit
boundaries for areas outside the geographic area occupied by the
species at the time of listing.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack the PBFs
necessary for peppered chub. The scale of the maps we prepared under
the parameters for publication within the Code of Federal Regulations
may not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this rule have been excluded by text in the rule and are not
designated as critical habitat. Therefore, a Federal action involving
these lands will not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the PBFs in the adjacent critical
habitat.
We are designating as critical habitat three critical habitat
units, totaling approximately 872 rmi (1,404 rkm), one unit of which is
currently occupied by the peppered chub and two units that are
unoccupied. All three units are designated based on one or more of the
PBFs being present to support peppered chub's life-history processes.
Some units contain all of the identified PBFs and support multiple
life-history processes. Some units contain only some of the PBFs
necessary to support the peppered chub's particular use of that
habitat. We are designating two unoccupied units because we have
determined that the single occupied area is inadequate to ensure the
conservation of the species. Therefore, we have also identified and
designated as critical habitat unoccupied areas that contain one or
more of the PBFs that are essential to support life-history processes
of the species and that are essential for the conservation of the
species.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
https://www.regulations.gov at Docket No. FWS-R2-ES-2019-0019 and on
our internet site https://www.fws.gov/southwest/es/ArlingtonTexas (see
FOR FURTHER INFORMATION CONTACT).
Final Critical Habitat Designation
We are designating three units as critical habitat for peppered
chub. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for peppered chub. The three areas we designate as critical
habitat are: (1) Upper South Canadian River, (2) Lower South Canadian
River, and (4) Cimarron River. Table 2, below shows the critical
habitat units and the approximate area of each unit.
Table 2--Final Critical Habitat Units for Peppered Chub
----------------------------------------------------------------------------------------------------------------
Size of unit in
Critical habitat unit Land ownership by type river miles Occupied?
(kilometers)
----------------------------------------------------------------------------------------------------------------
1. Upper South Canadian River........ Federal; State; Private; 197 (317) Yes.
Other.
2. Lower South Canadian River........ Federal; Tribal; Private; 400 (644) No.
Other.
[[Page 11206]]
4. Cimarron River.................... Federal; Tribal; State; 275 (443) No.
Private; Other.
-------------------------------------------
Total............................ ............................. 872 (1,404)
----------------------------------------------------------------------------------------------------------------
Notes: Area estimates reflect all land within critical habitat unit boundaries. Area sizes may not sum due to
rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for peppered chub, below.
Unit 1: Upper South Canadian River, New Mexico and Texas
Unit 1 consists of approximately 197 river miles (rmi) (317 river
kilometers (rkm)) comprising a portion of the South Canadian River
originating below the Ute Dam west of Logan, New Mexico, and extending
downstream to the delta of Lake Meredith, Texas; and a portion of
Revuelto Creek originating at the Interstate Highway 40 bridge
extending downstream to the confluence with the South Canadian River,
New Mexico. Revuelto Creek is an important source of water and sediment
for the Upper South Canadian River and is considered occupied. Unit 1
occurs largely within private land or land described as ``other,''
which is land with non-Federal ownership that could not be determined
but is likely to be Tribal or private.
Approximately 21 rmi (34 rkm) of adjacent lands are federally owned
and managed by the National Park Service, and the Bureau of
Reclamation. In addition, several small segments of public lands occur
at bridge crossings, road easem*nts, and the like. There are state own
lands adjacent to approximately 9 rmi (~15 rkm). The remaining lands
are in private ownership status and are adjacent to approximately 167
rmi (~268 rkm) of the unit 1 designation.
This unit possesses those characteristics as described by PBF 1
(see Physical or Biological Features Essential to the Conservation of
the Species, above). PBFs 2 and 3 are in degraded condition in this
unit during some times of the year and are dependent upon water
releases from Ute Reservoir, precipitation, and groundwater, but these
PBFs are currently sufficient to maintain self-sustaining populations.
Water management strategies could enhance PBFs 2 and 3 within this
unit. Current management to address native riparian vegetation is
ongoing throughout this unit as it pertains to PBF 4; however,
additional efforts to improve streamflow and channel morphology/
complexity (removal of flow obstructions, restoration of historical
channel characteristics, etc.) could further benefit this species.
Predatory and other fish that may compete with peppered chub are
present in this unit, but any effect to peppered chub resiliency is
unclear. Thus, management actions to achieve PBF 5 may be necessary if
additional information indicates the species' resiliency is affected by
predation or competition.
Unit 2: Lower South Canadian River, Texas and Oklahoma
Because we have determined occupied areas alone are not adequate
for the conservation of the species, we have evaluated whether any
unoccupied areas are essential for the conservation of the species and
identified this area as essential for the conservation of the species.
Unit 2 comprises approximately 400 rmi (644 rkm) consisting of the
South Canadian River originating at the U.S. 83 bridge north of
Canadian, Texas, and extending downstream to the U.S. 75 bridge
northwest of Calvin, Oklahoma. Unit 2 occurs almost entirely within
land under ``other'' land ownership, as described above under Unit 1.
Approximately 13 rmi (21 rkm) is managed by the U.S. Army Corps of
Engineers, and approximately >1 rmi (1 rkm) is held in trust by the
Bureau of Indian Affairs as Cheyenne-Arapaho Trust Land. In addition,
several small segments of public land occur at bridge crossings, road
easem*nts, and the like. Historically, peppered chubs were observed in
the lower portions of the South Canadian River. Peppered chubs were
last reported in the South Canadian River resiliency unit in 1999.
Currently, this river supports other pelagic-spawning prairie fish,
such as the threatened Arkansas River shiner. This unit has at least
one of the PBFs essential to the conservation of the species, and we
are reasonably certain that this unit will contribute to the
conservation of the species.
Although it is considered unoccupied, portions of this unit contain
some or all of the PBFs essential for the conservation of the species
(see Physical or Biological Features Essential to the Conservation of
the Species, above.) Unit 2 possesses those characteristics as
described by PBF 1 and is the longest unfragmented river segment within
the historical range of the peppered chub. Although we have determined
that peppered chubs require 127 rmi of unobstructed river characterized
by a complex braided channel and substrates of predominantly sand, with
some patches of silt, gravel, and cobble, that is the minimum number of
river miles required to adequately facilitate reproduction and maintain
a population, assuming all of the physical habitat requirements exist
throughout the stretch of river (Service 2022, pp. 32 & 116). In order
to establish populations, peppered chub need a longer river length that
will not only adequately facilitate reproduction but also population
growth (Service 2022, p. 97). Additionally, the required habitat
factors (from PBF 1) do not exist throughout the entire river segment
and, because the peppered chub has an approximate 2-year life cycle,
any additional stream length would guard against extirpation due to
multiyear droughts.
PBF 2 is degraded in the upper portion of this unit during some
times of the year and is dependent upon precipitation and groundwater.
Based on available data (OWRB 2017, pp. 39-43), PBF 3 is present
throughout this unit. Current management to address native riparian
vegetation is ongoing throughout this unit as it pertains to PBF 4;
however, these management efforts are not specifically directed at
benefiting the peppered chub, and additional management efforts may be
necessary. Management actions to control nonnative phreatophytic (deep
rooted) vegetation upstream and within the upper portion of this unit
could also improve PBF 2 by reducing evapotranspiration. Predatory and
other fish that may compete with peppered chub are present in this
unit, but any effect to peppered chub resiliency is unclear. Thus,
management actions to achieve PBF 5 may be necessary if additional
information suggests the species'
[[Page 11207]]
resiliency is affected by predation or competition.
If a healthy population is established in this unit, it would
likely be a moderately to highly resilient population due to longer
stream length compared to other units and would increase the species'
redundancy by one population. This unit is essential for the
conservation of the species because it will provide habitat for range
expansion in portions of known historical habitat that is necessary to
increase viability of the species by increasing its resiliency,
redundancy, and representation. A portion (approximately 238.2 rmi
(383.3 rkm)) of listed Arkansas River shiner critical habitat is
present in Unit 2.
For these reasons, we are reasonably certain that this unit will
contribute to the conservation of the species. Additionally, the need
for conservation efforts is recognized and is being discussed by our
conservation partners, and researchers are working on methods for
restoring and reintroducing the species into unoccupied habitat. The
State of Oklahoma has identified the peppered chub as a tier III
species of greatest conservation need (moderate level of conservation
need) in the Oklahoma Comprehensive Wildlife Conservation Strategy
(ODWC 2016, p. 399). The State strategy was developed to articulate the
conservation strategies necessary to conserve their rare and declining
wildlife species and maintain Oklahoma's rich biological heritage for
present and future generations (ODWC 2016, p. 3). The strategy
identifies several general conservation actions that would improve PBFs
2, 3, and 4 and benefit the peppered chub, if a population were
established and if the actions were implemented, such as providing
funding to landowners to restore channel morphology, water
conservation, coordinating further with the Service, and public
education (ODWC 2016, pp. 45-46). State and Federal partners have shown
interest in propagation and reintroduction efforts for the peppered
chub in this area. As previously mentioned, efforts are underway
regarding a captive propagation program for peppered chub at the
Tishomingo National Fish Hatchery in Oklahoma. The State of Kansas,
Tishomingo National Fish Hatchery, and the Oklahoma Fish and Wildlife
Conservation Office collaborate regularly on conservation actions.
The State of Texas also recognizes the peppered chub as a species
of greatest conservation need and gives the species a rank of S1 (i.e.,
at very high risk of extirpation in the jurisdiction due to very
restricted range, very few populations or occurrences, very steep
declines, severe threats, or other factors). Texas is one of only two
States where the species remains extant. The State has also identified
the portion of the Canadian River within the boundaries of the State of
Texas (portions of which are currently occupied and unoccupied areas
inside this unit) as an ecologically significant stream because it has
threatened and endangered species/unique communities present (Texas
Water Development Board (TWDB) 2016, p. 8-2). The Canadian River
segment in the panhandle of Texas is also significant because of the
presence of unique, exemplary, or unusually extensive natural
communities upon which water development projects would have
significant detrimental effects (TWDB 2016, p. 8-2).
Proposed Unit 3: Arkansas/Ninnescah River, Kansas and Oklahoma
Proposed Unit 3 comprised approximately 179 rmi (288 rkm)
consisting of the South Fork Ninnescah River originating at the Highway
54/400 bridge east of Pratt, Kansas, and extending downstream to the
River Road Bridge east of Newkirk, Oklahoma. The proposed unit occurs
almost entirely on land under ``other'' land ownership, as described
above under Unit 1. A small amount of this unit is publicly owned in
the form of bridge crossings, road easem*nts, and the like. Peppered
chub were observed in the Ninnescah River in surveys between the years
2000 and 2013. We have excluded the entire unit from the final
designation (see Exclusions, below). A description and map of this unit
is maintained in the proposed rule for this designation (85 FR 77108).
Approximately 93 percent of this unit is located in the State of
Kansas and contains the PBFs essential for the conservation of the
species. In 2021, the State of Kanas signed The Kansas Aquatic Species
Conservation Agreement: A Programmatic Safe Harbor Agreement and
Candidate Conservation Agreement with Assurances for Fourteen Aquatic
Species in Kansas (Agreement) that includes the peppered chub and
covers the entire portion of this unit that falls within the boundaries
of the State of Kansas. Because of the existence of the Agreement, the
remaining 12 miles (less than seven percent) of the unit in Oklahoma no
longer meets our criteria for designating critical habitat, we have
excluded the entire unit from the final critical habitat designation
(see Exclusions, below).
Unit 4: Cimarron River and Oklahoma
Because we have determined that occupied areas alone are not
adequate for the conservation of the species, we evaluated whether any
unoccupied areas are essential for the conservation of the species and
identified this area as essential for the conservation of the species.
Unit 4 comprises approximately 275 rmi (443 rkm) consisting of the
Cimarron River originating at the border of Kansas and Oklahoma and
extending downstream to the OK 51 bridge northeast of Oilton, Oklahoma.
This unit occurs almost entirely on land under ``other'' land
ownership, as described above under Unit 1. Approximately 0.86 rmi
(1.38 rkm) is managed by the U.S. Army Corps of Engineers;
approximately 0.56 rmi (0.91 rkm) is managed by the Bureau of Land
Management; and approximately 0.94 rmi (1.51 rkm) is held in trust by
the Bureau of Indian Affairs as Sac and Fox Nation Trust Land and
Pawnee Trust Land. In addition, small amounts of the unit are publicly
owned in the form of bridge crossings, road easem*nts, and the like.
Historically, peppered chubs were observed in the Cimarron River. The
peppered chub was last observed in the Cimarron River resiliency unit
in 2011. This unit has at least one of the PBFs essential to the
conservation of the species, and we are reasonably certain that it will
contribute to the conservation of the species. Our specific rationale
for this unit can be found below in this unit description.
Unit 4 is considered unoccupied; however, portions of this unit
contain some or all of the PBFs necessary for the conservation of the
species (see Physical or Biological Features Essential to the
Conservation of the Species, above.) PBF 1 is present within this unit,
as described in the Unit 2 description. PBF 2 is degraded in upstream
portions of this unit during some times of the year (absent during
elevated drought conditions) and is dependent upon precipitation and
groundwater. Based on available data, PBF 3 is present throughout this
unit with the exception of PBF 3(iii) (conductivity generally less than
16.2 mS/cm) along an approximate 79-mile portion upstream of Waynoka to
Ames, Oklahoma. Management actions would likely be necessary to reduce
conductivity in this area (OWRB 2017, pp. 49-56). Current management to
enhance native riparian vegetation is ongoing throughout this unit as
it pertains to PBF 4 and involves the removal/control of nonnative
phreatophytic vegetation such as saltcedar, common reed, etc.
Management actions to control
[[Page 11208]]
nonnative phreatophytic vegetation upstream and within the upper
portion of this unit could also improve PBFs 2 and 3 by reducing
evapotranspiration. Phreatophytic plants such as saltcedar have high
water consumption (increasing evapotranspiration) and stress aquatic
habitats by lowering groundwater levels. Predatory and other fish that
may compete with peppered chub are present in this unit, but any effect
to peppered chub resiliency is unclear. Thus, management actions to
achieve PBF 5 may be necessary if additional information indicates the
species' resiliency is affected by predation or competition.
As discussed above, peppered chub currently has little to no
representation and redundancy. If established in this unit, a
population would increase redundancy by one population, thereby
guarding against catastrophic events, and would increase the species'
ecological diversity (representation). This unit is essential for the
conservation of the species because it will provide habitat for range
expansion in portions of known historical habitat that is necessary to
increase viability of the species by increasing its resiliency,
redundancy, and representation. Critical habitat for the Arkansas River
shiner is present within a portion (approximately 201.5 rmi (324.30
rkm)) of Unit 4 and, accordingly, similar conservation activities are
already ongoing.
For these reasons, we are reasonably certain that this unit will
contribute to the conservation of the species. Additionally, the need
for conservation efforts has been recognized and is being discussed by
our conservation partners, and methods for restoring and reintroducing
the species into unoccupied habitat are ongoing. The State of Oklahoma
has identified the peppered chub as a tier III species of greatest
conservation need in the Oklahoma Comprehensive Wildlife Conservation
Strategy (ODWC 2016, p. 399). The Oklahoma strategy was developed to
articulate the conservation strategies necessary to conserve their rare
and declining wildlife species and maintain Oklahoma's rich biological
heritage for present and future generations (ODWC 2016, p. 3). The
strategy identifies several general conservation actions that would
improve PBFs 2, 3, and 4 and benefit the peppered chub, if a population
were established and if the actions were implemented, such as providing
funding to landowners to restore channel morphology, water
conservation, coordinating further with the Service, and public
education (ODWC 2016, pp. 45-46). Also, in Oklahoma, State and Federal
partners have shown interest in propagation and reintroduction efforts
for the peppered chub. As previously mentioned, efforts are underway
regarding a captive propagation program for peppered chub at the
Tishomingo National Fish Hatchery in Oklahoma.
It is possible that significant drought conditions in the late
1980s and early 1990s led to the peppered chub decline and eventual
extirpation in the Cimarron River (in Unit 4). The current condition of
the unit, however, is likely to support populations once again (Service
2022, p. 150). Consequently, the shoal chub (Macrhybobsis hyostoma), a
species in the same genus as the peppered chub, has reestablished
populations and continues to persist in the Cimarron River after
previously experiencing significant declines (Lutrell et al. 1999, pp.
984-985), demonstrating that this unit would similarly be suitable for
the peppered chub.
A relatively small portion of Unit 4 extends into the State of
Kansas (approximately six percent) and is covered by The Kansas Aquatic
Species Conservation Agreement: A Programmatic Safe Harbor Agreement
and Candidate Conservation Agreement with Assurances for Fourteen
Aquatic Species in Kansas. We have excluded approximately 17 miles (27
kilometers) of this unit from the final critical habitat designation
because the benefits of exclusions outweigh the benefits of inclusion
(see Exclusions, below).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). 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 carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our 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, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying 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 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary
[[Page 11209]]
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law) and, subsequent to the
previous consultation: (1) If the amount or extent of taking specified
in the incidental take statement is exceeded; (2) if new information
reveals effects of the action that may affect listed species or
critical habitat in a manner or to an extent not previously considered;
(3) if the identified action is subsequently modified in a manner that
causes an effect to the listed species or critical habitat that was not
considered in the biological opinion; or (4) if a new species is listed
or critical habitat designated that may be affected by the identified
action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support PBFs essential to the
conservation of a listed species and provide for the conservation of
the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Replacement and maintenance of river crossings and bridges;
(2) Construction, replacement, maintenance, or removal of
pipelines, or abandonment of pipelines or electrical lines crossing
streams;
(3) Park maintenance and authorization of recreational activities
by the U.S. National Park Service (e.g., permitting recreational off-
road vehicle use at Lake Meredith Recreational Area);
(4) Operation and maintenance of salinity control programs;
(5) Dam maintenance, water releases from dams, and flow management
via dams;
(6) Water withdrawals and groundwater withdrawals from reservoirs;
(7) Water development projects (such as new impoundments,
diversions, or reservoir projects);
(8) Watershed restoration activities;
(9) Stream restoration and habitat improvement;
(10) Stocking of nonnative fish or native fish that compete with
the peppered chub;
(11) Oil and gas exploration and extraction; and
(12) New or expanded development of municipal or agricultural water
supplies.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. There are no
DoD lands with a completed INRMP within the final critical habitat
designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat 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 designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. We describe below the process that we undertook for
taking into consideration each category of impacts and our analyses of
the relevant impacts.
On December 18, 2020, we published a final rule in the Federal
Register (85 FR 82376) revising portions of our regulations pertaining
to exclusions of critical habitat. These final regulations became
effective on January 19, 2021, and apply to critical habitat rules for
which a proposed rule was published after January 19, 2021.
Consequently, these new regulations do not apply to this final rule.
The Act affords a great degree of discretion to the Services in
implementing section 4(b)(2). This discretion is applicable to a number
of aspects of section 4(b)(2) including whether to enter into the
discretionary 4(b)(2) exclusion analysis and the weights assigned to
any particular factor used in the analysis. Most significant is that
the decision to exclude is always discretionary, as the Act states that
the Secretaries ``may'' exclude any areas. Under no circ*mstances is
exclusion required under the second sentence of section 4(b)(2). There
is no requirement to exclude, or even to enter into a discretionary
4(b)(2) exclusion analysis for any particular area identified as
critical habitat. Accordingly, per our discretion, we have only done a
full discretionary exclusion analysis when we received clearly
articulated and reasoned rationale to exclude the area from this
critical habitat designation.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our draft economic analysis (DEA) of the proposed critical habitat
designation and related factors (IEc 2019, entire). The analysis, dated
February 19, 2019, was made available for public review from December
1, 2020, through February 1, 2021 (85 FR 77108). The DEA addressed
probable
[[Page 11210]]
economic impacts of critical habitat designation for peppered chub.
Following the close of the comment period, we reviewed and evaluated
all information submitted during the comment period that may pertain to
our consideration of the probable incremental economic impacts of this
critical habitat designation. Information relevant to the probable
incremental economic impacts of the critical habitat designation for
the peppered chub is summarized below and available in the screening
analysis for the peppered chub (IEc 2019, entire), available at https://www.regulations.gov.
The full description of the findings from the DEA are outlined in
the proposed rule (85 FR 77108; December 1, 2020). No more than 153
peppered chub consultations (148 informal and 5 formal) are anticipated
in any given year (IEc 2019, p. 17). Proposed Unit 3 (Arkansas/
Ninnescah River) had the highest potential costs, due in part to the
fact that there is no overlapping critical habitat designation with the
Arkansas River shiner in this unit. However, the Service is excluding
proposed Unit 3 from the final critical habitat designation (see
Exclusions, below). The estimated incremental costs of the total
proposed critical habitat designation for the peppered chub in the
first year was found to be unlikely to exceed $900,000, with proposed
Unit 3 accounting for $500,000 of the total costs (2018 dollars) (IEc
2019, p. 17). Therefore, with the exclusion of proposed Unit 3, the
estimated incremental costs of the total proposed critical habitat
designation for the peppered chub within the first year is unlikely to
exceed $400,000. Thus, the annual administrative burden would not reach
$100 million and, therefore, would not be significant (see Executive
Order 12866: Regulatory Planning and Review).
Consideration of Impacts on National Security and Homeland Security
The Service must consider impacts on national security, including
homeland security, under section 4(a)(3)(B)(i) and on those DoD lands
or areas not covered by section 4(a)(3)(B)(i), because section 4(b)(2)
requires the Service to consider those impacts whenever it designates
critical habitat. Accordingly, if DoD, Department of Homeland Security
(DHS), or another Federal agency has requested exclusion based on an
assertion of national-security or homeland-security concerns, or we
have otherwise identified national-security or homeland-security
impacts from designating particular areas as critical habitat, we
generally have reason to consider excluding those areas.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. Other relevant impacts may include, but are
not limited to, impacts to Tribes, States, local governments, public
health and safety, community interests, the environment (such as
increased risk of wildfire or pest and invasive species management),
Federal lands, and conservation plans, agreements, or partnerships. To
identify other relevant impacts that may affect the exclusion analysis,
we consider a number of factors, including whether there are permitted
conservation plans covering the species in the area--such as habitat
conservation plans (HCPs), safe harbor agreements (SHAs), or candidate
conservation agreements with assurances (CCAAs)--or whether there are
non-permitted conservation agreements and partnerships that may be
impaired by designation of, or exclusion from, critical habitat (see
Policy Regarding Implementation of Section 4(b)(2) of the Endangered
Species Act: 81 FR 7226; February 11, 2016). In addition, we look at
whether Tribal conservation plans or partnerships, Tribal resources, or
government-to-government relationships of the United States with Tribal
entities may be affected by the designation. We also consider any
State, local, public-health, community-interest, environmental, or
social impacts that might occur because of the designation.
Exclusions
Exclusions Based on Economic Impacts
The Service considered the economic impacts of the critical habitat
designation as described above. Based on this information, the
Secretary has determined not to exercise her discretion to exclude any
areas from this designation of critical habitat for the peppered chub
based on economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
In preparing this rule, we have determined that the lands within
the designation of critical habitat for peppered chub are not owned or
managed by DoD or DHS. We also received no requests for exclusion from
DoD or DHS. Therefore, we anticipate no impact on national security or
homeland security. Based on this information, the Secretary has
determined not to exercise her discretion to exclude any areas from
this designation of critical habitat for the peppered chub based on
impacts on national security or homeland security.
Exclusions Based on Other Relevant Impacts
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
In the case of peppered chub, the benefits of critical habitat
include public awareness of the presence of peppered chub and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for peppered chub due to protection from
destruction or adverse modification of critical habitat. Continued
implementation of an ongoing management plan that provides conservation
equal to or more than the protections that result from a critical
habitat designation would reduce those benefits of including that
specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential PBFs; whether there is a reasonable
expectation that the conservation management strategies and actions
contained in a management plan will be implemented into the future;
whether the conservation strategies in the plan are likely to be
effective; and whether the plan contains a monitoring program or
adaptive management to ensure that the conservation measures are
effective and can be adapted in the future in response to new
information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion.
[[Page 11211]]
If our analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, we then determine whether exclusion would result
in extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments we received, we evaluated
whether certain lands in the proposed critical habitat Units 3 and 4
are appropriate for exclusion from the final designation under section
4(b)(2) of the Act. This analysis indicates that the benefits of
excluding lands from the final designation outweigh the benefits of
designating those lands as critical habitat; thus, the Secretary is
exercising her discretion to exclude the lands from the final
designation.
Based on the existence of private or non-Federal conservation
plans, as discussed below, we are excluding the following areas under
section 4(b)(2) of the Act from the final critical habitat designation
for peppered chub. Table 3, below provides approximate areas (rmi, rkm)
that meet the definition of critical habitat but which we are excluding
under section 4(b)(2) of the Act from the final critical habitat
designation.
Table 3--Areas Excluded by Critical Habitat Unit for the Peppered Chub
----------------------------------------------------------------------------------------------------------------
Proposed
critical Area excluded Final critical
Proposed critical habitat unit habitat (rmi (rmi (rkm)) habitat (rmi
(rkm)) (rkm))
----------------------------------------------------------------------------------------------------------------
3: Arkansas/Ninnescah River..................................... 179 (288) 179 (288) 0
4: Cimarron River............................................... 292 (470) 17 (27) 275 (443)
----------------------------------------------------------------------------------------------------------------
Private or Other Non-Federal Conservation Plans Related to Permits
Under Section 10 of the Act
HCPs for incidental take permits under section 10(a)(1)(B) of the
Act provide for partnerships with non-Federal entities to minimize and
mitigate impacts to listed species and their habitat. In some cases,
HCP permittees agree to do more for the conservation of the species and
their habitats on private lands than designation of critical habitat
would provide alone. We place great value on the partnerships that are
developed during the preparation and implementation of HCPs.
CCAAs and SHAs are voluntary agreements designed to conserve
candidate and listed species, respectively, on non-Federal lands. In
exchange for actions that contribute to the conservation of species on
non-Federal lands, participating property owners are covered by an
``enhancement of survival'' permit under section 10(a)(1)(A) of the
Act, which authorizes incidental take of the covered species that may
result from implementation of conservation actions, specific land uses,
and, in the case of SHAs, the option to return to a baseline condition
under the agreements. The Service also provides enrollees assurances
that we will not impose further land-, water-, or resource-use
restrictions, or require additional commitments of land, water, or
finances, beyond those agreed to in the agreements.
When we undertake a discretionary section 4(b)(2) exclusion
analysis based on permitted conservation plans such as CCAAs, SHAs, and
HCPs, we consider the following three factors:
(i) Whether the permittee is properly implementing the conservation
plan or agreement;
(ii) Whether the species for which critical habitat is being
designated is a covered species in the conservation plan or agreement;
and
(iii) Whether the conservation plan or agreement specifically
addresses the habitat of the species for which critical habitat is
being designated and meets the conservation needs of the species in the
planning area. See Policy Regarding Implementation of Section 4(b)(2)
of the Endangered Species Act: 81 FR 7226; February 11, 2016.
We have determined that The Kansas Aquatic Species Conservation
Agreement: A Programmatic Safe Harbor Agreement and Candidate
Conservation Agreement with Assurances for Fourteen Aquatic Species in
Kansas (Agreement) fulfills the above criteria, and we are excluding
non-Federal lands covered by this plan that provide for the
conservation of peppered chub, as further explained below.
Proposed Units 3 and 4--The Kansas Aquatic Species Conservation
Agreement: A Programmatic Safe Harbor Agreement and Candidate
Conservation Agreement With Assurances for Fourteen Aquatic Species in
Kansas
In 2021, the Secretary of the Kansas Department of Wildlife, Parks
and Tourism signed The Kansas Aquatic Species Conservation Agreement: A
Programmatic Safe Harbor Agreement and Candidate Conservation Agreement
with Assurances for Fourteen Aquatic Species in Kansas (hereafter, the
``Agreement''). The Agreement was part of an application for an
enhancement-of-survival permit under section 10(a)(1)(A) of the Federal
Endangered Species Act. The Agreement facilitates the introduction,
reintroduction, augmentation, and translocation of, and conserves the
habitat of, imperiled native aquatic species in the State of Kansas.
The Agreement, a programmatic SHA and a CCAA, is between the Kansas
Department of Wildlife, Parks and Tourism (KDWPT) and the Service,
collectively, ``the Parties.''
The Agreement covers all eligible, non-Federal lands in the State
of Kansas, for all eligible non-Federal landowners who wish to
participate in the Agreement (Cooperator). Non-Federal lands are those
lands owned by non-Federal landowners which include, but are not
limited to, State, Tribal, regional, or local governments; private or
nonprofit organizations; or private citizens. By entering into this
Agreement, the Parties are using the Service's SHA and CCAA programs to
further the conservation of the Nation's fish and wildlife. Both
components of this Agreement and their associated permits target non-
Federal lands in Kansas, whose owners or land managers are willing to
engage in habitat management actions to benefit the species covered by
the Agreement (Covered Species).
For a Cooperator to obtain an enhancement-of-survival permit under
the Agreement, the Service must determine that there is a reasonable
expectation of a net conservation benefit to the Covered Species (50
CFR 17.32(c)(2)(ii) and (e)(2)(ii)). The duration of the Agreement is
50 years from its effective date. Each participating landowner, or
Cooperator, will enroll in the SHA, CCAA, or both, through a Landowner
Management
[[Page 11212]]
Agreement (Landowner Agreement). Once the Landowner Agreement is
signed, KDWPT will issue the Cooperator a Certificate of Inclusion
(COI). The duration of the Landowner Agreements entered into under the
Agreement and the associated COI will be for the remaining duration of
the permit unless another time period is agreed upon by the Parties and
the Cooperator.
The conservation goals of the Agreement are to increase the
resiliency, redundancy, and representation of the Covered Species'
populations through reintroductions and protect, enhance, and expand
habitat availability (stream bed and banks). Under the Agreement,
Cooperators will maintain habitat available to the Covered Species and
will assist with habitat conservation for the remainder of the term of
the Agreement. Cooperators will facilitate the ability to reintroduce
and augment populations, and manage enrolled lands, as agreed to in
their Landowner Agreement, in a manner that maintains existing habitat
and improves and restores habitat for the Covered Species.
Expected outcomes of implementing the Agreement include the
protection, enhancement, and restoration of instream habitat, improved
water quality, reduced erosion and sedimentation, improved riparian
habitat, and improved land use practices on enrolled lands during the
term of the Agreement. The reintroduction activities included in the
Agreement will increase probability that Covered Species will expand
their range and survive and recruit new cohorts in reintroduced areas.
Criteria for eligible landowners with land neighboring peppered chub
habitat is: ``Mainstem of waterbody where reintroduction occurs
extending onto adjoining parcels, plus direct tributaries containing
suitable habitat. Eligible property must support suitable habitat
(i.e., permanently flowing channels with sandy substrates)'' per the
Agreement. The Agreement in its entirety can be found at: https://www.fws.gov/mountain-prairie/ea/newsAndReleases.php.
Benefits of Inclusion--State of Kansas (Proposed Units 3 and 4):
The principal benefit of including an area in critical habitat
designation is the requirement of Federal agencies to ensure that
actions that they fund, authorize, or carry out are not likely to
result in the destruction or adverse modification of any designated
critical habitat, which is the regulatory standard of section 7(a)(2)
of the Act under which consultation is completed. In areas where a
listed species occurs, Federal agencies must consult with the Service
on actions that may affect a listed species, and refrain from actions
that are likely to jeopardize the continued existence of such species.
The analysis of effects to critical habitat is a separate and different
analysis from that of the effects to the species. Therefore, the
difference in outcomes of these two analyses represents the regulatory
benefit of critical habitat. For some cases, the outcome of these
analyses will be similar, because effects to habitat will often result
in effects to the species. However, in this case, peppered chubs do not
occur in the areas of proposed Units 3 and 4 (unoccupied units)
considered for exclusion. Critical habitat designation may provide a
regulatory benefit for the peppered chub on lands covered under the
Agreement when there is a Federal nexus present for a project that
might adversely modify critical habitat. However, the areas that were
considered for exclusion do not contain a large amount of Federal land
where such a nexus would exist.
Another possible benefit of including lands in critical habitat is
public education regarding the potential conservation value of an area
that may help focus conservation efforts on areas of high conservation
value for certain species. We consider any information about the
peppered chub and its habitat that reaches a wide audience, including
parties engaged in conservation activities, to be valuable. Designation
of critical habitat would provide educational benefits by informing
Federal agencies and the public about the presence of listed species
for all units.
In summary, we find that the benefits of inclusion of approximately
196 rmi (315 rkm) in proposed Units 3 and 4 of waterways within the
State of Kansas are: (1) A regulatory benefit when there is a Federal
nexus present for a project that might adversely modify critical
habitat; and (2) educational benefits for the peppered chub and its
habitat.
Benefits of Exclusion--State of Kansas (Proposed Units 3 and 4):
The benefits of excluding 196 rmi (315 rkm) in Kansas waterways under
the Agreement from the designation of critical habitat for the peppered
chub are substantial and include: (1) Continuance and strengthening of
our effective working relationship with private landowners to promote
voluntary, proactive conservation of the peppered chub and its habitat
as opposed to reactive regulation; (2) allowance for continued
meaningful collaboration and cooperation in working toward species
recovery, including conservation benefits that might not otherwise
occur; (3) the State of Kansas reviewed the Agreement as a partner in
development and has ensured required determinations are necessary and
advisable; (4) the Agreement has a monitoring program to ensure
conservation measures are effective; and (5) encouragement of
developing additional conservation easem*nts and other conservation and
management plans in the future for other federally listed and sensitive
species.
Many landowners perceive critical habitat as an unfair and
unnecessary regulatory burden. According to some, the designation of
critical habitat on (or adjacent to) private lands may reduce the
likelihood that landowners will support and carry out conservation
actions (Main et al. 1999, pp. 1,263-1265; Bean 2002, p. 412). The
magnitude of this negative outcome is greatly amplified in situations
where active management measures (such as reintroduction, fire
management, and control of invasive species) are necessary for species
conservation (Bean 2002, pp. 412-414). We find that the exclusion of
this specific area of non-federally owned lands from the critical
habitat designation for peppered chub can contribute to the species
recovery and provide a superior level of conservation than critical
habitat can provide alone. We find that, where consistent with the
discretion provided by the Act, 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 (Wilcove et al. 1996, pp. 1-15; Bean 2002, entire).
Additionally, partnerships with non-Federal landowners are vital to
the conservation of listed species, especially on non-Federal lands;
therefore, the Service is committed to supporting and encouraging such
partnerships through the recognition of positive conservation
contributions. In the case considered here, excluding these areas from
critical habitat will help foster the partnerships the landowners and
land managers in question have developed with Federal and State
agencies and local conservation organizations; will encourage the
continued implementation of voluntary conservation actions for the
benefit of the peppered chub and its habitat on these lands; and may
also serve as a model and aid in fostering future cooperative
relationships with other parties here and in other locations for the
benefit of other endangered or threatened species. Therefore, we
consider the positive effect of excluding from critical habitat areas
managed by
[[Page 11213]]
active conservation partners to be a significant benefit of exclusion.
Benefits of Exclusion Outweigh the Benefits of Inclusion--State of
Kansas, Proposed Units 3 and 4: We evaluated the exclusion of 196 rmi
(315 rkm) of waterways adjacent to private land within the areas
covered by the Agreement from our designation of critical habitat, and
we determined the benefits of excluding these lands outweigh the
benefits of including them as critical habitat for the peppered chub.
We conclude that the additional regulatory and educational benefits
of including these lands as critical habitat are relatively small,
because of the unlikelihood of a Federal nexus on these private lands.
These benefits are further reduced by the existence of the Agreement.
We anticipate that there would be little additional Federal regulatory
benefit to the taxon on private land because there is a low likelihood
that those parcels will be negatively affected to any significant
degree by Federal activities requiring section 7 consultation, and
ongoing management activities indicate there would be no additional
requirements pursuant to a consultation that addresses critical
habitat.
Furthermore, the potential educational and informational benefits
of critical habitat designation on areas containing the PBFs essential
to the conservation of the peppered chub would be minimal, because the
landowners and land managers under consideration have demonstrated
their knowledge of the species and its habitat needs in the process of
developing their partnerships with the Service.
In contrast, the benefits derived from excluding the areas managed
by these owners and enhancing our partnership with these landowners and
land managers is significant. Because voluntary conservation efforts
for the benefit of listed species on non-Federal lands are so valuable,
the Service considers the maintenance and encouragement of conservation
partnerships to be a significant benefit of exclusion. The development
and maintenance of effective working partnerships with non-Federal
landowners for the conservation of listed species is particularly
important in areas such as Kansas, a State with relatively little
Federal landownership, but many species of conservation concern.
Excluding these areas from critical habitat will help foster the
partnerships the landowners and land managers in question have
developed with Federal and State agencies and local conservation
organizations, and will encourage the continued implementation of
voluntary conservation actions for the benefit of the peppered chub and
its habitat on these lands. The current active conservation efforts on
some of these areas contribute to our knowledge of the species through
monitoring and scientific research. In addition, these partnerships not
only provide a benefit for the conservation of these species, but may
also serve as a model and aid in fostering future cooperative
relationships with other parties in this area of Kansas and in other
locations for the benefit of other endangered or threatened species.
We find that excluding areas from critical habitat that are
receiving both long-term conservation and management for the purpose of
protecting the habitat that supports the peppered chub will preserve
our partnership with the private landowners in the State of Kansas and
will encourage future collaboration towards conservation and recovery
of listed species. The partnership benefits are significant and
outweigh the small potential regulatory, educational, and ancillary
benefits of including the land in the final critical habitat
designation for the peppered chub. Therefore, the Agreement provides
greater protection of habitat for the peppered chub than could be
gained through the project-by-project analysis of a critical habitat
designation.
Exclusion Will Not Result in Extinction of the Species--State of
Kansas; Proposed Units 3 and 4: We determined that the exclusion of 196
rmi (315 rkm) of waterways within the boundaries of the State of Kansas
covered by the Agreement will not result in extinction of the taxon.
Protections afforded to the species and its habitat by the Agreement
provide assurances that the species will not go extinct as a result of
excluding these lands from the critical habitat designation.
An important consideration as we evaluate these exclusions and
their potential effect on the species in question is that critical
habitat does not carry with it a regulatory requirement to restore or
actively manage habitat for the benefit of listed species; the
regulatory effect of critical habitat is only the avoidance of
destruction or adverse modification of critical habitat should an
action with a Federal nexus occur. It is, therefore, advantageous for
the conservation of the species to support the proactive efforts of
non-Federal landowners who are contributing to the enhancement of
essential habitat features for listed species through exclusion. The
jeopardy standard of section 7 of the Act will also provide protection
in these occupied areas when there is a Federal nexus. Therefore, based
on the above discussion, the Secretary is exercising her discretion to
exclude approximately 196 rmi (315 rkm) of waterways from the
designation of critical habitat for the peppered chub.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the 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 RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
[[Page 11214]]
According to the Small Business Administration, 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; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether 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.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate only the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies will be directly
regulated by this designation. The RFA does not require evaluation of
the potential impacts to entities not directly regulated. Moreover,
Federal agencies are not small entities. Therefore, because no small
entities will be directly regulated by this rulemaking, the Service
certifies that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period that may
pertain to our consideration of the probable incremental economic
impacts of this critical habitat designation. Based on this
information, we affirm our certification that this final critical
habitat designation will not have a significant economic impact on a
substantial number of small entities, and a regulatory flexibility
analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects when undertaking
certain actions. We do not find that this critical habitat designation
will significantly affect energy supplies, distribution, or use, as the
areas identified as critical habitat are along riparian corridors in
mostly remote areas with little energy supply, distribution, or
infrastructure in place. 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)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) 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; Aid to Families
with Dependent Children 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 that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because the lands being designated for
critical habitat are owned by the States of New Mexico, Texas, and
Oklahoma and the Federal Government (National Park Service, Bureau of
Land Management, Bureau of Reclamation, and Service). We have
determined that this rule will not significantly or uniquely affect
small governments because it will not produce a Federal mandate of $100
million or greater in any year; that is, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. The
designation of critical habitat imposes no obligations on State or
local governments. By definition, Federal agencies are not considered
small entities, although the activities they fund or permit may be
proposed or carried out by small entities.
[[Page 11215]]
Consequently, we have determined that this critical habitat designation
will not significantly or uniquely affect small government entities. As
such, a small government agency plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the peppered chub in a takings implications assessment. The
Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership or establish any closures or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that this designation of critical habitat for the peppered
chub does not pose significant takings implications for lands within or
affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of the critical habitat designation with, the
appropriate State resource agencies. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the State, or on the relationship
between the Federal Government and the State, or on the distribution of
powers and responsibilities among the various levels of government. The
designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the PBFs of the habitat necessary
to the conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist these State and local
governments in long-range planning because these local governments no
longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) will be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the physical or biological features essential to the
conservation of the species. The designated areas of critical habitat
are presented on maps, and the rule provides several options for the
interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and
you are not required to respond to a collection of information unless
it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations
adopted pursuant to section 4(a) of the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However,
when the range of the species includes States within the Tenth Circuit,
such as that of the peppered chub, under 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 performed the NEPA analysis, and the draft environmental
assessment was made available for public comment on April 21, 2021, on
the Arlington Ecological Services Field Office website (below). We
emailed notices to 39 individuals, agencies, organizations, and Tribes
that were likely to be interested in and/or potentially affected by the
proposed action. We accepted public comments through May 24, 2021, and
received comments from the Kansas Farm Bureau, Oklahoma Farm Bureau,
New Mexico Department of Game and Fish, New Mexico Interstate Stream
Commission, the Petroleum Alliance of Oklahoma, and the Texas
Commission on Environmental Quality. The final environmental assessment
and finding of no significant impact have been completed and are
available for review with the publication of this final rule. You may
obtain a copy of the documents online at https://www.regulations.gov,
by mail from the Arlington, Texas, Ecological Services Field Office
(see ADDRESSES), or by visiting our website at https://www.fws.gov/southwest/es/ArlingtonTexas/.
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 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
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. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal
[[Page 11216]]
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act), we readily acknowledge our responsibilities to work
directly with Tribes in developing programs for healthy ecosystems, to
acknowledge that Tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes.
In a letter dated September 7, 2017, we informed the Tribal
leadership of nine Tribal nations (Pueblo of Cochiti, Pueblo of Isleta,
Pueblo of Jemez, Pueblo of Tesuque, Pueblo of Zuni, Hopi Tribe,
Jicarilla Apache Nation, Mescalero Apache Tribe, and the Navajo Nation)
near or within the range of the peppered chub in the State of New
Mexico of our intent to conduct a status assessment for the peppered
chub. In a letter sent October 18, 2017, we informed all Tribal
entities in the State of Oklahoma of our intent to conduct a status
assessment. In a letter dated November 6, 2018, we sought the input of
the Sac and Fox Nation and the Cheyenne and Arapaho Tribes of Oklahoma
for their input on the potential economic impact of designating
critical habitat for the peppered chub. We received a response from the
Sac and Fox Nation providing input for a potential critical habit
designation and incorporated the information into our screening
analysis.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Arlington, Texas, Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team and the Arlington,
Texas, Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. In Sec. 17.11, amend the table in paragraph (h) by adding an entry
for ``Chub, peppered'' to the List of Endangered and Threatened
Wildlife in alphabetical order under FISHES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Chub, peppered.................. Macrhybopsis Wherever found.... E 87 FR [INSERT FEDERAL
tetranema. REGISTER PAGE WHERE
THE DOCUMENT BEGINS];
2/28/2022; 50 CFR
17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (e) by adding an entry for
``Peppered Chub (Macrhybopsis tetranema)'' after the entry for ``Owens
Tui Chub (Gila bicolor snyderi)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Peppered Chub (Macrhybopsis tetranema)
(1) Critical habitat units are depicted for Quay County, New
Mexico; Hemphill, Moore, Oldham, and Potter Counties, Texas; and
Blaine, Caddo, Canadian, Cleveland, Creek, Custer, Dewey, Ellis, Grady,
Harper, Hughes, Kingfisher, Logan, Major, McClain, Payne, Pontotoc,
Pottawatomie, Roger Mills, Seminole, Woods, and Woodward Counties,
Oklahoma, on the maps in this entry. The critical habitat units include
Units 1, 2, and 4 as Unit 3 was excluded during the rulemaking process.
(2) Within these areas, the physical or biological features
essential to the conservation of peppered chub consist of the following
components:
(i) Unobstructed river segments greater than 127 river miles (205
river kilometers) in length that are characterized by a complex braided
channel and substrates of predominantly sand, with some patches of
silt, gravel, and cobble.
(ii) Flowing water with adequate depths to support all life stages
and episodes of elevated discharge to facilitate successful
reproduction, channel and floodplain maintenance, and sediment
transportation.
(iii) Water of sufficient quality to support survival and
reproduction, which includes, but is not limited to, the following
conditions:
(A) Water temperatures generally less than 98.2 [deg]F (36.8
[deg]C);
(B) Dissolved oxygen concentrations generally greater than 3.7
parts per million (ppm);
(C) Conductivity generally less than 16.2 millisiemens per
centimeter (mS/cm);
(D) pH generally ranging from 5.6 to 9.0; and
(E) Sufficiently low petroleum and other pollutant concentrations
such that reproduction and/or growth is not impaired.
(iv) Native riparian vegetation capable of maintaining river water
quality, providing a terrestrial prey base, and maintaining a healthy
riparian ecosystem.
(v) A level of predatory or competitive, native or nonnative fish
present such that any peppered chub population's resiliency is not
affected.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
March 30, 2022.
[[Page 11217]]
(4) Data layers defining map units were created using fish
distribution data provided by State agencies and sourced on the
FishNet2 online database. Hydrologic data for stream reaches were
sourced from the U.S. Geological Survey online database. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the Service's internet site at https://www.fws.gov/southwest/es/ArlingtonTexas/ and at https://www.regulations.gov under Docket No.
FWS-R2-ES-2019-0019 and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: Index map follows:
[GRAPHIC] [TIFF OMITTED] TR28FE22.001
(6) Unit 1: Upper South Canadian River, New Mexico and Texas.
(i) This unit consists of approximately 197.2 river miles (317.3
river kilometers) of habitat in the South Canadian River from Revuelto
Creek at Interstate 40 in New Mexico downstream to the inundated
portion of Lake Meredith in Texas. Unit 1 includes river habitat up to
bank full height.
(ii) Map of Unit 1 follows:
[[Page 11218]]
[GRAPHIC] [TIFF OMITTED] TR28FE22.002
(7) Unit 2: Lower South Canadian River, Texas and Oklahoma.
(i) This unit consists of approximately 399.9 river miles (643.6
river kilometers) of unoccupied habitat in the lower portion of the
South Canadian River from the U.S. 83 bridge north of Canadian, Texas,
downstream to the U.S. 75 bridge northwest of Calvin, Oklahoma. Unit 2
includes river habitat up to bank full height.
(ii) Map of Unit 2 follows:
[[Page 11219]]
[GRAPHIC] [TIFF OMITTED] TR28FE22.003
(8) Unit 4: Cimarron River, Oklahoma.
(i) Unit 4 consists of approximately 275.3 river miles (443.1 river
kilometers) of unoccupied habitat in portions of the Ninnescah River
and the Arkansas River, originating at the border of Kansas and
Oklahoma, and extending downstream to OK 51 bridge northeast of Oilton,
Oklahoma. Unit 4 includes river habitat up to bank full height.
(ii) Map of Unit 4 follows:
[[Page 11220]]
[GRAPHIC] [TIFF OMITTED] TR28FE22.004
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-03703 Filed 2-25-22; 8:45 am]
BILLING CODE 4333-15-P
