[Federal Register: January 30, 1998 (Volume 63, Number 20)]
[Proposed Rules]               
[Page 4608-4613]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE56

Endangered and Threatened Wildlife and Plants; Proposal To 
Determine the Pecos Pupfish (Cyprinodon pecosensis) To Be an Endangered 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list 
the Pecos pupfish (Cyprinodon pecosensis) as an endangered species 
without critical habitat under authority of the Endangered Species Act 
of 1973, as amended (Act). The historical range of the Pecos pupfish 
included the mainstream Pecos River and various lakes, gypsum 
sinkholes, saline springs, and tributaries associated with the river 
from the vicinity of Roswell, Chaves County, New Mexico, downstream to 
the vicinity of Sheffield, Pecos County, Texas. The Pecos pupfish has 
been replaced by sheepshead minnow (C. variegatus) x Pecos pupfish 
hybrids throughout more than two-thirds of its historical range. The 
Pecos pupfish was declining prior to introduction of the sheepshead 
minnow, primarily as a result of competition and depredation by 
nonnative fish species, and habitat loss caused by such factors as 
water diversion, groundwater depletion, channelization, and watershed 
disturbance (Sublette et al. 1990, Minckley et al. 1991). This 
proposal, if made final, will implement Federal protection provided by 
the Act for the Pecos pupfish.

DATES: Comments from all interested parties must be received by March 
31, 1998. Public hearing requests must be received by March 16, 1998.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, Ecological Services Field Office, U.S. 
Fish and Wildlife Service, 2105 Osuna NE., Albuquerque, New Mexico 
87113. Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 

Supervisor, Ecological Services Field Office (Albuquerque) (see 
ADDRESSES section) (telephone 505/761-4525).



    The Pecos pupfish, described by Echelle and Echelle (1978), is a 
member of the family Cyprinodontidae. The taxonomic status of the Pecos 
pupfish had been uncertain for more than 30 years because of a previous 
description of a pupfish (Cyprinodon bovinus) from the Pecos River 
(Baird and Girard 1853). Type specimens from the Pecos River in the 
original series were lost or in poor condition, but were assumed to be 
the same as the Pecos pupfish until an extant population of C. bovinus 
was found at Leon Springs, Texas, and confirmed as different from the 
form in the Pecos River proper (Echelle and Miller 1974).
    The Pecos pupfish is a small, deep-bodied (2.8 to 4.6 centimeter 
(cm) (1.1 to 1.8 inch (in.)) standard length) gray-to-brown fish. Male 
dorsal and anal fins are black almost to the margin with no yellow on 
the dorsal, anal, or caudal fins. The lateral bars on the female are 
typically broken into blotches ventrolaterally. The abdomen is 
generally naked (i.e., without scales) except for a few scales in front 
of the pelvic fins and a patch just behind the gill membrane isthmus. 
There are 20 to 21 gill rakers, and usually 3 or 4 preorbital pores on 
each side of the head (Echelle and Echelle 1978).
    The Pecos pupfish is native to the Pecos River and its tributaries, 
and nearby lakes, sinkholes, and saline springs in New Mexico and 
Texas. The historical range of the species included the Pecos River 
from Bitter Lake National Wildlife Refuge and Bottomless Lakes State 
Park near Roswell, Chaves County, New Mexico, downstream approximately 
650 km (404 mi) to the mouth of Independence Creek, southeast of 
Sheffield, Pecos County, Texas (Wilde and Echelle 1992). It was also 
found in gypsum sinkholes and saline springs at Bitter Lake National 
Wildlife Refuge (including the Salt Creek Wilderness Area); sinkholes 
and springs at Bottomless Lakes State Park (Brooks and Woods 1988); and 
in Salt Creek, Reeves County, Texas.
    In Texas, genetically pure populations of the Pecos pupfish are now 
thought to occur only in the upper reaches of Salt Creek, Culberson and 
Reeves counties, Texas (Wilde and Echelle 1992) and, less probably, in 
2 water-filled gravel pits owned by the Phipps Gravel Company, in Pecos 
County 10.8 km (6.7 mi) west of Grandfalls, Texas. In New Mexico, the 
species still occurs in the Pecos River from north of Malaga upstream 
to Bitter Lake National Wildlife Refuge. It continues to survive in the 
Salt Creek Wilderness Area (North Tract) of Bitter Lake National 
Wildlife Refuge, where it is found in sinkholes, springs and Salt Creek 
(Brooks and Woods 1988, Sublette et al. 1990, Hoagstrom and Brooks 
1997). It is also found at Bottomless Lakes State Park. This range 
reduction represents a loss of more than two-thirds of the species' 
former range (Echelle and Connor 1989).

Previous Federal Actions

    In both the December 30, 1982, Review of Vertebrate Wildlife, 
Notice of Review (47 FR 58454); and the September 18, 1985, Review of 
Vertebrate Wildlife, Notice of Review (50 FR 37958), the Pecos pupfish 
was included as a category 2 species. Category 2 candidates were those 
species for which the Service had information indicating that listing 
may be warranted but for which it lacked sufficient information on 
status and threats to support issuance of proposed listing rules. 
However, based on new information from more recent surveys, the Pecos 
pupfish was identified as a Category 1 candidate in the January 6, 
1989, Animal Notice of Review (54 FR 554) and in the November 21, 1991, 
Animal Notice of Review (56 FR 58804). Category 1 candidates were those 
species for which the Service had on file sufficient information to 
support issuance of proposed listing rules. In the February 28, 1996, 
Candidate Notice of Review (61 FR 7596), the Service discontinued the 
designation of multiple categories of candidates, and only former 
category 1 species are now recognized as candidates for listing 
purposes. The Pecos pupfish remained as a candidate species in the 
February 28, 1996, Notice of Review (61 FR 7596) and in the September 
19, 1997, Notice of Review (62 FR 49398).

[[Page 4609]]

    Pre-proposal letters requesting comments and information were 
mailed to interested parties, including Federal, State, and local 
agencies, in June 1991 and again in March 1997. Responses were received 
to the 1991 request from three New Mexico State agencies, one Texas 
State agency, a national wildlife refuge, three Federal agencies, three 
scientific experts, and a county judge. One Federal agency, one State 
agency, two universities, and one environmental group responded to the 
1997 request. Where appropriate, the comments received were included in 
this proposed rule. A presentation of the current known status of the 
species was made at the Annual Meeting of the Pecos River Compact 
Commission on April 17, 1997.

Summary of Factors Affecting the Species

    Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations 
(50 CFR part 424) promulgated to implement the listing provisions of 
the Act set forth the procedures for adding species to the Federal 
lists. A species may be determined to be an endangered or threatened 
species due to one or more of the five factors described in section 
4(a)(1). These factors and their application to the Pecos pupfish 
(Cyprinodon pecosensis) are as follows:

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

    Historical habitat of the Pecos pupfish in New Mexico has been 
drastically altered or destroyed by human uses of the Pecos River and 
activities in its watershed. These alterations include: conversion of 
flowing waters into slack waters by impoundment; alteration of flow 
regimes (including conversion of perennial flow to intermittent or no 
flow, and the reduction, elimination, or modification of natural 
flooding patterns); alteration of silt and bed loads; loss of marshes 
and backwaters; increases or decreases in water temperatures; and 
alteration of stream channel characteristics from well-defined, surface 
level, heavily vegetated channels with a diversity of substrates and 
habitats, to deeply cut unstable arroyos with little riparian 
vegetation, uniform substrate, and little habitat diversity. Causes of 
such alterations include: water diversion, damming, channelization, 
channel down-cutting, excessive groundwater pumping with resultant 
lowering of water tables, destruction of riparian vegetation, and other 
watershed disturbances. These ongoing changes in habitat conditions, 
along with displacement of the species by hybrids, threaten the 
survival of the Pecos pupfish throughout its entire range (Wilde and 
Echelle 1992).
    Low velocity floodplain habitats adjacent to the main channel of 
the Pecos River provide refugia for the small Pecos pupfish from high 
flows in the main channel. These habitats are also characterized by 
higher levels of productivity and more stable food sources for the 
omnivorous pupfish. However, channelization and stream incision of the 
Pecos River, exacerbated by encroachment and channel armoring by salt 
cedar, have eliminated extensive floodplain habitat along the Pecos 
River. Wetlands and marshes adjacent to the river, once regularly 
flooded by peak river flows, are now dry or are only sporadically 
wetted. Reduction of base flows also occurred as a result of dam 
construction and reservoir operation, greatly reducing the number and 
extent of these habitats linked to the main river channel. The 
continuing loss of these floodplain habitats is a significant threat to 
the Pecos pupfish.
    Pecos pupfish living in sinkholes and springs are threatened by 
groundwater depletion. In southeastern New Mexico, groundwater is the 
primary water source for a variety of uses, including drinking water 
and irrigation. This dependence on groundwater has lowered the water 
tables, resulting in a decline in water levels in sinkholes and springs 
where Pecos pupfish live. When the water table was higher, water flowed 
between sinkholes; because the water table has been lowered, these 
sinkholes are no longer interconnected (Lee Marlatt, U.S. Fish and 
Wildlife Service, Bitter Lake National Wildlife Refuge, pers. comm. 
1987). Because they are isolated from the river which is inhabited by 
sheepshead minnows, sinkhole populations of Pecos pupfish are more 
protected from the threat of hybridization than are river populations. 
Because sinkhole populations are more protected from the threat of 
hybridization, the loss of these populations would seriously affect the 
survival of the species.

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

    The Service is unaware of threats to the species from these 
factors. Pecos pupfish may occasionally be collected as bait by anglers 
and as specimens for scientific study, but these uses probably have a 
negligible effect on total population numbers.

C. Disease or Predation

    The Service is unaware of threats to the species from disease. 
Sinkholes that support introduced game fish have lower numbers of 
pupfish than sinkholes without game fish (Echelle and Echelle 1978). As 
the Pecos pupfish population is impacted by habitat loss and 
degradation and refugia become scarce, predation may become a more 
important threat.

D. The Inadequacy of Existing Regulatory Mechanisms

    New Mexico State law provides limited protection for the Pecos 
pupfish. The State of New Mexico lists the Pecos pupfish as a 
threatened species. Threatened species, as defined by the State of New 
Mexico, are those species ``* * * whose prospects of survival or 
recruitment within the State are likely to be in jeopardy within the 
foreseeable future.'' This designation provides the protection of the 
New Mexico Wildlife Conservation Act (sections 17-2-37 through 17-2-46) 
and prohibits taking of such species except under the issuance of a 
scientific collecting permit. The State also has a limited ability to 
protect the habitat of the species through the Habitat Protection Act 
(sections 17-6-1 through 17-6-11) and through water quality statutes 
and regulations. The species' habitat is also protected tangentially 
through a provision of the Habitat Protection Act (section 17-4-14) 
which makes it illegal to de-water areas used by game fish.
    New Mexico water law does not include provisions for the 
acquisition of instream water rights for protection of fish and 
wildlife and their habitat. Thus, there are no opportunities for 
protection of Pecos pupfish habitat in New Mexico through acquisition 
of water rights to maintain instream flows.
    The Pecos pupfish was listed as threatened by the State of Texas on 
March 1, 1987. The State prohibits taking, possessing, and transporting 
State-listed species or goods made from such species (Texas Parks and 
Wildlife Code, section 68.015 (1975)). However, State-listing in Texas 
provides no protection for the habitat of listed species.
    State regulations in New Mexico and Texas allow for the use of live 
bait in the Pecos River in areas containing the Pecos pupfish. This has 
encouraged the spread of detrimental species, specifically the 
sheepshead minnow, which replaces and/or hybridizes with the Pecos 
pupfish (see factor E).
    Although both New Mexico and Texas provide protection against 
taking of the Pecos pupfish by virtue of State listing of the species, 
neither State provides sufficient protection to the aquatic habitat of 
the Pecos pupfish, and neither prohibits the introduction or spread of

[[Page 4610]]

such detrimental species as the sheepshead minnow.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The primary cause for the recent (post 1980) range reduction of 
Pecos pupfish is the introduction of the sheepshead minnow, a species 
once confined to shallow, brackish, coastal waters of the Gulf and 
Atlantic coasts of the continental United States. The two Cyprinodon 
species appear to have little in the way of premating isolating 
mechanisms and readily hybridize (Cokendolpher 1980). Hybridization 
with and/or replacement by the sheepshead minnow poses a major threat 
to the Pecos pupfish. The sheepshead minnow was introduced into the 
Pecos River, probably in the vicinity of Pecos, Texas, sometime between 
1980 and 1984. Sheepshead minnow x Pecos pupfish hybrids have since 
moved upstream and downstream at a rapid pace despite the presence of 
six irrigation diversion dams. The spread of hybrids has occurred both 
naturally and presumably through ``bait bucket'' introductions.
    By 1984, surveys at four sites along the Pecos River below Red 
Bluff Reservoir, Texas, revealed evidence of hybridization between the 
Pecos pupfish and sheepshead minnow (Echelle 1985). In the vicinity of 
Pecos, Texas, the Pecos pupfish had been entirely replaced by 
sheepshead minnow x Pecos pupfish hybrids. At sites ranging from 50 km 
(31 mi) further upstream to 250 km (156 mi) downstream, evidence of 
hybridization was still apparent, though less pronounced (Echelle and 
Connor 1989).
    Surveys in 1986 found the presence of genetic markers for 
sheepshead minnows in pupfish from Red Bluff Reservoir, New Mexico 
(Wilde and Echelle 1992). The introduction of sheepshead minnows into 
Red Bluff Reservoir means that genetically pure populations of Pecos 
pupfish south of Malaga, New Mexico (including the entire Texas 
population in the Pecos River), have been or probably will be 
eliminated except in areas not connected to the river or where 
effective fish barriers prevent access to habitat now occupied by the 
pupfish. In 1995, hybrids were taken from the Pecos River near the 
Loving Bridge (Eddy County), New Mexico, which is upstream of the pure 
pupfish population at Malaga Bend (Hoagstrom and Brooks, 1995).
    The purity of the pupfish populations in Salt Creek, Texas, and in 
the abandoned gravel pits near Grandfalls, Texas, is unknown. Both 
populations occur on privately owned lands, and surveys have not been 
conducted on these lands since 1989. Because the gravel pits are close 
to the Pecos River and because hybrids occur in that portion of the 
river, the gravel pit populations may not be genetically pure.
    The northward expansion of sheepshead minnow x Pecos pupfish 
hybrids had reduced the range of the Pecos pupfish by approximately 60 
percent by the late 1980's (Wilde and Echelle 1992). Subsequent 
expansion of the hybrids into the Pecos River upstream from Red Bluff 
Reservoir has further constricted the range of the pupfish. Genetically 
pure populations of Pecos pupfish may now occur only in off-channel 
habitats. The river populations are most susceptible to replacement by 
and/or hybridization with sheepshead minnow. However, the sinkhole 
populations are also considered vulnerable to hybridization due to the 
possibility of anglers releasing sheepshead minnows into sinkholes.
    Sinkhole, lake, and spring populations may also be susceptible to 
introductions of exotic fish species during periods of river flooding. 
Flood waters have inundated sinkholes and springs and could allow 
exotic species, including the sheepshead minnow, to access these 
otherwise isolated sites.
    Large scale fish kills caused by algal blooms occurred in the Pecos 
River, Texas, in 1985 and 1986 (Rhodes and Hubbs 1992). Such algal 
blooms may affect the Pecos pupfish (Rhodes and Hubbs 1992).
    Other threats to the Pecos pupfish include nonnative fish 
introductions and piscicide applications. Anglers interested in 
developing sport fisheries in sinkholes apply piscicides to remove 
unwanted fish species prior to introducing sport fish. Such 
manipulation, although conducted in compliance with State laws, can 
adversely affect or eliminate Pecos pupfish populations.
    Oil spills from pipelines into Salt Creek in Texas have occurred 
and represent an ongoing threat to water quality and Pecos pupfish 
    The Service has carefully reviewed the status of the species and 
assessed the best scientific and commercial information available 
regarding the past, present, and future threats faced by this species 
in determining to propose this rule. Based on this evaluation, the 
preferred action is to list the Pecos pupfish as endangered. The 
species has experienced a large population decline and great reduction 
of its range. This species is in danger of becoming extinct throughout 
all or a significant portion of its range. Threatened status would not 
accurately reflect the population decline, vulnerability, and imminent 
threats to this species. Critical habitat is not being proposed for the 
reasons discussed below.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection and; (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
needed to bring the species to the point at which listing under the Act 
is no longer necessary.
    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
the Secretary designate critical habitat at the time the species is 
determined to be endangered or threatened. The Service finds that 
designation of critical habitat is not prudent for the Pecos pupfish at 
this time. Service regulations (50 CFR 424.12(a)(1)) state that 
designation of critical habitat is not prudent when one or both of the 
following situations exist--(1) The species is threatened by taking or 
other human activity, and identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    Critical habitat receives consideration under section 7 of the Act 
with regard to actions carried out, authorized, or funded by a Federal 
agency (see Available Conservation Measures section). As such, 
designation of critical habitat may affect activities on Federal lands 
and may affect activities on non-Federal lands where such a Federal 
nexus exists. Under section 7 of the Act, Federal agencies are required 
to ensure that their actions do not jeopardize the continued existence 
of a species or result in destruction or adverse modification of 
critical habitat. However, both jeopardizing the continued existence of 
a species and adverse modification of critical habitat have similar 
standards and thus similar thresholds for violation of section 7 of the 
Act. In fact, biological opinions that conclude that a Federal agency 
action is

[[Page 4611]]

likely to adversely modify critical habitat but not jeopardize the 
species for which the critical habitat has been designated are 
extremely rare. Also, the designation of critical habitat for the 
purpose of informing Federal agencies of the locations of occupied 
Pecos pupfish habitat is not necessary because the Service can inform 
Federal agencies through other means. For these reasons, the 
designation of critical habitat for the Pecos pupfish would provide no 
additional benefit to the species beyond that conferred by listing, and 
therefore, such designation is not prudent.
    Occupied habitat for the Pecos pupfish occurs adjacent to and on 
the Bitter Lake National Wildlife Refuge and the Bureau of Land 
Management's (BLM) Bottomless Lakes Waterfowl Management Area. Because 
these occupied habitats are well known to the managers of these Federal 
lands, no adverse modification of this habitat is likely to occur 
without consultation under section 7 of the Act. Because of the small 
size of the species' current range, any adverse modification of the 
species' critical habitat would also likely jeopardize the species' 
continued existence. Designation of critical habitat for the Pecos 
pupfish on Federal land, therefore, is not prudent because it would 
provide no additional benefit to the species beyond that conferred by 
    Because the aquatic habitat of the Pecos pupfish is considered 
``waters of the United States'' under section 404 of the Clean Water 
Act, alteration of this habitat on private land may be regulated by the 
Army Corps of Engineers (COE) and may require consultation under 
section 7 of the Act. Certain other activities causing direct or 
indirect effects to habitat on private lands also may involve a Federal 
agency action. Although there may be COE or other Federal involvement 
requiring consultation for activities occurring in the species' habitat 
on private lands, because of the small size of the species' current 
range, any consultation which would result in a finding that the 
activity causes adverse modification of the species' critical habitat 
would also likely result in a finding that the activity jeopardizes the 
species' continued existence. Designation of critical habitat for the 
Pecos pupfish on private land, therefore, is not prudent because it 
would provide no additional benefit to the species beyond that 
conferred by listing.
    Protection of the habitat of the Pecos pupfish will be addressed 
through the section 4 recovery process and the section 7 consultation 
process. The Service believes that activities involving a Federal 
action which may affect the Pecos pupfish can be identified without 
designating critical habitat by providing Federal agencies with 
information on the locations of occupied habitats and information on 
the kinds of activities which could affect the species. For the reasons 
discussed above, the Service finds that the designation of critical 
habitat for the Pecos pupfish is not prudent.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States and requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against taking and harm are 
discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer 
informally with the Service on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into formal consultation with the Service.
    Activities which may involve a Federal agency action and which may 
require conference and/or consultation as described in the preceding 
paragraph include: ground water pumping which can lower the water level 
in occupied sinkholes and springs; water diversion which dries streams; 
and other activities which cause habitat destruction or degradation 
including water quality degradation.
    Lands along the Pecos River and tributaries are primarily privately 
owned. However, small areas of BLM land exist along the Pecos River 
between Fort Sumner and Roswell, New Mexico, and a short segment of the 
Pecos River flows through the Bitter Lake National Wildlife Refuge. 
Activities on private lands which may affect the Pecos pupfish or its 
habitat and which involve a Federal agency action require conference 
and/or consultation. Activities on BLM, Service, or other Federal lands 
which may affect the Pecos pupfish or its habitat also require 
conference and/or consultation.
    Water use in the Pecos River basin is regulated by the States of 
New Mexico and Texas in accordance with the Pecos River Compact 
(Compact), a Congressionally approved agreement addressing allocation 
of water between New Mexico and Texas. The U.S. Bureau of Reclamation 
(BR) and the COE operate dams on the river, and thereby regulate flows, 
in accordance with the Compact. The operation of dams by the BR and COE 
requires conference and/or consultation.
    Additionally, other Federal agency actions along the Pecos River 
that may require conference and/or consultation include: Environmental 
Protection Agency authorization of discharges under the National 
Pollutant Discharge Elimination System (NPDES) and registration and 
regulation of pesticides; Federal Highway Administration involvement in 
road and bridge construction and maintenance; BLM issuance of grazing 
permits and oil and gas leases; COE authorization of discharges of 
dredged or fill material into waters of the United States under section 
404 of the Clean Water Act (e.g., authorization of oil, gas, and water 
pipeline construction); U.S. Department of Agriculture (USDA) Animal 
and Plant Health Inspection Service programs (e.g., Rangeland 
Grasshopper Cooperative Management); USDA Natural Resources 
Conservation Service projects and technical assistance programs; USDA 
Farm Service Agency programs (e.g., financial assistance for certain 
irrigation projects); and the Department of Housing and Urban 
Development's Small Cities Community Development Block Grant program.
    The Act and its implementing regulations found at 50 CFR 17.21 set 
forth a series of general trade prohibitions and exceptions that apply 
to all endangered wildlife. These prohibitions, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to take (includes harass, harm, pursue, hunt, shoot,

[[Page 4612]]

wound, kill, trap, or collect; or to attempt any of these), import or 
export, ship in interstate commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. It also is illegal to possess, sell, deliver, 
carry, transport, or ship any such wildlife that has been taken 
illegally. Certain exceptions apply to agents of the Service and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, and/or for incidental take in 
connection with otherwise lawful activities.
    It is the policy of the Service (July 1, 1994, 59 FR 34272) to 
identify to the maximum extent practicable those activities that would 
or would not constitute a violation of section 9 of the Act at the time 
of listing. The intent of this policy is to increase public awareness 
of the effect of listing on proposed or ongoing activities. The Service 
believes that, based on the best available information, the following 
actions will not result in a violation of section 9, provided these 
activities are carried out in accordance with any existing regulations 
and permit requirements:
    1. Livestock grazing which does not destroy or significantly 
degrade occupied Pecos pupfish habitat.
    2. Groundwater pumping in areas where the groundwater is not 
connected to riverine or sinkhole habitats occupied by Pecos pupfish.
    3. Oil and gas exploration and drilling in areas where surface or 
groundwater is not connected to habitats occupied by Pecos pupfish.
    The following activities would likely violate section 9 of the Act:
    1. Livestock grazing which causes destruction or significant 
degradation of occupied Pecos pupfish habitat.
    2. Stocking of piscivorous fish or introduction of sheepshead 
minnows into habitat occupied by Pecos pupfish or into waters which are 
connected to, or which during high flows become connected to, habitat 
occupied by Pecos pupfish.
    3. Pumping of groundwater which causes a significant reduction in 
the quantity or quality of water in areas occupied by Pecos pupfish.
    4. Channelization or other activities which cause dewatering of 
habitats occupied by the Pecos pupfish.
    5. Activities which cause significant degradation of surface water 
or groundwater quality of habitat occupied by the Pecos pupfish.
    The term ``significant degradation of habitat'' as used in the 
descriptions of activities above, is that amount of degradation which 
causes ``take'' of Pecos pupfish. Not all of the activities mentioned 
above will result in violation of section 9 of the Act; only those 
activities which result in ``take'' of Pecos pupfish are considered 
violations of section 9. Contacts have been identified to assist the 
public in determining whether a particular activity would be prohibited 
under section 9 of the Act. In New Mexico, contact the Field 
Supervisor, Ecological Services Field Office (Albuquerque) (see 
ADDRESSES section). In Texas, contact the Field Supervisor, Ecological 
Services Field Office, 10711 Bernet Road, Suite 200, Hartland Bank 
Building, Austin, Texas 78758, (512/490-0057).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this species;
    (2) The location of any additional populations of this species and 
the reasons why any habitat should or should not be determined to be 
critical habitat as provided by section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of this species;
    (4) Current or planned activities in the subject area and their 
possible impacts on this species, and;
    (5) Any other information related to the status of, or threats to, 
the Pecos pupfish.
    Final promulgation of the regulation on this species will take into 
consideration the comments and any additional information received by 
the Service, and such communications may lead to a final regulation 
that differs from this proposal.
    The Endangered Species Act provides for a public hearing on this 
proposal, if requested. Requests must be received within 45 days of the 
date of publication of the proposal. Such requests must be made in 
writing and addressed to the Field Supervisor, Ecological Services 
Field Office (Albuquerque) (see ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that an Environmental 
Assessment, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Act. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

    This rule does not contain collections of information that require 
approval by the Office of Management and Budget under 44 U.S.C. 3501 et 

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Service's Ecological Services Field 
Office (Albuquerque) (see ADDRESSES section).

    Author: The primary author of this proposed rule is Jennifer 
Fowler-Propst (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, it is hereby proposed to amend part 17, subchapter B 
of chapter I, title 50 of the Code of Federal Regulations, as set forth 


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

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

    2. Amend section 17.11(h) by adding the following, in alphabetical 
order under ``Fishes,'' to the List of Endangered and Threatened 
Wildlife to read as follows:

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 4613]]

                        Species                                                    Vertebrate                                                           
--------------------------------------------------------                        population where                                  Critical     Special  
                                                            Historic range       endangered or         Status      When listed    habitat       rules   
           Common name                Scientific name                              threatened                                                           
                   *                  *                  *                  *                  *                  *                  *                  
Pupfish, Pecos...................  Cyprinodon            USA (NM, TX).......  Entire.............  E               ...........           NA           NA
                   *                  *                  *                  *                  *                  *                  *                  

    Dated: January 21, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-2273 Filed 1-29-98; 8:45 am]