[Federal Register: March 30, 1998 (Volume 63, Number 60)]
[Proposed Rules]               
[Page 15152-15158]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AE85

Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for the Cowhead Lake Tui Chub

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to 
determine the Cowhead Lake tui chub (Gila bicolor vaccaceps), to be an 
endangered species under the authority of the Endangered Species Act of 
1973, as amended (Act). The Cowhead Lake tui chub is a fish that is 
found only in Cowhead Slough and connected ditches within the bed of 
Cowhead Lake in extreme northeastern Modoc County, California. This 
subspecies is threatened throughout its range by a variety of human 
impacts, including the dewatering of Cowhead Lake, livestock grazing, 
agricultural activities, and by random naturally occurring events. This 
proposal, if made final, would implement Federal protection provided by 
the Act. The Service seeks data and comments from the public on this 

DATES: Comments from all interested parties must be received by May 29, 
1998. Public hearing requests must be received by May 14, 1998.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, Sacramento Fish and Wildlife Service 
Office, U.S. Fish and Wildlife Service, 3310 El Camino Avenue, Suite 
130, Sacramento, California 95821-6340. Comments and materials received 
will be available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Wayne S. White, Field Supervisor, 
at the above address (telephone 916/979-2710).



    The Cowhead Lake tui chub was first recognized as a distinct 
subspecies by Hubbs and Miller (1948) and was first described by Bills 
and Bond (1980). The following morphological description is taken from 
Bills and Bond (1980) and Moyle et al. (1989). The Cowhead Lake tui 
chub is a small fish in the minnow family (Cyprinidae) approximately 
85-115 millimeters (3-4.5 inches) from the nose to the middle of the 
tail and is distinguished from the other subspecies of tui chub by the 
number of gill rakers (bony projections in the gills). Coloration is 
silver like other subspecies of tui chub, except for a dark lateral 
stripe and dark speckles scattered on the cheek, operculum (area behind 
the eye) and lower body. The pectoral fins usually exhibit a row of 
melanophores (cells containing dark pigment) along the anterior rays 
and a few specimens have exhibited a concentration of pigment on the 
pelvic and anal fins. There have been no formal studies on the life 
history or habitat of the Cowhead Lake tui chub. The following 
information refers to tui chubs in general and is taken from Moyle 
    Tui chubs occur in a wide variety of habitats, most commonly in the 
weedy shallows of lakes and quiet waters in sluggish rivers. They do 
well in a wide variety of water conditions from warm to cold, and clear 
to eutrophic. In the fall they seek out deeper water and may spend 
winters in a semi-dormant state on the bottom of lakes. Tui chubs are 
opportunistic omnivores concentrating on invertebrates associated with 
bottom or aquatic plants (i.e., clams, insect larvae, insects, 
crayfish) as well as algae and plant material. Tui chub usually spawn 
from late April to late June; eggs adhere to plants or the bottom and 
hatch in 9 days. In large deep lakes, tui chubs tend to form large 
schools in shallow water frequently associated with beds of aquatic 
vegetation. In shallow lakes, with heavy aquatic growth, schooling is 
less noticeable. Tui chubs tend to disperse amongst the vegetation 
presumably as protection from predators. Tui chubs appear to be able to 
adapt to the severe long and short-term climatic fluctuations 
characteristic of the interior basins where they are most common. The 
family Cyprinidae in general has been successful because they have a 
well-developed sense of hearing, release a fear scent when injured (a 
warning signal to others), have pharyngeal teeth (broader diet), and 
exhibit high fecundity. Despite these advantages, many native minnows 
are declining in numbers as their environment deteriorates beyond their 
ability to cope with the changes or they are displaced by more 
aggressive introduced species.
    Cowhead Lake tui chub are found in the vicinity of Cowhead Lake, a 
Pleistocene lake in the extreme northeastern corner of Modoc County, 
California, in an area known as the Modoc Plateau. The Modoc Plateau 
consists of molten basalt that formed approximately 70 million years 
ago (Young et al. 1988). The area is characterized by lava rims, upland 
plateaus, lava flows and tubes, ancient pluvial lake beds and large-
volume springs, and shallow soils (Young et al. 1988). Volcanic rock is 
porous, therefore, most of the rainfall percolates through into the 
groundwater. Surface water is minimal, but rainfall and snowmelt in the 
mountains feed the groundwater, which surfaces as springs. The habitat 
type is sagebrush steppe, which is generally a treeless, shrub-
dominated community characterized by sagebrush (Artemesia species) with 
perennial bunch grasses in the understory and some juniper pine (Young 
et al. 1988). The area is characterized by cold, harsh winters, dry 
summers, and low rainfall.
    The lakebed of Cowhead Lake is approximately 1,100 hectares (2,700 
acres) based on assessors maps (Modoc County, California, Jan. 1982), 
with an elevation of 1,597 meters (5,241 feet). Historically, Cowhead 
Lake and Cowhead Slough are thought to have been marsh habitat, based 
on the soil type. In its natural state the lake's water levels were 
probably variable. This habitat type would have retained and stored its 
water, slowly discharging it via Cowhead Slough to Twelvemile Creek and 
on into the Warner Basin (Roger Farschon, Bureau of Land Management 
(BLM), pers. comm., 1997a). Cowhead Slough and Cowhead Lake are fed 
mainly by snowmelt runoff and springs via Eightmile Creek and other 
smaller tributaries from the Warner Mountains. There may also be 
several faults at the upper end of the slough that provide subsurface 
flow (Sato in litt. 1992). Historically the lake was probably shallow 
and naturally dried up on occasion (Peter Moyle, University of 
California, Davis, pers. comm., 1997). Approximately 40 percent of the 
lakebed occurs on private land and 60 percent of the lakebed has 
unknown title based on a title search done in 1997 (Modoc County Title 
Co. in litt. 1997). The lake went dry sometime in the 1930's. Since the 
drought ended, and continuing up to the present day, the lake has been 
mechanically pumped dry so that the lakebed could be used to grow hay. 
There is a series of irrigation ditches, two reservoirs on nearby 
creeks, and a mechanical pumping system, which

[[Page 15153]]

have modified the hydrology of the Cowhead basin.
    Cowhead Lake tui chub were found in a spring and a reservoir 
adjacent to Cowhead Lake (Miller 1939), in irrigation ditches within 
Cowhead Lake (Sato in litt. 1993), and in Cowhead Slough (Moyle in 
litt. 1974, Sato in litt. 1992 and 1993, Olson in litt. 1997, Jack 
Williams, BLM, pers. comm., 1997). The entire current estimated range 
of this species is approximately 5.4 kilometers (3.4 miles) of Cowhead 
Slough and connected ditches within the bed of Cowhead Lake. 
Approximately one half of the range is on public land managed by the 
Bureau of Land Management (BLM). The other half of the range is on land 
that has been managed by private ownership since the 1950's. However, 
the Service has not been able to locate documentation of title in the 
public records to support this assumption. This portion of the tui 
chub's range will be referred to as private land in this proposed rule, 
but the Service is not currently clear on the ownership of this portion 
of the species range.
    There are no population estimates available for the Cowhead Lake 
tui chub. Surveys in the lake bed and adjacent springs and reservoirs 
on private lands have been limited because access has been restricted. 
Surveys on adjacent BLM land have focused on distribution and not 
estimating population numbers.

Previous Federal Action

    On December 30, 1982, the Service published a revised notice of 
review for vertebrate wildlife in the Federal Register (47 FR 58454) 
designating the Cowhead Lake tui chub as a category 2 candidate. 
Category 2 was composed of taxa for which the Service had information 
indicating that threatened or endangered status might be warranted, but 
for which adequate data on biological vulnerability and threats were 
not available to support issuance of listing proposals. As a result of 
additional information obtained, the Service reclassified the Cowhead 
Lake tui chub as a category 1 candidate in the November 21, 1991, 
notice of review (56 FR 58804). The Cowhead Lake tui chub was included 
as a candidate in the February 28, 1996 (61 FR 7596), and September 19, 
1997 (62 FR 49398), notices of review.
    The processing of this proposed rule conforms with the Service's 
final listing priority guidance for fiscal year 1997, published in the 
Federal Register on December 5, 1996 (61 FR 64475). In a Federal 
Register notice published on October 23, 1997 (62 FR 55628), the 
guidance was extended beyond fiscal year 1997. The fiscal year guidance 
clarifies the order in which the Service will process rulemakings 
following two related events: (1) The lifting on April 26, 1996, of the 
moratorium on final listings imposed on April 10, 1995 (Pub. L. 104-6), 
and (2) the restoration of significant funding for listing through 
passage of the Omnibus Budget Reconciliation Act on April 26, 1996, 
following severe funding constraints imposed by a number of continuing 
resolutions between November 1995 and April 1996. Based on biological 
considerations, this guidance establishes a ``multi-tiered approach 
that assigns relative priorities, on a descending basis, to actions to 
be carried out under section 4 of the Act'' (61 FR 64479). The guidance 
calls for giving highest priority to handling emergency situations 
(Tier 1) and second highest priority (Tier 2) to resolving the listing 
status of the outstanding proposed listings. Tier 3 includes the 
processing of new proposed listings for species facing high magnitude 
threats. This proposed rule for the Cowhead Lake tui chub falls under 
Tier 3. The guidance states that ``effective April 1, 1997, the Service 
will concurrently undertake all of the activities presently included in 
Tiers 1, 2, and 3'' (61 FR 64480). The Service has thus begun 
implementing a more balanced listing program, including processing more 
Tier 3 activities. The completion of this Tier 3 activity (a proposal 
for a species with a listing priority of 3 (high-magnitude, imminent 
threats)) follows those guidelines.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal lists. A species may be determined to 
be endangered or threatened due to one or more of the five factors 
described in section 4(a)(1). These factors and their application to 
the Cowhead Lake tui chub are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The historic range of the Cowhead 
Lake tui chub is thought to be Cowhead Lake, when it retained water, 
and the springs and low gradient portions of the creeks draining into 
Cowhead Lake (P. Moyle, pers. comm., 1997; USDI 1997). The lake was 
probably shallow and dried up naturally on occasion, periodically 
confining Cowhead Lake tui chub to the streams and springs (P. Moyle, 
pers. comm. 1997). The lakebed itself is 1,100 hectares (2,700 acres) 
with a topographic gradient of 0 to 5 meters (0 to 16 feet) (based on 
topographic measurements on a 1990 USGS 7.5 minute quadrangle map). The 
surface flow of water is naturally highly variable in this volcanic, 
high desert area. The amount of suitable aquatic habitat for this 
species may vary from year to year based on the water supply. It is 
unclear precisely what role the tributary springs and creeks currently 
play in the life history of Cowhead Lake tui chub. It is also unknown 
what the impact of flooding was when the lakebed was in its natural 
    The diversion of water from Cowhead Lake has eliminated 
approximately 98 percent of the Cowhead Lake tui chub's historical 
range and is a threat to the Cowhead Lake tui chub. Before the turn of 
the century a water diversion ditch (Peterson ditch) was built in the 
Warner mountains west of Cowhead Lake, which diverts water from 
Twelvemile Creek and possibly from Eightmile Creek into Surprise 
Valley, southwest of Cowhead Lake (R. Farschon, pers. comm., 1997a). 
Another ditch was built in the 1910's (Sato in litt. 1992) on the 
Schadler property that appears to divert water from Peterson ditch into 
Eightmile Creek. In the 1930's the lake went dry and ranchers started 
growing hay in the lakebed. When the drought ended, the connection 
between Cowhead Lake and Cowhead Slough was dredged so that the lake 
would stay drained to permit continued hay production. Cowhead Slough 
was dredged 1-1.5 meters (3-5 feet) deep from the lakebed north to the 
edge of public BLM lands (R. Farschon, 1997a). In the 1960's a 
privately owned reservoir was built on Eightmile Creek to allow 
controlled irrigation to two pastures. This water is ultimately 
collected in a ditch in the lakebed, which runs into Cowhead Slough. 
Barrel Springs (2 miles to the southeast of Cowhead lake) and its 
associated tributaries used to contribute water to Cowhead Lake until 
its water flow was diverted for agricultural uses. Currently the 
seasonal waters from the Barrel Springs area drain to the northeast of 
the lake and into Cowhead Slough. The lake usually holds some water 
during the wet season before pumping begins in the spring. In the mid-
1980's and in 1997 there was enough water to fill the lake. Beginning 
around April each year, water in Cowhead Lake is actively pumped into 
Cowhead Slough and as a result no water remains in the lakebed outside 
of the ditches. The historical shallow-water marsh habitat is now 
maintained as irrigated pasture.

[[Page 15154]]

    The current distribution of Cowhead Lake tui chub, based on recent 
surveys (1992 to 1997), is in various pools in Cowhead Slough and in 
connected ditches within the bed of Cowhead Lake from approximately 1 
kilometer (0.5 mile) north of the confluence of Elevenmile Creek to the 
irrigation ditch in the lakebed of Cowhead Lake, approximately 5.4 
kilometers (3.4 miles). Cowhead Lake tui chub have been observed 
feeding and hiding in filamentous mats of algae in the slough (Sato in 
litt 1993). Mats of Ranunculus also appear to provide cover for young 
of the year in the slough (Sato in litt 1993). Cowhead Slough consists 
of a series of pools (95 percent) and riffles (5 percent) which wind 
through a lava canyon approximately 50 meters (164 feet) wide and 
approximately 6.4 kilometers (4 miles) long. The size of the water 
course itself is far narrower than the canyon and varies according to 
the amount of runoff and snowmelt each year. The slough ranges from 1-2 
meters (4-6 feet) wide (Ken Sanchez, USFWS, pers. comm., 1997) to a 
trickle, with large pools up to 10 meters (33 feet) wide, 50 meters 
(164 feet) long and 1 meter (3 feet) deep (Moyle in litt 1974). In the 
mid-1980's pools were reported to be up to 2 meters (6.5 feet) deep due 
to heavy precipitation in those years (Sato in litt. 1992). Moyle et 
al. (1989) reported the bottom of the channel as 80 percent mud, 5 
percent sand, and 15 percent boulder/bedrock with abundant rooted and 
floating vegetation, but little overhanging canopy cover. According to 
Sato (in litt. 1993) the upper end of the slough above the pump on 
private land has more riparian habitat (willows) and more perennial 
water than the rest of slough. There is also a difference in topography 
between the private and public sections of the slough. The private land 
has a steeper gradient, more cobbles and boulders, deeper pools, and 
more open water than the reaches on public lands. These factors may 
account for why there appear to be more Cowhead Lake tui chub in 
Cowhead Slough on the private land. It has also been hypothesized that 
as the slough dries up annually, the fish move upstream to the more 
perennial water.
    The banks of Cowhead Slough contain mostly short-cropped annual 
grasses with minimal riparian vegetation (Sato in litt. 1992). The 
water has been reported as muddy and turbid during surveys from 
possible erosion of the slough banks caused primarily by cattle grazing 
and from drainage of ephemeral streams into the slough (Moyle in litt. 
1974, Sato in litt. 1992). Cowhead Slough and the ditches in the 
lakebed are within either public or private grazing allotments, which 
are actively grazed (R. Farschon, pers. comm., 1997b). The lack of 
riparian habitat can reduce the amount of water retained in the slough 
later in the year (Sato in litt. 1993). The degradation of water 
quality can reduce oxygen levels, visibility and prey abundance for the 
Cowhead Lake tui chub.
    Prior to being drained the lake is thought to have contained the 
majority of the Cowhead Lake tui chub population. Currently the 
population appears to be restricted to Cowhead Slough and connected 
ditches within the lake bed, which have been severely altered from 
their natural condition. The entire population occurs in one connected 
drainage within a very confined area 5.4 kilometers (3.4 miles), and 
there are no additional refugial populations. Protection of the habitat 
within this very limited range is required to conserve the Cowhead Lake 
tui chub. Further loss of habitat from agricultural modifications is a 
threat to the continued existence of the Cowhead Lake tui chub.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. The Cowhead Lake tui chub has not been documented 
as a commercial or recreational fish species. It has been little 
studied and there are only a handful of documented collections. This 
factor is not considered a threat to the existence of the Cowhead Lake 
tui chub.
    C. Disease or predation. Aquatic snakes and birds are likely 
predators of Cowhead Lake tui chub. This species is most vulnerable to 
predation during drought periods when much of the drainage dries up and 
Cowhead Lake tui chub are concentrated in smaller pools. The only other 
species detected in Cowhead Lake tui chub habitat are speckled dace 
(Rhinichthys osculus) and an occasional trout, which do not appear to 
pose a threat to the Cowhead Lake tui chub. Introduction of nonnative 
fish, game fish, or other tui chubs could harm the Cowhead Lake tui 
chub through increased competition, predation, and hybridization. There 
have been no documented instances of disease adversely affecting the 
Cowhead Lake tui chub. If a disease were introduced, the tui chub 
population would be at great risk because of its small size and 
confined range.
    D. The inadequacy of existing regulatory mechanisms. Currently 
there are no regulatory mechanisms that specifically protect the 
Cowhead Lake tui chub or its habitat. The current documented range of 
the Cowhead Lake tui chub is approximately 50 percent on private land 
and 50 percent on public land. It appears that the majority of the 
population occurs on private land where there is more perennial water. 
The Cowhead Lake tui chub is considered a species of special concern by 
CDFG as Class 1: Endangered. This designation indicates that the 
species meets the State definition to qualify for official listing, but 
is not officially listed yet. The Federal status of the Cowhead Lake 
tui chub is as a candidate species (see section on Previous Federal 
Action). There is currently no regulatory authority vested in either 
the State or Federal designations that offers protection or appropriate 
management for this species. This lack of adequate regulatory 
protection is a threat to the existence of the Cowhead Lake tui chub.
    The National Environmental Policy Act (NEPA) and section 404 of the 
Clean Water Act (CWA) represent the primary Federal laws that could 
potentially afford some protection to listed species, however, neither 
of these laws protect candidate species. The conversion of land to 
agricultural uses that may adversely affect the Cowhead Lake tui chub 
is generally unregulated at any level of government. For example, the 
U.S. Army Corps of Engineers (Corps) has promulgated regulations that 
exempt some farming, forestry, and maintenance activities from the 
regulatory requirements of section 404 (33 CFR 323.4).
    The California Environmental Quality Act (CEQA) offers some 
opportunities to protect rare and endangered plants or animals, as well 
as species that are eligible for listing but are not currently listed. 
If a proposed project may significantly impact a species, it is 
possible to require mitigation. However, this protection is at the 
discretion of the lead agency involved and social and economic 
considerations can override requirements for mitigation or protection. 
Proposed revisions to CEQA guidelines, if made final, may weaken the 
current protections for threatened, endangered and other sensitive 
species. Section 1603 of California Fish and Game Code authorizes the 
California Department of Fish and Game (CDFG) to regulate streambed 
alterations. Such alterations include any work that substantially 
diverts, alters or obstructs the natural flow or substantially changes 
the bed, channel or bank of any river, stream or lake. At this time, 
the Service is not aware of any 1603 permit for the activities 
occurring in Cowhead Lake and Cowhead Slough.
    E. Other natural or manmade factors affecting its continued 
existence. Pest control programs (i.e., USDA-APHIS grasshopper control 
program) that

[[Page 15155]]

introduce pesticides into the drainage are a threat to the Cowhead Lake 
tui chub. The water supply in this high desert habitat is low and 
variable and naturally limits the amount of suitable habitat for the 
Cowhead Lake tui chub. This natural condition offers fewer options for 
refuge for Cowhead Lake tui chub in the event of drought, harsh winter 
conditions or human-induced environmental impacts.
    The entire population of Cowhead Lake tui chub occurs in less than 
2 percent of its historical range and, therefore, is vulnerable to the 
risks associated with small, restricted populations. Impacts to species 
populations that can lead to extinction include: the loss or alteration 
of essential elements (habitat, food), the introduction of limiting 
factors into the environment (poison, predators), and catastrophic 
random changes or environmental perturbations (extreme weather, 
disease) (Gilpin and Soule 1986). Many extinctions are the result of a 
severe reduction of population size by some deterministic event, 
followed by a random natural event that extirpates the species. The 
smaller a population is, the greater its vulnerability to stochastic 
perturbations (Terbough and Winter 1980, Gilpin and Soule 1986, Shaffer 
1987). The elements of risk that are amplified in very small 
populations include: (1) The impact of high death rates or low births 
rates; (2) the effects of genetic drift and inbreeding; and (3) 
deterioration in environmental quality. When the number of individuals 
in the sole population of a species or subspecies is sufficiently low, 
the effects of inbreeding may result in the expression of deleterious 
genes in the population (Gilpin 1987). Deleterious genes reduce 
individual fitness in various ways, most typically as decreased 
survivorship of young. Genetic drift in small populations decreases 
genetic variation due to random changes in gene frequency from one 
generation to the next.
    This reduction of variability within a population limits the 
ability of that population to adapt to environmental changes.
    One scenario where loss of habitat may cause extinction is when the 
species is a local endemic (because of their isolation and restricted 
range) (Gilpin and Soule 1986). The Cowhead Lake tui chub is a local 
endemic, which can be locally abundant, yet lives in a very restricted 
area. Because the sole population is small and occurs in one single 
drainage, it is extremely vulnerable to natural or human-made 
environmental impacts. There are no known populations of Cowhead Lake 
tui chub outside of Cowhead Slough for recolonization if a catastrophic 
event were to occur in Cowhead Slough. While the species still occurs 
within its limited range, we do not know whether the population is 
declining, how habitat conditions may be affecting the population, and 
how the small population size may be affecting genetic and behavioral 
stability. Based on the vulnerability of this small population in its 
limited range, and the lack of any refugial populations or habitat, the 
Service believes that threats to current occupied or potential habitat 
and individuals put this species at risk of being extirpated.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the present and future 
threats faced by this species in determining this proposed rule. This 
species is threatened throughout its range by a variety of human 
impacts, including the dewatering of Cowhead Lake, livestock grazing, 
agricultural activities, and by random naturally occurring events. 
Based on this evaluation, the preferred action is to list Cowhead Lake 
tui chub as endangered based on the risk of extinction throughout all 
of its range. Critical habitat is not being proposed for this species 
for reasons discussed in the ``Critical Habitat'' section of this 

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection and; (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
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 a species is 
determined to be endangered or threatened. 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. The Service determines that designation of 
critical habitat for the Cowhead Lake tui chub is not prudent due to 
lack of benefit 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 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 Cowhead Lake tui chub habitat is not necessary because the 
Service can inform Federal agencies through other means. For these 
reasons, the designation of critical habitat for the Cowhead Lake tui 
chub would provide no additional benefit to the species beyond that 
conferred by listing, and therefore, such designation is not prudent.
    Cowhead Lake tui chub has an extremely narrow distribution in one 
small reach (5.4 kilometers (3.4 miles)) of Cowhead Slough. At the 
present time, no other site is known to be occupied by or suitable for 
this fish. However, the Service believes that a high level of awareness 
already exists for this species due to numerous efforts since 1994, 
between private and public entities, to develop and implement a 
conservation agreement to conserve and protect this species ( J. Danna 
in litt. 1994a and 1994b, J. Schadler in litt. 1994 and 1995, S. Stokke 
in litt. 1997). In addition, the Cowhead Lake tui chub has been 
included in the draft Recovery Plan for Warner Basin fishes and may 
benefit to some degree from recovery actions specified for the listed 
species in the plan (USDI 1997). The private

[[Page 15156]]

landowners at Cowhead Lake are aware of the Cowhead Lake tui chub's 
presence and extremely limited habitat, as are the BLM managers and 
others involved in management of the area. Therefore, designation of 
critical habitat would provide no benefit with respect to notification. 
In addition, given the species' narrow distribution and precarious 
status, virtually any conceivable adverse effect to the species' 
habitat would very likely jeopardize its continued existence. 
Designation of critical habitat for Cowhead Lake tui chub would, 
therefore, provide no benefit to the species apart from the protection 
afforded by listing the fish as endangered.
    Protection of the habitat of Cowhead Lake tui chub 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 Cowhead Lake tui chub 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 Cowhead Lake tui chub 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 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 certain activities are discussed, 
in part, below.
    The Cowhead Lake tui chub has been included in a draft Recovery 
Plan for the threatened and rare native fishes of the Warner Basin and 
Alkali (USDI 1997). The Cowhead Lake tui chub was included because it 
is a rare native endemic that occurs within the Warner Basin that could 
potentially benefit from recovery actions in the Warner Basin for the 
other listed native fishes.
    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) of the Act requires Federal agencies to 
confer 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 to 
destroy or adversely modify its critical habitat, if any is designated. 
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. Approximately one-half of the only known 
population of Cowhead Lake tui chub is on BLM-managed land including 
grazing allotments within the range of this species. Grazing can 
decrease water quality by removing vegetation on streambanks and 
uplands, thereby increasing erosion and sedimentation, and by polluting 
the water with waste products.
    The Act and implementing regulations found at 50 CFR 17.21 set 
forth a series of general prohibitions and exceptions that apply to all 
endangered wildlife. With respect to the Cowhead Lake tui chub, these 
prohibitions, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (including harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt 
any such conduct), import or export, transport in interstate or foreign 
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 for incidental take in 
connection with otherwise lawful activities. Information collections 
associated with these permits are approved under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of 
Management and Budget clearance number 1018-0094. For additional 
information concerning these permits and associated requirements, see 
50 CFR 17.22. Requests for copies of the regulations regarding listed 
species and inquiries about prohibitions and permits may be addressed 
to: Regional Director, U.S. Fish and Wildlife Service, 911 NE 11th 
Avenue, Portland, Oregon 97232-4181 (503/231-6241; FAX 503/231-6243).
    It is the policy of the Service, 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 if a 
species is listed. The intent of this policy is to increase public 
awareness of the effect of a proposed listing on proposed and ongoing 
activities within a species' range. The Service believes that, based on 
the best available information, the following actions will not result 
in a violation of section 9, provided these actions are carried out in 
accordance with any existing regulations and permit requirements:
    (1) Possession of legally acquired Cowhead Lake tui chub;
    (2) Actions that may affect Cowhead Lake tui chub which are 
authorized, funded or carried out by a Federal agency, when the action 
is conducted in accordance with an incidental take statement issued by 
the Service pursuant to section 7 of the Act.
    (3) Actions that may affect Cowhead Lake tui chub that are not 
authorized, funded or carried out by a Federal agency, when the action 
is conducted in accordance with an incidental take statement issued by 
the Service pursuant to section 10(a)(1)(B) of the Act. Section 
10(a)(1)(B) refers to Habitat Conservation Plans (HCP's) that are 
negotiated after a species has been listed under Section 4 of the Act 
and are designed to mitigate and minimize impacts to the species to the 
greatest extent practicable.
    Activities that the Service believes could potentially harm the 
Cowhead Lake tui chub and result in ``take'' include, but are not 
limited to:
    (1) Take of Cowhead Lake tui chub without a permit, which includes 
harassing, harming, pursuing, hunting, shooting, wounding, killing, 
trapping, capturing, or collecting, or attempting any of these actions;
    (2) Possess, sell, deliver, carry, transport, or ship illegally 
taken Cowhead Lake tui chub;
    (3) Introduction of nonnative fish species that compete or 
hybridize with, or prey on Cowhead Lake tui chub;

[[Page 15157]]

    (4) Destruction or alteration of Cowhead Lake tui chub habitat by 
dredging, channelization, diversion, instream vehicle operation or rock 
removal, or other activities that result in the destruction or 
significant degradation of cover, channel stability, substrate 
composition, temperature, and corridors used by the species for 
foraging, cover, and spawning;
    (5) Discharges or dumping of toxic chemicals, silt, or other 
pollutants into waters supporting Cowhead Lake tui chub that result in 
death or injury of the species; and
    (6) Destruction or alteration of riparian or streamside habitat and 
adjoining uplands of waters supporting Cowhead Lake tui chub by 
grazing, mining, hydropower development, agriculture or other 
developmental activities that result in destruction or significant 
degradation of cover, channel stability, substrate composition, 
temperature, and corridors used by the species for foraging, cover, and 
    The term ``significant degradation of habitat'', as used in the 
descriptions of activities above, is that amount of degradation which 
causes ``take'' of Cowhead Lake tui chub. 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 Cowhead Lake tui chub are 
considered violations of section 9. Questions regarding whether 
specific activities may constitute a violation of section 9 should be 
directed to the Field Supervisor of the Services Sacramento Fish and 
Wildlife Office (see ADDRESSES section). Requests for information on 
permits should be addressed to the Assistant Regional Director, 
Ecological Services, U.S. Fish and Wildlife Service, 911 NE. 11th 
Avenue, Portland, Oregon 97232-4181 (503/231-6241; FAX 503/231-6243).

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 
parties 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 the Cowhead Lake tui chub;
    (2) The location of any additional populations of the Cowhead Lake 
tui chub 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 the Cowhead Lake tui chub;
    (4) Any examples of take or vandalism of Cowhead Lake tui chub; and
    (5) Current or planned activities in the subject area and their 
possible impacts on the Cowhead Lake tui chub.
    A final determination of whether to list this species will take 
into consideration the comments and any additional information received 
by the Service. Such communications may lead to a final decision 
document that differs from this proposal.
    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days of the date of 
publication of this proposal in the Federal Register. Such requests 
must be made in writing and be addressed to the Field Supervisor, 
Sacramento Field Office (see ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments or Environmental Impact Statements , 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 Endangered Species Act of 1973, as amended. 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 is available upon 
request from the Field Supervisor, Sacramento Field Office (see 
ADDRESSES section).
    Author: The primary author of this proposed rule is Ann Chrisney, 
Sacramento Field Office (see ADDRESSES section), telephone 916/979-

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:


    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 Sec. 17.11(h) by adding the following, in alphabetical 
order under Fish, to the List of Endangered and Threatened Wildlife to 
read as follows:

Sec. 17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

                        Species                                                    Vertebrate                                                           
--------------------------------------------------------                        population where                                  Critical     Special  
                                                            Historic range       endangered or         Status      When listed    habitat       rules   
           Common name                Scientific name                              threatened                                                           
                   *                  *                  *                  *                  *                  *                  *                  
              Fishes               ....................                                                                                                 
                   *                  *                  *                  *                  *                  *                  *                  
Chub, Cowhead Lake tui...........  Gila bicolor          U.S.A. (CA)........  Entire.............  E               ...........           NA           NA
                   *                  *                  *                  *                  *                  *                  *                  

[[Page 15158]]

    Dated: March 17, 1998
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-8051 Filed 3-27-98; 8:45 am]