2000 Federal Register, 4140; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: January 26, 2000 (Volume 65, Number 17)]
[Rules and Regulations]
[Page 4140-4156]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ja00-14]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD23

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Woundfin and Virgin River Chub

AGENCY: U.S. Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), designate
critical habitat for the Virgin River chub (Gila seminuda) and the
woundfin (Plagopterus argentissimus) in accordance with the Endangered
Species Act of 1973, as amended. The Virgin River chub and woundfin are
listed as endangered. Both species occur within the area designated as
critical habitat. The designation includes portions of the Virgin River
in Utah, Arizona, and Nevada. We are designating 140.1 kilometers (km)
(87.5 miles (mi)) of critical habitat for the woundfin (approximately
12.5 percent of its historical range) and the Virgin River chub (65.3
percent of its historical range). The majority of the land to be
designated as critical habitat is under Federal ownership (57.7
percent) or private ownership (39.9 percent). This critical habitat
designation includes portions of the mainstem Virgin River and its
associated 100-year floodplain. Under section 7 of the Endangered
Species Act (Act) of 1973, as amended, Federal agencies are required to
ensure that their actions are not likely to destroy or adversely modify
designated critical habitat. Section 4 of the Act required us to
consider economic and other impacts prior to making this final decision
on the size and scope of the designation.

EFFECTIVE DATE: February 25, 2000.

ADDRESSES: You may inspect the complete file for this rule, by
appointment, during normal business hours at the office of the Field
Supervisor, Ecological Services, U.S. Fish and Wildlife Service, 145
East 1300 South, Suite 404, Salt Lake City, Utah 84115.

FOR FURTHER INFORMATION CONTACT: Mr. Reed E. Harris, Field Supervisor,
Salt Lake City Field Office, at the above address, (801/524-5001).

SUPPLEMENTARY INFORMATION:

Background

The woundfin (Plagopterus argentissimus) and Virgin River chub
(Gila seminuda) are currently listed as endangered pursuant to the
Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et
seq.). In the subsequent text, we refer to the woundfin and Virgin
River chub as ``listed fishes.'' The Virgin River originates in south-
central Utah, running in a southwest direction to northwestern Arizona,
and southeastern Nevada for approximately 320 km (200 mi) before
emptying into Lake Mead. Prior to the completion of Boulder (Hoover)
Dam in 1935, the Muddy River in southeastern Nevada joined the Virgin
River before the latter emptied into the Colorado River. These two
rivers now flow separately into the Overton Arm of Lake Mead. The
Virgin River chub and woundfin have declined in numbers due to the
cumulative effects of dewatering from numerous diversion projects;
proliferation of nonnative fishes; and alterations to natural flow,
temperature, and sediment regimes.

Woundfin

Based on early records, the original range of the woundfin extended
from near the junction of the Salt and Verde Rivers at Tempe, Arizona,
to the mouth of the Gila River at Yuma, Arizona (Gilbert and Scofield
1898; Minckley 1973). Woundfin were also found in the mainstem Colorado
River from Yuma (Jordan and Evermann 1896; Meek 1904; Follett 1961)
upstream to the Virgin River in Nevada, Arizona, and Utah and into La
Verkin Creek, a tributary of the Virgin River in Utah (Gilbert and

[[Page 4141]]

Scofield 1898; Snyder 1915; Miller and Hubbs 1960; Cross 1975).
However, because no barriers or habitat considerations exist that would
have precluded woundfin from existing further upstream in these rivers,
we believe that the woundfin likely occurred further upstream in the
Verde, Salt, and Gila Rivers in Arizona.
Except for the mainstem of the Virgin River, woundfin are
extirpated from most of their historical range. Woundfin presently
range from Pah Tempe Springs (also called La Verkin Springs) on the
mainstem of the Virgin River and the lower portion of La Verkin Creek
in Utah, downstream to Lake Mead. A single specimen was taken from the
middle Muddy (Moapa) River, Clark County, Nevada, in the late 1960s.
However, no additional specimens have been collected from that drainage
since that time (Deacon and Bradley 1972).
Adult and juvenile woundfin inhabit runs and quiet waters adjacent
to riffles with sand and sand/gravel substrates. Adults are generally
found in habitats with water depths between 0.15 and 0.43 meters (m)
(0.5 and 1.4 feet (ft)) with velocities between 0.24 and 0.49 meters
per second (m/s) (0.8 and 1.6 feet per second (ft/s)). Juveniles select
areas with slower and deeper water, while larvae are found in
backwaters and stream margins which are often associated with growths
of filamentous algae. Spawning takes place during the period of
declining spring flows.

Virgin River Chub

The Virgin River chub was first described as a full species (Gila
seminuda) in 1875 (Cope and Yarrow 1875). Later, Ellis (1914)
considered this chub to be an intermediate between the roundtail chub
(G. robusta) and bonytail chub (G. elegans), and reduced it to a
subspecies (G. robusta seminuda) of the roundtail chub. The fish was
believed to be restricted to the Virgin River between Hurricane, Utah,
and its confluence with the Colorado River.
In a recent taxonomic study of the genus Gila using morphological
and genetic characters, DeMarais et al. (1992) concluded that the prior
treatment of the Virgin River chub as a subspecies of roundtail chub
was inappropriate and arbitrary. The authors asserted that full species
status (Gila seminuda) was warranted for the Virgin River chub, which
likely arose through introgressive hybridization involving G. robusta
and G. elegans (DeMarais et al, 1992). Moreover, DeMarais et al. (1992)
concluded that the chub found in the Muddy (=Moapa) River, a Virgin
River tributary, was also G. seminuda, although the Muddy River
population was ``distinctive.'' Prior to this conclusion, this
geographically isolated population of Virgin River chub was considered
a separate, unnamed subspecies of roundtail chub (G. robusta spp.), and
was referred to as the Moapa roundtail chub (Minckley 1973, Smith et
al. 1977). We, along with the American Fisheries Society and American
Society of Ichthyologists and Herpetologists Fish Names Committee (Mr.
Joseph S. Nelson, American Fisheries Society, in litt. 1993) have
accepted the taxonomic revisions of Gila.
In past candidate notices of review, we considered the Muddy River
population of Virgin River chub to be a category 2 candidate species
(December 30, 1982, 47 FR 58455; January 6, 1989, 54 FR 556; November
21, 1991, 56 FR 58804). At that time, category 2 candidate species were
those species for which we had information indicating that listing may
be appropriate, but did not have enough information on file to support
issuance of a proposed rule to list. In our February 28, 1996,
candidate notice of review (61 FR 7596), we discontinued the
designation of category 2 candidates. The final rule listing the Virgin
River chub as an endangered species (August 24, 1989; 54 FR 35305)
specifically excluded the Muddy River population, because at the time
it was classified as an undescribed subspecies. The Muddy River is not
included in this final rule designating critical habitat for the Virgin
River chub because at the time that the proposed critical habitat
designation and economic analysis were prepared, we did not consider
the Muddy River population to be listed. Therefore, in order to respond
in a timely manner and make a final determination with regard to
critical habitat for the Virgin River chub, this final rule encompasses
only the mainstem Virgin River. A separate listing determination, which
will include analyses on the status of the species and whether listing
the fish in the Muddy River is warranted, will be prepared for this
population and made available for public review and comment. The
prudency and determinability of critical habitat for the Muddy River
population will be addressed at that time.
The Virgin River chub was first collected in the 1870s from the
Virgin River near Washington, Utah. Historically, it was collected in
the mainstem Virgin River from Pah Tempe Springs, Utah, downstream to
the confluence with the Colorado River in Nevada (Cope and Yarrow 1875;
Cross 1975), though it may have occurred upstream of that point.
Presently, the Virgin River chub occurs within the mainstem Virgin
River from Pah Tempe Springs, Utah, downstream to at least the Mesquite
Diversion, located near the Arizona-Nevada border.
Adult and juvenile Virgin River chub select deep runs or pools with
slow to moderate velocities containing boulders or other instream cover
over a sand substrate. Generally, larger fish occupy deeper habitats;
however, there is no apparent correlation with velocity. Chub are
generally found in velocities ranging up to 0.76 m/s (2.5 ft/s).

Importance of the Virgin River Floodplain

Preservation of the river channel alone is not sufficient to ensure
the survival and recovery of the woundfin and Virgin River chub. The
Virgin River floodplain is integral to preserving the integrity of the
primary constituent elements (defined below) and maintaining the
natural dynamics of the Virgin River. Components of a healthy river
system needed for these fish include the mainstem channel, where water
is maintained most or all of the year, and upland habitats that are
inundated during spring flows. Studies of the major floodplain rivers
of the world have documented the value of flooded bottomlands and
uplands for fish production (Welcomme 1979). For example, loss of
floodplain habitats in the Missouri River Basin has reduced fish
biomass production as much as 98 percent (Karr and Schlosser 1978).
These seasonally flooded habitats contribute to the biological
productivity of the river system by producing allochthonous (humus,
silt, organic detritus, colloidal matter, and plants and animals
produced outside the river and brought into the river) organic matter
which provides nutrients and terrestrial food sources to aquatic
organisms (Hesse and Sheets 1993). The Virgin River contains little
aquatic vegetation and contains a minimum amount of autochthonous
(produced within the river) organic matter. Thus, the fauna of the
Virgin River is heavily dependent on allochthonous energy inputs from
the floodplain that provides or supports much of the food base. This
rich, terrestrial food source may enhance fish growth, fecundity, and/
or survival.
Use of these inundated floodplain areas increases the energy
available for spawning and is necessary for reproductive success in
some species (Finger and Stewart 1987). In many cyprinid fishes,
including these listed fishes, spawning is associated with seasonal
rains and flooding of rivers. Flood-related changes in the river

[[Page 4142]]

environment induce spawning for many species, while the loss of these
seasonal changes due to water withdrawals and channel constrictions may
be a contributing factor limiting recruitment for these fish (Hontele
and Stacey 1990).
Protection of floodplain areas also provides the spatial and
temporal scope for natural physical processes, including flooding, to
occur (National Research Council 1992). These processes over time shape
and reshape the river, constantly redefining the physical habitat and
complexity of the river. Large flow events allow the river to meander,
thereby creating and recreating the mosaic of habitats necessary for
the survival and recovery of the listed fishes. As long as this
physical reshaping occurs, the habitat complexity and biological
productivity associated with river-floodplain systems necessary for the
survival and recovery of the listed fishes will be maintained.
Inundation of floodplain habitats during spring flows also provides
areas with warmer water temperatures, lower water velocity habitat used
for resting, and cover from predation. Recent studies in the Colorado
River system show that the life histories and welfare of native
riverine fishes are linked to the maintenance of a natural or
historical flow regime (i.e., hydrological pattern of high spring and
low autumn and winter flows that vary in magnitude and duration
depending on annual precipitation patterns and runoff from snowmelt)
(Tyus and Karp 1989, 1990). Minckley and Meffe (1987) suggest that loss
of flooding will result in extirpation of many of the native fish
species in the Colorado River system.

Previous Federal Action

We listed the woundfin as endangered on October 13, 1970 (35 FR
16047), and proposed critical habitat on November 2, 1977 (42 FR
57329). However, on March 6, 1979, we withdrew the proposal for
critical habitat (44 FR 12382) due to the 1978 amendments to the Act,
which required proposals to be withdrawn if not finalized within 2
years. A Woundfin Recovery Plan was originally approved in July 1979
and subsequently revised on March 1, 1984.
On August 23, 1978, we proposed listing the Virgin River chub as
endangered and designating critical habitat (43 FR 37668). We also
withdrew this proposal (45 FR 64853; September 30, 1980), due to the
1978 amendments to the Act. On June 24, 1986, we again proposed the
listing as endangered and the designation of critical habitat for the
Virgin River chub (51 FR 22949). The final rule to list the Virgin
River chub as endangered was published on August 24, 1989 (54 FR
35305). We postponed the designation of critical habitat to allow time
to undertake an analysis of the economic and other impacts of the
designation as required by section 4(b)(2) of the Act. When the Virgin
River chub was listed, the Muddy River form was specifically excluded
because it was believed to be a separate, unnamed subspecies of
roundtail chub (Moapa roundtail chub= Gila robusta ssp.).
On March 18, 1994, the U.S. District Court, Colorado (Court)
ordered us to designate critical habitat for the Virgin River chub,
woundfin, and Virgin spinedace (Lepidomeda mollispinis mollispinis) (if
it became listed under the Act before December 31, 1994). The Court
ordered that critical habitat be proposed no later than April 1, 1995,
and be finalized by December 1, 1995. We proposed the Virgin spinedace
for listing as a threatened species on May 18, 1994 (59 FR 25875), but
did not include critical habitat in that proposed rule because we
believed that all three fish species would receive greater conservation
benefit if critical habitat for all three was designated
simultaneously. We published a proposed rule designating critical
habitat for the three fishes on April 5, 1995 (60 FR 17296). On April
11, 1995, we entered into the Virgin Spinedace Conservation Agreement
and Strategy with other Federal, State, and private local entities to
eliminate or reduce impacts threatening the continued existence of the
Virgin spinedace. A Virgin River Fishes Recovery Plan, including the
woundfin, Virgin River chub, and Virgin spinedace, was finalized on
April 19, 1995. Because of the conservation efforts being implemented
on behalf of the Virgin spinedace, we withdrew the proposed listing and
critical habitat designation of the Virgin spinedace on February 6,
1996 (61 FR 4401). Therefore, the Virgin spinedace is no longer
included in this critical habitat designation.
Prior to publication of a final rule designating critical habitat
for the woundfin and Virgin River chub, Congress enacted a moratorium
on final listing actions and we postponed further actions to finalize
critical habitat. Disruptions in the listing budget beginning in Fiscal
Year 1995 and the moratorium on certain listing actions, including
critical habitat designations, during parts of Fiscal Years 1995 and
1996 remained in effect until April 26, 1996, when President Clinton
approved the Omnibus Budget Reconciliation Act of 1996 and exercised
the authority that the Act gave him to waive the moratorium. By that
time, we had accrued a serious backlog of listing actions. To deal with
this backlog, we developed and published Interim (61 FR 9651) and Final
(61 FR 24722) Listing Priority Guidelines for Fiscal Year 1996. The
guidelines described a multi-tiered approach to working through the
listing backlog and identified critical habitat designations as our
lowest listing priority. On December 5, 1996, we published our Final
Listing Priority Guidance for Fiscal Year 1997 (61 FR 64475), which
maintained this prioritization.
On May 8, 1998, we published our Final Listing Priority Guidance
for Fiscal Years 1998 and 1999 (63 FR 25502). The designation of
critical habitat remained our lowest priority. However, in December
1998, the 10th Circuit Court ruled that we could no longer use this
justification for not designating critical habitat and ordered us to
designate critical habitat for the Rio Grande silvery minnow
(Hybognathus amarus). Shortly after that decision, the plaintiffs in
the Virgin River fishes case filed a motion requesting that we be
ordered to finalize critical habitat designation for the woundfin and
Virgin River chub. On August 27, 1999, the U.S. District Court of
Colorado ordered us to finalize critical habitat designation for the
woundfin and Virgin River chub by January 20, 2000.

Critical Habitat

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 of the Interior (Secretary) designate critical habitat at
the time the species is determined to be endangered or threatened. As
explained above, critical habitat was delayed for a variety of reasons.
With this final rule, however, critical habitat is now designated for
the woundfin and Virgin River chub in the Virgin River.

Definition of Critical Habitat

Critical habitat is defined in section 3(5)(A) 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) which may require special management
considerations or protection and; (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species.'' The term ``conservation,'' as defined in section

[[Page 4143]]

3(3) of the Act, means ``to use and the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to this Act are no longer necessary'' (i.e., the species is recovered
and removed from the list of endangered and threatened species).
We are required to base critical habitat decisions upon the best
scientific and commercial information available (50 CFR 424.12) after
taking into account economic and other impacts of such designation. In
designating critical habitat for the woundfin and Virgin River chub, we
have reviewed the overall approaches to the conservation of the
woundfin and Virgin River chub undertaken or proposed by local, State,
and Federal agencies operating within the Virgin River basin and the
identified steps necessary for the species recovery outlined in the
Virgin River Fishes Recovery Plan. We also have reviewed available
information that pertains to the geographic range of the species in the
Virgin River and the habitat requirements of each species. That
information includes that received during the public comment periods
associated with this rulemaking (described below).

Effect of Critical Habitat Designation

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. 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 a listed species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with us.
The designation of critical habitat is one of several measures
available to assist in the conservation and recovery of a species.
Critical habitat may help focus conservation activities by identifying
areas that contain essential habitat features (primary constituent
elements) regardless of whether the areas are currently occupied by the
listed species. Such designation may alert Federal agencies, States,
the public, and other organizations to the areas' importance. Critical
habitat also identifies areas that may require special management
considerations or protection.
The designation of critical habitat directly affects only Federal
agencies, by prohibiting actions they fund, authorize, or carry out
from destroying or adversely modifying critical habitat. Individuals,
firms, and other non-Federal entities are not affected by the
designation of critical habitat so long as their actions do not require
support by permit, license, funding, or other means from a Federal
agency.
An understanding of the interplay of the jeopardy and adverse
modification standards is necessary to evaluate the likely outcomes of
both consultation under section 7 and the environmental, economic and
other impacts of any critical habitat designation. Implementing
regulations (50 CFR part 402) define ``jeopardize the continued
existence of'' (a species) and ``destruction or adverse modification
of'' (critical habitat) in virtually identical terms. ``Jeopardize the
continued existence of'' means to engage in an action ``that reasonably
would be expected * * * to reduce appreciably the likelihood of both
the survival and recovery of a listed species.'' ``Destruction or
adverse modification'' means a direct or indirect alteration that
``appreciably diminishes the value of critical habitat for both the
survival and recovery of a listed species.''
Common to both definitions is an appreciable detrimental effect on
both survival and recovery of a listed species. Thus, for most species,
actions likely to result in destruction or adverse modification of
critical habitat are nearly always found to jeopardize the species
concerned. Only in a few instances might an action be found to
adversely modify critical habitat without also being found to
jeopardize the continued existence of the species. This situation might
occur in unoccupied habitat or occupied habitat that may become
unoccupied in the future. In most cases, the existence of a critical
habitat designation does not materially affect the outcome of
consultation. This reality is often in contrast to the public
perception (and the assumption used in the previous economic analysis
as described in this final rule) that the adverse modification standard
sets a lower threshold than the jeopardy standard in all instances. The
similar nature of the jeopardy and adverse modification standards and
the application of the standards is true for the listed Virgin River
fishes as well. The area of the river system being designated as
critical habitat in this final rule is occupied by the listed fishes.
Section 4(b)(8) of the Act requires us to describe in any proposed
or final regulation that designates critical habitat, those activities
involving a Federal action that may adversely modify such habitat or
those activities that may be affected by such designation. Activities
that may destroy or adversely modify critical habitat include those
that alter the primary constituent elements (defined below) to an
extent that the value of designated critical habitat for both the
survival and recovery of a listed species is reduced appreciably.
Federal activities in the Virgin River basin that may adversely
modify critical habitat include actions that reduce the volume and
timing of water flows, destroy or eliminate access to spawning and
nursery habitat, prevent recruitment, appreciably impact food sources,
contaminate the river, or significantly increase predation and
competition by nonnative fishes (Table 1). Examples of such activities
may include construction and operation of hydroelectric facilities,
additional irrigation diversions, flood control structures, bank

stabilization structures, oil and gas drilling, golf courses, and
resort facilities, as well as mining, grazing, additional pumping to
meet municipal water demands, and stocking or introduction of nonnative
fishes.

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Table 1.--Impacts of Woundfin and Virgin River Chub Listing and Critical
Habitat Designation
------------------------------------------------------------------------
Additional
Activities impacted by activities
Categories of activities species listing only impacted by
\1\ critical habitat
designation \2\
------------------------------------------------------------------------
Federal activities potentially Activities such as None.
affected \3\. construction and
operation of
hydroelectric
facilities, flood
control, additional
irrigation
diversions, bank
stabilization, oil
and gas drilling,
mining, grazing,
stocking or
introduction of
nonnative fishes,
that the Federal
Government carries
out that may
jeopardize the
continued existence
of a listed species
(only activities
impacting the
occupied portions of
the river system).
Private activities potentially Activities such as None.
affected \4\. additional irrigation
diversions, flood
control, bank
stabilization, oil
and gas drilling,
mining, grazing,
stocking or
introduction of
nonnative fishes,
municipal water
supplies, golf
courses, resort
facilities, water
wheeling, water
leasing, and
dewatering of springs
for municipal and
industrial purposes
that require a
Federal action
(permit,
authorization, or
funding) that may
jeopardize the
continued existence
of the species (only
activities impacting
the occupied portions
of the river system).
------------------------------------------------------------------------
\1\ This column represents the impacts of the final rules listing the
woundfin (October 13, 1970; 35 FR 16047) and Virgin River chub (August
24, 1989; 54 FR 35305) under the Endangered Species Act and covers
land in the occupied portion of the river system only. These rules
prohibited actions funded, authorized, or carried out by Federal
agencies that jeopardized the continued existence of the species.
``Jeopardizing the continued existence of the species,'' as defined by
the Act, would result from an action that would appreciably reduce the
likelihood of the species' survival and recovery.
\2\ This column represents the impacts of the critical habitat
designation above and beyond those impacts resulting from listing the
species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private entity that may need Federal
authorization or funding.

These types of activities have already been examined during formal
and informal consultations with us since the listing of the species as
endangered. No additional restrictions to these activities as a result
of critical habitat designation are anticipated. For example, existing
Federal activities in the area include the Pah Tempe Pipeline, Halfway
Wash Project, Lake Powell Pipeline, water wheeling, water leasing,
Washington Fields Pumpback, and dewatering of springs for municipal and
industrial purposes.
Areas outside of critical habitat, containing one or more of the
primary constituent elements, may still be important for the
conservation of a species. Some areas do not contain all of the
constituent elements and may have those missing elements restored in
the future. Such areas may be important for the long-term recovery of
the species even if they are not designated critical habitat because
they may serve to maintain ecosystem integrity, thereby indirectly
contributing to recovery.
In summary, designation of critical habitat focuses on the primary
constituent elements within the defined areas and their contribution to
the species' recovery, and includes consideration of the species'
biological needs and factors that will contribute to their recovery
(i.e., distribution, numbers, reproduction, and viability). In
evaluating Federal actions, we will consider the actions' impacts on
the primary constituent elements of water, physical habitat, and
biological environment (discussed below). The ability of an area to
provide these constituent elements into the future and to contribute to
the recovery of the species will also be considered. The potential
level of allowable impacts or habitat reduction in critical habitat
will be determined on a case-by-case basis during section 7
consultation.

Primary Constituent Elements

In identifying areas as critical habitat, 50 CFR 424.12 provides
that we consider those physical and biological features that are
essential to a species' conservation and that may require special
management considerations or protection. Such physical and biological
features, as outlined in 50 CFR 424.12, include, but are not limited
to, the following:
(1) Space for individual and population growth, and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing of offspring,
germination, or seed dispersal; and
(5) Habitats that are protected from disturbance or are
representative of the historical geographical and ecological
distributions of a species.
In determining critical habitat for the woundfin and Virgin River
chub, we focused on the primary physical and biological elements
essential to the conservation of each species. Prior to designating an
area as critical habitat, we assessed the area for all applicable
constituent elements.
The primary constituent elements of critical habitat determined
necessary for the survival and recovery of these Virgin River fishes
are water, physical habitat, and biological environment. The desired
conditions for each of these elements are further discussed below.
Water--A sufficient quantity and quality of water (i.e.,
temperature, dissolved oxygen, contaminants, nutrients, turbidity,
etc.) that is delivered to a specific location in accordance with a
hydrologic regime that is identified for the particular life stage for
each species. This includes the following:
(1) Water quality characterized by natural seasonally variable
temperature, turbidity, and conductivity;
(2) Hydrologic regime characterized by the duration, magnitude, and
frequency of flow events capable of forming and maintaining channel and
instream habitat necessary for particular life stages at certain times
of the year; and
(3) Flood events inundating the floodplain necessary to provide the
organic matter that provides or supports the nutrient and food sources
for the listed fishes.
Physical Habitat--Areas of the Virgin River that are inhabited or
potentially habitable by a particular life stage for each species, for
use in spawning, nursing, feeding, and rearing, or corridors between
such areas:
Woundfin
(1) River channels, side channels, secondary channels, backwaters,
and springs, and other areas which provide access to these habitats;
(2) Areas inhabited by adult and juvenile woundfin include runs and

[[Page 4145]]

pools adjacent to riffles that have sand and sand/gravel substrates;
(3) Areas inhabited by juvenile woundfin are generally deeper and
slower. When turbidity is low, adults also tend to occupy deeper and
slower habitats;
(4) Areas inhabited by woundfin larvae include shoreline margins
and backwater habitats associated with growths of filamentous algae.
Virgin River Chub
(1) River channels, side channels, secondary channels, backwaters,
and springs, and other areas which provide access to these habitats;
and
(2) Areas with slow to moderate velocities, within deep runs or
pools, with predominately sand substrates, particularly habitats which
contain boulders or other instream cover.
Biological Environment--Food supply, predation, and competition are
important elements of the biological environment and are considered
components of this constituent element. Food supply is a function of
nutrient supply, productivity, and availability to each life stage of
the species. Predation and competition, although considered normal
components of this environment, are out of balance due to nonnative
fish species in many areas. Fourteen introduced species, including red
shiner (Cyprinella lutrensis), black bullhead (Ameiurus melas), channel
catfish (Ictalurus punctatus), and largemouth bass (Micropterus
salmoides), compete with or prey upon the listed fishes. Of these, the
red shiner is the most numerous and has been the most problematic for
the listed fishes. Red shiners compete for food and available habitats
and are known to prey on the eggs and early life stages of the listed
fishes. Components of this constituent element include the following:
(1) Seasonally flooded areas that contribute to the biological
productivity of the river system by producing allochthonous (humus,
silt, organic detritus, colloidal matter, and plants and animals
produced outside the river and brought into the river) organic matter
which provides and supports much of the food base of the listed fishes;
and
(2) Few or no predatory or competitive nonnative species in
occupied Virgin River fishes' habitats or potential reestablishment
sites.

Critical Habitat Designation

Woundfin--The area designated as critical habitat for the woundfin
is the mainstem Virgin River and its 100-year floodplain (as defined
below), extending from the confluence of La Verkin Creek, Utah, to
Halfway Wash, Nevada, and includes 59.6 km (37.3 mi) of the mainstem
Virgin River in Utah, 50.6 km (31.6 mi) in Arizona, and 29.9 km (18.6
mi) in Nevada (Table 2). This designation totals 140.1 km (87.5 mi) of
the mainstem Virgin River, which represents approximately 12.5 percent
of the woundfin's historical habitat. Due to the lack of historical
data on the distribution of the woundfin in Arizona, this percentage is
only an estimate. The area of the Virgin River designated as critical
habitat consists of the remaining occupied habitat for the woundfin,
and this portion of the Virgin River flows through both public and
private lands (Table 3).

Table 2.--Critical Habitat in Kilometers (Miles) for Virgin River Listed Fishes
----------------------------------------------------------------------------------------------------------------
State Woundfin Virgin River chub State totals
----------------------------------------------------------------------------------------------------------------
Arizona................................................ 50.6 (31.6) 50.6 (31.6) 50.6 (31.6)
Nevada................................................. 29.9 (18.6) 29.9 (18.6) 29.9 (18.6)
Utah................................................... 59.6 (37.3) 59.6 (37.3) 59.6 (37.3)
----------------------------------------------------------------------------------------------------------------
Total.......................................... 140.1 (87.5) 140.1 (87.5) 140.1 (87.5)
----------------------------------------------------------------------------------------------------------------

Table 3.--Critical Habitat Shoreline Ownership in Kilometers (Miles) of
Critical Habitat Occupied by the Woundfin and Virgin River Chub \1\
------------------------------------------------------------------------
Woundfin and
Ownership Virgin River chub Percent
------------------------------------------------------------------------
Federal........................... 80.9 (50.5) 57.7
State............................. 3.3 (2.1) 2.4
Private........................... 55.9 (34.9) 39.9
------------------------------------------------------------------------
Total..................... 140.1 (87.5) 100.0
------------------------------------------------------------------------
\1\ Landownership was typically the same on both riverbanks. However, in
several reaches (1.5 km or less), the river forms a boundary between
Federal and private lands. Based upon the location of the channel,
these reaches were identified as either Federal or private, not both.
Therefore, distances given may be doubled to represent ownership along
both riverbanks.

Virgin River Chub--The area designated as critical habitat for the
Virgin River chub is the mainstem Virgin River and its 100-year
floodplain (as defined below), extending from the confluence of La
Verkin Creek to Halfway Wash and is identical to the designation for
the woundfin (Table 2). The designation for this species represents
approximately 65.8 percent of the Virgin River chub's historical
habitat within the Virgin River Basin. The area of the Virgin River
designated as critical habitat consists of the remaining occupied
habitat for the Virgin River chub, which flows through both public and
private lands (Table 3).
The designation of critical habitat for both listed fishes includes
the mainstem Virgin River currently occupied by the species. The 100-
year floodplain of the Virgin River is included in the designation of
critical habitat for both species, but we are designating only those
portions of the 100-year floodplain that contain at least one of the
primary constituent elements for critical habitat. We chose the 100-
year floodplain for several reasons. First, the implementing
regulations of the Act require that critical habitat be defined by
reference points and lines as found on standard topographic maps of the
area. The 100-year floodplain, as defined by the Federal Emergency
Management Agency (FEMA), while not included on standard topographic
maps, is an area of land that would be inundated by a flood having a
one

[[Page 4146]]

percent chance of occurring in any given year. It is the Federal
standard for protection of life and property and is delineated and
readily available on FEMA floodplain maps. This boundary, rather than
some other delineation, was primarily chosen for two reasons: (1) The
biological integrity and natural dynamics of the river system are
maintained within this area (i.e., allowing the river to meander within
its main channel in response to large flow events, thereby recreating
the mosaic of habitats necessary for the survival and recovery of
Virgin River endangered fishes); and (2) conservation of the 100-year
floodplain also helps protect the riparian areas and provide essential
nutrient recharge to the Virgin River, which contributes to successful
spawning and recruitment of endangered fishes.
Some developed lands within the 100-year floodplain boundary are
not considered critical habitat because they do not contain the primary
constituent elements. These include, but are not limited to, existing
paved roads, bridges, parking lots, dikes, levees, diversion
structures, railroad tracks, railroad trestles, water diversion canals
outside of natural stream channels, active gravel pits, cultivated
agricultural land, and residential, commercial, and industrial
developments. These developed areas do not contain the primary
constituent elements and do not furnish habitat or biological features
for the listed fishes, and generally will not contribute to the
species' recovery. However, some activities in these areas (if
federally funded, authorized, or carried out) may affect the
constituent elements of the designated critical habitat and, therefore,
may be affected by critical habitat designation, as discussed later in
this final rule.

Summary of Changes From the Proposed Rule

During the public comment period for the proposed rule (60 FR
17296), we received information provided by the Nevada Division of
Wildlife and Bio/West, Inc. indicating that very few woundfin or Virgin
River chub have ever been collected below Halfway Wash, Nevada. The
backwater effect of the high water line of Lake Mead has resulted in a
large amount of sand deposition below Halfway Wash. This deposition has
changed the morphology of the river from a single channel to a highly
braided river reach consisting of multiple rivulets, thereby reducing
the gradient of the river and resulting in an extremely shallow
multiple channeled habitat, not suitable for either woundfin or Virgin
River chub. Based on this information, we changed the critical habitat
boundary in Nevada from the highwater level of Lake Mead to Halfway
Wash. This change reduced the critical habitat in Nevada by 11.6 km
(7.3 mi) from what was described in the proposed rule. Additionally,
critical habitat as proposed for the Virgin spinedace (60 FR 17296) was
formally withdrawn on February 6, 1996 (61 FR 4401). This action
further reduced the designation by 179 km (112.0 mi).
One assumption that we used in the economic analysis was that the
threshold for an action to result in an adverse modification
determination was less than the threshold for an action to jeopardize
the continued existence of a species. The economic impacts summarized
in the proposed rule were based on this assumption. Since the
development of the economic analysis and subsequent proposed rule
designating critical habitat in the Virgin River basin, we have
determined that, in most cases, actions that are likely to result in
the destruction or adverse modification of critical habitat are nearly
always found to jeopardize the continued existence of the species
concerned. This determination is based, in part, on numerous
consultations concerning listed fish and critical habitat designated in
the 100-year floodplain in the upper Colorado River basin. These
consultations have demonstrated little or no difference in the results
of application of the jeopardy and adverse modification standard. We
further discuss the effect of this determination in the ``Consideration
of Economic and Other Impacts'' section of this final rule.
As originally proposed, the critical habitat designation included
five separate river reaches (Maddux et al. 1995). We structured the
proposal this way to coincide with the economic analysis and to
facilitate exclusion of areas if the economic impacts of designation of
critical habitat outweighed the benefits, provided that exclusion would
not result in the extinction of either species. For the final
designation, we have simplified the boundaries by combining all five
reaches into a single section of river.

Consideration of Economic and Other Impacts

Section 4(b)(2) of the Act requires us to consider the economic and
other relevant impacts in determining whether to exclude any proposed
area(s) from the final designation of critical habitat. We may exclude
an area from critical habitat designation if the benefits of its
exclusion outweigh the benefits of its inclusion in critical habitat,
unless failure to designate the area would result in extinction of the
species concerned. In 1995, we conducted an analysis on the potential
economic impacts of the proposed critical habitat designation
(Brookshire et al. 1995).
When we directed the economic analysis in 1995, we assessed the
biological requirements for the recovery of the listed fishes and the
regional economic activities as the basis of the analysis. The
biological requirements needed to ensure recovery of the listed fishes
include adjustments in water diversions in the Virgin River basin and/
or mitigation of nonflow-related activities within the 100-year
floodplain. We also took into consideration the effects of potential
recovery efforts on future water depletions in the basin. The study
region for the economic analysis included Washington and Iron Counties
in Utah, Clark County in Nevada, and the portion of Mohave County in
Arizona located north of the Colorado River.
We believed that Washington County, Utah, and Clark County, Nevada,
would be directly affected by any actions taken by the Service on
behalf of the listed fishes. These counties are presently among the
fastest growing in the United States. From 1980 to 1990, Washington
County's population grew by 52 percent, while Clark County's grew by
62.5 percent. Iron County, Utah, (north of Washington County) is a
rapidly growing area that is economically closely linked to Washington
County. Although the Virgin River does not flow through Iron County,
any economic impacts on Washington County would be felt in Iron County
as well. The Virgin River also flows through a portion of Mohave County
in Arizona. This area has a very small population and a modest economic
base.
In the 1995 economic analysis, we analyzed the economic impacts of
insuring that the biological requirements of the listed fishes were met
in the Virgin River Basin. Our analysis included impacts that were
attributable to the listing itself, through the requirement that
Federal agencies consult with us to ensure that their actions do not
jeopardize the continued existence of the species. Habitat requirements
of the listed fishes have been addressed by the jeopardy standard in
each consultation we have done since the fishes were listed. Although
we separately analyzed the incremental effects of the critical habitat
designation above and beyond the effects of listing, that separation
was based on the incorrect assumption that

[[Page 4147]]

the threshold for an action to result in an adverse modification
determination is less than the threshold for determining that the
action will likely jeopardize the continued existence of a species. We
now recognize that our analysis should have been restricted to the
specific impacts of designating critical habitat, if any, that would
occur above and beyond the economic impacts of the listing, an
interpretation upheld by recent case law (New Mexico Cattle Growers
Association et al. v. United States Fish and Wildlife Service, et al.,
CIV No. 98-0275 BB/DJS-ACE).
In the economic analysis, we also made an assumption that as a
species moves from near extinction to recovery, the likelihood that any
given project will cause adverse modification remains relatively
constant, while the likelihood of jeopardy decreases. While this
assumption will hold true in some circumstances, it has turned out to
be a more complicated situation than initially presumed. Specifically,
factors that alter the likelihood of jeopardy will only alter the
likelihood of adverse modification to the extent that they affect
critical habitat. However, because the adverse modification
determination has its foundation in the likelihood of survival and
recovery, as does the jeopardy determination, factors that increase the
likelihood of adverse modification should logically increase the
likelihood of jeopardy as well. In other words, adverse modification
determinations will generally coincide with jeopardy determinations.
After years of conducting consultations under section 7 of the Act
on actions affecting both a listed species and its critical habitat, we
have learned that the two thresholds are nearly identical. In fact,
biological opinions which conclude that a Federal agency action is
likely to adversely modify critical habitat but not to jeopardize the
species for which it is designated are extremely rare historically.
Although the Service has participated in thousands of formal
consultations (an estimated 900 in Fiscal Year 1999 alone), no such
biological opinions have been issued in recent years. The similar
application of the two standards is true in the specific case of the
listed Virgin River fishes as well. In this final rule we review the
results of the economic analysis in light of the correct assumption
(that the thresholds for adverse modification and jeopardy are usually
identical.)

Results of the Economic Analysis

Summary of Comments

On April 5, 1995, we published the proposed rule and notice of
public hearing in the Federal Register (60 FR 17296). We solicited
public comment on the proposed critical habitat designation and its
associated draft economic analysis. The public comment period was open
from April 5, 1995, to June 5, 1995, and was further extended by
request to June 20, 1995 (60 FR 31444). During the comment period, we
conducted a public hearing in St. George, Utah, on May 8, 1995.
Additional notification of the public hearing and comment period was
provided by letter to appropriate State agencies, county governments,
Federal agencies, and other interested parties. Notice of the proposed
rule, comment period, and the public hearing was also published in the
Kingman Daily Miner, Desert Valley Times, Daily Spectrum, Deseret News,
Salt Lake Tribune, Las Vegas Review Journal, and Las Vegas Sun. During
the comment period, we received 14 written comment letters and 6 people
testified at the public hearing. Copies of all comments were made
available to the public at the Washington County Library, Utah.
Prior to the court order to finalize critical habitat designation,
on August 9, 1999, we published in the Federal Register (64 FR 43206) a
notice of availability of a draft environmental assessment on the
proposed action of designating critical habitat. The public comment
period was open from August 9, 1999, to September 8, 1999. Additional
notification of the availability of the draft environmental assessment
and comment period was provided by letter to appropriate State
agencies, county governments, Federal agencies, and other interested
parties. During the comment period, we received 12 written comment
letters. After a review of all comments received in response to the
draft environmental assessment, on November 24, 1999, we published a
notice of availability of the final environmental assessment and
finding of no significant impact for designation of critical habitat
for the listed fishes (64 FR 66192) .
Some of the information provided during the comment periods is
reflected in this final rule. A summary of the other issues raised in
the written and oral comments regarding the proposed rule, economic
analysis, and draft environmental assessment is provided below.
Issue 1: The critical habitat designation is based on the
assumption that fish populations have declined in occupied reaches. The
critical habitat designation is not warranted because numbers of
individuals of these species may not have declined, although number of
miles occupied has decreased.
Service Response: We disagree. At the time of listing, we
determined that both the woundfin and Virgin River chub warranted
protection under the Act due to a number of factors. These factors
included both a decline in the occupied range of the species as well as
a decline in the abundance of the species. In addition, current data,
both published and unpublished, indicate that the decline in the
woundfin population is continuing. Deacon (1988) showed that a
substantial decline in woundfin occurred in the Virgin River above
Quail Creek Reservoir and below Pah Tempe Springs between 1976 and
1993. He attributed this decline, in part, to a decrease in water
quality because flows above Pah Tempe Springs were diverted at the
Quail Creek Diversion. Prior to 1985, these flows had previously
diluted the high saline input from Pah Tempe Springs. Holden and Zucker
(1996) analyzed data from 1976-1993 that showed a very clear long-term
decline of woundfin at long-term sampling stations in Utah, Arizona,
and Nevada. When they plotted the data as number of woundfin caught per
seining effort per year, they found a statistically significant
negative trend over time (p 0.05) at all stations except one during
the fall season, indicating an overall decline in the woundfin
population. Monitoring data from the Utah Division of Wildlife
Resources (unpublished data, Recovery Team Meeting Minutes, April 29,
1999) show a substantial

[[Page 4148]]

decline from 1994 (total number=456 (spring), 604 (fall)) to 1999
(total number=77 (spring), 162 (fall)).
Anecdotal, historical information suggests that Virgin River chub
were very abundant before the 1900s and that the abundance and range of
Virgin River chub has declined substantially throughout its range in
Utah, Arizona, and Nevada since white settlement and water development.
Reasons for this decline are thought to be mainly habitat destruction.
Habitat is degraded through dewatering of the river system such that
some areas are inundated by reservoirs and other areas are completely
dewatered. Also, competition from nonnative species which may prey on
young life-stages of Virgin River chub may contribute to population
declines (Holden 1977).
Virgin River chub have the lowest densities of any native fish in
the Virgin River (Radant and Coffeen, 1986; Hardy and Addley 1994).
However, observed numbers may or may not reflect actual abundance.
Because Virgin River chub occupy deep holes and habitats that are often
logistically difficult to sample, catch rates can be erratic and
sampling can be difficult to standardize. Based on the long-term data
available, Virgin River chub show a general decline in Utah, Arizona,
and Nevada, particularly since the mid-1980s. Yet in some areas (below
Hurricane Bridge and below Washington Diversion) numbers are stable or
within the range of variability noted in the late 1970s and early 1980s
(Hardy and Addley 1994). Hardy and Addley are careful to note that
declines may be due to droughts and other natural climatic changes.
Natural droughts are no doubt exacerbated by water development and the
human need for water during these years. More recent data are being
analyzed to determine the current status of Virgin River chub and to
determine if declining trends continued through the late 1990s.
Issue 2: The lower portion of La Verkin Creek should be included as
critical habitat for the woundfin.
Service Response: Although woundfin are occasionally collected in
this reach, we are aware of no data that indicate that this area is
being used for reproduction or as a nursery or that it is essential for
the conservation of the species. Therefore, it is not included in this
final critical habitat designation.
Issue 3: Why did we not include the Muddy River in Nevada as
critical habitat for the Virgin River chub?
Service Response: Please see our discussion of the Muddy River
population in the Background section of this final rule. Because the
Muddy River population was not listed, critical habitat designation is
not appropriate. However, we intend to conduct a separate listing
determination for the Muddy River population, which will include an
analysis of the status of the species and a determination about the
prudency and determinability of a critical habitat designation.
Issue 4: The area from Quail Creek Diversion to Pah Tempe Springs
should be included in the critical habitat designation for the
woundfin.
Service Response: While it is possible that this area was
historical habitat for the Virgin River chub, woundfin have never been
found in this reach. It is a high-gradient reach of the river that has
gone dry annually for the past 80 years. When critical habitat was
proposed, this reach of the river was left out because it was dry
dammed. Since critical habitat was proposed, 3 cfs of flows have been
restored to this reach of the river. However, since that time only one
Virgin River chub has been collected in this reach of the Virgin River.
We do not believe that this reach provides those physical or biological
features essential to the conservation of either species.
Issue 5: Additional streams in Arizona should be designated as
critical habitat.
Service Response: On July 24, 1985, we proposed the reintroduction
of the woundfin into the Gila River drainage in Arizona and determined
this population to be ``nonessential experimental'' in accordance with
section 10(j) of the Act (50 FR 30188). The Act prohibits inclusion of
nonessential experimental population areas in critical habitat
designations.
Issue 6: The Virgin River in Utah was segmented into numerous
reaches for designation; no segmenting was done in Nevada or Arizona.
Service Response: Please see our discussion under the ``Summary of
Changes to the Proposed Rule'' section of this final rule.
Issue 7: How is the 100-year floodplain defined, and which parts of
the floodplain are critical habitat?
Service Response: Please see the discussion under the ``Critical
Habitat Designation'' section of this proposed rule.
Issue 8: A 10-year floodplain designation should be sufficient
because the riparian community is maintained at this flow level.
Service Response: Critical habitat, among other things, is intended
to identify areas that may require special management protection or
consideration. Our intention in designating a portion of the floodplain
as critical habitat is to encompass not only the area which provides a
major source of food and nutrients to the river, but also the area
within which the river meanders. Only areas that contain at least one
of the primary constituent elements are considered critical habitat.
Critical habitat that would encompass a 10-year floodplain would not
contain these attributes. Moreover the selection of the 100-year
floodplain is consistent with and supports the goals of Virgin River
Management Plan (1999) and the Proposed Virgin River Resource
Management and Recovery Program, both of which contain provisions for
the protection and enhancement of the 100-year floodplain.
Issue 9: Critical habitat designation is not prudent because of
preparation of the Virgin River Management Plan.
Service Response: As discussed in the implementing regulations at
50 CFR 424.12, critical habitat is considered not prudent when one or
more of the following situation exists:
(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of such threat to the species, or
(2) Such designation of critical habitat would not be beneficial to
the species.
In the absence of any information that indicates that critical
habitat will increase the degree of threat to a species threatened by
taking or other human activity, any small benefit of designation
requires that the designation be found prudent. Although we supported
development of the Virgin River Management Plan (1999), this plan does
not increase the degree of threat to the species nor negate any
benefits that may be provided to the species from critical habitat
designation. Therefore, such designation must be found prudent. The
extent to which this plan will protect the Virgin River is still
unknown. Additionally, this plan only covers the Utah portion of the
habitat. We anticipate that the Virgin River Management Plan and
critical habitat designation will complement each other.
Issue 10: The Service should do NEPA on critical habitat
designation.
Service Response: Please see our discussion under the ``Required
Determinations'' section of this final rule.
Issue 11: The designation does not give full consideration to
existing and future water rights.
Service Response: Critical habitat designation for the Virgin River
listed fishes does not modify nor nullify any existing State water law,
compact agreement, or treaty. Impacts to water development
opportunities within the States are mainly attributable to the effects
of listing these species. It is our

[[Page 4149]]

intent to fully consider State water law, interstate compact
agreements, and treaties in protecting and recovering the listed
fishes. As an example, we worked with the State of Utah and the WCWCD
to develop a Virgin River Management Plan. This plan is intended to
address both the needs for future water development and recovery of the
listed fishes consistent with State water laws and other agreements.

Issues and Responses Pertaining to the Economic Analysis

Because the entire economic analysis was based on our incorrect
assumption that the threshold for an action to result in an adverse
modification determination is less than the threshold for an action to
jeopardize the continued existence of a species, in this final rule we
have concluded that even the small, potential impacts attributable to
critical habitat designation as discussed in the economic analysis, and
summarized in the proposed rule, were overstated and are primarily
attributable to the listing of the woundfin and Virgin River chub.
Although many of the points raised by various commentors on the
economic analysis are no longer relevant given our conclusions about
the economic impacts of critical habitat, we offer the following
responses to the issues raised about the analysis.
Issue 12: The economic analysis incorrectly assumes that converting
agriculture to secondary/culinary water will reduce current flows to
the river.
Service Response: The economic analysis assumed that converting
agricultural water to Municipal and Industrial (M&I) water might result
in decreased river flows. The Utah State Water Plan for the Virgin
River Basin reports water depletion figures for agricultural use to be
45 percent and for M&I use to be 63 percent. Therefore, converting
agricultural use to M&I would result in a net decrease in water returns
of 19 percent. Although return flows may be greater than those used in
the economic analysis, the points at which these flows are returned to
the river remain unknown.
Issue 13: The economic analysis did not assess impacts to Mohave
County, Arizona.
Service Response: The majority of Mohave County's economic activity
falls outside of the Virgin River study area, however, a small part of
Mohave County, was included, mainly around the town of Litchfield,
Arizona. There is little economic activity in this part of Mohave
County, and it includes 0.39 percent of the total population of the
study area. Consequently, the economic activity occurring in Mohave
County was shared out of the total activity for the Virgin River area
based on population. This activity was then incorporated into the Clark
County analysis.
Issue 14: The Washington County Water Conservancy District's
(WCWCD) water plans should have been incorporated into the economic
analysis, and sensitivity analyses regarding the hydrologic assumptions
should have been conducted.
Service Response: The WCWCD's water plans, as represented by the
report ``Population Projections and Future Water Demands'', prepared by
Boyle Engineering (1994) for WCWCD, were, in fact, used in creating the
baseline scenario. The hydrologic assumptions were structured such that
the resulting economic analysis always yielded a worst-case set of
economic impacts. Thus, sensitivity analysis would only lower the
impacts presented in the report.
Issue 15: The Service's choice of the modeling methodology and the
choice of discount rates used in the economic analysis were presented
without explanation of why other models or discount rates were
rejected.
Service Response: The Act requires the calculation of the economic
impacts of critical habitat designation. The use of the contingent
valuation method for inclusion in cost-benefit analysis is not germane.
Our use of input-output analysis yielded both the direct and indirect
impacts associated with recovery needs of the listed fishes. Regarding
the discount rate, the discounting procedures and assumptions used
represent the ``industry standard.'' The extant economic literature
clearly calls for a positive discount rate for economic analyses
addressing water allocation issues.
Issue 16: Private landowner effects, water right reallocations,
loss of open space, and community character should have been addressed
by the economic analysis.
Service Response: There are no additive impacts to private property
owners from critical habitat designation that were not present when the
species were listed. If Federal funding or Federal permits are required
for a private action, the Federal action agency must then consult with
the Service. All transactions associated with the reallocation of water
are voluntary market transactions and are not impacts of this action.
The extent to which the community chooses to allow the loss of open
space and changes in community character is beyond the scope of the
economic analysis. It should be noted, however, that the designation of
critical habitat along another river-floodplain system, the 100-year
floodplain of the Colorado River, has not precluded the setting aside
of open space or development of parks and trails within the floodplain
or adjacent to the river.
Issue 17: It was improper to attribute benefits of water
conservation to critical habitat designation in the economic analysis.
Service Response: Water conservation will be realized, with or
without the listed fishes or a critical habitat designation, by water
management and conservation measures currently being implemented or
planned in the future within the study area, in particular, Washington
County. The economic analysis did not attribute the benefits of water
conservation to listed fishes recovery and conservation. Rather, the
water conservation scenario serves to demonstrate that the economic
impacts of the listed fishes including designation of critical habitat
can be mitigated with moderate conservation efforts.
Issue 18: The economic analysis did not document the gross overuse
and waste of water in Washington County.
Service Response: The report ``Population Projections and Future
Water Demands'', prepared by Boyle Engineering (1994) for WCWCD
addressed these matters. Further analysis in these regards is beyond
the scope of the economic analysis.
Issue 19: Not enough weight is given in the economic analysis to
the consequences of the conversions of agricultural lands in Washington
County due to critical habitat.
Service Response: The agricultural lands conversions that are
projected to occur during the economic analysis study period are
generated by the population growth that is projected for the region,
not by the needs of the listed fishes or the designation of critical
habitat. These agricultural lands are, in fact, incorporated in the
baseline projection of the economy without taking the fish needs into
consideration. The fish needs may accelerate the retirement of
agricultural water rights in order to maintain water in the Virgin
River for the listed fishes and still allow for water development to
occur to meet the needs of a growing human population. This incremental
retirement of water and conversion of land is attributable mainly to
the listing of these fishes and was incorporated into the economic
analysis.
Issue 20: The time period for the economic analysis is too short
and omits the long term impacts of the designation of critical habitat.

[[Page 4150]]

Service Response: The study period for the economic analysis (1995-
2040) was selected for the reasons described previously in this rule.
By the end of this period, the population of Washington County is
projected to be 380,600 people. Development projections undertaken by
Boyle Engineering (1994) place the maximum population of Washington
County at approximately 350,000 at population density levels consistent
with the present lifestyles of the area. Thus, the population will have
reached a steady state by the end of the study period used in the
economic analysis and further impacts are not anticipated.
The comment further assumes that water maintained to meet the flow
needs of the fish in critical habitat is lost to the national economy.
While the Washington County area cannot develop this water, Las Vegas,
Nevada, could use it after it reaches Halfway Wash. From a national
perspective, the water may well have a higher value in Las Vegas than
in Washington County, Utah, because of the larger, more diverse economy
in Clark County, Nevada.
Issue 21: The retirement of agricultural lands is not correctly
addressed in the economic analysis. If land retirements are market
driven, then the low productivity lands will be converted first and the
high productivity lands last.
Service Response: This point is correct. The economic analysis uses
the average (county-level) productivity to value all agricultural
lands. This approach overstates the economic impacts due to the listed
fishes and critical habitat designation because the discounted present
value of agricultural retirements is higher when the average land value
is used. This is consistent with the approach calculating the worst-
case economic impacts.
Issue 22: The economic analysis does not measure the national
efficiency effects of critical habitat designation.
Service Response: In accordance with the Act and the regulations
that implement it, the final designation of critical habitat is made on
the basis of the best available scientific data, after taking into
consideration the probable economic and other impacts of the
designation upon proposed or ongoing activities. The national
efficiency effects are computed and reported in the economic analysis
prepared by Brookshire et al. 1995 (see Chapter 8) and summarized in
the proposed rule. The economic analysis discusses the conditions under
which the factor payments computed from the input-output analysis may
be used to value the national efficiency changes.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order 12866, this action was submitted
for review by the Office of Management and Budget. This final rule
identifies the areas being designated as critical habitat for the
woundfin and Virgin River chub. The designation will not have an annual
economic effect of $100 million. Our summary of the economic impacts of
designation is discussed earlier in this final rule. This rule will not
create inconsistencies with other agencies' actions. This rule will not
materially affect entitlements, grants, user fees, loan programs, or
the rights and obligations of their recipients. Proposed and final
rules designating critical habitat for listed species are issued under
the authority of the Act. Critical habitat regulations are issued under
procedural rules contained in 50 CFR part 424. Based on previous formal
and informal consultations with other Federal agencies under section 7
of the Endangered Species Act, the Service has determined that there
are no economic impacts of critical habitat designation above and
beyond the impacts of the original listing of the species. Cases
identified in the economic analysis as a potential economic impact of
critical habitat designation are actions that would also result in a
finding of ``jeopardize the continued existence of the species'' during
section 7 consultation. Thus, any economic impact associated with the
Virgin River chub and woundfin is one incurred by the original listing
of the species, not by this critical habitat designation.

Regulatory Flexibility Act

This rule will not have a significant economic effect on a
substantial number of small entities as defined under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). As explained previously in this
final rule, the designation will not have economic effects above and
beyond those attributed to the listing of the species. This is because
the prohibition against destroying or adversely modifying critical
habitat is essentially duplicative of the prohibition against
jeopardizing the continued existence of the species, and therefore,
there are no additional economic effects that are not already incurred
by the listing of the species.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule does not have
an annual effect on the economy of $100 million or more. As explained
in this rule, we do not believe that the designation will have economic
effects above and beyond those attributed to the listing of the
species. This rule will not cause a major increase in costs or prices
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions, because the designation
will not have significant economic effects above and beyond the listing
of the species. This rule does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.

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

Based on our analysis of the economic impacts of this rule as
discussed above, and in accordance with the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.), this rule will not significantly affect
small governments because it will not place additional burdens on small
(State, local, or Tribal) governments. This rule will not produce a
Federal mandate of $100 million or greater in any year (i.e., it is not
a significant regulatory action under the Unfunded Mandates Reform
Act.)

Takings

In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. Although the critical habitat designation includes 55.9
kilometers of privately owned shoreline of the mainstem Virgin River,
this final rule will not ``take'' private property rights and will not
alter the value of private property. Critical habitat designation is
only applicable to Federal lands, or to private lands if a Federal
nexus exists (i.e., if a Federal agency authorizes or funds an action
on private land). Private actions without a federal nexus on private
land are not subject to any critical habitat prohibitions. Any private
actions on private land that have a Federal nexus are already subject
to consultation under section 7 of the Endangered Species Act. Because
we have identified no economic effects of critical habitat designation
above and beyond those that have accrued from the listing of these
species, there are no takings implications.

Federalism

In accordance with Executive Order 13132, this final rule will not
affect the structure or role of States, and will not have direct,
substantial, or significant

[[Page 4151]]

effects on States. As previously stated, critical habitat is applicable
only to Federal lands or to non-Federal lands to the extent that
activities require Federal funding or permitting. Also, we have
determined that additional economic impacts would not result from this
critical habitat designation.
In keeping with Department of the Interior policy, we requested
information from and coordinated development of the critical habitat
proposal with the appropriate State resource agencies in Utah, Arizona,
and Nevada. On August 9, 1999, we published in the Federal Register (64
FR 43206) a notice of availability of a draft environmental assessment
on the proposed action of designating critical habitat. The public
comment period was open from August 9, 1999, to September 8, 1999.
Additional notification of the availability of the draft environmental
assessment and comment period was provided by letter to appropriate
State agencies, county governments, Federal agencies, and other
interested parties. During the comment period, we received 12 written
comment letters, which were considered in finalizing this rule.
It is our intent to fully consider State water law, interstate
compact agreements, and treaties in protecting and recovering the
listed fishes. As an example, we worked with the State of Utah and the
WCWCD to develop a Virgin River Management Plan (1999). This plan is
intended to address both the needs for future water development and
recovery of the listed fishes consistent with State water laws and
other agreements. The selection of the 100-year floodplain as the
boundary for this critical habitat designation is consistent with and
supports the goals of the Virgin River Management Plan and the Proposed
Virgin River Resource Management and Recovery Program, both of which
involve the State of Utah.

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and does meet the requirements of sections 3(a) and
3(b)(2) of the Order. The final designation of critical habitat for the
woundfin and Virgin River chub has been reviewed extensively. Every
effort has been made to ensure that the rule contains no drafting
errors, provides clear standards, simplifies procedures, reduces
burden, and is clearly written such that litigation risk is minimized.

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

This rule does not contain any information collection requirements
for which Office of Management and Budget approval under the Paperwork
Reduction Act is required.

National Environmental Policy Act

It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996)). However, when the range of the species
includes States within the Tenth Circuit, pursuant to the Tenth Circuit
ruling in Catron County Board of Commissioners v. U.S. Fish and
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA
analysis for critical habitat designation. We have completed that
analysis through an Environmental Assessment and Finding of No
Significant Impact.

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) and procedures outlined by the Department
of the Interior (512 DM 2), we recognize our responsibility to work
with federally recognized Tribes on a Government-to-Government basis.
Moreover, the 1997 Secretarial Order on Native Americans and the Act
clearly states that Tribal lands should not be designated unless
absolutely necessary for the conservation of the species. According to
the Secretarial Order, ``Critical habitat shall not be designated in
such areas [an area that may impact Tribal trust resources] unless it
is determined essential to conserve a listed species.'' We are unaware
of any Tribal lands containing habitat essential to the conservation of
the listed fishes.

References Cited

A complete list of all references cited is available upon request
from the Field Supervisor, Salt Lake City Field Office (see ADDRESSES
section).

Authors

The primary authors of this rule are Henry R. Maddux and Janet
Mizzi, previously of our Salt Lake City Field Office, Patty Stevens of
our Denver Regional Office, and Keith Rose of our Salt Lake City Field
Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

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--[AMENDED]

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.

Sec. 17.11 [Amended]

2. Amend section 17.11(h) by revising the entry in the critical
habitat column of the entry for ``Chub, Virgin River,'' and
``Woundfin'', under FISHES, to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
--------------------------------------------------------- population where When Critical Special
Historic range endangered or Status listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
FISHES
* * * * * * *
Chub, Virgin River................ Gila robusta U.S.A. (AZ, NV, UT) ........do.......... E 361 Sec. 17.95(e) NA
seminuda.

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* * * * * * *
Woundfin.......................... Plagopterus U.S.A. (AZ, NV, UT), Entire, except Gila E 2,193 Sec. 17.95(e) NA
argentissimus. Mexico. River drainage, AZ,
NM.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. Amend Section 17.95(e) by adding critical habitat of the Virgin
River chub (Gila robusta seminuda) and woundfin (Plagopterus
argentissimus) in the same alphabetical order as these species occur in
17.11(h).

Sec. 17.95 Critical habitat-fish and wildlife.

* * * * *
(e) * * *
* * * * *
Virgin River Chub (Gila seminuda)
Legal descriptions for St. George (Utah-Arizona) and Littlefield
(Arizona) were obtained from the 1987 Bureau of Land Management (BLM)
maps (Surface Management Status 30 x 60 Minute Quadrangle). Legal
descriptions for Overton (Nevada-Arizona) were obtained from the 1989
BLM maps (Surface Management Status 30 x 60 Minute Quadrangle). The
100-year floodplain for many areas is detailed in Flood Insurance Rate
Maps (FIRM) published by and available through the Federal Emergency
Management Agency (FEMA). In areas where a FIRM is not available, the
presence of alluvium soils or known high water marks can be used to
determine the extent of the floodplain. Only areas of floodplain
containing at least one of the constituent elements are considered
critical habitat. Critical habitat designated for the Virgin River chub
is as follows:
Utah, Washington County; Arizona, Mohave County; Nevada, Clark
County. The Virgin River and its 100-year floodplain from its
confluence with La Verkin Creek, Utah in T.41S., R.13W., sec.23 (Salt
Lake Base and Meridian) to Halfway Wash, Nevada T.15S., R.69E., sec.6
(Salt Lake Base and Meridian).
The primary constituent elements of critical habitat determined
necessary for the survival and recovery of these Virgin River fishes
are water, physical habitat, and biological environment. The desired
conditions for each of these elements are further discussed below.
Water--A sufficient quantity and quality of water (i.e.,
temperature, dissolved oxygen, contaminants, nutrients, turbidity,
etc.) that is delivered to a specific location in accordance with a
hydrologic regime that is identified for the particular life stage for
each species. This includes the following:
1. Water quality characterized by natural seasonally variable
temperature, turbidity, and conductivity;
2. hydrologic regime characterized by the duration, magnitude, and
frequency of flow events capable of forming and maintaining channel and
instream habitat necessary for particular life stages at certain times
of the year; and
3. flood events inundating the floodplain necessary to provide the
organic matter that provides or supports the nutrient and food sources
for the listed fishes.
Physical Habitat--Areas of the Virgin River that are inhabited or
potentially habitable by a particular life stage for each species, for
use in spawning, nursing, feeding, and rearing, or corridors between
such areas:
1. River channels, side channels, secondary channels, backwaters,
and springs, and other areas which provide access to these habitats;
and
2. areas with slow to moderate velocities, within deep runs or
pools, with predominately sand substrates, particularly habitats which
contain boulders or other instream cover.
Biological Environment--Food supply, predation, and competition are
important elements of the biological environment and are considered
components of this constituent element. Food supply is a function of
nutrient supply, productivity, and availability to each life stage of
the species. Predation and competition, although considered normal
components of this environment, are out of balance due to nonnative
fish species in many areas. Fourteen introduced species, including red
shiner (Cyprinella lutrensis), black bullhead (Ameiurus melas), channel
catfish (Ictalurus punctatus), and largemouth bass (Micropterus
salmoides), compete with or prey upon the listed fishes. Of these, the
red shiner is the most numerous and has been the most problematic for
the listed fishes. Red shiners compete for food and available habitats
and are known to prey on the eggs and early life stages of the listed
fishes. Components of this constituent element include the following:
1. Seasonally flooded areas that contribute to the biological
productivity of the river system by producing allochthonous (humus,
silt, organic detritus, colloidal matter, and plants and animals
produced outside the river and brought into the river) organic matter
which provides and supports much of the food base of the listed fishes;
and
2. few or no predatory or competitive nonnative species in occupied
Virgin River fishes' habitats or potential reestablishment sites.

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[GRAPHIC] [TIFF OMITTED] TR26JA00.000

[[Page 4154]]

Woundfin (Plagopterus argentissimus)
Legal descriptions for St. George (Utah-Arizona) and Littlefield
(Arizona) were obtained from the 1987 BLM maps (Surface Management
Status 30 x 60 Minute Quadrangles). Legal descriptions for Overton
(Nevada-Arizona) were obtained from the 1989 BLM maps (Surface
Management Status 30 x 60 Minute Quadrangles). The 100-year floodplain
for many areas is detailed in Flood Insurance Rate Maps (FIRM)
published by and available through the Federal Emergency Management
Agency (FEMA). In areas where a FIRM is not available, the presence of
alluvium soils or known high water marks can be used to determine the
extent of the floodplain. Only areas of floodplain containing at least
one of the constituent elements are considered critical habitat.
Critical habitat designated for the woundfin is as follows:
Utah, Washington County; Arizona, Mohave County; Nevada, Clark
County. The Virgin River and its 100-year floodplain from its
confluence with La Verkin Creek, Utah in T.41S., R.13W., sec.23 (Salt
Lake Base and Meridian) to Halfway Wash, Nevada T.15S., R.69E., sec.6
(Salt Lake Base and Meridian).
The primary constituent elements of critical habitat determined
necessary for the survival and recovery of these Virgin River fishes
are water, physical habitat, and biological environment. The desired
conditions for each of these elements are further discussed below.
Water--A sufficient quantity and quality of water (i.e.,
temperature, dissolved oxygen, contaminants, nutrients, turbidity,
etc.) that is delivered to a specific location in accordance with a
hydrologic regime that is identified for the particular life stage for
each species. This includes the following:
1. Water quality characterized by natural seasonally variable
temperature, turbidity, and conductivity;
2. hydrologic regime characterized by the duration, magnitude, and
frequency of flow events capable of forming and maintaining channel and
instream habitat necessary for particular life stages at certain times
of the year; and
3. flood events inundating the floodplain necessary to provide the
organic matter that provides or supports the nutrient and food sources
for the listed fishes.
Physical Habitat--Areas of the Virgin River that are inhabited or
potentially habitable by a particular life stage for each species, for
use in spawning, nursing, feeding, and rearing, or corridors between
such areas:
1. River channels, side channels, secondary channels, backwaters,
and springs, and other areas which provide access to these habitats;
2. areas inhabited by adult and juvenile woundfin include runs and
pools adjacent to riffles that have sand and sand/gravel substrates;
3. areas inhabited by juvenile woundfin are generally deeper and
slower. When turbidity is low, adults also tend to occupy deeper and
slower habitats;
4. areas inhabited by woundfin larvae include shoreline margins and
backwater habitats associated with growths of filamentous algae.
Biological Environment--Food supply, predation, and competition are
important elements of the biological environment and are considered
components of this constituent element. Food supply is a function of
nutrient supply, productivity, and availability to each life stage of
the species. Predation and competition, although considered normal
components of this environment, are out of balance due to nonnative
fish species in many areas. Fourteen introduced species, including red
shiner (Cyprinella lutrensis), black bullhead (Ameiurus melas), channel
catfish (Ictalurus punctatus), and largemouth bass (Micropterus
salmoides), compete with or prey upon the listed fishes. Of these, the
red shiner is the most numerous and has been the most problematic for
the listed fishes. Red shiners compete for food and available habitats
and are known to prey on the eggs and early life stages of the listed
fishes. Components of this constituent element include the following:
1. Seasonally flooded areas that contribute to the biological
productivity of the river system by producing allochthonous (humus,
silt, organic detritus, colloidal matter, and plants and animals
produced outside the river and brought into the river) organic matter
which provides and supports much of the food base of the listed fishes;
and
2. few or no predatory or competitive nonnative species in occupied
Virgin River fishes' habitats or potential reestablishment sites.

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[[Page 4155]]

[GRAPHIC] [TIFF OMITTED] TR26JA00.001

[[Page 4156]]

Dated: January 18, 2000.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-1746 Filed 1-25-00; 8:45 am]
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