[Federal Register: August 3, 2005 (Volume 70, Number 148)]
[Page 44681-44684]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Notice of Scoping Meetings and Intent To Prepare an Environmental 
Assessment for the Proposed Designation of a Nonessential Experimental 
Population of Rio Grande Silvery Minnow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of intent.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
providing this notice to advise the public that a draft environmental 
assessment will be prepared, pursuant to the National Environmental 
Policy Act (NEPA) of 1969, as amended, in conjunction with a proposed 
rule to establish, under section 10(j) of the Endangered Species Act of 
1973, as amended (Act), a Nonessential Experimental Population (NEP) of 
Rio Grande silvery minnow (Hybognathus amarus) (silvery minnow) in the 
Rio Grande River in Big Bend National Park and the Rio Grande Wild and 
Scenic River in Texas. We will hold three public informational sessions 
and scoping meetings (see DATES and ADDRESSES sections).
    Through this notice and the public scoping meetings, we are seeking 
comments or suggestions from the public, other concerned governmental 
agencies, Tribes, the scientific community, industry, or any other 
interested parties concerning the scope of the environmental analysis, 
including the alternatives that should be analyzed.

DATES: Comments must be submitted directly to the Service (see 
ADDRESSES section) on or before September 19, 2005, or at any of the 
three scoping meetings to be held in August 2005.
    We will hold public informational sessions followed by scoping 
meetings at the following dates and times:
    1. September 20, 2005: Sanderson, TX. Informational session: 5:30 
p.m. Scoping meeting: 7 p.m.
    2. September 21, 2005: Alpine, TX. Informational session: 5:30 p.m. 
Scoping meeting: 7 p.m.
    3. September 22, 2005: Presidio, TX. Informational session: 5:30 
p.m. Scoping meeting 7 p.m.



    The public informational sessions and scoping meetings will be held 
at the following locations:
    1. Sanderson, TX: Sanderson Community Meeting Hall, 108 Hackberry 
Street, Sanderson, TX 79848.
    2. Alpine, TX: Sul Ross State University, Gallego Center, Room 129, 
East Highway 90, Alpine, TX 79832.
    3. Presidio, TX: Presidio Activity Center, 1400 East O'Reilly 
Street, Presidio, TX 79845.
    Information, comments, or questions related to preparation of the 
draft environmental assessment and the NEPA process should be submitted 
to Joy Nicholopoulos, State Administrator, U.S. Fish and Wildlife 
Service, New Mexico Ecological Services Field Office, 2105 Osuna NE, 
Albuquerque, New Mexico, 87113. Written comments may also be sent by 
facsimile to (505) 346-2542 or by e-mail to R2FWE_AL@fws.gov. For 
directions on how to submit electronic filing of comments, see the 
``Public Comments Solicited'' section.

FOR FURTHER INFORMATION CONTACT: Questions regarding the scoping 
process, preparation of the draft environmental assessment, or the 
development of a proposed rule designating a NEP may be directed to 
Jennifer Parody at telephone number (505) 761-4710. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 
days a week.


Public Comments Solicited

    We intend for our draft environmental assessment (EA) to consider 
reasonable alternatives for the establishment of a NEP of silvery 
minnow. We also wish to ensure that any proposed rulemaking to 
establish a NEP effectively evaluates all potential issues and impacts. 
Therefore, we are seeking comments and suggestions on the following 
issues for consideration in the preparation of the draft EA and the 
proposed rule concerning a NEP for the silvery minnow. This list is not 
intended to be all inclusive and comments on any other pertinent issues 
are welcome.
    Issues related to the scope of the NEP:
    (a) The reasons why any particular area of the Rio Grande River 
from Little Box Canyon downstream of Ft. Quitman, Hudspeth County, TX, 
through Big Bend National Park and the Rio Grande Wild and Scenic 
River, to Amistad Dam and the Railroad Bridge at Diablo East, Amistad 
Reservoir and the Pecos River from its confluence with Independence 
Creek to its confluence with the Rio Grande should or should not be 
included in a NEP designation.
    (b) Information on the distribution and quality of habitat for the 
silvery minnow, land or water use practices, and current or planned 
activities in areas that may be affected by a designation of a NEP.
    Issues related to evaluation of the environmental impacts:
    The general question on which we are seeking comments is the 
identification of direct, indirect, beneficial, and adverse effects 
caused by the establishment of a NEP of silvery minnow. In addressing 
this question, you may wish to consider the following issues:
    (a) Impacts on floodplains, wetlands, wild and scenic rivers, or 
ecologically sensitive areas;
    (b) Impacts on park lands and cultural or historic resources;
    (c) Impacts on human health and safety;
    (d) Impacts on air, soil, and water;
    (e) Impacts on prime agricultural lands;
    (f) Impacts to other endangered or threatened species;
    (g) Disproportionately high and adverse impacts on minority and 
low-income populations;
    (h) Any other potential or socioeconomic effects; and
    (i) Any potential conflicts with other Federal, State, local, or 
Tribal environmental laws or requirements.

[[Page 44682]]

    We seek comment from Federal, State, local, or Tribal government 
agencies; the scientific or business community; landowners; or any 
other interested party. To promulgate a proposed rule and to determine 
whether to prepare a finding of no significant impact or an 
environmental impact statement, we will take into consideration all 
comments and any additional information received. All comments, 
including names and addresses, will become part of the supporting 
    If you wish to provide comments and/or information, you may submit 
your comments and materials by any one of several methods (see 
ADDRESSES). Comments submitted electronically should be in the body of 
the e-mail message itself or attached as a text file (ASCII), and 
should not use special characters or encryption. Please also include 
``Attn: Silvery Minnow NEPA Scoping,'' your full name, and your return 
address in your e-mail message. If you do not receive a confirmation 
from the system that we have received your e-mail message, contact us 
directly by calling our New Mexico Ecological Services Field Office 
(see ADDRESSES section).
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Respondents may request that we withhold their home 
addresses, which we will honor to the extent allowable by law. There 
also may be circumstances in which we would withhold a respondent's 
identity, as allowable by law. If you wish for us to withhold your name 
and/or address, you must state this request prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. To the extent consistent with applicable law, we will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at New Mexico 
Ecological Services Field Office in Albuquerque, New Mexico (see 
    We will give separate notice of the availability of the draft EA 
when completed, so that interested and affected people may comment on 
the draft and have input into the final decision.


    This species was historically one of the most abundant and 
widespread fishes in the Rio Grande Basin, occurring from 
Espa[ntilde]ola, NM, to the Gulf of Mexico (Bestgen and Platania 1991). 
It was also found in the Pecos River, a major tributary of the Rio 
Grande, from Santa Rosa, NM, downstream to its confluence with the Rio 
Grande (Pflieger 1980). The silvery minnow is extirpated from the Pecos 
River and also from the Rio Grande downstream of Elephant Butte 
Reservoir and upstream of Cochiti Reservoir (Bestgen and Platania 
1991). The current distribution of the silvery minnow is limited to the 
Rio Grande River between Cochiti Dam and Elephant Butte Reservoir, 
which amounts to only about 5 percent of its historic range. Throughout 
much of its historic range, the decline of the silvery minnow has been 
attributed to modification of the flow regime (hydrological pattern of 
flows that vary seasonally in magnitude and duration, depending on 
annual precipitation patterns such as runoff from snowmelt), channel 
drying, reservoirs and dams, stream channelization, and perhaps both 
interactions with non-native fish and decreasing water quality (Cook et 
al. 1992; Bestgen and Platania 1991; Service 1999; Buhl 2002). 
Development of agriculture and the growth of cities within the historic 
range of the silvery minnow resulted in a decrease in the quality of 
river water caused by municipal and agricultural runoff (i.e., sewage 
and pesticides) that may have also adversely affected the range and 
distribution of the silvery minnow.
    The various life history stages of the silvery minnow require 
shallow waters with a sandy and silty substrate that is generally 
associated with a meandering river that includes sidebars, oxbows, and 
backwaters (C. Hoagstrom, pers. comm. 2001; Bestgen and Platania 1991; 
Platania 1991). Although the silvery minnow is a hearty fish, capable 
of withstanding many of the natural stresses of the desert aquatic 
environment, most individual silvery minnows live only one year 
(Bestgen and Platania 1991). Thus, a successful annual spawn is key to 
the survival of the species (Platania and Hoagstrom 1996; Service 1999; 
Dudley and Platania 2001, 2002). More information about the life 
history and decline of the silvery minnow can be found in the final 
designation of critical habitat for the species (February 19, 2003; 68 
FR 8088) and in the Rio Grande Silvery Minnow Recovery Plan (Service 

Recovery Efforts

    We published the final rule to list the silvery minnow on July 20, 
1994 (59 FR 36988). Restoring an endangered or threatened species to 
the point where it is recovered is a primary goal of our endangered 
species program. Thus, on July 1, 1994, the Recovery Team was 
established by us pursuant to section 4(f)(2) of the Act (16 U.S.C. 
1531 et. seq.) and our cooperative policy on recovery plan 
participation, a policy intended to involve stakeholders in recovery 
planning (July 1, 1994; 59 FR 34272). Stakeholder involvement in the 
development of recovery plans helps minimize the social and economic 
impacts that could be associated with recovery of endangered species 
and facilitates implementation of recovery objectives. Numerous 
individuals, agencies, and affected parties were involved in the 
development of the Recovery Plan or otherwise provided assistance and 
review (Service 1999). On July 8, 1999, we finalized the Recovery Plan 
(Service 1999). Efforts are currently underway to update the Recovery 
    The Recovery Plan recommends recovery goals for the silvery minnow, 
as well as procedures to better understand the biology of the species. 
The primary objective of the Recovery Plan is to delist the silvery 
minnow. The primary goals that are designed to achieve this are to: (1) 
Stabilize and enhance populations of silvery minnow and its habitat in 
the middle Rio Grande valley; and (2) reestablish the silvery minnow in 
at least three other areas of its historic range (Service 1999). The 
silvery minnow's range has been so greatly restricted that the species 
is extremely vulnerable to catastrophic events, such as a prolonged 
period of low or no flow (i.e., the loss of all surface water) (Dudley 
and Platania 2001). Reestablishment of silvery minnow into other areas 
of its historic range will assist in the species' recovery and long-
term survival in part because it is unlikely that any single event 
would simultaneously eliminate the silvery minnow from three geographic 
areas (Service 1999).
    The final designation of critical habitat for the silvery minnow 
was published on February 19, 2003 (68 FR 8088). In the process of 
designating critical habitat, we determined that a river reach of the 
Rio Grande in Big Bend National Park and the Rio Grande Wild and Scenic 
River to the Terrell/Val Verde County line, TX, is essential to the 
conservation of the silvery minnow; however, this area was not proposed 
for critical habitat designation, as explained

[[Page 44683]]

in the proposed (June 6, 2002; 67 FR 39206) and final rules. Since the 
silvery minnow is extirpated from this area and natural repopulation is 
not possible without human assistance, we believe an experimental 
population is the appropriate tool to achieve this recovery objective. 
Our conservation strategy for the silvery minnow is to establish 
populations within its historic range under section 10(j) of the Act, 
which could include all or portions of this stream reach (February 19, 
2003; 68 FR 8088).
    The continuing presence of other members of the pelagic spawning 
guild (e.g., species with semibuoyant eggs, like the silvery minnow, 
such as the speckled chub and Rio Grande shiner) are evidence that the 
Rio Grande through the Big Bend National Park and Rio Grande Wild and 
Scenic River areas may support reestablishment of silvery minnow 
(Platania 1990; IBWC 1994). Moreover, water quality in this reach, as 
compared to that of the reach upstream of the Park, is greatly improved 
as a result of the many freshwater springs in the area (MacKay 1993; R. 
Skiles, pers. comm. 2001; IBWC 1994). This area, which is protected and 
managed by the National Park Service, currently supports a relatively 
stable hydrologic regime (R. Skiles, pers. comm. 2001).
    In accordance with the Recovery Plan, we have initiated a captive 
propagation program for the silvery minnow (Service 1999). We currently 
have silvery minnows housed at: (1) the Service's Dexter National Fish 
Hatchery and Technology Center, (2) the City of Albuquerque's 
Biological Park, and (3) the New Mexico State University. Progeny of 
these fish are being used to augment the middle Rio Grande silvery 
minnow population, but could also be used in future augmentation or 
reestablishment programs for the silvery minnow in other river reaches 
(J. Remshardt, New Mexico Fishery Resources Office, pers. comm. 2001).

Experimental Populations

    Congress made significant changes to the Act in 1982 with the 
addition of section 10(j), which provides for the designation of 
specific reintroduced populations of listed species as ``experimental 
populations.'' Under section 10(j), the Secretary of the Department of 
the Interior can designate reintroduced populations established outside 
the species' current range, but within its historic range, as 
``experimental.'' On the basis of the best scientific and commercial 
data available, we must determine whether an experimental population is 
``essential'' or ``nonessential'' to the continued existence of the 
    The Service is proposing to establish a NEP of silvery minnow in 
the Big Bend stretch of the Rio Grande, because we believe this 
experimental population would not be essential to the continued 
existence of the species for the following reasons:
    (a) An established population of silvery minnow exists in New 
    (b) Captive propagation facilities produce enough offspring to 
maintain a captive population and provide silvery minnow for release; 
    (c) The possible failure of this action would not be likely to 
reduce the likelihood of survival of the species.
    Under the Act, species listed as endangered or threatened are 
afforded protection primarily through the prohibitions of section 9 and 
the requirements of section 7. Section 9 of the Act prohibits the take 
of endangered wildlife. ``Take'' is defined in section 3 of the Act as 
``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or attempt to engage in any such conduct.'' Service 
regulations (50 CFR 17.31) generally extend the prohibition of take to 
threatened wildlife. Section 7 of the Act outlines the procedures for 
Federal interagency cooperation to conserve federally listed species 
and protect designated critical habitats. It mandates all Federal 
agencies to determine how to use their existing authorities to further 
the purposes of the Act to aid in recovering listed species. It also 
states that Federal agencies will, in consultation with the Service, 
ensure that any action they authorize, fund, or carry out is not likely 
to jeopardize the continued existence of a listed species or result in 
the destruction or adverse modification of designated critical habitat. 
Section 7 of the Act does not affect activities undertaken on private 
lands unless they are authorized, funded, or carried out by a Federal 
    For purposes of section 9 of the Act, a population designated as 
experimental is treated as threatened regardless of the species' 
designation elsewhere in its range. Through section 4(d) of the Act, 
threatened designation allows us greater discretion in devising 
management programs and special regulations for such a population. 
Section 4(d) of the Act allows us to adopt regulations that are 
necessary to provide for the conservation of a threatened species. In 
these situations, the general regulations that extend most section 9 
prohibitions to threatened species do not apply to that species, and 
the special 4(d) rule contains the prohibitions and exemptions 
necessary and appropriate to conserve that species. Regulations issued 
under section 4(d) for NEPs are usually more compatible with routine 
human activities in the reintroduction area.
    For the purposes of section 7 of the Act, we treat NEPs as 
threatened species when the NEP is located within a National Wildlife 
Refuge or National Park, and section 7(a)(1) and the consultation 
requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) 
requires all Federal agencies to use their authorities to conserve 
listed species. Section 7(a)(2) requires that Federal agencies, in 
consultation with the Service, ensure any actions they authorize, fund, 
or carry out are not likely to jeopardize the continued existence of a 
listed species or adversely modify its critical habitat. When NEPs are 
located outside a National Wildlife Refuge or National Park, we treat 
the population as proposed for listing and only two provisions of 
section 7 would apply; section 7(a)(1) and section 7(a)(4). In these 
instances, NEPs provide additional flexibility because Federal agencies 
are not required to consult with us under section 7(a)(2). Section 
7(a)(4) requires Federal agencies to confer with the Service on actions 
that are likely to jeopardize the continued existence of a proposed 
species. The results of a conference are advisory in nature and do not 
restrict agencies from carrying out, funding, or authorizing 
    Individual silvery minnows used to establish a NEP may come from a 
donor population, provided their removal will not create adverse 
impacts upon the parent population, and provided appropriate permits 
are issued in accordance with our regulations (50 CFR 17.22) prior to 
their removal.
    In order to establish a NEP, we must issue a proposed regulation 
and consider public comments on the proposed rule prior to publishing a 
final regulation. In addition, we must comply with NEPA (42 U.S.C. 4321 
et seq.). Also, our regulations require that, to the maximum extent 
practicable, a regulation issued under section 10(j) of the Act 
represents an agreement between the Service, the affected State and 
Federal agencies, and persons holding any interest in land that may be 
affected by the establishment of the experimental population (see 50 
CFR 17.81(d)).
    We have not yet identified possible alternatives for accomplishing 
our recovery goals in the Big Bend stretch of the Rio Grande River, and 
we do not know what the preferred alternative (the proposed action) or 
other alternatives might entail. Once identified, the

[[Page 44684]]

alternatives will be carried forward into detailed analyses pursuant to 
    We will take the following steps prior to making a decision 
regarding any release of the silvery minnow as ``experimental'': (1) 
Compile and analyze all new biological information on the species; (2) 
review and update the administrative record covering previous Federal 
actions for the species; (3) review the overall approach to the 
conservation and recovery of the silvery minnow in the United States; 
(4) review available information that pertains to the habitat 
requirements of this species, including material received during the 
public comment period for this notice, during the scoping meetings, and 
from previous rulemakings; (5) review actions identified in the 
Recovery Plan (Service 1999); (6) coordinate with State, county, local, 
and Federal partners; (7) coordinate with Mexican authorities; (8) 
write a draft EA and present alternatives to the public for review and 
comment; (9) incorporate public input and use current knowledge of 
silvery minnow habitat use and availability to precisely map the 
potential experimental population area; (10) publish a proposed 
experimental population rule in the Federal Register and solicit 
comments from the public; (11) finalize the draft EA; and (12) if we 
determine it is prudent to proceed with the designation, finalize the 
experimental population rule, thereby identifying an experimental 
population area and authorizing the release of the silvery minnow as an 
experimental population in Texas.
    We are the lead Federal agency for compliance with NEPA for this 
action. Thus far, the National Park Service and the International 
Boundary and Water Commission, United States Section, have agreed to be 
cooperating agencies in the NEPA process. The draft EA will incorporate 
public concerns in the analysis of impacts associated with the proposed 
action and associated project alternatives. The draft EA will be sent 
out for a minimum 30-day public review period, during which time 
comments will be solicited on the adequacy of the document. The final 
EA will address the comments we receive during public review and will 
be furnished to all who commented on the draft EA, and made available 
to anyone who requests a copy. This notice is provided pursuant to 
regulations for implementing NEPA (40 CFR 1506.6).


    A complete list of all references cited in this notice is 
available, upon request, from the U.S. Fish and Wildlife Service, New 
Mexico Ecological Services Field Office (see ADDRESSES section).

    Authority: The authority for this action is the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.).

    Dated: July 22, 2005.
Paul Hoffman,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-15303 Filed 8-2-05; 8:45 am]