[Federal Register Volume 85, Number 14 (Wednesday, January 22, 2020)]
[Proposed Rules]
[Pages 3586-3601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00512]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2018-0081; 4500030113]
RIN 1018-BD47
Endangered and Threatened Wildlife and Plants; Reclassification
of the Humpback Chub From Endangered to Threatened With a Section 4(d)
Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
reclassify the humpback chub (Gila cypha) from an endangered species to
a threatened species on the Federal List of Endangered and Threatened
Wildlife, due to partial recovery. Based on the best available
scientific and commercial data, threats to the humpback chub identified
at the time of listing have been eliminated or reduced to the point
that the species no longer meets the definition of an endangered
species under the Endangered Species Act of 1973, as amended (Act), but
is likely to become an endangered species within the foreseeable
future. We also propose a rule issued under section 4(d) of the Act
that is necessary and advisable to provide for the conservation of the
humpback chub.
DATES: We will accept comments received or postmarked on or before
March 23, 2020. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by March 9, 2020.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R6-ES-2018-0081,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R6-ES-2018-0081; U.S. Fish and Wildlife
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
Document availability: Supporting documentation used to prepare
this proposed rule, including the 5-year review and the species status
assessment (SSA) report, are available on the internet at http://www.regulations.gov under Docket No. FWS-R6-ES-2018-0081. Additionally,
supporting documentation is available for public inspection by
appointment at our Upper Colorado River Endangered Fish Recovery
Program Office (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Tom Chart, Director, U.S. Fish and
Wildlife Service, Upper Colorado River Endangered Fish Recovery
Program, P.O. Box 25486, DFC, Lakewood, CO 80225; telephone: 303-236-
9885. Persons who use a telecommunications device for the deaf (TDD)
may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if a species is
determined to be an endangered or threatened species throughout all or
a significant portion of its range, we are required to publish a
proposal in the Federal Register and make a determination on our
proposal within 1 year. Reclassifying a species as an endangered or
threatened species can only be completed by issuing a rule.
This rule proposes to reclassify the humpback chub from endangered
to threatened (i.e., to ``downlist'' the species) on the Federal List
of Endangered and Threatened Wildlife, with a rule issued under section
4(d) of the Act, based on the species' current status, which has been
improved through implementation of conservation actions. This proposed
rule and the associated species status assessment (SSA) report reassess
all available information regarding the status of and threats to the
humpback chub.
The basis for our action. Under the Act, we determine whether a
species is an ``endangered species'' or ``threatened species'' based on
any of five factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We may reclassify a species if the
best available commercial and scientific data indicate the species no
longer meets the applicable definition in the Act. For the reasons
discussed below, we believe the humpback chub no longer meets the Act's
definition of an endangered species, but does meet the Act's definition
of a threatened species. The actions of multiple conservation partners
over the past 30 years have improved the condition of humpback
[[Page 3587]]
chub and reduced the threats to the species.
Over the last few decades, management programs implemented by a
variety of partners and stakeholders in the Colorado River basin
delivered natural flow regimes; provided suitable water temperatures;
and managed predatory, nonnative fish species to improve habitat
conditions for the humpback chub. These programs improved habitat
resource conditions such that the humpback chub now has multiple,
resilient populations, including a large, stable population in the
Grand Canyon and four persisting populations upstream of Lake Powell.
Therefore, conditions have improved, and the species now has sufficient
resiliency, redundancy, and representation such that it is not
currently at risk of extinction throughout its range (i.e., it does not
meet the Act's definition of an endangered species). However, in the
future, management of the species and the conditions of the resources
required by the species are likely to change such that the species is
likely to become an endangered species in the foreseeable future (i.e.,
the species meets the Act's definition of threatened).
Supporting analyses. We conducted an SSA for the humpback chub,
with input and information provided by a variety of partners and
stakeholders. The results of this assessment are contained in an SSA
report, which represents a compilation of the best scientific and
commercial data available concerning the status of the species,
including the past, present, and future stressors to this species
(Service 2018b, entire). Additionally, the SSA report contains our
analysis of required habitat and the existing conditions of that
habitat.
Peer review. We sought comments from independent specialists on our
SSA report for the humpback chub to ensure that we based our listing
determination on scientifically sound data, assumptions, and analyses.
We received feedback from three experts that have knowledge and/or
experience with the species or similar species biology as peer review
of the SSA report. The reviewers were generally supportive of our
approach and made suggestions and comments that strengthened our
analysis. We incorporated these comments into the SSA report, which can
be found at http://www.regulations.gov under Docket No. FWS-R6-ES-2018-
0081.
Information Requested
Public Comments
Any final action resulting from this proposed rule will be based on
the best scientific and commercial data available and be as accurate as
possible. Therefore, we request comments or information from other
concerned governmental agencies, Native American Tribes, the scientific
community, industry, or other interested parties concerning this
proposed rule. The comments that will be most useful and likely to
inform our decisions are those supported by data or peer-reviewed
studies and those that include citations to, and analyses of,
applicable laws and regulations. Because we will consider all comments
and information we receive during the comment period, our final
determination may differ from this proposal. We particularly seek
comments concerning:
(1) Reasons we should or should not reclassify the humpback chub as
a threatened species.
(2) New information on the historical and current status, range,
distribution, and population size of the humpback chub.
(3) New information on the known and potential threats to the
humpback chub, including flow regimes and predatory, nonnative fish.
(4) New information regarding the life history, ecology, and
habitat use of the humpback chub.
(5) Current or planned activities within the geographic range of
the humpback chub that may impact or benefit the species.
(6) The appropriateness of a rule issued under section 4(d) of the
Act (a ``4(d) rule'') to allow certain actions to take humpback chub.
(7) Any additional actions that we should consider for inclusion in
a 4(d) rule, especially research, monitoring, and additional management
and restoration activities.
(8) Any additional information pertaining to the promulgation of a
4(d) rule to allow certain actions that may take humpback chub.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C.
1531 et seq.) directs that determinations as to whether any species is
an endangered or a threatened species must be made ``solely on the
basis of the best scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Upper Colorado River Endangered Fish Recovery Program
Office (see FOR FURTHER INFORMATION CONTACT).
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received within 45 days after
the date of publication of this proposed rule in the Federal Register
(see DATES, above). Such requests must be sent to the address shown in
FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on
this proposal, if requested, and announce the date, time, and place of
the hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing.
Peer Review
In accordance with our July 1, 1994, peer review policy (59 FR
34270; July 1, 1994), the Service's August 22, 2016, Director's Memo on
the Peer Review Process, and the Office of Management and Budget's
December 16, 2004, Final Information Quality Bulletin for Peer Review
(revised June 2012), we solicited independent scientific reviews of the
information contained in the humpback chub SSA report. Results of this
structured peer review process can be found at https://www.fws.gov/mountain-prairie/science/peerReview.php. The SSA report was also
submitted to our
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Federal, State, and Tribal partners for scientific review. In preparing
this proposed rule, we incorporated the results of these reviews in the
final SSA report, as appropriate, which is the foundation for this
proposed rule.
Previous Federal Actions
By the time the humpback chub was scientifically described between
the 1940s and 1970s, the Colorado River ecosystem supporting the
species had been greatly altered by large dams; smaller agricultural
irrigation diversions; substantial water depletions for municipal and
agricultural uses; and predatory, nonnative fish species. By the 1960s,
researchers concluded that the humpback chub was likely in decline;
they suspected extirpation of a population near Hoover Dam, constructed
in the 1930s, and they predicted possible extirpation resulting from
the construction of Glen Canyon and Flaming Gorge Dams in the 1960s.
Therefore, on March 11, 1967, the Secretary of the Interior published a
final rule (32 FR 4001) listing the humpback chub as an endangered
species in accordance with the Endangered Species Preservation Act of
1966 (80 Stat. 926; 16 U.S.C. 668aa(c)). Subsequently, the humpback
chub retained classification as an endangered species under the
Endangered Species Conservation Act of 1969 (16 U.S.C. 668aa) and the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.),
and on January 4, 1974, the species was included in a final rule (39 FR
1158) establishing a list of endangered native wildlife at 50 CFR part
17.
We issued the first recovery plan for humpback chub on August 22,
1979; that document described the primary reasons for the decline of
humpback chub as numerous flow and habitat alterations caused by the
construction and operation of several large Colorado River basin dams,
including the Flaming Gorge, Glen Canyon, and Hoover Dams. The 1979
recovery plan also recognized the possible impacts to humpback chub
from hybridization with other native chub species and from competition
with nonnative fish species. We revised the recovery plan on September
19, 1990, and we further amended and supplemented the 1990 revised plan
with new recovery goals on August 1, 2002. The 2002 recovery goals
provided objective and measurable demographic and threats-based
recovery criteria, site specific recovery actions, and estimates of
time needed to implement the recovery actions for two recovery units,
the upper and lower basins, which are physically demarcated by Glen
Canyon Dam and have unique demographic trends and management actions.
The 2002 recovery goals lacked estimates of cost needed for recovery,
and were withdrawn by court order on January 18, 2006, (Grand Canyon
Trust et al. v. Gale Norton et al., No. 04-CV-636-PHX-FJM). The
adequacy of the recovery goals, however, was not reviewed by the court,
because the court found that the plaintiffs could not challenge an
alleged failure for a recovery plan to provide for the conservation of
the species. The recovery criteria presented in the 2002 recovery plan
remain reasonable measures to gauge progress towards recovery and a
valuable reference as we refine our vision of recovery for the humpback
chub, and work to update the recovery plan.
Humpback chub inhabit discrete canyon areas of the Colorado River
basin characterized by swift currents and rocky habitats, including
portions of the Yampa, Green, and Colorado rivers. On March 21, 1994,
we designated critical habitat for the species along 610 kilometers
(km) (379 miles (mi)) of the Colorado River basin (59 FR 13374).
Designated critical habitat units include Dinosaur National Monument
(the Yampa and Green rivers in Utah and Colorado), Desolation and Gray
Canyons (the Green River in Utah), Black Rocks, and Westwater Canyon
(the Colorado River in Utah and Colorado), Cataract Canyon (the
Colorado River in Utah), and Grand Canyon (the Colorado and Little
Colorado rivers in Arizona).
We completed a status review (``5-year review'') under section
4(c)(2)(A) of the Act for humpback chub on March 19, 2018 (Service
2018a). The 5-year review recommended that the humpback chub be
downlisted (i.e., reclassified from an endangered to a threatened
species), which prompted this proposed rule.
Background
A thorough review of the taxonomy, range and distribution, life
history, and ecology of the humpback chub is presented in the SSA
report (Service 2018b, pp. 5-12; available at http://www.regulations.gov at Docket No. FWS-R6-ES-2018-0081), and is briefly
summarized here. The humpback chub is a fish endemic to the warm-water
portions of the Colorado River basin of the southwestern United States.
Humpback chub live in discrete, rocky, canyon-bound river reaches
characterized by swift currents in portions of Utah, Colorado, and
Arizona. Multiple adaptations allow humpback chub to survive the highly
variable flow conditions of these desert river ecosystems, such as a
long lifespan of approximately 20 to 40 years, large body size up to
480 millimeters (mm) (19 inches (in)), high reproductive potential by
producing up to 2,500 eggs per year, tolerance to a wide range of water
qualities, and a variable diet.
The species is known from eight historical canyon locations. Two
populations, Hideout Canyon (the Green River in Utah) and Black Canyon
(the Colorado River in Arizona and Nevada), were extirpated following
the construction of Flaming Gorge and Hoover Dams, and their associated
reservoirs, respectively. The continued operation of these dams make
these habitats currently inhospitable to humpback chub. An additional
population, Dinosaur National Monument (the Yampa and Green rivers in
Utah and Colorado), declined after the construction of Flaming Gorge
Dam and became extirpated in the mid-2000s. Although the species is
considered extirpated, or absent from this geographic location,
Dinosaur National Monument could possibly still support humpback chub
and therefore the SSA report considered the area as an unoccupied
habitat unit. The species is currently monitored at the remaining five
extant, or occupied, locations: Desolation and Gray Canyons (the Green
River in Utah), Black Rocks (the Colorado River in Colorado), Westwater
Canyon (the Colorado River in Utah), Cataract Canyon (the Colorado
River in Utah), and Grand Canyon (the Colorado and Little Colorado
rivers in Arizona). The Dinosaur National Monument, Desolation and Gray
Canyons, Black Rocks, Westwater Canyon, and Cataract Canyon populations
are the ``upper basin populations,'' and the Grand Canyon population is
the ``lower basin population.''
Summary of Biological Status and Threats
The Act directs us to determine whether any species is an
endangered species or a threatened species because of any of the
factors set forth at section 4(a)(1) of the Act affecting the species'
continued existence. The SSA report provides a thorough account of the
species' overall viability (Service 2018b, entire). The SSA report
documents the results of the comprehensive biological status review for
the humpback chub and provides an account of the species' overall
viability through forecasting of the species' condition in the future
(Service 2018b, entire). In the SSA report, we summarized the relevant
biological data and a description of past, present, and likely future
stressors and
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conducted an analysis of the viability of the species. In the SSA, we
define viability as the ability of the species to persist over the long
term and, conversely, to avoid extinction. In this discussion, we
summarize the conclusions of that assessment, which can be accessed at
Docket No. FWS-R6-ES-2018-0081 on http://www.regulations.gov.
To evaluate the biological status of the humpback chub both
currently and into the future, we evaluated the overall viability of
the humpback chub in the context of resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Species viability, or the
species' ability to sustain populations over time, is related to the
species' ability to withstand catastrophic events (redundancy), the
ability to adapt to changing environmental conditions (representation),
and the ability of populations to withstand stochastic disturbances of
varying magnitude and duration (resiliency). Species viability also
depends on the likelihood of stressors that act to reduce a species'
redundancy, representation, and resiliency and the species' overall
ability to withstand such stressors in the future. Having a greater
number (redundancy) of self-sustaining populations (resiliency) that
are distributed (redundancy and representation) across the known range
of the humpback chub would be associated with an overall higher
viability of the species into the future.
Individual humpback chub need diverse, rocky, canyon river habitat
for spawning, rearing, feeding, and sheltering; suitable river flow and
water temperature regimes for spawning, egg incubation, larval
development, and growth; and an adequate and reliable food supply,
including aquatic and terrestrial insects, crustaceans, and plant
material (Service 2018b, pp. 15-33). Populations of humpback chub need
habitats with few predatory, nonnative fish species that allow the
young to survive and recruit; suitable water quality with few toxic
inputs, such as fire ash or other contaminants, to allow for survival
of all life stages; and unimpeded range and connectivity between
discrete canyon habitats that provides free movement of individuals
among populations. At the species level, humpback chub needs multiple
populations to provide adequate redundancy against potential
catastrophic events and genetic diversity (representation) to ensure
adaptive traits of the species (Service 2018b, pp. 15-33).
To evaluate the condition of humpback chub populations, we
evaluated a number of stressors that influence the resiliency of
humpback chub populations, such as river flows and predatory, nonnative
fish in the upper basin populations, and river flows, water
temperature, food supply, and predatory nonnative fish in the lower
basin population (Service 2018b, pp. 34-100). Some stressors, such as
low river flows and warm water temperatures, may also act cumulatively
to increase predatory, nonnative fish. Additionally, certain needs or
stressors require continued management, such as river flow and
nonnative fish in all five extant populations, and water temperature
and food supply in the Grand Canyon population. Ongoing management
actions are primarily undertaken by two multi-stakeholder management
programs, the Upper Colorado River Endangered Fish Recovery Program
(Upper Basin Recovery Program) and the Glen Canyon Dam Adaptive
Management Program (Glen Canyon Dam AMP). Below, we summarize the
conditions for the upper and lower basins.
The Upper Basin--In the upper basin, the four extant populations
(Desolation and Gray Canyons, Black Rocks, Westwater Canyon, and
Cataract Canyon) and one extirpated population (Dinosaur National
Monument) currently have high-quality rocky canyon habitat, an adequate
food base, and unimpeded connectivity. Federal, State, and tribal land
ownership largely protects humpback chub's canyon habitats in the upper
basin, and recreation is the primary activity in these canyons. Water
temperature is suitable and unaltered by reservoir releases in the four
extant populations, but a portion of the extirpated Dinosaur National
Monument population in the Green River is cooled by releases from the
Flaming Gorge Dam. Fish passage structures ensure that there are no
impediments to movement between populations.
The resources of highest concern in the upper basin are river
flows. Dam installations in the 20th century altered river flow regimes
by reducing spring peak flows. Additionally, large municipal and
agricultural depletions reduced the amount of water in the rivers.
Since the early 2000s, management of river flows has restored much of
the important intra- and inter-annual variability of river flow that
the humpback chub needs to breed, feed, and shelter. Human demand for
water has remained relatively the same over the last 20 years, but
recent and ongoing drought has reduced river flows.
Another primary stressor in the upper basin is predatory, nonnative
fish. Over 50 nonnative fish species have been introduced into the
upper basin, some of which prey on or compete with young humpback chub,
effectively reducing juvenile survival rates. Smallmouth bass
(Micropterus dolomieu) are the largest concern because they prey on
native fish (Johnson et al. 2008, p. 1946) and colonize humpback chub
habitats. However, nearby populations of smallmouth bass have not
colonized Black Rocks, Westwater Canyon, or Cataract Canyon. Smallmouth
bass do inhabit Dinosaur National Monument and Desolation and Gray
Canyons, and periodically increase in density by dispersing from nearby
production areas. Low river flows and warm water temperatures may also
act cumulatively to promote the expansion and establishment of
predatory, nonnative fish.
The Upper Basin Recovery Program is responsible for overseeing the
management actions needed to improve conditions for the humpback chub
in the upper basin. Actions that the Upper Basin Recovery Program
implements to support recovery of humpback chub include, but are not
limited to: Providing and protecting river flows; managing and removing
predatory, nonnative fish; and installing and operating fish passage
structures. For example, within the past 15 years, both Flaming Gorge
Dam (the Green River) and the Aspinall Unit (the Colorado River)
changed release patterns to provide downstream flows to benefit the
humpback chub. The Upper Basin Recovery Program also acquired water
stored in reservoirs in the Yampa and Colorado rivers to support the
humpback chub when needed, such as during low flow periods during the
summer. The Upper Basin Recovery Program also implements nonnative fish
management actions, such as removing predatory fish from approximately
966 km (600 mi) of river and screening reservoirs to prevent predators
from escaping into the downstream habitats used by humpback chub. State
partners in the Upper Basin Recovery Program no longer stock certain
nonnative predators and instead implement harvest regulations that
promote the removal of predatory fish throughout the upper basin.
Finally, fish passage structures installed over the last 20 years in
the Colorado and Green rivers allow the humpback chub to move between
habitats.
Upper basin populations have been monitored using catch per unit
effort (CPUE) protocols since the mid-1980s, but more rigorous mark-
recapture population estimation techniques began
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in some populations in the late 1990s. Abundance estimates generally
have some uncertainty, with wide confidence intervals in older
estimates. Despite the uncertainty associated with population
monitoring techniques, these abundance estimates and associated CPUE
data provide important demographic information about humpback chub
populations.
The Black Rocks and Westwater Canyon populations declined from
around 2000, when they were first estimated, through about 2006
(Service 2018b, p. 101). However, over the past 10 years both of these
populations have stopped declining and have stabilized (Service 2018b,
p. 101). The most recent preliminary estimates of the Black Rocks
population, for years 2016 and 2017, indicate a stable population of
around 425 to 450 adults (Francis et al. 2018, p. 21). The most recent
preliminary estimates of the Westwater Canyon population, for years
2016 and 2017, indicate a stable population of around 2,800 adults
(Hines 2017, p. 4; Hines 2018, pp. 12, 14). The preliminary estimates
for both of these populations were released after the SSA report was
complete, and although they have not yet undergone peer review, they
are based on previously used and widely accepted modeling techniques,
so are the best available science.
Adult abundance trends in Desolation and Gray Canyons are generally
similar to those for Westwater and Black Rocks because they were
highest around year 2000 and subsequently declined through about 2006
(Service 2018b, p. 101). However, estimates from 2001 to 2003 have low
precision and are unreliable due to the difficulty of surveying these
canyons. Using estimates from 2006 to 2015, the adult abundance
estimates for Desolation and Gray Canyons show no conclusive pattern
because estimates are too variable (Service 2018b, p. 109). Abundance
estimates for the Desolation and Gray Canyons population were
approximately 1,750 adults in 2014 and 2015 (Howard and Caldwell 2018,
p. 18).
The Cataract Canyon population is small, with fewer than
approximately 500 adults and swift currents make this population
difficult to monitor. Abundance of humpback chub in Cataract Canyon is
estimated by CPUE rather than more robust mark-recapture techniques,
which makes estimating a population trend for Cataract Canyon
difficult. Consistent catches of adult and young life stages indicate
that this population persists. Monitoring efforts from 2017 documented
the highest annual CPUE for humpback chub in Cataract Canyon over the
last 26 years (Ahrens 2017, p. 7). New sampling techniques documented
an unprecedented number of juvenile chubs in Cataract Canyon, further
indicating that this population persists (Ahrens 2017, p. 2). Although
humpback chub and roundtail chub cannot be distinguished in the field
when they are small, researchers assume that a meaningful amount of
these young fish are humpback chub.
Unlike the other four populations in the upper basin, the Dinosaur
National Monument population is currently below detection limits and is
now considered functionally extirpated. By 1998, humpback chub were
absent or rare in habitats where the species was likely common in the
1940s (Tyus 1998, p. 192), and the decline in the Dinosaur National
Monument population likely was the result of the construction of the
Flaming Gorge Dam. Humpback chub in the Green River portion of the
Dinosaur National Monument population were negatively affected by the
cold releases from the Flaming Gorge Dam starting in 1963, and the
Yampa River portion was negatively affected by low river flows,
especially in the early 2000s. Operational changes since 2006 at
Flaming Gorge Dam have improved the water temperature and flow
conditions in the Green River, and releases from Elkhead Reservoir
since 2006 support improved flow conditions in the Yampa River.
Furthermore, the rocky canyon habitats that the humpback chub rely on
in Dinosaur National Monument are still present. Although management
actions have improved resource conditions in Dinosaur National
Monument, immigration from other humpback chub populations is too low
for the species to recolonize naturally, and the population is
considered extirpated. Because habitats could potentially support a
population, the Upper Basin Recovery Program is considering
translocation or stocking to restore humpback chub to Dinosaur National
Monument. Dinosaur National Monument may now have suitable resource
conditions to support a re-establishment effort.
Summary of the Upper Basin--There are currently four extant
populations of humpback chub in the upper basin and one extirpated
population at Dinosaur National Monument. The Upper Basin Recovery
Program's conservation and management actions have maintained and
improved resource conditions for the four extant populations in the
upper basin over the last 15 years. Monitoring data indicate that Black
Rocks and Westwater Canyons have stabilized over the past decade and
that the Cataract Canyon population persists and is likely also stable.
But the trend of the Desolation and Gray Canyons population is
uncertain, with conflicting data indicating that the population is
either stable or declining. In terms of habitats, improved river flows
in the upper basin indicate that resource conditions are now of
adequate quantity and quality to support populations. Although
nonnative smallmouth bass have been documented near multiple
populations of humpback chub, smallmouth bass have yet to establish in
most humpback chub habitats.
The Lower Basin--Although the Grand Canyon population is the only
population of humpback chub in the lower basin, this population
includes: A core population area in the Little Colorado River and
nearby mainstem Colorado River; multiple aggregations of humpback chub
in the Colorado River downstream; and individuals translocated into
tributary habitats in Havasu Creek and the upper Little Colorado River.
The Grand Canyon population has high-quality canyon reaches that foster
unimpeded connectivity between habitats. In this population, there are
no barriers to movement except for those created by natural falls or
chutes, and translocated humpback chub placed above these natural
barriers helped improve connectivity. Landownership surrounding the
Grand Canyon population is Federal and tribal, so access and use are
well-regulated.
Releases from the Glen Canyon Dam alter the flow and temperature
regimes of the Colorado River throughout much of the Grand Canyon
population. The Long-Term Experimental and Management Plan prescribes
the release patterns from the Glen Canyon Dam, helping to reduce and
minimize impacts to Grand Canyon habitats. Starting in 2004, the
temperature of water released through the Glen Canyon Dam increased in
the summer and fall periods to 16 degrees Celsius ([deg]C) (61 degrees
Fahrenheit ([deg]F)). Warmer temperatures generally allow individual
humpback chub to grow larger and more quickly, but warmer water may
also allow predatory warm-water, nonnative fish to invade and expand
into humpback chub habitats. Nonnative fish in the lower basin,
primarily cold-water brown trout (Salmo trutta) and rainbow trout
(Oncorhynchus mykiss), mostly live in the colder water immediately
below Glen Canyon Dam and tributaries of the Colorado River in the
Grand Canyon, and not in humpback chub habitat. These two species do
overlap with humpback chub in portions of the mainstem Colorado River.
However, the majority of the areas inhabited by
[[Page 3591]]
humpback chub, including the Little Colorado River and western Grand
Canyon, are dominated by native fish (van Haverbeke et al. 2018, p. 8;
Pillow et al. 2018, p. 7).
In the lower basin, the Glen Canyon Dam AMP coordinates the
protection of natural resources of the Colorado River flowing through
the Grand Canyon, including the humpback chub, from Glen Canyon Dam to
the Lake Mead inflow. Actions undertaken to support recovery of
humpback chub include, but are not limited to, removal of nonnative
trout; altering dam releases to study possible improvements of
important food sources such as mayflies, stoneflies, and caddisflies;
and the translocation of humpback chub to new tributary habitats.
The Grand Canyon population of humpback chub is the largest and
most extensively distributed population of all the populations across
the species' range, with broadly distributed groups of humpback chub in
mainstem and tributary habitats between Glen Canyon Dam and Lake Mead.
The core area includes the Little Colorado River and nearby portions of
the mainstem Colorado River. This core group has likely remained
relatively stable since 2008, with a high abundance of approximately
11,500 to 12,000 adults. Monitoring documented a substantial population
decline in this area during the 1990s from unknown causes, but most
likely due to limited recruitment, followed by a strong increase in the
2000s (Service 2018b, pp. 117-119). The subsequent increases in adult
abundance were likely due to increased recruitment corresponding with
warmer temperatures of released water and reduced nonnative, predatory
trout numbers near the confluence with the Little Colorado River.
In addition to the core population in and near the Little Colorado
River, the Grand Canyon population also has multiple aggregations of
adult and sub-adult humpback chub distributed in the mainstem Colorado
River. Recent monitoring efforts up to 2017 documented increases in
relative abundance of these aggregations and associated catch rates
since 2014 (Pillow et al. 2018, p. 8). In fact, preliminary abundance
estimates were approximately 1,500 adult humpback chub in 2017, for a
6-km (4-mi) long reach in the vicinity of Fall Canyon and Pumpkin
Spring in western Grand Canyon (Pillow et al. 2018, p. 8). Length
frequencies for the humpback chub from these aggregation sites indicate
that there are four distinct size groups, suggesting there is local,
natural recruitment. Evidence of natural recruitment indicates that the
western Grand Canyon aggregations could be an extension of the core
Grand Canyon population, or potentially a second, reproducing
population in the Colorado River.
Since 2003, young humpback chub have been translocated from the
Little Colorado River to tributaries in the Grand Canyon above natural
barriers, such as chutes and waterfalls. Many of the translocated fish
have either remained resident in new habitats or moved into the
mainstem. Successful translocation efforts into Havasu Creek and
upstream portions of the Little Colorado River have expanded the range
of the species into new habitats. Translocated humpback chub have
spawned in Havasu Creek, which increased the distribution of the
humpback chub in the Grand Canyon population. Unfortunately, fish that
were translocated into Shinumo Creek, a third site, were killed or
displaced to the mainstem by a series of large, ash-laden floods after
a wildfire burned in the drainage. These translocation efforts
demonstrate that given suitable, available habitats, humpback chub can
establish residency and reproduce in new locations.
Summary of the Lower Basin--The large population of humpback chub
in the Grand Canyon, which includes a dense core population in the
Little Colorado River, multiple downstream aggregations in the mainstem
Colorado, and successful translocation efforts, indicates that resource
conditions in the lower basin are of sufficient quality and quantity to
support population resiliency. Individuals are reproducing in many of
these broadly distributed areas, demonstrating that the species can
complete its entire life history in multiple, diverse locations within
the Grand Canyon.
The humpback chub has many traits that enable individuals to be
resilient in the face of environmental or demographic stochasticity,
including a long life span, high reproductive potential, use of
habitats and water quality that are arduous to other species,
adaptation to a wide variety of flow and thermal regimes, and a
variable omnivorous diet. Population resiliency is demonstrated by the
persistence of small populations (Cataract Canyon), population
increases after previous declines (Grand Canyon), population
establishment after translocations (Havasu Creek), and potential
stabilization after previous declines (Black Rocks and Westwater
Canyon). In addition, the large, current population size of the Grand
Canyon population buffers it from a variety of threats and
environmental stochasticity.
The current distribution of the humpback chub in five extant
populations across the upper and lower basins provides redundancy,
although at a low level. Existing populations in the upper basin are
mostly independently susceptible to catastrophe because they are
located in different river basins and are many miles apart. Black Rocks
and Westwater Canyon are the only two populations in close proximity.
In the lower basin, where we define only one extant population, the
population is widespread. New locations of humpback chub are being
discovered (western Grand Canyon) or established (Havasu Creek) in the
lower basin, providing resiliency to the large Little Colorado River
core area.
Humpback chub populations also have adequate representation, as the
multiple populations distributed across the range support the genetic
diversity of the humpback chub. A preliminary technical report that is
currently undergoing peer review recommends that genetic diversity of
the species be managed as three units: Black Rocks & Westwater Canyon,
Desolation and Gray Canyons and Cataract Canyons, and the Grand Canyon
(Bohn et al. 2019, p. 8). These three units support the genetic
diversity of the species and there is adequate exchange of individuals
between populations in the upper basin.
We predicted the resiliency, redundancy, and representation of the
humpback chub under three plausible future scenarios. The future
scenarios we used to evaluate the future condition of the humpback chub
are summarized below and are discussed in greater detail in the SSA
report (Service 2018b, pp. 134-135).
Scenario 1 describes a reduction or elimination in current
voluntary management actions for the species, but recognizes that
conservation actions established under binding operational plans and
agreements would continue; as such, Scenario 1 can be considered a
future with reduced conservation actions. Scenarios 2 and 3 include the
established management actions undertaken in Scenario 1, along with
currently implemented voluntary management actions, and additional
proactive and adaptive management actions that may be needed in the
future; both Scenario 2 and 3 can be considered as futures with
continued commitment to conservation actions. Scenario 2 and 3 differ
in their confidence in the effectiveness of the conservation actions.
Scenario 2 considers that implemented actions are not fully effective
to mitigate impacts of
[[Page 3592]]
drought, future water development, nonnative fishes, or other threats,
whereas Scenario 3 considers that implemented actions are sufficient to
mitigate impacts of drought, future water development, nonnative
fishes, and other threats. Scenarios 2 and 3 were developed to
recognize the uncertainty concerning management actions' ability to
mitigate stressors impacting humpback chub, especially future water
availability and presence of nonnative fish.
We evaluated each of these scenarios in terms of how it would be
expected to impact resiliency, redundancy, and representation of the
species by the years 2034 and 2058 (16 and 40 years into the future).
We selected the years 2034 and 2058 for our evaluation of future
scenarios because they account for multiple generations of humpback
chub.
Under Scenario 1, conditions would severely degrade within both 16
and 40 years, primarily in the Upper Basin. However, if collaborative
partnerships remain in place and their conservation actions are
effective as described under Scenario 3, resource conditions improve at
16- and 40-year timeframes. Under Scenario 2, degradation of resources
takes place, even as conservation actions continue, resulting in
neutral conditions within 16 years, but poor conditions within 40
years. Although there is large uncertainty of resource conditions under
Scenario 2 at 40 years, extrapolation of the conditions demonstrates a
continuing decline in resource conditions. The potential extirpation of
multiple populations could most likely occur in the upper basin under
the short 16-year timeframe in Scenario 1 and the longer 40-year
timeframe under Scenario 2. Under Scenario 3, ongoing threat management
proves successful in the long term, improving resource conditions. The
health (resiliency) and distribution (redundancy) of all five extant
populations reduces the risk from a potential catastrophic event under
Scenario 3.
Based on the uncertain trajectory of several of the upper basin
populations; the uncertainty associated with certain resource
conditions, including nonnative fish, river flow, and food supply in
the Grand Canyon; and the unresolved future of the Upper Basin Recovery
Program, the future conditions for the populations and overall species
viability is at increased risk and could decline within 40 years under
Scenarios 1 and 2. Future conditions would only improve under Scenario
3 if long-term management actions are successful.
The SSA report (Service 2018b, entire) contains a more detailed
discussion of our evaluation of the biological status of the humpback
chub and the influences that may affect its continued existence. Our
evaluations are based upon the best available scientific and commercial
data.
Recovery Planning and Recovery Criteria
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
``objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of [section 4 of the
Act], that the species be removed from the list.'' However, revisions
to the Lists of Endangered and Threatened Wildlife and Plants (adding,
removing, or reclassifying a species) must be based on determinations
made in accordance with sections 4(a)(1) and 4(b) of the Act. Section
4(a)(1) requires that the Secretary determine whether a species is
endangered or threatened (or not) because of one or more of five threat
factors. Section 4(b) of the Act requires that the determination be
made ``solely on the basis of the best scientific and commercial data
available.'' While recovery plans provide important guidance to the
Service, States, and other partners on methods of enhancing
conservation and minimizing threats to listed species, as well as
measurable criteria against which to measure progress towards recovery,
they are not regulatory documents and cannot substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A decision to revise the status of a species on, or
to remove a species from, the Federal List of Endangered and Threatened
Wildlife (50 CFR 17.11) is ultimately based on an analysis of the best
scientific and commercial data then available to determine whether a
species is no longer an endangered species or a threatened species,
regardless of whether that information differs from the recovery plan.
Below, we summarize recovery planning efforts for the humpback chub for
informational purposes only.
We published the first recovery plan for the humpback chub in 1979,
and published an updated plan in 1990. Many of the recovery actions in
the first two recovery plans included assessing species needs,
clarifying taxonomic status, defining humpback chub populations, and
establishing monitoring programs in order to more fully understand the
status and needs of the species (Service 1979; Service 1990). In 2002,
the humpback chub recovery goals supplemented and amended the 1990
recovery plan, and provided objective and measurable demographic
criteria and recommendations for site-specific management actions
needed for recovery (Service 2002). The six populations described in
this proposed rule and the SSA report, including the now extirpated
Dinosaur National Monument, were considered extant in the 2002 recovery
goals. Today, five populations are extant and the Dinosaur National
Monument population is considered extirpated. Furthermore, when the
recovery goals were approved, a minimum viable population (MVP) was
estimated to be at least 2,100 adults. When the 2002 recovery goals
were published, robust mark/recapture population monitoring efforts had
just begun in the upper basin. The recovery goals include the following
demographic reclassification criteria (summarized for brevity):
Downlisting could occur if, over a 5-year period, all of the
following criteria are met:
Criterion 1: Adult abundances for each of the six populations does
not decline significantly.
Criterion 2: Natural mean recruitment equals or exceeds mean adult
mortality in each of the six populations.
Criterion 3: Two core populations exist that exceed 2,100 adults.
Criterion 4: Site-specific management actions are identified,
developed, and implemented.
For downlisting criterion 4, the recovery goals described the
following management actions needed to support the species (summarized
for brevity):
(1) Provide, and legally protect, habitat and flow regimes.
(2) Investigate the mainstem Colorado River's role in the Grand
Canyon population.
(3) Investigate warmer water temperatures in the mainstem Colorado
River through the Grand Canyon.
(4) Ensure adequate protection from overutilization.
(5) Ensure adequate protection from diseases and parasites.
(6) Regulate nonnative fish releases and escapement.
(7) Control problematic nonnative fishes as needed.
(8) Minimize the risk of increased hybridization among Gila spp.
(9) Minimize the risk of hazardous-materials spills in critical
habitat.
(10) Provide for the long-term management and protection of
[[Page 3593]]
populations and their habitats if the species were delisted.
(11) The recovery goals further describe that delisting could occur
if, 3 years after the downlisting criteria are met, downlisting
criteria 1, 2, and 4 continue to be met (described above), and a third
core population is added under downlisting criterion 3.
The current status of the humpback chub partially meets the 2002
recovery criteria. Although five of the extant populations of humpback
chub have not declined significantly over the past decade, criterion 1
has not been fully met because the adult population of Dinosaur
National Monument declined and the population is now considered
extirpated. Criterion 2 has been partially met in the five extant
populations, as those populations are largely stable over the past
decade, but not in the extirpated Dinosaur National Monument
population. Criterion 3 is met for downlisting, because the Little
Colorado River core area in the Grand Canyon population contain
approximately 11,500 adults (Service 2018b, p. 77) and the most recent
preliminary estimate for Westwater Canyon is a mean of approximately
2,800 adults in 2016 and 2017 (Hines 2018, p. 12). Criterion 3 is not
met for delisting because the next largest population, Desolation and
Gray Canyons, was last estimated as approximately 1,700 adults in 2015
(Howard and Caldwell 2018, p. 18).
Regarding the first and second recovery criteria, we now expect
that a 5-year period may not be adequate to consider the demographic
variability of humpback chub populations resulting from substantial
environmental variability in the Colorado River ecosystem. Humpback
chub evolved in and are adapted to a highly variable ecosystem with
fluctuating levels of drought and flood. Consequently, the life history
of the species is one in which reproductive success and mortality rates
can fluctuate greatly from year to year. Certainly, over long-term time
frames, the species needs a stable adult population and adequate
recruitment, but these conditions are not likely to occur every year.
Consequently, recovery criteria specifying little to no change in
demographics for a five year period may not be appropriate for the
species.
Regarding downlisting criterion 3, the MVP was established without
considering each individual population's characteristics, such as
river-miles and resource conditions. For example, the core Little
Colorado River area in the Grand Canyon population currently supports
as many as 5 times the MVP, with additional humpback chub residing in
other areas. Other habitats, such as Cataract Canyon, likely could not
support the MVP. This demonstrates that considering each population's
resources and conditions is a more useful tool than considering one
single MVP.
Finally, regarding downlisting criterion 4, a number of the
management actions have been achieved, such as items (2), (3), and (6);
a number of the actions are ongoing and still needed, such as items
(1), (7), and (10); and a number of the actions are no longer
considered needed for the species, such as items (4), (5), (8), and
(9). Based on the updated scientific knowledge of humpback chub, the
2002 recovery goals should be reviewed and updated. As such, the 2018,
5-year review of the status of the species recommended revising the
2002 recovery goals to incorporate new information about the species.
We expect to revise the recovery plan for humpback chub when this
rulemaking process is complete.
Determination of Humpback Chub Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an ``endangered species'' as a
species that is ``in danger of extinction throughout all or a
significant portion of its range,'' and a ``threatened species'' as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of ``endangered species'' or ``threatened species'' because
of any of the following factors: (A) The present or threatened
destruction, modification, or curtailment of its habitat or range; (B)
Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
identified changes to water flow and temperature (Factor A), food
availability (Factor A), and predatory, nonnative fish (Factor C) as
potential stressors to the humpback chub (Service 2018b, pp. 126-133).
There is no evidence that overutilization (Factor B) of humpback chub,
disease (Factor C), or other natural and manmade factors affecting the
species (Factor E) are occurring. Existing regulatory mechanisms
(Factor D) are discussed below. We evaluated each potential stressor,
including its source, affected resources, exposure, immediacy,
geographic scope, magnitude, and impacts on individuals and
populations, and our level of certainty regarding this information, to
determine which stressors were likely to be drivers of the species'
current and future conditions (Service 2018b, pp. 126-133). We also
evaluated the effects of stressors that may operate cumulatively, such
as low river flows and warm water temperatures that may act
cumulatively to increase predation by nonnative predators.
We note that by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our analysis when we characterize the current
and future condition of the species. Our assessment of the current and
future conditions encompasses and incorporates the threats individually
and cumulatively. Our current and future condition assessment is
iterative because it accumulates and evaluates the effects of all the
factors that may be influencing the species, including threats and
conservation efforts. Because the SSA framework considers not just the
presence of the factors, but to what degree they collectively influence
risk to the entire species, our assessment integrates the cumulative
effects of the factors and replaces a standalone cumulative effects
analysis.
Our analysis found that the primary drivers for the humpback chub's
current and future condition are diminishing river flow, increasing
water temperature, expanding populations of nonnative fish, and food
availability in the Grand Canyon. Low river flows and warm water
temperatures may also act cumulatively to increase predation by
nonnative predators. We summarize these stressors below, with more
detail provided in the SSA report (Service 2018b, pp. 126-133).
River flow and temperature--The presence and operation of large
dams alter suitable river flow and temperatures. Historical dam
operations did not always provide river flow conditions that supported
humpback chub, but recent modifications to operations have reduced some
impacts from the presence of dams. We
[[Page 3594]]
evaluated how the effects of global climate change could impact river
flows and water temperatures using hydroclimate projections of future
water resources in the Colorado River basin. Hydroclimate projections
predict that decreased warm-season runoff will reduce river flows,
primarily from increased frequency and severity of drought, which
further result in warmer water temperatures (U.S. Bureau of Reclamation
2016, i-ii). Warmer, lower flows in the upper basin increase the risk
of nonnative fish species impacting humpback chub populations. Warmer
releases from Lake Powell could also impact abundance and distribution
of nonnative fish in the Grand Canyon. However, current river flow
conditions and temperatures are largely adequate for humpback chub in
both basins because reservoir operations have had the flexibility and
commitment to support humpback chub when making dam releases. Future
conditions of river flow and temperature are uncertain because
conditions are shaped by regional climatic patterns and water
availability, and regulated by the operation of large dams.
Food availability--Humpback chub require an adequate and reliable
food supply, which can consist of a variety of insects, crustaceans,
and plants. Food is supplied by the instream production of
invertebrates, insect emergences, and floods laden with debris. In the
upper basin, food supply has not been measured, but is not believed to
be a limiting factor. Conversely, below Glen Canyon Dam in the lower
basin, the condition of the humpback chub populations has decreased due
to low aquatic insect diversity and declining stream productivity. It
is unclear if management could improve food availability below the Glen
Canyon Dam, but altered release patterns from the dam could potentially
increase instream production of food resources for humpback chub.
Predation--Predation and competition by nonnative fish are
stressors to humpback chub in both the upper and lower basins. Because
of the species' slow growth and late sexual maturity, juvenile humpback
chub are vulnerable to predation from predatory, nonnative fish during
the first few years of life. Nonnative fish can also compete for
resources with adult humpback chub, reducing the species breeding,
feeding, and sheltering. The humpback chub evolved in an environment
relatively free of predators and competitors. Therefore, it is ill-
adapted to living with the many nonnative fish that have been
introduced into the Colorado River basin because it is a soft-rayed
fish with no defense mechanisms for protection from predators. Although
the species has no natural defense mechanisms, the habitats occupied by
humpback chub may limit impacts from nonnative species because of the
more arduous hydrological conditions of canyons. Predation from
nonnative fish may also increase when warm water temperatures act
cumulatively with low flows.
Predation from nonnative fish, particularly smallmouth bass in the
upper basin, is a potential threat to the viability of humpback chub.
Currently, through active flow management and nonnative predator
removal, nonnative predators are not limiting four of the five extant
humpback chub populations, but are moderately impacting two (one extant
and one extirpated) populations. Although current resource conditions
are acceptable in the upper basin, the risk for substantial and rapid
degradation is present.
In the lower basin, current densities of nonnative predators are
low, and management actions are in place to prevent establishment of
new species. However, recent increases in brown trout density in the
Lees Ferry reach of the Colorado River and the discovery of green
sunfish (Lepomis cyanellus) immediately below Glen Canyon Dam
demonstrate that risks do exist in the lower basin, primarily related
to operations of Glen Canyon Dam and escapement from Lake Powell. Lower
elevations of Lake Powell enhance risk of nonnative predator
establishment in the Grand Canyon via increased risk of fish escaping
through Glen Canyon Dam and warmer water releases that support
nonnative predators.
All upper basin humpback chub populations have dense nonnative
predator populations nearby, but only one of the four extant
populations and the site of the extirpated population currently undergo
periodic increases in densities of nonnative predators within humpback
chub habitats. Those two populations, Dinosaur National Monument
(extirpated) and Desolation and Gray Canyons (extant), experience
periodic fluctuations in smallmouth bass density, demonstrating the
latent risk. If environmental conditions change, such as reduced river
flow or increased water temperature from long-term drought, nearby
populations of nonnative predators could rapidly colonize upper basin
humpback chub habitats. Similarly, if management of nonnative predators
is reduced or eliminated, nonnative predators could rapidly colonize
humpback chub habitats. Smallmouth bass colonization of multiple
humpback chub populations would significantly decrease the viability of
the species, especially in the upper basin. Therefore, although current
resource conditions related to nonnative predatory fish are acceptable,
there is risk associated with predators in the future.
Regulatory mechanisms--Regulatory mechanisms (Factor D) and other
management efforts benefit the humpback chub. Most resources affecting
humpback chub are strictly regulated through Federal, State, and tribal
mechanisms. The humpback chub's canyon habitats are largely protected
by Federal, State, and tribal land ownership, and humans primarily use
humpback chub habitats for recreation. Releases from large dams,
primarily operated by the U.S. Bureau of Reclamation, are now operated
to promote river function and fish habitat under binding operational
and management plans described in the Records of Decision for the
Aspinall Unit (U.S. Bureau of Reclamation 2012, pp. 1), Flaming Gorge
Dam (US Bureau of Reclamation 2006, pp. 1-2), and Glen Canyon Dam (U.S.
Department of the Interior 2016, pp. 1-2). Water use and delivery in
the Colorado River basin is strictly regulated under existing Federal,
State, and tribal laws commonly referred to as the ``Law of the
River'', including, but not limited to, the Colorado River Compact of
1922, the Upper Colorado River Basin Compact of 1948, the Colorado
River Storage Project Act of 1956, the Colorado River Basin Project Act
of 1968, and individual state and tribal statutes that regulate water
appropriation.
The Upper Basin Recovery Program coordinates and implements the
majority of management actions for the four extant and one extirpated
upper basin populations, while the Glen Canyon Dam AMP undertakes
management actions for the mainstem Colorado River in the lower basin.
These programs are considered regulatory mechanisms because they are
authorized through or comply with Federal legislation. The Upper Basin
Recovery Program was authorized under Public Law 106-392 and has been
renewed on a periodic basis by acts of Congress. The Glen Canyon Dam
AMP was established under the Record of Decision to operate Glen Canyon
Dam needed to comply with the Grand Canyon Protection Act of 1992 (U.S.
Bureau of Reclamation 1996, pp. G-3 to G-4).
Commitment to management actions for the benefit of humpback chub
is strong among the various partnerships; nevertheless, uncertainty of
continued implementation does exist. For
[[Page 3595]]
example, the cooperative agreement establishing the Upper Basin
Recovery Program expires in 2023. Elimination of the Upper Basin
Recovery Program would introduce severe uncertainty about continued
implementation of important management actions for humpback chub in the
upper basin. In the lower basin, the Long-Term Experimental and
Management Plan and other legally binding mechanisms provide more
certainty for humpback chub conservation actions, but additional
adaptive actions are still likely needed to respond to changing
resource conditions (Service 2018b, pp. 12-14).
The Upper Basin Recovery Program and Glen Canyon Dam AMP are key
regulatory mechanisms that shape the current and future condition of
humpback chub. Both programs implement management actions that benefit
all resource needs of the humpback chub. For example, both programs
provide adequate habitat conditions by managing river flow and water
temperature and by managing nonnative fish species. Although it is
likely that both programs will continue to implement management
actions, there is uncertainty regarding the status of the Upper Basin
Recovery Program over the next 16 to 40 years.
Currently, resource conditions are adequate and support a large,
stable population in the lower basin and multiple persistent
populations in the upper basin. Although the current risk of extinction
is low, there is enough risk associated with the potential loss of
important management actions such that the species is vulnerable and
likely to become endangered throughout all of its range within the
foreseeable future.
We find that endangered species status is not appropriate for the
humpback chub because the species currently demonstrates sufficient
individual and population resiliency, redundancy, and representation
across both the upper basin and lower basin populations, such that the
potential extirpation of multiple populations is not likely to occur
now or in the short term. The current resiliency of the large core
population in the lower basin and the current resiliency and redundancy
of the four populations in the upper basin decrease the risk to the
species from stochastic and catastrophic events, such that the species
currently has a low risk of extinction. Therefore, the risk of
extinction is currently low, and therefore the species is not in danger
of extinction.
Thus, after assessing the best available information, we conclude
that the humpback chub is not currently in danger of extinction, but is
likely to become in danger of extinction within the foreseeable future
throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. Because we have determined that the humpback chub is likely
to become an endangered species within the foreseeable future
throughout all of its range, we find it unnecessary to proceed to an
evaluation of potentially significant portions of the range. Where the
best available information allows the Services to determine a status
for the species rangewide, that determination should be given
conclusive weight because a rangewide determination of status more
accurately reflects the species' degree of imperilment and better
promotes the purposes of the Act. Under this reading, we should first
consider whether the species warrants listing ``throughout all'' of its
range and proceed to conduct a ``significant portion of its range''
analysis if, and only if, a species does not qualify for listing as
either an endangered or a threatened species according to the
``throughout all'' language. We note that the court in Desert Survivors
v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447
(N.D. Cal. Aug. 24, 2018), did not address this issue, and our
conclusion is therefore consistent with the opinion in that case.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the humpback chub meets the definition of a
threatened species. Therefore, we propose to reclassify the humpback
chub as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
Proposed 4(d) Rule
Background
Section 4(d) of the Act states that the ``Secretary shall issue
such regulations as he deems necessary and advisable to provide for the
conservation'' of species listed as threatened. The U.S. Supreme Court
has noted that very similar statutory language demonstrates a large
degree of deference to the agency (see Webster v. Doe, 486 U.S. 592
(1988)). Conservation is defined in the Act to mean ``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 [the Act] are no longer necessary.'' Additionally,
section 4(d) of the Act states that the Secretary ``may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants.'' Thus, regulations promulgated under
section 4(d) of the Act provide the Secretary with wide latitude of
discretion to select appropriate provisions tailored to the specific
conservation needs of the threatened species. The statute grants
particularly broad discretion to the Service when adopting the
prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have approved rules
developed under section 4(d) that include a taking prohibition for
threatened wildlife, or include a limited taking prohibition (see Alsea
Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or.
2007); Washington Environmental Council v. National Marine Fisheries
Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have
also approved 4(d) rules that do not address all of the threats a
species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir.
1988)). As noted in the legislative history when the Act was initially
enacted, ``once an animal is on the threatened list, the Secretary has
an almost infinite number of options available to him with regard to
the permitted activities for those species. He may, for example, permit
taking, but not importation of such species or he may choose to forbid
both taking and importation but allow the transportation of such
species'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
The Service has developed a species-specific 4(d) rule that is
designed to address the humpback chub's specific threats and
conservation needs. Although the statute does not require the Service
to make a ``necessary and advisable'' finding with respect to the
adoption of specific prohibitions under section 9, we find that this
regulation is necessary and advisable to provide for the conservation
of the humpback chub. As discussed in the Summary of Biological Status
and Threats section, the Service has concluded that the humpback chub
is at risk of extinction within the foreseeable future primarily due to
changes to water flow and temperature, food availability, and
predatory, non-native fish. The provisions of this proposed 4(d) rule
[[Page 3596]]
would promote the conservation of the humpback chub by providing
continued protection from take and to facilitate the expansion of the
species' range by increasing flexibility in management activities. The
provisions of this rule are one of many tools that the Service will use
to promote the conservation of the humpback chub. This proposed 4(d)
rule would apply only if and when the Service makes final the listing
of the humpback chub as a threatened species.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of the
humpback chub by prohibiting the following activities, except as
otherwise authorized or permitted: Importing or exporting; possession
and other acts with unlawfully taken specimens; delivering, receiving,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; or selling or offering for sale in
interstate or foreign commerce. This proposed 4(d) rule includes
actions to facilitate conservation and management of humpback chub
where they currently occur, and may occur in the future, by eliminating
the Act's take prohibition for certain activities. These activities are
intended to encourage support for the conservation of humpback chub.
Under this proposed 4(d) rule, take will continue to be prohibited,
except for the following forms of take that would be excepted under the
Act:
Take resulting from creating and maintaining humpback chub
refuge populations;
Take resulting from expanding the range of the species,
including translocating wild fish and stocking hatchery-reared fish;
Incidental take from reducing or eliminating nonnative
fish from habitats adjacent to, or occupied by, humpback chub;
Take resulting from catch-and-release angling activities
associated with humpback chub, including incidental take from non-
humpback chub-targeted angling in the six core populations and take
from humpback chub-targeted angling in any newly established areas; and
Take associated with chemical treatments in support of the
recovery of humpback chub.
Under this proposed 4(d) rule, take resulting from these activities
would not be prohibited as long as reasonable care is practiced to
minimize the effects of such taking. Reasonable care includes limiting
the impacts to humpback chub individuals and populations by complying
with all applicable Federal, State, and tribal regulations for the
activity in question; using methods and techniques that result in the
least harm, injury, or death, as feasible; undertaking activities at
the least impactful times and locations, as feasible; ensuring the
number of individuals removed or sampled minimally impacts existing
extant wild population; ensuring no disease or parasites are introduced
into existing extant wild humpback chub populations; and preserving the
genetic diversity of extant wild populations.
Creation and Maintenance of Refuge Populations
Establishing and maintaining humpback chub refuge populations is an
important consideration for long-term humpback chub viability because
refuge populations safeguard genetic diversity against catastrophic
declines in wild populations and can be necessary to protect a
population from extirpation. In the case of declining wild populations,
refuge populations provide the flexibility to perform supplemental
stocking into existing populations or reintroduction of individuals to
extirpated areas. Refuge populations may also allow for stocking of
individuals into new areas that expand the range of the species (see
Translocation or Stocking of Humpback Chub, below). The process of
establishing and supplementing refuge populations requires take in the
form of collection of wild individuals of various life stages.
Furthermore, the long-term care and maintenance of refuge populations
will result in take, including death of individuals held in captivity.
However, preservation of genetic diversity in refuge populations
outweighs any losses to wild populations if performed in a deliberate,
well-designed process.
Currently, some, but not all, of the genetic diversity of humpback
chub exists in captive refuge populations. Approximately 1,000
individuals from the Grand Canyon population are managed as a refuge
population at the Southwestern Native Aquatic Resources and Recovery
Center (SNARRC) in Dexter, New Mexico; additionally, a small number of
adults from the Black Rocks population reside at the Horsethief ponds
near Grand Junction, Colorado. In order to preserve the full breath of
genetic diversity of humpback chub, creation of additional refuge
populations could be suggested in the revised humpback chub recovery
plan, by the Service, or in other proceedings, such as section 7
consultations between the Service and Federal agencies. We expect to
revise the recovery plan for humpback chub when this rulemaking process
is complete.
This proposed 4(d) rule describes creation and maintenance of
humpback chub refuge populations excepted from take as activities
undertaken for the long-term protection of humpback chub genetic
diversity. Refuge populations must include specific genetic groupings
of humpback chub as defined by the best available science and must be
managed to maintain the genetic diversity of the species. Refuge
populations can occur at both captive and wild locations.
The Service must approve in writing the designation of a refuge
population, and any removal of individuals from wild populations.
Subsequent to those approvals, under this proposed 4(d) rule, the
Service would no longer regulate the take associated with maintenance
of that population. Take associated with refuge populations could
include harvest of wild individuals from extant populations; incidental
take during the long-term care of individuals in captivity; take
related to disease, parasite, genetic assessment, and management of
captive populations; and natural mortality of individuals existing in
refuge populations.
Translocation and Stocking of Humpback Chub
Translocating wild humpback chub and stocking hatchery-reared
humpback are important management actions supporting the long-term
viability of the species. Introducing individuals into new areas can
provide increased redundancy and decreased risk to catastrophic events
by expanding the range of the species. Introducing individuals into
wild populations can provide increased resiliency for extant
populations by potentially offsetting population declines or increasing
genetic diversity. The process of translocating wild individuals can
result in take to wild individuals, including possible mortality to
fish that are moved. The process of culturing and stocking individuals
can also result in take via hatchery methods or incidental mortality of
stocked individuals. However, if the translocation or stocking program
is performed under a deliberate, well-designed program, the benefits to
the species can greatly outweigh the losses.
Translocations of wild humpback to new locations have demonstrated
success in the Grand Canyon. Between 2003 and 2015, juvenile humpback
chub were translocated from the Little Colorado River to Shinumo Creek,
Havasu Creek, and the Little Colorado River above Chute Falls. At all
three locations, translocated fish established
[[Page 3597]]
residency, increasing the range of the species (although the Shinumo
Creek population was later extirpated via ash-laden floods following a
wildfire). The Havasu Creek population also demonstrated wild
reproduction and recruitment, further supporting the management action
of translocations for expanding the range of the humpback chub. Based
on these successes, translocation appears to be a possible tool to
reintroduce individuals into the Dinosaur National Monument population
or to expand the range of humpback chub into other areas.
Currently, humpback chub are not cultured in hatcheries, nor are
any broodstock fish maintained at a hatchery. However, in the future,
hatchery production and culture may be a necessary tool either to
supplement existing populations or to introduce individuals to new
locations without harvesting wild fish.
This proposed 4(d) rule describes translocation and stocking of
humpback chub excepted from take as any activity undertaken to expand
the range of humpback chub or to supplement existing wild populations.
Take from translocation could include harvest and movement of wild
individuals from extant populations to new areas and subsequent
mortality of fish in new locations. Any translocation program must be
approved in writing by the Service. Take from stocking programs could
include take during the long-term care of individuals in captivity;
take related to disease, parasite, genetic assessment, and management
of captive populations while they are in captivity; and take from
stocking, including subsequent mortality of stocked individuals. Any
harvest of wild fish to support a stocking program must comply with the
conditions described above under Creation and Maintenance of Refuge
Populations. Any stocking of humpback must follow best hatchery and
fishery management practices as described in the American Fisheries
Society's Fish Hatchery Management (Wedemeyer 2002, entire) and be
approved by the Service. Any stocking of individuals outside the six
core populations must comply with State stocking regulations.
Nonnative Fish Removal
Control of nonnative fishes is vital for the continued recovery of
humpback chub because predatory, nonnative fishes are a principal
threat to humpback chub (see Summary of Biological Status and Threats,
above). Removal of nonnative fishes reduces predation and competition
pressure on humpback chub, increasing humpback chub survival,
recruitment, and access to resources. During the course of removing
nonnative fishes, take of humpback chub may occur from incidental
captures resulting in capture, handling, injury, or possible mortality.
However, nonnative removal activities in humpback chub habitats are
designed to be selective, allowing for the removal of predatory,
nonnative fish while humpback chub are returned safely to the river.
Therefore, if nonnative fish removal is performed under deliberate,
well-designed programs, the benefits to humpback chub can greatly
outweigh losses.
Currently, active nonnative fish removal is widespread in the upper
basin, but is less common in the lower basin. Control of nonnative
fishes is conducted by qualified personnel in the upper basin via
mechanical removal using boat-mounted electrofishing, nets, and seines,
primarily focusing on removal of smallmouth bass, northern pike (Esox
lucius), and walleye (Sander vitreus). Removal of nonnative fishes in
the upper basin is performed under strict standardized protocols to
limit impacts to humpback chub. In the lower basin, nonnative fish
actions primarily focus on preventing establishment of new species
(such as removal of green sunfish below Glen Canyon Dam) and
controlling populations of trout in tributary habitats (such as removal
of brown trout in Bright Angel Creek). New techniques, as available and
feasible, may also need to be implemented in the future.
This proposed 4(d) rule describes nonnative fish removal excepted
from take prohibitions as any action with the primary or secondary
purpose of mechanically removing nonnative fishes that compete with,
predate, or degrade the habitat of humpback chub, and that is approved
in writing by the Service for that purpose. These methods include
mechanical removal within occupied humpback chub habitats, including,
but not limited to, electrofishing, seining, netting, and angling, or
other ecosystem modifications such as altered flow regimes or habitat
modifications. All methods must be conducted by qualified personnel and
used in compliance with applicable Federal, State, and tribal
regulations. Whenever possible, humpback chub that are caught alive as
part of nonnative fish removal should be returned to their capture
location as quickly as possible.
Catch-and-Release Angling of Humpback Chub
Recreational angling is an important consideration for management
of all fisheries, as recreational angling is the primary mechanism by
which the public interacts with fishes. Furthermore, angling
regulations are an important communication tool. While the humpback
chub is not currently a species that is prized for its recreational or
commercial value, the species is a large-bodied, catchable-sized fish
that could offer potential recreational value in certain situations.
Conservation value from public support for humpback chub could arise
through newly established fishing locations and public engagement with
this species. Furthermore, anglers do target species that co-occur with
humpback chub at some locations. As a result, otherwise legal angling
activity in humpback chub habitats could result in the unintentional
catch of humpback chub by the angling public. Catch-and-release
angling, both intentional and incidental, can result in take of
humpback chub through handling, injury, and potential mortality.
However, the conservation support that angling provides can outweigh
losses to humpback chub, if the angling program is designed
appropriately.
Currently, State angling regulations require the release of all
incidental catches of humpback chub and do not allow anglers to target
the species. Therefore, current angling regulations for humpback chub
by the States of Arizona, Colorado, and Utah demonstrate a willingness
to enact appropriate regulations for the protection of the humpback
chub. It is important to continue to protect humpback chub from
intentional angling pressure in the six core populations (five extant
and one extirpated) because of their importance to the recovery of the
species. These populations, as described in Tables 1 and 7 of the SSA
report, are Desolation and Gray Canyons (Green River, Utah), Dinosaur
National Monument (Green and Yampa rivers, Colorado and Utah), Black
Rocks (Colorado River, Colorado), Westwater Canyon (Colorado River,
Utah), Cataract Canyon (Colorado River, Utah), and Grand Canyon
(Colorado and Little Colorado rivers, Arizona). Supporting recreational
fishing access to these areas for species other than humpback chub is
an important economic consideration for State and tribal entities. We
propose to allow incidental take of humpback chub from angling
activities that are in accordance with State and tribal fishing
regulations in the six core humpback chub populations, but that do not
target humpback chub. That is, incidental take associated with
incidental catch-and-release of humpback chub in the core populations
would not be prohibited.
[[Page 3598]]
Reasonable consideration by the States and tribes for incidental catch
of humpback chub in the six core populations include: (1) Regulating
tactics to minimize potential injury and death to humpback chub if
caught; (2) communicating the potential for catching humpback chub in
these areas; and (3) promoting the importance of the six core
populations.
Outside of the six core populations, we foresee that Federal,
State, or tribal governments may want to establish a new recovery
location where humpback chub could be targeted for catch-and-release
angling or a new location without recovery value, where the sole
purpose is recreational angling for humpback chub. Newly established
locations could offer a genetic refuge for core populations of humpback
chub (see Creation and Maintenance of Refuge Populations, above),
provide a location for hatchery-reared fish (see Translocation and
Stocking of Humpback Chub, above), and offer the public a chance to
interact with the species in the wild. Therefore, we propose to allow
take of humpback chub from catch-and-release angling activities that
target humpback chub and are in accordance with State and tribal
fishing regulations in areas outside of the six core humpback chub
populations.
Sport fishing for humpback chub would only be allowed through the
4(d) rule and subsequent State or tribal regulations created in
collaboration with the Service. This rule would allow recreational
catch-and-release fishing of humpback chub in specified waters, not
including the six core populations. Management as a recreational
species would be conducted after completion of, and consistent with the
goals within, a revised recovery plan for the species. The principal
effect of this 4(d) rule would be to allow take in accordance with
fishing regulations enacted by States or tribes, in collaboration with
the Service.
Recreational opportunities may be developed by the States and
tribes in new waters following careful consideration of the locations
and impacts to the species. Reasonable consideration for establishing
new recreational locations for humpback chub include, but are not
limited to: (1) Carefully evaluating each water body and determining
whether the water body can sustain angling; (2) ensuring the population
does not detrimentally impact core populations of humpback chub through
such factors as disease or genetic drift; (3) ensuring adequate
availability of humpback chub to support angling; and (4) monitoring to
ensure there are no detrimental effects to the population from angling.
If monitoring indicates that angling has a negative effect on the
conservation of humpback chub in the opinion of the Service, the
fishing regulations must be amended or the fishery could be closed by
the appropriate State.
Chemical Treatments Supporting Humpback Chub
Chemical treatments of water bodies are an important fisheries
management tool because they are the principal method used to remove
all fishes from a defined area. That is, chemical treatments provide
more certainty of complete removal than other methods, such as
mechanical removal. Therefore, chemical treatments are used for a
variety of restoration and conservation purposes, such as preparing
areas for stocking efforts, preventing nonnative fishes from colonizing
downstream areas, and resetting locations after failed management
efforts. Chemical treatments of water bodies could take humpback chub
if individuals reside in the locations that are treated and cannot be
salvaged completely prior to treatment. However, the overall benefit of
conservation actions implemented using chemical treatment can outweigh
the losses of humpback chub, if careful planning is taken prior to
treatments.
Chemical piscicides (chemicals that are poisonous to fish) have
been used in the upper and lower basin to remove upstream sources of
nonnative fishes in support of humpback chub. For example, Red Fleet
Reservoir (Green River, Utah) was treated by Utah Division of Wildlife
Resources to remove walleye that were escaping downstream, and a slough
downstream of Glen Canyon Dam (Colorado River, Arizona) was treated by
the National Park Service to remove green sunfish before they could
invade humpback chub habitat. At Red Fleet Reservoir, chemical
treatment also provided the Utah Division of Wildlife Resources with
the ability to establish a new fish community that supported angling
interests and provided greater compatibility with downstream
conservation efforts.
Chemical treatments could support a variety of activities to assist
in the conservation of humpback chub, including certain other actions
described in this proposed 4(d) rule. For example, chemical treatments
could be used prior to introducing humpback chub to a wild refuge
population, a translocation site, or a sport fishing location.
Nonnative fishes can also be removed using chemical treatments,
providing a faster and more complete removal than mechanical removal.
Furthermore, chemical treatments offer the ability to fully restore a
location after a failed introduction effort. For example, if humpback
chub were stocked into a new area, but did not successfully establish,
landowners may want to restore this location for another purpose.
Chemical treatments would be allowed under this proposed 4(d) rule.
Necessary precautions and planning should be applied to avoid impacts
to humpback chub. For example, treatments upstream of occupied humpback
chub habitats should adhere to all protocols to limit the potential for
fish toxicants and piscicides travelling beyond treatment boundaries.
Chemical treatments that take place in locations where humpback chub
occur, or may occur, must take place only after a robust salvage effort
takes place to remove humpback chub in the area. Whenever possible,
humpback chub that are salvaged should be moved to a location that
supports recovery of the species. Any chemical treatment that takes
place in an area where humpback chub may reside would need written
approval from the Service, but treatments of unoccupied habitat would
not need to be approved. Once the location of a chemical treatment is
approved in writing by the Service, the take of humpback chub by
qualified personnel associated with performing a chemical treatment
would not be regulated by the Service.
Reporting and Disposal of Humpback Chub
Under the proposed 4(d) rule, if humpback chub are killed during
actions described in the 4(d) rule, the Service must be notified of the
death and may request to take possession of the animal. Notification
should be given to the appropriate Regional Law Enforcement Office
Service or associated management office. Information on the offices to
contact is set forth under Proposed Regulation Promulgation, below. Law
enforcement offices must be notified within 72 hours of the death,
unless special conditions warrant an extension. The Service may allow
additional reasonable time for reporting if access to these offices is
limited due to closure or if the activity was conducted in area without
sufficient communication access.
Permits
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
[[Page 3599]]
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: scientific purposes, to enhance propagation
or survival, for economic hardship, for zoological exhibition, for
educational purposes, for incidental taking, or for special purposes
consistent with the purposes of the Act. There are also certain
statutory exemptions from the prohibitions, which are found in sections
9 and 10 of the Act.
This proposed 4(d) rule would not impact existing or future permits
issued by the Service for take of humpback chub. Any person with a
valid permit issued by the Service under Sec. 17.22 or Sec. 17.32 may
take humpback chub, subject to all take limitations and other special
terms and conditions of the permit.
The Service recognizes the special and unique relationship with our
state natural resource agency partners in contributing to conservation
of listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Services in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Services shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve humpback chub
that may result in otherwise prohibited take for wildlife without
additional authorization.
Proposed 4(d) Rule
We believe the actions and activities that would be allowed under
this proposed 4(d) rule, while they may cause some level of harm to
individual humpback chub, would not negatively affect efforts to
conserve and recover humpback chub, and would facilitate these efforts
by increasing educational opportunities and public support for the
conservation of humpback chub and by providing more efficient
implementation of recovery actions. This proposed 4(d) rule would not
be made final until we have reviewed and fully considered comments from
the public.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of the humpback chub. However, interagency cooperation may
be further streamlined through planned programmatic consultations for
the species between Federal agencies and the Service. We ask the
public, particularly State agencies and other interested stakeholders
that may be affected by the proposed 4(d) rule, to provide comments and
suggestions regarding additional guidance and methods that the Service
could provide or use, respectively, to streamline the implementation of
this proposed 4(d) rule (see Information Requested, above).
Required Determinations
Clarity of This Proposed Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act
We determined that we do not need to prepare an environmental
assessment or an environmental impact statement, as defined under the
authority of the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), in connection with regulations adopted pursuant to
section 4(a) of the Act. We published a notice outlining our reasons
for this determination in the Federal Register on October 25, 1983 (48
FR 49244). We also determine that 4(d) rules that accompany regulations
adopted pursuant to section 4(a) of the Act are not subject to the
National Environmental Policy Act.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, Secretarial Order
3206, the Department of the Interior's manual at 512 DM 2, and the
Native American Policy of the Service (January 20, 2016), we readily
acknowledge our responsibility to communicate meaningfully with
recognized Federal Tribes on a government-to-government basis. We will
coordinate with tribes in the range of the humpback chub and request
their input on this proposed rule.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov at Docket No. FWS-R6-ES-
2018-0081, and upon request from the Upper Colorado River Endangered
Fish Recovery Program Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Service's Upper Colorado River Endangered Fish Recovery Program Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we hereby propose to amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Chub, humpback''
under FISHES on the List of Endangered and Threatened Wildlife to read
as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 3600]]
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Chub, humpback................. Gila cypha........ Wherever found.... T.............. 32 FR 4001, 3/11/1967;
[Federal Register
citation when
published as a final
rule]; 50 CFR
17.44(cc); 4d 50 CFR
17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.44 by adding a paragraph (cc) to read as follows:
Sec. 17.44 Special rules--fishes.
(cc) Humpback chub (Gila cypha).
(1) Prohibitions. Except as provided under paragraph (cc)(2) of
this section and Sec. Sec. 17.4 and 17.5, it is unlawful for any
person subject to the jurisdiction of the United States to commit, to
attempt to commit, to solicit another to commit, or cause to be
committed, any of the following acts in regard to this species:
(i) Import or export, as set forth at Sec. 17.21(b).
(ii) Take, unless excepted as outlined in paragraphs (cc)(2)(i)
through (iv) of this section.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1).
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e).
(v) Sale or offer for sale, as set forth at Sec. 17.21(f).
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by an existing permit under
Sec. 17.32.
(ii) Conduct activities as authorized by a permit issued prior to
[effective date of the rule] under Sec. 17.22 for the duration of the
permit.
(iii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4).
(iv) Take humpback chub while carrying out the following legally
conducted activities in accordance with this paragraph:
(A) Definitions. For the purposes of this paragraph:
(1) Person means a person as defined by section 3(13) of the Act.
(2) Qualified person means a full-time fish biologist or aquatic
resources manager employed by any of the Colorado River Basin state
wildlife agencies, the Department of Interior bureaus offices located
within the Colorado River basin, or fish biologist or aquatic resource
manager employed by a private consulting firm, provided the firm has
received a scientific collecting permit from the appropriate state
agency.
(3) The six core populations means the following populations of the
humpback chub: Desolation and Gray Canyons (Green River, Utah),
Dinosaur National Monument (Green and Yampa rivers, Colorado and Utah;
currently extirpated), Black Rocks (Colorado River, Colorado),
Westwater Canyon (Colorado River, Utah), Cataract Canyon (Colorado
River, Utah), and Grand Canyon (Colorado and Little Colorado rivers,
Arizona).
(4) Reasonable care means limiting the impacts to humpback chub
individuals and populations by complying with all applicable Federal,
State, and tribal regulations for the activity in question; using
methods and techniques that result in the least harm, injury, or death,
as feasible; undertaking activities at the least impactful times and
locations, as feasible; ensuring the number of individuals removed or
sampled minimally impacts existing extant wild population; ensuring no
disease or parasites are introduced into existing extant wild humpback
chub populations; and preserving the genetic diversity of extant wild
populations.
(B) Creation and maintenance of refuge populations. A qualified
person may take humpback chub in order to create or maintain a captive
or wild refuge population that protects the long-term genetic diversity
of humpback chub, provided that reasonable care is practiced to
minimize the effects of that taking.
(1) Methods of allowable take under this paragraph (cc)(2)(iv)(B)
include, but are not limited to:
(i) Removing wild individuals via electrofishing, nets, and seines
from the six core populations;
(ii) Managing captive populations, including handling, rearing, and
spawning of captive fish;
(iii) Sacrificing individuals for hatchery management, such as
parasite and disease certification; and
(iv) Eliminating wild refuge populations if conditions are deemed
inadequate for conservation of the species or are deemed detrimental to
the six core populations.
(2) Before the establishment of any captive or wild refuge
population, the Service must approve, in writing, the designation of
the refuge population, and any removal of humpback chub individuals
from wild populations. Subsequent to a written approval for the
establishment of a refuge population, take associated with the
maintenance of the refuge population would not be prohibited under the
Act.
(C) Translocation and stocking of humpback chub. A qualified person
may take humpback chub in order to introduce individuals into areas
outside of the six core populations. Humpback chub individuals may be
introduced to new areas by translocating wild individuals to additional
locations or by stocking individuals from captivity. All translocations
of wild individuals and stocking of individuals from captivity must
involve reasonable care to minimize the effects of that taking.
Translocations of wild individuals and stocking of individuals from
captivity must be undertaken to expand the range of humpback chub or to
supplement existing populations.
(1) Methods of allowable take under this paragraph (cc)(2)(iv)(C)
include, but are not limited to:
(i) Removing wild individuals via electrofishing, nets, and seines;
(ii) Managing captive populations, including handling, rearing, and
spawning;
(iii) Sacrificing individuals for hatchery management, such as
parasite and disease certification; and
(iv) Removing or eliminating all humpback chub from failed
introduction areas via mechanical or chemical methods.
(2) The Service must approve, in advance and in writing:
(i) Any translocation program; and
(ii) Any stocking of humpback chub into any of the six core
populations.
(D) Nonnative fish removal. A qualified person may take humpback
chub in order to perform nonnative fish removal for conservation
purposes if reasonable care is practiced to minimize effects to
humpback chub. For this paragraph (cc)(2)(iv)(D), nonnative fish
[[Page 3601]]
removal for conservation purposes means any action with the primary or
secondary purpose of mechanically removing nonnative fishes that
compete with, predate, or degrade the habitat of humpback chub.
(1) Methods of allowable take under this paragraph (cc)(2)(iv)(D)
include, but are not limited to:
(i) Mechanical removal of nonnative fish within occupied humpback
chub habitats, including, but not limited to, electrofishing, seining,
netting, and angling; and
(ii) The use of other ecosystem modifications, such as altered flow
regimes or habitat modifications.
(2) The Service and all applicable landowners must approve, in
advance and in writing, any nonnative fish removal activities under
this paragraph.
(E) Catch-and-release angling of humpback chub. States and tribes
may enact Federal, State, and tribal fishing regulations that address
catch-and-release angling.
(1) In the six core populations, angling activities may include
non-targeted (incidental) catch and release of humpback chub when
targeting other species in accordance with Federal, State, and tribal
fishing regulations.
(2) In areas outside of the six core populations, angling
activities may include targeted catch and release of humpback chub in
accordance with Federal, State, and tribal fishing regulations.
(3) Angling activities may cause take via:
(i) Handling of humpback chub caught via angling;
(ii) Injury to humpback chub caught via angling; and
(iii) Unintentional death to humpback chub caught via angling.
(4) Reasonable consideration by the Federal, State, and tribal
agencies for incidental catch and release of humpback chub in the six
core populations include:
(i) Regulating tactics to minimize potential injury and death to
humpback chub if caught;
(ii) Communicating the potential for catching humpback chub in
these areas; and
(iii) Promoting the importance of the six core populations.
(5) Reasonable consideration for establishing new recreational
angling locations for humpback chub include, but are not limited to:
(i) Evaluating each water body's ability to support humpback chub
and sustain angling;
(ii) Ensuring the recreational fishing population does not
detrimentally impact the six core populations of humpback chub through
such factors as disease or genetic drift; and
(iii) Monitoring to ensure there are no detrimental effects to the
humpback chub population from angling.
(6) The Service and all applicable State, Federal, and tribal
landowners must approve, in advance and in writing, any new
recreational fishery for humpback chub.
(F) Chemical treatments to support humpback chub. A qualified
person may take humpback chub by performing a chemical treatment in
accordance with Federal, State, and tribal regulations that would
support the conservation and recovery of humpback chub, provided that
reasonable care is practiced to minimize the effects of such taking.
(1) For treatments upstream of occupied humpback chub habitat:
(i) Service approval is not required; and
(ii) Care should be taken to limit the potential for fish toxicants
and piscicides travelling beyond treatment boundaries and impacting
humpback chub.
(2) For treatments in known or potentially occupied humpback chub
habitat:
(i) The Service must approve, in advance and in writing, any
treatment; and
(ii) Care should be taken to perform robust salvage efforts to
remove any humpback chub that may occur in the treatment area before
the treatment is conducted.
(3) Whenever possible, humpback chub that are salvaged should be
moved to a location that supports recovery of the species.
(G) Reporting and disposal requirements. Any mortality of humpback
chub associated with the actions authorized under this special rule
must be reported to the Service within 72 hours, and specimens may be
disposed of only in accordance with directions from the Service.
Reports in the upper basin (upstream of Glen Canyon Dam) must be made
to the Service's Mountain-Prairie Region Law Enforcement Office, or the
Service's Upper Colorado River Endangered Fish Recovery Office. Reports
in the lower basin (downstream Glen Canyon Dam) must be made to the
Service's Southwest Region Law Enforcement Office, or the Service's
Arizona Fish and Wildlife Conservation Office. Contact information for
the Service's regional offices is set forth at 50 CFR 2.2. The Service
may allow additional reasonable time for reporting if access to these
offices is limited due to office closure or if the activity was
conducted in area without sufficient communication access.
* * * * *
Dated: December 10, 2019.
Margaret E. Everson,
Principle Deputy Director, U.S. Fish and Wildlife Service, Exercising
the Authority of the Director for the U.S. Fish and Wildlife Service.
[FR Doc. 2020-00512 Filed 1-21-20; 8:45 am]
BILLING CODE 4333-15-P