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[FR Doc No: 2021-20964]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2018-0081; FF09E22000 FXES11130900000 212]
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: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
reclassifying the humpback chub (Gila cypha) from endangered to
threatened under the Endangered Species Act of 1973, as amended (Act),
due to substantial improvements in the species' overall status since
its original listing as endangered in 1974. This action is based on a
thorough review of the best available scientific and commercial
information available, which indicates that the humpback chub no longer
meets the definition of an endangered species under the Act. The
humpback chub will remain protected as a threatened species under the
Act. We are also finalizing a rule under section 4(d) of the Act that
provides for the conservation of the humpback chub.
DATES: This rule is effective November 17, 2021.
ADDRESSES: This final rule, supporting documents we used in preparing
this rule, and public comments we received are available on the
internet at http://www.regulations.gov under Docket No. FWS-R6-ES-2018-
0081. Persons who use a telecommunications device for the deaf (TDD)
may call the Federal Relay Service at 800-877-8339.
FOR FURTHER INFORMATION CONTACT: Tom Chart, Director, telephone: 303-
236-9885. Direct all questions or requests for additional information
to HUMPBACK CHUB QUESTIONS, U.S. Fish and Wildlife Service, Upper
Colorado River Endangered Fish Recovery Program, P.O. Box 25486, DFC,
Lakewood, CO 80225. Persons who use a 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 no longer be an endangered or threatened species, we may
reclassify the species or remove it from the Federal Lists of
Endangered and Threatened Wildlife and Plants due to recovery. A
species is an ``endangered species'' for purposes of the Act if it is
in danger of extinction throughout all or a significant portion of its
range and is a ``threatened species'' if it is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. We are reclassifying the humpback
chub from endangered to threatened (i.e., ``downlisting'') because we
have determined that the species is no longer in danger of extinction
throughout all or a significant portion of its range. Downlisting a
species can only be completed by issuing a rule.
What this document does. This rule reclassifies the humpback chub
from endangered to threatened (i.e., to ``downlists'' the species),
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.
The basis for our action. Under the Act, we can determine that a
species is an endangered or threatened species based on any one or more
of the following five factors or the cumulative effects thereof: (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. Based on an
assessment of the best available information regarding the status of
and threats to the humpback chub, we have determined that the species
no longer meets the definition of endangered under the Act, but does
meet the definition of threatened.
We are promulgating a section 4(d) rule. The rule we are
promulgating under section 4(d) of the Act (``4(d) rule'') provides
exceptions to take prohibitions for activities that will further
recovery of the species. This final rule recognizes that, based on the
best available science, the humpback chub no longer meets the
definition of an endangered species, but will remain protected as a
threatened species under the Act. This progress towards recovery is a
result of conservation efforts implemented by stakeholders.
Collaborative conservation efforts have reduced the intensity of
threats to the species and improved its population numbers. The 4(d)
rule will accommodate recovery activities such as nonnative control
efforts, habitat restoration, monitoring, research, stocking, and
refuge maintenance.
Previous Federal Actions
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. On
March 21, 1994, we designated critical habitat for humpback chub along
610 kilometers (km) (379 miles (mi)) of the Colorado River basin (59 FR
13374).
We issued the first recovery plan for the humpback chub on August
22, 1979. 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 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.
On January 22, 2020, we proposed to downlist the humpback chub from
``endangered'' to ``threatened'' (85 FR 3586). Please refer to that
proposed rule for a detailed description of the Federal actions
concerning this species that occurred prior to January 22, 2020.
Summary of Changes From the Proposed Rule
As explained below under Summary of Comments and Recommendations,
we made several changes in this final rule in response to public
comments we received on our January 22, 2020, proposed rule (85 FR
3586). In incorporating the primary changes resulting from public
input, we:
Completed minor editorial changes and reorganized various
sections of the rule to increase readability;
Updated population status for all extant populations to
include the most recent monitoring data;
Revisited the analysis of future water availability and
included newly available climate information;
Revisited management actions performed by the two multi-
stakeholder programs and included analysis of
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actions newly implemented or planned, including, but not limited to,
actions affecting river flows, food supply, and nonnative fish;
Considered new information regarding the continued
existence of the Upper Basin Recovery Program and funding for the two
multi-stakeholder programs implementing management actions to benefit
humpback chub; and
Revisited our analysis of the species' status in a
significant portion of its range based on the ruling of the court in
Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan.
28, 2020).
We have incorporated this information below under Summary of Biological
Status and Threats and Determination of Humpback Chub Status, in this
rule. Additionally, we updated the species status assessment (SSA)
report to clarify the historical and current species range (Service
2018b, entire).
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the humpback chub. The SSA team was composed of Service biologists, in
consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the SSA report.
The Service sent the SSA report to 3 independent peer reviewers and
received 3 responses. The purpose of peer review is to ensure that our
reclassification determinations and 4(d) rules are based on
scientifically sound data, assumptions, and analyses. The peer
reviewers have expertise in the biology, habitat, and threats to the
species. The Service also sent the SSA report to over 25 State, Tribal,
Federal, and private partners, including scientists with expertise in
desert river biology, ecology, and hydrology, for review. We received
review from 29 individuals across 12 partner organizations (Service
2018b, pp. iv-v).
Final Reclassification Determination
Background
It is our intent to discuss only those topics directly related to
downlisting humpback chub in this rule. The citations represent only
the sources required to support this action or to provide context for
it, and are not the sum total of all literature pertaining to the
species. For more information on the description, taxonomy, biology,
ecology, and habitat of the species, please refer to the species status
assessment (SSA) report for the humpback chub (Service 2018b, entire),
as well as the materials cited in this rule. These documents will be
available as supporting materials on http://www.regulations.gov under
Docket No. FWS-R6-ES-2018-0081.
The humpback chub is a fish endemic to the warm-water portions of
the Colorado River basin of the southwestern United States. The
humpback chub lives in discrete, rocky, canyon-bound river reaches
characterized by swift currents in portions of Utah, Colorado, and
Arizona. Multiple adaptations allow the 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.
There are currently five extant, or occupied, humpback chub
populations: 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).
Although it provides suitable habitats for humpback chub, the Dinosaur
National Monument population is extirpated. Five of these populations
(the Dinosaur National Monument, Desolation and Gray Canyons, Black
Rocks, Westwater Canyon, and Cataract Canyon populations) are in the
upper basin, and one population (the Grand Canyon population) is in the
lower basin.
Recovery
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.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not 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, or to
delist a species, is ultimately based on an analysis of the best
scientific and commercial data 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.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
We published the first recovery plan for the humpback chub in 1979,
and published an updated plan in 1990 (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). For detailed description of
recovery planning for the humpback chub and descriptions of the 2002
recovery criteria, please refer to the Recovery Planning and Recovery
Criteria section in the January 22, 2020, proposed rule (85 FR 3586).
The current status of humpback chub partially meets the 2002
recovery
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criteria. Many demographic criteria are met by the five extant
populations of humpback chub, which have not declined significantly
over the past decade. However, recovery criteria are not fully met
because the adult population of Dinosaur National Monument declined and
the population is now considered extirpated. We expect to revise the
recovery plan for humpback chub when this rulemaking is complete in
order to incorporate the new scientific information.
Regulatory and Analytical Framework
Regulatory Framework
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 is an endangered species or a 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 any species is an endangered species or a 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.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects. We consider these same five
factors in downlisting a species from endangered to threatened (50 CFR
424.11(c) through (e)).
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be listed as an endangered or
threatened species under the Act. It does, however, provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the SSA report; the full SSA
report can be found at Docket No. FWS-R6-ES-2018-0081 on http://www.regulations.gov.
To assess humpback chub viability, we used the three conservation
biology principles of resiliency, redundancy, and representation
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the
ability of the species to withstand environmental and demographic
stochasticity (for example, wet or dry, warm or cold years), redundancy
supports the ability of the species to withstand catastrophic events
(for example, droughts, large pollution events), and representation
supports the ability of the species to adapt over time to long-term
changes in the environment (for example, climate changes). In general,
the more resilient and redundant a species is and the more
representation it has, the more likely it is to sustain populations
over time, even under changing environmental conditions. Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to
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sustain populations in the wild over time. We use this information to
inform our regulatory decision.
Summary of Biological Status and Threats
The following discussion is a summary of the results and
conclusions from the SSA report for the humpback chub, which contains a
more complete description of our scientific analysis (Service 2018b,
entire).
For our analysis, we identified the species' ecological
requirements for survival and reproduction at the individual,
population, and species levels, and described the factors, both
positive and negative, that influence the viability of the humpback
chub, currently and into the future (Service 2018b, entire). We
evaluated the species' current levels of resiliency, redundancy, and
representation, and projected plausible changes to these ``3Rs'' into
the future (Service 2018b, entire). Below, we summarize the results of
our analysis. Please refer to the SSA report (Service 2018b, entire)
and the Summary of Biological Status and Threats section in the
proposed rule (85 FR 3586-3594; January 22, 2020) for a more detailed
discussion of the factors affecting the humpback chub and its
viability.
Summary of Species Needs
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). Humpback chub populations need:
Habitats with few predatory nonnative fish species, allowing the young
to survive and recruit; suitable water quality with few toxic inputs,
such as fire ash or other contaminants, supporting survival of all life
stages; and unimpeded range and connectivity between discrete canyon
habitats, providing free movement of individuals among populations. At
the species level, the humpback chub needs multiple populations to
provide adequate redundancy against potential catastrophic events and
sufficient genetic diversity (representation) to ensure adaptive traits
of the species (Service 2018b, pp. 15-33).
Summary of Species Current Condition
As documented in more detail in our SSA report (Service 2018b,
entire), to evaluate the current condition of the humpback chub, we
evaluated a number of stressors that influence the resiliency of
populations. The stressors that influence resiliency of humpback chub
populations include river flows (Factor A) and predatory nonnative fish
(Factor C) in the upper basin populations; and river flows (Factor A),
water temperature (Factor A), food supply (Factor A), and predatory
nonnative fish (Factor C) in the lower basin (Service 2018b, pp. 34-
100). Some stressors, such as low river flows and warm water
temperatures, may also act cumulatively to increase the impact of
predatory nonnative fish. 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 current condition for the species first in the
upper basin and then in the lower basin, with more detail provided in
our SSA report (Service 2018b, pp. 34-124).
Summary of Current Conditions in the Upper Basin--Currently, four
populations of humpback chub occur in the upper basin (Desolation and
Gray Canyons, Black Rocks, Westwater Canyon, and Cataract Canyon), with
one additional extirpated population (Dinosaur National Monument). The
Upper Basin Recovery Program's conservation and management actions have
maintained and improved resource conditions for humpback chub
populations in the upper basin over the last 15 years. The Westwater
Canyon population has increased substantially over the past 5 years
(Hines et al. 2020, pp. 10, 28, 32), and the Black Rocks populations
has remained stable (Francis et al. 2021, pp. 36-38). The best
available information indicates that the Desolation and Gray Canyons,
and Cataract Canyon populations are also stable (Ahrens 2019, pp. 2, 7;
Caldwell 2021, p. 17). Currently, management actions in the upper basin
have improved river flows such that habitats are suitable to support
humpback chub populations. Although nonnative predatory fish species
that prey on humpback chub, such as northern pike (Esox lucius),
walleye (Sander vitreus), and smallmouth bass (Micropterus dolomieu),
have been documented near multiple humpback chub populations, the upper
basin populations are largely free of these predators. Below, we
summarize the condition of humpback chub habitats and populations in
the upper basin, with additional detail provided in the SSA report
(Service 2018b, pp. 34-124).
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 (Service 2018b, pp. 83-85). Federal, State, and Tribal
land ownership largely protects the 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 upper basin, except for a portion of the extirpated
Dinosaur National Monument population in the Green River that is cooled
by releases from the Flaming Gorge Dam. Fish passage structures ensure
movement can occur between the populations in the upper basin (Service
2018b, pp. 83-85).
The stressors of highest concern to the humpback chub in the upper
basin are reduced river flows and predatory, nonnative fish. Over the
last 50 years, the operation of large, Federal dams altered river flows
and temperature regimes of upper basin rivers by reducing spring peak
flows and increasing summer and winter base flows, conditions generally
unsuitable for humpback chub. Additionally, large municipal and
agricultural water withdrawals during the 20th century reduced the
amount of water in the upper basin rivers. Water withdrawals have
remained relatively stable over approximately the last 20 years
(Colorado Water Conservation Board 2019, p. 1; 2020 p. 1; Wyoming Solar
Energy Association 2019, p. 3), while severe and persistent drought has
reduced water supply in the upper basin since 2000 (Udall and Overpeck
2017, p. 2406; Williams et al. 2020, p. 315). Climatic warming and
increased evapotranspiration have exacerbated declines in precipitation
since 2000 (Milly and Dunne 2020, pp. 1252-1254; Williams et al. 2020,
pp. 314-317), resulting in reduced water availability to the upper
basin rivers (Udall and Overpeck 2017, pp. 2404-2406) used by the
humpback chub.
The humpback chub evolved in an environment relatively free of
predators and competitors, so the species is ill-adapted to live with
the many nonnative fish that have been introduced into the
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Colorado River basin. The humpback chub is a soft-rayed fish with no
defense mechanisms to protect itself from nonnative predatory fish
species. Over 50 nonnative fish species have been introduced into the
upper basin, some of which prey on or compete with young humpback chub,
thereby reducing survival rates of juvenile humpback chub. Smallmouth
bass present the largest predatory threat to native fish in the upper
basin (Johnson et al. 2008, p. 1946), but northern pike and walleye are
also problematic nonnative predators. Humpback chub are at most risk
from predation if nonnative predators colonize their canyon habitats,
which may result in severe, localized predation on young humpback chub.
Nonnative predators can also emigrate from nearby source populations
and exert predatory pressure on humpback chub populations. Adult
northern pike and walleye migrate through upper basin humpback chub
populations in low densities, but do not yet reside and reproduce in
any population. Nearby populations of smallmouth bass have not
colonized Black Rocks, Westwater Canyon, or Cataract Canyon, but have
been collected there in low densities. Smallmouth bass inhabit and
reproduce in Dinosaur National Monument and Desolation and Gray
Canyons, and periodically increase in density in response to low river
flows and warm water temperatures that promote their reproduction and
growth. Although a concern, nonnative predators occur in low densities
in humpback chub habitats in the upper basin but have not colonized
these habitats.
The Upper Basin Recovery Program oversees management actions needed
to improve conditions for the humpback chub in the upper basin. Over
the past 15 years, the Upper Basin Recovery Program has implemented a
large suite of actions to improve the resources of highest concern for
humpback chub, including, but not limited to: providing and protecting
river flows; managing and removing predatory, nonnative fish; and
installing and operating fish passage structures.
Despite the severe drought experienced in the upper basin over the
past 15 to 20 years, 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. Changes in the
operation of large Federal dams and provision of water dedicated to
environmental flows have managed flows to benefit the humpback chub.
Despite a severe reduction in water availability due to drought since
2000, water managers have provided flow regimes in upper basin rivers
that support humpback chub. For example, both Flaming Gorge Dam (the
Green River) and the Aspinall Unit (the Colorado River) changed
operational release patterns in 2006 and 2012, respectively, to reduce
adverse effects of altered flow regimes and to provide downstream flows
to benefit the humpback chub and other fish species (Service 2018b, p.
39). Operational release patterns at Flaming Gorge Dam, implemented
since 2006, have been evaluated for their effectiveness, and revised
flow recommendations have been drafted to further improve river flow
conditions for humpback chub and other fish species (LaGory et al.
2019, pp. 4-24, 5-6, 5-20-5-32). Implementing, evaluating, and revising
flow recommendations demonstrates a commitment by stakeholders to
provide flow regimes that benefit the humpback chub.
To maintain flows, the Upper Basin Recovery Program acquired water
stored in reservoirs in the Yampa and Colorado Rivers and releases this
water to support the humpback chub when needed, such as during low-flow
periods during the summer (Service 2018b, p. 39). Stakeholders in the
Upper Basin Recovery Program implement various other actions to improve
flow conditions for humpback chub, such as voluntary releases of water
to augment the spring peak on the Colorado River mainstem (Coordinated
Reservoir Operations), which has occurred 12 times since 1997 (Service
2018b, p. 39). Furthermore, the Colorado Water Conservation Board holds
instream flow water rights on two reaches of the Colorado River to
maintain minimum flows in the river, which may benefit downstream
habitats and designated critical habitat for humpback chub.
In the upper basin, the Upper Basin Recovery Program also
implements a comprehensive suite of nonnative fish management actions
to limit predation by nonnative fish species (Service 2018b, p. 90).
The two core actions to reduce predation of humpback chub are 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. Additionally, State partners
in the Upper Basin Recovery Program no longer stock certain nonnative
predators, and instead stock fish species that are more compatible with
the recovery of humpback chub, such as sterile individuals that will
not establish populations in river habitats. State partners also have
implemented harvest regulations that promote the removal of nonnative
predatory fish throughout the upper basin, including sponsoring
incentivized harvest in some locations.
Over the last 20 years, partners have installed five fish passage
structures in the Colorado, Gunnison, and Green Rivers to provide
ecological connectivity between the upper basin populations. Fish
passages built by the Upper Basin Recovery Program partners allow
humpback chub in all four extant upper basin populations to emigrate to
any of the other three extant populations and the extirpated Dinosaur
National Monument population. Unimpeded movement between all upper
basin populations provided by the fish passage structures allows for
genetic exchange and maintenance of genetic diversity of populations.
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 in some humpback chub
populations in the late 1990s. Abundance estimates generally have some
uncertainty, with wide confidence intervals in older estimates and more
precision in recent 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 both declined from
around year 2000, when they were first estimated, through about 2006,
after which they both stabilized through about 2012 (Service 2018b, p.
101). The most recent preliminary estimates of the Black Rocks
population, for years 2016 and 2017, indicate continued stabilization
of the population at around 430 adults (Francis et al. 2021, pp. 36-
38). A large group of juvenile humpback chub documented in 2017 may
increase the size of the Black Rocks population in future years
(Francis et al. 2021, pp. 36, 38). The most recent estimates of the
Westwater Canyon population, for years 2016 and 2017, indicate the
population increased substantially to around 3,300 adults (Hines et al.
2020, pp. 10, 28, 32), likely the result of several years of
recruitment since 2015. For the last 19 years, adult survival for
humpback chub in Black Rocks and Westwater Canyon was relatively stable
around 75 percent (Hines et al. 2020, pp. 10, 33; Francis et al. 2021,
pp. 39-40). Emigration of humpback chub between Black Rocks and
Westwater Canyon demonstrate connectivity, with approximately 2 percent
of each population emigrating to the other population each year, for a
net
[[Page 57593]]
contribution of approximately 50 individuals a year to the Black Rocks
population (Hines et al. 2020, p. 17; Francis et al. 2021, p. 41).
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 did not employ the same sampling regime as subsequent
sampling. Since 2003, when standardized sampling began, preliminary
analysis of long-term demographic metrics, catch rates, and site-
specific abundance estimates indicate that the Desolation and Gray
Canyons humpback chub population is stable (Caldwell 2021, p. 17).
Specifically, canyon-wide catch rates of adults and the proportion of
first year adults have remained consistent (Caldwell 2021, pp. 17, 27-
31). Using estimates from 2006 to 2019, the adult abundance trends for
long-term monitoring sites in Desolation and Gray Canyons are stable or
increasing (Caldwell 2021, pp. 17, 32-33). Results from standardized,
long-term monitoring in 2018 and 2019 demonstrates that the Desolation
and Gray Canyons population is likely stable.
The Cataract Canyon population is small, with fewer than 500
adults. 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. Monitoring
efforts from 2017 documented the highest annual CPUE for humpback chub
in Cataract Canyon over the last 26 years (Ahrens 2017, p. 7), and the
CPUE measured in 2019 was also above average (Ahrens 2019, pp. 2, 10).
Analysis of CPUE by year since the 1990s demonstrates the population is
stable, as the CPUE for humpback chub in Cataract Canyon has been
increasing, but not in a statistically significant manner (Ahrens 2019,
pp. 2, 7). Additionally, new sampling techniques in 2017 and 2019
increased the ability to document the presence of juvenile humpback
chub in Cataract Canyon (Ahrens 2017, p. 2; Ahrens 2019, p. 3).
Unlike the other four populations in the upper basin, the Dinosaur
National Monument population is currently below detection limits for
humpback chub and is now considered functionally extirpated. By 1998,
humpback chub in Dinosaur National Monument were absent or rare in
habitats where the species was likely common in the 1940s (Tyus 1998,
p. 192). The last collections of humpback chub in this population were
in the Yampa River in 2004 (Service 2018b, p. 114) and in the Green
River in 2006 (Bestgen and Irving 2006, p. 2). The decline of the
humpback chub population in Dinosaur National Monument likely started
with the treatment of the Green River with rotenone (a chemical used to
kill fish) following the completion of Flaming Gorge Dam in 1962
(Service 2018b, p. 81). Starting in 1963, any remaining humpback chub
in the Green River portion of the Dinosaur National Monument population
were negatively affected for decades by the cold, stable releases from
Flaming Gorge Dam. Since 2006, operational changes at Flaming Gorge Dam
have improved the water temperature and flow conditions in the Green
River so that they could be more suitable for humpback chub. These
operational flow regimes at Flaming Gorge Dam have been evaluated and
could be revised to further reduce impacts on humpback chub and other
native fish species (LaGory et al. 2019, pp. 4-24, 5-6, 5-20-5-32).
Flows in the Yampa River portion of the Dinosaur National Monument
population are largely unregulated, but the Yampa River has experienced
large-scale water withdrawals and low river flows, especially in the
early 2000s. The extreme low flows in 2002 likely resulted in the
extirpation of the remaining humpback chub in the Yampa River and
allowed smallmouth bass to proliferate throughout the upstream reaches.
Since 2007, water acquired by the Upper Basin Recovery Program and
released from Elkhead Reservoir has supported improved flow conditions
in the Yampa River (Service 2018b, p. 39), but smallmouth bass continue
to dominate the Yampa River upstream of humpback chub habitats.
Dinosaur National Monument may now have suitable resource
conditions to support a reestablishment effort of humpback chub. The
rocky canyon habitats preferred by the humpback chub are still present
in Dinosaur National Monument, and the native fish community is largely
intact. 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 has convened a
team to consider translocation or stocking to restore the humpback chub
to the Dinosaur National Monument population.
Summary of Current Conditions in the Lower Basin--The lower basin
has one large population of humpback chub located in the Grand Canyon.
Resource conditions in the lower basin are of sufficient quality and
quantity to support population resiliency. Humpback chub 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 in the lower basin. Below, we
summarize current conditions for humpback chub in the lower basin, with
additional detail provided in the SSA report (Service 2018b, pp. 34-
124).
Although the Grand Canyon population is the only humpback chub
population in the lower basin, the population is large and includes: A
core population area in the Little Colorado River and nearby mainstem
Colorado River; a recent range expansion into western Grand Canyon; 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 provide unimpeded connectivity between its
habitats. In this population, there are no barriers to movement, except
for those created by natural falls or chutes in tributary habitats.
Translocated humpback chub placed above these natural barriers helped
improve redundancy of humpback chub populations in the lower basin.
Landownership surrounding the Grand Canyon population is Federal and
Tribal, so human access and use are well-regulated.
The stressors of highest concern to humpback chub in the lower
basin are altered river flows, reduced water temperature, inadequate
food supply, and predatory nonnative fish. Releases from the Glen
Canyon Dam alter the flow and temperature regimes of the Colorado River
throughout much of the Grand Canyon population by reducing spring
peaks, increasing base flows, and cooling the river through much of the
year. Despite flow and temperature changes, humpback chub continue to
use the mainstem near the mouth of the Little Colorado River for all
life stages, except spawning, egg incubation, and larval development,
which occur primarily in the Little Colorado River (Service 2018b, p.
59). Furthermore, the species has recently expanded into the western
Grand Canyon (Van Haverbeke et al. 2017; Rogowski et al. 2018, p. 26)
as the elevation of Lake Mead has
[[Page 57594]]
receded, possibly the result of warmer water temperatures in the
mainstem portion of the river (Van Haverbeke et al. 2017, p. 285).
The Long-Term Experimental and Management Plan prescribes the
release patterns from the Glen Canyon Dam, helping to reduce and
minimize impacts to humpback chub habitats in the Grand Canyon (U.S.
Department of the Interior (DOI) 2016, pp. 1-2). 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, nonnative fish to invade and expand into humpback
chub habitats.
Predatory nonnative fish in the lower basin include warm-water
species that have escaped from Lake Powell and cold water salmonids
such as brown trout (Salmo trutta) and rainbow trout (Oncorhynchus
mykiss) that prey on juvenile humpback chub in the cold tailwaters of
Glen Canyon Dam (Ward and Morton-Starner 2015, p. 1184). Although these
two predators overlap with humpback chub in portions of the mainstem
Colorado River, the predators are concentrated in the colder water
immediately below Glen Canyon Dam and tributaries of the Colorado River
in the Grand Canyon, so are not distributed fully throughout humpback
chub habitats in the lower basin. The majority of the areas inhabited
by humpback chub, including the Little Colorado River and western Grand
Canyon, are dominated by native fish (Pillow et al. 2018, p. 7; Stone
et al. 2018, p. 119; Van Haverbeke et al. 2019, p. 8; Kegerries et al.
2020, p. 146; Van Haverbeke et al. 2020, p. 8). Nonnative fish are
likely limited by abiotic (physical) factors in the Little Colorado
River, such as carbon dioxide and sediment regimes, which allows
humpback chub and other native fish species to dominate this important
habitat (Stone et al. 2018, p. 119). Similarly, turbidity could be
limiting nonnative species in the western Grand Canyon allowing for
humpback chub range expansion (Kegerries et al. 2020, pp. 152-154).
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: Management actions to
reduce nonnative fish species; altering dam releases to study possible
improvements of important food sources for humpback chub, such as
mayflies, stoneflies, and caddisflies; and the translocation of
humpback chub to new habitats.
In the lower basin, management actions are geared toward the
removal of both warm water and cold water nonnative fish species, but
these actions do not occur unless predetermined conditions are met (DOI
2016, pp. B-22-B-31; NPS 2018, pp. 7-26). Removal of nonnative trout
occurs in locations managed for humpback chub, but, currently, removal
of nonnative species in the lower basin occurs only in Bright Angel
Creek. The National Park Service (NPS) has recently implemented an
``Expanded Nonnative Species Management Plan'' to prevent, control,
minimize, or eradicate potentially harmful nonnative aquatic species
(NPS 2018, p. 1). Recent increases in the nonnative green sunfish
(Lepomis cyanellus) and brown trout in the Glen Canyon reach have
raised concerns about risks to humpback chub and have prompted NPS to
consider additional tools and new approaches to control nonnative
aquatic species (NPS 2018, pp. 1-3).
In the lower basin, temperature, daily flow variation, and
competition with other fish species influence the aquatic food base
available to humpback chub, which may limit the size of the Grand
Canyon population of humpback chub. Dam releases for hydropower
production that match intra-daily electrical demand, a process known as
``hydropeaking,'' could limit the availability of important
macroinvertebrates eaten by humpback chub and other native fish
species, by desiccating insect eggs that are laid during high water
periods but then are exposed as flows recede (Miller et al. 2020, p.
584). It is unclear if hydropeaking reduces the availability of aquatic
insects for humpback chub in the Grand Canyon (Kennedy et al. 2016, p.
1), so the Glen Canyon Dam AMP is testing a series of flows
specifically to improve the production of macroinvertebrates. The
experiments are ongoing and it is unclear if these production flows
have increased long-term macroinvertebrate density (Kennedy and
Meuhlbauer 2020, pp. 12-20) or improved condition of humpback chub.
Since 2003, partners in the Glen Canyon Dam AMP have translocated
humpback chub to tributaries of the Colorado River to establish
population redundancy and introduce humpback chub to areas with low
densities of nonnative fish. Humpback chub translocated upstream in the
Little Colorado River above Chute Falls, a natural barrier to fish
movement, demonstrated higher growth rates and earlier sexual maturity
than those below the falls, and are also likely reproducing in the
translocation area (Stone et al. 2020, p. 1). A 3-year effort to
introduce humpback chub into Shinumo Creek in the lower basin indicated
that the tributary provided favorable conditions for growth and
survival despite high emigration rates (Spurgeon et al. 2015, p. 502),
but a 2014 fire and subsequent flooding extirpated humpback chub from
the area (Healy et al. 2020a, p. 9). A later effort in Havasu Creek
found that translocated individuals survived and grew at rates that
matched the Little Colorado River core population, and these
individuals potentially established a self-sustaining population (Healy
et al. 2020a, pp. 1-2). In addition, humpback chub were translocated
into Bright Angel Creek in 2018 and 2020, and evaluation is underway
(Healy et al. 2020b, pp. 3-5). These efforts indicate that humpback
chub tolerates translocation for conservation, which may be an
important tool to its recovery in the future.
The lower basin's 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. A substantial
population decline occurred in the Little Colorado River during the
1990s, followed by a strong increase around 2007 (Van Haverbeke et al.
2019, pp. 21, 41). This core group remained relatively stable from 2008
to 2014, with a high abundance of approximately 11,500 to 12,000 adults
(Service 2018b, pp. 117-119; Van Haverbeke et al. 2019, p. 41).
Significantly lower abundance estimates in 2015 and 2016 likely
resulted from humpback chub remaining in the mainstem Colorado River
(Van Haverbeke et al. 2019, p. 25), not a reduction in population size.
Since 2017, spring adult and subadult abundances equal or exceed
previous estimates (Van Haverbeke et al. 2019, pp. 8, 41-42),
demonstrating this population continues to be large and stable.
Increases in adult abundance after 2006 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.
[[Page 57595]]
In addition to the core population in and near the Little Colorado
River, the Grand Canyon population also has multiple aggregations of
adult and subadult humpback chub distributed in the mainstem Colorado
River. Humpback chub catch rates within these aggregations have
increased significantly since 2010, especially in western Grand Canyon
(Van Haverbeke et al. 2020, pp. 9, 31). In fact, relatively large
numbers of humpback chub in the western Grand Canyon, including age-0
individuals (life stage after larvae, within the first year of life),
downstream of Diamond Creek indicate the likelihood of a new
subpopulation (Van Haverbeke et al. 2017, pp. 285, 288-289; Rogoswki et
al. 2018, pp. 26, 33-34). Length frequencies for the humpback chub in
western Grand Canyon indicate local, natural recruitment (Van Haverbeke
et al. 2017, p. 288; Rogoswki et al. 2018, p. 34). Evidence of
reproduction and recruitment that does not appear to be reliant on the
Little Colorado River indicates that the western Grand Canyon is likely
a second, subpopulation in the lower basin, which would improve
redundancy in the lower basin.
Lastly, translocation efforts are potentially establishing a third,
smaller subpopulation in Havasu Creek. Beginning in 2016, natural
recruitment to sexual maturity of humpback chub that were produced in
Havasu Creek occurred simultaneously with increases in abundance for
this population (Healy et al. 2020a, pp. 2, 8). Although the Havasu
Creek population is still new and its long-term success is not
guaranteed, it provides additional redundancy to the Grand Canyon
population, the lower basin, and the species.
Summary of Species' Current Condition--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 fish species, adaptation to a wide variety of flow and
thermal regimes, and a variable omnivorous diet. Population resiliency
is demonstrated by the stability of small populations (Cataract
Canyon), population increases after previous declines (Grand Canyon and
Westwater Canyon), population establishment after translocations
(Havasu Creek), expansion into new areas (western Grand Canyon), and
stabilization after previous declines (Black Rocks). In addition, the
large population size of the Little Colorado River portion of the Grand
Canyon population in the lower basin reduces risk from stressor and
environmental stochasticity. Similarly, the large Westwater Canyon
population supports a strong core population in the upper basin.
The current distribution of the humpback chub in five extant
populations across the upper and lower basins, with new populations
emerging in the lower basin, provides redundancy for the humpback chub
and reduces catastrophic risk. The distribution of the four extant
populations in the upper basin across different river basins and many
miles of rivers also reduces catastrophic risk. Black Rocks and
Westwater Canyon are the only two populations that are in relatively
close proximity. In the lower basin, the single humpback chub
population is large and widespread, a distribution that provides
redundancy and reduces catastrophic risk to the species. In the lower
basin, humpback chub may be expanding their range into western Grand
Canyon and reproducing in newly established locations, such as Havasu
Creek, which may also provide redundancy 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 species'
genetic diversity. The species' genetic diversity has not declined over
the past decade (Bohn et al. 2019, p. 25). Upper basin populations are
generally more diverse than the lower basin population, demonstrating
adequate exchange of individuals between populations in the upper basin
(Bohn et al. 2019, pp. 8, 24-25). Recent analysis recommends that
genetic diversity of the species be managed as three units: Upper
Colorado River (Cataract Canyon, Black Rocks, and Westwater Canyon),
Green River (Desolation and Gray Canyons), and the Lower Basin (Grand
Canyon and tributaries) (Bohn et al. 2019, p. 8).
Summary of Future Conditions--In our SSA report, we evaluated
future conditions for the humpback chub using projections for the
stressors, habitat factors, and demographic factors that influence its
resiliency, redundancy, and representation (Service 2018b, pp. 125-
153). For this species status assessment, we defined viability as the
ability of the species to sustain populations in natural ecosystems
over a biologically meaningful timeframe, in this case, 16 and 40 years
into the future. These timeframes are periods that allow us to
reasonably project the potential effects of various stressors within
the range of the species and account for multiple generations of the
humpback chub. These projections are consistent with the time scale for
which we have data available on the species and its stressors. We
projected the resiliency, redundancy, and representation of the
humpback chub under three plausible future scenarios, both 16 and 40
years into the future. We developed future scenarios to help capture
uncertainty associated with the future and describe the range of
plausible future conditions within the overall range of the humpback
chub. Below, we summarize the three future scenarios that we used to
evaluate a range of plausible future conditions for the humpback chub,
which are discussed in greater detail in our SSA report (Service 2018b,
pp. 134-135).
Future 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 describes a plausible
future with reduced conservation actions. Future 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 Scenarios 2 and 3 are plausible futures with
continued commitment to conservation actions. Scenarios 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 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 nonnative fish.
Under Scenario 1, conditions would severely degrade within both 16
and 40 years, primarily in the upper basin because collaborative
partnerships would be eliminated or reduced. 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
[[Page 57596]]
conditions within 40 years. Although there is high uncertainty
regarding resource conditions under Scenario 2 at 40 years,
extrapolation of the expected resource conditions from 2034 onward
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.
Scenarios 1 and 2 projected that within 40 years the populations
and overall viability of humpback chub would be at increased risk and
could decline (Service 2018b, pp. 159-163). Future conditions for
humpback chub would only improve under Scenario 3 if long-term
management actions are successful. The SSA report 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 (Service 2018b, pp. 154-163).
New Scientific Information--New scientific and commercial data
completed after the SSA report (Service 2018b, entire) helps improve
our understanding of the humpback chub and the management actions
needed to conserve the species. We included this new information above
in our summary of current conditions for both the upper and lower
basins. Since 2018, new monitoring data indicates that all four extant
upper basin populations are likely stable or increasing, reducing the
uncertainty of the trajectory of these populations. In the lower basin,
monitoring indicates that the Little Colorado River core area is
stable, that humpback chub have expanded their range into western Grand
Canyon, and that a translocated population in Havasu Creek is naturally
recruiting. Population demographics for all extant populations of the
species indicates that management actions enacted recently, such as
operational flow regimes from dams and nonnative fish removal, are
assisting the species. This information increases support for Scenario
3, as continued management actions in both basins are resulting in
improved population resiliency across the current range of the species.
To date, the Upper Basin Recovery Program has not been formally
extended and is scheduled to expire in 2023, so Scenario 1 in the SSA
report (2018b, entire), with its reduction of conservation efforts,
remains plausible. Partners are committed to implementing recovery
actions after 2023, as demonstrated by their ongoing negotiations to
define the future of the partnership. However, until the structure and
funding for this partnership is defined, the analysis of future
conditions under Scenario 1 as presented in the SSA report (Service
2018b, entire) remains unchanged.
The purpose of the SSA was to characterize the current and future
viability of the humpback chub in terms of the 3Rs, considering the
potential current and future effects of stressors. In our SSA report,
we described the current condition and three plausible future
conditions for the humpback chub in terms of its resiliency,
redundancy, and representation (Service 2018b, entire).
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 of stressors on individuals,
populations, and the species, but we have also analyzed their potential
cumulative effects. We incorporate the cumulative effects into our SSA
analysis when we characterize the current and future condition of the
species across the upper and lower basins and five populations. Our
assessment of the current and future conditions encompasses and
incorporates the threats individually and cumulatively (Service 2018b,
entire). 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 negative influences from
stressors and positive influences from conservation efforts. We
evaluate potential effects from these influences consistently across
the same subset of habitat and demographic needs for the species, both
currently and into the future. Because the SSA framework considers not
just the presence of the factors, but also 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.
In our determination, we correlate the threats acting on the
species to the factors in section 4(a)(1) of the Act. We summarize the
status assessment for the humpback chub below.
The biological information we reviewed and analyzed as the basis
for our findings is documented in the SSA report (Service 2018b,
entire), a summary of which is provided above. The projections for the
future condition of the species are based on our expectations of the
potential stressors that may affect the humpback chub. The potential
stressors we evaluated in detail in the SSA report (Service 2018b,
entire) that fall under Factors A, B, C, and E of the Act are: River
flows (Factor A) and predatory nonnative fish (Factor C) in the upper
basin populations; and river flows (Factor A), water temperature
(Factor A), food supply (Factor A), and predatory nonnative fish
(Factor C) in the lower basin population (Service 2018b, pp. 34-100).
Existing regulatory mechanisms (Factor D) are discussed below.
Some stressors, such as low river flows and warm water
temperatures, may also act cumulatively to increase the impact of
predatory nonnative fish. 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).
Our analysis found that the primary drivers for the humpback chub's
current and future condition are diminishing river flow (Factor A),
increasing water temperature (Factor A), expanding populations of
nonnative fish (Factor C), and food availability in the Grand Canyon
(Factor A). 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 alters suitable river flow and temperatures. Historically, 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. In the upper basin, modifications
including restoring much of the important intra- and inter-annual
variability of river flow have helped improve conditions for the
humpback chub. Revised operational regimes are subsequently monitored,
evaluated, and revised for their effectiveness to improve conditions
for the humpback
[[Page 57597]]
chub (LaGory et al. 2019, pp. 4-24, 5-6, 5-20-5-32).
We also evaluated how the effects of climate change could impact
river flows and water temperatures by using hydroclimate projections of
future water resources in the Colorado River basin. Hydroclimate
projections predict that decreased warm-season runoff will reduce water
supply, primarily from increased frequency and severity of drought,
which will further result in warmer water temperatures (U.S. Bureau of
Reclamation 2016, pp. i-ii). Climatic warming and increased
evapotranspiration are expected to exacerbate a decline in water supply
beyond declines in precipitation (Udall and Overpeck 2017, pp. 2404-
2406; Milly and Dunne 2020, pp. 1252-1254; Williams et al. 2020, pp.
314-317). Warmer, lower flows in the upper basin increase the risk of
nonnative fish species impacting humpback chub populations by
supporting the growth and reproduction of smallmouth bass. Warmer
releases from Lake Powell could also impact abundance and distribution
of nonnative fish in the Grand Canyon.
Currently, river flow conditions and temperatures are largely
adequate for humpback chub in both the upper and lower basins because
reservoir managers have exercised flexibility in their operations to
support humpback chub while meeting downstream delivery obligations.
Furthermore, current river flow conditions have supported native fish
strongholds in humpback chub habitats despite nearby populations of
predatory nonnative fish. Future river flow and temperature conditions
are uncertain because regional climatic patterns predict reduction in
water availability that may exceed the ability of operational
flexibility to provide adequate flows.
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, although food supply has not been measured, it is not
estimated to be a limiting factor. Conversely, below Glen Canyon Dam in
the lower basin, the condition of the humpback chub populations is
hypothesized to be impacted by low aquatic insect diversity and stream
productivity. To improve egg-laying conditions for aquatic insects, the
primary food source for the humpback chub in the Colorado River, the
Glen Canyon Dam AMP is conducting experiments to evaluate densities of
macroinvertebrates under various flow regimes (Kennedy and Meuhlbauer
2020, pp. 12-20) to see if they will appreciably improve humpback chub
condition. Therefore, low food availability could be a stressor to the
species in the lower basin.
Predation--Predation and competition by nonnative fish are
stressors to humpback chub in both the upper and lower basins. 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 ability of
the humpback chub to breed, feed, and shelter. Although the humpback
chub has no natural defense mechanism to protect itself from nonnative
predators, the more arduous hydrological conditions of the humpback
chub's canyon habitats are less favorable to the nonnative predators,
which may limit the effects of nonnative fish. However, predation from
nonnative fish may also increase when warm water temperatures act
cumulatively with low flows.
In the upper basin, predation and competition by nonnative fish,
particularly smallmouth bass, walleye, and northern pike, are potential
threats to the viability of humpback chub. All upper basin humpback
chub populations have dense nonnative predator populations nearby and
experience predation pressure when adult predators emigrate. However,
only the extant Desolation and Gray Canyons and the extirpated Dinosaur
National Monument experience localized reproduction of smallmouth bass.
Smallmouth bass colonization of multiple humpback chub populations
would significantly decrease the viability of the species in the upper
basin, but this has not yet occurred. In-river removal of nonnative
predators focused on disrupting spawning successfully reduces adult
densities of northern pike (Bestgen et al. 2020, pp. 11-12) and
smallmouth bass (Hawkins 2019, pp. 12, 23) in certain reaches of the
upper basin, but environmental conditions conducive to reproduction can
produce strong year classes of young fish. This demonstrates that long-
term commitment to nonnative predator control can improve conditions
for the humpback chub and other native fish, but must be performed
consistently in order to control nonnative fish populations.
Commitments to multifaceted management of nonnative fish has reduced
the threat posed by nonnative predators in the upper basin, but if
management actions decrease, the threat would likely increase.
In the lower basin, current densities of nonnative predators are
low in areas inhabited by humpback chub, such as the Little Colorado
River and western Grand Canyon, likely because of abiotic factors, such
as turbidity, water chemistry, and temperature (Pillow et al. 2018, p.
7; Van Haverbeke et al. 2019, p. 8; Kegerries et al. 2020, p. 146).
Management actions in place to prevent and respond to establishment of
new species, including the NPS ``Expanded Nonnative Species Management
Plan,'' provides additional tools and new approaches for controlling
nonnative aquatic species (NPS 2018, pp. 1-3). Recent increases in
brown trout density in the Lees Ferry reach of the Colorado River and
the discovery of green sunfish immediately below Glen Canyon Dam
demonstrate that risks do exist in the lower basin, but these risks are
currently upstream of humpback chub habitats. Lower elevations of Lake
Powell enhance risk of warm water 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.
Currently, nonnative fish moderately impact two (one extant and one
extirpated) populations of humpback chub, while the remaining four
extant populations are not currently being impacted. The threat of
nonnative fish is being managed in the upper basin through multifaceted
management actions, including but not limited to in-river nonnative
predator removal, active flow management, and reservoir containment. In
the lower basin, abiotic conditions currently limit the threat of
nonnative fish. There remains risk for future increases in impacts from
nonnative fish caused by altered flow conditions, but the magnitude of
these impacts is uncertain. Therefore, nonnative predatory fish are not
currently a threat to the species, but could become a threat in the
future if management actions decrease.
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. Humpback chub are considered a sensitive species in Utah
(Utah Division of Wildlife Resources 2017, p. 2), a State threatened
species in Colorado (Colorado Parks and Wildlife 2020, p. 3), a Tier 1
vulnerable species in Arizona (Arizona Game and Fish 2019, p. 32), and
an endangered species under Navajo Nation Code (Navajo Nation 2020, p.
2), which provide various protections within those
[[Page 57598]]
boundaries. 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 (USBR), 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 (USBR 2012, p. 1), Flaming Gorge Dam (USBR 2006,
pp. 1-2), and Glen Canyon Dam (DOI 2016, pp. 1-2). In the upper basin,
the Colorado Water Conservation Board holds instream flow water rights
on two reaches of the Colorado River to maintain minimum flows in the
river, which may benefit downstream-designated critical habitat for the
humpback chub. 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 and Glen Canyon Dam AMP are key
regulatory mechanisms that shape the current and future condition of
humpback chub. These programs are considered regulatory mechanisms
because they are authorized through, and comply with, Federal
legislation and the Law of the River. 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 (USBR
1996, pp. G-3-G-4), and funding for the program was authorized under
Public Law 106-377. The Upper Basin Recovery Program coordinates and
implements the majority of management actions in the upper basin, while
the Glen Canyon Dam AMP undertakes management actions for the mainstem
Colorado River in the lower basin. For example, both programs provide
adequate habitat conditions by managing river flow and water
temperature and by managing nonnative fish species. Conservation
efforts implemented by the two programs over the past three decades
demonstrate the success of these collaborative partnerships.
The cooperative agreement implementing the Upper Basin Recovery
Program was first signed in 1988, extended in 2001 and 2009, and is
scheduled to expire in 2023. Expiration in 2023 creates uncertainty for
continued implementation of conservation efforts. However, commitment
to continue the decades-long partnership is strong, as demonstrated by
ongoing efforts to extend the partnership beyond 2023. Language in
Public Law 116-9 requires program stakeholders to work with the
Secretary of the Interior to develop a list of actions necessary to
assist in the recovery of the endangered fishes in the upper basin, and
to estimate the costs of those actions. The partners are actively
working to provide this information and to simultaneously define a
program structure and funding strategy that would implement the actions
after 2023. Partners recognize that declining hydropower production
requires the negotiation of new funding strategies (Western Area Power
Administration (WAPA) 2020, pp. 8-12, 16) and that funding must be
adequate to implement the management actions necessary for humpback
chub recovery in the upper basin. Until the Upper Basin Recovery
Program partnership is defined and adequately funded, the humpback
chub's future resource conditions are not certain because critical
management actions, such as leasing water for river flows, in-river
nonnative fish removal, fish passage operations, and monitoring may not
be implemented.
In the lower basin, the Long-Term Experimental and Management Plan
and other legally binding mechanisms provide more certainty for
humpback chub conservation actions, including additional adaptive
actions likely needed to respond to changing resource conditions
(Service 2018b, pp. 12-14). Unlike the Upper Basin Recovery Program,
the Glen Canyon Dam AMP and associated funding does not have a
scheduled expiration. However, declining hydropower production also
impacts the funding strategies for this partnership (WAPA 2020, pp. 8-
12, 16). Continued implementation of management actions is critical to
the humpback chub's future resource conditions in the lower basin.
Summary of Comments and Recommendations
In the proposed rule published in the Federal Register on January
22, 2020 (85 FR 3586), we requested that all interested parties submit
written comments on our proposal to downlist the humpback chub by March
23, 2020. We also contacted appropriate Federal and State agencies,
Native American Tribes, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Arizona Daily Sun (Arizona), the Salt Lake Tribune (Utah), and the
Grand Junction Sentinel (Colorado). We did not receive any requests for
a public hearing. All comments are posted at http://www.regulations.gov
under Docket No. FWS-R6-ES-2018-0081. All substantive information
received during the comment period is either incorporated directly into
this final rule or is addressed below.
State Comments
Section 4(b)(5)(A)(ii) of the Act states that the Secretary must
give actual notice of a proposed regulation under section 4(a) to the
State agency in each State in which the species is believed to occur,
and invite the comments of such agency. Section 4(i) of the Act directs
that the Secretary will submit to the State agency a written
justification for his or her failure to adopt regulations consistent
with the agency's comments or petition. We solicited and received
comments from the States of Arizona (Arizona Game and Fish Department),
Colorado (Colorado Department of Natural Resources), and Utah (Utah
Public Lands Policy Coordinating Office). The three States support our
reclassification of humpback chub with a section 4(d) rule.
Tribal Comments
We received one letter from a Native American Tribe, the Navajo
Nation, in which the Little Colorado River portion of the Grand Canyon
population resides. On July 2, 2020, we conducted government-to-
government consultation concerning the proposed rule to reclassify
humpback chub with a section 4(d) rule. The Navajo Nation supports our
reclassification of humpback chub with a section 4(d) rule.
Public Comments
We received 78 letters from the public that provided comments on
our January 22, 2020, proposed rule (85 FR 3586). We received letters
from the general public, nongovernmental organizations such as water
users, power customers, and environmental organizations. All of the
comments included their views on whether the humpback chub should be
reclassified, with letters of support for and opposition to the
downlisting. We considered identical comments
[[Page 57599]]
submitted by different entities to be one substantive comment, such as
identical letters and emails submitted by multiple water user groups
and the Sierra Club. Relevant public comments are addressed in the
following summary, and new information was incorporated in this final
rule.
Comment (1): Some comments stated that the humpback chub should not
be reclassified because population demographics do not meet the current
recovery goals. Specifically, those comments stated that upper basin
population abundances were too small to warrant reclassification and
the current recovery goals include the Dinosaur National Monument
population, which has experienced extirpation in the last two decades.
Additional comments requested that we use the most recent population
monitoring data to characterize the current condition of the species.
Specifically, those comments requested that we incorporate updated
monitoring information for the Little Colorado River, western Grand
Canyon, and all upper basin populations.
Our Response: We used the most recent monitoring data to
characterize the status of the species and updated population status
descriptions throughout the rule. The current distribution of the
humpback chub in five extant populations across the upper and lower
basins, with new locations emerging in the lower basin, provides
adequate redundancy for the species. Populations are either stable
(Grand Canyon, Desolation and Gray Canyons, Cataract Canyon, and Black
Rocks), or are increasing (Westwater Canyon and western Grand Canyon),
demonstrating their resiliency regardless of abundance. As summarized
above, the current condition of the species includes adequate
resiliency, redundancy, and representation to support species
viability.
We recognize that the extirpation of the Dinosaur National Monument
population negatively affected the species and reestablishing that
population would have conservation value to the species. Because
existing habitats could potentially support a population, the Upper
Basin Recovery Program has convened a team to consider translocation or
stocking to restore humpback chub to Dinosaur National Monument. We
support this conservation effort.
As described under Recovery above, recovery plans provide important
guidance to the Service, States, Tribes, 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, but they are not regulatory documents and cannot substitute
for the determinations and promulgation of regulations required under
section 4(a)(1) of the Act. We expect to revise the recovery plan for
the humpback chub when this rulemaking is complete.
Our decision to revise the status of the humpback chub is based on
an analysis of the best scientific and commercial data available,
regardless of whether that information differs from the recovery plan.
As described in Determination of Status below, our review of the best
available scientific and commercial information indicates that the
humpback chub meets the definition of a threatened species.
Comment (2): Some comments stated that we should not reclassify the
species to threatened because the species will receive less protection
under the Act. Furthermore, some comments specifically mentioned that
if this rulemaking were finalized, there would be no regulatory
mechanisms in place to protect the species from large-scale projects,
including hydropower projects proposed for the Little Colorado River
currently under Federal Energy Regulatory Commission (FERC) review.
Our Response: Reclassification from endangered to threatened would
not remove the species from the Federal List of Endangered and
Threatened Wildlife. Therefore, this rule would not eliminate
protections afforded by the Act, including prohibitions of take under
section 9 of the Act, except as defined under this rule's special 4(d)
provisions. Likewise, reclassification would not 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.
As part of this rulemaking, we developed a species-specific 4(d)
rule, the provisions of which would promote the conservation of the
humpback chub by providing continued protection from take and would
facilitate the expansion of the species' range by increasing
flexibility in management activities. These activities are intended to
support the conservation of humpback chub. All other actions that could
impact the species would still be governed by the Act's prohibitions of
take under section 9 of the Act.
The Act's section 9 take prohibitions, along with the consultation
requirements under section 7 of the Act, would provide adequate
regulatory oversight for projects likely to jeopardize the continued
existence or recovery of humpback chub. This includes the proposed
hydropower projects in the Little Colorado River under FERC
consideration. The Department of the Interior has submitted comments on
these projects specific to potential impacts to humpback chub. As
stated in both of FERC's May 21, 2020, Preliminary Permits, if a
license is pursued, FERC ``will comply with the requirements of the
[Act] during its review of the application'' (FERC 2020a, p. 5; FERC
2020b, p. 5).
Comment (3): Some comments stated that the provisions of the 4(d)
rule for humpback chub would not protect humpback chub, specifically
the catch and release angling provisions. Conversely, all three States
provided comments supporting the 4(d) rule provisions, with the State
of Colorado specifically stating that all provisions are relevant to
the recovery of the humpback chub.
Our Response: We determined that the specific provisions in the
4(d) rule adequately protect humpback chub while facilitating the
conservation and management of humpback chub where they currently
occur, and may occur in the future. We included descriptions of
reasonable care to limit the take to humpback chub during these
important conservation activities. Of particular note, we provide take
prohibitions for catch-and-release angling of humpback chub only in
areas outside of the core populations, thus protecting humpback chub
from intentional angling pressure in these important areas.
Comment (4): One comment stated that the proposed rule fails to
adequately address whether the chub's most at-risk populations in the
upper basin are still ``in danger of extinction'' and, if so, whether
any of these higher risk populations constitute a ``significant
portion'' of the chub's range thereby requiring the species as a whole
to remain federally listed as endangered.
Our Response: Based on the ruling of the court in Center for
Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020),
we have revised our evaluation of the status of the humpback chub
throughout a significant portion of its range to meet the court's
requirements under Status Throughout a Significant Portion of Its
Range, below.
Comment (5): Some comments indicated that we failed to fully
analyze and include the current and future effects of climate change in
the Colorado River basin that cause river flow declines, such as air
temperature increases, increased evapotranspiration,
[[Page 57600]]
and precipitation declines. Some commenters provided scientific
research on the severe and persistent drought in the Colorado River
since 2000, including how existing climatic warming has exacerbated
declines in precipitation.
Our Response: We recognize that adequate flow regimes are key to
the conservation of humpback chub and that climate change may impact
flow regimes in the Colorado River basin. We analyzed the current and
expected future condition of flow regimes to support humpback chub in
the SSA, including the ongoing and expected impact of climate change on
this resource. Because we recognize climate change impacts will likely
reduce water supply through a variety of mechanisms, such as less
precipitation, warmer air temperatures, drier soils, and increased
evapotranspiration, all future scenarios analyzed in the SSA, and used
in this rule, assume that the mean annual availability of water
(snowpack and runoff) will be lower in the future (Service 2018b, p.
134). However, atmospheric conditions and water supply are not the only
factor in realized flows in humpback chub habitats, because all
humpback chub habitats are downstream of large federally operated
reservoirs. Federal legislation and interstate compacts ensure that
water is released downstream through humpback chub habitats, and
reservoir operators have flexibility in operations. This flexibility is
exercised in the upper basin by providing intra-annual variation in
flows (spring peaks and base flows) tailored to the hydrological
conditions. This can be demonstrated because, despite a severe
reduction in water availability since 2000, water managers have
provided intra- and inter-annual variability of flow regimes that
support humpback chub.
We recognize that this flexibility of water storage projects may be
outpaced by declines in long-term water supply. Considering this
important relationship between long-term water supply and reservoir
operations, future resource conditions varied according to the likely
implementation and effectiveness of reservoir operations compared with
declining water supply (Service 2018b, p. 134). For example, Scenario 2
in the SSA considered a future where ``water operations cannot provide
adequate flows or temperatures in humpback chub habitats because
drought or other factors have decreased [long-term] water supply''
(Service 2018b, p. 135).
In this final rule, we have included new scientific research
concerning climate change and water supply in the Colorado River basin
that has been published since the completion of the SSA report (Service
2018b, entire) and the publication of the proposed rule (January 22,
2020; 85 FR 3586). We incorporated this new research into our final
rule in Summary of Biological Status and Threats, including references
provided by commenters. Despite the severe drought during the past 15
to 20 years, 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. Although regional
climatic patterns are expected to reduce water availability in the
future, the flexible operation of large dams may mitigate the impacts
of this decrease on humpback chub through flow management and
shepherding of water to downstream users. Although operations have been
able to provide humpback chub with adequate flows despite the recent
severe drought, future climatic conditions could outstrip management
flexibility or increase frequency of drier hydrologies, which benefit
nonnative species.
Current river flow conditions and temperatures are largely adequate
for humpback chub in both basins despite ongoing climatic warming.
Therefore, we find that climate change does not place humpback chub at
immediate risk of extinction (i.e., the species is not endangered as a
result of climate change). The uncertainty concerning the possible
severity in water supply declines does pose a threat to humpback chub
in the future, such that we conclude that humpback chub is likely to
become endangered within the foreseeable future. Therefore, our review
of the best available scientific and commercial information, including
recent information concerning climate change, indicates that the
humpback chub meets the definition of a threatened species rather than
an endangered species.
Comment (6): Some comments stated the humpback chub is at risk from
non-climate change related modifications to river flows, such as
modified temperature regimes below large dams, human water use,
declines in spring peak flows, and reduced flows in the Little Colorado
River from aquifer diversions. Some comments requested we include
additional descriptions of reservoir operation management actions that
benefit humpback chub, including water provided to support peak- and
base-flows.
Our Response: Modified flow regimes resulting from reservoir
operations and human water use could possibly impact humpback chub. We
considered these potential impacts when we completed the SSA report for
the humpback chub and in our analysis in the proposed rule. We included
additional research and management actions into this rule in Summary of
Biological Status and Threats, above, including references provided by
commenters.
We considered habitat alterations from dam operations and human
water use, including altered river thermal regimes, spring peak flows,
and human water withdrawals in the SSA report (Service 2018b, pp. 35,
59, 87, 126). Current river flow conditions and temperatures are
largely adequate for humpback chub. Therefore, we find that modified
flow regimes from reservoir operations and human water use do not place
humpback chub at immediate risk of extinction. Possible water supply
declines in the future could pose a threat to humpback chub resource
conditions, such that we conclude that humpback chub is likely to
become endangered within the foreseeable future. The findings of our
analysis is consistent with our determination that the humpback chub
meets the definition of a threatened species rather than an endangered
species.
Comment (7): Some commenters stated that we should consider impacts
from nonnative fish, especially nonnative trout in the Grand Canyon,
and smallmouth bass, northern pike, and walleye in the upper basin.
Some comments stated that the threat from nonnative fish should
preclude its reclassification as threatened. Conversely, water user
organizations and all three State wildlife agencies requested that we
include additional information concerning nonnative fish management
actions into the proposed rule and use that information to justify that
the species does warrant reclassification.
Our Response: Nonnative fish impact humpback chub, especially when
nonnative fish prey upon humpback chub when their habitats overlap. In
the SSA, we considered the presence and impacts of nonnative predators,
such as trout in the lower basin (Service 2018b, pp. 71, 91, 128),
smallmouth bass, northern pike, and walleye in the upper basin (Service
2018b, pp. 42, 87, 128), and conservation actions designed to mitigate
these threats (Service 2018b, pp. 87, 91, 97). We included additional
research and management actions into this rule in Summary of Biological
Status and Threats, above, including references provided by commenters.
Current conditions of nonnative fish are acceptable to humpback
chub because problematic, nonnative predators reproduce in only one
extant
[[Page 57601]]
population, Desolation and Gray Canyons. Other populations do have
nonnative predators nearby, but these predators have not colonized
humpback chub habitats. Nonnative fish conditions are expected to
remain acceptable in the upper basin because of the commitment to
multifaceted nonnative fish management and existence of adequate flow
regimes, but the risk for substantial and rapid degradation is present
if management actions are ceased. In the lower basin, current densities
of nonnative predators are low in areas inhabited by humpback chub,
such as the Little Colorado River and western Grand Canyon, and
management actions are in place to prevent establishment of new
species. The findings of our analysis of the threat of nonnative fish
to humpback chub is consistent with our determination that the humpback
chub meets the definition of a threatened species rather than an
endangered species.
Comment (8): Some comments stated that we did not adequately
consider possible impacts of water contamination on humpback chub,
including impacts from oil, gas, and uranium extraction and possible
contaminant spills.
Our Response: In the SSA report, we stated that humpback chub needs
suitable water quality with few contaminants and little risk of spills
(Service 2018b, p. 28). We analyzed the current and expected future
condition of water quality and found that it is not limiting any
populations of humpback chub or predicted to in the foreseeable future
(Service 2018b, pp. 50, 73); therefore, water quality was not
considered a threat to the viability of the species.
Comment (9): One comment stated that we did not adequately consider
possible impacts of the parasitic Asian tapeworm on humpback chub.
Our Response: In the SSA report, we recognized the presence of
aquatic parasites in humpback chub habitats, including Asian tapeworm,
but determined that no parasites or parasitic outbreak has impacted any
humpback population (Service 2018b, p. 23). We analyzed the current and
future expected condition of parasites and found that they are not
limiting any populations of humpback chub or predicted to in the
foreseeable future (Service 2018b, p. 128); therefore, this was not
considered a threat to the viability of the species.
Comment (10): Some comments stated that altered habitat was
limiting the viability of humpback chub.
Our Response: In the SSA report, we recognized that humpback chub
needs diverse rocky canyon habitat (Service 2018b, p. 28). We analyzed
the current and future expected condition of this resource for humpback
chub and found that humpback chub's rocky canyon habitat is largely
unchanged and located in lands administered by Federal, State, and
Tribal agencies that protect the current and future condition (Service
2018b, pp. 34, 58, 83, 86). Therefore, habitat alteration was not
considered a threat to the viability of the species.
Comment (11): Some comments stated that the populations of humpback
chub are fragmented, especially by Glen Canyon Dam, and that lack of
connectivity reduces the genetic fitness of the species.
Our Response: In the SSA report, we recognized that the humpback
chub requires connectivity (Service 2018b, p. 29). We analyzed the
current and future expected condition of connectivity for humpback chub
and found that at a species level, Glen Canyon Dam is a barrier to
movement between the upper and lower basins. Within the upper basin,
there is no impediment to movement among the four extant populations
because multiple fish passage projects have been built and operated
over the past two decades. Movement of individuals in the upper basin
are sufficient to ensure genetic exchange and diversity, but not
sufficient to repopulate other areas (Service 2018b, p. 52). In the
lower basin, connectivity between the Little Colorado River population
and other aggregations downstream is sufficient for genetic exchange,
but the demographic effect is unclear (Service 2018b, p. 75). There are
no barriers between the Little Colorado River and the newly expanded
population in the western Grand Canyon.
Because humpback chub in the upper and lower basin can freely swim
between habitats in each basin, population connectivity was not
considered a threat to the viability of the species. In the 2002
Recovery Goals we determined that recovery of the species can be
achieved via two unconnected recovery units, the lower basin and upper
basin, demarcated at Glen Canyon Dam. The findings of our analysis of
connectivity within the range of humpback chub is consistent with our
determination that the humpback chub meets the definition of a
threatened species rather than an endangered species.
Comment (12): Some comments stated that we did not appropriately
consider the impact of food supply in the Grand Canyon and requested
that we incorporate additional information from recent studies of
macroinvertebrate flows in the Grand Canyon.
Our Response: In the SSA report, we recognized that humpback chub
need an adequate and reliable food supply (Service 2018b, p. 28). We
analyzed the current and future expected condition of this resource for
humpback chub and found the aquatic food base in Grand Canyon is
affected by temperature, daily flow variation, and fish competition,
which may limit the size of the humpback chub population (Service
2018b, p. 68); therefore, we considered this impact to the viability of
the species in the proposed rule.
Discharge variation from hydropeaking operations in the Grand
Canyon limits the success of aquatic egg-laying insect species whose
eggs are desiccated during the incubation cycle. It is unclear if
ongoing macroinvertebrate production flow experiments have increased
long-term macroinvertebrate density (Kennedy and Meuhlbauer 2020, pp.
12-20) or if they will appreciably improve humpback chub condition. We
incorporated this research and management action into this rule in
Summary of Biological Status and Threats, including references provided
by commenters. The findings of our analysis of food supply within the
range of humpback chub is consistent with our determination that the
humpback chub meets the definition of a threatened species rather than
an endangered species.
Comment (13): Some comments requested that we update our
description of the future of the Upper Basin Recovery Program to
include the most recent planning of program partners. The comments
stated that the uncertainty regarding the future of the Upper Basin
Recovery Program, as described in Scenario 1, was not justified because
program partners have a strong commitment to future implementation of
the program.
Our Response: We have included new information from the planning
process to reauthorize the Upper Basin Recovery Program in our Summary
of Biological Status and Threats, above. We understand that the
partners are working diligently to find a framework for the Upper Basin
Recovery Program to continue after 2023. The past performance of the
Upper Basin Recovery Program's implementation of recovery actions over
the past three decades cannot be discounted. However, at this time,
there are no signed extensions or reauthorizations of the program on
which we can rely for this rule. Until the Upper Basin Recovery Program
partnership is defined, the humpback chub's future resource conditions
are not certain
[[Page 57602]]
because critical management actions, such as leasing water for river
flows, in-river nonnative fish removal, fish passage operations, and
monitoring may not be implemented.
We must rely on the best available information when making our
determination and at this time we must recognize that there is
uncertainty in the future structure and funding for the Upper Basin
Recovery Program. Therefore, we did not alter the analysis of Scenario
1 presented in the SSA report.
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 an endangered species or a
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.'' For a more detailed discussion on the factors considered when
determining whether a species meets the definition of an endangered
species or a threatened species and our analysis on how we determine
the foreseeable future in making these decisions, please see Regulatory
and Analytical Framework.
Status Throughout All of Its Range
As required by the Act, we considered the five factors in assessing
whether humpback chub is an endangered or threatened species throughout
all of its range. We carefully examined the best scientific and
commercial information available regarding the past, present, and
future threats faced by humpback chub. We reviewed the information
available in our files and other available published and unpublished
information and information that we received from public comments on
our January 22, 2020, proposed rule (85 FR 3586), and we consulted with
recognized experts and State agencies. We documented our analysis in an
SSA report (Service 2018b, entire).
We identified changes to water flow and temperature (Factor A),
food availability (Factor A), and predatory, nonnative fish (Factor C)
as potential stressors to 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. 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.
As described in the determinations below, we first evaluate whether
the humpback chub is in danger of extinction throughout its range now.
We then evaluate whether the species is likely to become in danger of
extinction throughout its range in the foreseeable future. We finally
consider whether the humpback chub is an endangered or threatened
species in a significant portion of its range.
In this finding, we evaluate the best available scientific
information about the species' current and projected future levels of
demographic and habitat factors (these are described in the SSA report
in terms of resiliency, redundancy, and representation) to describe the
viability of the species, and how it may change over time (using three
plausible future scenarios). Ultimately, we compare our evaluation of
the species risk of extinction against the definition of an endangered
species.
As summarized above, resource conditions for the humpback chub
across five extant populations, four in the upper basin and one large
population in the lower basin, are adequate. Habitats support multiple,
resilient populations in the upper basin, including the large Westwater
Canyon population, and the large, stable Grand Canyon population in the
lower basin, with range expansion into western Grand Canyon. The
species currently demonstrates sufficient levels of 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.
Thus, after assessing the best available information, we conclude
that the humpback chub no longer meets the Act's definition of an
endangered species. We therefore proceed with determining whether the
humpback chub is likely to become endangered within the foreseeable
future throughout all of its range.
The key statutory difference between a threatened species and an
endangered species is the timing of when a species may be in danger of
extinction, either now (endangered species) or in the foreseeable
future (threatened species).
In considering the foreseeable future, we projected a range of
plausible future scenarios for the humpback chub and evaluated the
condition of demographic factors and habitat factors under each future
scenario. We then summarized the future viability for the species in
terms of its resiliency, redundancy, and representation under each of
the three future scenarios. For the purposes of this finding, we
generally define viability as the ability of the species to sustain a
population in the wild over a biologically meaningful timeframe, in
this case, 16 to 40 years into the future, a biologically meaningful
timeframe that represents multiple generations of humpback chub. The
timeframe should be sufficient to be able to observe changes in the
condition of the species through multiple generations, multiple cycles
of changes to climate conditions, such as drought, and is a timeframe
in which we can reasonably rely on projections about the future.
To assist us in evaluating the status of the species in the
foreseeable future, we evaluated the future condition of the humpback
chub under three plausible future scenarios, 16 and 40 years into the
future. These scenarios were designed to capture the full range of
plausible futures and uncertainty associated with the implementation
and effectiveness of conservation actions important to the humpback
chub's survival. Although the likelihood of each scenario occurring in
the future may vary, the changes in conservation efforts projected by
the three scenarios are all plausible, so the scenarios capture the
full range of conditions that the humpback chub could experience 16 and
40 years into the future. We evaluated the viability of the humpback
chub under each of these scenarios in terms of its expected resiliency,
redundancy, and representation into the foreseeable future.
Looking into the foreseeable future, habitat and demographic
conditions for the humpback chub would severely degrade within both 16
and 40 years under Scenario 1, primarily in the upper basin. However,
if collaborative partnerships remain in place and their
[[Page 57603]]
conservation actions are effective as described under Scenario 3,
resource conditions improve at both the 16- and 40-year timeframes.
However, under Scenario 2, degradation of resources takes place, even
as conservation actions continue, resulting in the same conditions as
current condition within 16 years, but reduced conditions within 40
years. Although there is high uncertainty associated with the
projection of the resource conditions in 40 years under Scenario 2,
extrapolation of the conditions demonstrates a continuing decline in
resource conditions under Scenario 2. 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.
Under Scenario 3, the health (resiliency) and distribution (redundancy)
of all five extant populations reduces the risk from a potential
catastrophic event, but there is less resiliency and redundancy under
Scenarios 1 and 2, which represents more risk to the species.
Based on the uncertain trajectory of several of the upper basin
populations; the uncertainty associated with certain resource
conditions, including nonnative predatory 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 are 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.
Therefore, there is enough risk in the foreseeable future
associated with potential reductions in conservation actions that are
important to the species' survival, such that the humpback chub is
likely to become endangered throughout all of its range within the
foreseeable future. Specifically, there is enough risk associated with
the potential reduction of important management actions, which could
occur with reduced funding in the Upper Basin Recovery Program, such
that the humpback chub is at risk of extinction in the foreseeable
future.
Thus, after assessing the best available information, we determine
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. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided that the Services
do not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range. Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for the humpback chub, we
choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered.
For the humpback chub, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. We examined the following threats: River
flows and water temperature (which could be affected by climate change
in the long term) (Factor A), food supply (Factor A), and predatory
nonnative fish (Factor C), including cumulative effects. 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.
Current river flow conditions and temperatures are largely adequate
for humpback chub throughout its range, in both the upper and lower
basins, because reservoir operations have had the flexibility and
commitment to support humpback chub. Despite the severe drought
experienced during the past 15 to 20 years across the species' range,
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. Specifically, in the upper basin, changes in
the operation of large Federal dams and provision of water dedicated to
environmental flows have reduced the effects of drought on river flows.
Therefore, despite a severe reduction in water availability since 2000,
water managers have provided flow regimes in upper basin rivers that
support humpback chub, and upper basin populations have stabilized or
expanded in response. As a result, we did not identify a concentration
of threats associated with either river flows or water temperature.
In the lower basin, the Long-Term Experimental and Management Plan
prescribes release patterns from Glen Canyon Dam, helping to reduce and
minimize impacts to Grand Canyon habitats. This includes experimental
releases to support the aquatic food base in Grand Canyon. Currently,
the water flows, water temperatures, and food base in the Grand Canyon
have supported a large, stable population in the Colorado River and are
supporting a range expansion in the western Grand Canyon. As such, we
did not identify a concentration of threats in the lower basin.
Current river flow conditions have supported humpback chub
populations in both the upper and lower basins and have helped reduce
the presence of nonnative predatory fish species in humpback chub
habitats, despite populations of predators nearby. Additionally,
nonnative fish management actions have helped reduce nonnative
predatory species, such as in-river nonnative predator removal, active
flow management, and reservoir containment. As a result, nonnative
predators are not limiting three out-of-the four extant humpback chub
populations in the upper basin, and are a moderate issue for one
population in the upper basin. Smallmouth bass inhabit and reproduce in
Dinosaur National Monument, so nonnative predators could potentially be
an issue if Dinosaur National Monument supported a humpback chub
population
[[Page 57604]]
and was not extirpated, but we did not identify a concentration of
nonnative predators in this area. In the lower basin, nonnative fish
are likely limited by abiotic factors, so nonnative predators are not
an issue across the majority of humpback chub habitats in the lower
basin, including the Little Colorado River and western Grand Canyon
(Pillow et al. 2018, p. 7; Van Haverbeke et al. 2019, p. 8; Kegerries
et al. 2020, p. 146). Management actions are also in place to prevent
establishment of new nonnative species in the lower basin, including
the NPS ``Expanded Nonnative Species Management Plan,'' which provides
additional tools and new approaches for controlling nonnative aquatic
species (NPS 2018, pp. 1-3). Therefore, we did not identify any
concentration of threats associated with nonnative predators across the
range of the species.
We found no concentration of threats in any portion of the humpback
chub range at a biologically meaningful scale. Thus, there are no
portions of the species' range where the species has a different status
from its rangewide status. Therefore, no portion of the species' range
provides a basis for determining that the species is in danger of
extinction in a significant portion of its range, and we determine that
the species is likely to become in danger of extinction within the
foreseeable future throughout all of its range. This is consistent with
the courts' holdings in Desert Survivors v. Department of the Interior,
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and
Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959
(D. Ariz. 2017).
Determination of Status
Our review of the best available scientific and commercial
information indicates that humpback chub does not meet the definition
of an endangered species in accordance with sections 3(6) and 4(a)(1)
of the Act, but does meet the definition of a threatened species in
accordance with sections 3(20) and 4(a)(1) of the Act. Therefore, we
are downlisting humpback chub in the List of Endangered and Threatened
Wildlife from endangered to threatened.
Final Rule Issued Under Section 4(d) of the Act
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is classified, those activities that would or would
not constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of the species being
listed. Because we are reclassifying this species as a threatened
species, the prohibitions in section 9 would not apply directly. We are
therefore putting into place below a set of regulations to provide for
the conservation of the species in accordance with section 4(d), which
also authorizes us to apply any of the prohibitions in section 9 to a
threatened species. The 4(d) rule, which includes a description of the
kinds of activities that would or would not constitute a violation,
complies with this policy.
Background
Section 4(d) of the Act contains two sentences. The first sentence
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 statutory
language like ``necessary and advisable'' 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, the second
sentence of 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, the combination of the
two sentences of section 4(d) provides the Secretary with wide latitude
of discretion to select and promulgate appropriate regulations tailored
to the specific conservation needs of the threatened species. The
second sentence grants particularly broad discretion to us 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 upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of 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 upheld 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).
Exercising this authority under section 4(d), we have 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 us to make a ``necessary and advisable'' finding with
respect to the adoption of specific prohibitions under section 9, we
find that this rule as a whole satisfies the requirement in section
4(d) of the Act to issue regulations deemed necessary and advisable to
provide for the conservation of the humpback chub. As discussed above
under the Determination of Humpback Chub's Status section, we conclude
that the humpback chub is no longer at risk of extinction, but is still
likely to become so in the foreseeable future, primarily due to changes
to water flow and temperature, food availability, and predatory,
nonnative fish. The provisions of this 4(d) rule promote conservation
of the humpback chub by providing continued protection from take,
encouraging improvements to the species' habitat, and facilitating the
expansion of the species' range by increasing flexibility in management
activities. The provisions in this rule are some of many regulatory
tools that we will use to promote the conservation of the humpback
chub.
Provisions of the 4(d) Rule
This 4(d) rule provides for the conservation of the humpback chub
by prohibiting the following activities, with certain exceptions
(discussed below): 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. In addition, anyone taking, attempting to take, or
otherwise possessing a humpback chub, or parts thereof, in violation of
section 9 of the Act will be subject to a penalty under section 11 of
the Act, with certain
[[Page 57605]]
exceptions (discussed below). Under section 7 of the Act, Federal
agencies must continue to ensure that any actions they authorize, fund,
or carry out are not likely to jeopardize the continued existence of
the humpback chub.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Allowing
incidental and intentional take in certain cases, such as for the
purposes of scientific inquiry, monitoring, or to improve habitat or
water availability and quality, would help preserve a species'
remaining populations, slow their rate of decline, and decrease
synergistic, negative effects from other stressors.
We recognize 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 us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we 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 us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, will be able to conduct
activities designed to conserve the humpback chub that may result in
otherwise prohibited take without additional authorization.
As discussed above under Summary of Biological Status and Threats,
changes to water flow and temperature, food availability, and
predatory, nonnative fish affect the status of the humpback chub. A
range of conservation activities, therefore, have the potential to
benefit the humpback chub, including nonnative fish removal, habitat
restoration projects, monitoring of humpback chub, management of
recreational fisheries, research, educational and outreach programs,
and maintenance of humpback chub refuges and stocking programs.
Accordingly, this 4(d) rule addresses activities to facilitate
conservation and management of the humpback chub where they currently
occur and may occur in the future by excepting them from the Act's take
prohibition under certain specific conditions. These activities are
intended to increase management flexibility and encourage support for
the conservation and habitat improvement of the humpback chub. Under
this 4(d) rule, take will continue to be prohibited, except for actions
allowed in this 4(d) rule, provided the actions are approved by the
Service, in coordination with any existing designated recovery program,
for the purpose of the conservation or recovery of the humpback chub.
Approval must be in writing (by letter or email) from a Service
biologist or supervisor with authority over humpback chub decisions.
Take is allowed under this 4(d) rule as follows, and is further
described below:
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.
These forms of allowable take are explained in more detail below.
For all forms of allowable take, reasonable care must be practiced to
minimize the impacts from the actions. 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; procuring and
implementing technical assistance from a qualified biologist on
projects regarding all methods prior to the implementation of those
methods; ensuring the number of individuals removed or sampled
minimally impacts the existing wild population; ensuring no disease or
parasites are introduced into the existing humpback chub population;
and preserving the genetic diversity of 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 in Dexter, New Mexico; additionally, a small number of adults
from the Black Rocks and Desolation and Gray Canyons populations reside
at the Ouray National Fish Hatchery. In order to preserve the full
breadth 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 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
[[Page 57606]]
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 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 chub 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 chub to new locations have
demonstrated success in the Grand Canyon as described above in The
Lower Basin. 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 residency and demonstrated
acceptable growth rates, increasing the range of the species (although
the Shinumo Creek population was later extirpated via ash-laden floods
following a wildfire). The Havasu Creek and Chute Falls populations
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 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 should follow best hatchery and fishery
management practices, such as those described in the American Fisheries
Society's Fish Hatchery Management (Wedemeyer 2002, entire), and be
approved by the Service in writing.
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, and
walleye. 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 4(d) rule defines nonnative fish removal 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
[[Page 57607]]
fishing locations and public engagement with this species. Furthermore,
anglers 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 (i.e., targeted) angling pressure in the six core
populations (five extant and one extirpated) because of their
importance to the recovery of the species. Supporting recreational
fishing access to these areas for species other than humpback chub is
an important consideration for State and Tribal entities. We 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.
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 location where
humpback chub could be targeted for catch-and-release angling. 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 allow intentional
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
NPS 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 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 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 traveling 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
[[Page 57608]]
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 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 Service Regional Law Enforcement Office or
associated management office. Information on the offices to contact is
set forth under 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
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 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.
Nothing in this 4(d) rule changes in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or our ability 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 us and other Federal
agencies, where appropriate.
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with determining a species' listing status under
the Endangered Species 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 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We coordinated with Tribes in the
range of the humpback chub and requested their input on this rule. On
July 2, 2020, we conducted government-to-government consultation with
the Navajo Nation regarding this 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 staff members of the
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.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--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) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Fishes
[[Page 57609]]
* * * * * * *
Chub, humpback................. Gila cypha....... Wherever found... T................ 32 FR 4001, 3/11/1967;
86 FR [INSERT Federal
Register PAGE WHERE
THE DOCUMENT BEGINS];
10/18/2021; 50 CFR
17.44(dd); \4d\ 50
CFR 17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.44 by adding paragraph (dd) to read as follows:
Sec. 17.44 Special rules--fishes.
* * * * *
(dd) Humpback chub (Gila cypha). (1) Prohibitions. The following
prohibitions that apply to endangered wildlife also apply to humpback
chub. Except as provided under paragraphs (dd)(2) and (3) 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) for endangered
wildlife.
(ii) Take, unless excepted as outlined in paragraphs (dd)(2)(i)
through (v) of this section.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) General 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
November 17, 2021 under Sec. 17.22 for the duration of the permit.
(iii) Take, as set forth at Sec. 17.21(c)(2) through (c)(4) for
endangered wildlife.
(iv) Take, as set forth at Sec. 17.31(b).
(v) Possess and engage in other acts with unlawfully taken
specimens, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(3) Exceptions from prohibitions for specific types of incidental
take. You may take humpback chub while carrying out the following
legally conducted activities in accordance with this paragraph (dd)(3):
(i) Definitions. For the purposes of this paragraph (dd)(3):
(A) Qualified person means a full-time fish biologist or aquatic
resources manager employed by any of the Colorado River Basin State
wildlife agencies, Native American Tribes, the Department of the
Interior bureaus and 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.
(B) 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),
Black Rocks (Colorado River, Colorado), Westwater Canyon (Colorado
River, Utah), Cataract Canyon (Colorado River, Utah), and Grand Canyon
(Colorado and Little Colorado Rivers, Arizona).
(C) 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; and protecting existing extant wild populations
of humpback chub by ensuring minimal impacts from the removal or
sampling of individuals, preventing the introduction of disease or
parasites, and preserving genetic diversity.
(ii) 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.
(A) Methods of allowable take under this paragraph (dd)(3)(ii)
include, but are not limited to:
(1) Removing wild individuals via electrofishing, nets, and seines
from the six core populations;
(2) Managing captive populations, including handling, rearing, and
spawning of captive fish;
(3) Sacrificing individuals for hatchery management, such as
parasite and disease certification; and
(4) Eliminating wild refuge populations if conditions are deemed
inadequate for conservation of the species or are deemed detrimental to
the six core populations.
(B) 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.
(iii) 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.
(A) Methods of allowable take under this paragraph (dd)(3)(iii)
include, but are not limited to:
(1) Removing wild individuals via electrofishing, nets, and seines;
(2) Managing captive populations, including handling, rearing, and
spawning;
(3) Sacrificing individuals for hatchery management, such as
parasite and disease certification; and
(4) Removing or eliminating all humpback chub from failed
introduction areas via mechanical or chemical methods.
(B) The Service must approve, in advance and in writing:
(1) Any translocation program; and
(2) Any stocking of humpback chub into any of the six core
populations.
[[Page 57610]]
(iv) 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 (dd)(3)(iv), nonnative fish 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.
(A) Methods of allowable take under this paragraph (dd)(3)(iv)
include, but are not limited to:
(1) Mechanical removal of nonnative fish within occupied humpback
chub habitats, including, but not limited to, electrofishing, seining,
netting, and angling; and
(2) The use of other ecosystem modifications, such as altered flow
regimes or habitat modifications.
(B) The Service and all applicable landowners must approve, in
advance and in writing, any nonnative fish removal activities under
this paragraph (dd)(3)(iv).
(v) Catch-and-release angling of humpback chub. States and Tribes
may enact Federal, State, and Tribal fishing regulations that address
catch-and-release angling.
(A) In the six core populations, angling activities may include
nontargeted (incidental) catch and release of humpback chub when
targeting other species in accordance with Federal, State, and Tribal
fishing regulations.
(B) 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.
(C) Angling activities may cause take via:
(1) Handling of humpback chub caught via angling;
(2) Injury to humpback chub caught via angling; and
(3) Unintentional death to humpback chub caught via angling.
(D) Reasonable consideration by the Federal, State, and Tribal
agencies for incidental catch and release 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.
(E) Reasonable consideration for establishing new recreational
angling locations for humpback chub include, but are not limited to:
(1) Evaluating each water body's ability to support humpback chub
and sustain angling;
(2) 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
(3) Monitoring to ensure there are no detrimental effects to the
humpback chub population from angling.
(F) The Service and all applicable State, Federal, and Tribal
landowners must approve, in advance and in writing, any new
recreational fishery for humpback chub.
(vi) 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.
(A) For treatments upstream of occupied humpback chub habitat:
(1) Service approval is not required; and
(2) Care should be taken to limit the potential for fish toxicants
and piscicides traveling beyond treatment boundaries and impacting
humpback chub.
(B) For treatments in known or potentially occupied humpback chub
habitat:
(1) The Service must approve, in advance and in writing, any
treatment;
(2) 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; and
(C) Whenever possible, humpback chub that are salvaged should be
moved to a location that supports recovery of the species.
(vii) Reporting and disposal requirements. Any mortality of
humpback chub associated with the actions authorized under the
regulations in this paragraph (dd)(3) 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, and the phone numbers of Law
Enforcement offices are at 50 CFR 10.22. 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 an
area without sufficient communication access.
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-20964 Filed 10-15-21; 8:45 am]
BILLING CODE 4333-15-P