[Federal Register Volume 63, Number 60 (Monday, March 30, 1998)]
[Proposed Rules]
[Pages 15152-15158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8051]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018--AE85
Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for the Cowhead Lake Tui Chub
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to
determine the Cowhead Lake tui chub (Gila bicolor vaccaceps), to be an
endangered species under the authority of the Endangered Species Act of
1973, as amended (Act). The Cowhead Lake tui chub is a fish that is
found only in Cowhead Slough and connected ditches within the bed of
Cowhead Lake in extreme northeastern Modoc County, California. This
subspecies is threatened throughout its range by a variety of human
impacts, including the dewatering of Cowhead Lake, livestock grazing,
agricultural activities, and by random naturally occurring events. This
proposal, if made final, would implement Federal protection provided by
the Act. The Service seeks data and comments from the public on this
proposal.
DATES: Comments from all interested parties must be received by May 29,
1998. Public hearing requests must be received by May 14, 1998.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, Sacramento Fish and Wildlife Service
Office, U.S. Fish and Wildlife Service, 3310 El Camino Avenue, Suite
130, Sacramento, California 95821-6340. Comments and materials received
will be available for public inspection, by appointment, during normal
business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Mr. Wayne S. White, Field Supervisor,
at the above address (telephone 916/979-2710).
SUPPLEMENTARY INFORMATION:
Background
The Cowhead Lake tui chub was first recognized as a distinct
subspecies by Hubbs and Miller (1948) and was first described by Bills
and Bond (1980). The following morphological description is taken from
Bills and Bond (1980) and Moyle et al. (1989). The Cowhead Lake tui
chub is a small fish in the minnow family (Cyprinidae) approximately
85-115 millimeters (3-4.5 inches) from the nose to the middle of the
tail and is distinguished from the other subspecies of tui chub by the
number of gill rakers (bony projections in the gills). Coloration is
silver like other subspecies of tui chub, except for a dark lateral
stripe and dark speckles scattered on the cheek, operculum (area behind
the eye) and lower body. The pectoral fins usually exhibit a row of
melanophores (cells containing dark pigment) along the anterior rays
and a few specimens have exhibited a concentration of pigment on the
pelvic and anal fins. There have been no formal studies on the life
history or habitat of the Cowhead Lake tui chub. The following
information refers to tui chubs in general and is taken from Moyle
(1976).
Tui chubs occur in a wide variety of habitats, most commonly in the
weedy shallows of lakes and quiet waters in sluggish rivers. They do
well in a wide variety of water conditions from warm to cold, and clear
to eutrophic. In the fall they seek out deeper water and may spend
winters in a semi-dormant state on the bottom of lakes. Tui chubs are
opportunistic omnivores concentrating on invertebrates associated with
bottom or aquatic plants (i.e., clams, insect larvae, insects,
crayfish) as well as algae and plant material. Tui chub usually spawn
from late April to late June; eggs adhere to plants or the bottom and
hatch in 9 days. In large deep lakes, tui chubs tend to form large
schools in shallow water frequently associated with beds of aquatic
vegetation. In shallow lakes, with heavy aquatic growth, schooling is
less noticeable. Tui chubs tend to disperse amongst the vegetation
presumably as protection from predators. Tui chubs appear to be able to
adapt to the severe long and short-term climatic fluctuations
characteristic of the interior basins where they are most common. The
family Cyprinidae in general has been successful because they have a
well-developed sense of hearing, release a fear scent when injured (a
warning signal to others), have pharyngeal teeth (broader diet), and
exhibit high fecundity. Despite these advantages, many native minnows
are declining in numbers as their environment deteriorates beyond their
ability to cope with the changes or they are displaced by more
aggressive introduced species.
Cowhead Lake tui chub are found in the vicinity of Cowhead Lake, a
Pleistocene lake in the extreme northeastern corner of Modoc County,
California, in an area known as the Modoc Plateau. The Modoc Plateau
consists of molten basalt that formed approximately 70 million years
ago (Young et al. 1988). The area is characterized by lava rims, upland
plateaus, lava flows and tubes, ancient pluvial lake beds and large-
volume springs, and shallow soils (Young et al. 1988). Volcanic rock is
porous, therefore, most of the rainfall percolates through into the
groundwater. Surface water is minimal, but rainfall and snowmelt in the
mountains feed the groundwater, which surfaces as springs. The habitat
type is sagebrush steppe, which is generally a treeless, shrub-
dominated community characterized by sagebrush (Artemesia species) with
perennial bunch grasses in the understory and some juniper pine (Young
et al. 1988). The area is characterized by cold, harsh winters, dry
summers, and low rainfall.
The lakebed of Cowhead Lake is approximately 1,100 hectares (2,700
acres) based on assessors maps (Modoc County, California, Jan. 1982),
with an elevation of 1,597 meters (5,241 feet). Historically, Cowhead
Lake and Cowhead Slough are thought to have been marsh habitat, based
on the soil type. In its natural state the lake's water levels were
probably variable. This habitat type would have retained and stored its
water, slowly discharging it via Cowhead Slough to Twelvemile Creek and
on into the Warner Basin (Roger Farschon, Bureau of Land Management
(BLM), pers. comm., 1997a). Cowhead Slough and Cowhead Lake are fed
mainly by snowmelt runoff and springs via Eightmile Creek and other
smaller tributaries from the Warner Mountains. There may also be
several faults at the upper end of the slough that provide subsurface
flow (Sato in litt. 1992). Historically the lake was probably shallow
and naturally dried up on occasion (Peter Moyle, University of
California, Davis, pers. comm., 1997). Approximately 40 percent of the
lakebed occurs on private land and 60 percent of the lakebed has
unknown title based on a title search done in 1997 (Modoc County Title
Co. in litt. 1997). The lake went dry sometime in the 1930's. Since the
drought ended, and continuing up to the present day, the lake has been
mechanically pumped dry so that the lakebed could be used to grow hay.
There is a series of irrigation ditches, two reservoirs on nearby
creeks, and a mechanical pumping system, which
[[Page 15153]]
have modified the hydrology of the Cowhead basin.
Cowhead Lake tui chub were found in a spring and a reservoir
adjacent to Cowhead Lake (Miller 1939), in irrigation ditches within
Cowhead Lake (Sato in litt. 1993), and in Cowhead Slough (Moyle in
litt. 1974, Sato in litt. 1992 and 1993, Olson in litt. 1997, Jack
Williams, BLM, pers. comm., 1997). The entire current estimated range
of this species is approximately 5.4 kilometers (3.4 miles) of Cowhead
Slough and connected ditches within the bed of Cowhead Lake.
Approximately one half of the range is on public land managed by the
Bureau of Land Management (BLM). The other half of the range is on land
that has been managed by private ownership since the 1950's. However,
the Service has not been able to locate documentation of title in the
public records to support this assumption. This portion of the tui
chub's range will be referred to as private land in this proposed rule,
but the Service is not currently clear on the ownership of this portion
of the species range.
There are no population estimates available for the Cowhead Lake
tui chub. Surveys in the lake bed and adjacent springs and reservoirs
on private lands have been limited because access has been restricted.
Surveys on adjacent BLM land have focused on distribution and not
estimating population numbers.
Previous Federal Action
On December 30, 1982, the Service published a revised notice of
review for vertebrate wildlife in the Federal Register (47 FR 58454)
designating the Cowhead Lake tui chub as a category 2 candidate.
Category 2 was composed of taxa for which the Service had information
indicating that threatened or endangered status might be warranted, but
for which adequate data on biological vulnerability and threats were
not available to support issuance of listing proposals. As a result of
additional information obtained, the Service reclassified the Cowhead
Lake tui chub as a category 1 candidate in the November 21, 1991,
notice of review (56 FR 58804). The Cowhead Lake tui chub was included
as a candidate in the February 28, 1996 (61 FR 7596), and September 19,
1997 (62 FR 49398), notices of review.
The processing of this proposed rule conforms with the Service's
final listing priority guidance for fiscal year 1997, published in the
Federal Register on December 5, 1996 (61 FR 64475). In a Federal
Register notice published on October 23, 1997 (62 FR 55628), the
guidance was extended beyond fiscal year 1997. The fiscal year guidance
clarifies the order in which the Service will process rulemakings
following two related events: (1) The lifting on April 26, 1996, of the
moratorium on final listings imposed on April 10, 1995 (Pub. L. 104-6),
and (2) the restoration of significant funding for listing through
passage of the Omnibus Budget Reconciliation Act on April 26, 1996,
following severe funding constraints imposed by a number of continuing
resolutions between November 1995 and April 1996. Based on biological
considerations, this guidance establishes a ``multi-tiered approach
that assigns relative priorities, on a descending basis, to actions to
be carried out under section 4 of the Act'' (61 FR 64479). The guidance
calls for giving highest priority to handling emergency situations
(Tier 1) and second highest priority (Tier 2) to resolving the listing
status of the outstanding proposed listings. Tier 3 includes the
processing of new proposed listings for species facing high magnitude
threats. This proposed rule for the Cowhead Lake tui chub falls under
Tier 3. The guidance states that ``effective April 1, 1997, the Service
will concurrently undertake all of the activities presently included in
Tiers 1, 2, and 3'' (61 FR 64480). The Service has thus begun
implementing a more balanced listing program, including processing more
Tier 3 activities. The completion of this Tier 3 activity (a proposal
for a species with a listing priority of 3 (high-magnitude, imminent
threats)) follows those guidelines.
Summary of Factors Affecting the Species
Section 4 of the Act and regulations (50 CFR part 424) promulgated
to implement the listing provisions of the Act set forth the procedures
for adding species to the Federal lists. A species may be determined to
be endangered or threatened due to one or more of the five factors
described in section 4(a)(1). These factors and their application to
the Cowhead Lake tui chub are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. The historic range of the Cowhead
Lake tui chub is thought to be Cowhead Lake, when it retained water,
and the springs and low gradient portions of the creeks draining into
Cowhead Lake (P. Moyle, pers. comm., 1997; USDI 1997). The lake was
probably shallow and dried up naturally on occasion, periodically
confining Cowhead Lake tui chub to the streams and springs (P. Moyle,
pers. comm. 1997). The lakebed itself is 1,100 hectares (2,700 acres)
with a topographic gradient of 0 to 5 meters (0 to 16 feet) (based on
topographic measurements on a 1990 USGS 7.5 minute quadrangle map). The
surface flow of water is naturally highly variable in this volcanic,
high desert area. The amount of suitable aquatic habitat for this
species may vary from year to year based on the water supply. It is
unclear precisely what role the tributary springs and creeks currently
play in the life history of Cowhead Lake tui chub. It is also unknown
what the impact of flooding was when the lakebed was in its natural
state.
The diversion of water from Cowhead Lake has eliminated
approximately 98 percent of the Cowhead Lake tui chub's historical
range and is a threat to the Cowhead Lake tui chub. Before the turn of
the century a water diversion ditch (Peterson ditch) was built in the
Warner mountains west of Cowhead Lake, which diverts water from
Twelvemile Creek and possibly from Eightmile Creek into Surprise
Valley, southwest of Cowhead Lake (R. Farschon, pers. comm., 1997a).
Another ditch was built in the 1910's (Sato in litt. 1992) on the
Schadler property that appears to divert water from Peterson ditch into
Eightmile Creek. In the 1930's the lake went dry and ranchers started
growing hay in the lakebed. When the drought ended, the connection
between Cowhead Lake and Cowhead Slough was dredged so that the lake
would stay drained to permit continued hay production. Cowhead Slough
was dredged 1-1.5 meters (3-5 feet) deep from the lakebed north to the
edge of public BLM lands (R. Farschon, 1997a). In the 1960's a
privately owned reservoir was built on Eightmile Creek to allow
controlled irrigation to two pastures. This water is ultimately
collected in a ditch in the lakebed, which runs into Cowhead Slough.
Barrel Springs (2 miles to the southeast of Cowhead lake) and its
associated tributaries used to contribute water to Cowhead Lake until
its water flow was diverted for agricultural uses. Currently the
seasonal waters from the Barrel Springs area drain to the northeast of
the lake and into Cowhead Slough. The lake usually holds some water
during the wet season before pumping begins in the spring. In the mid-
1980's and in 1997 there was enough water to fill the lake. Beginning
around April each year, water in Cowhead Lake is actively pumped into
Cowhead Slough and as a result no water remains in the lakebed outside
of the ditches. The historical shallow-water marsh habitat is now
maintained as irrigated pasture.
[[Page 15154]]
The current distribution of Cowhead Lake tui chub, based on recent
surveys (1992 to 1997), is in various pools in Cowhead Slough and in
connected ditches within the bed of Cowhead Lake from approximately 1
kilometer (0.5 mile) north of the confluence of Elevenmile Creek to the
irrigation ditch in the lakebed of Cowhead Lake, approximately 5.4
kilometers (3.4 miles). Cowhead Lake tui chub have been observed
feeding and hiding in filamentous mats of algae in the slough (Sato in
litt 1993). Mats of Ranunculus also appear to provide cover for young
of the year in the slough (Sato in litt 1993). Cowhead Slough consists
of a series of pools (95 percent) and riffles (5 percent) which wind
through a lava canyon approximately 50 meters (164 feet) wide and
approximately 6.4 kilometers (4 miles) long. The size of the water
course itself is far narrower than the canyon and varies according to
the amount of runoff and snowmelt each year. The slough ranges from 1-2
meters (4-6 feet) wide (Ken Sanchez, USFWS, pers. comm., 1997) to a
trickle, with large pools up to 10 meters (33 feet) wide, 50 meters
(164 feet) long and 1 meter (3 feet) deep (Moyle in litt 1974). In the
mid-1980's pools were reported to be up to 2 meters (6.5 feet) deep due
to heavy precipitation in those years (Sato in litt. 1992). Moyle et
al. (1989) reported the bottom of the channel as 80 percent mud, 5
percent sand, and 15 percent boulder/bedrock with abundant rooted and
floating vegetation, but little overhanging canopy cover. According to
Sato (in litt. 1993) the upper end of the slough above the pump on
private land has more riparian habitat (willows) and more perennial
water than the rest of slough. There is also a difference in topography
between the private and public sections of the slough. The private land
has a steeper gradient, more cobbles and boulders, deeper pools, and
more open water than the reaches on public lands. These factors may
account for why there appear to be more Cowhead Lake tui chub in
Cowhead Slough on the private land. It has also been hypothesized that
as the slough dries up annually, the fish move upstream to the more
perennial water.
The banks of Cowhead Slough contain mostly short-cropped annual
grasses with minimal riparian vegetation (Sato in litt. 1992). The
water has been reported as muddy and turbid during surveys from
possible erosion of the slough banks caused primarily by cattle grazing
and from drainage of ephemeral streams into the slough (Moyle in litt.
1974, Sato in litt. 1992). Cowhead Slough and the ditches in the
lakebed are within either public or private grazing allotments, which
are actively grazed (R. Farschon, pers. comm., 1997b). The lack of
riparian habitat can reduce the amount of water retained in the slough
later in the year (Sato in litt. 1993). The degradation of water
quality can reduce oxygen levels, visibility and prey abundance for the
Cowhead Lake tui chub.
Prior to being drained the lake is thought to have contained the
majority of the Cowhead Lake tui chub population. Currently the
population appears to be restricted to Cowhead Slough and connected
ditches within the lake bed, which have been severely altered from
their natural condition. The entire population occurs in one connected
drainage within a very confined area 5.4 kilometers (3.4 miles), and
there are no additional refugial populations. Protection of the habitat
within this very limited range is required to conserve the Cowhead Lake
tui chub. Further loss of habitat from agricultural modifications is a
threat to the continued existence of the Cowhead Lake tui chub.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. The Cowhead Lake tui chub has not been documented
as a commercial or recreational fish species. It has been little
studied and there are only a handful of documented collections. This
factor is not considered a threat to the existence of the Cowhead Lake
tui chub.
C. Disease or predation. Aquatic snakes and birds are likely
predators of Cowhead Lake tui chub. This species is most vulnerable to
predation during drought periods when much of the drainage dries up and
Cowhead Lake tui chub are concentrated in smaller pools. The only other
species detected in Cowhead Lake tui chub habitat are speckled dace
(Rhinichthys osculus) and an occasional trout, which do not appear to
pose a threat to the Cowhead Lake tui chub. Introduction of nonnative
fish, game fish, or other tui chubs could harm the Cowhead Lake tui
chub through increased competition, predation, and hybridization. There
have been no documented instances of disease adversely affecting the
Cowhead Lake tui chub. If a disease were introduced, the tui chub
population would be at great risk because of its small size and
confined range.
D. The inadequacy of existing regulatory mechanisms. Currently
there are no regulatory mechanisms that specifically protect the
Cowhead Lake tui chub or its habitat. The current documented range of
the Cowhead Lake tui chub is approximately 50 percent on private land
and 50 percent on public land. It appears that the majority of the
population occurs on private land where there is more perennial water.
The Cowhead Lake tui chub is considered a species of special concern by
CDFG as Class 1: Endangered. This designation indicates that the
species meets the State definition to qualify for official listing, but
is not officially listed yet. The Federal status of the Cowhead Lake
tui chub is as a candidate species (see section on Previous Federal
Action). There is currently no regulatory authority vested in either
the State or Federal designations that offers protection or appropriate
management for this species. This lack of adequate regulatory
protection is a threat to the existence of the Cowhead Lake tui chub.
The National Environmental Policy Act (NEPA) and section 404 of the
Clean Water Act (CWA) represent the primary Federal laws that could
potentially afford some protection to listed species, however, neither
of these laws protect candidate species. The conversion of land to
agricultural uses that may adversely affect the Cowhead Lake tui chub
is generally unregulated at any level of government. For example, the
U.S. Army Corps of Engineers (Corps) has promulgated regulations that
exempt some farming, forestry, and maintenance activities from the
regulatory requirements of section 404 (33 CFR 323.4).
The California Environmental Quality Act (CEQA) offers some
opportunities to protect rare and endangered plants or animals, as well
as species that are eligible for listing but are not currently listed.
If a proposed project may significantly impact a species, it is
possible to require mitigation. However, this protection is at the
discretion of the lead agency involved and social and economic
considerations can override requirements for mitigation or protection.
Proposed revisions to CEQA guidelines, if made final, may weaken the
current protections for threatened, endangered and other sensitive
species. Section 1603 of California Fish and Game Code authorizes the
California Department of Fish and Game (CDFG) to regulate streambed
alterations. Such alterations include any work that substantially
diverts, alters or obstructs the natural flow or substantially changes
the bed, channel or bank of any river, stream or lake. At this time,
the Service is not aware of any 1603 permit for the activities
occurring in Cowhead Lake and Cowhead Slough.
E. Other natural or manmade factors affecting its continued
existence. Pest control programs (i.e., USDA-APHIS grasshopper control
program) that
[[Page 15155]]
introduce pesticides into the drainage are a threat to the Cowhead Lake
tui chub. The water supply in this high desert habitat is low and
variable and naturally limits the amount of suitable habitat for the
Cowhead Lake tui chub. This natural condition offers fewer options for
refuge for Cowhead Lake tui chub in the event of drought, harsh winter
conditions or human-induced environmental impacts.
The entire population of Cowhead Lake tui chub occurs in less than
2 percent of its historical range and, therefore, is vulnerable to the
risks associated with small, restricted populations. Impacts to species
populations that can lead to extinction include: the loss or alteration
of essential elements (habitat, food), the introduction of limiting
factors into the environment (poison, predators), and catastrophic
random changes or environmental perturbations (extreme weather,
disease) (Gilpin and Soule 1986). Many extinctions are the result of a
severe reduction of population size by some deterministic event,
followed by a random natural event that extirpates the species. The
smaller a population is, the greater its vulnerability to stochastic
perturbations (Terbough and Winter 1980, Gilpin and Soule 1986, Shaffer
1987). The elements of risk that are amplified in very small
populations include: (1) The impact of high death rates or low births
rates; (2) the effects of genetic drift and inbreeding; and (3)
deterioration in environmental quality. When the number of individuals
in the sole population of a species or subspecies is sufficiently low,
the effects of inbreeding may result in the expression of deleterious
genes in the population (Gilpin 1987). Deleterious genes reduce
individual fitness in various ways, most typically as decreased
survivorship of young. Genetic drift in small populations decreases
genetic variation due to random changes in gene frequency from one
generation to the next.
This reduction of variability within a population limits the
ability of that population to adapt to environmental changes.
One scenario where loss of habitat may cause extinction is when the
species is a local endemic (because of their isolation and restricted
range) (Gilpin and Soule 1986). The Cowhead Lake tui chub is a local
endemic, which can be locally abundant, yet lives in a very restricted
area. Because the sole population is small and occurs in one single
drainage, it is extremely vulnerable to natural or human-made
environmental impacts. There are no known populations of Cowhead Lake
tui chub outside of Cowhead Slough for recolonization if a catastrophic
event were to occur in Cowhead Slough. While the species still occurs
within its limited range, we do not know whether the population is
declining, how habitat conditions may be affecting the population, and
how the small population size may be affecting genetic and behavioral
stability. Based on the vulnerability of this small population in its
limited range, and the lack of any refugial populations or habitat, the
Service believes that threats to current occupied or potential habitat
and individuals put this species at risk of being extirpated.
The Service has carefully assessed the best scientific and
commercial information available regarding the present and future
threats faced by this species in determining this proposed rule. This
species is threatened throughout its range by a variety of human
impacts, including the dewatering of Cowhead Lake, livestock grazing,
agricultural activities, and by random naturally occurring events.
Based on this evaluation, the preferred action is to list Cowhead Lake
tui chub as endangered based on the risk of extinction throughout all
of its range. Critical habitat is not being proposed for this species
for reasons discussed in the ``Critical Habitat'' section of this
proposal.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
determination that such areas are essential for the conservation of the
species. ``Conservation'' means the use of all methods and procedures
needed to bring the species to the point at which listing under the Act
is no longer necessary.
Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that, to the maximum extent prudent and determinable,
the Secretary designate critical habitat at the time a species is
determined to be endangered or threatened. Service regulations (50 CFR
424.12(a)(1)) state that designation of critical habitat is not prudent
when one or both of the following situations exist: (1) The species is
threatened by taking or other human activity, and identification of
critical habitat can be expected to increase the degree of threat to
the species, or (2) such designation of critical habitat would not be
beneficial to the species. The Service determines that designation of
critical habitat for the Cowhead Lake tui chub is not prudent due to
lack of benefit to the species.
Critical habitat receives consideration under section 7 of the Act
with regard to actions carried out, authorized, or funded by a Federal
agency (see Available Conservation Measures section). As such,
designation of critical habitat may affect activities on Federal lands
and may affect activities on non-Federal lands where such a Federal
nexus exists. Under section 7 of the Act, Federal agencies are required
to ensure that their actions do not jeopardize the continued existence
of a species or result in destruction or adverse modification of
critical habitat. However, both jeopardizing the continued existence of
a species and adverse modification of critical habitat have similar
standards and thus similar thresholds for violation of section 7 of the
Act. In fact, biological opinions that conclude that a Federal agency
action is likely to adversely modify critical habitat but not
jeopardize the species for which the critical habitat has been
designated are extremely rare. Also, the designation of critical
habitat for the purpose of informing Federal agencies of the locations
of occupied Cowhead Lake tui chub habitat is not necessary because the
Service can inform Federal agencies through other means. For these
reasons, the designation of critical habitat for the Cowhead Lake tui
chub would provide no additional benefit to the species beyond that
conferred by listing, and therefore, such designation is not prudent.
Cowhead Lake tui chub has an extremely narrow distribution in one
small reach (5.4 kilometers (3.4 miles)) of Cowhead Slough. At the
present time, no other site is known to be occupied by or suitable for
this fish. However, the Service believes that a high level of awareness
already exists for this species due to numerous efforts since 1994,
between private and public entities, to develop and implement a
conservation agreement to conserve and protect this species ( J. Danna
in litt. 1994a and 1994b, J. Schadler in litt. 1994 and 1995, S. Stokke
in litt. 1997). In addition, the Cowhead Lake tui chub has been
included in the draft Recovery Plan for Warner Basin fishes and may
benefit to some degree from recovery actions specified for the listed
species in the plan (USDI 1997). The private
[[Page 15156]]
landowners at Cowhead Lake are aware of the Cowhead Lake tui chub's
presence and extremely limited habitat, as are the BLM managers and
others involved in management of the area. Therefore, designation of
critical habitat would provide no benefit with respect to notification.
In addition, given the species' narrow distribution and precarious
status, virtually any conceivable adverse effect to the species'
habitat would very likely jeopardize its continued existence.
Designation of critical habitat for Cowhead Lake tui chub would,
therefore, provide no benefit to the species apart from the protection
afforded by listing the fish as endangered.
Protection of the habitat of Cowhead Lake tui chub will be
addressed through the section 4 recovery process and the section 7
consultation process. The Service believes that activities involving a
Federal action which may affect Cowhead Lake tui chub can be identified
without designating critical habitat by providing Federal agencies with
information on the locations of occupied habitats and information on
the kinds of activities which could affect the species. For the reasons
discussed above, the Service finds that the designation of critical
habitat for the Cowhead Lake tui chub is not prudent.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in conservation actions
by Federal, State, and local agencies, private organizations, and
individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against certain activities are discussed,
in part, below.
The Cowhead Lake tui chub has been included in a draft Recovery
Plan for the threatened and rare native fishes of the Warner Basin and
Alkali (USDI 1997). The Cowhead Lake tui chub was included because it
is a rare native endemic that occurs within the Warner Basin that could
potentially benefit from recovery actions in the Warner Basin for the
other listed native fishes.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a proposed species or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or to
destroy or adversely modify its critical habitat, if any is designated.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency must enter into formal
consultation with the Service. Approximately one-half of the only known
population of Cowhead Lake tui chub is on BLM-managed land including
grazing allotments within the range of this species. Grazing can
decrease water quality by removing vegetation on streambanks and
uplands, thereby increasing erosion and sedimentation, and by polluting
the water with waste products.
The Act and implementing regulations found at 50 CFR 17.21 set
forth a series of general prohibitions and exceptions that apply to all
endangered wildlife. With respect to the Cowhead Lake tui chub, these
prohibitions, in part, make it illegal for any person subject to the
jurisdiction of the United States to take (including harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt
any such conduct), import or export, transport in interstate or foreign
commerce in the course of commercial activity, or sell or offer for
sale in interstate or foreign commerce any listed species. It also is
illegal to possess, sell, deliver, carry, transport, or ship any such
wildlife that has been taken illegally. Certain exceptions apply to
agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and for incidental take in
connection with otherwise lawful activities. Information collections
associated with these permits are approved under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of
Management and Budget clearance number 1018-0094. For additional
information concerning these permits and associated requirements, see
50 CFR 17.22. Requests for copies of the regulations regarding listed
species and inquiries about prohibitions and permits may be addressed
to: Regional Director, U.S. Fish and Wildlife Service, 911 NE 11th
Avenue, Portland, Oregon 97232-4181 (503/231-6241; FAX 503/231-6243).
It is the policy of the Service, published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the maximum extent
practicable at the time a species is listed those activities that would
or would not constitute a violation of section 9 of the Act if a
species is listed. The intent of this policy is to increase public
awareness of the effect of a proposed listing on proposed and ongoing
activities within a species' range. The Service believes that, based on
the best available information, the following actions will not result
in a violation of section 9, provided these actions are carried out in
accordance with any existing regulations and permit requirements:
(1) Possession of legally acquired Cowhead Lake tui chub;
(2) Actions that may affect Cowhead Lake tui chub which are
authorized, funded or carried out by a Federal agency, when the action
is conducted in accordance with an incidental take statement issued by
the Service pursuant to section 7 of the Act.
(3) Actions that may affect Cowhead Lake tui chub that are not
authorized, funded or carried out by a Federal agency, when the action
is conducted in accordance with an incidental take statement issued by
the Service pursuant to section 10(a)(1)(B) of the Act. Section
10(a)(1)(B) refers to Habitat Conservation Plans (HCP's) that are
negotiated after a species has been listed under Section 4 of the Act
and are designed to mitigate and minimize impacts to the species to the
greatest extent practicable.
Activities that the Service believes could potentially harm the
Cowhead Lake tui chub and result in ``take'' include, but are not
limited to:
(1) Take of Cowhead Lake tui chub without a permit, which includes
harassing, harming, pursuing, hunting, shooting, wounding, killing,
trapping, capturing, or collecting, or attempting any of these actions;
(2) Possess, sell, deliver, carry, transport, or ship illegally
taken Cowhead Lake tui chub;
(3) Introduction of nonnative fish species that compete or
hybridize with, or prey on Cowhead Lake tui chub;
[[Page 15157]]
(4) Destruction or alteration of Cowhead Lake tui chub habitat by
dredging, channelization, diversion, instream vehicle operation or rock
removal, or other activities that result in the destruction or
significant degradation of cover, channel stability, substrate
composition, temperature, and corridors used by the species for
foraging, cover, and spawning;
(5) Discharges or dumping of toxic chemicals, silt, or other
pollutants into waters supporting Cowhead Lake tui chub that result in
death or injury of the species; and
(6) Destruction or alteration of riparian or streamside habitat and
adjoining uplands of waters supporting Cowhead Lake tui chub by
grazing, mining, hydropower development, agriculture or other
developmental activities that result in destruction or significant
degradation of cover, channel stability, substrate composition,
temperature, and corridors used by the species for foraging, cover, and
spawning.
The term ``significant degradation of habitat'', as used in the
descriptions of activities above, is that amount of degradation which
causes ``take'' of Cowhead Lake tui chub. Not all of the activities
mentioned above will result in violation of section 9 of the Act; only
those activities which result in ``take'' of Cowhead Lake tui chub are
considered violations of section 9. Questions regarding whether
specific activities may constitute a violation of section 9 should be
directed to the Field Supervisor of the Services Sacramento Fish and
Wildlife Office (see ADDRESSES section). Requests for information on
permits should be addressed to the Assistant Regional Director,
Ecological Services, U.S. Fish and Wildlife Service, 911 NE. 11th
Avenue, Portland, Oregon 97232-4181 (503/231-6241; FAX 503/231-6243).
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
parties concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to the Cowhead Lake tui chub;
(2) The location of any additional populations of the Cowhead Lake
tui chub and the reasons why any habitat should or should not be
determined to be critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range, distribution, and
population size of the Cowhead Lake tui chub;
(4) Any examples of take or vandalism of Cowhead Lake tui chub; and
(5) Current or planned activities in the subject area and their
possible impacts on the Cowhead Lake tui chub.
A final determination of whether to list this species will take
into consideration the comments and any additional information received
by the Service. Such communications may lead to a final decision
document that differs from this proposal.
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days of the date of
publication of this proposal in the Federal Register. Such requests
must be made in writing and be addressed to the Field Supervisor,
Sacramento Field Office (see ADDRESSES section).
National Environmental Policy Act
The Fish and Wildlife Service has determined that Environmental
Assessments or Environmental Impact Statements , as defined under the
authority of the National Environmental Policy Act of 1969, need not be
prepared in connection with regulations adopted pursuant to section
4(a) of the Endangered Species Act of 1973, as amended. A notice
outlining the Service's reasons for this determination was published in
the Federal Register on October 25, 1983 (48 FR 49244).
Required Determinations
This rule does not contain collections of information that require
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.
References Cited
A complete list of all references cited herein is available upon
request from the Field Supervisor, Sacramento Field Office (see
ADDRESSES section).
Author: The primary author of this proposed rule is Ann Chrisney,
Sacramento Field Office (see ADDRESSES section), telephone 916/979-
2725.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend Sec. 17.11(h) by adding the following, in alphabetical
order under Fish, to the List of Endangered and Threatened Wildlife to
read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes ....................
* * * * * * *
Chub, Cowhead Lake tui........... Gila bicolor U.S.A. (CA)........ Entire............. E ........... NA NA
vaccaceps.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 15158]]
Dated: March 17, 1998
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-8051 Filed 3-27-98; 8:45 am]
BILLING CODE 4310-55-P
