Proposed Rule2021-14335
Endangered and Threatened Wildlife and Plants; Reclassification of the Razorback Sucker From Endangered to Threatened With a Section 4(d) Rule
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 7, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to reclassify the razorback sucker (Xyrauchen texanus) from an endangered species to a threatened species under the Endangered Species Act of 1973, as amended (Act). The proposed downlisting is based on our evaluation of the best available scientific and commercial information, which indicates that the species' status has improved due to conservation actions and partnerships, and the threats to the razorback sucker identified at the time of listing in 1991 have been eliminated or reduced to the point that the species is no longer currently in danger of extinction throughout all or a significant portion of its range, but it is still likely to become so within the foreseeable future without current active and intensive management. We also propose a rule under section 4(d) of the Act that provides for the conservation of the razorback sucker.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 127 (Wednesday, July 7, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 127 (Wednesday, July 7, 2021)]
[Proposed Rules]
[Pages 35708-35728]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-14335]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2020-0057; FF09E22000 FXES11130900000 201]
RIN 1018-BE07
Endangered and Threatened Wildlife and Plants; Reclassification
of the Razorback Sucker From Endangered to Threatened With a Section
4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
reclassify the razorback sucker (Xyrauchen texanus) from an endangered
species to a threatened species under the Endangered Species Act of
1973, as amended (Act). The proposed downlisting is based on our
evaluation of the best available scientific and commercial information,
which indicates that the species' status has improved due to
conservation actions and partnerships, and the threats to the razorback
sucker identified at the time of listing in 1991 have been eliminated
or reduced to the point that the species is no longer currently in
danger of extinction throughout all or a significant portion of its
range, but it is still likely to become so within the foreseeable
future without current active and intensive management. We also propose
a rule under section 4(d) of the Act that provides for the conservation
of the razorback sucker.
DATES: We will accept comments received or postmarked on or before
September 7, 2021. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by August 23, 2021.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In the Search box, enter FWS-R6-ES-2020-0057,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R6-ES-2020-0057; U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="http://www.regulations.gov">http://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
Document availability: Supporting documentation used to prepare
this proposed rule, including the 5-year review and the species status
assessment (SSA) report, are available on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R6-ES-2020-0057.
[[Page 35709]]
FOR FURTHER INFORMATION CONTACT: Tom Chart, Director, U.S. Fish and
Wildlife Service, Upper Colorado River Endangered Fish Recovery
Program, P.O. Box 25486, DFC, Lakewood, CO 80225; telephone: 303-236-
9885. Persons who use a telecommunications device for the deaf (TDD)
may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species may warrant
reclassification from endangered species status to threatened species
status if it no longer meets the definition of an endangered species
(in danger of extinction). Downlisting a species as a threatened
species can only be made by issuing a rulemaking.
What this document does. This document proposes to reclassify the
razorback sucker from an endangered species to a threatened species
(i.e., to ``downlist'' the species) on the Federal List of Endangered
and Threatened Wildlife, with a rule issued under section 4(d) of the
Act, based on the species' current status, which has been improved and
maintained through implementation of conservation actions such as
stocking, flow and habitat management, and invasive species control.
This proposed rule and the associated SSA report reassess all available
information regarding the status of and threats to the razorback
sucker.
The basis for our action. Under the Act, we determine whether a
species is an ``endangered species'' or ``threatened species'' based on
any of five factors: (A) The present or threatened destruction,
modification or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific or educational
purposes; (C) disease or predation; (D) the inadequacy of existing
regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We may reclassify a species if the
best available commercial and scientific data indicate the species no
longer meets the applicable definition in the Act. For the reasons
discussed below, we have determined that the razorback sucker no longer
meets the Act's definition of an endangered species, but does meet the
Act's definition of a threatened species. The actions of multiple
conservation partners over the past 30 years have improved the
condition of razorback sucker and reduced threats to the species.
However, there is enough risk associated with the species' reliance on
management actions and the potential loss of these important management
actions such that the species meets the definition of a threatened
species.
The status of the razorback sucker has been improved and maintained
by a variety of conservation actions such as stocking, flow and habitat
management, and invasive species control that benefit the razorback
sucker. Conservation programs implemented by many partners improved
conditions such that the razorback sucker now has multiple, large,
reproducing populations distributed across much of its originally
occupied range, with four populations in the upper basin and three
populations in the lower basin. In total, conditions have improved, and
the species now has sufficient resiliency, redundancy, and
representation such that it is not currently at risk of extinction
throughout all of its range (i.e., it does not meet the Act's
definition of an endangered species). However, recruitment of razorback
sucker to the adult life stage remains rare in all but one population,
and the species currently depends on management actions in order for
populations to be resilient. In the future, management of the species
and the conditions of the resources required by the species are likely
to change such that the species is likely to become an endangered
species in the foreseeable future (i.e., the species meets the Act's
definition of a threatened species).
We are proposing to promulgate a section 4(d) rule. We propose to
prohibit all intentional take of the razorback sucker and specifically
tailor the incidental take exceptions under section 9(a)(1) of the Act
as a means to provide protective mechanisms to State, Federal, Tribal,
and private partners so that they may continue with certain activities
that are not anticipated to cause direct injury or mortality to the
razorback sucker and that will facilitate the conservation and recovery
of the species.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species
should remain listed as endangered instead of being reclassified as
threatened, or we may conclude that the species no longer warrants
listing as either an endangered species or a threatened species. We may
also make revisions to the 4(d) rule based on public comment. Because
we are still accepting, considering, and analyzing additional
information, a final decision that falls within any of those categories
could be a logical outgrowth of this proposal.
Information Requested
Public Comments
Any final action resulting from this proposed rule will be based on
the best scientific and commercial data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from other concerned governmental agencies, Native American
Tribes, the scientific community, industry, or other interested parties
concerning this proposed rule.
We particularly seek comments concerning:
(1) Reasons we should or should not reclassify the razorback sucker
as a threatened species.
(2) New information on the historical and current status, range,
distribution, and population size of the razorback sucker.
(3) New information on the known and potential threats to the
razorback sucker, including predatory, nonnative fish.
(4) New information regarding the life history, ecology, and
habitat use of the razorback sucker.
(5) Current or planned activities within the geographic range of
the razorback sucker that may have adverse or beneficial impacts on the
species.
(6) Information on regulations that are necessary and advisable to
provide for the conservation of the razorback sucker and that the
Service can consider in developing a 4(d) rule for the species. In
particular, information concerning the extent to which we should
include any of the section 9 prohibitions in the 4(d) rule or whether
any other forms of take should be excepted from the prohibitions in the
4(d) rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
[[Page 35710]]
If you submit information via <a href="http://www.regulations.gov">http://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the razorback sucker. 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 July 1, 1994, peer review policy (59 FR
34270; July 1, 1994), our August 22, 2016, Director's Memo on the Peer
Review Process, and the Office of Management and Budget's December 16,
2004, Final Information Quality Bulletin for Peer Review (revised June
2012), we solicited independent scientific reviews of the information
contained in the razorback sucker SSA report. We sent the SSA report to
six independent peer reviewers and received three responses. Results of
this structured peer review process can be found at <a href="https://www.fws.gov/mountain-prairie/science/peerReview.php">https://www.fws.gov/mountain-prairie/science/peerReview.php</a>. The SSA report was
also submitted to our Federal, State, and Tribal partners for
scientific review. We received review from 13 partners including
States, Federal agencies, private partners and scientific experts. In
preparing this proposed rule, we incorporated the results of these
reviews, as appropriate, into the final SSA report, which is the
foundation for this proposed rule.
Previous Federal Actions
By the middle of the 20th century, the Colorado River ecosystem
where the razorback sucker lives had been greatly altered by large dams
and smaller agricultural diversions, water depletions for municipal and
agricultural uses, and the proliferation of many nonnative fish
species. The razorback sucker was first proposed for listing as a
threatened species on April 24, 1978 (43 FR 17375); the proposal was
subsequently withdrawn on May 27, 1980 (45 FR 35410), after a final
rule was not issued within 2 years of the proposed rule to comply with
provisions of the Act as amended in 1978 (16 U.S.C. 1531 et seq.).
Citing a lack of recruitment to reproductive age, dwindling numbers of
adults, and occupation of only 25 percent of its historical range, the
razorback sucker was proposed to be listed as an endangered species on
May 22, 1990 (55 FR 21154). The final rule listing the razorback sucker
as an endangered species was published on October 23, 1991 (56 FR
54957). Critical habitat was subsequently designated as 2,776
kilometers (km) (1,725 miles (mi)) of the Colorado River basin on March
21, 1994 (59 FR 13374), which included portions of the Yampa, White,
Green, Duchesne, Colorado, Gunnison, San Juan, Verde, Salt and Gila
Rivers, and several Colorado River mainstem reservoirs including Lake
Mead and Lake Mohave.
We issued the first recovery plan for razorback sucker on December
23, 1998, which identified predation by nonnative fish species and loss
of habitat as the primary reasons for the decline of the razorback
sucker (Service 1998, entire). The plan was amended and supplemented
with recovery goals on August 1, 2002 (Service 2002, entire). The 2002
recovery goals describe two recovery units, the upper and lower basins,
which are physically demarcated by Glen Canyon Dam and have unique
demographic trends, threats, and management actions.
We completed status reviews (``5-year reviews'') under section
4(c)(2)(A) of the Act for razorback sucker on August 30, 2012, and
September 25, 2018 (Service 2012; Service 2018b, entire). Our most
recent 5-year review completed on September 25, 2018, recommended the
razorback sucker be downlisted (i.e., reclassified from an endangered
to a threatened species), which prompted this proposed rule.
Proposed Reclassification Determination
Background
A thorough review of the razorback sucker is presented in the SSA
report (Service 2018a, entire), found at <a href="http://www.regulations.gov">http://www.regulations.gov</a>
under Docket No. FWS-R6-ES-2020-0057, which is briefly summarized here.
Species Description
The razorback sucker is a freshwater fish species endemic to warm-
water portions of the Colorado River basin in the southwestern United
States, uniquely identified by a bony, dorsal keel (ridge) located
behind its head. The species tolerates wide-ranging temperatures, high
turbidity and salinity, low dissolved oxygen, and wide-ranging flow
conditions. Razorback sucker sexually mature at 3 to 4 years of age,
grow up to 1 meter (m) (3 feet (ft)) long, can live for more than 40
years, and spawn multiple times over a lifespan.
Habitat and Range
Razorback sucker are found throughout the Colorado River basin, but
are most common in low-velocity habitats such as backwaters,
floodplains, flatwater river reaches, and reservoirs. The species'
historical range includes most of the Colorado River basin, from
Wyoming to the delta in Mexico, including the States of Colorado, Utah,
New Mexico, Arizona, Nevada, and California, and Mexican States of Baja
and Sonora. Dam construction across the basin dramatically altered
flow-regimes and habitat, disconnecting floodplain habitats, and
converting long reaches of river to reservoirs. These reservoirs
initially supported some of the largest populations of razorback sucker
(greater than 70,000 individuals) until nonnative sportfish were
introduced and became abundant, at which time recruitment, or the
survival of young to become adults, became rare and populations
declined.
Recovery Criteria
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Recovery plans must, to the
[[Page 35711]]
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 razorback sucker in
1998, which outlined a suite of recovery actions, including maintaining
genetic diversity, reversing the declining population trends in Lake
Mohave and the Green River subbasin, protecting and restoring habitat,
and augmenting or reestablishing five additional populations of
razorback sucker in designated critical habitat (Service 1998, p. vi).
In 2002, the razorback sucker recovery goals supplemented and amended
the 1998 recovery plan, providing demographic criteria and management
actions needed for recovery (Service 2002, entire). When the 2002
recovery goals were published, wild populations were considered to be
in serious jeopardy with only small numbers of wild razorback sucker
remaining in the Green River, upper Colorado River and San Juan River
subbasins, lower Colorado River between Lake Havasu and Davis Dam,
reservoirs of Lakes Mead and Mohave, and in small tributaries of the
Gila River subbasin (Verde River, Salt River, and Fossil Creek).
Furthermore, when the goals were approved, a minimum viable population
(MVP) was estimated to be at least 5,800 adults. The recovery goals
include the following reclassification criteria (summarized below for
brevity):
Downlisting can occur if, over a 5-year period, all of the
following criteria are met with genetically and demographically viable,
self-sustaining populations:
Criterion 1: The trend in adult point estimates for two populations
in the upper basin (Green River subbasin and either the upper Colorado
River or San Juan River subbasin) do not decline significantly.
Recruitment of naturally produced fish equals or exceeds mean annual
adult mortality for each of the populations. Point estimates for each
population must equal or exceed 5,800 adults.
Criterion 2: A genetic refuge is maintained in Lake Mohave.
Criterion 3: The trend in adult point estimates for two populations
in the lower basin do not decline significantly. Recruitment of
naturally produced fish equals or exceeds mean annual adult mortality
for each of the populations. Point estimates for each population must
equal or exceed 5,800 adults.
Criterion 4: Site-specific management actions are identified,
developed, and implemented.
For downlisting criterion 4, the recovery goals described the
following management actions needed to support the species (summarized
for brevity):
(1) Reestablish populations with hatchery-produced fish.
(2) Identify and maintain genetic variability of razorback sucker
in Lake Mohave.
(3) Provide, and legally protect, habitat and flow regimes.
(4) Provide passage over barriers in occupied habitat.
(5) Investigate water temperatures in the Gunnison River.
(6) Minimize entrainment in diversion/out-take structures.
(7) Ensure adequate protection from overutilization.
(8) Ensure adequate protection from diseases and parasites.
(9) Regulate nonnative fish releases and escapement.
(10) Control problematic nonnative fishes as needed.
(11) Minimize the risk of hazardous-materials spills in critical
habitat.
(12) Remediate water quality problems.
(13) Minimize the threat of hybridization with white sucker.
(14) Provide for the long-term management and protection of
populations and their habitats if the species were delisted.
The recovery goals further describe that delisting can occur if, 3
years after the downlisting criteria are met, the downlisting criteria
continue to be met.
The current condition of the razorback sucker partially meets the
2002 recovery criteria. Criterion 1 has been partially met, as the
number of adults, whether stocked or wild-produced, present in the
basin exceeds the 5,800 benchmark in both the Green and Colorado
Rivers. However, the second target that recruitment of naturally
produced fish equals or exceeds mean annual adult mortality for each of
the populations has not been achieved due to the lack of natural
recruitment (survival of wild spawned individuals to the adult life
stage) as a result of predation. Not only is Criterion 1 only partially
met without natural recruitment, but without ongoing stocking to offset
the lack of natural recruitment, the population size would quickly fall
below the demographic target for adults and would not be self-
sustaining, which would not satisfy the recovery vision of a self-
sustaining species. All stages of the life-cycle are routinely observed
until the juvenile life stage, signs of which are increasing across the
upper basin, but nonnative predators eat the juveniles before they can
grow into adults. The juvenile life stage is the only life stage absent
on a wide scale. Criterion 2 has been met, as a genetic refuge is
maintained in Lake Mohave. Criteria 3 has been partially met, as the
lower basin is home to the only naturally recruiting population in Lake
Mead, but population levels are low (less than 500 adults). Adult
populations of thousands of razorback sucker persist in both Lake
Mohave and Lake Havasu (and their associated river reaches), but
neither population is naturally recruiting or meets the 5,800-adult
threshold. Without continued stocking, these populations would quickly
fall below this threshold due to the lack of natural recruitment
resulting from the ongoing threat of predation from nonnative predatory
fish. Criterion
[[Page 35712]]
4 has been partially met, with many of the threats to the species
managed or abated. Nonnative fish remain a persistent threat in both
basins.
Since 2002, the best available science regarding razorback sucker
has increased, including knowledge about the species and its associated
threats. Regarding the first and third criteria, we now expect that a
5-year period may not be adequate to consider the demographic
variability of razorback sucker populations resulting from substantial
environmental variability in the Colorado River ecosystem. Razorback
sucker adapted to a highly variable ecosystem with fluctuating levels
of drought and flood, and thus populations would likely see both
population increases and decreases over that time. The species has a
long lifespan to survive periods of poor resource conditions and has
high reproductive potential to compensate during periods of suitable
resource conditions.
Based on the updated scientific knowledge of razorback sucker, the
2002 recovery goals should be reviewed and updated. Regarding
downlisting criterion 3, the minimum viable population (MVP) was
established without considering the extent or boundary of each
population. For example, Lake Powell was once considered of little
ecological value, yet groups of razorback sucker have established
residency in both the Colorado and San Juan River inflow areas.
Finally, regarding downlisting criterion 4, a number of the management
actions have been achieved, such as items (2), (4), (5), and (6); a
number of the actions are ongoing and still needed, such as items (1),
(3), (9), (10), (13), and (14); and a number of the actions are no
longer considered needed for the species, such as items (7), (8), (11),
and (12). In addition, the actions outlined in the Lower Colorado River
Multi-Species Conservation Program's (LCR;MSCP) workplan do not include
control of nonnative species, restoring natural flow variability below
dams, or a future absent sustained augmentation (with the exception of
the Lake Mead population). As such, the 2018 5-year review of the
status of the species recommended revising the 2002 recovery goals to
incorporate new information about the species. We expect to revise the
recovery plan for razorback sucker when this rulemaking process is
complete.
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 reclassifying a species from endangered to threatened (50
CFR 424.11(c)-(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 species' expected response 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 our decision
on whether the species should be reclassified as a 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
[[Page 35713]]
is a summary of the key results and conclusions from the SSA report;
the full SSA report can be found at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under
Docket No. FWS-R6-ES-2020-0057.
To assess razorback sucker 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 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 sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this section, we review the biological condition of the species
and its resources, and the threats that influence the species' current
and future condition, in order to assess the species' overall viability
and the risks to that viability.
Species Needs
Individual razorback sucker need: Complex lotic (rapidly moving
freshwater) and lentic (still freshwater) habitats for spawning,
rearing, feeding, and sheltering; suitable water temperatures and
quality for spawning, egg incubation, larval development, and growth;
variable flow regimes in lotic systems to provide access to off-channel
wetland habitats; and an adequate and reliable food supply (Service
2018a, pp. 21-24). We briefly summarize each of these needs below.
Habitat--Individual razorback sucker need specific habitat types to
breed, feed, and shelter, including rocky substrates, warm shallow
waters, and deeper waters (Service 2018a, p. 21). Rocky substrates of
boulder, cobble, and clean gravel are used for spawning and subsequent
egg development. Larvae and juveniles need nursery habitats, which
include persistent, shallow, warm, and sheltered shorelines of
backwaters, floodplains, or similar habitat types with cover present
(vegetation and turbidity) to avoid predation. Adults also need pockets
of deeper water, either in reservoirs, large eddies, or pools with slow
velocities.
Water quality and temperature--Razorback sucker tolerate a wide
range of water quality conditions, including warm temperatures, low
dissolved oxygen, and high levels of turbidity and salinity. The
species opportunistically selects appropriate water temperatures for
spawning as temperature can affect hatching, growth, and survival of
larvae (Service 2018a, p. 69).
Variable flow--Lotic populations in much of the upper basin depend
on variable flows in the form of high spring peaks to carry larvae into
floodplain wetlands that provide sufficient food and protection from
nonnative predators (Service 2018a, p. 22).
Food supply--Razorback sucker are omnivorous (feed on plants and
animals), with a diet that is highly dependent on habitat and food
availability.
Range and connectivity--Razorback sucker can move long distances
through unimpeded river systems, allowing for dispersal into new
habitat and selection of appropriate conditions for spawning.
Each population needs resiliency to rebound from disturbance, which
is provided by the abundance of individuals and the completion of all
life stages, or recruitment. Stocked individuals are long-lived,
migrate, and spawn, which routinely produces viable eggs and subsequent
larvae. However, natural recruitment, the survival of wild-spawned
individuals to the adult life stage, is rare due to predation on
juveniles by nonnative fish and reduced nursery habitat availability.
Therefore, population resiliency currently depends on management
actions, primarily the stocking and reintroduction of hatchery reared
individuals. The species also needs multiple populations to provide
adequate redundancy against potential catastrophic events and genetic
and ecological diversity to maintain the adaptive traits of the species
(Service 2018a, pp. 21-24). Before dam construction in the 1960s, there
were nine populations of razorback sucker, and the species is currently
found in seven populations throughout the Colorado River basin.
Risk Factors
To determine the condition of razorback sucker populations, we
evaluated a number of stressors that influence the resiliency of
razorback sucker populations, such as river flows, nonnative fish,
genetic factors, alterations to habitat, overutilization, parasites,
disease, pollutants, and the effects of global climate change (Service
2018a, pp. 27-42). The stressors that most influence the resiliency of
razorback sucker populations are reductions in flow regimes, which
reduce available habitat and connectivity, and predation by nonnative
fish species. The effects of global climate change were not anticipated
to affect the species in the near term, but could affect habitat
connectivity, flow conditions, and densities of predatory nonnative
fish over longer timeframes (Service 2018a, pp. 27-29).
Altered flow regimes reducing access to nursery habitat--Complex
backwater and floodplain wetland habitat support the growth of larval
and juvenile razorback sucker. Dam installations in the 20th century
altered river flow regimes by reducing spring peak flows, which limited
access to the floodplain habitat needed by larvae and juveniles.
Altered flow regimes also reduced the complexity of in-river habitat by
encouraging establishment of nonnative vegetation on previously dynamic
sandbars, which prevents the development of backwater pools and reduced
in-river vegetative cover used by larvae and juvenile razorback sucker.
Nonnative fish species--Razorback sucker lack competitive and
predator defense abilities compared to fish that evolved in more
species-rich regions (Martinez et al. 2014, p. 1). Predation of young
razorback sucker by large, nonnative piscivores (carnivores that eat
fish) is a major cause of recruitment failure throughout the basin.
Species of particular concern in the upper basin include smallmouth
bass (Micropterus dolomieu), northern pike (Esox lucius), and walleye
(Sander vitreus) in the Green and Colorado River basins and channel
catfish (Ictalurus punctatus) in
[[Page 35714]]
the San Juan River basin. Smallmouth bass, in particular, are adept at
establishing large riverine populations. Species of particular concern
in the lower basin include striped bass (Morone saxatilis) and flathead
catfish (Pylodictis olivaris), both of which can consume all life
stages of razorback sucker, including adults. Nonnative fishes may also
compete with razorback sucker for food and habitat. Additionally,
impacts of nonnative fishes can be so considerable that they prohibit
use of habitat by razorback sucker.
Climate change--The potential effects of climate change were
assessed using the U.S. Bureau of Reclamation's SECURE Water Act
Section 9503(c) Report (Reclamation, 2016, entire). The Colorado River
basin is expected to have higher temperatures, with seasonal drying,
but increases in fall and winter precipitation in some areas
(Reclamation 2016, pp. 3-9). In the long term, razorback sucker are
likely to benefit from warming conditions with higher growth rates, but
may be impacted by lower flow conditions that cannot be mitigated by
water management. Warming conditions may also increase nonnative warm-
water fishes that prey on razorback sucker. These impacts are more
likely to occur in the longer timeframe (i.e, greater than 30 years).
Climate change is not expected to be a significant stressor in the near
term, but the effects could increase in the long term (Service 2018a,
pp. 99-103).
Conservation Actions
Ongoing management actions to benefit razorback sucker are
primarily undertaken by three expansive, multi-stakeholder management
programs: The Upper Colorado River Endangered Fish Recovery Program
(Upper Basin Program), established in January 1988 and funded through
2023; the San Juan River Basin Recovery Implementation Program (San
Juan Program) established in 1992 and funded through 2023; and the
LCR--MSCP, established in 2005 and funded through 2055, as well as a
variety of smaller working groups. These conservation programs' goals
are to work toward improving population resiliency by augmenting adult
populations, providing beneficial flows, creating habitat and reducing
nonnative predators and competitors. Our SSA report provides additional
information on these conservation programs (Service 2018a, pp. 42-51).
In the upper basin, augmentation occurs from three established
broodstocks at three independent hatchery facilities: Southwestern
Native Aquatic Resources and Recovery Center (SNARRC), Ouray National
Fish Hatchery at Randlett (Randlett), and Ouray National Fish Hatchery-
Grand Valley (Grand Valley). Each hatchery maintains its own broodstock
according to genetic and management plans (Czapla 1999, entire; Ryden
2005, entire; Integrated Stocking Plan Revision Committee 2015, entire;
Wilson 2012, entire) developed by the programs they serve. The Grand
Valley and Randlett hatcheries annually spawn, produce, and distribute
6,000 razorback sucker averaging 350 mm or greater into the Colorado
and Green River basins respectively. SNARRC produces sufficient larvae
for 11,400 razorback sucker that are grown at sister facilities before
distribution into the San Juan River Basin. In the lower basin, the
established population in Lake Mohave is the broodstock for most
stocking efforts as it has been documented as the most genetically
diverse population. Commonly referred to as repatriation, wild larvae
are collected; reared at Willow Beach National Fish Hatchery, Achii
Hanyo Native Fish Rearing Facility, Overton Wildlife Management Area,
and the Lake Mead Fish Hatchery; and released into Colorado River
reaches managed by LCR-MSCP (LCR-MSCP 2015, pp. 9-12). In addition, a
backup broodstock has been developed at SNARRC that provides larvae for
rearing at Bubbling Ponds Native Fish Hatchery to avoid the movement of
quagga mussels found in Lake Mohave (LCR-MSCP 2015, p. 12) beyond the
Colorado River basin. Overall, the LCR-MSCP has committed to stocking
or repatriating 660,000 razorback sucker into the Colorado River over
50 years and until 2055. Augmentation, including stocking and
repatriation, is the primary tool used to enhance the resiliency of
razorback sucker in the lower basin. In the upper basin, stocking is
coupled with other management actions that all contribute to population
resiliency on the landscape.
Flow recommendations have been developed for most major rivers in
the upper basin (Holden 1999, entire; Muth et al. 2000, entire; McAda
2003, entire) to support conservation of native fish species, including
razorback sucker. Flow recommendations commonly set both peak and base
flow recommendations based on the hydrology of the system in a given
year based on their effects on native fish species and downstream
geomorphology. Most important for razorback sucker in the Green River
are spring peaks timed to move wild-produced larvae into warm, food-
rich floodplain wetlands that are then managed to exclude nonnative
fish.
Successful floodplain management for razorback sucker nursery
habitat requires: (a) Flow management that provides floodplain
connection when larval razorback sucker are present in the system; (b)
floodplains that are retrofitted with water control structures that
restrict entry of large-bodied fish and allow managers to fill and
drain the habitat at the beginning and end of the growing season,
respectively; and (c) a supplemental water source to freshen floodplain
water quality through the summer. The Upper Basin Program has developed
multiple wetlands that can connect under various flow regimes in the
Green River downstream of Flaming Gorge Dam. One wetland, Stewart Lake,
has provided the largest naturally produced cohort of wild razorback
sucker surviving through their first summer of life to date in the
upper basin (Schelley et al. 2016, p. 7).
The Upper Basin and San Juan Programs are working to reduce the
numbers of nonnative fishes, focusing primarily on smallmouth bass,
northern pike, and walleye in the Green and upper Colorado River
subbasins and channel catfish in the San Juan. A comprehensive
nonnative fish control strategy was developed by the Upper Basin
Program encompassing active removal from riverine habitats, escapement
prevention from upstream reservoirs, revised stocking guidelines,
harvest regulation changes, and outreach messaging (Martinez et al.
2014, entire). In-river removal efforts are scientifically evaluated
and adjusted as appropriate to increase effectiveness.
In addition, both the Upper Basin and San Juan Programs have
installed fish passage facilities to support range expansion of the
species and have screened irrigation canals to prevent entrainment.
Research, monitoring, and habitat management occur throughout the
Colorado River basin.
Current Condition
The SSA assesses eight populations of razorback sucker: Four
populations in the upper basin (Green, upper Colorado, and San Juan
River subbasins, and Lake Powell) and four in the lower basin (Lake
Mead [including upstream mainstem river], Lake Mohave [including
upstream mainstem river], the Colorado River between Davis and Parker
Dams [Lake Havasu], and the Colorado River mainstem below Parker Dam).
Razorback sucker were historically present in the Gila River system,
but the system was not evaluated in the SSA because wild razorback
sucker were extirpated from
[[Page 35715]]
the system and subsequent stocking efforts have ceased without
establishing a population. Table 1 summarizes the current condition for
each population in terms of four resiliency categories (High, Medium,
Low, and Extirpated) which is an average of our evaluation of condition
for the population factors of population size, evidence of
reproduction, and recruitment that influence the resiliency of each
population. Definitions of population factors for each category (High,
Medium, Low, and Extirpated) were developed to calibrate our
understanding of these factors in terms of resiliency (Service 2018a,
p. 54). In general, populations in higher resiliency categories are
better able to withstand stochastic events than populations in lower
resiliency categories. To calculate an overall score for resiliency for
each population, we assigned a 3 for population factors with High
condition, 2 for Medium condition, 1 for Low condition, and 0 for
Extirpated condition, and then calculated an average (High resiliency
2.26-3; Medium resiliency 1.51-2.25; Low resiliency 0.76-1.5; and
Extirpated 0-0.75) (Service 2018a, p. 95). Currently, Lake Mead has
High resiliency, the Green River subbasin has Medium resiliency, the
Colorado and San Juan river subbasins, Lake Powell, Lake Mohave, and
Lake Havasu have Low resiliency, and the Colorado River below Parker
dam is currently extirpated (Table 1). Our SSA report provides
additional detail regarding our evaluation of current condition
(Service 2018a, pp. 52-97).
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP07JY21.075
[[Page 35716]]
BILLING CODE 4333-15-C
Below, we summarize the current condition for each known population
of razorback sucker, taking into account the stressors and conservation
actions for each population.
The Upper Basin--The four upper basin populations currently have
adequate food and unimpeded connectivity, except for a waterfall that
blocks upstream movement of razorback sucker from Lake Powell into the
San Juan River. In other areas, fish passage structures have been
constructed to ensure that there are no other impediments to movement
between populations. Populations in the upper basin generally have
medium-quality habitat, water temperature, water quality, and variable
flow, with the exception of the Green River subbasin, where water
temperature and quality and variable flow are in high condition
(Service 2018a, p. 85). Since the early 2000s, management of river
flows has restored much of the important intra- and inter-annual
variability of river flow needed to support razorback sucker. Flows in
the Green River are actively managed to benefit razorback sucker by
using biologically triggered releases from Flaming Gorge Dam to
increase connectivity with off-channel floodplains. Four floodplains
are managed in conjunction with these flows on the Green River with
plans to create a fifth in the year 2020. Another floodplain wetland is
being developed on the Colorado River near Moab, Utah, to provide
nursery habitat. Reservoirs in the Aspinall Unit along the Colorado
River changed release patterns to provide downstream flows that support
razorback sucker. In addition, the Upper Basin Program acquired water
stored in reservoirs in the Yampa and Colorado Rivers to enhance flow
conditions when needed, such as during low flow periods in summer. In
the San Juan River, flow recommendations for Navajo Reservoir support
creation and sustained presence of habitat. Therefore, conservation
actions have helped restore flow regimes to increase connectivity to
floodplain habitats, such that the stressor of altered flow regimes has
been reduced in the upper basin populations.
Predation by nonnative fish species remains a significant stressor
to razorback sucker in the upper basin, resulting in populations with
low overall conditions throughout most of the upper basin. Over 50
nonnative fish species have been introduced into the upper basin, some
of which prey on or compete with razorback sucker. Most upper basin
populations have substantial levels of predatory nonnative fish
species, including channel catfish, smallmouth bass, northern pike, and
walleye, which likely prevent recruitment of young razorback sucker to
the adult life stage on a large scale. In addition, small-bodied
nonnative fish are ubiquitous across the upper basin and likely prey on
younger life-stages of razorback sucker. The Upper Basin Program
implements nonnative fish management actions, such as removing
predatory fish from approximately 966 km (600 mi) of river and
screening reservoir outlets to prevent predators from escaping into
downstream habitats used by razorback sucker. State partners in the
Upper Basin Program no longer stock certain nonnative predators and
instead implement harvest regulations that promote the removal of
predatory fish throughout the upper basin. The San Juan River subbasin
is free from nonnative predators with the exception of channel catfish,
which are removed by the San Juan Program.
Upper basin populations of razorback sucker are monitored using
mark-recapture population estimation, some with estimates dating back
to the late 1980s. Population monitoring in the late 1980s and early
1990s estimated populations of hundreds of individuals in the middle
Green River. By 2000, the estimates had declined to approximately 100
wild adults, prompting the development of a stocking program in the
upper basin. The most recent population estimates from 2011 to 2013
indicate the Green River subbasin population to be in the tens of
thousands of adult razorback sucker that were stocked as a result of
management actions (Zelasko et al. 2018, pp. 11-13). Although
successful reproduction and larval presence is documented annually in
the Green River population, there is no natural recruitment due to
predation by nonnative predatory fish, so this population is not self-
sustaining. Young-of-year life stage (surviving through the first
summer of life) has been documented annually since 2013 in managed off-
channel wetlands. Captures of wild juveniles have increased in the
Green River basin, including the detection of a wild-reared razorback
sucker after 3 years in the wild in the spring of 2019 (Upper Colorado
River Endangered Fish Recovery Program 2019, p. 4). This detection is
the first documentation of a wild-spawned razorback sucker surviving
for three years, suggesting that survival of young razorback sucker is
increasing in the basin. Additionally, the Upper Basin Program stocks
6,000 adult razorback sucker into the Green River subbasin annually to
support the population. However, natural recruitment (survival of wild-
spawned individuals to adult life stage) remains rare.
The number of wild razorback sucker in the upper Colorado River
subbasin decreased by the 1970s, and the population was functionally
extirpated by 2000. The most recent population estimates (2013 to 2015)
indicate that the population numbers in the thousands (Elverud 2020,
pp. 26,92). The upper Colorado River subbasin population is not self-
sustaining, but reproduction and larval presence have been documented.
Survival to the juvenile stage is rare, but has been confirmed at low
levels. As in the Green River, recruitment to the adult life stage is
rare, if present, likely due to persistent predation from nonnative
fishes and the lack of nursery habitat. The Upper Basin Program stocks
6,000 adults annually into the upper Colorado River subbasin to support
the population. There is one managed floodplain wetland on the Colorado
River.
Sampling efforts from 1987 and 1993 failed to collect any razorback
sucker in the San Juan River, prompting stocking efforts in the basin.
Populations in the San Juan River subbasin have recently been monitored
using catch-per-unit effort (CPUE), which saw a significant increase in
the population after 2010 (Schleicher 2016, pp. 17-18). Recent
population estimates indicate the adult population is relatively stable
between 4,000 and 5,000 (Diver and Wilson 2018, p. 5). Successful
reproduction and larval presence is documented annually, but
recruitment to the juvenile and adult life stages is also rare in the
San Juan River subbasin. However, in 2018, more than 200 young-of-year
razorback sucker were captured in the river (Upper Basin Program and
San Juan Program 2019, p. 10), potentially because of habitat created
during higher flow conditions in 2016 and 2017 and a lack of large-
bodied predators. In 2019, 45 age-1 razorback sucker were found,
documenting survival of some young-of-year through their first winter
(Service 2019, p. 1). These two discoveries document the first signs of
recruitment in the San Juan River basin. Regardless, the population is
not self-sustaining, and 11,400 adult razorback sucker are stocked
annually to support the population.
The fourth upper basin population is found in the Colorado and San
Juan River inflow areas to Lake Powell. Although this population may
functionally be an extension of the other three upper basin
populations, its habitat conditions and the methods
[[Page 35717]]
used to monitor it are markedly different from the other three
populations, which supports its consideration as a fourth population in
the upper basin. Little is known about this population, as monitoring
has only recently been expanded into its reaches. However, mark-
recapture population estimates indicate there are persistent
populations in both the San Juan and Colorado River arms, with
approximately 2,000 (Pennock 2019, p. 14) and 2,184 (Service 2018a, p.
82) individuals, respectively, primarily comprising stocked adults.
Reproduction is occurring annually, and larval razorback sucker have
been captured in both inflow areas. Recruitment has yet to be
confirmed, but untagged adults have been captured in Lake Powell. Lake
Powell also supports populations of nonnative predatory fish species,
including smallmouth bass, largemouth bass (Micropterus salmoides),
striped bass, walleye, channel catfish, black crappie (Pomoxis
nigromaculatus), and bluegill (Lepomis macrochirus), but inflow areas
commonly have inflow- or wind-driven turbidity and inundated
terrestrial vegetation, which may offer protection for razorback sucker
from predation by nonnative fish species (Albrecht et al. 2017, pp.
510-511). The Upper Basin and San Juan Programs are continuing to
explore the Lake Powell population, which is not actively managed like
the other three river populations in the upper basin.
Summary of Current Condition in the Upper Basin--Four populations
of razorback sucker occur in the upper basin. The Upper Basin and San
Juan Programs' conservation and management actions have maintained and
improved resource conditions for three of the four populations in the
upper basin over the last 20 years. The SSA assessed the Green River as
having medium condition relative to other populations and the three
remaining upper basin populations to be in low condition. Populations
of stocked adults use fish passage facilities to increase and expand
through all available habitat. Successful reproduction, as evidenced by
the collection of wild-produced larvae, is common in all populations.
Signs of survival to later life stages are increasing, but have not
reached levels of self-sustainability. Razorback sucker populations in
the upper basin rely on management actions to maintain resiliency.
The Lower Basin--Dams on the mainstem of large rivers that provide
water storage and hydropower dramatically altered the aquatic habitat
in the lower Colorado River, such that these dams now define the
boundaries of the razorback sucker populations in the lower basin.
Three of the four lower basin populations generally have high-quality
habitat, water quality, and temperature, and adequate food for
razorback sucker. The reservoirs provide suitable habitat for razorback
sucker, and the largest populations ever documented occurred in these
reservoirs after filling. There are few natural barriers to movement
within these populations, but connectivity among populations across the
dams depends on management actions. Flows are heavily managed in the
lower basin, with the dams reducing spring peak flows and providing
stable downstream flows year-round, so there are few natural flows. Due
to dam management of flows, variable flows are not available in the
lower basin, which are essential to connect off-channel floodplains in
the upper basin. Despite the presence of nonnative predatory fish, the
reservoirs behind the dams provide suitable nursery habitat for
juvenile razorback sucker that supports recruitment in Lake Mead.
As in the upper basin, predation of razorback sucker by nonnative
fish is a significant stressor in the lower basin that influences the
resiliency of the populations. Over 20 nonnative fish species occupy
razorback sucker habitat, and all the lower basin mainstem reservoirs
have populations of bluegill, striped bass, smallmouth bass, and
largemouth bass that are managed as sport fisheries. Both striped bass
and flathead catfish easily consume all life stages of razorback
sucker, including large adults, so are especially detrimental to
population recruitment. Flathead catfish have established populations
in Lake Havasu, downstream of Parker Dam and in the Gila River
subbasin. These predatory nonnative fish species have largely
eliminated recruitment to the adult life stage in all lower basin
populations except Lake Mead. The Lake Mead population is the only
population that demonstrates sufficient recruitment, to a level that it
is self-sustaining that does not require stocking. Managers hypothesize
that portions of Lake Mead have physical conditions (vegetative cover
and high turbidity) that provide some cover from site-feeding predatory
nonnative fishes, and that this cover has led to a low level of
recruitment that is sustaining this population at its current
population level.
The LCR-MSCP oversees management actions to support razorback
sucker in the Colorado River mainstem in the lower basin. Management
focuses primarily on capturing and raising wild-produced larvae to an
adult size in protected environments for stocking, creating, and
managing predator-free off-channel habitats, and monitoring
populations. Nonnative fish are not actively controlled in the lower
basin, except in the Grand Canyon, where they are managed by the Glen
Canyon Dam Adaptive Management Program. Many of the nonnative species
are valuable sport fish managed by State wildlife agencies.
LCR-MSCP produces annual mark-recapture population estimates for
all razorback sucker populations in its geographic scope. The Lake Mead
population, though large during the initial filling of the reservoir,
has declined to approximately 300 adults (LCR-MSCP 2019, p. 48). Ten
years of population estimates document that the population is stable,
but small. Reproduction and natural recruitment have been documented
annually since the 1990s in turbid inflow areas, making Lake Mead home
to the only self-sustaining razorback sucker population in either
basin. Cover, in the form of turbidity and submerged vegetation, may
explain why recruitment to the adult life stage occurs in Lake Mead,
despite the presence of many nonnative predatory fish species.
Lake Mohave remains an important genetic refuge for razorback
sucker, annually providing wild-spawned larvae for reintroduction
efforts across the lower basin. Recent genetic studies document the
persistence of high levels of genetic diversity in both wild and
stocked individuals. The population was documented to exceed 60,000
individuals in the 1980s, but declined to less than 250 wild
individuals in 2011. Currently, the population is estimated at several
thousand hatchery-raised and stocked adults. Reproduction and larval
presence is documented annually. Recruitment to the adult life stage
has not been documented in this population, and is unlikely due to high
rates of predation. Each year, wild larvae are captured, raised in
hatcheries, and reintroduced at sizes larger than can be consumed by
most nonnative fish species. Reintroduction occurs annually, but the
number of reintroduced adults varies.
Razorback sucker were extirpated from the Colorado River between
Davis and Parker Dams, including Lake Havasu. Reintroduction has
established a population of approximately 5,000 adults, and the
population is maintained through continual stocking. Spawning and
larval presence occur annually. Recruitment to the adult life stage has
not been documented in this
[[Page 35718]]
population and is unlikely due to high rates of predation.
In the Colorado River downstream of Parker Dam, razorback sucker
are augmented annually. Survival is low, making population estimation
difficult, but the population is currently estimated to be in the
hundreds (LCR-MSCP 2019, p. 48). Some reproduction is seen, but at low
levels. No evidence of natural recruitment to any life stage has been
documented. This population was assessed to be in extirpated condition
and, therefore, is not counted in the seven established populations.
Summary of the Lower Basin--There are currently three extant
populations of razorback sucker in the lower basin. The LCR-MSCP's
conservation and management actions continue to reintroduce razorback
sucker and actively develop off-channel habitat. The Lake Mead
population is small, persistent, and the only self-sustaining
population of the species. The SSA rated the population condition as
high relative to other populations. Populations of reintroduced adults
in Lake Mohave and Lake Havasu are maintained through stocking. The SSA
rated both populations as in low condition. The SSA rated the
population below Parker Dam as in extirpated condition, but recent
population estimates indicate it may be in the hundreds. Successful
reproduction and larval recruitment are common in three of the four
populations, with minimal larval production in the population below
Parker Dam. Razorback sucker populations in the lower basin rely on
management actions to be persistent.
Summary of Current Condition--The razorback sucker has many traits
that enable individuals to be resilient in the face of stochasticity,
including a long lifespan, high reproductive potential, flexibility in
habitat conditions, adaptation to a wide variety of water-quality
conditions, flow and thermal regimes, and a variable omnivorous diet.
Although individual adult razorback sucker are persistent, seven of the
eight populations are maintained through stocking. Overall, there is
one population rated in high condition, one in medium condition, five
in low condition, and one in extirpated condition. Only one population,
the Lake Mead population, exhibits natural recruitment and stability of
the population. The overall status of each population depends on
ongoing management actions, such as population augmentation and the
removal of nonnative predatory fish species, in order to maintain
resiliency.
Redundancy for razorback sucker is currently provided by seven
established populations. Further, the expansive distribution of each
population, with individuals distributed and established in multiple
locations across wide areas, also provides redundancy to help reduce
risk associated with catastrophic events, such as widespread wildfire
and extended drought. Due to this widespread distribution, existing
populations are likely to survive localized and even regional
catastrophic events. Representation is sufficient in terms of genetic
diversity and genetic relatedness, as genetic diversity has been
maintained through augmentation. Ecological representation is
demonstrated by the species exhibiting a high degree of plasticity by
inhabiting both lentic and lotic habitats. However, the lack of natural
recruitment may reduce levels of genetic diversity for the species.
Future Condition
We predicted the resiliency, redundancy, and representation of the
razorback sucker under five plausible future scenarios, 30 years into
the future, based on various levels of active conservation actions. For
the purposes of our analysis in the SSA, we also considered a 100 year
timeframe to evaluate whether threats could increase or decrease, but
the 100-year timeframe was not considered as a foreseeable future for
the finding in this proposed rule. The future scenarios we evaluated
are summarized below and are discussed in greater detail in the SSA
report (Service 2018a, pp. 104-118). The future scenarios range from a
reduction in conservation actions to an increase and improvement in the
effectiveness of conservation actions. We selected the 30-year
timeframe because it accounts for approximately three generations of
razorback sucker (time to sexual maturity) and was a timeframe with
sufficient certainty to anticipate the effects of stressors.
Scenario 1 of the SSA describes a reduction in recovery and
conservation actions for razorback sucker to minimal levels due to
funding reductions or the expiration of recovery programs. Scenario 2
of the SSA describes a reduction in the effectiveness of stocking and
reintroduction efforts, which is currently a key management tool
supporting most populations. Scenarios 3, 4, and 5 of the SSA show
continued management actions under various levels of effectiveness.
Scenario 3 represents a continuation of current management actions.
Scenarios 4 and 5 assume increases in the effectiveness of management
actions based on more effective flow and nursery habitat management or
the development of novel techniques to control nonnative predators.
Under Scenario 1, conditions would likely severely degrade in 30
years in the upper basin, primarily because of the assumed reduction in
conservation activities that would occur in absence of the Upper Basin
and San Juan Programs, likely resulting in all four populations
reaching an extirpated condition in the foreseeable future. Under
Scenario 1, conditions would likely remain constant in the Lower Basin
because the LCR;MSCP has committed conservation actions under their
consultation requirements under section 7 of the Act and Habitat
Conservation Plan until 2055. The most dramatic declines in condition
are likely under Scenario 2 under which most populations would decline
to an extirpated condition, underscoring the importance of stocking and
reintroduction programs to the species across the basin. In scenarios 1
and 2, both resiliency and redundancy are likely to decline in all
populations. Scenario 2 predicts a decline in representation because
genetics are currently managed and distributed using stocking and
reintroduction programs. Scenarios 3, 4, and 5 all predict increasing
resource and population conditions because conservation actions are
assumed to continue to improve the resiliency of populations,
differentiated by the effectiveness of said actions. Scenario 3
predicts restoration of all upper basin populations and the Lake Mohave
population to a medium condition based on continued implementation of
management actions, which support resiliency, redundancy and
representation. Under scenario 3, populations are likely to continue to
expand, but resiliency of the species would require ongoing management
actions. Scenario 4 predicts an increase in effectiveness of management
activities to support wild recruitment, including the management of
additional nursery habitat in the upper basin and additional off-
channel habitat in the lower basin. Under scenario 4, all populations
are predicted to reach high or moderate condition, except for the
population below Parker Dam, which would likely remain in low
condition. Under scenario 5, which assumes availability of a novel tool
to address nonnative fish, most populations would be expected to reach
high condition. In scenarios 3, 4, and 5, improvements in the upper
basin populations are likely larger than those in the lower basin as
[[Page 35719]]
a broader suite of actions are occurring in the upper basin.
The SSA report (Service 2018a, entire) contains a more detailed
discussion of our evaluation of the biological status of razorback
sucker and the influences that may affect its continued existence. Our
evaluations are based upon the best available scientific and commercial
data.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Determination of Razorback Sucker Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an endangered species as a
species that is ``in danger of extinction throughout all or a
significant portion of its range,'' and a threatened species as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of ``endangered species'' or ``threatened species'' because
of any of the following factors: (A) The present or threatened
destruction, modification, or curtailment of its habitat or range; (B)
Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the razorback sucker. Threats to the razorback sucker include
changes in flow regime and habitat connectivity (which could be
affected by climate change in the long term) (Factor A), and predation
and competition with nonnative fish species (Factor C) (Service 2018a,
pp. 25-42, 98-105). There is no evidence that overutilization (Factor
B) of razorback sucker, disease (Factor C), or other natural and
manmade factors affecting the species (Factor E) are occurring.
Existing regulatory mechanisms (Factor D) are discussed below. We
evaluated each potential stressor, including its source, affected
resources, exposure, immediacy, geographic scope, magnitude, and
impacts on individuals and populations, and our level of certainty
regarding this information, to determine which stressors were likely to
be drivers of the species' current condition (Service 2018a, pp. 25-
42).
We have also analyzed potential cumulative effects of stressors,
such as low river flows and warm water temperatures that may act
cumulatively to increase predation by nonnative predators. The SSA
framework considers the presence of the factors influencing the
species, including threats and conservation efforts and to what degree
they collectively influence risk to the entire species at the current
time and in the future.
Our analysis found that the primary drivers for the razorback
sucker's current and future condition in the wild are lack of access to
rearing habitat in the upper basin and persistent populations of
predatory nonnative fish species, which, together, prevent natural
recruitment from occurring at a population scale in both basins. We
summarize these stressors below, with more detail provided in the SSA
report (Service 2018a, pp. 27-42).
Access to nursery habitat--The presence and operation of large dams
can reduce spring peak flows and inter- and intra-annual flow
variability, needed by razorback sucker larvae and juveniles as rearing
habitat. Historical dam operations did not always provide river flow
conditions that supported razorback sucker, but recent modifications to
operations have improved conditions. Current flow recommendations at
upper basin dams (including Flaming Gorge [Green River subbasin], the
Aspinall Unit [Colorado River subbasin], and Navajo Dam [San Juan River
subbasin]) now promote inter- and intra-annual variability. In
addition, Flaming Gorge Reservoir operations have incorporated
experimental strategies to use spring peak flows to push larval
razorback sucker into managed off-channel floodplains. These larval-
triggered dam operations have resulted in the first consistent signs of
first-year survival in the upper basin. For recruitment to the adult
life stage to occur at a significant scale, more managed floodplains
may be needed to connect to the river more regularly in the Green River
(and potentially in the other) subbasins. Recent high, channel altering
flows in the San Juan River, followed by low flows that provided in-
river juvenile backwater habitat produced one year-class of naturally
recruited juveniles. Similar patterns would need to occur on a more
regular basis to produce enough juveniles to replace adults lost
through mortality. Future conditions of river flow and temperature are
uncertain because conditions are shaped by regional climatic patterns
and water availability.
Predation--Predation and competition by nonnative fish species are
stressors to razorback sucker in both the upper and lower basins by
reducing recruitment to adult life stages. Juvenile razorback sucker
are most vulnerable to predation from nonnative fish species during the
first few years of life. In the lower basin, populations that co-occur
with striped bass and flathead catfish are vulnerable even as adults.
Nonnative fish can also compete for resources with all life stages of
razorback sucker. The razorback sucker evolved in an environment
relatively free of predators and competitors. It is ill-adapted to
living with the many nonnative fish that have been introduced into the
Colorado River basin because it is a soft-rayed fish with no defense
mechanisms for protection from predators.
Predation from nonnative fish species, particularly smallmouth bass
in the upper basin, and striped bass and flathead catfish in the lower
basin, is actively reducing the viability of razorback sucker. All
upper basin razorback sucker populations have established nonnative
predator populations; however, predation pressure is considered low in
the San Juan River. All lower basin populations are dominated by
nonnative predators. Only Lake Mead remains unmanaged and naturally
recruiting. Management actions have restored razorback sucker
populations to much of their historical habitat and are necessary to
continue to support the species.
Regulatory mechanisms--Regulatory mechanisms (Factor D) and other
[[Page 35720]]
management efforts benefit the razorback sucker. Most habitat resources
affecting razorback sucker, such as river flow regimes, are strictly
regulated through Federal, State, and Tribal mechanisms. The razorback
sucker is widely distributed across the upper basin, occupying areas
surrounded by both private and public land, but many of the essential
habitats (e.g., floodplain wetlands and nursery areas) are largely
protected by land use management plans or other mechanisms associated
with Federal, State, and Tribal land ownership. Releases from large
dams, primarily operated by the U.S. Bureau of Reclamation, are now
operated to promote river function and connect fish habitat. These
revised dam operations have been vetted through the National
Environmental Policy Act process and are described in the records of
decision (RODs) for Flaming Gorge (U.S. Department of the Interior
2006), the Aspinall Unit (U.S. Department of the Interior 2012), and
Navajo dams (U.S. Department of the Interior 2005).
The Upper Basin and San Juan Programs coordinate and implement the
majority of management actions for the upper basin populations, while
the LCR-MSCP undertakes management actions for the lower Colorado River
basin. These programs are considered regulatory mechanisms because they
are largely federally funded, are guided by statute, are renewed on a
periodic basis by acts of Congress, and provide compliance under the
Act for water development projects.
Commitment to management actions for the benefit of razorback
sucker is strong among the various partnerships; nevertheless,
uncertainty of continued implementation in the upper basin does exist.
For example, the cooperative agreement establishing the Upper Basin and
San Juan Programs expires in 2023. The partners continue to discuss how
the programs will be continued post 2023, with strong agreement that
continuation is essential for all parties. Elimination of those two
programs would introduce severe uncertainty about continued
implementation of important management actions for razorback sucker in
the upper basin. In the lower basin, the habitat conservation plan that
created the LCR-MSCP is the legally binding mechanism that provides
more certainty for razorback sucker conservation actions through 2055.
The Upper Basin and San Juan Programs and LCR-MSCP are key
regulatory mechanisms that shape the current and future condition of
razorback sucker. The Upper Basin and San Juan Programs implement
management actions that benefit all resource needs of the razorback
sucker, including flow and habitat management, nonnative fish removal,
and stocking of adults. After coordination through the programs, the
Service maintains stocking agreements with the states prohibiting the
introduction of nonnative species that cause undue harm to endangered
species populations. The States of Colorado, Utah, and Wyoming have
enacted fishing regulations that encourage anglers to remove nonnative
predatory species throughout the upper Colorado River basin. The LCR-
MSCP develops off-channel, predator-free habitat and reintroduces
adults. Although it is likely that all programs will continue to
implement management actions, there is uncertainty regarding the status
of the Upper Basin and San Juan Programs over the next 30 years.
However, we believe there is strong, broad-based incentive to continue
these collaborative programs, because they collectively provide
regulatory compliance under the Act for the depletive effects
associated with more than 2,500 water projects, which deplete an
average of 3.8 million acre-feet per year.
We find that endangered species status is no longer appropriate for
the razorback sucker because the species currently demonstrates
sufficient individual and population resiliency, redundancy,
representation across seven reproducing populations, four in the upper
basin and three in the lower basin, supplemented by well-managed
captive populations across the range, such that the potential
extirpation of multiple populations is not likely to occur now or in
the short term. The current resiliency of the relatively small,
naturally recruiting Lake Mead population, in conjunction with the
resiliency and redundancy afforded by management-based populations
across both basins, decreases risk to the species from stochastic and
catastrophic events. Wide-ranging adult populations, successful
spawning, continued stocking and reintroduction programs, coupled with
threat management programs provide resiliency and redundancy, which
decrease the risks to the species. The risk of extinction is currently
low, due to the presence of one recruiting wild population and six
additional populations that are maintained by stocking from well-
managed captive populations. Therefore, the species is not currently in
danger of extinction. We, therefore, proceed with determining whether
razorback sucker is likely to become endangered within the foreseeable
future throughout all of its range (i.e., meets the Act's definition of
a threatened species).
We find that razorback sucker is likely to become an endangered
species throughout all of its range within the foreseeable future. Due
to nonnative predators that prevent nearly all natural recruitment of
razorback sucker to the adult life stage in most habitats, the
condition of the seven populations distributed across the upper and
lower basins depends on management actions, such as stocking efforts,
which are effective and ongoing. Management actions have ensured that
stocked razorback sucker are migrating, spawning, and producing viable
larvae in most populations. Signs of recruitment to the juvenile life
stage are increasing, but are not yet sufficient for self-
sustainability in most populations. Although the current risk of
extinction is low, such that the species is not an endangered species,
there is enough risk associated with the species' reliance on
management actions and the potential loss of these important management
actions such that the species is vulnerable. The primary management
organization in the lower basin, LCR-MSCP, will continue through the
foreseeable future considered in this rule (currently set to expire in
2055) ensuring conservation actions will continue in the lower basin to
maintain populations in their current state. Reduction or elimination
of ongoing management actions in the upper basin, which could occur
after 2023, could slow or reverse the positive trajectory in the upper
basin populations. Thus, after assessing the best available
information, we determine that the razorback sucker 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 2014 Significant Portion of its
Range Policy that provided that the Service does 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
[[Page 35721]]
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 razorback sucker, 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 razorback sucker, we considered whether threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. We examined the following threats:
Changes in flow regime and habitat connectivity (which could be
affected by climate change in the long term) (Factor A), predation and
competition with nonnative fish species (Factor C), overutilization
(Factor B) of razorback sucker, disease (Factor C), or other natural
and manmade factors affecting the species (Factor E), including
cumulative effects. We determined that threats to the razorback sucker
include changes in flow regime and habitat connectivity (which could be
affected by climate change in the long term) (Factor A), and predation
and competition with nonnative fish species (Factor C) (Service 2018a,
pp. 25-42, 98-105). There is no evidence that overutilization (Factor
B) of razorback sucker, disease (Factor C), or other natural and
manmade factors affecting the species (Factor E) are occurring.
In the upper basin, large dams historically changed flow regimes,
which altered water temperatures and reduced connectivity and access to
rearing habitat needed by the razorback sucker. Currently, flow
recommendations in the upper basin are providing access to rearing
habitat in the form of off-channel wetlands and floodplains. In the
lower basin, large dams created large on-channel reservoirs that
supported large populations of wild razorback sucker before the
introduction of nonnative fish species. Both the upper and lower basins
now support large augmented populations of razorback sucker. Although
in the future, regional climatic patterns and water availability could
affect the river flows and water temperatures needed by the razorback
sucker, flow regimes are currently not a threat to the species and
there are no geographically concentrated changes to flow regimes
operating at biologically meaningful scales, whether at a population
level, across the upper or lower basins, or the species rangewide.
Across the upper and lower basins, the razorback sucker evolved in
an environment relatively free of predators and competitors, and as a
soft-rayed fish with no defense mechanisms against predation, it is
ill-adapted to live with the many nonnative fish that were introduced
into the Colorado River basin. By feeding on juvenile razorback sucker,
and some adults in the lower basin, predatory, nonnative fish species
reduce recruitment of the razorback sucker to adult life stages.
Nonnative fish can also compete for resources with all life stages of
razorback sucker. As a result, predation and competition by nonnative
fish species are threats to the razorback sucker in both the upper and
lower basins. All razorback sucker populations in the upper and lower
basins have established populations of nonnative predators; however,
predation pressure is considered low in the San Juan River in the upper
basin, and only Lake Mead in the lower basin remains unmanaged and
naturally recruiting. Although nonnative species are different,
predation and competition by nonnative fish species occurs across both
the upper and lower basins and there are no geographical concentrations
of this threat across biologically meaningful scales, either at the
population scale, across the upper and lower basins, or the species
rangewide.
We found no concentration of threats in any portion of the range of
the razorback sucker 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 the razorback sucker meets the definition of
a threatened species. Therefore, we propose to reclassify the razorback
sucker as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
Proposed Rule Issued Under Section 4(d) of the Act
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) of the Act provide 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
[[Page 35722]]
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
proposed rule that is designed to address the razorback sucker'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 razorback sucker. As discussed in the Summary
of Biological Status and Threats section, we have concluded that the
razorback sucker is likely to become in danger of extinction within the
foreseeable future primarily due to changes to water flow and
predatory, nonnative fish species. The provisions of this proposed 4(d)
rule would promote the conservation of the razorback sucker by
providing continued protection from take and to facilitate the
expansion of the species' range by increasing flexibility in management
activities. The provisions of this rule are one of many tools that we
would use to promote the conservation of the razorback sucker. This
proposed 4(d) rule would apply only if and when we make final the
reclassification of the razorback sucker as a threatened species.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of the
razorback sucker by prohibiting the following activities, except as
otherwise authorized or permitted: Importing or exporting; possession
and other acts with unlawfully taken specimens; delivering, receiving,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; or selling or offering for sale in
interstate or foreign commerce. This proposed 4(d) rule includes
actions to facilitate conservation and management of razorback sucker
where they currently occur, and may occur in the future, by eliminating
the Act's take prohibition for certain activities. These activities are
intended to encourage support for the conservation of razorback sucker.
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
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Under this
proposed 4(d) rule, take will continue to be prohibited, except for the
following forms of take that would be excepted under the Act:
<bullet> Take resulting from population restoration efforts
including captive-breeding, stocking, and reintroduction of
individuals;
<bullet> Take resulting from display of razorback sucker for
educational purposes;
<bullet> Take resulting from creating and managing nursery habitat
for razorback sucker;
<bullet> Take resulting from the removal or suppression of
nonnative fish species;
<bullet> Take resulting from catch-and-release angling activities
associated with razorback sucker in accordance with all applicable
laws, including incidental take from nontargeted angling in critical
habitat and take from targeted angling for razorback sucker in any
newly established areas; and
<bullet> Take associated with chemical treatments in support of the
recovery of razorback sucker.
Captive-Breeding, Reintroduction, and Stocking
Robust hatchery and reestablishment programs have been developed as
a result of catastrophic historical declines in wild populations and
are essential management tools used by agencies across the Colorado
River basin. Population restoration efforts provide the flexibility to
perform supplemental stocking into existing populations or
reintroduction of individuals to extirpated areas. Stocking hatchery-
reared razorback sucker and reintroducing wild-spawned larvae as adults
too large for predation are important management actions supporting the
managed 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 substitute for resiliency for
extant populations by potentially offsetting population declines or
increasing genetic diversity. Currently, the genetic diversity of
razorback sucker exists in captive broodstock and wild-spawned larvae
in Lake Mohave. Broodstock are maintained at multiple locations across
the upper and lower basin.
The process of establishing or supplementing broodstock or
enhancing populations by reintroducing wild-collected larvae as adults
can require take in the form of collection of wild individuals of
various life stages. Furthermore, the long-term care and maintenance of
broodstock or hatchery stock can result in take, including take related
to disease, parasites, genetic assessment, and management of captive
populations, and natural mortality of individuals existing in
broodstock or refuge populations. The process of culturing and stocking
individuals can also result in take via hatchery methods or incidental
mortality of stocked individuals.
This proposed 4(d) rule describes captive-breeding, stocking, and
reintroduction of razorback sucker excepted from take as any activity
undertaken to expand the range of razorback sucker or to supplement
existing wild populations. Under this proposed 4(d) rule, take
resulting from captive-breeding, stocking, and reintroduction for
razorback sucker by qualified personnel would not be prohibited as long
as reasonable care is practiced to minimize the effects of such taking.
Qualified personnel are full-time fish biologists or aquatic resources
managers employed by any of the Colorado River Basin State or Tribal
wildlife agencies, the Department of the Interior bureau offices
located within the Colorado River basin, or fish biologists or aquatic
resource managers employed by a private consulting firm. Reasonable
care should include, but is not limited to: (1) Ensuring that the
number of individuals removed minimally impacts extant wild
populations; (2) acting in accordance with the Service's Policy
Regarding Controlled Propagation of Species Listed Under the Endangered
Species Act (65 FR 56916, September 20, 2000) and all Federal, State,
and Tribal laws and regulations; (3) implementing methods that result
in the least harm, injury, or death to razorback sucker as feasible;
(4) preserving specific genetic groupings of razorback sucker as
defined by the best available science to maintain the genetic diversity
of the species; and (5) ensuring no detrimental impacts to existing
razorback sucker populations from disease, parasites, or genetic drift.
Any stocking of razorback sucker must be approved by the Service.
[[Page 35723]]
Exhibitions of Captive-Bred Razorback Sucker
Live fish exhibits provide a unique opportunity for the public to
see and interact with rare native species. Exhibits are currently
distributed throughout the basin in educational classrooms and public
buildings holding hatchery-propagated fish. In cooperation with the
Service, an educational message shall be presented with each animal and
shall include the following minimal information: Common and scientific
names, historical and current distribution, Endangered Species Act
listing status, and a brief history of recovery. The long-term care and
maintenance of live individuals in exhibits can result in take,
including take related to disease, parasites, and natural mortality of
individuals existing in captivity. Wild-caught razorback sucker are not
permitted to be used for this purpose. Fish used in exhibitions may not
be released into natural waterways without written permission from the
Service defining time, location, and procedures to be used during
release. Any releases must be in compliance with all Federal, State,
and Tribal laws and regulations. Reasonable care must be taken to
reduce take including, but not limited to: (a) Holding razorback sucker
in aquaria of appropriate size for the life stage on exhibit (no less
than 10 gallons (37.8 L)); and (b) providing routine care by
individuals trained and knowledgeable in fish and aquarium care and the
management of parasites and disease.
Creation and Management of Nursery Habitat
Floodplain wetlands and other habitats support growth of larval and
juvenile razorback sucker (see Summary of Biological Status and
Threats, above). Successful floodplain management for razorback sucker
can require: (a) Flow management that provides floodplain connection
when larval razorback sucker are present in the system; (b) floodplains
that are retrofitted with water control structures that restrict entry
of large-bodied fish and allow managers to fill and drain the habitat
at the beginning and end of the growing season, respectively; (c)
supplemental water to freshen floodplain water quality through the
summer; and (d) periodic monitoring of fish communities in the wetland
to determine species composition. Take of razorback sucker can occur
when the floodplains are drained and razorback sucker are inadvertently
left in the floodplain or when water quality or other physical habitat
conditions become insufficient to support the species. Incidental take
may also occur when individuals of the species are handled, either
during population sampling or draining of the wetland.
Currently, management of floodplain wetlands occurs at multiple
locations in the Green River basin and in one location along the
Colorado River, near Moab, Utah. Creation of floodplain habitat is in
development in the San Juan River basin. In the lower basin, razorback
sucker are common in off-channel pond habitat. Both the floodplain and
pond habitats are constructed and managed to keep large-bodied
nonnative predators out. New construction designs or management
techniques, as available and feasible, may also need to be implemented
in the future.
This proposed 4(d) rule describes creation and management of
nursery habitat excepted from take prohibitions as any action with the
primary or secondary purpose of enhancing or providing nursery habitat
for razorback sucker, and that is approved in writing by the Service
for that purpose.
Under this proposed 4(d) rule, take resulting from actions to
create or manage nursery habitats to benefit razorback sucker by
qualified personnel would not be prohibited as long as reasonable care
is practiced to minimize the effects of such taking. Reasonable care
may include, but is not limited to: (1) Performance of management
treatments at times and locations that reduce the impacts to razorback
sucker; (2) compliance with all Federal, State, and Tribal regulations
for construction in wetland habitats; (3) attention to water quality
conditions while razorback sucker are thought to be present; and (4)
performance of robust salvage efforts to remove any razorback sucker
before draining occurs. Whenever possible, razorback sucker that are
salvaged should be moved to a location that supports recovery of the
species.
Nonnative Fish Removal
Control of nonnative fishes is vital for the continued recovery of
razorback sucker because predatory, nonnative fishes are a principal
threat to razorback sucker (see Summary of Biological Status and
Threats, above). The goal of removing nonnative fishes is to reduce
predation and competition pressure on razorback sucker to such a level
that it results in increasing razorback sucker survival, recruitment,
and access to resources. During the course of removing nonnative
fishes, take of razorback sucker may occur from incidental captures
resulting in capture, handling, injury, or possible mortality. However,
nonnative removal activities in razorback sucker habitats are designed
to be selective, allowing for the removal of predatory, nonnative fish
while razorback sucker are returned safely to the river. Therefore, if
nonnative fish removal is performed under deliberate, well-designed
programs, the benefits to razorback sucker can greatly outweigh losses.
Currently, active nonnative fish removal is widespread in the upper
basin, but is less common in the lower basin. Control of nonnative
fishes is conducted by qualified personnel in the upper basin via
mechanical removal using boat-mounted electrofishing, nets, and seines,
primarily focusing on removal of smallmouth bass, northern pike (Esox
lucius), and walleye (Sander vitreus). Removal of nonnative fishes in
the upper basin is performed under strict standardized protocols to
limit impacts to razorback sucker. In the lower basin, nonnative fish
actions primarily focus on preventing establishment of new species
(such as removal of green sunfish below Glen Canyon Dam) and
controlling populations of trout in tributary habitats (such as removal
of brown trout in Bright Angel Creek). New techniques, as available and
feasible, may also need to be implemented in the future.
This proposed 4(d) rule describes nonnative fish removal excepted
from take prohibitions as any action with the primary or secondary
purpose of mechanically removing nonnative fishes that compete with,
predate, or degrade the habitat of razorback sucker, and that is
approved in writing by the Service for that purpose. These methods
include mechanical removal within occupied razorback sucker 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 equipment used in compliance with applicable Federal,
State, and Tribal regulations.
Under this proposed 4(d) rule, incidental take resulting from
actions implementing nonnative fish control activities to benefit
razorback sucker would not be prohibited as long as reasonable care is
practiced to minimize the effects of such taking. Reasonable care may
include, but is not limited to: (1) Performing removal actions at times
and locations that reduce the impacts to razorback sucker; (2)
complying with all applicable regulations and following principles of
responsible removal; and (3) judiciously using methods and tools to
reduce the likelihood that razorback
[[Page 35724]]
sucker are captured, injured, or die in the removal process. Whenever
possible, razorback sucker 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 Razorback Sucker
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 razorback
sucker 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 razorback sucker
could arise through newly established fishing locations and public
engagement with this species. Furthermore, anglers target species that
co-occur with razorback sucker at some locations. As a result,
otherwise legal angling activity in razorback sucker habitats could
result in the unintentional catch of razorback sucker by the angling
public. Catch-and-release angling, both intentional and incidental, can
result in take of razorback sucker through handling, injury, and
potential mortality. However, the conservation support that angling
provides can outweigh losses to razorback sucker, if the angling
program is designed appropriately.
Currently, State angling regulations require the release of all
incidental catches of razorback sucker and do not allow anglers to
target the species. Therefore, current angling regulations for
razorback sucker by the States of Arizona, California, Colorado, New
Mexico, Nevada, and Utah demonstrate a willingness to enact appropriate
regulations for the protection of the razorback sucker. It is important
to continue to protect razorback sucker from intentional angling
pressure in critical habitat to support recovery of the species.
Supporting recreational fishing access to these areas for species other
than razorback sucker is an important economic consideration for State
and Tribal entities. We propose to allow take of razorback sucker from
angling activities that are in accordance with State and Tribal fishing
regulations in razorback sucker critical habitat, but that do not
target razorback sucker. That is, take associated with incidental
catch-and-release of razorback sucker in the core populations would not
be prohibited. Reasonable consideration by the States and Tribes for
incidental catch of razorback sucker in critical habitat includes: (1)
Regulating tactics to minimize potential injury and death to razorback
sucker if caught; (2) communicating the potential for catching
razorback sucker in these areas; and (3) promoting the importance of
the populations across the Colorado River basin.
Outside of critical habitat, we foresee that Federal, State, or
Tribal governments may want to establish a new recovery location where
razorback sucker could be targeted for catch-and-release angling or a
new location without recovery value, where the sole purpose is
recreational angling for razorback sucker. Newly established locations
could offer a genetic refuge for core populations of razorback sucker,
provide a location for hatchery-reared fish (see Captive-Breeding,
Stocking, and Reintroduction, above), and offer the public a chance to
interact with the species in the wild. Therefore, we propose to allow
take of razorback sucker from catch-and-release angling activities that
target razorback sucker and are in accordance with State and Tribal
fishing regulations in areas outside of critical habitat.
Sport fishing for razorback sucker would be allowed only 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 razorback sucker in specified waters
outside of critical habitat. 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 razorback sucker 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 populations of razorback sucker through
such factors as disease or genetic drift; (3) ensuring adequate
availability of razorback sucker 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 razorback sucker 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 Razorback Sucker
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 razorback
sucker 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 razorback sucker, if reasonable care and
planning are 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 razorback sucker. For example, Red Fleet
Reservoir (Green River, Utah) was treated by the Utah Division of
Wildlife Resources to remove walleye that were escaping downstream, and
a slough downstream of Glen Canyon Dam (Colorado River, Arizona) was
treated by the National Park Service to remove green sunfish. 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 razorback sucker, including certain other
actions described in this proposed 4(d) rule. For example, chemical
treatments could be used prior to introducing razorback sucker through
stocking. 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 razorback sucker were stocked into a
[[Page 35725]]
new area, but did not successfully establish, landowners may want to
restore this location for another purpose.
Chemical treatments would be allowed under this proposed 4(d) rule.
Necessary precautions and planning should be applied to avoid impacts
to razorback sucker. For example, treatments upstream of occupied
razorback sucker habitats should plan for unintended consequences
(e.g., dispersal of piscicide beyond treatment boundaries). Chemical
treatments that take place in locations where razorback sucker occur,
or may occur, must take place only after a robust salvage effort takes
place to remove razorback sucker in the area. Any chemical treatment
that takes place in an area where razorback sucker may reside would
need written approval from the Service, but treatments of unoccupied
habitat would not need to be approved. Once the location of a chemical
treatment is approved in writing by the Service, the take of razorback
sucker by qualified personnel associated with performing a chemical
treatment would not be regulated by the Service.
Under this proposed 4(d) rule, take resulting from actions
implementing chemical treatments to benefit razorback sucker would not
be prohibited as long as reasonable care is practiced to minimize the
effects of such taking. Reasonable care may include, but is not limited
to: (1) Performance of treatments at times and locations that reduce
the impacts to razorback sucker; (2) compliance with all Federal,
State, and Tribal regulations for the use of fish toxicants and
piscicides; (3) adherence to all protocols to limit the potential for
fish toxicants and piscicides travelling beyond treatment boundaries;
and (4) performance of robust salvage efforts to remove any razorback
sucker in the treatment area. Whenever possible, razorback sucker that
are salvaged should be moved to a location that supports recovery of
the species.
Reporting and Disposal of Razorback Sucker
Under the proposed 4(d) rule, if razorback sucker 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 Proposed Regulation Promulgation, below. Law
enforcement offices must be notified within 72 hours of the death,
unless special conditions warrant an extension. The Service may allow
additional reasonable time for reporting if access to these offices is
limited due to closure or if the activity was conducted in an area
without sufficient communication access.
Permits
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife as
necessary in light of any finalized 4(d) rule. 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 proposed 4(d) rule would not impact existing or future permits
issued by the Service for take of razorback sucker. Any person with a
valid permit issued by the Service under Sec. 17.22 or Sec. 17.32 may
take razorback sucker, subject to all take limitations and other
special terms and conditions of the permit.
The Service recognizes the special and unique relationship with our
State natural resource agency partners in contributing to conservation
of listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Service in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Service shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve razorback
sucker that may result in otherwise prohibited take without additional
authorization.
Proposed 4(d) Rule
We have determined that the actions and activities that would be
allowed under this proposed 4(d) rule, while they may cause some level
of harm to individual razorback sucker, would not negatively affect
efforts to conserve and recover razorback sucker, and would facilitate
these efforts by increasing educational opportunities and public
support for the conservation of razorback sucker and by providing more
efficient implementation of recovery actions. This proposed 4(d) rule
would not be made final until we have reviewed and fully considered
comments from the public and unless and until we make final a rule to
reclassify the species as threatened.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of the razorback sucker. However, interagency cooperation
may be further streamlined through planned programmatic consultations
for the species between Federal agencies and the Service, where
appropriate. We ask the public, particularly State and Tribal agencies
and other interested stakeholders that may be affected by the proposed
4(d) rule, to provide comments and suggestions regarding additional
guidance and methods that the Service could provide or use,
respectively, to streamline the implementation of this proposed 4(d)
rule (see Information Requested, above).
Required Determinations
Clarity of This Proposed Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written,
[[Page 35726]]
which sections or sentences are too long, the sections where you feel
lists or tables would be useful, etc.
National Environmental Policy Act
We determined that we do not need to prepare an environmental
assessment or an environmental impact statement, as defined under the
authority of the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), in connection with regulations adopted pursuant to
section 4(a) of the Act. We published a notice outlining our reasons
for this determination in the Federal Register on October 25, 1983 (48
FR 49244). We also determine that 4(d) rules that accompany regulations
adopted pursuant to section 4(a) of the Act are not subject to the
National Environmental Policy Act.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (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 will coordinate with Tribes in the
range of the razorback sucker and request their input on this proposed
rule.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R6-ES-
2020-0057, and upon request from the Upper Colorado River Endangered
Fish Recovery Program Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Service's Upper Colorado River Endangered Fish Recovery Program
Office.
Signing Authority
The Director, U.S. Fish and Wildlife Service, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the U.S. Fish and Wildlife Service. Martha
Williams, Principal Deputy Director Exercising the Delegated Authority
of the Director, U.S. Fish and Wildlife Service, approved this document
on June 23, 2021, for publication.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we hereby propose to amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Sucker, razorback''
under FISHES on the List of Endangered and Threatened Wildlife to read
as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Sucker, razorback............... Xyrauchen texanus.. Wherever found..... T 56 FR 54957, 10/23/
1991; [FEDERAL
REGISTER CITATION
WHEN PUBLISHED AS
A FINAL RULE]; 50
CFR 17.44(gg);
\4d\ 50 CFR
17.95(e).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.44 by adding paragraph (gg) to read as follows:
Sec. 17.44 Special rules--fishes.
* * * * *
(gg) Razorback sucker (Xyrauchen texanus).
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the razorback sucker. Except as
provided under paragraphs (gg)(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, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(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 for its
duration under Sec. 17.32.
(ii) Conduct activities as authorized by a permit issued prior to
[EFFECTIVE DATE OF THE FINAL RULE] under Sec. 17.22 for the duration
of the permit.
(iii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iv) Take, as set forth at Sec. 17.31(b).
[[Page 35727]]
(v) Possess and engage in other acts with unlawfully take wildlife,
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 razorback sucker while carrying out the following
legally conducted activities in accordance with this paragraph:
(i) Definitions. For the purposes of this paragraph (gg)(3):
(A) Person means a person as defined by section 3(13) of the Act.
(B) Qualified person means a full-time fish biologist or aquatic
resources manager employed by any of the Colorado River Basin State or
Tribal wildlife agencies or the Department of the Interior bureau
offices located within the Colorado River basin, or a 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 or Tribal agency.
(C) Reasonable care means limiting the impacts to razorback sucker
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; salvaging individuals from treatment areas, as
feasible, and returning them to a location that supports recovery of
the species; ensuring the number of individuals removed or sampled
minimally impacts existing extant wild populations; ensuring no disease
or parasites are introduced into existing extant wild populations; and
preserving the genetic diversity of extant wild populations.
(ii) Captive-breeding, reintroduction, and stocking. A qualified
person may take razorback sucker while engaging in captive-propagation,
stocking, or reintroduction, provided that reasonable care is practiced
to minimize the effects of that taking. All captive-breeding shall be
conducted by a qualified person in accordance with Service policies
pertaining to the propagation of listed species and all Federal, State,
and Tribal laws and regulations. Methods of allowable take include, but
are not limited to, removing wild individuals via electrofishing, nets,
and seines from the six core populations; managing captive populations,
including handling, rearing, and spawning of captive fish; and
sacrificing individuals for hatchery management, such as parasite and
disease certification.
(iii) Exhibitions of captive-bred razorback sucker in aquaria for
educational purposes. A person may exhibit live, captive-bred razorback
sucker in aquaria for educational purposes. Allowable take includes,
but is not limited to, incidental take associated with the care and
display of captive-bred razorback sucker in aquaria for educational
purposes.
(A) An educational message shall be presented with each animal and
shall include the following minimal information: Common and scientific
names, historical and current distribution, Endangered Species Act
listing status as threatened, and a brief history of recovery.
(B) All exhibitions must be provided routine care and be housed in
aquaria of 10 gallons (38 liters) or more.
(C) Captive-bred razorback sucker used in exhibitions may not be
released into natural waterways without written permission from the
Service, which will define time, location, and procedures to be used
during release. Any releases of captive-bred razorback sucker used for
educational purposes must be in compliance with all Federal, State, and
Tribal laws and regulations.
(iv) Creation and management of nursery habitats. A qualified
person may take razorback sucker to create or manage nursery habitats
to support the growth of larval and juvenile razorback sucker. The
Service must approve, in advance and in writing, the development of any
nursery habitat with the primary or secondary purpose of conserving
razorback sucker. Methods of allowable take include, but are not
limited to, draining or drying an occupied floodplain wetland to remove
fish or perform habitat maintenance; construction activities to improve
or maintain the wetland; and habitat management activities to alter
vegetation including but not limited to mechanical, chemical, and
burning treatments.
(v) Nonnative fish removal. A qualified person may take razorback
sucker in order to perform nonnative fish removal for conservation
purposes if reasonable care is practiced to minimize effects to
razorback sucker. 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 razorback sucker. The Service and all applicable landowners
must approve, in advance and in writing, any nonnative fish removal
activities. Methods of allowable take include, but are not limited to,
mechanical removal of nonnative fish within occupied razorback sucker
habitats, including, but not limited to, electrofishing, seining,
netting, and angling and the use of other ecosystem modifications, such
as altered flow regimes or habitat modifications, for the purpose of
managing nonnative species populations that may impact razorback sucker
populations.
(vi) Catch-and-release angling of razorback sucker. States and
Tribes may enact Federal, State, and Tribal fishing regulations that
address catch-and-release angling. In federally designated critical
habitat for the razorback sucker, angling activities may include
nontargeted (incidental) catch and release of razorback sucker when
targeting other species in accordance with Federal, State, and Tribal
fishing regulations. In areas outside of federally designated critical
habitat for the razorback sucker, angling activities may include
targeted catch and release of razorback sucker in accordance with
Federal, State, and Tribal fishing regulations.
(A) Angling activities for razorback sucker may cause take via
handling, injury, and unintentional death to razorback sucker that are
caught via angling.
(B) Reasonable consideration by the Federal, State, and Tribal
agencies for incidental catch and release of razorback sucker in
critical habitat include regulating tactics to minimize potential
injury and death to razorback sucker if caught and communicating the
potential for catching razorback sucker in these areas.
(C) Reasonable consideration for establishing new recreational
angling locations for razorback sucker includes, but is not limited to,
evaluating each water body's ability to support razorback sucker and
sustain angling; ensuring the recreational fishing population does not
detrimentally impact populations of razorback sucker through such
factors as disease or genetic drift; and monitoring to ensure there are
no detrimental effects to the razorback sucker population from angling.
(D) The Service and all applicable State, Federal, and Tribal
landowners must approve, in advance and in writing, any new
recreational fishery for razorback sucker.
(vii) Chemical treatments to support razorback sucker. A qualified
person may take razorback sucker by performing a chemical treatment in
accordance with Federal, State, and Tribal regulations that would
support the conservation and recovery of razorback sucker, provided
that reasonable care is practiced to minimize
[[Page 35728]]
the effects of such taking. For treatments outside of occupied
razorback sucker habitat, Service approval is not required, and care
should be taken to limit the potential for fish toxicants and
piscicides travelling beyond treatment boundaries and impacting
razorback sucker. For treatments in known or potentially occupied
razorback sucker habitat, the Service must approve any treatment, in
advance and in writing.
(viii) Reporting and disposal requirements. Any mortality of
razorback sucker associated with the actions authorized under the
provisions of this paragraph (gg) 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
of Glen Canyon Dam) must be made to the Service's Southwest Region Law
Enforcement Office, or the Service's Arizona Fish and Wildlife
Conservation Office. Contact information for the Service's regional
offices is set forth at 50 CFR 2.2. The Service may allow additional
reasonable time for reporting if access to these offices is limited due
to office closure or if the activity was conducted in an area without
sufficient communication access.
Anissa Craghead,
Acting Regulations and Policy Chief, Division of Policy, Economics,
Risk Management, and Analytics, Joint Administrative Operations, U.S.
Fish and Wildlife Service.
[FR Doc. 2021-14335 Filed 7-6-21; 8:45 am]
BILLING CODE 4333-15-P
</pre></body>
</html>Indexed from Federal Register on July 7, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.