[Federal Register: March 27, 2007 (Volume 72, Number 58)]
[Proposed Rules]
[Page 14327-14366]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27mr07-13]
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Part II
Department of the Interior
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Proposed Designation of
Critical Habitat for the Pecos Sunflower (Helianthus paradoxus);
Proposed Rule
[[Page 14328]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AV02
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Pecos Sunflower (Helianthus
paradoxus)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Pecos sunflower (Helianthus
paradoxus) under the Endangered Species Act of 1973, as amended (Act).
In total, approximately 1579.3 acres (ac) (639.1 hectares (ha)) fall
within the boundaries of the proposed critical habitat designation.
Proposed critical habitat is located in Chaves, Cibola, Guadalupe,
Socorro, and Valencia Counties, New Mexico, and in Pecos County, Texas.
DATES: We will accept comments from all interested parties until May
29, 2007. We must receive requests for public hearings, in writing, at
the address shown in the ADDRESSES section by May 11, 2007.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. Submit written comments and information by mail or hand-delivery
to Wally ``J'' Murphy, Field Supervisor, U.S. Fish and Wildlife
Service, New Mexico Ecological Services Field Office, 2105 Osuna Rd NE,
Albuquerque, NM 87113.
2. Send comments by electronic mail (e-mail) to: R2FWE_AL@fws.gov.
Please see the Public Comments Solicited section below for file
format and other information about electronic filing.
3. Fax your comments to 505/346-2542.
4. Go to the Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the New Mexico Ecological Services Field Office, 2105 Osuna Rd
NE, Albuquerque, NM 87113 (telephone 505/346-2525).
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
New Mexico Ecological Services Field Office, 2105 Osuna Rd NE,
Albuquerque, NM 87113; telephone 505/346-2525; facsimile 505/346-2542.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531
et seq.), including whether the benefit of designation would outweigh
any threats to the species caused by designation;
(2) Specific information on the amount and distribution of
Helianthus paradoxus habitat, what areas should be included in the
designation that were occupied at the time of listing that contain
features essential for the conservation of the species and why, and
what areas that were not occupied at the listing are essential to the
conservation of the species and why;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities;
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments; and
(6) The existence of any conservation or management plans being
implemented by public or private land management agencies or owners
that we should consider for exclusion from the designation pursuant to
section 4(b)(2) of the Act. Please include information on any benefits
(educational, regulatory, etc.) of including or excluding lands from
this proposed designation.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES).
Please include ``Attn: Helianthus paradoxus'' in your e-mail subject
header and your name and return address in the body of your message. If
you do not receive a confirmation from the system that we have received
your message, contact us directly by calling our New Mexico Ecological
Services Field Office at 505/346-2525. Please note that the e-mail
address R2FWE_AL@fws.gov will be closed out at the termination of the
public comment period.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
Attention to and protection of habitat is paramount to successful
conservation actions. The role that designation of critical habitat
plays in protecting habitat of listed species, however, is often
misunderstood. As discussed in more detail below in the discussion of
exclusions under the Act's section 4(b)(2), there are significant
limitations on the regulatory effect of designation under the Act's
section 7(a)(2). In brief, (1) designation provides additional
protection to habitat only where there is a Federal nexus; (2) the
protection is relevant only when, in the absence of designation,
destruction or adverse modification of the critical habitat would take
place (in other words, other statutory or regulatory protections,
policies, or other factors relevant to agency decision-making would not
prevent the destruction or adverse modification); and (3) designation
of critical habitat triggers the prohibition of destruction or adverse
modification of that habitat, but it does not require specific actions
to restore or improve habitat.
Currently, only 485 species, or 37 percent of the 1,310 listed
species in the United States under the jurisdiction of the Service,
have designated critical habitat. We address the habitat needs of all
1,310 listed species through conservation mechanisms such as listing,
section 7 consultations, the section 4 recovery planning process, the
section 9 protective prohibitions of unauthorized take, section 6
funding to the States, the section 10 incidental take permit process,
and cooperative,
[[Page 14329]]
nonregulatory efforts with private landowners. The Service believes
that these measures may make the difference between extinction and
survival for many species.
In considering exclusions of areas proposed for designation, we
evaluated the benefits of designation in light of Gifford Pinchot Task
Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir 2004)
(hereinafter Gifford Pinchot). In that case, the Ninth Circuit
invalidated the Service's regulation defining ``destruction or adverse
modification of critical habitat.'' In response, on December 9, 2004,
the Director issued guidance to be considered in making section 7
adverse modification determinations. This proposed critical habitat
designation does not use the invalidated regulation in our
consideration of the benefits of including areas. The Service will
carefully manage future consultations that analyze impacts to
designated critical habitat, particularly those that appear to be
resulting in an adverse modification determination. Such consultations
will be reviewed by the Regional Office prior to finalizing to ensure
that an adequate analysis has been conducted that is informed by the
Director's guidance.
To the extent that designation of critical habitat provides
protection, that protection can come at significant social and economic
cost. In addition, the mere administrative process of designation of
critical habitat is expensive, time-consuming, and controversial. The
current statutory framework of critical habitat, combined with past
judicial interpretations of the statute, make critical habitat the
subject of excessive litigation. As a result, critical habitat
designations are driven by litigation and courts rather than biology,
and made at a time and under a timeframe that limits our ability to
obtain and evaluate the scientific and other information required to
make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need
of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
the Service with limited ability to provide for public participation or
to ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals, due to the risks associated
with noncompliance with judicially imposed deadlines. This in turn
fosters a second round of litigation in which those who fear adverse
impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless and is expensive,
thus diverting resources from conservation actions that may provide
relatively more benefit to imperiled species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the cost of
analysis of the economic effects and of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA; 42 U.S.C. 4371 et seq.). These
costs, which are not required for many other conservation actions,
directly reduce the funds available for direct and tangible
conservation actions.
Background
It is our intent to discuss only those topics directly relevant to
designation of critical habitat in this proposal. For more information
on Helianthus paradoxus, refer to the final listing rule published in
the Federal Register on October 20, 1999 (64 FR 56582) and the Pecos
Sunflower Recovery Plan posted at http://www.ecos.fws.gov/docs/recovery_plans/2005/050915.pdf
.
Helianthus paradoxus is a member of the Asteraceae family,
described by Dr. Charles Heiser in 1958 as Helianthus paradoxus (Heiser
1958, pp. 272-274). Genetic and morphological analyses have confirmed
Helianthus paradoxus as a valid taxon (Rieseberg et al. 1990, pp. 1508-
1509; Lexer et al. 2003, p. 1999; Welch and Riesberg 2002, p. 477). A
number of vernacular names for this plant, including Pecos sunflower,
puzzle sunflower, and paradox sunflower, have appeared in printed
literature, and all refer to Helianthus paradoxus. The Service has
adopted `Pecos sunflower' as the standard common name for this species.
H. paradoxus is a plant that grows on permanently wet, alkaline
soils at spring seeps, wet meadows, stream courses, and pond margins.
It is currently known from 12 populations in 5 widely spaced
geographical areas in west-central and eastern New Mexico and adjacent
Trans-Pecos Texas. These populations are all dependent upon wetlands
that result from an elevated water table. The number of H. paradoxus
per site varies from fewer than 100 to over one million. Because H.
paradoxus is an annual, the number of plants per site can fluctuate
greatly from year to year with changes in precipitation and depth to
groundwater or in response to other physical and biological changes.
Stands of H. paradoxus can change location within the habitat as well
(Sivinski 1992, p. 125). If a wetland habitat dries out permanently,
even a large population of H. paradoxus will disappear (Service 1999,
p. 56582).
Little is known about the historic distribution of H. paradoxus.
The plant is associated with spring seeps and desert cienegas, and
there is evidence these habitats were historically reduced or
eliminated by aquifer depletion, or severely impacted by agricultural
activities and encroachment by nonnative plants (Poole 1992, p. 2;
Sivinski 1995, p. 11). H. paradoxus was known only from a single
population near Fort Stockton, Pecos County, Texas, when it was
proposed as a candidate species under the Act on December 15, 1980 (45
FR 82480). This is a large population of several hundred thousand to
one million plants at The Nature Conservancy's Diamond Y Spring
Preserve and a smaller group of plants downstream at a nearby highway
right-of-way. Between 1980 and 1994, field surveys for this plant found
additional populations in New Mexico and Texas (Service 1999, p.
56582). During this period, H. paradoxus was discovered in a second
Texas site at The Nature Conservancy's Sandia Spring Preserve in the
Balmorhea area of Reeves County, Texas. In addition, H. paradoxus was
found at 11 spring seeps and cienegas in the Roswell/Dexter region of
the Pecos River valley in Chaves County, New Mexico. Three of these
wetlands support many thousands
[[Page 14330]]
of H. paradoxus, but the remainder are smaller, isolated occurrences.
Springs and cienegas within and near the town of Santa Rosa in
Guadalupe County, New Mexico, were found to have eight wetlands with H.
paradoxus, one of which consisted of a few hundred thousand plants.
Also discovered were two widely separated areas of spring seeps and
cienegas in the Rio San Jose valley of western New Mexico, each
supporting a medium-sized population of H. paradoxus. One occurs on the
lower Rio San Jose in Valencia County and the other is in Cibola County
in the vicinity of Grants. After the species was listed, two more
populations were added to the total number of known populations: (1) A
very large population near La Joya, in Socorro County, at the
confluence of the Rio Grande and the Rio Puerco; and (2) a population
on State lands in Chaves County in a marshy sink (Service 2005, p. 4).
Previous Federal Actions
H. paradoxus was listed as a threatened species on October 20, 1999
(64 FR 56582). At the time this plant was federally listed, the Service
determined that the designation of critical habitat was not prudent
because we believed publication of critical habitat maps would increase
the degree of threats to the species by vandalism and commercial
collection. On September 27, 2005, the Forest Guardians filed suit
against the Service for failure to designate critical habitat for this
species (Forest Guardians v. Hall 2005). On March 20, 2006, a
settlement was reached that requires the Service to re-evaluate our
original prudency determination. The settlement stipulated that, if
prudent, a proposed rule would be submitted to the Federal Register for
publication on or before March 16, 2007, and a final rule by March 16,
2008. This proposed rule complies with the settlement agreement and
with section 4(b)(2) of the Act.
For more information on previous Federal actions concerning H.
paradoxus, refer to the final listing rule published in the Federal
Register on October 20, 1999 (64 FR 56582), and the Pecos Sunflower
Recovery Plan, dated July 2005, prepared by the Fish and Wildlife
Service.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. Conservation, as defined under section 3 of the Act, means
to use and the use of all methods and procedures that are necessary to
bring any endangered species or threatened species to the point at
which the measures provided under the Act are no longer necessary. Such
methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 of the Act requires
consultation on Federal actions that are likely to result in the
destruction or adverse modification of critical habitat. The
designation of critical habitat does not affect land ownership or
establish a refuge, wilderness, reserve, preserve, or other
conservation area. Such designation does not allow government or public
access to private lands. Section 7 of the Act is a purely protective
measure and does not require implementation of restoration, recovery,
or enhancement measures.
To be included in a critical habitat designation, the habitat
within the area known at the time of listing to be occupied by the
species must first have features that are essential to the conservation
of the species. Critical habitat designations identify, to the extent
known using the best scientific data available, habitat areas that
provide essential life cycle needs of the species (areas on which are
found the primary constituent elements (PCEs), as defined at 50 CFR
424.12(b)).
Habitat known at the time of listing to be occupied may be included
in critical habitat only if the essential features thereon may require
special management or protection. Thus, we do not include areas where
existing management is sufficient to conserve the species. (As
discussed below, such areas may also be excluded from critical habitat
under section 4(b)(2) of the Act.) Accordingly, when the best available
scientific data do not demonstrate that the conservation needs of the
species require additional areas, we will not designate critical
habitat in areas outside the geographical area known at the time of
listing to be occupied by the species. However, an area currently
occupied by the species but was not known at the time of listing to be
occupied will likely, but not always, be essential to the conservation
of the species and, therefore, typically may be included in the
critical habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and Section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service biologists to the
extent consistent with the Act and with the use of the best scientific
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information is generally the listing package for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge. All information is used in
accordance with the provisions of Section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available. Habitat
is often dynamic, and species may move from one area to another over
time. Furthermore, we recognize that designation of critical habitat
may not include all of the habitat areas that may eventually be
determined to be necessary for the recovery of the species. For these
reasons, critical habitat designations do not signal that habitat
outside the designation is unimportant or may not be required for
recovery.
[[Page 14331]]
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b) of the Act, we used the best scientific
and commercial data available in determining areas that contain the
features that are essential to the conservation of H. paradoxus, areas
that are essential to the conservation of H. paradoxus, or both. In
designating critical habitat for this species, we reviewed the Final
Pecos Sunflower Recovery Plan and listing packages for the species,
articles in peer-reviewed journals, conservation plans developed by
land managers, scientific status surveys and studies, biological
assessments, and other unpublished materials, including expert opinion.
We are proposing to designate habitat that we have determined contains
the physical and biological features essential to the conservation of
the species arranged in the quantity and spatial characteristics
necessary for conservation (see ``Criteria Used To Identify Critical
Habitat'' section below).
We have also reviewed available information that pertains to the
habitat requirements of this species. We reviewed information from
knowledgeable biologists, including Hirsch 2006, Poole 2006, Sivinski
2007, and Ulibarri 2006, and reviewed recommendations contained in
State resource reports. We also reviewed the available literature
pertaining to habitat requirements, historical localities, and current
localities of the species in peer-reviewed articles such as Van Auken
and Bush 1998. We used data in reports submitted during consultations
under section 7 of the Act and in regional Geographic Information
System (GIS) data layer coverages. Of particular importance, we
reviewed databases, published literature, and field notes to determine
the historical and current distribution of the species. Agency and
researcher field notes and published literature contained additional
information on surveys and species' detections, such as in performance
reports under section 6 of the Act prepared by botanists in New Mexico
and Texas (Poole 1992, pp. 1-6; Sivinski 1992, pp. 124-126; Sivinski
1995, pp. 1-11).
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features (primary
constituent elements (PCEs)) that are essential to the conservation of
the species, and within areas occupied by the species at the time of
listing, that may require special management considerations and
protection. These include, but are not limited to: (1) Space for
individual and population growth and for normal behavior; (2) food,
water, air, light, minerals, or other nutritional or physiological
requirements; (3) cover or shelter; (4) sites for breeding,
reproduction, and rearing (or development) of offspring; and (5)
habitats that are protected from disturbance or are representative of
the historic, geographical, and ecological distributions of a species.
The specific PCEs required for H. paradoxus are derived from the
physical and biological features that are essential to the conservation
of the species, as described below and in the Background section of
this proposal. We determined the PCEs for H. paradoxus from studies of
habitat requirements (see ``Background'' and ``Methods'' sections
above).
Space for Individual and Population Growth, Including Sites for
Germination, Pollination, Reproduction, and Seed Bank
H. paradoxus is an annual species that must re-establish
populations of adult plants each year from seed produced during
previous years' reproductive efforts. Habitats with suitable alkaline
soils and perennially wet hydrologic conditions for all of the life
functions of H. paradoxus are typically small areas around springs and
ponds. Therefore, populations tend to grow in crowded patches of dozens
or even thousands of individuals. Solitary individuals may be found
around the periphery of the wetland, but dense, well-defined stands
within suitable habitats are more typical. Aggregations of individuals
may occur in different adjacent areas than the patches of dead stalks
from the population of the previous year (Sivinski 1992, p. 125). This
suggests seed dispersal or the presence of a persistent soil seed bank
(Van Auken 2001). Patch densities and locations are determined by a
combination of factors, including variations in seasonal soil moisture,
salinity, oxygen, disturbance, and competing vegetation (Bush 2002, pp.
1-2; Van Auken and Bush 1995, p. 15; Bush and Van Auken 1997, p. 417).
Dense stands of H. paradoxus produce smaller, spindly plants, while
more open stands have larger plants (Service 2005, p. 6). Likewise,
experiments to remove competing vegetation, such as alkali sacaton
(Sporobolus airoides) and saltgrass (Distichlis spicata), also produced
larger H. paradoxus plants with more flowers per plant (Bush and Van
Auken 1997, p. 417).
Pollination vectors for H. paradoxus have not been studied.
However, most plants in the aster family with ray-like flowers, such as
H. paradoxus, attract a variety of insect pollinators (Service 2005, p.
7). Seed production is greatly enhanced in H. paradoxus by cross-
pollination between individual plants. An experiment that excluded
pollinators from flower heads produced only 5 percent viable seed
compared to 84 percent viable seed produced by flower heads that were
open to insect pollination (Van Auken and Bush 1997, p. 44). H.
paradoxus blooms in the months of September and October. Flowering
peaks the second week of September in the northern-most New Mexico
populations. The peak flowering time for the southern-most population
in West Texas is later in October. Seeds fill and mature during October
and November and then require a 2- to 3-month after-ripening period
before germination (Van Auken 2001, p. 157). A few seeds remain dormant
for longer periods and appear to be insurance for species survival by
remaining viable in the soil seed bank (Van Auken 2001). The duration
of seed viability has not yet been studied.
Areas That Provide the Basic Requirements for Growth (Such as Water,
Light, and Minerals)
H. paradoxus habitat attributes usually are present in desert
wetland areas that contain permanently saturated soils in the root zone
(Service 2005, p. 6). These are most commonly desert springs and seeps
that form wet meadows called ``cienegas.'' Nevertheless, H. paradoxus
also can occur around the margins of lakes and creeks (Service 2005, p.
6). When H.
[[Page 14332]]
paradoxus grows around lakes or ponds, these areas are usually
associated with natural cienega habitats. The soils of these desert
wetlands and riparian areas are typically saline or alkaline because
the waters are high in dissolved solids and elevated evaporation rates
leave deposits of salts, including carbonates, at the soil's surface.
Studies by Van Auken and Bush (1995, pp. 14) showed that H. paradoxus
grows in saline soils, but seeds germinate and establish best when
precipitation and high water tables reduce salinity near the soil
surface. Based on greenhouse and limited field studies, H. paradoxus
requires salinity levels ranging from 10 to 40 parts per thousand for
optimal growth in competition with other salt marsh plant species (Van
Auken and Bush 2006, p. 29). H. paradoxus can occur on the cienegas
that contain alkaline, fine sand soils that may be dry at the surface
during summer months, but are sub-irrigated in the root zone. Where
saturated soils are shaded by taller vegetation, H. paradoxus may also
not be present every year or in numbers greater than a few hundred
plants. Like all sunflowers, this species requires open areas that are
not shaded by taller vegetation for optimal growth. Solitary trees or
shrubs are sometimes located within stands of H. paradoxus. Clusters of
tall tress and shrubs will inhibit H. paradoxus's growth by shading
germinating seeds and seedlings (Service 2005, p. 6).
Primary Constituent Elements for Helianthus Paradoxus
Pursuant to the Act and its implementing regulations, we are
required to identify the physical and biological features (PCEs) within
the geographical area known to be occupied at the time of listing of H.
paradoxus, that may require special management considerations or
protections.
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that H. paradoxus's PCEs are the desert wetland or riparian habitat
components that provide:
(1) Silty clay or fine sand soils that contain high organic
content, are saline or alkaline, are permanently saturated within the
root zone (top 50 cm of the soil profile), and have salinity levels
ranging from 10 to 40 parts per thousand; and
(2) Low proportion (less than 10 percent) of woody shrub or canopy
cover directly around the plant.
Critical habitat does not include manmade structures, such as
buildings, aqueducts, runways, airports, roads, and other paved areas,
and the land on which such structures are located within the boundaries
of a final critical habitat designation that exist on the effective
date of a final rule.
This proposed designation is designed for the conservation of PCEs
necessary to support the life history functions that are the basis for
the proposal and the areas containing those PCEs. Because all of the
species' life history functions require all of the PCEs, all proposed
critical habitat units contain all PCEs.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing and that contain the
primary constituent elements may require special management
considerations or protections. Threats to H. paradoxus include drying
of wetlands from groundwater depletion, alteration of wetlands (e.g.,
wetland fills, draining, impoundment, and development), competition
from nonnative plant species, overgrazing by livestock during H.
paradoxus's flowering season, impacts from recreational activities,
mowing, and highway maintenance.
We believe each area included in this proposal requires special
management or protections as described in our unit descriptions below.
The loss or alteration of wetland habitat continues to be the main
threat to H. paradoxus. The scattered distribution of cienegas makes
them aquatic islands of unique habitat in an arid-land matrix
(Hendrickson and Minckley 1984, p. 169). There is evidence these
habitats have been historically, and are presently being, reduced or
eliminated by aquifer depletion, and severely impacted by agricultural
activities and encroachment by exotic plants (Poole 1992, pp. 1-2;
Sivinski 1995, p. 11). The lowering of water tables through aquifer
withdrawals for irrigation and municipal use, diversion of water from
wetlands for agriculture and recreational uses, and wetland filling for
conversion to dry land uses destroy or degrade desert wetlands.
In Grants, New Mexico, H. paradoxus has been observed to occur in
close proximity to building sites that may have contained suitable
wetland habitat prior to filling (Service 2005, p. 8). A cienega
containing H. paradoxus near Dexter, New Mexico, was dried when a
wellhead was placed on the spring and the water diverted for other uses
(Service 2005, p. 8). Springs that have fed H. paradoxus habitats have
been converted to swimming pools and fishing ponds in the towns of
Roswell and Santa Rosa, New Mexico (Service 2005, p. 8). Groundwater
withdrawals for agriculture in Pecos and Reeves Counties in Texas have
had an especially severe impact on desert springs (Service 2005, p. 8).
Of the 61 historical desert springs in these two counties, only 13 were
still flowing in 1980 (Brune 1981 in Poole 1992, p. 5). Beginning
around 1946, groundwater levels fell as much as 400 ft (120 m) in Pecos
County and 500 ft (150 m) in Reeves County. Groundwater pumping has
lessened in recent years due to the higher cost of removing water from
deeper aquifers, but rising water tables and resumption of spring flows
are not expected (Poole 1992, p. 5). Texas water law provides no
protection for the remaining springs that support H. paradoxus
populations on The Nature Conservancy properties, which limits options
for addressing this threat.
Livestock will eat H. paradoxus when other green forage is scarce,
and when the buds are developing and abundant (Service 1999, p. 56587).
Cattle and horses tend to pull off the flower heads, which can reduce
seed production (Bush and Van Auken 1997, p. 416). However, well-
managed grazing during non-flowering months may have a beneficial
effect on H. paradoxus populations by decreasing the density and
biomass of potentially competing plant species in these habitats. This
sunflower germinates earlier than most associated plants and grows
vigorously on wet, bare, highly insolated soils (Service 2005, p. 9).
Actions that remove shading grass cover, such as grazing, appear to
enhance growth and reproduction of sunflower plants that are later
protected from grazing while they are reproductively maturing.
Therefore, properly managed livestock grazing is not incompatible with
H. paradoxus conservation. Livestock grazing operations that are not
managed to protect H. paradoxus occur in populations in the Grants and
Roswell areas of New Mexico (Service 2005, p. 9).
The specific threats requiring special management or protections
are described in the critical habitat unit descriptions below.
Criteria Used To Identify Critical Habitat
We are proposing to designate critical habitat in areas that were
known at the time of listing to be occupied and that contain sufficient
PCEs to support life history functions essential for the conservation
of the species. Lands are proposed for designation based on
[[Page 14333]]
sufficient PCEs being present to support the life history processes of
the species. All lands contain all PCEs and support multiple life
processes. We are also proposing critical habitat in areas that were
not known at the time of listing to be occupied. However, we have
determined that these areas are currently occupied and are essential to
the conservation of the species.
Occupancy
We consider an area to be currently occupied if H. paradoxus was
found to be present by species experts within the last 2 years (Hirsch
2006, p. 1; Poole 2006, p. 1; Ulibarri 2006, p. 1; Sivinski 2007, p.
1).
Stability
In proposing to designate critical habitat, we considered the
stability of the known populations, including size and status over
time. According to population-level analysis conducted for H.
paradoxus, approximately 1,600 or more individuals is a population
target that gives a high probability of having a stable population over
time (Poole 2004; Sanderson 2006, p. 918). We consider the status of a
population to be stable when it appears that (1) the number of new
individuals in a population is equal to or greater than the number of
individuals dying, and (2) the population occupies a similar or larger
area over multiple survey periods. The survey and field data on which
this proposed designation is based represent consistently observed
populations during the last several years. Most of the sites included
in this proposal were visited by species experts four or more times
between 1992 and 2007; however, at a minimum each site was visited
twice.
By including stable populations, we are proposing to designate
currently occupied habitat that provides for important life-history
functions, such as seed dispersal and genetic exchange, and will
contribute to the long-term conservation of the species. Locations that
have populations that do not support at least 1,600 individuals are
usually either dependent on an inconsistent water supply or rely on
small, restricted, or modified habitats. We believe that, by proposing
to designate large populations, the species will persist, the potential
for successful pollination is high, and genetic exchange will be
facilitated.
Essential
For areas not known to be occupied at the time of listing, the
Service must demonstrate that these areas are essential to the
conservation of the species in order to include them in a critical
habitat designation. The H. paradoxus critical habitat units shown in
Table 1 in New Mexico and west Texas are sufficiently distant (40 to
100 miles (mi) (64 to 161 kilometers (km)) from one another to rule out
frequent gene exchange by pollen vectors or seed dispersal. Therefore,
we have determined that each of these populations, including any not
known to be occupied at the time of listing, is essential to the
conservation of the species because they ensure maintenance of the
genetic diversity of H. paradoxus. The areas we are proposing for
critical habitat designation include populations containing all of the
known remaining genetic diversity within the species that are not
currently under a management regime that would result in the
conservation of H. paradoxus. These areas include representation of
each major subbasin in the known historical range of the species
(Service 2005, p. 4).
In summary, this proposed critical habitat designation includes
populations of H. paradoxus and habitats that possess the physical and
biological features essential to the conservation of the species. We
believe the proposal: (1) Maintains PCEs in areas where large
populations of H. paradoxus are known to occur; (2) maintains the
current distribution, thus preserving genetic variation throughout the
range of H. paradoxus and minimizing the potential effects of local
extinction; (3) minimizes fragmentation within populations by
establishing contiguous occurrences and maintaining existing
connectivity; (4) includes sufficient pollinators; and (5) protects the
seed bank to ensure long-term persistence of the species.
Mapping
The proposed H. paradoxus critical habitat areas are grouped both
spatially and by watershed into five larger units: West-Central New
Mexico, La Joya, Santa Rosa, Roswell/Dexter, and West Texas. The
boundaries of the proposed critical habitat designation for each
subunit were mapped using global positioning system (GPS) along the
outside boundary of the area of occupied habitat (Pittenger 2007). We
attempted to encompass only areas that contain all of the PCEs in a
year of average rainfall. The elevated water table that provides
conditions favorable to H. paradoxus growth is influenced by both past
and current precipitation. Groundwater level is often affected by
precipitation in the entire watershed from many prior years as water
slowly moves through the soil and geologic features into springs and
wetlands. The groundwater provides a relatively reliable, stable water
source permanently saturating soils adjacent to springs and wetlands.
Winter storms and monsoons provide a more dynamic source of
precipitation to H. paradoxus habitat. The suitable habitat expands and
contracts horizontally and laterally from the groundwater-influenced
areas depending on the amount of annual precipitation (Sivinski 1992,
p. 125). Therefore, in very wet years, suitable H. paradoxus habitat
may extend beyond the mapped boundaries for critical habitat and in
very dry years may shrink to a smaller area than delineated.
In a few of the subunits we include, narrow dirt roads within the
mapped boundaries when these roads were present within the occupied
habitat. Due to soil compaction from vehicle tracks, these roads do not
provide the PCEs for H. paradoxus. They do, however, represent a small
area (2 m (6 ft) wide), and they are directly adjacent to occupied
habitat, so we found it too difficult, due to mapping constraints, to
exclude them from the maps of proposed critical habitat. To the best of
our knowledge, no other areas were included within the mapped
boundaries of proposed subunits that do not possess all of the PCEs.
We were not able to obtain physical access to some private lands in
order to map the boundaries of H. paradoxus habitat. We utilized U.S.
Geological Survey 7.5 minute quadrangle maps to create maps that depict
the habitat containing the PCEs. One of the features of 7.5 minute
quadrangle maps is their accurate depiction of permanent water sources
(e.g., springs and wetlands) associated with these populations. The
depiction of the subunits are based on: (1) Map features, (2) limited
visual observations, and (3) a knowledge of how spring/wetland habitats
influence similar H. paradoxus populations in other geographic areas
within the species' range.
With the exception of the narrow dirt roads discussed above, when
determining proposed critical habitat boundaries, we made every effort
to avoid including (within the boundaries of the map contained within
this proposed rule) developed areas such as buildings, paved areas, and
other structures that lack PCEs for H. paradoxus. The scale of the maps
prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
areas.
We are proposing to designate critical habitat in areas that we
have determined were occupied at the time of listing, and
[[Page 14334]]
that contain sufficient PCEs to support life history functions
essential for the conservation of the species. Lands are proposed for
designation based on sufficient PCEs being present to support the life
processes of the species. We are also proposing critical habitat in
areas that were not known at the time of listing to be occupied.
However, we have determined that these areas are currently occupied and
are essential to the conservation of the species.
Proposed Critical Habitat Designation
We are proposing five (5) units as critical habitat for H.
paradoxus. The critical habitat areas described below constitute our
best assessment currently of areas known at the time of listing to be
occupied, that contain the primary constituent elements and may require
special management, and those additional areas that were not known to
be occupied at the time of listing but were found to be essential to
the conservation of H. paradoxus. Table 1 shows the areas that were
known at time of listing to be occupied, those areas that are currently
occupied, and the threats requiring special management or protections.
Table 1.--Threats and Occupancy in Areas Containing Features
Essential to the Conservation of H. Paradoxus
----------------------------------------------------------------------------------------------------------------
Threats requiring
Geographic area/unit special management Known to be occupied at Currently occupied
or protections the time of listing
----------------------------------------------------------------------------------------------------------------
Unit 1. West-Central New Mexico
----------------------------------------------------------------------------------------------------------------
Subunit 1a. Rancho del Padre Water withdrawal, Yes....................... Yes.
Spring Cienega. wetland filling and
development,
incompatible
livestock management.
Subunit 1b. Grants Salt Flat Wetland filling and Yes....................... Yes.
Wetland. development,
encroachment by
nonnative
vegetation,incompati
ble livestock
management.
Subunit 1c. Pueblo of Laguna...... Water withdrawal, Yes....................... Yes.
incompatible
livestock
management,
encroachment by
nonnative vegetation.
----------------------------------------------------------------------------------------------------------------
Unit 2. La Joya
----------------------------------------------------------------------------------------------------------------
La Joya State Wildlife Management Encroachment by No........................ Yes.
Area. nonnative vegetation.
----------------------------------------------------------------------------------------------------------------
Unit 3. Santa Rosa
----------------------------------------------------------------------------------------------------------------
Subunit 3a. Blue Hole Cienega / Encroachment by Yes....................... Yes.
Blue Hole Fish Hatchery Ponds. nonnative
vegetation; on City
land, wetland
filling and
recreation use,
mowing to edges of
ponds, dredging
ponds and filling of
wetlands.
Subunit 3b. Westside Spring....... Next to major road, No........................ Yes.
water withdrawal,
wetland filling and
development,
encroachment by
nonnative vegetation.
----------------------------------------------------------------------------------------------------------------
Unit 4. Roswell/Dexter
----------------------------------------------------------------------------------------------------------------
Subunit 4a. Bitter Lake National Threats on Refuge Yes....................... Yes.
Wildlife Refuge/ City of Roswell lands have been
Land. addressed by CCP; on
City land, water
withdrawal, wetland
filling and
development,
incompatible
livestock management.
Subunit 4b. Bitter Lake National Threats have been Yes....................... Yes.
Wildlife Refuge Farm. addressed by CCP.
Subunit 4c. Oasis Dairy........... Water withdrawal, Yes....................... Yes.
wetland filling and
development,
incompatible
livestock management.
Subunit 4d. Lea Lake at Bottomless Campgrounds and human Yes....................... Yes.
Lakes State Park. trampling,
encroachment by
nonnative vegetation.
Subunit 4e. Dexter Cienega........ Water withdrawal Yes....................... Yes.
wetland filling and
development,
incompatible
livestock management.
----------------------------------------------------------------------------------------------------------------
Unit 5. West Texas
----------------------------------------------------------------------------------------------------------------
Diamond Y Spring.................. Water withdrawal, Yes....................... Yes.
wetland filling and
development,
incompatible
livestock management.
----------------------------------------------------------------------------------------------------------------
The approximate area encompassed within each proposed critical
habitat unit is shown in Table 2.
[[Page 14335]]
Table 2.--Critical Habitat Units Proposed for H. Paradoxus
[Area estimates reflect all land within proposed critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
Acres (Hectares) for non-
Geographic area/unit Land ownership inclusion and proposed Proposed critical habitat
exclusion acres (hectares)
----------------------------------------------------------------------------------------------------------------
Unit 1. West-Central New Mexico
----------------------------------------------------------------------------------------------------------------
Subunit 1a. Rancho del Padre Private and Tribal ............................. 25.5 (10.3)
Spring Cienega.
Subunit 1b. Grants Salt Flat Private........... ............................. 62.5 (25.3)
Wetland.
Subunit 1c. Pueblo of Laguna... Tribal............ undefined.................... undefined
----------------------------------------------------------------------------------------------------------------
Unit 2. La Joya
----------------------------------------------------------------------------------------------------------------
La Joya State Wildlife State of New ............................. 854.3 (345.7)
Management Area. Mexico.
----------------------------------------------------------------------------------------------------------------
Unit 3. Santa Rosa
----------------------------------------------------------------------------------------------------------------
Subunit 3a. Blue Hole Cienega/ State of New ............................. 133.9 (54.2)
Blue Hole Fish Hatchery Ponds. Mexico and City
of Roswell.
Subunit 3b. Westside Spring.... Private........... ............................. 6.4 (2.6)
----------------------------------------------------------------------------------------------------------------
Unit 4. Roswell/Dexter
----------------------------------------------------------------------------------------------------------------
Subunit 4a. Bitter Lake U.S. Fish and 3,480 (1408.3)............... 92.2 (37.3)
National Wildlife Refuge/City Wildlife Service
of Roswell Land. and City of
Roswell.
Subunit 4b. Bitter Lake U.S. Fish and 686.2 (277.7)................ 0 (0)
National Wildlife Refuge Farm. Wildlife Service.
Subunit 4c. Oasis Dairy........ Private........... ............................. 103.9 (42.0)
Subunit 4d. Lea Lake at State of New ............................. 19.5 (7.9)
Bottomless Lakes State Park. Mexico.
Subunit 4e. Dexter Cienega..... Private........... ............................. 41.4 (16.8)
----------------------------------------------------------------------------------------------------------------
Unit 5. West Texas
----------------------------------------------------------------------------------------------------------------
Diamond Y Spring............... Private........... ............................. 239.7 (97.0)
--------------------------------------------------------------------------------
Total Acres (Hectares)..... .................. 4,166.2 (3094.3)............. 1,579.3 (639.1)
----------------------------------------------------------------------------------------------------------------
Below, we present brief descriptions of all subunits, and reasons
why they do or do not meet the definition of critical habitat for H.
paradoxus (see ``Criteria Used to Identify Critical Habitat'' section
above).
Unit 1: West-Central New Mexico
Subunit 1a is located at Rancho del Padre Spring Cienega. This
subunit is 25.5 ac (10.3 ha) in Cibola County, New Mexico. The subunit
consists of an area of Rancho del Padre Spring Cienega from the spring
on the south side of I-40 then northeast approximately 0.5 mi (0.8 km)
to the Rio San Jose.
This population consists of large patches of several thousand
plants on areas owned by two private landowners (22.6 ac (9.1 ha)) and
the Pueblo of Acoma (2.9 ac (1.2 ha). This site was known to be
occupied at the time of listing and has been visited or observed from a
public right-of-way by species experts during four or more seasons.
These experts have found the site occupied by H. paradoxus on every
visit (Sivinski 2007a, p. 3). This unit is currently occupied, contains
all of the PCEs, and is threatened by water withdrawal, wetland filling
and development, and livestock grazing during H. paradoxus's growing
and flowering season. Therefore, special management or protections may
be required to minimize these threats. At this time, we are not aware
of any management plans that address H. paradoxus in this area.
In January 2007, we found that the Pueblo of Acoma owned the land
that contained part of this population. Although we are not aware of
any management plans that address H. paradoxus in this area, if the
Pueblo or other landowners request, we will provide technical
assistance on management of the species and the development of a
management plan. We will consult with the Pueblo and other landowners
during the proposal period to evaluate whether these lands should be
considered for exclusion in the final designation. As such, we may
consider excluding this area, including lands owned by the Pueblo of
Acoma, from the final critical habitat designation pursuant to section
4(b)(2) of the Act (see ``Application of Section 4(b)(2) of the Act''
section below for additional information).
Subunit 1b is located at Grants Salt Flat Wetland. This subunit is
62.5 ac (25.3 ha) in Cibola County, New Mexico. The subunit consists of
an area of wet alkaline playa between railroad tracks and I-40 and west
of Hwy 122 (Road from Interstate to downtown Grants). Playas are nearly
level areas at the bottom of undrained desert basins that are sometimes
covered in water.
This population consists of large patches of several thousand
plants mostly on private property. This site was known to be occupied
at the time of listing and has been visited or observed from a public
right-of-way by species experts during four or more seasons. These
experts have found the site occupied by H. paradoxus on every visit
(Sivinski 2007). This unit is currently occupied, contains all of the
PCEs, and is threatened by wetland filling and development,
encroachment by nonnative vegetation, and livestock management not
compatible with H. paradoxus physiology. Therefore, special management
or protections may be required to minimize these threats. At this time,
we are not aware of any management plans that address H. paradoxus in
this area.
[[Page 14336]]
Subunit 1c is located at the Pueblo of Laguna. This subunit's
acreage is undefined in Valencia County, New Mexico. The subunit
consists of an area along the Rio San Jose, South Garcia, New Mexico.
At this site, H. paradoxus plants are located in patches at springs
along the Rio San Jose. Each patch consists of several hundred to
several thousand plants, and a few scattered plants grow along the
river (Sivinski 1995, p. 4). The entire site belongs to the Pueblo of
Laguna. This site was known to be occupied at the time of listing, is
currently occupied, contains all of the PCEs, and is threatened by
water withdrawal, encroachment by nonnative vegetation, and livestock
grazing during the H. paradoxus's growing and flowering season. The
Pueblo is developing a management plan for H. paradoxus. On the basis
of this plan and our partnership with the Pueblo of Laguna, we
anticipate excluding this area from the final critical habitat
designation pursuant to section 4(b)(2) of the Act (see ``Application
of Section 4(b)(2) of the Act'' section below for additional
information).
Unit 2: La Joya
Unit 2 is located in the La Joya State Wildlife Management Area.
This unit is 854.3 ac (345.7 ha) in Socorro County, New Mexico. This
population is located about 7 mi (11 km) south of Bernardo within
Socorro County near the confluence of the Rio Grande and the Rio
Puerco. The La Joya population is bounded to the west by I-25 and to
the east by the Unit 7 Drain. The north boundary is adjacent to River
Mile 126 of the Rio Grande and the south boundary is adjacent to River
Mile 123.
One of the largest populations of H. paradoxus occurs on the Rio
Grande at La Joya. This Rio Grande population consists of 100,000 to
1,000,000 plants and occurs on the La Joya State Waterfowl Management
Area (Service 2005, p. 4). It is within the La Joya Unit of the Ladd S.
Gordon Waterfowl Complex. This property is owned by the New Mexico
State Game Commission. It is managed by the New Mexico Department of
Game and Fish for migratory waterfowl habitat, which is compatible with
preservation of wetlands for H. paradoxus.
This area was not known to be occupied at the time of listing. It
was discovered in 2004. This site has been found to be occupied every
year since then by one of the largest populations of H. paradoxus in
the range of the species (Hirsch 2006, p. 1). This unit is currently
occupied by a stable population (Blue Earth Ecological Consultants,
Inc. 2007c, p. 3), contains all of the PCEs, and is threatened by
encroachment of nonnative vegetation.
We have determined this site to be essential to the conservation of
the species because it is currently occupied by a stable, very large
population of H. paradoxus, and is sufficiently distant (over 40 mi (64
km)) from other populations to serve as an additional locality that
contributes to the conservation of genetic variation. This population
may prevent extirpation of the species resulting from encroachment of
nonnative species, degradation of habitat, or a catastrophic event
because it is the sole representative located in an area distinct from
any other population in the range of the species. As such, it may
contain genetic variation not found anywhere else in the range of the
species. Because the water source for this population is very stable,
this population can be expected to persist in very large numbers every
year.
Unit 3: Santa Rosa
Subunit 3a is located at Blue Hole Cienega/Blue Hole Fish Hatchery
Ponds. This subunit is 127.6 ac (51.6 ha) in Guadalupe County, New
Mexico. The Blue Hole Fish Hatchery Ponds population of H. paradoxus is
part of the same population as and nearly contiguous with the Blue Hole
Cienega in Santa Rosa, New Mexico. The Blue Hole Fish Hatchery Ponds is
immediately north of Blue Hole Road and the Blue Hole Cienega is
immediately south.
This subunit was known to be occupied at the time of listing and
has been visited by species experts during four or more seasons. These
experts found the subunit to be occupied by H. paradoxus on every visit
(Sivinski 2007a, p. 2). This subunit is currently occupied (Blue Earth
Ecological Consultants, Inc. 2006, p.1), contains all of the PCEs, and
is threatened by encroachment by nonnative vegetation, wetland filling,
and park maintenance activities. Therefore, special management or
protections may be required to minimize these threats. At this time, we
are not aware of any management plans that address H. paradoxus in this
area.
The part of this population at Blue Hole Cienega consists of
100,000 to 1,000,000 plants and is the largest population of H.
paradoxus in the upper Pecos River basin. A non-traditional section 6
grant was awarded to the State of New Mexico in 2004 for acquisition of
the Blue Hole Cienega, which was finalized in July 2005. At this site,
shallow ground water seeps to the surface to create cienega
communities. This subunit is currently occupied, contains all of the
PCEs, and is threatened by encroachment by nonnative vegetation.
Therefore, special management or protections may be required to
minimize these threats. At this time, we are not aware of any
management plans that address H. paradoxus in this area.
The part of this population at the Blue Hole Fish Hatchery Ponds is
owned and administered by the City of Santa Rosa and consists of
approximately 1,000 plants. This site is maintained as a recreational
area. Park maintenance staff have voluntarily stopped mowing and
cutting the sunflower during the months of August and September. An
information kiosk on endangered wetland plants is being planned for the
bike/foot path along the creek at Blue Hole Park.
This subunit was confirmed to be occupied in 2006 (Blue Earth
Ecological Consultants, Inc. 2006, p. 4), contains all of the PCEs, and
is threatened by encroachment from nonnative vegetation, wetland
filling, and park maintenance activities. Therefore, special management
or protections may be required to minimize these threats. The City of
Santa Rosa is willing to participate in the development of a
conservation plan. We will work with the City in this effort to develop
and implement a plan to conserve this population.
Subunit 3b is located at Westside Spring. This subunit is 6.4 ac
(2.6 ha) in Santa Rosa, Guadalupe County, New Mexico. The subunit
consists of an area along an unnamed spring on west side of Pecos
River, located to the west of River Road and 1 mi (1.6 km) east of
Highway 54.
This area was not known to be occupied at the time of listing. It
was discovered in 2005, and contained thousands of plants. This site
was found to be occupied again in 2006 by a species expert observing
from a public right-of-way (Sivinski 2007). This subunit is currently
occupied by a stable population, contains all of the PCEs, and is
threatened by proximity to a major road, water withdrawal, wetland
filling and development, and encroachment of nonnative vegetation.
Therefore, special management or protections may be required to
minimize these threats. At this time, we are not aware of any
management plans that address H. paradoxus in this area.
We have determined this site to be essential to the conservation of
the species because it is currently occupied by a stable, large
population of H. paradoxus, and is one of only two stable, large
populations in Unit 3. This
[[Page 14337]]
subunit is sufficiently distant (over 40 mi (64 km)) from other
populations to serve as an additional locality that contributes to the
conservation of genetic variation. This population may prevent
extirpation of the species resulting from encroachment of nonnative
species, degradation of habitat, or a catastrophic event that could
occur to the other subunit in Unit 3. It may also contain genetic
variation specific to this Unit. Because the water source for this
population is very stable, this population can be expected to persist
in large numbers every year.
Unit 4: Roswell/Dexter
Subunit 4a is located at Bitter Lake National Wildlife Refuge/ City
of Roswell Land. The subunit is 3,572.2 ac (1,445.6 ha) in Chaves
County, New Mexico. This subunit is located approximately 5 mi (8 km)
northeast of Roswell.
One of the largest H. paradoxus populations occurs on the Bitter
Lake National Wildlife Refuge in New Mexico on Federal lands managed by
the Service. Several hundred thousand to a few million plants occur
nearly continuously along the shores and small islands of all the
artificial lakes in the southern unit of the refuge. Also a few small
patches of plants occur on the west side of Bitter Lake Playa and
adjacent springs on Lost River.
This area was known to be occupied at the time of listing and has
been visited by species experts during four or more seasons. These
experts found the site occupied by H. paradoxus on every visit
(Ulibarri 2006a, p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological
Consultants, Inc. 2007a, p. 3). This area is currently occupied and
contains all of the PCEs. However, this area is covered by a final
Comprehensive Conservation Plan (CCP) that manages H. paradoxus in a
manner that provides a conservation benefit to the species; therefore,
we believe this area does not require special management or
protections. As this area does not meet the definition of critical
habitat, the portion of this subunit within Bitter Lake National
Wildlife Refuge has not been included in this critical habitat
proposal. Please see ``Application of Section 3(5)(a) of the Act''
below for additional discussion.
Approximately 92.2 ac (37.3 ha) of land adjacent to the southwest
boundary of Bitter Lake National Wildlife Refuge is owned by the City
of Roswell. There are a few thousand H. paradoxus on this land. It is
located on a large alkaline cienega adjoining the Bitter Lake National
Wildlife Refuge population. This site was known to be occupied at the
time of listing and has been visited by species experts during at least
two seasons. These experts have found it occupied by H. paradoxus on
both visits (Sivinski 2007a, p. 2). This unit is currently occupied
(Blue Earth Ecological Consultants, Inc. 2007c, p. 3), contains all of
the PCEs, and is threatened by water withdrawal, wetland filling and
development, and livestock grazing during H. paradoxus's growing and
flowering season. Therefore, special management or protections may be
required to minimize these threats. At this time, we are not aware of
any management plans that address H. paradoxus in this portion of the
subunit.
Subunit 4b is located at Bitter Lake National Wildlife Refuge
(Refuge) Farm. This subunit is 686.2 ac (277.7 ha) in Chaves County,
New Mexico. The subunit is located approximately 5 mi (8 km) east of
Roswell on the west side of the Pecos River.
This area consists of a few large patches with several thousand
plants on alkaline seeps behind the dikes on the western edge of the
Refuge Farm south of Highway 380. This land is owned and managed by the
Service as a grain farm and feeding area for migratory birds. The
eastern portion of the Refuge Farm is a marshy spring-seep area that
contains a large population of H. paradoxus. The wet soils in this
population are not cultivated.
This site was known to be occupied at the time of listing and has
been visited by species experts during four or more seasons. The
experts found the site occupied by H. paradoxus on every visit
(Ulibarri 2006b, p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological
Consultants, Inc. 2007a, p. 3). This subunit is currently occupied and
contains all of the PCEs. However, this area is covered by a final CCP
that manages H. paradoxus in a manner that provides a conservation
benefit to the species; therefore, we believe this area does not
require special management or protections. As this area does not meet
the definition of critical habitat, it has not been included in the
critical habitat proposal. Please see ``Application of Section 3(5)(a)
of the Act'' below for additional discussion.
Subunit 4c is located at the Oasis Dairy. This subunit is 103.9 ac
(42.0 ha) Chaves County, New Mexico. The subunit is located on the east
side of Roswell, west side of Pecos River Valley, approximately 4.5 mi
(7.2 km) southeast of the Hwy 380 bridge, and beside an unnamed spring
approximately 0.6 mi (1 km) west of the Pecos River and 5.5 mi (8.9 km)
south of Highway 380.
This site contains a very large, dense patch of several thousand H.
paradoxus in a low alkaline sink area approximately 0.5 mi (0.8 km)
west of the Pecos River on private land. It also contains a large patch
with many thousands of H. paradoxus in a low area below a spring, also
on private land. This site was known to be occupied at the time of
listing and has been visited by species experts during at least three
seasons. These experts found the site occupied by H. paradoxus on every
visit (Sivinski 2007a, p. 3). This subunit is currently occupied,
contains all of the PCEs, and is threatened by livestock grazing during
H. paradoxus's growing and flowering season, water withdrawal, and
wetland filling and development. Therefore, special management or
protections may be required to minimize these threats. At this time, we
are not aware of any management plans that address H. paradoxus in this
area.
Subunit 4d is located at Lea Lake at Bottomless Lakes State Park.
This subunit is 19.5 ac (7.9 ha) in Chaves County, New Mexico. It
includes the wet margins of Lea Lake.
This site contains a few thousand plants on the riparian margins of
Lea Lake. This land belongs to the State of New Mexico and is managed
by the New Mexico Parks and Recreation Division. Lea Lake is used as a
picnic area and campground for the State Park. This site was known to
be occupied at the time of listing and has been visited by species
experts during four or more seasons. These experts found the site
occupied by H. paradoxus on every visit (Sivinski 2007a, p. 3). This
subunit is currently occupied (Sivinski 2007a, p. 3; Blue Earth
Ecological Consultants, Inc. 2007a, p. 3), contains all of the PCEs,
and is threatened by encroachment of nonnative vegetation, and
recreational and park maintenance activities. Therefore, special
management or protections may be required to minimize these threats. At
this time, we are not aware of any management plans that address H.
paradoxus in this area.
Subunit 4e is located at Dexter Cienega. This subunit is 41.4 ac
(16.8 ha) in Chaves County, New Mexico. The subunit is located in a
small valley west of the Pecos River, east of the Hagerman Irrigation
Canal, and 2.9 mi (4.7 km) north of Dexter.
This site consists of several thousand plants on private land along
a wide, boggy drainage bottom. This site was known to be occupied at
the time of listing based upon observations from a public right-of-way
by species experts during at least three seasons (Sivinski 2007a, p.
2). This subunit is currently occupied, contains all of the PCEs, and
[[Page 14338]]
is threatened by water withdrawal, wetland filling and development, and
livestock grazing during H. paradoxus's growing and flowering season.
Therefore, special management or protections may be required to
minimize these threats. At this time, we are not aware of any
management plans that address H. paradoxus in this area.
Unit 5: West Texas
This unit is located at Diamond Y Spring. It is 239.7 ac (97.0 ha)
in Pecos County, Texas. This unit is located approximately 12 mi (20
km) north-northwest of Fort Stockton, Texas.
The Nature Conservancy owns a very large area of habitat for H.
paradoxus that contains 100,000 to 1,000,000 plants within its Diamond
Y Spring Preserve near Fort Stockton, Pecos County, Texas. This is the
type locality, or location from which the species was first described.
It consists of a large population with several hundred thousand to one
million plants at The Nature Conservancy's Diamond Y Spring Preserve,
and a small group of plants downstream at a nearby highway right-of-
way, and another small group of plants on adjacent private land. This
site was known to be occupied at the time of listing and has been
visited by species experts during four or more seasons. These experts
found the site occupied by H. paradoxus on every visit (Poole 2006, p.
2). This unit is currently occupied (Blue Earth Ecological Consultants,
Inc. 2007b, p. 3) and contains all of the PCEs. On The Nature
Conservancy land, H. paradoxus is threatened by water withdrawal. The
Nature Conservancy land was purchased to protect this plant and other
rare or endangered aquatic species in the Diamond Y Spring system. This
habitat is managed for conservation of these species (Service 2005, p.
12). Diamond Y Spring Preserve recently expanded from 1,500 to 4,000
acres. On the private land, H. paradoxus has the same threat as above,
plus wetland filling and development, and livestock grazing during H.
paradoxus's growing and flowering season. Therefore, special management
or protections may be required to minimize these threats. At this time,
we are not aware of any completed management plans that address H.
paradoxus in this area.
Table 3 below provides approximate area of lands containing
features essential to the conservation of the species, lands not
included in proposed critical habitat, lands considered for exclusion
from the final critical habitat rule, and reasons why we are not
including those lands in proposed critical habitat or considering those
lands for exclusion from the final critical habitat rule.
Table 3.--Non-inclusions and Proposed Exclusions by Subunit
----------------------------------------------------------------------------------------------------------------
Reason for non-
Subunit/geographical area inclusion or Acres (hectares) Proposed exclusion acres
proposed exclusion (hectares)
----------------------------------------------------------------------------------------------------------------
Subunit 1c. Pueblo of Laguna... Section 4(b)(2) of Undefined.................... Undefined
the Act.
Subunit 4a. Bitter Lake Section 3(5)(a) of 3,480.0 (1,408.3)............ 3,480.0 (1,408.3)
National Wildlife Refuge. the Act.
Subunit 4b. Bitter Lake Section 3(5) (a) 686.2 (277.7)................ 686.2 (277.7)
National Wildlife Refuge Farm. of the Act.
----------------------------------------------------------------------------------------------------------------
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, recent decisions by the 5th and 9th Circuit
Court of Appeals have invalidated this definition (see Gifford Pinchot
Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245
F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and
the statutory provisions of the Act, destruction or adverse
modification is determined on the basis of whether, with implementation
of the proposed Federal action, the affected critical habitat would
remain functional (or retain the current ability for the primary
constituent elements to be functionally established) to serve the
intended conservation role for the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. This is a procedural requirement only.
However, once a proposed species becomes listed, or proposed critical
habitat is designated as final, the full prohibitions of section
7(a)(2) apply to any Federal action. The primary utility of the
conference procedures is to maximize the opportunity for a Federal
agency to adequately consider proposed species and critical habitat and
avoid potential delays in implementing their proposed action because of
the section 7(a)(2) compliance process, should those species be listed
or the critical habitat designated.
Under conference procedures, the Service may provide advisory
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The Service may
conduct either informal or formal conferences. Informal conferences are
typically used if the proposed action is not likely to have any adverse
effects to the proposed species or proposed critical habitat. Formal
conferences are typically used when the Federal agency or the Service
believes the proposed action is likely to cause adverse effects to
proposed species or critical habitat, inclusive of those that may cause
jeopardy or adverse modification.
The results of an informal conference are typically transmitted in
a conference report, while the results of a formal conference are
typically transmitted in a conference opinion. Conference opinions on
proposed critical habitat are
[[Page 14339]]
typically prepared according to 50 CFR 402.14, as if the proposed
critical habitat were designated. We may adopt the conference opinion
as the biological opinion when the critical habitat is designated, if
no substantial new information or changes in the action alter the
content of the opinion (see 50 CFR 402.10(d)). As noted above, any
conservation recommendations in a conference report or opinion are
strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
compliance with the requirements of section 7(a)(2) will be documented
through the Service's issuance of: (1) A concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat; or (2) a biological opinion for Federal
actions that may affect, and are likely to adversely affect, listed
species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy to a listed species or the destruction or
adverse modification of critical habitat, we also provide reasonable
and prudent alternatives to the project, if any are identifiable.
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as
alternative actions identified during consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid
jeopardy to the listed species or destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where a new
species is listed or critical habitat is subsequently designated that
may be affected and the Federal agency has retained discretionary
involvement or control over the action or such discretionary
involvement or control is authorized by law. Consequently, some Federal
agencies may request reinitiation of consultation with us on actions
for which formal consultation has been completed, if those actions may
affect subsequently listed species or designated critical habitat or
adversely modify or destroy proposed critical habitat.
Federal activities that may affect H. paradoxus or its designated
critical habitat will require section 7 consultation under the Act.
Activities on State, Tribal, local or private lands requiring a Federal
permit (such as a permit from the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act or a permit under section
10(a)(1)(B) of the Act from the Service) or involving some other
Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) will also be subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat, and actions on State, Tribal, local or private lands
that are not federally funded, authorized, or permitted, do not require
section 7 consultations.
Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to Helianthus paradoxus and Its Critical
Habitat
Jeopardy Standard
The Service has applied an analytical framework for H. paradoxus
jeopardy analyses that relies heavily on the importance of core area
populations to the survival and recovery of H. paradoxus. The section
7(a)(2) analysis is focused not only on these populations but also on
the habitat conditions necessary to support them.
The jeopardy analysis usually expresses the survival and recovery
needs of H. paradoxus in a qualitative fashion without making
distinctions between what is necessary for survival and what is
necessary for recovery. Generally, if a proposed Federal action is
incompatible with the viability of the affected core area
population(s), inclusive of associated habitat conditions, a jeopardy
finding is warranted because of the relationship of each core area
population to the survival and recovery of the species as a whole.
Adverse Modification Standard
For the reasons described in the Director's December 9, 2004
memorandum, the key factor related to the adverse modification
determination is whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional (or
retain the current ability for the primary constituent elements to be
functionally established) to serve the intended conservation role for
the species. Generally, the conservation role of H. paradoxus critical
habitat units is to support viable core area populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species.
Activities that may destroy or adversely modify critical habitat
are those that alter the PCEs to an extent that the conservation value
of critical habitat for the species is appreciably reduced. Activities
that, when carried out, funded, or authorized by a Federal agency, may
affect critical habitat and therefore should result in consultation for
H. paradoxus include, but are not limited to:
(1) Projects that physically alter permanently saturated saline or
alkaline soils (e.g., salt deposits or crusts present) or result in the
loss and degradation of H. paradoxus habitat. Such activities could
include, but are not limited to, drying of wetlands from groundwater
depletion, alteration of wetlands (e.g., wetland fills, draining,
impoundment wetland filling and development), livestock management not
compatible with H. paradoxus's physiology, clearing, introducing or
encouraging the spread of nonnative plants, and recreational use (such
as the use of off-road vehicles);
(2) Removing, thinning, or destroying H. paradoxus plants. This may
occur through plowing, grading, wetland filling and development, road
building, burning, mechanical weed control, herbicide application, and
activities associated with firefighting (e.g., staging areas, surface
disturbance); and
(3) Activities that appreciably diminish habitat value or quality
through indirect effects (e.g., encroachment of nonnative plants or
animals, or fragmentation).
We consider all of the units proposed as critical habitat, as well
as those that have been proposed for exclusion or not included due to
special management, to contain features essential to the conservation
of H. paradoxus. All units
[[Page 14340]]
are within the geographic range of the species, all except two were
known at the time of listing to be occupied by the species (based on
observations made within the last 14 seasons (Ulibarri 2006; Kargas
2007; Sivinski 2007)), and are likely to be used by H. paradoxus.
Federal agencies already consult with us on activities in areas
currently occupied by H. paradoxus, or if the species may be affected
by the action, to ensure that their actions do not jeopardize the
continued existence of H. paradoxus.
Application of Section 3(5)(A) of the Act
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographic area occupied by the species on which are
found those physical and biological features (i) essential to the
conservation of the species, and (ii) which may require special
management considerations or protection. Therefore, areas known at the
time of listing to be occupied by the species that do not contain the
features essential to the conservation of the species are not, by
definition, critical habitat. Similarly, areas known at the time of
listing to be occupied by the species that require no special
management or protection also are not, by definition, critical habitat.
There are multiple ways to provide management for species habitat.
Statutory and regulatory frameworks that exist at a local level can
provide such protection and management, as can lack of pressure for
change, such as areas too remote for anthropogenic disturbance.
Finally, State, local, or private management plans, as well as
management under Federal agencies' jurisdictions, can provide
protection and management to avoid the need for designation of critical
habitat. When we consider a plan to determine its adequacy in
protecting habitat, we consider whether the plan, as a whole, will
provide the same level of protection that designation of critical
habitat would provide. The plan need not lead to exactly the same
result as a designation in every individual application, as long as the
protection it provides is equivalent overall. In making this
determination, we examine whether the plan provides management,
protection, or enhancement of the PCEs that is at least equivalent to
that provided by a critical habitat designation, and whether there is a
reasonable expectation that the management, protection, or enhancement
actions will continue into the foreseeable future. Each review is
particular to the species and the plan, and some plans may be adequate
for some species and inadequate for others.
Within the areas known to be occupied by H. paradoxus at the time
of listing and containing sufficient PCEs to support H. paradoxus's
life processes, we have identified the Bitter Lake National Wildlife
Refuge (portion of subunit 4a) and the associated Refuge Farm (subunit
4b) as areas that do not require special management or protections. Our
preliminary analysis of section 3(5)(a) of the Act and special
management on these Refuge lands follows.
Bitter Lake National Wildlife Refuge: Lands within the Service's
Bitter Lake National Wildlife Refuge and the Refuge Farm are considered
to be occupied and contain the necessary features that are essential
for the conservation of H. paradoxus. Below, we provide general
background information on the Refuge and CCP, followed by an analysis
pursuant to section 3(5)(a) of the Act of the current management
provisions on the Refuge.
The Bitter Lake National Wildlife Refuge was established on October
8, 1937, by Executive Order 7724 ``as a refuge and breeding ground for
migratory birds and other wildlife.'' The Refuge Recreation Act (16
U.S.C. 460k et seq.) identifies the refuge as being suitable for
incidental fish and wildlife-oriented recreational development, the
protection of natural resources, and the conservation of endangered
species or threatened species. The Wilderness Act of 1964 (16 U.S.C.
1131*1136) directs the Service to ``maintain wilderness as a naturally
functioning ecosystem'' on portions of the Refuge. While the Refuge was
originally established to save wetlands vital to the perpetuation of
migratory birds, the isolated gypsum springs, seeps, and associated
wetlands protected by the Refuge have been recognized as providing the
last known habitats in the world for several unique species. Management
emphasis of the Refuge is placed on the protection and enhancement of
habitat for endangered species and Federal candidate species,
maintenance and improvement of wintering crane and waterfowl habitat,
and monitoring and maintenance of natural ecosystem values.
The Refuge sits at a juncture between the Roswell Artesian
Groundwater Basin and the Pecos River. These two systems and their
interactions account for the diversity of water resources on the
Refuge, including sinkholes, springs, wetlands, oxbow lakes, and
riverine habitats. The federally reserved water right for Bitter Lake
National Wildlife Refuge has been signed by the State of New Mexico,
but awaits final approval by the Federal government, a procedural
process. The Refuge is currently in negotiations with the New Mexico
Office of the State Engineer, a State agency responsible for
administering New Mexico's water resources, to quantify these reserved
rights. This water right allows for an in-stream flow in Bitter Creek
and allows the Refuge to manage impounded springs for the benefit of
many species, including H. paradoxus. This water right protects against
the threat of a future water user purchasing a Pecos River Basin water
right and moving the use to a location that would be detrimental to the
Refuge's ability to manage for the conservation of H. paradoxus. While
the water right does not specifically protect water for the purposes of
H. paradoxus conservation, it combines with management under the
Refuge's CCP (discussed below) to remove the threat of water withdrawal
on Refuge lands.
The National Wildlife Refuge System Improvement Act of 1997 (Pub.
L. 105-57) (Refuge Improvement Act) establishes a conservation mission
for refuges, gives policy direction to the Secretary of the Interior
and refuge managers, and contains other provisions such as the
requirement to integrate scientific principles into the management of
the Refuges. According to section 7(e)(1)(E) of the Refuge Improvement
Act, all lands of the Refuge System are to be managed in accordance
with an approved CCP that will guide management decisions and set forth
strategies for achieving refuge purposes. In general, the purpose of
the CCP is to provide long-range guidance for the management of
National Wildlife Refuges. The Refuge Improvement Act requires all
refuges to have a CCP and provides the following legislative mandates
to guide the development of the CCP: (1) Wildlife has first priority in
the management of refuges; (2) wildlife-dependent recreation, including
hunting, fishing, wildlife observation, wildlife photography,
environmental education, and environmental interpretation, are the
priority public uses of the refuge system, and shall be allowed when
compatible with the refuge purpose; and (3) other uses have lower
priority in the refuge system and are only allowed if not in conflict
with any of the priority uses and determined appropriate and compatible
with the refuge purpose.
The CCP must also be revised if the Secretary determines that
conditions that affect the refuge or planning unit have changed
significantly. In other words, a CCP must be followed once it is
approved, and regularly updated in response to environmental changes or
new scientific information.
[[Page 14341]]
The Bitter Lake National Wildlife Refuge has a final CCP that was
approved in September 1998. The CCP serves as a management tool to be
used by the Refuge staff and its partners in the preservation and
restoration of the ecosystem's natural resources. The plan is intended
to guide management decisions for 15 years after the plan is made
final, and sets forth strategies for achieving Refuge goals and
objectives within that timeframe. In 2013, the plan will not expire,
but will undergo review, and any needed revisions will be incorporated
at that time. Key goals of the CCP related to H. paradoxus include the
following: (1) To restore, enhance, and protect the natural diversity
on the Refuge including threatened and endangered species by (a)
appropriate management of habitat and wildlife resources on refuge
lands and (b) strengthening existing and establishing new cooperative
efforts with public and private stakeholders and partners; and (2) To
restore and maintain selected portions of a hydrological system that
more closely mimics the natural processes along the reach of the Pecos
River adjacent to the Refuge by (a) restoration of the river channel,
as well as restoration of threatened, endangered, and special concern
species, and (b) control of exotic species and managment of trust
responsibilities for maintenance of plant and animal communities and to
satisfy traditional recreational demands (Service 1998, pp. 5, 46-52).
Specific objectives related to these goals include: (1) The restoration
of populations of aquatic species designated as endangered, threatened,
or of special concern to a sustainable level (H. paradoxus is
specifically mentioned in this goal); and (2) following existing
recovery plan objectives to monitor and study threatened or endangered
species, their habitat requirements, exotic species encroachment, and
human-induced impacts to prevent further decline and loss (Service
1998, pp. 49-52).
In summary, we believe that the Refuge lands are being adequately
protected and managed for the conservation of H. paradoxus and that
special management consideration or protections are not required.
Therefore, we have determined that the Refuge lands do not meet the
definition of critical habitat under section 3(5)(a) of the Act, and we
are not proposing to designate critical habitat for H. paradoxus within
Bitter Lake National Wildlife Refuge or the Refuge farm.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude an area
from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the Congressional record is clear that the Secretary is
afforded broad discretion regarding which factor(s) to use and how much
weight to give to any factor.
Under section 4(b)(2), in considering whether to exclude a
particular area from the designation, we must identify the benefits of
including the area in the designation, identify the benefits of
excluding the area from the designation, and determine whether the
benefits of exclusion outweigh the benefits of inclusion. If an
exclusion is contemplated, then we must determine whether excluding the
area would result in the extinction of the species. In the following
sections, we address a number of general issues that are relevant to
the exclusions we are considering. In addition, the Service is
conducting an economic analysis of the impacts of the proposed critical
habitat designation and related factors, which will be available for
public review and comment. Based on public comment on that document,
the proposed designation itself, and the information in the final
economic analysis, additional areas beyond those identified in this
assessment may be excluded from final critical habitat by the Secretary
under the provisions of section 4(b)(2) of the Act. This is provided
for in the Act and in our implementing regulations at 50 CFR 424.19.
Benefits of Designating Critical Habitat
Educational Benefits
A benefit of including lands in critical habitat is that the
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and promote conservation efforts by
other parties by clearly delineating areas of high conservation value
for H. paradoxus. In general, the educational benefit of a critical
habitat designation always exists, although in some cases it may be
redundant with other educational effects. For example, Habitat
Conservation Plans (HCPs) have significant public input and may largely
duplicate the educational benefit of a critical habitat designation.
This benefit is closely related to a second, more indirect benefit:
that the designation of critical habitat would inform State agencies
and local governments about areas that could be conserved under State
laws or local ordinances.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without the cooperation of non-Federal landowners. More than 60 percent
of the United States is privately owned (National Wilderness Institute
1995), and at least 80 percent of endangered or threatened species
occur either partially or solely on private lands (Crouse et al. 2002).
Stein et al. (1995) found that only about 12 percent of listed species
were found almost exclusively on Federal lands (90 to 100 percent of
their known occurrences restricted to Federal lands) and that 50
percent of federally listed species are not known to occur on Federal
lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-Federal landowners
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building
partnerships and promoting voluntary cooperation of landowners is
essential to understanding the status of species on non-Federal lands
and is necessary to implement recovery actions such as reintroducing
listed species, habitat restoration, and habitat protection.
Many non-Federal landowners derive satisfaction in contributing to
endangered species' recovery. The Service promotes these private-sector
efforts through the Department of the Interior's Cooperative
Conservation philosophy. This philosophy is evident in Service programs
such as HCPs, Safe Harbor Agreements, Candidate Conservation
Agreements, Candidate Conservation Agreements with Assurances, and
conservation challenge cost-share. Many private landowners, however,
are wary of the possible consequences of encouraging endangered species
to their property, and there is mounting evidence that some regulatory
actions by the Federal government, while well-intentioned and required
by law, can (under certain
[[Page 14342]]
circumstances) have unintended negative consequences for the
conservation of species on private lands (Wilcove et al. 1996; Bean
2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al.
2003). Many landowners fear a decline in their property value due to
real or perceived restrictions on land-use options where threatened or
endangered species are found. Consequently, harboring endangered
species is viewed by many landowners as a liability, resulting in anti-
conservation incentives because maintaining habitats that harbor
endangered species represents a risk to future economic opportunities
(Main et al. 1999; Brook et al. 2003).
The Department of the Interior's Cooperative Conservation
philosophy is the foundation for developing the tools of conservation.
These tools include conservation grants, funding for Partners for Fish
and Wildlife Program, the Coastal Program, and cooperative-conservation
challenge cost-share grants. Our Private Stewardship Grant program and
Landowner Incentive Program provide assistance to private landowners in
their voluntary efforts to protect threatened, imperiled, and
endangered species, including the development and implementation of
Habitat Conservation Plans (HCPs). Conservation agreements with non-
Federal landowners (HCPs, contractual conservation agreements,
easements, and stakeholder-negotiated State regulations) enhance
species conservation by extending species protections beyond those
available through section 7 consultations. In the past decade, we have
encouraged non-Federal landowners to enter into conservation
agreements, based on a view that we can achieve greater species
conservation on non-Federal land through such partnerships than we can
through coercive methods. We invite discussion with all landowners
within the proposed critical habitat that have an interest in
developing conservation strategies that we would evaluate to determine
if they provide a greater benefit to H. paradoxus than could be
achieved through the final designation of critical habitat.
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7 of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands.
According to some researchers, the designation of critical habitat on
private lands significantly reduces the likelihood that landowners will
support and carry out conservation actions (Main et al. 1999; Bean
2002; Brook et al. 2003). The magnitude of this negative outcome is
greatly amplified in situations where active management measures (such
as reintroduction, fire management, control of invasive species) are
necessary for species conservation (Bean 2002). The Service believes
that the judicious use of excluding specific areas of non-federally
owned lands from critical habitat designations can contribute to
species recovery and provide a superior level of conservation than
critical habitat alone.
General Principles of Section 7 Consultations Used in the 4(b)(2)
Balancing Process
The most direct, and potentially largest, regulatory benefit of
critical habitat is that federally authorized, funded, or carried out
activities require consultation under section 7 of the Act to ensure
that they are not likely to destroy or adversely modify critical
habitat. There are two limitations to this regulatory effect. First, it
only applies where there is a Federal nexus--if there is no Federal
nexus, designation itself does not restrict actions that destroy or
adversely modify critical habitat. Second, it only limits destruction
or adverse modification. By its nature, the prohibition on adverse
modification is designed to ensure those areas that contain the
physical and biological features essential to the conservation of the
species or unoccupied areas that are essential to the conservation of
the species are not eroded. Critical habitat designation alone,
however, does not require specific steps toward recovery.
Once consultation under section 7 of the Act is triggered, the
process may conclude informally when the Service concurs in writing
that the proposed Federal action is not likely to adversely affect the
listed species or its critical habitat. However, if the Service
determines through informal consultation that adverse impacts are
likely to occur, then formal consultation would be initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to jeopardize the
continued existence of a listed species or result in destruction or
adverse modification of critical habitat, with separate analyses being
made under both the jeopardy and the adverse modification standards.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to primary constituent elements, but it would not contain any mandatory
reasonable and prudent measures or terms and conditions. Mandatory
measures and terms and conditions to implement such measures are only
specified when the proposed action would result in the incidental take
of a listed animal. Reasonable and prudent alternatives to the proposed
Federal action would only be suggested when the biological opinion
results in a jeopardy or adverse modification conclusion.
We also note that for 30 years prior to the Ninth Circuit Court's
decision in Gifford Pinchot, the Service combined the jeopardy standard
with the standard for destruction or adverse modification of critical
habitat when evaluating Federal actions that affect currently-occupied
critical habitat. The Court ruled that the two standards are distinct
and that adverse modification evaluations require consideration of
impacts on the recovery of species. Thus, under the Gifford Pinchot
decision, critical habitat designations may provide greater benefits to
the recovery of a species. However, we believe the conservation
achieved through implementing habitat conservation plans (HCPs) or
other habitat management plans is typically greater than would be
achieved through multiple site-by-site, project-by-project, section 7
consultations involving consideration of critical habitat. Management
plans commit resources to implement long-term management and protection
to particular habitat for at least one and possibly other listed or
sensitive species. Section 7 consultations only commit Federal agencies
to prevent adverse modification to critical habitat caused by the
particular project, and agencies do not have to commit to provide
conservation or long-term benefits to areas not affected by the
proposed project. Thus, any HCP or management plan that considers
enhancement or recovery as the management standard will often provide
as much or more benefit than a consultation for critical habitat
designation conducted under the standards required by the Ninth Circuit
in the Gifford Pinchot decision.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat in that it provides the framework for the
consultation process.
[[Page 14343]]
Benefits of Excluding Lands With Approved Management Plans From
Critical Habitat
The benefits of excluding lands with approved management plans from
critical habitat designation include relieving landowners, communities,
and counties of any additional regulatory burden that might be imposed
by a critical habitat designation. Most conservation plans take many
years to develop and, upon completion, are consistent with the recovery
objectives for listed species that are covered within the plan area.
Many conservation plans also provide conservation benefits to unlisted
sensitive species. Imposing an additional regulatory review as a result
of the designation of critical habitat may undermine these conservation
efforts and partnerships designed to proactively protect species to
ensure that listing under the Act will not be necessary. Designation of
critical habitat within the boundaries of management plans that provide
conservation measures for a species could be viewed as a disincentive
to those entities currently developing these plans or contemplating
them in the future, because one of the incentives for undertaking
conservation is greater ease of permitting where listed species are
affected. Addition of a new regulatory requirement would remove a
significant incentive for undertaking the time and expense of
management planning. In fact, designating critical habitat in areas
covered by a pending conservation plan could result in the loss of some
species' benefits if participants abandon the planning process, in part
because of the strength of the perceived additional regulatory
compliance that such designation would entail. The time and cost of
regulatory compliance for a critical habitat designation do not have to
be quantified for them to be perceived as additional Federal regulatory
burden sufficient to discourage continued participation in plans
targeting listed species' conservation.
A related benefit of excluding lands within management plans from
critical habitat designation is the unhindered, continued ability to
seek new partnerships with future plan participants including States,
counties, local jurisdictions, conservation organizations, and private
landowners, which together can implement conservation actions that we
would be unable to accomplish otherwise. If lands within approved
management plan areas are designated as critical habitat, it would
likely have a negative effect on our ability to establish new
partnerships to develop these plans, particularly plans that address
landscape-level conservation of species and habitats. By preemptively
excluding these lands, we preserve our current partnerships and
encourage additional conservation actions in the future.
Relationship of Critical Habitat to Tribal Lands
In accordance with the Secretarial Order 3206, ``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and
the relevant provision of the Departmental Manual of the Department of
the Interior (512 DM 2), we believe that fish, wildlife, and other
natural resources on tribal lands are better managed under tribal
authorities, policies, and programs than through Federal regulation
wherever possible and practicable. Based on this philosophy, we believe
that, in many cases, designation of tribal lands as critical habitat
provides very little additional benefit to threatened and endangered
species. Conversely, such designation is often viewed by tribes as an
unwanted intrusion into tribal self governance, thus compromising the
government-to-government relationship essential to achieving our mutual
goals of managing for healthy ecosystems upon which the viability of
threatened and endangered species populations depend.
In our critical habitat designations, we use the provision outlined
in section 4(b)(2) of the Act to evaluate those specific areas that
contain the features essential to the conservation of the species to
determine which areas to propose and subsequently finalize (i.e.,
designate) as critical habitat. On the basis of our preliminary
evaluation, discussed in detail below, we are proposing to exclude
certain lands from the final designation of critical habitat for H.
paradoxus. In the development of our final designation, we will
incorporate or address any new information received during the public
comment periods, and from our evaluation of the potential economic and
or other relevant impacts of this proposal. As such, we may revise this
proposal to address new information and/or exclude additional areas
that may warrant exclusion pursuant to section 4(b)(2) of the Act.
Pueblo of Acoma
The Pueblo of Acoma has lands containing features essential to the
conservation of H. paradoxus. In making our decision on the final
critical habitat designation with regard to these lands, we will be
considering several factors, including our relationship with the Pueblo
and whether a management plan has been developed for the conservation
of H. paradoxus on their lands. Currently, we are not aware of a
management plan for H. paradoxus. As noted above, if the Pueblo
requests, we will provide technical assistance on management of the
species and the development of a management plan. We also note that
lands of the Pueblo of Acoma could be considered for exclusion in the
final determination or designation under section 4(b)(2) of the Act and
that any exclusions made in the final determination or designation will
be the result of an analysis of any new information received.
Pueblo of Laguna
The Pueblo of Laguna has lands containing features essential to the
conservation of H. paradoxus. In making our final decision with regard
to Pueblo lands, we will consider several factors, including our
relationship with the Pueblo and whether a management plan has been
developed for the conservation of H. paradoxus on their lands. On
August 2, 2004, in a letter to the New Mexico Ecological Services Field
Office from Pueblo of Laguna Governor Johnson, we learned that the
Pueblo has developed a draft management plan for H. paradoxus and has
been managing Pueblo land consistent with the protection and recovery
of the sunflower. We received the Pecos Sunflower (Helianthus
paradoxus) Draft Management Plan, Pueblo of Laguna, 2007, for review on
February 8, 2007, and we are working with the Pueblo on finalizing the
management plan for their lands. On the basis of our partnership with
the Pueblo, and in anticipation of completion of a management plan, the
populations of H. paradoxus associated with spring habitats along the
Rio San Jose belonging to the Pueblo of Laguna may be excluded from
final critical habitat designation pursuant to section 4(b)(2) of the
Act (see ``Relationship of Critical Habitat to Tribal Lands'' section
below for additional information).
Economic Analysis
An analysis of the economic impacts of proposing critical habitat
for H. paradoxus is being prepared. We will announce the availability
of the draft economic analysis as soon as it is completed, at which
time we will seek public review and comment. At that time, copies of
the draft economic
[[Page 14344]]
analysis will be available for downloading from the Internet at http://www.fws.gov/southwest/es/newmexico/
or by contacting the New Mexico
Ecological Services Field Office directly (see ADDRESSES).
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of such review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will send copies of this proposed
rule to these peer reviewers immediately following publication in the
Federal Register. We will invite these peer reviewers to comment during
the public comment period on the specific assumptions and conclusions
regarding the proposed designation of critical habitat.
We will consider all comments and information received during the
comment period on this proposed rule during preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made in writing at
least 15 days prior to the close of the public comment period (see
DATES). We will schedule public hearings on this proposal, if any are
requested, and announce the dates, times, and places of those hearings
in the Federal Register and local newspapers at least 15 days prior to
the first hearing.
Clarity of the Rule
Executive Order 12866 (Regulatory Planning and Review) requires
each agency to write regulations and notices that are easy to
understand. We invite your comments on how to make this proposed rule
easier to understand, including answers to questions such as the
following: (1) Are the requirements in the proposed rule clearly
stated? (2) Does the proposed rule contain technical jargon that
interferes with the clarity? (3) Does the format of the proposed rule
(grouping and order of the sections, use of headings, paragraphing, and
so forth) aid or reduce its clarity? (4) Is the description of the
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful
in understanding the proposed rule? (5) What else could we do to make
this proposed rule easier to understand?
Send a copy of any comments on how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: Exsec@ios.doi.gov.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but it is not anticipated to have an annual effect on the economy of
$100 million or more or affect the economy in a material way. Due to
the tight timeline for publication in the Federal Register, the Office
of Management and Budget (OMB) has not formally reviewed this rule. We
are preparing a draft economic analysis of this proposed action, which
will be available for public comment, to determine the economic
consequences of designating the specific area as critical habitat. This
economic analysis also will be used to determine compliance with
Executive Order 12866, Regulatory Flexibility Act, Small Business
Regulatory Enforcement Fairness Act, Executive Order 12630, Executive
Order 13211, and Executive Order 12875.
Further, Executive Order 12866 directs Federal agencies
promulgating regulations to evaluate regulatory alternatives (OMB,
Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it
has been determined that the Federal regulatory action is appropriate,
then the agency will need to consider alternative regulatory
approaches. Since the determination of critical habitat is a statutory
requirement under the Act (16 U.S.C. 1531 et seq.), we must then
evaluate alternative regulatory approaches, where feasible, when
promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
When it is completed, the draft economic analysis will be made
available through an announcement in the Federal Register and in local
newspapers. At that time, we will seek public review and comment on the
draft economic analysis. The draft economic analysis will also be
available on our Web site at http://www.fws.gov/southwest/es/newmexico/
or by contacting the New Mexico Ecological Services Field Office
directly (see ADDRESSES).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the Regulatory
Flexibility Act (RFA) to require Federal agencies to provide a
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities.
At this time, the Service lacks the available economic information
necessary to provide an adequate factual basis for the required RFA
finding. Therefore, the RFA finding is deferred until completion of the
draft economic analysis prepared under section 4(b)(2) of the Act and
E.O. 12866. This draft economic analysis will provide the required
factual basis for the RFA finding. Upon completion of the draft
economic analysis, the Service will publish a notice of availability of
the draft economic analysis of the proposed designation and reopen the
public comment period for the proposed designations. The Service will
include with the notice of availability, as appropriate, an initial
regulatory flexibility analysis or a certification that the rule will
not have a significant economic impact on a substantial number of small
entities accompanied by the factual basis for that determination. The
Service has
[[Page 14345]]
concluded that deferring the RFA finding until completion of the draft
economic analysis is necessary to meet the purposes and requirements of
the RFA. Deferring the RFA finding in this manner will ensure that the
Service makes a sufficiently informed determination based on adequate
economic information and provides the necessary opportunity for public
comment.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) We recognize that some areas within the proposed critical
habitat designation are within the City of Santa Rosa. As we conduct
our draft economic analysis, we will complete a comprehensive
assessment of the effect of designating critical habitat on these small
governmental jurisdictions.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. Executive Order 13211 requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. Although this proposed rule to designate critical
habitat for H. paradoxus is a significant regulatory action under
Executive Order 12866 in that it may raise novel legal and policy
issues, it is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required. However,
we will further evaluate this issue as we conduct our economic analysis
and review and revise this assessment as warranted.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for H. paradoxus in a takings implications
assessment. The takings implications assessment concludes that this
designation of critical habitat for H. paradoxus does not pose
significant takings implications. However, we will further evaluate
this issue as we conduct our economic analysis and review and revise
this assessment as warranted.
Federalism
In accordance with Executive Order 13132 (Federalism), the rule
does not have significant Federalism effects. A Federalism assessment
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of, this proposed critical habitat designation
with appropriate State resource agencies in New Mexico and Texas. The
designation of critical habitat in areas currently occupied by H.
paradoxus imposes no additional restrictions to those currently in
place and, therefore, has little incremental impact on State and local
governments and their activities. The designation may have some benefit
to these governments in that the areas that contain the features
essential to the conservation of the species are more clearly defined,
and the primary constituent elements of the habitat necessary to the
conservation of the species are specifically identified. While making
this definition and identification does not alter where and what
federally sponsored activities may occur, it may assist these local
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We propose designating critical
habitat in accordance with the provisions of the Endangered Species
Act. This proposed rule uses standard property descriptions and
identifies the primary constituent elements within the designated areas
to assist the public in understanding the habitat needs of H.
paradoxus.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
[[Page 14346]]
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et. seq.)
It is our position that, outside the Jurisdiction of the Tenth
Federal Circuit, we do not need to prepare environmental analyses as
defined by NEPA in connection with designating critical habitat under
the Endangered Species Act of 1973, as amended. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This assertion was upheld by the Ninth
Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995),
cert. denied 516 U.S. 1042 (1996)). However, when the range of the
species includes States within the Tenth Circuit, such as that of H.
paradoxus, under the Tenth Circuit ruling in Catron County Board of
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th
Cir. 1996), we will undertake a NEPA analysis for critical habitat
designation and notify the public of the availability of the draft
environmental assessment for this proposal when it is completed.
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, and the Department
of 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. If requested by the Pueblo of
Acoma, we will provide technical assistance on management of the
species and the development of a management plan. We will also continue
to work with the Pueblo of Laguna on the development of a final
management plan for their lands. We note that lands of the Pueblos of
Acoma and Laguna may be considered for exclusion in the final
designation or determination pursuant to section 4(b)(2) of the Act and
that any exclusions made in the final designation or determination will
be the result of an analysis of any new information received.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, New Mexico Ecological
Services Field Office (see ADDRESSES).
Author(s)
The primary authors of this package are staff of the New Mexico
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.12(h), revise the entry for ``Helianthus paradoxus''
under ``FLOWERING PLANTS'' in the List of Threatened and Endangered
Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When Critical Special rules
Scientific name Common name listed habitat
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS
* * * * * * *
Helianthus paradoxus............. Pecos (=puzzle, U.S.A. (NM, TX).............. Asteraceae............... T................ 667 17.96(a) NA
=paradox) sunflower.
* * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.96(a), add an entry for ``Helianthus paradoxus
(Pecos sunflower)'' in alphabetical order under Family Asteraceae to
read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Asteraceae: Helianthus paradoxus (Pecos sunflower)
(1) Critical habitat units are depicted for Chaves, Cibola,
Guadalupe, Socorro, and Valencia Counties, New Mexico, and for Pecos
County, Texas, on the maps below.
(2) Within critical habitat units, the primary constituent elements
of critical habitat for the Helianthus paradoxus are the desert wetland
or riparian habitat components that provide:
(i) Silty clay or fine sand soils that contain high organic
content, are saline or alkaline, are permanently saturated within the
root zone (top 50 cm (19.7 in) of the soil profile), and have salinity
levels ranging from 10 to 40 parts per thousand; and
(ii) A low proportion (less than 10 percent) of woody shrub or
canopy cover directly around the plant.
(3) Critical habitat does not include manmade structures, such as
buildings, aqueducts, airports, and roads, and the land on which such
structures are located, existing on the effective date of this rule and
not containing one or more of the primary constituent elements.
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS 1:24,0000 maps, and critical habitat units
were then mapped using Universal Transverse Mercator (UTM) coordinates.
(5) Note: Index map of Pecos sunflower critical habitat units (map
1) follows:
BILLING CODE 4310-55-P
[[Page 14347]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.000
BILLING CODE 4310-55-C
[[Page 14348]]
(6) Unit 1: West-Central New Mexico, Cibola and Valencia Counties,
New Mexico.
(i) Subunit 1a for Helianthus paradoxus, Rancho del Padre Spring
Cienega, Cibola County, New Mexico. From USGS 1:24,000 quadrangle
Grants SE, lands bounded by the following UTM NAD83 coordinates (meters
E, meters N): 243145, 3889604; 243025, 3889705; 243053, 3889708;
243097, 3889700; 243141, 3889702; 243201, 3889703; 243246, 3889703;
243286, 3889703; 243342, 3889708; 243377, 3889712; 243402, 3889704;
243441, 3889707; 243441, 3889707; 243472, 3889710; 243490, 3889709;
243518, 3889707; 243577, 3889698; 243626, 3889686; 243657, 3889669;
243683, 3889642; 243706, 3889616; 243729, 3889590; 243765, 3889564;
243794, 3889545; 243826, 3889535; 243863, 3889518; 243888, 3889519;
243932, 3889513; 243966, 3889506; 243991, 3889508; 244056, 3889504;
244120, 3889510; 244157, 3889513; 244196, 3889517; 244242, 3889530;
244282, 3889546; 244325, 3889560; 244359, 3889575; 244388, 3889592;
244423, 3889592; 244410, 3889576; 244393, 3889566; 244362, 3889539;
244322, 3889506; 244278, 3889486; 244244, 3889470; 244209, 3889467;
244155, 3889466; 244126, 3889461; 244088, 3889450; 244057, 3889453;
244019, 3889457; 243982, 3889456; 243923, 3889459; 243879, 3889459;
243824, 3889470; 243779, 3889490; 243752, 3889510; 243726, 3889522;
243689, 3889537; 243653, 3889566; 243604, 3889594; 243573, 3889612;
243515, 3889637; 243471, 3889643; 243427, 3889641; 243376, 3889630;
243325, 3889625; 243265, 3889619; 243224, 3889611; 243169, 3889606;
thence returning to 243145, 3889604.
(ii) Subunit 1b for Helianthus paradoxus, Grants Salt Flat
Wetlands, Cibola County, New Mexico. From USGS 1:24,000 quadrangle
Grants, lands bounded by the following UTM NAD83 coordinates (meters E,
meters N): 241567, 3891788; 241548, 3891788; 241521, 3891788; 241509,
3891801; 241493, 3891806; 241482, 3891812; 241460, 3891822; 241448,
3891840; 241440, 3891865; 241445, 3891886; 241449, 3891910; 241445,
3891930; 241456, 3891947; 241463, 3891957; 241484, 3891960; 241499,
3891965; 241517, 3891962; 241531, 3891941; 241534, 3891918; 241543,
3891893; 241551, 3891866; 241560, 3891846; 241568, 3891825; 241582,
3891801; 241602, 3891789; 241636, 3891777; 241670, 3891770; 241691,
3891774; 241714, 3891774; 241733, 3891785; 241751, 3891795; 241751,
3891785; 241762, 3891765; 241775, 3891750; 241798, 3891741; 241812,
3891747; 241825, 3891755; 241850, 3891755; 241876, 3891751; 241901,
3891738; 241917, 3891731; 241934, 3891717; 241942, 3891694; 241952,
3891679; 241959, 3891662; 241979, 3891648; 242003, 3891648; 242025,
3891648; 242045, 3891648; 242071, 3891659; 242100, 3891656; 242122,
3891641; 242135, 3891629; 242168, 3891604; 242175, 3891585; 242186,
3891578; 242196, 3891570; 242215, 3891570; 242234, 3891570; 242252,
3891554; 242288, 3891527; 242295, 3891507; 242295, 3891482; 242288,
3891465; 242283, 3891452; 242239, 3891452; 242191, 3891452; 242178,
3891441; 242171, 3891432; 242169, 3891409; 242172, 3891391; 242172,
3891378; 242171, 3891358; 242169, 3891344; 242165, 3891323; 242155,
3891303; 242154, 3891285; 242142, 3891252; 242141, 3891232; 242128,
3891205; 242114, 3891194; 242097, 3891188; 242080, 3891180; 242062,
3891179; 242052, 3891190; 242040, 3891204; 242023, 3891225; 241999,
3891240; 241984, 3891255; 241975, 3891262; 241971, 3891278; 241972,
3891293; 241964, 3891308; 241944, 3891322; 241911, 3891325; 241879,
3891325; 241836, 3891326; 241811, 3891335; 241785, 3891350; 241768,
3891359; 241755, 3891360; 241728, 3891356; 241706, 3891357; 241680,
3891357; 241666, 3891373; 241662, 3891403; 241664, 3891455; 241666,
3891502; 241666, 3891544; 241657, 3891574; 241650, 3891611; 241612,
3891644; 241567, 3891688; thence returning to 241567, 3891788.
(iii) Note: Map of Subunits 1a and 1b for Helianthus paradoxus (Map
2) follows:
BILLING CODE 4310-55-C
[[Page 14349]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.001
[[Page 14350]]
(iv) Subunit 1c for Helianthus paradoxus, Pueblo of Laguna,
Valencia County, New Mexico. From USGS 1:24,000 quadrangles Correo and
South Garcia, springs along the Rio San Jose south of Interstate 40,
and the areas immediately surrounding these springs.
(v) Note: Map of Subunit 1b (West-Central New Mexico--Pueblo of
Laguna Subunit) of Helianthus paradoxus critical habitat (Map 3)
follows:
[GRAPHIC] [TIFF OMITTED] TP27MR07.002
BILLING CODE 4310-55-C
[[Page 14351]]
(7) Unit 2: La Joya, Socorro County, New Mexico.
(i) Unit 2 for Helianthus paradoxus, La Joya State Wildlife
Management Area, Socorro County, New Mexico. From USGS 1:24,000
quadrangle La Joya, lands bounded by the following UTM NAD83
coordinates (meters E, meters N): 327938, 3803771; 328008, 3803841;
328017, 3803889; 327974, 3803950; 327921, 3803981; 327906, 3804024;
327900, 3804069; 327929, 3804128; 327953, 3804169; 328019, 3804191;
328076, 3804209; 328129, 3804211; 328192, 3804189; 328237, 3804185;
328306, 3804204; 328353, 3804256; 328416, 3804317; 328493, 3804315;
328575, 3804293; 328654, 3804268; 328744, 3804240; 328809, 3804227;
328891, 3804221; 328978, 3804221; 329007, 3804221; 329002, 3804151;
329007, 3804081; 328943, 3803853; 328884, 3803635; 328854, 3803517;
328795, 3803310; 328756, 3803178; 328739, 3803098; 328730, 3803069;
328716, 3803028; 328698, 3802962; 328686, 3802913; 328669, 3802848;
328662, 3802791; 328654, 3802744; 328651, 3802687; 328649, 3802547;
328649, 3802336; 328619, 3802307; 328559, 3802294; 328514, 3802292;
328352, 3802301; 328237, 3802318; 328166, 3802369; 328126, 3802370;
328104, 3802335; 328123, 3802292; 328137, 3802262; 328123, 3802215;
328115, 3802167; 328112, 3802126; 328115, 3802093; 328142, 3802036;
328156, 3802004; 328126, 3801971; 328025, 3801950; 327961, 3801941;
327897, 3801940; 327881, 3801959; 327845, 3802076; 327843, 3802138;
327847, 3802172; 327830, 3802196; 327824, 3802226; 327817, 3802269;
327815, 3802305; 327847, 3802363; 327849, 3802406; 327847, 3802448;
327864, 3802483; 327875, 3802517; 327871, 3802547; 327854, 3802572;
327813, 3802589; 327785, 3802607; 327788, 3802637; 327815, 3802687;
327828, 3802722; 327822, 3802771; 327805, 3802818; 327773, 3802833;
327740, 3802854; 327738, 3802884; 327751, 3802923; 327762, 3802967;
327766, 3803012; 327796, 3803064; 327820, 3803117; 327858, 3803158;
327895, 3803209; 327914, 3803265; 327928, 3803309; 327929, 3803359;
327958, 3803460; 327978, 3803524; 327995, 3803612; 328003, 3803685;
327976, 3803721; 327948, 3803730; thence returning to 327938, 3803771.
327683, 3800456; 327686, 3800538; 327717, 3800591; 327740, 3800627;
327757, 3800689; 327762, 3800723; 327743, 3800777; 327726, 3800820;
327722, 3800890; 327715, 3800947; 327735, 3800983; 327791, 3801036;
327872, 3801083; 327917, 3801107; 327973, 3801164; 328021, 3801220;
328071, 3801278; 328114, 3801381; 328117, 3801417; 328133, 3801417;
328183, 3801359; 328186, 3801340; 328201, 3801308; 328230, 3801280;
328255, 3801276; 328283, 3801262; 328307, 3801232; 328329, 3801131;
328320, 3801039; 328302, 3800977; 328267, 3800885; 328272, 3800815;
328285, 3800744; 328311, 3800674; 328351, 3800590; 328403, 3800529;
328483, 3800459; 328531, 3800401; 328606, 3800340; 328658, 3800252;
328663, 3800195; 328654, 3800120; 328619, 3800010; 328597, 3799947;
328579, 3799881; 328553, 3799819; 328504, 3799779; 328465, 3799718;
328456, 3799643; 328417, 3799555; 328408, 3799459; 328381, 3799358;
328359, 3799278; 328368, 3799217; 328359, 3799151; 328355, 3799094;
328430, 3798975; 328474, 3798923; 328509, 3798788; 328527, 3798757;
328553, 3798727; 328544, 3798661; 328553, 3798625; 328579, 3798590;
328592, 3798559; 328588, 3798502; 328588, 3798463; 328557, 3798401;
328544, 3798349; 328579, 3798274; 328645, 3798212; 328649, 3798169;
328641, 3798120; 328623, 3798063; 328623, 3798001; 328610, 3797918;
328610, 3797865; 328623, 3797761; 328658, 3797664; 328654, 3797616;
328582, 3797604; 328520, 3797699; 328497, 3797746; 328491, 3797783;
328485, 3797841; 328477, 3797877; 328462, 3797893; 328464, 3797913;
328469, 3797944; 328466, 3797990; 328470, 3798038; 328483, 3798093;
328496, 3798128; 328503, 3798162; 328513, 3798192; 328509, 3798209;
328496, 3798209; 328474, 3798249; 328456, 3798271; 328452, 3798324;
328440, 3798362; 328447, 3798381; 328456, 3798420; 328483, 3798456;
328500, 3798486; 328501, 3798520; 328493, 3798536; 328464, 3798536;
328445, 3798539; 328443, 3798562; 328431, 3798594; 328419, 3798630;
328413, 3798658; 328405, 3798677; 328402, 3798701; 328399, 3798716;
328392, 3798725; 328370, 3798733; 328360, 3798733; 328342, 3798748;
328322, 3798765; 328309, 3798775; 328308, 3798793; 328308, 3798821;
328302, 3798837; 328301, 3798861; 328306, 3798879; 328303, 3798898;
328293, 3798911; 328279, 3798917; 328262, 3798938; 328240, 3798967;
328215, 3798987; 328186, 3799000; 328164, 3799007; 328158, 3799014;
328161, 3799027; 328174, 3799051; 328188, 3799082; 328195, 3799097;
328194, 3799114; 328182, 3799123; 328168, 3799127; 328149, 3799122;
328140, 3799117; 328127, 3799112; 328122, 3799116; 328117, 3799139;
328096, 3799178; 328038, 3799245; 328002, 3799293; 327989, 3799302;
327972, 3799331; 327962, 3799355; 327956, 3799383; 327945, 3799400;
327931, 3799414; 327916, 3799417; 327906, 3799418; 327898, 3799427;
327883, 3799430; 327867, 3799434; 327854, 3799454; 327851, 3799475;
327852, 3799498; 327850, 3799528; 327839, 3799553; 327833, 3799563;
327810, 3799598; 327803, 3799622; 327797, 3799653; 327794, 3799688;
327790, 3799711; 327783, 3799722; 327768, 3799731; 327761, 3799737;
327755, 3799745; 327759, 3799761; 327752, 3799774; 327730, 3799811;
327712, 3799844; 327694, 3799873; 327685, 3799893; 327678, 3799936;
327664, 3799973; 327658, 3800004; 327663, 3800029; 327674, 3800049;
327685, 3800106; 327693, 3800146; 327717, 3800188; 327737, 3800226;
327758, 3800262; 327761, 3800294; 327748, 3800325; 327697, 3800375;
327674, 3800398; 327671, 3800427; thence returning to 327683, 3800456.
(ii) Note: Map of Unit 2 for Helianthus paradoxus (Map 4) follows:
BILLING CODE 4310-55-P
[[Page 14352]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.003
BILLING CODE 4310-55-C
[[Page 14353]]
(8) Unit 3: Santa Rosa, Guadalupe County, New Mexico.
(i) Subunit 3a for Helianthus paradoxus, Blue Hole Cienega / Blue
Hole Fish Hatchery Ponds, Guadalupe County, New Mexico. From USGS
1:24,000 quadrangle Santa Rosa, lands bounded by the following UTM
NAD83 coordinates (meters E, meters N):
529408, 3865628; 529431, 3865639; 529449, 3865654; 529468, 3865681;
529481, 3865715; 529491, 3865773; 529491, 3865792; 529478, 3865810;
529467, 3865832; 529465, 3865863; 529472, 3865903; 529484, 3865943;
529494, 3866006; 529507, 3866073; 529505, 3866104; 529497, 3866123;
529484, 3866171; 529479, 3866207; 529483, 3866245; 529489, 3866310;
529489, 3866366; 529640, 3866364; 529771, 3866366; 529910, 3866363;
529980, 3866361; 529991, 3866355; 529996, 3866347; 529991, 3866329;
529988, 3866289; 529980, 3866217; 529967, 3866125; 529959, 3866012;
529957, 3865985; 529887, 3865918; 529859, 3865879; 529876, 3865756;
529962, 3865656; 530041, 3865519; 530099, 3865390; 530105, 3865209;
530091, 3865144; 529784, 3865313; 529705, 3865355; 529593, 3865417;
529522, 3865456; 529550, 3865504; 529505, 3865533; 529524, 3865564;
thence returning to 529408, 3865628.
529555, 3866753; 529618, 3866754; 529654, 3866751; 529702, 3866748;
529706, 3866687; 529712, 3866651; 529713, 3866618; 529717, 3866581;
529717, 3866559; 529652, 3866555; 529640, 3866558; 529638, 3866609;
529634, 3866613; 529590, 3866609; 529556, 3866611; 529556, 3866639;
529555, 3866683; thence returning to 529555, 3866753.
(ii) Note: Map of Subunit 3a for Helianthus paradoxus (Map 5)
follows:
[[Page 14354]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.004
[[Page 14355]]
(iii) Subunit 3b for Helianthus paradoxus, Westside Spring,
Guadalupe County, New Mexico. From USGS 1:24,000 quadrangle Santa Rosa,
lands bounded by the following UTM NAD83 coordinates (meters E, meters
N): 527977, 3864746; 527990, 3864762; 527999, 3864783; 528009, 3864801;
528033, 3864823; 528054, 3864837; 528079, 3864848; 528103, 3864852;
528121, 3864843; 528125, 3864832; 528125, 3864813; 528123, 3864796;
528118, 3864780; 528108, 3864756; 528095, 3864734; 528072, 3864717;
528047, 3864697; 528018, 3864676; 527987, 3864654; 527961, 3864633;
527932, 3864613; 527906, 3864594; 527886, 3864575; 527866, 3864561;
527850, 3864551; 527836, 3864552; 527838, 3864566; 527852, 3864585;
527869, 3864606; 527886, 3864626; 527903, 3864648; 527921, 3864672;
527938, 3864694; 527957, 3864716; 527961, 3864722; 527975, 3864743;
thence returning to 527977, 3864746.
(iv) Note: Map of Subunit 3b for Helianthus paradoxus (Map 6)
follows:
[[Page 14356]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.005
[[Page 14357]]
(9) Unit 4: Roswell/Dexter, Chaves County, New Mexico.
(i) Subunit 4a for Helianthus paradoxus, Bitter Lake National
Wildlife Refuge/City of Roswell Land, Chaves County, New Mexico. From
USGS 1:24,000 quadrangle Bitter Lake, lands bounded by the following
UTM NAD83 coordinates (meters E, meters N):
553930, 3697605; 553934, 3697207; 554338, 3697211; 554336, 3696806;
554330, 3696733; 554330, 3696665; 554327, 3696605; 554268, 3696635;
554205, 3696666; 554127, 3696699; 554092, 3696768; 554089, 3696787;
554084, 3696811; 554048, 3696856; 554021, 3696861; 553990, 3696861;
553957, 3696849; 553925, 3696849; 553881, 3696851; 553847, 3696860;
553809, 3696885; 553793, 3696903; 553765, 3696930; 553751, 3696954;
553740, 3696972; 553738, 3696995; 553733, 3697019; 553718, 3697038;
553716, 3697053; 553710, 3697067; 553702, 3697088; 553691, 3697115;
553689, 3697128; 553684, 3697150; 553673, 3697170; 553652, 3697201;
553624, 3697231; 553617, 3697248; 553614, 3697266; 553601, 3697291;
553600, 3697304; 553580, 3697324; 553571, 3697335; 553567, 3697359;
553567, 3697381; 553569, 3697402; 553577, 3697416; 553587, 3697427;
553601, 3697453; 553627, 3697474; 553647, 3697485; 553663, 3697495;
553689, 3697518; 553709, 3697535; 553731, 3697546; 553765, 3697552;
553808, 3697556; 553866, 3697558; 553895, 3697563; 553916, 3697574;
553923, 3697590; thence returning to 553930, 3697605.
(ii) Note: Map of Subunit 4a for Helianthus paradoxus (Map 7)
follows:
[[Page 14358]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.006
BILLING CODE 4310-55-C
[[Page 14359]]
(iii) Subunit 4c for Helianthus paradoxus, Oasis Dairy Subunit,
Chaves County, New Mexico. From USGS 1:24,000 quadrangles Bottomless
Lakes and South Spring, lands bounded by the following UTM NAD83
coordinates (meters E, meters N): 559225, 3688383; 559265, 3688370;
559292, 3688339; 559312, 3688333; 559335, 3688294; 559348, 3688262;
559355, 3688228; 559377, 3688207; 559420, 3688160; 559431, 3688128;
559436, 3688078; 559458, 3688030; 559492, 3687977; 559523, 3687927;
559548, 3687893; 559579, 3687870; 559595, 3687851; 559617, 3687819;
559638, 3687777; 559649, 3687709; 559647, 3687656; 559636, 3687605;
559608, 3687555; 559584, 3687497; 559559, 3687483; 559533, 3687486;
559506, 3687488; 559486, 3687523; 559475, 3687573; 559474, 3687634;
559481, 3687686; 559480, 3687729; 559469, 3687782; 559446, 3687826;
559433, 3687871; 559412, 3687924; 559385, 3687977; 559365, 3688014;
559345, 3688040; 559325, 3688077; 559305, 3688122; 559282, 3688159;
559238, 3688182; 559204, 3688219; 559184, 3688267; 559184, 3688314;
559199, 3688359; thence returning to 559225, 3688383.
558767, 3686447; 558771, 3686449; 558790, 3686451; 558823, 3686444;
558852, 3686446; 558879, 3686451; 558899, 3686458; 558917, 3686464;
558932, 3686466; 558952, 3686459; 558963, 3686453; 558977, 3686433;
558986, 3686422; 558997, 3686411; 559012, 3686407; 559030, 3686392;
559038, 3686377; 559038, 3686361; 559035, 3686343; 559031, 3686291;
559031, 3686253; 559026, 3686238; 559014, 3686223; 558985, 3686205;
558960, 3686191; 558934, 3686182; 558915, 3686177; 558884, 3686164;
558866, 3686152; 558839, 3686137; 558817, 3686127; 558804, 3686124;
558795, 3686123; 558772, 3686135; 558745, 3686144; 558722, 3686150;
558700, 3686157; 558678, 3686161; 558650, 3686157; 558621, 3686154;
558589, 3686153; 558561, 3686152; 558534, 3686153; 558498, 3686144;
558467, 3686137; 558439, 3686122; 558415, 3686108; 558398, 3686086;
558385, 3686058; 558380, 3686024; 558387, 3685985; 558396, 3685944;
558404, 3685914; 558408, 3685894; 558404, 3685879; 558387, 3685862;
558363, 3685843; 558338, 3685818; 558318, 3685805; 558305, 3685787;
558290, 3685762; 558284, 3685734; 558286, 3685712; 558292, 3685684;
558294, 3685662; 558288, 3685634; 558286, 3685609; 558276, 3685584;
558262, 3685566; 558253, 3685552; 558232, 3685540; 558208, 3685531;
558183, 3685532; 558148, 3685542; 558126, 3685553; 558099, 3685568;
558086, 3685583; 558073, 3685608; 558071, 3685633; 558079, 3685654;
558095, 3685671; 558115, 3685672; 558132, 3685672; 558150, 3685666;
558163, 3685655; 558192, 3685654; 558209, 3685658; 558221, 3685671;
558221, 3685689; 558221, 3685714; 558220, 3685738; 558211, 3685759;
558209, 3685781; 558207, 3685799; 558218, 3685819; 558232, 3685829;
558250, 3685836; 558262, 3685843; 558270, 3685859; 558275, 3685880;
558273, 3685888; 558255, 3685909; 558253, 3685931; 558252, 3685946;
558256, 3685956; 558259, 3685975; 558260, 3685989; 558258, 3686009;
558256, 3686024; 558250, 3686035; 558240, 3686046; 558233, 3686056;
558223, 3686065; 558221, 3686071; 558220, 3686078; 558224, 3686092;
558227, 3686102; 558227, 3686119; 558219, 3686147; 558215, 3686174;
558216, 3686193; 558228, 3686212; 558243, 3686232; 558267, 3686257;
558281, 3686271; 558297, 3686283; 558315, 3686290; 558338, 3686302;
558355, 3686314; 558368, 3686325; 558393, 3686346; 558406, 3686362;
558423, 3686381; 558432, 3686397; 558438, 3686423; 558437, 3686445;
558425, 3686461; 558410, 3686475; 558392, 3686490; 558373, 3686507;
558364, 3686529; 558413, 3686519; 558466, 3686502; 558514, 3686488;
558558, 3686475; 558601, 3686470; 558635, 3686457; 558667, 3686443;
558689, 3686445; 558720, 3686431; thence returning to 558767, 3686447.
(iv) Note: Map of Subunit 4c for Helianthus paradoxus (Map 8)
follows:
BILLING CODE 4310-55-P
[[Page 14360]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.007
[[Page 14361]]
(v) Subunit 4d for Helianthus paradoxus, Lea Lake at Bottomless
Lakes State Park, Chaves County, New Mexico. From USGS 1:24,000
quadrangle Bottomless Lakes, lands bounded by the following UTM NAD83
coordinates (meters E, meters N): 562371, 3687020; 562381, 3687019;
562402, 3687011; 562419, 3686993; 562437, 3686976; 562464, 3686956;
562476, 3686950; 562499, 3686947; 562515, 3686938; 562519, 3686919;
562520, 3686895; 562511, 3686875; 562495, 3686857; 562483, 3686851;
562471, 3686849; 562453, 3686850; 562442, 3686836; 562432, 3686814;
562420, 3686784; 562409, 3686747; 562410, 3686718; 562402, 3686690;
562391, 3686663; 562366, 3686642; 562325, 3686637; 562286, 3686639;
562276, 3686652; 562230, 3686695; 562216, 3686715; 562203, 3686732;
562200, 3686752; 562201, 3686770; 562203, 3686791; 562208, 3686818;
562221, 3686835; 562225, 3686852; 562222, 3686868; 562216, 3686888;
562217, 3686914; 562230, 3686939; 562250, 3686958; 562270, 3686978;
562293, 3686992; 562323, 3687006; 562351, 3687016; thence returning to
562371, 3687020.
(vi) Note: Map of Subunit 4d for Helianthus paradoxus (Map 9)
follows:
[[Page 14362]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.008
[[Page 14363]]
(vii) Subunit 4e for Helianthus paradoxus, Dexter Cienega, Chaves
County, New Mexico. From USGS 1:24,000 quadrangle Dexter East, lands
bounded by the following UTM NAD83 coordinates (meters E, meters N):
559316, 3678509; 559316, 3678510; 559329, 3678521; 559339, 3678530;
559355, 3678547; 559372, 3678557; 559402, 3678565; 559412, 3678566;
559432, 3678560; 559452, 3678542; 559471, 3678532; 559508, 3678527;
559525, 3678528; 559567, 3678532; 559595, 3678535; 559622, 3678521;
559635, 3678495; 559645, 3678472; 559648, 3678443; 559642, 3678414;
559630, 3678392; 559622, 3678376; 559606, 3678361; 559582, 3678344;
559549, 3678334; 559519, 3678314; 559493, 3678303; 559464, 3678290;
559439, 3678280; 559410, 3678271; 559381, 3678263; 559358, 3678260;
559329, 3678249; 559293, 3678233; 559265, 3678223; 559234, 3678215;
559205, 3678201; 559177, 3678193; 559160, 3678178; 559132, 3678157;
559111, 3678136; 559083, 3678118; 559048, 3678097; 559012, 3678082;
558980, 3678067; 558948, 3678058; 558915, 3678047; 558884, 3678045;
558855, 3678046; 558830, 3678054; 558801, 3678062; 558776, 3678067;
558754, 3678070; 558732, 3678071; 558714, 3678078; 558703, 3678089;
558702, 3678101; 558703, 3678116; 558711, 3678128; 558728, 3678126;
558757, 3678122; 558776, 3678124; 558812, 3678130; 558833, 3678134;
558843, 3678141; 558856, 3678145; 558869, 3678166; 558895, 3678186;
558906, 3678205; 558926, 3678207; 558948, 3678215; 558966, 3678227;
558976, 3678240; 558995, 3678256; 559017, 3678272; 559038, 3678284;
559074, 3678307; 559099, 3678323; 559124, 3678334; 559157, 3678352;
559185, 3678364; 559210, 3678373; 559242, 3678378; 559260, 3678389;
559269, 3678401; 559268, 3678424; 559272, 3678437; 559285, 3678457;
559299, 3678486; thence returning to 559316, 3678509.
(viii) Note: Map of Subunit 4e for Helianthus paradoxus (Map 10)
follows:
[[Page 14364]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.009
[[Page 14365]]
(10) Unit 5: West Texas--Diamond Y Springs, Pecos County, Texas.
(i) Unit 5 for Helianthus paradoxus, West Texas--Diamond Y Spring,
Pecos County, Texas. From USGS 1:24,000 quadrangles Diamond Y Spring
and Fort Stockton West, lands bounded by the following UTM NAD83
coordinates (meters E, meters N): 699410, 3432430; 699368, 3432356;
699338, 3432300; 699323, 3432253; 699323, 3432205; 699328, 3432141;
699320, 3432086; 699291, 3432054; 699243, 3432009; 699185, 3431996;
699137, 3431991; 699068, 3431999; 698992, 3431993; 698941, 3431977;
698883, 3431961; 698849, 3431935; 698793, 3431924; 698719, 3431906;
698679, 3431901; 698616, 3431884; 698565, 3431825; 698552, 3431741;
698542, 3431685; 698539, 3431606; 698523, 3431558; 698486, 3431510;
698425, 3431455; 698391, 3431420; 698362, 3431378; 698348, 3431325;
698333, 3431296; 698295, 3431288; 698240, 3431291; 698200, 3431330;
698168, 3431405; 698163, 3431479; 698190, 3431561; 698237, 3431624;
698280, 3431680; 698274, 3431751; 698303, 3431839; 698325, 3431900;
698346, 3431952; 698356, 3432021; 698333, 3432058; 698253, 3432048;
698126, 3432003; 698044, 3431995; 697994, 3432011; 697933, 3432019;
697877, 3432040; 697831, 3432050; 697785, 3432055; 697785, 3432459;
697841, 3432429; 697913, 3432408; 697990, 3432391; 698060, 3432384;
698110, 3432373; 698173, 3432366; 698237, 3432370; 698321, 3432366;
698371, 3432377; 698417, 3432387; 698459, 3432384; 698519, 3432380;
698565, 3432380; 698607, 3432380; 698653, 3432387; 698710, 3432401;
698759, 3432426; 698830, 3432461; 698872, 3432497; 698918, 3432532;
698978, 3432592; 699059, 3432656; 699119, 3432691; 699183, 3432726;
699262, 3432748; 699299, 3432756; 699405, 3432732; 699463, 3432674;
699473, 3432613; 699484, 3432525; 699468, 3432494; thence returning to
699410, 3432430.
(ii) Note: Map of Unit 5 for Helianthus paradoxus (Map 11) follows:
[[Page 14366]]
[GRAPHIC] [TIFF OMITTED] TP27MR07.010
* * * * *
Dated: March 15, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-1396 Filed 3-26-07; 8:45 am]
BILLING CODE 4310-55-C