[Federal Register: March 12, 2009 (Volume 74, Number 47)]
[Proposed Rules]
[Page 10701-10703]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr09-18]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R2-ES-2009-0014] [92210-1117-0000-B4]
RIN 1018-AT52
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Roswell springsnail (Pyrgulopsis roswellensis),
Koster's springsnail (Juturnia kosteri), Noel's amphipod (Gammarus
desperatus), and Pecos assiminea (Assiminea pecos)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of public comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), take this
action pursuant to a settlement agreement and court order that vacated,
in part, the August 9. 2005 final rule that designated critical habitat
under the Endangered Species Act of 1973, as amended (Act), for the
Roswell springsnail (Pyrgulopsis roswellensis), Koster's springsnail
(Juturnia kosteri), Noel's amphipod (Gammarus desperatus), and Pecos
assiminea (Assiminea pecos) with respect to lands at the Bitter Lake
National Wildlife
[[Page 10702]]
Refuge. Accordingly, the February 12, 2002, proposed critical habitat
designation is reinstated for these invertebrates with respect to
Bitter Lake National Wildlife Refuge and we announce the reopening of
the public comment period for the February 12, 2002, proposed rule in
order to reconsider designation of these lands. This re-evaluation of
the designation of critical habitat at Bitter Lake National Wildlife
Refuge does not affect the designation of critical habitat at Diamond Y
Spring and Sandia Spring. Comments previously submitted on the February
12, 2002, proposed rule (67 FR 6459) need not be resubmitted as they
have been incorporated into the public record as part of this reopening
of the comment period and will be fully considered in preparation of
the final rule. Additionally, so that we may fully consider any new
information available, we are also soliciting comments and information
on the final economic analysis and final environmental assessment that
were made available concurrent with the August 9, 2005, final
designation of critical habitat.
DATES: We will accept comments received or postmarked on or before May
11, 2009. We must receive requests for public hearings, in writing, at
the address shown in the ADDRESSES section by April 27, 2009.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R2-ES-2009-0014; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all information
received on http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Public
Comments Solicited section below for more details).
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
New Mexico Ecological Services Field Office, 2105 Osuna NE,
Albuquerque, NM 87113; telephone 505-761-4781; facsimile 505-346-2542.
If you use a telecommunications device for the deaf (TTD), you may call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
The Roswell springsnail (Pyrgulopsis roswellensis), Koster's
springsnail (Juturnia kosteri), Noel's amphipod (Gammarus desperatus),
and Pecos assiminea (Assiminea pecos) (four invertebrates) occupy
springs, seeps, sinkholes, and wetlands near Roswell, New Mexico, and
in Reeves and Pecos counties, Texas. On February 12, 2002 (67 FR 6459),
we published a proposed rule to list the four invertebrates as
endangered under the Endangered Species Act of 1973, as amended (Act;
16 U.S.C. 1531 et seq.) and to designate critical habitat for them. The
proposed rule included two complexes on Bitter Lake National Wildlife
Refuge (Refuge) totaling 456 hectares (ha) (1127 acres (ac)), one
complex at Diamond Y Springs in Pecos County, Texas, of 153.8 ha (380
ac), and one complex at East Sandia Spring in Reeves County, Texas, of
6.7 ha (16.5 ac). On August 9, 2005, we published our final rule
listing the four invertebrates as endangered with critical habitat (70
FR 46304). In that final rule, critical habitat was designated at the
Diamond Y Spring and East Sandia Spring complexes but was not
designated on the Refuge on the ground that these areas did not meet
the definition of ``critical habitat'' under section 3(5)(A) of the Act
(70 FR 46323).
On December 19, 2007, Forest Guardians (now WildEarth Guardians)
filed a complaint challenging the merits of our critical habitat
designation for the four invertebrates, including the exclusion of the
Refuge from the final critical habitat designation. The plaintiffs
alleged that the Refuge should have been included in the designation
because it is the last known occupied habitat for three of the four
species (Roswell springsnail, Koster's springsnail, and Noel's
amphipod) and that the Refuge's Comprehensive Conservation Plan would
not adequately protect the species from threats, including oil and gas
development, outside of the Refuge boundaries. Pursuant to a settlement
agreement, the court has partially vacated the August 9, 2005, critical
habitat decision (70 FR 46304) with respect to the areas excluded under
section 3(5)(A) of the Act.
If the proposed rule with respect to the Bitter Lake National
Wildlife Refuge is made final, section 7 of the Act will prohibit
adverse modification of critical habitat by any activity funded,
authorized, or carried out by any Federal agency. Federal agencies
proposing actions that may affect areas designated as critical habitat
must consult with us on the effects of their proposed actions, pursuant
to section 7(a)(2) of the Act. This re-evaluation of the designation of
critical habitat on the Refuge does not affect the August 9, 2005,
final designation of critical habitat (70 FR 46304) with respect to
designated critical habitat at Diamond Y Spring and Sandia Spring, and
consultation on activities that may result in destruction or adverse
modification of critical habitat is still required in these areas.
Further, section 7(a)(4) of the Act and regulations at 50 CFR 402.10
require Federal agencies to confer with us on any action that is likely
to result in destruction or adverse modification of proposed critical
habitat. Thus, Federal agencies are required to confer with the Service
on any such action that may affect the proposed critical habitat on the
Refuge as identified in the February 12, 2002, proposed rule (67 FR
6459).
Section 4 of the Act requires that we consider economic and other
relevant impacts prior to making a final decision on what areas to
designate as critical habitat. A final economic analysis and final
environmental assessment were made available concurrent with the
publication of the August 9, 2005, final critical habitat designation
(70 FR 46304). We solicit data and comments from the public on the
final economic analysis and final environmental assessment, as well as
on all aspects of the proposed rule. We will review and consider all
best available information including public comments or other
information submitted previously or as part of the present comment
period, as we develop our final determination. In particular, we may
exclude an area from critical habitat if we determine that the benefits
of excluding the area outweigh the benefits of including the area as
critical habitat, provided such exclusion will not result in the
extinction of the species.
Public Comments Solicited
To ensure that the final critical habitat designation is complete
and based on the best available scientific information, we are
soliciting information from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek information
concerning:
(1) The reasons why habitat on the Refuge should or should not be
determined to be critical habitat as provided by section 4 of the Act,
including whether the benefits of inclusion of these areas will or will
not outweigh the benefits of exclusion from critical habitat
designation;
[[Page 10703]]
(2) Specific information on the distribution of the four
invertebrates and their habitats, and which habitats are essential to
the conservation of the species and why;
(3) Land use management and current or planned activities in the
subject area and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, environmental, or other impacts
resulting from the proposed designation of critical habitat;
(5) Whether the economic analysis makes appropriate assumptions
regarding current practices and likely regulatory changes imposed as a
result of the designation of critical habitat; and
(6) Whether the economic analysis appropriately identifies all
costs that could result or have already resulted from the designation.
Comments previously submitted on the February 12, 2002, proposed
rule (67 FR 6459) need not be resubmitted as they have been
incorporated into the public record as part of this reopening of the
comment period and will be fully considered in preparation of the final
rule. Comments submitted during this comment period also will be
incorporated into the public record and will be fully considered in the
final rule.
You may submit comments and materials concerning the proposed rule,
the associated economic analysis, and the associated environmental
assessment by one of the methods listed in the ADDRESSES section. We
will not consider comments sent by e-mail or fax, or to an address not
listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including your personal identifying information--will be
posted on the Web site. If your submission is made via a hardcopy that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so. We will
post all hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this notice, will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
You may obtain copies of the proposed rule, the final economic
analysis, and the final environmental assessment on the Internet at
http://www.regulations.gov, or by mail from the New Mexico Ecological
Services Field Office.
Author
The primary authors of this notice are the staff of the New Mexico
Ecological Services Field Office, 2105 Osuna NE, Albuquerque, NM 87113.
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: March 3, 2009.
Jane Lyder,
Assistant Deputy Secretary for Department of the Interior.
[FR Doc. E9-5357 Filed 3-11-09; 8:45 am]
BILLING CODE 4310-55-S