2012 Federal Register, 77 FR 2943; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 77 Issue 13 (Friday, January 20, 2012)

[Federal Register Volume 77, Number 13 (Friday, January 20, 2012)]
[Proposed Rules]
[Pages 2943-2946]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1147]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2011-0042; MO 92210-0-0009]
RIN 1018-AV86

Endangered and Threatened Wildlife and Plants; Proposed
Endangered Status for the Chupadera Springsnail (Pyrgulopsis
chupaderae) and Proposed Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period on our August 2, 2011, proposed endangered
status and designation of critical habitat for the Chupadera
springsnail (Pyrgulopsis chupaderae) under the Endangered Species Act
of 1973, as amended (Act). We also announce the availability of a draft
economic analysis and draft environmental assessment of the proposed
designation of critical habitat and an amended required determinations
section of the proposal. We are reopening the comment period to allow
all interested parties an opportunity to comment simultaneously on the
revised proposed rule, the associated draft economic analysis and draft
environmental assessment, and the amended required determinations
section. Comments previously submitted need not be resubmitted, as they
will be fully considered in preparation of the final rule.

DATES: We will consider comments received on or before February 21,
2012. Comments must be received by 11:59 p.m. Eastern Time on the
closing date. Any comments that we receive after the closing date may
not be considered in the final decision on this action.

ADDRESSES: Document availability: You may obtain copies of the proposed
rule, draft economic analysis, and draft environmental assessment on
the Internet at http://www.regulations.gov at Docket Number FWS-R2-ES-
2011-0042, or by mail from the New Mexico Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Comment submission: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://

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www.regulations.gov. Search for Docket No. FWS-R2-ES-2011-0042, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2011-0042; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna NE., Albuquerque, NM 87113, by telephone ((505) 346-
2525), or by 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

We will accept written comments and information during this
reopened comment period on our proposed listing as endangered and our
proposed designation of critical habitat for the Chupadera springsnail
that was published in the Federal Register on August 2, 2011 (76 FR
46218), our draft economic analysis and draft environmental assessment
of the proposed designation, and the amended required determinations
provided in this document. We will consider information and
recommendations from all interested parties. We are particularly
interested in comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
(a) The distribution of the Chupadera springsnail;
(b) The amount and distribution of Chupadera springnail habitat;
and
(c) What areas occupied by the species at the time of listing that
contain features essential for the conservation of the species we
should include in the designation and why; and
(d) What areas not occupied at the time of listing are essential
for 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 relevant
impacts that may result from designating any area that may be included
in the final designation. We are particularly interested in any impacts
on small entities, and the benefits of including or excluding areas
from the proposed designation that are subject to these impacts.
(5) The projected and reasonably likely impacts of climate change
on the Chupadera springsnail and on the critical habitat we are
proposing.
(6) 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.
(7) Information on the extent to which the description of economic
impacts in the draft economic analysis is complete and accurate.
(8) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the draft economic analysis and
draft environmental assessment, and how the consequences of such
reactions, if likely to occur, would relate to the conservation and
regulatory benefits of the proposed critical habitat designation.
If you submitted comments or information on the proposed rule (76
FR 46218) during the initial comment period from August 2, 2011, to
October 3, 2011, please do not resubmit them. We will incorporate them
into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning revised critical habitat will take into
consideration all written comments and any additional information we
receive during both comment periods. On the basis of public comments,
we may, during the development of our final determination, find that
areas proposed are not essential, are appropriate for exclusion under
section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule, draft economic analysis, or draft environmental assessment by one
of the methods listed in ADDRESSES. We request that you send comments
only by the methods described in ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment 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.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule, draft economic
analysis, and draft environmental assessment, will be available for
public inspection on http://www.regulations.gov at Docket No. FWS-R2-
ES-2011-0042, 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).

Background

It is our intent to discuss only those topics directly relevant to
the proposed listing and designation of critical habitat for the
Chupadera springsnail in this document. For more information on
previous Federal actions concerning the Chupadera springsnail, refer to
the proposed listing and designation of critical habitat published in
the Federal Register on August 2, 2011 (76 FR 46218), which is
available online at http://www.regulations.gov (at Docket Number FWS-
R2-ES-2011-0042) or from the New Mexico Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

On August 2, 2011 (76 FR 46218), we published a proposed rule to
list as endangered and designate critical habitat for the Chupadera
springsnail. We proposed to designate approximately 1.9 acres (ac) (0.7
hectares (ha)) in two units located in Socorro County, New Mexico, as
critical habitat. That proposal had a 60-day comment period, ending
October 3, 2011. We received no request for a public hearing;
therefore, no public hearing will be held.

Critical Habitat

Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance

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with the Act, on which are found those physical or biological features
essential to the conservation of the species and that may require
special management considerations or protection, and 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. If the proposed rule is made final,
section 7 of the Act will prohibit destruction or adverse modification
of critical habitat by any activity funded, authorized, or carried out
by any Federal agency. Federal agencies proposing actions affecting
critical habitat must consult with us on the effects of their proposed
actions, under section 7(a)(2) of the Act.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. 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.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
the Chupadera springsnail, the benefits of critical habitat include
public awareness of the presence of the Chupadera springsnail and the
importance of habitat protection, and, where a Federal nexus exists,
increased habitat protection for the Chupadera springsnail due to
protection from adverse modification or destruction of critical
habitat. In practice, situations with a Federal nexus exist primarily
on Federal lands or for projects undertaken by Federal agencies.
We have not proposed to exclude any areas from critical habitat.
However, the final decision on whether to exclude any areas will be
based on the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared a draft economic analysis and draft environmental
assessment concerning the proposed critical habitat designation, which
are available for review and comment (see ADDRESSES).

Draft Economic Analysis

The purpose of the draft economic analysis is to identify and
analyze the potential economic impacts associated with the proposed
critical habitat designation for the Chupadera springsnail. The draft
economic analysis describes the economic impacts of all potential
conservation efforts for the Chupadera springsnail; some of these costs
will likely be incurred regardless of whether we designate critical
habitat. The economic impact of the proposed critical habitat
designation is analyzed by comparing scenarios both ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (e.g., under
the Federal listing and other Federal, State, and local regulations).
The baseline, therefore, represents the costs incurred regardless of
whether critical habitat is designated. The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts are those not expected to
occur absent the designation of critical habitat for the species. In
other words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs;
these are the costs we may consider in the final designation of
critical habitat when evaluating the benefits of excluding particular
areas under section 4(b)(2) of the Act. The analysis looks at baseline
impacts incurred from the listing of the species and forecasts both
baseline and incremental impacts likely to occur if we finalize the
proposed critical habitat designation. For a further description of the
methodology of the analysis, see ``Framework for the Analysis,'' of the
draft economic analysis.
The draft economic analysis provides estimated costs of the
foreseeable potential economic impacts of the proposed critical habitat
designation for the Chupadera springsnail. It identifies potential
incremental costs as a result of the proposed critical habitat
designation; these are those costs attributed to critical habitat over
and above those baseline costs attributed to listing. The draft
economic analysis quantifies economic impacts of Chupadera springsnail
conservation efforts associated with residential development and ranch
activities.
Existing and planned subdivision development in the area can lead
to groundwater depletion, threatening the springsnail and its habitat
by reducing water flow at the spring that supports the species.
Residential activities can also lead to modification of the area around
the springhead and springbrook, causing habitat degradation through
inundation and changes in water flow and chemistry. However, a Federal
nexus consultation under section 7 of the Act is unlikely to exist, as
each parcel will have its own groundwater well, which is regulated by
the New Mexico Office of the State Engineer with no Federal
involvement. Unit 1 is not slated for development; therefore, it is
unlikely the landowners will apply for a permit under section 404 of
the Clean Water Act. We are unaware of the plans for Unit 2, but we
believe that any development would avoid the spring and therefore avoid
the need for a section 404 permit. Because there are no foreseeable
activities with a Federal nexus, the draft economic analysis found no
economic impact of the proposed designation of critical habitat beyond
a possible ``stigma effect'' to land values. This stigma effect arises
from the perception of landowners that designation of critical habitat
may impede future land development and, therefore, depress land values.
Our economic analysis was unable to quantify the economic value of any
possible stigma effects.
As we stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, draft environmental assessment,
and all aspects of the proposed rule and our amended required
determinations. We may revise the proposed rule or supporting documents
to incorporate or address information we receive during the public
comment period. 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, provided the exclusion
will not result in the extinction of this species.

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Draft Environmental Assessment

The purpose of an environmental assessment is to identify and
disclose the environmental consequences associated with the proposed
critical habitat designation for the Chupadera springsnail in
compliance with the National Environmental Policy Act. The draft
environmental assessment found the preferred alternative of designating
critical habitat for the Chupadera springsnail at the two proposed
locations would not have significant impacts to the human environment.

Required Determinations--Amended

In our August 2, 2011, proposed rule (76 FR 46218), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the draft economic
analysis. We have now made use of the draft economic analysis data to
make these determinations. In this document, we affirm the information
in our proposed rule concerning Executive Order (E.O.) 12866
(Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132
(Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy,
Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et
seq.), and the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59
FR 22951). However, based on the draft economic analysis data, we are
amending our required determination concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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
(i.e., 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 RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. Based on our draft economic analysis of the
proposed designation, we provide our analysis for determining whether
the proposed rule would result in a significant economic impact on a
substantial number of small entities. Based on comments we receive, we
may revise this determination as part of our final rulemaking.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
the Chupadera springsnail would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as residential
development and ranch activities. In order to determine whether it is
appropriate for our agency to certify that this proposed rule would not
have a significant economic impact on a substantial number of small
entities, we considered each industry or category individually. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
Critical habitat designation will not affect activities that do not
have any Federal involvement; designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the Chupadera springsnail is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or implement that may
affect the species. If we finalize this proposed critical habitat
designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process.
In the draft economic analysis, we evaluated the potential economic
effects on small entities resulting from implementation of conservation
actions related to the proposed designation of critical habitat for the
Chupadera springsnail. Information in the draft economic analysis and
draft environmental assessment indicates the proposed critical habitat
designation will have no effect on any small entities. Please refer to
the draft economic analysis of the proposed critical habitat
designation for a more detailed discussion of potential economic
impacts.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. We have
identified no small entity that may be impacted by the proposed
critical habitat designation. For the above reasons and based on
currently available information, we certify that, if promulgated, the
proposed critical habitat designation would not have a significant
economic impact on a substantial number of small business entities.
Therefore, an initial regulatory flexibility analysis is not required.

Authors

The primary authors of this notice are the staff members of the New
Mexico Ecological Services Field Office, Southwest Region, U.S. Fish
and Wildlife Service.

Authority

The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).

Dated: January 10, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-1147 Filed 1-19-12; 8:45 am]
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