[Federal Register Volume 77, Number 203 (Friday, October 19, 2012)]
[Proposed Rules]
[Pages 64272-64300]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25578]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2012-0082; 4500030114]
RIN 1018-AY20
Endangered and Threatened Wildlife and Plants; Proposed Revision
of Critical Habitat for the Comal Springs Dryopid Beetle, Comal Springs
Riffle Beetle, and Peck's Cave Amphipod
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
revise designation of critical habitat for the Comal Springs dryopid
beetle (Stygoparnus comalensis), Comal Springs riffle beetle
(Heterelmis comalensis), and Peck's cave amphipod (Stygobromus pecki),
under the Endangered Species Act of 1973, as amended (Act). In total,
approximately 169 acres (68 hectares) are being proposed for revised
critical habitat. The proposed revision of critical habitat is located
in Comal and Hays Counties, Texas.
DATES: We will accept comments received or postmarked on or before
December 18, 2012. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date. We must receive requests
for public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by December 3, 2012.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-2-ES-2012-0082, which
is the docket number for this rulemaking. You may submit a comment by
clicking on ``Comment Now!.''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments
[[Page 64273]]
Processing, Attn: FWS-R2-ES-2012-008,; 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 Information Requested section below for more information).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at (http://www.fws.gov/southwest/es/austintexas/), www.regulations.gov at Docket No. FWS-R2-ES-2012-
0082, and at the Austin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT). Any additional tools or supporting
information that we may develop for this critical habitat designation
will also be available at the Fish and Wildlife Service Web site and
field office set out above, and may also be included in the preamble
and/or at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
10711 Burnet Road, Suite 200, Austin, TX 78758; telephone at 512-490-
0057 extension 248; or by facsimile at 512-490-0974. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act,
any species that is determined to be threatened or endangered requires
critical habitat to be designated, to the maximum extent prudent and
determinable. Designations and revisions of critical habitat can only
be completed by issuing a rule. This is a proposed rule to revise
critical habitat for the Comal Springs dryopid beetle, Comal Springs
riffle beetle, and Peck's cave amphipod. With this rule, we are
proposing to revise critical habitat for the three endangered
invertebrates as follows:
Comal Springs dryopid beetle: 39.4 acres (ac) (15.56
hectares (ha)) of surface and 139 ac (56 ha) of subsurface critical
habitat. The original designation was surface critical habitat of 39.5
ac (16.0 ha) without subsurface;
Comal Springs riffle beetle: 54 ac (22 ha) of surface
critical habitat only. The original designation was surface critical
habitat of 30.3 ac (12.3 ha) ; and
Peck's cave amphipod: 38.4 ac (15.16 ha) surface and 138
ac (56 ha) of subsurface critical habitat. The original designation was
surface critical habitat of 38.5 ac (15.6 ha) without subsurface.
Areas that meet the definition of critical habitat for the
Comal Springs dryopid beetle, Comal Springs riffle beetle, and Peck's
cave amphipod species that are covered by the Edwards Aquifer Recovery
Implementation Program Habitat Conservation Plan are being considered
for exclusion from the final critical habitat designation.
The proposed critical habitat revision is located in Comal and Hays
Counties, Texas.
The basis for our action. Previously, we designated critical
habitat for these three invertebrates on July 17, 2007 (72 FR 39248).
However, on January 14, 2009, the Center for Biological Diversity,
Citizens Alliance for Smart Expansion, and Aquifer Guardians in Urban
Areas (CBD, et al. v. Kempthorne, No. 1:09-cv-00031-LY (W.D. Tex.))
filed suit in Federal Court (Western District of Texas) alleging that
the Service failed to use the best available science in the critical
habitat designation. On December 18, 2009, the parties filed a
settlement agreement where we agreed to submit a revised proposed
critical habitat determination for publication in the Federal Register
by October 17, 2012, and a final revised determination by October 13,
2013. This proposed rule is published in accordance with that
agreement.
We are preparing an economic analysis. To ensure that we consider
the economic impacts, we are preparing a new economic analysis of the
proposed designation. We will publish an announcement and seek public
comments on the draft economic analysis when it is completed.
We will seek peer review. We are seeking comments from independent
specialists to ensure that our critical habitat designation is based on
scientifically sound data, assumptions, and analyses. We have invited
these peer reviewers to comment on our specific assumptions in this
revision of the critical habitat designations. Because we will consider
all comments and information received during the comment period, our
final determinations may differ from this proposal.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned government agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek 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 may not be
prudent.
(2) Specific information on:
(a) The amount and distribution of the three invertebrates'
habitats;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; 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) Information on the projected and reasonably likely impacts of
climate change on the Comal Springs dryopid beetle, Comal Springs
riffle beetle, Peck's cave amphipod, or their proposed critical habitat
revision.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, any impacts on small entities or families,
and the benefits of including or excluding areas that exhibit these
impacts.
(6) Any data documenting the extent of subsurface areas used by any
of the species for breeding, feeding, or sheltering.
(7) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular for those areas that may
benefit from the proposed Edwards Aquifer Recovery Implementation
[[Page 64274]]
Program Habitat Conservation Plan (HCP). Copies of the draft HCP are
available from the Austin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
(8) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. You may request
at the top of your document that we withhold personal information such
as your street address, phone number, or email address 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 this proposed rule, 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, Austin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Previous Federal Actions
The final rule to list Comal Springs dryopid beetle, Comal Springs
riffle beetle, and Peck's cave amphipod as endangered species was
published in the Federal Register on December 18, 1997 (62 FR 66295).
Critical habitat was not designated at the time of listing due to the
determination by the Service that designation for the three
invertebrate species would not provide benefits to the species beyond
listing and any evaluation of activities required under section 7 of
the Act. The lack of designated critical habitat for these species was
subsequently challenged by the Center for Biological Diversity in the
U.S. District Court for the District of Columbia. As part of a
stipulated settlement agreement between the plaintiff and the Service,
the Service subsequently proposed critical habitat on July 17, 2006 (71
FR 40588), and designated critical habitat for the species on July 17,
2007 (72 FR 39248).
On August 28, 2007, the Center for Biological Diversity, Citizens
Alliance for Smart Expansion, and Aquifer Guardians in Urban Areas
provided us with a 60-day notice of intent to sue on the final critical
habitat rule. On January 14, 2009, the plaintiffs filed suit in Federal
Court (Western District of Texas) alleging that the Service failed to
use the best available science. On December 18, 2009, the parties filed
a settlement agreement where we agreed to submit a revised proposed
critical habitat determination for publication in the Federal Register
by October 17, 2012, and a final revised determination by October 13,
2013. This proposed rule is published in accordance with that
agreement.
Background
For more information on these species, refer to the final rule
listing the Comal Springs dryopid beetle, Comal Springs riffle beetle,
and Peck's cave amphipod that published in the Federal Register on
December 18, 1997 (62 FR 66295) and the San Marcos & Comal Springs &
Associated Aquatic Ecosystems (Revised) Recovery Plan (Service 1996),
available online at http://ecos.fws.gov/docs/recovery_plan/960214.pdf.
Species Information
The Comal Springs dryopid beetle, Comal Springs riffle beetle, and
Peck's cave amphipod are all freshwater invertebrates (Gibson et al.
2008, p. 74). The Comal Springs dryopid beetle has been found in two
spring systems (Comal Springs and Fern Bank Springs) that are located
in Comal and Hays Counties, Texas, respectively (Barr and Spangler
1993, pp. 3, 41). The Comal Springs dryopid beetle is a subterranean
insect with vestigial (poorly developed, nonfunctional) eyes (Barr and
Spangler 1992, pp. 40-41). The Comal Springs dryopid beetle larvae are
thought to inhabit moist areas associated with roots, debris, and soil
lining the ceiling of subterranean cavities and spring orifices (Barr
and Spangler 1992, p. 41; Gibson, R. 2012d, pers. comm.).
The Comal Springs riffle beetle is an aquatic insect that is
primarily surface-dwelling associated with Comal Springs in Comal
County and San Marcos Springs in Hays County (Gibson et al. 2008, pp.
74, 76).
The Peck's cave amphipod is an eyeless, subterranean (below ground)
arthropod that has been found in Comal Springs and Hueco Springs (also
spelled Waco Springs), both located in Comal County (Barr 1993, pp. 3,
37, 52). The Peck's cave amphipod is likely an omnivore capable of
consuming detritus and microorganisms from decaying roots near spring
outlets as well as acting as a scavenger or predator inside the aquifer
(Gibson, R. 2005, pers. comm.).
Potential food sources for all three invertebrate species include
detritus (decomposed materials), leaf litter, and decaying roots. Roots
not only provide a food source to these invertebrates, but penetrate
underground into water pools where they can also serve as habitat for
the amphipod and dryopid beetle. These invertebrate species are
typically found on roots where they feed on fungus and bacteria (Gibson
et al. 2008, p. 77, Gibson, R. 2012d pers. comm.).
Habitat Information
The four spring systems--Comal, San Marcos, Hueco, and Fern Bank--
where these three invertebrate species occur are produced by discharge
of aquifer water along the Balcones Fault Zone at the edge of the
Edwards Plateau in central Texas (Gibson et al. 2008, p. 74). These
spring systems vary in size. Comal Springs and San Marcos Springs are
the two largest spring systems in Texas with respective mean annual
flows of 284 and 170 cubic feet per second (8 and 5 cubic meters per
second) (Fahlquist and Slattery 1997, p. 1; Slattery and Fahlquist
1997, p. 1). Fern Bank Springs and Hueco Springs have considerably
smaller flows, and each consists of one main spring with several
satellite springs or seep areas.
The source of water flows for Comal Springs and San Marcos Springs
is the San Antonio segment of the Edwards Aquifer (Lindgren et al.
2004, pp. 4-6; Lindgren et al. 2009, p. 2). This aquifer is
characterized by highly varied, below ground spaces that have been
hollowed out within limestone bedrock through dissolution by rainwater.
Hueco Springs is recharged from the local watershed basin and possibly
by the San Antonio segment of the Edwards Aquifer (Guyton and
Associates 1979, p. 2). The source of water for Fern Bank Springs has
not been determined, but it is speculated it could be drainage from the
nearby Edwards Aquifer Recharge Zone, water lost from the Blanco River,
or a combination of these possible sources (Veni, G. 2006, pers.
comm.).
The four spring systems proposed for critical habitat revision are
characterized by high water quality and relatively constant water
flows. Although flows from San Marcos Springs can vary according to
fluctuations in the source aquifer, records indicate that this spring
system has never ceased flowing since 1894 (Puente 1976, p. 27). Comal
Springs has a flow record nearly comparable; however, Comal Springs
ceased flowing from June 13 to November 3, 1956, during a severe
drought in conjunction with water being pumped from the aquifer (U.S.
Army Corps of Engineers
[[Page 64275]]
1965, p. 59). Unlike the Comal and San Marcos Springs, the Hueco
Springs has gone dry a number of times in the past during drought
periods (Puente 1976, p. 27; Guyton and Associates 1979, p. 46).
Although flow records are unavailable for Fern Bank Springs, the spring
system may be perennial (Barr 1993, p. 39).
Each of the four spring systems and related subterranean aquifers
typically provide adequate resources to sustain life cycle functions
for resident populations of the Comal Springs dryopid beetle, Comal
springs riffle beetle, and the Peck's cave amphipod except during
extreme drought periods or from excessive groundwater pumping.
New Genetic Information Since the 2007 Final Critical Habitat Rule
A recent analysis of known Peck's cave amphipod populations
examined genetic variation to assess population structure within the
species (Nice and Ethridge 2011, p. 2). This study estimated the degree
to which the sampling localities of this species were differentiated or
isolated from each other. Nice and Ethridge (2011, pp. 7-8) found that
genetic sequences showed high levels of differentiation within and
among Peck's cave amphipod localities. They also found sequences from
two distinct haplotypes (a genetic segment or group of genes inherited
from a single parent) with deep divergence (Nice and Ethridge 2011, pp.
7-8). The two haplotypes were not geographically separated and often
co-occurred in similar proportions. This observation suggests that what
appears to be a single species of Peck's cave amphipod might instead be
two similar-looking species living together that do not interbreed.
Another explanation could be that a common ancestor separated some time
ago causing divergence that resulted in two core subterranean
populations isolated by hydrogeology. Then over time, these populations
reconnected at Comal Springs via a downstream dispersal mechanism while
dispersal upstream into the aquifer (mixing of core populations) might
be hindered. For example, predation and competition with the
established community and hydrogeological features such as underground
waterfalls, tight interstitial spaces, and high flow conduits might
allow immature individuals to pass downstream but block upstream
dispersal (Gibson 2012a, pers. comm.). Despite this new information, a
formal, peer-reviewed description of the two possible species has not
been published. Therefore, we do not recognize a separation of the
Peck's cave amphipod into two species because this split has not been
recognized by the scientific community.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
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
an endangered or threatened species to the point at which the measures
provided pursuant to 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 requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not 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 the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are the
specific elements of physical or biological features that provide for a
species' life-history processes and are essential to the conservation
of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
[[Page 64276]]
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
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 we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process 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, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. 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 (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the designation of critical habitat is not prudent when one or both of
the following situations exist:
(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or
(2) Such designation of critical habitat would not be beneficial to
the species.
There is currently no imminent threat of take attributed to
collection or vandalism for any of these species, and identification
and mapping of critical habitat is not expected to initiate any such
threat. In the absence of finding that the designation of critical
habitat would increase threats to a species, if there are any benefits
to a critical habitat designation, then a prudent finding is warranted.
Here, the potential benefits of designation include: (1) Triggering
consultation under section 7 of the Act, in new areas for actions in
which there may be a Federal nexus where it would not otherwise occur
because, for example, it is or has become unoccupied or the occupancy
is in question; (2) focusing conservation activities on the most
essential features and areas; (3) providing educational benefits to
State or county governments or private entities; and (4) preventing
people from causing inadvertent harm to the species. Therefore, because
we have determined that the designation of critical habitat will not
likely increase the degree of threat to the species and may provide
some measure of benefit, we find that designation of critical habitat
is prudent for the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod, and reaffirmed our previous
determination concerning the prudency of designating critical habitat
for these species.
Critical Habitat Determinability
Having reaffirmed that designation is prudent, under section
4(a)(3) of the Act we then evaluate whether critical habitat for the
eight species is determinable. Our regulations at 50 CFR 424.12(a)(2)
state that critical habitat is not determinable when one or both of the
following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat. When
critical habitat is not determinable, the Act allows the Service an
additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where these species
are located. This and other information represent the best scientific
data available and led us to conclude that the designation of critical
habitat is determinable for the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or 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, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographic, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the Comal Springs dryopid beetle, Comal Springs riffle beetle, and
Peck's cave amphipod from studies of this species' habitat, ecology,
and life history as described below. Additional information can be
found in the final listing rule published in the Federal Register on
December 18, 1997 (62 FR 66295), the previous critical habitat
designation (72 FR 39248, July 17, 2007), the Revised Recovery Plan
(Service 1996), and the draft Edwards Aquifer Recovery Implementation
Program Habitat Conservation Plan (HCP). We have determined that the
following physical or biological features are essential for the Comal
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave
amphipod:
[[Page 64277]]
Space for Individual and Population Growth and for Normal Behavior
Very little is known regarding the space needed by the three
invertebrate species for individual and population growth and for
normal behavior. The Peck's cave amphipod and Comal Springs dryopid
beetle are most commonly found in subterranean areas where plant roots
are inundated or otherwise influenced by aquifer water. Gibson et al.
(2008) found Peck's cave amphipod in gravel, rocks, and organic debris
(leaves, roots, wood) immediately inside of or adjacent to springs,
seeps, and upwellings of Comal Springs and their impoundment, Landa
Lake. They were not observed in nearby surface habitats. Gibson et al.
(2008, p. 76) collected Peck's cave amphipods in drift nets (a net that
floats freely on surface water) which were placed over spring openings
at Hueco and Comal springs. At Panther Canyon Well, specimens were
collected in a baited bottle trap, which is located about 360 feet (ft)
(110 meters (m)) from Comal Spring Run No. 1 (Gibson et al. 2008, p.
76; R. Gibson 2012b, pers. comm.). Gibson et al. (2008, p. 77), also
found Comal Springs riffle beetles in drift nets at Comal Springs that
were placed in or over spring openings. Therefore, based on the
information above, we identify springs, associated streams, and
underground spaces immediately inside of or adjacent to springs, seeps,
and upwellings to be a primary component of the physical or biological
features essential to the conservation of the Comal Springs dryopid
beetle, Comal Springs riffle beetle, and Peck's cave amphipod.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food--Although specific food requirements of the three invertebrate
species are unknown, potential food sources for all three invertebrate
species include detritus (decomposed plant materials), leaf litter, and
decaying roots. It is possible that the Comal Springs dryopid beetle,
Comal Springs riffle beetle, and Peck's cave amphipod all feed on
microorganisms such as bacteria and fungi associated with decaying
riparian vegetation. Both beetle species likely are detritivores
(detritus-feeding animals) that consume detrital materials from spring-
influenced riparian (associated with rivers, creeks, or other water
bodies) zones (Brown 1987, p. 262; Gibson et al. 2008, p. 77). Riparian
vegetation is likely important for these species as they are typically
found on roots where they feed on fungus and bacteria (Gibson et al.
2008, p. 77, Gibson 2012c, pers. comm.). Larvae of the Comal Springs
dryopid beetle are also presumed to feed on bacteria and fungi
associated with roots, debris, and soil lining the ceilings of
subterranean cavities (Barr and Spangler 1992, p. 41). Available
evidence suggests Peck's cave amphipod is likely an omnivore (consumes
everything available including both animal and plant matter). It can
feed as a scavenger or predator within the aquifer and as a detrivore
where plant roots are exposed providing a medium for microbial growth
as well as a food source to potential prey (Gibson 2012a, pers. comm.).
Among other things, trees and shrubs in riparian areas adjacent to the
spring system provide plant growth necessary to maintain food sources
such as decaying material for these invertebrates. Roots from trees and
shrubs in proximity to spring outlets are most likely to penetrate
underground down to the water pools where these roots can serve as
habitat for the amphipod and dryopid beetle.
Therefore, based on the information above, we identify sources of
detritus (decomposed materials), leaf litter, and decaying roots of
riparian vegetation to be primary components of the physical or
biological features essential to the conservation of the Comal Springs
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod.
Water--The Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod are all spring-adapted, aquatic
species dependent on high-quality, unpolluted groundwater that has low
levels of salinity and turbidity. The two beetle species are generally
associated with water that has adequate levels of dissolved oxygen for
respiration (Brown 1987, p. 260; Arsuffi 1993, p. 18). High-quality
discharge water from springs and adjacent subterranean areas help
sustain habitat components essential to these three aquatic
invertebrate species.
The temperature of spring water emerging from the Edwards Aquifer
at Comal Springs and San Marcos Springs ordinarily occurs within a
narrow range of approximately 72 to 75 Fahrenheit degrees ([deg]F) (22
to 24 Celsius degrees ([deg]C)) (Fahlquist and Slattery 1997, pp. 3-4;
Groeger et al. 1997, pp. 282-283). Hueco Springs and Fern Bank Springs
have temperature records of 68 to 71 [deg]F (20 to 22 [deg]C) (George
1952, p. 52; Brune 1975, p. 94; Texas Water Development Board 2006, p.
1). The three listed invertebrate species complete their life-cycle
functions within these relatively narrow temperature ranges.
Each of these four spring systems typically provide adequate
resources to sustain life-cycle functions for resident populations of
the Comal Springs dryopid beetle, Comal Springs riffle beetle, or
Peck's cave amphipod. However, a primary threat to the three
invertebrate species is the potential failure of spring flow due to
drought or groundwater pumping, which could result in loss of aquatic
habitat for the species.
Barr (1993, p. 55) found Comal Springs dryopid beetles in spring
flows with low- and high-volume discharge and suggested that presence
of the species was not necessarily dependent on high spring flow.
However, Barr (1993, p. 61) noted that effects on both subterranean
species (dryopid beetle and amphipod) from extended loss of spring flow
and low aquifer levels could not be predicted since details of their
life cycles are unknown.
Riffle beetles are most commonly associated with flowing water that
has shallow riffles or rapids (Brown 1987, p. 253). Riffle beetles are
restricted to waters with high dissolved oxygen due to their reliance
on a plastron (thin sheet of air held by water-repellent hairs of some
aquatic insects) that is held next to the surface of the body by a mass
of water-repellent hairs. The mass of water-repellent hairs function as
a physical gill by allowing oxygen to passively diffuse from water into
the plastron in order to replace oxygen absorbed during respiration
(Brown 1987, p. 260). However, slow-moving insects like riffle beetles
are limited to habitats with high oxygen levels because oxygen will
diffuse away from the beetle if concentrations are higher in the
plastron than in the surrounding water (Resh et al. 2008, pp. 44-45).
Bowles et al. (2003, p. 379) pointed out that the mechanism by
which the Comal Springs riffle beetle survived the 1950s drought and
the extent to which its population was negatively impacted are unknown.
Bowles et al. (2003, p. 379) speculated that the riffle beetle may be
able to retreat back into spring openings or burrow down to the
hyporheos (groundwater zone) below the stream channel. In reference to
the Comal Springs population of the riffle beetle, Bowles et al. (2003,
p. 380) stated that ``Reductions in water levels in the Edwards Aquifer
to the extent that spring-flows cease likely would have devastating
effects on * * * [this] population of this species and could result in
its extinction.''
Therefore, based on the information above, we identify unpolluted,
high-quality water with stable temperatures flowing through
subterranean habitat
[[Page 64278]]
and exiting at spring openings to be primary components of the physical
or biological features essential to the conservation of the Comal
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave
amphipod.
Habitats Protected From Disturbance or Representative of the
Historical, Geographic, and Ecological Distributions of the Species
These freshwater invertebrates rely on spring water that follows
established hydrological flow paths within a limestone aquifer before
emerging. Water inside limestone aquifers flows through fractures,
pores, cave stream channels, and conduits (open channels) that have
been hollowed out within the limestone by dissolution processes (White
1988, pp. 119-148, 150-151). Alteration of subsurface water flows
through destruction of geologic features (for example, excavation) or
creation of impediments to flow (for example, concrete filling) in
proximity to spring outlets could negatively alter the hydraulic
connectivity necessary to sustain these species. Areas of subsurface
habitat must remain intact to provide adequate space for feeding,
breeding, and sheltering of the two subterranean species (amphipod and
dryopid beetle). In addition, subsurface habitat must remain intact
with sufficient hydraulic connectivity of flow paths and conduits to
ensure that other constituent elements (water quality, water quantity,
and food supply) for the proposed critical habitat remain adequate for
all three listed invertebrates.
Although Comal Springs riffle beetles occur in conjunction with a
variety of bottom substrates that underlay these flow paths, Bowles et
al. (2003, p. 372) found that these beetles mainly occurred in areas
with gravel and cobble ranging between 0.3 to 5.0 in (inches) (8 to 128
millimeters (mm)) and did not occur in areas dominated by silt, sand,
and small gravel. Collection efforts in areas of high sedimentation
generally do not yield riffle beetles (Bowles et al. 2003, p. 376;
Gibson, 2012d, pers. comm.).
Therefore, based on the information above, we identify spring water
that follows established hydrological flow paths within a limestone
aquifer to be a primary component of the physical or biological
features essential to the conservation of the Comal Springs dryopid
beetle, Comal Springs riffle beetle, and Peck's cave amphipod.
Primary Constituent Elements for the Comal Springs Dryopid Beetle,
Comal Springs Riffle Beetle, and Peck's Cave Amphipod
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the three invertebrates in areas occupied at the time
of listing, focusing on the features' primary constituent elements. We
consider primary constituent elements to be the elements of physical or
biological features that provide for a species' life-history processes
and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to the Comal Springs dryopid beetle, Comal Springs
riffle beetle, and Peck's cave amphipod are:
(1) Springs, associated streams, and underground spaces immediately
inside of or adjacent to springs, seeps, and upwellings that include:
(a) High-quality water with no or minimal pollutant levels of
soaps, detergents, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, and semivolatile compounds such as industrial
cleaning agents; and
(b) Hydrologic regimes similar to the historical pattern of the
specific sites must be present, with continuous surface flow from the
spring sites and in the subterranean aquifer.
(2) Spring system water temperatures that range from 68 to
75[emsp14][deg]F (20 to 24 [deg]C).
(3) Food supply that includes, but is not limited to, detritus
(decomposed materials), leaf litter, living plant material, algae,
fungi, bacteria, other microorganisms, and decaying roots.
With this proposed designation of critical habitat, we intend to
identify the physical or biological features essential to the
conservation of the species, through the identification of the
features' primary constituent elements sufficient to support the life-
history processes of the species. All units proposed to be revised as
critical habitat designation are currently occupied by one or more of
the three invertebrates and contain the primary constituent elements
sufficient to support the life-history needs of the species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographic area occupied by the species at the time of
listing contain features, which are essential to the conservation of
the species and which may require special management considerations or
protection.
For the Comal Springs dryopid beetle, Comal Springs riffle beetle,
and Peck's cave amphipod, threats to adequate water quantity and
quality (PCEs 1 and 2) include alterations to the natural flow regimes
affecting the aquifer recharge system and its associated springs,
streams, and riparian areas. Threats to water quantity and quality
include water withdrawals, impoundment, and diversions; hazardous
material spills; stormwater drainage pollutants including soaps,
detergents, pharmaceuticals, heavy metals, fertilizer nutrients,
petroleum hydrocarbons, and semivolatile compounds such as industrial
cleaning agents; pesticides and herbicides associated with pathogenic
organisms or invasive species; invasive species altering the surface
habitat; excavation and construction surrounding the springs and in the
watershed; and climate change. All of these threats are known to be
ongoing at various levels in and around the Edwards Aquifer ecosystem.
Examples of management actions that would ameliorate these threats
include: (1) Maintenance of sustainable groundwater use and subsurface
flows; (2) use of adequate buffers for water quality protection; (3)
selection of appropriate pesticides and herbicides; and (4)
implementation of integrated pest management plans to manage existing
invasive species as well as preventing the introduction of additional
invasive species.
Climate change could potentially affect water quantity and spring
flow as well as the food supply (PCEs 1, 2, and 3) for the Comal
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's Cave
amphipod. According to the Intergovernmental Panel on Climate Change
(IPCC; 2007, p. 1), ``warming of the climate system is unequivocal, as
is now evident from observations of increases in global averages of air
and ocean temperatures, widespread melting of snow and ice, and rising
global average sea level.'' Localized projections suggest the
southwestern United States may experience the greatest temperature
increase of any area in the lower 48 States (IPCC 2007, p. 8), with
warming increases in southwestern States greatest in the summer. The
IPCC also predicts hot extremes, heat waves, and heavy precipitation
will increase in frequency (IPCC 2007, p. 8).
The degree to which climate change will affect habitats of the
Comal Springs
[[Page 64279]]
dryopid beetle, Comal Springs riffle beetle, and Peck's Cave amphipod
is uncertain. Climate change will be a particular challenge for
biodiversity in general because the interaction of additional stressors
associated with climate change and current stressors may push species
beyond their ability to survive (Lovejoy 2005, pp. 325-326). The
synergistic implications of climate change and habitat fragmentation
are the most threatening facets of climate change for biodiversity
(Hannah and Lovejoy 2005, p. 4). Current climate change predictions for
terrestrial areas in the Northern Hemisphere indicate warmer air
temperatures, more intense precipitation events, and increased summer
continental drying (Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p.
12422; Cayan et al. 2005, p. 6; IPCC 2007, p. 1181). Climate change may
lead to increased frequency and duration of severe storms and droughts
(McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015; Golladay
et al. 2004, p. 504).
An increased risk of drought could occur if evaporation exceeds
precipitation levels in a particular region due to increased greenhouse
gases in the atmosphere (CH2M HILL 2007, p. 18). The Edwards Aquifer is
also predicted to experience additional stress from climate change that
could lead to decreased recharge and low or ceased spring flows given
increasing pumping demands (Lo[aacute]iciga et al. 2000, pp. 192-193).
CH2M HILL (2007, pp. 22-23) identified possible effects of climate
change on water resources within the Lower Colorado River Watershed
(which contributes recharge to Barton Springs). Barton Springs is fed
by the Barton Springs segment of the Edwards Aquifer, not far to the
north of the area used by these invertebrates. A reduction of recharge
to aquifers and a greater likelihood for more extreme droughts were
identified as potential impacts to water resources (CH2M HILL 2007, p.
23). The droughts of 2008-2009 and 2010-2011 were two of the worst
short-term droughts in central Texas history, with the period from
October 2010 through September 2011 being the driest 12-month period in
Texas since rainfall records began (Lower Colorado River Authority
(LCRA) 2011, p. 1). As a result, the effects of climate change could
compound the threat of decreased water quantity due to drought.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. We review
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time
of listing--are necessary to ensure the conservation of the species. We
are proposing to designate critical habitat in areas within the
geographical area occupied by the species at the time of listing in
1997.
During our preparation for proposing critical habitat for these
three endangered invertebrate species, we reviewed the best available
scientific information including: (1) Historical and current occurrence
records, (2) information pertaining to habitat features for these
species, and (3) scientific information on the biology and ecology of
each species. We have also reviewed a number of studies and surveys of
the three listed invertebrates including: Holsinger (1967), Bosse et
al. (1988), Barr and Spangler (1992), Arsuffi (1993), Barr (1993), Bio-
West (2001), Bio-West (2002a), Bio-West (2002b), Bio-West (2003),
Bowles et al. (2003), Bio-West (2004), Fries et al. (2004), and Gibson
et al. (2008).
Based on this review, the proposed critical habitat areas described
below constitute our best assessment at this time of areas that: (1)
Are within the geographical range occupied by at least one of the three
invertebrate species, and (2) contain features essential to the
conservation of these species which may require special management
considerations or protections. All areas proposed to be designated as
critical habitat are occupied by at least one of the three
invertebrates and contain sufficient primary constituent elements to
support the life functions of the resident species. We defined the
boundaries of each species based on the below criteria.
Comal Springs Dryopid Beetle
We identified both surface and subsurface components of critical
habitat for this species, which has been found in Comal Springs and
Fern Bank Springs in Comal and Hays Counties, Texas. However, this
species was recently collected from Panther Canyon Well, located about
360 ft (110 m) away from the spring outlet of Spring Run No. 1 (Barr
and Spangler 1992, p. 42; Gibson 2012e, pers. comm.). Collections made
from 2003 to 2009 further extended the known range of the beetle within
the Comal Springs system to all major spring runs, seeps along the
western shoreline of Landa Lake (the impounded portion of the Comal
Springs system), Landa Lake upwellings in the Spring Island area, and
Panther Canyon Well (Bio-West, Inc. 2003, p. 34; Bio-West 2004, pp. 5-
6; Bio-West 2005, pp. 5-6; Bio-West 2006, p. 37; Bio-West to 2009, pp.
40-43; R. Gibson 2012e, pers. comm.). This information indicates that
the Comal Springs dryopid beetle can travel through the aquifer up to a
distance of 360 ft (110 m); therefore, we used this distance from
spring outlets to identify the subsurface area of critical habitat for
this species.
To determine surface critical habitat, we used an area consisting
of a 50-ft (15-m) distance from spring outlets. We used this area
because this distance has been found to contain food sources where
plant roots interface with water flows of the spring systems. This 50-
ft (15-m) distance defines the lateral extent of surface critical
habitat that contains elements necessary to provide for life functions
of this species with respect to roots that can penetrate into the
aquifer. The 50-ft (15-m) distance was calculated from evaluations of
aerial photographs and is based on tree and shrub canopies occurring in
proximity to spring outlets. Extent of canopy cover reflects the
approximate distances where plant root systems interface with water
flows of the two spring systems. Critical habitat unit boundaries were
delineated by creating approximate areas for the units by screen-
digitizing polygons (map units) using ArcMap, version 10 (Environmental
Systems Research Institute, Inc.) and 2011 aerial imagery.
Comal Springs Riffle Beetle
For the Comal Springs riffle beetle, we only identified surface
critical habitat because this species' habitat is primarily restricted
to surface water, which is located in two impounded spring systems in
Comal and Hays Counties, Texas. In Comal County, this aquatic beetle is
found in various spring outlets of Comal Springs that occur within
Landa Lake over a linear distance of approximately 0.9 mi (1.4 km). The
species has also been found in outlets of San Marcos Springs in the
upstream portion of Spring Lake in Hays County. However, populations of
Comal Springs riffle beetles may exist elsewhere in Spring Lake
(excluding a slough portion that lacks spring outlets), but sampling
for riffle beetles at spring outlets within the lake has only been done
on a limited basis. Excluding the slough portion that lacks spring
outlets, the approximate linear distance of Spring Lake at its greatest
length is 0.2 mi (0.3 km). Critical habitat unit boundaries for surface
area were delineated using the same criteria as described above for the
Comal Springs dryopid beetle.
[[Page 64280]]
Peck's Cave Amphipod
We identified both surface and subsurface components of critical
habitat for this species, which has been found in Comal Springs and
Hueco Springs, both located in Comal County, Texas. The extent to which
this subterranean species exists below ground away from spring outlets
is unknown; however, other species within the genus Stygobromus are
widely distributed in groundwater and cave systems (Holsinger 1972, p.
65). Like the Comal Springs dryopid beetle, the Peck's cave amphipod
has been collected from the bottom of Panther Canyon Well, which is
located about 360 ft (110 m) away from the spring outlet of Spring Run
No. 1 in the Comal Springs complex (Barr and Spangler 1992, p. 42;
Gibson et al. 2008, p. 76). To determine surface critical habitat, we
used a 50-ft (15-m) distance from the shoreline of both Comal Springs
and Hueco Springs (including several satellite springs that are located
between the main outlet of Hueco Springs and the Guadalupe River) to
include amphipod food sources in the root-water interfaces around
spring outlets. Critical habitat unit boundaries were delineated using
the same criteria as described above for the other two invertebrate
species.
The definition of critical habitat under the Act includes areas
outside the geographical area occupied by the species at the time of
listing, if those areas are found to be essential to the conservation
of the species. In the case of the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod, the geographical area
occupied by the species at the time of listing encompasses the known
historic range of these species. As such, we have not found any areas
outside the geographical areas occupied by these species at the time of
their listing to be essential to the conservation of these species and,
therefore, we are not proposing to designate any unoccupied areas as
critical habitat.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures on the surface that lack
physical or biological features necessary for the Comal Springs dryopid
beetle, Comal Springs riffle beetle and Peck's cave amphipod.
Subterranean critical habitat for the Comal Springs dryopid beetle and
Peck's cave amphipod may extend under such structures and remains part
of the critical habitat. The scale of the maps we prepared under the
parameters for publication within the Code of Federal Regulations may
not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this proposed rule have been excluded by text in the proposed rule
and are not proposed for designation as critical habitat. Therefore, if
the critical habitat is finalized as proposed, a Federal action
involving these lands would not trigger section 7 consultation with
respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
We are proposing for designation of critical habitat lands that we
have determined are occupied at the time of listing and contain
sufficient elements of physical or biological features to support life-
history processes essential for the conservation of the species.
Units were proposed for designation based on sufficient elements of
physical or biological features being present to support Comal Springs
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod
life-history processes. All units contain all of the identified
elements of physical or biological features and support multiple life-
history processes.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0082, on our Internet
sites http://www.fws.gov/southwest/es/austintexas/, and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).
Summary of Changes From Previously Designated Critical Habitat
The areas identified in this proposed rule constitute a proposed
revision of the areas we designated as critical habitat for the Comal
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave
amphipod on July 17, 2007 (72 FR 39248). The significant differences
between the 2007 rule and this proposal are:
(1) In the 2007 critical habitat rule for these species, we did not
designate subsurface critical habitat. However, we are designating
subsurface critical habitat for the Comal Springs dryopid beetle and
the Peck's cave amphipod in this rule.
(2) The amount of critical habitat is increasing in this proposed
rule because (1) we are including subsurface habitat for the Comal
Springs dryopid beetle and Peck's Cave amphipod, and (2) we are
including the area 50 ft (15 m) from the shoreline for the Comal
Springs riffle beetle.
(3) The primary constituent elements have been consolidated from
five in the original critical habitat rule to three to better
incorporate and define subsurface attributes.
Proposed Critical Habitat Designation
We are proposing four units as critical habitat for the three
invertebrates. The critical habitat areas we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for the Comal Springs dryopid beetle, Comal Springs
riffle beetle, and Peck's cave amphipod. The four units we propose as
critical habitat are: (1) Comal Springs, (2) Hueco Springs, (3) Fern
Bank Springs, and (4) San Marcos Springs. Table 1 shows the occupied
units, and Tables 2, 3, and 4 provide the approximate area of each
proposed critical habitat unit for each species.
Table 1--Occupancy of Comal Springs Dryopid Beetle, Comal Spring Riffle Beetle, and Peck's Cave Amphipod by
Proposed Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
Occupied at time of
Unit listing? Currently occupied? Listed species in unit
----------------------------------------------------------------------------------------------------------------
1. Comal Springs................. Yes...................... Yes..................... Comal Springs dryopid
beetle, Comal Springs
riffle beetle, and
Pecks cave amphipod.
2. Hueco Springs................. Yes...................... Yes..................... Peck's cave amphipod.
3. Fern Bank Springs............. Yes...................... Yes..................... Comal Springs dryopid
beetle.
[[Page 64281]]
4. San Marcos Springs............ Yes...................... Yes..................... Comal Springs riffle
beetle.
----------------------------------------------------------------------------------------------------------------
Table 2--Proposed Critical Habitat Units for the Comal Springs Dryopid Beetle. Area Estimates Reflect All Land
Within Critical Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
Size of unit in acres Size of unit in acres
Critical habitat units for the Comal Land ownership by type (hectares) (subsurface (hectares) (surface
Springs Dryopid Beetle critical habitat) critical habitat)
----------------------------------------------------------------------------------------------------------------
1. Comal Springs..................... State, City, Private... 124 (50) 38 (15)
2. Fern Bank Springs................. Private................ 15 (6) 1.4 (0.56)
-------------------------------------------------
Total............................ ....................... 139 (56) 39.4 (15.56)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Table 3--Proposed Critical Habitat Units for the Comal Springs Riffle
Beetle. Area Estimates Reflect All Land Within Critical Habitat Unit
Boundaries
------------------------------------------------------------------------
Critical habitat units for Size of unit in acres
the comal springs riffle Land ownership (hectares) (surface
beetle by type critical habitat)
------------------------------------------------------------------------
1. Comal Springs............. State, City, 38 (15)
Private.
2. San Marcos Springs........ State........... 16 (6)
------------------------
Total.................... ................ 54 (22)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Table 4--Proposed Critical Habitat Units for the Peck's Cave Amphipod. Area Estimates Reflect All Land Within
Critical Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
Size of unit in acres Size of unit in acres
Critical habitat units for the Peck's Land ownership by type (hectares) (subsurface (hectares) (surface
Cave amphipod critical habitat) habitat)
----------------------------------------------------------------------------------------------------------------
1. Comal Springs..................... State, City, Private... 124 (50) 38 (15)
2. Hueco Springs..................... Private................ 14 (6) 0.4 (0.16)
-------------------------------------------------
Total............................ ....................... 138 (56) 38.4 (15.16)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Comal Springs dryopid
beetle, Comal Springs riffle beetle, and Peck's cave amphipod, below.
Unit 1: Comal Springs Unit
The purpose of this unit is to independently support a population
of Comal Springs dryopid beetle, Comal Springs riffle beetle, and
Peck's cave amphipod in a functioning spring system with associated
streams and underground spaces immediately inside of or adjacent to
springs, seeps, and upwellings that provide suitable water quality,
supply, and detritus (decomposed plant material).
Unit 1 contains Comal Springs and consists of 124 ac (50 ha) of
subsurface critical habitat for the Comal Springs dryopid beetle and
the Peck's cave amphipod (Table 2 and 4). Unit 1 also contains 38 ac
(15 ha) of surface habitat for these two species along with the Comal
Springs riffle beetle (Table 3). This unit was occupied at the time of
listing and is still occupied by the Comal Springs dryopid beetle,
Comal Springs riffle beetle, and Peck's cave amphipod (Table 1).
The Comal Springs Unit is owned by the State, City of New
Braunfels, and private landowners in southern Comal County, Texas. A
large portion of the unit is operated as a city park (Landa Park) with
private residences and landscaped yards along the edge of the lower
part of the unit. The surface water and bottom of Landa Lake are State-
owned. The City of New Braunfels owns approximately 40 percent of the
land surface adjacent to the lake, and private landowners own
approximately 60 percent. This nearly L-shaped lake is surrounded by
the City of New Braunfels. The spring system primarily occurs as a
series of spring outlets that lie along the west shore of Landa Lake
and within the lake itself. Practically all of the spring outlets and
spring runs associated with Comal Springs occur within the upper part
of the lake above the confluence of Spring Run No. 1 to the lake. The
unit is also occupied by the federally listed fountain darter
(Etheostoma fonticola).
This unit contains all of the essential physical and biological
features for these species. The physical or biological features in this
unit require special management or protection because of the potential
for depletion of spring flow from water withdrawals, hazardous
materials spills from a variety of sources
[[Page 64282]]
in the watershed, pesticide use throughout the watershed, excavation
and construction surrounding the springs and in the watershed,
stormwater pollutants in the watershed, and invasive species impacts on
the surface habitat.
Unit 2: Hueco Springs
The purpose of this unit is to independently support a population
of Peck's cave amphipod in a functioning spring system with associated
streams and underground spaces immediately inside of or adjacent to
springs, seeps, and upwellings that provide suitable water quality,
supply, and detritus (decomposed plant material).
Unit 2 contains Hueco Springs and consists of 14 ac (6 ha) of
surface and 0.4 ac (0.16 ha) of subsurface critical habitat for the
Peck's cave amphipod (Table 4). This unit was occupied at the time of
listing and is still occupied by the Peck's cave amphipod (Table 1).
The Hueco Springs Unit is on private land in Hays County, Texas.
The property is primarily undeveloped. The spring system has a main
outlet that is located approximately 0.1 mi (0.2 km) south of the
junction of Elm Creek with the Guadalupe River in Comal County. The
main outlet itself lies approximately 500 ft (152 m) from the west bank
of the Guadalupe River. Several satellite springs lie further south
between the main outlet and the river. The main outlet of Hueco Springs
is located on undeveloped land, but the associated satellite springs
occur within a privately owned campground for recreational vehicles.
There is an access road to a field for parking, but no facilities or
utilities.
This unit contains all of the essential physical and biological
features for this species. The physical or biological features in this
unit require special management because of the potential for depletion
of spring flow from water withdrawals, pesticide use throughout the
watershed, and excavation and construction surrounding the springs and
in the watershed.
Unit 3: Fern Bank Springs
The purpose of this unit is to independently support a population
of Comal Springs dryopid beetle in a functioning spring system with
associated streams and underground spaces immediately inside of or
adjacent to springs, seeps, and upwellings that provide suitable water
quality, supply, and detritus (decomposed plant material).
Unit 3 contains Fern Bank Springs and consists of 15 ac (6 ha) of
surface and 1.4 ac (0.56 ha) subsurface critical habitat for the Comal
Springs dryopid beetle (Table 2). This unit was occupied at the time of
listing and is still occupied by the Comal Springs dryopid beetle
(Table 1),
The Fern Bank Springs Unit is on private land in Hays County,
Texas, approximately 0.2 mi (0.4 km) east of the junction of Sycamore
Creek with the Blanco River. The property and surrounding area are
primarily undeveloped. However, there is one rural residential home
with property overlooking the springs which is a small portion of this
unit. The spring system consists of a main outlet and a number of seep
springs that occur at the base of a high bluff overlooking the Blanco
River.
This unit contains all of the essential physical and biological
features for this species. The physical or biological features in this
unit require special management because of the potential for depletion
of spring flow from water withdrawals, pesticide use throughout the
watershed, and excavation and construction surrounding the springs and
in the watershed.
Unit 4: San Marcos Springs
The purpose of this unit is to independently support a population
of Comal Springs riffle beetle in a functioning spring system with
associated streams that provide suitable water quality, supply, and
detritus (decomposed plant material).
Unit 4 contains San Marcos Springs and consists of 16 ac (6 ha) of
surface critical habitat for the Comal Springs riffle beetle (Table 3).
This unit was occupied at the time of listing and is still occupied by
the Comal Springs riffle beetle (Table 1).
This unit is located on State lands in the City of San Marcos, Hays
County, Texas. In addition to the Comal Springs riffle beetle, the San
Marcos Springs system provides habitat for five other federally listed
species: (1) The endangered fountain darter, (2) the endangered San
Marcos gambusia (Gambusia georgei), (3) the threatened San Marcos
salamander (Eurycea nana), (4) the endangered Texas blind salamander
(Typhlomolge rathbuni), and (5) the endangered Texas wild-rice (Zizania
texana). Critical habitat has been designated for the fountain darter,
San Marcos gambusia, San Marcos salamander, and Texas wild-rice within
San Marcos Springs and portions of the San Marcos River that lie
downstream from Spring Lake.
This unit contains all of the essential physical and biological
features for this species. The physical or biological features in this
unit require special management or protection because of the potential
for depletion of spring flow from water withdrawals, hazardous
materials spills from a variety of sources in the watershed, pesticide
use throughout the watershed, excavation and construction surrounding
the springs and in the watershed, stormwater pollutants in the
watershed, and invasive species impacts on the surface habitat.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (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, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal
[[Page 64283]]
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local, or
private lands that are not federally funded or authorized, do not
require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our 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 jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying 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 we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the Comal Springs dryopid
beetle, Comal Springs riffle beetle, and Peck's cave amphipod. As
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the three invertebrates. These activities include, but
are not limited to:
(1) Actions that would change the existing flow regimes and would
thereby significantly and detrimentally alter the primary constituent
elements necessary for conservation of these species. Such activities
could include, but are not limited to, water withdrawal, impoundment,
and water diversions. These activities could eliminate or reduce the
habitat necessary for the growth and reproduction of these species.
(2) Actions that would introduce, spread, or augment nonnative
species could destroy or adversely modify the critical habitat of any
listed invertebrate species. Such actions could include, but are not
limited to, stocking or otherwise transporting nonnative species into
critical habitat for any purpose.
(3) Actions that would alter current habitat conditions. Such
actions include, but are not limited to, the release of chemical or
biological pollutants into the surface water or connected groundwater
at a point source or by dispersed release (nonpoint source). These
activities could alter water conditions to a point that extend beyond
the tolerances of the Comal Springs dryopid beetle, Comal Springs
riffle beetle, or Peck's cave amphipod, and result in direct or
cumulative adverse effects to these individuals and their life cycles
or eliminate or reduce the habitat necessary for the growth,
reproduction, and survival of these invertebrate species.
(4) Actions that would physically remove or alter the habitat used
by the three invertebrates. These activities could lead to increased
sedimentation and degradation in water quality to levels that are
beyond the tolerances of the Comal Springs dryopid beetle, Comal
Springs riffle beetle, or Peck's cave amphipod. Such activities could
include, but are not limited to, channelization, impoundment, road and
bridge construction, deprivation of substrate source, destruction and
alteration of riparian vegetation, and excessive sedimentation from
road construction, vegetation removal, recreational facility
development, and other watershed disturbances.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i)
[[Page 64284]]
of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary
shall not designate as critical habitat any lands or other geographic
areas owned or controlled by the Department of Defense, or designated
for its use, that are subject to an integrated natural resources
management plan prepared under section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed INRMP
within the proposed critical habitat designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat 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 statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors. The proposed critical habitat areas include Federal, State,
tribal, and private lands, some of which are used for mining and
recreation (such as hiking, camping, horseback riding, and hunting).
Other land uses that may be affected will be identified as we develop
the draft economic analysis for the proposed designation.
Key findings in the economic analysis for the 2007 final rule
designating critical habitat predicted for the next 20 years are
impacts primarily associated with water use changes including
reductions in water withdrawals, and subsequently, increased water
costs. Other costs included conservation efforts and a restoration
project specific to San Marcus and Comal Springs. The majority of the
economic impacts quantified in this analysis were a result of the
presence of eight endangered species including the three Comal Springs
invertebrates. Because all the species reside in the same habitat,
separating future impacts of these three invertebrates from the other
listed species in the aquifer was not possible.
During the development of a final designation, we will consider
economic impacts, public comments, and other new information, and areas
may be excluded from the final critical habitat designation under
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this proposal, we have
determined that the lands within the proposed designation of critical
habitat for the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod are not owned or managed by the
Department of Defense, and, therefore, we anticipate no impact on
national security. Consequently, the Secretary is not intending to
exercise his discretion to exclude any areas from the final designation
based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
Land and Resource Management Plans, Conservation Plans, or Agreements
Based on Conservation Partnerships
We consider a current land management or conservation plan (HCPs as
well as other types) to provide adequate management or protection if it
meets the following criteria:
(1) The plan is complete and provides the same or better level of
protection from adverse modification or destruction than that provided
through a consultation under section 7 of the Act;
(2) There is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and
(3) The plan provides conservation strategies and measures
consistent with currently accepted principles of conservation biology.
We believe that the Edwards Aquifer Recovery Implementation Program
(EARIP) Habitat Conservation Plan may fulfill the above criteria, and
will consider the exclusion of the lands covered by this plan that
provide for the conservation of the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod. The EARIP HCP is
intended to resolve the longstanding conflict between the federal
mandate to protect threatened and endangered species associated with
the Edwards Aquifer and the region's dependence on the same aquifer as
its primary water resource. Through the EARIP HCP, the Edwards Aquifer
Authority, San Antonio Water System, City of New Braunfels, City of San
Marcos, and Texas State University will be implementing actions to
minimize and mitigate the effects of pumping, to conserve the Aquifer-
dependent spring ecosystems, and contribute to the recovery of the
covered species. The Notice of Availability for the Draft Environmental
Impact Statement and Draft EARIP Habitat Conservation Plan was
published in the Federal Register on July 20, 2012, and the public
comment period remains open until October 18, 2012. Once the public
comment period is closed and any
[[Page 64285]]
substantive comments are addressed, the Service will make a decision on
the issuance of an Incidental Take Permit under section 10 of the Act.
We are requesting comments on the benefit to the Comal Springs dryopid
beetle, Comal Springs riffle beetle, and Peck's cave amphipod from the
EARIP HCP.
In preparing this proposal, we have also determined that the
proposed designation does not include any tribal lands or trust
resources. Accordingly, the Secretary does not intend to exercise his
discretion to exclude any areas from the final designation based on
other relevant impacts. We are not considering any areas for exclusion
at this time from the final designation under section 4(b)(2) of the
Act based on partnerships, management, or protection afforded by
cooperative management efforts. In this proposed rule, we are seeking
input from the public on the benefit to the Comal Springs dryopid
beetle, Comal Springs riffle beetle, and Peck's cave amphipod from the
EARIP HCP. Please see the ADDRESSES section, above, of this proposed
revised rule for instructions on how to submit comments.
Peer Review
In accordance with our joint policy on peer review 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 peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We have invited these peer reviewers
to comment during this public comment period.
We will consider all comments and information received during this
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
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
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must
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 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.
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 such businesses as 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 forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider 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.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are only required to evaluate the potential
incremental impacts of rulemaking on those entities directly regulated
by the rulemaking itself, and not the potential impacts to indirectly
affected entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried by the Agency is not
likely to adversely modify critical habitat. Therefore, only Federal
action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Under these circumstances, it is our
position that only Federal action agencies will be directly regulated
by this designation. Therefore, because Federal agencies are not small
entities, the Service may certify that the proposed critical habitat
rule will not have a significant economic impact on a substantial
number of small entities.
We acknowledge, however, that in some cases, third-party proponents
of
[[Page 64286]]
the action subject to permitting or funding may participate in a
section 7 consultation, and thus may be indirectly affected. We believe
it is good policy to assess these impacts if we have sufficient data
before us to complete the necessary analysis, whether or not this
analysis is strictly required by the RFA. While this regulation does
not directly regulate these entities, in our draft economic analysis we
will conduct a brief evaluation of the potential number of third
parties participating in consultations on an annual basis in order to
ensure a more complete examination of the incremental effects of this
proposed rule in the context of the RFA.
The economic analysis of the previous proposed designation for the
Comal Springs dryopid beetle, Comal Springs riffle beetle, and Peck's
cave amphipod examined the potential for conservation efforts for the
three species to affect small entities. This analysis was based on the
estimated impacts associated with the proposed critical habitat
designation and evaluated the potential for economic impacts related to
water use for agricultural activities, construction or development, and
aquatic restoration. Aquatic restoration activities were not
anticipated to affect small entities, as these activities will be
carried out by a Federal agency (U.S. Army Corps of Engineers). The
economic analysis for the previous proposed rule for these species
determined that the proposed rule was not likely to affect a
substantial number of small entities (72 FR 39263, July 17, 2007), and
we believe that the effects of this proposed rule will not change the
previous determination.
In conclusion, we believe that, based on our interpretation of
directly regulated entities under the RFA and relevant case law, this
designation of critical habitat will only directly regulate Federal
agencies, which are not by definition small business entities. And as
such, we certify that, if promulgated, this designation of critical
habitat would not have a significant economic impact on a substantial
number of small business entities. Therefore, an initial regulatory
flexibility analysis is not required. However, though not necessarily
required by the RFA, in our draft economic analysis for this proposal
we will consider and evaluate the potential effects to third parties
that may be involved with consultations with Federal action agencies
related to this action.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. We do not expect the designation of this proposed
critical habitat to significantly affect energy supplies, distribution,
or use because there are no pipelines, distribution facilities, power
grid stations, or other significant energy facilities within the
boundaries of proposed critical habitat. 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.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) 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; Aid to Families
with Dependent Children 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 onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because the economic analysis for the previous
proposed rule for these species determined that the proposed rule was
not likely to affect a substantial number of small governments (72 FR
39263, July 17, 2007). Therefore, a Small Government Agency Plan is not
required. However, we will further evaluate this issue as we conduct
our updated economic analysis, and review and revise this assessment if
appropriate.
Takings--Executive Order 12630
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 the Comal Springs dryopid beetle, Comal Springs
riffle beetle, and Peck's cave amphipod in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do require Federal
funding or permits to go forward. The takings implications
[[Page 64287]]
assessment concludes that this designation of critical habitat for the
Comal Springs dryopid beetle, Comal Springs riffle beetle, and Peck's
cave amphipod does not pose significant takings implications for lands
within or affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
Federalism summary impact statement 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 Texas. The designation of critical habitat in areas
currently occupied by the Comal Springs dryopid beetle, Comal Springs
riffle beetle, and Peck's cave amphipod may impose nominal additional
regulatory restrictions to those currently in place and, therefore, may
have a little incremental impact on State and local governments and
their activities. The designation may have some benefit to these
governments because the areas that contain the physical or biological
features essential to the conservation of the species are more clearly
defined, and the elements of the features necessary to the conservation
of the species are specifically identified. This information does not
alter where and what federally sponsored activities may occur. However,
it may assist local governments in long-range planning (rather than
having them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. 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.
Civil Justice Reform--Executive Order 12988
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 that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. This
proposed rule uses standard property descriptions and identifies the
elements of physical or biological features essential to the
conservation of the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod within the designated areas to assist
the public in understanding the habitat needs of the species.
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 of 1995 (44
U.S.C. 3501 et seq.). 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.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands that were occupied by the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod at the time of listing
that contain the features essential for conservation of the species,
and no tribal lands unoccupied by the Comal Springs dryopid beetle,
Comal Springs riffle beetle, and Peck's cave amphipod that are
essential for the conservation of the species. Therefore, we are not
proposing to designate critical habitat for the Comal Springs dryopid
beetle, Comal Springs riffle beetle, and Peck's cave amphipod on tribal
lands.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov and upon request from the
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this package are the staff members of the
Austin Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
[[Page 64288]]
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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.95 by:
a. In paragraph (h), revising the critical habitat entry for
``Peck's cave amphipod (Stygobromus pecki)''; and
b. In paragraph (i), revising the critical habitat entries for
``Comal Springs dryopid beetle (Stygoparnus comalensis)'' and ``Comal
Springs riffle beetle (Heterelmis comalensis)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) Crustaceans.
* * * * *
Peck's Cave Amphipod (Stygobromus pecki)
(1) Critical habitat units are depicted for this species in Comal
County, Texas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of Peck's
cave amphipod consist of three components:
(i) Springs, associated streams, and underground spaces immediately
inside of or adjacent to springs, seeps, and upwellings that include:
(A) High-quality water with no harmful levels of pollutants such as
soaps, detergents, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, and semivolatile compounds such as industrial
cleaning agents; and
(B) Hydrologic regimes similar to the historical pattern of the
specific sites, with continuous surface flow from the spring sites and
in the subterranean aquifer;
(ii) Spring system water temperatures that range from approximately
68 to 75[emsp14][deg]F (20 to 24 [deg]C); and
(iii) Food supply that includes, but is not limited to, detritus
(decomposed materials), leaf litter, living plant material, algae,
fungi, bacteria, other microorganisms, and decaying roots.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing on the surface within the legal
boundaries on [DATE 30 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL
RULE].
(4) Critical habitat map units. Data layers defining map units were
created using geographic information systems (GIS), which included
species locations, roads, property boundaries, 2011 aerial photography,
and USGS 7.5' quadrangles. Points were placed in the GIS. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the Service's internet site, (http://www.fws.gov/southwest/es/austintexas/), http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, and at the field office responsible for this critical
habitat designation. You may obtain field office location information
by contacting one of the Service regional offices, the addresses of
which are listed at 50 CFR 2.2.
(5) Note: An index map of the critical habitat units for the Peck's
cave amphipod, a map of the Comal Springs unit, and a map of the Hueco
Springs unit follow:
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[[Page 64289]]
[GRAPHIC] [TIFF OMITTED] TP19OC12.000
[[Page 64290]]
(6) Unit 1: Comal Springs Unit, Comal County, Texas. Map of the
Comal Springs Unit follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.001
[[Page 64291]]
(7) Unit 2: Hueco Springs Unit, Comal County, Texas. Map of the
Hueco Springs Unit follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.002
(i) Insects.
* * * * *
Comal Springs Dryopid Beetle (Stygoparnus comalensis)
(1) Critical habitat units are depicted for this species in Comal
and Hays Counties, Texas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the Comal Springs dryopid
beetle consist of these components:
(i) Springs, associated streams, and underground spaces immediately
inside of or adjacent to springs, seeps, and upwellings that include:
(A) High-quality water with no harmful levels of pollutants such as
soaps, detergents, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, and
[[Page 64292]]
semivolatile compounds such as industrial cleaning agents; and
(B) Hydrologic regimes similar to the historical pattern of the
specific sites, with continuous surface flow from the spring sites and
in the subterranean aquifer;
(ii) Spring system water temperatures that range from approximately
68 to 75 [deg]F (20 to 24 [deg]C); and
(iii) Food supply that includes, but is not limited to, detritus
(decomposed materials), leaf litter, living plant material, algae,
fungi, bacteria, other microorganisms, and decaying roots.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing on the surface within the legal
boundaries on [DATE 30 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL
RULE].
(4) Critical habitat map units. Data layers defining map units were
created using geographic information systems (GIS), which included
species locations, roads, property boundaries, 2011 aerial photography,
and USGS 7.5' quadrangles. Points were placed in the GIS. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the Service's Internet site, (http://www.fws.gov/southwest/es/ austintexas/), http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, and at the field office responsible for this critical
habitat designation. You may obtain field office location information
by contacting one of the Service regional offices, the addresses of
which are listed at 50 CFR 2.2.
(5) Note: An index map of the critical habitat units for the Comal
Springs dryopid beetle, a map of the Comal Springs unit, and a map of
the Fern Bank Springs unit follow:
[[Page 64293]]
[GRAPHIC] [TIFF OMITTED] TP19OC12.003
[[Page 64294]]
(6) Unit 1: Comal Springs Unit, Comal County, Texas. Map of the
Comal Springs Unit follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.004
[[Page 64295]]
(7) Unit 3: Fern Bank Springs Unit, Hays County, Texas. Map of the
Fern Bank Springs Unit follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.005
Comal Springs Riffle Beetle (Heterelmis comalensis)
(1) Critical habitat units are depicted for this species in Comal
and Hays Counties, Texas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the Comal Springs dryopid
beetle consist of these components:
(i) Springs, associated streams, and underground spaces immediately
inside of or adjacent to springs, seeps, and upwellings that include:
(A) High-quality water with no harmful levels of pollutants such as
soaps, detergents, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, and semivolatile compounds such as industrial
cleaning agents; and
(B) Hydrologic regimes similar to the historical pattern of the
specific sites, with continuous surface flow from the
[[Page 64296]]
spring sites and in the subterranean aquifer;
(ii) Spring system water temperatures that range from approximately
68 to 75[emsp14][deg]F (20 to 24 [deg]C); and
(iii) Food supply that includes, but is not limited to, detritus
(decomposed materials), leaf litter, living plant material, algae,
fungi, bacteria, other microorganisms, and decaying roots.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing on the surface within the legal
boundaries on [ DATE 30 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL
RULE].
(4) Critical habitat map units. Data layers defining map units were
created using geographic information systems (GIS), which included
species locations, roads, property boundaries, 2011 aerial photography,
and USGS 7.5' quadrangles. Points were placed on the GIS. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the Service's Internet site, (http://www.fws.gov/southwest/es/ austintexas/), http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, and at the field office responsible for this critical
habitat designation. You may obtain field office location information
by contacting one of the Service regional offices, the addresses of
which are listed at 50 CFR 2.2.
(5) Note: An index map of critical habitat units for the Comal
Springs riffle beetle, a map of the Comal Springs unit, and a map of
the San Marcos Springs unit follow:
[[Page 64297]]
[GRAPHIC] [TIFF OMITTED] TP19OC12.006
[[Page 64298]]
(6) Unit 1: Comal Springs Unit, Comal County, Texas. Map of Comal
Springs Unit, follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.007
[[Page 64299]]
(7) Unit 4: San Marcos Springs Unit, Hays County, Texas. Map of San
Marcos Springs Unit, follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.008
[[Page 64300]]
* * * * *
Dated: October 5, 2012.
Eileen Sobeck,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-25578 Filed 10-18-12; 8:45 a.m.]
BILLING CODE 4310-55-P