[Federal Register Volume 78, Number 17 (Friday, January 25, 2013)]
[Proposed Rules]
[Pages 5351-5369]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01302]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0002; 4500030114]
RIN 1018-AZ23
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Zuni Bluehead Sucker
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate
critical habitat for the Zuni bluehead sucker. If we finalize this rule
as proposed, it would extend the Act's protections to this subspecies'
critical habitat. The effect of these regulations will be to protect
the Zuni bluehead sucker's habitat under the Act.
DATES: We will accept comments received or postmarked on or before
March 26, 2013. 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 March 11, 2013.
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-R2-ES-2013-0002,
which is the docket number for this rulemaking. Then, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. 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 Processing, Attn: FWS-R2-ES-2013-0002; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
The coordinates or plot points or both from which the critical
habitat maps are generated are included in the administrative record
for this rulemaking and are available at http://www.fws.gov/southwest/es/NewMexico/, http://www.regulations.gov at Docket No. FWS-R2-ES-2013-
0002, and at the New Mexico Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT). Any additional tools or supporting
information that we may develop for this rulemaking 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: Wally ``J'' Murphy, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna NE., Albuquerque, NM 87113, by telephone 505-346-
2525 or by facsimile 505-346-2542. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, once a species is
determined to be an endangered or threatened species throughout all or
a significant portion of its range, we are required to promptly publish
a proposal in the Federal Register and make a determination on our
proposal within 1 year. Additionally, critical habitat shall be
designated, to the maximum extent prudent and determinable, for any
species determined to be an endangered or threatened species under the
Act. Designations and revisions of critical habitat can only be
completed by issuing a rule. Elsewhere in today's Federal Register, we
propose to list the Zuni bluehead sucker as an endangered species under
the Act.
This rule consists of: A proposed rule for designation of critical
habitat for the Zuni bluehead sucker. The Zuni bluehead sucker has been
proposed for listing under the Act. This rule proposes designation of
critical habitat necessary for the conservation of the species.
The basis for our action. Under the Act, when a species is proposed
for listing, to the maximum extent prudent and determinable, we must
designate critical habitat for the species. The species has been
proposed for listing as endangered, and therefore, we also propose to
designate approximately 472 km (293 mi) of stream habitat as critical
habitat in Apache County, Arizona, and
[[Page 5352]]
Cibola, McKinley, and San Juan Counties, New Mexico, and on the Navajo
Indian Reservation.
We will seek peer review. We are seeking comments from
knowledgeable individuals with scientific expertise to review our
analysis of the best available science and application of that science
and to provide any additional scientific information to improve this
proposed rule. 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 the public, other concerned governmental
agencies, Native American tribes, the scientific community, industry,
or any other interested parties 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 threats outweighs the benefit
of designation such that the designation of critical habitat is not
prudent.
(2) Specific information on:
(a) The amount and distribution of the Zuni bluehead sucker and its
habitat;
(b) What may constitute ``physical or biological features essential
to the conservation of the species,'' within the geographical range
currently occupied by the species;
(c) Where these features are currently found;
(d) Whether any of these features may require special management
considerations or protection;
(e) 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; and
(f) 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
areas occupied by the species or proposed to be designated as critical
habitat, and possible impacts of these activities on this species and
proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Zuni bluehead sucker and proposed critical
habitat.
(5) Any foreseeable economic, national security, or other relevant
impacts that may result from designating any area that may be included
in the final designation. We are particularly interested in any impacts
on small entities, and the benefits of including or excluding areas
from the proposed designation that are subject to these impacts.
(6) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(7) The likelihood of adverse social reactions to the designation
of critical habitat and how the consequences of such reactions, if
likely to occur, would relate to the conservation and regulatory
benefits of the proposed critical habitat designation.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species must be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We request
that you send comments only by the methods described in the ADDRESSES
section.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Please include sufficient information with your comments to allow us to
verify any scientific or commercial information you include.
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, New Mexico Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Previous Federal Actions
All previous Federal actions are described in the proposal to list
the Zuni bluehead sucker as an endangered species under the Act
published elsewhere in today's Federal Register.
Critical Habitat Designation for the Zuni Bluehead Sucker
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
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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) 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 essential to the conservation of the species (such as space,
food, cover, and protected habitat). In identifying those physical or
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 those specific elements of
the 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 geographic 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 geographic 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,
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. Climate change will be a particular challenge for
biodiversity 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 facet 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; Intergovernmental Panel on Climate Change (IPCC) 2007, p.
1181). Climate change may lead to increased frequency and duration of
severe storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et
al. 2002, p. 6074; Cook et al. 2004, p. 1015).
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) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. 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 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 immediate threat of take attributed to
collection or vandalism under Factor B for this species, and
identification and mapping
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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 Zuni bluehead sucker.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act, we must find whether critical habitat for the Zuni
bluehead sucker 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 the species is
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 Zuni bluehead sucker.
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
geographic 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 required for
the Zuni bluehead sucker from studies of this species' habitat,
ecology, and life history as described below. Habitat needs for
specific life stages for Zuni bluehead sucker have not been described;
therefore, when necessary we will rely on information available for the
bluehead sucker, which is closely related to the Zuni bluehead sucker.
Space for Individual and Population Growth and for Normal Behavior
Zuni bluehead sucker occur in stream habitats with abundant shade
from overhanging vegetation and boulders, in pools, runs, and riffles
with water velocities ranging from 0 to 0.35 m/sec (1.15 ft/sec) or
less and ranging in depth from 0.2-2.0 m (7.9-78.7 in) (Hanson 1980,
pp. 34, 42; Propst and Hobbes 1996, pp. 13, 16; Gilbert and Carmen
2011, pp. 8-10). Shade provided by the overhanging vegetation curtails
water temperature fluctuations in small, headwater streams, such as
those occupied by Zuni bluehead sucker (Whitledge et al. 2006, p.
1461). Substrate in Zuni bluehead sucker habitat ranges from silt and
pebbles to cobbles, boulders, and bedrock (Hanson 1980, pp. 34, 42;
Propst and Hobbes 1996, pp. 13, 16; Gilbert and Carmen 2011, pp. 8-10;
NMDGF 2012). Clean substrate, such as gravel and coarse sand, free of
silt, is necessary for spawning and egg development (Maddux and Kepner
1988, p. 364). Excessive levels of silt can inhibit egg and juvenile
fish development through the clogging of the small spaces between
substrate particles, which prevents the free flow of oxygenated water.
Additionally, siltation can reduce the suitability of the habitat for
prey organisms. Juvenile bluehead sucker have been found nearshore in
slower and shallower habitats, then moving out into deeper water and
faster flowing habitat as they age (Childs et al. 1998, p. 624).
Water temperatures in occupied habitats in New Mexico have ranged
from 9.9 to 25.2 degrees Celsius ([deg]C) (49.8 to 77.3 degrees
Fahrenheit ([deg]F)) during survey efforts (Propst et al. 2001, p. 163;
Gilbert and Carmen 2011, pp. 8-10). Year-round data loggers have
recorded temperatures as low as -3.2[deg]C (24.3 [deg]F) and as high as
24.1[deg]C (75.3 [deg]F) (Gilbert and Carmen 2011, pp. 8-10).
Therefore, based on the information above, we identify the
following habitat parameters as the physical or biological features for
the Zuni bluehead sucker:
A variety of stream habitats, including riffles, runs, and
pools, with appropriate flows and substrates, with low to moderate
amounts of fine sediment and substrate embeddedness, as maintained by
natural, unregulated flow that allows for periodic flooding or, if
flows are modified or regulated, flow patterns that allow the river to
mimic natural functions, such as flows capable of transporting
sediment.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food. The Zuni bluehead sucker is a benthic forager (eats food from
the stream bottom) that scrapes algae, insects, and other organic and
inorganic material from the surface of rocks (NMDGF 2004, p. 8).
Stomach content analysis of Zuni bluehead suckers revealed small
particulate organic matter, including detritus (nonliving organic
material), algae, small midge (two-winged fly) larvae, caddisfly
larvae, mayfly larvae, flatworms, and the occasional small terrestrial
insects (Smith and Koehn 1979, p. 38). In addition, Smith and Koehn
(1979, p. 38) also found fish scales, snails, and insect eggs in Zuni
bluehead sucker stomachs.
The primary source of food for Zuni bluehead sucker is periphytic
algae (algae attached to rocks), which occurs mainly on cobble,
boulder, and bedrock substrates with clean flowing water. Diet
preferences have been described for adults, but not for the remaining
life stages of Zuni bluehead sucker. Larval bluehead suckers (<25 mm
(approx.1 in) total length) feed on diatoms (a type of algae),
zooplankton (small floating or swimming organisms that drift with water
currents), and dipteran larvae (true fly larvae) in stream areas with
low velocity or in backwater habitats (Muth and Snyder 1995, p. 100).
Juvenile and adult bluehead sucker are reported primarily to eat a
variety of inorganic material, organic material, and bottom-dwelling
insects and other small organisms (Childs et al. 1998, p. 625;
[[Page 5355]]
Osmundson 1999, p. 28; Brooks et al. 2000, pp. 66-69).
Aquatic invertebrates are another important component of the Zuni
bluehead sucker diet. These aquatic invertebrates have specific habitat
requirements of their own. Both caddisflies and mayflies occur
primarily in a wide variety of standing and running-water habitats with
the greatest diversity being found in rocky-bottom streams with an
abundance of oxygen (Merritt and Cummins 1996, pp. 126, 309).
Caddisflies and mayflies feed on a variety of detritus, algae, diatoms,
and macrophytes (aquatic plants) (Merritt and Cummins 1996, pp. 126,
309). Habitat that consists of rocky bottoms with periphytic algal
growth is not only important to sustain aquatic invertebrate
populations (a Zuni bluehead sucker food source), but also serves as a
primary food resource of the Zuni bluehead sucker.
Water. As a purely aquatic species, Zuni bluehead sucker is
entirely dependent on stream habitat for all stages of their life
cycle. Therefore, perennial flows are an essential feature with
appropriate seasonal flows to maintain habitat conditions that remove
excess sediments. Areas with intermittent flows may serve as connective
corridors between occupied or seasonally occupied habitat through which
the species may move when the habitat is wetted.
There is very little information on water quality requirements for
Zuni bluehead sucker. However, excessive sedimentation is the primary
threat to water quality for the Zuni bluehead sucker (as discussed
above), primarily due to its effects on reproduction and food
resources. Turbidity (sediment suspended in the water column) can
inhibit algae production through reducing sunlight penetration into the
water.
Therefore, based on the information above, we identify the
following prey base and water quality characteristics as physical or
biological features for the Zuni bluehead sucker:
An abundant source of algae production and an aquatic
insect food base consisting of caddisflies, mayflies, midges, and
various terrestrial insects;
Streams with no harmful levels of pollutants;
Areas devoid of sediment deposition;
Perennial flows, or interrupted stream courses that are
periodically dewatered but that serve as connective corridors between
occupied or seasonally occupied habitat and through which the species
may move when the habitat is wetted;
Dynamic flows that allow for periodic changes in channel
morphology.
Cover or Shelter
Cover from predation may be in the form of deep water or physical
structure. Very little is known about habitat parameters specifically
relating to cover for Zuni bluehead sucker. However, during surveys,
Zuni bluehead sucker have been found in shaded pools and near boulder
outcrops, which may be used for cover (Kitcheyan 2012, pers. comm.).
Additionally, mature bluehead sucker are found in deeper water than
larvae and in habitats with less woody cover than younger life stages,
which are more vulnerable to predation (Childs et al. 1998, p. 624).
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Zuni bluehead sucker spawn from early April to early June when
water temperatures are 6 to 15 [deg]C (43 to 59 [deg]F), peaking around
10 [deg]C (50 [deg]F) (Propst 1999, p. 50; Propst et al. 2001, p. 164).
Zuni bluehead sucker may have two spawning periods, with the majority
of the spawning effort expended early in the season (Propst et al.
2001, p. 158). Females in spawning condition have been found over
gravel beds (Sublette et al. 1990, p. 210; Propst et al. 2001, p. 158),
Clean substrates free of excessive sedimentation are essential for
successful breeding (see Habitat and Life History section of our
proposed listing rule published elsewhere in today's Federal Register).
Periodic flooding removes excess silt and fine sand from the stream
bottom, breaks up embedded bottom materials, and rearranges sediments
in ways that promote algae production and create suitable habitats with
silt-free substrates.
Therefore, based on the information above, we identify the
following parameters for breeding, reproduction, or development of
offspring as physical or biological features for the Zuni bluehead
sucker:
Gravel and cobble substrates;
Pool habitat;
Slower currents along stream margins with appropriate
stream velocities for larvae;
Instream flow velocities that are less than 35 cm/sec (1.1
ft/sec); and
Dynamic flows that allow for periodic changes in channel
morphology.
Habitats Protected From Disturbance or Representative of the
Historical, Geographic, and Ecological Distributions of the Species
The Zuni bluehead sucker has a restricted geographic distribution.
Endemic species (species that are exclusively native to a particular
location) whose populations exhibit a high degree of isolation are
extremely susceptible to extinction from both random and nonrandom
catastrophic natural or human-caused events. Therefore, it is essential
to maintain both springs and stream systems upon which the Zuni
bluehead sucker depends. This means protection from disturbance caused
by exposure to land management actions (logging, cattle grazing, and
road construction), water contamination, water depletion, beaver dams,
or nonnative species. The Zuni bluehead sucker must, at a minimum,
sustain its current distribution for the species to continue to
persist., Introduced species are a serious threat to native aquatic
species (Miller 1961, pp. 365, 397-398; Lachner et al. 1970, p. 21; Ono
et al. 1983, pp. 90-91; Carlson and Muth 1989, pp. 222, 234; Fuller et
al. 1999, p. 1; Propst et al. 2008, pp. 1246-1251; Pilger et al. 2010,
pp. 300, 311-312; see both Factor C: Disease and Predation, and Factor
E: Other Natural or Manmade Factors Affecting Its Continued Existence
sections of our proposed listing rule published elsewhere in today's
Federal Register). Because the distribution of the Zuni bluehead sucker
is so isolated and its habitat so restricted, introduction of certain
nonnative species into its habitat could be devastating. Potentially
harmful nonnative species include green sunfish, northern crayfish,
fathead minnow, and other nonnative fish-eating fishes.
Zuni bluehead sucker typically inhabit small desert stream systems
including isolated headwater springs, small headwater springs, and
mainstem river habitats (Gilbert and Carman 2011, p. 2) with clean,
hard substrate, flowing water, and abundant riparian vegetation.
Degraded habitat consists of silt-laden substrates, high turbidity, and
deep, stagnant water (Gilbert and Carman 2011, p. 6). Ponds formed by
beaver dams and impoundments as well as pools formed during river
intermittency create such degraded habitats. Therefore, based on the
information above, we identify the necessary physical or biological
features for the Zuni bluehead sucker:
Nondegraded habitat devoid of nonnative aquatic species,
or habitat in
[[Page 5356]]
which nonnative aquatic species are at levels that allow persistence of
Zuni bluehead sucker.
Primary Constituent Elements for the Zuni Bluehead Sucker
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Zuni bluehead sucker 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 Zuni bluehead sucker are:
(1) A riverine system with habitat to support all life stages of
Zuni bluehead sucker (egg, larval, juvenile, and adult), which
includes:
a. Dynamic flows that allow for periodic changes in channel
morphology and adequate river functions, such as channel reshaping and
delivery of coarse sediments.
b. Stream courses with perennial flows, or areas that may be
periodically dewatered but serve as connective corridors between
occupied or seasonally occupied habitat and through which the species
may move when the habitat is wetted;
c. Stream microhabitat types including runs, riffles, and pools
with substrate ranging from gravel, cobble, and bedrock substrates with
low or moderate amounts of fine sediment and substrate embeddedness;
and
d. Streams with depths generally less than 2 m (3.3 ft), and with
slow to swift flow velocities less than 35 cm/sec (1.1 ft/sec);
e. Clear, cool water with low turbidity and temperatures in the
general range of 9.0 to 28.0 [deg]C (48.2 to 82.4 [deg]F).
f. No harmful levels of pollutants;
g. Adequate riparian shading to reduce water temperatures when
ambient temperatures are high and provide protective cover from
predators; and
(2) An abundant aquatic insect food base consisting of fine
particulate organic material, filamentous algae, midge larvae,
caddisfly larvae, mayfly larvae, flatworms, and small terrestrial
insects.
(3) Areas devoid of nonnative aquatic species or areas that are
maintained to kept nonnatives at a level that allows the Zuni bluehead
sucker to continue to survive and reproduce.
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. We believe each area included in these designations
requires special management and protections as described in our unit
descriptions.
We need to consider special management considerations or protection
for the features essential to the conservation of the species within
each critical habitat area. The special management considerations or
protections will depend on the threats to the essential features in
that critical habitat area. For example, threats requiring special
management considerations or protection include the continued spread of
nonnative fish species into Zuni bluehead sucker habitat or increasing
number of beavers that reduce habitat quality and foster expansion of
nonnative fish and crayfish. Other threats requiring special management
considerations or protection include the threat of wildfire and
excessive ash and sediment following fire. Improper livestock grazing
can be a threat to the remaining populations of Zuni bluehead sucker
through trampling of habitat and increasing sedimentation. Inadequate
water quantity resulting from drought and water withdrawals affect all
life stages of Zuni bluehead sucker. Additionally, the construction of
impoundments and water diversions can cause an increase in water depth
behind the structure and a reduction or elimination of stream habitat
below.
We have included below in our description of each of the critical
habitat areas for the Zuni bluehead sucker a discussion of the threats
occurring in that area requiring special management considerations or
protection.
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
geographic area occupied by the species at the time of listing, as
described above in the proposed rule to list the Zuni bluehead sucker,
and that contain sufficient elements of physical or biological features
to support life-history processes essential for the conservation of the
species. We are also proposing to designate specific areas outside the
geographic area occupied by the species at the time of listing because
such areas are essential for the conservation of the species.
Sources of data for this species include multiple databases
maintained by universities and State agencies for Arizona and New
Mexico, existing State recovery plans, endangered species reports, and
numerous survey reports on streams throughout the species' range
(Sanchez 1975, pp. 1, 4; Propst et al. 1986, pp. 49-51; NMDGF 2003, pp.
6-10; Sponholtz 2003, pp. 18-22; NMDGF 2004, pp. 1-40; Clarkson and
Marsh 2006, pp. 1-2; David 2006, pp. 1-40; NMDGF 2007, pp. 1-27;
Douglas et al. 2009, p. 67; Service 2010, pp. 1-2; NMDGF 2012; Navajo
Nation Heritage Program 2012, pp. 1-20). We have also reviewed
available information that pertains to the habitat requirements of this
species. Sources of information on habitat requirements include
existing State recovery plans, endangered species reports, studies
conducted at occupied sites and published in peer-reviewed articles,
agency reports, and data collected during monitoring efforts (Propst et
al. 2001, pp. 159-161; NMDGF 2003, pp. 1-14; NMDGF 2004, pp. 4-7).
The current distribution of the Zuni bluehead sucker is much
reduced from its historical distribution. We anticipate that recovery
will require continued protection of existing populations and habitat,
as well as establishing populations in additional streams that more
closely approximate its historic distribution in order to ensure there
are adequate numbers of fish in stable populations and that these
populations occur over a wide geographic area. This will help to ensure
that catastrophic events, such as wildfire, cannot simultaneously
affect all known populations.
Areas Occupied at the Time of Listing
The proposed critical habitat designation does not include all
streams known to have been occupied by the species historically;
instead, it focuses on occupied streams within the
[[Page 5357]]
historical range that have retained the necessary PCEs that will allow
for the maintenance and expansion of existing populations. The
following streams meet the definition of areas occupied by the species
at the time of listing: Agua Remora, Rio Nutria, Tampico Spring,
Tampico Draw, Kinlichee Creek, Black Soil Wash, Scattered Willow Wash,
Coyote Wash, Crystal Creek, Sonsela Creek, Tsaile Creek, Wheatfields
Creek, and Whiskey Creek. There are no developed areas within the
proposed designation except for barriers constructed on streams or road
crossings of streams, which do not remove the suitability of these
areas for this species.
Areas Outside of the Geographic Range at the Time of Listing
The Zuni River, Rio Pescado, Cebolla Creek, Red Clay Wash,
Palisades Creek, and Little Whiskey Creek are within the historical
range of the Zuni bluehead sucker but are not within the geographic
range currently occupied by the species; the Zuni River and Rio Pescado
experience a high degree of river intermittency, and the Zuni bluehead
sucker has not been seen in Cebolla Creek, Red Clay Wash, and Little
Whiskey Creek in over 30 years, and it has not been observed in the
Zuni River or Rio Pescado in approximately 20 years. We consider these
sites to be extirpated. For areas not occupied by the species at the
time of listing, we must demonstrate that these areas are essential to
the conservation of the species in order to include them in our
critical habitat designation. To determine if these areas are essential
for the conservation of the Zuni bluehead sucker, we considered: (1)
The importance of the site to the overall status of the species to
prevent extinction and contribute to future recovery of the Zuni
bluehead sucker; (2) whether the area could be restored to contain the
necessary habitat to support the Zuni bluehead sucker; (3) does the
site provide connectivity between occupied sites for genetic exchange:
and (4) whether a population of the species could be reestablished in
the area.
Of the unoccupied streams, the Zuni River, Rio Pescado, and
Palisades Creek exhibit varying degrees of intermittency; the Zuni
River and Rio Pescado are generally only continuous after heavy flows
in the spring (NMDGF 2004, p. 13; New Mexico Environment Department
(NMED) 2004, p. 1), and Palisades Creek has been noted as dry during
recent visits (Hobbes 2001, pp. 25-26; Carman 2004, p. 9). However,
when the Zuni River, Rio Pescado, and Cebolla Creek do exhibit flow and
if suitable habitat were restored, they could allow for important
population expansion in this watershed and they are therefore essential
for the conservation of the Zuni bluehead sucker. On the other hand,
Palisades Creek is a tributary to Whiskey Creek that, when wetted,
likely does not provide much benefit to the species. Because this
formerly occupied site has been so severely impacted and, as a small
tributary, it does not connect occupied sites, it is unlikely to
contribute to the recovery of the species and is not considered
essential to the conservation of the species. Therefore, it is not
included in the proposed designation of critical habitat.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criterion:
(1) Evaluate habitat suitability of stream segments within the
geographic area occupied at the time of listing, and retain those
segments that contain some or all of the PCEs to support life-history
functions essential for conservation of the species.
For areas outside the geographic area occupied by the species at
the time of listing, we delineated critical habitat unit boundaries
using the following steps:
(2) Evaluate stream segments not known to have been occupied at
listing but that are within the historical range of the species
(outside of the geographic area occupied by the species) to determine
if they are essential to the survival and recovery of the species.
Essential areas are those that:
(a) Serve as an extension of habitat within the geographic area of
an occupied unit;
(b) Expand the geographic distribution within areas not occupied at
the time of listing across the historical range of the species; and
(c) Are connected to other occupied areas, which will enhance
genetic exchange between populations.
We conclude that the areas proposed for critical habitat provide
for the conservation of the Zuni bluehead sucker because they include
habitat for all extant populations and include habitat for connectivity
and dispersal opportunities within units. Such opportunities for
dispersal assist in maintaining the population structure and
distribution of the species. The current amount of habitat that is
occupied is not sufficient for the recovery of the species; therefore,
we included unoccupied habitat in this proposed critical habitat
designation.
As a final step, we evaluated those occupied stream segments
retained through step 1 of the above analysis and refined the starting
and ending points by evaluating the presence or absence of appropriate
PCEs. We selected upstream and downstream cutoff points to omit areas
that are highly degraded and are not likely restorable. For example,
permanently dewatered areas, or areas in which there was a change to
unsuitable parameters (e.g., water quality, bedrock substrate) were
used to mark the start or endpoint of a stream segment proposed for
designation. Critical habitat stream segments were then mapped using
ArcMap version 10 (Environmental Systems Research Institute, Inc.), a
Geographic Information Systems program.
The areas proposed for designation as critical habitat provide
sufficient stream and spring habitat for breeding, nonbreeding, and
dispersing adult Zuni bluehead sucker, as well as for the habitat needs
for juvenile and larval stages of this fish. In general, the PCEs of
critical habitat are contained within the riverine ecosystem formed by
the wetted channel and the adjacent floodplains within 91.4 lateral m
(300 lateral ft) on either side of bankfull stage, except where bounded
by canyon walls. Areas within the lateral extent also contribute to the
PCEs, including water quality and intermittent areas through which fish
may move when wetted. Zuni bluehead sucker use the riverine ecosystem
for feeding, breeding, and sheltering while breeding and migrating.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by bridges, docks, aqueducts, and other structures because such lands
lack physical or biological features for the Zuni bluehead sucker. 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
[[Page 5358]]
of physical or biological features to support life-history processes
essential for the conservation of the species, and lands outside of the
geographic area occupied at the time of listing that we have determined
are essential for the conservation of the Zuni bluehead sucker.
Segments were proposed for designation based on sufficient elements
of physical or biological features being present to support the Zuni
bluehead sucker life-history processes. Some segments contained all of
the identified elements of physical or biological features and
supported multiple life-history processes. Some segments contained only
some elements of the physical or biological features necessary to
support the Zuni bluehead sucker's particular use of that habitat.
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-2012-0101, on our Internet
sites http://www.fws.gov/southwest/es/NewMexico/, and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).
Proposed Critical Habitat Designation
We are proposing to designate approximately 472 km (293 mi) in
three units as critical habitat for the Zuni bluehead sucker. The
critical habitat areas we describe below constitute our current best
assessment of areas that meet the definition of critical habitat for
Zuni bluehead sucker. The three areas we propose as critical habitat
are: (1) Zuni River Unit; (2) Kinlichee Creek Unit; and (3) San Juan
River Unit. Table 1 shows the occupancy of the units, the land
ownership, and approximate areas of the proposed designated areas for
the Zuni bluehead sucker.
Table 1--Proposed Critical Habitat Units for Zuni Bluehead Sucker
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Length of unit
Stream segment Occupied at the time of Land ownership in kilometers
listing (miles)
----------------------------------------------------------------------------------------------------------------
Unit 1--Zuni River Unit
----------------------------------------------------------------------------------------------------------------
Subunit 1a--Zuni River Headwaters
----------------------------------------------------------------------------------------------------------------
Agua Remora............................. Yes....................... Forest Service............ 6.6 (4.1)
Private................... 2.4 (1.5)
Rio Nutria.............................. Yes....................... Zuni Pueblo............... 38.9 (24.2)
Forest Service............ 4.1 (2.6)
State of New Mexico....... 1.8 (1.1)
Private................... 14.2 (8.8)
Tampico Draw............................ Yes....................... Forest Service............ 2.3 (1.4)
Private................... 3.7 (2.3)
Tampico Spring.......................... Yes....................... Private................... 0.2 (0.1)
-----------------------------------------------------------------------
Total............................... .......................... .......................... 74.2 (46.1)
----------------------------------------------------------------------------------------------------------------
Subunit 1b--Zuni River Mainstem
----------------------------------------------------------------------------------------------------------------
Zuni River.............................. No........................ Zuni Pueblo............... 7.4 (4.6)
Rio Pescado............................. No........................ Zuni Pueblo............... 47.3 (29.4)
State of New Mexico....... 5.8 (3.6)
Private................... 15.4 (9.6)
Cebolla Creek........................... No........................ Zuni Pueblo............... 3.7 (2.3)
State of New Mexico....... 0.4 (.02)
Forest Service............ 6.4 (4.0)
Private................... 21.4 (13.3)
-----------------------------------------------------------------------
Total............................... .......................... .......................... 107.8 (67.0)
----------------------------------------------------------------------------------------------------------------
Unit 2--Kinlichee Creek Unit
----------------------------------------------------------------------------------------------------------------
Subunit 2a--Kinlichee Creek
----------------------------------------------------------------------------------------------------------------
Black Soil Wash......................... Yes....................... Navajo Nation............. 21.6 (13.4)
Kinlichee Creek......................... Yes....................... Navajo Nation............. 47.1 (29.3)
Scattered Willow Wash................... Yes....................... Navajo Nation............. 18.2 (11.3)
-----------------------------------------------------------------------
Total............................... .......................... .......................... 86.9 (54.0)
----------------------------------------------------------------------------------------------------------------
Subunit 2b--Red Clay Wash
----------------------------------------------------------------------------------------------------------------
Red Clay Wash........................... No........................ Navajo Nation............. 9.6 (6.0)
----------------------------------------------------------------------------------------------------------------
Unit 3--San Juan River Unit
----------------------------------------------------------------------------------------------------------------
Subunit 3a--Canyon de Chelly
----------------------------------------------------------------------------------------------------------------
Coyote Wash............................. Yes....................... Navajo Nation *........... 6.4 (4.0)
[[Page 5359]]
Crystal Creek........................... Yes....................... Navajo Nation *........... 0.5 (0.3)
Navajo Nation............. 34.2 (21.2)
Sonsela Creek........................... Yes....................... Navajo Nation *........... 19.5 (12.1)
Tsaile Creek............................ Yes....................... Navajo Nation *........... 23.0 (14.3)
Navajo Nation............. 30.6 (19.0)
Wheatfields Creek....................... Yes....................... Navajo Nation *........... 8.5 (5.3)
Navajo Nation............. 29.3 (18.2)
Whiskey Creek........................... Yes....................... Navajo Nation *........... 7.5 (4.7)
Navajo Nation............. 28.1 (17.5)
-----------------------------------------------------------------------
Total............................... .......................... .......................... 187.9 (112.7)
----------------------------------------------------------------------------------------------------------------
Subunit 3b--Little Whiskey Creek
----------------------------------------------------------------------------------------------------------------
Little Whiskey Creek.................... No........................ Navajo Nation............. 8.9 (5.5)
-----------------------------------------------------------------------
Total............................... .......................... .......................... 8.9 (5.5)
----------------------------------------------------------------------------------------------------------------
* These lands are managed by National Park Service in trust for the Navajo Nation.
Note: Area sizes may not sum due to rounding.
We present below brief descriptions of the units and reasons why
the units meet the definition of critical habitat for the Zuni bluehead
sucker.
Unit 1: Zuni River Unit
Subunit 1a--Zuni River Headwaters: Subunit 1a consists of 74.2 km
(46.1 mi) along Agua Remora, Rio Nutria, Tampico Draw, and Tampico
Spring in McKinley County, New Mexico. The land in this subunit is
primarily owned by Zuni Pueblo, Forest Service, and private landowners
with a small amount of State inholdings. The Zuni bluehead sucker
occupies all stream reaches in this subunit, and the subunit contains
all of the primary constituent elements of the physical or biological
features essential to the conservation of the Zuni bluehead sucker.
This unit represents the only remaining headwater spring habitats
occupied by Zuni bluehead sucker.
Livestock grazing is primarily regulated by the Forest Service and
Zuni Pueblo in this subunit; however, trespass livestock grazing may
occur. Additional special management considerations or protection may
be required within Subunit 1a to address low water levels as a result
of water withdrawals and drought, predation from nonnative green
sunfish, and the upstream and downstream effects of impoundments. Such
special management or protection may include maintaining instream
flows, nonnative species removal, and reservoir management that
improves up- and downstream habitat to benefit the Zuni bluehead
sucker.
Subunit 1b--Zuni River Mainstem: Subunit 1b consists of 107.8 km
(67.0 mi) of potential Zuni bluehead sucker habitat along the Zuni
River, Rio Pescado, and Cebolla Creek in McKinley and Cibola Counties,
New Mexico. Land within this subunit is primarily owned by Zuni Pueblo
and private landowners, with a small amount of Forest Service and State
land. The Zuni bluehead sucker historically occupied these streams but
has not been found in the Zuni River or Rio Pescado since the mid-1990s
(NMDGF 2004, p. 5) and has been extirpated from Cebolla Creek since at
least 1979 (Hanson 1980, pp. 29, 34). We consider this unit unoccupied.
When wetted and if suitable habitat were present, the Zuni River and
Rio Pescado could provide important connections between occupied
reaches in Subunit 1a and potential future populations in Cebolla
Creek, which has been identified as containing suitable habitat in the
past and could provide for significant population expansion. Therefore,
this subunit is essential for the conservation of the Zuni bluehead
sucker because it provides for connection between populations and also
provides space for the growth and expansion of the species in this
portion of its historical range.
Unit 2: Kinlichee Creek Unit
Subunit 2a--Kinlichee Creek: Subunit 2a consists of 86.9 km (54.0
mi) along Kinlichee Creek and two tributaries (Black Soil Wash and
Scattered Willow Wash) in Apache County, Arizona. This entire subunit
is located within the Navajo Indian Reservation. The Zuni bluehead
sucker occupies all stream reaches in this subunit, and the subunit
contains all of the primary constituent elements of the physical or
biological features essential to the conservation of the Zuni bluehead
sucker.
Special management considerations or protection may be required
within Subunit 2a to address low water levels as a result of water
withdrawals and drought, sedimentation and riparian vegetation
destruction from road development and livestock grazing, and predation
from nonnative species. Such special management considerations or
protection may include instream flows, stream fencing, erosion control
structures along roads and during construction, reservoir management
that improves up- and downstream habitat to benefit the Zuni bluehead
sucker and nonnative species removal.
Subunit 2b--Red Clay Wash: Subunit 2b consists of 9.6 km (6.0 mi)
of potential Zuni bluehead sucker habitat along Red Clay Wash, in
Apache County, Arizona, on the Navajo Indian Reservation. The Zuni
bluehead sucker historically occupied this stream but does not
currently occur there. Inclusion of Red Clay Wash expands the recovery
potential of the Zuni bluehead sucker in the lower Kinlichee watershed
by increasing population redundancy within the species' historical
range and is therefore essential to the conservation of the species.
Unit 3: San Juan River Unit
Subunit 3a--Canyon de Chelly: Subunit 3a consists of 187.9 km
(112.7 mi) along Tsaile Creek, Wheatfields Creek, Whiskey Creek, Coyote
Wash, Crystal Creek, and Sonsela Creek in
[[Page 5360]]
Apache County, Arizona, and San Juan County, New Mexico. This unit is
located within the Navajo Indian Reservation, portions of which are
managed by the National Park Service as Canyon de Chelly National
Monument in trust for the Navajo Nation. The Zuni bluehead sucker
occupies all stream reaches in this subunit, and the subunit contains
all of the primary constituent elements of the physical or biological
features essential to the conservation of the Zuni bluehead sucker.
Special management considerations or protection may be required
within Subunit 3a to address low water levels as a result of water
withdrawals and drought, sedimentation and riparian vegetation
destruction from road development and livestock grazing, and predation
from nonnative species. Such special management considerations or
protection may include instream flows stream fencing, erosion control
structures along roads and during construction, reservoir management
that improves up- and downstream habitat to benefit the Zuni bluehead
sucker, and nonnative species removal.
Subunit 3b--Little Whiskey Creek: Subunit 3b consists of 8.9 km
(5.5 mi) of potential Zuni bluehead sucker habitat along Little Whiskey
Creek in San Juan County, New Mexico, on the Navajo Indian Reservation.
The Zuni bluehead sucker does not currently occur in Little Whiskey
Creek, but suitable habitat is present and it is reasonable to conclude
the species occurred there historically. Inclusion of Little Whiskey
Creek expands the recovery potential of the Zuni bluehead sucker in the
upper Whiskey Creek watershed by increasing population redundancy
within the species' historical range and is therefore essential to the
conservation of the species.
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 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 Zuni bluehead sucker. 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
[[Page 5361]]
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 Zuni bluehead sucker. These activities include,
but are not limited to:
(1) Actions that would diminish flows within the active stream
channel. Such activities could include, but are not limited to: Water
diversion, water withdrawal, channelization, construction of any
barriers or impediments within the active stream channel, construction
of permanent or temporary diversion structures, and groundwater pumping
within aquifers associated with the stream or springs. These activities
could affect water depth, velocity, and flow patterns, all of which are
essential to the different life stages of Zuni bluehead sucker.
(2) Actions that would significantly increase sediment deposition
within a stream channel. Such activities could include, but are not
limited to: Excessive sedimentation from livestock grazing, road
construction, commercial or urban development, channel alteration,
timber harvest, or other watershed and floodplain disturbances. These
activities could adversely affect reproduction of the species by
preventing hatching of eggs through suffocation, or by eliminating
suitable habitat for egg placement by Zuni bluehead sucker. In
addition, excessive levels of sedimentation reduce or eliminate algae
production and can make it difficult for the Zuni bluehead sucker to
locate prey.
(3) Actions that result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, even if those segments are occasionally intermittent,
or introduction of other species that compete with or prey on Zuni
bluehead sucker. Possible actions could include, but are not limited
to: Stocking of nonnative fishes, stocking of sport fish, or other
related actions. These activities can introduce parasites or disease,
or affect the growth, reproduction, and survival of Zuni bluehead
sucker.
(4) Actions that would significantly alter channel morphology. Such
activities could include, but are not limited to: Channelization,
impoundment, road and bridge construction, mining, dredging, and
destruction of riparian vegetation. These activities may lead to
changes in water flows and levels that would degrade or eliminate the
Zuni bluehead, their habitats, or both. These actions can also lead to
increased sedimentation and degradation of the water.
(5) Actions that significantly alter the water chemistry of the
active channel. Such activities could include release of chemicals,
biological pollutants, or other substances into the surface water or
connected groundwater at a point source or by dispersed release
(nonpoint source), and storage of chemicals or pollutants that can be
transmitted, via surface water, groundwater, or air, into critical
habitat. These actions can affect water chemistry and the prey base of
the Zuni bluehead sucker.
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) 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 within the proposed
critical habitat designation for Zuni bluehead sucker.
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. Potential land use sectors that may be affected by the Zuni
bluehead sucker critical habitat designation include water diversion or
impoundment repairs, forest management (silvicultural practices), fire
suppression activities, road development, grazing, groundwater
[[Page 5362]]
withdrawals, and subdivision development. We also consider any social
impacts that might occur because of the designation.
During the development of a final designation, we will consider
economic impacts based on information in our economic analysis, 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 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 Zuni bluehead sucker 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.
When we evaluate the existence of a conservation plan when
considering the benefits of exclusion, we consider a variety of
factors, including but not limited to, whether the plan is finalized;
how it provides for the conservation of the essential physical or
biological features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
There are tribal lands included in the proposed designation of
critical habitat for the Zuni bluehead sucker. Using the criteria found
in the Criteria Used To Identify Critical Habitat section, we have
determined that tribal lands that are occupied by the Zuni bluehead
sucker contain the features essential for the conservation the species,
as well as tribal lands unoccupied by the Zuni bluehead sucker that are
essential for the conservation of the species. We have begun
government-to-government consultation with these tribes, and will
continue to do so throughout the public comment period and during
development of the final designation of critical habitat for the Zuni
bluehead sucker. We will consider these areas for exclusion from the
final critical habitat designation to the extent consistent with the
requirements of section 4(b)(2) of the Act. The Navajo Nation and Zuni
Pueblo are the main tribes affected by this proposed rule. We sent
notification letters in July 2012 to both tribes describing the
exclusion process under section 4(b)(2) of the Act, and we have engaged
in conversations with both tribes about the proposal to the extent
possible without disclosing predecisional information. We coordinated
with the Navajo Nation in May 2012, to coordinate surveys on Navajo
lands. Additionally, we are working with Zuni Pueblo to develop a
management plan for their lands. We will schedule a meeting with the
tribes and any other interested tribes shortly after publication of
this proposed rule so that we can give them as much time as possible to
comment.
A final determination on whether the Secretary will exercise his
discretion to exclude any of these areas from critical habitat for the
Zuni bluehead sucker will be made when we publish the final rule
designating critical habitat. We will take into account public comments
and carefully weigh the benefits of exclusion versus inclusion of these
areas. We may also consider areas not identified above for exclusion
from the final critical habitat designation based on information we may
receive during the preparation of the final rule (e.g., management
plans for additional areas).
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 listing determination and critical habitat designation are
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 the FOR
FURTHER INFORMATION CONTACT section. 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 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 Executive Order
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. Executive Order 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
[[Page 5363]]
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.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the EO regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.
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. 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 proposed 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
[[Page 5364]]
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 lack the available economic information to determine if a
Small Government Agency Plan is required. Therefore, we defer this
finding until completion of the draft economic analysis is prepared
under section 4(b)(2) of the Act.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we will analyze the potential takings implications of designating
critical habitat for the Zuni bluehead sucker in a takings implications
assessment. The draft economic analysis will provide the foundation for
us to use in preparing a takings implication 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.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
Federalism assessment is not required. In keeping with Department of
the Interior and Department of Commerce policy, we requested
information from, and coordinated development of, this proposed
critical habitat designation with appropriate State resource agencies
in New Mexico and Arizona. The designation of critical habitat in areas
currently occupied by the Zuni bluehead sucker imposes no additional
restrictions to those currently in place and, therefore, has little
incremental impact on State and local governments and their activities.
The designation may have some benefit to these governments 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 of the habitat 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 are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, the rule
identifies the elements of physical or biological features essential to
the conservation of the species. The designated areas of critical
habitat are presented on maps, and the rule provides several options
for the interested public to obtain more detailed location information,
if desired.
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 NEPA in connection with designating
critical habitat under the Endangered Species 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)). However, when the range of the species includes States within
the Tenth Circuit, such as that of the Zuni bluehead sucker, under the
Tenth Circuit ruling in Catron County Board of Commissioners v. U.S.
Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will
undertake a NEPA analysis for critical habitat designation and notify
the public of the availability of the draft environmental assessment
for this proposal when it is finished.
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.
There are tribal lands in Arizona and New Mexico included in this
proposed designation of critical habitat. Using the criteria found in
the Criteria Used To Identify Critical Habitat section, we
[[Page 5365]]
have determined that there are tribal lands that are occupied by the
Zuni bluehead sucker that contain the features essential for the
conservation of the species, as well as tribal lands unoccupied by the
species at the time of listing that are essential for the conservation
of the Zuni bluehead sucker. We have begun government-to-government
consultation with these tribes throughout the public comment period and
during development of the final designation of Zuni bluehead sucker
critical habitat. We will consider these areas for exclusion from the
final critical habitat designation to the extent consistent with the
requirements of section 4(b)(2) of the Act. The Navajo Nation and Zuni
Pueblo are the main tribes affected by this proposed rule. We sent
notification letters in July 2012 to each tribe describing the
exclusion process under section 4(b)(2) of the Act, and we have engaged
in conversations with both tribes about the proposal to the extent
possible without disclosing predecisional information. We coordinated
with the Navajo Nation in May 2012 to coordinate surveys on Navajo
lands. Additionally, we are working with Zuni Pueblo to develop a
management plan for their lands. We will schedule meetings with these
tribes and any other interested tribes shortly after publication of
this proposed rule so that we can give them as much time as possible to
comment.
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
New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the New Mexico Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.95, amend paragraph (e) by adding an entry for ``Zuni
bluehead sucker (Catostomus discobolus yarrowi),'' after the entry for
``Warner Sucker (Catostomus warnerensis)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Zuni bluehead sucker (Catostomus discobolus yarrowi)
(1) Critical habitat units are depicted for Apache County, Arizona,
and Cibola, McKinley, and San Juan Counties, New Mexico, on the maps
below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Zuni bluehead sucker consist of three components:
(i) A riverine system with habitat to support all life stages of
Zuni bluehead sucker, which includes:
(A) Dynamic flows that allow for periodic changes in channel
morphology and adequate river functions, such as channel reshaping and
delivery of coarse sediments.
(B) Stream courses with perennial flows, or areas that may be
periodically dewatered but serve as connective corridors between
occupied or seasonally occupied habitat and through which the species
may move when the habitat is wetted.
(C) Stream microhabitat types including runs, riffles, and pools
with substrate ranging from gravel, cobble and bedrock substrates with
low or moderate amounts of fine sediment and substrate embeddedness.
(D) Streams with depths generally less than 2 m (3.3 ft), and with
slow to swift flow velocities less than 35 cm/sec (1.1 ft/sec).
(E) Clear, cool water with low turbidity and temperatures in the
general range of 9.0 to 28.0 [deg]C (48.2 to 82.4 [deg]F).
(F) No harmful levels of pollutants.
(G) Adequate riparian shading to reduce water temperatures when
ambient temperatures are high and provide protective cover from
predators.
(ii) An abundant aquatic insect food base consisting of fine
particulate organic material, filamentous algae, midge larvae,
caddisfly larvae, mayfly larvae, flatworms, and small terrestrial
insects.
(iii) Areas devoid of nonnative aquatic species or areas that are
maintained to kept nonnatives at a level that allows the Zuni bluehead
sucker to continue to survive and reproduce.
(3) Critical habitat does not include manmade structures (such as
bridges, docks, and aqueducts) and the land on which they are located
existing within the legal boundaries on [DATE 30 DAYS AFTER THE DATE OF
PUBLICATION OF THE FINAL RULE IN THE Federal Register].
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS digital ortho-photo quarter-quadrangles, and
critical habitat units were then mapped using Universal Transverse
Mercator (UTM) Zone 15N coordinates. 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/NewMexico/),
(http://www.regulations.gov at Docket No. FWS-R2-ES-2013-002 and at the
New Mexico Ecological Services Field Office. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR part 22.
(5) Note: Index of critical habitat units for the Zuni bluehead
sucker follows:
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[[Page 5366]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.012
(6) Unit 1: Zuni River Unit, McKinley and Cibola Counties, New
Mexico. Map of Unit 1 follows:
[[Page 5367]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.013
(7) Unit 2: Kinlichee Creek Unit, Apache County, Arizona, and
McKinley and San Juan Counties, New Mexico. Map of Unit 2 follows:
[[Page 5368]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.014
[[Page 5369]]
(8) Unit 3: San Juan River Unit, Apache County, Arizona, and San
Juan County, New Mexico. Map of Unit 3 is provided at paragraph (7) of
this entry.
* * * * *
Dated: January 15, 2013.
Michael Bean,
Acting Principal Deputy Assistant Secretary for Fish Wildlife and
Parks.
[FR Doc. 2013-01302 Filed 1-24-13; 8:45 am]
BILLING CODE 4310-55-P