[Federal Register Volume 78, Number 224 (Wednesday, November 20, 2013)]
[Rules and Regulations]
[Pages 69569-69591]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27736]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0005: 4500030113]
RIN 1018-AZ28
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Jemez Mountains Salamander
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical
habitat for the Jemez Mountains salamander (Plethodon neomexicanus)
under the Endangered Species Act of 1973 (Act), as amended. In total,
we are designating as critical habitat for this species approximately
90,716 acres (36,711 hectares) in Los Alamos, Rio Arriba, and Sandoval
Counties, New Mexico. The effect of this regulation is to conserve the
Jemez Mountains salamander's habitat under the Act.
DATES: This rule is effective on December 20, 2013.
ADDRESSES: This final rule is available on the Internet at http://www.fws.gov/southwest/es/NewMexico/index.cfm and at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005. Comments and
materials we received, as well as supporting documentation used in
preparing this final rule, are available for public inspection, by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, New Mexico Ecological Services Field Office, 2105
Osuna NE., Albuquerque, NM 87113; telephone 505-346-2525; or facsimile
505-346-2542.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.fws.gov/southwest/es/NewMexico/index.cfm, at http://www.regulations.gov at Docket No.
FWS-R2-ES-2013-0005, and at the New Mexico Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or
supporting information that we developed for this critical habitat
designation are also available at the Fish and Wildlife Service Web
site and Field Office set out above, and may also be included in the
preamble of this rule or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Wally 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. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act
(Act), any species that is determined to be an endangered or threatened
species requires critical habitat to be designated, to the maximum
extent prudent and determinable. Designations and revisions of critical
habitat can only be completed by issuing a rule.
We listed the Jemez Mountains salamander as an endangered species
on September 10, 2013 (78 FR 55599). This is a final rule to designate
critical habitat for the Jemez Mountains salamander. Section 4(b)(2) of
the Act states that the Secretary shall designate 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 critical habitat areas we are designating in this rule
constitute our
[[Page 69570]]
current best assessment of the areas that meet the definition of
critical habitat for the Jemez Mountains salamander. We are designating
as critical habitat for the species approximately 90,716 acres (36,711
hectares) in Los Alamos, Rio Arriba, and Sandoval Counties, New Mexico.
We have prepared economic and environmental analyses of the
designation of critical habitat. In order to consider economic impacts,
we have prepared an analysis of the economic impacts of the critical
habitat designation and related factors. We also prepared an
environmental analysis of the designation of critical habitat in order
to evaluate whether there would be any significant environmental
impacts as a result of the critical habitat designation. We announced
the availability of the draft economic analysis and the draft
environmental assessment in the Federal Register on February 12, 2013
(78 FR 9876), allowing the public to provide comments on our analyses.
We have incorporated the comments and have completed the final economic
analysis and final environmental analysis for this final designation.
Peer review and public comment. We sought comments from seven
independent specialists to ensure that our designation is based on
scientifically sound data and analyses. We obtained opinions from three
of the seven knowledgeable individuals with scientific expertise to
review our technical assumptions and analysis, and to determine whether
or not we had used the best available scientific information. These
peer reviewers generally concurred with our methods and conclusions,
and they provided additional information, clarifications, and
suggestions to improve this final rule. Information we received from
peer review is incorporated in this final revised designation. We also
considered all comments and information we received from the public
during the comment period.
Previous Federal Actions
These actions are described in the Previous Federal Actions section
of the final listing rule published on September 10, 2013 (78 FR
55599).
Background
The Jemez Mountains salamander is restricted to the Jemez Mountains
in northern New Mexico, in Los Alamos, Rio Arriba, and Sandoval
Counties, around the rim of the collapsed caldera (large volcanic
crater), with some occurrences on topographic features (e.g., resurgent
domes) on the interior of the caldera. The majority of salamander
habitat is located on federally managed lands, including the U.S.
Forest Service (USFS), the National Park Service (Bandelier National
Monument), Valles Caldera National Preserve, and Los Alamos National
Laboratory, with some habitat located on tribal land and private lands
(New Mexico Endemic Salamander Team 2000, p. 1). The Valles Caldera
National Preserve is located within the valley of the extinct volcanic
crater itself and is part of the National Forest System (owned by the
U.S. Department of Agriculture), but run by a nine-member Board of
Trustees, some of whom are not USFS employees.
For additional background information on the biology, taxonomy,
distribution, and habitat of the Jemez Mountains salamander, see the
Background section of the final listing rule published on September 10,
2013 (78 FR 55599).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Jemez Mountains salamander
during two comment periods. The first comment period associated with
the publication of the proposed rule (77 FR 56482) opened on September
12, 2012, and closed on November 13, 2012. We also requested comments
on the proposed critical habitat designation and associated draft
economic analysis and draft environmental assessment during a comment
period that opened February 12, 2013, and closed on March 14, 2013 (78
FR 9876). We also contacted appropriate Federal and State agencies,
scientific experts and organizations, and other interested parties and
invited them to comment on the proposal. A newspaper notice inviting
general public comment was published in the Los Alamos Monitor. We did
not receive any requests for a public hearing.
During the first comment period, we received nine comment letters
addressing the proposed listing of the Jemez Mountains salamander and
the proposed critical habitat designation. During the second comment
period, we received 11 comment letters addressing the proposed listing
of the Jemez Mountains salamander, the proposed critical habitat
designation, the draft economic analysis, or the draft environmental
assessment. All substantive information related to the proposed
critical habitat designation that was provided during comment periods
has either been incorporated directly into this final determination or
is addressed below. Comments we received are grouped into general
issues specifically relating to the proposed critical habitat
designation for the Jemez Mountains salamander, and are addressed in
the following summary and incorporated into the final rule as
appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from seven knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from three of
the peer reviewers.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the Jemez Mountains salamander. All three peer reviewers agreed that
the information presented in the proposed rule to list the Jemez
Mountains salamander with critical habitat is scientifically sound and
well researched; agreed that the assumptions, analyses, and conclusions
are well reasoned; and generally agreed that the information is well
formulated and that the risks or threats to the species have been
appropriately evaluated. The peer reviewers provided clarifications and
suggestions to improve the final rules to list the Jemez Mountains
salamander as endangered and to designate critical habitat. Peer
reviewer comments specifically regarding the designation of critical
habitat are addressed in the following summary and incorporated into
the final rule as appropriate.
Peer Reviewer Comments
(1) Comment: Two peer reviewers thought we should not have removed
isolated historical data points (i.e., survey locations). One peer
reviewer noted that there did seem to be sufficient area for the
conservation of the species, and the other peer reviewer thought the
isolated historical point data should be included, especially for areas
in the northeast portion of the Valles Caldera National Preserve if
large numbers of salamanders were previously reported.
Our Response: We removed isolated historical data points from our
analysis only in occasional instances when the areas at and around such
isolated data points have not been visited for approximately 20 years
or more. The survey data for these areas are insufficient to determine
whether the areas are occupied. We are not aware of any area where
large numbers of
[[Page 69571]]
salamanders have ever been observed that is outside of the critical
habitat boundaries designated in this final rule.
(2) Comment: One peer reviewer commented that solid stands of
Ponderosa pine (Pinus ponderosa) are not optimal salamander habitat,
and few, if any, salamanders are likely to occur here due to the drier
conditions, suggesting that the primary constituent element of certain
tree species alone or in combination should not include Ponderosa pine
alone.
Our Response: Based on the biological and physiological needs of
the species, pure stands of Ponderosa pine may not be the most
favorable type of habitat and do not represent the majority of habitat;
however, the species does occur in pure stands of Ponderosa pine.
The primary constituent elements essential to the conservation of
the species (such as space, food, cover, and protected habitat) include
tree canopy cover greater than 50 percent, elevation between 6,988 to
11,254 feet (ft) (2,130 to 3,430 meters (m)), coniferous logs, and
underground habitat (more detailed description of these features are in
the Primary Constituent Elements for the Jemez Mountains Salamander
section of this final rule). The pure stands of Ponderosa pine contain
at least one of the primary constituent elements for the Jemez
Mountains salamander. Consequently, the Service designated critical
habitat in stands of pure Ponderosa pine in both units (e.g., west of
Seven Springs in Unit 1, and at American Springs and adjacent to the
Rio Cebolla in Unit 2).
(3) Comment: One peer reviewer commented on the statement in the
proposed critical habitat rule, ``There does not seem to be any areas
in occupied salamander habitat that are protected from disturbance''
(77 FR 56504; September 12, 2012) and suggested that Redondo Peak, the
highest point where salamanders are found, might be protected from
disturbance.
Our Response: Redondo Peak does receive some protection at this
time because the Valles Caldera Trust manages for its ecological and
scenic values, and also protects its significant cultural, religious,
and historic values. The Valles Caldera Preservation Act (16 U.S.C.
698v et seq.) prohibits motorized access as well as any construction of
roads, structures, or facilities on Redondo Peak above 10,000 ft (3,048
m). While Redondo Peak is afforded some protection from new actions
that would disturb habitat, it still experiences impacts to habitat
from past silvicultural practices, alterations in vegetation
composition and fire regimes, existing roads, and climate change. The
Background section under Critical Habitat below in this final rule
provides additional information.
(4) Comment: Two peer reviewers and some commenters thought
additional information regarding our understanding of the subsurface
rock and soil components of salamander habitat should be included in
the habitat section.
Our Response: Subsurface geology and loose rocky soil structure may
be an important attribute of salamander habitat (Degenhardt et al.
1996, p. 28). However, the composition of this belowground habitat has
not been fully investigated, although soils comprised of pumice or tuft
generally are not suitable. The salamander's belowground habitat
appears to be deep, fractured, subterranean igneous rock in areas with
high soil moisture (New Mexico Endemic Salamander Team 2000, p. 2).
Everett (2003) reported that the salamander occurred in areas where
soil texture was composed of 56 percent sandy clay loam, 36 percent
clay loam, 6 percent sandy loam, and 2 percent silty clay loam (p. 28);
the overall soil bulk density ranged from 0.2 to 0.98 ounces per cubic
inch (oz per in\3\) (0.3 to 1.7 grams per cubic centimeter (g per
cm\3\) (p. 28); and average soil moisture ranged from 4.85 to 59.7
percent (p. 28). Sites with salamanders had a soil pH of 6.6 ( 0.08), and sites without salamanders had a soil pH of 6.2
( 0.06) (Ramotnik 1988, pp. 24-25). We have updated the
relevant sections of this final rule to better describe our current
understanding of subsurface rock and soil components where the Jemez
Mountains salamander occurs. We have clarified the language in relevant
sections of this final rule. We are not aware of any reliable
information that is currently available to us on these topics that was
not considered in this designation process.
Comments From the U.S. Forest Service
(5) Comment: It is questionable whether the data used in the
proposed rule are sufficient for the Service to determine critical
habitat and primary constituent elements.
Our Response: It is often the case that biological information may
be lacking for rare species; however, we reviewed all available
information and incorporated it into this final rule. Section 4(a)(3)
of the Act (16 U.S.C. 1531 et seq.), and its 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 at 50 CFR 424.12(a)(2) state that critical habitat is not
determinable when one or both of the following situations exist: (1)
Information sufficient to perform required analyses of the impacts of
the designation is lacking, or (2) 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
provides for an additional year to publish a critical habitat
designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the best
available scientific information pertaining to the biological needs of
the species and habitat characteristics where this species is located.
We sought comments from independent peer reviewers to ensure that our
designation is based on scientifically sound data, assumptions, and
analysis. We also solicited information from the general public,
nongovernmental conservation organizations, State and Federal agencies
that are familiar with the species and their habitats, academic
institutions, and groups and individuals that might have information
that would contribute to an update of our knowledge of the species as
well as the activities and natural processes that might be contributing
to the decline of the species. We conclude that the designation of
critical habitat is determinable for the Jemez Mountains salamander.
(6) Comment: Practical ways to measure primary constituent elements
should be defined, and the scale at which primary constituent elements
are measured on the landscape should be specified. It is virtually
impossible for the USFS to plan for a specific range in canopy cover or
plan a thinning or prescribed fire project with canopy cover as an
objective. Forests of the Jemez Mountains are dynamic in nature,
consisting of mixed severity fire regimes in moist mixed conifer up to
spruce-fir forests that likely ranged from moderately closed canopy to
closed and also resulted in patches within stands with open canopy
following stand-replacement fires.
Our Response: The Service is not requiring the USFS to plan for a
specific range in canopy cover or plan a thinning or prescribed fire
project with canopy cover as an objective. Rather, we are evaluating
whether the affected critical habitat would continue to serve its
intended conservation role for the species. Determining effects to
critical habitat will be determined through section 7 consultation with
the Service. These consultations will take place within the context of
dynamic forests in
[[Page 69572]]
need of restoration. We anticipate consultations with the USFS
analyzing the primary constituent element of ``moderate to high tree
canopy cover, typically 50 to 100 percent canopy closure, that provides
shade and maintains moisture and high relative humidity at the ground
surface'' for the Jemez Mountains salamander will be similar to
consultations with the USFS analyzing the primary constituent element
of ``A shade canopy created by the tree branches covering 40 percent or
more of the ground'' for the Mexican spotted owl (Strix occidentalis
lucida), particularly where the ranges of the species overlap.
(7) Comment: The primary constituent element of canopy cover needs
to be defined as a range rather than a specific number and possibly by
forest type.
Our Response: In this final rule, we have clarified the primary
constituent element concerning canopy cover is a range. The range for
tree canopy is defined in this final rule as moderate to high tree
canopy cover, typically 50 to 100 percent canopy closure, that provides
shade and maintains moisture and high relative humidity at the ground
surface.
(8) Comment: High canopy cover is likely to decrease the amount of
moisture reaching the soil surface through sublimation (transformation
from a solid to a gas without becoming a liquid) of snow from the tree
canopy (Storck et al. 2002), further impacting moisture regimes for
salamanders.
Our Response: The relationship between seasonal precipitation,
canopy cover, vegetation type, tree density, geology, soil type, and
soil moisture is complex and not well-studied in the Jemez Mountains.
Everett (2003, p. 24) characterized Jemez Mountains salamander's
habitat as having an average canopy cover of 76 percent, with a range
between 58 to 94 percent, and average soil moisture between 4.85 and
59.7 percent (p. 28). When Jemez Mountains salamanders have been
observed above ground during the day, they are primarily found in high
moisture retreats (such as under and inside decaying logs and stumps,
and under rocks and bark) (Everett 2003, p. 24) with high overstory
canopy cover.
Soil moisture conditions can vary spatially between the ground
under tree canopy and the ground without tree canopy, as a result of
the interrelated processes among soil evaporation, leaf interception,
runoff generation and redistribution, and plant water use (Breshears et
al. 1998, p. 1015). Relative to the ground without tree canopy, the
ground beneath the canopy receives reduced precipitation input due to
the interception of the precipitation from leaves. This also influences
soil evaporation rates (Breshears et al. 1998, p. 1010). In a study
measuring spatial variations in soil evaporation caused by tree shading
for a water-limited pine forest in Israel, the authors report that the
spatial variability in soil evaporation correlated with solar
radiation, which was up to 92 percent higher in exposed compared to
shaded sites, and with water content, which was higher in exposed areas
during the wetting season, but higher in the shaded areas during the
drying season (Raz-Yaseef and Yakir 2010, p. 454). This study
highlights the importance of shade and soil moisture conservation, and
generally supports the findings of Breshears et al. (entire).
Without specific studies measuring these processes in salamander
habitat, we are not able to determine how the changes in vegetation
composition and structure may have altered soil moisture, evaporation,
and temperature processes, but we do understand that vegetation
structure can directly influence hydrological processes that are
correlated to solar radiation, precipitation, and seasonality, as well
as other abiotic factors, such as soil type, slope, and topography.
Furthermore, these complex interactions should be considered when
forest restoration treatments that alter canopy cover are conducted in
salamander habitat.
(9) Comment: Consultations could result in modifications, which
result in delays to projects that would reduce the threat of high-
intensity wildfire, thereby causing significant impacts to human health
and safety.
Our Response: Under no circumstances should a Service
representative obstruct an emergency response decision made by the
action agency where human life is at stake. In any future consultation
for the salamander, the Service does not intend or expect to recommend
measures that will increase the threat of high-intensity wildfire. Both
public and private entities may experience incremental time delays for
projects and other activities due to requirements associated with the
need to re-initiate the section 7 consultation process or compliance
with other laws triggered by the designation. To the extent that delays
result from the designation, they are considered indirect, incremental
impacts of the designation.
(10) Comment: Several commenters stated that more scientific
information is needed to accurately define the primary constituent
elements, that the primary constituent elements are overly broad and
are not appropriate, and the the Service has not looked at all the
scientific data available on the ecology of the Jemez Mountains.
Our Response: Section 4(b)(2) of the Act states, ``The Secretary
shall designate critical habitat, and make revisions thereto, under
subsection (a)(3) on the basis of the best scientific data available.''
We considered the best scientific information available to us at this
time, as required by the Act. This designation is based upon the known
body of information on the biology of the Jemez Mountains salamander
and its most closely related species, as well as effects from land-use
practices on their continued existence. All three peer reviewers
confirmed that the information contained within this rule is
scientifically sound; based on a combination of reasonable facts,
assumptions, and conclusions; and well considered. We are not aware of
any reliable information that is currently available to us that was not
considered in this designation process. This final determination
constitutes our best assessment of areas needed for the conservation of
the species. Much remains to be learned about this species. Should
credible, new information become available that contradicts this
designation, we will reevaluate our analysis and, if appropriate,
propose to modify this critical habitat designation, depending on
available funding and staffing. We must make this determination on the
basis of the best information available at this time, and we may not
delay our decision until more information about the species and its
habitat are available (see Southwest Center for Biological Diversity v.
Babbitt, 215 F.3d 58 (D.C. Cir. 2000)).
(11) Comment: Several commenters stated that the primary
constituent elements and critical habitat for the salamander are
contrary to managing fire-resilient forests, are contrary to restoring
forests to a sustainable fire regime condition class, or are a
significant contribution to fuel loading and risk of catastrophic fire.
Designation and management of critical habitat will place an additional
burden on land management agencies, further inhibiting their ability to
prevent or suppress large-scale, stand-replacing wildfire, one of the
greatest threats to the salamander and its habitat. Some of the primary
constituent elements are based on current conditions, not historical
conditions. Management for the salamander should be done in a manner to
improve fire resiliency and with a goal of moving habitat toward old
growth characteristics where feasible, taking into consideration
ecological conditions such as slope, aspect, soil
[[Page 69573]]
productivity, and recognizing that forests are dynamic where climate,
fire, and disease are drivers. The citation used for canopy cover is
based on current and unsustainable forest conditions. Application of
survey requirements for salamanders across the described range of above
6,900 ft (2,103 m) would effectively prevent management from occurring
at any scale that would influence landscape-level wildfire.
Our Response: We understand fire-resilient forests to be forests
that are able to survive wildfires relatively intact, or with less
severe ecological damage than would occur in non-resilient forests. The
Service recognizes that salamander habitat has undergone change
resulting from historical grazing practices and effective fire
suppression, most often resulting in shifts in vegetation composition
and structure and increased risk of large-scale, stand-replacing
wildfire. While we do not have a full understanding of how these
particular alterations affect the salamander (potentially further
drying habitat through increased water demand or increased density of
trees, or, alternatively, potentially increasing habitat moisture from
a higher canopy cover), we do know that the changes in the vegetative
component of salamander habitat have greatly increased the risk of
large-scale, stand-replacing wildfire.
In the proposed rule and this final rule, the Service identifies
reducing fuels to minimize the risk of severe wildfire in a manner that
considers the salamander's biological requirements as a special
management activity that could ameliorate threats to the species. We
note that fires are a natural part of the fire-adapted ecosystem in
which the salamander has evolved. This may include prescribed fire and
thinning treatments, restoration of the frequency and spatial extent of
such disturbances as regeneration treatments, and implementation of
prescribed natural fire management plans where feasible. We consider
use of such treatments to be compatible with the ecosystem management
of habitat mosaics and the best way to reduce the threats of
catastrophic wildfire. The maintenance of primary constituent elements,
moist microhabitat conditions, and attributes of a mixed severity fire
regime (a mosaic of differing fire intensities) over a portion of the
landscape and in areas that support salamanders is important to the
recovery of the salamander, and critical habitat designation does not
preclude the proactive treatments necessary to reduce the risk of
catastrophic fire or proactively managing forests to restore them to
old growth conditions, nor are there survey requirements associated
with this designation.
The loss of salamander habitat by catastrophic fire is counter to
the intended benefits of critical habitat designation. Furthermore, we
expect that some activities may be considered to be of benefit to
salamander habitat and, therefore, would not be expected to adversely
modify critical habitat or place an additional burden on land
management agencies. In addition, critical habitat does not preclude
adaptive management or the incorporation of new information on the
interaction between natural disturbance events and forest ecology. We
continue to support sound ecosystem management and the maintenance of
biodiversity, and we will fully support land management agencies in
addressing the management of fire to protect and enhance natural
resources under their stewardship.
During a multi-agency, multi-stakeholder collaborative meeting in
2010, to discuss salamander conservation and forest management,
attendants recognized the importance of allowing fire to return to
southwestern forests, and the Jemez Mountains, in particular. There was
agreement that focusing restoration treatments on south-facing slopes
that have converted to xeric mixed conifer over the past 100 years
would break up the continuity of excessive fuels across the landscape
and would be a good starting place to reduce the risk of large-scale
wildfires in the Jemez Mountains. It was agreed upon that there would
be short-term negative impacts to the salamander and its habitat on
south-facing slopes, but that the approach overall was beneficial to
the conservation of the species and its habitat over its entire range
(Jemez Mountains Salamander Adaptive Planning Workshop 2010, pp. 8-11).
(12) Comment: The USFS stated that using only the decision
criterion of administrative costs associated with expanded consultation
fails to include the full range of costs when projects are delayed or
changed. The USFS suggests that the Service should also calculate the
costs associated with the reasonable and prudent alternatives that
could result from consultation, such as relocation of projects outside
salamander habitat or monitoring for salamanders before activities
occur.
Our Response: As stated in the executive summary of the final
economic analysis, the Service anticipates that in cases where an
action is found to adversely modify critical habitat for the
salamander, the action would also be found to jeopardize the species
(IEc 2013, p. ES-4). That is, actions which the Service is likely to
recommend avoiding adverse modification are the same as those to avoid
jeopardy. Thus, the incremental impacts of the critical habitat
designation for the salamander appear unlikely to include additional
conservation actions or project modifications. As a result, the
economic analysis focused on quantifying the incremental impacts
associated with the administrative effort of addressing potential
adverse modification of critical habitat in the context of section 7
consultations.
Comments Received From the U.S. Forest Service on the Draft
Environmental Assessment
(13) Comment: The draft environmental assessment should describe
the effects that large areas (such as the area currently proposed as
critical habitat) of closed canopy may have to the salamander under
current fire conditions.
Our Response: We understand that the forests of the Jemez Mountains
are dynamic, and we are not suggesting that the entire area of critical
habitat consists of uniformly closed canopy throughout the two units of
critical habitat. Furthermore, the designation of critical habitat does
not require the creation of primary constituent elements where they do
not currently exist. The proposed rule included the Service's analysis
of the relationship of forest canopy to Jemez Mountains salamander
habitat and fire conditions, concluding, ``Therefore, forest
composition and structure conversions resulting in increased canopy
cover and denser understory pose threats to the salamander now and are
likely to continue in the future'' (77 FR 56489; September 12, 2012).
(14) Comment: The draft environmental assessment first states it
will analyze effects on physical, biological, and socioeconomic
resources, but its analysis then states it only focuses on consultation
impacts.
Our Response: Section 3.1.1 of the final environmental assessment,
``Methodology,'' explains why the proposed action is not expected to
produce effects to physical and biological resources environments, and
why the analysis focuses on the impacts of expanding jeopardy
consultations to include adverse modification (Mangi Environmental
Group 2013, pp. 20-23).
(15) Comment: The draft environmental assessment states that
effects from designating critical habitat would be minor, but presents
no evidence. The USFS would argue that
[[Page 69574]]
not being able to implement a project, such as the Southwest Jemez
Mountains Collaborative Forest Landscape Restoration Project, to its
full extent is likely to result in a high-intensity wildfire with
associated costs to society and natural resources.
Our Response: As stated in the final environmental assessment, we
may use habitat as a proxy for species presence in future
consultations, because the life history and behavior of salamanders
make them difficult to survey or detect (Mangi Environmental Group
2013, pp. 21-22). Therefore, consultation outcomes that affect the
Southwest Jemez Mountains Collaborative Forest Landscape Restoration
Project would be the same whether or not critical habitat is
designated, and the impacts of concern here are not attributable to the
designation of critical habitat.
(16) Comment: The environmental assessment should analyze the
benefits of exclusion of critical habitat according to section 4(b)(2)
of the Act.
Our Response: 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 she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she 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. We did not identify any areas for exclusion that were
appropriate for consideration under section 4(b)(2) of the Act;
therefore there were no exclusions to evaluate in the environmental
assessment.
(17) Comment: The draft environmental assessment lists
contradictory recommendations to avoid destruction or adverse
modification of critical habitat and to avoid jeopardy.
Our Response: No consultations have yet been conducted for the
Jemez Mountains salamander, so the potential outcomes and modifications
presented in the environmental assessment represent a range of possible
outcomes. The type of project, the timing of the project, and the
duration of the project, in addition to other factors, will be
evaluated during any future consultations and will determine the
specific outcomes or recommended modifications. In most cases, we
expect that the same agencies and types of projects will go through the
section 7 consultation process with or without critical habitat, and we
anticipate that recommended actions in a section 7 consultation will be
same to avoid adverse modification and jeopardy.
(18) Comment: Cumulative effects analysis in the draft
environmental assessment needs to: (a) Identify spatial and temporal
bounds, (b) include cumulative effects for other foreseeable listings,
(c) total all consultation costs within the proposed area, and (d)
clarify what cumulative effects are being considered.
Our Response: The spatial bounds for cumulative analysis are the
boundaries of proposed critical habitat. While it is possible that
certain activities requiring consultation could occur outside of
critical habitat, there is none currently foreseeable. Also, it was
beyond the purview of the environmental assessment to speculate on the
prudency or actual boundaries of a critical habitat designation for
candidate species. In addition, total consultation costs are given in
the analysis of socioeconomic impacts as approximately $260,000 (IEc
2013, p. ES-4). Mention of this figure has been added to the cumulative
impacts analysis of socioeconomic effects in the final environmental
assessment (Mangi Environmental Group 2013, p. 63). For clarity, the
following section in ``Methodology'' is repeated in the ``Cumulative
Effects''section of the final environmental assessment: ``In the case
of the salamander, the Service expects that the same agencies and types
of projects would go through the section 7 consultation process with or
without critical habitat, and that the same number of projects would
likely undergo consultation with critical habitat as without.
Therefore, the analysis of impacts to resources and activities focuses
on the impacts of expanding jeopardy consultations to include analysis
of adverse modification.''
(19) Comment: The only costs listed in the environmental assessment
are for the Socioeconomics and Development sections.
Our Response: In our economic analysis, the Service estimates the
present value of all incremental impacts to be approximately $264,000
over 20 years, assuming a 7 percent discount rate. These incremental
costs are administrative costs resulting from the consideration of
adverse modification in section 7 consultations regarding fire
management ($120,000), road maintenance ($71,000), and other Federal
and State land management activities, such as noxious weed control,
recreational management, livestock grazing, and the operation of the
Seven Springs Fish Hatchery ($73,000) (IEc 2012). The components of
total consultation costs are now itemized in the final environmental
assessment (Mangi Environmental Group 2013, pp. 59-60).
(20) Comment: The map on page 16 of the draft environmental
assessment should show where salamanders are found, and overlay the
essential, survey, and peripheral zones.
Our Response: The map on page 16 of the environmental assessment
displays the proposed critical habitat units. Overlaying the habitat
management zones, as described in the multi-agency Salamander
Conservation Plan (NMEST 2000), does not aid in evaluating the
environmental impacts of critical habitat designation. The coordinates
or plot points or both from which the maps for designated critical
habitat are generated are included in the administrative record for
this critical habitat designation and are available at http://www.fws.gov/southwest/es/NewMexico/index.cfm, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, and at the New
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT). Any additional tools or supporting information that we
developed for this critical habitat designation will also be available
on the Service's Web sites and at New Mexico Ecological Services Field
Office.
(21) Comment: In the draft environmental assessment, the Service
projects a number of consultations within the ``Land Use'' section, but
for no other resources.
Our Response: Projected numbers of consultations have been added to
the relevant sections of the final environmental assessment: 20 formal
consultations for fire management, 6 for travel and recreation, 4 for
noxious weed management, 2 for the Seven Springs Fish Hatchery, and 5
for road projects (Mangi Environmental Group 2013, p. 32).
(22) Comment: There is a contradiction in the draft environmental
assessment statement that, ``As human development and recreation
increase in the Jemez Mountains the presence of Wild Urban Interfaces
(WUIs) could increase within and around proposed critical habitat.''
[[Page 69575]]
Our Response: Page 45 the draft environmental assessment stated,
``Projects that increase human disturbances in remote locations like
residential development, construction of roads and trails in
recreational areas, and road clearing and maintenance activities, could
adversely affect the species and its habitat,'' which is consistent
with the statement to which the commenter refers (Mangi Environmental
Group 2013, pp. 45). However, we are unaware of any major construction
projects planned within the proposed critical habitat. Beyond this, the
commenter's concern is not clear, but we have replaced the word ``as''
in the statement on p. 39 to ``if,'' to clarify that such increases are
not inevitable (Mangi Environmental Group 2013, p. 39).
(23) Comment: Explain the acronyms EMP and EST in Table 3.5 of the
draft environmental assessment.
Our Response: The acronyms refer to the number of employees (EMP)
and establishments (EST) in each industry type. This has been clarified
in the ``Table Heading'' of the final environmental assessment (Mangi
Environmental Group 2013, p. 52).
(24) Comment: Clarify whether Table 3.7 on page 54 of the draft
environmental assessment applies to areas of the Santa Fe National
Forest within proposed habitat, or to the whole National Forest, and if
the latter, explain why it is relevant to this analysis.
Our Response: The numbers represent visitors to the whole National
Forest, and are provided as overall context for the analysis.
Comments From the State
We received comments from the New Mexico Department of Agriculture
regarding the proposal to designate critical habitat for the Jemez
Mountains salamander, which are addressed below.
(25) Comment: The Service should address the Jemez Mountains
salamander as a watershed health issue rather than a single species
habitat preservation issue, and the designation of critical habitat
will be counter-productive to solving the problem of poor watershed
health in the Jemez Mountains. The USFS commented that the need to
designate critical habitat is not supported by evidence.
Our Response: The Service is required to designate critical habitat
concurrently with listing a species. See our response to comment 5,
above, for an explanation of critical habitat designation requirements
under the Act. Designating critical habitat for the Jemez Mountains
salamander does not preclude forest restoration or management
practices, including but not limited to prescribed fire and thinning
treatments, restoration of the frequency and spatial extent of such
natural disturbances, and implementation of prescribed natural fire
management plans where feasible. We consider use of such treatments to
be compatible with the ecosystem management of habitat mosaics and the
best way to reduce the threats of catastrophic wildfire to Jemez
Mountains salamander habitat and provide protection for the species. In
addition, critical habitat designation for the Jemez Mountains
salamander does not preclude adaptive management or the incorporation
of new information on the interaction between natural disturbance
events and forest ecology. We continue to support sound ecosystem
management and the maintenance of biodiversity, and we will fully
support land management agencies in addressing the management of fire
to protect and enhance natural resources under their stewardship.
(26) Comment: The efforts of private landowners and Soil and Water
Conservation Districts (SWCDs) to prevent catastrophic wildfire and
rehabilitate after wildfire are not considered. The New Mexico
Department of Agriculture indicated that private landowners and SWCDs
are thinning defensible spaces, implementing sustainable grazing
practices, and implementing water development actions.
Our Response: We recognize that private landowners and SWCDs are
contributing to rehabilitation in burned areas by, among other things,
seeding and controlling erosion. We know that private landowners and
SWCDS are some of the numerous partners that are working with the
Southwest Jemez Mountains Collaborative Forest Landscape Restoration
Project. However, we do not know the extent of these actions nor their
impact to the Jemez Mountains salamander or its habitat at this time.
(27) Comment: The Service should partner with ongoing efforts, such
as the Southwest Jemez Mountains Collaborative Forest Landscape
Restoration Project, to effectively improve the watershed health of the
Jemez Mountains and thus benefit the salamander.
Our Response: We agree that strong partnerships and collaborations
are essential for the restoration and conservation of our natural
resources. The Service appreciates the ongoing efforts and
collaborations with its existing partners, including members of the
Southwest Jemez Mountains Collaborative Forest Landscape Restoration
Project. We have attended, and continue to attend, planning and
monitoring meetings, and we provide technical support for the Southwest
Jemez Mountains Collaborative Forest Landscape Restoration Project. In
addition, we look forward to establishing new partnerships to forward
conservation.
Comments From the New Mexico Department of Agriculture on the Draft
Environmental Assessment and Economic Analysis
(28) Comment: The designation of critical habitat could limit
access to project sites with the effect of increasing associated costs
or preventing access entirely, resulting in limited or cancelled
watershed restoration work.
Our Response: The designation of critical habitat does not prevent
access to any land, whether private, tribal, State or Federal. Critical
habitat receives protection under section 7 of the Act through the
requirement that Federal agencies ensure, in consultation with the
Service, that any action they authorize, fund, or carry out is not
likely to result in the destruction or adverse modification of critical
habitat. The designation of critical habitat does not affect land
ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act 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. The final environmental
analysis lists potential project modifications that could be
recommended to avoid adverse modification (Mangi Environmental Group
2013, pp. 42-43). This analysis includes looking at the limitations on
the timing and route of access to a forest or fuels management project.
(29) Comment: The designation of critical habitat could limit
access, and ranching activity would be negatively affected.
Our Response: See our response to comment 28, above. In section
1.8.1, Livestock Grazing, of the final
[[Page 69576]]
environmental analysis, the following sentence has been revised from,
``Impacts may include small-scale habitat modification, such as
livestock trail establishment or soil compaction, or direct effects,
such as trampling'' To, ``Impacts may include small-scale habitat
modification, such as livestock trail establishment or soil compaction;
limitations on access to grazing allotments by livestock managers
through road closures or decommissioning; or direct effects, such as
trampling'' (Mangi Environmental Group 2013, pp. 12-13).
(30) Comment: Listing of the salamander and designation of critical
habitat may further slow progress of the Southwest Jemez Mountains
Collaborative Forest Landscape Restoration Project by adding another
level of bureaucracy and taking federal funding away from on-the-ground
watershed restoration work to use for regulatory compliance associated
with the Act.
Our Response: Section 3.3.1 of the final economic analysis has been
revised to discuss this concern (IEc 2013, p. 3-6). The analysis
quantifies estimated additional administrative costs of critical
habitat for the Jemez Mountaians salamander to be approximately $23,000
annually across all agencies. As stated in the executive summary of the
economic analysis, the Service anticipates that in cases where an
action is found to adversely modify critical habitat for the
salamander, the action would also be found to jeopardize the species.
That is, actions which the Service is likely to recommend to avoid
adverse modification are the same as those to avoid jeopardy. Thus, the
incremental impacts of the critical habitat designation for the
salamander appear unlikely to include additional conservation actions
or project modifications. As a result, this analysis focuses on
quantifying the incremental impacts associated with the administrative
effort of addressing potential adverse modification of critical habitat
in the context of section 7 consultations. We recognize that there may
be additional administrative costs associated with this critical
habitat designation, but we do not think that these costs will have a
significant negative impact on the Southwest Jemez Mountains
Collaborative Forest Landscape Restoration Project.
Comments From Santa Clara Pueblo
(31) Comment: The Service indicated in the proposed rule that
salvage logging and timber harvesting could adversely affect the
salamander's habitat because these activities, among other things,
compact soils or increase the risk of warming the soil moisture. In
response, the Santa Clara Pueblo commented that, rather than decreasing
soil moisture, responsible timber harvesting can actually increase
available soil moisture because transpiration of the vegetation is
decreased and more soil moisture becomes available for residual plant
growth and for the salamander.
Our Response: We agree with these statements, and believe that how
actions such as timber harvesting occur could result in adverse,
beneficial, or both impacts to the salamander and its habitat.
(32) Comment: The Santa Clara Pueblo stated that it is in
discussions with the USFS regarding co-management stewardship
activities in some National Forest Service lands pursuant to the Tribal
Forest Protection Act (25 U.S.C. 3101 et seq.); some of the proposed
Tribal Forest Protection Act project lands are located within the areas
proposed by the Service as critical habitat for the salamander. The
Santa Clara Pueblo notes that the draft economic analysis does not
consider economic impacts that the Santa Clara Pueblo would incur if
fire management activities are curtailed due to the designation of
critical habitat and if, as a result, additional stand replacement
fires starting or burning through the Santa Fe National Forest and
Valles Caldera National Preserve lands could jump onto unburned or
replanted Santa Clara Pueblo lands. They cite, in particular, areas in
Unit 1, known as the Upper Santa Clara Creek watershed, the Antlers and
Cerro Toledo, as being of concern. They note that the Las Conchas fire
severely burned 16,000 acres in Santa Clara Creek Canyon, their
spiritual sanctuary.
Our Response: The following material has been added to section
1.8.1 in the final environmental assessment (Mangi Environmental Group
2013, p. 13) under a new header ``Tribal Resources'': ``There are no
tribal lands within the critical habitat designation. However, the
designation includes lands within the Santa Fe National Forest and
Valles Caldera National Preserve that are adjacent to the Santa Clara
Pueblo (Pueblo). Much of these adjacent areas were severely burned
during the Las Conchas Fire of 2011. These lands include culturally
important areas for the Pueblo and have unhealthy, unburned forest
conditions that make them a continued, immediate threat to catastrophic
wildfire spreading onto Pueblo lands (Santa Clara Pueblo 2013).
Therefore, the Pueblo has entered in discussions with the USFS,
pursuant to the Tribal Forest Protection Act, to co-manage stewardship
projects on these lands, including hazardous fuels reduction and
ensuring there are proper fuel breaks to protect remnant unburned areas
on Pueblo lands from fires coming off National Forest lands.
Consultations with Santa Fe National Forest on fire management
activities proposed on Pueblo-adjacent lands pursuant to the Tribal
Forest Protection Act will be conducted in accordance with the
Service's responsibilities as outlined in Secretarial Order 3206, which
states (Appendix, section 3(C)(3)(c), ``When the Services enter info
formal consultations with agencies not in the Departments of the
Interior or Commerce, on a proposed action which may affect tribal
rights or tribal trust resources, the Services shall notify the
affected Indian tribe(s) and encourage the action agency to invite the
affected tribe(s) and the BIA [Bureau of Indian Affairs] to participate
in the consultation process'' (Service 1997).'' Section 3.3 of the
economic analysis has been modified to reflect Pueblo concerns,
including potential impacts on tribal economic and cultural activities
associated with changes to planned fire management activities. This
section assumes that Tribal Forest Protection Act activities will be
included in the USFS consultations forecasted to occur every 10 years.
The economic analysis has included Santa Clara Pueblo Tribal Forest
Protection Act activities under chapter 3, Fire Management under
Baseline Conservation Efforts (IEc, April 22, 2013, p. 3-7).
(33) Comment: Santa Clara Pueblo stated that the primary
constituent elements could affect fire protection, forest, and
ecological restoration management measures for projects associated with
the Tribal Forest Protection Act.
Our Response: See our responses to comments 11 and 25, above.
Public Comments
(34) Comment: Jemez Mountains salamanders have been found in areas
without canopy or with a canopy other than mixed conifer. The emphasis
placed on some of the primary constituent elements and not others are
based on the relative ease or difficulty of finding salamanders in
habitat with those elements.
Our Response: 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. See our response to comment 5, above, for an
[[Page 69577]]
explanation of critical habitat designation requirements under the Act.
While the Jemez Mountains salamander can be found in areas outside
forested areas and outside coniferous forest in particular, when active
above ground, the Jemez Mountains salamander is more commonly found
within forested areas under decaying logs, rocks, bark, or moss mats,
or inside decaying logs and stumps. Jemez Mountains salamanders are
generally found in association with decaying coniferous logs,
particularly Douglas fir, considerably more often than deciduous logs,
likely due to the differences in physical features (e.g., coniferous
logs have blocky pieces with more cracks and spaces than deciduous
logs) (Ramotnik 1988, p. 53). See the Criteria Used To Identify
Critical Habitat section of this final rule for a complete description
of the information used to designate critical habitat.
Our initial step in identifying critical habitat was to determine
the physical or biological habitat features essential to the
conservation of the species. The Service has identified four primary
constituent elements sufficient to support the life-history processes
and which are essential to the conservation of the species. We then
identified the geographic areas that are occupied by the Jemez
Mountains salamander and that contain one or more of the physical or
biological features. We are designating two critical habitat units
based on sufficient elements of the physical or biological features
being present to support the Jemez Mountains salamander's life
processes. Some portions of the units contain all of the identified
elements of physical or biological features and support multiple life
processes. Some portions of units contain only some elements of the
physical or biological features necessary to support the Jemez
Mountains salamander's particular use of that habitat. The Service did
not place emphasis on one primary constituent element over another.
(35) Comment: The proposed rule cited the influence of soil pH in
salamander habitat, but ignores it as a primary constituent element.
Our Response: Soil pH may be an important variable in salamander
habitat; however, data concerning soil pH in Jemez Mountains salamander
habitat are limited to nine sites (four logged and five unlogged),
seven of which are in relatively close proximity to each other in one
drainage on the west side of the Jemez Mountains (Ramotnik 1988, p.
40). Ramotnik (1988, p. 41) reported a significant difference in pH
between the logged areas and the unlogged areas where salamanders were
found, but it is not known if salamanders were present prior to
logging. Consequently, we do not believe these data are sufficient to
extrapolate across the range of the species and do not conclude that pH
within a certain range is a primary constituent element for the
salamander.
(36) Comment: Preference of salamander habitat use on steep slopes
as reported in Ramotnik (1988) has been dismissed.
Our Response: Additional survey information since Ramotnik (1988)
indicates that salamanders use habitat on all slopes. Further, Everett
(2003) reported that the salamander occurred on all slope aspects (p.
21) (the average slope ranged from 4 to 40.5 degrees (p. 24)).
(37) Comment: No evidence is presented that time above ground is
necessary for the salamander's life cycle, but most of the primary
constituent elements of critical habitat have to do with above ground
components of mixed conifer forests.
Our Response: Please see our responses to comments 4, 10, and 34.
Additionally, above ground surface activity during wet surface
conditions is a characteristic of the natural history of the Jemez
Mountains salamander. Stomach contents consist primarily of above-
ground and ground-dwelling invertebrates. Further, plethodontid
salamanders store fat reserves in their tails for energetic use when
foraging opportunities are reduced or do not exist (e.g., underground).
Consequently, we conclude that one purpose for above ground activity is
to feed. Additionally, based on reproductive studies, this species
mates in July and August, which coincides with the above-ground
activity period. We, therefore, conclude that time above ground is
necessary for foraging and mating. See the Criteria Used To Identify
Critical Habitat section of this final rule for a complete description
of the information used to designate critical habitat.
(38) Comment: One commenter stated that the draft economic analysis
should include a section explaining the benefits of having critical
habitat for the Jemez Mountains salamander. The commenter also stated
that itemized costs would be beneficial to the analysis.
Our Response: Chapter 6 of the draft economic analysis discussed
benefits of the designation. Chapters 3-5 and Appendix B present
detailed information and assumptions used to develop estimates of the
anticipated incremental costs of the designation.
Changes From the Previously Proposed Critical Habitat Designation
In this final critical habitat designation, we are finalizing the
minor changes that were proposed in the reopening of the public comment
period that published on February 12, 2013 (78 FR 9876). At that time,
we amended the PCEs that we proposed in our September 12, 2012 proposed
rule (77 FR 56482) to provide additional clarification to the PCEs
concerning tree canopy cover and ground surface in forest areas (PCEs 1
and 3a). The overall intent of the proposed PCEs did not change.
Additionally, we revised the size of the two proposed critical habitat
units from our September 12, 2012, rule, based on recently finalized
map data that were still in draft form during our initial analysis. The
updated map data resulted in minor changes in size and ownership in
both proposed units. There was a slight reduction in the overall area
proposed, with some reduction of private lands and addition of a small
parcel of State lands. In the September 12, 2012 (77 FR 56482) proposed
rule, we proposed a total of approximately 90,789 ac (36,741 ha) in two
units. Based on new map data, we updated the approximate area and land
ownership of both proposed critical habitat units; the updated
information is in Table 2 below. The total Federal critical habitat
consists of 56,897 ac (23,025 ha) of U.S. Forest Service lands, 23,745
ac (9,609 ha) of Valles Caldera National Preserve lands, and 7,198 ac
(2913 ha) of National Park Service lands. When we used the updated map
information, we identified a 73-ac (30-ha) parcel owned by New Mexico
Department of Game and Fish in the Western Jemez Mountains Unit. Based
on these revisions, we proposed and are now finalizing a total of
approximately 90,716 ac (36,711 ha) in two critical habitat units,
which is 73 ac (30 ha) less than what we proposed our September 12,
2012 proposed rule (77 FR 56482). Such a small change in the acreage
does not affect the accuracy of the maps published in the September 12,
2012 (77 FR 56482) proposed rule. Finally, in the Proposed Regulation
Promulgation section of our September 12, 2012 (77 FR 56482), proposed
rule we erroneously presented the map as an index map. We have
corrected this error in this final rule by presenting the map as the
map of Unit 1 and Unit 2.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
[[Page 69578]]
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed, are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical 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 geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial 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. 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 insure 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.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
[[Page 69579]]
features 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, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the Jemez Mountains salamander from studies of this species'
habitat, ecology, and life history as described in the Critical Habitat
section of the proposed rule to designate critical habitat published in
the Federal Register on September 12, 2012 (77 FR 56482), and in the
information presented below. Additional information can be found in the
final listing rule published in the Federal Register on September 10,
2013 (78 FR 55599). We have determined that the Jemez Mountains
salamander requires the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
The Jemez Mountains salamander is restricted to areas in the Jemez
Mountains around the rim of a large volcanic crater. There are also
some Jemez Mountain salamanders that have been found on topographic
features (e.g., resurgent domes) on the interior of the crater. The
widespread presence of igneous rock throughout the area is the result
of the volcanic origins of the Jemez Mountains. It is possible that the
salamander may be distributed in this restricted area because of the
fractured rock and interstitial crevices and gaps that occur here.
The Jemez Mountains salamander has been observed in forested areas
of the Jemez Mountains located along two sides of the volcanic crater,
ranging in elevation from 6,998 to 10,990 ft (2,133 to 3,350 m)
(Ramotnik 1988, pp. 78, 84). The Jemez Mountains salamander spends much
of its life underground, but it can be found active above ground from
July through September, when environmental conditions are warm and wet.
The aboveground habitat occurs within forested areas, primarily within
areas that contain Douglas fir (Pseudotsuga menziesii), blue spruce
(Picea pungens), Engelman spruce (P. engelmannii), white fir (Abies
concolor), limber pine (Pinus flexilis), Ponderosa pine (Pinus
ponderosa), Rocky Mountain maple (Acer glabrum), and aspen (Populus
tremuloides) (Degenhardt et al. 1996, p. 28; Reagan 1967, p. 17).
Redondo Peak contains both the maximum elevation in the Jemez Mountains
(11,254 ft (3,430 m)) and the highest salamander observation (10,990 ft
(3,350 m)). Surveys have not yet been conducted above this highest
observation on Redondo Peak, but the habitat contains those primary
constituent elements we have identified from areas known to contain the
salamander. Alternatively, the vegetation communities and moisture
conditions at elevations below 6,998 ft (2,133 m) are not suitable for
the Jemez Mountains salamander.
The salamander's underground habitat appears to be deep, fractured,
subsurface igneous rock in areas with high soil moisture (NMEST 2000,
p. 2). Subsurface geology and loose rocky soil structure may be an
important attribute of underground salamander habitat (Degenhardt et
al. 1996, p. 28). Geologic and moisture constraints likely limit the
distribution of the species (NMEST 2000, p. 2). Soil pH (acidity or
alkalinity) may limit distribution as well. However, the composition of
this subterranean habitat has not been fully investigated. Everett
(2003) reported that the salamander occurred in areas where soil
texture was composed of 56 percent sandy clay loam, 36 percent clay
loam, 6 percent sandy loam, and 2 percent silty clay loam (p. 28); the
overall soil bulk density ranged from 0.2 to 0.98 ounces per cubic inch
(oz per in 3) (0.3 to 1.7 grams per cubic centimeter (g per
cm3) (p. 28); and average soil moisture ranged from 4.85 to
59.7 percent (p. 28). Sites with salamanders had a soil pH of 6.6
( 0.08), and sites without salamanders had a soil pH of 6.2
( 0.06) (Ramotnik 1988, pp. 24-25). The salamander's
subterranean habitat appears to be deep, fractured, subterranean
igneous rock in areas with high soil moisture (New Mexico Endemic
Salamander Team 2000, p. 2). Many terrestrial salamander species
deposit eggs in well-hidden sites, such as underground cavities,
decaying logs, and moist rock crevices (Pentranka 1998, p. 6). Because
the Jemez Mountain salamander spends the majority of its life below
ground and because Jemez salamander eggs have not been discovered in
the wild, Jemez Mountains salamander eggs are probably laid and hatch
underground in the fractured interstices of subterranean igneous rock.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Jemez Mountains salamanders are terrestrial salamanders that are
generally active at night and have diurnal (daytime) retreats to places
that have higher moisture content relative to surrounding areas that
are exposed to warming from the sun and air currents (Duellman and
Trueb 1986, p. 198). Jemez Mountain salamanders lack lungs; instead,
they are cutaneous respirators (meaning they exchange gases, such as
oxygen and carbon dioxide, through their skin). To support cutaneous
respiration, its skin is permeable and must be kept moist at all times.
Consequently, Jemez Mountains salamanders must address hydration needs
above all other life-history needs. The salamander must obtain its
water from its habitat, and the salamander has no physiological
mechanism to stop dehydration or water loss to the environment. We
suspect that these components may be a main driver behind salamander
occurrences and distribution. Diurnal retreats that provide moist and
cool microhabitats are important for physiological requirements in
terrestrial salamanders and also influence the salamander's ability to
forage, because foraging typically dehydrates individuals and these
retreats allow for rehydration (Duellman and Trueb 1986, p. 198).
Temperature also affects hydration and dehydration rates, oxygen
consumption, heart rate, and metabolic rate, and thus influences body
water and body mass in Jemez Mountains salamanders (Duellman and Treub
1986, p. 203; Whitford 1968, pp. 247-251). Daytime retreats can be
under rocks, in interiors of logs, in depths of leaf mulch, in shaded
crevices, and in burrows in the soil (Duellman and Trueb 1986, p. 198).
When Jemez Mountains salamanders have been observed above ground during
the day, they are primarily found in high moisture retreats (such as
under and inside decaying logs and stumps, and under rocks and bark)
(Everett 2003, p. 24) with high overstory canopy cover. Everett (2003,
p. 24) characterized the Jemez Mountains salamander's habitat as having
an average canopy cover of 76 percent, with a range between 58 to 94
percent and soil that had average soil moisture from 4.85 to 59.7
percent (p. 28). If water uptake is sufficient during the day, the
animal can afford to lose water during nocturnal activities (Duellman
and Trueb 1986, p. 198). Even though many kinds of terrestrial
[[Page 69580]]
amphibians are normally active only at night, they often become active
during the day immediately after heavy rains (Duellman and Trueb 1986,
p. 198).
High moisture diurnal retreats and high canopy closure are typical
habitat features that correlate with plethodontid salamanders. For
example, the three habitat features with apparently strong associations
with the Siskiyou Mountains salamander (Plethodon stormi), a western
plethodon species, are rocky soil types with adequate interstitial
spaces, forest canopy closure above 70 percent, and conifer forest
types with average tree size above 17 in (43.2 cm) diameter at breast
height (Olson et al. 2009, p. 24). Another example is that course woody
debris is the most important habitat feature for two other plethodontid
salamanders in Douglas fir forests in Washington. It was suggested that
these two plethodontid salamanders may prefer certain types of woody
debris as cover, especially those associated with large, moderately to
well-decomposed snags and logs (Aubry et al. 1988, pp. 32, 35).
Based on this information, we conclude that substrate moisture
through its effect on absorption and loss of water is the most
important factor in the ecology of this species (Heatwole and Lim 1961,
p. 818). Thus, moist and cool microhabitats are essential for the
conservation of the species.
In regard to food, Jemez Mountains salamanders have been found to
consume prey species that are diverse in size and type, with ants,
mites, and beetles being eaten most often (Cummer 2005, p. 43).
Cover or Shelter
When active above ground, the Jemez Mountains salamander is usually
found within forested areas under decaying logs, rocks, bark, or moss
mats, or inside decaying logs and stumps. Jemez Mountains salamanders
are generally found in association with decaying coniferous logs,
particularly Douglas fir, considerably more often than deciduous logs,
likely due to the differences in physical features (e.g., coniferous
logs have blocky pieces with more cracks and spaces than deciduous
logs) (Ramotnik 1988, p. 53). Large-diameter (greater than 10 in (25
cm)) decaying logs provide important aboveground habitat because they
are moist and cool compared to other cover; larger logs maintain higher
moisture and lower temperature longer than smaller logs. These high-
moisture retreats also offer shelter and protection from some predators
(e.g., skunks (Mephitidae), owls (Strigiformes)).
The percent surface area of occupied salamander habitat covered by
decaying logs, rocks, bark, moss mats, and stumps averaged 25 percent
(Everett 2003, p. 35); however, Everett (2003, p. 35) noted that areas
with high percentages of area of habitat covered by decaying logs,
rocks, bark, moss mats, and stumps are difficult to survey and locate
salamanders when present, and may bias the data toward lower
percentages of area covered by decaying logs, rocks, bark, moss mats,
and stumps.
Furthermore, there may be high-elevation meadows located within the
critical habitat units that are used by the Jemez Mountains salamander.
Jemez Mountains salamanders utilize habitat vertically and horizontally
above ground and below ground. Currently, we do not fully understand
how salamanders utilize areas like meadows, where the aboveground
vegetation component differs from areas where salamanders are more
commonly encountered (e.g., forested areas); however, salamanders have
been found in high-elevation meadows. Therefore, meadows are considered
part of the physical or biological features for the Jemez Mountains
salamander.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Little is known about the reproduction of the Jemez Mountains
salamander. Although many terrestrial salamanders deposit eggs in well-
hidden sites, such as underground cavities, decaying logs, and moist
rock crevices (Pentranka 1998, p. 6), an egg clutch has never been
observed during extensive Jemez Mountains salamander surveys. Because
the salamander spends the majority of its life below ground, eggs are
probably laid and hatch underground. However, we currently lack the
information to identify the specific elements of the physical or
biological features needed for breeding, reproduction, or rearing of
offspring.
Habitats Protected From Disturbance or Representative of the
Historical, Geographic, and Ecological Distributions of the Species
All occupied salamander habitat has undergone change resulting from
historical grazing practices and effective fire suppression, most often
resulting in shifts in vegetation composition and structure and
increased risk of large-scale, stand-replacing wildfire (see Factor A
discussion in the final listing rule published on September 10, 2013
(78 FR 55599)). This species was first described in 1950, about halfway
through the approximate 100-year period of shifting vegetation
composition and structure and building of fuels for wildfire in the
Jemez Mountains. Thus, research and information pertaining to habitat
for this species occurs in the context of a species existing in an
altered ecological situation. Nonetheless, while we do not have a full
understanding of how these particular alterations affect the salamander
(potentially further drying habitat through increased water demand of
increased density of trees, or, alternatively, potentially increasing
habitat moisture from a higher canopy cover), we do know that the
changes in the vegetative component of salamander habitat have greatly
increased the risk of large-scale, stand-replacing wildfire.
Furthermore, we are only aware of small-scale treatments or forest-
restoration projects that have been implemented to reduce this risk.
Thus, there do not seem to be any areas in occupied salamander habitat
that are entirely protected from disturbance. Even so, the
representative geographic and ecological habitat includes salamander
habitat in both burned and unburned areas. Although areas not burned by
large-scale, stand-replacing fires are better habitat, the Jemez
Mountains salamander has still been found in recently burned habitat
(12 years post-fire in the Cerro Grande fire).
Primary Constituent Elements for the Jemez Mountains Salamander
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Jemez Mountains salamander in areas occupied at the
time of listing, focusing on the features' primary constituent
elements. 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.
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 Jemez Mountains salamander are:
(1) Moderate to high tree canopy cover, typically 50 to 100 percent
canopy closure, that provides shade and maintains moisture and high
relative humidity at the ground surface, and:
(a) Consists of the following tree species alone or in any
combination:
Douglas fir (Pseudotsuga menziesii); blue spruce (Picea pungens);
Engelman spruce (Picea engelmannii); white fir (Abies concolor); limber
pine (Pinus flexilis); Ponderosa pine (Pinus
[[Page 69581]]
ponderosa); and aspen (Populus tremuloides); and
(b) Has an understory that predominantly comprises: Rocky Mountain
maple (Acer glabrum); New Mexico locust (Robinia neomexicana);
oceanspray (Holodiscus spp.); or shrubby oaks (Quercus spp.).
(2) Elevations from 6,988 to 11,254 ft (2,130 to 3,430 m).
(3) Ground surface in forest areas with:
(a) Moderate to high volumes of large fallen trees and other woody
debris, especially coniferous logs at least 10 in (25 cm) in diameter,
particularly Douglas fir, which are in contact with the soil in varying
stages of decay from freshly fallen to nearly fully decomposed; or
(b) Structural features, such as rocks, bark, and moss mats, that
provide the species with food and cover.
(4) Underground habitat in forest or meadow areas containing
interstitial spaces provided by:
(a) Igneous rock with fractures or loose rocky soils;
(b) Rotted tree root channels; or
(c) Burrows of rodents or large invertebrates.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
the species, through the identification of the features' primary
constituent elements sufficient to support the life-history processes
of the species.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the following threats: Historical and current fire management
practices; severe wildland fire; forest composition and structure
conversions; post-fire rehabilitation; forest management; roads,
trails, and habitat fragmentation; recreation; and climate change.
Furthermore, disease and the use of fire retardants or other chemicals
may threaten the salamander in the future, and may need special
management considerations. Amphibians, like the salamander, are
typically very susceptible to chemicals (LABAT Environmental 2007) due
to their permeable skin. However, at this time, the Service does not
consider disease or chemical use a threat. A more complete discussion
of the threats to the salamander and its habitats can be found in
Summary of Factors Affecting the Species section of the final listing
rule published on September 10, 2013 (78 FR 55599).
Management activities that could ameliorate these threats include
(but are not limited to): (1) Reducing fuels to minimize the risk of
severe wildfire in a manner that considers the salamander's biological
requirements; (2) not implementing post-fire rehabilitation techniques
that are detrimental to the salamander in the geographic areas of
occupied salamander habitat; and (3) removing unused roads and trails,
and restoring habitat. A more complete discussion of the threats to the
salamander and its habitats can be found in Summary of Factors
Affecting the Species section of the final listing rule published on
September 10, 2013 (78 FR 55599).
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we used the best
scientific data available to designate critical habitat. We reviewed
available information pertaining to the habitat requirements of this
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we considered whether designating additional areas
outside those currently occupied is necessary to ensure the
conservation of the species. We are not designating any areas outside
the geographic area occupied by the species because the designated
areas can support populations large enough to provide for the
conservation of the species.
Our initial step in identifying critical habitat was to determine
the physical or biological habitat features essential to the
conservation of the species, as explained in the previous section. We
then identified the geographic areas that contain one or more of the
physical or biological features. We also considered information on
salamander locations from recent surveys. We used various sources of
available information and supporting data that pertain to the habitat
requirements of the Jemez Mountains salamander. These included, but
were not limited to, the 12-month finding published on September 9,
2010 (75 FR 54822); reports under section 6 of the Act submitted by New
Mexico Department of Game and Fish that provided information regarding
biology, survey data, and habitat; the Multi-Agency (New Mexico
Department of Game and Fish, USFS, and NPS) Jemez Mountains Salamander
Conservation Management Plan that provides information on salamander
habitat and biology; research published in peer-reviewed articles
concerning the biology, habitat, and ecology of Jemez Mountains
salamanders and other plethodontid species; unpublished academic theses
that provided information regarding location, habitat, ecology,
physiology, and ecological shifts of Jemez Mountains salamander; agency
reports from USFS, NPS, and Los Alamos National Lab; and Bureau of Land
Management mapping information.
We plotted point data of survey locations for the salamander using
ArcMap (Environmental Systems Research Institute, Inc.), a computer GIS
program, which were then used in conjunction with elevation,
topography, vegetation, and land ownership information. The point data
consisted of detection (367 points) and non-detection (1,022 points)
survey locations. The designated critical habitat units are based on
the detection and non-detection data, and physical and biological data
on habitat features necessary to support life-history processes of the
species. These areas were all located within the unit boundaries
generated by the GIS model. Areas that have been burned in recent fires
(e.g., Las Conchas Fire and Cerro Grande Fire) were not excluded from
the units because fire burns in a mosaic pattern (a mix pattern of
burned and unburned patches), and sufficient elements of physical and
biological features remain subsequent to wildfire that allow
salamanders to continuously occupy areas that have been burned. We
selected areas within the geographical area occupied at the time of
listing that contain the physical or biological features essential to
their conservation. We also verified that these areas required special
management. Large areas with very limited or no detections were not
included in the designation. Finally, both units are considered wholly
occupied because salamanders use both aboveground and belowground
habitat, moving and utilizing habitat vertically and horizontally.
Also, high-elevation meadows located within the units are also
considered wholly occupied because the salamanders have been found
there. While it is possible that salamanders may not be detected at the
small scale of a survey (measured in meters), the entire unit is
considered with the geographic area occupied by the species because of
the similarity and continuous nature of the physical and biological
features such as dense tree
[[Page 69582]]
canopy cover, higher levels of ground moisture, many fallen logs,
surface rocks and woody debris, and igneous soil that allows the
salamanders to travel below ground as well as above ground. This is due
to the fact that the lands within the units are virtually all high-
elevation forests growing on top of igneous soil located around the rim
of a long extinct volcano.
Recent surveys of Jemez Mountains salamanders conducted by the USFS
found Jemez Mountain salamanders in a specific area where the
salamander had not been located before, but was within the area we are
designating as critical habitat. This demonstrates the occupancy of the
areas we have designated as critical habitat.
After utilizing the above methods, we refined the model to exclude
areas of isolated historical survey point data, which are predominantly
on USFS and Valles Caldera National Preserve lands within the
northeastern and northwestern part of the Jemez Mountains, but also
include small areas on the Santa Clara Pueblo, Los Alamos National
Laboratory, and private lands.
The areas we are designating are not located within developed
lands. They contain very few buildings, but do include several highways
and forest roads. When determining critical habitat boundaries within
this final rule, we made every effort to avoid including lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features for the Jemez Mountains salamander. 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 buildings and roads. Any such lands inadvertently left inside
critical habitat boundaries shown on the map of this final rule have
been excluded by text in the rule and are not designated as critical
habitat. Therefore, a Federal action involving these lands will 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.
The critical habitat designation is defined by the map, as modified
by any accompanying regulatory text, presented at the end of this
document in the Regulation Promulgation section. 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 the map is based available
to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0005, on our Internet site at http://www.fws.gov/southwest/es/NewMexico/, and at the New Mexico Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
We are designating as critical habitat lands that we have
determined are occupied at the time of listing and contain sufficient
physical or biological features to support life-history processes
essential for the conservation of the Jemez Mountains salamander.
We are designating two units based on sufficient elements of
physical or biological features being present to support the Jemez
Mountains salamander's life processes. Some portions of the units
contain all of the identified elements of physical or biological
features and support multiple life processes. Some portions of units
contain only some elements of the physical or biological features
necessary to support the Jemez Mountains salamander's particular use of
that habitat.
Final Critical Habitat Designation
We are designating two units as critical habitat for the Jemez
Mountains salamander. The critical habitat areas described below
constitute our best assessment at this time of areas that meet the
definition of critical habitat. Those two units are: (1) Western Jemez
Mountains Unit, and (2) Southeastern Jemez Mountains Unit. Table 1
shows the occupied units.
Table 1--Occupancy of Jemez Mountains Salamander By Designated Critical
Habitat Units
------------------------------------------------------------------------
Occupied at time of
Unit listing? Currently occupied?
------------------------------------------------------------------------
1.................... Yes..................... Yes.
2.................... Yes..................... Yes.
------------------------------------------------------------------------
The approximate area of each critical habitat unit is shown in
Table 2.
Table 2--Designated Critical Habitat Units for Jemez Mountains
Salamander
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Land ownership Size of unit in acres
Critical habitat unit by type (hectares)
------------------------------------------------------------------------
1. Western Jemez Mountains Federal......... 41,466 (16,781)
Unit.
Private......... 906 (367)
State........... 73 (30)
------------------------
Total Unit 1.... 42,445 (17,177)
2. Southeastern Jemez Federal......... 46,374 (18,767)
Mountains Unit.
Private......... 1,897 (768)
------------------------
Total Unit 2.... 48,271 (19,535)
Total........................ Federal......... 87,840 (35,548)
Private......... 2,803 (1,134)
State........... 73 (30)
------------------------
Total........... 90,716 (36,711)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Jemez Mountains
salamander, below.
Unit 1: Western Jemez Mountains
Unit 1 consists of 42,445 ac (17,177 ha) in Rio Arriba and Sandoval
Counties, New Mexico, in the western portion of the Jemez Mountains. In
Unit
[[Page 69583]]
1, 41,466 ac (16,781 ha) are federally managed, with 26,531 ac (10,736
ha) on USFS lands and 14,935 ac (6,044 ha) on Valles Caldera National
Preserve lands; 73 ac (30 ha) are New Mexico Department of Game and
Fish lands; and 906 ac (367 ha) are private lands. This unit is located
in the western portion of the distribution of the Jemez Mountains
salamander and includes Redondo Peak. This unit is within the
geographical area occupied by the salamander and contains elements of
essential physical or biological features. The physical or biological
features require special management or protection from large-scale,
stand-replacing wildfire; actions that would disturb salamander habitat
by warming and drying; actions that reduce the availability of
aboveground cover objects including downed logs; or actions that would
compact or disturb the soil or otherwise interfere with the capacity of
salamanders to move between subterranean habitat and aboveground
habitat.
Unit 2: Southeastern Jemez Mountains
Unit 2 consists of 48,271 ac (19,535 ha) in Los Alamos and Sandoval
Counties, New Mexico, in the eastern, southern, and southeastern
portions of the Jemez Mountains. In Unit 2, 46,375 ac (18,767 ha) are
federally managed, with 30,366 ac (12,288 ha) on USFS lands, 8,811 ac
(3,565 ha) on Valles Caldera National Preserve lands, and 7,198 ac
(2,912 ha) on National Park Service lands (Bandelier National
Monument). The remaining 1,897 ac (768 ha) in Unit 2 are private lands.
This unit is within the geographical area occupied by the salamander
and contains elements of essential physical or biological features. The
physical or biological features require special management or
protection from large-scale, stand-replacing wildfire; actions that
would disturb salamander habitat by warming and drying; actions that
reduce the availability of aboveground cover objects including downed
logs; or actions that would compact or disturb the soil or otherwise
interfere with the capacity of salamanders to move between subterranean
habitat and aboveground habitat.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species listed under the Act
or result in the destruction or adverse modification of 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 Jemez Mountains
salamander. As discussed above, the role of critical habitat is to
support life-history needs of the species
[[Page 69584]]
and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Jemez Mountains salamander. These activities
include, but are not limited to:
(1) Actions that would disturb salamander habitat by warming and
drying. Such activities could include, but are not limited to,
landscape restoration projects (e.g., forest thinning and
manipulation); prescribed burns; wildland fire use; wildland-urban-
interface projects (forest management at the boundary of forested areas
and urban areas); forest silvicultural practices (including salvage
logging); or other forest management or landscape-altering activities
that reduce canopy cover, or warm and dry habitat. These activities
could reduce the quality of salamander habitat or reduce the ability of
the salamander to carry out normal behavior and physiological
functions, which are tightly tied to moist cool microhabitats.
Additionally, these actions could also reduce available high-moisture
retreats, which could increase the amount of time necessary to regulate
body water for physiological function and thus reduce the amount of
time available for foraging and finding a mate, ultimately reducing
fecundity.
(2) Actions that reduce the availability of the ground surface
within forested areas containing downed logs that are greater than 10
in (0.25 m) in diameter and of any stage of decomposition; or removal
of large-diameter trees (especially Douglas fir) that would otherwise
become future high quality cover. Such activities could include, but
are not limited to, the activities listed in (1), above. Aboveground
cover objects within the forest provide high-moisture retreats relative
to surrounding habitat and offer opportunities to regulate body water
and influence the salamander's capacity to forage and reproduce.
(3) Actions that would compact or disturb the soil or otherwise
interfere with the capacity of salamanders to move between subterranean
habitat and aboveground habitat. Such activities could include, but are
not limited to, use of heavy equipment, road construction, and pipeline
installation.
(4) Actions that spread disease into salamander habitat. Such
activities could include water drops (i.e., picking up surface water
contaminated with aquatic amphibian pathogens (e.g., Batrachochytrium
dendrobatidis (Bd)) and dropping it in forested habitat). While we do
not know the susceptibility of amphibian pathogens on the Jemez
Mountains salamander, some pathogens (e.g., Bd) have caused many other
amphibian species extinctions and declines and could potentially
threaten the Jemez Mountains salamander.
(5) Actions that contaminate forested habitats with chemicals. Such
activities could include aerial drop of chemicals such as fire
retardants or insecticides. Amphibians in general are sensitive to
chemicals with which they come in contact because they use their skin
for breathing and other physiological functions. We would need to
consult to identify if the particular chemicals proposed for use in the
action impacted the species.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``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 [INRMP] 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 designated.'' There are no Department of
Defense lands with a completed INRMP within the critical habitat
designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat based on economic
impacts, impacts on national security, or any other relevant impacts if
she determines that the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habitat,
unless she 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.
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 prepared a draft economic analysis of the
proposed critical habitat designation and related factors (IEc 2013).
The draft analysis, dated February 8, 2013, was made available for
public review from February 12, 2013, through March 14, 2013 (78 FR
9876). Following the close of the comment period, a final analysis
(dated April 22, 2013) of the potential economic effects of the
designation was developed taking into consideration the public comments
we received and any new information (IEc 2013, entire).
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of all potential conservation efforts for the Jemez
Mountains salamander; some of these costs will likely be incurred
regardless of whether we designate critical habitat (baseline). The
economic impact of the final critical habitat designation is analyzed
by comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur with the designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat
[[Page 69585]]
conservation and the potential effects of conservation activities on
government agencies, private businesses, and individuals. The FEA
measures lost economic efficiency associated with residential and
commercial development and public projects and activities, such as
economic impacts on water management and transportation projects,
Federal lands, small entities, and the energy industry. Decision-makers
can use this information to assess whether the effects of the
designation might unduly burden a particular group or economic sector.
Finally, the FEA considers costs that may occur in the 20 years
following the designation of critical habitat, which was determined to
be the appropriate period for analysis because limited planning
information was available for most activities to forecast activity
levels for projects beyond a 20-year timeframe. The FEA quantifies
economic impacts of Jemez Mountains salamander conservation efforts
associated with the following categories of activity: severe wildland
fire, fire management, other Federal land management, livestock
grazing, and transportation. No impacts are forecast for private
development, because no projects with a Federal nexus were identified
within the study area.
Key findings of the FEA include: total present value baseline costs
are approximately $26 million over 20 years following the designation,
assuming a 7 percent discount rate ($29 million assuming a 3 percent
discount rate); total present value incremental impacts are
approximately $260,000 over 20 years following the designation,
assuming a 7 percent discount rate ($330,000 assuming a 3 percent
discount rate); all incremental costs are administrative in nature and
result from the consideration of adverse modification in section 7
consultations; both units are expected to experience similar levels of
incremental impact; and differences in forecast impacts across the two
units are predominately a result of the distribution of land ownership,
rather than differences in activities across units.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exerting his discretion to exclude any areas from this
designation of critical habitat for the Jemez Mountains salamander
based on economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the New Mexico Ecological Services Field Office (see
ADDRESSES) or by downloading from the Internet at http://www.regulations.gov, or the Service's Internet site at http://www.fws.gov/southwest/es/NewMexico.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this final rule, we have
determined that the lands within the designation of critical habitat
for the Jemez Mountains salamander are not owned or managed by the
Department of Defense, and, therefore, we anticipate no impact on
national security. We considered excluding Los Alamos National Lab,
which is under the Department of Energy. However, we have determined
that lands within the designation of critical habitat are not owned or
managed by the Los Alamos National Lab. Consequently, the Secretary is
not exerting her discretion to exclude any areas from this 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.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans for the Jemez Mountains
salamander, and the final designation does not include any tribal lands
or trust resources. We anticipate no impact on tribal lands,
partnerships, or HCPs from this critical habitat designation. We also
considered impacts on private lands, but we do not predict any impacts
to designated critical habitat, over and above those related to
jeopardy consultation. Further, we do not anticipate restricting any
fire suppression or forest restoration. Accordingly, the Secretary is
not exercising her discretion to exclude any areas from this final
designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish
a notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an 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. In this final rule, we are certifying that the critical
habitat designation for the Jemez Mountains salamander will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as
[[Page 69586]]
independent nonprofit organizations; small governmental jurisdictions,
including school boards and city and town governments that serve fewer
than 50,000 residents; as well as small businesses. Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts on these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities such as fire
management, private development, transportation, and livestock grazing.
We apply the ``substantial number'' test individually to each industry
to determine if certification is appropriate. However, the SBREFA does
not explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat will only affect activities that
have a Federal involvement; designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the Jemez Mountains salamander is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they fund, permit, or implement that
may affect the species. Some kinds of activities are unlikely to have
any Federal involvement and so will not be affected by critical habitat
designation. In areas where the species is present, Federal agencies
already are required to consult with us under section 7 of the Act on
activities they authorize, fund, or carry out that may affect the Jemez
Mountains salamander. Federal agencies also must consult with us if
their activities may affect critical habitat. Designation of critical
habitat, therefore, could result in an additional economic impact on
small entities due to the requirement to reinitiate consultation for
ongoing Federal activities (see Application of the ``Adverse
Modification'' Standard section).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of the Jemez
Mountains salamander and the designation of critical habitat. The
designation of critical habitat for the Jemez Mountains salamander is
unlikely to directly affect any small entities. As described in the
main text of the FEA, 97 percent of land in the designation is
federally owned. Anticipated incremental impacts in critical habitat
are primarily related to 37 formal consultations and 45 informal
consultations on fire management and other Federal land management
activities (comprising approximately 99 percent of the annual
anticipated incremental costs of the designation). The remaining
forecast impacts are anticipated to be conducted for road and highway
maintenance projects. Little to no impact to third parties is expected
associated with these activities. For this reason, this analysis finds
little to no impacts to small entities as a result of critical habitat
designation for the salamander.
In summary, we considered whether this designation will result in a
significant economic effect on a substantial number of small entities.
Based on the above reasoning and currently available information, we
concluded that this rule will not result in a significant economic
impact on a substantial number of small entities. Therefore, we are
certifying that the designation of critical habitat for the Jemez
Mountains salamander will not have a significant economic impact on a
substantial number of small entities, and a regulatory flexibility
analysis is not required.
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. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis finds that none of
these criteria are relevant to this analysis. Thus, based on
information in the economic analysis, energy-related impacts associated
with the Jemez Mountains salamander conservation activities within
critical habitat are not expected. As such, the designation of critical
habitat is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support
[[Page 69587]]
Enforcement. ``Federal private sector mandate'' includes a regulation
that ``would impose an enforceable duty upon the private sector, except
(i) a condition of Federal assistance or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for Jemez Mountains salamander in a takings
implications assessment. As discussed above, the designation of
critical habitat affects only Federal actions. Although private parties
that receive Federal funding, assistance, or 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. The FEA found that this
designation will not affect a substantial number of small entities,
because 97 percent of land in the designation is federally owned.
Further, based on information contained in the FEA and described within
this document, it is not likely that economic impacts to a property
owner will be of a sufficient magnitude to support a takings action.
The takings implications assessment concludes that this designation of
critical habitat for the Jemez Mountains salamander does not pose
significant takings implications for lands within or affected by the
designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A federalism impact
summary statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in New Mexico. We received
comments from the New Mexico Department of Agriculture and have
addressed them in the Summary of Comments and Recommendations section
of this rule. The Service anticipates that in cases where an action is
found to adversely modify critical habitat for the salamander, the
action would also be found to jeopardize the species. That is, actions
which the Service is likely to recommend to avoid adverse modification
are the same as those to avoid jeopardy. Thus, the incremental impacts
of the critical habitat designation for the salamander appear unlikely
to include additional conservation actions/project modifications. The
designation of critical habitat in areas currently occupied by the
Jemez Mountains salamander imposes no additional restrictions to those
put in place by the listing of the salamander and, therefore, has
little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
in that the areas that contain the 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) will 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 applicable
standards set forth in 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 Jemez Mountains
salamander. The designated areas of critical habitat are presented on a
map, 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 the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth
[[Page 69588]]
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 Jemez
Mountains salamander, 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 undertake a NEPA analysis for critical habitat
designation and notify the public of the availability of the draft
environmental assessment for a proposal when it is finished. We
performed the NEPA analysis, and prepared a draft environmental
assessment for critical habitat designation and notified the public of
its availability in the Federal Register on February 12, 2013 (78 FR
9876). The final environmental assessment concluded that the
designation is unlikely to result in any significant environmental
impacts. The Service then completed a finding of no significant impacts
(FONSI). The final environmental assessment and the FONSI have been
completed and are available for review with the publication of this
final rule. You may obtain a copy of the final environmental assessment
and FONSI online at http://www.regulations.gov, by mail from the New
Mexico Ecological Services Field Office (see ADDRESSES), or by visiting
our Web site at http://www.fws.gov/southwest/es/NewMexico/index.cfm.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations With Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands occupied by the Jemez Mountains salamander at the time of listing
that contain the physical or biological features essential to
conservation of the species, and no tribal lands unoccupied by the
Jemez Mountains salamander that are essential for the conservation of
the species. Therefore, we are not designating critical habitat for the
Jemez Mountains salamander on tribal lands.
However, this critical habitat designation includes lands within
the Santa Fe National Forest and Valles Caldera National Preserve that
are adjacent to the Santa Clara Pueblo. These lands include culturally
important areas for the Santa Clara Pueblo and have unhealthy, unburned
forest conditions that make them a continued, immediate threat to
catastrophic wildfire spreading onto Santa Clara Pueblo lands (Santa
Clara Pueblo 2013). Therefore, the Santa Clara Pueblo has entered in
discussions with the USFS, pursuant to the Tribal Forest Protection
Act, to co-manage stewardship projects on these lands, including
hazardous fuels reduction and ensuring there are proper fuel breaks to
protect remnant unburned areas on Santa Clara Pueblo lands from fires
coming off National Forest lands. Consultations with Santa Fe National
Forest on fire management activities proposed on Pueblo-adjacent lands
pursuant to the Tribal Forest Protection Act will be conducted in
accordance with the Service's responsibilities as outlined in
Secretarial Order 3206.
References Cited
A complete list of all references cited is available on the
Internet at http://www.fws.gov/southwest/es/NewMexico/index.cfm, at
http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, and upon
request from the New Mexico Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rulemaking 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.
Regulation Promulgation
Accordingly, we 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; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Salamander, Jemez
Mountains'' under ``AMPHIBIANS'' in the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Amphibians
* * * * * * *
Salamander, Jemez Mountains...... Plethodon U.S. (NM).......... Entire............. E 819 17.95(d) NA
neomexicanus.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (d) by adding an entry for ``Jemez
Mountains Salamander (Plethodon neomexicanus),'' in the same
alphabetical order that the species
[[Page 69589]]
appears in the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
Jemez Mountains Salamander (Plethodon neomexicanus)
(1) Critical habitat units are depicted for Los Alamos, Rio Arriba,
and Sandoval 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
Jemez Mountains salamander consist of four components:
(i) Moderate to high tree canopy cover, typically 50 to 100 percent
canopy closure, that provides shade and maintains moisture and high
relative humidity at the ground surface, and:
(A) Consists of the following tree species alone or in any
combination: Douglas fir (Pseudotsuga menziesii); blue spruce (Picea
pungens); Engelman spruce (Picea engelmannii); white fir (Abies
concolor); limber pine (Pinus flexilis); Ponderosa pine (Pinus
ponderosa); and aspen (Populus tremuloides); and
(B) Has an understory that predominantly comprises: Rocky Mountain
maple (Acer glabrum); New Mexico locust (Robinia neomexicana);
oceanspray (Holodiscus spp.); or shrubby oaks (Quercus spp.).
(ii) Elevations from 6,988 to 11,254 feet (2,130 to 3,430 meters).
(iii) Ground surface in forest areas with:
(A) Moderate to high volumes of large fallen trees and other woody
debris, especially coniferous logs at least 10 inches (25 centimeters)
in diameter, particularly Douglas fir, which are in contact with the
soil in varying stages of decay from freshly fallen to nearly fully
decomposed; or
(B) Structural features, such as rocks, bark, and moss mats, that
provide the species with food and cover.
(iv) Underground habitat in forest or meadow areas containing
interstitial spaces provided by:
(A) Igneous rock with fractures or loose rocky soils;
(B) Rotted tree root channels; or
(C) Burrows of rodents or large invertebrates.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
December 20, 2013.
(4) Critical habitat map units. Data layers defining map units were
created using digital elevation models, GAP landcover data, salamander
observation data, salamander habitat suitability models, and were then
mapped using the USA Contiguous Albers Equal Area Conic USGS version
projection. The map in this entry, as modified by any accompanying
regulatory text, establishes the boundaries of the critical habitat
designation. The coordinates or plot points or both on which the map is
based are available to the public at the Service's internet site at
http://www.fws.gov/southwest/es/NewMexico/ NewMexico/, at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0005, 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 2.2.
(5) Unit 1: Western Jemez Mountains, Rio Arriba and Sandoval
Counties, New Mexico. Map of Units 1 and 2 follows:
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[GRAPHIC] [TIFF OMITTED] TR20NO13.000
[[Page 69591]]
(6) Unit 2: Southeastern Jemez Mountains, Los Alamos and Sandoval
Counties, New Mexico. Map of Unit 2 is provided at paragraph (5) of
this entry.
* * * * *
Dated: November 5, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-27736 Filed 11-19-13; 8:45 am]
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