[Federal Register Volume 81, Number 109 (Tuesday, June 7, 2016)]
[Rules and Regulations]
[Pages 36761-36785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13246]
[[Page 36761]]
Vol. 81
Tuesday,
No. 109
June 7, 2016
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Zuni Bluehead Sucker; Final Rule
Federal Register / Vol. 81 , No. 109 / Tuesday, June 7, 2016 / Rules
and Regulations
[[Page 36762]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0002; 4500030114]
RIN 1018-AZ23
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Zuni Bluehead Sucker
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Zuni bluehead sucker (Catostomus discobolus
yarrowi) under the Endangered Species Act of 1973, as amended (Act). In
total, approximately 55.7 kilometers (km) (34.6 miles (mi)) in McKinley
and Cibola Counties, New Mexico, fall within the boundaries of the
critical habitat designation.
DATES: This rule is effective on July 7, 2016.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at the New Mexico Ecological Services Field
Office (address below). Comments and materials we received, as well as
some supporting documentation we used in preparing this rule, are
available for public inspection at http://www.regulations.gov. All of
the comments, materials, and documentation that we considered in this
rulemaking are available by appointment, during normal business hours
at: U.S. Fish and Wildlife Service, New Mexico Ecological Services
Field Office, 2105 Osuna Road NE., Albuquerque, NM 87113; telephone
505-346-2525; 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.regulations.gov at
Docket No. FWS-R2-ES-2013-0002, on the Service's Web site at http://www.fws.gov/southwest/es/newmexico, and at the New Mexico Ecological
Services Field Office. Any additional tools or supporting information
that we developed for this critical habitat designation will also be
available at the Fish and Wildlife Service Web site and Field Office
set out above, and may also be included in the preamble of this rule
and at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna Road NE., Albuquerque, NM 87113; telephone 505-346-
2525; 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. This final rule designates critical
habitat for the Zuni bluehead sucker. Under the Endangered Species 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 Zuni bluehead sucker as an endangered species on July
24, 2014 (79 FR 43132). On January 25, 2013, we published in the
Federal Register a proposed critical habitat designation for the Zuni
bluehead sucker (78 FR 5351). 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 current best assessment of the areas that meet the
definition of critical habitat for the Zuni bluehead sucker. We are
designating approximately 55.7 km (34.6 mi) of the Zuni River Watershed
in one unit in in McKinley and Cibola Counties, New Mexico.
We have prepared an economic analysis of the designation of
critical habitat. In order to consider economic impacts, we prepared an
incremental effects memorandum (IEM) and screening analysis which,
together, we consider our draft economic analysis (DEA) of the proposed
critical habitat designation and related factors (80 FR 19941; April
14, 2015). The analysis, dated October 22, 2014, was made available for
public review from April 14, 2015, through May 14, 2015 (80 FR 19941).
The DEA addressed probable economic impacts of critical habitat
designation for the Zuni bluehead sucker. Following the close of the
comment period, we reviewed and evaluated all information submitted
during the comment period that may pertain to our consideration of the
probable incremental economic impacts of this critical habitat
designation. We have incorporated the comments into this final
determination.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We obtained opinions from three knowledgeable
individuals with scientific expertise to review our technical
assumptions and analysis, and whether or not we had used the best
available information. These peer reviewers generally concurred with
our methods and conclusions and 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
On January 25, 2013, we published a proposed rule to list the Zuni
bluehead sucker as an endangered species and a proposed rule to
designate critical habitat for the Zuni bluehead sucker (78 FR 5369 and
78 FR 5351, respectively). We proposed to designate as critical habitat
approximately 475.3 km (291.3 mi) in three units in McKinley, Cibola,
and San Juan Counties, New Mexico, and Apache County, Arizona.
After the publication of the proposed rules, we found there was
substantial scientific disagreement regarding the taxonomic status of
some populations that we considered Zuni bluehead sucker in the
proposed listing rule. On January 9, 2014, we published in the Federal
Register a document that reopened the comment period for the proposed
listing rule and extended the final determination of listing status for
the Zuni bluehead sucker by 6 months due to substantial disagreement
regarding the Zuni bluehead sucker's taxonomic status in some locations
(79 FR 1615).
On July 24, 2014, we published in the Federal Register a final rule
to list the Zuni bluehead sucker as an endangered species (79 FR
43132). In this final listing determination, we revised the Zuni
bluehead sucker's range to exclude populations from the previously
identified proposed San Juan River critical habitat unit. This change
was based on an error in the genetic data evaluated for the proposed
listing rule (Schwemm and Dowling 2008, entire); the correct
information led to the determination that the bluehead suckers in the
Lower San Juan River Watershed (proposed critical habitat Unit 3; San
[[Page 36763]]
Juan River Unit) were bluehead suckers (Catostomus discobolus), not
Zuni bluehead suckers (Catostomus discobolus yarrowi). Thus, the San
Juan River Unit populations were no longer included in the range
estimate provided in the final listing rule.
On April 14, 2015, we published in the Federal Register our revised
proposed critical habitat designation of 228.4 km (141.9 mi) and
reopened the public comment period until May 14, 2015 (80 FR 19941). We
also announced the availability of the draft economic analysis and a
draft environmental assessment prepared pursuant to the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) for the
proposed critical habitat designation. The draft economic analysis (IEc
2014, entire) was prepared to identify and evaluate the economic
impacts of the proposed critical habitat designation.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Zuni bluehead sucker during two
comment periods. The first comment period, associated with the
publication of the proposed rule (78 FR 5351), opened on January 25,
2013, and closed on March 26, 2013. We also requested comments on the
revised proposed critical habitat designation and associated draft
economic analysis during a comment period that opened April 14, 2015,
and closed on May 14, 2015 (80 FR 19941). We did not receive any
requests for a public hearing. We also contacted appropriate Federal,
State, Tribal, and local agencies; scientific organizations; and other
interested parties and invited them to comment on the proposed rule,
draft economic analysis, and draft environmental assessment during
these comment periods.
During the first comment period, we received six comment letters
directly addressing the proposed critical habitat designation. During
the second comment period, we received 13 comment letters addressing
the proposed critical habitat designation or the draft economic
analysis. All substantive information provided during comment periods
is either incorporated directly into this final determination or is
addressed below. Comments received are grouped into general issues
specifically relating to the proposed critical habitat designation for
the Zuni bluehead sucker 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 six knowledgeable
individuals with scientific expertise that included familiarity with
the subspecies, the geographic region in which the subspecies occurs,
and conservation biology principles. We received responses from four 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 Zuni bluehead sucker. The peer reviewers generally concurred with
our methods and conclusions, and provided additional information,
clarifications, and suggestions to improve the final critical habitat
rule. Peer reviewer comments are addressed in the following summary and
incorporated into the final rule as appropriate.
Peer Reviewer Comments
(1) Comment: Two peer reviewers suggested postponing critical
habitat designations in the Kinlichee and San Juan River Units
(proposed critical habitat units 2 and 3) until the taxonomic status of
the catostomids (suckers) in these areas is resolved.
Our Response: In the proposed listing rule, we identified
populations in the San Juan Unit (proposed critical habitat Unit 3) as
Zuni bluehead sucker because previous genetic analysis (Schwemm and
Dowling 2008, entire) provided evidence supporting this conclusion.
However, as mentioned in the ``Taxonomy and Genetics'' section of our
final listing rule published July 24, 2014 (79 FR 43132), this
conclusion was based on inaccurate information. The San Juan River Unit
was removed from critical habitat designation due to results from
genetics studies, and we made the appropriate changes in this final
rule to reflect the updated classifications of populations as bluehead
sucker. Kinlichee Creek was retained as a population of Zuni bluehead
sucker, based on the morphological evidence and the presence of unique
Zuni bluehead sucker genetics in some sites within the watershed;
however, we are excluding this unit from final critical habitat
designation (see Exclusions Based on Other Relevant Impacts, below).
(2) Comment: One peer reviewer stated that although Zuni bluehead
sucker is closely related to bluehead sucker, caution needs to be taken
when assuming bluehead sucker have the same needs or attributes as Zuni
bluehead sucker.
Our Response: We agree. We have added language throughout this
final rule to distinguish which species or subspecies we are
referencing. We used information specific to Zuni bluehead sucker
whenever possible. However, because there are many information gaps
(such as habitat needs for specific life stages of Zuni bluehead
sucker), we relied on information available for a closely related and
more thoroughly studied species, the bluehead sucker.
(3) Comment: One peer reviewer noted that vague terms such as
``appropriate stream velocity,'' ``very,'' and ``recent'' should be
avoided.
Our Response: We used the most specific characteristics possible
when describing the physical and biological features of critical
habitat for the Zuni bluehead sucker. Unfortunately, information is not
always available to describe these characteristics quantitatively. In
these cases, we used qualitative terms to describe the characteristics
of critical habitat. We clarified our language where it was appropriate
and accurate to do so.
(4) Comment: Two peer reviewers noted that 74.2 km (46.1 mi) of
proposed critical habitat in the Zuni River Headwaters (Subunit 1a) was
stated to be occupied at the time of listing, but the proposed listing
stated the subspecies occurs in only 4.8 km (3 mi) of habitat in these
headwaters.
Our Response: We have revised this discussion and clarified the
description of Subunit 1a. The most recent surveys only included the
4.8-km (3-mi) reach referred to in the proposed listing rule. We used
the recent survey information in combination with both historical
survey records and Geographical Information System (GIS) information
indicating 74.2 km (46.1 mi) of the Zuni River Headwaters (Subunit 1a)
contained the physical and biological features essential for the
subspecies' conservation. We conclude the full reach was occupied based
on the presence of suitable habitat and repeated positive survey data
since the 1990s; this area has been regularly sampled since 2003
(Propst and Hobbes 1996, p. 13; Carman 2010, pp. 13-15; Gilbert and
Carman 2011, p. 23; NMDGF 2013, p. 24).
(5) Comment: One peer reviewer was opposed to the exclusion of
designated critical habitat of any area that is shown by available
scientific information to be important to the conservation and recovery
of the subspecies.
Our Response: Section 4(b)(2) of the Act (16 U.S.C. 1531 et seq.)
states that the Secretary shall designate and make
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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. When
identifying the benefits of inclusion for an area, we consider the
additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus, the educational benefits of mapping
essential habitat for recovery of the listed species, and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat. When identifying the benefits of
exclusion, we consider, among other things, whether exclusion of a
specific area is likely to result in conservation; the continuation,
strengthening, or encouragement of partnerships; or implementation of a
management plan that provides equal to or more conservation than a
critical habitat designation would provide.
Lands excluded under section 4(b)(2) of the Act may still be
considered essential to the conservation of the Zuni bluehead sucker.
Such areas were identified as critical habitat because they either
provide the essential physical or biological features, if occupied, or
were otherwise determined to be essential, if unoccupied. Exclusion
should never be interpreted as meaning that such areas are unimportant
to the conservation of the subspecies. Exclusion is based upon a
determination by the Secretary that the benefit of excluding an area
outweighs the benefit of including an area in critical habitat.
In this case, the Secretary has chosen to exercise her discretion
to exclude non-Federal lands from the final designation of critical
habitat if an existing conservation agreement or partnership is in
place that provides benefits that are greater than the benefits that
would be provided by the designation of critical habitat. Such
exclusions have only been made following a careful weighing of both the
benefits of inclusion and the benefits of exclusion. We wish to
emphasize that the exclusion of lands from the critical habitat
designation should not be construed as a message that these lands are
not important or essential for the conservation of the Zuni bluehead
sucker, nor should exclusion be interpreted as some indication that
these lands are now somehow subject to habitat degradation or
destruction because they are not included in critical habitat. Lands
excluded on the basis of conservation agreements and the recognition of
conservation partnerships are fully expected to continue to make an
important contribution to the conservation and recovery of the Zuni
bluehead sucker absent the designation of critical habitat. Such lands
are excluded only if we have evidence that such expectations for future
contributions of the habitat on these lands are well-founded, as
evidenced by a conservation easement, habitat conservation plan, safe
harbor agreement, or other instrument, or by a proven track record of
conservation by the partner in question. The details of our considered
analyses of each area under consideration for exclusion are provided in
the Consideration of Impacts under Section 4(b)(2) of the Act, below.
Comments From States
We received three comments from the Arizona Game and Fish
Department (AGFD) and New Mexico Department of Game and Fish (NMDGF)
supporting the critical habitat designation. In addition, NMDGF
provided their most recent Zuni bluehead sucker annual report that was
used to update habitat conditions for the Zuni bluehead sucker in the
Zuni River Watershed.
(6) Comment: Any critical habitat designation for occupied or
unoccupied habitats on private lands should be carefully weighed
against the private property interests in the watershed.
Our Response: For lands meeting the definition of critical habitat,
we have considered each of the potential bases for exclusion from
critical habitat designation. In order to do so, we conducted an
economic analysis, an environmental assessment to comply with NEPA, and
a takings implications assessment. The economic analysis found that no
significant economic impacts are likely to result from the designation
of critical habitat for the Zuni bluehead sucker. Because the Act's
critical habitat protection requirements apply only to Federal agency
actions, few conflicts between critical habitat and private property
rights should result from this designation.
The designation of critical habitat does not require implementation
of restoration, recovery, or enhancement measures by non-Federal
landowners. 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. In the event of a finding of
destruction or adverse modification of critical habitat, the obligation
of the Federal action agency is not to restore or recover the species,
but to implement reasonable and prudent alternatives to avoid
destruction or adverse modification of critical habitat. 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.
Critical habitat designations do not affect activities by private
landowners if there is no Federal nexus--that is, no Federal funding or
authorization.
(7) Comment: Any exclusion of tribal lands should be supported by
sound management plans and sufficient monitoring efforts to track the
status of Zuni bluehead sucker in those areas.
Our Response: Each of the exclusions is assessed in greater detail
and meets the statutory basis that the benefits of exclusion outweigh
the benefits of inclusion and will not result in extinction. Navajo
Nation has submitted a final fisheries management plan and the Zuni
Tribe has submitted a draft fisheries management plan; the plans are
described in detail below (see ``Tribal Lands'' under the heading
Exclusions Based on Other Relevant Impacts, below). In addition, the
Service has been assisting Navajo Nation in monitoring Zuni bluehead
sucker populations on their lands, and a monitoring component is
identified within their Fisheries Management Plan. The Zuni Tribe has
also been integral to monitoring Zuni bluehead sucker in the Rio Nutria
from the 1960s to early 2000s, and the Zuni Tribe has included a
monitoring component within their Fisheries Management Plan that abides
by their cultural beliefs. Although the Zuni Fisheries Management Plan
is currently draft, its development, and the Tribe's coordination with
us, provides evidence of our working relationship with the Zuni Tribe
for conservation of the subspecies. We are excluding all tribal lands
within Subunits 1a and 1b and
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Unit 2 from this final designation under section 4(b)(2) of the Act. We
have determined that the benefits of exclusion outweigh the benefits of
inclusion and are therefore excluding these areas from the final
critical habitat designation (see Consideration of Impacts under
Section 4(b)(2) of the Act, below).
(8) Comment: AGFD encourages the Service to work closely with
Navajo Nation, the Zuni Tribe, the Cibola National Forest, NMDGF, and
private landowners to develop and implement effective conservation and
recovery efforts for this subspecies and its habitat.
Our Response: The Service is actively working with our stakeholders
in developing fisheries management plans, developing monitoring
populations, and identifying recovery streams and refugia locations.
The Service recognizes the vital importance of working with our
stakeholders in developing and implementing conservation measures in
achieving the recovery of endangered and threatened species. However,
the designation of critical habitat does not require implementation of
restoration, recovery, or enhancement measures by non-Federal
landowners. If there is not a Federal nexus for activities taking place
on private or State lands, then critical habitat designation does not
restrict any actions that destroy or adversely modify critical habitat.
Tribal Comments
(9) Comment: During the public comment period, we met and received
comments from Navajo Nation and the Zuni Tribe expressing their
opposition to the designation of critical habitat. They stated that
exclusion of their lands from critical habitat designation is warranted
due to tribal self-governance and would help maintain cooperative
working relationships.
Our Response: The portions of Subunits 1a and 1b on the Zuni
Reservation and all of Unit 2 on the Navajo Nation are excluded from
this final designation under section 4(b)(2) of the Act. We have
determined that the benefits of exclusion outweigh the benefits of
inclusion and that these exclusions will not result in the extinction
of the subspecies. Therefore, we are excluding these areas from the
final critical habitat designation (see Consideration of Impacts under
Section 4(b)(2) of the Act, below).
Public Comments
(10) Comment: One commenter stated it is unclear from the
information provided that the entire proposed critical habitat area has
been recently surveyed to assess whether it should be designated.
Our Response: As required by the Act, we rely upon the best
scientific and commercial data available to assess the current and
historical distributions of the Zuni bluehead sucker. We are not
required to conduct surveys prior to critical habitat designation.
However, much of the designated habitat has been regularly sampled
since 2003, by either electrofishing or visual surveys in New Mexico
(Propst and Hobbes 1996, p. 13; Carman 2010, pp. 13-15; Gilbert and
Carman 2011, p. 23; NMDGF 2013, p. 24) and Arizona (Kitcheyan and Mata
2012, entire; Kitcheyan and Mata 2013, entire). Other sources of
information include articles published in peer-reviewed journals and
data collected by the Service and NMDGF, and any other data available
at the time of the designation. Additional information on our data
sources can be found in the final listing rule published in the Federal
Register on July 24, 2014 (79 FR 43132) under the heading ``Range and
Distribution.''
(11) Comment: One commenter suggested that if Navajo lands are
excluded from the final critical habitat designation, the Service
should ensure that the tribe follows through on its conservation
commitments.
Our Response: We have a productive working relationship with Navajo
Nation to promote the conservation of the Zuni bluehead sucker and its
habitat. This working relationship provides substantial benefit to the
subspecies, as Navajo Nation has submitted a final fisheries management
plan, described in detail below (see ``Tribal Lands'' under Exclusions
Based on Other Relevant Impacts, below). In addition, the Service has
been assisting Navajo Nation in monitoring Zuni bluehead sucker
populations on their lands, and a monitoring component is identified
within their Fisheries Management Plan. Annual work plans in accordance
with the Fisheries Management Plan will be developed with full
cooperation of the Navajo Nation Department of Fish and Wildlife,
Bureau of Indian Affairs (BIA), and the Service. The Fisheries
Management Plan will be updated as necessary every 5 years.
(12) Comment: One commenter stated Tampico Springs is not native
habitat for the Zuni bluehead sucker and should not be designated as
critical habitat for this subspecies.
Our Response: As mentioned in the ``Taxonomy and Genetics''
discussion in our final listing rule (79 FR 43132; July 24, 2014), the
Tampico Springs population was founded through translocation in the
mid-1970s. This population is within the general historical range of
the subspecies and has been self-sustaining since its founding. We find
the population in Tampico Springs is essential to the conservation of
the Zuni bluehead sucker.
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 considered the physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. Under the
first part 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. Tampico Springs was occupied at the time of listing,
contains the physical and biological features essential to the
conservation of the subspecies, and therefore meets the definition of
critical habitat.
(13) Comment: Tampico Springs (on private land) should be excluded
as a critical habitat for the Zuni bluehead sucker, because exclusion
would allow and promote the continuation of strong partnerships with
State and Federal agencies, industry, and other entities, resulting in
continued habitat protection.
Our Response: The area that the commenter requested that the
Service exclude from critical habitat is included in the Silva Forestry
Management Plan, which we reviewed for evidence of habitat protections
undertaken on this portion of land. The Forestry Management Plan is
focused on forest management and not conservation of Zuni bluehead
sucker and its habitat in this area. We are aware of no specific
conservation actions in the submitted plan that would benefit the Zuni
bluehead sucker; therefore the Secretary has chosen not to enter into
the discretionary 4(b)(2) exclusion analysis in this particular case.
Summary of Changes From Proposed Rule
In total, we are designating a total of approximately 55.7 km (34.6
mi) of critical habitat for the Zuni bluehead sucker, which is 172.7 km
(107.3 mi) less than our proposed critical habitat designation. Our
final designation of
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critical habitat reflects the following changes from the proposed rule:
(1) New information resulted in the removal of a portion of the
proposed Zuni River Unit (Unit 1). Based upon further investigation, a
section of Cebolla Creek (from Pescado Reservoir upstream on Cebolla
Creek to Ramah Reservoir) is a dry wash with no running water or stream
channel present except during periods of rain; this reach is unlikely
to have perennial or intermittent flows. As a result, 7.9 km (4.9 mi)
was removed because this section of Cebolla Creek is not essential to
the conservation of the subspecies and does not meet the definition of
critical habitat.
(2) We carefully considered the benefits of inclusion and the
benefits of exclusion, under section 4(b)(2) of the Act, of the
specific areas identified in the proposed critical habitat rule,
particularly in areas where a management plan specific to the Zuni
bluehead sucker are in place, and also where the maintenance and
fostering of important conservation partnerships are a consideration.
Based on the results of our analysis, we are excluding approximately
38.9 km (24.2 mi) of Subunit 1a, 29.4 km (18.3 mi) of Subunit 1b, and
all of Unit 2 (96.5 km (60.0 mi)) from our final critical habitat
designation for the Zuni bluehead sucker (see Consideration of Impacts
under Section 4(b)(2) of the Act, below).
Exclusion from critical habitat should not be interpreted as a
determination that these areas are unimportant, that they do not
provide physical or biological features essential to the conservation
of the species (for occupied areas), or are not otherwise essential for
conservation (for unoccupied areas); exclusion merely reflects the
Secretary's determination that the benefits of excluding those
particular areas outweigh the benefits of including them in the
designation.
(3) We inadvertently omitted language from the Proposed Regulation
Promulgation section of the proposed rule, although we discussed it as
part of our methodology for designation in the preamble of the proposed
rule. Therefore, in this final rule, we add the following language
under the Regulation Promulgation section: Critical habitat includes
the adjacent floodplains within 91.4 lateral meters (m) (300 lateral
feet (ft)) on either side of bankfull discharge, except where bounded
by canyon walls. Bankfull discharge is the flow at which water begins
to leave the channel and disperse into the floodplain, and generally
occurs every 1 to 2 years.
(4) In the proposed rule, we stated that the Zuni bluehead sucker
needs clear, cool water with low turbidity and temperatures in the
general range of 9.0 to 28.0 degrees Celsius ([deg]C) (48.2 to 82.4
degrees Fahrenheit ([deg]F)). New information has resulted in a change
to the temperatures, and in this final rule that primary constituent
element is clear, cool water with low turbidity and temperatures in the
general range of 2.0 to 23.0 [deg]C (35.6 to 73.4[emsp14][deg]F).
(5) We added a general description of the designated critical
habitat unit to the Regulation Promulgation section of this rule.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act 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 (PCEs) 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.
[[Page 36767]]
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 disperse 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.
On February 11, 2016, we published a final rule in the Federal
Register (81 FR 7413) to amend our regulations concerning the
procedures and criteria we use to designate and revise critical
habitat. That rule became effective on March 14, 2016, but, as stated
in that rule, the amendments it sets forth apply to ``rules for which a
proposed rule was published after March 14, 2016.'' We published our
proposed critical habitat designation for the Zuni bluehead sucker on
January 25, 2013 (78 FR 5351); therefore, the amendments set forth in
the February 11, 2016, final rule at 81 FR 7413 do not apply to this
final designation of critical habitat for the Zuni bluehead sucker.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
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 Zuni bluehead sucker from studies of this subspecies' habitat,
ecology, and life history as described in the proposed rule to
designate critical habitat published in the Federal Register on January
25, 2013 (78 FR 5351), in the revisions to the proposed critical
habitat designation published in the Federal Register on April 14, 2015
(80 FR 19941), and as described below. Habitat needs for specific life
stages for the Zuni bluehead sucker have not been described; therefore,
when necessary we rely on information available for the bluehead
sucker, which is closely related to the Zuni bluehead sucker.
Additional information can be found in the final listing rule published
in the Federal Register on July 24, 2014 (79 FR 43132). We have
determined that the Zuni bluehead sucker requires the physical or
biological features described below.
Space for Individual and Population Growth and for Normal Behavior
The Zuni bluehead sucker occurs in a variety of stream habitats
ranging from no shade to habitats with abundant shade from overhanging
vegetation and boulders, in pools, runs, and riffles with water
velocities ranging from 0 to 0.35 meters per second (m/sec) (1.15 feet
per second (ft/sec)) and average water depths ranging from 0.2-2.0 m
(7.9-78.7 inches (in)) (Hanson 1980, pp. 34, 42; Propst and Hobbes
1996, pp. 13, 16; NMDGF 2013, pp. 13-15). Shade provided by the
overhanging vegetation buffers water temperature fluctuations in small,
headwater streams, such as those occupied by the Zuni bluehead sucker
(Whitledge et al. 2006, p. 1461). Substrate in Zuni bluehead sucker
habitat ranges from silt and pebbles to cobbles, boulders, and bedrock
(Hanson 1980, pp. 34, 42; Propst and Hobbes 1996, pp. 13, 16; NMDGF
2013, pp. 13-15; Ulibarri 2015, p. 12). Maddux and Kepner (1988, p.
364), observed that the bluehead sucker needed clean and loosely
consolidated substrate, such as gravel, for both spawning and egg
development. Similar observations were made for the Zuni bluehead
sucker, where females selected spawning sites over loosely consolidated
gravel (Service 2015a, entire). Excessive levels of silt can inhibit
egg and juvenile fish development through the clogging of the small
spaces between substrate particles, which prevents the free flow of
oxygenated water. Additionally, siltation can reduce the suitability of
the habitat for prey organisms. Juvenile bluehead suckers have been
found near shore in slower and shallower habitats, then moving out into
deeper water and faster flowing habitat as they age (Childs et al.
1998, p. 624).
Water temperatures in occupied habitats in Arizona and New Mexico
have ranged from 2.0 to 22.3 [deg]C (35.6 to 72.1[emsp14][deg]F) during
survey efforts (Propst et al. 2001, p. 163; NMDGF 2013, pp. 20-21,
Ulibarri 2015, pp. 11-12).
Therefore, based on the information above, we identify the
following habitat
[[Page 36768]]
characteristics as the physical or biological features for the Zuni
bluehead sucker:
A variety of stream habitats, including riffles, runs, and
pools, with appropriate flows and substrates, with low to moderate
amounts of fine sediment and substrate embeddedness, as maintained by
natural, unregulated flow that allows for periodic flooding or, if
flows are modified or regulated, flow patterns that allow the river to
mimic natural functions, such as flows capable of transporting
sediment.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food. The Zuni bluehead sucker is a benthic forager (eats food from
the stream bottom) that scrapes algae, insects, and other organic and
inorganic material from rock surface (NMDGF 2004, p. 8). Stomach
content analysis of Zuni bluehead suckers revealed small particulate
organic matter, including detritus (nonliving organic material),
filamentous algae, small midge (two-winged fly) larvae, caddisfly
larvae, mayfly larvae, flatworms, and occasional small terrestrial
insects (Smith and Koehn 1979, p. 38). In addition, Smith and Koehn
(1979, p. 38) also found fish scales, snails, and insect eggs in Zuni
bluehead sucker stomachs.
The primary food source for Zuni bluehead sucker is periphytic
algae (algae attached to rocks), which occurs mainly on cobble,
boulder, and bedrock substrates with clean flowing water. Only food
found in stomach contents of adult Zuni bluehead suckers has been
described. Stomach contents of larval bluehead suckers (<25 millimeters
(mm) (~1 in) total length) have been analyzed (Muth and Snyder 1995,
entire). Larval bluehead suckers feed on diatoms (a type of algae),
zooplankton (small floating or swimming organisms that drift with water
currents), and dipteran larvae (true fly larvae) in stream areas with
low velocity or in backwater habitats (Muth and Snyder 1995, p. 100).
Juvenile and adult bluehead suckers are reported primarily to eat a
variety of inorganic material, organic material, and bottom-dwelling
insects and other small organisms (Childs et al. 1998, p. 625;
Osmundson 1999, p. 28; Brooks et al. 2000, pp. 66-69).
Aquatic invertebrates are a secondary component of the Zuni
bluehead sucker's diet. Aquatic invertebrates have specific habitat
requirements of their own. Both caddisflies and mayflies occur
primarily in a wide variety of standing and running water habitats with
the greatest diversity being found in rocky-bottom streams with an
abundance of oxygen (Merritt and Cummins 1996, pp. 126, 309).
Caddisflies and mayflies feed on a variety of detritus, algae, diatoms,
and macrophytes (aquatic plants) (Merritt and Cummins 1996, pp. 126,
309). Habitat that consists of rocky bottoms with periphytic algal
growth is not only important to sustain aquatic invertebrate
populations, but also serves as a primary food resource of the Zuni
bluehead sucker.
Water. As a purely aquatic subspecies, Zuni bluehead suckers are
entirely dependent on stream habitat for all stages of their life
cycle. Therefore, perennial flows are an essential feature with
appropriate seasonal flows to maintain habitat conditions that remove
excess sediments. Areas with intermittent flows may serve as connective
corridors between occupied or seasonally occupied habitat through which
the subspecies may disperse when the habitat is wetted.
There is little information on water quality requirements for the
Zuni bluehead sucker. However, excessive sedimentation is the primary
threat to water quality for the Zuni bluehead sucker (as discussed
above), primarily due to its effects on reproduction and food
resources. Turbidity (sediment suspended in the water column) can
inhibit algae production through reducing sunlight penetration into the
water.
Therefore, based on the information above, we identify the
following prey base and water quality characteristics as physical or
biological features for the Zuni bluehead sucker:
An abundant source of algae production and an aquatic
insect food base consisting of caddisflies, mayflies, midges, and
various terrestrial insects;
Streams with no harmful levels of pollutants;
Areas with low levels of sediment deposition;
Perennial flows, or interrupted stream courses that are
periodically dewatered but that serve as connective corridors between
occupied or seasonally occupied habitat and through which the
subspecies may disperse when the habitat is wetted;
Dynamic flows that allow for periodic changes in channel
morphology.
Cover or Shelter
Cover from predation (by nonnative fish and avian predators) may be
in the form of deep water or physical structure. Little is known about
habitat characteristics specifically relating to cover for the Zuni
bluehead sucker. However, during surveys, Zuni bluehead suckers have
been found in shaded pools and near boulder outcrops, which may be used
for cover (Kitcheyan 2012, pers. comm.). Additionally, mature bluehead
suckers are found in deeper water than larvae and in habitats with less
woody cover than younger life stages, which are more vulnerable to
predation (Childs et al. 1998, p. 624). Recent investigations on Navajo
Nation have shown that Zuni bluehead suckers use aquatic macrophytes as
cover, perhaps due to the lack of riparian vegetation (Ulibarri 2015,
p. 12). In contrast, bluehead suckers in an adjacent drainage were
found to use branches and woody debris as cover (Ulibarri 2015, p. 12).
Therefore, based on the information above, we identify the
following characteristics for cover or shelter as physical or
biological features for the Zuni bluehead sucker:
Streams with large rocks, boulders, undercut banks, woody
debris or aquatic macrophytes.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Zuni bluehead sucker spawn from early April to early June when
water temperatures are 6 to 15 [deg]C (43 to 59[emsp14][deg]F), peaking
around 10 [deg]C (50[emsp14][deg]F) (Propst 1999, p. 50; Propst et al.
2001, p. 164). The Zuni bluehead sucker may have two spawning periods,
with the majority of the spawning effort expended early in the season
(Propst et al. 2001, p. 158). Females in spawning condition have been
found over gravel beds (Sublette et al. 1990, p. 210; Propst et al.
2001, p. 158). Clean substrates free of excessive sedimentation are
essential for successful breeding (see the ``Habitat and Life History''
discussion in the final listing rule; 79 FR 43132, July 24, 2014).
Periodic flooding removes excess silt and fine sand from the stream
bottom, breaks up embedded bottom materials, and rearranges sediments
in ways that promote algae production and create suitable habitats with
silt-free substrates.
Therefore, based on the information above, we identify the
following characteristics for breeding, reproduction, or development of
offspring as physical or biological features for the Zuni bluehead
sucker:
Gravel and cobble substrates;
Pool and run habitats;
Slower currents along stream margins with appropriate
stream velocities for larvae;
Instream flow velocities that are less than 0.35 m/sec
(1.15 ft/sec); and
Dynamic flows that allow for periodic changes in channel
morphology.
[[Page 36769]]
Habitats Protected From Disturbance or Representative of the
Historical, Geographical, and Ecological Distributions of the Species
The Zuni bluehead sucker has a restricted geographic distribution.
Endemic species (species that are exclusively native to a particular
location) whose populations exhibit a high degree of isolation are
extremely susceptible to extinction from both random and nonrandom
catastrophic natural or human-caused events. Therefore, it is essential
to maintain both springs and stream systems upon which the Zuni
bluehead sucker depends. This means protection from disturbance caused
by exposure to land management actions (logging, cattle grazing, and
road construction), water contamination, water depletion, or nonnative
species. The Zuni bluehead sucker must, at a minimum, sustain its
current distribution for the subspecies to continue to persist.
Introduced species are a serious threat to native aquatic species
(Miller 1961, pp. 365, 397-398; Lachner et al. 1970, p. 21; Ono et al.
1983, pp. 90-91; Carlson and Muth 1989, pp. 222, 234; Fuller et al.
1999, p. 1; Propst et al. 2008, pp. 1246-1251; Pilger et al. 2010, pp.
300, 311-312; see both Factor C: Disease or Predation and Factor E:
Other Natural or Manmade Factors Affecting Its Continued Existence
discussions in our final listing rule published July 24, 2014 (79 FR
43132)). Because the distribution of the Zuni bluehead sucker is so
isolated and its habitat so restricted, introduction of certain
nonnative species into its habitat could be devastating. Potentially
harmful nonnative species include green sunfish (Lepomis cyanellus),
northern crayfish (Orconectes virilis), fathead minnow (Pimephales
promelas), and other nonnative fish-eating fishes.
The Zuni bluehead sucker typically inhabits small desert stream
systems including isolated headwater springs, small headwater springs,
and mainstem river habitats (Gilbert and Carman 2011, p. 2) with clean,
hard substrate; flowing water; and abundant riparian vegetation.
Degraded habitat consists of silt-laden substrates; high turbidity; and
deep, stagnant water (Gilbert and Carman 2011, p. 6). Therefore, based
on the information above, we identify the necessary physical or
biological features for the Zuni bluehead sucker:
Nondegraded habitat devoid of nonnative aquatic species,
or habitat in which nonnative aquatic species are at levels that allow
persistence of the Zuni bluehead sucker.
Primary Constituent Elements for the Zuni Bluehead Sucker
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Zuni bluehead sucker in areas occupied at the time
of listing, focusing on the features' primary constituent elements.
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
subspecies' life-history processes, we determine that the primary
constituent elements specific to the Zuni bluehead sucker are:
(1) A riverine system with habitat to support all life stages of
the Zuni bluehead sucker (egg, larval, juvenile, and adult), which
includes:
a. Dynamic flows that allow for periodic changes in channel
morphology and adequate river functions, such as channel reshaping and
delivery of coarse sediments;
b. Stream courses with perennial flows or intermittent flows that
serve as connective corridors between occupied or seasonally occupied
habitat through which the subspecies may disperse when the habitat is
wetted;
c. Stream mesohabitat types including runs, riffles, and pools with
substrate ranging from gravel, cobble, and bedrock substrates with low
or moderate amounts of fine sediment and substrate embeddedness;
d. Streams with depths generally less than 2 m (3.3 ft), and with
slow to swift flow velocities less than 0.35 m/sec (1.15 ft/sec);
e. Clear, cool water with low turbidity and temperatures in the
general range of 2.0 to 23.0 [deg]C (35.6 to 73.4[emsp14][deg]F);
f. No harmful levels of pollutants; and
g. Adequate riparian shading to reduce water temperatures when
ambient temperatures are high and provide protective cover from
predators.
(2) An abundant aquatic insect food base consisting of fine
particulate organic material, filamentous algae, midge larvae,
caddisfly larvae, mayfly larvae, flatworms, and small terrestrial
insects.
(3) Areas devoid of nonnative aquatic species or areas that are
maintained to keep nonnatives at a level that allows the Zuni bluehead
sucker to continue to survive and reproduce.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the 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. We believe each area included in these designations
requires special management and protections as described in our unit
descriptions.
We need to consider special management considerations or protection
for the features essential to the conservation of the species within
each critical habitat area. The special management considerations or
protections will depend on the threats to the essential features in
that critical habitat area. For example, threats requiring special
management considerations or protection include the continued spread of
nonnative fish species into Zuni bluehead sucker habitat or increasing
number of beavers that reduce habitat quality and foster expansion of
nonnative fish and crayfish. Other threats requiring special management
considerations or protection include the threat of wildfire and
excessive ash and sediment following fire. Improper livestock grazing
can be a threat to the remaining populations of the Zuni bluehead
sucker through trampling of habitat and increasing sedimentation.
Inadequate water quantity resulting from drought and water withdrawals
affect all life stages of the Zuni bluehead sucker. Additionally, the
construction of impoundments and water diversions can cause an increase
in water depth behind the structure and a reduction or elimination of
stream habitat below.
In our description below for each of the critical habitat areas for
the Zuni bluehead sucker, we have included a discussion on the threats
occurring in each area and the required special management
considerations or protections.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b) we
review available information pertaining to the habitat requirements of
the species and identify occupied areas at the time of listing that
contain the features essential to the conservation of the species. If,
after
[[Page 36770]]
identifying currently occupied areas, we determine that those areas are
inadequate to ensure conservation of the species, in accordance with
the Act and our implementing regulations at 50 CFR 424.12(e) we then
consider whether designating additional areas--outside those currently
occupied--are essential for the conservation of the species. We are
designating critical habitat in areas within the geographical area
occupied by the subspecies at the time of listing in 2014. We also are
designating specific areas outside the geographical area occupied by
the subspecies at the time of listing that were historically occupied
but are presently unoccupied, because we have determined that such
areas are essential for the conservation of the subspecies.
Sources of data for this subspecies include multiple databases
maintained by universities and State agencies from Arizona and New
Mexico, existing State recovery plans, endangered species reports, and
numerous survey reports on streams throughout the subspecies' range
(Propst 1999, pp. 49-51; NMDGF 2003, pp. 6-10; NMDGF 2004, pp. 1-40;
David 2006, pp. 1-40; NMDGF 2007, pp. 1-27; Douglas et al. 2009, p. 67;
Navajo Nation Heritage Program 2012, pp. 1-20, NMDGF 2013, entire). We
have also reviewed available information that pertains to the habitat
requirements of this subspecies. Sources of information on habitat
requirements include existing State recovery plans, endangered species
reports, studies conducted at occupied sites and published in peer-
reviewed articles, agency reports, and data collected during monitoring
efforts (Propst et al. 2001, pp. 159-161; NMDGF 2003, pp. 1-14; NMDGF
2004, pp. 4-7; Kitcheyan and Mata 2013, pp. 5-12).
The current distribution of the Zuni bluehead sucker is much
reduced from its historical distribution. We anticipate that recovery
will require continued protection of existing populations and habitat,
as well as establishing populations in additional streams that more
closely approximate its historic distribution in order to ensure there
are adequate numbers of fish in stable populations and that these
populations occur over a wide geographic area. This will help to ensure
that catastrophic events, such as wildfire, cannot simultaneously
affect all known populations.
Areas Occupied at the Time of Listing
The critical habitat designation includes all streams known to have
been occupied by the subspecies historically and that have retained the
necessary PCEs that will allow for the maintenance and expansion of
existing populations. The following streams meet the definition of
areas occupied by the subspecies at the time of listing: Agua Remora,
Rio Nutria, Tampico Springs, Tampico Draw, Kinlichee Creek, Black Soil
Wash, and Scattered Willow Wash. There are no developed areas within
the designation except for barriers constructed on streams or road
crossings of streams, which do not remove the suitability of these
areas for this subspecies.
Areas Outside the Geographical Area Occupied by the Species at the Time
of Listing
The Zuni River, Rio Pescado, Cebolla Creek, and Red Clay Wash are
within the historical range of the Zuni bluehead sucker but are not
within the geographical range occupied by the subspecies at the time of
listing. The Zuni River and Rio Pescado experience a high degree of
river intermittency, and the Zuni bluehead sucker has not been seen in
these streams in approximately 20 years. Additionally, Zuni bluehead
suckers have not been observed in Cebolla Creek and Red Clay Wash in
over 30 years. We consider these sites to be extirpated. For areas not
occupied by the subspecies at the time of listing, we must demonstrate
that these areas are essential to the conservation of the subspecies in
order to include them in our critical habitat designation. To determine
if these areas are essential for the conservation of the Zuni bluehead
sucker, we considered: (1) The importance of the site to the overall
status of the subspecies to prevent extinction and contribute to future
recovery of the Zuni bluehead sucker; (2) whether special management
could cause the site to contain the necessary habitat to support the
Zuni bluehead sucker; (3) whether the site provides connectivity
between occupied sites for genetic exchange; and (4) whether a
population of the subspecies could be reestablished in the area.
Of the unoccupied streams, the Zuni River, Rio Pescado and Cebolla
Creek exhibit varying degrees of intermittency; the Zuni River and Rio
Pescado are generally only continuous after heavy flows in the spring
(NMDGF 2004, p. 13; New Mexico Environment Department (NMED) 2004, p.
1). However, when the Zuni River, Rio Pescado, and portions of Cebolla
Creek do exhibit flow, and if special management were to occur, they
could allow for important population expansion in this watershed. These
sites include habitat for connectivity and dispersal opportunities
between occupied and occupied areas. Such opportunities for dispersal
assist in maintaining the population structure and distribution of the
subspecies. The current amount of habitat that is occupied is not
sufficient for the recovery of the subspecies. Therefore, the
unoccupied areas are essential for the conservation of the Zuni
bluehead sucker.
In summary, for areas within the geographic area occupied by the
subspecies at the time of listing, we delineated critical habitat unit
boundaries by evaluating habitat suitability of stream segments within
the geographic area occupied at the time of listing, and retaining
those segments that contain some or all of the PCEs to support life-
history functions essential for conservation of the subspecies.
For areas outside the geographic area occupied by the subspecies at
the time of listing, we delineated critical habitat unit boundaries by
evaluating stream segments not known to have been occupied at listing
but that are within the historical range of the subspecies (outside of
the geographic area occupied by the subspecies) to determine if they
are essential to the conservation of the subspecies. Essential areas
are those that:
(1) Are important to the overall status of the subspecies to
prevent extinction and contribute to future recovery;
(2) Expand the geographic distribution within areas not occupied at
the time of listing across the historical range of the subspecies;
(3) Serve as an extension of habitat within the geographic area of
an occupied unit; and
(4) Are connected to other occupied areas, which will enhance
genetic exchange between populations.
In conclusion, based on the best available information, we
determined that the areas within the historical range are essential to
provide for the conservation of the Zuni bluehead sucker because they
include habitat for all extant populations, and they include habitat
for connectivity and dispersal opportunities between the unit and
occupied areas. Such opportunities for dispersal assist in maintaining
the population structure and distribution of the subspecies. The
current amount of habitat that is occupied is not sufficient for the
recovery of the subspecies; therefore, we include unoccupied habitat in
this critical habitat designation.
As a final step, we evaluated the occupied stream segments and
refined the starting and ending points by evaluating the presence or
absence of appropriate PCEs. We selected upstream and downstream cutoff
points to omit areas that are highly degraded and are
[[Page 36771]]
not likely to be able to support the Zuni bluehead sucker in the
future. For example, permanently dewatered areas, or areas in which
there was a change to unsuitable characteristics (e.g., water quality,
bedrock substrate), were used to mark the start or endpoint of a stream
segment proposed for designation. Critical habitat stream segments were
then mapped using ArcMap version 10 (Environmental Systems Research
Institute, Inc.), a Geographic Information Systems program.
Areas designated as critical habitat provide sufficient stream and
spring habitat for breeding, nonbreeding, and dispersing adult Zuni
bluehead suckers, as well as for the habitat needs for juvenile and
larval stages of this fish. In general, the PCEs of critical habitat
are contained within the riverine ecosystem formed by the wetted
channel and the adjacent floodplains within 91.4 lateral m (300 lateral
ft) on either side of bankfull discharge, except where bounded by
canyon walls. Bankfull discharge is the flow at which water begins to
leave the channel and disperse into the floodplain and generally occurs
every 1 to 2 years. Areas within the lateral extent also contribute to
the PCEs, including water quality and intermittent areas through which
fish may disperse when wetted.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack physical or biological features for the Zuni bluehead
sucker. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this 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 consultations 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 or maps, 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 each map is based available
to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0002, on our Internet site at http://www.fws.gov/southwest/es/NewMexico/, and at the field office responsible for the designation
(see FOR FURTHER INFORMATION CONTACT, above).
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 to the conservation of the subspecies, and lands outside of
the geographical area occupied at the time of listing that we have
determined are essential for the conservation of the Zuni bluehead
sucker.
Units are designated based on sufficient elements of physical or
biological features being present to support the Zuni bluehead sucker's
life processes. Some units contain all of the identified elements of
physical or biological features and support multiple life processes.
Some segments contain only some elements of the physical or biological
features necessary to support the Zuni bluehead sucker's particular use
of that habitat.
Final Critical Habitat Designation
We are designating one unit, the Zuni River Unit, as critical
habitat for the Zuni bluehead sucker. Following our evaluation and
analysis under section 4(b)(2) of the Act, Unit 2 (Kinlichee Creek
Unit) is excluded in its entirety (see Consideration of Impacts under
Section 4(b)(2) of the Act, below). The critical habitat areas
described below constitute our best assessment at this time of areas
that meet the definition of critical habitat. Table 1 shows the
occupied subunits.
Table 1--Designated Critical Habitat Unit for Zuni Bluehead Sucker
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Occupied at the time of Length of unit in
Stream segment listing Land ownership kilometers (miles)
----------------------------------------------------------------------------------------------------------------
Unit 1--Zuni River Unit
----------------------------------------------------------------------------------------------------------------
Subunit 1a--Zuni River Headwaters
----------------------------------------------------------------------------------------------------------------
Agua Remora........................... Yes...................... Forest Service........... 6.6 (4.1)
Private.................. 2.4 (1.5)
Rio Nutria............................ Yes...................... Forest Service........... 4.1 (2.6)
State of New Mexico...... 1.8 (1.1)
Private.................. 14.2 (8.8)
Tampico Draw.......................... Yes...................... Forest Service........... 2.3 (1.4)
Private.................. 3.7 (2.3)
Tampico Spring........................ Yes...................... Private.................. 0.2 (0.1)
-------------------
Total............................. ......................... ......................... 35.4 (22.0)
----------------------------------------------------------------------------------------------------------------
Subunit 1b--Zuni River Mainstem
----------------------------------------------------------------------------------------------------------------
Cebolla Creek......................... No....................... State of New Mexico...... 0.4 (0.2)
Forest Service........... 6.4 (4.0)
Private.................. 13.5 (8.4)
-------------------
Total............................. ......................... ......................... 20.3 (12.6)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
[[Page 36772]]
Below we present brief descriptions of the unit and reasons why it
meets the definition of critical habitat for the Zuni bluehead sucker.
Unit 1: Zuni River Unit
Subunit 1a--Zuni River Headwaters: Subunit 1a consists of 35.4 km
(22.0 mi) along Agua Remora, Rio Nutria, Tampico Draw, and Tampico
Springs in McKinley County, New Mexico. We exclude approximately 38.9
km (24.2 mi) of Subunit 1a, which was primary along the Rio Nutria on
the Zuni Reservation. The land in this subunit is primarily owned by
Forest Service, and private landowners with a small amount of State
inholdings. At the time of listing, the Zuni bluehead sucker occupied
all stream reaches in this subunit, and the subunit contains all of the
physical or biological features essential to the conservation of the
Zuni bluehead sucker. This unit represents the only remaining headwater
spring habitats occupied by Zuni bluehead sucker.
Activities in the watershed include livestock grazing, water
withdrawals, and impoundments. Livestock grazing is primarily regulated
by the Forest Service in this subunit; however, trespass livestock
grazing may occur. Additional special management considerations or
protection may be required within Subunit 1a to address low water
levels as a result of water withdrawals and drought, predation from
nonnative green sunfish (Lepomis cyanellus), and the upstream and
downstream effects of impoundments. Such special management or
protection may include maintaining instream flows, nonnative species
removal, and reservoir management that improves upstream and downstream
habitat to benefit the Zuni bluehead sucker.
Subunit 1b--Zuni River Mainstem: Subunit 1b consists of 20.3 km
(12.6 mi) of potential Zuni bluehead sucker habitat along Cebolla Creek
in McKinley and Cibola Counties, New Mexico. Land within this subunit
is primarily owned by private landowners, with a small amount owned by
Forest Service and the State of New Mexico. We removed 7.9 km (4.9 mi)
of Cebolla Creek that had been included in the proposed designation
because it does not meet the definition of critical habitat. Based upon
further investigation, a section of Cebolla Creek (from Pescado
Reservoir upstream on Cebolla Creek to Ramah Reservoir) lacks certain
morphological features of suitable Zuni bluehead sucker habitat with no
running water present except during periods of rain; this reach is
unlikely to have perennial or intermittent flows due to agricultural
practices in the area. This section of Cebolla Creek is not essential
to the conservation of the subspecies and does not meet the definition
of critical habitat. Therefore, critical habitat in Cebolla Creek is
the reach from Ramah Reservoir upstream for approximately 23.2 km (14.4
mi) of stream habitat.
This unit was unoccupied at the time of listing. Zuni bluehead
sucker historically occupied streams (Zuni River and Rio Pescado)
adjacent to Cebolla Creek but has not been found in the Zuni River or
Rio Pescado since the mid-1990s (NMDGF 2004, p. 5). In addition, the
Zuni bluehead sucker has been extirpated from Cebolla Creek since at
least 1979 (Hanson 1980, pp. 29, 34). Cebolla Creek upstream of Ramah
Reservoir has been identified as containing suitable habitat and could
provide for significant population expansion. Therefore, this subunit
is essential for the conservation of the Zuni bluehead sucker because
it provides growth and expansion of the subspecies in this portion of
its historical range.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule that sets forth a new definition of
``destruction or adverse modification'' on February 11, 2016 (81 FR
7214); that final rule became effective on March 14, 2016.
``Destruction or adverse modification'' means a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for the conservation of a listed species. Such alterations may include,
but are not limited to, those that alter the physical or biological
features essential to the conservation of a species or that preclude or
significantly delay development of such features.
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
[[Page 36773]]
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 result in a direct or
indirect alteration that appreciably diminishes the value of critical
habitat for the conservation of the Zuni bluehead sucker. Such
alterations may include, but are not limited to, those that alter the
physical or biological features essential to the conservation of this
subspecies or that preclude or significantly delay development of such
features. As discussed above, the role of critical habitat is to
support physical or biological features essential to the conservation
of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Zuni bluehead sucker. These activities include,
but are not limited to:
(1) Actions that could diminish flows within the active stream
channel. Such activities could include, but are not limited to: Water
diversion, water withdrawal, channelization, construction of any
barriers or impediments within the active stream channel, construction
of permanent or temporary diversion structures, and groundwater pumping
within aquifers associated with the stream or springs. These activities
could affect water depth, velocity, and flow patterns, all of which are
essential to the different life stages of the Zuni bluehead sucker.
(2) Actions that could significantly increase sediment deposition
within a stream channel. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road
construction, commercial or urban development, channel alteration,
timber harvest, or other watershed and floodplain disturbances. These
activities could adversely affect reproduction of the subspecies by
preventing hatching of eggs through suffocation, or by eliminating
suitable habitat for egg placement by the Zuni bluehead sucker. In
addition, excessive levels of sedimentation reduce or eliminate algae
production and can make it difficult for the Zuni bluehead sucker to
locate prey.
(3) Actions that could result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, even if those segments are occasionally intermittent,
or introduction of other species that compete with or prey on the Zuni
bluehead sucker. Possible actions could include, but are not limited
to: Stocking of nonnative fishes, stocking of sport fish, or other
related actions. These activities can introduce parasites or disease,
or affect the growth, reproduction, and survival of the Zuni bluehead
sucker.
(4) Actions that could significantly alter channel morphology. Such
activities could include, but are not limited to: Channelization,
impoundment, road and bridge construction, mining, dredging, and
destruction of riparian vegetation. These activities may lead to
changes in water flows and levels that would degrade or eliminate the
Zuni bluehead, their habitats, or both. These actions can also lead to
increased sedimentation and degradation of the water.
(5) Actions that could significantly alter the water chemistry of
the active channel. Such activities could include release of chemicals,
biological pollutants, or other substances into the surface water or
connected groundwater at a point source or by dispersed release
(nonpoint source), and storage of chemicals or pollutants that can be
transmitted, via surface water, groundwater, or air, into critical
habitat. These actions can affect water chemistry and the prey base of
the Zuni bluehead sucker.
Exemptions
Application of Section 4(a)(3) of the Act
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 geographical 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 proposed for designation.''
There are no Department of Defense lands within the critical
habitat designation for the Zuni bluehead sucker; therefore, we are not
exempting any areas under section 4(a)(3)(B)(i) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if 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.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State, Tribal, or Federal
laws that may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more
[[Page 36774]]
conservation than a critical habitat designation would provide.
In the case of the Zuni bluehead sucker, the benefits of critical
habitat include promotion of public awareness of the presence of the
Zuni bluehead sucker and the importance of habitat protection, and in
cases where a Federal nexus exists, potentially greater habitat
protection for the Zuni bluehead sucker due to the protection from
adverse modification or destruction of critical habitat.
When we evaluate the existence of a conservation plan when
considering the benefits of exclusion, we consider a variety of
factors, including but not limited to whether the plan is finalized;
how it provides for the conservation of the essential physical or
biological features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates the benefits of exclusion outweigh the benefits of inclusion,
we then determine whether exclusion would result in extinction. If
exclusion of an area from critical habitat will result in extinction,
we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments we received, we evaluated
whether certain lands in the proposed critical habitat were appropriate
for exclusion from this final designation pursuant to section 4(b)(2)
of the Act. We are excluding the following areas from critical habitat
designation for the Zuni bluehead sucker:
Table 3--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas excluded from
Subunit Specific area Land ownership habitat, in kilometers critical habitat, in
(miles) kilometers (miles)
----------------------------------------------------------------------------------------------------------------
1a.......................... Rio Nutria..... Zuni Tribe..... 38.9 (24.2) 38.9 (24.2)
1b.......................... Zuni River..... Zuni Tribe..... 7.4 (4.6) 7.4 (4.6)
1b.......................... Rio Pescado.... Zuni Tribe..... 18.3 (11.4) 18.3 (11.4)
1b.......................... Cebolla Creek.. Zuni Tribe..... 3.7 (2.3) 3.7 (2.3)
2a.......................... Black Soil Wash Navajo Nation.. 21.6 (13.4) 21.6 (13.4)
2a.......................... Kinlichee Creek Navajo Nation.. 47.1 (29.3) 47.1 (29.3)
2a.......................... Scattered Navajo Nation.. 18.2 (11.3) 18.2 (11.3)
Willow Wash.
2b.......................... Red Clay Wash.. Navajo Nation.. 9.6 (6.0) 9.6 (6.0)
----------------------------------------------------------------------------------------------------------------
Consideration of 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 an incremental effects
memorandum (IEM) and screening analysis which together with our
narrative and interpretation of effects we consider our draft economic
analysis (DEA) of the proposed critical habitat designation and related
factors (IEc 2014, entire).
The analysis, dated October 22, 2014, was made available for public
review from April 14, 2015, through May 14, 2015 (80 FR 19941). The DEA
addressed probable economic impacts of critical habitat designation for
the Zuni bluehead sucker. Following the close of the comment period, we
reviewed and evaluated all information submitted during the comment
period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of critical habitat designation for the Zuni bluehead sucker is
summarized below and available in the screening analysis for the Zuni
bluehead sucker (IEc 2014, entire), at http://www.regulations.gov under
Docket No. FWS-R2-ES-2013-0002.
We prepared an incremental effects memorandum (IEM) and screening
analysis which, together, we consider our draft economic analysis (DEA)
of the proposed critical habitat designation and related factors (IEc
2014, entire). As required by Executive Order 12866, any rule that
results in costs that exceed $100 million is considered a significant
regulatory action. The purpose of the economic analysis is to provide
us with the information on the potential for the proposed critical
habitat rule to result in costs or benefits exceeding $100 million in
any given year. The economic analysis addressed potential economic
impacts of critical habitat designation for the Zuni bluehead sucker.
The analysis estimates impacts to activities, including Federal lands
management, roadway and bridge construction, agriculture, grazing,
groundwater pumping, and instream dams and diversions, that may
experience the greatest impacts in compliance with section 4(b)(2) of
the Act. The economic impacts will most likely be limited to additional
administrative effort resulting from a small number of future section 7
consultations, as well as minor costs of conservation efforts. This
finding is based on the following information:
1. Approximately 70 percent (161.1 km (100.1 mi)) of proposed
critical habitat stream reaches are considered to be occupied by the
subspecies. Critical habitat designation is unlikely to result in
incremental changes to conservation actions in currently occupied areas
over and above those necessary to avoid jeopardizing of the subspecies.
As such, only administrative costs are expected in those areas.
2. In proposed areas that are not occupied by Zuni bluehead sucker
(30 percent of proposed critical habitat), few actions are expected to
result in section 7 consultation or associated project modifications.
In particular, Subunit 2b (9.6 km (6.0 mi)) occurs entirely on Navajo
Nation lands. Our outreach efforts to Navajo Nation indicate that there
would be no projects that would result in section 7 consultation within
the proposed critical habitat areas on these lands. Subunit 1b (57.6 km
(35.8 mi)) includes U.S. Forest Service, private, State, and Zuni
Pueblo lands. Communications with affected entities indicate that
critical habitat designation is unlikely to result in more than just a
few consultations in this unit, with
[[Page 36775]]
minor conservation efforts that would result in relatively low costs.
3. We are excluding 164.8 km (102.4 mi) and removing 7.9 km (4.9
mi) of critical habitat from the final designation; therefore, the
economic impacts of critical habitat designation are expected to be
less than the economic analysis anticipated.
Entities most likely to incur costs are parties to section 7
consultations, including Federal action agencies and, in some cases,
third parties, most frequently State agencies or municipalities.
Activities potentially subject to consultations that may involve
private entities as third parties are primarily limited to residential
and commercial development. The cost to private entities within these
sectors is expected to be relatively minor (administrative costs of
less than $10,000 per consultation effort). Therefore, we conclude that
these future costs are unknown, but appear unlikely to exceed $100
million in any single year. Therefore, we conclude that critical
habitat designation for the Zuni bluehead sucker is unlikely to
generate costs exceeding $100 million in a single year.
Exclusions Based on Economic Impacts
The Service considered the economic impacts of the critical habitat
designation and the Secretary is not exercising her discretion to
exclude any areas from this designation of critical habitat for the
Zuni bluehead sucker based on economic impacts.
A copy of the IEM and screening analysis 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.
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 there were no lands identified to have a national
security impact. Consequently, the Secretary is not exercising her
discretion to exclude any areas from this final designation based on
impacts on national security or homeland security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we also consider any other
relevant impacts resulting from the designation of critical habitat. 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
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.
Tribal Lands
There are several Executive Orders, Secretarial Orders, and
policies that relate to working with Tribes. These guidance documents
generally confirm our trust responsibilities to Tribes, recognize that
Tribes have sovereign authority to control Tribal lands, emphasize the
importance of developing partnerships with Tribal governments, and
direct the Service to consult with Tribes on a government-to-government
basis.
A joint Secretarial Order that applies to both the Service and the
National Marine Fisheries Service (NMFS), Secretarial Order 3206,
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most
comprehensive of the various guidance documents related to Tribal
relationships and Act implementation, and it provides the most detail
directly relevant to the designation of critical habitat. In addition
to the general direction discussed above, S.O. 3206 explicitly
recognizes the right of Tribes to participate fully in the listing
process, including designation of critical habitat. The Order also
states: ``Critical habitat shall not be designated in such areas unless
it is determined essential to conserve a listed species. In designating
critical habitat, the Services shall evaluate and document the extent
to which the conservation needs of the listed species can be achieved
by limiting the designation to other lands.'' In light of this
instruction, when we undertake a discretionary section 4(b)(2)
exclusion analysis, we will always consider exclusions of Tribal lands
under section 4(b)(2) of the Act prior to finalizing a designation of
critical habitat, and will give great weight to Tribal concerns in
analyzing the benefits of exclusion.
However, S.O. 3206 does not preclude us from designating Tribal
lands or waters as critical habitat, nor does it state that Tribal
lands or waters cannot meet the Act's definition of ``critical
habitat.'' We are directed by the Act to identify areas that meet the
definition of ``critical habitat'' (i.e., areas occupied at the time of
listing that contain the essential physical or biological features that
may require special management or protection and unoccupied areas that
are essential to the conservation of a species), without regard to
landownership. While S.O. 3206 provides important direction, it
expressly states that it does not modify the statutory authority of the
Secretary of the Interior and the Secretary of Commerce.
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service.
We evaluate a variety of factors to determine how the benefits of
any exclusion and the benefits of inclusion are affected by the
existence of private or other non-Federal conservation plans or
agreements and their attendant partnerships when we undertake a
discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list
of factors that we will consider for non-permitted plans or agreements
is shown below. These factors are not required elements of plans or
agreements, and all items may not apply to every plan or agreement.
(1) The degree to which the plan or agreement provides for the
conservation of the species or the essential physical or biological
features (if present) for the species;
(2) Whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan or
agreement will be implemented;
(3) The demonstrated implementation and success of the chosen
conservation measures;
(4) The degree to which the record of the plan supports a
conclusion that a critical habitat designation would impair the
realization of benefits expected from the plan, agreement, or
partnership;
(5) The extent of public participation in the development of the
conservation plan;
[[Page 36776]]
(6) The degree to which there has been agency review and required
determinations (e.g., State regulatory requirements), as necessary and
appropriate;
(7) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321
et seq.) compliance was required; and
(8) Whether the plan or agreement contains a monitoring program and
adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
We believe that the Navajo Nation Fisheries Management Plan and
Zuni Tribe's draft Fisheries Management Plan fulfill the above
criteria, and, as discussed below, are excluding non-Federal lands
covered by these plans that provide for the conservation of the Zuni
bluehead sucker.
I. Navajo Nation
On Navajo Nation (Unit 2 in the proposed rule), we proposed 96.5 km
(60.0 mi) of critical habitat along the stream channels within Apache
County, Arizona. Much of the habitat was historically occupied by the
subspecies with individuals detected as recently as 2015 (Crabtree and
Buth 1987, p. 851; Kitcheyan and Mata 2013, p. 10; Service 2015b,
entire). Subunit 2 was considered occupied at the time of listing,
except for Subunit 2b (Red Clay Wash).
A. Navajo Nation Fisheries Management Plan
Navajo Nation has developed a Fisheries Management Plan (FMP),
which is a joint effort between Navajo Nation Department of Fish and
Wildlife (NNDFW), the Service, and the Bureau of Indian Affairs (BIA).
The FMP is designed for the purpose of long-term planning and
implementation of fisheries-related issues on Navajo Nation and is part
of an integrated, interagency cooperative effort to manage its
fisheries resources based on sound ecological management practices. The
FMP serves as a guide for accomplishing the goals outlined in the
management plan for managing, maintaining, enhancing, and conserving
the fisheries resources on the Navajo Nation. One objective in the FMP
is to identify and protect existing Zuni bluehead sucker populations
and their habitats, and expand their distribution to suitable streams.
This would be accomplished by the following actions:
(1) Monitoring populations of Zuni bluehead sucker and their
habitat conditions to evaluate population structure, distribution, and
dynamics, and to implement adaptive management programs and habitat
restoration where needed.
(2) Re-establishing the Zuni bluehead sucker in reclaimed streams
using existing Zuni bluehead suckers from Federal hatchery facilities,
or from a donor stream.
(3) Reducing or eliminating threats from nonnative fishes and other
nonnative aquatic biota (e.g., crayfish), if present within recovery
portions of streams using mechanical, chemical, or other effective
methods.
(4) When possible, constructing fencing exclosures to minimize and/
or prevent domestic livestock overgrazing and encroachment into
riparian areas.
(5) Improving and restoring habitat conditions as needed to provide
suitable habitat for the Zuni bluehead sucker.
(6) Evaluating the feasibility of constructing and maintaining
artificial fish barriers to prevent upstream movement of nonnative
fishes into protected areas.
(7) Monitoring for presence of diseases and/or causative agents,
parasites, and pathogens through wild fish health surveys.
(8) Identifying facilities or refugium sites (i.e., natural or
hatchery) with capacity to maintain isolated populations of Zuni
bluehead sucker, and establishing a broodstock program to act as a
refugia population.
(9) Developing and implementing fire and drought contingency plans
to formalize rescue and refugia strategy for the protection of
temporarily vulnerable populations.
(10) Participating in a Zuni bluehead sucker Recovery Team, if
established, or recovery planning, when initiated by the Service.
(11) Coordinating annual meetings to evaluate the subspecies'
status, distribution, and potential impacts, and to inform and update
agency partners of recovery actions and progress (NNDFW 2015, pp. 26-
27).
In addition, NNDFW has authority over endangered and threatened
species protection, and all temporary and permanent developments (i.e.,
draining, dredging, filling, excavating, building, grazing, and
pollution) within designated sensitive areas must receive a permit or
other formal authorization from NNDFW. Navajo Nation evaluates a
project's potential impact on protected fish and wildlife and their
habitats by using their Natural Heritage Database and various tribal
and Federal wildlife protection regulations (refer to the discussion
under Factor D. The Inadequacy of Existing Regulatory Mechanisms in our
final listing rule published July 24, 2014 (79 FR 43132)). Navajo
Nation's regulatory process divides their land into six separate land
status categories to manage actions in a way that minimize impacts to
sensitive species and habitats.
The Zuni bluehead sucker critical habitat that was proposed within
the Kinlichee Creek Watershed falls into areas that Navajo Nation has
delineated as a highly sensitive area. Highly Sensitive Areas are areas
that are the most protected on Navajo Nation and contain a high degree
of habitat or resource importance for one or more protected species;
these areas have been relatively undisturbed by development. Permanent
development is not prohibited, but those developments must demonstrate
that impacts to protected species will be minimal, and if possible,
NNDFW strongly urges relocating projects to less sensitive habitats.
In the FMP, Navajo Nation recognizes that management is needed to
address impacts that grazing has on riparian areas near Zuni bluehead
sucker habitat. Navajo Nation can withdraw riparian habitat from
grazing use and has previously worked with other Navajo agencies to
reduce and eliminate grazing in important habitats along the San Juan
River. Efforts are underway by Navajo policy makers and agencies to
address past grazing impacts on Navajo Nation lands and to improve
protection and enforcement of Navajo resources and ecosystems. For
example, in 2012, the Navajo Departments of Resource Enforcement and
Agriculture conducted roundups to reduce overgrazing by stray, feral,
and unpermitted livestock.
Additionally, Navajo Nation and BIA conducted public outreach
regarding grazing impacts and the necessity of immediate and proactive
steps to be taken to reduce grazing pressure and restore productivity
of Navajo Nation rangelands. More recently, Navajo Nation has developed
a draft Navajo Rangeland Improvement Act of 2014 to improve the
ecological health and productivity of Navajo rangelands in order to
protect the interests of present and future generations of Navajo
people (Navajo Nation 2014, entire). One purpose is to mandate the
implementation of sound grazing management and conservation techniques
and practices on Navajo rangelands (Navajo Nation 2014, p. 4). Although
the Navajo Rangeland Improvement Act of 2014 is currently draft, it
provides evidence of the Navajo Nation's interest in conserving habitat
and minimizing impacts of grazing, a result of our positive working
relationship.
[[Page 36777]]
B. Benefits of Inclusion
As discussed above under Section 7 Consultation, Federal agencies,
in consultation with the Service, must ensure that their actions are
not likely to jeopardize the continued existence of any listed species
or result in the destruction or adverse modification of any designated
critical habitat of such species. The difference in the outcomes of the
jeopardy analysis and the adverse modification analysis represents the
regulatory benefit and costs of critical habitat.
Unit 2 of the proposed critical habitat for Zuni bluehead sucker is
the Kinlichee Creek Unit, which contains Subunits 2a (occupied) and 2b
(unoccupied). If there are Federal actions or if Federal permitting
occurs in Subunit 2a, these actions would undergo section 7
consultation under the jeopardy standard, because the subunit is
occupied by the subspecies. Critical habitat along Subunit 2a
(Kinlichee Creek, Black Soil Wash, and Scattered Willow Wash) may not
provide an additional regulatory benefit for the Zuni bluehead sucker
under section 7 of the Act when there is a Federal nexus present for a
project that might adversely modify critical habitat. Because the
subspecies is so closely tied to its habitat, the results of
consultation under the adverse modification standard are not likely to
differ from the results of consultation under the jeopardy standard. It
is unlikely that additional project modification would be required
above and beyond those to avoid jeopardy in order to avoid adverse
modification or destruction of critical habitat. However, Subunit 2b
(Red Clay Wash) is unoccupied by the Zuni bluehead sucker; therefore,
if a Federal action or permitting occurs, there may not be a
consultation under section 7 of the Act unless critical habitat is
designated. Our coordination with the Navajo Nation indicates that it
is unlikely that any project will result in section 7 consultation
within the areas proposed as critical habitat within Subunit 2b. Our
Incremental Effects Memo provides further description of this (Service
2013, entire).
Our economic analysis found that incremental costs would mainly
occur in unoccupied areas of critical habitat, specifically Subunit 2b.
Based on communications with Navajo Nation, we do not anticipate a
significant number of consultations in this subunit, resulting in
relatively low cost. We do not anticipate that any formal consultations
from urban development or recreation would occur if critical habitat
were designated, primarily because there would be no Federal nexus. The
types of projects we might anticipate that may have a Federal nexus
(riparian habitat restoration, forest management plans, and livestock
grazing activities) would all provide long-term benefits to Zuni
bluehead sucker habitat, suggesting that effects to the Zuni bluehead
sucker from Federal projects would likely result in insignificant and
discountable impacts because conservation measures would be focused on
habitat improvement and management. Because of how Navajo Nation
manages and conserves their lands through establishment of policies,
rules, and regulation (such as the Navajo Nation Endangered Species
List, Biological Resources Land Use Clearance Policies and Procedures,
Navajo Nation Water Quality Standards of 2007, Navajo Nation Aquatic
Resources Protection Program, and Navajo Nation's 10-Year Forest
Management Plan), and active conservation of the Zuni bluehead sucker
and other imperiled species, we do not anticipate that Navajo Nation's
actions would considerably change in the future. Therefore, the
regulatory benefit of critical habitat designation on these lands is
minimized.
Another important benefit of including lands in a critical habitat
designation is that the designation can serve to educate landowners,
agencies, tribes, and the public regarding the potential conservation
value of an area and may help focus conservation efforts on areas of
high conservation value for certain species. Any information about the
Zuni bluehead sucker that reaches a wide audience, including parties
engaged in conservation activities, is valuable. The designation of
critical habitat may also strengthen or reinforce some Federal laws
such as the Clean Water Act. These laws analyze the potential for
projects to significantly affect the environment. Critical habitat may
signal the presence of sensitive habitat that could otherwise be missed
in the review process for these other environmental laws.
The educational benefits that might follow critical habitat
designation, such as providing information to Navajo Nation on areas
that are important for the long-term survival and conservation of the
subspecies, have already been achieved. Navajo Nation is fully aware of
the Zuni bluehead sucker and its habitat needs, and has demonstrated
commitment to address management and recovery of other endangered and
threatened species (i.e., southwestern willow flycatcher (flycatcher)
(Empidonax traillii extimus), Colorado pikeminnow (Ptychocheilus
lucius), and razorback sucker (Xyrauchen texanus)). Navajo Nation was
an integral partner in identifying which bluehead sucker populations
were in fact Zuni bluehead sucker. Since 2013, Navajo Nation has been
actively monitoring their Zuni bluehead sucker populations (Kitcheyan
and Mata 2012, entire; Kitcheyan and Mata 2013, entire) and have
identified additional occupied sites within the proposed critical
habitat area, as well as potential new locations for population
replication (NNDFW 2015, entire). Navajo Nation is also a partner on a
habitat suitability study on the Zuni bluehead sucker with the
University of Arizona and has actively been seeking funds for several
fish passage projects on Navajo Nation. Additionally, the NNDFW has
authority with regard to endangered and threatened species protection
and is in the process of listing the Zuni bluehead sucker as an
endangered species for added protection, which is a tribal designation
by Navajo Nation different from the endangered designation under the
Act. Finally, Navajo Nation has incorporated outreach and educational
components regarding native fishes, including the Zuni bluehead sucker,
within their FMP. The FMP provides guidance and oversight on the
management of both recreational and native fish, including the Zuni
bluehead sucker. We find that the Navajo Nation Fisheries Management
Plan is complete, and the commitment to implement conservation
activities described provides significant conservation benefit to the
Zuni bluehead sucker. The FMP specifically provides periodic updates as
appropriate. The assurances, protections, and conservation actions for
the Zuni bluehead sucker within the Kinlichee Creek watershed on Navajo
Nation lands provide extensive benefit to the subspecies. These
baseline conservation efforts would minimize any regulatory benefit of
critical habitat designation on these lands. For these reasons, we
believe there is little educational benefit or support for other laws
and regulations attributable to critical habitat beyond those benefits
already achieved from listing the Zuni bluehead sucker under the Act on
July 24, 2014 (79 FR 43132).
C. Benefits of Exclusion
The benefits of excluding Navajo Nation from designated critical
habitat include: (1) The advancement of our Federal Indian Trust
obligations and our deference to tribes to develop and implement tribal
conservation and natural resource management plans for their lands and
resources, which includes the Zuni bluehead sucker; and
[[Page 36778]]
(2) the maintenance of effective collaboration and cooperation to
promote the conservation of the Zuni bluehead sucker and its habitat,
and other species and their habitats.
We have an effective working relationship with Navajo Nation, which
was reinforced when we proposed critical habitat for four endemic
Colorado River basin fishes: Razorback sucker (Xyrauchen texanus),
Colorado pikeminnow (Ptychocheilus lucius), humpback chub (Gila cypha),
and bonytail chub (Gila elegans) (59 FR 13374; March 21, 1994)) and has
evolved through consultations on the flycatcher (69 FR 60706; October
12, 2004). The designation of critical habitat on Navajo Nation would
be expected to adversely impact our working relationship. During our
discussions with Navajo Nation, they informed us that critical habitat
would be viewed as an intrusion on their sovereign abilities to manage
natural resources in accordance with their own policies, customs, and
laws. We believe that continuing our positive working relationships
with Navajo Nation would provide more conservation for the Zuni
bluehead sucker than the regulatory designation of critical habitat. We
view this as a substantial benefit since we have developed a
cooperative working relationship with Navajo Nation for the mutual
benefit of Zuni bluehead sucker conservation and the conservation of
other endangered and threatened species.
During the development of the Zuni bluehead sucker critical habitat
proposal, we met with Navajo Nation to discuss how they might be
affected by the regulations associated with endangered species
management, recovery, the designation of critical habitat, and measures
to minimize any impacts from planned projects. As such, we established
cooperative relationships for the management and conservation of
endangered species and their habitats. As part of our relationship, we
provided technical assistance to develop measures to conserve
endangered and threatened species such as the Colorado pikeminnow,
razorback sucker, humpback chub, bonytail chub, and flycatcher and
their habitats. Navajo Nation has already requested similar assistance
for the Zuni bluehead sucker, and we anticipate providing further
assistance in their efforts to conserve the subspecies.
All of these proactive actions were conducted in accordance with
Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act'' (June 5,
1997); the relevant provision of the Departmental Manual of the
Department of the Interior (512 DM 2); and Secretarial Order 3317,
``Department of Interior Policy on Consultation with Indian Tribes''
(December 1, 2011). We believe Navajo Nation should be the governmental
entity to manage and promote the Zuni bluehead sucker conservation on
their lands.
D. Benefits of Exclusion Outweigh the Benefits of Inclusion
The benefits of including Navajo Nation in the critical habitat
designation are limited to educational awareness and projects that may
result in section 7 consultation. It is unlikely that many projects
will result in section 7 consultation within the proposed critical
habitat areas on Navajo Nation based on section 7 consultations for
other listed species and lack of a Federal nexus. However, as discussed
in detail above, we believe these benefits are minimized because Navajo
Nation is familiar with the Zuni bluehead sucker and its habitat needs,
and has demonstrated commitment to address management and recovery for
this subspecies and others (e.g., flycatcher, Colorado pikeminnow, and
razorback sucker).
The benefits of excluding Navajo Nation from designation as Zuni
bluehead sucker critical habitat are: (1) The advancement of our
Federal Indian Trust obligations; (2) the conservation benefits to Zuni
bluehead sucker, riparian habitats, and other native species from
implementation of conservation actions under the FMP; and (3) the
maintenance of effective collaboration and cooperation to promote the
conservation of the Zuni bluehead sucker and its habitat. Overall,
these conservation actions accomplish greater conservation than would
be available through the implementation of a designation of critical
habitat on a project-by-project basis. Excluding Navajo Nation from
critical habitat will allow them to manage their natural resources to
benefit the Zuni bluehead sucker without the perception of Federal
Government intrusion. This philosophy is also consistent with our
published policies on Native American natural resource management. The
exclusion of these areas will likely also provide additional benefits
to other listed species that would not otherwise be available without
the Service's maintenance of a cooperative working relationship. In
conclusion, we find that the benefits of excluding Navajo Nation from
critical habitat designation outweigh the benefits of including these
areas.
E. Exclusion Will Not Result in Extinction of the Species
As noted above, the Secretary, under section 4(b)(2) of the Act,
may exclude areas from the critical habitat designation unless it is
determined, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species concerned. There is a small portion of
proposed critical habitat on Navajo Nation that is considered to be
unoccupied; Subunit 2b (Red Clay Wash) is approximately 9.6 km (6.0
mi). The remaining 86.9 km (54.0 mi) of critical habitat on Navajo
Nation is considered to be occupied. Therefore, Federal activities in
these areas that may affect the Zuni bluehead sucker will still require
consultation under section 7(a)(2) of the Act. Section 7(a)(2) of the
Act requires Federal agencies to ensure that activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of listed species. Therefore, even without critical habitat designation
on these lands, activities that occur on these lands cannot jeopardize
the continued existence of the Zuni bluehead sucker. Even so, our
record demonstrates that formal section 7 consultations rarely occur on
tribal lands, which is likely a result of existing conservation
planning by both Navajo Nation and BIA. Second, Navajo Nation has
committed to protecting and managing Zuni bluehead sucker habitat
according to their management plans and natural resource management
objectives. We believe this commitment accomplishes greater
conservation than would be available through the implementation of a
designation of critical habitat on a project-by-project basis. With the
implementation of their natural resource management objectives, based
upon strategies developed in the Fisheries management plan, we have
concluded that this exclusion from critical habitat will not result in
the extinction of the Zuni bluehead sucker. Accordingly, under section
4(b)(2) of the Act, we have determined that the benefit of exclusion of
Navajo Nation lands in Unit 2 outweigh the benefits of their inclusion;
the exclusion of these lands from the designation will not result in
the extinction of the species; and therefore, we are excluding these
lands from critical habitat designation for the Zuni bluehead sucker.
II. Zuni Tribe
The Zuni Tribe is a federally recognized Indian Tribe with
reservation lands totaling nearly 463,271 acres. The Zuni Reservation
is
[[Page 36779]]
located in western New Mexico, approximately 150 miles west of
Albuquerque in McKinley County. On the Zuni Reservation (within Unit 1
in the proposed rule), we proposed 68.3 km (42.4 mi) of stream habitat.
Much of the habitat was historically occupied, with individuals
detected as recently as 1990 (Propst and Hobbes 1996, p. 13; Carman
2010, pp. 13-15; Gilbert and Carman 2011, p. 23; NMDGF 2013, p. 26);
however, many areas have not been surveyed for Zuni bluehead sucker due
to drought conditions or complexity of sampling due to access, variety
of habitat, and visibility due to increase turbidity. We consider all
portions of Subunit 1a to be occupied.
As analyzed below, we are excluding the Zuni Tribe's lands from
critical habitat based on our ongoing conservation partnership where
the benefits of exclusion from critical habitat outweigh the benefits
of including an area in critical habitat. We believe the Zuni Tribe has
demonstrated a productive working relationship on a Government-to-
Government basis with us. The designation of critical habitat on the
Zuni Reservation would be expected to adversely impact our working
relationship with the Tribe.
Zuni Tribe has worked cooperatively with the Service on a draft
Fisheries Management Plan (draft FMP), which includes the Zuni bluehead
sucker. The draft FMP is a joint effort between Zuni Fish and Wildlife
Department, the Service, and BIA. The draft FMP is designed for the
purpose of long-term planning and implementation of fisheries-related
issues on Zuni Reservation and is part of an integrated, interagency
cooperative effort to manage its fisheries resources based on sound
ecological management practices. The draft FMP serves as a guide for
accomplishing goals outlined in the Management Plan for managing,
maintaining, enhancing, and conserving the fisheries resources on Zuni
Reservation. Two objectives in the draft FMP are to identify and
protect existing Zuni bluehead sucker populations and their habitats
and to expand distribution to suitable streams. These objectives would
be accomplished by actions similar to those described in the Navajo
Nation FMP. The Zuni Tribe draft FMP was based on the Navajo Nation
FMP, with a few differences. The main difference in the Zuni Tribe
draft FMP is that consultation is needed with the Zuni Cultural
Resource Advisory Team to ensure that implementation of the Fisheries
Management Plan does not affect Zuni Tribe's cultural beliefs. In
addition, the Zuni Tribe identifies responsible parties that can aid in
the improvement of grazing management along streams containing Zuni
bluehead sucker habitat. Although this plan is currently in draft, it
serves as evidence of our cooperative working relationship with Zuni
Tribe.
In addition, Zuni Tribe has established conservation partnerships
with the Service, NMDGF, Cibola National Forest, The Nature
Conservancy, and private landowners. Zuni Tribe has participated in and
implemented conservation and recovery actions for the Zuni bluehead
sucker. Zuni Tribe, NMDGF, and the Service continue to work together to
monitor, conserve, and protect known occupied Zuni bluehead sucker
habitat on Tribal property and upstream habitat on The Nature
Conservancy's lands.
A. Benefits of Inclusion
On Zuni Reservation, we proposed as critical habitat 38.9 km (24.2
mi) within Subunit 1a (Zuni River Headwaters), which is occupied by the
Zuni bluehead sucker. Therefore, if a Federal action or permitting
occurs, there is a section 7 nexus, and the incremental impacts due to
critical habitat would be limited to administrative cost. We also
proposed as critical habitat 29.4 km (18.3 mi) on Zuni Reservation
within Subunit 1b (Zuni River Mainstem), which is unoccupied by the
Zuni bluehead sucker; therefore, if a Federal action or permitting
occurs, there may not be a consultation under section 7 of the Act
unless critical habitat is designated. Our draft economic analysis
found that if we designate critical habitat on Zuni Reservation, it is
expected that there will be a small number of informal consultations
that would incur limited administrative costs only and that no Zuni
Tribe activities are expected to result in formal consultation;
however, future impacts are possible.
Our section 7 consultation history for another riparian species,
the flycatcher, shows that since listing in 1995, we have conducted
informal consultations on the flycatcher with agencies implementing
actions or providing funding. However, since listing in 1995, no formal
section 7 consultations have occurred on Zuni Reservation. Effects to
the flycatcher from Federal projects have all resulted in insignificant
and discountable impacts because conservation measures have focused on
habitat improvement and management for the flycatcher and its habitat.
We anticipate a similar scenario for the Zuni bluehead sucker.
If we designate critical habitat on the Zuni Reservation, our
previous section 7 consultation history for the flycatcher in riparian
habitat indicates that there could be a few regulatory benefits to the
Zuni bluehead sucker on Subunit 1b, which is currently unoccupied.
Formal consultation for Zuni bluehead sucker on the Zuni
Reservation is unlikely. There are no projects planned within the
proposed critical habitat units, and future projects that we might
anticipate (riparian habitat restoration, establishment of refugia
populations, construction of fish barriers and livestock exclosure
fencing) are actions that provide long-term benefits to the Zuni
bluehead sucker and its habitat. Therefore, effects to the Zuni
bluehead sucker from Federal projects would likely result in
insignificant and discountable impacts because conservation measures
would be focused on habitat improvement and management. Because of how
Zuni Tribe manages and conserves its lands through establishment of
fish regulation, livestock grazing exclosures, and establishment of
management plans and active conservation of the Zuni bluehead sucker
and other imperiled species, we do not anticipate that Zuni Tribe's
actions would considerably change in the future. These baseline
conservation efforts would minimize any regulatory benefit of critical
habitat designation on these lands. Therefore, the benefits of
inclusion of the lands are minimized by the continuing conservation
efforts on the Zuni Tribe lands.
Another important benefit of including lands in a critical habitat
designation is that the designation can serve to educate landowners,
agencies, tribes, and the public regarding the potential conservation
value of an area, and may help focus conservation efforts on areas of
high conservation value for certain species. Any information about the
Zuni bluehead sucker that reaches a wide audience, including parties
engaged in conservation activities, is valuable. The designation of
critical habitat may also strengthen or reinforce some Federal laws
such as the Clean Water Act. These laws analyze the potential for
projects to significantly affect the environment. Critical habitat may
signal the presence of sensitive habitat that could otherwise be missed
in the review process for these other environmental laws.
The educational benefits that might follow critical habitat
designation, such as providing information to Zuni Tribe on areas that
are important for the long-term survival and conservation of the
subspecies, have already been achieved. Zuni Tribe is familiar with the
Zuni bluehead sucker and its habitat needs and has successfully worked
with the Service to address Zuni bluehead sucker
[[Page 36780]]
management and recovery. The Zuni bluehead sucker population has been
widely known since the 1960s (Merkel 1979, entire; Hanson 1980, entire;
Propst and Hobbes 1996, p. 13; Carman 2010, pp. 13-15; Gilbert and
Carman 2011, p. 23; NMDGF 2013, p. 24). Thus, the educational benefits
that might follow critical habitat designation, such as providing
information to Zuni Tribe on areas that are important for the long-term
survival and conservation of the subspecies, have already been provided
by decades of partnerships with NMDGF and the Service. For these
reasons, we believe there is little educational benefit or support for
other laws and regulations attributable to critical habitat beyond
those benefits already achieved.
B. Benefits of Exclusion
The benefits of excluding the Zuni Tribe from designated critical
habitat include: (1) The advancement of our Federal Indian Trust
obligations and our deference to tribes to develop and implement tribal
conservation and natural resource management plans for their lands and
resources, which includes the Zuni bluehead sucker; and (2) the
fostering of our partnership with Zuni Tribe, which results in
effective collaboration and cooperation to promote the conservation of
the Zuni bluehead sucker and its habitat, and other species and their
habitats.
We have an effective working relationship with Zuni Tribe, which
has evolved through consultations on the flycatcher (69 FR 60706;
October 12, 2004) and through cooperative fisheries management. As part
of our relationship, we have provided technical assistance to develop
measures to conserve the Zuni bluehead and its habitat on the Tribe's
lands, as well as conducting surveys and research investigations
regarding the subspecies' needs (e.g., habitat and spawning). These
proactive actions were conducted in accordance with Secretarial Order
3206, ``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act'' (June 5, 1997); the
relevant provision of the Departmental Manual of the Department of the
Interior (512 DM 2); and Secretarial Order 3317, ``Department of
Interior Policy on Consultation with Indian Tribes'' (December 1,
2011). We believe Zuni Tribe should be the governmental entity to
manage and promote Zuni bluehead sucker conservation on their lands.
During our communication with Zuni Tribe, we recognized and endorsed
their fundamental right to provide for tribal resource management
activities, including those relating to riparian habitat and fishing
regulation restrictions.
During the comment periods, we received input from Zuni Tribe
expressing the view that designating Zuni bluehead sucker critical
habitat on tribal land would adversely affect our working relationship.
They noted that the beneficial cooperative working relationship has
assisted in the conservation of listed species and other natural
resources. During our discussions with Zuni Tribe, they informed us
that critical habitat would be viewed as an intrusion on their
sovereign abilities to manage natural resources in accordance with
their own policies, customs, and laws. For this reason, we believe that
our working relationships with Zuni Tribe would be better maintained if
we exclude their lands from the designation of Zuni bluehead sucker
critical habitat. We view this as a substantial benefit since we have
developed a cooperative working relationship with Zuni Tribe for the
mutual benefit of Zuni bluehead sucker conservation and the
conservation of other endangered and threatened species.
We have coordinated and collaborated with Zuni Tribe on the
management and recovery of the endangered species and their habitats by
establishing conservation partnerships. Many tribes and pueblos
recognize that their management of riparian habitat and conservation of
the flycatcher and the Zuni bluehead sucker are common goals they share
with the Service. Zuni Tribe's management actions are evidence of their
commitment toward measures to improve riparian habitat for endangered
and threatened species. Some of the common management strategies are
maintaining riparian conservation areas, preserving habitat, improving
habitat, protecting the species under Zuni Tribe Game and Fish Codes
starting in 1968 (Zuni Tribe 1989, entire), and conducting surveys with
Service since 1954.
Zuni Tribe will continue to work cooperatively with us and others
to benefit other listed species, but only if they view the relationship
as mutually beneficial. Consequently, the development of future
voluntary management actions for other listed species may be
compromised if these lands are designated as critical habitat for the
Zuni bluehead sucker.
C. Benefits of Exclusion Outweigh the Benefits of Inclusion
The benefits of including Zuni Tribe in the critical habitat
designation are limited to the incremental benefits gained through the
regulatory requirement to consult under section 7 and consideration of
the need to avoid adverse modification of critical habitat, and
educational awareness. However, as discussed in detail above, we
believe these benefits are minimized because they are provided for
through other mechanisms, such as (1) The advancement of our Federal
Indian Trust obligations; (2) the conservation benefits to the Zuni
bluehead sucker from implementation of baseline conservation actions
through our partnership; and (3) the maintenance of effective
collaboration and cooperation to promote the conservation of the Zuni
bluehead sucker and its habitat.
The benefits of excluding Zuni Tribe's lands from designation as
Zuni bluehead sucker critical habitat are more significant and include
encouraging the continued implementation of tribal management and
conservation measures such as monitoring, surveying, habitat management
and protection, and recovery activities that are planned for the future
or are currently being implemented. Overall, these conservation actions
and management of the subspecies and its habitat likely accomplish
greater conservation than would be available through the implementation
of a designation of critical habitat on a project-by-project basis
(especially when formal section 7 consultations are rare) and
implementation of the draft Zuni Fisheries Management Plan. These
programs will allow Zuni Tribe to manage their natural resources to
benefit riparian habitat for the Zuni bluehead sucker, without the
perception of Federal Government intrusion. This philosophy is also
consistent with our published policies on Native American natural
resource management. The exclusion of these areas will likely also
provide additional benefits to other listed species that would not
otherwise be available without the Service's maintenance of a
cooperative working relationship. In conclusion, we find that the
benefits of excluding Zuni Tribe's lands from critical habitat
designation outweigh the benefits of including these areas.
D. Exclusion Will Not Result in Extinction of the Species
As noted above, the Secretary, under section 4(b)(2) of the Act,
may exclude areas from the critical habitat designation unless it is
determined, based on the best scientific and commercial data available,
that the failure to designate such area as critical
[[Page 36781]]
habitat will result in the extinction of the species concerned.
First, Federal activities on these areas that may affect the Zuni
bluehead sucker will still require consultation under section 7 of the
Act. Section 7(a)(2) of the Act requires Federal agencies to ensure
that activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of listed species. Therefore, even
without critical habitat designation on these lands, activities that
occur on these lands cannot jeopardize the continued existence of the
Zuni bluehead sucker. Even so, our record demonstrates that formal
section 7 consultations rarely occur on tribal lands, which is likely
the result of existing conservation planning. Second, Zuni Tribe is
committed to protecting and managing the Zuni bluehead sucker's habitat
according to the Tribe's management plans and natural resource
management objectives. We believe this commitment accomplishes greater
conservation than would be available through the implementation of a
designation of critical habitat on a project-by-project basis. With the
implementation of their natural resource management objectives, based
upon strategies developed in the Fisheries Management Plan, we have
concluded that this exclusion from critical habitat will not result in
the extinction of the Zuni bluehead sucker. Accordingly, under section
4(b)(2) of the Act, we have determined the benefits of exclusion of
Zuni Tribe lands in Unit 1 outweigh the benefits of their inclusion;
the exclusion of these lands from the designation will not result in
the extinction of the species; and, therefore, we are excluding these
lands from critical habitat designation for the Zuni bluehead sucker.
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 of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself and, therefore, are not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7 only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies will be directly regulated by this designation. There
is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities are directly
regulated by this rulemaking, the Service certifies that this final
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule we reviewed and evaluated
all information submitted during the comment period that may pertain to
our consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this final critical habitat designation 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 is relevant
to this analysis. Thus, based on information in
[[Page 36782]]
the economic analysis, energy-related impacts associated with Zuni
bluehead sucker 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 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 most of the lands within the
designated critical habitat do not occur within the jurisdiction of
small governments. This rule will not produce a Federal mandate of $100
million or greater in any year. Therefore, 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. Consequently, we do not believe that the critical
habitat designation would significantly or uniquely affect small
government entities. 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 the Zuni bluehead sucker in a takings
implications assessment. As discussed above, the designation of
critical habitat affects only Federal actions. Although private parties
that receive Federal funding or 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 economic analysis found that no significant economic impacts
are likely to result from the designation of critical habitat for the
Zuni bluehead sucker. Because the Act's critical habitat protection
requirements apply only to Federal agency actions, few conflicts
between critical habitat and private property rights should result from
this designation. Based on information contained in the economic
analysis and described within this document, economic impacts to a
property owner are unlikely to be of a sufficient magnitude to support
a takings action. Therefore, the takings implications assessment
concludes that this designation of critical habitat for the Zuni
bluehead sucker does not pose significant takings implications for
lands within or affected by the designation. Based on the best
available information, the takings implications assessment concludes
that this designation of critical habitat for the Zuni bluehead sucker
does not pose significant takings implications.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies in Arizona and New Mexico. We
received comments from Arizona and New Mexico, and have addressed them
under Summary of Comments and Recommendations, above. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical and biological
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
these local governments in long-range planning (because these local
governments no longer have to 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
[[Page 36783]]
under section 7(a)(2) of the Act would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the 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
subspecies, the rule identifies the elements of physical or biological
features essential to the conservation of the Zuni bluehead sucker. The
designated areas of critical habitat are presented on maps, and the
rule provides several options for the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of the Zuni bluehead sucker, under the Tenth Circuit ruling in
Catron County Board of Commissioners v. U.S. Fish and Wildlife Service,
75 F.3d 1429 (10th Cir. 1996), we 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 the draft environmental
assessment was made available for public comment on April 14, 2015 (80
FR 19941). The final environmental assessment has been completed and is
available for review with the publication of this final rule. You may
obtain a copy of the final environmental assessment 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.
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.
Navajo Nation and the Zuni Tribe are the only tribes affected by
this final rule. We sent notification letters in July 2012 to each
tribe describing the exclusion process under section 4(b)(2) of the
Act, and we have engaged in conversations with both tribes about the
proposal to the extent possible without disclosing predecisional
information. We sent out notification letters on April 12, 2013,
notifying the tribes that the proposed rule had published in the
Federal Register to allow for the maximum time to submit comments. On
April 14, 2015, we also sent letters notifying the tribes that we had
made available the draft environmental assessment and draft economic
analysis in the Federal Register.
We had a government-to-government coordination meeting with Navajo
Nation in March 2013. Additionally, we worked closely with the Zuni
Tribe to develop a draft fisheries management plan for their respective
land. We met on May 7, 2015, to discuss the proposed rule and their
draft fisheries management plan. We considered these tribal areas for
exclusion from final critical habitat designation to the extent
consistent with the requirements of 4(b)(2) of the Act, and,
subsequently, excluded the lands of Navajo Nation and the Zuni Tribe
from this final designation.
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the New
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this 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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
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 ``Sucker, Zuni
bluehead'' under FISHES in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 36784]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes .................... ................... ................... .............. ........... ........... ...........
* * * * * * *
Sucker, Zuni bluehead............ Catostomus U.S.A. (AZ, NM).... Entire............. E 839 17.95(e) NA
discobolus yarrowi.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (e) by adding an entry for ``Zuni
bluehead sucker (Catostomus discobolus yarrowi)'' after the entry for
``Warner Sucker (Catostomus warnerensis)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Zuni bluehead sucker (Catostomus discobolus yarrowi)
(1) Critical habitat unit is depicted for Cibola and McKinley
Counties, New Mexico, on the map below.
(2) Critical habitat includes the adjacent floodplains within 91.4
lateral meters (m) (300 lateral feet (ft)) on either side of bankfull
discharge, except where bounded by canyon walls. Bankfull discharge is
the flow at which water begins to leave the channel and disperse into
the floodplain, and generally occurs every 1 to 2 years.
(3) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Zuni bluehead sucker consist of three components:
(i) A riverine system with habitat to support all life stages of
the Zuni bluehead sucker, which includes:
(A) Dynamic flows that allow for periodic changes in channel
morphology and adequate river functions, such as channel reshaping and
delivery of coarse sediments.
(B) Stream courses with perennial flows or intermittent flows that
serve as connective corridors between occupied or seasonally occupied
habitat through which the subspecies may disperse when the habitat is
wetted.
(C) Stream mesohabitat types including runs, riffles, and pools
with substrate ranging from gravel, cobble, and bedrock substrates with
low or moderate amounts of fine sediment and substrate embeddedness.
(D) Streams with depths generally less than 2 meters (3.3 feet),
and with slow to swift flow velocities less than 0.35 meters per second
(1.15 feet per second).
(E) Clear, cool water with low turbidity and temperatures in the
general range of 2.0 to 23.0 [deg]C (35.6 to 73.4[emsp14][deg]F).
(F) No harmful levels of pollutants.
(G) Adequate riparian shading to reduce water temperatures when
ambient temperatures are high and provide protective cover from
predators.
(ii) An abundant aquatic insect food base consisting of fine
particulate organic material, filamentous algae, midge larvae,
caddisfly larvae, mayfly larvae, flatworms, and small terrestrial
insects.
(iii) Areas devoid of nonnative aquatic species or areas that are
maintained to keep nonnatives at a level that allows the Zuni bluehead
sucker to continue to survive and reproduce.
(4) 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
July 7, 2016.
(5) Critical habitat map units. Data layers defining map unit were
developed using ESRI ArcGIS mapping software along with various spatial
layers. Data layers defining map units were created with U.S.
Geological Survey National Hydrography Dataset (NHD) Medium Flowline
data. ArcGIS was also used to calculate river kilometers and river
miles from the NHD dataset, and it was used to determine longitude and
latitude coordinates in decimal degrees. Critical habitat upstream
limits were delineated based on the upper limits identified in the NHD
dataset for each stream. The projection used in mapping and calculating
distances and locations within the unit was North American Equidistant
Conic, NAD 83. The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's Internet site
(http://www.fws.gov/southwest/es/newmexico), at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0002, and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(6) Unit 1: Zuni River Unit, McKinley and Cibola Counties, New
Mexico.
(i) General description: Unit 1 consists of approximately 55.7
kilometers (km) (34.6 miles (mi)) of the Zuni River watershed and the
adjacent floodplains within 91.4 lateral meters (300 lateral feet) on
either side of bankfull discharge, except where bounded by canyon walls
in McKinley and Cibola Counties, and is composed of land ownership by
the State (2.1 km (1.3 mi)), Forest Service (19.5 km (12.1 mi)) and
private landowners (34.0 km (21.1 mi)).
(ii) Map of Unit 1 follows:
BILLING CODE 4333-15-C
[[Page 36785]]
[GRAPHIC] [TIFF OMITTED] TR07JN16.002
BILLING CODE 4333-15-P
* * * * *
Dated: May 24, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2016-13246 Filed 6-6-16; 8:45 am]
BILLING CODE 4333-15-P