[Federal Register Volume 79, Number 67 (Tuesday, April 8, 2014)]
[Proposed Rules]
[Pages 19307-19313]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07629]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0014; 4500030113]
RIN 1018-AZ32
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the New Mexico Meadow Jumping Mouse
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the June 20, 2013, proposed
designation of critical habitat for the New Mexico meadow jumping mouse
(Zapus hudsonius luteus) under the Endangered Species Act of 1973, as
amended (Act). We also announce the availability of a draft economic
analysis and draft environmental assessment of the proposed
designation, as well as an amended required determinations of the
proposal. We are reopening the comment period to allow all interested
parties an opportunity to comment simultaneously on the proposed
critical habitat rule, the associated draft economic analysis and draft
environmental assessment, and the amended required determinations
section. Comments previously submitted need not be resubmitted, as they
will be fully considered in preparation of the final rule.
DATES: The comment due date for the proposed rule published in the
Federal Register on June 20, 2013 (78 FR 37328) is extended. We will
consider comments received or postmarked on or before May 8, 2014.
Comments submitted electronically using the Federal eRulemaking Portal
(see ADDRESSES section, below) must be received by 11:59 p.m. Eastern
Time on the closing date.
ADDRESSES:
Document availability: You may obtain copies of the proposed rule
and the associated documents of the draft economic analysis and draft
environmental assessment on the internet at http://www.regulations.gov
at Docket No. FWS-R2-ES-2013-0014 or by mail from the New Mexico
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Written comments: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the critical habitat proposal
and associated draft economic analysis and draft environmental
assessment by searching for FWS-R2-ES-2013-0014, which is the docket
for the critical habitat rulemaking.
(2) By hard copy: Submit comments on the critical habitat proposal
and associated draft economic analysis and draft environmental
assessment by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R2-ES-2013-0014; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna NE., Albuquerque, NM 87113; by telephone 505-346-
2525; or by facsimile 505-346-2542. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
[[Page 19308]]
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed designation of critical habitat
for the New Mexico meadow jumping mouse that was published in the
Federal Register on June 20, 2013 (78 FR 37328), our draft economic
analysis, the draft environmental assessment, and the amended required
determinations provided in this document. We will consider information
and recommendations from all interested parties. We are particularly
interested in comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(2) Specific information on:
(a) The distribution of the New Mexico meadow jumping mouse;
(b) The amount and distribution of New Mexico meadow jumping mouse
habitat;
(c) What areas occupied by the species at the time of listing that
contain features essential for the conservation of the species we
should include in the critical habitat designation and why; and
(d) What areas not occupied at the time of listing are essential to
the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their probable impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the New Mexico meadow jumping mouse and proposed
critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, the benefits of including or excluding
areas that exhibit these impacts.
(6) Information on the extent to which the description of economic
impacts in the draft economic analysis is a reasonable estimate of the
likely economic impacts and the description of the environmental
impacts in the draft environmental assessment is complete and accurate.
(7) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the associated documents of the
draft economic analysis, and how the consequences of such reactions, if
likely to occur, would relate to the conservation and regulatory
benefits of the proposed critical habitat designation.
(8) Whether any areas we are proposing for critical habitat
designation should be considered for exclusion under section 4(b)(2) of
the Act, and whether the benefits of potentially excluding any specific
area outweigh the benefits of including that area under section 4(b)(2)
of the Act.
(9) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
If you submitted comments or information on the proposed rule
during the initial comment period from June 20, 2013, to August 19,
2013, please do not resubmit them. We have incorporated them into the
public record and will fully consider them in the preparation of our
final determination. Our final determination will take into
consideration all written comments and any additional information we
receive during both comment periods. On the basis of public comments,
we may, during the development of our final determination, find that
areas proposed as critical habitat are not essential, are appropriate
for exclusion under section 4(b)(2) of the Act, or are not appropriate
for exclusion.
You may submit your comments and materials concerning the proposed
rule, draft economic analysis, or draft environmental assessment by one
of the methods listed in ADDRESSES. We request that you send comments
only by the methods described in ADDRESSES.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule, draft economic
analysis, and draft environmental assessment, will be available for
public inspection on http://www.regulations.gov at Docket No. FWS-R2-
ES-2013-0014 or by appointment, during normal business hours, at the
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Background
On June 20, 2013, we published in the Federal Register a proposed
rule to list the New Mexico meadow jumping mouse as endangered (78 FR
37363) and designate critical habitat (78 FR 37328). For more
information on the species and the species' habitat, refer to the May
2013 Draft Species Status Assessment Report for the New Mexico Meadow
Jumping Mouse (SSA Report; Service 2013), available online at http://www.regulations.gov in Docket No. FWS-R2-ES-2013-0023 in association
with the proposed listing rule. We proposed to designate approximately
310.5 kilometers (km) (193.1 miles (mi)) (5,892 hectares (ha) (14,560
acres (ac)) in eight units as critical habitat within Bernalillo,
Colfax, Mora, Otero, Rio Arriba, Sandoval, and Socorro Counties, in New
Mexico; Las Animas, Archuleta, and La Plata Counties, Colorado; and
Greenlee and Apache Counties, Arizona. Those proposals had 60-day
comment periods, ending August 19, 2013. We will publish in the Federal
Register a final listing for the New Mexico meadow jumping mouse on or
before June 20, 2014.
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data
[[Page 19309]]
available, after taking into consideration the economic impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat. We may exclude an area from
critical habitat if we determine that the benefits of excluding the
area outweigh the benefits of including the area as critical habitat,
provided that such exclusion will not result in the extinction of the
species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
the New Mexico meadow jumping mouse, the benefits of critical habitat
include public awareness of the presence of the New Mexico meadow
jumping mouse and the importance of habitat protection, and, where a
Federal nexus exists, increased habitat protection for the New Mexico
meadow jumping mouse due to protection from adverse modification or
destruction of critical habitat. In practice, situations with a Federal
nexus exist primarily on Federal lands or for projects undertaken by
Federal agencies.
We are considering exclusion of the proposed critical habitat areas
on Isleta Pueblo and Ohkay Owingeh to the extent consistent with the
requirements of section 4(b)(2) of the Act. Areas owned by Isleta
Pueblo that we are considering for exclusion from the final critical
habitat designation include 43 ha (105 ac) along 3.7 km (2.3 mi) of
ditches, canals, and marshes in Subunit 6-A. Areas owned by Ohkay
Owingeh that we are considering for exclusion from the final critical
habitat designation include 51 ha (125 ac) along 4.8 km (3.0 mi) of
ditches, canals, and marshes in Subunit 6-B.
For the reasons described below, the Service is considering these
lands for exclusion under section 4(b)(2) of the Act. We sent
notification letters in November 2011 to both Tribes describing our
listing and critical habitat designation process, and we have engaged
in conversations with both Tribes about the proposed rules to the
extent possible without disclosing predecisional information. At their
invitation, on August 14, 2013, we attended a coordination meeting with
the Isleta Pueblo to discuss the proposed rules, and they provided
additional information regarding their land management practices and
the potential for developing an endangered species management plan. The
Isleta Pueblo has conducted a variety of voluntary measures,
restoration projects, and management actions to conserve riparian
vegetation, including not allowing cattle to graze within the bosque
(riparian areas) and protecting riparian habitat from fire, maintaining
native vegetation, and preventing habitat fragmentation (Service 2005;
70 FR 60955; Pueblo of Isleta 2005, entire). Since the meeting, Isleta
Pueblo indicated that they intend to amend their riverine management
plan for the Rio Grande silvery minnow (Hybognathus amarus) and
southwestern willow flycatcher (Empidonax traillii extimus), which will
address and contribute to the conservation of the New Mexico meadow
jumping mouse (Pueblo of Isleta 2013, entire).
Ohkay Owingeh has conducted a variety of voluntary measures,
restoration projects, and management actions to conserve the New Mexico
meadow jumping mouse and its habitat on their lands. The Pueblo has
engaged in riparian vegetation and wetland improvement projects, while
managing to reduce the occurrence of wildfire due to the abundance of
exotic flammable riparian vegetation, including using Tribal Wildlife
Grants in both 2004 and 2006 to restore riparian and wetland habitat to
benefit the southwestern willow flycatcher, bald eagle (Haliaeetus
leucocephalus), and other riparian species on 36.4 ha (90 ac) of the
Rio Grande (Service 2007a, p. 42; Service 2005, 70 FR 60963). Funding
for another 10.9 ha (27 ac) of riparian and wetland restoration was
provided in 2007 (Service 2012f, p. 12). The Pueblo received an
additional Tribal Wildlife Grant in 2011 to conduct surveys and restore
habitat for the New Mexico meadow jumping mouse (Service 2012f, p. 12).
The long-term goal of the Pueblo's riparian management is to implement
innovative restoration techniques, decrease fire hazards by restoring
native vegetation, share information with other restoration
practitioners, utilize restoration projects in the education of the
Tribal community and surrounding community, and provide a working and
training environment for the people of the Pueblo. Ohkay Owingeh
indicated that they intend to use their Riparian and Bosque Habitat
Restoration and Management Plan to maintain dense wetland vegetation
and moist soil conditions to provide suitable habitat for the
conservation of the New Mexico meadow jumping mouse (Ohkay Owingeh
2013, entire).
In addition to these management plans under development by the
tribes, the Service also is considering exclusion of these tribal lands
on the basis of the working relationship we have established. We are
aware that designation of critical habitat on tribal lands is generally
viewed as an intrusion on their sovereign abilities to manage natural
resources in accordance with their own policies, customs, and laws. To
this end, we have received public comments indicating that tribes
prefer to work with us on a Government-to-Government basis. Therefore,
we are considering exclusion of these tribal lands in critical habitat
Subunits 6-A and 6-B to maintain our working relationships with the
tribes.
A final determination on whether the Secretary will exercise her
discretion to exclude any of these areas from critical habitat for the
New Mexico meadow jumping mouse will be made when we publish the final
rule designating critical habitat. We will take into account public
comments and carefully weigh the benefits of exclusion versus inclusion
of these areas. The potential benefits of designating critical habitat
include: (1) Triggering consultation under section 7 of the Act in new
areas for actions in which there may be a Federal nexus where it would
not otherwise occur because, for example, it is unoccupied or the
occupancy is in question; (2) focusing conservation activities on the
most essential features and areas; (3) providing educational benefits
to State or county governments or private entities; and (4) preventing
people from causing inadvertent harm to the species. In practice,
situations with a Federal nexus exist primarily on Federal lands or for
projects funded or undertaken by Federal agencies.
However, the final decision on whether to exclude any areas will be
based on the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared a draft economic analysis concerning the proposed
critical habitat designation, which is now available for
[[Page 19310]]
review and comment (see ADDRESSES section).
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
proposed designation, we must first evaluate specific land uses or
activities and projects that may occur in the area of the critical
habitat. We then must evaluate the impacts that a specific critical
habitat designation may have on restricting or modifying specific land
uses or activities for the benefit of the species and its habitat
within the areas proposed. We then identify which conservation efforts
may be the result of the species being listed under the Act versus
those attributed solely to the designation of critical habitat for this
particular species.
The probable economic impact of a proposed critical habitat
designation is analyzed by comparing scenarios both ``with critical
habitat'' and ``without critical habitat.'' The ``without critical
habitat'' scenario represents the baseline for the analysis, which
includes the existing regulatory and socio-economic burden imposed on
landowners, managers, or other resource users potentially affected by
the designation of critical habitat (e.g., under the Federal listing as
well as other Federal, State, and local regulations). The baseline,
therefore, represents the costs of all efforts attributable to the
listing of the species under the Act (i.e., conservation of the species
and its habitat incurred regardless of whether critical habitat is
designated). The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts would not be expected without the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat,
above and beyond the baseline costs. These are the costs we use when
evaluating the benefits of inclusion and exclusion of particular areas
from the final designation of critical habitat should we choose to
conduct an optional section 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the New Mexico meadow jumping mouse. We began by
conducting a screening analysis of the proposed designation of critical
habitat in order to focus our analysis on the key factors that are
likely to result in incremental economic impacts. The purpose of the
screening analysis is to filter out the geographic areas in which the
critical habitat designation is unlikely to result in probable
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes probable economic impacts where land and water use may be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. The screening analysis
filters out particular areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. The screening analysis also assesses
whether units are unoccupied by the species and may require additional
management or conservation efforts as a result of the critical habitat
designation for the species, which may incur incremental economic
impacts. This screening analysis combined with the information
contained in our IEM are what we consider our draft economic analysis
of the proposed critical habitat designation for the New Mexico meadow
jumping mouse, and this information is summarized in the narrative
below.
Executive Orders 12866 and 13563 direct Federal agencies to assess
the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the regulatory analysis requirements of the executive orders, our
effects analysis under the Act may take into consideration impacts to
both directly and indirectly impacted entities, where practicable and
reasonable. We assess to the extent practicable, the probable impacts,
if sufficient data are available, to both directly and indirectly
impacted entities. As part of our screening analysis, we considered the
types of economic activities that are likely to occur within the areas
likely affected by the critical habitat designation. In our evaluation
of the probable incremental economic impacts that may result from the
proposed designation of critical habitat for the New Mexico meadow
jumping mouse, first we identified, in the IEM dated July 8, 2013,
probable incremental economic impacts associated with the following
categories of activities: riparian habitat restoration, fire management
plans, fire suppression, fuel reduction treatments, forest plans,
livestock grazing allotment management plans, travel management plans
recreational use (with U.S. Forest Service), water management and
delivery (with Bureau of Reclamation, Army Corps of Engineers, and Fish
and Wildlife Service), bridge and road realignment projects (Federal
Highways Administration), National Wildlife Refuge planning and
projects, beaver management (Department of Agriculture's Animal and
Plant Health Inspection Service), and restoration or recovery
activities that may affect this species.
We considered each industry or category individually. Additionally,
we considered whether their activities have any Federal involvement.
Critical habitat designation will not affect activities that do not
have any Federal involvement; designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the New Mexico meadow jumping mouse is
present, Federal agencies would already be required to consult with the
Service under section 7 of the Act on activities they fund, permit, or
implement that may affect the species. If we finalize this proposed
critical habitat designation, consultations to avoid the destruction or
adverse modification of critical habitat would be incorporated into the
consultation process.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., the difference
between the jeopardy and adverse modification standards) for the New
Mexico meadow jumping mouse's critical habitat. The designation of
critical habitat for New Mexico meadow jumping mouse was proposed
concurrently with the listing. In our experience with such simultaneous
rulemaking actions, discerning which conservation efforts are
attributable to the species being listed and those which will result
solely from the designation of critical habitat is difficult. However,
the following specific circumstances in this case help to inform our
evaluation: (1) The essential physical and biological features
identified for critical habitat are the same features essential for the
life requisites of the species, and (2) any actions that would result
in sufficient harm or harassment to constitute
[[Page 19311]]
jeopardy to the New Mexico meadow jumping mouse would also likely
adversely affect the essential physical and biological features of
critical habitat. The IEM outlines our rationale concerning baseline
conservation efforts and incremental impacts of the designation of
critical habitat for this species. This evaluation of the incremental
effects has been used as the basis to evaluate the probable incremental
economic impacts of this proposed designation of critical habitat.
The proposed critical habitat designation for the New Mexico meadow
jumping mouse is approximately 310.5 river km (193.1 river mi) (5,892
ha (14,560 ac)) in eight units as critical habitat. Some of these
eights units are divided into subunits. There are a total of 23 units
plus subunits encompassed by the 8 main units. We consider the 29
locations where the jumping mouse has been found since 2005 to be
within the geographic area occupied at the time of listing (occupied
areas). All of these 29 occupied locations are contained within 19 of
the 23 proposed critical habitats units. Approximately 1 percent (59.7
ha (147.5 ac)) of the proposed critical habitat is currently occupied
by the species. Four of the proposed units are completely unoccupied:
3-C Rio de las Vacas, 4-B Upper Rio Pe[ntilde]asco, 6-A Isleta Pueblo,
and 6-B Ohkay Owingeh. The remaining 5,832.1 ha (14,411.5 ac),
approximately 99 percent of the total proposed critical habitat
designation, are currently unoccupied by the species, but are essential
for the conservation of the species.
Because the main factor making the New Mexico jumping mouse
vulnerable to extinction is the loss of suitable habitat, proposed
critical habitat units must be protected and allowed to regrow the
needed vegetation for suitable New Mexico jumping mouse habitat,
particularly those that contain unoccupied areas. Because the jumping
mouse populations are currently small and isolated from one another,
the survival and recovery of the species will require expanding the
size of currently occupied areas containing suitable habitat into
currently unoccupied areas that need to reestablish suitable
conditions. Regeneration of suitable habitat in these areas will
involve modifying or limiting actions that preclude the development of
PCEs (i.e., modifying proposed actions in order to allow appropriate
vegetation to regrow) that make up suitable habitat.
During section 7 consultation for unoccupied areas, we would expect
some conservation measures to be implemented to avoid destruction or
adverse modification. As a result, we anticipate the most probable
incremental economic impacts would be associated with developing and
implementing conservation measures within unoccupied areas because no
section 7 consultation would have likely occurred without the critical
habitat designation. Incremental costs would be both administrative
costs and the actual costs for implementing measures needed to avoid
adverse modification in unoccupied areas. Therefore, we anticipate
incremental effects with regard to ongoing and proposed Federal
actions, including developing and implementing conservation measures
that may differ between currently occupied and unoccupied critical
habitat and habitat for the jumping mouse.
In the case of the jumping mouse, we anticipate that additional
project modifications as a result of designating critical habitat are
predictable because: (1) The majority of each proposed critical habitat
unit is considered unoccupied by the species; and (2) the New Mexico
jumping mouse is intimately tied to its habitat such that any potential
project modifications to avoid adverse modification of unoccupied
critical habitat would likely differ substantially from those that are
likely to be required to avoid jeopardizing this species. This
difference in anticipated project modifications results from the
difference in the riparian vegetation within occupied and unoccupied
areas within units. The unoccupied areas of proposed critical habitat
do not presently contain suitable habitat. All of these completely or
partially unoccupied areas currently contain flowing water that is
required for future regeneration of the physical and biological
features of habitat required to sustain the species' life-history
processes. These unoccupied areas will require reestablishment of the
primary constituent elements (PCEs), and are essential to the
conservation of the mouse because having multiple local populations
within each critical habitat unit is the best defense against local
extirpation and complete extinction. There is nothing to indicate that
the situation will improve without significant conservation
intervention focused on allowing the currently lacking physical
features related to the wetland vegetation to regrow (either naturally
or through management or protection) into suitable habitat. For
example, reestablishing PCEs can likely be accomplished from mowing at
different times of the year, fencing riparian areas, or changing the
livestock grazing regime.
Within the 59.7 ha (147.5 ac) currently occupied by the species,
any actions that may affect the species or its habitat would also
affect designated critical habitat, and it is unlikely that any
additional conservation efforts would be recommended to address the
adverse modification standard over and above those recommended as
necessary to avoid jeopardizing the continued existence of the New
Mexico meadow jumping mouse. Therefore, only administrative costs are
expected in approximately 1 percent of the proposed critical habitat
designation. Consequently, the majority of proposed critical habitat
will require additional time and resources by both the Federal action
agency and the Service.
The most likely source of incremental effects of the proposed
critical habitat comes from the inclusion of unoccupied areas (where
the species historically occurred and are currently not known to
occur). The vast majority of each of the proposed critical habitat
units are considered unoccupied and currently contain small areas of
suitable habitat. In the unoccupied areas, any conservation efforts or
associated probable impacts would be considered incremental effects
attributed to the critical habitat designation. Within the 5,832.1 ha
(14,411.5 ac) of unoccupied critical habitat, incremental costs would
be both administrative costs and the actual costs for implementing
measures needed to avoid adverse modification in unoccupied areas.
Therefore, we anticipate incremental effects with regard to ongoing and
proposed Federal actions, including developing and implementing
conservation measures that may differ between currently occupied and
unoccupied critical habitat and habitat for the jumping mouse. Based on
this rationale, we anticipate some increase in overall consultation
workload and administrative efforts related to the designation of New
Mexico jumping mouse critical habitat, including: (1) The potential
increase in the number of consultations resulting from unoccupied areas
being proposed as critical habitat; (2) initiation of consultations for
ongoing projects to address adverse effects to critical habitat; and
(3) possible project modification to avoid adverse modification of
critical habitat in areas where significant alteration of habitat is
likely or where regeneration of habitat will be precluded.
Nevertheless, we expect the majority of this workload will be
addressing effects to critical habitat that do not constitute adverse
modification within unoccupied areas.
[[Page 19312]]
Critical habitat designation for the New Mexico meadow jumping
mouse is unlikely to generate costs exceeding $100 million in a single
year. The total incremental section 7 costs associated with the
proposed designation are estimated to be $19,000,000 over the next 20
years, or $1,100,000 on an annualized basis (seven percent discount
rate) for both administrative and conservation effort costs.
This analysis forecasts the total number and administrative cost of
future consultations likely to occur for grazing, transportation,
recreation, water management, and species and habitat management
undertaken by or permitted by Federal agencies within the study area.
In addition, the analysis forecasts costs associated with conservation
efforts that may be recommended in consultation for those activities
occurring in unoccupied areas.
In occupied areas, the economic impacts of implementing the rule
through section 7 of the Act will most likely be limited to additional
administrative effort to consider adverse modification. This finding is
based on the fact that any activities with a Federal nexus occurring
within occupied habitat will be subject to section 7 consultation
requirements regardless of critical habitat designation, due to the
presence of the listed species; and in most cases, project
modifications requested to avoid adverse modification are likely to be
the same as those needed to avoid jeopardy in occupied habitat. In
unoccupied areas, incremental section 7 costs will include both the
administrative costs of consultation and the costs of developing and
implementing conservation measures needed to avoid adverse modification
of critical habitat.
Various economic benefits may result from the incremental
conservation efforts identified in this analysis, including: (1) Those
associated with the primary goal of species conservation (i.e., direct
benefits) and (2) those additional beneficial services that derive from
conservation efforts but are not the purpose of the Act (i.e.,
ancillary benefits). Due to existing data limitations, we are unable to
assess the likely magnitude of these benefits.
As we stated earlier, we are soliciting data and comments from the
public on our consideration of economic impacts, as well as all aspects
of the proposed critical habitat rule and our amended required
determinations. We may revise the proposed rule or supporting documents
to incorporate or address information we receive during the public
comment period. In particular, we may exclude an area from critical
habitat if we determine that the benefits of excluding the area
outweigh the benefits of including the area, provided the exclusion
will not result in the extinction of this species.
Draft Environmental Assessment
The purpose of the draft environmental assessment, prepared
pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C.
4321 et seq.), is to identify and disclose the environmental
consequences resulting from the proposed action of designating critical
habitat for the New Mexico meadow jumping mouse. In the draft
environmental assessment, three alternatives are evaluated: Alternative
A, the no action alternative; Alternative B, the proposed rule without
exclusion or exemption areas; and Alternative C, the proposed rule with
exclusion or exemption areas. The no action alternative is required by
NEPA for comparison to the other alternatives analyzed in the draft
environmental assessment. The no action alternative is equivalent to no
designation of critical habitat for the New Mexico meadow jumping
mouse. Under Alternative B, critical habitat would be designated, as
proposed, with no exclusions. Under Alternative C, critical habitat
would be designated; however, tribal lands on Isleta Pueblo and Ohkay
Owingeh would be excluded from critical habitat designation. Our
preliminary determination is that designation of critical habitat for
the New Mexico meadow jumping mouse will not have direct impacts on the
environment. However, we will further evaluate this issue as we
complete our final environmental assessment.
Required Determinations--Amended
In our June 20, 2013, proposed rule to designate critical habitat
(78 FR 37328), we indicated that we would defer our determination of
compliance with several statutes and executive orders until we had
evaluated the probable effects on landowners and stakeholders and the
resulting probable economic impacts of the designation. Following our
evaluation of the probable incremental economic impacts resulting from
the designation of critical habitat for the New Mexico meadow jumping
mouse, we have amended or affirmed our determinations below.
Specifically, we affirm the information in our proposed rule concerning
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211
(Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.), and the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). However, based on our evaluation of the
probable incremental economic impacts of the proposed designation of
critical habitat for the New Mexico meadow jumping mouse, we are
amending our required determinations concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 12630 (Takings), and we
are updating our required determinations regarding NEPA and the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951).
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
[[Page 19313]]
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.
Following recent court decisions, the Service's current
understanding of the requirements under the RFA, as amended, is that
Federal agencies are required to evaluate the potential incremental
impacts of rulemaking only 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 out by the Agency is not likely to adversely modify critical
habitat. Under these circumstances, only Federal action agencies are
directly subject to the specific regulatory requirement (avoiding
destruction and adverse modification) imposed by critical habitat
designation. Therefore, it is our position that only Federal action
agencies will be directly regulated by this designation. Federal
agencies are not small entities, and there is no requirement under the
RFA to evaluate the potential impacts to entities not directly
regulated. Therefore, because no small entities are directly regulated
by this rulemaking, the Service certifies that, if promulgated, the
proposed critical habitat designation will not have a significant
economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if promulgated, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
E.O. 12630 (Takings)
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the New Mexico meadow jumping mouse 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
New Mexico meadow jumping mouse. 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 assessment 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 New Mexico meadow jumping mouse does not pose
significant takings implications for lands within or affected by the
proposed designation.
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 as defined by NEPA in conjunction 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 (1966)). However,
when the range of the species includes States within the Tenth Circuit,
such as that of the New Mexico meadow jumping mouse, under the Tenth
Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a
NEPA analysis for critical habitat designation. In accordance with the
Tenth Circuit, we have completed a draft environmental assessment to
identify and disclose the environmental consequences resulting from the
proposed designation of critical habitat. Our preliminary determination
is that the designation of critical habitat for the New Mexico meadow
jumping mouse would not have direct impacts on the environment.
However, we will further evaluate this issue as we complete our final
environmental assessment.
Government-to-Government Relationship With Tribes
We sent notification letters in November 2011 to both the Isleta
Pueblo and Ohkay Owingeh describing the exclusion process under section
4(b)(2) of the Act, and we have engaged in conversations with both
tribes about the proposed rule to the extent possible without
disclosing predecisional information. We sent out notification letters
on June 20, 2013, notifying the tribes that the proposed rule had
published in the Federal Register to allow for the maximum time to
submit comments. Following their invitation, we met with Isleta Pueblo
on August 14, 2013, to discuss the proposed rule, and they provided
additional information regarding their land management practices and
expressed their interest in developing an endangered species management
plan. In addition to the letters sent to Ohkay Owingeh and telephone
conversations, Ohkay Owingeh did not request Government-to-Government
consultations or meetings. At this time, no meetings have been
scheduled. In addition, we sent coordination letters to the Bureau of
Indian Affairs on September 18, 2013, seeking information for our
economic analysis. We will continue to communicate with all affected
tribes.
Authors
The primary authors of this notice are the staff members of the New
Mexico Ecological Services Field Office, Southwest Region, U.S. Fish
and Wildlife Service.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: March 27, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-07629 Filed 4-7-14; 8:45 am]
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