[Federal Register Volume 77, Number 134 (Thursday, July 12, 2012)]
[Rules and Regulations]
[Pages 41088-41106]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16988]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2011-0042; 4500030113]
RIN 1018-AV86
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for the Chupadera Springsnail and Designation of
Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, determine endangered
status for the Chupadera springsnail and designate critical habitat for
the species under the Endangered Species Act of 1973, as amended. The
effect of this rule is to conserve the Chupadera springsnail and its
habitat under the Endangered Species Act.
DATES: This rule becomes effective on August 13, 2012.
ADDRESSES: This final rule and associated final economic analysis and
final environmental assessment are available on the Internet at http://www.regulations.gov or http://www.fws.gov/southwest/es/NewMexico/.
Comments and materials received, as well as supporting documentation
used in preparing this final rule, are available for public inspection,
by appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, New Mexico Ecological Services Field Office, 2105
Osuna Rd. NE., Albuquerque, NM 87113; telephone 505-346-2525; facsimile
505-346-2542.
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna Rd. 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: This document consists of: (1) A final rule
to list the Chupadera springsnail as endangered and (2) a final
critical habitat designation for the Chupadera springsnail.
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act, a
species may warrant protection through listing if it is endangered or
threatened throughout all or a significant portion of its range. The
Chupadera springsnail (Pyrgulopsis chupaderae) qualifies for listing as
endangered based on threats to its habitat and its very limited range,
which makes it more susceptible to extinction.
This rule designates the Chupadera springsnail as endangered with
critical habitat. We are listing the Chupadera springsnail as
endangered. In addition, we are designating critical habitat for the
species in two units on private property totaling 0.7 hectares (1.9
acres) in Socorro County, New Mexico.
The Endangered Species Act provides the basis for our action. Under
the Endangered Species Act, we can determine that a species is
endangered or threatened based on any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment
of its habitat or range; (B) overutilization for commercial,
recreational, scientific, or educational purposes; (C) disease or
predation; (D) the inadequacy of existing regulatory mechanisms; or (E)
other natural or manmade factors affecting its continued existence.
We have determined that the Chupadera springsnail is endangered by
habitat loss and degradation of aquatic resources, particularly
decreases in spring flow due to drought and ongoing and future
groundwater pumping in the surrounding area, habitat degradation from
livestock grazing, and springhead modification.
We prepared an economic analysis. To ensure that we consider the
economic impacts, we prepared an economic analysis of the designation
of critical habitat. We published an announcement and solicited public
comments on the draft economic analysis. The analysis found no economic
impact of the designation of critical habitat beyond an unquantified
``stigma effect'' to land values.
We requested peer review of the methods used in our designation. We
specifically requested that three knowledgeable individuals with
scientific expertise in desert spring ecosystems or related fields
review the scientific information and methods that we used when we
proposed the species as endangered. The peer reviewers generally
concurred with our methods and conclusions and provided additional
information, clarifications, and suggestions to improve the final
listing and critical habitat rule.
We sought public comment on the designation. During the first
comment period, we received five comment letters directly addressing
the proposed listing and critical habitat designation. During the
second comment period, we received two comment letters addressing the
proposed listing and critical habitat designation. We received no
comments during the third comment period, nor any comments regarding
the draft economic analysis or draft environmental assessment.
Background
It is our intent to discuss below only those topics directly
relevant to the listing of the Chupadera springsnail as endangered in
this section of the final rule.
Previous Federal Actions
We identified the Chupadera springsnail as a candidate for listing
in the May 22, 1984, Notice of Review of Invertebrate Wildlife for
Listing as Endangered or Threatened Species (49 FR 21664). Candidates
are those fish, wildlife, and plants for which we have on file
sufficient information on biological vulnerability and threats to
support preparation of a listing proposal, but for which development of
a listing regulation is precluded by other higher priority listing
activities. The Chupadera springsnail was petitioned for listing on
November 20, 1985, and was found to be warranted for listing but
precluded by higher priority activities on October 4, 1988 (53 FR
38969). The Chupadera springsnail has been included in all of our
subsequent annual Candidate Notices of Review (54 FR 554, January 6,
1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994;
61 FR 7595, February 28, 1996; 62 FR 49397, September 19, 1997; 64 FR
57533, October 25, 1999; 66 FR 54807, October 30, 2001; 67 FR 40657,
June 13, 2002; 69 FR 24875, May 4, 2004; 70 FR 24869, May 11, 2005; 71
FR 53755, September 12, 2006; 72 FR 69033, December 6, 2007; 73 FR
75175, December 10, 2008; 74 FR 57803, November 9, 2009; 75 FR 69221,
November 10, 2010; and 76 FR 66370, October 26, 2011). In 2002, the
listing priority number was increased from 8 to 2 in accordance with
our priority guidance published on September 21, 1983 (48 FR 43098). A
listing priority of 2 reflects a species with threats that are both
imminent and high in magnitude. On August 2, 2011, we published a
proposed rule to list the Chupadera springsnail as endangered with
critical habitat (76 FR 46218), and
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on January 20, 2012, we published a notice of availability of the draft
environmental assessment and draft economic analysis and reopened the
comment period for the proposed rule (77 FR 2943). Finally, on May 1,
2012, we reopened the comment period for the proposed rule and its
associated documents for an additional 15 days (77 FR 25668).
Species Information
The Chupadera springsnail (Pyrgulopsis chupaderae) is a tiny (1.6
to 3.0 millimeters (mm) (0.06 to 0.12 inches (in)) tall) freshwater
snail (Taylor 1987, p. 25; Hershler 1994, p. 30) in the family
Hydrobiidae. The pigmentation of the body and operculum (covering over
the shell opening) of this species is much more intense than in any
other species in the genus Pyrgulopsis (Taylor 1987, p. 26). The
Chupadera springsnail was first described by Taylor (1987, pp. 24-27)
as Fontelicella chupaderae. Hershler (1994, pp. 11, 13), in his review
of the genus Pyrgulopsis, found that the species previously assigned to
the genus Fontelicella had the appropriate morphological
characteristics for inclusion in the genus Pyrgulopsis and formally
placed them within that genus. Preliminary genetic information confirms
that the Chupadera springsnail is a valid species (Hershler et al.
2010, p. 246).
Springsnails are strictly aquatic, and respiration occurs through
an internal gill. Springsnails in the genus Pyrgulopsis are egg-layers
with a single small egg capsule deposited on a hard surface (Hershler
1998, p. 14). The larval stage is completed in the egg capsule, and
upon hatching, the snails emerge into their adult habitat (Brusca and
Brusca 1990, p. 759; Hershler and Sada 2002, p. 256). The snail
exhibits separate sexes; physical differences are noticeable between
them, with females being larger than males. Because of their small size
and dependence on water, significant dispersal likely does not occur,
although on rare occasions aquatic snails have been transported by
becoming attached to the feathers and feet of migratory birds (Roscoe
1955, p. 66; Dundee et al. 1967, pp. 89-90; Hershler et al. 2005, p.
1763). Hydrobiid snails feed primarily on periphyton, which is a
complex mixture of algae, bacteria, and microbes that occurs on
submerged surfaces in aquatic environments (Mladenka 1992, pp. 46, 81;
Allan 1995, p. 83; Hershler and Sada 2002, p. 256; Lysne et al. 2007,
p. 649). The lifespan of most aquatic snails is 9 to 15 months (Pennak
1989, p. 552).
Snails in the family Hydrobiidae were once much more widely
distributed during the wetter Pleistocene Age (1.6 million to 10,000
years ago). As ancient lakes and streams dried, springsnails became
patchily distributed across the landscape in geographically isolated
populations exhibiting a high degree of endemism (species found only in
a particular region, area, or spring) (Bequart and Miller 1973, p. 214;
Taylor 1987, pp. 5-6; Shepard 1993, p. 354; Hershler and Sada 2002, p.
255). Hydrobiid snails occur in springs, seeps, marshes, spring pools,
outflows, and diverse flowing water habitats. Although Hydrobiid snails
as a group are found in a wide variety of aquatic habitats, they are
sensitive to water quality, and each species is usually found within
relatively narrow habitat parameters (Sada 2008, p. 59). Proximity to
spring vents, where water emerges from the ground, plays a key role in
the life history of springsnails. Many springsnail species exhibit
decreased abundance farther away from spring vents, presumably due to
their need for stable water chemistry (Hershler 1994, p. 68; Hershler
1998, p. 11; Hershler and Sada 2002, p. 256; Martinez and Thome 2006,
p. 14). Several habitat parameters of springs, such as substrate,
dissolved carbon dioxide, dissolved oxygen, temperature, conductivity,
and water depth, have been shown to influence the distribution and
abundance of Pyrgulopsis (O'Brien and Blinn 1999, pp. 231-232; Mladenka
and Minshall 2001, pp. 209-211; Malcom et al. 2005, p. 75; Martinez and
Thome 2006, pp. 12-15; Lysne et al. 2007, p. 650). Dissolved salts such
as calcium carbonate may also be important factors because they are
essential for shell formation (Pennak 1989, p. 552).
The Chupadera springsnail is endemic to Willow Spring and an
unnamed spring of similar size 0.5 kilometers (km) (0.3 miles (mi))
north of Willow Spring at the southeast end of the Chupadera Mountains
in Socorro County, New Mexico (Taylor 1987, p. 24; Mehlhop 1993, p. 3;
Lang 1998, p. 36). The two springs where the Chupadera springsnail has
been documented are on two hillsides where groundwater discharges flow
through volcanic gravels containing sand, mud, and aquatic plants
(Taylor 1987, p. 26). Water temperatures in areas of the springbrook
(the stream flowing from the springhead) currently occupied by the
springsnail range from 15 to 25 degrees Celsius ([deg]C) (59 to 77
degrees Fahrenheit ([deg]F)) over all seasons (as measured in 1997 to
1998). Water velocities range from 0.01 to 0.19 meters per second (m/s)
(0.03 to 0.6 feet per second (ft/s)) (Lang 2009, p. 1). In 1998, when
Willow Spring was visited by New Mexico Game and Fish biologists, the
springbrook was 0.5 to 2 meters (m) (1.6 to 6.6 feet (ft)) wide, 6 to
15 centimeters (cm) (2.4 to 6 in) deep, and approximately 38 m (125 ft)
long, upstream of where it entered a pond created by a berm (small
earthen dam) across the springbrook (Lang 2009, p. 1).
The current status of the population at Willow Spring is unknown
because access has been denied by the landowner since 1999, despite
requests for access to monitor the springsnail (Carman 2004, pp. 1-2;
2005, pp. 1-5; NMDGF 2007, p. 12). Prior surveys show the springsnail
population to be locally abundant and stable at this location through
1999 (Lang 1998, p. 36; Lang 1999, p. A5), with average densities in
1997-1998 of 23,803 17,431 per square meter (2,211 1,619 per square foot) (NMDGF 2011, p. 2). The landowner
recently provided qualitative information in response to the 2011
proposed rule (76 FR 46218) that a springsnail, presumed to be the
Chupadera springsnail, continues to occur at the springhead, although
not in high numbers, and is abundant in the springbrook (Highland
Springs Ranch, LLC 2011, p. 4). At the unnamed spring, the species was
originally discovered in 1986 (Stefferud 1986, p. 1) and reported from
this location again in 1993 (Melhop 1993, p. 11). However, repeated
sampling between 1995 and 1997 yielded no snails, and the habitat at
that spring has been significantly degraded (devoid of riparian
vegetation due to trampling by cattle, and the benthic habitat was
covered with manure) (Lang 1998, p. 59; Lang 1999, p. B13). Therefore,
the species is likely extirpated from this unnamed spring (NMDGF 1996,
p. 16; Lang 1999, p. B13).
Springsnail dispersal is primarily limited to aquatic habitat
connections (Hershler et al. 2005, p. 1755). Once extirpated from a
spring, natural recolonization of that spring or other nearby springs
is very rare.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
listing of the Chupadera springsnail and the proposed designation of
critical habitat for the Chupadera springsnail during three comment
periods. The first comment period associated with the publication of
the proposed rule (76 FR 46218) opened on August 2, 2011, and closed on
October 3, 2011. We also requested comments on the proposed critical
[[Page 41090]]
habitat designation, associated draft economic analysis, and associated
environmental assessment during a comment period that opened January
20, 2012, and closed on February 21, 2012 (77 FR 2943). Finally, on May
1, 2012, we reopened the comment period for an additional 15 days (77
FR 25668). We did not receive any requests for a public hearing, and
none was held.
During the first comment period, we received five comment letters
directly addressing the proposed listing and critical habitat
designation. During the second comment period, we received two comment
letters addressing the proposed listing and critical habitat
designation. During the third comment period, we received no comment
letters. We received no comments regarding the draft economic analysis
or draft environmental assessment. All substantive information provided
during the comment periods has either been incorporated directly into
this final determination or is addressed below. Comments we received
were grouped into eight general issues specifically relating to the
proposed listing status or proposed critical habitat designation for
the Chupadera springsnail 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 three knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from all three
peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the Chupadera springsnail. The peer reviewers generally concurred with
our methods and conclusions and provided additional information,
clarifications, and suggestions to improve the final listing and
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: One peer reviewer and one commenter noted that, while
the loss of groundwater is the biggest threat to the Chupadera
springsnail, protections afforded by the Endangered Species Act are not
sufficient to ameliorate this threat.
Our Response: Under section 4(b)(1)(A) of the Endangered Species
Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), we must base a
listing decision solely on the best scientific and commercial data
available. The legislative history of this provision clearly states the
intent of Congress to ensure that listing decisions are ``based solely
on biological criteria and to prevent non-biological criteria from
affecting such decisions'' (House of Representatives Report Number 97-
835, 97th Congress, Second Session 19 (1982)). Therefore, we are not
able to consider the potential efficacy of listing a species under the
Act when making this determination. If a species meets the definition
of endangered or threatened based on a review of the best available
scientific information, then we must list that species under the Act.
There is no discretion under the Act to make a not warranted finding
based on a perception that the protections afforded by the Act would
not be effective.
(2) Comment: One peer reviewer suggested that, since we have no
information about the Chupadera springsnail or its habitat since 1999,
we should presume that other natural or manmade factors (Factor E) may
be a threat.
Our Response: Under Factor E, we found that the best scientific and
commercial information available indicates that climate change may
exacerbate current threats to the Chupadera springsnail but that
climate change is not a threat in and of itself. We did not find other
natural or manmade factors that warranted evaluation under Factor E.
The lack of recent information does not necessitate presuming there are
other natural or manmade factors threatening the species.
Comments From States
We received one comment letter from the New Mexico Department of
Game and Fish regarding the proposal to list and designate critical
habitat for the Chupadera springsnail, indicating their support for
listing and critical habitat designation. Additional information
regarding population status and species biology was also included in
the letter, and that information has been incorporated into the
appropriate sections of this rule.
Public Comments
(3) Comment: One commenter was concerned that we did not complete
an initial regulatory flexibility analysis pursuant to the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) prior to publication of the
proposed rule.
Our Response: We were unable to determine if an initial regulatory
flexibility analysis was necessary prior to completion of the draft
economic analysis. After considering the draft economic analysis, we
certified in the January 20, 2012 (77 FR 2943, p. 2946), publication
that an initial regulatory flexibility analysis is not required.
Compliance with the Regulatory Flexibility Act is part of this final
rule and can be found under the subheading of ``Regulatory Flexibility
Act (5 U.S.C. 601 et seq.)''.
(4) Comment: Two commenters suggested that we not designate the
unnamed spring as critical habitat for the Chupadera springsnail
because the species has been extirpated and habitat does not currently
exist at the site.
Our Response: To be included in the critical habitat designation,
unoccupied habitat must be considered to be essential for the
conservation of the Chupadera springsnail. We considered the importance
of the unnamed spring to the overall status of the species to prevent
extinction and contribute to recovery, whether the unnamed spring could
be restored to contain the necessary physical and biological features
to support the Chupadera springsnail, and whether a population could be
reestablished at the site. Although the unnamed spring has been
excavated and currently exists as a pool and downstream marsh, we
believe the site could be restored to provide suitable habitat for the
Chupadera springsnail. Because the species only exists at one other
site, the reintroduction of the snail at this unnamed spring would
provide protection against extinction due to catastrophic events and
contribute to its recovery. As a result, we have included the unnamed
spring in this final critical habitat designation, as we believe it is
essential for the conservation of the species.
(5) Comment: Two commenters pointed out that the information
regarding the species' population numbers is more than 10 years old and
suggested we rely on more recent survey information.
Our Response: We agree that recent information would be more
informative of the population's status, but State of New Mexico and
Service biologists have not been allowed access to the springs since
1999, despite repeated requests. Under the Act, we must use the best
available scientific and commercial information to inform our listing
decisions; in this case, the data up through 1999 is the best available
[[Page 41091]]
information about the species and its habitat.
(6) Comment: One commenter questioned whether the Chupadera
springsnail ever occurred at the unnamed spring and why we stated the
species has been known from Willow Spring since 1979 when the species
was described in 1987.
Our Response: The Chupadera springsnail was documented from the
unnamed spring in 1986 (Stefferud 1986, p. 1). Additionally, while the
Chupadera springsnail was not described in the peer-reviewed literature
until 1987 (Taylor 1987, pp. 24-26), it was first collected in 1979 by
D.W. Taylor and R.H. Weber (Taylor 1987, p. 24).
(7) Comment: One commenter asked if we proposed to designate a
buffer around the springhead, springbrook, seeps, ponds, and seasonally
wetted meadow, and if so, how far from these features the buffer
extended.
Our Response: We did not propose to designate a buffer around the
spring features. We identified a coordinate for each spring and
proposed to designate as critical habitat the springhead, springbrook,
small seeps and ponds, seasonally wetted meadow, and all of the
associated spring features. To determine the approximate area of the
critical habitat, we used satellite imagery to roughly calculate the
area of the spring features surrounding those coordinates.
(8) Comment: One commenter suggested that, in lieu of listing, the
Service buy the land surrounding Willow Spring.
Our Response: The Act requires us to determine if the Chupadera
springsnail is in danger of extinction throughout all or a significant
portion of its range at the time we conduct a review of the species.
Any future conservation actions, such as purchasing land, if the
landowner is willing, or land management efforts to ameliorate threats,
will be evaluated as part of the recovery planning process after the
species is listed.
Summary of Changes From Proposed Rule
Since the publication of the August 2, 2011, proposed rule to list
the Chupadera springsnail as endangered with critical habitat (76 FR
46218), we have made the following changes:
(1) The New Mexico Department of Game and Fish provided us with
more detailed information regarding the Chupadera springsnail
population and habitat at Willow Spring, and we updated the biological
information in this rule accordingly.
(2) The landowner of Willow Spring provided qualitative information
about the current habitat at Willow Spring and the current presence of
the Chupadera springsnail, which we have incorporated into this rule.
Summary of Factors Affecting the Species
Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for adding species to the Federal Lists
of Endangered and Threatened Wildlife and Plants. A species may be
determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1) of the Act: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence. Listing actions may
be warranted based on any of the above threat factors, singly or in
combination. Each of these factors is discussed below.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
The principal threats to the habitat of Chupadera springsnail at
Willow Spring include groundwater depletion, livestock grazing, and
spring modification (Lang 1998, p. 59; NMDGF 2002, p. 45). These
threats are intensified by the fact that the species' known historic
range was only two small springs, and it has been extirpated from one
of the known locations. Other potential threats, such as fire and
recreational use at the springs, were considered, but no information
was found that indicated these may be affecting the species at this
time.
Groundwater Depletion
Habitat loss due to groundwater depletion threatens the Chupadera
springsnail. Since spring ecosystems rely on water discharged to the
surface from underground aquifers, groundwater depletion can result in
the destruction of habitat by the drying of springs and cause the loss
of spring fauna. For example, groundwater depletion from watering a
lawn adjacent to a small spring (Snail Spring) in Cochise County,
Arizona, has reduced habitat availability of the San Bernardino
springsnail (Pyrgulopsis bernardina) at that location because of the
loss of flowing water to the spring (Malcom et al. 2003, p. 18; Cox et
al. 2007, p. 2). Also, in Pecos County, Texas, two large spring systems
(Comanche Springs and Leon Springs) were completely lost to drying when
irrigation wells were activated in the supporting local aquifer
(Scudday 1977, pp. 515-516). Spring drying or flow reduction from
groundwater pumping has also been documented in the Roswell (August 9,
2005; 70 FR 46304) and Mimbres Basins (Summers 1976, pp. 62, 65) of New
Mexico.
Area groundwater use may significantly increase due to Highland
Springs Ranch, a developing subdivision in the immediate vicinity of
Chupadera springsnail habitat. Beginning in 1999, Highland Springs
Ranch is being developed in four phases with approximately 650 lots
ranging from 8 hectares (ha) (20 acres (ac)) to 57 ha (140 ac). There
is no central water system, so each homeowner is responsible for
drilling individual water wells. In Highland Springs Ranch, homeowners
are entitled to 629 cubic meters (0.51 acre-feet) of water per year
(New Mexico Office of the State Engineer (NMOSE) 2009, p. 1).
Although the NMOSE offered a positive opinion determining that
sufficient groundwater is available to supply the needs of the
subdivision for 40 years (Highland Springs, LLC 2011, p. 2), the NMOSE
bases that decision on water availability, not on ensuring spring flow.
Because of the proximity of the subdivision to Willow Spring (the
northern boundary of one of the lots (42A) of Mountain Shadows, a phase
of Highland Springs Ranch, is approximately 91 m (300 ft) from Willow
Spring), it appears likely that groundwater pumping could affect the
discharge from the spring through depletion of groundwater. Under
normal conditions, Willow Spring has a very small discharge (Lang 2009,
p. 1), and, therefore, any reduction in available habitat from
declining spring flows would be detrimental to the Chupadera
springsnail. Given the proximity of the unnamed spring (0.5 km (0.3
mi)) to Willow Spring, and because they both were historically occupied
by the Chupadera springsnail, we believe both springs are fed by the
same groundwater aquifer. Thus, groundwater depletion that would affect
spring flow at Willow Spring would also likely affect the unnamed
spring.
The Bosque del Apache National Wildlife Refuge western boundary is
located about 0.8 km (0.5 mi) east of the spring where Chupadera
springsnail occurs, providing protection from development and
groundwater depletion for much of the land east of the spring.
Therefore, any development
[[Page 41092]]
activities that may deplete groundwater are likely to occur in areas
west of the springs.
In addition, any decreases in regional precipitation due to
prolonged drought will further stress groundwater availability and
increase the risk of diminishment or drying of the springs. The
current, multiyear drought in the western United States, including the
Southwest, is the most severe drought recorded since 1900 (Overpeck and
Udall 2010, p. 1642). In addition, numerous climate change models
predict an overall decrease in annual precipitation in the southwestern
United States and northern Mexico (see discussion under Factor E,
Climate Change, below). Recent regional drought may have affected
habitat for Chupadera springsnail. For example, the extreme drought of
2002 resulted in drying streams across the State, with nearly all of
the major river basins in New Mexico at historic low flow levels (New
Mexico Drought Task Force 2002, p. 1). Because of our inability to
access Willow Spring, we do not have information on how this drought
affected the Chupadera springsnail.
Drought affects both surface and groundwater resources and can lead
to diminished water quality (Woodhouse and Overpeck 1998, p. 2693;
MacRae et al. 2001, pp. 4, 10), in addition to reducing groundwater
quantities. The small size of the springbrooks where the Chupadera
springsnail resides (1.5 m (5 ft) wide or less) makes them particularly
susceptible to drying, increased water temperatures, and freezing. The
springs do not have to cease flowing completely to have an adverse
effect on springsnail populations. Because these springs are so small,
any reductions in the flow rates from the springs can reduce the
available habitat for the springsnails, increasing the species' risk of
extinction. Decreased spring flow can lead to a decrease in habitat
availability, an increase in water temperature fluctuations, a decrease
in dissolved oxygen levels, and an increase in salinity (MacRae et al.
2001, p. 4). Water temperatures and factors such as dissolved oxygen in
springs do not typically fluctuate under natural conditions, and
springsnails are narrowly adapted to spring conditions and are
sensitive to changes in water quality (Hershler 1998, p. 11).
Groundwater depletion can lead to loss and degradation of Chupadera
springsnail habitat and presents a substantial threat to the species.
Livestock Grazing
It is estimated that livestock grazing has damaged approximately 80
percent of stream and riparian ecosystems in the western United States
(Belsky et al. 1999, p. 419). The damage occurs from increased
sedimentation, decreased water quality, and trampling and overgrazing
stream banks where succulent (high water content) forage exists (Armour
et al. 1994, p. 10; Fleischner 1994, p. 631; Belsky et al. 1999, p.
419). Livestock grazing within spring ecosystems can alter or remove
springsnail habitat, resulting in restricted distribution or
extirpation of springsnails. For example, cattle trampling at a spring
in Owens Valley, California, reduced banks to mud and sparse grass,
limiting the occurrence of the endangered Fish Slough springsnail
(Pyrgulopsis perturbata) (Bruce and White 1998, pp. 3-4). Poorly
managed livestock use of springbrooks can directly negatively affect
springsnails through contamination of aquatic habitat from feces and
urine, habitat degradation of the springbrook by trampling of substrate
and loss of aquatic and riparian vegetation, and crushing of individual
springsnails.
When the species was first collected at the unnamed spring in 1986,
Stefferud (1986, p. 1) reported that the spring was already a series of
small stock tanks for cattle and horses with very little riparian
vegetation. Lang (1998, p. 59) reported that the unnamed spring was
heavily impacted by cattle because it was devoid of riparian
vegetation, and the gravel and cobbles were covered with mud and
manure. It appears that overgrazing and access to the aquatic habitat
of the spring by livestock may have caused the extirpation of the
Chupadera springsnail population from this unnamed spring (NMDGF 1996,
p. 16; Lang 1999, p. A5). Grazing was occurring at Willow Spring in
1999 (the last time the spring was visited) (Lang 1999, p. A5). The
landowner has indicated that cattle ranching continues to occur in
areas of Highland Springs Ranch, but that no grazing is currently
occurring within or adjacent to Willow Spring (Highland Springs, LLC
2011, p. 3). Continued use of the springs by livestock, if it is
occurring at Willow Spring or the unnamed spring we are designating as
critical habitat in this rule, presents a substantial threat to the
Chupadera springsnail.
Spring Modification
Spring modification occurs when attempts are made to increase flow
through excavation at the springhead, when the springhead is tapped to
direct the flow into a pipe and then into a tank or a pond, when
excavation around the springhead creates a pool, inundating the
springhead, or when the springbrook is dammed to create a pool
downstream of the springbrook. Because springsnails are typically most
abundant at the springhead where water chemistry and water quality are
normally stable, any modification of the springhead could be
detrimental to springsnail populations. In addition, any modification
or construction done at the springhead could also affect individuals
downstream through siltation of habitat. Because springsnails are
typically found in shallow flowing water, inundation that alters
springsnail habitat by changing water depth, velocity, substrate
composition, vegetation, and water chemistry can cause population
reduction or extirpation. For example, inundation has negatively
affected populations of other springsnails such as Koster's springsnail
(Juturnia kosteri) and Roswell springsnail (Pyrgulopsis roswellensis)
at Bitter Lake National Wildlife Refuge and caused their extirpation
from North Spring in Chaves County, New Mexico (NMDGF 2004, p. 33; 70
FR 46304, August 9, 2005).
The springheads at both Willow Spring and the unnamed spring have
been modified through impoundment of the springbrooks and, at Willow
Spring, to maintain a pump and improve water delivery systems to cattle
(Lang 1998, p. 59). At Willow Spring, it appears that springbrook
impoundment has only occurred downstream of the source, leaving some
appropriate springbrook habitat intact upstream (Taylor 1987, p. 26).
At the last visit to the Willow Spring in 1999, the habitat at the
spring was of sufficient quality to sustain the Chupadera springsnail,
but any subsequent alterations could be catastrophic for the species.
Spring modification, either at the springhead or in the springbrook, is
a threat to the Chupadera springsnail.
Small, Reduced Range
The geographically small range of the Chupadera springsnail
increases the risk of extinction from any effects associated with other
threats (NMDGF 2002, p. 1). When species are limited to small, isolated
habitats, like the Chupadera springsnail in one small desert spring
system, they are more likely to become extinct due to a local event
that negatively effects the population (Shepard 1993, pp. 354-357;
McKinney 1997, p. 497; Minckley and Unmack 2000, pp. 52-53).
The natural historic range of the Chupadera springsnail includes
only
[[Page 41093]]
two small spring sites. As a result of habitat alteration at the
unnamed spring, the species now occurs only at Willow Spring (Lang
1999, p. B13). We have very limited information on the current status
of the species because access to Willow Spring has been continually
denied since 1999 (Carman 2004, p. 1-2; Carman 2005, p. 1-5; NMDGF
2007, p. 12). The springsnail is limited to aquatic habitats in small
spring systems and has minimal mobility, so it is unlikely its range
will ever expand. As a result, if the population at Willow Spring were
extirpated for any reason, the species would be extinct, since there
are no other sources of this springsnail from which to recolonize. This
situation makes the magnitude of impact of any possible threat very
high. In other words, the resulting effects of any of the threat
factors under consideration here, even if they are relatively small on
a temporal or geographic scale, could result in complete extinction of
the species.
Therefore, because the Chupadera springsnail is restricted to a
single small site, it is particularly susceptible to extinction if its
habitat is degraded or destroyed. While the small, reduced range does
not represent an independent threat to the species, it does
substantially increase the risk of extinction from the effects of all
other threats, including those addressed in this analysis, and those
that could occur in the future from unknown sources.
Summary of Factor A
In summary, the Chupadera springsnail is threatened by the present
destruction and modification of its habitat and range. Groundwater
depletion due to new wells from nearby subdivision developments, in
addition to droughts, is likely resulting in reduced flow at the spring
that supports the species. Livestock grazing has likely resulted in the
extirpation of the species from habitat alteration and contamination at
one of these springs and may continue in the future. Finally,
springhead and springbrook modification have affected Chupadera
springsnail habitat at Willow Spring, and further modification may have
occurred since the last visit to this site in 1999. Because of the
extremely small and reduced range of the species, these threats have an
increased risk of resulting in extinction of the Chupadera springsnail.
These threats are already occurring, they affect the full historical
range of the species, and they result in the species being at risk of
extinction.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
There are very few people who are interested in or study
springsnails, and those who do are sensitive to their rarity and
endemism. Consequently, collection for scientific or educational
purposes is very limited. As far as we know, because the Chupadera
springsnail occurs on private land with limited access, there has been
no collection of individuals since 1999, when NMDGF made its last
collection (Lang 2000, p. C5). There are no known commercial or
recreational uses of the springsnails. For these reasons, we find that
the Chupadera springsnail is not threatened by overutilization for
commercial, recreational, scientific, or educational purposes.
C. Disease or Predation
The Chupadera springsnail is not known to be affected or threatened
by any disease. At the time the spring was last surveyed, no nonnative
predatory species were present. However, any future introduction of a
nonnative species into the habitat of the Chupadera springsnail could
be catastrophic to the springsnail. The Chupadera springsnail has an
extremely small and reduced range, and introduction of a nonnative
predator or competitor carries an increased risk of resulting in
extinction of the Chupadera springsnail. Because there are no known
nonnative species present, we find that the Chupadera springsnail is
not currently threatened by disease or predation.
D. The Inadequacy of Existing Regulatory Mechanisms
Under this factor, we examine whether existing regulatory
mechanisms are inadequate to address the threats to the species
discussed under the other factors. Section 4(b)(1)(A) of the Act
requires the Service to take into account ``those efforts, if any,
being made by any State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species * * *.'' We
interpret this language to require the Service to consider relevant
Federal, State, and tribal laws, plans, regulations, Memoranda of
Understanding (MOUs), Cooperative Agreements, and other such mechanisms
that may minimize any of the threats we describe in threat analyses
under the other four factors, or otherwise enhance conservation of the
species. We give strongest weight to statutes and their implementing
regulations and management direction that stems from those laws and
regulations. An example would be State governmental actions enforced
under a State statute or constitution, or Federal action under statute.
Having evaluated the significance of the threat as mitigated by any
such conservation efforts, we analyze under Factor D the extent to
which existing regulatory mechanisms are inadequate to address the
specific threats to the species. Regulatory mechanisms, if they exist,
may reduce or eliminate the impacts from one or more identified
threats. In this section, we review existing State and Federal
regulatory mechanisms to determine whether they effectively reduce or
remove threats to the Chupadera springsnail.
New Mexico State law provides some limited protection to the
Chupadera springsnail. The species is listed as a New Mexico State
endangered species, which are those species ``whose prospects of
survival or recruitment within the state are likely to become
jeopardized in the near future'' (NMDGF 1988, p. 1). This designation
provides protection under the New Mexico Wildlife Conservation Act of
1974 (the State's endangered species act) (19 NMAC 33.6.8), but only
prohibits direct take of species, except under issuance of a scientific
collecting permit. No permit has been issued for taking this species.
The New Mexico Wildlife Conservation Act defines ``take'' or ``taking''
as ``harass, hunt, capture, or kill any wildlife or attempt to do so''
(17 NMAC 17.2.38). In other words, New Mexico State status as an
endangered species only conveys protection from collection or
intentional harm to the animals themselves but does not provide habitat
protection. Because most of the threats to the Chupadera springsnail
are from effects to its habitat, in order to protect individuals and
ensure their long-term conservation and survival, their habitat must be
protected. Therefore, this existing regulation is inadequate to
mitigate the impacts of identified threats to the species. Namely, the
existing New Mexico Wildlife Conservation Act will not prevent
modification to the habitat of the Chupadera springsnail.
We also considered whether there were any other regulations that
might address the identified threats to the species. In particular, we
searched for State laws or local ordinances that would prevent
groundwater pumping in the subdivisions adjacent to Willow Spring from
affecting spring flows in the habitat of the Chupadera springsnail. The
water supply for subdivision homes comes from individual wells, and
each well in the Highland Springs Ranch subdivisions may pump up to 629
cubic meters (0.51 acre feet) per year (NMOSE
[[Page 41094]]
2009, p. 1). We found that the New Mexico Office of the State Engineer
evaluates proposed water delivery systems if the proposed system is in
an area designated as a domestic well management area (Utton
Transboundary Resources Center 2011, p. 3). The land being developed
around Willow Spring has not been designated as such and therefore does
not provide protections to the habitat of Chupadera springsnail. As
discussed in Factor A above, inadequate spring flow due to pumping of
the groundwater aquifer by homeowners is a threat to the habitat of the
Chupadera springsnail, and the current regulatory mechanisms in place
do not alleviate this threat. Additionally, habitat degradation from
livestock grazing is also a threat to the Chupadera springsnail, and
there are no regulatory mechanisms to protect the springs from the
effects of livestock grazing, and so none are evaluated for their
adequacy.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Other natural or manmade factors affecting the continued existence
of the Chupadera springsnail include introduced species and climate
change. These threats are intensified by the fact that the species'
known historical range was only two small springs, and it has been
extirpated from one of the known locations.
Introduced Species
Introduced species are a serious threat to native aquatic species
(Williams et al. 1989, p. 18; Lodge et al. 2000, p. 7). Because the
distribution of the Chupadera springsnail is so limited, and its
habitat so restricted, introduction of certain nonnative species into
its habitat could be devastating. Saltcedar (Tamarix spp.) threatens
spring habitats primarily through the amount of water it consumes and
from the chemical composition of the leaves that drop to the ground and
into the springs. Saltcedar leaves that fall to the ground and into the
water add salt to the system, as their leaves contain salt glands
(DiTomaso 1998, p. 333). Additionally, dense stands of common reed
(Phragmites australis) choke small stream channels, slowing water
velocity and creating more pool-like habitat; this habitat is not
suitable for Chupadera springsnail, which are found in flowing water.
Finally, Russian thistle (Salsola tragis; tumbleweed) can create
problems in spring systems by being blown into the channel, slowing
flow, and overloading the system with organic material (Service 2005,
p. 2). The control and removal of nonnative vegetation can also impact
springsnail habitats. For example, this has been identified as a factor
responsible for localized extirpations of populations of the federally
endangered Pecos assiminea (Assiminea pecos), a snail in New Mexico,
due to vegetation removal that resulted in soil and litter drying,
thereby making the habitat unsuitable (Taylor 1987, pp. 5, 9).
Likewise, nonnative mollusks have affected the distribution and
abundance of native mollusks in the United States. Of particular
concern for the Chupadera springsnail is the red-rim melania
(Melanoides tuberculata), a snail that can reach tremendous population
sizes and has been found in isolated springs in the west (McDermott
2000, pp. 13-16; Ladd 2010, p. 1; U.S. Geological Survey 2010, p. 1).
The red-rim melania has caused the decline and local extirpation of
native snail species, and it is considered a threat to endemic aquatic
snails that occupy springs and streams in the Bonneville Basin of Utah
(Rader et al. 2003, p. 655). It is easily transported on fishing gear
or aquatic plants, and because it reproduces asexually (individuals can
develop from unfertilized eggs), a single individual is capable of
founding a new population. It has become established in isolated desert
spring ecosystems such as Ash Meadows, Nevada, San Solomon Spring and
Diamond Y Spring, Texas, and Cuatro Ci[eacute]negas, Mexico. In many
locations, this exotic snail is so numerous that it covers the bottom
of the small stream channel. If the red-rim melania were introduced
into Willow Spring, it could outcompete and eliminate the Chupadera
springsnail.
None of these nonnative species is known to occur in the habitats
of the Chupadera springsnail at this time, and so potential impacts
have not been realized. While any of these species, or others, could
threaten the Chupadera springsnail if they were introduced to the small
habitats of the species, nonnative species are not considered a current
threat to the Chupadera springsnail.
Climate Change
According to the Intergovernmental Panel on Climate Change (IPCC
2007, p. 5), ``[w]arming of the climate system is unequivocal, as is
now evident from observations of increases in global average air and
ocean temperatures, widespread melting of snow and ice, and rising
global average sea level.'' The average Northern Hemisphere
temperatures during the second half of the 20th century were very
likely higher than during any other 50-year period in the last 500
years and likely the highest in at least the past 1,300 years (IPCC
2007, p. 5). It is very likely that over the past 50 years, cold days,
cold nights, and frosts have become less frequent over most land areas,
and hot days and hot nights have become more frequent (IPCC 2007, p.
8). Data suggest that heat waves are occurring more often over most
land areas, and the frequency of heavy precipitation events has
increased over most areas (IPCC 2007, pp. 8, 15).
The IPCC (2007, pp. 12, 13) predicts that changes in the global
climate system during the 21st century will very likely be larger than
those observed during the 20th century. For the next two decades, a
warming of about 0.2 [deg]C (0.4 [deg]F) per decade is projected (IPCC
2007, p. 12). Afterwards, temperature projections increasingly depend
on specific emission scenarios (IPCC 2007, p. 13). Various emissions
scenarios suggest that by the end of the 21st century, average global
temperatures are expected to increase 0.6 [deg]C to 4.0 [deg]C (1.1
[deg]F to 7.2 [deg]F), with the greatest warming expected over land
(IPCC 2007, p. 15). However, the growth rate of carbon dioxide
emissions continues to accelerate and is above even the most fossil
fuel intensive scenario used by the IPCC (Canadell et al. 2007, p.
18866; Global Carbon Project 2008, p. 1), suggesting that the effects
of climate change may be even greater than those projected by the IPCC.
In consultation with leading scientists from the Southwest, the New
Mexico Office of the State Engineer prepared a report for the Governor
of New Mexico (NMOSE 2006), which made the following observations about
the impact of climate change in New Mexico:
(1) Warming trends in the American Southwest exceed global averages
by about 50 percent (p. 5);
(2) Models suggest that even moderate increases in precipitation
would not offset the negative impacts to the water supply caused by
increased temperature (p. 5);
(3) Temperature increases in the Southwest are predicted to
continue to be greater than the global average (p. 5); and
(4) The intensity, frequency, and duration of drought may increase
(p. 7).
One of the primary effects of climate change on the Chupadera
springsnail is likely to be associated with groundwater availability
that supports the spring flows in its habitat. There is high confidence
that many semiarid areas like the western United States will suffer a
decrease in water resources due to climate change (Kundzewicz et al.
2007, p. 175). Consistent with the outlook presented for New Mexico,
Hoerling (2007, p. 35) reports that
[[Page 41095]]
modeling indicates that a 25 percent decline in stream flow will occur
from 2006 to 2030, and a 45 percent decline will occur from 2035 to
2060 in the Southwest, compared to stream flows between 1990 and 2005.
Milly et al. (2005, p. 349) project a 10 to 30 percent decrease in
runoff in mid-latitude western North America by the year 2050, based on
an ensemble of 12 climate models. Solomon et al. (2009, p. 1707)
predict precipitation amounts in the southwestern United States and
northern Mexico will decrease by as much as 9 to 12 percent (measured
as percentage of change in precipitation per degree of warming,
relative to 1900 to 1950 as the baseline period). Christensen et al.
(2007, p. 888) state, ``The projection of smaller warming over the
Pacific Ocean than over the continent * * * is likely to induce a
decrease in annual precipitation in the southwestern USA and northern
Mexico.'' In addition, Seager et al. (2007, p. 1181) show that there is
a broad consensus among climate models that the Southwest will get
drier in the 21st century and that the transition to a more arid
climate is already under way. Only one of 19 models has a trend toward
a wetter climate in the Southwest (Seager et al. 2007, p. 1181). A
total of 49 projections were created using the 19 models, and all but
three predicted a shift to increasing aridity (dryness) in the
Southwest as early as 2021 to 2040 (Seager et al. 2007, p. 1181). These
research results indicate that the Southwest can be expected to be
hotter and drier in the future, likely negatively affecting the water
resources, including spring ecosystems such as Willow Spring.
It is anticipated that the effects of climate change will also lead
to greater human demands on scarce water sources while at the same time
leading to decreasing water availability because of increased
evapotranspiration (water drawn up by plants from the soil that
evaporates from their leaves), reduced soil moisture, and longer,
hotter summers (Archer and Predick 2008, p. 25; Karl et al. 2009, pp.
47, 52). Climate change will likely reduce groundwater recharge through
reduced snowpack and perhaps through increased severity in drought
(Kundzewicz et al. 2007, p. 175; Stonestrom and Harrill 2008, p. 21).
There is currently no information to quantify the likely effects of
climate change on the groundwater system that supports the springs
where the Chupadera springsnail occurs. However, in a study of the
Ogallala aquifer, a much larger aquifer east of Willow Spring,
Rosenberg et al. (1999, p. 688) found that groundwater recharge will be
reduced in the face of climate change. They also found that Ogallala
aquifer water levels have been directly correlated with annual
precipitation over time (Rosenberg et al. 1999, p. 679) and concluded
that changes in climate could profoundly affect the accessibility and
reliability of water supplies from the aquifer. We anticipate that the
aquifer that supplies water to Chupadera springsnail habitat may also
be susceptible to climate change-induced changes in precipitation.
In summary, the Chupadera springsnail could be affected by the
combined effects of global and regional climate change, along with the
increased probability of long-term drought. However, we are not able to
predict with certainty how these indirect effects of climate change
will affect Chupadera springsnail habitat because we lack specific
information on the groundwater system that provides water to the
species' spring habitat. However, we conclude that climate change may
be a significant stressor that indirectly exacerbates existing threats
by increasing the likelihood of prolonged drought that would reduce
groundwater availability and incur future habitat loss. As such,
climate change, in and of itself, may affect the springsnail, but the
severity and immediacy (when the impacts occur) of the impacts remain
uncertain. We conclude that climate change is not currently a threat to
the Chupadera springsnail, but it has the potential to be a threat in
the foreseeable future, and impacts from climate change in the future
will likely exacerbate the current and ongoing threat of habitat loss
caused by other factors, as discussed above.
Summary of Factor E
The Chupadera springsnail is not currently threatened by other
natural or manmade factors. However, any future introduction of harmful
nonnative species could have severe effects on the species. In
addition, the effects of climate change, while difficult to quantify at
this time, are likely to exacerbate the current and ongoing threat of
habitat loss caused by other factors, particularly the loss of spring
flows resulting from prolonged drought.
Determination
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Chupadera springsnail and have determined that the species
warrants listing as endangered throughout its range. The loss of one of
two known populations, the ongoing threat of modification of the
habitat at the only known remaining site (Willow Spring) from grazing
and spring modification, and the imminent threat of groundwater
depletion posed by subdivision development adjacent to the spring
places this species at great risk of extinction. The small, reduced
distribution of the Chupadera springsnail heightens the danger of
extinction due to threats from Factor A (specifically loss of spring
flow, livestock grazing, and spring modification). Additionally, the
existing regulatory mechanisms are not adequate to ameliorate known
threats (Factor D). The existing threats are exacerbated by the effects
of ongoing and future climate change, primarily due to the projected
increase in droughts. Because these threats are ongoing now or are
imminent, and their potential impacts to the species would be
catastrophic given the very limited range of the species, we find that
a designation of endangered, rather than threatened, is appropriate.
The Act defines an endangered species as ``any species which is in
danger of extinction throughout all or a significant portion of its
range.'' In considering ``significant portion of the range,'' a key
part of this analysis in practice is whether the threats are
geographically concentrated in some way. If the threats to the species
are essentially uniform throughout its range, no portion is likely to
warrant further consideration. Based on the threats to the Chupadera
springsnail throughout its entire limited range (one spring), we find
that the species is in danger of extinction throughout all of its
range, based on the immediacy, severity, and scope of the threats
described above. The species is designated as endangered, rather than
threatened, because the threats are occurring now or are imminent, and
their potential impacts to the species would be catastrophic given the
very limited range of the species, making the Chupadera springsnail at
risk of extinction at the present time. Because threats extend
throughout its entire range, it is unnecessary to determine if it is in
danger of extinction throughout a significant portion of its range.
Therefore, on the basis of the best available scientific and commercial
information, we designate the Chupadera springsnail as endangered
throughout its range in accordance with sections 3(6) and 4(a)(1) of
the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
[[Page 41096]]
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and requires that recovery actions be carried out for all listed
species. The protection measures required of Federal agencies and the
prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed, preparation of a draft and final
recovery plan, and revisions to the plan as significant new information
becomes available. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species,
measurable criteria that determine when a species may be downlisted or
delisted, and methods for monitoring recovery progress. Recovery plans
also establish a framework for agencies to coordinate their recovery
efforts and provide estimates of the cost of implementing recovery
tasks. Recovery teams (comprised of species experts, Federal and State
agencies, nongovernment organizations, and stakeholders) are often
established to develop recovery plans. When completed, the recovery
outline, draft recovery plan, and the final recovery plan will be
available from our Web site (http://www.fws.gov/endangered), or from
our New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, nongovernmental organizations, businesses, and
private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private and State lands.
Once this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of New Mexico would be
eligible for Federal funds to implement management actions that promote
the protection and recovery of the Chupadera springsnail. Information
on our grant programs that are available to aid species recovery can be
found at: http://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for this species. Additionally, we invite you to
submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. Once a species is
subsequently listed, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of the species or destroy
or adversely modify its critical habitat. If a Federal action may
adversely affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with the
Service. For the Chupadera springsnail, Federal agency actions that may
require consultation would include any federally funded activities in
the Willow Spring watershed, groundwater source area, or directly in
the spring that may affect Willow Spring or the Chupadera springsnail
(for example, activities that require a permit from the U.S. Army Corps
of Engineers pursuant to section 404 of the Clean Water Act (33 U.S.C.
1251 et seq.)).
Jeopardy Standard
Prior to and following listing and designation of critical habitat,
if prudent and determinable, the Service applies an analytical
framework for jeopardy analyses that relies heavily on the importance
of core area populations to the survival and recovery of the species.
The section 7(a)(2) analysis is focused not only on these populations
but also on the habitat conditions necessary to support them. The
jeopardy analysis usually expresses the survival and recovery needs of
the species in a qualitative fashion without making distinctions
between what is necessary for survival and what is necessary for
recovery. Generally, if a proposed Federal action is incompatible with
the viability of the affected core area population(s), inclusive of
associated habitat conditions, a jeopardy finding is considered to be
warranted, because of the relationship of each core area population to
the survival and recovery of the species as a whole.
Section 9 Take
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered
wildlife, in part, make it illegal for any person subject to the
jurisdiction of the United States to take (includes harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to
attempt any of these), import, export, ship in interstate commerce in
the course of commercial activity, or sell or offer for sale in
interstate or foreign commerce any listed species. It is also illegal
to possess, sell, deliver, carry, transport, or ship any such wildlife
that has been taken illegally. Certain exceptions apply to agents of
the Service and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered or threatened wildlife species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.22 for
[[Page 41097]]
endangered species. With regard to endangered wildlife, a permit must
be issued for the following purposes: For scientific purposes, to
enhance the propagation or survival of the species, and for incidental
take in connection with otherwise lawful activities.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that will or will not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of listed species. The
following activities could potentially result in a violation of section
9 of the Act; this list is not comprehensive:
(1) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of the species, including import
or export across State lines and international boundaries, except for
properly documented antique specimens of these taxa at least 100 years
old, as defined by section 10(h)(1) of the Act;
(2) Introduction of nonnative species that compete with or prey
upon the Chupadera springsnail, such as the introduction of competing,
nonnative species to the State of New Mexico;
(3) The unauthorized release of biological control agents that
attack any life stage of this species;
(4) Unauthorized modification of the springs; and
(5) Unauthorized discharge of chemicals or fill material into any
waters in which the Chupadera springsnail is known to occur.
Questions regarding whether specific activities constitute a
violation of section 9 of the Act should be directed to the New Mexico
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Critical Habitat
Background
It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for the Chupadera
springsnail in this section of the final rule.
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 seeks or 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) would apply, but even in the event of a destruction or adverse
modification finding, the obligation of the Federal action agency and
the landowner is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time it was listed
must contain physical and biological features essential to the
conservation of the species and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical and biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat), focusing on the principal
biological or physical constituent elements (primary constituent
elements) within an area that are essential to the conservation of the
species (such as roost sites, nesting grounds, seasonal wetlands, water
quality, tide, soil type). Primary constituent elements are the
elements of physical and biological features that, when laid out in the
appropriate quantity and spatial arrangement to provide for a species'
life-history processes, are essential to the conservation of the
species.
Under the Act and regulations at 50 CFR 424.12, 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. 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. When the best
available scientific data do not demonstrate that the conservation
needs of the species require such additional areas, we will not
designate critical habitat in areas outside the geographical area
occupied by the species. An area currently occupied by the species but
that was not occupied at the time of listing may, however, be essential
to the conservation of the species and may be included in the critical
habitat designation.
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.
[[Page 41098]]
When we determine 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, or other unpublished materials and expert opinion or
personal knowledge.
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 required 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) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time the species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(1)) state that the designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) The species is threatened by taking or other
human activity, and identification of critical habitat can be expected
to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
There is no documentation that the Chupadera springsnail is
threatened by collection, and it is unlikely to experience increased
threats by identifying critical habitat. In the absence of a finding
that the designation of critical habitat would increase threats to a
species, if there are any benefits to a critical habitat designation,
then a prudent finding is warranted. The potential benefits 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, an area has become unoccupied or
the occupancy is in question; (2) focusing conservation activities on
the most essential features and areas; (3) providing educational
benefits to State or county governments or private entities; and (4)
preventing people from causing inadvertent harm to the species.
The primary regulatory effect of critical habitat is the section
7(a)(2) requirement that Federal agencies refrain from taking any
action that destroys or adversely modifies critical habitat. Lands
designated as critical habitat that are subject to Federal actions may
trigger the section 7 consultation requirements. There may also be some
educational or informational benefits to the designation of critical
habitat. Educational benefits include the notification of the general
public of the importance of protecting habitat.
At present, the only known extant population of the Chupadera
springsnail occurs on private lands in the United States. The species
currently is not known to occur on Federal lands or lands under Federal
jurisdiction. However, lands designated as critical habitat, whether or
not under Federal jurisdiction, may be subject to Federal actions that
trigger the section 7 consultation requirement, such as the granting of
Federal monies or Federal permits.
We reviewed the available information pertaining to habitat
characteristics where this species is located. This and other
information represent the best scientific data available and led us to
conclude that the designation of critical habitat is prudent for the
Chupadera springsnail because, as discussed above, there is no
information to indicate that identification of critical habitat will
result in increased threats to the species, and information indicates
that designation of critical habitat will be beneficial to the species.
Critical Habitat Determinability
As stated above, section 4(a)(3) of the Act requires the
designation of critical habitat concurrently with the species' listing
``to the maximum extent prudent and determinable.'' Our regulations at
50 CFR 424.12(a)(2) state that critical habitat is not determinable
when one or both of the following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act provides for an
additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available, and the available information is sufficient for us to
identify areas to designate as critical habitat. Therefore, we conclude
that the designation of critical habitat is determinable for the
Chupadera springsnail.
Physical and Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
the regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied at the time of listing to designate as
critical habitat, we consider the physical and biological features
essential to the conservation of the species 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 historic, geographical, and ecological
distributions of a species.
We consider the specific physical and biological features essential
to the
[[Page 41099]]
conservation of the species and laid out in the appropriate quantity
and spatial arrangement for the conservation of the species. We derive
the specific physical and biological features for the Chupadera
springsnail from the biological needs of this species as described
above (see Species Information).
Based on the needs and our current knowledge of the life history,
biology, and ecology of the species and the habitat requirements for
sustaining the essential life-history functions of the species, we have
determined that the Chupadera springsnail requires the following
physical and biological features:
Space for Individual and Population Growth and for Normal Behavior
The Chupadera springsnail occurs where water emerges from the
ground as a free-flowing spring and springbrook. Within the spring
ecosystem, proximity to the springhead is important because of the
appropriate stable water chemistry and temperature, substrate, and flow
regime. The Chupadera springsnail occurs in one spring in an open
foothill meadow at 1,620 m (5,315 ft) elevation. The species has been
found in the springhead and springbrook. Historically, it was also
found at an unnamed spring 0.5 km (0.3 mi) from this location.
Therefore, based on the information above, we identify unpolluted
spring water (free from contamination) emerging from the ground and
flowing on the surface as a physical and biological feature for the
Chupadera springsnail.
Food, Water, Air, Light, or Other Nutritional or Physiological
Requirements
Taylor (1987, p. 26) found Chupadera springsnails on pebbles and
cobbles interspersed with sand, mud, and aquatic plants. Individuals
were abundant in flowing water on stones, dead wood, and among
vegetation on firm surfaces that had an organic film (periphyton).
Chupadera springsnail was not found in the impoundment created by
damming the springbrook (Taylor 1987, p. 26). From data collected in
1997 and 1998, Lang (2009, p. 1) determined the springsnails were found
in water velocities that ranged from 0.01 to 0.19 m/s (0.03 to 0.6 ft/
s).
Chupadera springsnails consume periphyton on submerged surfaces.
Spring ecosystems occupied by Chupadera springsnails must support the
periphyton upon which springsnails graze. Therefore, based on the
information above, we identify periphyton (an assemblage of algae,
bacteria, and microbes) and decaying organic material as a physical and
biological feature for the Chupadera springsnail.
Sites for Breeding, Reproduction, and Rearing of Offspring
Substrate characteristics influence the productivity of the
springsnails. Suitable substrates are typically firm, characterized by
cobble, gravel, sand, woody debris, and aquatic vegetation such as
watercress. Suitable substrates increase productivity by providing
suitable egg-laying sites and providing food resources. Therefore,
based on the information above, we identify substrates that include
cobble, gravel, pebble, sand, silt, and aquatic vegetation, for egg
laying, maturing, feeding, and escape from predators as a physical and
biological feature for the Chupadera springsnail.
Habitats Protected From Disturbance or Representative of the
Historical, Geographical, and Ecological Distributions of the Species
The Chupadera springsnail has a restricted geographic distribution.
Endemic species 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 the spring systems upon which the Chupadera springsnail
depends. This means protection from disturbance caused by exposure to
cattle grazing, water contamination, water depletion, springhead
alteration, or nonnative species. The Chupadera springsnail must, at a
minimum, sustain its current distribution for the one remaining
population to remain viable.
As discussed above (see Factor E. Other Natural or Manmade Factors
Affecting Its Continued Existence), introduced species are a serious
threat to native aquatic species (Williams et al. 1989, p. 18; Lodge et
al. 2000, p. 7). Because the distribution of the Chupadera springsnail
is so limited, and its habitat so restricted, introduction of certain
nonnative species into its habitat could be devastating. Potentially
harmful nonnative species include saltcedar, common reed, Russian
thistle, and the red-rim melania. Therefore, based on the information
above, we identify nonnative species either absent or present at low
population levels as a physical and biological feature for the
Chupadera springsnail.
Primary Constituent Elements for the Chupadera Springsnail
Under the Act and its implementing regulations, we are required to
identify the physical and biological features essential to the
conservation of Chupadera springsnail in areas occupied at the time of
listing, focusing on the features' primary constituent elements. We
consider primary constituent elements to be the elements of physical
and biological features that are essential to the conservation of the
species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to Chupadera springsnail are springheads,
springbrooks, seeps, ponds, and seasonally wetted meadows containing:
(1) Unpolluted spring water (free from contamination) emerging from
the ground and flowing on the surface;
(2) Periphyton (an assemblage of algae, bacteria, and microbes) and
decaying organic material for food;
(3) Substrates that include cobble, gravel, pebble, sand, silt, and
aquatic vegetation, for egg laying, maturing, feeding, and escape from
predators; and
(4) Nonnative species either absent or present at low population
levels.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. Threats to the physical and biological features essential
to the conservation of the Chupadera springsnail include loss of spring
flows due to groundwater pumping and drought, inundation of springheads
due to pond creation, degradation of water quality and habitat due to
livestock grazing or other alteration of water chemistry, and the
introduction of nonnative species. A more complete discussion of the
threats to the Chupadera springsnail and its habitats can be found in
``Summary of Factors Affecting the Species'' above.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
We review all available information pertaining to the habitat
[[Page 41100]]
requirements of the species. As part of our review, in accordance with
the Act and its implementing regulation at 50 CFR 424.12(e), we
consider whether designating areas outside those currently occupied, as
well as those occupied at the time of listing, are necessary to ensure
the conservation of the species. We designate areas outside the
geographical area occupied by a species at the time of listing only
when a designation limited to its present range would be inadequate to
ensure the conservation of the species.
For the purpose of designating critical habitat for Chupadera
springsnail, we define the occupied area based on the most recent
surveys available, which are from 1999. There is only one area
currently occupied. We then evaluated whether this area contains the
primary constituent elements for the Chupadera springsnail and whether
they require special management. Next we considered areas historically
occupied, but not currently occupied. There is only one area where the
Chupadera springsnail historically occurred but is not currently
occupied. We evaluated this area to determine whether it was essential
for the conservation of the species.
To determine if the one currently occupied area (Willow Spring)
contains the primary constituent elements, we assessed the life-history
components of the Chupadera springsnail as they relate to habitat. The
springsnail requires unpolluted spring water in the springheads and
springbrooks; periphyton and decaying organic material for food; rock-
derived substrates for egg laying, maturation, feeding, and escape from
predators; and absence of nonnative species.
To determine if the one site historically occupied by the Chupadera
springsnail (unnamed spring) is essential for the conservation of the
Chupadera springsnail, we considered: (1) The importance of the site to
the overall status of the species to prevent extinction and contribute
to future recovery of the Chupadera springsnail; (2) whether the area
could be restored to contain the necessary physical and biological
features to support the Chupadera springsnail; and (3) whether a
population of the species could be reestablished at the site.
We plotted the known occurrences of the Chupadera springsnail in
springheads and springbrooks on 2007 U.S. Geological Survey (USGS)
Digital Ortho Quarter Quad maps using ArcMap (Environmental Systems
Research Institute, Inc.), a computer geographic information system
(GIS) program. There are no known developed areas such as buildings,
paved areas, and other structures that lack the biological features for
the springsnail within the designated critical habitat areas.
In summary, we are designating critical habitat in areas that we
determined are occupied at the time of listing and contain sufficient
primary constituent elements to support life-history functions
essential to the conservation of the species and require special
management, and areas outside the geographical area occupied at the
time of listing that we determine are essential for the conservation of
Chupadera springsnail.
Final Critical Habitat Designation
We are designating two units of critical habitat for the Chupadera
springsnail. The critical habitat areas we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for Chupadera springsnail. The two areas we designate
as critical habitat are: (1) Willow Spring, which is currently (at the
time of listing) occupied and contains the primary constituent
elements; and (2) unnamed spring, which is not currently (at the time
of listing) occupied but is determined to be essential for the
conservation of the species. The approximate area and land ownership of
each critical habitat unit is shown in Table 1.
Table 1--Ownership and Approximate Area of Critical Habitat Units for
Chupadera Springsnail
------------------------------------------------------------------------
Estimated
size of
Critical habitat unit Land ownership by unit in
type hectares
(acres)
------------------------------------------------------------------------
1. Willow Spring Unit............... Private.............. 0.5 (1.4)
2. Unnamed Spring Unit.............. Private.............. 0.2 (0.5)
------------
Total........................... ..................... 0.7 (1.9)
------------------------------------------------------------------------
We present below brief descriptions of the units and reasons why
they meet the definition of critical habitat for Chupadera springsnail.
Unit 1: Willow Spring Unit
Unit 1 consists of approximately 0.5 ha (1.4 ac) in Socorro County,
New Mexico. When last visited in 1999, the Willow Spring Unit was a wet
meadow with a springbrook that runs approximately 38 m (125 ft) before
being impounded by a berm that crosses the meadow. The entire unit is
in private ownership. We are designating a single critical habitat unit
that encompasses Willow Spring and includes the springhead,
springbrook, small seeps and ponds, and the seasonally wetted meadow
associated with the spring downstream to the artificial berm. This
spring is located within the drainage of the Rio Grande, approximately
2.7 km (1.7 mi) west of Interstate Highway 25.
The Willow Spring site has documented occupancy of Chupadera
springsnail from 1979 to 1999 (Taylor 1987 p. 24; NMDGF 2004, p. 45).
Based on observations in 2011 provided by the landowner (Highland
Springs, LLC 2011, p. 3), we presume the species persists at Willow
Spring. The Willow Spring Unit contains all the primary constituent
elements to support all of the Chupadera springsnail's life processes.
Threats to the primary constituent elements in this unit that may
require special management include the effects of livestock grazing,
groundwater depletion, springhead or springbrook modification, water
contamination, and potential effects from nonnative species.
Unit 2: Unnamed Spring Unit
Unit 2 consists of approximately 0.2 ha (0.5 ac) in Socorro County,
New Mexico. The entire unit is privately owned. We are designating a
single critical habitat unit that encompasses the unnamed spring and
includes the springhead, springbrook, small seeps and ponds, and the
seasonally wetted meadow associated with the spring. This spring is
located within the drainage of the Rio Grande, approximately 2.7 km
(1.7 mi) west of Interstate Highway 25, and about 0.5 km (0.3 mi) north
of Willow Spring.
The Unnamed Spring Unit is currently unoccupied by the Chupadera
springsnail, but it was historically occupied (Stefferud 1986, p. 1;
Taylor 1987, p. 24; Lang 1998, p. 36). The spring appears to share a
common aquifer and similarities in water chemistry, temperature, and
hydrology with Willow Spring. When developing conservation strategies
for species whose life histories are characterized by short generation
time, small body size, high rates of population increase, and high
habitat specificity, it is important to maintain multiple populations
as opposed to protecting a single population (Murphy et al. 1990, pp.
41-51). Having replicate populations is a recognized conservation
strategy to protect species from extinction due to catastrophic events
(Soule 1985, p. 731). This area is important to prevent extinction of
the Chupadera springsnail. Some habitat restoration work may be needed
before Chupadera springsnail
[[Page 41101]]
could be reintroduced to the Unnamed Spring Unit; however, creating a
second population is important for the long-term persistence of the
species. The Unnamed Spring Unit is essential for the conservation of
the species because it is a site where the Chupadera springsnail can be
reintroduced.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the courts of appeals for the Fifth and Ninth Circuits have
invalidated our definition of ``destruction or adverse modification''
(50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and
Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v.
U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir.
2001)), and we do not rely on this regulatory definition when analyzing
whether an action is likely to destroy or adversely modify critical
habitat. Under the statutory provisions of the Act, we determine
destruction or adverse modification on the basis of whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain those physical and
biological features that relate to the ability of the area to
periodically support the species) to serve its intended conservation
role for the species.
If a species is listed or critical habitat is designated, 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 the species or to destroy or adversely modify
its critical habitat. 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. As a result of this 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 or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or 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.
Application of the ``Adverse Modification'' Standard
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical and
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Chupadera springsnail. As
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, will result in consultation
for the Chupadera springsnail. These activities include, but are not
limited to:
(1) Actions that would reduce the quantity of water flow within the
spring systems designated as critical habitat.
(2) Actions that would modify the springheads within the spring
systems designated as critical habitat.
(3) Actions that would degrade water quality within the spring
systems designated as critical habitat.
(4) Actions that would reduce the availability of coarse, firm
aquatic substrates within the spring systems designated as critical
habitat.
(5) Actions that would reduce the occurrence of native aquatic
algae or periphyton or both within the spring systems designated as
critical habitat.
(6) Actions that would introduce, promote, or maintain nonnative
species within the spring systems designated as critical habitat.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan by November
17, 2001. This plan integrates implementation of the military mission
of the installation with stewardship of the natural resources found on
the base.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other 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 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, and, therefore, there are no exemptions under
section 4(a)(3) of the Act.
[[Page 41102]]
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis, which
we made available for public review on January 20, 2012 (77 FR 2943),
based on the proposed rule published on August 2, 2011 (76 FR 46218).
We accepted comments on the draft economic analysis until February 21,
2012. Following the close of the comment period, a final analysis of
the potential economic effects of the designation was completed in
April 2011, taking into consideration the public comments and any new
information. No comments were received during the final comment period
(77 FR 25668; May 1, 2012).
The intent of the final economic analysis is to identify and
analyze the potential economic impacts associated with the critical
habitat designation for the Chupadera springsnail. The final economic
analysis describes the economic impacts of all potential conservation
efforts for the Chupadera springsnail; some of these costs will likely
be incurred regardless of whether we designate critical habitat. The
economic impact of the final critical habitat designation is analyzed
by comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat, above and beyond the baseline costs; these are the
costs we consider in the final designation of critical habitat when
evaluating the benefits of excluding particular areas under section
4(b)(2) of the Act. The analysis looks at baseline impacts incurred
from the listing of the species and forecasts both baseline and
incremental impacts likely to occur with the designation of critical
habitat. For a further description of the methodology of the analysis,
see the ``Framework for the Analysis'' section of the final economic
analysis.
The final economic analysis provides estimated costs of the
foreseeable potential economic impacts of the final critical habitat
designation for the Chupadera springsnail. It identifies potential
incremental costs as a result of the final critical habitat
designation; these are those costs attributed to critical habitat over
and above those baseline costs attributed to listing. The final
economic analysis quantifies economic impacts of Chupadera springsnail
conservation efforts associated with residential development and ranch
activities.
Existing and planned subdivision development in the area can lead
to groundwater depletion, threatening the springsnail and its habitat
by reducing water flow at the spring that supports the species.
Residential activities can also lead to modification of the area around
the springhead and springbrook, causing habitat degradation through
inundation and changes in water flow and chemistry. However, a Federal
nexus consultation under section 7 of the Act is unlikely to exist, as
each parcel will have its own groundwater well, which is regulated by
the New Mexico Office of the State Engineer with no Federal
involvement. Unit 1 is not slated for development; therefore, it is
unlikely the landowners will apply for a permit under section 404 of
the Clean Water Act. We are unaware of the plans for Unit 2, but we
believe that any development would avoid the spring and therefore avoid
the need for a section 404 permit. Because there are no foreseeable
activities with a Federal nexus, the draft economic analysis found no
economic impact of the designation of critical habitat beyond a
possible ``stigma effect'' to land values. This stigma effect arises
from the perception of landowners that designation of critical habitat
may impede future land development and, therefore, depress land values.
Our economic analysis was unable to quantify the economic value of any
possible stigma effects.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exerting his discretion to exclude any areas from this
designation of critical habitat for the Chupadera springsnail based on
economic impacts. A copy of the final economic analysis with supporting
documents may be obtained by contacting the New Mexico Ecological
Services Field Office (see ADDRESSES) or for 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 the lands within the designation of critical habitat
for the Chupadera springsnail are not owned or managed by the
Department of Defense, and therefore, anticipate no impact to national
security, and the Secretary is not exerting his discretion to exclude
any areas from this final designation based on impacts on national
security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We
[[Page 41103]]
consider a number of factors including whether the landowners have
developed any HCPs or other management plans for the area, or whether
there are conservation partnerships that would be encouraged by
designation of, or exclusion from, critical habitat. In addition, we
look at any Tribal issues, and consider the government-to-government
relationship of the United States with Tribal entities. We also
consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans for the Chupadera
springsnail, and the final designation does not include any Tribal
lands or trust resources. We anticipate no impact to Tribal lands,
partnerships, or HCPs from this critical habitat designation. In
addition, we considered other relevant impacts during preparation of
the environmental assessment pursuant to the National Environmental
Policy Act (42 U.S.C. 4321 et seq.) (see Required Determinations,
National Environmental Policy Act (NEPA) below) and found no other
significant impacts that would warrant our consideration for excluding
any areas from critical habitat designation. Accordingly, the Secretary
is not exercising his discretion to exclude any areas from this final
designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act 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. Based on our final economic analysis of the
critical habitat designation, we provide our analysis for determining
whether the final rule will result in 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.
To determine if the designation of critical habitat for the
Chupadera springsnail will affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as residential
development and ranch activities. In order to determine whether it is
appropriate for our agency to certify that this final rule will not
have a significant economic impact on a substantial number of small
entities, we considered each industry or category individually. In
estimating the numbers of small entities potentially affected, we also
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 Chupadera springsnail is present,
Federal agencies will be, as of the effective date of this rule (see
DATES), required to consult with us under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
Consultations to avoid the destruction or adverse modification of
critical habitat will be incorporated into the consultation process.
In the final economic analysis, we evaluated the potential economic
effects on small entities resulting from implementation of conservation
actions related to the designation of critical habitat for the
Chupadera springsnail. Information in the final economic analysis and
final environmental assessment indicates the critical habitat
designation will have no effect on any small entities. Please refer to
the final economic analysis of the final critical habitat designation
for a more detailed discussion of potential economic impacts.
In summary, we have considered whether the final designation will
result in a significant economic impact on a substantial number of
small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. We have
identified no small entity that may be impacted by the final critical
habitat designation. For this reason, and based on currently available
information, we certify that the final critical habitat designation
will not have a significant economic impact on a substantial number of
small business entities. Therefore, an initial regulatory flexibility
analysis is not required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et
seq.)
Under SBREFA, this rule is not a major rule. Our detailed
assessment of
[[Page 41104]]
the economic effects of this designation is described in the final
economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an annual effect on
the economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. Refer to the final economic analysis for a
discussion of the effects of this determination.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued Executive Order 13211 (E.O.
13211; ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'') on regulations that
significantly affect energy supply, distribution, and use. E.O. 13211
requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. OMB has provided guidance for implementing
this Executive Order that outlines nine outcomes that may constitute
``a significant adverse effect'' when compared to not taking the
regulatory action under consideration. The economic analysis finds that
none of these criteria are relevant to this analysis. Thus, based on
information in the economic analysis, energy-related impacts associated
with Chupadera springsnail 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
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) 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 [T]ribal 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.
(b) We do not expect this rule to significantly or uniquely affect
small governments because the critical habitat designation is on
private land. Small governments will be affected only to the extent
that any programs having Federal funds, permits, or other authorized
activities must ensure that their actions will not adversely affect the
critical habitat. Therefore, we do not believe a Small Government
Agency Plan is required.
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 Chupadera springsnail in a takings
implications assessment. Critical habitat designation does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. The takings implications
assessment concludes that this designation of critical habitat for the
Chupadera springsnail does not pose significant takings implications
for lands within or affected by the designation.
Federalism
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism impact summary statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of, this critical habitat designation with
appropriate State resource agencies in New Mexico. We received comments
from the New Mexico Department of Game and Fish and have addressed them
in the Summary of Comments and Recommendations section of this rule.
The designation of critical habitat in areas currently occupied by the
Chupadera springsnail imposes no additional restrictions to those that
will be put in place on the effective date of this rule (see DATES)
and, therefore, has little incremental impact on State and local
governments and their activities. The designation may have some benefit
to these governments in that the areas that contain the physical and
biological 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 local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
[[Page 41105]]
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), this rule
meets the applicable standards set forth in sections 3(a) and 3(b)(2)
of the executive order. We are designating critical habitat in
accordance with the provisions of the Act. This final rule uses
standard property descriptions and identifies the physical and
biological features essential to the conservation of the subspecies
within the designated areas to assist the public in understanding the
habitat needs of the Chupadera springsnail.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget 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 (NEPA)
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 (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, because the range of the Chupadera springsnail
is in a State within the Tenth Circuit under the ruling in Catron
County Board of Commissioners v. U.S. Fish and Wildlife Service, 75
F.3d 1429 (10th Cir. 1996), we prepared a draft environmental
assessment. We made the draft environmental assessment available for
public review on January 20, 2012 (77 FR 2943) and accepted comments on
the draft environmental assessment until February 21, 2012, and again
between May 1, 2012, and May 16, 2012 (77 FR 25668). Following the
close of the final comment period, a final environmental assessment of
the potential environmental consequences associated with the proposed
critical habitat designation for the Chupadera springsnail was
completed. The final environmental assessment found that designating
critical habitat for the Chupadera springsnail within the two units
will not have significant impacts to the human environment and finding
of no significant impact was made.
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), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act,'' we readily acknowledge our responsibilities to work
directly with Tribes in developing programs for healthy ecosystems, to
acknowledge that tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes. We determined that there are no
Tribal lands occupied at the time of listing that contain the features
essential for the conservation, and no unoccupied Tribal lands that are
essential for the conservation of the Chupadera springsnail. Therefore,
we are not designating critical habitat for the Chupadera springsnail
on Tribal lands.
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 notice are the staff members of the New
Mexico Ecological Services Field Office, Southwest Region, U.S. Fish
and Wildlife Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Springsnail,
Chupadera'' to the List of Endangered and Threatened Wildlife in
alphabetical order under SNAILS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------------ population
where Critical Special
Historic range endangered Status When listed habitat rules
Common name Scientific name or
threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Snails
* * * * * * *
Springsnail, Chupadera............. Pyrgulopsis chupaderae U.S.A. (NM).......... NA E ........... 17.95(f) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 41106]]
0
3. In Sec. 17.95, amend paragraph (f) by adding an entry for
``Chupadera Springsnail (Pyrgulopsis chupaderae)'' in the same
alphabetical order that the species appears in the table at Sec.
17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Chupadera Springsnail (Pyrgulopsis chupaderae)
(1) Critical habitat units are depicted for Socorro County, New
Mexico, on the map below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
Chupadera springsnail consist of springheads, springbrooks, seeps,
ponds, and seasonally wetted meadows containing:
(i) Unpolluted spring water (free from contamination) emerging from
the ground and flowing on the surface;
(ii) Periphyton (an assemblage of algae, bacteria, and microbes)
and decaying organic material for food;
(iii) Substrates that include cobble, gravel, pebble, sand, silt,
and aquatic vegetation, for egg laying, maturing, feeding, and escape
from predators; and
(iv) Nonnative species either absent or present at low population
levels.
(3) Critical habitat does not include manmade structures (such as
buildings, roads, and other paved areas, and the land on which they are
located) existing on the effective date of this rule.
(4) Critical habitat map units were plotted on 2007 USGS Digital
Ortho Quarter UTM coordinates in ArcMap (Environmental Systems Research
Institute, Inc.), a computer GIS program
(5) Unit 1: Willow Spring, Socorro County, New Mexico.
(i) The critical habitat area includes the springhead, springbrook,
small seeps and ponds, seasonally wetted meadow, and all of the
associated spring features. This area is approximately 0.5 ha (1.4 ac)
around the following coordinates: Easting 316889, northing 3743013
(Universal Transverse Mercator Zone 13 using North American Datum of
1983).
(ii) Map of Units 1 and 2 follows:
[GRAPHIC] [TIFF OMITTED] TR12JY12.003
(6) Unit 2: Unnamed Spring, Socorro County, New Mexico.
(i) The critical habitat area includes the springhead, springbrook,
small seeps and ponds, seasonally wetted meadow, and all of the
associated spring features. This area is approximately 0.2 ha (0.5 ac)
around the following coordinates: Easting 317048, northing 3743418
(Universal Transverse Mercator Zone 13 using North American Datum of
1983).
(ii) Map of Unit 2 is provided at paragraph (5)(ii) of this entry.
* * * * *
Dated: June 19, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-16988 Filed 7-11-12; 8:45 am]
BILLING CODE 4310-55-P