[Federal Register Volume 78, Number 131 (Tuesday, July 9, 2013)]
[Rules and Regulations]
[Pages 40970-40996]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16230]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0004; 4500030113]
RIN 1018-AZ26
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Six West Texas Aquatic Invertebrates
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical
habitat for the following six west Texas aquatic invertebrate species
under the Endangered Species Act of 1973, as amended: Phantom
springsnail (Pyrgulopsis texana), Phantom tryonia (Tryonia cheatumi),
diminutive amphipod (Gammarus hyalleloides), Diamond tryonia
(Pseudotryonia adamantina), Gonzales tryonia (Tryonia circumstriata),
and Pecos amphipod (Gammarus pecos). The effect of this regulation is
to conserve critical habitat for the six west Texas aquatic
invertebrates under the Act.
DATES: This rule becomes effective August 8, 2013.
ADDRESSES: This final rule and other supplementary information are
available on the Internet at http://www.regulations.gov (Docket No.
FWS-R2-ES-2013-0004) and also at http://www.fws.gov/southwest/es/AustinTexas/. These documents are also available for public inspection,
by appointment, during normal business hours at: U.S. Fish and Wildlife
Service, Austin Ecological Services Field Office, 10711 Burnet Road,
Suite 200, Austin, TX 78758; by telephone 512-490-0057; or by facsimile
512-490-0974.
The coordinates or plot points or both from which the critical
habitat maps are generated are included in the administrative record
for this critical habitat designation and are available on the internet
at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0004, and
from the Austin Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT). Any additional tools or supporting information
that we developed for this critical habitat designation will also be
available at the Fish and Wildlife Service Web site and Field Office
set out above and at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office (see
ADDRESSES). Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
This document consists of final rules to designate critical habitat
designations for six west Texas aquatic invertebrate species. The
species are: Phantom springsnail (Pyrgulopsis texana), Phantom tryonia
(Tryonia cheatumi), diminutive amphipod (Gammarus hyalleloides),
Diamond tryonia
[[Page 40971]]
(Pseudotryonia adamantina), Gonzales tryonia (Tryonia circumstriata),
and Pecos amphipod (Gammarus pecos). The current range for the first
three species is limited to spring outflows in the San Solomon Springs
system near Balmorhea in Reeves and Jeff Davis Counties, Texas. The
current range of the latter three species is restricted to spring
outflow areas within the Diamond Y Spring system north of Fort Stockton
in Pecos County, Texas.
Why we need to publish a rule. Under the Endangered Species Act
(Act), any species that is determined to be a threatened or endangered
species requires critical habitat to be designated, to the maximum
extent prudent and determinable. Designations and revisions of critical
habitat can only be completed by issuing a rule.
We, the U.S. Fish and Wildlife Service (Service), published final
rules listing the six west Texas aquatic invertebrates as endangered
elsewhere in today's Federal Register. On August 16, 2012, we published
in the Federal Register a proposed critical habitat designation for
these species (77 FR 49602). Section 4(b)(2) of the Act states that the
Secretary shall designate critical habitat on the basis of the best
available scientific data after taking into consideration the economic
impact, the impact on national security, and any other relevant impact
of specifying any particular area as critical habitat. The critical
habitat areas we are designating in this rule constitute our current
best assessment of the areas that meet the definition of critical
habitat for these species.
These rules will designate critical habitat for all six of these
species listed as endangered under the Act. Under the Endangered
Species Act, we designate specific areas as critical habitat to foster
conservation of listed species. Future actions funded, permitted, or
otherwise carried out by Federal agencies will be reviewed to ensure
they do not adversely modify critical habitat. Critical habitat does
not affect private actions on private lands. Table 1 identifies the
areas in Texas being designated as critical habitat for Phantom
springsnail, Phantom tryonia, and diminutive amphipod.
Table 1--Location, Land Ownership, and Size of Areas Designated as
Critical Habitat for Phantom Springsnail, Phantom Tryonia, and
Diminutive Amphipod
------------------------------------------------------------------------
Size of unit in
Critical habitat unit Land ownership by type hectares
(Acres)
------------------------------------------------------------------------
San Solomon Spring, Reeves State-Texas Parks and 1.8 (4.4)
County. Wildlife Department.
Giffin Spring, Reeves County.. Private............... 0.7 (1.7)
East Sandia Spring, Reeves Private-The Nature 1.2 (3.0)
County. Conservancy.
Phantom Lake Spring, Jeff Federal-Bureau of 0.02 (0.05)
Davis County. Reclamation.
Total..................... ...................... 3.7 (9.2)
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Note: Area sizes may not sum due to rounding.
Table 2 identifies the areas in Texas being designated as critical
habitat for Diamond tryonia, Gonzales tryonia, and Pecos amphipod.
Table 2--Location, Land Ownership, and Size of Areas Designated as
Critical Habitat for Diamond Tryonia, Gonzales Tryonia, and Pecos
Amphipod
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Size of unit in
Critical habitat unit Land ownership by type hectares
(acres)
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Diamond Y Spring System, Pecos Private--The Nature 178.6 (441.4)
County. Conservancy.
Total..................... ...................... 178.6 (441.4)
------------------------------------------------------------------------
We prepared an economic analysis. To allow for consideration of the
economic impacts of the final designations of critical habitat, we
prepared an economic analysis of the final designations of critical
habitat. We found the incremental administrative economic impacts
related to consultations on the six West Texas invertebrates and their
critical habitat are expected to amount to an estimated $41,000 over 20
years ($3,600 on an annualized basis), assuming a discount rate of
seven percent.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data, assumptions, and analyses. We received comments from four
knowledgeable individuals with scientific expertise to review our
technical assumptions, analysis, and whether or not we had used the
best available information. These peer reviewers generally concurred
with our methods and conclusions and provided additional information,
clarifications, and suggestions to improve this final rule. Information
we received from peer review is incorporated in this final revised
designation. We also considered all comments and information received
during two comment periods.
Previous Federal Actions
Please see the proposed listing and critical habitat designations
published on August 16, 2012 (77 FR 49602), for a complete discussion
of the previous Federal actions for these species.
We proposed all six species be listed as endangered with critical
habitat on August 16, 2012 (77 FR 49602). We also reopened the public
comment on the proposed rules on February 5, 2013 (78 FR 8096).
Summary of Comments and Recommendations
In the proposed rules published on August 16, 2012 (77 FR 49602),
we requested that all interested parties submit written comments on the
proposals by October 15, 2012. We also contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on
[[Page 40972]]
the proposal. We reopened the comment period on February 5, 2013 (78 FR
8096), for these proposed rules and to accept additional public comment
on the draft economic analysis for the proposed designation of critical
habitat. This second comment period closed on March 22, 2013. We
received a request for a public hearing, and one was held on February
22, 2013, at Balmorhea State Park in Toyahvale, Texas. Newspaper
notices inviting general public comment were published in the Alpine
Avalanche and Fort Stockton Pioneer newspapers on February 14, 2013.
During the comment period for the proposed rule, we received 27
comments addressing the proposed listing and critical habitat for the
west Texas invertebrates. During the February 22, 2013, public hearing,
one individual made a comment on the proposed rules. All substantive
information provided during the comment periods has either been
incorporated directly into our final determinations or addressed below
in our response to comments. Elsewhere in today's Federal Register, we
have published a final rule that addresses additional comments on the
listing determination for these species.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from five knowledgeable
individuals with scientific expertise that included familiarity with
the species or their habitats, biological needs, and threats. We
received comments from four peer reviewers. The peer reviewers
generally concurred with our methods and conclusions and provided
additional information, clarifications, and suggestions to improve the
final rule. Information received from peer reviewers has been
incorporated into our final rules, and comments are addressed in our
response to comments below.
(1) Comment: The common (or vernacular) names applied to the four
species of snails are not in accord with the ``standardized'' English
names for North American mollusks as provided in Turgeon et al. (1988,
1998).
Our Response: We agree and have revised the common names of the
four snails throughout the final rules. See ``Summary of Changes from
Proposed Rule'' sections of the final rules for a list of the changes
to the common names.
State Agencies
We received a number of comments from Texas State agencies,
including the Texas Governor's Office, the Texas Parks and Wildlife
Department, the Texas Comptroller's Office, the Texas Water Development
Board, the Texas Commission on Environmental Quality, the Texas Land
Commission, and the Texas Department of Agriculture.
(2) Comment: The Texas Parks and Wildlife Department, while
indicating they strongly encourage the use of incentive-based
conservation programs for private land stewardship in Texas, indicated
they had no additional information beyond what we referenced in the
proposed rule and agreed that the most significant threat to the
species' continued survival is the potential failure of spring flow due
to unmanaged groundwater pumping thresholds, which do not consider
surface flow and wildlife needs, and prolonged drought.
Our Response: We concur with the comments and information provided.
(3) Comment: The Texas Governor's office was concerned that our
proposal is largely based on conflicting reports, inconclusive data,
hypothetical scenarios, various assumptions and vast speculation about
species populations, water quantity and quality, the effect of existing
regulatory mechanisms and other potential threats. Such information
fails to provide any sound scientific foundation on which to justify
the listing and critical habitat designation of these species.
Our Response: Under the standards of the Act, we are to base our
determinations of species status on the best available scientific
information. Oftentimes, scientific data are limited, studies are
conflicting, or results are seemingly inconclusive. Our review of the
best available scientific information, including both published
publications and unpublished scientific reports, supports our
determinations that these species meet the definition of endangered
species under the Act. As such we are finalizing critical habitat
designations for these species as well.
(4) Comment: One State agency and others commented that the areas
proposed to be designated as critical habitat are already under Federal
protection due to the presence of other listed species and private
conservation protection by The Nature Conservancy; therefore, no
additional restrictions on those areas are warranted.
Our Response: It is true that all of the areas where these six
species occur are inhabited by other species already protected under
the Act, and these listed species provide some ancillary conservation
to the invertebrate species. However, the presence of other listed
species has not abated the primary threat to these species from the
loss of habitat due to declining spring flows. The Nature Conservancy
does provide significant conservation efforts for the surface habitat
of these species at Diamond Y Preserve and Sandia Springs Preserve,
however, the conservation of the lands around the springs does not
alleviate the threats related to groundwater and spring flow
maintenance for the aquatic habitats upon which the species depend. In
addition, the Act requires us to designate critical habitat for listed
species if it is prudent and determinable, regardless of whether there
are other species already protected in an area. We found that critical
habitat is prudent and determinable for these species.
(5) Comment: A State agency commented that the use of different
discount rates over the same time period should result in a range of
estimated costs of critical habitat designation. The commenter notes
that the costs presented at discount rates of seven and three percent
in Exhibit 2-4 on page 2-10 of the Draft Economic Analysis were almost
identical. Because of this, the commenter was unable to replicate the
estimate costs from the information presented.
Our Response: The range of estimated costs presented in Exhibit 2-4
on page 2-10 of the Draft Economic Analysis was rounded to one
significant digit, as stated in the notes to Exhibit 2-4. As a result,
estimated costs discounted at a three percent discount rate appear to
be similar to the estimated costs discounted at a seven percent
discount rate. In the Final Economic Analysis, estimated costs are
rounded to two significant figures to provide further clarity.
(6) Comment: Two State agencies and a number of others were
concerned about the impacts of listing these species and designating
critical habitat on private property rights, oil and gas development,
and agricultural activities.
Our Response: Although the Act does not allow us to consider the
economic impacts of our listing decisions, we did consider the
potential economic impacts regarding the designation of critical
habitat. Critical habitat only directly affects actions funded,
permitted, or carried out by a Federal agency, and very limited Federal
activities could affect the habitat in these areas. As a result, we
found only extremely small potential indirect effects from the proposed
designation of critical habitat. For critical habitat, our economic
analysis found the incremental administrative economic impacts related
to consultations on the critical habitat of the six west Texas
[[Page 40973]]
invertebrates are expected to amount to an estimated $41,000 over 20
years ($3,600 on an annualized basis), assuming a discount rate of
seven percent.
In addition, at this time we do not anticipate noticeable impacts
to private property rights, oil and gas development, or agricultural
activities from either the listing or the designation of critical
habitat for these species. Other listed species have been in these
areas for more than 30 years with very few, if any, conflicts with
economic development. However, if future conflicts arise we will work
closely with the potentially affected parties to find cooperative
solutions for conservation of these species while striving to minimize
potential effects on economic activities.
Federal Agencies
(7) Comment: The Federal landowner of the area around Phantom Lake
Spring we consider withdrawing the proposed critical habitat at Phantom
in favor of a conservation agreement and strategy to implement a
management plan for the species.
Our Response: The only opportunity for withdrawing the area around
Phantom Lake Spring from critical habitat would be if we were to
exclude the area under section 4(b)(2) of the Act. The Secretary of
Interior has discretion to exclude proposed areas from critical habitat
if she finds the benefits of excluding the area outweigh the benefits
of including the area. Critical habitat most clearly adds conservation
benefits in cases where there is a Federal action subject to a section
7 consultation. This is always the case on Federal lands. Federal
agencies have an independent obligation under section 7(a)(2) of the
Act to avoid jeopardy to listed species and avoid adverse modification
of their critical habitat providing potential benefits to the species.
In addition, we expect that ongoing conservation efforts in this area
will continue with or without critical habitat designation thereby
suggesting limited benefits of excluding the area from critical
habitat. Furthermore, a conservation agreement or updated management
plan was not produced for us to consider a possible exclusion of this
area. Therefore, we considered, but chose not to exclude Federal lands
at Phantom Lake Spring from the final designation of critical habitat.
Other Public Comments
(8) Comment: One commenter expressed several concerns that we did
not demonstrate the required determinations for the critical habitat
designation at Diamond Y Spring. For example, the commenter stated that
the designation of critical habitat is not prudent because there are no
benefits to the species. Also, the entire proposed critical habitat
area does not contain the primary constituent elements, and we did not
show that they require special management. Finally, the commenter
questioned whether the occurrence of the species is consistent with the
proposed designation of more than 440 acres at Diamond Y Spring. For
example, the proposal says the Diamond Y Spring snail (now called
Diamond tryonia) is limited to the first 50 m of the outflow channel.
Our Response: We provided our assessments of prudency and
determinability of the critical habitat designations in both the
proposed and final rules. Critical habitat designation is prudent
because it provides some limited benefits to the species. Specific
benefits include: (1) Triggering consultations under section 7 of the
Act; (2) focusing conservation activities; (3) providing educational
benefits; and (4) preventing inadvertent harm to the species. While we
realize these benefits are limited due to lack of Federal activities in
the area and the existing knowledge about and conservation efforts for
the species, we make a prudent finding if designation would result in
any benefits to the species. We found some benefits to the species from
critical habitat under the three reasons listed above.
The Diamond Y Spring unit contains the physical and biological
features of critical habitat and is within the geographical area
occupied by all three Diamond Y species. The critical habitat
boundaries of this unit were extended laterally beyond the mapped
spring outflow channels to incorporate any and all small springs and
seeps that may not be mapped or surveyed but would contain the physical
or biological features of critical habitat. This situation is different
than the other critical habitat units designated within this rule for
the San Solomon Spring species. Those habitats are well-defined and
exclusively contained within the confined spring outflow channels. At
Diamond Y Spring, in contrast, the spring outlets are more diffuse and
can be dependent on climatic conditions where surface water may expand
during wetter periods with higher groundwater levels. Under these
conditions, the occupied habitat containing the physical and biological
features is present outside of the defined spring outflow channels. The
physical and biological features related to the water and physical
environment of the springs require management (such as managing
groundwater pumping, preventing contamination, preventing alterations
to spring channels) to ensure the habitat continues to support the
species.
Although we did closely define the confirmed distribution of the
species primarily to the spring outflows, we recognize that this
distribution information is based on limited data and the species may
also occur in small spring seeps, some of which may not be mapped or
surveyed but occur within the lateral areas included within the Diamond
Y Spring critical habitat unit.
(9) Comment: The proposed critical habitat rule indicated there
were no ``developed areas'' within the Diamond Y Spring critical
habitat unit. However, there are existing oil and gas operations within
the proposed area that should be considered developed areas and not
included in the critical habitat designation.
Our Response: We concur and have revised the final rule to mention
that developed areas, such as those used by existing oil and gas
operations (e.g., roads and well pad sites) do not contain the physical
and biological features and, therefore, are not considered critical
habitat even though they may occur within the critical habitat unit
boundaries.
Summary of Changes From Proposed Rule
One important change we made in these final rules is the revision
to the common names of the four species of snails to conform to
scientifically accepted nomenclature (Turgeon et al. 1998, pp. 75-76).
These changes were suggested by a peer reviewer of the proposed rule.
Table 1 lists the names used in the proposed rules and the revised
names used in the final rules. We have used the revised names of all
the snails throughout these final rules. No changes were made to the
scientific names.
[[Page 40974]]
Table 3--Revised Common Names for the Six West Texas Invertebrates
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Common name used in Revised common name
Scientific name proposed rules used in final rules
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Pyrgulopsis texana.......... Phantom Cave snail.. Phantom springsnail.
Tryonia cheatumi............ Phantom springsnail. Phantom tryonia.
Gammarus hyalleloides....... diminutive amphipod. No change.
Pseudotryonia adamantina.... Diamond Y Spring Diamond tryonia.
snail.
Tryonia circumstriata....... Gonzales springsnail Gonzales tryonia.
Gammarus pecos.............. Pecos amphipod...... No change.
------------------------------------------------------------------------
Other minor changes were made in the SUPPLEMENTARY INFORMATION
section of these final rules to correct and update discussions of
issues raised by peer and public commenters. No changes were made to
the 50 CFR part 17 section of the rules.
Species Background
We intend to discuss below only those topics directly relevant to
the critical habitat designation for the six west Texas aquatic
invertebrates. Additional background information on the biology and
ecology of these species can be found in the final rule listing these
species as endangered available at http://www.regulations.gov, Docket
No. FWS-R2-ES-2012-0029.
Critical Habitat
Prudency Determination
Section 4 of the Act, as amended, and implementing regulations (50
CFR 424.12), require that, to the maximum extent prudent and
determinable, the Secretary designate critical habitat at the time the
species is determined to be an endangered species or a threatened
species. Our regulations at 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 activity and the identification of critical habitat can be
expected to increase the degree of threat to the species; or (2) the
designation of critical habitat would not be beneficial to the species.
We have no indication that the six species of west Texas
invertebrates are threatened by collection, and the degree of threats
to the species are not likely to increase if critical habitat were
designated. These species are not targets of collection, and the areas
identified for designation either have restricted public access or are
already readily open to the public (i.e., Balmorhea State Park). None
of the threats identified to the species are associated with human
access to the sites, with the possible exception of the potential for
introducing nonnative species at San Solomon Spring in Balmorhea State
Park. This threat, or any other identified threat, is not expected to
increase as a result of critical habitat designation because the San
Solomon Spring swimming pool is already heavily visited, Balmorhea
State Park takes proactive measures to prevent introduction of
nonnative species, and the designation of critical habitat will not
change the situation.
In the absence of finding that the designation of critical habitat
would increase threats to a species, if any benefits would result from
critical habitat designation, then a prudent finding is warranted. The
potential benefits of critical habitat to the six west Texas
invertebrates 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, Federal
agencies were not aware of the potential impacts of an action on the
species; (2) focusing conservation activities on the most essential
features and areas; (3) providing educational benefits to State or
county governments or private entities; and (4) preventing people from
causing inadvertent harm to the species. Therefore, because we have
determined that the designation of critical habitat will not likely
increase the degree of threat to any of the six species and may provide
some measure of benefit, we find that designation of critical habitat
is prudent for the Phantom springsnail, Phantom tryonia, diminutive
amphipod, Diamond tryonia, Gonzales tryonia, and Pecos amphipod.
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features.
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographic area occupied by the species at the time it
was listed are
[[Page 40975]]
included in a critical habitat designation if they contain physical or
biological features (1) which are essential to the conservation of the
species and (2) which may require special management considerations or
protection. For these areas, critical habitat designations identify, to
the extent known using the best scientific and commercial data
available, those physical or biological features that are essential to
the conservation of the species (such as space, food, cover, and
protected habitat). In identifying those physical and biological
features within an area, we focus on the principal biological or
physical constituent elements (primary constituent elements such as
roost sites, nesting grounds, seasonal wetlands, water quality, tide,
soil type) that are essential to the conservation of the species.
Primary constituent elements are the elements of physical or 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 second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographic area
occupied by the species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species. For
example, an area currently occupied by the species but that was not
occupied at the time of listing may be essential to the conservation of
the species and may be included in the critical habitat designation. We
designate critical habitat in areas outside the geographic area
occupied by a species only when a designation limited to its range
would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) 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, or other species
conservation planning efforts if new information available at the time
of these planning efforts calls for a different outcome.
Physical or Biological Features
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and regulations at 50 CFR 424.12, in determining which areas within the
geographic area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographic, and ecological
distributions of a species.
We derive the specific physical or biological features required for
the Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales
tryonia, diminutive amphipod, and Pecos amphipod from studies of the
species' habitat, ecology, and life history as described below. We have
determined that the following physical or biological features are
essential for the Phantom springsnail, Phantom tryonia, Diamond
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod.
Space for Individual and Population Growth and for Normal Behavior
The aquatic environment associated with spring outflow channels and
marshes provide the habitat for Phantom springsnail, Phantom tryonia,
Diamond tryonia, Gonzales tryonia, diminutive amphipod, and Pecos
amphipod growth and normal behavior. The areas must contain permanent
flowing water to provide for the biological needs of the species. Each
of the species completes all of their life-history functions in the
water and cannot exist for any time outside of the aquatic environment.
Several habitat parameters of springs, such as temperature,
dissolved carbon dioxide, dissolved oxygen, conductivity, substrate
type, and water depth have been shown to influence the distribution and
abundance of other related species of springsnails (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 for
the snails (Pennak 1989, p. 552). Salinity levels are also relevant,
particularly at Diamond Y Spring because elevated salinity levels (3 to
6 parts per thousand (Hubbs 2001, p. 314) of dissolved salts) may
prevent other more freshwater-
[[Page 40976]]
adapted species from competing with the native species adapted to
higher salinity levels.
The six invertebrates inhabit springs and spring-fed aquatic
habitats with low variability in water temperatures. For example, Hubbs
(2001, pp. 311-312, 314-315) reported that the spring outflow
temperatures had very low variability with average readings of 20
degrees Celsius ([deg]C) (68 degrees Fahrenheit ([deg]F)) at Diamond Y
Spring and 19 [deg]C (66 [deg]F) at East Sandia Spring with a range
between 11 and 25 [deg]C (52 to 77[emsp14][deg]F). Spring measurements
from 2001 to 2003 at the four springs in the San Solomon Spring complex
found water temperatures ranging from 17 to 27 [deg]C (63 to
81[emsp14][deg]F) (Texas Water Development Board 2005, p. 38).
Proximity to spring vents, where water emerges from the ground, plays a
key role in the life history of the six west Texas aquatic
invertebrates. For example, 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).
The six west Texas aquatic invertebrates are sensitive to water
contamination. Hydrobiid snails as a group are considered sensitive to
water quality changes, and each species is usually found within
relatively narrow habitat parameters (Sada 2008, p. 59). Taylor (1985,
p. 15) suggested that an unidentified groundwater pollutant may have
been responsible for reductions in abundance of Diamond tryonia in the
headspring and outflow of Diamond Y Spring, although no follow-up
studies have been conducted to investigate the presumption.
Additionally, amphipods generally do not tolerate habitat desiccation
(drying), standing water, sedimentation, or other adverse environmental
conditions; they are considered very sensitive to habitat degradation
(Covich and Thorpe 1991, pp. 676-677).
All six species are most commonly found in flowing water,
presumably where dissolved oxygen levels are higher. The species are
often found in moderate flowing water along the spring outflow margins
rather than in central channels. Water depths where the species occur
are generally very shallow, usually less than 1 m (3 ft) deep. An
exception to this is the bottom of the San Solomon Spring pool where,
because of the construction of the swimming pool, water depths are much
greater, exceeding 5 m (15 ft). In San Solomon, Giffin, and Phantom
Lake Springs, the habitats for the species are limited to the spring
outflow channels because past alteration of the system (building of
ditches) has eliminated any small spring openings. However, at Diamond
Y Spring (and to a limited extent, East Sandia Spring) the spring
outflows have not been severely modified so that small springs, seeps,
and marshes still provide diffuse shallow flowing water habitat
associated with emergent bulrush and saltgrass (Taylor 1987, p. 38;
Echelle et al. 2001, p. 5). While these areas are more difficult to
map, measure, and survey, these small springs and seeps are important
habitat for the three invertebrate species at Diamond Y Spring as long
as they provide flowing water.
Therefore, based on the information above, we identify permanent,
flowing, unpolluted water (free from contamination) within natural
temperature variations, emerging from the ground and flowing on the
surface, to be a physical or biological feature necessary for these
species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Invertebrates in small spring ecosystems depend on food from two
sources: that which grows in or on the substrate (aquatic and attached
plants and algae) and that which falls or is blown into the system
(primarily leaves). Water is also the medium necessary to provide the
algae, detritus (dead or partially decayed plant materials or animals),
bacteria, and submergent vegetation on which all six species depend as
a food resource. Abundant sunlight is necessary to promote the growth
of algae upon which all six west Texas aquatic invertebrates feed.
All four snails are presumably fine-particle feeders on detritus
(organic material from decomposing organisms) and periphyton (mixture
of algae and other microbes attached to submerged surfaces) associated
with the substrates (mud, rocks, and vegetation) (Allan 1995, p. 83;
Hershler and Sada 2002, p. 256; Lysne et al. 2007, p. 649). Dundee and
Dundee (1969, p. 207) found diatoms (a group of single-celled algae) to
be the primary component in the digestive tract of the Phantom
springsnail and Phantom tryonia, indicating diatoms are a primary food
source. Spring ecosystems occupied by these snail species must support
the periphyton upon which springsnails graze. Additionally, submergent
vegetation contributes the necessary nutrients, detritus, and bacteria
on which these species forage.
Amphipods are omnivorous, feeding on algae, submergent vegetation,
and decaying organic matter (Smith 2001, p. 572). Both species of
amphipod are often found in beds of submerged aquatic plants (Cole
1976, p. 80), indicating that they probably feed on a surface film of
algae, diatoms, bacteria, and fungi (Smith 2001, p. 572). Young
amphipods depend on microbial foods, such as algae and bacteria,
associated with aquatic plants (Covich and Thorp 1991, p. 677).
Therefore, based on the information above, we identify the presence
of abundant food, consisting of algae, bacteria, decaying organic
material, and submergent vegetation that contributes the necessary
nutrients, detritus, and bacteria on which these species forage to be a
physical or biological feature for these species.
Sites for Cover or Shelter and for Breeding, Reproduction, or Rearing
(or Development) of Offspring
The six west Texas aquatic invertebrates occur across a wide range
of substrate types. The Phantom springsnail is most commonly attached
to hard surfaces, especially large algae-covered rocks, submerged
vegetation, or even concrete walls of the irrigation ditches, and found
in areas of higher water velocities (Bradstreet 2011, pp. 73, 91). The
other springsnails may also be attached to hard surfaces but will also
often be found in the softer substrate at the margins of the stream
flows. Suitable substrates for egg laying by the snails are typically
firm, characterized by cobble, gravel, sand, woody debris, and aquatic
vegetation. These substrates increase productivity by providing
suitable egg-laying sites for the snails.
The amphipods, in the absence of predatory fishes, will swim over
any open substrate on the channel bottom, but in circumstances where
fishes are abundant they may be found in greater abundance underneath
large rocks, embedded in gravels, or associated with submerged
vegetation. Amphipods do not lay eggs upon a surface; instead, the eggs
are held within a marsupium (brood pouch) within the female's
exoskeleton.
Therefore, based on the information above, we identify substrates
that include cobble, gravel, pebble, sand, silt, and aquatic
vegetation, for breeding, egg laying, maturing, feeding, and escape
from predators to be a physical or biological feature for these
species.
[[Page 40977]]
Habitats Protected from Disturbance or Representative of the
Historical, Geographic, and Ecological Distributions of the Species
The Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales
tryonia, diminutive amphipod, and Pecos amphipod have a very 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 in which they
are currently found and upon which these species depend. Adequate
spring sites, free of inappropriate disturbance, must exist to promote
population expansion and viability. This means protection from
disturbance caused by water depletion, water contamination, springhead
alteration, or nonnative species. These species must, at a minimum,
sustain their current distributions if ecological representation of
these species is to be ensured.
As discussed in the final listing rule, introduced species are a
moderate threat to native aquatic species (Williams et al. 1989, p. 18;
Lodge et al. 2000, p. 7), including the six west Texas aquatic
invertebrates. The red-rim melania already competes with all six
species where they occur, and the quilted melania has been introduced
into habitats occupied by the San Solomon Spring species. Feral hogs
cause local spring channel destruction within the Diamond Y Spring
system. Because the distribution of the Phantom springsnail, Phantom
tryonia, Diamond tryonia, Gonzales tryonia, diminutive amphipod, and
Pecos amphipod is so limited, and their habitat so restricted,
introduction of additional nonnative species into their habitat could
be devastating.
Therefore, based on the information above, we identify either an
absence of nonnative predators and competitors or nonnative predators
and competitors at low population levels to be a physical or biological
feature necessary for these species.
Primary Constituent Elements
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Phantom springsnail, Phantom tryonia, Diamond
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod in
areas occupied at the time of listing, focusing on the features'
primary constituent elements. We consider primary constituent elements
to be the elements of physical or biological features that provide for
a species' life-history processes and are essential to the conservation
of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to the Phantom springsnail, Phantom tryonia,
diminutive amphipod, Diamond tryonia, Gonzales tryonia, and Pecos
amphipod are springs and spring-fed aquatic systems that contain:
a. Permanent, flowing, unpolluted water (free from contamination)
emerging from the ground and flowing on the surface;
b. Water temperatures that vary between 11 and 27 [deg]C (52 to 81
[deg]F) with natural seasonal and diurnal variations slightly above and
below that range;
c. Substrates that include cobble, gravel, pebble, sand, silt, and
aquatic vegetation, for breeding, egg laying, maturing, feeding, and
escape from predators;
d. Abundant food, consisting of algae, bacteria, decaying organic
material, and submergent vegetation that contributes the necessary
nutrients, detritus, and bacteria on which these species forage; and
e. Either an absence of nonnative predators and competitors or
nonnative predators and competitors at low population levels.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
the species, through the identification of the appropriate quantity and
spatial arrangement of the primary constituent elements sufficient to
support the life-history processes of the species. All units and
subunits designated as critical habitat are currently occupied by the
Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales
tryonia, diminutive amphipod, and Pecos amphipod and contain the
primary constituent elements sufficient to support the life history
needs of the species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographic area occupied by the species at the time of
listing contain features that are essential to the conservation of the
species and which may require special management considerations or
protection. The features essential to the conservation of the Phantom
springsnail, Phantom tryonia, Diamond tryonia, Gonzales tryonia,
diminutive amphipod, and Pecos amphipod may require special management
considerations or protection to reduce threats, such as reducing or
eliminating water in suitable or occupied habitat through drought or
groundwater pumping; introducing pollutants to levels unsuitable for
the species; and introducing nonnative species into the inhabited
spring systems such that suitable habitat is reduced or eliminated.
Special management considerations or protection are required within
critical habitat areas to address these threats (for more information
on the threats see Summary of Factors Affecting the Species in the
final listing rules available at http://www.regulations.gov, Docket No.
FWS-R2-ES-2012-0029). Management activities that could ameliorate these
threats include management of groundwater levels to ensure the springs
remain flowing (all spring sites), managing oil and gas activities to
eliminate the threat of groundwater or surface water contamination
(Diamond Y Spring), maintaining the pump within Phantom Lake Spring to
ensure consistent flow, managing existing nonnative species, red-rim
melania, quilted melania, and feral hogs (San Solomon, Giffin, Phantom
Lake, and Diamond Y Springs), and preventing the introduction of
additional nonnative species (all spring sites).
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. We review
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time
of listing--are necessary to ensure the conservation of the species. We
are not designating any areas outside the geographic area occupied by
the species because none of the historically occupied areas (or those
that may have been occupied) was found to be essential for the
conservation of the species (see discussion below).
We relied on information from knowledgeable biologists and
recommendations contained in state wildlife resource reports (Dundee
and Dundee 1969, entire; Cole and Bousfield 1970, entire; Cole 1976,
entire; Cole 1985, entire; Taylor 1985, entire; Henry
[[Page 40978]]
1992, entire; Bowles and Arsuffi 1993, entire; Seidel et al. 2009,
entire; Hershler et al. 2010, entire; Ladd 2010, entire; Allan 2011,
entire; Bradstreet 2011, entire; Hershler 2011, p. 1) in making this
determination. We also reviewed the available literature pertaining to
habitat requirements, historic localities, and current localities for
these species. This includes regional geographic information system
(GIS) coverages.
Areas Occupied at the Time of Listing
For the purpose of designating critical habitat for the Phantom
springsnail, Phantom tryonia, Diamond tryonia, Gonzales tryonia,
diminutive amphipod, and Pecos amphipod, we defined the occupied area
based on the most recent surveys available, which includes the Diamond
Y and San Solomon Spring systems. We then evaluated whether these areas
contain the primary constituent elements for the species and whether
they require special management considerations or protection. Next we
considered areas historically occupied, but not currently occupied.
While the west Texas aquatic invertebrates may have inhabited other
springs in the area (such as Saragosa and Toyah Springs, for the San
Solomon Spring species, and Leon and Comanche Springs for the Diamond Y
Spring species), we only have confirmation that the Diamond tryonia and
Gonzales tryonia occurred in Comanche Spring at some point in the past.
We evaluated these areas to determine whether they were essential for
the conservation of the species.
To determine if currently occupied areas contain the primary
constituent elements, we assessed the life-history components of the
species as they relate to habitat. All of the west Texas aquatic
invertebrate species require unpolluted spring water in the springheads
and spring outflows; periphyton and decaying organic material for food;
a combination of soft and hard substrates for maturation, feeding, egg
laying by snails, and escape from predators; and absence of nonnative
predators and competitors (see discussion on Physical or Biological
Features).
Areas Unoccupied at the Time of Listing
To determine if the sites that may have been historically occupied
by the Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales
tryonia, diminutive amphipod, and Pecos amphipod are essential for
their conservation, we considered: (1) The importance of the site to
the overall status of the species to prevent extinction and contribute
to future recovery of each species; (2) whether the area could be
restored to contain the necessary physical or biological features to
support the species; and (3) whether a population of the species could
be reestablished at the site.
The Phantom springsnail, Phantom tryonia, and diminutive amphipod
occur in the San Solomon Spring system, which includes San Solomon
Spring, Giffin Spring, East Sandia Spring, and Phantom Spring. These
species may have occurred in other springs within the system, including
Saragosa, Toyah, and West Sandia Springs. These springs now lack water
flow and the physical or biological features necessary to support the
San Solomon Spring system invertebrates--mainly the lack of flowing
water. We do not foresee these features being restorable to the point
where populations of the Phantom springsnail, Phantom tryonia, and
diminutive amphipod could be reestablished. These springs are not
restorable because we do not foresee an opportunity for groundwater
levels to rise sufficiently in the future to restore permanent spring
flows because the supporting aquifers are of ancient origin and do not
receive substantial modern recharge. Therefore, even if current pumping
activities were to be managed for the benefit of spring flows, it is
doubtful that aquifer levels would rise sufficiently to provide
restoration of permanent aquatic habitat at these sites. For these
reasons, we are not designating Saragosa Spring, Toyah Spring, or West
Sandia Spring or any other unoccupied areas as critical habitat for the
San Solomon Spring system invertebrates.
The Diamond tryonia, Gonzales tryonia, and Pecos amphipod occur in
the Diamond Y Spring system. The Diamond tryonia and Gonzales tryonia
historically occurred at Comanche Spring, and the Pecos amphipod may
have occurred there as well. All three species may have occurred at
Leon Spring. Both Comanche Spring and Leon Spring, which have aquifer
sources that may be different or more localized than that of Diamond Y
Spring, are dry or nearly so and have been altered to such a degree
that they no longer contain the physical or biological features
necessary to support the Diamond Y Spring invertebrates--mainly the
lack of flowing water. Natural flow conditions from these springs do
not appear to be restorable to the point where populations of the
Diamond tryonia, Gonzales tryonia, and Pecos amphipod could be
reestablished. For these reasons, we are not designating Leon Spring or
Comanche Spring as critical habitat for the Diamond Y Spring
invertebrates.
Mapping
For the areas we are designating as critical habitat, we plotted
the known occurrences of the Phantom springsnail, Phantom tryonia,
Diamond tryonia, Gonzales tryonia, diminutive amphipod, and Pecos
amphipod in springheads and spring outflows on 2010 aerial photography
from U.S. Department of Agriculture, National Agriculture Imagery
Program base maps using ArcMap (Environmental Systems Research
Institute, Inc.), a computer geographic information system (GIS)
program. We drew the boundaries around the water features that make up
the critical habitat in each area. Other than at San Solomon Spring and
some well pads at Diamond Y Spring, no known developed areas such as
buildings, paved areas, and other structures that lack the physical or
biological features for the springsnail are within the critical habitat
areas.
When determining critical habitat boundaries, we intended to avoid
including developed areas such as lands covered by buildings, pavement,
and other structures including oil and gas well pads because such lands
lack physical or biological features for the species. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands within Balmorhea State Park at San Solomon Spring or at Diamond Y
Spring. Any such lands left inside critical habitat boundaries shown on
the maps of these rules (such as the asphalt and concrete-paved dry
surfaces in Balmorhea State Park or oil and gas well pads at Diamond Y
Spring) have been excluded by text in these final rules and are not
designated as critical habitat. Therefore, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
Summary
We are designating critical habitat lands that we have determined
are occupied at the time of listing and contain sufficient elements of
physical or biological features to support life-history processes
essential for the conservation of the species. Critical habitat units
are designated based on sufficient elements of physical or biological
features being present to
[[Page 40979]]
support the Phantom springsnail, Phantom tryonia, Diamond tryonia,
Gonzales tryonia, diminutive amphipod, and Pecos amphipod life-history
processes. Some units contain all of the identified elements of
physical or biological features and support multiple life-history
processes. Some segments contain only some elements of the physical or
biological features necessary to support the Phantom springsnail,
Phantom tryonia, Diamond tryonia, Gonzales tryonia, diminutive
amphipod, and Pecos amphipod particular use of that habitat.
Critical Habitat Designation
We are designating four areas as critical habitat for the Phantom
springsnail, Phantom tryonia, and diminutive amphipod. We are
designating one area as critical habitat for the Diamond tryonia,
Gonzales tryonia, and Pecos amphipod. The critical habitat areas we
describe below constitute our current best assessment of areas that
meet the definition of critical habitat for the species. The five areas
we are designating as critical habitat are: (1) San Solomon Spring; (2)
Giffin Spring; (3) East Sandia Spring; (4) Phantom Lake Spring; and (5)
the Diamond Y Spring System. Phantom springsnail, Phantom tryonia, and
diminutive amphipod all occur in the first 4 units and they are listed
in Table 4. Diamond tryonia, Gonzales tryonia, and Pecos amphipod occur
in the Diamond Y Spring Unit, and it is listed in Table 5.
Table 4--Designated Critical Habitat Units for Phantom Springsnail,
Phantom Tryonia, and Diminutive Amphipod
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Size of unit in
Critical habitat unit Land ownership by type hectares
(acres)
------------------------------------------------------------------------
San Solomon Spring............ State--Texas Parks and 1.8 (4.4)
Wildlife Department.
Giffin Spring................. Private............... 0.7 (1.7)
East Sandia Spring............ Private--The Nature 1.2 (3.0)
Conservancy.
Phantom Lake Spring........... Federal--Bureau of 0.02 (0.05)
Reclamation.
Total..................... ...................... 3.7 (9.2)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Table 5--Designated Critical Habitat Unit for Diamond Tryonia, Gonzales
Tryonia, and Pecos Amphipod
[Area estimate reflects all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Size of unit in
Critical habitat unit Land ownership by hectares
type (acres)
------------------------------------------------------------------------
Diamond Y Spring System.......... Private--The Nature 178.6 (441.4)
Conservancy.
Total........................ ................... 178.6 (441.4)
------------------------------------------------------------------------
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat below.
San Solomon Spring Unit
The San Solomon Spring Unit consists of 1.8 ha (4.4 ac) that is
currently occupied by the Phantom springsnail, Phantom tryonia, and
diminutive amphipod and contains all of the features essential to the
conservation of these species. It is located in Reeves County, near
Balmorhea, Texas. San Solomon Spring provides the water for the large
swimming pool at Balmorhea State Park, which is owned and managed by
the Texas Parks and Wildlife Department. The designation includes all
springs, seeps, and outflows of San Solomon Spring, including the part
of the concrete-lined pool that has a natural substrate bottom and
irrigation ditch, and two constructed ci[eacute]negas. While the
ditches do not provide all of the physical or biological features (such
as submerged vegetation), there are sufficient features (including
natural substrates on the ditch bottoms) to provide for the life-
history processes of the species. Habitat in this unit is threatened by
future declining spring flows due to drought or groundwater
withdrawals, the presence of nonnative snails, and the introduction of
other nonnative species. Therefore, the physical or biological features
in this unit may require special management considerations or
protection to minimize impacts resulting from these threats.
Giffin Spring Unit
The Giffin Spring Unit consists of 0.7 ha (1.7 ac) that is
currently occupied by the Phantom springsnail, Phantom tryonia, and
diminutive amphipod and contains all of the features essential to the
conservation of these species. It is located on private property in
Reeves County, near Balmorhea, Texas, and its waters are captured in
irrigation earthen channels for agricultural use. The designation
includes all springs, seeps, sinkholes, and outflows of Giffin Spring.
The unit contains most all of the identified physical or biological
features essential to the conservation of the species. Habitat in this
unit is threatened by declining spring flows due to drought or
groundwater withdrawals, the presence of nonnative snails, the
introduction of other nonnative species, and further modification of
spring outflow channels. Therefore, the physical or biological features
in this unit may require special management considerations or
protection to minimize impacts resulting from these threats.
East Sandia Spring Unit
East Sandia Spring consists of 1.2 ha (3.0 ac) that is currently
occupied by the Phantom springsnail, Phantom tryonia, and diminutive
amphipod and contains all of the features essential to the conservation
of these species. This unit is included within a preserve owned and
managed by The Nature Conservancy (Karges 2003, p. 145) in Reeves
County just east of Balmorhea, Texas. The designation includes the
springhead itself and surrounding seeps and outflows. The unit contains
all of the identified physical or biological
[[Page 40980]]
features essential to the conservation of the species. Habitat in this
unit is threatened by declining spring flows due to drought or
groundwater withdrawals, the introduction of nonnative species, and
modification of spring outflow channels. Therefore, the physical or
biological features in this unit may require special management
considerations or protection to minimize impacts resulting from these
threats.
Phantom Lake Spring Unit
Phantom Lake Spring consists of a small pool about 0.02 ha (0.05
ac) in size that is currently occupied by the Phantom springsnail,
Phantom tryonia, and diminutive amphipod and contains the features
essential to the conservation of these species. Phantom Lake Spring is
owned by the U.S. Bureau of Reclamation about 6 km (4 mi) west of
Balmorhea State Park in Jeff Davis County, Texas. The designation
includes only the springhead pool. The physical or biological features
of the habitat at Phantom Lake Spring have been maintained since 2000
by a pumping system and subsequent reconstruction of the spring pool.
Although artificially maintained, the site continues to provide
sufficient physical or biological features to provide for all the life-
history processes of the three invertebrate species. Habitat in this
unit is threatened by future declining spring flows due to drought or
groundwater withdrawals, the presence of nonnative snails, and the
introduction of other nonnative species. Therefore, the physical or
biological features in this unit may require special management
considerations or protection to minimize impacts resulting from these
threats.
Diamond Y Spring Unit
Diamond Y Spring Unit consists of 178.6 ha (441.4 ac) that is
currently occupied by the Diamond tryonia, Gonzales tryonia, and Pecos
amphipod and contains all of the features essential to the conservation
of these species. Diamond Y Spring and surrounding lands are owned and
managed by The Nature Conservancy. The final designation includes the
Diamond Y Spring and approximately 6.8 km (4.2 mi) of its outflow,
including both upper and lower watercourses, ending at approximately
0.8 km (0.5 mi) downstream of the State Highway 18 bridge crossing.
Also included in this unit is approximately 0.8 km (0.5 mi) of Leon
Creek upstream of the confluence with Diamond Y Draw. The boundaries of
this unit extend out laterally beyond the mapped spring outflow
channels to incorporate any and all small springs and seeps that may
not be mapped or surveyed but are expected to contain the species and
the necessary physical or biological features. The unit contains all of
the identified physical or biological features. Habitat in this unit is
threatened by declining spring flows due to drought or groundwater
withdrawals, subsurface drilling and other oil and gas activities that
could contaminate surface drainage or aquifer water, the presence of
nonnative snails and feral hogs, the introduction of other nonnative
species, and modification of spring outflow channels. Therefore, the
physical or biological features in this unit may require special
management considerations or protection to minimize impacts resulting
from these threats.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently
[[Page 40981]]
designated critical habitat that may be affected and the Federal agency
has retained discretionary involvement or control over the action (or
the agency's discretionary involvement or control is authorized by
law). Consequently, Federal agencies sometimes may need to request
reinitiation of consultation with us on actions for which formal
consultation has been completed, if those actions with discretionary
involvement or control may affect subsequently listed species or
designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the Phantom springsnail,
Phantom tryonia, Diamond tryonia, Gonzales tryonia, diminutive
amphipod, and Pecos amphipod. As discussed above, the role of critical
habitat is to support the 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, should result in
consultation for the Phantom springsnail, Phantom tryonia, Diamond
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod.
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 contaminate or cause significant degradation
of water quality within the spring systems designated as critical
habitat, including surface drainage water or aquifer water quality.
(3) Actions that would modify the springheads or outflow channels
within the spring systems designated as critical habitat.
(4) Actions that would reduce or alter the availability of aquatic
substrates within the spring systems that are designated as critical
habitat.
(5) Actions that would reduce the occurrence of native aquatic
periphyton within the spring systems designated as critical habitat.
(6) Actions that would introduce, promote, or maintain nonnative
predators and competitors within the spring systems designated as
critical habitat.
Exemptions
Application of Section 4(a)(3) of the Act
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 on some Department of Defense lands. There are no
Department of Defense lands within or near the critical habitat
designation, so section 4(a)(3)(B)(i) of the Act does not apply.
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 she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
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 her 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 an analysis of the economic
impacts of the proposed critical habitat designation and related
factors. Potential land use sectors that may be affected by critical
habitat designation include oil and gas development near the Diamond Y
Spring system and agriculture (irrigated lands using groundwater
withdrawals) at both spring systems. We also consider any social
impacts that might occur because of the designation.
We anticipate conducting approximately 7 formal, 15 informal, and 3
technical assistance consultations considering the designation, for a
total of 25 consultations, over the next 20 years. Assuming the
consultations are equally likely to occur in any year, this results in
fewer than two consultations a year. As a result of our analysis of
probable economic impacts, we found only small incremental impacts
related to the administrative costs of these consultations from the
designation of critical habitat. In total, economic impacts are
expected to amount to an estimated $41,000 over 20 years ($3,600 on an
annualized basis), assuming a discount rate of seven percent. Based on
our consultation history, we estimate that most consultations are not
likely to involve a third party, and therefore, fewer than two small
entities, if any, could be affected each year. The probable incremental
cost per entity per year is likely to range from $260 to $2,100.
Therefore, after considering the economic impact of these designations
of critical habitat, we are not excluding any critical habitat areas
based on economic impacts.
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 or Department of
Homeland Security where a national security impact might exist. In
preparing this rule, we have determined that the lands within the
designation of critical habitat for the Phantom springsnail, Phantom
tryonia, Diamond tryonia, Gonzales tryonia, diminutive amphipod, and
Pecos amphipod are not owned or managed by the Department of Defense or
Department of Homeland Security, and, therefore, we anticipate no
impact on national security. Consequently, the Secretary has not
exerted her discretion to exclude any areas from the final
[[Page 40982]]
designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any habitat conservation plans or other
management plans for the area, or whether any conservation partnerships
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. We are not excluding any areas from the critical
habitat designation under section 4(b)(2) of the Act.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) of the Office of Management and Budget will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish
a notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
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. In this final rule, we are certifying that the critical
habitat designation for the six west Texas aquatic invertebrates will
not have a significant economic impact on a substantial number of small
entities. The following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts on
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities. We apply the
``substantial number'' test individually to each industry to determine
if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect the six west Texas aquatic invertebrates. Federal
agencies also must consult with us if their activities may affect
critical habitat. Designation of critical habitat, therefore, could
result in an additional economic impact on small entities due to the
requirement to reinitiate consultation for ongoing Federal activities
(see Application of the ``Adverse Modification Standard'' section).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the designation of
critical habitat for the six west Texas aquatic invertebrates. The
analysis is based on the estimated impacts associated with the
rulemaking as described in Chapter 2 of the analysis and evaluates the
potential for economic impacts. The analysis anticipated the Service
will conduct approximately 7 formal, 15 informal, and 3 technical
assistance consultations considering the designation, for a total of 25
consultations, over the next 20 years. Assuming the consultations are
equally likely to occur in any year, this total results in fewer than
two consultations a year. Based on the consultation history, most
consultations are unlikely to involve a third party. Therefore, fewer
than two small entities, if any, could be affected each year. The
incremental cost per third-party entity of participating in a
consultation is likely to range from $260 to $2,100 (see Exhibit B-1 in
Appendix B of the Final Economic Analysis). This level of impact does
not exceed the thresholds for significant economic effects on a
substantial number of small entities.
[[Page 40983]]
In summary, we considered whether this designation would result in
a significant economic effect on a substantial number of small
entities. Based on the above reasoning and currently available
information, we concluded that this rule would not result in a
significant economic impact on a substantial number of small entities.
Therefore, we are certifying that the designation of critical habitat
for the six west Texas aquatic invertebrates will not have a
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. The Office of Management and Budget 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.
As described in Sections 2.2, 2.5, and A.4 of the final economic
analysis, the critical habitat designation for the six invertebrates is
anticipated to result in minimal consultations related to natural gas
pipelines. We do not anticipate incremental impacts to these projects
beyond the administrative costs of addressing the adverse modification
standard in section 7 consultation. Given the small number of projects
affected, the designation is not anticipated to increase the cost of
energy production or distribution in the United States in excess of one
percent. Thus, none of the nine threshold levels of impact would be
exceeded. As a result, we do not expect the designation of critical
habitat to significantly affect energy supplies, distribution, or use
due to the small amount of habitat we have designated and the lack of
Federal activities that would be affected by the designation.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because the land in this designation is either
privately owned or owned by U.S. Bureau of Reclamation or the State of
Texas. None of these government entities fit the definition of ``small
governmental jurisdiction.'' In addition, our final economic analysis,
section A.2, found no enforceable duties placed upon State, local, or
Tribal governments. Therefore, a Small Government Agency Plan is not
required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for the Phantom springsnail, Phantom tryonia, Diamond
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod 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 found this designation of critical habitat for
the Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales
tryonia, diminutive amphipod, and Pecos amphipod does not pose
significant takings implications for lands within or affected by the
designation. Similarly, our final economic analysis, section A.3 and
described in Chapter 2, concluded that the incremental effects of the
designation are limited to additional administrative costs of
consultation. Therefore, activities taking place on private property
are not likely to be affected, and the critical habitat designation is
unlikely to have takings implications.
Federalism
In accordance with Executive Order 13132 (Federalism), these rules
do not have significant federalism effects. A federalism assessment is
not required. In keeping with Department of the Interior policy, we
requested information from, and coordinated development of, these
critical habitat designations with appropriate State resource agencies
in Texas. We received comments from several State of Texas agencies and
have addressed them in
[[Page 40984]]
the Summary of Comments and Recommendations section of this rule. The
designation of critical habitat in areas currently occupied by the
Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales
tryonia, diminutive amphipod, and Pecos amphipod imposes no additional
restrictions to those currently in place and, therefore, has little
incremental impact on State and local governments and their activities.
The designation may have some benefit to these governments because the
areas that contain the physical or biological features essential to the
conservation of the species are more clearly defined, and the elements
of the features of the habitat necessary to the conservation of the
species are specifically identified. This information does not alter
where and what federally sponsored activities may occur. However, it
may assist local governments in long-range planning (rather than having
them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have designating critical
habitat in accordance with the provisions of the Act. These final rules
use standard mapping technology and identify the elements of physical
or biological features essential to the conservation of the Phantom
springsnail, Phantom tryonia, Diamond tryonia, Gonzales tryonia,
diminutive amphipod, and Pecos amphipod within the designated areas to
assist the public in understanding the habitat needs of the species.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
These rules do not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). These rules do not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with listing a species as endangered or
threatened under the Endangered Species Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244).
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to NEPA in connection with designating
critical habitat under the Endangered Species Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244). This position was upheld by
the U.S. Court of Appeals for the Ninth Circuit (Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042
(1996)). The range of the Phantom springsnail, Phantom tryonia, Diamond
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod does
not occur in the Tenth Circuit, so a NEPA analysis was not conducted.
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We determined that there are no tribal lands within or near the
current or historic ranges of the Phantom springsnail, Phantom tryonia,
Diamond tryonia, Gonzales tryonia, diminutive amphipod, and Pecos
amphipod that contain the features essential for conservation of the
species. Therefore, we are not designating critical habitat on tribal
lands.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0004 and upon request from the Austin Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this package are the staff members of the
Southwest Region of the 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; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.95 by:
0
a. In paragraph (f), adding an entry for ``Phantom springsnail
(Pyrgulopsis texana) and Phantom tryonia (Tryonia cheatumi)'' followed
by an entry for ``Diamond tryonia (Pseudotryonia adamantina) and
Gonzales tryonia (Tryonia circumstriata)'' after the entry for ``Three
Forks Springsnail (Pyrgulopsis trivialis)''; and
0
b. In paragraph (h), adding an entry for ``Diminutive amphipod
(Gammarus hyalleloides)'' and an entry for ``Pecos amphipod (Gammarus
pecos)'' in the same alphabetical order that these species appear in
the table at Sec. 17.11(h).
The additions read as follows.
[[Page 40985]]
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Phantom springsnail (Pyrgulopsis texana) and Phantom tryonia (Tryonia
cheatumi)
(1) Critical habitat units are depicted for Jeff Davis County and
Reeves County, Texas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of
Phantom springsnail and Phantom tryonia are springs and spring-fed
aquatic systems that contain:
(i) Permanent, flowing, unpolluted water (free from contamination)
emerging from the ground and flowing on the surface;
(ii) Water temperatures that vary between 11 and 27 [deg]C (52 to
81[emsp14][deg]F) with natural seasonal and diurnal variations slightly
above and below that range;
(iii) Substrates that include cobble, gravel, pebble, sand, silt,
and aquatic vegetation, for breeding, egg laying, maturing, feeding,
and escape from predators;
(iv) Abundant food, consisting of algae, bacteria, decaying organic
material, and submergent vegetation that contributes the necessary
nutrients, detritus, and bacteria on which these species forage; and
(v) Either an absence of nonnative predators and competitors or
nonnative predators and competitors at low population levels.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, well pads, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
August 8, 2013.
(4) Critical habitat map units. Data layers defining map units were
created on 2010 aerial photography from U.S. Department of Agriculture,
National Agriculture Imagery Program base maps using ArcMap
(Environmental Systems Research Institute, Inc.), a computer geographic
information system (GIS) program. The maps in this entry, as modified
by any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0004 and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) San Solomon Spring Unit, Reeves County, Texas. Map of San
Solomon Spring Unit follows:
BILLING CODE 4310-55-P
[[Page 40986]]
[GRAPHIC] [TIFF OMITTED] TR09JY13.006
(6) Giffin Spring Unit, Reeves County, Texas. Map of Giffin Spring
Unit is provided at paragraph (5) of this entry.
(7) East Sandia Spring Unit, Reeves County, Texas. Map of East
Sandia Spring Unit follows:
[[Page 40987]]
[GRAPHIC] [TIFF OMITTED] TR09JY13.007
(8) Phantom Lake Spring Unit, Jeff Davis County, Texas. Map of
Phantom Lake Spring Unit follows:
[[Page 40988]]
[GRAPHIC] [TIFF OMITTED] TR09JY13.008
Diamond tryonia (Pseudotryonia adamantina) and Gonzales tryonia
(Tryonia circumstriata)
(1) A critical habitat unit is depicted for Pecos County, Texas, on
the map below.
(2) Within this area, the primary constituent elements of the
physical or biological features essential to the conservation of
Diamond tryonia and Gonzales tryonia are springs and spring-fed aquatic
systems that contain:
(i) Permanent, flowing, unpolluted water (free from contamination)
emerging from the ground and flowing on the surface;
(ii) Water temperatures that vary between 11 and 27 [deg]C (52 to
81[emsp14][deg]F) with natural seasonal and diurnal variations slightly
above and below that range;
(iii) Substrates that include cobble, gravel, pebble, sand, silt,
and aquatic vegetation, for breeding, egg laying, maturing, feeding,
and escape from predators;
(iv) Abundant food, consisting of algae, bacteria, decaying organic
material, and submergent vegetation that contributes the necessary
nutrients, detritus, and bacteria on which these species forage; and
[[Page 40989]]
(v) Either an absence of nonnative predators and competitors or
nonnative predators and competitors at low population levels.
(3) Critical habitat does not include manmade structures (such as
buildings, roads, oil and gas well pads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
August 8, 2013.
(4) Critical habitat map unit. Data layers defining the map unit
were created on 2010 aerial photography from U.S. Department of
Agriculture, National Agriculture Imagery Program base maps using
ArcMap (Environmental Systems Research Institute, Inc.), a computer
geographic information system (GIS) program. The maps in this entry, as
modified by any accompanying regulatory text, establish the boundaries
of the critical habitat designation. The coordinates or plot points or
both on which each map is based are available to the public on the
internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-
0004 and at the field office responsible for this designation. You may
obtain field office location information by contacting one of the
Service regional offices, the addresses of which are listed at 50 CFR
2.2.
(5) Diamond Y Spring Unit, Pecos County, Texas. Map of Diamond Y
Spring Unit follows:
[[Page 40990]]
[GRAPHIC] [TIFF OMITTED] TR09JY13.009
* * * * *
(h) Crustaceans.
Diminutive amphipod (Gammarus hyalleloides)
(1) Critical habitat units are depicted for Jeff Davis County and
Reeves County, Texas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of
diminutive amphipod are springs and spring-fed aquatic systems that
contain:
(i) Permanent, flowing, unpolluted water (free from contamination)
emerging from the ground and flowing on the surface;
(ii) Water temperatures that vary between 11 and 27 [deg]C (52 to
81 [deg]F) with natural seasonal and diurnal variations slightly above
and below that range;
(iii) Substrates that include cobble, gravel, pebble, sand, silt,
and aquatic vegetation, for breeding, maturing, feeding, and escape
from predators;
(iv) Abundant food, consisting of algae, bacteria, decaying organic
material, and submergent vegetation that contributes the necessary
nutrients, detritus, and bacteria on which these species forage; and
[[Page 40991]]
(v) Either an absence of nonnative predators and competitors or
nonnative predators and competitors at low population levels.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, well pads, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
August 8, 2013.
(4) Critical habitat map units. Data layers defining map units were
created on 2010 aerial photography from U.S. Department of Agriculture,
National Agriculture Imagery Program base maps using ArcMap
(Environmental Systems Research Institute, Inc.), a computer geographic
information system (GIS) program. The maps in this entry, as modified
by any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available to the on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0004 and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) San Solomon Spring Unit, Reeves County, Texas. Map of San
Solomon Spring Unit follows:
[[Page 40992]]
[GRAPHIC] [TIFF OMITTED] TR09JY13.010
(6) Giffin Spring Unit, Reeves County, Texas. Map of Giffin Spring
Unit is provided at paragraph (5) of this entry.
(7) East Sandia Spring Unit, Reeves County, Texas. Map of East
Sandia Spring Unit follows:
[[Page 40993]]
[GRAPHIC] [TIFF OMITTED] TR09JY13.011
(8) Phantom Lake Spring Unit, Jeff Davis County, Texas. Map of
Phantom Lake Spring Unit follows:
[[Page 40994]]
[GRAPHIC] [TIFF OMITTED] TR09JY13.012
* * * * *
Pecos amphipod (Gammarus pecos)
(1) The critical habitat unit is depicted for Pecos County, Texas,
on the map below.
(2) Within this area, the primary constituent elements of the
physical or biological features essential to the conservation of Pecos
amphipod are springs and spring-fed aquatic systems that contain:
(i) Permanent, flowing, unpolluted water (free from contamination)
emerging from the ground and flowing on the surface;
(ii) Water temperatures that vary between 11 and 27 [deg]C (52 to
81 [deg]F) with natural seasonal and diurnal variations slightly above
and below that range;
(iii) Substrates that include cobble, gravel, pebble, sand, silt,
and aquatic vegetation, for breeding, maturing, feeding, and escape
from predators;
(iv) Abundant food, consisting of algae, bacteria, decaying organic
material, and submergent vegetation that contributes the necessary
nutrients, detritus, and bacteria on which these species forage; and
[[Page 40995]]
(v) Either an absence of nonnative predators and competitors or
nonnative predators and competitors at low population levels.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, oil and gas well pads, roads, and other paved
areas) and the land on which they are located existing within the legal
boundaries on the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created on 2010 aerial photography from U.S. Department of Agriculture,
National Agriculture Imagery Program base maps using ArcMap
(Environmental Systems Research Institute, Inc.), a computer geographic
information system (GIS) program. The maps in this entry, as modified
by any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available to the public on the internet at
http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0004 and at the
field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Diamond Y Spring Unit, Pecos County, Texas. Map of Diamond Y
Spring Unit follows:
[[Page 40996]]
[GRAPHIC] [TIFF OMITTED] TR09JY13.013
* * * * *
Dated: June 26, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-16230 Filed 7-8-13; 8:45 am]
BILLING CODE 4310-55-C