Federal Register, Volume 86 Issue 201 (Thursday, October 21, 2021) 2021 Federal Register, 86 FR 58474-58523; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Rules and Regulations]
[Pages 58474-58523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20962]

[[Page 58473]]

Vol. 86

Thursday,

No. 201

October 21, 2021

Part IV

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Narrow-Headed Gartersnake; Final Rule

Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 /
Rules and Regulations

[[Page 58474]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2020-0011; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BD96

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Narrow-Headed Gartersnake

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the narrow-headed gartersnake (Thamnophis
rufipunctatus) under the Endangered Species Act of 1973 (Act), as
amended. In total, 23,785 acres (9,625 hectares) in Greenlee, Apache,
Yavapai, Gila, and Coconino Counties, Arizona, and Grant, Hidalgo, and
Catron Counties, New Mexico, fall within the boundaries of the critical
habitat designation for the narrow-headed gartersnake. This rule
extends the Act's protections to the narrow-headed gartersnake's
designated critical habitat.

DATES: This rule is effective November 22, 2021.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at http://www.regulations.gov at Docket No. FWS-
R2-ES-2020-0011.
The coordinates or plot points or both from which the maps are
generated are included in the decision file for this critical habitat
designation and are available at http://www.regulations.gov at Docket
No. FWS-R2-ES-2020-0011 or on the Service's website at https://www.fws.gov/southwest/es/arizona/. Additional supporting information
that we developed for this critical habitat designation will be
available on the Service's website set out above and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Humphrey, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services Field Office,
Fish and Wildlife Office, 9828 North 31st Ave. #C3, Phoenix, AZ 85051-
2517; telephone 602-242-0210. Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Relay Service at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, if we determine that
a species is an endangered or threatened species, we must designate
critical habitat to the maximum extent prudent and determinable. On
July 8, 2014, we published a final rule to list the narrow-headed
gartersnake as a threatened species (79 FR 38678). Designations of
critical habitat can be completed only by issuing a rule.
What this document does. This rule designates critical habitat for
the narrow-headed gartersnake of approximately 23,785 acres (9,625
hectares) in Greenlee, Apache, Yavapai, Gila, and Coconino Counties,
Arizona, and Grant, Hidalgo, and Catron Counties, New Mexico.
The basis for our action. Under section 4(a)(3) of the Act, if we
determine that any species is an endangered or threatened species, we
must, to the maximum extent prudent and determinable, designate
critical habitat. Section 3(5)(A) of the Act defines critical habitat
as (i) the specific areas within the geographical area occupied by the
species, at the time it is listed, on which are found those physical or
biological features (I) essential to the conservation of the species
and (II) which may require special management considerations or
protections; and (ii) specific areas outside the geographical area
occupied by the species at the time it is listed, upon a determination
by the Secretary that such areas are essential for the conservation of
the species. The Secretary may exclude an area from critical habitat if
she determines that the benefits of such exclusion outweigh the
benefits of specifying such areas as part of 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. Section 4(b)(2) of the Act states that the
Secretary must make the designation on the basis of the best scientific
data available and after taking into consideration the economic impact,
the impact on national security, and any other relevant impacts of
specifying any particular area as critical habitat.
The critical habitat we are designating in this rule, consisting of
eight units comprising approximately 447 stream miles (719 kilometers)
within a maximum 326-foot (100-meter) lateral extent of the active
stream channel, in an area of 23,784 acres (9,625 hectares) for the
narrow-headed gartersnake, constitutes our current best assessment of
the areas that meet the definition of critical habitat for the species.
Peer review and public comment. During the proposed rule stage, we
sought the expert opinions of eight appropriate specialists. We
received responses from three specialists, which informed our
determination. Information we received from peer review is incorporated
into this final rule. We also considered all comments and information
we received from the public during the comment period.

Previous Federal Actions

Please refer to the final listing rule (79 FR 38678; July 8, 2014),
the original proposed critical habitat rule (78 FR 41550; July 10,
2013), and the revised proposed critical habitat rule (85 FR 23608;
April 28, 2020) for the narrow-headed gartersnake for a detailed
description of previous Federal actions concerning this species. Those
rules included the northern Mexican gartersnake (Thamnophis eques
megalops), but we designated critical habitat for the northern Mexican
gartersnake in an earlier, separate final rule (80 FR 22518; April 28,
2021). This rule designates critical habitat only for the narrow-headed
gartersnake.

Supporting Documents

In the revised proposed critical habitat rule (85 FR 23608; April
28, 2020), we stated that a draft analysis document under the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) for the
designation of critical habitat would be completed. We have now
finalized an environmental assessment with a finding of no significant
impact under NEPA. The environmental assessment and finding of no
significant impact are available at http://www.regulations.gov at
Docket No. FWS-R2-ES-2020-0011 and from the Arizona Ecological Services
Field Office at https://www.fws.gov/southwest/es/arizona/. See Required
Determinations, below, for a discussion of our NEPA obligations for
this designation.
No changes were made to our economic analysis after considering
public comment on the draft document. The final updated economic
analysis document (IEc 2021, entire) is available at http://www.regulations.gov at Docket No. FWS-R2-ES-2020-0011.

Summary of Changes From the Proposed Rule

We reviewed the comments related to critical habitat for the
narrow-headed gartersnake (see Summary of Comments and Recommendations,
below), completed our analysis of areas

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considered for exclusion under section 4(b)(2) of the Act (16 U.S.C.
1531 et seq.), reviewed our analysis of the physical or biological
features (PBFs) essential to the long-term conservation of the narrow-
headed gartersnake, and finalized the economic analysis of the
designation. This final rule incorporates changes from our 2020 revised
proposed critical habitat rule (85 FR 23608; April 28, 2020) based on
the comments that we received, and have responded to in this document,
and considers efforts to conserve the narrow-headed gartersnake.
As a result, our final designation of critical habitat reflects the
following changes from the April 28, 2020, revised proposed rule (85 FR
23608):
(1) We revised unit areas based on comments we received regarding
areas that did or did not contain the PBFs essential to the
conservation of the species. These changes resulted in a net increase
of 5,081 acres (ac) (2,056 hectares (ha)) of critical habitat. Critical
habitat units were extended laterally to capture areas needed for
brumation, a period of dormancy during the winter. All areas added to
this final critical habitat designation were proposed as critical
habitat for the narrow-headed gartersnake in the 2013 original proposed
critical habitat rule (78 FR 41550; July 10, 2013) (see Summary of
Essential Physical or Biological Features).
(2) We modified PBFs 1(B), 1(C), 1(D), and 3 for the narrow-headed
gartersnake as identified below under Physical or Biological Features
Essential to the Conservation of the Species.
(3) We excluded approximately 508 ac (206 ha) from portions of
units for the narrow-headed gartersnake, as identified below in Table 2
(Areas excluded from critical habitat designation by critical habitat
unit for the narrow-headed gartersnake).
(4) We corrected several errors in unit descriptions.

Summary of Comments and Recommendations

We requested written comments from the public on the original
proposed critical habitat rule (78 FR 41550; July 10, 2013) and on the
revised proposed critical habitat rule (85 FR 23608; April 28, 2020)
for the narrow-headed gartersnake. The comment period for the original
proposed critical habitat rule opened on July 10 and closed on
September 9, 2013; the comment period for the revised proposed critical
habitat rule opened on April 28 and closed on June 29, 2020.
For the original proposed critical habitat rule (78 FR 41550; July
10, 2013), we contacted appropriate Federal, State, and Tribal
governments; local agencies; scientific organizations; and other
interested parties and invited them to comment on the proposed critical
habitat designation. For the revised proposed critical habitat rule (85
FR 23608; April 28, 2020), we again contacted all interested parties,
including appropriate Federal and State agencies, Tribal governments,
scientific experts and organizations, and other interested parties, and
invited them to submit written comments on the revised proposal. In the
April 28, 2020, revised proposed rule, we stated that any comments we
received in response to the July 10, 2013, proposed rule need not be
resubmitted as they would be fully considered in this final rule.
Newspaper notices inviting general public comments were published
throughout the range of the proposed critical habitat designation for
both the original and revised proposed rules.
During the comment period on the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), we received approximately 30 written
comment letters on the proposed critical habitat designation. During
the comment period on the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we received an additional 40 comment letters on
the revised proposed critical habitat designation or the draft economic
analysis (IEc 2019, entire). We also received one additional request
for exclusion of an area that was not identified in the revised
proposed rule. We reviewed each exclusion request and whether the
requester provided information or a reasoned rationale to initiate an
analysis or support an exclusion (see Policy Regarding Implementation
of Section 4(b)(2) of the Endangered Species Act (81 FR 7226; February
11, 2016)). All substantive information provided during both comment
periods has either been incorporated directly into this final
determination or is addressed in our responses below.
We also note that we no longer use primary constituent elements
(PCEs) to identify areas as critical habitat. We eliminated PCEs due to
redundancy with the physical or biological features (PBFs). This change
in terminology is in accordance with a February 11, 2016 (81 FR 7414),
rule to implement changes to the regulations for designating critical
habitat. In the revised proposed critical habitat rule (85 FR 23608;
April 28, 2020), we used the comments we had received and additional
information to revise: (1) The PBFs that are essential to the
conservation of the species and which may require special management
considerations or protection under the Act; (2) the criteria used to
define the areas occupied at the time of listing for the species; and
(3) the criteria used to identify critical habitat boundaries. We then
applied the revised PBFs and identification criteria for the species,
along with additional information we received regarding where these
PBFs exist on the landscape to determine the geographic extent of each
critical habitat unit. We received comments on the original proposed
critical habitat rule (78 FR 41550; July 10, 2013) that referred to
PCEs, and our responses to those comments below correlate with the
respective PBFs from the revised proposed critical habitat rule (85 FR
23608; April 28, 2020).

Peer Review

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review actions under the Act, we solicited
expert opinion on the original proposed critical habitat rule (78 FR
41550; July 10, 2013) from eight knowledgeable individuals with
scientific expertise that includes familiarity with the narrow-headed
gartersnake and its habitat, biological needs, and threats. We received
responses from three of the peer reviewers. In 2020, during the public
comment period for the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we received comments from one of the peer
reviewers regarding our revised proposed rule. We address these peer
reviewer comments in this final rule as appropriate.
This rule designates critical habitat only for the narrow-headed
gartersnake; therefore, in this rule, we limit our discussion of the
peer reviewer and public comments we received to those concerning the
narrow-headed gartersnake. We reviewed all the comments we received
from the peer reviewers for substantive issues and new information
regarding the narrow-headed gartersnake and its habitat use and needs.
The peer reviewers provided additional information, clarifications, and
suggestions to improve the designation. Our revised proposed critical
habitat rule (85 FR 23608; April 28, 2020) was developed in part to
address some of the concerns and information raised by the peer
reviewers in 2013. The additional details and information we received
from or that were raised by the peer reviewers have been incorporated
into this final rule, as appropriate. Substantive comments we

[[Page 58476]]

received from peer reviewers as well as Federal, State, Tribal, and
local governments, nongovernmental organizations, and the public are
summarized below.
Comment 1: One peer reviewer commented that nonnative fishes of the
Centrarchidae and Ictaluridae families characterized by the term
``spiny-rayed fishes'' are not the only nonnative fishes that are
detrimental to native fishes that are the prey for the gartersnake.
They stated that the red shiner in the Cyprinidae family, nonnative
mosquitofish in the Poeciliidae family, and nonnative trouts in the
Salmonidae family all negatively impact native fishes as well. A second
peer reviewer also commented that brown trout (Salmo trutta) are a
harmful nonnative and would impact the PBFs related to lack of
nonnative species in several subunits.
Our Response: In determining the PBFs for the gartersnake, we
intended to identify those species of nonnative fish that were both
considered highly predatory on gartersnakes and also highly competitive
with gartersnakes in terms of common prey resources. The nonnative fish
species we view as most harmful to gartersnake populations include bass
(Micropterus sp.), flathead catfish (Pylodictis sp.), channel catfish
(Ictalurus sp.), sunfish (Centrarchidae), bullheads (Ameiurus sp.),
bluegill (Lepomis sp.), crappie (Pomoxis sp.), and brown trout. While
other species may negatively impact native fishes, we highlighted the
nonnative fish species that pose the greatest threat to narrow-headed
gartersnakes.
Comment 2: One peer reviewer stated that our application of the
``adverse modification'' standard to fish renovation efforts is flawed
because we can salvage gartersnakes prior to stream renovations and
release them after a native fish prey base has been reestablished.
Our Response: For the public and section 7 practitioners to
understand the types of actions considered to have potential effects to
designated critical habitat, we generally identify those types of
actions that could potentially result in adverse modification of
designated critical habitat. The actual effects of a proposed action on
designated critical habitat are dependent on many factors related to
both the action being proposed and the project area. Conservation
measures can be evaluated against specific attributes of the proposed
action at the time of consultation for their suitability and potential
implementation. We agree that salvaging gartersnakes prior to stream
renovations and then releasing them after a native fish prey base has
been reestablished could be a conservation recommendation identified
during section 7 consultation to address effects of such a proposed
action that includes fish renovation efforts.
Comment 3: One peer reviewer stated that no areas should be
excluded from the critical habitat designation based on existing
habitat conservation plans because we cannot enforce implementation of
conservation plans.
Our Response: Section 4(b)(2) of the Act (16 U.S.C. 1533(b)(2))
states that we 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 Act provides that we may exclude an area from critical
habitat if we determine that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless we determine, 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. Under our Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR
7226; February 11, 2016), when conducting this analysis we consider a
number of factors including whether there are permitted conservation
plans covering the species in the area such as habitat conservation
plans, safe harbor agreements, or candidate conservation agreements
with assurances, or whether there are non-permitted conservation
agreements and partnerships that would be encouraged by designation of,
or exclusion from, critical habitat. Under the policy, we analyze
habitat conservation plans when weighing whether the benefits of
exclusion outweigh the benefits of including these areas in the
critical habitat designation, and our analysis includes looking at
whether the permittee is properly implementing the plan and is expected
to continue doing so. We have conducted a weighing analysis to
determine if the benefits of exclusion outweigh the benefits of
including these areas, and we have used our discretion to determine if
the existing habitat conservation plans are sufficient to conserve the
species (see discussion under Consideration of Impacts under Section
4(b)(2) of the Act, below).
Comment 4: One peer reviewer commented that it would be helpful to
have a rating system for the PBFs about prey bases consisting of native
fishes and an absence of nonnative fishes, to show a gradient among
sites.
Our Response: For recovery implementation purposes, we see value in
understanding and tracking the status of the PBFs related to prey base
and absence of nonnative aquatic predators, such as nonnative fishes.
However, in terms of species composition or relative abundance, we do
not currently have information on what the threshold of each nonnative
aquatic predator, or combination of such predators, is to be considered
detrimental to the narrow-headed gartersnake. These thresholds would
also vary depending on the condition of other PBFs, including organic
and inorganic structural features in a stream.
Comment 5: One peer reviewer commented on several PBFs that are
incorrectly applied to several subunits for the narrow-headed
gartersnake, including PBF 3 in the Campbell Blue Subunit, West Fork
Gila River Subunit, the lower 2 miles of Iron Creek Subunit, and Little
Creek Subunit, and PBF 4 in the lower 2 miles of Iron Creek Subunit,
Little Creek Subunit, and South Fork Negrito Creek.
Our Response: While we did not include descriptions of PBFs for
each subunit in this document, we used the information provided by the
peer reviewer in our reevaluation of occupancy in the revised proposed
critical habitat rule (85 FR 23608; April 28, 2020).
Comment 6: One peer reviewer commented that Willow Creek should be
a subunit for the narrow-headed gartersnake because there is a museum
record from 1989 or 1990 and there are adequate PBFs. Because the site
was formerly suitable, it is likely to become recolonized.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we reviewed gartersnake occupancy to determine
that a stream or stream reach was occupied by the narrow-headed
gartersnake at the time of listing if it is within the historical range
of the species, contains all PBFs for the species (although the PBFs
concerning prey availability and presence of nonnative, aquatic
predators are often in degraded condition), and has a last known record
of occupancy between 1998 and 2019 (see Occupancy Records, 85 FR 23608,
p. 23617-23619) (see Criteria Used To Identify Critical Habitat).
Willow Creek does not have a record for the narrow-headed gartersnake
that meets this occupancy definition, so it is not included in this
final critical habitat designation for the species.

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Comment 7: One peer reviewer commented that we should add the
mainstem of the Negrito reach from the confluence of the north and
south fork Negrito Creeks to its confluence with the Tularosa River
reach.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we reviewed gartersnake occupancy to determine
that a stream or stream reach was occupied by the narrow-headed
gartersnake at the time of listing if it is within the historical range
of the species, contains all PBFs for the species (although the PBFs
concerning prey availability and presence of nonnative, aquatic
predators are often in degraded condition), and has a last known record
of occupancy between 1998 and 2019 (see Occupancy Records, 85 FR 23608,
p. 23617-23619) (see Criteria Used To Identify Critical Habitat). The
mainstem of Negrito Creek meets this definition for the narrow-headed
gartersnake and is included in this final critical habitat designation
for the species.

Federal Agency Comments

Comment 8: The U.S. Forest Service (USFS) commented that the term
``spatially intermittent flow'' used in PCE 1 of the original proposed
critical habitat rule (78 FR 41550; July 10, 2013) is ambiguous because
spacing between sections of flowing water can vary greatly and may not
meet the biological needs of the gartersnake or its prey base.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020) and this rule, we define perennial,
intermittent, and ephemeral as related to stream flow included in PBF 1
for the narrow-headed gartersnake and clarify the spectrum of stream
flow regimes that provide stream habitat for the species based on
scientifically accepted stream flow definitions (Levick et al. 2008, p.
6; Stromberg et al. 2009, p. 330) (see ``Stream Flow'' in 85 FR 23608,
April 28, 2020, p. 23613; see also Physical or Biological Features
Essential to the Conservation of the Species, below).
Comment 9: USFS requested clarification of what level of water
pollutants are ``low enough not to affect recruitment'' for PBF 1(C)
for narrow-headed gartersnake in the revised proposed critical habitat
rule (85 FR 23608; April 28, 2020).
Our Response: We do not have specific data related to water
pollutants that are ``at levels low enough such that recruitment of
narrow-headed gartersnakes is not inhibited'' (85 FR 23608, April 28,
2020, p. 23648). Therefore, in this rule, we have amended this PBF to
read as follows: ``Water quality that meets or exceeds applicable State
surface water quality standards'' (see Physical or Biological Features
Essential to the Conservation of the Species, below). Although water
quality is not identified as a threat to the narrow-headed gartersnake,
it is a threat to its prey base. Water quality that is absent of
pollutants or has low levels of pollutants is needed to support the
fish prey base for the narrow-headed gartersnake. State water quality
standards identify levels of pollutants required to maintain
communities of organisms that have a taxa richness, species
composition, and functional organization that includes the fish prey
base of the narrow-headed gartersnake.
Comment 10: In response to the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), a Federal agency stated that we
should make it clear that when the 600-foot (ft) (182-meter (m)) width
of critical habitat falls outside the stream channel, such as when
channels are constricted by narrow canyon walls, critical habitat does
not include upland areas that would not be used by the narrow-headed
gartersnake.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020) for the narrow-headed gartersnake, we defined
the lateral extent of critical habitat to include terrestrial features
within 89 ft (27 m) of the active channel of a stream that provide
thermoregulation, shelter sites, and protection from predators. This
lateral extent includes some portions of narrow canyon walls and limits
upland areas beyond narrow canyon walls. This lateral distance was
based on the greatest average distance narrow-headed gartersnakes moved
from the water during the wet season at two different sites on the
Tularosa River in New Mexico over a 3-year study with a sample size of
69 individuals (Jennings and Christman 2012, p. 12) (see ``Terrestrial
Space Along Streams,'' 85 FR 23608, April 28, 2020, pp. 23614-23616).
Subsequently, we received two comments on the revised proposed
critical habitat rule (85 FR 23608; April 28, 2020) that a distance of
89 ft (27 m) did not capture known brumation sites on canyon walls used
by narrow-headed gartersnakes in Oak Creek Canyon in Arizona (see
Comment 43, below). As explained in our response to comment 43 below,
we increased the lateral extent of critical habitat up to 328 ft (100
m) in areas with steep canyon walls to more accurately capture areas
used by the narrow-headed gartersnake for brumation. This lateral
extent also limits upland areas beyond narrow canyon walls, and we
conclude that the changes that we made in this rule address all
comments on this issue.
Comment 11: In response to the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), USFS commented that the gartersnake
has strong fidelity for brumation or natal sites.
Our Response: Although we have information that the narrow-headed
gartersnake uses brumation sites, we are not aware of any literature
supporting a conclusion that the species has strong fidelity for these
brumation sites. In this designation, we include some areas that
capture the PBFs of brumation sites that have been documented in
telemetry studies conducted that are described in the revised proposed
critical habitat rule (85 FR 23608, April 28, 2020--see ``Terrestrial
Space Along Streams'' on pp. 85 FR 23614-23616).
Comment 12: In response to the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), several Federal entities commented
that various areas in the proposal do not currently contain the PBFs
for narrow-headed gartersnakes. USFS further stated that it would be
more realistic if we limited critical habitat to the areas that had the
PBFs, if the PBFs are clearly defined and determinable.
Our Response: For the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we reevaluated all streams to determine which
stream reaches contain PBFs. The revised proposed critical habitat rule
and this rule do not include stream reaches where we determined that
water flow became completely ephemeral along an otherwise perennial or
spatially intermittent stream, hydrologic processes needed to maintain
streams could not be recovered, nonnative aquatic predators outnumbered
native prey species, or streams were outside the elevation range for
the narrow-headed gartersnake. The revised proposed critical habitat
rule (85 FR 23608; April 28, 2020) and this rule include areas that
were occupied at the time of listing and contain at least one of the
PBFs. We acknowledge that in some locations, the PBFs concerning prey
availability and presence of nonnative aquatic predators are often in
degraded condition and may require special management (see Changes to
Criteria Used to Identify Critical Habitat in 85 FR 23608, April 28,
2020, pp. 85 FR 23617-23623; and see Regulation Promulgation, below).
Comment 13: In response to the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), several Federal agencies provided
lists of

[[Page 58478]]

specific areas included in proposed critical habitat that do not have
stream flow requirements defined in PBF 1(A) to support the narrow-
headed gartersnake or its corresponding prey species identified in PBF
3. These agencies identified reaches that lacked PBF 1(A) in some areas
along the following streams included in the 2013 proposed critical
habitat rule for the narrow-headed gartersnake: Diamond Creek, Little
Creek, and Turkey Creek in the Upper Gila River Subbasin; Eagle Creek
in the Middle Gila River Subbasin; Dry Blue Creek, San Francisco River,
and South Fork Negrito Creek in the San Francisco River Subbasin; and
Canyon Creek and Carrizo Creek in the Upper Salt River Subbasin. These
areas included stream reaches where water flow became completely
ephemeral along an otherwise perennial or spatially intermittent
stream, and many included the origin of streams, some of which were
outside of the known elevation range of the species.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we did not include stream reaches where water
flow becomes completely ephemeral along an otherwise perennial or
spatially intermittent stream, and we incorporated related information
received from USFS and others regarding stream flow. We incorporated
stream flow information received from USFS for Diamond Creek and Gilita
Creek in the Upper Gila River Subbasin Unit for narrow-headed
gartersnake. Based on information from USFS and others related to lack
of stream flow along Diamond Creek and Gilita Creek, designated
critical habitat for the narrow-headed gartersnake along Diamond Creek
ends 0.26 miles (mi) (0.4 kilometers (km)) upstream from Star Canyon,
and critical habitat along Gilita Creek ends upstream of Willow Creek.
The rule set that we applied in the 2020 revised proposed rule limited
critical habitat to the known elevation range of the species and
limited stream length by dispersal distance from confirmed gartersnake
locations dated 1998 or later. When applied, these two factors of the
rule set removed all other areas that the commenting Federal agencies
identified as not having stream flow requirements for the narrow-headed
gartersnake.
Comment 14: In response to the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), USFS stated that narrow-headed
gartersnake critical habitat in high montane meadows and stream origins
in ponderosa pine and mixed conifer forests does not have potential to
develop shoreline habitat as it is defined in PBF 1(C): Shoreline
habitat with adequate structural complexity and appropriate amounts of
shrub- and sapling-sized plants.
Our Response: The PBFs in the revised proposed critical habitat
rule (85 FR 23608; April 28, 2020) and this rule do not include the
term ``shoreline habitat'' or the components that were included in
shoreline habitat in the 2013 proposed rule. Instead, PBFs 1(B) and
1(D) focus on components that are found throughout all habitat types
used by the narrow-headed gartersnake, including organic and natural
inorganic structural features important to the narrow-headed
gartersnake that fall within the stream channel and within terrestrial
habitat that is up to 328 ft (100 m) from the active stream channel.
Comment 15: USFS stated that many areas included in critical
habitat in the original proposed critical habitat rule (78 FR 41550;
July 10, 2013) do not have PBF 4: An absence of nonnative fish species
of the families Centrarchidae and Ictaluridae, bullfrogs, and/or
crayfish. USFS also stated that much of proposed critical habitat may
not have the capacity to ever become recolonized by the narrow-headed
gartersnake due to the current and likely future conditions of these
nonnative invasive species. In response to the revised proposed
critical habitat rule (85 FR 23608; April 28, 2020), USFS further
commented that it will be difficult if not impossible for USFS to
attain this PBF on its lands that it manages because nonnative species
are managed by the State and not by USFS.
Our Response: The revised proposed critical habitat rule (85 FR
23608; April 28, 2020) and this final rule include areas that were
occupied at the time of listing, but areas that contain nonnative
aquatic predators are often in degraded condition and require special
management. While recognizing USFS concerns, these areas have the
capacity to be managed to improve the condition of the PBFs for the
narrow-headed gartersnake through cooperative efforts between State
wildlife agencies and USFS, and these types of efforts have already
successfully been undertaken by USFS and State wildlife agencies within
the range of the narrow-headed gartersnake.
Comment 16: In response to the revised proposed critical habitat
rule (85 FR 23608; April 28, 2020), USFS stated that we did not provide
much explanation for what might constitute special management
considerations that may be needed in critical habitat, so it is not
clear what types of management are likely to result in improved PBFs.
USFS commented that there should be some recognition of the potential
value of restorative actions that often have short-term adverse effects
but are designed to result in beneficial effects (e.g., channel
restoration, prescribed fire, riparian vegetation improvements, etc.).
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we stated that we were not changing any of the
special management considerations from the 2013 original proposed
critical habitat rule for the narrow-headed gartersnake (see Special
Management Considerations or Protection in 85 FR 23608, April 28, 2020,
p. 23624). However, the 2013 original proposed critical habitat rule
did not include recognition of the potential value of restorative
actions that often have short-term adverse effects but are designed to
result in beneficial effects (see Special Management Considerations or
Protection in 78 FR 41550, July 10, 2013, pp. 41555-41556). To address
this comment and the information lacking in the 2013 original proposed
critical habitat rule, we have added this information to the discussion
of special management considerations in this final rule.
Comment 17: In response to the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), USFS stated that proposed critical
habitat for the narrow-headed gartersnake included areas outside of the
known elevation range and areas that do not have records of the
species, including portions of Diamond Creek, Gilita Creek, and Iron
Creek in the Upper Gila River Subbasin.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we included the elevation range of narrow-
headed gartersnake as a PBF essential to the conservation of the
species and did not include areas in the proposed critical habitat
designation outside of this elevation range.
Comment 18: In response to the revised proposed critical habitat
rule (85 FR 23608; April 28, 2020), USFS stated that East Fork Black
River, Bear Wallow Creek, and Fish Creek were not considered occupied
by narrow-headed gartersnake in the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), and that we did not provide
information to support these additions in the 2020 revised proposed
critical habitat rule. USFS questioned the validity of the Arizona Game
and Fish Department (AGFD) record for narrow-headed gartersnake in Fish
Creek and further stated that Fish Creek was

[[Page 58479]]

heavily impacted by the 2011 Wallow Fire. USFS recommended removing
East Fork Black River, Bear Wallow Creek, and Fish Creek from the final
designation.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we reviewed gartersnake occupancy to determine
that a stream or stream reach was occupied at the time of listing for
the narrow-headed gartersnake if it is within the historical range of
the species, contains PBFs for the species (although the PBFs
concerning prey availability and presence of nonnative aquatic
predators are often in degraded condition), and has a last known record
of occupancy between 1998 and 2019 (see Occupancy Records, 85 FR 23608,
p. 23617-23619) (see Criteria Used To Identify Critical Habitat).
During this review, we became aware of additional records for areas we
did not include in the 2013 proposed rule, and so we included them in
our occupancy determination. While we did not discuss individual
gartersnake records that contribute to occupancy in the 2013 proposed
rule or the 2020 revised proposed rule, we have these records in our
files. AGFD provided and verified records of narrow-headed gartersnakes
in the East Fork Black River, Bear Wallow Creek, and Fish Creek
(Arizona Game and Fish Department 2013, entire; Ryan 2020, pers.
comm.). While the 2011 Wallow Fire significantly reduced native fish
abundance in Fish Creek, native fish have since recolonized the stream
(Nowak et al. 2017, Table 3). For these reasons, we included these
areas in this final designation.
Comment 19: In response to the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), USFS stated that proposed critical
habitat will affect numerous livestock grazing allotments on the Tonto
National Forest. In addition, another Federal agency stated concerns
about current and potential future management of public lands within
proposed designated critical habitat areas, including grazing and off-
highway vehicle (OHV) use. There is a grazing permit renewal under
review that would allow for grazing October through January within the
Palmerita Ranch allotment on riparian and upland areas. The agency also
stated that there is a special recreational permit issued for an annual
3-day OHV poker run event, which would occur partially on navigable
washes on Federal lands.
Our Response: With respect to livestock grazing and OHV use in
areas of critical habitat, Federal agencies that authorize, carry out,
or fund actions that may affect listed species or designated critical
habitat are required to consult with us to ensure the action is not
likely to jeopardize listed species or destroy or adversely modify
designated critical habitat. This consultation requirement under
section 7 of the Act is not a prohibition of Federal agency actions;
rather, it is a means by which they may ensure that their actions
proceed in a manner that avoids jeopardy or adverse modification. Even
in areas absent designated critical habitat, if the Federal agency
action may affect a listed species, consultation is still required to
ensure the action is not likely to jeopardize the species. Because the
areas designated as critical habitat are occupied and consultation will
be required to meet the jeopardy standard, the impact of the critical
habitat designation should be minimal and administrative in nature.
Comment 20: In response to the revised proposed critical habitat
rule (85 FR 23608; April 28, 2020), USFS stated that maintenance of
adequate base flow in Eagle Creek is impacted by State water law and
rights and outside of the purview of USFS. USFS expressed concern that
Federal agencies may be impacted by the Act's section 7 reasonable and
prudent measures that are not implementable.
Our Response: We understand that maintenance of adequate base flow
in streams is impacted by State water law and rights that are outside
of the purview of USFS. Under section 7 of the Act when evaluating the
effects on critical habitat, we consider impacts on base flow from
ongoing State water management operations within the designated units
that are not within the agencies' discretion to modify to be part of
the baseline of an effects analysis. Service policy states that section
7 consultation should result in reasonable and prudent measures that
minimize the impacts of incidental take to the extent reasonable and
prudent. They should be developed in coordination with the action
agency and applicant, in any, to ensure that the measures are
reasonable, that they cause only minor changes to the project, and that
they are within the legal authority and jurisdiction of the agency or
applicant to carry out. Therefore, they must be implementable.
Comment 21: In response to the original proposed critical habitat
rule (78 FR 41550; July 10, 2013), USFS requested we define disturbance
thresholds for actions ``that would significantly increase sediment
deposition or scouring within the stream channel'' such as vegetation
treatments, prescribed fire, and wildfire suppression. USFS also
requested we include language addressing the scope, scale, and duration
of actions ``that would alter water chemistry beyond the tolerance
limits of a gartersnake prey base'' and actions ``that would remove,
diminish, or significantly alter the structural complexity of key
natural structural habitat features in and adjacent to critical
habitat.'' USFS stated that these actions are extremely broad in scope
and do not differentiate short-term impacts from true long-term, more
permanent impacts that could result in adverse modification.
Our Response: The purpose of the designation of critical habitat to
identify those areas critical to the conservation of the species. For
the public and section 7 practitioners to understand the types of
actions considered to have potential effects on designated critical
habitat, we generally identify those types of actions that could
potentially result in adverse modification of designated critical
habitat. The actual effects of a proposed action on designated critical
habitat are dependent on many factors related to both the action being
proposed and the project area. Therefore, we cannot determine and
include thresholds for adverse modification in this rule. The
appropriate process for that determination is the Act's section 7
process, during which specific factors within the proposed action and
conditions within the project area can be evaluated.
Comment 22: In response to the revised proposed critical habitat
rule (85 FR 23608; April 28, 2020), USFS commented that ``[a]ctions and
structures that would physically block movement of gartersnakes and
their prey species'' should not include a discussion of predatory
species, because the presence of nonnative aquatic predatory species in
a waterbody reduces population viability, which is considered under
actions included in those ``that would directly or indirectly result in
the introduction, spread, or augmentation of predatory nonnative
species in gartersnake habitat.''
Our Response: Including this language with regard to nonnative
aquatic predatory species within the description of actions and
structures that would block the movements of gartersnakes and their
prey species, as well as within the description of actions that would
result in the introduction, spread, and augmentation of predatory
nonnative species, is important to clarify two different types of
effects that result from similar actions. The presence of such
nonnative aquatic predatory species can both act as a barrier to
movement and reduce habitat

[[Page 58480]]

quality due to presence of nonnative aquatic predatory species.
Comment 23: In response to both the original proposed critical
habitat rule (78 FR 41550; July 10, 2013) and the revised proposed
critical habitat rule (85 FR 23608; April 28, 2020), USFS and others
stated that we need to provide a reasonable, rational, and non-
arbitrary timeframe for restocking of streams treated with piscicides,
as the application of a standard that would determine adverse
modification if the prey base was affected as described for 7 or more
days would in many cases preclude the application of piscicides to
restore listed or at-risk aquatic species, forsaking their recovery for
gartersnakes.
Our Response: The purpose of the designation of critical habitat is
not to evaluate every potential project or action that could adversely
affect or modify designated critical habitat, but rather to identify
those areas critical to the conservation of the narrow-headed
gartersnake. For the public and section 7 practitioners to understand
the types of actions considered to have potential effects to designated
critical habitat, we generally identify those types of actions that
could potentially result in adverse modification of designated critical
habitat. The actual effects of a proposed action of designated critical
habitat are dependent on many factors related to both the action being
proposed and the project area. Therefore, we cannot determine and
include overall thresholds for adverse modification in this rule. The
appropriate process for that determination is during the Act's section
7 process, during which specific factors within the proposed action and
conditions within the project area can be evaluated.
Comment 24: The U.S. Small Business Administration and other
commenters stated that we should consider the full scope of economic
impacts to small entities and conduct a thorough Regulatory Flexibility
Act analysis for critical habitat rules.
Our Response: Under the Regulatory Flexibility Act (RFA; 5 U.S.C.
601 et seq.), as amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), Federal agencies
are required to evaluate the potential incremental impacts of a
rulemaking only on directly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried out by the agency is not likely to adversely modify critical
habitat. Therefore, only Federal action agencies are directly subject
to the specific regulatory requirement (avoiding destruction and
adverse modification) imposed by critical habitat designation. Under
these circumstances, it is our position that only Federal action
agencies will be directly regulated by this designation. Therefore,
because Federal agencies are not small entities, we can certify that
this rule will not have a significant economic impact on a substantial
number of small entities (see Required Determinations, below). Thus, no
regulatory flexibility analysis is required.
Comment 25: The U.S. Small Business Administration commented that
we should continue to engage with stakeholders early in the process and
consider public comments.
Our Response: Stakeholder engagement is important to balancing the
long-term conservation of sensitive species and their habitats with the
interests of stakeholders and the needs of the public. For our original
proposed critical habitat rule (78 FR 41550; July 10, 2013) and revised
proposed critical habitat rule (85 FR 23608; April 28, 2020), we
conducted outreach to relevant Federal, State, and local municipalities
and stakeholders, and published public news releases to alert the
public to the proposals and request public comments. Specifically, in
the proposed rules, we solicited information from the public regarding
potential exclusions of areas based on management plans or other
conservation efforts including partnerships, as well as other
information related to the species and potential impacts of designating
critical habitat. This final rule outlines our consideration of public
comments we received on both the original and revised proposed rules.

State Comments

Comment 26: Arizona Game and Fish Department (AGFD) commented that
while they recognize the intent of our use of the term ``predatory
sportfish,'' it is important to point out that all sportfish are
predatory, as are all of our native fishes (i.e., they all prey on
other organisms) and all interactions with sportfish are not negative.
Further, not all sportfish or native species eat snakes.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we used the term ``predatory sportfish'' to
explain how we delineated critical habitat: We identified and removed
stream reaches where stocking or management of predatory sportfish is a
priority and is conducted on a regular basis. In this rule, we have
removed the term ``predatory sportfish'' and replaced it with
``nonnative fish species of the families Centrarchidae and
Ictaluridae,'' so that it is consistent with the description of species
used in the PBF related to nonnative aquatic predators.
Comment 27: In response to our original proposed critical habitat
rule (78 FR 41550; July 10, 2013), New Mexico Department of Game and
Fish (NMDGF) commented that the narrow-headed gartersnake is known both
historically and recently from all three of its properties within or
adjacent to the Upper Gila River Subbasin Unit. These properties
include the Red Rock Wildlife Management Area, which is a public
fishing and recreation area; the Bill Evans Fishing Area, which is a
public fishing site; and the Heart Bar Wildlife Area, which is a public
fishing and recreation area. NMDGF also noted that the proposal
includes its Glenwood State Fish Hatchery within the narrow-headed
gartersnake San Francisco River Subbasin Unit.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we reviewed narrow-headed gartersnake occupancy
to determine that a stream or stream reach was occupied at the time of
listing for the narrow-headed gartersnake if it is within the
historical range of the species, contains PBFs for the species
(although the PBFs concerning prey availability and presence of
nonnative aquatic predators are often in degraded condition), and has a
last known record of occupancy between 1998 and 2019 (see Occupancy
Records, 85 FR 23608, p. 23617-23619) (see Criteria Used To Identify
Critical Habitat). As a result of our review of occupancy and
implementation of our rule set for stream length, we have added Red
Rock Wildlife Management Area, Bill Evans Fish Area, and Heart Bar
Wildlife Area to the description of the Upper Gila River Subbasin Unit
in this final critical habitat designation for the narrow-headed
gartersnake.
Comment 28: AGFD stated that the revised proposed critical habitat
rule (85 FR 23608; April 28, 2020) is adequate for recovery of the
narrow-headed gartersnake and that there are some areas that were
occupied historically but from which the species has been extirpated.
AGFD will continue the recovery efforts of reintroducing narrow-headed
gartersnakes back into historically occupied habitats to contribute to
recovery, regardless of their current occupied status or their critical
habitat designation.
Our Response: We appreciate the AGFD's partnership in the
conservation and recovery of the narrow-headed

[[Page 58481]]

gartersnake. We only consider unoccupied areas to be essential where a
critical habitat designation limited to geographical areas occupied at
the time of listing by the species would be inadequate to ensure the
conservation of the species. In addition, for an unoccupied area to be
considered essential, we must determine that there is a reasonable
certainty both that the area will contribute to the conservation of the
species and that the area contains one or more of the PBFs essential to
the conservation of the species. At this point in time, we do not know
what areas within the species' historical range will contribute to the
conservation of the species.
Comment 29: Both AGFD and NMDGF stated concerns with the
Application of the ``Adverse Modification'' Standard discussion in the
revised proposed critical habitat rule (85 FR 23608, April 28, 2020,
pp. 23633-23634). AGFD pointed out that in the same discussion in the
original proposed critical habitat rule (78 FR 41550, July 10, 2013,
pp. 41576-41577), we discuss activities ``that may affect critical
habitat, when carried out, funded, or authorized by a Federal agency
[and that] should result in section 7 consultation,'' but in the 2020
revised proposed critical habitat rule, we discuss the same activities
but change the ``may affect critical habitat'' to ``are likely to
destroy or adversely modify critical habitat.'' AGFD recommended that
in the final rule we use the same language in this discussion that we
used in the 2013 original proposed critical habitat rule. AGFD also
expressed concern that the 2020 revised proposed critical habitat rule
essentially says that the effect has already been determined that any
of these activities will destroy or adversely modify critical habitat.
Our Response: The change in wording as it applies to the
Application of the ``Adverse Modification'' Standard in the 2020
revised proposed critical habitat rule (85 FR 23608, April 28, 2020)
was a response to correct an error in phrasing from the original
proposed critical habitat rule (78 FR 41550, July 10, 2013). In this
rule's Application of the ``Adverse Modification'' Standard discussion,
below, we include actions that could cause adverse effects to critical
habitat, and not necessarily cause adverse modification to critical
habitat, so that the public and section 7 practitioners can understand
the types of actions we consider to have potential effects to
designated critical habitat. The actual effects of a proposed action on
designated critical habitat are dependent on many factors related to
both the action being proposed and the project area. Therefore, we
cannot determine and include thresholds for adverse modification in
this rule. The appropriate process for that determination is the Act's
section 7 process, during which specific factors within the proposed
action and conditions within the project area can be evaluated.
Comment 30: Both AGFD and NMDGF stated concerns with some
activities included in the analysis of the ``adverse modification''
standard because the activities are valuable to the restoration and
recovery of native species even if they have temporary impacts to
critical habitat. AGFD and NMDGF expressed concern about the time
threshold we included in the Application of the ``Adverse
Modification'' Standard discussion to determine that actions that would
deliberately remove, diminish, or significantly alter the native or
nonnative, soft-rayed fish component of the prey base within occupied
habitat for a period of 7 days or longer would reach an adverse
modification determination. AGFD further explained that stream
renovation projects are needed to ensure that a healthy native fish
community exists and that gartersnakes will also thrive. Chemical
renovations can take longer than 7 days for the chemicals to dissipate
to levels that are safe for native fish, or multiple treatments may
need to be conducted to be effective. NMDGF requested removing fish
barriers, water diversion, fish habitat restoration, and chemical
treatments from the Application of the ``Adverse Modification''
Standard discussion in the final rule.
Our Response: In this rule's Application of the ``Adverse
Modification'' Standard discussion, below, we acknowledge that some
conservation actions will have short-term adverse effects but will
ultimately result in long-term benefits to gartersnake critical
habitat. The actual effects of a proposed action of designated critical
habitat are dependent on many factors related to both the action being
proposed and the project area. The appropriate process for that
determination is the Act's section 7 process, during which specific
factors within the proposed action and conditions within the project
area can be evaluated. We understand that there are no clear data to
suggest that narrow-headed gartersnakes must feed within 7 days of
their last meal. As stated above, we also agree that it is not possible
to determine and include thresholds for adverse modification in this
rule. Therefore, in this rule, we removed the time threshold that
commenters interpreted to limit fish removal to a 7-day window.
Comment 31: NMDGF requested exclusion for the Glenwood State Fish
Hatchery in the Whitewater Creek Subunit of the San Francisco River
Subbasin Unit for the narrow-headed gartersnake because there are no
records of the species within the hatchery boundary and Whitewater
Creek is not perennial at the hatchery. NMDGF further explains that the
Service's Memorandum for the Intra-Service Section 7 Endangered Species
Act Consultation for the Proposed Operation and Maintenance of Hatchery
Facilities NM F-66 Project concurred with a ``no effect'' determination
for the narrow-headed gartersnake because the snake is not currently
present.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we reviewed narrow-headed gartersnake occupancy
to determine that a stream or stream reach was occupied at the time of
listing for narrow-headed gartersnake if it is within the historical
range of the species, contains PBFs for the species (although the PBFs
concerning prey availability and presence of nonnative aquatic
predators are often in degraded condition), and has a last known record
of occupancy between 1998 and 2019 (see Occupancy Records, 85 FR 23608,
p. 23617-23619) (see Criteria Used To Identify Critical Habitat). The
segment of Whitewater Creek included in the critical habitat
designation for the narrow-headed gartersnake meets this definition.
In the revised proposed critical habitat rule (85 FR 23608; April
28, 2020) and this rule, we also define perennial, intermittent, and
ephemeral as related to stream flow included in PBF 1 for the narrow-
headed gartersnake and clarify the spectrum of stream flow regimes that
provide stream habitat for the species based on scientifically accepted
stream flow definitions (Levick et al. 2008, p. 6; Stromberg et al.
2009, p. 330) (see ``Stream Flow'' in 85 FR 23608, April 28, 2020, p.
23613; see also Physical or Biological Features Essential to the
Conservation of the Species, below). Although Whitewater Creek is
ephemeral at the Glenwood State Fish Hatchery, it is perennial upstream
of the hatchery and downstream at its confluence with the San Francisco
River, so the entire stream segment meets our definition of critical
habitat.
Under section 7 of the Act, Federal agencies are required to
consult with the Service to ensure that the actions they carry out,
fund, or authorize are not

[[Page 58482]]

likely to jeopardize the continued existence of the species, or destroy
or adversely modify critical habitat. For a jeopardy or ``take''
analysis, we analyze effects to a species if the species is present in
the action area during the time of the action. For an adverse
modification analysis, we analyze effects to critical habitat if
critical habitat for a species is present in the action area.
Therefore, defining where a species is occupied at the time of listing
for critical habitat designation is not synonymous with a determination
that an area is currently occupied for purposes of a jeopardy analysis
under section 7 of the Act or a ``take'' analysis under section 10 of
the Act. Those determinations depend on the best available information
at the time of the analysis, and the likely effects and likelihood of
take depend on the action under consideration.
While the Glenwood State Fish Hatchery along Whitewater Creek meets
our definition of critical habitat, consideration of possible
exclusions from critical habitat are in our discretion and generally
follow our Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act (81 FR 7226; February 11, 2016). With respect to
NMDGF's request to exclude the Glenwood State Fish Hatchery along
Whitewater Creek, we are not excluding the area from this final rule.
See Consideration of Impacts under Section 4(b)(2) of the Act, Private
or Other Non-Federal Conservation Plans or Agreements and Partnerships,
in General, below.
Comment 32: New Mexico Department of Agriculture (NMDA) expressed
support for excluding private lands owned by Freeport-McMoRan within
the U-Bar Ranch property along the Gila River from critical habitat for
the narrow-headed gartersnake. NMDA stated that voluntary conservation
planning and actions on the property are adequate for conserving the
species. Freeport-McMoRan Tyrone Inc. and Pacific Western Land Company
(collectively known as ``FMC'') also commented that lands owned by FMC
along the upper Gila River in the Gila/Cliff Valley, Grant County, New
Mexico, should be excluded from critical habitat pursuant to section
4(b)(2) of the Act based on their habitat management plans for
spikedace (Meda fulgida) and loach minnow (Rhinichthys cobitis) and for
southwestern willow flycatcher (Empidonax traillii extimus). They
stated that these management plans protect and support habitat for
aquatic and riparian species, including native prey species for the
narrow-headed gartersnake.
Our Response: Consideration of possible exclusions from critical
habitat are in our discretion and generally follow our Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR
7226; February 11, 2016). In response to FMC's request to exclude their
lands along the upper Gila River based on FMC habitat management plans
for spikedace and loach minnow and for grazing management actions
benefiting southwestern willow flycatcher, we have determined that the
exclusion would not be appropriate for several reasons. Although we
commend FMC for investing time, effort, and funding for conservation on
the Gila River, the habitat conservation efforts to date that have been
implemented are focused on management actions for spikedace, loach
minnow, and southwestern willow flycatcher along the Gila River. There
are no conservation efforts specific to the narrow-headed gartersnake
included in these plans. In identifying critical habitat for the
narrow-headed gartersnake, we identified those areas that meet the
definition of critical habitat under section 3(5)(A) of the Act.
Although management actions for one listed species may overlap other
species' habitat or be mutually beneficial to multiple listed species,
the PBFs in occupied habitat for the narrow-headed gartersnake differ
from the PBFs identified for spikedace, loach minnow, and southwestern
willow flycatcher. As a result, excluding these areas based on
management for listed fish and bird species does not meet our criteria
for exclusion. With respect to the Upper Gila River Subbasin Unit for
the narrow-headed gartersnake, we determined that the benefits of
exclusion do not outweigh the benefits of inclusion. See Consideration
of Impacts under Section 4(b)(2) of the Act, Private or Other Non-
Federal Conservation Plans or Agreements and Partnerships, in General,
below.
Comment 33: NMDA commented that we should reconsider the value of
critical habitat if we cannot identify a case in which consultation
would require additional conservation measures.
Our Response: We are required by section 4(a)(3) of the Act to
designate critical habitat for listed species if we find that the
designation is prudent and determinable, as we did for the narrow-
headed gartersnake, regardless of whether we can foresee project
modifications that may be required.
Comment 34: NMDGF requested that we exclude developed, human-made
fish migration barrier structures from critical habitat because
including them will hinder conservation efforts for native fish and
snakes by delaying construction and maintenance efforts of these
structures.
Our Response: When determining critical habitat boundaries, we made
efforts to avoid including developed areas such as lands covered by
buildings, pavement, and other structures because such lands lack the
PBFs. The human-made fish barriers are in-water structures that fall
within the boundaries of habitats used by narrow-headed gartersnakes.
Because of this and the limitations of map scale, any developed lands,
such as constructed fish barriers left inside critical habitat
boundaries, are not considered critical habitat because they lack the
necessary PBFs. However, a Federal action involving the fish barriers,
such as maintenance, may trigger section 7 consultation with respect to
critical habitat or the prohibition of adverse modification if the
specific action would affect the PBFs in surrounding critical habitat.
Comment 35: The New Mexico Interstate Stream Commission commented
that the Service must complete an environmental impact statement (EIS)
for designating critical habitat.
Our Response: NEPA dictates that the Service determine the
appropriate level of NEPA review (40 CFR 1501.3). The Service completed
an environmental assessment (EA) to determine whether an EIS was
necessary or if a finding of no significant impact (FONSI) could be
determined. The Service released a draft EA that was available for
public comment from December 18, 2020, to January 16, 2021, on the
Arizona Ecological Services Field Office website; we received five
comments on the draft EA. After addressing the public comments
received, the Service finalized the EA and found that designating
critical habitat for the narrow-headed gartersnake would not result in
significant impacts to the environment. A copy of the final EA and
FONSI is available at http://www.regulations.gov at Docket No. FWS-R2-
ES-2020-0011. Therefore, the appropriate NEPA process was completed,
and an EIS is not required.

Tribal Comments

In accordance with our requirements to coordinate with Tribes on a
government-to-government basis, we solicited information from the
following 17 Tribes regarding the designation of critical habitat for
the narrow-headed gartersnake: Chemehuevi Indian Tribe, Cocopah Indian
Tribe, Colorado River

[[Page 58483]]

Indian Tribes, Fort McDowell Yavapai Nation, Fort Mojave Indian Tribe,
Gila River Indian Community (GRIC), Hopi Tribe, Hualapai Tribe,
Mescalero Apache Tribe, Pascua Yaqui Tribe, Salt River Pima--Maricopa
Indian Community, San Carlos Apache Tribe, Tohono O'odham Nation, Tonto
Apache Tribe, White Mountain Apache Tribe, Yavapai-Apache Nation, and
Yavapai-Prescott Indian Tribe. While all of these Tribes may have
interest in lands included in proposed critical habitat for the narrow-
headed gartersnake, the only Tribal land included in the revised
proposed critical habitat designation (85 FR 23608; April 28, 2020) was
land owned by the San Carlos Apache Tribe and the White Mountain Apache
Tribe. We also met with representatives of the GRIC and White Mountain
Apache Tribe to discuss this proposed designation. The GRIC expressed
concern regarding potential effects that critical habitat may have on
water allocation. In communications with the Service, the San Carlos
Apache Tribe expressed interest in being excluded from the designation,
and White Mountain Apache Tribe sent a letter requesting to be excluded
from the designation.
Comment 36: GRIC expressed concern about how designation of
critical habitat for the narrow-headed gartersnake on the Gila and San
Francisco Rivers might cause potential curtailment of water inflow to
San Carlos Reservoir and subsequent downstream delivery to GRIC
pursuant to their water rights settlement.
Our Response: We do not anticipate water inflow to San Carlos
Reservoir and subsequent downstream delivery of water to GRIC will be
impacted by this critical habitat designation. The economic analysis
outlines the substantial baseline protections currently afforded the
narrow-headed gartersnake throughout the designation, and it includes a
determination that the impacts of this critical habitat designation
will be minimal (see Consideration of Impacts under Section 4(b)(2) of
the Act, Private or Other Non-Federal Conservation Plans Related to
Permits Under Section 10 of the Act).
Comment 37: White Mountain Apache Tribe requested that the White
Mountain Apache Homeland be excluded from the designation of critical
habitat based on the White Mountain Apache Tribe's management and
conservation of narrow-headed gartersnake habitat through several
measures. These measures include formally approving the White Mountain
Apache Native Fish Management Plan that includes prey species of the
narrow-headed gartersnake; enacting Resolution 89-149 to designate
streams and riparian zones as sensitive fish and wildlife areas;
adopting a Water Quality Protection Ordinance to promote the health of
Tribal waters and the people, plants, and wildlife that depend on them;
and implementing overall holistic management of wildlife and natural
resources within the Tribe's Homeland. White Mountain Apache Tribe also
stated that the designation would infringe on Tribal sovereignty and
directly interfere with Tribal self-government recognized as paramount
in Joint Secretarial Order No. 3206.
Our Response: We have reviewed the request for exclusion from the
White Mountain Apache Tribe and excluded all Tribal lands from the
final designation under section 4(b)(2) of the Act (see Consideration
of Impacts under Section 4(b)(2) of the Act, below). Because all Tribal
lands have been excluded from this final critical habitat designation,
any required conservation activities on Tribal lands would be based
solely on the presence of the narrow-headed gartersnake on Tribal lands
due to the listing of the species as a threatened species under the Act
(see 79 FR 38678; July 8, 2014).

Public Comments

Comment 38: Several commenters stated that designating critical
habitat for the narrow-headed gartersnake is not prudent because
disclosing where individuals can be found would increase illegal taking
of these species. Several commenters also stated that designating
critical habitat is not prudent because most of the stream reaches
included in the proposed designation have already been designated as
critical habitat for other listed species.
Our Response: As discussed in the final listing rule (79 FR 38678;
July 8, 2014), there is no imminent threat of take attributed to
illegal collection for this species, and identification and mapping of
critical habitat is not expected to initiate any such threat.
Additionally, criteria used to determine if designation of critical
habitat for the narrow-headed gartersnake is prudent pursuant to our
regulations (50 CFR 424.12(a)(1)) may differ from criteria used to
designate critical habitat for other listed species. Therefore, because
none of the circumstances enumerated in our regulations at 50 CFR
424.12(a)(1) has been met and because there are no other circumstances
we have identified for which this designation of critical habitat would
not be prudent, we have determined that the designation of critical
habitat is prudent for the species.
In development of the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we used the best scientific and commercial
information available. In that revised proposed rule, we reassessed
occupancy at the time of listing by reviewing all records for the
narrow-headed gartersnake that we used in our original proposed
critical habitat rule (78 FR 41550; July 10, 2013) in conjunction with
expected survivorship of the species. We also used subsequent surveys
in areas that had no detection of the species, and reviewed changes in
threats that may have prevented occupancy at the time of listing. We
determined that the best available information reflecting occupancy at
the time of listing supports a more recent date of records since 1998,
which includes areas within the United States (see Criteria Used To
Identify Critical Habitat, below). This and other information represent
the best scientific and commercial data available and led us to
determine areas of occupancy at the time of listing. Our review of the
best scientific and commercial data available supports the conclusion
that the designation of critical habitat is prudent and determinable
for the narrow-headed gartersnake.
Comment 39: Multiple commenters stated that the available data are
insufficient to identify the species' needs and impacts from wildfires
in order to determine areas for critical habitat.
Our Response: In development of the revised proposed critical
habitat rule (85 FR 23608; April 28, 2020), we used the best scientific
and commercial information available. We have sufficient information to
determine the areas essential to the conservation of the species (i.e.,
critical habitat) as documented in the 2020 revised proposed rule. In
addition to reviewing narrow-headed gartersnake-specific survey
reports, we also focused on survey reports and heritage data for fish
and amphibians from State wildlife agencies, as they captured important
data on the existing community ecology that affects the status of the
narrow-headed gartersnake. In addition to species data sources, we used
publicly available geospatial datasets depicting water bodies, stream
flow, vegetation type, and elevation to identify critical habitat
areas. We reviewed the available information pertaining to the
biological needs of the species and habitat characteristics where the
species is located. This and other information represent the best
scientific and commercial data available and led us to

[[Page 58484]]

conclude that the designation of critical habitat is determinable for
the narrow-headed gartersnake.
As discussed in the final listing rule (79 FR 38678; July 8, 2014),
landscape-scale wildfires have impacted the species and its habitats.
We understand that wildfires can cause sedimentation that can reduce
water quality and prey availability for the narrow-headed gartersnake,
and we included areas in critical habitat that had records of the
species from 1998 to 2019, but that may need special management to
maintain PBFs 1 and 3 as a result of recent or future wildfires.
Comment 40: Two commenters stated that ephemeral reaches of
streams, as well as intermittent streams, can provide habitat for
narrow-headed gartersnakes. Gartersnakes use them on a seasonal basis,
and they may have lower densities of nonnative aquatic species.
Therefore, they should be included in the critical habitat designation.
Our Response: In development of the revised proposed critical
habitat rule (85 FR 23608; April 28, 2020), we clarified the spectrum
of stream flow regimes that provide stream habitat for the narrow-
headed gartersnake based on scientifically accepted stream flow
definitions (Levick et al. 2008, p. 6; Stromberg et al. 2009, p. 330).
We define a ``spatially intermittent'' stream as a stream that is
interrupted, perennially interrupted, or spatially intermittent; has
perennial flow occurring in areas with shallow bedrock or high
hydraulic connectivity to regional aquifers; and has ephemeral to
intermittent flow occurring in areas with deeper alluvial basins or
greater distance from the headwaters (Stromberg et al. 2009, p. 330).
The spatial patterning of wet and dry reaches on spatially intermittent
streams changes through time in response to climatic fluctuations and
to human modifications of the landscape (Stromberg et al. 2009, p.
331).
We explain that streams that have perennial or spatially
intermittent flow can provide stream habitat for the species (Levick et
al. 2008, p. 6; Stromberg et al. 2009, p. 330) (see ``Stream Flow'' in
85 FR 23608, April 28, 2020, p. 23613; and Physical or Biological
Features Essential to the Conservation of the Species, below). While
streams with intermittent flow reaches do serve as habitat for narrow-
headed gartersnakes and are included in the designation, ephemeral
streams do not. Within the range of the narrow-headed gartersnake,
perennial streams become ephemeral as they approach their headwaters.
Narrow-headed gartersnakes have not been found in these ephemeral
reaches because fish communities become sparse to nonexistent in these
areas so that the gartersnake prey base is likely absent. In addition,
there is no upstream habitat above the headwaters of a stream, so these
ephemeral reaches do not provide connectivity and are not included in
critical habitat.
Comment 41: One commenter stated that we should maintain a
shoreline component as part of the PBFs that identify critical habitat.
They stated their view that eliminating the shoreline component could
result in improperly leaving out habitats that narrow-headed
gartersnakes use because they span the transition between upland
riparian and in-stream habitats.
Our Response: We do not use the term ``shoreline habitat'' in the
PBFs for the narrow-headed gartersnake because shorelines fluctuate.
Instead, we are focusing on the substrate. The key to the original
primary constituent element for ``shoreline habitat'' was the substrate
itself, not the fluctuating shoreline. The revised PBF 1 focuses on the
organic and natural inorganic structural features important to the
narrow-headed gartersnake that fall within the stream channel and still
encompass the transition between in-stream habitat and land habitat.
Comment 42: One commenter stated that there are no currently
available data on the effects of pollutants on the recruitment of
narrow-headed gartersnakes; therefore, including PBF 1(C) for the
narrow-headed gartersnake, which concerns water quality with low to
zero levels of pollutants, is not using the best available science.
Our Response: We do not have specific data related to the effects
of water pollutants on the recruitment of the narrow-headed
gartersnake. Therefore, in this rule, we have amended the relevant PBF
to read as follows: ``Water quality that meets or exceeds applicable
State surface water quality standards.'' (For more information, see
Physical or Biological Features Essential to the Conservation of the
Species, below). Although water quality is not identified as a direct
threat to the narrow-headed gartersnake, it is a threat to its prey
base. Water quality that is absent of pollutants or has low levels of
pollutants is needed to support the fish prey base for the narrow-
headed gartersnake. State water quality standards identify levels of
pollutants required to maintain communities of organisms that have a
taxa richness, species composition, and functional organization that
includes the fish prey base of the narrow-headed gartersnake.
Comment 43: Two commenters stated that 89 ft (27 m) from the
water's edge does not capture the lateral distance from streams that
individual narrow-headed gartersnakes moved for brumation in Oak Creek
Canyon, Arizona, which is between 276 and 328 ft (84 and 100 m).
Our Response: We agree that terrestrial habitat as defined in PBF
1(D) for the narrow-headed gartersnake does not include all known
brumation sites for the species, including several sites located on
steep slopes in Oak Creek Canyon that we discussed in the revised
proposed rule (see ``Terrestrial Space Along Streams,'' 85 FR 23608,
April 28, 2020, pp. 23614-23616). In the 2020 revised proposed rule, we
modified that lateral extent boundary of critical habitat to 89 ft from
the active channel of a stream based on the greatest average distance
moved from water during the wet season on the Tularosa River in New
Mexico from a 3-year study with a sample size of 69 individuals at two
different sites. Because this study was conducted during the active
season, it does not include brumation sites. We also did not include
areas for brumation in PBF 1(D) for the narrow-headed gartersnake. This
was an oversight, and we have added brumation to PBF 1(D) for narrow-
headed gartersnake in this final rule. As a result, we have also
increased the lateral extent of critical habitat for the narrow-headed
gartersnake up to 328 ft (100 m) from the water's edge, so that
critical habitat includes additional areas for brumation along streams
within narrow-walled canyons such as Oak Creek Canyon in Arizona (see
Summary of Essential Physical or Biological Features, below). All areas
included in this final rule as a result of increasing the lateral
extent of critical habitat units was proposed as critical habitat for
the narrow-headed gartersnake in the 2013 original proposed critical
habitat rule (78 FR 41550; July 10, 2013).
Comment 44: One commenter stated that the proposed critical habitat
for the narrow-headed gartersnake in Eagle Creek in Greenlee County,
Arizona, lacks recent detections, is primarily on Tribal land, and
lacks habitat for the species because it is dominated by nonnative
aquatic predators.
Our Response: In the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we reviewed gartersnake occupancy to determine
that a stream or stream reach was occupied at the time of listing for
the narrow-headed gartersnake if it is within the historical range of
the species, contains

[[Page 58485]]

PBFs for the species (although the PBFs concerning prey availability
and presence of nonnative aquatic predators are often in degraded
condition), and has a last known record of occupancy between 1998 and
2019 (see Occupancy Records, 85 FR 23608, p. 23617-23619) (see Criteria
Used To Identify Critical Habitat). The segment of Eagle Creek included
in critical habitat for the narrow-headed gartersnake meets this
definition, but the areas of it owned by the San Carlos Apache Tribe
were excluded from this final designation.
Comment 45: One commenter stated that we should determine occupancy
at the time of listing (2014) from 1980 to today, as was done in the
original proposed critical habitat rule (78 FR 41550; July 10, 2013),
rather than 1998 to today, which was done in the revised proposed
critical habitat rule (85 FR 23608; April 28, 2020). Repeated
discoveries of populations of narrow-headed gartersnakes that were
thought to be lost or were unknown indicates using 1980 as the earliest
year to determine occupancy at the time of listing is therefore more
appropriate. A lack of documentation of occupancy reflects incomplete
survey effort rather than true non-occupancy.
Our Response: As explained extensively in the revised proposed
critical habitat rule (85 FR 23608; April 28, 2020), although it is
possible that narrow-headed gartersnakes are still extant in areas
where they were detected only during the 1980s or prior, we have
determined that the best available information reflecting occupancy at
the time of listing supports a more recent date of records since 1998.
Based on our analyses in the listing rule (79 FR 38678; July 8,
2014), we conclude that there has been a significant decline in the
species over the past 50 years. This decline appeared to accelerate
during the two decades immediately before listing occurred. From this
observation, we conclude that many areas that were occupied by the
species in surveys during the 1980s are likely no longer occupied
because those populations have likely disappeared. To determine where
loss of populations was most likely, we reviewed survey efforts after
1989 that did not detect narrow-headed gartersnakes in some of the
areas included in the original proposed critical habitat rule (78 FR
41550; July 10, 2013). All surveys conducted since the 1980s that were
considered included at least the same amount or more search effort than
those surveys that detected the species in the 1980s. Since 1998,
researchers have detected narrow-headed gartersnakes in many areas
where they were found in the 1980s, and this includes some areas where
they had not been found prior to the 2014 final listing rule (see
Criteria Used To Identify Critical Habitat, below). An increase in a
species' detection information often occurs as a result of a species
being listed as an endangered or threatened species, due to increased
survey effort spurred by consultation requirements under section 7, as
well as recovery actions or State coordination efforts under section 6,
of the Act. Additional occupancy information is also sometimes obtained
as a result of academic research on a species. Because the best
available information supports a conclusion that these areas were
occupied at the time of listing, we have included these areas in
critical habitat (see Criteria Used To Identify Critical Habitat,
below).
Comment 46: Multiple comments suggested we consider using longer
stream lengths to determine gartersnake occupancy. A species might use
a stream's entire wetted length, rather than just certain reaches, and
the narrow-headed gartersnake had previously been connected in large
stretches of river that are part of high-quality contiguous riparian
habitat.
Our Response: In the original proposed critical habitat rule (78 FR
41550; July 10, 2013), we included the entire stream length of a
perennial or intermittent stream if it had at least one known record
for the narrow-headed gartersnake and at least one record of a native
prey species present. In doing so, we included many areas that were not
within the known range of the species, did not have records of the
species, or did not contain the PBFs. For the revised proposed critical
habitat rule (85 FR 23608; April 28, 2020), we reevaluated all streams
based on comments and reports on water availability, prey availability,
and surveys to determine which reaches contain the PBFs.
In the revised proposed critical habitat rule (85 FR 23608; April
28, 2020) and this final rule, critical habitat includes occupied
streams or stream reaches within the historical range with survey
records of the narrow-headed gartersnake dated from 1998 to 2019 that
have retained the necessary PBFs that will allow for the maintenance
and expansion of existing populations. We placed outer boundaries on
the portion of a stream that is considered occupied. We identified the
most upstream and downstream records of the narrow-headed gartersnake
along each continuous stream reach determined by presence of PBFs, and
we extended the stream reach to include a dispersal distance of 2.2 mi
(3.6 km). After identifying the stream reaches that meet the above
parameters, we then connected those reaches with intervening areas that
have the PBFs. We consider these intervening areas occupied because the
species occurs upstream and downstream and multiple PBFs are present
that allow the species to move through these stream reaches.
Comment 47: One commenter stated that critical habitat should
include areas where native prey is limited and/or where nonnative
species are present, for both occupied and unoccupied critical habitat,
because narrow-headed gartersnakes can survive with low natural prey
populations and the presence of nonnatives. Another commenter stated
that we should not exclude stream reaches where other Federal, State,
Tribal, or private entities may stock predatory sportfish regularly or
as needed, because recovery of listed species should be prioritized in
those areas.
Our Response: This critical habitat designation includes many areas
that are occupied by the narrow-headed gartersnake, where native prey
is limited, and where nonnative species that prey on gartersnakes are
present. Please see Final Critical Habitat Designation, below, for unit
descriptions, including why units meet the definition of critical
habitat for the narrow-headed gartersnake.
Areas subject to stocking of predatory sportfish are not occupied
by the narrow-headed gartersnake. We have not identified any unoccupied
areas that meet the definition of critical habitat. Please see our
response to Comment 50, below.
Comment 48: One commenter stated that the gartersnake is currently
distributed in stream reaches that are dominated by nonnative
vertebrates and crayfish; therefore, the best available science does
not support excluding areas as critical habitat based on an abundance
of nonnative aquatic predators.
Our Response: We acknowledge that the narrow-headed gartersnake is
extant in some areas that have abundant nonnative aquatic predators,
some of which also are prey for gartersnakes, so the presence of
nonnative aquatic predators is not always indicative of absence of the
gartersnake (Holycross et al. 2006). Although we acknowledge that we do
not have a thorough understanding of narrow-headed gartersnake
population dynamics in the presence of nonnative aquatic predators as
compared to other areas, areas with aquatic predators that are
currently known to support gartersnake

[[Page 58486]]

populations are included in this critical habitat designation. That
said, we think it is reasonable to conclude, based on the best
scientific data currently available, that streams or stream reaches
should not be included in the final designation if the last known
occupancy is prior to 1998 and the stream reaches have experienced a
rapid decline in native prey species coupled with an increase in
nonnative aquatic predators since gartersnakes were detected in these
areas prior to 1998 (85 FR 23608; April 28, 2020).
Comment 49: Several commenters stated that designation of
unoccupied critical habitat is needed for the narrow-headed
gartersnake. Specifically, habitat fragmentation, small populations,
and genetics threaten the species with extinction and thus make
unoccupied critical habitat essential. Designating unoccupied habitat
is also important to restore connectivity among populations, and the
Service should also consider reintroduction of the gartersnake to
unoccupied areas.
Our Response: As discussed in the final listing rule (79 FR 38678;
July 8, 2014), continued population decline and extirpations threaten
the genetic representation of the narrow-headed gartersnake because
some populations have become disconnected and isolated from neighboring
populations. This can lead to a reduction in the species' redundancy
and resiliency when isolated, small populations are at increased
vulnerability to the effects of threats and stochastic events, without
a means for natural recolonization.
As required by section 4(b) of the Act, we use the best scientific
and commercial data available in determining areas within the
geographical area occupied at the time of listing that contain the
features essential to the conservation of the species and which may
require special management considerations or protection, and areas
outside of the geographical area occupied at the time of listing that
are essential for the conservation of the species. However, based on
the best scientific data available we have not identified any
unoccupied areas that are essential for the conservation of the
species. While we know the conservation of the species will depend on
increasing the number and distribution of populations of the narrow-
headed gartersnake, not all of its historical range will be essential
to the conservation of the species, and we are unable to delineate any
specific unoccupied areas that are essential at this time. A number of
areas within these watersheds continue to contain some or could develop
many of the PBFs upon which the species depends, although the best
available scientific data indicate all these areas are currently
unoccupied. Some areas in these watersheds with the potential to
support the PBFs are likely important to the overall conservation
strategy for the narrow-headed gartersnake. Any specific areas
essential to the species' conservation within these watersheds are not
currently identifiable due to our limited understanding regarding the
ideal configuration for the development of future habitat to support
the narrow-headed gartersnake's persistence, and the ideal size,
number, and configuration of these habitats. Although there may be a
future need to expand the area occupied by the species to reach
recovery, these areas have not been identified in recovery planning for
the narrow-headed gartersnake. Therefore, we cannot identify unoccupied
areas that are currently essential to the conservation of the species
that should be designated as critical habitat.
Comment 50: One commenter stated that only including areas occupied
by the species at the time of listing does not allow for naturally
occurring range expansion into other areas with suitable habitat that
already exist or are newly created from habitat restoration activities.
Our Response: Limiting critical habitat to areas occupied by a
species at the time of listing does not prevent a species from
naturally expanding into other areas. As discussed in the final listing
rule (79 FR 38678; July 8, 2014), continued population decline and
extirpations threaten the genetic representation of the narrow-headed
gartersnake because some populations have become disconnected and
isolated from neighboring populations. This can lead to a reduction in
the species' redundancy and resiliency when isolated, small populations
are at increased vulnerability to the effects of threats and stochastic
events, without a means for natural recolonization.
As required by section 4(b) of the Act, we use the best scientific
and commercial data available in determining areas within the
geographical area occupied at the time of listing that contain the
features essential to the conservation of a species and which may
require special management considerations or protection, and areas
outside of the geographical area occupied at the time of listing that
are essential for the conservation of the species. However, based on
the best scientific data available we have not identified any
unoccupied areas that that are essential for the conservation of the
species. While we know the conservation of the species will depend on
increasing the number and distribution of populations of the narrow-
headed gartersnake, not all of the species' historical range will be
essential to the conservation of the species, and we are unable to
delineate any specific unoccupied areas that are essential at this
time. A number of areas within these watersheds continue to contain
some, or could develop many, of the PBFs upon which the species
depends, although the best available scientific data indicate all these
areas are currently unoccupied. Some areas in these watersheds with the
potential to support the PBFs are likely important to the overall
conservation strategy for the narrow-headed gartersnake. Any specific
areas essential to the species' conservation within these watersheds
are not currently identifiable due to our limited understanding
regarding the ideal configuration for the development of future habitat
to support the narrow-headed gartersnake's persistence, and the ideal
size, number, and configuration of these habitats. Although there may
be a future need to expand the area occupied by the species to reach
recovery, these areas have not been identified in recovery planning for
the narrow-headed gartersnake. Therefore, we cannot identify unoccupied
areas that are currently essential to the conservation of the species
that should be designated as critical habitat.
Comment 51: One commenter stated that there are recent sightings of
narrow-headed gartersnakes in Turkey Creek (which is part of the Upper
Gila River Subbasin), so this area should not have been removed from
the original proposed critical habitat designation.
Our Response: This record was from 2020, and we are not aware of
any confirmed records between 1998 and 2019, as delineated in our rule
set (see Occupancy Records, 85 FR 23608, p. 23617-23619) (see Criteria
Used To Identify Critical Habitat), that document the narrow-headed
gartersnake in Turkey Creek, so this site is not included in our
critical habitat designation because it does not meet the definition of
an occupied reach for the species.
Comment 52: One commenter requested confirmation that upper and
lower Oak Creek have been removed from critical habitat, both of which
have recent sightings of narrow-headed gartersnakes.
Our Response: This area has not been removed from the critical
habitat designation. In the revised proposed critical habitat rule (85
FR 23608; April

[[Page 58487]]

28, 2020), we reviewed gartersnake occupancy to determine that a stream
or stream reach was occupied at the time of listing for narrow-headed
gartersnake if it is within the historical range of the species,
contains PBFs for the species (although the PBFs concerning prey
availability and presence of nonnative aquatic predators are often in
degraded condition), and has a last known record of occupancy between
1998 and 2019. The segment of Oak Creek from its confluence with
Sterling Canyon downstream to 800 ft before its confluence with Turkey
Creek meets this definition and is included in this critical habitat
designation for the narrow-headed gartersnake.
Comment 53: Several commenters stated that our use of historical
data spanning two decades to characterize areas of critical habitat
that are ``occupied at the time of listing'' for purposes of a
designation under section 3(5)(A)(i) of the Act is not synonymous with
a determination that habitat is currently occupied for purposes of a
``take'' analysis under sections 7 and 10 of the Act, and that the
distinction between these two concepts needs to be fully acknowledged
and its implications explained in the final rule.
Our Response: We designate areas as critical habitat that are
occupied at the time of listing if those areas have one or more of the
PBFs present that are essential to the conservation of the species and
may require special management considerations or protection (see 81 FR
7414; February 11, 2016). In the 2020 revised proposed critical habitat
rule (85 FR 23608; April 28, 2020), we estimated that maximum longevity
for the narrow-headed gartersnake is 15 years, so it is reasonable to
conclude that a gartersnake detected between 1998 and 2019 represents a
population that could still be present at the time of listing in 2014,
depending on the extent of threats in the area. We also included
narrow-headed gartersnake detections after the species was listed
because these areas were likely occupied at the time of listing in
2014. As a result, there are areas in this final designation of
critical habitat with records of gartersnakes from 1998 through 2019.
Under section 7 of the Act, Federal agencies are required to
consult with the Service to ensure that the actions they carry out,
fund, or authorize are not likely to jeopardize the continued existence
of the species, or destroy or adversely modify critical habitat. For a
jeopardy or ``take'' analysis, we analyze effects to a species if the
species is present in the action area during the time of the action.
For an adverse modification analysis, we analyze effects to critical
habitat if critical habitat for a species is present in the action
area. Therefore, defining where a species is occupied at the time of
listing for critical habitat designation is not synonymous with a
determination that an area is currently occupied for purposes of a
jeopardy analysis under section 7 of the Act or a ``take'' analysis
under section 10 of the Act. Those determinations depend on the best
available information at the time of the analysis, and the likely
effects and likelihood of take depend on the action under
consideration.
Comment 54: One commenter stated that livestock grazing would have
a significant impact on habitat for the narrow-headed gartersnake and
that special management considerations and protection would benefit the
species.
Our Response: As discussed in the final listing rule (79 FR 38678;
July 8, 2014), livestock grazing is a largely managed land use, and,
where closely managed, it is not likely to pose significant threats to
the narrow-headed gartersnake. In cases where poor livestock management
results in fence lines in persistent disrepair, allowing unmanaged
livestock access to occupied habitat, adverse effects from loss of
vegetative cover, sedimentation, or alteration of prey base may result.
Activities that significantly reduce cover or increase sedimentation
are addressed below under Application of the ``Adverse Modification''
Standard and Special Management Considerations or Protection.
Comment 55: One commenter stated that while we note that critical
habitat units that have nonnative fish require special management, we
do not explain how this management will be accomplished or whether it
is even possible to reduce nonnatives to a level that will support
narrow-headed gartersnakes.
Our Response: We expect the science of removing nonnative fish will
continue to evolve over time; for that reason, we did not prescribe
specific methods of special management as part of this final
designation. At this time, in the areas that require management of
nonnative fish, special management may involve using mechanical or
chemical methods to remove nonnative, invasive fish species.
Comment 56: One commenter requested that we include a statement
regarding the application of the ``adverse modification'' standard that
existing activities are part of the baseline and, therefore, are
presumed not to adversely modify critical habitat. The commenter
further stated that we should affirmatively state that ``adverse
modification'' will not be found where the agency, working with the
project proponent, demonstrates that it will offset impacts to critical
habitat through the protection and maintenance of alternative habitat
within the designation, which is of comparable quality to the habitat
that would be lost.
Our Response: Section 7 of the Act requires us to ensure that any
action authorized, funded, or carried out by the agency is not likely
to destroy or adversely modify critical habitat. Therefore, only
Federal action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. This adverse modification standard does
not change whether the activities are ongoing or new, and we do not
have a mechanism to determine that existing activities are presumed to
not destroy or adversely modify critical habitat. Any new activity
under section 7 will require evaluation of the effects of the action
based on the specifics of the location of the project and its effects.
Comment 57: Several commenters stated that we should consider an
increased scope of economic impacts to small entities for the critical
habitat rule. They also stated that the economic impact of the proposed
designation would be significant on agricultural and ranching
operations.
Our Response: For the revised proposed critical habitat rule (85 FR
23608; April 28, 2020), we made available, and requested public
comments on, a draft economic analysis (DEA) to examine the incremental
costs associated with the designation of critical habitat. Our DEA did
not find that there would be significant economic impacts to
agriculture from this designation of critical habitat. This analysis
includes impacts to third-party entities, such as local governments and
private landowners. Critical habitat does not restrict private
landowner access to their property, and private landowners would only
need to consult with the Service under section 7 of the Act if Federal
agency funding or permitting for an activity is needed. Because the
areas are considered occupied, most costs are not associated with the
critical habitat designation, but rather with listing of the species as
threatened. In our mapping of critical habitat, we focused on areas
that contain the PBFs for the species. We do not anticipate requesting
additional modifications for livestock grazing or agricultural
operations, or cost-share projects undertaken with agencies such as the
U.S. Department of Agriculture's Natural Resources

[[Page 58488]]

Conservation Service (NRCS), as a result of the critical habitat
designation beyond those required for the species itself. The economic
analysis outlines the substantial baseline protections currently
afforded the narrow-headed gartersnake through its listed status under
the Act and the presence of the species in all designated critical
habitat units, as well as overlap with the designated critical habitat
of other, similar listed species. As a result of these protections, the
economic analysis concludes that incremental impacts associated with
section 7 consultations for the narrow-headed gartersnake are likely
limited to additional administrative effort. Many of the areas
designated as critical habitat for the narrow-headed gartersnake are
already designated critical habitat for other listed species, and thus
the designation of critical habitat for the narrow-headed gartersnake
is not anticipated to cause an incremental increase in economic
effects.
However, we recognize the potential for landowners' perceptions of
the Act to influence land use decisions, including decisions to
participate in Federal programs such as those managed by NRCS. Several
factors can influence the magnitude of perception-related effects,
including the community's experience with the Act and understanding of
the degree to which future section 7 consultations could delay or
affect land use activities. Information is not available to predict the
impact of the designation of critical habitat on landowners' decisions
to pursue cost-share projects with NRCS in the future. However,
incremental effects due to the designation of critical habitat for the
narrow-headed gartersnake are likely to be minimized because the
species is already listed.
Comment 58: One commenter requested we update the economic analysis
to account for the impact of COVID-19 on economic conditions.
Our Response: We do not anticipate any additional effects on
economic conditions as a result of the impact of the COVID-19 pandemic.
For the revised proposed critical habitat rule (85 FR 23608; April 28,
2020), we made available, and requested public comments on, our DEA to
examine the incremental costs associated with the designation of
critical habitat. The DEA did not identify significant impacts. Because
the critical habitat areas are considered occupied, the majority of
costs are not associated with the critical habitat designation, but
rather with listing of the species as threatened. If Federal funding is
involved, the Federal agency providing the funding is the party
responsible for meeting the Act's obligations to consult on projects on
private lands. We have considered and applied the best available
scientific and commercial information in determining the economic
impacts associated with designating critical habitat. Critical habitat
designation may also generate ancillary benefits by protecting the PBFs
on which the species depends. As a result, management actions
undertaken to conserve the species or its habitat may have coincident,
positive social welfare implications, such as increased recreational
opportunities in a region or improved property values on nearby
parcels.

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.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
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 Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating

[[Page 58489]]

to principles of conservation biology, such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
only consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) for an
unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to 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 from the information developed during the listing process
for the species. Additional information sources may include any
generalized conservation strategy, criteria, or outline that may have
been developed for the species; 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 found in section 9 of the Act.
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 the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.

Physical or Biological Features Essential to the Conservation of the
Species

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas we will designate as critical
habitat from within the geographical area occupied by the species at
the time of listing, we consider the physical or biological features
that are essential to the conservation of the species and that may
require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.

Summary of Essential Physical or Biological Features

We derive the specific physical or biological features essential to
the conservation of the narrow-headed gartersnake from studies of the
species' habitat, ecology, and life history as described below.
Additional information can be found in the proposed and final listing
rules published in the Federal Register on July 10, 2013 (78 FR 41500),
and July 8, 2014 (79 FR 38678), respectively. The physical or
biological features identified here focus primarily on foraging and
dispersal habitat and secondarily on thermoregulation, shelter, and
brumation habitat because most of the habitat relationship research
data derived from studies of these activities for the narrow-headed
gartersnake.

[[Page 58490]]

We define the stream flow regimes that provide stream habitat for
the narrow-headed gartersnake based on stream flow definitions in
Levick et al. (2008, p. 6) and Stromberg et al. (2009, p. 330). A
perennial stream or portion of a stream is defined as having surface
flow continuously year-round, except for infrequent periods of severe
drought (Levick et al. 2008, p. 6). An intermittent stream is a stream
where portions flow continuously only at certain times of the year
(Levick et al. 2008, p. 6). An intermittent stream flows when it
receives water from a spring, a ground-water source, or a surface
source (such as melting snow (i.e., seasonal)). During the dry seasons,
frequently compounded by high evapotranspiration of watershed
vegetation, the groundwater table may drop below the elevation of the
streambed, causing surface flow to cease or reduce to a series of
separate pools or short areas of flow (Gordon et al. 2004, p. 51). An
ephemeral stream is usually dry except for brief periods immediately
following precipitation, and its channel is at all times above the
groundwater table (Levick et al. 2008, p. 6). In the range of the
narrow-headed gartersnake, many streams have reaches with year-round
water that are separated by intermittent or ephemeral reaches of flow,
as a result of differences in geology along the stream. This variation
of flow along a stream is common enough in the Southwest that
hydrologists use the terms ``interrupted,'' ``perennial interrupted,''
or ``spatially intermittent'' to describe the spatial segmentation of a
dryland stream into reaches that are perennial, intermittent, or
ephemeral (Levick et al. 2008, p. 6; Stromberg et al. 2009, p. 330;
Stromberg et al. 2013, p. 413). A stream that is interrupted,
perennially interrupted, or spatially intermittent has perennial flow
occurring in areas with shallow bedrock or high hydraulic connectivity
to regional aquifers, and ephemeral to intermittent flow occurring in
areas with deeper alluvial basins or greater distance from the
headwaters (Stromberg et al. 2009, p. 330). The spatial patterning of
wet and dry reaches on spatially intermittent streams changes through
time in response to climatic fluctuations and to human modifications of
the landscape (Stromberg et al. 2009, p. 331). In the remainder of this
document, we use the terms ``perennial,'' ``spatially intermittent,''
and ``ephemeral'' in accordance with the above definitions.
Narrow-headed gartersnakes are primarily found in rocky stretches
of canyon-bound headwater streams that have perennial flow or limited
spatially intermittent flow that is primarily perennial. Narrow-headed
gartersnakes have been documented in pools and shallow portions of an
intermittent flow reach of the Blue River with wet areas separated by
dry segments of 0.6 to 1.2 miles (1 to 2 km) in length (Cotten et al.
2017, p. 687). The wetted areas where gartersnakes were detected also
had abundant native prey of the narrow-headed gartersnake, indicating
that these areas may provide greater foraging opportunities during low
flow periods (Cotten et al. 2017, p. 687). However, ephemeral reaches
of streams do not provide habitat for narrow-headed gartersnakes.
Within the range of the narrow-headed gartersnake, perennial streams
become ephemeral as they approach their headwaters. Narrow-headed
gartersnakes have not been found in these ephemeral reaches because
their fish prey base is likely absent and there is no upstream
perennial habitat, so the ephemeral reaches do not provide
connectivity.
Narrow-headed gartersnakes depend on terrestrial and aquatic
habitat for all of their life-history functions, so it is important
that hydrologic processes are present to maintain both the terrestrial
and aquatic components of habitat for the species. Hydrologic processes
are the flow regime and physical hydrologic and geomorphic connection
that create and maintain a stream channel and continuously redefine the
boundary between aquatic and terrestrial habitat used by the narrow-
headed gartersnake.
We have determined that the following physical or biological
features are essential to the conservation of the narrow-headed
gartersnake:
1. Perennial streams or spatially intermittent streams that provide
both aquatic and terrestrial habitat that allows for immigration,
emigration, and maintenance of population connectivity of narrow-headed
gartersnakes and contain:
(A) Pools, riffles, and cobble and boulder substrate, with a low
amount of fine sediment and substrate embeddedness;
(B) Organic and natural inorganic structural features (e.g., cobble
bars, rock piles, large boulders, logs or stumps, aquatic vegetation,
vegetated islands, logs, and debris jams) in the stream channel for
basking, thermoregulation, shelter, prey base maintenance, and
protection from predators;
(C) Water quality that meets or exceeds applicable State surface
water quality standards; and
(D) Terrestrial habitat up to 328 feet (100 meters) from the active
stream channel (water's edge) that includes flood debris, rock piles,
and rock walls containing cracks and crevices, small mammal burrows,
downed woody debris, and streamside vegetation (e.g., alder, willow,
sedges, and shrubs) for thermoregulation, shelter, brumation, and
protection from predators throughout the year.
2. Hydrologic processes that maintain aquatic and riparian habitat
through:
(A) A natural flow regime that allows for periodic flooding, or if
flows are modified or regulated, a flow regime that allows for the
movement of water, sediment, nutrients, and debris through the stream
network, as well as maintenance of native fish populations; and
(B) Physical hydrologic and geomorphic connection between the
active stream channel and its adjacent terrestrial areas.
3. A combination of native fishes, and soft-rayed, nonnative fish
species such that prey availability occurs across seasons and years.
4. An absence of nonnative aquatic predators, such as fish species
of the families Centrarchidae and Ictaluridae, American bullfrogs
(Lithobates catesbeianus), and/or crayfish (Orconectes virilis,
Procambarus clarki, etc.), or occurrence of these nonnative species at
low enough levels such that recruitment of narrow-headed gartersnakes
is not inhibited and maintenance of viable prey populations is still
occurring.
5. Elevations of 2,300 to 8,200 feet (700 to 2,500 meters).

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
A detailed discussion of activities influencing the narrow-headed
gartersnake and its habitat can be found in the final listing rule (79
FR 38678; July 8, 2014). All areas of critical habitat will require
some level of management to address the current and future threats to
the narrow-headed gartersnake and to maintain or restore the PBFs.
Special management within critical habitat will be needed to ensure
these areas provide adequate water quantity, quality, and permanence or
near permanence; cover (particularly in the presence of nonnative
aquatic predators); an adequate prey base; and absence of or low
numbers of nonnative aquatic

[[Page 58491]]

predators that can affect population persistence. Activities that may
be considered adverse to the conservation benefits of critical habitat
include those which: (1) Completely dewater or reduce the amount of
water to unsuitable levels in critical habitat; (2) result in a
significant reduction of protective cover within critical habitat when
nonnative aquatic predator species are present; (3) remove or
significantly alter structural terrestrial features of critical habitat
that alter natural behaviors such as thermoregulation, brumation,
gestation, and foraging; (4) appreciably diminish the prey base for a
period of time determined to likely cause population-level effects; and
(5) directly promote increases in nonnative aquatic predator
populations, result in the introduction of nonnative aquatic predators,
or result in the continued persistence of nonnative aquatic predators.
Common examples of these activities may include, but are not limited
to, various types of development, channelization, diversions, road
construction, erosion control, bank stabilization, wastewater
discharge, enhancement or expansion of human recreation opportunities,
fish community renovations, and stocking of nonnative, spiny-rayed fish
species or promotion of policies that directly or indirectly introduce
nonnative aquatic predators as bait. The activities listed above are
just a subset of examples that have the potential to affect critical
habitat and PBFs if they are conducted within designated units;
however, some of these activities, when conducted appropriately, may be
compatible with maintenance of adequate PBFs or even improve upon their
value over time. For activities planned within critical habitat, we
encourage interested parties to contact the local Ecological Services
field office (see FOR FURTHER INFORMATION CONTACT).

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not designating any areas
as critical habitat outside the geographical area occupied by the
species at the time of listing because we have not identified any
unoccupied areas that meet the definition of critical habitat. Sites
within the Gila River, San Francisco River, Salt River, and Verde River
watersheds were previously occupied by the narrow-headed gartersnake.
While we know the conservation of the species will depend on increasing
the number and distribution of populations of the narrow-headed
gartersnake, not all of its historical range will be essential to the
conservation of the species, and we are unable to delineate any
specific unoccupied areas that are essential at this time. A number of
areas within these watersheds continue to contain some or could develop
many of the physical and biological features upon which the species
depends, although the best available scientific data indicate all these
areas are currently unoccupied. Some areas in these watersheds with the
potential to support the physical and biological features are likely
important to the overall conservation strategy for the narrow-headed
gartersnake. Any specific areas essential to the species' conservation
within these watersheds are not currently identifiable due to our
limited understanding regarding the ideal configuration for the
development of future habitat to support the narrow-headed
gartersnake's persistence, the ideal size, number, and configuration of
these habitats. Finally, the specific areas needed for conservation
will depend in part on landowner willingness to restore and maintain
the species' habitat in these areas. Therefore, although there may be a
future need to expand the area occupied by the narrow-headed
gartersnake species to reach recovery, there are no unoccupied areas
that are currently essential to the species conservation and that
should be designated as critical habitat.
To identify areas for critical habitat for the narrow-headed
gartersnake, we used a variety of sources for species data including
fish species survey reports, museum records, heritage data from State
wildlife agencies, peer-reviewed literature, agency reports, and
incidental sight records accompanied by photo vouchers and other
supporting documentation verified by interviews with species experts.
Holycross et al. (2020, entire) was a key source of information for
vouchered historical and current records of the narrow-headed
gartersnake species across its range. Other sources for current records
of the narrow-headed gartersnake included Christman and Jennings (2017,
entire), Hellekson (2012, entire), Jennings et al. (2017, entire),
Jennings and Christman (2019, entire), and Jennings et al. (2018). In
addition to reviewing gartersnake-specific survey reports, we also
focused on survey reports and heritage data from State wildlife
agencies for fish as they captured important data on the existing
community ecology that affects the status of the narrow-headed
gartersnake within its range. In addition to species data sources, we
used publicly available geospatial datasets depicting water bodies,
stream flow, elevation, and aerial imagery to identify areas for
critical habitat designation.
We determined that a stream or stream reach was occupied at the
time of listing for narrow-headed gartersnake if it is within the
historical range of the species, contains all PBFs for the species
(although the PBFs concerning prey availability and presence of
nonnative predators are often in degraded condition), and has a last
known record of occupancy between 1998 and 2019. We determined
occupancy at the time of listing for the narrow-headed gartersnake by
reviewing all records for the species in conjunction with expected
survivorship of the species, subsequent surveys in areas that had no
detection of the species, and changes in threats over time that may
have prevented occupancy at time of listing. Understanding longevity of
a species can inform how long we can reasonably expect a species is
still extant in an area, regardless of detection probability. Narrow-
headed gartersnakes may live up to 10 years or longer in the wild
(Rosen and Schwalbe 1988, p. 38). An individual narrow-headed
gartersnake captured in the wild as an adult was kept in captivity for
11 years and is estimated to be 16 years old (Ryan 2020, pers. comm.).
Based on this information, we estimate maximum longevity for the
narrow-headed gartersnake is 15 years, so that it is reasonable to
conclude that a gartersnake detected between 1998 and 2019 represents a
population that could still be present at the time of listing in 2014,
depending on the extent of threats in the area. Although it is possible
that gartersnakes are still extant in areas where they were detected
prior to 1998, we have determined that the best available information
reflecting occupancy at the time of listing supports a more recent date
of records since 1998.
Based on our analyses in the final listing rule (79 FR 38678; July
8, 2014), we conclude that there has been a significant decline in the
species over the past 50 years. This decline appeared to accelerate
during the two decades immediately before listing occurred.

[[Page 58492]]

From this observation, we conclude that many areas that were occupied
by the species in surveys during the 1980s are likely no longer
occupied because those populations have disappeared. To determine where
loss of populations was likely, we reviewed survey efforts after 1989
that did not detect gartersnakes to determine whether the cryptic
nature of the species was a valid argument for considering areas that
only have gartersnake records from the 1980s as still occupied at the
time of listing in 2014. All of the surveys conducted since the 1980s
included at least the same amount or more search effort than those
surveys that detected each species in the 1980s. Since 1998,
researchers have detected narrow-headed gartersnakes in many areas
where they were found in the 1980s. Areas where the species was found
after 1997 are included in this final rule. Additionally, comparable
surveys did detect gartersnakes in other areas where the species was
present in the 1980s. Finally, we would expect that some populations
would be lost during the decades preceding listing when numbers of
gartersnakes were declining. These declines are what eventually led to
the need to list the narrow-headed gartersnake.
As explained in the final listing rule (79 FR 38678, July 8, 2014,
pp. 38688-38702), aquatic vertebrate survey efforts throughout the
range of the narrow-headed gartersnake indicate that native prey
species of narrow-headed gartersnakes have decreased or are absent,
while nonnative predators of gartersnakes and their prey, including
bullfrogs, crayfish, and spiny-rayed fish, continue to increase in many
of the areas where narrow-headed gartersnakes were present in the 1980s
(Emmons and Nowak 2012, pp. 11-14; Gibson et al. 2015, pp. 360-364,
Jennings et al. 2020, p. 15). We acknowledge that narrow-headed
gartersnakes are extant in some areas that have abundant nonnative
aquatic predators, some of which also are prey for gartersnakes, so
presence of nonnative aquatic predators is not always indicative of
absence of these gartersnakes (Emmons and Nowak 2012, p. 31). We also
acknowledge that we do not have a good understanding of why gartersnake
populations are able to survive in some areas with nonnative aquatic
predators and not in other areas. However, we think it is reasonable to
conclude that streams and stream reaches were not occupied at the time
of listing if they have only gartersnake records older than 1998 and
have experienced a rapid decline in native prey species coupled with an
increase in nonnative aquatic predators since gartersnakes were
detected in these areas in the 1980s.
We included detections of the narrow-headed gartersnake that
occurred after the species was listed because these areas were likely
occupied at the time of listing in 2014. As stated earlier, the species
is cryptic in nature and may not be detected without intensive surveys.
Because populations of this species are generally small, isolated, and
in decline, it is not likely that the species has colonized new areas
since 2014; these areas were most likely occupied at the time of
listing, but either had not been surveyed or the species was present
but not detected during surveys. However, we did not include streams
where narrow-headed gartersnakes were released for recovery purposes
after the species was listed that had not been historically occupied by
the species.
Stream reaches that lack PBFs include areas where water flow became
completely ephemeral along an otherwise perennial or spatially
intermittent stream, hydrologic processes needed to maintain streams
could not be recovered, nonnative aquatic predators outnumbered native
prey species, or streams were outside the elevation range. In addition,
reaches with multiple negative surveys without a subsequent positive
survey or reaches that have no records of the narrow-headed gartersnake
species are not included. We do include stream reaches that lack survey
data for the species, if they have positive observation records of the
species dated 1998 or later both upstream and downstream of the stream
reach and have all of the PBFs.
We also reviewed the best available information we have on home
range size and potential dispersal distance for the narrow-headed
gartersnake species to inform upstream and downstream boundaries of
each unit and subunit of critical habitat. The maximum longitudinal
distance measured across home range areas of a male narrow-headed
gartersnake tracked for 51 days over 3 years during the dry and wet
seasons was approximately 1,312 ft (400 m) (Jennings and Christman
2012, p. 10). The maximum longitudinal distance measured across home
ranges areas ranged from 82 to 656 ft (25 to 200 m) for eight other
narrow-headed gartersnakes tracked at least 6 days over 1 to 2 years
(Jennings and Christman 2012, pp. 9-10). These longitudinal home range
distances were all determined from adult gartersnakes and did not
inform how juvenile gartersnakes are dispersing along a stream.
Juvenile dispersal is important because snakes of different age classes
behave differently, and juvenile gartersnakes may move farther along a
stream as they search for and establish suitable home ranges than do
adults with established home ranges. Because we have no information on
how juvenile narrow-headed gartersnakes disperse, we used information
from a long-term dispersal study on neonate, juvenile, and adult age
classes of the Oregon gartersnake (Thamnophis atratus hydrophilus) in a
free-flowing stream environment in northern California (Welsh et al.
2010, entire). This is the only dispersal study available for another
aquatic Thamnophis species in the United States, so we used it as a
surrogate for determining upstream and downstream movements of narrow-
headed gartersnakes. The greatest movement was made by a juvenile
recaptured as an adult 2.2 mi (3.6 km) upstream from the initial
capture location (Welsh et al. 2010, p. 79). Therefore, in this final
rule, we delineate upstream and downstream critical habitat boundaries
of a stream reach at 2.2 mi (3.6 km) from a known narrow-headed
gartersnake observation record.
In this final rule, we modified the lateral extent of critical
habitat to include areas of brumation habitat since we inadvertently
left out brumation habitat as part of PBF 1(D) in the revised proposed
rule (85 FR 23608; April 28, 2020). We now incorporate the best
information available on brumation habitat and other terrestrial
habitat use of the narrow-headed gartersnake to inform lateral
boundaries of each unit and subunit of critical habitat. There are
three reported narrow-headed gartersnakes using brumation sites on
steep slopes in Oak Creek Canyon, Arizona (Nowak 2006, pp. 19-20).
Horizontal distances from stream centerline to these brumation sites
ranged between 276 and 328 ft (84 and 101 m) (Nowak 2015, pers. comm.).
There were also at least five other individual narrow-headed
gartersnakes overwintering at brumation sites that were not on steep
slopes at 66 to 98 ft (20 to 30 m) from the water's edge (Nowak 2006,
pp. 20-21). The distance from the stream appeared to be dependent on
the adjacent terrestrial topography so that gartersnakes were found
farther from the stream in steeper terrain. The Nowak (2006) study is
the only study that has documented brumation sites of telemetered
narrow-headed gartersnakes.
Although we have no information on brumation sites in New Mexico,
we have information on how narrow-headed gartersnakes moved in three
different stream channels during the active season. A telemetry study
of

[[Page 58493]]

narrow-headed gartersnakes on the Tularosa River, Gila River, and
Whitewater Creek during two active (wet and dry) seasons of narrow-
headed gartersnakes found individuals an average of 58.7 ft (17.9 m)
from water across four different sites on the three streams with a
sample size of 69 individuals (Jennings and Chirstman 2012, pp. 9-10).
Narrow-headed gartersnakes were found with lowest average distance of
22.7 ft (6.9 m) during the dry season of 2010, and highest average
distance of 88.3 ft (26.9 m) during the wet season in 2010 (Jennings
and Chirstman 2012, pp. 9-10). While narrow-headed gartersnakes in New
Mexico have been documented up to 285 ft (87 m) from water, most snakes
are found within 3.28 ft (1 m) of the water's edge during both active
seasons (Jennings and Christman 2012, pp. 9-10). During the active
season, individual narrow-headed gartersnakes were most often found
outside of water under boulders, small rocks, and broken concrete slabs
located less than 328 ft (100 m) from the water in Oak Creek and West
Fork Oak Creek (Nowak 2006, p. 26).
Sites much farther from water where gartersnakes were found in both
Arizona and New Mexico during the active season may provide lower
predation risk, protection from flooding, and warmer temperatures that
are advantageous during gestation, after a large meal, or when snakes
are more vulnerable prior to molting (Jennings and Christman 2012, p.
21). Brumation sites documented in Arizona by Nowak (2006) are likely
higher in steeper terrain because of the thermal gradient in canyon
habitats during winter: Temperatures increase dramatically in areas hit
by sun at the tops of these canyons that get some amount of direct
sunlight in winter. Higher brumation sites may also prevent the
gartersnakes from being flooded out of these sites during high stream
flow events.
Therefore, in this final rule, we delineate lateral extent of
critical habitat boundaries of a stream to fall within 328 ft (100 m)
of the active channel of a stream. Lateral extent varies based on
topography as explained above. The active channel effectively defines a
river or stream as a feature on the landscape (Mersel and Lichvar 2014,
pp. 11-12). The active channel is established and maintained by flows
that occur with some regularity (several times per year to several
times per decade), but not by very rare and extremely high flood
events. The outer limits of the active channel can generally be defined
by three primary indicators that together form a discernable mark on
the landscape: A topographic break in slope, change in vegetation
characteristics, and change in sediment characteristics (Mersel and
Lichvar 2014, pp. 13-14). The active channel is often a fairly obvious
and easy feature to identify in the field, allowing for rapid and
consistent identification (Mersel and Lichvar 2014, p. 14). Further,
the active channel can be consistently recognized by the public. Any
area that was added in this final rule as a result of increasing the
lateral extent of critical habitat units was included in the 2013
original proposed critical habitat rule for the narrow-headed
gartersnake (78 FR 41550; July 10, 2013).
The maps define the critical habitat designation, as modified by
any accompanying regulatory text, presented at the end of this document
under Regulation Promulgation. We include more detailed information on
the boundaries of the critical habitat designation in the preamble of
this document.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria:
1. We mapped records of the narrow-headed gartersnake from 1998 to
2019. We then examined these areas to determine if narrow-headed
gartersnakes could still occur in them, as described below.
2. We identified the streams in which narrow-headed gartersnakes
were found since 1998 (used flowline layer in the U.S. Geological
Survey (USGS) National Hydrography Dataset to represent stream
centerlines).
3. We identified and removed upstream and downstream ends of
streams that were below 2,300 ft or above 8,200 ft in elevation using
USGS National Elevation Dataset.
4. We identified perennial, intermittent, and ephemeral reaches of
streams. We removed upstream end reaches of streams that are ephemeral
or intermittent based on FCode attribute of the flowline layer in the
USGS National Hydrography Dataset or information from peer review and
public comments.
5. We identified native and nonnative prey species along each
stream using geospatial datasets, literature, peer review, and public
comments. We removed stream reaches that did not have prey species.
6. We identified and removed stream reaches with an abundance of
nonnative aquatic predators including fish, crayfish, or bullfrogs. (We
used a combination of factors to determine nonnative presence and
impact to the species. This evaluation included records from 1980 by
looking at subsequent negative survey data for narrow-headed
gartersnakes along with how the nonnative aquatic predator community
had changed since those gartersnakes were found, in addition to the
habitat condition and complexity. Most of the areas surveyed in the
1980s that had been re-surveyed with negative results for gartersnakes
had significant changes to the nonnative aquatic predator community,
which also decreased prey availability for the gartersnakes.) These
areas were removed in our revised proposed critical habitat rule (85 FR
23608; April 28, 2020).
7. We identified and removed stream reaches where stocking or
management of nonnative fish species of the families Centrarchidae and
Ictaluridae is a priority and is conducted on a regular basis.
8. We identified and included those stream reaches on private land
without public access that lack survey data but that have positive
narrow-headed gartersnake survey records from 1998 forward both
upstream and downstream of the private land and have stream reaches
with PBFs 1 and 2.
9. We used a surrogate species to determine potential neonate
dispersal along a stream, which is 2.2 mi (3.6 km). We then identified
the most upstream and downstream records of narrow-headed gartersnake
along each continuous stream reach determined by criteria 1 through 8,
above, and extended the reach to include this dispersal distance.
10. After identifying the stream reaches that met the above
parameters, we then connected those reaches between that have the PBFs.
We consider these areas between survey records occupied because the
species occurs upstream and downstream and multiple PBFs are present
that allow the species to move through these stream reaches.
11. We identified the range of the maximum distance that narrow-
headed gartersnakes have been documented from the water's edge in
streams, which is 98 to 328 ft (30 to 100 m), to capture the upper
limit of terrestrial habitat needed by the species for brumation,
thermoregulation, and protection from predators. We used the USGS
National Hydrography Dataset, wetland layer of the Service's National
Wetlands Inventory dataset, and aerial photography in Google Earth Pro
to identify the water's edge in streams (active channel).
12. We removed terrestrial areas between 30 m and 100 m lateral
extent of the active channel that do not contain

[[Page 58494]]

PBFs and areas beyond steep walled canyons that are not accessible to
the species.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack PBFs necessary
for the narrow-headed gartersnake. The scale of the maps we prepared
under the parameters for publication within the Code of Federal
Regulations may not reflect the exclusion of such developed lands. Any
such lands inadvertently left inside critical habitat boundaries shown
on the maps of this rule have been excluded by text in the rule and are
not designated as critical habitat. Therefore, a Federal action
involving these lands will not trigger section 7 consultation with
respect to critical habitat and the requirement of no adverse
modification unless the specific action will affect the PBFs in the
adjacent critical habitat. However, constructed fish barriers in
streams within the designated critical habitat are part of the
designation and are needed to manage the exclusion of nonnative
species. Accordingly, section 7 consultation applies to actions
involving such fish barriers.
We are designating as critical habitat lands that we have
determined were occupied at the time of listing in 2014 and that
contain one or more of the PBFs that are essential to support life-
history processes of the species. As described above, we are not
designating any areas outside the geographical area occupied by the
species at the time of listing.
Units are designated based on one or more of the PBFs being present
to support the narrow-headed gartersnake's life-history processes. Some
units contain all of the identified PBFs and support multiple life-
history processes. Some units contain only some of the PBFs necessary
to support the narrow-headed gartersnake's use of that habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
http://www.regulations.gov at Docket No. FWS-R2-ES-2020-0011, on our
internet site https://www.fws.gov/southwest/es/Arizona/, and upon
request from the field office responsible for the designation (see FOR
FURTHER INFORMATION CONTACT).

Final Critical Habitat Designation

We are designating eight units as critical habitat for the narrow-
headed gartersnake. The critical habitat areas we describe below
constitute our current best assessment of areas that meet the
definition of critical habitat for the narrow-headed gartersnake.
The eight areas we designate as critical habitat for the narrow-
headed gartersnake are: (1) Upper Gila River Subbasin; (2) San
Francisco River Subbasin; (3) Blue River Subbasin; (4) Eagle Creek; (5)
Black River Subbasin; (6) Canyon Creek; (7) Tonto Creek Subbasin; and
(8) Verde River Subbasin. Table 1 shows the critical habitat units and
the approximate area of each unit. All units are considered occupied at
the time of listing.

TABLE 1--Critical Habitat Units for Narrow-Headed Gartersnake
[Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Land ownership by type acres (hectares)
Unit Subunit ------------------------------------------------------------------- Size of unit
Federal State Tribal Private
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Upper Gila River Subbasin........... Gila River............... 1,191 (482) 315 (127) .............. 2,267 (917) 3,773 (1,527)
West Fork Gila River..... 615 (249) 228 (92) .............. 21 (8) 864 (350)
Little Creek............. 281 (114) 9 (4) .............. .............. 291 (118)
Middle Fork Gila River... 978 (396) .............. .............. .............. 978 (396)
Iron Creek............... 111 (45) .............. .............. .............. 111 (45)
Gilita Creek............. 376 (152) .............. .............. .............. 376 (152)
Black Canyon............. 300 (121) .............. .............. 8 (3) 308 (125)
Diamond Creek............ 231 (93) .............. .............. 73 (29) 303 (123)
Unit Total......................... ......................... 4,084 (1,653) 553 (224) .............. 2,368 (958) 7,005 (2,835)
2. San Francisco River Subbasin........ San Francisco River...... 2,128 (861) .............. .............. 1,194 (483) 3,322 (1,344)
Whitewater Creek......... 254 (103) 3 (1) .............. 125 (51) 382 (155)
Saliz Creek.............. 194 (78) .............. .............. 68 (27) 261 (106)
Tularosa River........... 444 (180) .............. .............. 471 (191) 915 (370)
Negrito Creek............ 543 (220) .............. .............. 90 (36) 632 (256)
South Fork Negrito Creek. 362 (147) .............. .............. 20 (8) 382 (155)
Unit Total......................... ......................... 3,924 (1,588) 3 (1) .............. 1,967 (796) 5,895 (2,386)
3. Blue River Subbasin................. Blue River............... 2,595 (1,050) .............. .............. 430 (174) 3,025 (1,224)
Campbell Blue Creek...... 200 (81) .............. .............. 21 (8) 220 (89)
Dry Blue Creek........... 122 (50) .............. .............. .............. 122 (50)
Unit Total......................... ......................... 2,918 (1,181) .............. .............. 450 (182) 3,368 (1,363)
4. Eagle Creek......................... ......................... 84 (34) .............. .............. 0.4 (0.2) 84 (34)
Unit Total......................... ......................... 84 (34) .............. .............. 0.4 (0.2) 84 (34)
5. Black River Subbasin................ Black River.............. 796 (322) .............. .............. .............. 796 (322)
Bear Wallow Creek........ 183 (74) .............. .............. .............. 183 (74)
North Fork Bear Wallow 80 (32) .............. .............. .............. 80 (32)
Creek.
Reservation Creek........ 149 (60) .............. .............. .............. 149 (60)
Fish Creek............... 135 (55) .............. .............. .............. 135 (55)
East Fork Black River.... 436 (176) .............. .............. .............. 436 (176)

[[Page 58495]]

Unit Total......................... ......................... 1,780 (720) .............. .............. .............. 1,780 (720)
6. Canyon Creek........................ ......................... 204 (82) .............. .............. .............. 204 (82)
Unit Total......................... ......................... 204 (82) .............. .............. .............. 204 (82)
7. Tonto Creek Subbasin................ Tonto Creek.............. 1,673 (677) .............. .............. 91 (37) 1,764 (714)
Houston Creek............ 30 (12) .............. .............. 1 (0.4) 31 (12)
Haigler Creek............ 473 (191) .............. .............. 26 (10) 499 (202)
Unit Total......................... ......................... 2,176 (881) .............. .............. 117 (47) 2,293 (928)
8. Verde River Subbasin................ Verde River.............. 1,439 (583) .............. .............. 180 (73) 1,619 (655)
Oak Creek................ 634 (256) 109 (44) .............. 422 (171) 1,165 (471)
West Fork Oak Creek...... 372 (151) .............. .............. .............. 372 (151)
Unit Total......................... 2,446 (990).............. 109 (44) .............. 602 (244) 3,156 (1,277) .................
----------------------------------------------------------------------------------------------------------------
Total.............................. ......................... 17,614 (7,128) 665 (269) .............. 5,505 (2,228) 23,785 (9,625)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the narrow-headed
gartersnake, below.

Unit 1: Upper Gila River Subbasin Unit

Unit 1 consists of 7,005 ac (2,835 ha) in eight subunits along 104
stream mi (167 km): 46 stream mi (74 km) of the Gila River, 12 stream
mi (20 km) of West Fork Gila River, 7 stream mi (11 km) of Little
Creek, 14 stream mi (23 km) of Middle Fork Gila River, 6 stream mi (10
km) of Gilita Creek, 2 stream mi (3 km) of Iron Creek, 10 stream mi (16
km) of Black Canyon, and 6 stream mi (9 km) of Diamond Creek. The Upper
Gila River Subbasin Unit is located in southwestern New Mexico, east of
the town of Glenwood, and west and north of Silver City in Grant and
Hidalgo Counties. The Upper Gila River Subbasin Unit occurs on lands
managed by the USFS on Gila National Forest; Bureau of Land Management
(BLM) within Lower Box and Middle Gila Box Areas of Critical
Environmental Concern and Gila Lower Box Wilderness Study Area;
National Park Service (NPS) on Gila Cliff Dwellings National Monument;
New Mexico Department of Game and Fish on Bill Evans Fishing Area,
Heart Bar Wildlife Area, Redrock State Wildlife Experimental Area, and
Gila Bird Area; State Trust lands; and private entities.
Unit 1 is designated as critical habitat because it was occupied at
the time of listing and as a whole, this unit contains PBFs 1, 2 and 5,
with PBFs 3 and 4 may be in degraded condition. The Gila River, West
Fork Gila River, Little Creek, Iron Creek, Black Canyon, and Diamond
Creek subunits have PBFs 1, 2, 3, and 5, but PBF 4 is in degraded
condition. The Middle Fork Gila River Subunit has PBF 1, 2, 4, and 5
with PBF 3 in degraded condition. Gilita Creek Subunit has all PBFs.
This unit requires special management to address the threats; some
reaches of the Gila River have been adversely affected by
channelization and water diversions. Populations of bullfrogs and
nonnative, spiny-rayed fish dominate the aquatic community in some
reaches of the West Fork and Middle Fork Gila River. Fish barriers on
many streams are in place to limit upstream movement of some nonnative
fish into areas that are managed for native fish. Crayfish densities
are currently high in Diamond Creek. Wildfires have burned at both
moderate and high severity within the unit and resulted in significant
flooding with excessive ash and sediment loads in Middle Fork Gila
River. These sediment and ash-laden floods can temporarily reduce
populations of both nonnative aquatic predatory species and native prey
species for narrow-headed gartersnakes in affected streams. The PBFs in
this unit may require special management due to competition with, and
predation by, nonnative species that are present in this unit; water
diversions; channelization; potential for high-intensity wildfires; and
human development of areas adjacent to critical habitat.

Unit 2: San Francisco River Subbasin Unit

Unit 2 consists of 5,895 ac (2,386 ha) in six subunits along 129
stream mi (207 km): 71 stream mi (115 km) of San Francisco River, 9
stream mi (14 km) of Whitewater Creek, 8 stream mi (13 km) of Saliz
Creek, 20 stream mi (33 km) of Tularosa River, 13 stream mi (20 km) of
Negrito Creek, and 8 stream mi (13 km) of South Fork Negrito Creek. The
San Francisco River Subbasin Unit is generally located in southwestern
New Mexico near the towns of Glenwood and Reserve, and east of Luna, in
Catron County. The San Francisco River Subbasin Unit consists of lands
managed primarily by the U.S. Forest Service on Gila National Forest
and private landowners.
Unit 2 is designated as critical habitat because it was occupied at
the time of listing and as a whole, this unit contains PBFs 1, 2, and
5, but PBFs 3 and 4 may be in degraded condition. San Francisco River
Subunit has PBFs 1, 2, and 5, but PBFs 3 and 4 are in degraded
condition. Whitewater Creek Subunit has PBFs 1, 2, 4, and 5, but PBF 3
is in degraded condition. Tularosa River, Saliz Creek, and Negrito
Creek subunits have PBFs 1, 2, 3, and 5, but PBF 4 is in degraded
condition. South Fork Negrito Creek Subunit has adequate PBFs. Water
diversions have dewatered sections of the San Francisco River Subunit
in the upper Alma Valley and at Pleasanton, New Mexico. The San
Francisco River Subunit also has populations of bullfrogs, crayfish,
and nonnative, spiny-rayed fish at various densities along its course.
Wildfires have burned at both moderate and high severity within the
unit and likely resulted in significant flooding with excessive ash and
sediment loads. These sediment and ash-laden floods can temporarily
reduce populations of both nonnative aquatic predatory species and
native prey species for narrow-headed gartersnakes in affected streams.
The PBFs in this unit may require special management due to competition
with,

[[Page 58496]]

and predation by, nonnative species that are present in this unit;
water diversions; potential for high-intensity wildfires; and human
recreation and development of areas adjacent to critical habitat.

Unit 3: Blue River Subbasin Unit

Unit 3 consists of a total of 3,368 ac (1,363 ha) in three subunits
along 64 stream mi (102 km): 52 stream mi (84 km) of Blue River, 7
stream mi (12 km) of Campbell Blue Creek, and 4 stream mi (7 km) of Dry
Blue Creek. The Blue River Subbasin Unit is generally located near the
east-central border of Arizona northeast of Clifton in Greenlee County,
and just into west-central New Mexico in Catron County. Blue River
Subbasin Unit consists of lands managed primarily by the U.S. Forest
Service on Gila and Apache-Sitgreaves National Forests, and private
landowners.
Unit 3 is designated as critical habitat because it was occupied at
the time of listing and as a whole, this unit contains PBFs 1, 2, and
5, but PBFs 3 and 4 may be in degraded condition. The Blue River and
Dry Blue Creek subunits have PBFs 1, 2, 3, and 5, but PFB 4 is in
degraded condition. Campbell Blue Creek Subunit has PBFS 1, 2, 4, and
5, but PBF 3 may be in degraded condition. The fish community of the
Blue River is highly diverse and largely native, but nonnative fish are
present. Native fish restoration is actively occurring in the Blue
River, including construction of a fish barrier, mechanical removal of
nonnative fish, and repatriation and monitoring of federally listed
warm-water fishes (Robinson and Crowder 2015, p. 24; Robinson and Love-
Chezem 2015, entire). Native fish species persist in Campbell Blue
Creek and Dry Blue Creek (Riley and Clarkson 2005, p. 10; Humphrey et
al. 2015, Table 2). Crayfish and brown trout are present in Campbell
Blue Creek (Humphrey et al. 2015, Table 2; Bergamini et al. 2016a, p.
1; Nowak et al. 2017, Table 3; Pittenger 2017, Table 3). Wildfires have
burned at both moderate and high severity within the unit and likely
resulted in significant flooding with excessive ash and sediment loads.
These sediment and ash-laden floods can temporarily reduce populations
of both nonnative aquatic predatory species and native prey species for
narrow-headed gartersnakes in affected streams. The PBFs in this unit
may require special management to prevent reinvasion of nonnative
species and continue to reestablish native prey species.

Unit 4: Eagle Creek Unit

Unit 4 consists of a total of 84 ac (34 ha) along 2 stream mi (4
km) of Eagle Creek. The Eagle Creek Unit is generally located in
eastern Arizona near Morenci and includes portions of Greenlee County.
The majority of lands within this unit are managed by the U.S. Forest
Service on the Gila National Forest.
Unit 4 is designated as critical habitat because it was occupied at
the time of listing and as a whole, this unit contains PBFs 1, 2, 3, 4,
and 5, but PBF 4 is in degraded condition. Narrow-headed gartersnakes
have been found in Eagle Creek at its confluence with Sheep Wash in
2013 (Ehlo et al. 2013, p. 3; Holycross et al. 2020, p. 717). The PBFs
in this unit may require special management to eliminate or reduce
crayfish and nonnative, spiny-rayed fish, as well as maintain adequate
base flow in Eagle Creek.
We have excluded 236 ac (96 ha) of lands owned by the San Carlos
Apache Tribe in the Eagle Creek Unit (see Consideration of Impacts
under Section 4(b)(2) of the Act, below).

Unit 5: Black River Subbasin Unit

Unit 5 consists of a total of 1,780 ac (720 ha) in six subunits
along 45 stream mi (72 km): 19 stream mi (30 km) of Black River, 5
stream mi (7 km) of Bear Wallow Creek, 2 stream mi (3 km) of North Fork
Bear Wallow Creek, 3 stream mi (6 km) of Reservation Creek, 4 stream mi
(6 km) of Fish Creek, and 12 stream mi (19 km) of East Fork Black
River. The Black River Subbasin Unit is generally located along the
Mogollon Rim in east-central Arizona, east of Maverick and west of
Hannigan Meadow, and includes portions of Apache and Greenlee Counties.
All lands within this unit are managed by the U.S. Forest Service on
Apache-Sitgreaves National Forest.
Unit 5 is designated as critical habitat because it was occupied at
the time of listing and as a whole, this unit contains PBFs 1, 2, 3,
and 5, but PBF 4 is in degraded condition. Crayfish, bullfrogs, and
nonnative, spiny-rayed fish are present in some of this unit, and
crayfish persist at high densities in the Black River (Lopez 2014d, p.
4; Nowak and Drost 2015, p. 5; Nowak et al. 2017, p. 8). Water in the
Black River Subbasin is diverted for use at the Morenci Mine, which may
affect base flow. Wildfires have burned at both moderate and high
severity within the unit and have likely resulted in significant
flooding with excessive ash and sediment loads (Lopez 2014d, p. 5).
These sediment and ash-laden floods can temporarily reduce populations
of both nonnative aquatic predatory species and native prey species for
narrow-headed gartersnakes in affected streams. The PBFs in this unit
may require special management due to competition with, and predation
by, nonnative species that are present in this unit; water diversions;
potential for high-intensity wildfires; and human development of areas
adjacent to critical habitat.
We have excluded 195 ac (79 ha) of lands owned by the White
Mountain Apache and San Carlos Apache Tribes along the Black River,
Bear Wallow Creek, and Reservation Creek of the Black River Subbasin
Unit (see Consideration of Impacts under Section 4(b)(2) of the Act,
below).

Unit 6: Canyon Creek Unit

Unit 6 consists of 204 ac (82 ha) along 5 stream mi (8 km) of
Canyon Creek. The Canyon Creek Unit is generally located along the
Mogollon Rim in east-central Arizona, and falls within Gila County. The
Tonto National Forest manages all lands within this unit.
Unit 6 is designated as critical habitat because it was occupied at
the time of listing and as a whole, this unit contains all PBFs. The
fish community is primarily native and includes specked dace
(Rhinichthys osculus), desert sucker (Catostomus clarkii), and brown
trout (Burger 2015a, p. 4). The PBFs in this unit may require special
management due to potential invasion by nonnative aquatic predatory
species as well as the potential for high-intensity wildfires.
We have excluded 77 ac (31 ha) of lands owned by the White Mountain
Apache Tribe in the Canyon Creek Unit (see Consideration of Impacts
under Section 4(b)(2) of the Act, below).

Unit 7: Tonto Creek Subbasin Unit

Unit 7 consists of a total of 2,293 ac (928 ha) in three subunits
along 41 stream mi (66 km): 28 stream mi (46 km) of Tonto Creek, 0.7
stream mi (1.2 km) of Houston Creek, and 12 stream mi (19 km) of
Haigler Creek. The Tonto Creek Subbasin Unit is generally located
southeast of Payson, Arizona, and northeast of the Phoenix metropolitan
area, in Gila County. Land ownership or land management within this
unit consists of lands managed by the U.S. Forest Service on Tonto
National Forest in the Hellsgate Wilderness and privately owned lands.
Unit 7 is designated as critical habitat because it was occupied at
the time of listing and as a whole, this unit contains PBFs 1, 2, 3,
and 5, but PBF 4 is in degraded condition. The PBFs in this unit may
require special management due to competition with, and predation

[[Page 58497]]

by, nonnative species that are present in this unit; water diversions;
flood-control projects; potential for high-intensity wildfires; and
development of areas adjacent to or within critical habitat.

Unit 8: Verde River Subbasin Unit

Unit 8 consists of 3,156 ac (1,277 ha) in three subunits along 58
stream mi (93 km): 27 stream mi (43 km) of Verde River, 24 stream mi
(39 km) of Oak Creek, and 7 stream mi (11 km) of West Fork Oak Creek.
The Verde River Subbasin Unit is generally located near Perkinsville
and Sedona, Arizona, west of Paulden, Arizona, in Coconino and Yavapai
Counties. Verde River Subbasin Unit occurs on lands managed by the U.S.
Forest Service on Prescott and Coconino National Forests, Arizona State
Parks at Redrock State Park, and private entities.
Unit 8 is designated as critical habitat because it was occupied at
the time of listing and as a whole, this unit contains PBFs 1, 2, 3,
and 5, but PBF 4 is in degraded condition. The PBFs in this unit may
require special management due to competition with, and predation by,
nonnative species that are present; water diversions; groundwater
pumping potentially resulting in drying of habitat; potential for high-
intensity wildfires; and human recreation and human development of
areas adjacent to critical habitat.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed 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 (Corps) 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, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service 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 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether implementation of the proposed Federal action directly or
indirectly alters the designated critical habitat in a way that
appreciably diminishes the value of the critical habitat as a whole for
the conservation of the listed species. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying 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 narrow-headed gartersnake. Some of these
activities may have short-term negative effects to designated critical
habitat but may also result in long-term benefits to the gartersnake.
These activities include, but are not limited to:
(1) Actions that would alter the amount, timing, or frequency of
flow within a stream or the quantity of available water within aquatic
or wetland habitat such that the prey base for the narrow-headed
gartersnake, or the gartersnake itself, are appreciably

[[Page 58498]]

diminished or threatened with extirpation. Such activities could
include, but are not limited to: Water diversions; channelization;
construction of any barriers or impediments within the active river
channel; removal of flows in excess of those allotted under a given
water right; construction of permanent or temporary diversion
structures; groundwater pumping within aquifers associated with the
river; or dewatering of isolated within-channel pools or stock tanks.
These activities could result in the reduction of the distribution or
abundance of important gartersnake prey species, as well as reduce the
distribution and amount of suitable physical habitat on a regional
landscape for the gartersnake itself.
(2) Actions that would significantly increase sediment deposition
or scouring within the stream channel or pond that is habitat for the
narrow-headed gartersnake, or one or more of their prey species within
the range of the narrow-headed gartersnake. Such activities could
include, but are not limited to: Livestock grazing that results in
erosion contaminating waters; road construction; commercial or urban
development; channel alteration; timber harvest; prescribed fires or
wildfire suppression; off-road vehicle or recreational use; and other
alterations of watersheds and floodplains. These activities could
adversely affect the potential for gartersnake prey species to survive
or breed. They may also reduce the likelihood that the gartersnake's
prey species (i.e., native fish) could move among subpopulations in a
functioning metapopulation. This would, in turn, decrease the viability
of metapopulations and their component local populations of prey
species.
(3) Actions that would alter water chemistry beyond the tolerance
limits of a gartersnake prey base. Such activities could include, but
are not limited to: Release of chemicals, biological pollutants, or
effluents into the surface water or into connected groundwater at a
point source or by dispersed release (non-point source); aerial
deposition of known toxicants, such as mercury, that are positively
correlated to regional exceedances of water quality standards for these
toxicants; livestock grazing that results in waters heavily polluted by
feces; runoff from agricultural fields; roadside use of salts; aerial
pesticide overspray; runoff from mine tailings or other mining
activities; and ash flow and fire retardants from fires and fire
suppression. These actions could adversely affect the ability of the
habitat to support survival and reproduction of gartersnake prey
species.
(4) Actions that would remove, diminish, or significantly alter the
structural complexity of key natural structural habitat features in and
adjacent to aquatic habitat. These features may be organic or
inorganic, may be natural or constructed, and include (but are not
limited to) boulders and boulder piles, cliff faces, rocks such as
river cobble, downed trees or logs, debris jams, small mammal burrows,
or leaf litter. Such activities could include, but are not limited to:
Construction projects; flood control projects; vegetation management
projects; or any project that requires a 404 permit from the U.S. Army
Corps of Engineers. These activities could result in a reduction of the
amount or distribution of these key habitat features that are important
for gartersnake thermoregulation, shelter, protection from predators,
and foraging opportunities.
(5) Actions and structures that would physically block movement of
gartersnakes or their prey species within or between regionally
proximal populations or suitable habitat. Such actions and structures
include, but are not limited to: Urban, industrial, or agricultural
development; reservoirs stocked with predatory fishes, bullfrogs, or
crayfish; highways that do not include reptile and amphibian fencing
and culverts; and walls, dams, fences, canals, or other structures that
could physically block movement of gartersnakes. These actions and
structures could reduce or eliminate immigration and emigration among
gartersnake populations, or that of their prey species, reducing the
long-term viability of populations.
(6) Actions that would directly or indirectly result in the
introduction, spread, or augmentation of predatory nonnative species in
gartersnake habitat, or in habitat that is hydrologically connected,
even if those segments are occasionally intermittent, or introduction
of other species that compete with or prey on the narrow-headed
gartersnake or its prey base, or introduce pathogens. Possible actions
could include, but are not limited to: Introducing or stocking
nonnative, spiny-rayed fishes, bullfrogs, crayfish, or other predators
of the prey base of narrow-headed gartersnakes; creating or sustaining
a sport fishery that encourages use of nonnative live fish or crayfish
as bait; maintaining or operating reservoirs that act as source
populations for predatory nonnative species within a watershed;
constructing water diversions, canals, or other water conveyances that
move water from one place to another and through which inadvertent
transport of predatory nonnative species into narrow-headed gartersnake
habitat may occur; and moving water, mud, wet equipment, or vehicles
from one aquatic site to another, through which inadvertent transport
of pathogens may occur. These activities directly or indirectly cause
unnatural competition with and predation from nonnative aquatic
predators on the narrow-headed gartersnake, leading to reduced
recruitment within gartersnake populations and diminishment or
extirpation of their prey base.
(7) Actions that would deliberately remove, diminish, or
significantly alter the native or nonnative, soft-rayed fish component
of the narrow-headed gartersnake prey base within occupied habitat. In
general, these actions typically occur in association with fisheries
management, such as the application of piscicides in conjunction with
fish barrier construction.

Exemptions

Application of Section 4(a)(3) of the Act

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense, or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. There are no
Department of Defense (DoD) lands with a completed INRMP within the
final critical habitat designation.

Consideration of Impacts and Exclusions Under Section 4(b)(2) of the
Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if we determine
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless we determine, 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 the determination to

[[Page 58499]]

exclude a particular area, 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.
On December 18, 2020, we published a final rule in the Federal
Register (85 FR 82376) revising portions of our regulations concerning
excluding areas of critical habitat under section 4(b)(2) of the Act.
These final regulations became effective on January 19, 2021, and apply
to critical habitat rules for which a proposed rule was published after
January 19, 2021. Consequently, these new regulations do not apply to
this final rule.
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 discretion to exclude
the area only if such exclusion would not result in the extinction of
the species. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
As discussed below, based on the information provided by entities
seeking exclusion, as well as any additional public comments received,
we evaluated whether certain lands in the proposed critical habitat
were appropriate for exclusion from this final designation pursuant to
section 4(b)(2) of the Act. The Act affords a great degree of
discretion to the Service in implementing section 4(b)(2). This
discretion is applicable to a number of aspects of section 4(b)(2)
including whether to enter into the discretionary 4(b)(2) exclusion
analysis and the weights assigned to any particular factor used in the
analysis. Most significant is that the decision to exclude is always
discretionary, as the Act states that the Secretary ``may'' exclude any
areas. Under no circumstances is exclusion required under the second
sentence of section 4(b)(2). There is no requirement to exclude, or
even to enter into a discretionary 4(b)(2) exclusion analysis for any
particular area identified as critical habitat. Accordingly, per our
discretion, we have only done a full discretionary exclusion analysis
when we received clearly articulated and reasoned rationale to exclude
the area from this critical habitat designation.

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our draft economic analysis (DEA) of the critical habitat designation
and related factors (IEc 2019, entire). The analysis, dated October 10,
2019, was made available for public review from April 28, 2020, through
June 29, 2020 (see 85 FR 23608; April 28, 2020). The DEA addressed
probable economic impacts of critical habitat designation for the
narrow-headed gartersnake. Following the close of the comment period,
we reviewed and evaluated all information submitted during the comment
period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation. The
DEA was updated in March 2021 to reflect changes made to critical
habitat units from the revised proposed rule; however, the total
incremental costs are not expected to change (IEc 2021, entire).
Additional information relevant to the probable incremental economic
impacts of the critical habitat designation for the narrow-headed
gartersnake is summarized below and available in the screening analysis
for the narrow-headed gartersnake (IEc 2021, entire), available at
http://www.regulations.gov.
In our IEM, we attempted to clarify the distinction between the
effects that will result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
narrow-headed gartersnake's critical habitat. The following specific
circumstances help to inform our evaluation: (1) The essential PBFs
identified for critical habitat are the same features essential for the
life requisites of the species; and (2) any actions that would result
in sufficient harm or harassment to constitute jeopardy to the narrow-
headed gartersnake would also likely adversely affect the essential
PBFs of critical habitat. The IEM outlines our rationale concerning
this limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
designation of critical habitat.
The critical habitat designation for the narrow-headed gartersnake
totals 23,784 ac (9,625 ha) comprising eight units. Land ownership
within critical habitat for the narrow-headed gartersnake in acres is
broken down as follows: Federal (74 percent), State (Arizona and New
Mexico) (3 percent), and private (23 percent) (see Table 1, above). All
units are occupied.
In these areas, any actions that may affect the species would also
affect designated critical habitat because the species is so dependent
on habitat to fulfill its life-history functions. Therefore, any
conservation measures to address impacts to the species would be the
same as those to address impacts to critical habitat. Consequently, it
is unlikely that any additional conservation efforts would be
recommended to address the adverse modification standard over and above
those recommended as necessary to avoid jeopardizing the continued
existence of the narrow-headed gartersnake. Further, every unit of
critical habitat overlaps with the ranges of a number of currently
listed species and designated critical habitats. Therefore, the actual
number of section 7 consultations is not expected to increase. The
consultation would simply have to consider an additional species or
critical habitat unit. While this additional analysis will require time
and resources by the Federal action agency, the Service, and third
parties, the probable incremental economic impacts of the critical
habitat designation are expected to be limited to additional
administrative costs and would not be significant (IEc 2021, entire).
This is due to all units being occupied by the narrow-headed
gartersnake.
Based on consultation history for the gartersnake, the number of
future consultations, including technical assistances, is likely to be
no more than 21 per year. The additional administrative cost of
addressing adverse modification in these consultations is likely to be
less than $61,000 in a given year, including costs to the Service, the
Federal action agency, and third parties (IEc 2021, p. 14), with
approximately $28,000 for formal consultations, $32,000 for informal
consultations, and $1,100 for technical assistances. This is based on
an individual technical assistance costing $410, informal consultation
costing $2,500, and formal consultation

[[Page 58500]]

costing $9,600. Therefore, the incremental costs associated with
critical habitat are unlikely to exceed $100 million in any single year
and, therefore, would not be significant (see Executive Order (E.O.)
12866 Regulatory Planning and Review).

Exclusions Based on Economic Impacts

The Service considered the economic impacts of the critical habitat
designation. We are not exercising our discretion to exclude any areas
from this designation of critical habitat for the narrow-headed
gartersnake based on economic impacts.

Consideration of Impacts on National Security and Homeland Security

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, it must
provide a reasonably specific justification of an incremental impact on
national security that would result from the designation of that
specific area as critical habitat. That justification could include
demonstration of probable impacts, such as impacts to ongoing border-
security patrols and surveillance activities, or a delay in training or
facility construction, as a result of compliance with section 7(a)(2)
of the Act. If the agency requesting the exclusion does not provide us
with a reasonably specific justification, we will contact the agency to
recommend that it provide a specific justification or clarification of
its concerns relative to the probable incremental impact that could
result from the designation. If we conduct an exclusion analysis
because the agency provides a reasonably specific justification or
because we decide to exercise the discretion to conduct an exclusion
analysis, we will defer to the expert judgment of DoD, DHS, or another
Federal agency as to: (1) Whether activities on its lands or waters, or
its activities on other lands or waters, have national-security or
homeland-security implications; (2) the importance of those
implications; and (3) the degree to which the cited implications would
be adversely affected in the absence of an exclusion. In that
circumstance, in conducting a discretionary section 4(b)(2) exclusion
analysis, we will give great weight to national-security and homeland-
security concerns in analyzing the benefits of exclusion.

Exclusions Based on Impacts on National Security and Homeland Security

We have determined that the lands within the designation of
critical habitat for the narrow-headed gartersnake are not owned or
managed by DoD or DHS. We did not receive any requests for exclusion
based on impacts to national security or homeland security. Therefore,
we anticipate no impact on national security or homeland security, and
we are not exercising our discretion to exclude any lands based on
impacts to national security or homeland security.

Consideration of 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 discussed above. Other relevant impacts may include, but are
not limited to, impacts to Tribes, States, local governments, public
health and safety, community interests, the environment (such as
increased risk of wildfire or pest and invasive species management),
Federal lands, and conservation plans, agreements, or partnerships. To
identify other relevant impacts that may affect the exclusion analysis,
we consider a number of factors, including whether there are permitted
conservation plans covering the species in the area--such as HCPs, safe
harbor agreements (SHAs), or candidate conservation agreements with
assurances (CCAAs)--or whether there are non-permitted conservation
agreements and partnerships that may be impaired by designation of, or
exclusion from, critical habitat. In addition, we look at whether
Tribal conservation plans or partnerships, Tribal resources, or
government-to-government relationships of the United States with Tribal
entities may be affected by the designation. We also consider any
State, local, public-health, community-interest, environmental, or
social impacts that might occur because of the designation.
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
In the case of the narrow-headed gartersnake, the benefits of
critical habitat include public awareness of the presence of the
species and the importance of habitat protection, and, where a Federal
nexus exists, increased habitat protection for the gartersnake due to
the protection from destruction or adverse modification of critical
habitat. Continued implementation of an ongoing management plan that
provides conservation equal to or more than the protections that result
from a critical habitat designation would reduce those benefits of
including that specific area in the critical habitat designation.

Exclusions Based on Other Relevant Impacts

Based on the information provided by entities seeking exclusion,
any additional public comments we received, and the best scientific
data available, we evaluated whether certain lands in the critical
habitat were appropriate for exclusion from this final designation
under section 4(b)(2) of the Act. If the analysis indicated that the
benefits of excluding lands from the final designation outweigh the
benefits of designating those lands as critical habitat, then we
identified those areas for the Secretary to exercise her discretion to
exclude the lands from the final designation, unless exclusion would
result in extinction.

[[Page 58501]]

In the paragraphs below, we provide a detailed balancing analysis
of the areas we evaluated for exclusion from critical habitat under
section 4(b)(2) of the Act.

Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships, in General

We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service, sometimes through the permitting process under Section 10
of the Act.
When we undertake a discretionary section 4(b)(2) analysis, we
evaluate a variety of factors to determine how the benefits of any
exclusion and the benefits of inclusion are affected by the existence
of private or other non-Federal conservation plans or agreements and
their attendant partnerships when we undertake a discretionary section
4(b)(2) exclusion analysis. A non-exhaustive list of factors that we
will consider for non-permitted plans or agreements is shown below (see
Policy Regarding Implementation of Section 4(b)(2) of the Endangered
Species Act (81 FR 7226; February 11, 2016)). These factors are not
required elements of plans or agreements, and all items may not apply
to every plan or agreement.
(i) The degree to which the plan or agreement provides for the
conservation of the species or the essential physical or biological
features (if present) for the species.
(ii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented.
(iii) The demonstrated implementation and success of the chosen
conservation measures.
(iv) The degree to which the record of the plan supports a
conclusion that a critical habitat designation would impair the
realization of benefits expected from the plan, agreement, or
partnership.
(v) The extent of public participation in the development of the
conservation plan.
(vi) The degree to which there has been agency review and required
determinations (e.g., State regulatory requirements), as necessary and
appropriate.
(vii) Whether NEPA compliance was required.
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
Non-Permitted Conservation Plans, Agreements, or Partnerships
I. Gila River Subunit Within the Upper Gila River Subbasin Unit--
Freeport-McMoRan Management Plan
Critical habitat for gartersnakes was identified for the Gila River
(563 ac (228 ha)) on Freeport-McMoRan privately owned lands where the
narrow-headed gartersnake occurs.
FMC completed their Spikedace and Loach Minnow Management Plan for
the Upper Gila River (FMC management plan), including Bear Creek and
Mangas Creek in Grant County, New Mexico, in 2011. The FMC management
plan was created in response to a proposed rule to designate critical
habitat for the spikedace and loach minnow along reaches of the Gila
River, Mangas Creek, and Bear Creek (75 FR 66482; October 28, 2010)
owned by FMC. Water rights are also included in these land holdings.
The majority of these lands are owned by Pacific Western Land Company
(PWLC) and included the U-Bar Ranch, which has been managed under a
rest-rotation livestock grazing strategy since approximately 1992. The
focus of management actions pertaining to spikedace and loach minnow
occur along the middle section of the upper Gila River, the perennial
portion of Mangas Creek, and lower portion of Bear Creek near the
village of Gila within the Gila-Cliff Valley of New Mexico.
Collectively and through existing water diversions, these lands and
associated water rights support mining operations at the Tyrone Mine as
well as livestock operations along the Gila River.
Livestock operations within the U-Bar Ranch consider the needs of
the southwestern willow flycatcher and are considered to provide
indirect benefits to spikedace and loach minnow under the FMC
management plan. For the purposes of this analysis, we reviewed the
commitments made in the FMC management plan that pertain to spikedace
and loach minnow, not the southwestern willow flycatcher, due to their
ecological needs, which more closely overlap those of the narrow-headed
gartersnake. In the past, FMC has funded fish surveys within the U-Bar
Ranch along the Gila River, as well as Mangas and Bear Creeks. The FMC
management plan established a framework for cooperation and
coordination with the Service in connection with future resource
management activities based on adaptive management principles. FMC
lands are closed to public use, which eliminates potential concerns for
effects to riparian and streambed habitat from off-highway vehicle use,
camping, and hiking. Access to FMC lands are provided for wildlife
survey needs.
The FMC management plan also commits to maintaining base flow in
the Gila River within its planning area, through a cessation of water
diversions at the Bill Evans Reservoir diversion, provided two
conditions are met: (1) The Gila River is flowing at less than 25 cubic
feet per second (cfs) per day at USGS Gage 09431500, near Redrock, New
Mexico (the nearest gage downstream from FMC's point of diversion); and
(2) the water level in Bill Evans Reservoir is at least 4,672 ft above
sea level. In the event that the first condition is satisfied but the
reservoir level is below 4,672 ft above sea level, FMC will confer with
NMDGF (which owns Bill Evans Reservoir) regarding temporary curtailment
of water diversions. Therefore, maintaining minimum flow in the Gila
River is not under the sole discretion of FMC. In the event water use
changes become necessary, FMC provides us with notice of any
significant changes in its water uses and diversions and will confer
about impacts of such changes on spikedace and loach minnow habitat.
FMC has also committed to funding biennial fish surveys and the
maintenance of survey locations, fisheries biologists, techniques, and
protocols along the lands associated with the Gila River and to
providing subsequent data to us. Lastly, FMC committed to make
reasonable efforts to coordinate and encourage adjacent landowners, as
well as confer with us on opportunities to increase local public
awareness, to assist in their conservation management and, when
appropriate, assist other landowners to these ends. The FMC management
plan considers adaptive management, which includes, if necessary, the
development of alternative conservation measures at a total cost of
$500,000, for habitat protection. Summarized, the FMC management plan
commits to ongoing grazing using rest-rotation at moderate levels, the
prohibition of public trespass unless for the purposes of surveys and

[[Page 58502]]

monitoring for covered species (the narrow-headed gartersnake is not
covered), limiting water diversion withdrawals from the Gila River
provided certain criteria are met (dependent upon discretion of a third
party), and a commitment to make reasonable efforts to coordinate with
other landowners in the area on voluntary implementation of
conservation measures.

Benefits of Inclusion--FMC Management Plan

As discussed above under Effects of Critical Habitat Designation,
Section 7 Consultation, Federal agencies, in consultation with the
Service, must ensure that their actions are not likely to jeopardize
the continued existence of any listed species or result in the
destruction or adverse modification of any designated critical habitat
of such species. The difference in the outcomes of the jeopardy
analysis and the adverse modification analysis represents the
regulatory benefit and costs of critical habitat. It is possible that
in the future, Federal funding or permitting could occur on this
privately owned land where a critical habitat designation may benefit
narrow-headed gartersnake habitat. The implementation of potential
conservation measures or conservation recommendations could provide
important benefits to the continued conservation and recovery of the
species in this area.
Because the narrow-headed gartersnake occurs in this area, the
benefits of a critical habitat designation are reduced to the possible
incremental benefit of critical habitat because the designation would
not be the sole catalyst for initiating section 7 consultation.
However, should a catastrophic event such as disease, drought,
wildfire, chemical spill, etc., result in potential or actual
extirpation of the gartersnake population in this area, designation of
critical habitat will ensure future Federal actions do not result in
adverse modification of critical habitat, allowing for future recovery
actions to occur.
Another important benefit of including lands in a critical habitat
designation is that it can serve to educate landowners, agencies,
Tribes, and the public regarding the potential conservation value of an
area, and may help focus conservation efforts on areas of high value
for certain species. Any information about the narrow-headed
gartersnake that reaches a wide audience, including parties engaged in
conservation activities, is valuable. The designation of critical
habitat may also affect the implementation of Federal laws, such as the
Clean Water Act. These laws analyze the potential for projects to
significantly affect the environment. Critical habitat may signal the
presence of important sensitive habitat that could otherwise be missed
in the review process for these other environmental laws.
Despite its benefits to the spikedace and loach minnow, the FMC
management plan does not provide adequate conservation of the narrow-
headed gartersnake because:
The management plan does not commit to any conservation
measures that directly address the leading threat facing the narrow-
headed gartersnake across its range: The presence of predatory
nonnative aquatic species.
Within the FMC management plan area, livestock have
sustained access to the riparian corridor, which negatively impacts
narrow-headed gartersnakes because gartersnakes require adequate cover
for protection from predators and to assist with thermoregulation.
The decision to change the amount of diverted Gila River
water in the event of flows reaching 25 cfs or below are contingent
upon an external entity to the FMC management plan and their desires
for management of the Bill Evans Reservoir, adding uncertainty to this
measure in terms of its implementation.
Benefits of an unquantifiable and therefore unknown effort
associated with enhancing cooperative conservation with adjacent
landowners yields high uncertainty pertaining to both implementation of
the measure and potential benefits realized by its implementation.

Benefits of Exclusion--FMC Management Plan

One benefit from excluding FMC-owned lands as narrow-headed
gartersnake critical habitat is the maintenance and strengthening of
ongoing conservation partnerships. FMC has demonstrated a willingness
to partner with the Service in conservation planning for several
species in Arizona and New Mexico. Examples include becoming a
conservation partner in the development and implementation of the
Southwestern Willow Flycatcher Recovery Plan, and by solidifying their
conservation actions in management plans submitted to us for the
southwestern willow flycatcher, and for the spikedace and loach minnow
(2007 and 2011). They have also demonstrated a willingness to conserve
southwestern willow flycatcher and western yellow-billed cuckoo
(Coccyzus americanus) habitat at Pinal Creek and to partner with us by
exploring the initial stages of a habitat conservation plan.
Our collaborative relationship with FMC in the conservation arena
makes a difference in our partnership with the numerous stakeholders
involved in aquatic species recovery and management and influences our
ability to form partnerships with others. Concerns over perceived,
added regulation potentially imposed by critical habitat could harm
this collaborative relationship.
Because important areas for gartersnake conservation can occur on
private lands, collaborative relationships with private landowners can
be important in order to further recovery. The narrow-headed
gartersnake and its habitat could benefit in some cases, from voluntary
landowner management actions that implement appropriate and effective
conservation strategies. Where consistent with the discretion provided
by the Act, it is beneficial to implement policies that provide
positive incentives to private landowners to voluntarily conserve
natural resources and that remove or reduce disincentives to
conservation (Wilcove et al. 1996, pp. 1-15; Bean 2002, pp. 1-7). Thus,
it is important for narrow-headed gartersnake conservation to seek out
continued conservation partnerships such as these with a proven
partner, and to provide positive incentives for other private
landowners who might be considering implementing voluntary conservation
activities, but who have concerns about incurring incidental regulatory
or economic impacts should a Federal nexus occur.

Benefits of Inclusion Outweigh the Benefits of Exclusion--FMC
Management Plan

We have determined that the benefits of inclusion of the Gila River
on private lands managed by FMC outweigh the benefits of exclusion
based on several factors. Above, we outlined several instances where
management actions set forth in the plan either do not pertain directly
to the needs of narrow-headed gartersnake critical habitat, do not have
the necessary assurances that beneficial actions will indeed occur, or
provide minimal benefits to gartersnake conservation and recovery in
general. However, we will continue to work with FMC in the conservation
arena as they are an important partner of the Service in conservation
planning for several species in Arizona and New Mexico.
After weighing the benefits of inclusion as narrow-headed
gartersnake critical habitat against the benefits of exclusion, we have
concluded that the

[[Page 58503]]

benefits of including FMC privately owned lands on the Gila River (563
ac (228 ha)) outweigh those that would result from excluding these
areas from critical habitat designation. Therefore, we did not exclude
these lands from the final designation.
II. Whitewater Creek Subunit--NMDGF's Glenwood State Fish Hatchery
Management
Critical habitat for the narrow-headed gartersnake was identified
for Whitewater Creek that includes 2.9 ac (1.2 ha) of lands that are
part of the Glenwood State Fish Hatchery owned by NMDGF. NMDGF
established the Glenwood State Fish Hatchery adjacent to Whitewater
Creek in 1938. The hatchery currently raises female sterile rainbow
trout (Oncorhynchus mykiss) and a renovation to the facility to
propagate Gila trout (O. gilae) is planned. The portion of Whitewater
Creek that flows through the hatchery property is considered dispersal
habitat for narrow-headed gartersnakes moving between the Catwalk
Recreation Area upstream of the hatchery to the San Francisco River.
We received a comment from NMDGF requesting that this area within
the Glenwood State Fish Hatchery be excluded from the final designation
of critical habitat. NMDGF's rationale for requesting exclusion was
that there are no records of the species within the hatchery boundary
and Whitewater Creek is not perennial at the hatchery. NMDGF further
explains that the Service's Memorandum for the Intra-Service Section 7
Endangered Species Act Consultation for the Proposed Operation and
Maintenance of Hatchery Facilities NM F-66 Project concurred with a
``no effect'' determination for the narrow-headed gartersnake because
the snake is not currently present.
In the revised proposed critical habitat rule (85 FR 23608; April
28, 2020), we reviewed narrow-headed gartersnake occupancy to determine
that a stream or stream reach was occupied at the time of listing for
narrow-headed gartersnake if it is within the historical range of the
species, contains PBFs for the species (although the PBFs concerning
prey availability and presence of nonnative aquatic predators are often
in degraded condition), and has a last known record of occupancy
between 1998 and 2019 (see Occupancy Records, 85 FR 23608, p. 23617-
23619) (see Criteria Used To Identify Critical Habitat). Although
narrow-headed gartersnakes have not been detected at the hatchery, the
segment of Whitewater Creek included in the critical habitat
designation for the narrow-headed gartersnake, including where the
creek flows through the hatchery, meets this definition.
In the revised proposed critical habitat rule (85 FR 23608; April
28, 2020) and this rule, we also define perennial, intermittent, and
ephemeral as related to stream flow included in PBF 1 for the narrow-
headed gartersnake and clarify the spectrum of stream flow regimes that
provide stream habitat for the species based on scientifically accepted
stream flow definitions (Levick et al. 2008, p. 6; Stromberg et al.
2009, p. 330) (see ``Stream Flow'' in 85 FR 23608, April 28, 2020, p.
23613; see also Physical or Biological Features Essential to the
Conservation of the Species, below). Although Whitewater Creek is
ephemeral at the Glenwood State Fish Hatchery, it is perennial upstream
of the hatchery and downstream at its confluence with the San Francisco
River, so the entire stream segment meets our definition of critical
habitat.
In regard to NMDGF's assertion that the hatchery should not be
listed as critical habitat because of the Service's previous
concurrence with a ``no effect'' determination under a Section 7 Intra-
Service consultation, a critical habitat determination is not
synonymous with a determination that an area is occupied for the
purposes of a jeopardy analysis under Section 10 of the Act. Under
section 7 of the Act, Federal agencies are required to consult with the
Service to ensure that the actions they carry out, fund, or authorize
are not likely to jeopardize the continued existence of the species, or
destroy or adversely modify critical habitat. For a jeopardy or
``take'' analysis, we analyze effects to a species if the species is
present in the action area during the time of the action. For an
adverse modification analysis, we analyze effects to critical habitat
if critical habitat for a species is present in the action area.
Therefore, an effect determination is different than a critical habitat
designation. A critical habitat determination depends on the best
available information at the time of the analysis, and the likely
effects and likelihood of take depend on the action under
consideration. NMDGF does not have a management plan for the narrow-
headed gartersnake at the hatchery, but has stated that if a population
became established at the hatchery in the future, they would implement
conservation actions such as identifying and protecting hibernacula,
foraging sites, and corridors within the limits of hatchery operations;
maintaining or improving existing habitat for the species; and
conducting regular monitoring of the population (NMDGF 2020, p. 1).
Regardless of the absence of narrow-headed gartersnake on a very small
portion of Whitewater Creek in the hatchery boundary, as discussed
above, Whitewater Creek, including the hatchery property, meets the
Service's definition of critical habitat. There are no current
management actions set forth that pertain directly to the needs of
narrow-headed gartersnake critical habitat, and without a plan we lack
the necessary assurances that beneficial actions will occur. We are
committed to working with the NMDGF to further narrow-headed
gartersnake conservation, and we expect the continuation of our
conservation partnership help foster the maintenance and development of
narrow-headed gartersnake habitat in the vicinity of the Glenwood State
Fish Hatchery.
Under section 4(b)(2) of the Act, we can exclude specific areas
from critical habitat designations based in part on the existence of
private or other non-Federal conservation plans or agreements and their
attendant partnerships. A conservation plan or agreement describes
actions that are designed to provide for the conservation needs of a
species and its habitat, and may include actions to reduce or mitigate
negative effects on the species caused by activities on or adjacent to
the area covered by the plan. However, there are no current management
actions set forth that pertain directly to the needs of narrow-headed
gartersnake critical habitat.
With respect to NMDGF's request to exclude the Glenwood State Fish
Hatchery along Whitewater Creek, we are not excluding the area from
this final rule for the reasons mentioned above. NMDGF has demonstrated
a willingness to partner with the Service in conservation planning for
several species in New Mexico, including recovery actions for listed
fish species that occur in the Gila River subbasin. Our collaborative
relationship with NMDGF in the conservation arena makes a difference in
our partnership with the numerous stakeholders involved in aquatic
species recovery and management, and influences our ability to form
partnerships with others, and we will continue to collaborate on
conservation efforts now and into the future.

Private or Other Non-Federal Conservation Plans Related to Permits
Under Section 10 of the Act

HCPs for incidental take permits under section 10(a)(1)(B) of the
Act provide for partnerships with non-Federal entities to minimize and
mitigate impacts to listed species and

[[Page 58504]]

their habitat. In some cases, HCP permittees agree to do more for the
conservation of the species and their habitats on private lands than
designation of critical habitat would provide alone. We place great
value on the partnerships that are developed during the preparation and
implementation of HCPs.
CCAAs and SHAs are voluntary agreements designed to conserve
candidate and listed species, respectively, on non-Federal lands. In
exchange for actions that contribute to the conservation of species on
non-Federal lands, participating property owners are covered by an
``enhancement of survival'' permit under section 10(a)(1)(A) of the
Act, which authorizes incidental take of the covered species that may
result from implementation of conservation actions, specific land uses,
and, in the case of SHAs, the option to return to a baseline condition
under the agreements. The Service also provides enrollees assurances
that we will not impose further land-, water-, or resource-use
restrictions, or require additional commitments of land, water, or
finances, beyond those agreed to in the agreements.
When we undertake a discretionary section 4(b)(2) exclusion
analysis based on permitted conservation plans such as CCAAs, SHAs, and
HCPs, we consider the following three factors:
(i) Whether the permittee is properly implementing the conservation
plan or agreement;
(ii) Whether the species for which critical habitat is being
designated is a covered species in the conservation plan or agreement;
and
(iii) Whether the conservation plan or agreement specifically
addresses the habitat of the species for which critical habitat is
being designated and meets the conservation needs of the species in the
planning area.
We are not excluding any areas under private or other non-Federal
conservation plans related to permits under section 10 of the Act.

Tribal Lands

Several Executive Orders, Secretarial Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis. When we
undertake a discretionary 4(b)(2) exclusion analysis, we will always
consider exclusion of Tribal lands, and give great weight to Tribal
concerns in analyzing the benefits of exclusion. However, Tribal
concerns are not a factor in determining what areas, in the first
instance, meet the definition of ``critical habitat.''
A joint Secretarial Order that applies to both the Service and the
National Marine Fisheries Service (NMFS)--Secretarial Order 3206,
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act (June 5, 1997) (S.O. 3206)--is the most
comprehensive of the various guidance documents related to Tribal
relationships and Act implementation, and it provides the most detail
directly relevant to the designation of critical habitat. In addition
to the general direction discussed above, the Appendix to S.O. 3206
explicitly recognizes the right of Tribes to participate fully in any
listing process, including designation of critical habitat. S.O. 3206
also states that critical habitat shall not be designated on Indian
lands unless such areas are determined essential to conserve a listed
species. In designating critical habitat, the Service and NMFS shall
evaluate and document the extent to which the conservation needs of the
listed species can be achieved by limiting the designation to other
lands. In light of this instruction, when we undertake a discretionary
section 4(b)(2) exclusion analysis, we will always consider exclusions
of Tribal lands under section 4(b)(2) of the Act prior to finalizing a
designation of critical habitat, and will give great weight to Tribal
concerns in analyzing the benefits of exclusion (see Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR
7226; February 11, 2016)).
However, S.O. 3206 does not preclude us from designating Tribal
lands or waters as critical habitat, nor does it state that Tribal
lands or waters cannot meet the Act's definition of ``critical
habitat.'' We are directed by the Act to identify areas that meet the
definition of ``critical habitat'' (i.e., areas occupied at the time of
listing that contain the essential PBFs that may require special
management or protection and unoccupied areas that are essential to the
conservation of a species), without regard to landownership. While S.O.
3206 provides important direction, it expressly states that it does not
modify the Secretaries' statutory authority. Our Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR
7226; February 11, 2016) similarly makes clear that while giving great
weight to Tribal concerns, such concerns are not a factor in
determining what areas, in the first instance, meet the definition of
``critical habitat.''
I. Eagle Creek Unit, Black River Subunit, and Bear Wallow Creek
Subunit--San Carlos Apache Tribe Fishery Management Plan
We identified approximately 339 ac (137 ha) of narrow-headed
gartersnake critical habitat that occurs on San Carlos Apache Tribe
lands within portions of the Eagle Creek Unit (236 ac (96 ha)), Black
River Subunit (55 ac (22 ha)), and Bear Wallow Creek Subunit (48 ac (19
ha)).
The San Carlos Apache Tribe manages a land area over 1.8 million ac
(>728,435 ha) in size, ranging in elevation from 2,400 ft (732 m) to
8,000 ft (2,440 m), in the east-central region of Arizona. In 2005, the
San Carlos Apache Recreation and Wildlife Department finalized the San
Carlos Apache Tribe Fishery Management Plan (SCAT FMP; San Carlos
Apache Tribe 2005, entire), which prescribes fisheries management
objectives across their reservation. The SCAT FMP addresses both
management of nonnative sportfish (a source of revenue for the Tribe)
in reservoirs, stock tanks, and streams, but also contains management
objectives for native fish. With respect to nonnative sportfish,
primary management areas include San Carlos Reservoir, Talkalai Lake,
Seneca Lake, Point of Pines Lake, and Dry Lake (San Carlos Apache Tribe
2005, p. 4). Stock tanks of larger size are also managed for sportfish.
Approximately 30 stock tanks on the reservation support recreational
sport fishing activities. However, erosion and lack of maintenance of
these tanks have rendered many tanks too shallow to support this use,
and many tanks have gone dry (San Carlos Apache Tribe 2005, p. 5).
Approximately 170 miles (273 kilometers) of perennial rivers occur on
the reservation where sport fishing is managed, including the Black,
Salt, Gila, San Carlos, and Blue Rivers, as well as Eagle, Willow, Bear
Wallow, and Bonita Creeks (San Carlos Apache Tribe 2005, pp. 5-6). Of
these streams on the reservation, narrow-headed gartersnakes are known
to occur along the Black River, Eagle Creek, and Bear Wallow Creek.
In general, natural resource management on the San Carlos Apache
Reservation is guided by a collection of resolutions and management
plans that cover such topics as wildland fire, forest, and range,
including specific management plans for southwestern willow flycatchers
and Mexican spotted owls (Strix occidentalis lucida) (San Carlos Apache
Tribe 2005, p. 50). The

[[Page 58505]]

SCAT FMP is tiered off the Tribe's integrated resource management plan,
which is further tiered to their strategic plan (San Carlos Apache
Tribe 2005, p. 50).
The SCAT FMP ``sets the framework to conserve, enhance, and restore
nongame, threatened and endangered native fish and their habitats as
part of the overall natural diversity found on the Reservation for the
enjoyment by present and future generations'' (San Carlos Apache Tribe
2005, p. 63). The SCAT FMP has six goals relevant to native fish
management, each of which has identified objectives, actions, and
evaluations (San Carlos Apache Tribe 2005, pp. 63-71).
The first goal is to develop and implement integrated, watershed-
based approaches to fishery resource management. The primary objective
of this goal is to identify native fish management units within each of
the six subbasins on the Reservation and develop initial management
recommendations for each management unit (San Carlos Apache Tribe 2005,
p. 64). Implementing this objective requires the identification of
needs for native fish within each management unit. Evaluation for
meeting this objective includes considering which native fish occur and
where, developing decision-based criteria, comparing the value of
native fish to that of its relative sport fish value, and determining
future management recommendations for the best overall use of each
management unit (San Carlos Apache Tribe 2005, p. 64).
The second goal under the SCAT FMP is to ``conserve, enhance, and
maintain existing native fish populations and their habitats as part of
the natural diversity of the Reservation as a home and abiding place
for Tribal members'' (San Carlos Apache Tribe 2005, p. 65). Five
objectives are identified to implement this goal: Developing a survey
program, determining the status of natives fishes within streams on the
Reservation and possible corrective actions to improve their status
where necessary, prioritizing research needs, developing an ``Adopt a
Stream'' program to facilitate monitoring and protection of aquatic and
riparian resources, and developing a contingency plan to address
catastrophic drought and wildfire events (San Carlos Apache Tribe 2005,
p. 67).
The third goal of the SCAT FMP is to restore extirpated fishes and
degraded natural habitats when appropriate and economically feasible.
To accomplish this goal, the Tribe develops and implements guidelines
for reintroduction, translocation, and reestablishment of native fishes
and their habitats by completing a needs assessment for native fishes
on the Reservation (San Carlos Apache Tribe 2005, pp. 67-68).
The fourth goal of the SCAT FMP is to prevent, minimize, or
mitigate adverse impacts to all native fishes, particularly threatened
or endangered species, and their habitats when consistent with the
Reservations values as a home and abiding place for Tribal members.
Five actions are listed to achieve this goal: Participation in section
7 consultations; participation in the Tribal integrated resource
management planning process; literature reviews pertaining to best
practices and alternative uses; education and demonstrations to benefit
Tribal Cattle Association members; and the review and recommendation of
land use practices, policies, and plans to minimize adverse impacts to
native fish and their habitats (San Carlos Apache Tribe 2005, pp. 68-
69).
The fifth goal of the SCAT FMP includes education to increase
Tribal awareness of native fish conservation and values through
identification of Tribal perceptions and attitudes regarding native
fish. A minimum of once per year, the Tribe plans and participates in
public workshops that discuss native fish biology, conservation, and
management. In addition to these topics, at these workshops the Tribe
discusses how to reduce impacts and improve status of native fishes
(San Carlos Apache Tribe 2005, pp. 69-70).
The final goal of the SCAT FMP requires the Tribe to pursue funding
to support all previously stated goals and objectives outlined in the
SCAT FMP (San Carlos Apache Tribe 2005, p. 70).

Benefits of Inclusion--San Carlos Apache Tribe Fishery Management Plan

As discussed above under Effects of Critical Habitat Designation,
Section 7 Consultation, Federal agencies, in consultation with the
Service, must ensure that their actions are not likely to jeopardize
the continued existence of any listed species or result in the
destruction or adverse modification of any designated critical habitat
of such species. The difference in the costs or outcomes of the
jeopardy analysis and the adverse modification analysis represents the
regulatory benefit of critical habitat. A critical habitat designation
requires Federal agencies to consult on whether their activity would
destroy or adversely modify critical habitat to the point where
recovery could not be achieved.
Because the species occurs in Eagle Creek, Black River, and Bear
Wallow Creek, the benefits of a critical habitat designation are
reduced to the possible incremental benefit of critical habitat because
the designation would not be the sole catalyst for initiating section 7
consultation. However, should a catastrophic event such as disease,
drought, wildfire, chemical spill, etc., result in potential or
statistically-proven, actual extirpation of the gartersnake population
in this area, designation of critical habitat would ensure future
Federal actions do not result in adverse modification of critical
habitat, allowing for future recovery actions to occur.
Were we to designate critical habitat on these Tribal lands, our
section 7 consultation history indicates that there may be some, but
few, regulatory benefits to the narrow-headed gartersnake. As described
above, even with narrow-headed gartersnakes occurring on these Tribal
lands, no formal section 7 consultations have yet to occur. When we
review future projects addressing the narrow-headed gartersnake
pursuant to section 7 of the Act in Arizona, we will examine
conservation measures associated with the project for their value in
the conservation of narrow-headed gartersnakes or their habitat. Where
there is consistency with managing habitat and implementing suitable
conservation measures, it would be unlikely that a consultation would
result in a determination of adverse modification of critical habitat.
Therefore, when the threshold for adverse modification is not reached,
only additional conservation recommendations could result from a
section 7 consultation, but such measures would be discretionary on the
part of the Federal agency.
Another important benefit of including lands in a critical habitat
designation is that the designation can serve to inform and educate
landowners and the public regarding the potential conservation value of
an area, and may help focus management efforts on areas of high value
for certain species. The Tribe, through their Recreation and Wildlife
Department, surveys all proposed home and construction projects, and
provides information from the SCAT FMP for use in negotiating water
exchanges and in determining mitigation measures for projects that may
impact listed species or their habitat. Therefore, the Recreation and
Wildlife Department has an opportunity to provide information regarding
the species and its habitat across the Reservation. In addition, the
Tribe has

[[Page 58506]]

adopted an interdisciplinary team approach to all natural resources
matters. The team works together to provide an ecosystem management
approach in developing strategic plans and management plans. Through
this team, Tribal members can be informed of steps necessary to
conserve native fish and their habitat as the prey base for narrow-
headed gartersnakes.
Another possible benefit of the designation of critical habitat is
that it may also affect the implementation of Federal laws, such as
NEPA or the Clean Water Act. These laws require analysis of the
potential for proposed projects to significantly affect the
environment. Critical habitat may signal the presence of sensitive
habitat that could otherwise be missed in the review process for these
other environmental laws.
Therefore, because of the development and implementation of a
management plan, ongoing habitat conservation, the rare initiation of
formal section 7 consultations, the occurrence of narrow-headed
gartersnakes on Tribal lands, and the Service's coordination with
Tribes on gartersnake-related issues, it is expected that there may be
some, but limited, benefits from including these Tribal lands in a
narrow-headed gartersnake critical habitat designation. The principal
benefit of any designated critical habitat is that activities in and
affecting such habitat require consultation under section 7 of the Act.
Such consultation would ensure that adequate protection is provided to
avoid destruction or adverse modification of critical habitat.

Benefits of Exclusion--San Carlos Apache Tribe Fishery Management Plan

The benefits of excluding San Carlos Apache Tribe lands from
designated critical habitat in portions of Eagle Creek, Black River,
and Bear Wallow Creek include: (1) Demonstrating our commitment to
defer to the Tribe to develop and implement conservation and natural
resource management plans for their lands and resources, which includes
benefits to the narrow-headed gartersnake and its habitat that might
not otherwise occur; (2) the continuance and strengthening of our
effective working relationships with the Tribe to promote conservation
of narrow-headed gartersnakes through that of native fish and their
habitat, as well as other federally listed species; and (3) promoting
continued meaningful collaboration and cooperation in working toward
recovering native aquatic communities, including narrow-headed
gartersnake habitat.
Because the Tribe is the entity that enforces protective
regulations on Tribal trust reservation land, and because we have a
working relationship with them, we believe exclusion of these lands
will yield a significant partnership benefit. The Tribe is coordinating
with the AGFD and the Service on surveys and captive propagation plans
for native fish, which furthers conservation of narrow-headed
gartersnakes. We continue to work cooperatively with the Tribe on
efforts to conserve spikedace and loach minnow on the Reservation,
which benefits other native fish as the primary prey base for narrow-
headed gartersnakes.
During this rulemaking process, we have communicated with the San
Carlos Apache Tribe to discuss how they might be affected by the
regulations associated with listing and designating critical habitat
for the narrow-headed gartersnake. We have determined that the San
Carlos Apache Nation should be the governmental entity to manage and
promote narrow-headed gartersnake conservation on their lands. During
our coordination efforts with the San Carlos Apache Tribe, we
recognized and endorsed their fundamental right to provide for Tribal
resource management activities, including those relating to aquatic
habitat that supports narrow-headed gartersnakes. As outlined above,
the San Carlos Apache Tribe has developed and implemented a fisheries
management plan specific to needs of prey and habitat for narrow-headed
gartersnakes. Overall, the commitments toward management of narrow-
headed gartersnake habitat by the San Carlos Apache Tribe will likely
accomplish greater conservation than would be available through a
designation of critical habitat.
The designation of critical habitat would be viewed as an intrusion
and impact the Tribe's sovereign ability to manage natural resources in
accordance with their own policies, customs, and laws. These impacts
include, but are not limited to: (1) Limiting the San Carlos Apache
Tribe's ability to protect and control its own resources on its lands;
(2) undermining the positive and effective government-to-government
relationship between the Tribe and the Service--a relationship that
serves to protect federally listed species and their habitat; and (3)
hampering or confusing the Tribe's own long-standing protections for
the Eagle Creek, Black River, and Bear Wallow Creek. The perceived
restrictions of a critical habitat designation could have a damaging
effect on coordination efforts, possibly preventing actions that might
maintain, improve, or restore habitat for the narrow-headed gartersnake
and other species. We view this as a substantial benefit since we have
developed a cooperative working relationship with the Tribe for the
mutual benefit of the gartersnake and other endangered and threatened
species.
In addition, we anticipate that future management plans, including
additional conservation efforts for other listed species and their
habitats, may be hampered if critical habitat is designated on Tribal
lands already being managed for sensitive species conservation. We have
determined that many Tribes are willing to work cooperatively with us
and others to benefit other listed and sensitive species, but only if
they view the relationship as mutually beneficial. Consequently, the
development of future voluntary management actions for other listed
species may be compromised if these Tribal lands are designated as
critical habitat for the narrow-headed gartersnake. Thus, a benefit of
excluding these lands would be future conservation efforts that would
benefit other listed or sensitive species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--San Carlos
Apache Tribe Fishery Management Plan

The benefits of including San Carlos Apache Tribal lands in the
critical habitat designation are limited to the incremental benefits
gained through the regulatory requirement to consult under section 7,
the consideration of the need to avoid adverse modification of critical
habitat, and interagency and educational awareness. However, due to the
rarity of Federal actions resulting in formal section 7 consultations,
the benefits of a critical habitat designation are minimized. In
addition, the benefits of consultation are further minimized because
any conservation measures that may have resulted from consultation are
already provided through the conservation benefits to the narrow-headed
gartersnake and its habitat from implementation of the SCAT FMP.
The Tribe has indicated a commitment to traditional ecological
knowledge (TEK), which uses an ecosystem-based approach to land and
species management and preservation. In addition, they have developed
the Fisheries Management Plan, which benefits spikedace and loach
minnow specifically and, by extension, all native fish, by
discontinuing nonnative fish stocking in areas important for their
conservation. Further, the Tribe is working with both the Service and
the AGFD to these ends.

[[Page 58507]]

The Tribe has focused on known areas of concern for the species'
management and has discontinued stocking of nonnative fishes in some
areas, including the Eagle Creek watershed. The Fisheries Management
Plan contains goals of conserving and enhancing native fishes on the
Reservation; restoring native fishes and their habitats; and
preventing, minimizing, or mitigating impacts to native fishes, among
others. In addition, the Tribe has indicated that, through TEK, they
practice an ecosystem-based approach to land- and species-based
management and preservation. We conclude that the benefits to be gained
through the Fisheries Management Plan, coordination with the Service
and AGFD, discontinuance of sportfish stocking, and proactive measures
for native fish all indicate that the Tribe has committed to
conservation measures that exceed benefits to be gained through a
critical habitat designation. Collectively, these measures help secure
native fish communities on the Reservation, which are critical to the
continued survival of the narrow-headed gartersnake. As a result, we
have determined that the benefits of excluding these Tribal lands from
critical habitat designation outweigh the benefits of including these
areas.

Exclusion Will Not Result in Extinction of the Species--San Carlos
Apache Tribe Fisheries Management Plan

We have determined that exclusion of San Carlos Apache Tribe lands
from the critical habitat designation will not result in the extinction
of the narrow-headed gartersnake. We base this determination on several
points. First, as discussed above under Effects of Critical Habitat
Designation, Section 7 Consultation, if a Federal action or permitting
occurs, the known presence of narrow-headed gartersnakes would require
evaluation under the jeopardy standard of section 7 of the Act, even
absent the designation of critical habitat, and thus will protect the
species against extinction. Second, the San Carlos Apache Tribe has a
long-term record of conserving species and habitat and is committed to
protecting and managing narrow-headed gartersnake habitat according to
their cultural history, management plans, and natural resource
management objectives. We have determined that this commitment
accomplishes greater conservation than would be available through a
designation of critical habitat. For these reasons, we have determined
that our working relationships with the Tribe would be better
maintained if we excluded their lands from the designation of narrow-
headed gartersnake critical habitat. With the implementation of these
conservation measures, based upon strategies developed in the SCAT FMP,
we have concluded that the benefits of excluding the San Carlos Apache
Tribe lands outweigh the benefits of their inclusion, and the exclusion
of these lands from the designation will not result in the extinction
of the species. As a result, we are excluding San Carlos Apache Tribe
lands within the Eagle Creek Unit (236 ac (96 ha)), Black River Subunit
(55 ac (22 ha)), and Bear Wallow Creek Subunit (48 ac (19 ha)).
II. Canyon Creek Unit, and Black River, Bear Wallow Creek, and
Reservation Creek Subunits--White Mountain Apache Tribe Native Fishes
Management Plan
We identified approximately 169 ac (68 ha) of narrow-headed
gartersnake critical habitat that occurs on White Mountain Apache Tribe
lands within portions of the Black River Subunit (56 ac (23 ha)), Bear
Wallow Creek Subunit (<0.01 ac (<0.01 ha)), Reservation Creek Subunit
(36 ac (15 ha)), and Canyon Creek Unit (77 ac (31 ha)).
The White Mountain Apache Tribe's Fort Apache Indian Reservation
encompasses approximately 1,680,000 acres in east-central Arizona,
ranging in elevation from 11,590 to 2,640 ft (White Mountain Apache
Tribe 2014, p. 1). A total of 23 artificial reservoirs were created on
the Reservation to provide recreational opportunities such as fishing,
boating, and camping permits (White Mountain Apache Tribe 2014, p. 1).
The White Mountain Apache Tribe Native Fishes Management Plan (WMAT
NFMP) identified native fish species that are historically known from
the Reservation and provides available information on their current
status and distribution. The WMAT NFMP also identified significant
stressors to native fish, which include dewatering, sedimentation,
mechanical stream channel alteration, and interactions with nonnative
aquatic species. The WMAT NFMP lists guidance- and direction-related
documents, management plans, ordinances and codes, and Tribal
resolutions that help address these issues and many others which could
affect natural resources on the Reservation and are currently in effect
(White Mountain Apache Tribe 2014, pp. 11-15). These guidance documents
include the Tribe's 2000 Loach Minnow Management Plan and Resolution
#89-149, which designates streams and riparian zones as Sensitive Fish
and Wildlife areas, requiring that authorized programs ensure these
zones remain productive for fish and wildlife.
The primary purpose of the WMAT NFMP is to ``promote the practical
and effective long-term conservation of all native fish populations and
their habitats found on the Reservation'' (White Mountain Apache Tribe
2014, p. 19). The WMAT NFMP ``sets the framework to conserve, enhance,
and if possible, restore non-game, threatened and endangered native
fish and their habitats as part of the overall natural diversity found
on the Reservation for the enjoyment of present and future generations
of Apache people'' (White Mountain Apache Tribe 2014, p. 19). To
accomplish this, four primary goals are set forth in the WMAT NFMP.
The first goal of the WMAT NFMP is to conserve and maintain
existing native fish populations and their habitats as part of the
natural diversity of the Reservation when consistent with the
Reservation as a homeland for White Mountain Apache Tribal members
(White Mountain Apache Tribe 2014, p. 20). To accomplish this, via
literature review and expert consultation, the Tribe developed a
protocol for standardized sampling and data analysis specific to the
inventory, survey, population modeling, monitoring, and other
management techniques for all native fishes and their habitats. This
protocol will be used to determine the current distribution and
relative abundance of all native fishes and their habitats, with an
emphasis on rare or sensitive species in order to identify native fish
management units within each of the watersheds on the Reservation to
develop initial management recommendations for each (White Mountain
Apache Tribe 2014, p. 20). The Tribe has also committed to updating the
Loach Minnow Management Plan as well as follow the management
strategies in the Apache Trout Recovery Plan. These actions will help
develop research needs and implement research in the field. Under this
first goal, the Tribe also intends to develop an ``Adopt-a-Lake/
Stream'' program, where Tribal members volunteer to help monitor and
protect aquatic riparian resources (White Mountain Apache Tribe 2014,
p. 23).
The second goal of the WMAT NFMP is to enhance native fish
populations and degraded natural habitats when appropriate and
economically feasible by: (1) Developing guidelines for enhancing
native fish populations and their habitats; (2) investigating available
funding opportunities and requirements to support all Tribal
conservation and management activities for all native fishes, their
habitats, and other listed

[[Page 58508]]

aquatic and riparian obligate species and their habitats; (3)
developing proposals to secure funding necessary to continue
conservation and management activities that will benefit all existing
native fishes, their habitats, and other listed aquatic and riparian
obligate species and their habitats; and (4) restoring and enhancing
native fish habitats and populations according to guidance developed
(White Mountain Apache Tribe 2014, pp. 24-25).
The third goal of the WMAT NFMP is to prevent, minimize, or
mitigate adverse impacts to all native fishes, especially threatened or
endangered, and their habitats when consistent with the purpose of the
Reservation as a permanent homeland for White Mountain Apache Tribal
members by: (1) Identifying species and habitat types that are
declining or imperiled, or likely to become imperiled, in the
foreseeable future and the threats causing decline; (2) identifying
possible corrective actions needed to limit or mitigate adverse impacts
to native fish and their habitats where appropriate and economically
feasible, including consideration of threats and mitigation measures to
multiple listed candidate or proposed aquatic or riparian obligate
species; and (3) collaborating with others to maintain or enhance
native fish populations and their habitats or prevent avoidable and
mitigate unavoidable losses (White Mountain Apache Tribe 2014, pp. 25-
27).
The fourth and final goal of the WMAT NFMP focuses on increasing
Tribal awareness of native fish conservation and values. The WMAT NFMP
proposes to accomplish this by: (1) Identifying Tribal perceptions and
attitudes regarding nongame, threatened, and endangered native fishes;
(2) annually developing, sponsoring, and participating in educational
workshops and presentations pertaining to the biology, conservation,
and management of nongame, threatened, or endangered native fishes and
their habitats; and (3) informing the Tribe of the status of nongame,
threatened, and endangered native fishes and threats to their
protection and maintenance, and Tribal actions to reduce or eliminate
such adverse impacts (White Mountain Apache Tribe 2014, pp. 28-29).
The White Mountain Apache Tribe has a process to review and approve
all development activities on the Reservation. The Tribal Plan and
Project Review Panel, among other things, investigates impacts to
sensitive habitats and species, and provides for the implementation of
mitigation measures to avoid adverse impacts to those resources. To
assist, the White Mountain Apache Tribe has a full-time Sensitive
Species Coordinator and Technician who coordinates and participates in
protection, research, management, and administrative activities
involving Federally listed sensitive species on the Reservation.
The White Mountain Apache Tribe's Loach Minnow Management Plan also
provides transitory benefits to narrow-headed gartersnake conservation.
The goals of the Loach Minnow Management Plan are to determine and
quantify the full extent of loach minnow distribution on the
Reservation; continue to develop and strengthen management actions that
effectively address species threats and that provide adequate
protection for, and sustainability of, existing Reservation loach
minnow populations and habitats; complete the development and ongoing
maintenance of Tribal data, information, and mapping for this and other
native fish species; and evaluate and refine the application of Plan
management practices, over time, in a manner that promotes the
practical and effective long-term conservation of all Reservation
native fish populations and assemblages, including those of loach
minnow (White Mountain Apache Tribe 2000).
The Loach Minnow Management Plan provides an action and strategy
outline with eight steps that provide additional detail on how they
will be carried out. The eight steps of the management plan that may
affect PBFs of the narrow-headed gartersnake include:
Determining the distribution of loach minnow within
Reservation boundaries;
Continuing routine surveys and expanding efforts to
include habitat assessment;
Continuing to monitor and refine existing management
treatments involving irrigation uses and activities to develop adequate
mitigation against related threats;
Continuing to apply and refine existing monitoring and
mitigation protocols involving low water and/or drought conditions to
provide sustainable protection of loach minnow populations;
Developing contingency plans with responses to potential
catastrophic events;
Evaluating and refining existing nonnative fish management
and mitigation practices to provide sustainable protection of loach
minnow populations and habitat;
Organizing data collection, handling, storage, and
maintenance among partners; and
Continuing to monitor and refine existing Tribal Plan and
Project Review Process, management plans, and practices to meet loach
minnow and native fish management goals.

Benefits of Inclusion--White Mountain Apache Tribe Native Fishes
Management Plan

[[Page 58509]]

adverse modification is not reached, only additional conservation
recommendations could result from a section 7 consultation, but such
measures would be discretionary on the part of the Federal agency.
Another important benefit of including lands in a critical habitat
designation is that the designation can serve to inform and educate
landowners and the public regarding the potential conservation value of
an area, and may help focus management efforts on areas of high value
for certain species. The White Mountain Apache Tribe has developed
management plans for the loach minnow and native fish in general, and
currently employs a Sensitive Species Coordinator through which
education of Tribal members can occur without critical habitat
designation. In addition, Tribal fisheries biologists participate in
review of development projects and timber sales and can work to educate
project proponents of the species' needs.
Another possible benefit of the designation of critical habitat is
that it may also affect the implementation of Federal laws, such as
NEPA or the Clean Water Act. These laws require analysis of the
potential for proposed projects to significantly affect the
environment. Critical habitat may signal the presence of sensitive
habitat that could otherwise be missed in the review process for these
other environmental laws.
Therefore, because of the development and implementation of a
native fish management plan, ongoing habitat conservation, the rare
initiation of formal section 7 consultations, the occurrence of narrow-
headed gartersnakes on Tribal lands, and the Service's coordination
with Tribes on gartersnake-related issues, it is expected that there
may be some, but limited, benefits from including these Tribal lands in
a narrow-headed gartersnake critical habitat designation. The principal
benefit of any designated critical habitat is that activities in and
affecting such habitat require consultation under section 7 of the Act.
Such consultation would ensure that adequate protection is provided to
avoid destruction or adverse modification of critical habitat.

Benefits of Exclusion--White Mountain Apache Tribe Native Fishes
Management Plan

The benefits of excluding White Mountain Apache Tribe lands from
designated critical habitat in portions of Black River, Bear Wallow
Creek, and Reservation Creek subunits, and in Canyon Creek Unit
include: (1) Our deference to the Tribe to develop and implement
conservation and natural resource management plans for their lands and
resources, which includes benefits to the narrow-headed gartersnake and
its habitat that might not otherwise occur; (2) the continuance and
strengthening of our effective working relationships with the Tribe to
promote conservation of narrow-headed gartersnakes through that of
native fish and their habitat, as well as other federally listed
species; and (3) promoting continued meaningful collaboration and
cooperation in working toward recovering native aquatic communities,
including narrow-headed gartersnake habitat.
Taken individually or collectively, the White Mountain Apache
Tribe's commitments to the conservation of riparian and aquatic
habitats and the native fishes that depend on them offers a strong
foundation for future conservation of the narrow-headed gartersnake. As
we have carefully detailed in this and previous rulemakings pertaining
to the narrow-headed gartersnake, the protection, conservation, and
recovery of native fish communities is of utmost importance to the
continued existence of the narrow-headed gartersnake because this
species is a predatory specialist which preys only on fish. Therefore,
the conservation of native fish communities will provide the suite of
protections required to sustain its prey base and maintain gartersnake
populations on the Reservation and elsewhere such protections are
afforded.
During this rulemaking process, we have communicated with the White
Mountain Apache Tribe to discuss how they might be affected by the
regulations associated with listing and designating critical habitat
for the narrow-headed gartersnake. We have determined that the White
Mountain Apache Tribe should be the governmental entity to manage and
promote narrow-headed gartersnake conservation on their lands. During
our coordination efforts with the White Mountain Apache Tribe, we
recognized and endorsed their fundamental right to provide for Tribal
resource management activities, including those relating to aquatic
habitat that supports narrow-headed gartersnakes. As outlined above,
the White Mountain Apache Tribe has developed and implemented a native
fishes management plan specific to needs of prey and habitat for
narrow-headed gartersnakes. Overall, the commitments toward management
of narrow-headed gartersnake habitat by the White Mountain Apache Tribe
will likely accomplish greater conservation than would be available
through a designation of critical habitat.
The designation of critical habitat would be viewed as an intrusion
and impact their sovereign abilities to manage natural resources in
accordance with the Tribe's own policies, customs, and laws. These
impacts include, but are not limited to: (1) Limiting the White
Mountain Apache Tribe's ability to protect and control its own
resources on its lands; (2) undermining the positive and effective
government-to-government relationship between the Tribe and the
Service--a relationship that serves to protect federally listed species
and their habitat; and (3) hampering or confusing the Tribe's own long-
standing protections for the Black River, Reservation Creek, Bear
Wallow Creek, and Canyon Creek. The perceived restrictions of a
critical habitat designation could have a damaging effect on
coordination efforts, possibly preventing actions that might maintain,
improve, or restore habitat for the narrow-headed gartersnake and other
species. Our working relationships with the Tribe would be better
maintained if we excluded their lands from the designation of narrow-
headed gartersnake critical habitat. We view this as a substantial
benefit since we have developed a cooperative working relationship with
the White Mountain Apache Tribe for the mutual benefit of the narrow-
headed gartersnake and other endangered and threatened species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--White
Mountain Apache Tribe Native Fishes Management Plan

The benefits of including White Mountain Apache Tribal lands in the
critical habitat designation are limited to the incremental benefits
gained through the regulatory requirement to consult under section 7,
the consideration of the need to avoid adverse modification of critical
habitat, and interagency and educational awareness. However, due to the
rarity of Federal actions resulting in formal section 7 consultations,
the benefits of a critical habitat designation are minimized. In
addition, the benefits of consultation are further minimized because
any conservation measures that may have resulted from consultation are
already provided through the conservation benefits to the narrow-headed
gartersnake and its habitat from implementation of the White Mountain
Apache Tribe Native Fishes Management Plan.
The White Mountain Apache Tribe clearly explained their sovereign

[[Page 58510]]

authority to promulgate regulations and management plans to protect and
manage Tribal trust lands, wildlife, forests, and other natural
resources, and cited numerous authorities that confirm their authority
over wildlife and other natural resources existing within their
ancestral lands. In addition, they have shown a commitment to other
federally listed species, such as the loach minnow and Mexican spotted
owl.
Based on our working relationship with the White Mountain Apache
Tribe, their demonstration of conservation through past efforts, and
the protective provisions of the WMAT NFMP and Loach Minnow Management
Plan, we have determined that the benefits of excluding these Tribal
lands from critical habitat designation outweigh the benefits of
including these areas.

Exclusion Will Not Result in Extinction of the Species--White Mountain
Apache Tribe Native Fishes Management Plan

We have determined that exclusion of White Mountain Apache Tribe
lands from the critical habitat designation will not result in the
extinction of the narrow-headed gartersnake. We base this determination
on several points. First, as discussed above under Effects of Critical
Habitat Designation, Section 7 Consultation, if a Federal action or
permitting occurs, the known presence of narrow-headed gartersnakes
would require evaluation under the jeopardy standard of section 7 of
the Act, even absent the designation of critical habitat, and thus will
protect the species against extinction. Second, the White Mountain
Apache Tribe has a long-term record of conserving species and habitat
and is committed to protecting and managing narrow-headed gartersnake
habitat according to their cultural history, management plans, and
natural resource management objectives. We have determined that this
commitment accomplishes greater conservation than would be available
through a designation of critical habitat. With the implementation of
these conservation measures, based upon strategies developed in the
WMAT NFMP and Loach Minnow Management Plan, we have determined that the
benefits of excluding the White Mountain Apache Tribe lands outweigh
the benefits of their inclusion, and the exclusion of these lands from
the designation will not result in the extinction of the species. As a
result, we are excluding White Mountain Apache Tribe lands within the
Black River Subunit (56 ac (23 ha)), Bear Wallow Creek Subunit (<0.01
ac (<0.01 ha)), Reservation Creek Subunit (36 ac (15 ha)), and Canyon
Creek Unit (77 ac (31 ha)).

Summary of Exclusions Under 4(b)(2) of the Act

Table 2 below presents areas of lands that meet the definition of
critical habitat but for which we are excluding from this final
critical habitat designation for the narrow-headed gartersnake.

Table 2--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit for the Narrow-Headed
Gartersnake
----------------------------------------------------------------------------------------------------------------
Landowner, Proposed critical Area excluded (ac Final critical
Unit subunit property name habitat (ac (ha)) (ha)) habitat (ac (ha))
----------------------------------------------------------------------------------------------------------------
Eagle Creek Unit
----------------------------------------------------------------------------------------------------------------
Eagle Creek..................... San Carlos Apache 336 (136)......... 236 (96).......... 100 (41)
Tribe.
Unit total being excluded....... .................. .................. 236 (96).......... ..................
----------------------------------------------------------------------------------------------------------------
Black River Subbasin Unit
----------------------------------------------------------------------------------------------------------------
Black River..................... San Carlos Apache 763 (309)......... 55 (22)........... 652 (264)
Tribe.
White Mountain .................. 56 (23)...........
Apache Tribe.
Bear Wallow Creek............... San Carlos Apache 174 (71).......... 48 (19)........... 126 (51)
Tribe.
White Mountain .................. <.01 (<.01)....... ..................
Apache Tribe.
Reservation Creek............... White Mountain 132 (54).......... 36 (15)........... 96 (39)
Apache Tribe.
Unit total being excluded....... .................. .................. 195 (79).......... ..................
----------------------------------------------------------------------------------------------------------------
Canyon Creek Unit
----------------------------------------------------------------------------------------------------------------
Canyon Creek.................... White Mountain 232 (94).......... 77 (31)........... 155 (63)
Apache Tribe.
Unit total being excluded....... .................. .................. 77 (31)........... ..................
-----------------------------------------------------------
Grand Total................. .................. .................. 508 (206).........
----------------------------------------------------------------------------------------------------------------

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that

[[Page 58511]]

describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a certification
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate only the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies will be directly
regulated by this designation. There is no requirement under the RFA to
evaluate the potential impacts to entities not directly regulated.
Moreover, Federal agencies are not small entities. Therefore, because
no small entities will be directly regulated by this rulemaking, the
Service certifies that this final critical habitat designation will not
have a significant economic impact on a substantial number of small
entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period that may
pertain to our consideration of the probable incremental economic
impacts of this critical habitat designation. Based on this
information, we affirm our certification that this final critical
habitat designation will not have a significant economic impact on a
substantial number of small entities, and a regulatory flexibility
analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
critical habitat designation will significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(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 lands being designated for
critical habitat are owned by private landowners, the States of New
Mexico and Arizona, and the Federal Government (USFS, NPS, BLM, and
Service). In addition, based in part on an analysis conducted for the
previous proposed designation of critical habitat and extrapolated to
this designation, we do not expect this rule to significantly or
uniquely affect small governments. Small governments will be affected
only to the extent that any

[[Page 58512]]

programs or actions requiring or using Federal funds, permits, or other
authorized activities must ensure that their actions will not adversely
affect the critical habitat. Further, we do not believe that this rule
will significantly or uniquely affect small governments because it will
not produce a Federal mandate of $100 million or greater in any year,
that is, it is not a ``significant regulatory action'' under the
Unfunded Mandates Reform Act. The designation of critical habitat
imposes no obligations on State or local governments. Therefore, a
Small Government Agency Plan is not required.

Takings--Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the narrow-headed gartersnake in a takings implications
assessment. The Act does not authorize the Service to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures, or restrictions on
use of or access to the designated areas. Furthermore, the designation
of critical habitat 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. However, Federal agencies are prohibited from carrying out,
funding, or authorizing actions that would destroy or adversely modify
critical habitat. A takings implications assessment has been completed
and concludes this designation of critical habitat for the narrow-
headed gartersnake does not pose significant takings implications for
lands within or affected by the designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the final rule does not
have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The final designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for 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 State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act will be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule will not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the physical or biological features essential to the
conservation of the narrow-headed gartersnake. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the NEPA in connection with
designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However,
when the range of the species includes States within the Tenth Circuit,
such as that of the narrow-headed gartersnake, under the Tenth Circuit
ruling in Catron County Board of Commissioners v. U.S. Fish and
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA
analysis for critical habitat designation.
We performed the NEPA analysis, and the draft environmental
assessment was made available for public comment with publication of
the revised proposed critical habitat designation (85 FR 23608; April
28, 2020). We invited the public to comment on the extent to which the
proposed critical habitat designation may have a significant impact on
the human environment, or fall within one of the categorical exclusions
for actions that have no individual or cumulative effect on the quality
of the human environment. We received five comments during the comment
period for the environmental assessment. Our environmental assessment
found that the impacts of the revised proposed critical habitat
designation would be minor and not rise to a significant level, so
preparation of an environmental impact statement is not required. The
final environmental assessment and finding of no significant impact has
been completed and is available for review with the publication of this
final rule. You may obtain a copy of the final environmental assessment
online at http://www.regulations.gov, by contacting the Field
Supervisor of the (see FOR FURTHER INFORMATION CONTACT), or on the
Service's website at https://www.fws.gov/southwest/es/arizona/.

[[Page 58513]]

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 directly contacted GRIC, the White
Mountain Apache Tribe, and the San Carlos Apache Tribe during the
rulemaking process. We will continue to work on a government-to-
government basis with Tribal entities on conservation of habitat after
the designation of critical habitat for the narrow-headed gartersnake.

References Cited

A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).

Authors

The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team and the Arizona
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.

0
2. Amend Sec. 17.11(h), the List of Endangered and Threatened
Wildlife, by revising the entry for ``Gartersnake, narrow-headed''
under REPTILES to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
REPTILES
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Gartersnake, narrow-headed...... Thamnophis Wherever found.... T................. 79 FR 38678, 7/8/
rufipunctatus. 2014; 50 CFR
17.95(c).\CH\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.95(c) by adding an entry for ``Narrow-headed
Gartersnake (Thamnophis rufipunctatus)'' immediately following the
entry for ``American Crocodile (Crocodylus acutus)'' to read as
follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(c) * * *
* * * * *
Narrow-headed Gartersnake (Thamnophis rufipunctatus)
(1) Critical habitat units are depicted for Greenlee, Apache,
Yavapai, Gila, and Coconino Counties in Arizona, as well as in Grant,
Hidalgo, and Catron Counties in New Mexico, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of narrow-headed gartersnake consist of
the following components:
(i) Perennial streams or spatially intermittent streams that
provide both aquatic and terrestrial habitat that allows for
immigration, emigration, and maintenance of population connectivity of
narrow-headed gartersnakes and contain:
(A) Pools, riffles, and cobble and boulder substrate, with a low
amount of fine sediment and substrate embeddedness;
(B) Organic and natural inorganic structural features (e.g., cobble
bars, rock piles, large boulders, logs or stumps, aquatic vegetation,
vegetated islands, logs, and debris jams) in the stream channel for
basking, thermoregulation, shelter, prey base maintenance, and
protection from predators;
(C) Water quality that meets or exceeds applicable State surface
water quality standards; and
(D) Terrestrial habitat up to 328 feet (100 meters) from the active
stream channel (water's edge) that includes flood debris, rock piles,
and rock walls containing cracks and crevices, small mammal burrows,
downed woody debris, and streamside vegetation (e.g., alder, willow,
sedges, and shrubs) for thermoregulation, shelter, brumation and
protection from predators throughout the year.
(ii) Hydrologic processes that maintain aquatic and riparian
habitat through:
(A) A natural flow regime that allows for periodic flooding, or if
flows are modified or regulated, a flow regime that allows for the
movement of water, sediment, nutrients, and debris through the stream
network, as well as maintenance of native fish populations; and
(B) Physical hydrologic and geomorphic connection between the
active stream channel and its adjacent terrestrial areas.

[[Page 58514]]

(iii) A combination of native fishes, and soft-rayed, nonnative
fish species such that prey availability occurs across seasons and
years.
(iv) An absence of nonnative aquatic predators, such as fish
species of the families Centrarchidae and Ictaluridae, American
bullfrogs (Lithobates catesbeianus), and/or crayfish (Orconectes
virilis, Procambarus clarki, etc.), or occurrence of these nonnative
species at low enough levels such that recruitment of narrow-headed
gartersnakes is not inhibited and maintenance of viable prey
populations is still occurring.
(v) Elevations of 2,300 to 8,200 feet (700 to 2,500 meters).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
November 22, 2021.
(4) Data layers defining map units were created using the U.S.
Geological Survey's 7.5' quadrangles, National Hydrography Dataset and
National Elevation Dataset; the Service's National Wetlands Inventory
dataset; and aerial imagery from Google Earth Pro. Line locations for
lotic streams (flowing water) and drainages are depicted as the
``Flowline'' feature class from the National Hydrography Dataset
geodatabase. The active channel along a stream is depicted as the
``Wetlands'' feature class from the Service's National Wetlands
Inventory dataset. Any discrepancies between the ``Flowline'' and
``Wetlands'' feature classes were resolved using aerial imagery from
Google Earth Pro. Elevation range is masked using the ``Elev_Contour''
feature class of the National Elevation Dataset. The administrative
boundaries for Arizona and New Mexico were obtained from the Arizona
Land Resource Information Service and New Mexico Resource Geographic
Information System, respectively. This includes the most current (as of
November 22, 2021) geospatial data available for land ownership,
counties, States, and streets. Locations depicting critical habitat are
expressed as decimal degree latitude and longitude in the World
Geographic Coordinate System projection using the 1984 datum (WGS84).
The maps in this entry, as modified by any accompanying regulatory
text, establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's internet site at http://www.fws.gov/southwest/es/arizona/, at http://www.regulations.gov at
Docket No. FWS-R2-ES-2020-0011, 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) Note: Index map follows:
Figure 1 to Narrow-headed Gartersnake paragraph (5)
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[[Page 58515]]

[GRAPHIC] [TIFF OMITTED] TR21OC21.004

(6) Unit 1: Upper Gila River Subbasin Unit, Grant and Hidalgo
Counties, New Mexico.
(i) Unit 1 consists of 7,005 acres (ac) (2,835 hectares (ha)) in
Grant and Hidalgo Counties, and is composed of lands in Federal (4,084
ac (1,653 ha)), State (553 ac (224 ha)), and private (2,368 ac (958
ha)) ownership in eight subunits west of the town of Glenwood, north of
Silver City, and South of Gila and Cliff.

[[Page 58516]]

(ii) Map of Unit 1 follows:
Figure 2 to Narrow-headed Gartersnake paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TR21OC21.005

(7) Unit 2: San Francisco River Subbasin Unit, Catron County, New
Mexico.
(i) Unit 2 consists of 5,895 ac (2,386 ha) in Catron County, and is
composed of lands in Federal (3,924 ac (1,588 ha)), State (3 ac (1
ha)), and private (1,967 ac (796 ha)) ownership in six subunits near
the towns of Glenwood and Reserve.

[[Page 58517]]

(ii) Map of Unit 2 follows:
Figure 3 to Narrow-headed Gartersnake paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TR21OC21.006

(8) Unit 3: Blue River Subbasin Unit, Greenlee County, Arizona, and
Catron County, New Mexico.
(i) Unit 3 consists 3,368 ac (1,363 ha) in Greenlee County,
Arizona, and Catron County, New Mexico, and is composed of lands in
Federal (2,918 ac (1,181 ha)) and private (450 ac (182 ha)) ownership
in three subunits near the towns of Blue, Arizona, and Luna, New
Mexico.

[[Page 58518]]

(ii) Map of Unit 3 follows:
Figure 4 to Narrow-headed Gartersnake paragraph (8)(ii)
[GRAPHIC] [TIFF OMITTED] TR21OC21.007

(9) Unit 4: Eagle Creek Unit, Greenlee County, Arizona.
(i) Unit 4 consists of 84 ac (34 ha) in Greenlee County, and is
composed of lands in Federal (84 ac (34 ha)) and private (1 ac (<1 ha))
ownership near the town of Woolaroc.

[[Page 58519]]

(ii) Map of Unit 4 follows:
Figure 5 to Narrow-headed Gartersnake paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TR21OC21.008

(10) Unit 5: Black River Subbasin Unit, Apache and Greenlee
Counties, Arizona.
(i) Unit 5 consists of 1,780 ac (720 ha) in Apache and Greenlee
Counties, and is composed of lands in Federal (1,780 ac (720 ha))
ownership in six subunits near the towns of Maverick and Hannigan
Meadow.

[[Page 58520]]

(ii) Map of Unit 5 follows:
Figure 6 to Narrow-headed Gartersnake paragraph (10)(ii)
[GRAPHIC] [TIFF OMITTED] TR21OC21.009

(11) Unit 6: Canyon Creek Unit, Gila County, Arizona.
(i) Unit 6 consists of 204 ac (82 ha) in Gila County, and is
composed of lands in Federal (204 ac (82 ha)) ownership southwest of
the town of Heber.

[[Page 58521]]

(ii) Map of Unit 6 follows:
Figure 7 to Narrow-headed Gartersnake paragraph (11)(ii)
[GRAPHIC] [TIFF OMITTED] TR21OC21.010

(12) Unit 7: Tonto Creek Subbasin Unit, Gila County, Arizona.
(i) Unit 7 consists of 2,293 ac (928 ha) in Gila County, and is
composed of lands in Federal (2,176 ac (881 ha)) and private (117 ac
(47 ha)) ownership in three subunits near the towns of Jakes Corner and
Gisela.

[[Page 58522]]

(ii) Map of Unit 7 follows:
Figure 8 to Narrow-headed Gartersnake paragraph (12)(ii)
[GRAPHIC] [TIFF OMITTED] TR21OC21.011

(13) Unit 8: Verde River Subbasin Unit, Coconino and Yavapai
Counties, Arizona.
(i) Unit 8 consists of 3,156 ac (1,277 ha) in Coconino and Yavapai
Counties, and is composed of lands in Federal (2,446 ac (990 ha)),
State (109 ac (44 ha)), and private (602 ac (244 ha)) ownership in
three subunits near the towns of Sedona and Perkinsville.

[[Page 58523]]

(ii) Map of Unit 8 follows:
Figure 9 to Narrow-headed Gartersnake paragraph (13)(ii)
[GRAPHIC] [TIFF OMITTED] TR21OC21.012

BILLING CODE 4333-15-C
* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-20962 Filed 10-20-21; 8:45 am]
BILLING CODE 4333-15-P