[Federal Register Volume 89, Number 105 (Thursday, May 30, 2024)]
[Proposed Rules]
[Pages 46838-46852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11847]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2023-0188; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BH12
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Dixie Valley Toad
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Dixie Valley toad (Anaxyrus
williamsi) under the Endangered Species Act of 1973, as amended (Act).
In total, approximately 930 acres (376 hectares) in Churchill County,
Nevada, fall within the boundaries of the proposed critical habitat
designation. If we finalize this rule as proposed, it would extend the
Act's protections to this species' critical habitat. We also announce
the availability of a draft economic analysis of the proposed
designation of critical habitat for the Dixie Valley toad.
DATES: We will accept comments received or postmarked on or before July
29, 2024. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by July 15, 2024.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R8-ES-2023-0188,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R8-ES-2023-0188, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment (SSA) report and draft economic analysis
(DEA), are available at https://www.regulations.gov under Docket No.
FWS-R8-ES-2023-0188. For the proposed critical habitat designation, the
coordinates or plot points or both from which the map is generated are
included in the decision file for this critical habitat designation and
are available at https://www.regulations.gov under Docket No. FWS-R8-
ES-2023-0188.
FOR FURTHER INFORMATION CONTACT: Jodie Mamuscia, Field Supervisor, U.S.
Fish and Wildlife Service, Reno Fish and Wildlife Office, 1340
Financial Blvd., Suite 234, Reno, NV 89502; telephone 775-861-6300.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States. Please see Docket No. FWS-R8-ES-2023-0188 on https://www.regulations.gov for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), when we determine that any species warrants listing as an
endangered or threatened species, we are required to designate critical
habitat, to the maximum extent prudent and determinable. Designations
of critical habitat can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to designate critical habitat
for the Dixie Valley toad, which is listed as an endangered species
(see 87 FR 73971; December 2, 2022).
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary), to the maximum extent prudent
and determinable, to designate critical habitat concurrent with
listing. 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 protection; 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.
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.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from other governmental agencies, Native American Tribes,
the scientific community, industry, or any other interested parties
concerning this proposed rule. We particularly seek comments
concerning:
(1) Specific information on:
(a) The amount and distribution of Dixie Valley toad habitat;
(b) Any additional areas occurring within the range of the species
(Churchill County, Nevada) that should be included in the designation
because they (i) are occupied at the time of listing and contain the
physical or biological features that are essential to the conservation
of the species and that may require special management considerations
or protection, or (ii) are
[[Page 46839]]
unoccupied at the time of listing and are essential for the
conservation of the species; and
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change.
(2) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(3) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(4) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(5) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(6) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(2) of
the Act directs that the Secretary shall designate critical habitat on
the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as new information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), our final designation may not include all areas
proposed, may include some additional areas that meet the definition of
critical habitat, may exclude some areas if we find the benefits of
exclusion outweigh the benefits of inclusion and exclusion will not
result in the extinction of the species, or may exempt areas owned or
controlled by the Department of Defense if we find the Air Station's
integrated natural resources management plan (INRMP) provides a
conservation benefit to the species in accordance with 50 CFR
424.12(h). In our final rule, we will clearly explain our rationale and
the basis for our final decision, including why we made changes, if
any, that differ from this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On April 7, 2022, we published in the Federal Register a proposed
rule (87 FR 20374) and emergency listing rule (87 FR 20336) to list the
Dixie Valley toad as an endangered species. We determined that
designation of critical habitat was prudent but not determinable
because we lacked specific information on the impacts of our
designation. On December 2, 2022, we published in the Federal Register
(87 FR 73971) a final rule to list the Dixie Valley toad as an
endangered species. In that rule, we stated that assessments of the
economic impacts that may occur due to a critical habitat designation
were not yet complete. See the April 7, 2022, emergency rule and
December 2, 2022, final rule for more information on previous Federal
actions concerning the Dixie Valley toad.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the Dixie Valley toad SSA report
(Service 2022, entire). We sent the SSA report to four independent peer
reviewers and received three responses; we incorporated the results of
these reviews, as appropriate, into the SSA report, which is the
foundation for this proposed rule. Results of this structured peer
review process can be found at https://www.regulations.gov. For a
summary of peer reviewer comments, please refer to the December 2,
2022, final listing rule (87 FR 73971).
Background
It is our intent to discuss in this proposed rule only those topics
directly relevant to the designation of critical habitat for the Dixie
Valley toad. For more information on the taxonomy, life history,
habitat, population descriptions, and factors affecting the species,
please refer to the April 7, 2022, emergency listing rule (87 FR 20336)
and proposed listing rule (87 FR 20374), as well as the December 2,
2022, final listing rule (87 FR 73971).
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
[[Page 46840]]
(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 each Federal action agency 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 designated 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 also 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. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
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 data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
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.
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 SSA report and 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(b), 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
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define
[[Page 46841]]
``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 absence of 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.
The following is a summary of the key information describing the
physical and biological features essential to the conservation of the
Dixie Valley toad. More information on species ecology and resource
needs is available in chapter 3 of the SSA report (Service 2022, pp.
14-26), which is available on https://www.regulations.gov at Docket No.
FWS-R8-ES-2023-0188, and on the Service's Environmental Conservation
Online System (ECOS) website at https://ecos.fws.gov/ServCat/DownloadFile/215829.
Space for Individual and Population Growth and for Normal Behavior
Dixie Valley toads need enough wetland habitat to maintain
population dynamics and life-history functions. Wetland habitat needs
to include enough wetted area and have the natural range of variability
of water extent to support the vegetation Dixie Valley toads use for
brumation (periods of inactivity during cold temperatures) and shelter;
open, ephemeral wetted areas for breeding; as well as the prey items
the species relies upon.
There is little information on Dixie Valley toad dispersal
capacity, besides the fact that they cannot disperse outside of the
Dixie Meadows wetlands because they are surrounded by a dry landscape.
However, we assume Dixie Valley toads can disperse among the wetlands,
via upland corridors, during wet periods or rain. Maintaining the
upland dispersal corridors between wetlands is important to maintain
genetic diversity within the population and species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Dixie Meadows contains 122 known spring and seep sources (McGinley
and Associates 2021, pp. 1-2) that distribute water across the
landscape. Dixie Valley toads are completely reliant on the wetlands
produced by the Dixie Meadows springs, as the species is highly aquatic
and individuals are rarely found more than 14 meters (m) (46 feet (ft))
away from water (Halstead et al. 2021, pp. 28, 30).
Not only is the water itself necessary for the Dixie Valley toad,
but the warm water temperatures produced by the springs are necessary
for the species. The Dixie Meadows springs are thermal springs,
providing relatively stable, warm temperatures to the wetlands. Dixie
Valley toads select areas that are warmer than other surrounding
available habitat, particularly in spring, fall, and winter months
(Halstead et al. 2021, pp. 30, 33-34). In the spring, Dixie Valley
toads select areas with warmer water for breeding (oviposition sites),
which allows for faster egg hatching and time to metamorphosis. In the
fall, Dixie Valley toads select different areas (closer to thermal
springs with dense vegetation) to satisfy their thermal preferences as
nighttime temperatures decrease. As they enter winter months, toads
find areas with consistent warm temperatures during brumation (periods
of inactivity during cold temperatures) so that they do not freeze
(Halstead et al. 2021, pp. 30, 33-34). Dixie Valley toads are reliant
on warm water temperatures, with Dixie Valley toad tadpoles found most
often between 20 [deg]C-28 [deg]C (68 [deg]F-82 [deg]F), in wetland
habitat for all life-history stages (Rose et al. 2023, p. 560).
The exact water quality parameters preferred by the Dixie Valley
toad are unknown; however, this species has evolved only in Dixie
Meadows and is presumed to thrive in the existing complex mix of water
emanating from both the basin-fill aquifer and the deep geothermal
reservoir. Temperature, dissolved oxygen, pH, salinity and water
conductivity, and excessive nutrient concentrations (among others) have
all been shown to have direct and indirect impacts to amphibian species
when found to be outside of naturally occurring levels for any
particular location (Sparling 2010, pp. 105-117). The natural variation
of water quality parameters found in Dixie Meadows is considered a need
for the species.
There is no published information on the feeding habits of the
Dixie Valley toad. It is assumed that adult Dixie Valley toads are
opportunistic feeders, similar to other toad species (e.g., Muths and
Nanjappa 2005, p. 395), and their diet most likely consists of the
available aquatic and terrestrial invertebrates found in Dixie Meadows.
Toad tadpoles are assumed to feed on algae and detritus (e.g., Fellers
2005, p. 407).
Cover or Shelter
Dixie Valley toads need sufficient wetland vegetation to use as
shelter. The species uses dense stands of bulrush (Schoenoplectus spp.)
for shelter from predators and as brumation sites during cold winter
months. Dixie Valley toads use other types of vegetation for shelter as
well, so the natural heterogeneity of the wetland vegetation found in
Dixie Meadows is a need for the species (e.g., Juncus balticus (Baltic
rush), Schoenoplectus spp. (bulrushes), Phragmites australis (common
reed), Eleocharis spp. (spikerushes), Carex spp. (sedges), and
Distichlis spicata (saltgrass)) (Halstead et al. 2021, p. 34).
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Dixie Valley toad breeding occurs annually from March through May
(Forrest et al. 2013, p. 76). Breeding appears protracted due to the
thermal nature of the habitat and can last for months, with toads
breeding early in the year in habitats closer to the thermal spring
sources and then moving downstream into habitats as they warm
throughout the spring and early
[[Page 46842]]
summer, which is not typical of other toad species that have a much
more contracted breeding season of 3 to 4 weeks (e.g., Sherman 1980,
pp. 18-19, 72-73). Dixie Valley toads prefer to breed in open,
ephemerally wetted areas adjacent to vegetated areas (Rose et al. 2023,
p. 560).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the Dixie Valley toad from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2022, pp. 14-27;
available on https://www.regulations.gov under Docket No. FWS-R8-ES-
2022-0024). We have determined that the following physical or
biological features are essential to the conservation of the Dixie
Valley toad:
(1) Wetlands within Dixie Valley that are composed of some
combination of the following characteristics:
(a) Diverse wetland vegetation that includes, but is not limited
to, native phreatophyte (deep-rooted) species found within the Dixie
Meadows wetlands (e.g., Juncus balticus (Baltic rush), Schoenoplectus
spp. (bulrushes), Phragmites australis (common reed), Eleocharis spp.
(spikerushes), Carex spp. (sedges), and Distichlis spicata
(saltgrass)).
(b) Dense bulrush stands for brumation and shelter.
(c) Open, ephemerally wetted areas adjacent to vegetated areas for
breeding.
(d) The natural range of variability of water temperatures found
throughout each wetland.
(e) The natural range of variability of water extent found
throughout each wetland.
(f) Water quality necessary to sustain natural physiological
processes for normal behavior, growth, and viability of all life
stages.
(g) A variety of aquatic and terrestrial invertebrates, detritus,
and algae for feeding.
(2) Upland habitat between wetlands through which Dixie Valley
toads can disperse when conditions permit.
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. The features essential to the conservation of the Dixie
Valley toad may require special management considerations or protection
to reduce the following threats: (1) groundwater pumping activities,
such as those associated with geothermal energy development and
production; and (2) cattle grazing. Geothermal development is
considered the primary threat to the Dixie Valley toad. Specifically,
the Dixie Meadows Geothermal Utilization Project could have
significant, detrimental impacts to the water flow and temperature
emanating from the thermal springs the Dixie Valley toad relies on
(Service 2022, pp. 39-41, 80-84, 113-119; Tetra Tech 2023a, pp. 3-7;
Tetra Tech 2023b, pp. 2-3). A decrease in water flow would reduce
habitat in the wetlands, and water temperatures in the wetlands could
be reduced to a degree that the species cannot survive through cold
winter months. Cattle can step on Dixie Valley toads while grazing,
causing direct mortality and grazing may have impacts on water quality
due to defecation and urination in the water.
Management activities that could ameliorate these threats include,
but are not limited to, development and use of best management
practices designed to maintain natural spring flows, spring
temperatures, and water quality; use of best management practices
designed to control or minimize the level of grazing in order to
maintain the desired condition of Dixie Valley toad habitat; and
restoration of disturbed features to their pre-disturbance, natural
state.
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 currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the Act's definition of critical habitat. There are no unoccupied areas
that have the unique characteristics and physical and biological
features necessary to support the Dixie Valley toad.
Sources of data for the Dixie Valley toad and its habitat needs
include peer-reviewed articles on the species and related species,
satellite imagery analysis done by the U.S. Geological Survey (USGS),
and communication with species experts.
To determine which areas to propose as critical habitat, we used
the Dixie Meadows wetlands as a starting point. All of the wetlands are
considered occupied by the Dixie Valley toad (Rose et al. 2023, entire)
and are proposed as critical habitat.
We then used USGS's satellite imagery analysis on the extent of
land cover vegetation and soil wetness from October 2015 through
January 2022 (Bransky et al. 2023, entire), to determine the upland
habitat that could be used by Dixie Valley toads to disperse between
wetlands. We delineated all areas of habitat classified by USGS with at
least a class two landcover class (apparent moist soil and sparse or
short vegetation) at some time during the analysis period, using the
Green Normalized Difference Vegetation Index (gNDVI; Gitelson et al.
1996, entire), as suitable upland dispersal habitat for inclusion in
the proposed critical habitat. Although upland habitat is not occupied
year-round, it is assumed to be used during wet periods each year,
playing a vital role in maintaining genetic diversity throughout the
single population of the species.
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 identified the wetlands occupied by the Dixie Valley toad.
(2) We then delineated the upland habitat between wetlands that
included all areas that could be used for dispersal. Upland habitat was
considered dispersal habitat if it has been classified by USGS at some
time from October 2015 through January 2022 as at least a gNDVI class
two land cover class based on satellite imagery analysis.
When determining proposed 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
physical or biological features necessary for the Dixie Valley toad.
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 proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat.
[[Page 46843]]
Therefore, if the critical habitat is finalized as proposed, a Federal
action involving these lands would not trigger section 7 consultation
with respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
The proposed critical habitat designation is defined by the map, as
modified by any accompanying regulatory text, presented at the end of
this document under Proposed 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 the map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R8-ES-
2023-0188.
Proposed Critical Habitat Designation
We are proposing to designate approximately 930 acres (ac) (376
hectares (ha)) in one unit as critical habitat for the Dixie Valley
toad. The critical habitat area we describe below as Dixie Meadows is
occupied by the species and constitutes our current best assessment of
the area that meets the definition of critical habitat for the Dixie
Valley toad. Table 1 shows the land ownership and approximate areas of
the proposed critical habitat unit for the Dixie Valley toad.
Table 1--Proposed Critical Habitat Unit for the Dixie Valley Toad
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit
Critical habitat unit Land ownership by type in acres Occupied?
(hectares)
----------------------------------------------------------------------------------------------------------------
Dixie Meadows........................... Department of Defense 588 (238) Yes.
(DoD).
BLM....................... 342 (138)
----------------
Total.................... 930 (376)
----------------------------------------------------------------------------------------------------------------
We present a brief description and map of the proposed unit, and
reasons why it meets the definition of critical habitat for the Dixie
Valley toad, below.
Dixie Meadows Unit
The Dixie Meadows Unit consists of 930 ac (376 ha) of occupied
wetland and upland habitat in Dixie Meadows, Churchill County, Nevada.
This unit encompasses the entire range of the Dixie Valley toad and
contains all of the physical or biological features essential to the
conservation of the species. This unit is essential to the recovery of
Dixie Valley toad because it includes all the habitat that is occupied
by the species across its range. Special management considerations or
protection may be required to protect against impacts from threats that
are anticipated: to reduce water flow, temperature, and quality
emanating from the springs; and to reduce water quality, water
temperature, the amount of wetted area, and vegetation on the
landscape. Sources of these threats include geothermal development and
production, groundwater pumping activities, and grazing (see Special
Management Considerations or Protection, above). Special management
considerations related to geothermal development and production,
groundwater pumping, and grazing include, but are not limited to:
development and use of best management practices designed to maintain
natural spring flows, spring temperatures, and water quality; use of
best management practices designed to control or minimize the level of
grazing in order to maintain the desired condition of Dixie Valley toad
habitat; and restoration of disturbed features back to their pre-
disturbance, natural state.
Roughly 63 percent (588 ac (238 ha)) of the Unit is part of the Air
Station's lands and 37 percent (342 ac (138 ha)) is Bureau of Land
Management (BLM) land. The 588 ac (238 ha) of Air Station lands are
being considered for exemption from the critical habitat designation
(see Exemptions, below).
A map of the proposed unit, showing areas of wetlands, the Air
Station's lands, and BLM land appears below. Please note that the BLM
lands are those areas within the proposed unit's boundaries that are
not labeled as Department of Defense lands:
[[Page 46844]]
[GRAPHIC] [TIFF OMITTED] TP30MY24.011
Figure 1. Proposed Dixie Meadows Unit for the Dixie Valley Toad
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 authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
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 (50 CFR 402.02).
[[Page 46845]]
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 consultation. Reinitiation of consultation is
required and shall be requested by the Federal agency, where
discretionary Federal involvement or control over the action has been
retained or is authorized by law and: (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 written
concurrence; or (4) if a new species is listed or critical habitat
designated that may be affected by the identified action. As provided
in 50 CFR 402.16, the requirement to reinitiate consultations for new
species listings or critical habitat designation does not apply to
certain agency actions (e.g., land management plans issued by the
Bureau of Land Management in certain circumstances).
Destruction or Adverse Modification of Critical Habitat
The key factor related to the destruction or 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 for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support the 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 that our Federal Register
notices ``shall, to the maximum extent practicable also include a brief
description and evaluation of those activities (whether public or
private) which, in the opinion of the Secretary, if undertaken may
adversely modify [critical] habitat, or may be affected by such
designation.'' Activities that may be affected by designation of
critical habitat for the Dixie Valley toad include those that may
affect the physical or biological features of the Dixie Valley toads'
critical habitat (see Physical or Biological Features Essential to the
Conservation of the Species).
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 DoD, or
designated for its use, that are subject to an integrated natural
resources management plan (INRMP) prepared under section 101 of the
Sikes Act Improvement Act of 1997 (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.
An INRMP was completed by the Air Station in 2014, prior to the
Dixie Valley toad being described as a species and before the toad was
listed as an endangered species. The Air Station is in the process of
amending its INRMP to incorporate the DoD's National Strategic Plan for
amphibian and reptile conservation and management (Lovich et al. 2015,
entire), which will include specific management for Dixie Meadows and
the Dixie Valley toad (Schofield 2023, in litt.). After we receive the
INRMP amendment, we will assess its conservation benefit to the toad
under 50 CFR 424.12(h) before the final critical habitat designation.
If we determine the Air Station lands qualify for exemption from
critical habitat designation, then the 588 ac (238 ha) of Air Station
land would be exempted from the final designation, which is 63 percent
of the proposed critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled, ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
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. In making the
determination to 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. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to make clear the rational
basis for our decision. We describe below the process that we use for
taking into consideration each
[[Page 46846]]
category of impacts and any initial analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary section
4(b)(2) exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Executive
Order 14094 reaffirms the principles of E.O.s 12866 and 13563 and
states that regulatory analysis should facilitate agency efforts to
develop regulations that serve the public interest, advance statutory
objectives, and are consistent with E.O. 12866, E.O. 13563, and the
Presidential Memorandum of January 20, 2021 (Modernizing Regulatory
Review). Consistent with the E.O. regulatory analysis requirements, our
effects analysis under the Act may take into consideration impacts to
both directly and indirectly affected entities, where practicable and
reasonable. If sufficient data are available, we assess to the extent
practicable the probable impacts to both directly and indirectly
affected entities. Section 3(f) of E.O. 12866 identifies four criteria
when a regulation is considered a ``significant regulatory action'' and
requires additional analysis, review, and approval if met. The
criterion relevant here is whether the designation of critical habitat
may have an economic effect of $200 million or more in any given year
(section 3(f)(1), as amended by E.O. 14094). Therefore, our
consideration of economic impacts uses a screening analysis to assess
whether a designation of critical habitat for the Dixie Valley toad is
likely to exceed the economically significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Dixie Valley toad (Industrial Economics (IEc)
2023, entire). We began by conducting a screening analysis of the
proposed designation of critical habitat in order to focus our analysis
on the key factors that are likely to result in incremental economic
impacts. The purpose of the screening analysis is to filter out
particular geographical areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes any probable incremental economic impacts where land and
water use may already be subject to conservation plans, land management
plans, best management practices, or regulations that protect the
habitat area as a result of the Federal listing status of the species.
Ultimately, the screening analysis allows us to focus our analysis
on evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation. The
presence of the listed species in occupied areas of critical habitat
means that any destruction or adverse modification of those areas is
also likely to jeopardize the continued existence of the species.
Therefore, designating occupied areas as critical habitat typically
causes little if any incremental impacts above and beyond the impacts
of listing the species. As a result, we generally focus the screening
analysis on areas of unoccupied critical habitat (unoccupied units or
unoccupied areas within occupied units). Overall, the screening
analysis assesses whether designation of critical habitat is likely to
result in any additional management or conservation efforts that may
incur incremental economic impacts. This screening analysis combined
with the information contained in our IEM constitute what we consider
to be our draft economic analysis (DEA) of the proposed critical
habitat designation for the Dixie Valley toad; our DEA is summarized in
the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the Dixie Valley toad, first we
identified, in the IEM dated April 10, 2023, probable incremental
economic impacts associated with the following categories of
activities: (1) geothermal development and production (BLM, DoD); (2)
groundwater withdrawal; and (3) grazing (BLM). We considered each
industry or category individually. Additionally, we considered whether
their activities have any Federal involvement. Critical habitat
designation generally will not affect activities that do not have any
Federal involvement; under the Act, designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies. In the area where the Dixie Valley toad is present,
Federal agencies are required to consult with the Service under section
7 of the Act on activities they authorize, fund, or carry out that may
affect the species. If we finalize this proposed critical habitat
designation, Federal agencies would be required to consider the effects
of their actions on the designated habitat, and if the Federal action
may affect critical habitat, our consultations would include an
evaluation of measures to avoid the
[[Page 46847]]
destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that 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 Dixie
Valley toad's critical habitat. It has been our experience that it is
difficult to discern which conservation efforts are attributable to the
species being listed and those which will result solely from the
designation of critical habitat. However, the following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would likely adversely affect the
essential physical or biological features of occupied critical habitat
are also likely to adversely affect the species itself. 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 proposed designation of
critical habitat.
The proposed critical habitat designation for the Dixie Valley toad
includes 930 ac (376 ha) of wetland and upland habitat in one occupied
unit. The Air Station manages 588 ac (238 ha), and the BLM manages the
remaining 342 ac (138 ha). Any actions that may affect the species or
its habitat would also affect designated critical habitat, and it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of the Dixie Valley toad. Therefore, only administrative costs are
expected to result from the proposed critical habitat designation.
While this additional analysis will require time and resources by both
the Federal action agency and the Service, it is believed that, in most
circumstances, these costs would predominantly be administrative in
nature and would not be significant.
The probable incremental costs of designating critical habitat for
the Dixie Valley toad are likely to be limited to additional
administrative efforts to consider adverse modification in section 7
consultations. This limitation is because all of the proposed critical
habitat designation is occupied by the Dixie Valley toad. The
incremental administrative burden resulting from the designation of
critical habitat for the Dixie Valley toad is not anticipated to reach
$200 million in any given year based on the anticipated annual number
of consultations and associated consultation costs, which are not
expected to exceed $7,000 per year (2023 dollars). If Air Station lands
are determined to be exempt from the critical habitat designation for
the Dixie Valley toad, the anticipated annual consultations costs are
not expected to exceed $4,000 per year. The designation is unlikely to
trigger additional requirements under State or local regulations. Thus,
the annual administrative burden is relatively low.
We are soliciting data and comments from the public on the DEA
discussed above. During the development of a final designation, we will
consider the information presented in the DEA and any additional
information on economic impacts we receive during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under the authority of section
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and
the 2016 Policy. We may exclude an area from critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of this species.
Consideration of National Security Impacts
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, we 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, we must
conduct an exclusion analysis if the Federal requester provides
information, including 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.
Under section 4(b)(2) of the Act, we also consider whether a
national security or homeland security impact might exist on lands
owned or managed by DoD or DHS. The Air Station may request exclusion
on the basis of national-security or homeland-security impacts. The
only DoD or DHS lands within the proposed critical habitat designation
are the 588 ac (238 ha) of Air Station lands, which is 63 percent of
the proposed critical habitat designation, that are being considered
for exemption under section 4(a)(3)(B)(i) of the Act (see Exemptions,
above). The Air Station has not requested exclusion based on national
security impacts.
[[Page 46848]]
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. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are approved and permitted conservation
agreements or plans covering the species in the area--such as safe
harbor agreements (SHAs), candidate conservation agreements with
assurances (CCAAs) or ``conservation benefit agreement'' or
``conservation agreement'' (``CBAs'') (CBAs are a new type of agreement
replacing SHAs and CCAAs in use after April 2024 (89 FR 26070; April
12, 2024)) or HCPs--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, social, or other impacts that might occur because of the
designation.
Summary of Exclusions Considered Under 4(b)(2) of the Act
In preparing this proposal, we have determined that no HCPs or
other management plans for Dixie Valley toad currently exist, and the
proposed designation does not include any Tribal lands or trust
resources or any lands for which designation would have any economic
impacts. We note that this land is a sacred site to the Fallon Paiute-
Shoshone Tribe and that they supported the listing of the Dixie Valley
toad in their comments on the April 7, 2022, proposed listing rule (87
FR 20374). Therefore, we anticipate no other relevant impacts to Tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation, and, thus, as described above, we are not considering
excluding any particular areas on the basis of the presence of
conservation agreements or impacts to trust resources. We will consider
exclusion of the Air Station lands if the Air Station requests an
exclusion based on national-security impacts.
However, if through the public comment period we receive
information that we determine indicates that there are economic,
national security, or other relevant impacts from designating
particular areas as critical habitat, then as part of developing the
final designation of critical habitat, we will evaluate that
information and may conduct a discretionary exclusion analysis to
determine whether to exclude those areas under authority of section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
If we receive a request for exclusion of a particular area and after
evaluation of supporting information we do not exclude, we will fully
describe our decision in the final rule for this action. (Please see
ADDRESSES, above, for instructions on how to submit comments).
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order (E.O.) 12866, as reaffirmed by E.O. 13563 and E.O.
14094, provides that the Office of Information and Regulatory Affairs
(OIRA) in the Office of Management and Budget (OMB) will review all
significant rules. OIRA has determined that this rule is not
significant.
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. 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 proposed rule in a manner consistent with
these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether 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.
[[Page 46849]]
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate 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 would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
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 ``to the extent
permitted by law'' when undertaking actions identified as significant
energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a
``significant energy action'' as an action that (i) is a significant
regulatory action under E.O. 12866 (or any successor order, including,
most recently, E.O. 14094 (88 FR 21879; April 11, 2023)); and (ii) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This rule is not a significant
regulatory action under E.O. 12866 or 14094. Therefore, this action is
not a significant energy action, and there is no requirement to prepare
a statement of energy effects for this action.
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 proposed rule would 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 are not likely to 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 would significantly or
uniquely affect small governments. The lands being proposed for
critical habitat designation are owned by the DoD and BLM. Neither of
these government entities fit the definition of ``small governmental
jurisdiction.'' 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 Dixie Valley toad 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 for the
proposed designation of critical habitat for the Dixie Valley toad, and
it concludes that, if adopted, this designation of critical habitat
does not pose significant takings implications for lands within or
affected by the designation.
[[Page 46850]]
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed 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 proposed 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 proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal Government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed 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 would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule would not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the species, this proposed rule
identifies the physical or biological features essential to the
conservation of the species. The proposed area of critical habitat is
presented on a map, and the proposed 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.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), the President's memorandum of November
30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479,
December 5, 2022), and the Department of the Interior's manual at 512
DM 2, we readily acknowledge our responsibility to communicate
meaningfully with federally recognized Tribes on a government-to-
government basis. In accordance with Secretaries' 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 requested information from the Fallon Paiute-Shoshone
Tribe during the SSA and proposed listing processes and responded to
comments the Tribe made on the proposed listing rule. The Fallon
Paiute-Shoshone Tribe commented that they support the listing of the
Dixie Valley toad and that the Dixie Meadows hot springs are one of the
most sacred sites in their Tribe's culture. The Service met with the
Fallon Paiute-Shoshone Tribe for government-to-government consultation
in March 2023 at the Tribe's request. During this consultation, the
Service emphasized our commitment to incorporating the Tribe's
traditional ecological knowledge, to the extent to which the Tribe is
comfortable, into the proposed critical habitat designation process,
and we stated that we welcome further conversations to facilitate this.
We will continue to work with Tribal entities during the development of
a final rule for the designation of critical habitat for the Dixie
Valley toad.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Reno Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the Reno
Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to 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. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by revising the entry for ``Toad,
[[Page 46851]]
Dixie Valley'' under AMPHIBIANS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Amphibians
* * * * * * *
Toad, Dixie Valley.............. Anaxyrus williamsi Wherever found.... E 87 FR 73971, 12/2/2022;
50 CFR 17.95(d).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (d) by adding an entry for ``Dixie
Valley Toad (Anaxyrus williamsi)'' after the entry for ``Arroyo Toad
(Anaxyrus californicus)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
Dixie Valley Toad (Anaxyrus williamsi)
(1) The critical habitat unit for the Dixie Valley toad in
Churchill County, Nevada, is depicted on the map in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Dixie Valley toad consist of the
following components:
(i) Wetlands within Dixie Valley that are composed of some
combination of the following characteristics:
(A) Diverse wetland vegetation that includes, but is not limited
to, native phreatophyte (deep-rooted) species found within the Dixie
Meadows wetlands (e.g., Juncus balticus (Baltic rush), Schoenoplectus
spp. (bulrushes), Phragmites australis (common reed), Eleocharis spp.
(spikerushes), Carex spp. (sedges), and Distichlis spicata
(saltgrass)).
(B) Dense bulrush stands for brumation and shelter.
(C) Open, ephemerally wetted areas adjacent to vegetated areas for
breeding.
(D) The natural range of variability of water temperatures found
throughout each wetland.
(E) The natural range of variability of water extent found
throughout each wetland.
(F) Water quality necessary to sustain natural physiological
processes for normal behavior, growth, and viability of all life
stages.
(G) A variety of aquatic and terrestrial invertebrates, detritus,
and algae for feeding.
(ii) Upland habitat between wetlands through which Dixie Valley
toads can disperse when conditions permit.
(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
the effective date of the final rule.
(4) Data layers defining the map unit were created by the Service,
and the critical habitat unit was then mapped using Universal
Transverse Mercator Zone 11N coordinates. The map in this entry, as
modified by any accompanying regulatory text, establishes the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which this map is based are available to the public
at the Service's internet site at https://www.regulations.gov at Docket
No. FWS-R8-ES-2023-0188, 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) Dixie Meadows Unit; Churchill County, Nevada.
(i) The unit consists of 930 acres (ac) (376 hectares (ha)) in
Churchill County and is composed of Federal lands owned by the
Department of Defense (588 ac (238 ha)) and Bureau of Land Management
(342 ac (138 ha)).
(ii) Map follows:
Figure 1 to Dixie Valley Toad (Anaxyrus williamsi) Paragraph (5)(ii)
[[Page 46852]]
[GRAPHIC] [TIFF OMITTED] TP30MY24.012
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-11847 Filed 5-29-24; 8:45 am]
BILLING CODE 4333-15-P