[Federal Register Volume 76, Number 183 (Wednesday, September 21, 2011)]
[Proposed Rules]
[Pages 58441-58455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24045]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2010-0085; MO 922110-0-0009-B4]
RIN 1018-AX12
Endangered and Threatened Wildlife and Plants; Listing and
Designation of Critical Habitat for the Chiricahua Leopard Frog
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the March 15, 2011, proposed
threatened status for the Chiricahua leopard frog (Lithobates
chiricahuensis) and proposed designation of critical habitat under the
Endangered Species Act of 1973, as amended (Act). We are proposing to
revise the primary constituent elements (PCEs) and designate as
critical habitat an additional 331 acres (133 hectares) for the
Chiricahua leopard frog in Catron and Sierra Counties, New Mexico. We
also announce the availability of a draft economic analysis and draft
environmental assessment of the proposed designation of critical
habitat for Chiricahua leopard frog and an amended required
determinations section of the proposal. We are reopening the comment
period to allow all interested parties an opportunity to comment
simultaneously on the proposed rule, revisions to the proposed rule,
the associated draft economic analysis and draft environmental
assessment, and the amended required determinations section. Comments
previously submitted need not be resubmitted, as they will be fully
considered in preparation of the final rule.
DATES: We will consider comments received on or before October 21,
2011. Comments must be received by 11:59 p.m. Eastern Time on the
closing date. Any comments that we receive after the closing date may
not be considered in the final decision on this action.
ADDRESSES: You may submit written comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R2-ES-2010-0085, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2010-0085; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We will post all comments on the Internet at http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services Field Office,
2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; by telephone
(602/242-0210), or by facsimile (602/242-2513). Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed listing and designation of
critical habitat for the Chiricahua leopard frog that was published in
the Federal Register on March 15, 2011 (76 FR 14126), our revised
designation of critical habitat provided in this document, our draft
economic analysis and draft environmental assessment of the proposed
designation, and the amended required determinations provided in this
document. We will consider information and recommendations from all
interested parties. We are particularly interested in comments
concerning:
(1) Information about the status of the species, especially the
Ramsey Canyon portion of the range, including:
(a) Genetics and taxonomy;
(b) Historical and current range, including distribution patterns;
(c) Historical and current population levels, and current and
projected trends; and
(d) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) The factors that are the basis for making a listing
determination for a species under section 4(a) of the Act (16 U.S.C.
1531 et seq.), which are:
(a) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to Chiricahua leopard frog and
regulations that may be addressing those threats.
(4) Additional information concerning the range, distribution, and
population size of Chiricahua leopard frog, including the locations of
any additional populations.
(5) Any information on the biological or ecological requirements of
Chiricahua leopard frog.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act, including whether
there are threats to
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the species from human activities, how the designation may ameliorate
or worsen those threats, and if any potential increase in threats
outweighs the benefits of designation such that the designation of
critical habitat may not be prudent.
(7) Specific information on:
(a) The amount and distribution of the Chiricahua leopard frog's
habitat;
(b) What areas occupied at the time of listing that contain
features essential to the conservation of the species should be
included in the designation, and why;
(c) Special management considerations or protections that the
physical and biological features essential to the conservation of the
Chiricahua leopard frog that have been identified in this proposal may
require, including managing for the potential effects of climate
change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species, and why.
(8) Land-use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating as critical habitat any area that may be
included in the final designation. We are particularly interested in
any impacts on small entities or families, and the benefits of
including or excluding areas that exhibit these impacts.
(10) 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.
(11) Information on whether the benefits of an exclusion of any
particular area outweigh the benefits of inclusion under section
4(b)(2) of the Act.
(12) Information on the projected and reasonably likely impacts of
climate change on the Chiricahua leopard frog and the critical habitat
areas we are proposing.
(13) Information on the extent to which the description of economic
impacts in the draft economic analysis and draft environmental
assessment is complete and accurate.
(14) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the draft economic analysis, and
how the consequences of such reactions, if likely to occur, would
relate to the conservation and regulatory benefits of the proposed
critical habitat designation.
(15) Information regarding the amended primary constituent elements
(PCEs).
If you submitted comments or information on the proposed rule (76
FR 14126; March 15, 2011) during the initial comment period from March
15, 2011, to May 16, 2011, please do not resubmit them. We will
incorporate them into the public record as part of this comment period,
and we will fully consider them in the preparation of our final
determination. Our final determination concerning revised critical
habitat will take into consideration all written comments and any
additional information we receive during both comment periods. On the
basis of public comments, we may, during the development of our final
determination, find that areas proposed are not essential, are
appropriate for exclusion under section 4(b)(2) of the Act, or are not
appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule, draft economic analysis, or draft environmental assessment by one
of the methods listed in the ADDRESSES section. We will not consider
comments sent by e-mail or fax or to an address not listed in the
ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule, draft economic
analysis, and draft environmental assessment, will be available for
public inspection on http://www.regulations.gov at Docket No. FWS-R2-
ES-2010-0085, or by appointment, during normal business hours, at the
U.S. Fish and Wildlife Service, Arizona Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of
the proposed rule and the draft economic analysis on the Internet at
http://www.regulations.gov at Docket Number FWS-R2-ES-2010-0085, or by
mail from the Arizona Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for Chiricahua leopard frog in this
document. For more information on previous Federal actions concerning
the Chiricahua leopard frog, refer to the proposed designation of
critical habitat published in the Federal Register on March 15, 2011
(76 FR 14126). For more information on the Chiricahua leopard frog or
its habitat, refer to the final listing rule published in the Federal
Register on June 13, 2002 (67 FR 40790), and the recovery plan (72 FR
30820, June 4, 2007), which are available at the Arizona Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
We published a proposed rule to list the Chiricahua leopard frog as
threatened in the Federal Register on June 14, 2000 (65 FR 37343). We
published a final rule listing the species as threatened on June 13,
2002 (67 FR 40790). Included in the final rule was a special rule (see
50 CFR 17.43(b)) to exempt operation and maintenance of livestock tanks
on non-Federal lands from the section 9 take prohibitions of the Act.
For further information on actions associated with listing the species,
please see the final listing rule (67 FR 40790; June 13, 2002).
In a May 6, 2009, order from the Arizona District Court, the
Secretary of the Interior was required to publish a critical habitat
prudency determination for the Chiricahua leopard frog and, if found
prudent, a proposed rule to designate critical habitat by December 8,
2010. Because of unforeseen delays related to species taxonomic issues,
we requested a 3-month extension to the court-ordered deadlines for
both the proposed and final rules. On November 24, 2010, the extension
was granted and new deadlines of March 8, 2011, for the proposed rule
and March 8, 2012, for the final rule were established for completing
and submitting the critical habitat rules to the Federal Register.
On March 15, 2011, we published a proposed rule to designate
critical habitat for the Chiricahua leopard frog (76 FR 14126). We
proposed to designate as critical habitat approximately 11,136 acres
(ac) (4,510 hectares (ha)) in 40 unit(s) located in Apache, Cochise,
Gila, Graham, Greenlee, Pima, Santa Cruz, and Yavapai Counties,
Arizona; and Catron, Hidalgo, Grant, Sierra, and Socorro Counties, New
Mexico. That proposal had a 60-day comment period ending May 16, 2011.
In addition, because of a taxonomic revision of the Chiricahua leopard
frog, we are reassessing the
[[Page 58443]]
status of and threats to the currently described species Lithobates
chiricahuensis and proposed the listing as threatened of the currently
described species. The March 15, 2011, proposal had a 60-day comment
period, ending May 16, 2011. We received no requests for a public
hearing, and, therefore, no public hearing will take place.
Changes From Previously Proposed Critical Habitat
In this notice, we are notifying the public of changes to the
proposed critical habitat rule. This revision proposes to add three
additional units (Units 41, 42, and 43) and to amend the PCEs. The
three new units identified in this proposed rule constitute an addition
to the areas we proposed for designation as critical habitat on March
15, 2011 (76 FR 14126). The explanation for this proposed change is
discussed below. All areas proposed on March 15, 2011, remain proposed
for designation as critical habitat. We will submit a final critical
habitat designation for Chiricahua leopard frog to the Federal Register
on or before March 8, 2012.
This revision proposes three additional units as critical habitat,
to include the areas in the vicinity of Kerr Canyon, West Fork Gila
River, and Palomas Creek (Service 2008, pp. 1-2; Service 2009; pp. 15-
16). As a result of these changes, we are proposing to add 219 ac (89
ha) under Federal and 112 ac (45 ha) under private ownership to the
critical habitat designation. In total, we are proposing to designate
as critical habitat approximately 11,467 ac (4,644 ha) for the species.
For a full description of the previously proposed Units 1 through 40,
please see the proposed critical habitat rule (76 FR 14126, March 15,
2011).
In the previous proposed critical habitat rule (76 FR 14126, March
15, 2011), we identified specific sites occupied by Chiricahua leopard
frogs at the time of listing in June 2002 that contain sufficient PCEs
to support life-history functions essential for the conservation of the
species. We included sites where the species was breeding, utilizing
historic information and all known breeding and adult locality data
available at that time. Subsequently, we discovered that we overlooked
three sites in New Mexico that were occupied at the time of listing and
contained the essential physical and biological features. Therefore,
the purpose of this revision to the proposed critical habitat is to
include these three areas that were occupied at the time of listing,
are currently occupied by Chiricahua leopard frogs, contain the
physical or biological features essential to the conservation of the
species, and meet the definition of critical habitat for the species in
New Mexico. We believe these additional areas included in the proposed
designation, if secured, would provide for the conservation of
Chiricahua leopard frog by:
(1) Maintaining the physical and biological features essential to
the conservation of the species in New Mexico where the species is
known to occur, and
(2) Maintaining the current distribution in New Mexico, thus
preserving genetic variation throughout the range of the species and
minimizing the potential effects of local extirpation.
Amended Primary Constituent Elements for the Chiricahua Leopard Frog
We are proposing to amend the PCEs proposed in our March 15, 2011,
proposed rule (76 FR 14126) to provide more clarification by making
them more objective and measurable. By being more objective and
measurable, future section 7 consultations on critical habitat will be
more precise. The original meaning of the proposed PCEs has not
changed. Based on the needs and our current knowledge of the life
history, biology, and ecology of the species, and the habitat
requirements for sustaining the essential life-history functions of the
species, we have determined that, in total, the PCEs essential to the
conservation of the Chiricahua leopard frog are:
(1) Aquatic breeding habitat and immediately adjacent uplands
exhibiting the following characteristics:
(a) Standing bodies of fresh water (with salinities less than 5
parts per thousand, pH greater than or equal to 5.6, and pollutants
absent or minimally present), including natural and manmade (e.g.,
stock) ponds, slow-moving streams or pools within streams, off-channel
pools, and other ephemeral or permanent water bodies that typically
hold water or rarely dry for more than a month. During periods of
drought, or less than average rainfall, these breeding sites may not
hold water long enough for individuals to complete metamorphosis, but
they would still be considered essential breeding habitat in non-
drought years.
(b) Emergent and or submerged vegetation, root masses, undercut
banks, fractured rock substrates, or some combination thereof, but
emergent vegetation does not completely cover the surface of water
bodies.
(c) Nonnative predators (e.g., crayfish (Orconectes virilis),
American bullfrogs (Lithobates catesbeianus), nonnative predatory
fishes) absent or occurring at levels that do not preclude presence of
the Chiricahua leopard frog.
(d) Absence of chytridiomycosis, or if present, then environmental,
physiological, and genetic conditions are such that allow persistence
of Chiricahua leopard frogs.
(e) Upland areas that provide opportunities for foraging and
basking that are immediately adjacent to or surrounding breeding
aquatic and riparian habitat.
(2) Dispersal and nonbreeding habitat, consisting of areas with
ephemeral (present for only a short time), intermittent, or perennial
water that are generally not suitable for breeding, and associated
upland or riparian habitat that provides corridors (overland movement
or along wetted drainages) for frogs among breeding sites in a
metapopulation with the following characteristics:
(a) Are not more than 1.0 mile (1.6 kilometers) overland, 3.0 miles
(4.8 kilometers) along ephemeral or intermittent drainages, 5.0 miles
(8.0 kilometers) along perennial drainages, or some combination thereof
not to exceed 5.0 miles (8.0 kilometers).
(b) In overland and nonwetted corridors, provides some vegetation
cover or structural features (e.g., boulders, rocks, organic debris
such as downed trees or logs, small mammal burrows, or leaf litter) for
shelter, forage, and protection from predators; in wetted corridors,
provides some ephemeral, intermittent, or perennial aquatic habitat.
(c) Are free of barriers that block movement by Chiricahua leopard
frogs, including, but not limited to, urban, industrial, or
agricultural development; reservoirs that are 50 acres (20 hectares) or
more in size and contain predatory nonnative fishes, bullfrogs, or
crayfish; highways that do not include frog fencing and culverts; and
walls, major dams, or other structures that physically block movement.
With the exception of impoundments, livestock tanks, and other
constructed waters, 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.
Proposed Critical Habitat Designation
During our compilation of the administrative record for the
previous proposal, we found three occupied sites that were overlooked
where reproduction has been documented recently in New Mexico, which
led to this revision and proposal of additional critical habitat units
for the species.
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Below, we present a brief description of the three additional units and
reasons why we believe they meet the definition of critical habitat for
the Chiricahua leopard frog. The physical and biological features of
critical habitat in stream and riverine lotic (actively moving water)
systems are contained within the riverine and riparian ecosystems
formed by the wetted channel and adjacent floodplains within 328
lateral feet (100 lateral meters) on either side of bankfull stage.
Further detail may be found in the prior proposal (76 FR 14126, March
15, 2011).
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Recovery Unit 6 (White Mountains-Upper Gila, Arizona and New Mexico)
Unit 41: Kerr Canyon
The Kerr Canyon unit contains 19 ac (8 ha) of Gila National Forest
land and 6 ac (2 ha) of private land in Catron County, New Mexico. The
1.0-mi (1.6-km) reach extends from Kerr Spring, located on the Gila
National Forest, through an intermittent drainage to Kerr Canyon Pond
(sometimes referred to as the Kerr Canyon Trick Tank) to include the
adjacent private property in Kerr Canyon. This unit is proposed as
critical habitat because it was occupied at the time of listing and
currently contains sufficient PCEs (PCE 1) to support life-history
functions essential for the conservation of the species.
Our records indicate that this area contained a robust breeding
population of Chiricahua leopard frogs from 2002 through 2007 (Service
2008, pp. 1-2). However, during surveys conducted in 2008 and 2009, few
individuals were observed (Service 2009a, p. 2). We believe the
population experienced a mass mortality event or die-off from
chytridiomycosis (Service 2009a, p. 2; Service 2009b, p. 1; Service
2009c, p. 1). Tiger salamanders have also recently been found in Kerr
Canyon Pond (Service 2009a, p. 2); however, the abundance of these
Chiricahua leopard frog predators is currently unknown. Partial surveys
of Kerr Canyon Creek and Pond were conducted in 2010, with no frogs
observed, yet thorough surveys are needed to determine whether frogs
persist in the area.
Kerr Canyon will be managed as an isolated population, as it is
currently separated from other populations in Tularosa Creek (Unit 28)
that are at least 6.5 mi (10.4 km) away. As recently as 2007, Kerr
Canyon supported a robust breeding population (Service 2007a, p. 2);
however, the current population status is greatly reduced from 2007
numbers, or may possibly be extirpated. We suspect that observed
declines in Chiricahua leopard frog abundance can be attributed to
chytridiomycosis or predation. Because of the disease and competition
with nonnative species, we find that the essential features in this
area may require special management considerations or protection.
Unit 42: West Fork Gila River
The West Fork Gila River unit contains 177 ac (72 ha) of Gila
National Forest land in Catron County, New Mexico. This 7.0-mi (11.2-
km) reach runs from Turkeyfeather Spring, through an intermittent
drainage to the confluence with the West Fork Gila River, then
downstream in the West Fork Gila River to confluence with White Creek.
Within this unit, the Upper West Fork is divided into two perennial
segments by a 1.2-mi (2.0-km) long ephemeral reach between
Turkeyfeather Creek and Whiskey Creek. The area within Unit 42 was
occupied at the time of listing and currently contains sufficient PCEs
(PCE 1) to support life-history functions essential for the
conservation of the species.
The West Fork Gila River unit was occupied at the time of listing
and Chiricahua leopard frogs are currently present. The species has
been observed in West Fork Gila River since 1995, with reproduction
observed in 2001 (Blue Earth Ecological Consultants 2002, pp. 16-17;
Service 2007, pp. B-64; Service 2009, p. 15). The population is not
well studied; however, this section of the West Fork Gila River is long
enough that it could support a robust population. This unit will be
managed as an isolated population, because it is likely occupied by low
numbers of frogs and the nearest known, robust breeding population
occurs on Main Diamond in Unit 30, over 5 mi (8 km) away along a
perennial water course. There may be some potential for linking this
population to Unit 30, if aquatic habitat between the two units could
be identified, renovated as needed, and populations of frogs
established. However, potential sites and presence of PCEs in these
connecting areas have not been investigated in any detail.
Chytridiomycosis has been found on Chiricahua leopard frogs within
this unit and nonnative predators are present, including fish,
crayfish, and American bullfrogs. Even though a cooperative restoration
project between the Service, the U.S. Forest Service, and New Mexico
Department of Game and Fish is underway to restore native fish and
remove nonnative predatory fish in this unit, the frog population is
currently threatened by nonnative predators and chytridiomycosis
(Service 2009, pp. 15-16). As such, the essential features in this unit
may require special management considerations or protection to minimize
impacts resulting from these threats.
Recovery Unit 8 (Black-Mimbres-Rio Grande, New Mexico)
Unit 43: South Fork Palomas Creek
The South Fork Palomas Creek unit consists of 23 ac (9 ha) of Gila
National Forest land and 106 ac (43 ha) of private land in Sierra
County, New Mexico. This 4.5-mi (7.3-km) reach of South Fork Palomas
Creek runs downstream from Wagonbed Canyon to Avilas Well, including
Circle Seven Well, but not Avilas Well. This unit is proposed as
critical habitat because it was occupied at the time of listing, is
currently occupied, and contains sufficient PCEs (PCEs 1 and 2) to
support life-history functions essential for the conservation of the
species.
Our records for this area are intermittent; however, South Fork
Palomas Creek was occupied at the time of listing (Christman 2003, p.
5) and Chiricahua leopard frogs reproduced at Circle Seven Well in 2010
(Christman 2010, p. 1). Currently, we consider this area to be occupied
by the species. This unit has undergone management actions that likely
have resulted in the persistence of Chiricahua leopard frogs in the
South Fork Palomas drainage. Chiricahua leopard frogs were observed in
low numbers in 2002 and 2003 in the South Fork Palomas Creek, but
Circle Seven Well (a steel rim tank that overflows to an earthen tank)
was dry and unoccupied during the time of listing. Due to Circle Seven
Well's close proximity to South Fork Palomas Creek, we believe that
Circle Seven Well was historically occupied by the Chiricahua
[[Page 58445]]
leopard frog. Also, sometime after the 2003 surveys, the well has
undergone a conversion from a windmill to solar well, providing a
continuous water source and the Circle Seven Well has since been
occupied.
Summer rains in 2003, following a wildfire in upland slopes, caused
an ash flow into South Fork Palomas Creek. Active management actions in
2003 included capturing 188 Chiricahua leopard frog tadpoles from an
ash-affected pool and releasing half of the individuals to the lower
portion of South Fork Palomas Creek and releasing half of the
individuals farther down the drainage to the steel rim portion of
Avilas Well (a steel rim tank that overflows to an earthen tank).
Monitoring post-translocations indicated that more than 20 individuals
metamorphosed and escaped the steel rim tank, but did not become
established in the earthen tank at Avilas Well. To date, Avilas Well
remains unoccupied; however, Chiricahua leopard frogs continue to
occupy South Fork Palomas Creek, including documented breeding in
Circle Seven Well. The proposed area in South Fork Palomas Creek and
Circle Seven Well currently contains sufficient PCEs (PCE1) to support
life-history functions essential for the conservation of the species.
Under section 4(b)(2) of the Act, private lands in this unit, which
are part of the Ladder Ranch, will be considered for exclusion from the
final rule. The 156,439-acre Ladder Ranch is owned by Turner
Enterprises and is managed for its biodiversity. The Ladder Ranch has
been an active participant in the conservation of a number of rare and
listed species, including the Mexican wolf (Canis lupus baileyi),
Bolson tortoise (Gopherus flavomarginatus), Chiricahua leopard frog,
black-tailed prairie dog (Cynomys ludovicianus), American bison (Bison
bison), and Rio Grande cutthroat trout (Oncorhynchus clarki
virginalis). Management for the Chiricahua leopard frog on the Ladder
Ranch included fencing the ranch's waters from bison that graze the
area, reestablishment of populations using wild-to-wild translocations,
maintenance of wells and tanks, and controlling bullfrogs. The Ladder
Ranch also monitors the frogs and habitats, and has recently initiated
a captive-breeding facility and program to rear frogs for population
augmentation and reestablishment. The Service has provided funding for
the captive-breeding program under the Partners for Fish and Wildlife
Program and other granting authorities. The Ladder Ranch maintains
captive-propagation facilities for the Chiricahua leopard frog under a
section 10(a)(1)(A) enhancement of survival permit from the Service.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan.
The final decision on whether to exclude any areas will be based on
the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared a draft economic analysis concerning the proposed
critical habitat designation, which is available for review and comment
(see ADDRESSES section).
Draft Economic Analysis
To consider the economic impacts ``of specifying any particular
area as critical habitat,'' as section 4(b)(2) of the Act requires, the
Service must first identify the probable economic impacts that stem
from a designation (50 CFR 424.19). We have interpreted ``probable
economic impacts'' to be those potential impacts that are reasonably
likely to occur as a result of the critical habitat designation. The
identification of the probable incremental effects of a critical
habitat designation involves comparing the economic and other relevant
impacts that would be present without the designation of a particular
area as critical habitat with what would be expected if the particular
area is included in the designation--in other words, a comparison of
the world with and without critical habitat. A key aspect of this
comparison requires identifying, at a general level, the additional
protections for species (e.g., project modification or conservation
measures) or changes in behavior (e.g., increased awareness that may
result in reinitiations of consultation, or additional consultations,
under section 7 of the Act; compliance with other laws such as State
environmental oversight regulations) and the corresponding costs and
impacts to society that may result as a consequence of the critical
habitat designation. The scope of probable impacts, then, is inevitably
determined by the purpose and function of critical habitat as
understood at the time of designation and the conservation measures in
place prior to the designation for the particular species and its
habitat.
The Service traditionally understood the first sentence of section
4(b)(2) of the Act to require consideration of only those impacts that
are solely attributable to--that would not occur ``but for''--the
proposed critical habitat designation. Under this approach, known as
the ``incremental effects analysis'' (otherwise referred to by the
courts as the ``baseline approach''), the Service isolates the probable
impacts that would result solely from the designation (incremental
effects) from those that stem also from other causes, such as the
underlying listing determination or other conservation measures being
implemented for the species and its habitat (baseline effects). Once
identified, the resulting incremental effects of the designation are
then used in the balancing analysis, if one is conducted, under the
second sentence of section 4(b)(2) for evaluating the benefits of
including a particular area in, or excluding it from, critical habitat,
and for evaluating compliance with the required determinations.
However, the application of this relatively straightforward
paradigm had become problematic by the late 1990s, in light of our
interpretations and practices that had the effect of minimizing the
role of critical habitat in safeguarding species' recovery. This
stemmed in part from the Service's and National Marine Fisheries
Service's 1986 joint regulations implementing the interagency
consultation provisions of section 7 of the Act (50 CFR 402). Those
regulations govern the assessment of
[[Page 58446]]
Federal actions that may have adverse impacts on listed species or
their critical habitat. They interpret and implement the statute's
prohibitions against actions that are likely to jeopardize the
continued existence of listed species or result in destruction or
adverse modification of critical habitat. However, two key definitions
(``jeopardize the continued existence of'' and ``destruction or adverse
modification'') had been defined in a similar manner in that they each
evaluated impacts on both survival and recovery of a species. Moreover,
our general practice had been to infrequently designate critical
habitat in areas where the species was not currently present; because
consultation under the jeopardy standard can occur wherever the species
is present, this limited the circumstances in which a consultation
under the adverse-modification standard would take place without a
concomitant consultation under the jeopardy standard. Because the
section 7 prohibition against Federal agency actions that may result in
``destruction or adverse modification'' is the most significant and
direct protection afforded by a critical habitat designation, equating
the two standards while making them occur in conjunction with each
other made it practically impossible to distinguish the protections
stemming from critical habitat (i.e., incremental effects) from those
afforded a species by it being listed as an endangered or threatened
species (i.e., baseline effects).
As a result, case law significantly influenced the Service's
methodology for evaluating the probable economic effects of a critical
habitat designation. In 2001, the United States Court of Appeals for
the Tenth Circuit held that, in light of the narrow role reserved for
critical habitat under the regulations and the Service's view at the
time, the Service was legally precluded from relying on the
incremental-effects approach. New Mexico Cattle Growers Ass'n v. United
States Fish & Wildlife Serv., 248 F.3d 1277, 1283-85 (10th Cir. 2001).
The court specifically identified the source of the problem as being
``FWS's long held policy position that [critical habitat
determinations] are unhelpful, duplicative, and unnecessary.'' The
court held that this position was rooted in the interpretations of the
``jeopardy standard'' and the ``adverse modification standard'' in 50
CFR 402.02, which the court saw as being defined either to be
``virtually identical'' or such that the latter was subsumed into the
``jeopardy standard.''
To satisfy section 4(b)(2) of the Act in light of the then-current
regulations, the court ruled that the Service must consider all impacts
that stem in any way from the proposed critical habitat designation,
even if they are also partially caused (or, caused ``coextensively'')
by listing. In other words, even if there was no ``but for'' economic
impact as a result of critical habitat designation, the Service was
still required to consider the coextensive economic impacts. The court
did not define ``coextensive'' economic analysis; however, the Services
interpreted ``coextensive'' to be the sum of anticipated baseline and
incremental economic impacts. As a consequence, following the New
Mexico Cattle Growers decision, the Service began to apply a
coextensive approach that evaluated all costs related to the
conservation of the species and its habitat, including those attributed
to the species being listed as an endangered or threatened species.
Meanwhile, other courts began to conclude that the definition of
``destruction or adverse modification'' in the 1986 regulations did not
adequately fulfill the statute's conservation purpose. In fact, the
Ninth Circuit in Gifford Pinchot Task Force v. US. Fish & Wildlife
Service, 378 F.3d 1059 (9th Cir.), modified, 387 F.3d 968 (9th Cir.
2004), invalidated the regulatory definition of ``destruction or
adverse modification.'' Following the Ninth Circuit's decision, most
district court decisions have rejected coextensive economic analyses.
For example, the court in Cape Hatteras Access Pres. Alliance v DOI,
344 F. Supp. 2d 108, 128-30 (D.D.C. 2004) (Cape Hatteras) found that an
evaluation of the incremental effect of a critical habitat designation
was reasonable and permissible. In that decision the court stated,
``[t]he baseline approach is a reasonable method for assessing the
actual costs of a particular critical habitat designation. To find the
true cost of a designation, the world with the designation must be
compared to the world without it * * *. In order to calculate the costs
above the baseline, those that are the ``but for'' result of
designation, the agency may need to consider the economic impact of
listing and other events that contribute to and fall below the
baseline.''
Similarly, in 2010, the Ninth Circuit concluded that the faulty
underlying premises that led to the invalidation of the incremental
effects (baseline approach) in 2001 no longer applied, and that our
consideration of ``but for'' impacts in the increment above the
baseline is permissible under the Act (Arizona Cattle Growers Ass'n v.
Salazar, 606 F.3d 1160, 1173 (9th Cir. 2010). It therefore held, in
light of this change in circumstances, that ``the FWS may employ the
baseline approach in analyzing a critical habitat designation.'' In so
holding, the court noted that the baseline approach is ``more logical
than'' the coextensive approach. The Ninth Circuit further reaffirmed
its conclusion in Home Builders Ass'n of Northern California v. U.S.
Fish & Wildlife Serv. 616 F.3d 983 (9th Cir. 2010), in which plaintiffs
challenged the use of the Service's incremental-effects (baseline)
approach. The Court held that the Service properly analyzed the
economic impacts of the critical habitat designation for vernal pool
species and stated that the plain language of the Act directs the
agency to consider only those impacts caused by the critical habitat
designation itself.
In 2008, the Solicitor for the Department of the Interior drafted a
Memorandum Opinion summarizing case law on the Secretary's authority to
exclude areas from a critical habitat designation under section 4(b)(2)
of the Act, including the appropriate use of economic analyses in
critical habitat determinations (Department of the Interior Solicitor
Memorandum, October 3, 2008, The Secretary's Authority to Exclude Areas
from a Critical Habitat Designation under Section 4(b)(2) of the
Endangered Species Act (Opinion M-37016)). In this opinion, the
Solicitor concluded that
the reasoning in the Cape Hatteras line of cases was persuasive for
the proposition that ``to find the true cost of a designation, the
world with the designation must be compared to the world without
it.'' Cape Hatteras, 344 F. Supp. 2d at 130. The purpose of
excluding an area from critical habitat is to avoid the impacts of
the designation, or to realize the benefits that the Secretary
determines will flow from that exclusion. Benefits of exclusion are
often in the form of avoiding a cost imposed by the designation. By
definition, when impacts are completely ``coextensive,'' ``such that
they will occur even if the area is not designated, any ``cost''
imposed by the designation will not be avoided if the area at issue
is excluded. Therefore, exclusion of the area based on such costs
would serve no purpose.
Consistent with recent case law and the 2008 Solicitors Memorandum
Opinion, the Service concludes that the appropriate analysis to
consider economic impacts of a critical habitat designation is to limit
the evaluation of the probable economic effects to those that are
incremental to, or result solely from, the designation itself. The
Service also believes that the use of an incremental-effects analysis
is sufficient to fulfill the requirement under section
[[Page 58447]]
4(b)(2) of the Act. Therefore, the Service applied the incremental-
effects approach to evaluate the probable economic impacts of critical
habitat designation for the Chiricahua leopard frog.
Since the Service currently does not have an operative regulatory
definition of ``destruction or adverse modification,'' the Service
attempted to clarify the difference between the jeopardy and adverse
modification standards for the Chiricahua leopard frog critical habitat
in our Incremental Effects Memorandum. This memorandum outlined typical
conservation actions, project modifications, and minimization measures
that would be requested by the Service to meet the ``not likely to
destroy or adversely modify'' standard, above what would be requested
to avoid jeopardy to the species. This evaluation of the incremental
effects as outlined in the Incremental Effects Memorandum has been used
as the basis to develop the draft economic analysis of this proposed
designation of critical habitat.
The purpose of the draft economic analysis is to identify and
analyze the probable incremental economic impacts associated with the
proposed critical habitat designation for the Chiricahua leopard frog.
The analysis looks retrospectively at baseline impacts incurred since
the species was listed, and forecasts both baseline and incremental
impacts likely to occur if we finalize the proposed critical habitat
designation. For a further description of the methodology of the
analysis, see Chapter 2 of the draft economic analysis.
The draft economic analysis provides estimated costs of the
reasonably probable incremental economic impacts of the proposed
critical habitat designation for the Chiricahua leopard frog over the
next 20 years, which was determined to be the appropriate period for
analysis because limited planning information is available for most
activities to forecast activity levels for projects beyond a 20-year
timeframe. The draft economic analysis quantifies economic impacts of
Chiricahua leopard frog conservation efforts associated with the
following categories of activity:
(1) Improperly managed livestock grazing: Includes drying of stock
tanks and changes to water quality due to cattle feces.
(2) Mining: Includes copper mining operations and associated
mining-related contaminants and runoff.
(3) Water diversion and management: Includes groundwater pumping,
agricultural development, and operations of dams and diversions.
(4) Residential and commercial development and transportation:
Includes sedimentation and runoff associated with construction.
(5) Fires and fire suppression activities: Includes ash flow and
fire retardants from fires and fire suppression activities; and,
(6) Nonnative species introductions/disease: Includes saltcedar
control, stocking of predatory fishes, bullfrogs, or crayfish, as well
as chytridiomycosis (an infectious fungal disease).
Because a significant level of baseline protection exists for the
Chiricahua leopard frog, no significant economic impacts are likely to
result from the designation of critical habitat for this species.
Incremental costs are limited to administrative efforts of new and
reinitiated consultations to consider adverse modification of critical
habitat for the frog.
The draft economic analysis estimates that the present value
impacts of critical habitat designation are $1,300,000 assuming a 7
percent real discount rate. This figure represents an annualized impact
of approximately $115,000. As stated above, these costs represent
expectations of additional administrative effort as part of future
section 7 consultations that consider both jeopardy and adverse
modification.
As we stated earlier, we are soliciting data and comments from the
public on the draft economic analysis, as well as all aspects of the
proposed rule and our amended required determinations. We may revise
the proposed rule or supporting documents to incorporate or address
information we receive during the public comment period. In particular,
we may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided the exclusion will not result in the extinction of this
species.
Draft Environmental Assessment
The purpose of the draft environmental assessment, prepared
pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C.
4321 et seq.), is to identify and disclose the environmental
consequences resulting from the proposed action of designating critical
habitat for the Chiricahua leopard frog. In the draft environmental
assessment, three alternatives are evaluated: Alternative A, the
proposed rule with exclusion areas; Alternative B, proposed rule
without exclusion areas; and the no action alternative. Under
Alternative A, critical habitat units on private and other lands could
potentially be excluded in the final rule based on economic impact,
national security, or other relevant impacts. The potential exclusion
areas discussed in the proposed rule include lands owned by the
American Museum of Natural History, Beatty's Guest Ranch, Diamond A
Ranch, Magoffin Ranch, San Rafael Ranch, State of Arizona, The Nature
Conservancy, and Turner Enterprises. Alternative B is the current
proposal, and the no action alternative is equivalent to no designation
of critical habitat for Chiricahua leopard frog. The no action
alternative is required by NEPA for comparison to the other
alternatives analyzed in the draft environmental assessment.
As we stated earlier, we are soliciting data and comments from the
public on the draft environmental assessment, as well as all aspects of
the proposed rule. We may revise the proposed rule or supporting
documents to incorporate or address information we receive during the
comment period on the environmental consequences resulting from our
designation of critical habitat.
Required Determinations--Amended
In our March 15, 2011, proposed rule (76 FR 14126), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the draft economic
analysis. We have now made use of the draft economic analysis data to
make these determinations. In this document, we affirm the information
in our proposed rule concerning E.O. 13132 (Federalism), E.O. 12988
(Civil Justice Reform), the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), and the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951). However, based on the draft economic
analysis data and the draft environmental assessment, we are amending
our required determination concerning E.O. 12866 (Regulatory Planning
and Review), the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
E.O. 12630 (Takings), E.O. 13211 (Energy, Supply, Distribution, and
Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its
[[Page 58448]]
determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)),
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
effect 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 an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. Based on our draft economic
analysis of the proposed designation, we provide our analysis for
determining whether the proposed rule would result in a significant
economic impact on a substantial number of small entities. Based on
comments we receive, we may revise this determination as part of our
final rule.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
the Chiricahua leopard frog would affect a substantial number of small
entities, we considered the number of small entities affected within
particular types of economic activities, such as livestock management,
fire management, habitat management, water management, transportation,
recreation, and development. In order to determine whether it is
appropriate for our agency to certify that this proposed rule would not
have a significant economic impact on a substantial number of small
entities, we considered each industry or category individually. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement.
Critical habitat designation will not affect activities that do not
have any Federal involvement; designation of critical habitat only
affects activities conducted, funded, permitted, or authorized by
Federal agencies. In areas where the Chiricahua leopard frog is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they fund, permit, or implement that
may affect the species. If we finalize this proposed critical habitat
designation, consultations to avoid the destruction or adverse
modification of critical habitat would be incorporated into the
existing consultation process.
In the draft economic analysis, we evaluated the potential economic
effects on small entities resulting from implementation of conservation
actions related to the proposed designation of critical habitat for the
Chiricahua leopard frog. We estimate that up to 171 small entities may
be affected by section 7 consultations stemming from this rule.
Annualized incremental economic impacts to small businesses range from
$254 per year for transportation and residential and commercial
development to $8,390 per year for livestock management. Although the
analysis did not have access to average annual revenues for small
entities in the proposed critical habitat areas, and thus estimated
annualized impacts as a percentage of annual revenues could not be
determined, it is unlikely that these impacts would be significant.
Please refer to the draft economic analysis of the proposed critical
habitat designation for a more detailed discussion of potential
economic impacts.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. Estimated
incremental costs that may be borne by small entities consist of
additional administrative costs for livestock management, water
management, transportation, and development activities, but it is
unlikely that these impacts would be significant. For the above reasons
and based on currently available information, we certify that, if
promulgated, the proposed critical habitat designation would not have a
significant economic impact on a substantial number of small business
entities. Therefore, an initial regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use
Pursuant to Executive Order No. 13211, ``Actions Concerning
Regulations that Significantly Affect Energy Supply, Distribution, or
Use,'' issued May 18, 2001, Federal agencies must prepare and submit a
``Statement of Energy Effects'' for all ``significant energy actions.''
The purpose of this requirement is to ensure that all Federal agencies
``appropriately weigh and consider the effects of the Federal
Government's regulations on the supply, distribution, and use of
energy.'' The Office of Management and Budget provides guidance for
implementing this Executive Order, outlining nine outcomes that may
constitute ``a significant adverse effect'' when compared with the
regulatory action under consideration (Memorandum For Heads of
Executive Department Agencies, and Independent Regulatory Agencies,
Guidance For Implementing E.O. 13211, M-01-27, Office of Management and
Budget, July 13, 2001, http://www.whitehouse.gov/omb/memoranda/m01-27.html.). As none of the nine outcomes is relevant to this analysis,
energy-related impacts associated with the Chiricahua leopard frog
conservation activities within the proposed critical habitat are not
expected. Therefore, we have made a preliminary determination that this
action is not a significant energy action, and no Statement of Energy
Effects is required. However, we will further evaluate this issue as we
complete our final economic analysis, and review and revise this
assessment as appropriate.
[[Page 58449]]
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments. Therefore, a Small Government Agency Plan is
not required. However, we will further evaluate this issue as we
complete our final economic analysis, and review and revise this
assessment as appropriate.
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 Chiricahua leopard frog in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to allow actions that do require Federal
funding or permits to go forward. The takings implications assessment
concludes that this proposed designation of critical habitat does not
pose significant takings implications for lands within or affected by
the designation. However, we will further evaluate this issue as we
complete our final economic analysis, and review and revise this
assessment as appropriate.
National Environmental Policy Act (NEPA)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).] However, when the range of the species includes States
within the Tenth Circuit, such as that of the Chiricahua leopard frog,
under the Tenth Circuit ruling in Catron County Board of Commissioners
v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we
will undertake a NEPA analysis for critical habitat designation. In
accordance with the Tenth Circuit, we have completed a draft
environmental assessment to identify and disclose the environmental
consequences resulting from the proposed designation of critical
habitat for the Chiricahua leopard frog. Our preliminary determination
is that the designation of critical habitat for the Chiricahua leopard
frog would not have direct impacts on the environment. However, we will
further evaluate this issue as we complete our final environmental
assessment.
Authors
The primary authors of this notice are the staff members of the
Arizona Ecological Services Field Office, Southwest Region, U.S. Fish
and Wildlife Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended at 76 FR 14126, March 15, 2011, as follows:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.95, amend paragraph (d) by adding an entry for
``Chiricahua leopard frog (Lithobates chiricahuensis),'' at Sec.
17.95(d) is proposed to be amended by revising proposed paragraphs
(d)(2), (d)(5),and and by adding new paragraphs (d)(46) through (d)(48)
to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
Chiricahua leopard frog (Lithobates chiricahuensis)
* * * * *
(2) The primary constituent elements of critical habitat for the
Chiricahua leopard frog are:
(i) Aquatic breeding habitat and immediately adjacent uplands
exhibiting the following characteristics:
(A) Standing bodies of fresh water (with salinities less than 5
parts per
[[Page 58450]]
thousand, pH greater than or equal to 5.6, and pollutants absent or
minimally present), including natural and manmade (e.g., stock) ponds,
slow-moving streams or pools within streams, off-channel pools, and
other ephemeral or permanent water bodies that typically hold water or
rarely dry for more than a month. During periods of drought, or less
than average rainfall, these breeding sites may not hold water long
enough for individuals to complete metamorphosis, but they would still
be considered essential breeding habitat in non-drought years.
(B) Emergent and or submerged vegetation, root masses, undercut
banks, fractured rock substrates, or some combination thereof, but
emergent vegetation does not completely cover the surface of water
bodies.
(C) Nonnative predators (e.g., crayfish, American bullfrogs,
nonnative predatory fishes) absent or occurring at levels that do not
preclude presence of the Chiricahua leopard frog.
(D) Absence of chytridiomycosis, or if present, then environmental,
physiological, and genetic conditions are such that allow persistence
of Chiricahua leopard frogs.
(E) Upland areas that provide opportunities for foraging and
basking that are immediately adjacent to or surrounding breeding
aquatic and riparian habitat.
(ii) Dispersal and nonbreeding habitat, consisting of areas with
ephemeral (present for only a short time), intermittent, or perennial
water that are generally not suitable for breeding, and associated
upland or riparian habitat that provides corridors (overland movement
or along wetted drainages) for frogs among breeding sites in a
metapopulation with the following characteristics:
(A) Are not more than 1.0 mile (1.6 kilometers) overland, 3.0 miles
(4.8 kilometers) along ephemeral or intermittent drainages, 5.0 miles
(8.0 kilometers) along perennial drainages, or some combination thereof
not to exceed 5.0 miles (8.0 kilometers).
(B) In overland and nonwetted corridors, provides some vegetation
cover or structural features (e.g., boulders, rocks, organic debris
such as downed trees or logs, small mammal burrows, or leaf litter) for
shelter, forage, and protection from predators; in wetted corridors,
provides some ephemeral, intermittent, or perennial aquatic habitat.
(C) Are free of barriers that block movement by Chiricahua leopard
frogs, including, but not limited to, urban, industrial, or
agricultural development; reservoirs that are 50 acres (20 hectares) or
more in size and contain predatory nonnative fishes, bullfrogs, or
crayfish; highways that do not include frog fencing and culverts; and
walls, major dams, or other structures that physically block movement.
* * * * *
(5) Note: Chiricahua Leopard Frog Critical Habitat Index Map
follows:
BILLING CODE 4310-55-P
[[Page 58451]]
[GRAPHIC] [TIFF OMITTED] TP21SE11.001
[[Page 58452]]
* * * * *
(46) Unit 41: Kerr Canyon, Catron County, New Mexico.
(i) From Kerr Spring (33.900561 N, 108.664732 W) downstream in
unnamed drainage in Kerr Canyon to Kerr Canyon Pond (33.649088 N,
108.517011 W), a distance of approximately 0.98 drainage miles (1.58
km).
(ii) Note: Map of Unit 41, Kerr Canyon (Map 42), follows:
[GRAPHIC] [TIFF OMITTED] TP21SE11.002
[[Page 58453]]
(47) Unit 42: West Fork Gila River, Catron County, New Mexico.
(i) From Turkeyfeather Spring (33.337486 N, 108.528607 W)
downstream in Turkeyfeather Creek to its confluence with West Fork Gila
River (33.32593 N, 108.517011 W); then downstream and southeast in West
Fork Gila River to its confluence with White Creek (33.3274675 N,
108.4925 W), a distance of approximately 6.97 drainage miles (11.22
km).
(ii) Note: Map of Unit 42, West Fork Gila River (Map 43), follows:
[GRAPHIC] [TIFF OMITTED] TP21SE11.003
[[Page 58454]]
(48) Unit 43: South Fork Palomas Creek, Sierra County, New Mexico.
(i) From the confluence of an unnamed tributary in Wagonbed Canyon
and South Fork Palomas Creek (33.164592 N, 107.723155 S), downstream in
South Fork Palomas Creek to, but not including, Avilas Well (33.162567
N, 107.661564 S), and including a galvanized tank and a dirt tank at
Circle Seven Well (33.169617 N, 107.684648 W) and an overland segment
from Circle Seven Well (33.169617 N, 107.684648 W) to South Fork
Palomas Creek (107.685045 N, 33.1688196 W), a distance of approximately
4.5 drainage miles (7.3 km) and 0.75 overland miles (1.21 km).
(ii) Note: Map of Unit 43, Palomas Creek (Map 44), follows:
[GRAPHIC] [TIFF OMITTED] TP21SE11.004
[[Page 58455]]
* * * * *
Dated: September 12, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-24045 Filed 9-20-11; 8:45 am]
BILLING CODE 4310-55-C