[Federal Register Volume 77, Number 193 (Thursday, October 4, 2012)]
[Rules and Regulations]
[Pages 60777-60802]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23999]



[[Page 60777]]

Vol. 77

Thursday,

No. 193

October 4, 2012

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Species Status for Coqu[iacute] Llanero Throughout Its Range 
and Designation of Critical Habitat; Final Rule

Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2009-0022]
RIN 1018-AX68


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Species Status for Coqu[iacute] Llanero Throughout Its Range 
and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, determine endangered 
species status under the Endangered Species Act of 1973 (Act), as 
amended, for the coqu[iacute] llanero (Eleutherodactylus juanariveroi), 
and designate critical habitat. In total, we are designating 
approximately 615 acres (249 hectares) of a freshwater wetland in 
Sabana Seca Ward, Municipality of Toa Baja, Puerto Rico, as critical 
habitat. The effect of this regulation is to conserve the coqu[iacute] 
llanero and its habitat under the Act.

DATES: This rule becomes effective on November 5, 2012.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Comments and materials received, as well as 
supporting documentation used in preparing this final rule, are 
available for public inspection, by appointment, during normal business 
hours, at U.S. Fish and Wildlife Service, Caribbean Ecological Services 
Field Office, P.O. Box 491, Road 301 Km 5.1, Boquer[oacute]n, PR 00622; 
by telephone, 787-851-7297; or by facsimile, 787-851-7440.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at (http://www.fws.gov/caribbean/es/Endangered-Main.html), http://www.regulations.gov at Docket No. FWS-
R4-ES-2009-0022, and at the Caribbean Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT). Any additional tools or 
supporting information that we may develop for this critical habitat 
designation will also be available at the Fish and Wildlife Service Web 
site and Field Office set out above, and may also be included in the 
preamble or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Marelisa Rivera, Deputy Field 
Supervisor, U.S. Fish and Wildlife Service, Caribbean Ecological 
Services Field Office, P.O. Box 491, Road 301 Km 5.1, Boquer[oacute]n, 
PR 00622; by telephone, 787-851-7297, extension 206; or by facsimile, 
787-851-7440. If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, the Service shall 
designate critical habitat for any species or subspecies that is 
determined to be an endangered or threatened species, to the maximum 
extent prudent and determinable. On October 12, 2011, we published the 
proposed rule to list the coqu[iacute] llanero as an endangered species 
(76 FR 63420). In that document, we explained that the species 
currently exists in a freshwater wetland at Sabana Seca, faces numerous 
threats, and therefore warrants listing under the Act as an endangered 
species. Additionally, we proposed the designation of the coqu[iacute] 
llanero's critical habitat and discussed our criteria for the 
designation. This rule finalizes the protection proposed for the 
coqu[iacute] llanero as an endangered species and the designation of 
615 acres (249 hectares) in Sabana Seca Ward, Toa Baja, Puerto Rico, as 
critical habitat, following careful consideration of all comments we 
received during the public comment period.
    The basis for our action. Under the Act, a species may be 
determined to be an endangered or threatened species based on any of 
the five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. Coqu[iacute] llanero is determined 
to be an endangered species due to three of these five factors. Section 
4(b)(2) of the Act states that the Secretary shall designate critical 
habitat on the basis of the best available scientific data after taking 
into consideration the economic impact, national security impact, and 
any other relevant impact of specifying any particular area as critical 
habitat. The Secretary may exclude an area from critical habitat if he 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless he 
determines, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species.
    Peer review and public comment. When we published the proposed rule 
on October 12, 2011, we opened a 60-day comment period on the proposed 
listing and critical habitat designation for the coqu[iacute] llanero. 
On June 19, 2012, we reopened the comment period for an additional 30 
days. During the comment periods, we sought comments from independent 
specialists (peer reviewers) on the specific assumptions and 
conclusions in our listing proposal to ensure that the designation of 
critical habitat is based on scientifically sound data, assumptions, 
and analyses. In addition, we sought comments from interested parties 
and the general public. We considered all comments and information 
received during the comment periods.

Background

    This document consists of: (1) A final rule to list the 
coqu[iacute] llanero as an endangered species; and (2) a final critical 
habitat designation for the coqu[iacute] llanero.

Previous Federal Actions

    On May 22, 2007, we received a petition, dated May 11, 2007, from 
the Caribbean Primate Research Center (CPRC) (CPRC 2007, pp. 1-29) 
requesting that the coqu[iacute] llanero be listed as an endangered 
species under the Act. The petition also requested that we designate 
critical habitat concurrently with listing, if listing occurs. In a 
letter to the petitioner dated July 23, 2007, we acknowledged receipt 
of the petition and stated that (1) we would not be able to address the 
petition until funding became available, and (2) actions requested by 
this petition were precluded by court orders and settlement agreements 
for other listing actions that required nearly all of our listing funds 
for the current (2007) fiscal year.
    On January 22, 2009, we received an amended petition dated January 
13, 2009. The amended petition included updated information on current 
threats to the species and its habitat (CPRC 2009, pp. 1-19). On July 
8, 2009, we published in the Federal Register (74 FR 32510) our finding 
that the petition to list the coqu[iacute] llanero presented 
substantial information indicating that the requested action may be 
warranted, and we initiated a status review of the species.
    On October 12, 2011, we published in the Federal Register (76 FR 
63420) our 12-month finding on the petition, combined with a proposed 
rule to list the species as an endangered species

[[Page 60779]]

and designate critical habitat. Publication of the proposed rule opened 
a 60-day public comment period.
    On June 19, 2012, we published in the Federal Register (77 FR 
36457) our evaluation of the potential economic impacts of the proposed 
critical habitat designation, and we reopened the public comment period 
for the proposed rule and critical habitat designation for 30 days.

Species Information

    The coqu[iacute] llanero, an endemic Puerto Rican frog, was first 
collected by Neftal[iacute] R[iacute]os-L[oacute]pez and Richard Thomas 
in 2005, from a freshwater herbaceous wetland on the closed U.S. Naval 
Security Group Activity Sabana Seca (USNSGASS) property and the 
Caribbean Primate Research Center (CPRC), Toa Baja, Puerto Rico (PR). 
This wetland area is considered as the ``type locality'' (similar 
location) because the species was first collected and described from 
this area. When discovered, the coqu[iacute] llanero was only known to 
occur at the Ingenio Sector in the Sabana Seca Ward, Toa Baja, PR, 
located on the northern coast, north of Toa Alta and Bayam[oacute]n, 
east of Dorado, and west of Cata[ntilde]o, approximately 12 miles (mi) 
(20 kilometers (km)) from San Juan, PR.
Taxonomy and Species Description
    In 2007, the coqu[iacute] llanero was described as a new species of 
the genus Eleutherodactylus, family Leptodactylidae. Although the 
coqu[iacute] llanero is similar to Eleutherodactylus gryllus (cricket 
coqu[iacute] or green coqu[iacute]), differences in morphological 
ratios, body coloration, call frequency and structure, deoxyribonucleic 
acid (DNA), and habitat association indicate that it is a well-
differentiated species (R[iacute]os-L[oacute]pez and Thomas 2007, pp. 
53-60; CPRC 2009, p. 1). The coqu[iacute] llanero is the smallest and 
only known herbaceous wetland specialist within the genus 
Eleutherodactylus in Puerto Rico (R[iacute]os-L[oacute]pez and Thomas 
2007, p. 62). It has a mean snout-vent length of 0.58 inches (in) (14.7 
millimeters (mm)) in males and 0.62 in (15.8 mm) in females. The nares 
(nasal passages) are prominent and a ridge connects them behind the 
snout tip, giving the tip a somewhat squared appearance. The species 
has well-developed glands throughout its body; its dorsal coloration is 
yellow to yellowish brown with a light, longitudinal, reversed comma 
mark on each side; and its mid-dorsal zone is broadly bifurcated 
(divided into two branches) (R[iacute]os-L[oacute]pez and Thomas 2007, 
p. 55). The species' communication call consists of a series of short, 
high-pitched notes, with call duration varying from 4 to 21 seconds. 
The advertisement call has the highest frequency among all Puerto Rican 
Eleutherodactylus, between 7.38 and 8.28 kilohertz (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 61). The calling activity starts at 
approximately 4:30 p.m. and decreases significantly before midnight.
Distribution
    The coqu[iacute] llanero is found only on a palustrine herbaceous 
wetland at Sabana Seca Ward. When the species was first discovered and 
described, the author estimated that the coqu[iacute] llanero occurs on 
approximately 445 acres (ac) (180 hectares (ha)) (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 60). Joglar (2007, p. 2) conducted 
additional surveys and estimated that the distribution of the species 
to occur on approximately 504.5 ac (204 ha). The Service has estimated 
the palustrine herbaceous wetland area where the coqu[iacute] llanero 
is now found to be about 615 ac (249 ha) (Service 2011, unpublished 
data).
    Vega-Castillo (2011) conducted diurnal and nocturnal surveys in 
wetland areas and channels located between PR Road-867 and PR Road-165 
to the north of where the coqu[iacute] llanero was found while 
evaluating the proposed alignment for a natural gas pipeline. These 
surveys were conducted during January 2011, using recorded male calling 
(Vega-Castillo 2011, pp. 9-12). During this period, Vega-Castillo 
(2011) detected at least 6 individual coqu[iacute] llanero vocalizing 
at the edge of a vegetated drainage channel that is a tributary of the 
Cocal River. The locality where these individuals were reported is 
about 1.7 mi (2.7 km) northwest from the type locality. This area is 
mainly dominated by pasture (Vega-Castillo 2011, p. 12). In March 2011, 
Service biologists conducted several site visits to the area to confirm 
the report. In addition, the Service installed a recorder for a 24-hour 
period during March 2011, to detect individuals vocalizing in the area. 
However, the Service did not detect the species in this area. Based on 
the Service's observations, the area is highly degraded, dominated by 
lands cleared (burned) and converted to pastureland.
Habitat
    The habitat for the coqu[iacute] llanero comprises an area of 
approximately 615 ac (249 ha) that includes approximately 97 ac (39 ha) 
of Commonwealth land and 518 ac (209 ha) of Federal land (Geo-Marine 
2002, pp. 2-13; R[iacute]os-L[oacute]pez and Thomas 2007, p. 60; Joglar 
2007, p. 2; Tec Inc. and AH Environmental 2008, p. 3-2; PR Land 
Authority 2011, unpublished data; Service 2011, unpublished data).
    The habitat of the coqu[iacute] llanero is located within the 
subtropical moist forest life zone (tropical and subtropical forest 
ecosystems) (Ewel and Whitmore 1973, pp. 20-38). This life zone (areas 
with similar plant and animal communities) covers about 60.5 percent of 
the total area of Puerto Rico (Ewel and Whitmore 1973, p. 9). The 
species appears to be an obligate marsh dweller (R[iacute]os-
L[oacute]pez 2007, p. 195). The coqu[iacute] llanero has been found 
only in freshwater, herbaceous wetland habitat at an elevation of 55.8 
ft (17 m) (R[iacute]os-L[oacute]pez and Thomas 2007, p. 60). The 
National Wetland Inventory (NWI) classifies the majority of this 
wetland as palustrine emergent persistent seasonally flooded, an area 
with surface water present for extended periods during the growing 
season. The soils of this wetland consist of swamp and marsh organic 
deposits from Pleistocene or recent origin or both (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 60). The species' habitat may 
represent a relic of an endemic seasonally to permanently flooded, 
herbaceous wetland habitat type (R[iacute]os-L[oacute]pez and Thomas 
2007, p. 63). Herbaceous vegetation in this habitat shows a species 
composition consisting of Blechnum serrulatum (toothed midsorus fern), 
Thelypteris interrupta (willdenow's maiden fern), Sagittaria lancifolia 
(bulltongue arrowhead), Cyperus sp. (flatsedges), Eleocharis sp. (spike 
rushes), and vines and grasses (R[iacute]os-L[oacute]pez and Thomas 
2007, p. 60). The majority of coqu[iacute] llanero have been found 
perching and calling on the toothed midsorus fern and willdenow's 
maiden fern. At discovery, all the individuals collected were perching, 
sitting, or calling on herbaceous vegetation, mainly on ferns.
Biology
    The coqu[iacute] llanero is insectivorous (feeds on small insects). 
The species has been observed to reproduce only on Sagittaria 
lancifolia (bulltongue arrowhead) (CPRC 2009, p. 4). Egg clutches were 
found on leaf axils (21 egg clutches) or leaf surfaces (3 egg clutches) 
of only Sagittaria lancifolia (R[iacute]os-L[oacute]pez and Thomas 
2007, p. 60) within the wetland area. Egg clutches comprise one to five 
eggs and are found on leaf axils or leaf surfaces between 1.3 feet (ft) 
(0.4 meters (m)) and 3.9 ft (1.2 m) above water level (R[iacute]os-
L[oacute]pez and Thomas 2007, pp. 53-62). Observers did not witness 
parental care in the field (CPRC 2009, p. 5).

[[Page 60780]]

Summary of Comments and Recommendations

    Due to the nature of the proposed rule, we received combined 
comments from the public on the listing action and the critical habitat 
designation. We have addressed these issues in a single comment 
section.
    We requested written comments from the public during two comment 
periods on the proposed listing of the coqu[iacute] llanero and the 
proposed designation of critical habitat for the coqu[iacute] llanero. 
The first comment period associated with the publication of the 
proposed rule (76 FR 63420) opened on October 12, 2011, and closed on 
December 12, 2011. We also requested comments on the proposed critical 
habitat designation and our evaluation of the potential economic 
impacts during a comment period that opened June 19, 2012, and closed 
on July 19, 2012 (77 FR 36457). We also contacted appropriate Federal, 
State, and local agencies, scientific organizations, and other 
interested parties and invited them to comment on the proposed rule and 
our evaluation of the potential economic impacts during these comment 
periods.
    During the first comment period, we received 11 comment letters 
directly addressing either the proposed listing or proposed critical 
habitat designation. During the second comment period, we received 14 
comment letters addressing the proposed critical habitat designation or 
the evaluation of the potential economic impacts. We did not receive 
any requests for a public hearing.
    Substantive comments we received were grouped into four general 
issues specifically relating to the proposed listing determination or 
proposed critical habitat designation for the coqu[iacute] llanero. 
These comments are addressed in the following summary and incorporated 
into the final rule, as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from six individuals with 
knowledge and scientific expertise that included familiarity with the 
species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from four of 
those individuals.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding the proposed listing 
and critical habitat for the coqu[iacute] llanero. The peer reviewers 
generally concurred with our methods and conclusions, and provided 
additional information, clarifications, and suggestions to improve the 
final rule. Peer reviewers' comments are addressed in the following 
summary and are incorporated into this final rule, as appropriate.

Peer Reviewer Comments

    (1) Comment: The peer reviewers and others commenters suggested 
various editorial changes to the final rule.
    Our Response: We evaluated all of the suggested editorial changes, 
and we incorporated them into this final rule, as appropriate.
    (2) Comment: A commenter suggests that ``tree frog'' is not a 
correct name for the coqu[iacute] llanero (Eleutherodactylus sp.). He 
recommends that a generic name for the Puerto Rican Eleutherodactylus 
should be coqu[iacute]es or frogs. Frogs known as ``tree frogs'' are 
usually members of the Hylidae or Centrolenidae taxonomic families.
    Our Response: We acknowledge this recommendation and agree with the 
observation. The recommendation is incorporated into this final rule.
    (3) Comment: A peer reviewer states that there have been very few 
publications and reports on this species. The peer reviewer suggested 
that more research is needed. The peer reviewer stated that since the 
species' description in 2007, there have been no peer-reviewed 
publications on this species. All information related to the species' 
conservation and its habitat is based on anecdotal information, such as 
personal communications, presentations, and non-published reports.
    Our Response: The Service agrees that there is limited information 
and peer-reviewed publications on the coqu[iacute] llanero. However, in 
accordance with section 4 of the Act, the Service is required to use, 
and has used, the best available scientific and commercial information 
in this rulemaking. We relied upon primary and original sources of 
information in order to meet the ``best available scientific and 
commercial information'' standard. We evaluated information from many 
different sources, including articles in peer-reviewed journals, former 
rules and habitat designations developed by the Commonwealth of Puerto 
Rico, scientific surveys and studies, other unpublished materials, and 
experts' opinions or personal knowledge. Also, in accordance with the 
peer review policy published on July 1, 1994 (59 FR 34270), we 
solicited expert opinions from knowledgeable individuals with 
scientific expertise that included familiarity with the species. 
Additionally, we requested comments or information from other concerned 
governmental agencies, the scientific community, and any other 
interested parties.
    (4) Comment: Peer reviewers and commenters state that the proposed 
natural gas pipeline project ``Via Verde'' will be a serious threat to 
the coqu[iacute] llanero and its habitat by adversely affecting the 
hydrology of the occupied wetland.
    Our Response: Via Verde's proposed right-of-way alignment through 
Toa Baja is approximately 1.5 miles (2.4 kilometers) northwest of the 
known wetland habitat supporting the coqu[iacute] llanero (PRDNER 
2007b, p. 16). The topography of the Sabana Seca has an east-to-west 
inclination (Morris 2007, p. 5); therefore, the project of concern will 
be located downstream of the coqu[iacute] llanero's habitat.
    We do not consider the proposed natural gas pipeline project a 
threat to the coqu[iacute] llanero or its habitat because the best 
available scientific information does not indicate that it is a threat. 
If additional information becomes available on the impacts of the Via 
Verde project on the coqu[iacute] llanero, we will reevaluate the 
threats and could, if appropriate, revise the designation.
    (5) Comment: A peer reviewer and other interested parties 
petitioned the Service to exercise its authority under section 4(b)(7) 
of the Act to emergency list the coqu[iacute] llanero as an endangered 
species. The petition was based on the species' severely limited 
geographic range, small population size, and several imminent threats 
to the ecosystem it depends upon for reproduction and survival.
    Our Response: The Act at 16 U.S.C. 1533(b)(3)(A) establishes a 
single petition process for listing a species as an endangered or 
threatened species. There is no separate process in the Act or its 
implementing regulations for requesting an ``emergency listing'' as 
opposed to a ``non-emergency'' listing. Therefore, we treat a petition 
requesting emergency listing solely as a petition to list a species 
under the Act. Furthermore, although 16 U.S.C. 1533(b)(7) does empower 
the Secretary to list a species based upon an ``emergency posing a 
significant risk to the well-being of [that] species,'' that type of 
listing is expressly committed to the Secretary's discretion, the 
exercise of which is not structured by any statutorily prescribed 
criteria or procedures.
    Our initial review of this emergency petition did not indicate that 
an emergency listing was warranted because, at the time of the 
petition, the species was protected by the

[[Page 60781]]

Commonwealth of Puerto Rico and because the Service was in the process 
of listing the coqu[iacute] llanero and designating critical habitat 
under the Act. On May 30, 2012, the protection given the coqu[iacute] 
llanero by Puerto Rico's Commonwealth Law 241 and Regulation 6766 was 
overturned by the Supreme Court of Puerto Rico. However, the Service 
has continued to proceed with its final rule to list the coqu[iacute] 
llanero as an endangered species and to designate critical habitat, 
which will provide the species protection under the Act.
    As a result, the Commonwealth of Puerto Rico will also grant 
protection to the coqu[iacute] llanero under the authority of the 1984 
Cooperative Agreement between the Service and the Puerto Rico 
Department of Natural and Environmental Resources (PRDNER) under 
section 6 of the Act and under Puerto Rico's Regulation 6766. Under the 
cooperative agreement and Regulation 6766, if the Federal Government 
makes a designation of critical habitat or lists a species under the 
jurisdiction of the Commonwealth of Puerto Rico, the PRDNER will assure 
both the addition of the species to the Commonwealth list and the 
designation of critical habitat. After this final rule is effective, 
the coqu[iacute] llanero will be protected by both entities, the 
Federal Government and the Commonwealth of Puerto Rico.
    (6) Comment: A peer reviewer provided a new estimated mean 
population size for the coqu[iacute] llanero, 473.3  186 
individuals per hectare (or 192 per acre). This information was based 
on counts performed on 5 transects of 90 square meters each within the 
occupied wetland. The peer reviewer cautioned how these estimates may 
be misleading because the species is not evenly distributed throughout 
the landscape.
    Our Response: We acknowledge the new estimated mean population size 
for the coqu[iacute] llanero. In the proposed rule, we stated the 
estimated mean population size of the coqu[iacute] llanero was 
approximately 181 individuals per ac (453 per ha). The new estimated 
mean population provided by the peer reviewer is based on the analysis 
of data collected from 5 transects of 90 square meters (area of 450 
square meters) and, therefore, we consider it accurate. This data will 
be updated in this final rule based on the new information provided.
    (7) Comment: A peer reviewer states that areas within the 
designated critical habitat are classified by the Toa Baja Municipality 
as urban soils (designated for urban development) and, if development 
occurred, it would affect the hydrology of the wetland occupied by the 
coqu[iacute] llanero.
    Our Response: The Service recognizes that areas within the critical 
habitat designation are threatened by urban development (see Summary of 
Factors Affecting the Species section). The selection of sites to be 
included in the critical habitat designation is based on the needs of 
the species. Before we consider land ownership, we determine what is 
needed for the species' conservation based on the best available 
scientific and commercial information. The Service will always work on 
actions to support the recovery of the coqu[iacute] llanero wherever 
possible. However, the designation of critical habitat does not impose 
a legally binding duty on private parties. The section entitled 
Critical Habitat Designation for Coqu[iacute] Llanero will provide 
information on how critical habitat was determined and how development 
activities will be considered and evaluated.
    (8) Comment: A peer reviewer and the Commonwealth of Puerto Rico 
suggest that the delimitation of critical habitat needs to be expanded 
east (the Commonwealth of Puerto Rico suggested at least 50 m (164 
feet) passing over the maintenance dirt road, as any negative impact to 
this structure (e.g., oil spill, heavy sedimentation with water run-
off) will directly impact the species.
    Our Response: The Service has found no scientific justification for 
expanding critical habitat to the suggested area. The Service is 
designating areas as defined in section 3 of the Act. The Service has 
articulated a basis for designating the unit as critical habitat under 
the unit description in the Final Critical Habitat Designation section.
    The Secretary could revise the designation, as appropriate and as 
resources allow, in the future if new information becomes available.
    (9) Comment: Peer reviewers, the Commonwealth of Puerto Rico, and 
other commenters recommend that although the nearby limestone hills are 
not occupied by, nor provide habitat for, the species, the limestone 
hills should be included in the critical habitat designation. Some 
commenters have witnessed strong water run-off flooding in the wetland 
after significant rain events. Others suggest viewing the limestone 
hills as an ecosystem and considering them as part of the watershed 
because it is clear that they are essential for the conservation of the 
species. Although some reviewers are aware of the Navy's intention to 
protect the limestone hills in perpetuity, they still recommend 
including the hills as part of the critical habitat designation, 
stating that the hydrological connection of the limestone hills with 
the wetland is essential for the protection of the coqu[iacute] 
llanero. Some also request that the Service adopt the former 
designation of Critical Essential Natural Habitat by the PRDNER.
    Our Response: The Service has determined that hydrology is one of 
the primary constituent elements (PCEs) specific to the conservation of 
the coqu[iacute] llanero and has recognized that changes in hydrology 
may result in changes in the wetland function and vegetation 
composition, as well as affect the connectivity with nearby habitats, 
all with serious effects to the coqu[iacute] llanero. However, the 
available hydrological study for this area only describes the limits of 
the watersheds that, based on surface topography, are tributary to the 
wetland (i.e., surface water drainage patterns, not groundwater flow 
patterns). Hence, no information is available as to what extent the 
surface water patterns and quantities are essential in maintaining the 
actual conditions of the wetland (i.e., maintaining the PCEs), or if 
there are other water sources (e.g., groundwater) with an equivalent or 
more positive impact on the wetland other than surface water. 
Nonetheless, the Service has information indicating that ownership of 
the limestone hills is to be transferred by the U.S. Navy to the 
University of Puerto Rico for perpetual protection.
    The Service acknowledges the recommendation of expanding the 
critical habitat designation. However, additional information is needed 
to determine the importance of the limestone hills to the conservation 
of the species and the additional area needed to maintain the hydrology 
of the wetland (i.e., the PCEs of the occupied habitat). If data become 
available in the future that justify the addition of the limestone 
hills and any other suitable areas to critical habitat, the Secretary 
may revise the designation, as appropriate and as resources allow, 
under the authority of section 4(a)(3)(A)(ii) of the Act.
    (10) Comment: A peer reviewer and several commenters state that the 
Service should include Ca[ntilde]o Campanero and Cocal River in the 
critical habitat designation because these water bodies are responsible 
for maintaining the wetland and may be natural corridors for individual 
coqu[iacute] llanero migrating from the existing wetland, thus 
contributing to the species' persistence in Toa Baja.
    Our Response: Although we recognize the importance of Ca[ntilde]o 
Campanero and the Cocal River as drainage outlets for

[[Page 60782]]

the wetland, the best available scientific information does not 
indicate that these water bodies are essential for the conservation of 
the coqu[iacute] llanero. Therefore, Ca[ntilde]o Campanero and the 
Cocal River do not meet the definition of critical habitat under the 
Act and are not included in this final designation.

Comments From the States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' The 
only comment received from the Commonwealth of Puerto Rico was from a 
peer reviewer, who supported the listing and designation of critical 
habitat and recommended that the critical habitat for the coqu[iacute] 
llanero be expanded. (See comments (8) and (9) and our responses).

Public Comments

General Comment Issue 1 Critical Habitat
    (11) Comment: A commenter understands our conclusion that the 
limestone hills are important for the water supply of the wetland, but 
states that we should focus instead on the fact that contamination, 
hazardous substance release, or direct human impact (construction) of 
any virgin land within the watershed will likely affect the water 
amount and condition within the entire watershed.
    Our Response: The Service agrees that contamination might 
constitute a threat to the species (see Summary of Factors Affecting 
the Species). However, the Service does not have sufficient information 
to determine the impacts to the watershed, and how those impacts would 
influence the wetland. The Service does have information on the surface 
water runoff towards the wetland (Gregory Morris 2007), but there is a 
lack of information to clearly understand the groundwater, water 
distribution, and contaminants that would enter the wetland. The 
Service considered both the importance of space for individual and 
population growth and for normal behavior, as well as sites for 
breeding, reproduction, or rearing (or development) of offspring when 
developing the PCEs. The PCEs in this final rule represent the best 
current understanding of the habitat requirements for the coqu[iacute] 
llanero.
    (12) Comment: A commenter requested that approximately 30 ac (12.1 
ha) of an upland non-flooded area be excluded from the proposed 
critical habitat. The commenter's rationale is that Sagittaria 
lancifolia, an essential PCE for the conservation of the species, is 
clearly absent given that the parcel is a non-wetland.
    Our Response: The approximate area being described occurs within 
the geographical area occupied by the species at the time of listing. 
Reports confirm that the coqu[iacute] llanero occupies the area. The 
Service acknowledges that the area is between manmade structures, but 
those structures (e.g., buildings, houses, roads, and other paved 
areas) are not included because they do not contain the PCEs and 
because they do not meet the definition of critical habitat under the 
Act. The 30-ac area (12.1-ha), on the other hand, does not contain any 
structures and is connected to the main wetland area.
    The fact that there is no Sagittaria lancifolia in the area only 
means that the coqu[iacute] llanero will not lay their eggs there; 
however, the area contains other vegetation that is part of the same 
PCE. Therefore, we have determined that these lands meet the definition 
of critical habitat under the Act and remain within this final 
designation.
General Comment Issue 2 Outreach and Education
    (13) Comment: A commenter recommends development of a public 
educational campaign to support the decision (listing and critical 
habitat designation).
    Our Response: The Service agrees and will promote outreach for this 
final rule via a variety of media.
General Comment Issue 3 General Information
    (14) Comment: A commenter clarified information regarding the 
entity that will be handling the disposal of the Navy Base's lands. The 
proposed rule indicated that the Navy is conveying approximately 2,075 
ac (840 ha) of the property to Sabana Seca Land Management (SSLM). 
However, the entity that will be marketing and selling the Base is 
named Sabana Seca Partners, LLC (SSPL), which is an entity different 
from SSLM.
    Our Response: We acknowledge this comment and we have made the 
correction in this final rule.

Summary of Changes From Proposed Rule

    The Service reviewed and fully considered all comments received 
from the public and peer reviewers in response to the proposed rule of 
October 12, 2011 (76 FR 63420), to list the coqu[iacute] llanero as an 
endangered species and to designate its critical habitat. The Service 
also considered all comments received in response to the reopened 
comment period on June 19, 2012 (77 FR 36457), and has made minor 
corrections, as appropriate, including the deletion of the reference to 
the coqu[iacute] llanero as a tree frog as acknowledged in the response 
to comment (2), above.

Status Assessment for the Coqu[iacute] Llanero

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for adding species to the Federal Lists 
of Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence. Listing actions may 
be warranted based on any of the above threat factors, singly or in 
combination. Each of these factors is discussed below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    The coqu[iacute] llanero was discovered in 2005. Additional on-the-
ground surveys based upon habitat characteristics revealed no 
additional populations. As a result, we do not know if the historical 
range of the species may be different from its present, known range. 
Therefore, we present and discuss only factors that may affect the 
current habitat or range of coqu[iacute] llanero in this section, 
including: (1) Urban development; (2) operation and possible expansion 
of a go-kart and motorbike racetrack in coqu[iacute] llanero wetland 
habitat; (3) contamination from the Toa Baja Municipal Landfill (TBML); 
(4) habitat degradation for flood control projects; and (5) competition 
from invasive wetland plant species.
Urban Development
    Large-scale residential projects that are currently planned within 
and around the site where the species is known to occur pose a threat 
to the coqu[iacute] llanero and its habitat (Gonz[aacute]lez 2010, 
pers. comm.; R[iacute]os-L[oacute]pez 2010, pers. comm.). The most 
significant portion of this habitat falls within the southern portion 
of the USNSGASS. Its land comprises approximately 2,195 ac (888.3 ha), 
which is divided into two

[[Page 60783]]

large areas: the North and South Tracts. The North Tract accounts for 
approximately 1,330 ac (538.2 ha), with the majority of land currently 
leased to a local cattle farmer. The South Tract comprises 
approximately 865 ac (350.1 ha) and is where the coqu[iacute] llanero 
is known to occur on 260 ac (105 ha).
    The USNSGASS is disposing of the property in accordance with 
section 2801 of the National Defense Authorization Act (NDAA) for 
Fiscal Year 1996 (FY1996), Public Law 104-106, 110 Stat. 186 (10 U.S.C. 
2871-2885), as amended. Section 2801 of NDAA provides the authority to 
the Department of Defense (DOD) to work with the private sector 
nationwide, in order to build and renovate family housing and ancillary 
facilities in key areas of need. The Navy is conveying approximately 
2,075 ac (840 ha) of the property to a private entity, Sabana Seca 
Partners (SSPL), LLC, which is associated with the Navy's Public 
Private Venture partnership for military family housing (Tec Inc. and 
AH Environmental 2008, p. ES-1). SSPL will market and sell the closed 
Navy base property to non-Federal entities through Forest City 
Enterprises, Inc.
    The environmental assessment (EA) for the transfer-disposal of 
USNSGASS property states that the property disposed of by the Navy 
would be redeveloped in a manner similar to surrounding areas (Tec Inc. 
and AH Environmental 2008, p. 4-1). According to the EA, the preferred 
alternative for the wetland area that contains occupied coqu[iacute] 
llanero habitat is residential use (Tec Inc. and AH Environmental 2008, 
p. 2-2). Furthermore, coqu[iacute] llanero wetland habitat is not 
within the areas that would be zoned for conservation by the Toa Baja 
municipality, and, according to their land-use plan, they intend to 
zone the area for residential development. Also, coqu[iacute] llanero 
wetland habitat is not within the parcels conveyed to the University of 
Puerto Rico for the purpose of protection in perpetuity.
    The ultimate reuse of the USNSGASS property would be determined by 
the non-Federal entities receiving the property from SSLM and Forest 
City Enterprise, Inc. The EA explains that the development within 
wetlands and the magnitude of the impacts that could occur, if such 
development was permitted, would be dependent upon the actual placement 
of new residential areas and the amount of wetland removal or 
alteration allowed for site development (Tec Inc. and AH Environmental 
2008, p. 4-15). Possible impacts (approximately 221 ac (89 ha) of the 
palustrine emergent wetland (Tec Inc. and AH Environmental 2008, p. 4-
16)) could occur by draining and filling these wetlands, which are 
occupied by the coqu[iacute] llanero, leaving little to no suitable 
habitat for the coqu[iacute] llanero to carry out its life-history 
processes. In addition, filling the wetland for future development 
could require Clean Water Act (CWA; 33 U.S.C. 1251 et seq.) section 404 
permits from the U.S. Army Corp of Engineers (Corps). If the 
development would likely adversely affect the species once it is 
federally listed, consultation under section 7 of the Act should be 
conducted between the Corps and the Service.
    Nevertheless, prior to the discovery of the coqu[iacute] llanero, 
land-use history for this area has shown that urban and commercial 
development has adversely impacted wetland resources, and, although not 
documented, presumably affected coqu[iacute] llanero individuals and 
habitat. An example of those impacts is the fill of a freshwater 
emergent wetland for residential housing at the western end of 
coqu[iacute] llanero habitat (Zegarra and Pacheco 2010, pers. obs.). 
The wetland where coqu[iacute] llanero is currently present was 
previously impacted by the construction and maintenance of Redman Road. 
This road was constructed in an area identified in the NWI maps as 
freshwater emergent and forested shrub wetlands habitat, and the road's 
construction interrupted the natural flow of water and affected the 
hydrology of the wetland. Further adverse effects to the same wetland 
habitat can be observed in the residential community that exists on the 
boundary of the closed USNSGASS property near the intersection of PR 
Road 867 and Redman Road. This community has expanded over the past 40 
years and presently consists of approximately 50 houses, 20 of which 
are on Navy property (U.S. Navy 2000 in Tec Inc. and AH Environmental 
2008, p. 3-4). Prior to the closure of the USNSGASS, the Navy was 
planning to construct a new fence on the property to eliminate further 
encroachment on its land holdings (Tec Inc. and AH Environmental 2008, 
p. 3-6).
    Implementing the preferred alternative of the EA for the disposal 
of the USNSGASS may result in the destruction of approximately 416 ac 
(168 ha) of wetlands, including coqu[iacute] llanero habitat (Tec Inc. 
and AH Environmental 2008, p. 4-5). Additionally, implementing the 
preferred alternative would most likely result in new residential 
development (Tec Inc. and AH Environmental 2008, p. 4-6). According to 
the Puerto Rican Planning Board (PRPB) Web site, 11 development 
projects are under evaluation around the southern section of the 
wetland type locality, possibly impacting 1,087 ac (440 ha) (http://www.jp.gobierno.pr, accessed February 2010). Urban development adjacent 
to the wetland type locality would fragment and directly impact 
suitable habitat for the coqu[iacute] llanero and would limit the 
species' population expansion in the area. In addition, with the 
creation of new residential projects, traffic would be expected to 
increase, and, thus, the three primary roadways surrounding the 
USNSGASS would likely require some improvements (Tec Inc. and AH 
Environmental 2008, p. 4-6). Vehicle traffic on roads within the 
essential habitat of amphibian species can be a direct source of 
mortality and, in some instances, can be catastrophic and should not be 
underestimated (Glista et al. 2007, p. 85). According to Janice 
Gonz[aacute]lez, Director of the Caribbean Primate Research Center 
(CPRC), approximately 30 CPRC employees drive vehicles on Redman Road 
daily, as it is currently the main access road to the CPRC 
(Gonz[aacute]lez 2010, pers. comm.). Any improvement of the road or 
increase in traffic may affect the suitability of the wetland. The 
biological effects to the coqu[iacute] llanero from the existing road 
network around the southern section of the wetlands are not well 
understood. The combination of habitat fragmentation and high vehicle 
use of the roads may negatively impact the coqu[iacute] llanero and its 
habitat through loss of habitat connectivity, degradation of water 
quality, direct mortality, edge effects of the road and wetland, and 
changes in hydrology.
    For the above reasons, we conclude that urban development and 
associated infrastructure and human use are a threat to the 
coqu[iacute] llanero by direct mortality and due to permanent loss, 
fragmentation, or alteration of its habitat.
Go-Kart and Motorbike Racetrack
    Although the Service does not have information regarding the 
specific date of the construction of the existing racetrack, we 
estimate that approximately 29 ac (11.6 ha) of freshwater emergent and 
forested shrub wetlands were impacted. These data were quantified using 
Geographic Information Systems analysis with aerial photography and the 
NWI layers. The Puerto Rico Department of Natural and Environmental 
Resources (PRDNER) provided a photograph of the coqu[iacute] llanero's 
habitat that was filled by the construction of the racetrack (PRDNER 
2007b, p. 25). It is also evident that the racetrack floods during 
heavy rain events and serves as a

[[Page 60784]]

potential source of contamination with oil, gasoline, and other 
pollutants, affecting the suitability of the coqu[iacute] llanero's 
habitat (PRDNER 2007b, p. 25). The possible effects of waterborne 
contaminants on the coqu[iacute] llanero are discussed under Factor E.
    Comments submitted by SSLM (2009, p. 4) expressed concern regarding 
the operators of the racetrack removing soil to expand the parking lot. 
The soil was deposited on the USNSGASS grounds, affecting coqu[iacute] 
llanero habitat by filling part of the wetland. Joglar (2007, p. 2) 
identified the wetland area contiguous to the racetrack as occupied by 
the coqu[iacute] llanero.
    Based on the above information, we conclude that any further 
expansion of the racetrack or its operation may potentially impact the 
coqu[iacute] llanero through permanent loss, alteration, or 
contamination of its habitat.
Toa Baja Municipal Landfill (TBML)
    The current operation of the TBML constitutes a threat to the 
coqu[iacute] llanero. The landfill is located inland on top of a 
limestone hill 0.5 mi (0.8 km) south of the known coqu[iacute] llanero 
habitat. The polluted discharge or runoff waters from the continued 
operation of the landfill may pose a threat to the species because 
underground contaminated waters and leachates reaching the wetlands may 
change water quality, soils, and consequently plant composition (CPRC 
2009, pp. 6-9). See discussion below under Factor E.
    The legal representative for the Toa Baja Municipal Administration 
sent a letter to the Service dated September 8, 2009, supporting the 
listing of the coqu[iacute] llanero as an endangered species and 
supporting the PRDNER Essential Critical Natural Habitat delineation, 
except for one 83-ac (33.6-ha) parcel necessary for the implementation 
of TBML closure activities ordered by the U.S. Environmental Protection 
Agency (EPA). According to a PRDNER technical assistance letter dated 
February 26, 2010 (PRDNER 2010, pp. 1-6), another area on the north 
side of the TBML is also being considered for use in closure 
activities. The area identified as Area B by the Puerto Rico 
Environmental Quality Board (EQB) is located within the area formerly 
designated by PRDNER as Essential Critical Natural Habitat for the 
coqu[iacute] llanero. Activities identified in the closure procedures 
will direct the TBML storm water drainages towards the wetland. Storm 
water that drains from the TBML currently flows into coqu[iacute] 
llanero habitat and is contaminated with leachate (see Factor E 
discussion). In addition, the TBML closure measures would modify the 
hydrology of the area and could adversely affect the hydrology of the 
wetland by affecting part of the limestone hills, which supply water to 
the wetland and affect the suitability of habitat for the species.
    Based on the above information, we conclude that the current 
operation and possible closure measures of the TBML are a threat to the 
coqu[iacute] llanero by potentially altering the hydrology of its 
wetland habitat and by contaminating the wetland with landfill runoff.
Channel-Clearing Activities for Flood Control
    The municipality of Toa Baja periodically removes riparian 
vegetation along the main drainage channel within the wetland where the 
species is known to occur. These flood control measures are implemented 
during the rainy season to facilitate water flow and prevent flooding 
of nearby communities such as Ingenio, Villas del Sol, and Brisas de 
Campanero. However, channel-clearing activities may facilitate drainage 
and drying of the wetland, and accelerate colonization of invasive, 
herbaceous vegetation along the edges of the channel towards the 
wetland (R[iacute]os-L[oacute]pez 2009, p. 3). Preliminary studies on 
the reproductive biology of the coqu[iacute] llanero suggest that 
wetland areas subjected to prolonged dry periods (e.g., towards the 
edges of wetland) are characterized by greater vegetation cover of 
grasses instead of the native ferns and arrowheads that the 
coqu[iacute] llanero depends on for reproduction and survival. These 
areas also have a disproportionate abundance of coqu[iacute] llanero 
egg clutch predators, both native and exotic mollusks and insects 
(R[iacute]os-L[oacute]pez 2009, pp. 3, 11).
    Based on the above information, we conclude that channel-clearing 
activities may be an indirect threat to the coqu[iacute] llanero 
because they prolong dryer conditions along the edges of the wetland, 
allowing invasive plants and predators to colonize the wetland.
Invasive Wetland Plant Species
    Invasive native wetland plants such as Typha domingensis (Southern 
cattail) may invade and alter diverse native wetland communities, often 
resulting in plant monocultures that support few wildlife species 
(Houlahan and Findlay 2004, p. 1132). Southern cattail may alter the 
wetland attributes, including geomorphology, fire regime, hydrology, 
microclimate, nutrient cycling, and productivity (Woo and Zedler 2002, 
p. 509). Based on our previous experience in the Laguna Cartagena 
National Wildlife Refuge, the southern cattail colonized disturbed 
areas faster than other native wetland plants, thereby excluding the 
native plants. The southern cattail is currently found in patches 
within coqu[iacute] llanero wetland habitat (Service 2011, pers. obs.). 
If the southern cattail continues to spread and colonizes coqu[iacute] 
llanero wetland habitat, it could replace all Sagittaria lancifolia and 
the ferns that the coqu[iacute] llanero depends on for reproduction and 
normal behavior.
    Therefore, we conclude that invasive wetland species are a threat 
to the coqu[iacute] llanero due to changes in the wetland hydrology and 
plant species composition the coqu[iacute] llanero needs for survival.
Summary of Factor A
    Based on the best scientific and commercial information available, 
we find that urban development, the operation of the existing race 
track, activities associated with the operation and future closure of 
the TBML, channel-clearing activities for flood control, and invasive 
plant species pose a threat to the species. The scope of this factor is 
exacerbated because the only known population of coqu[iacute] llanero 
occurs on land that is slated for development and surrounded by lands 
subject to urban development. Because these threats are already 
occurring, and are expected to continue into the future, on the 
extremely localized known range of the coqu[iacute] llanero, they are 
having or are likely to have a significant impact on the species.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The coqu[iacute] llanero is not a commercially valuable species or 
a species sought after for recreational or educational purposes. 
However, this recently discovered species could be actively sought for 
scientific purposes. Forty-five coqu[iacute] llanero specimens were 
collected for scientific purposes in 2005 to describe the species, and 
some specimens have been deposited in universities and private 
collections (R[iacute]os-L[oacute]pez and Thomas 2007, p. 54). In 
addition, an undisclosed number of eggs and individuals were collected 
for scientific research of the species' reproductive biology, potential 
captive breeding capability, and pathogen sampling. Despite scientific 
collection having been identified as a possible contribution to the 
decline of other coqu[iacute] species in Puerto Rico, scientific 
collection had not previously been identified as a threat to this 
species because the coqu[iacute] llanero had legal protection under 
Commonwealth Law 241 and PRDNER Regulation 6766,

[[Page 60785]]

promulgated in 2007. Commonwealth Law 241 and PRDNER Regulation 6766 
prohibited collection of the coqu[iacute] llanero without authorization 
of the Secretary of the PRDNER (PRDNER 2007a, p. 9). However, on May 
30, 2012, the Supreme Court of Puerto Rico overturned the protection 
and critical habitat designation established by the PRDNER for the 
coqu[iacute] llanero (Municipio de Toa Alta, et al. v. PRDNER, 2012 
TSPR 94), leaving the species without legal protection. This issue is 
discussed under Factor D.
    As a recently discovered species, the coqu[iacute] llanero is 
recognized for its rarity and restricted range. However, there is no 
regulation limiting its collection, making the species more attractive 
to collectors and scientists. Currently, only a few researchers are 
conducting studies on the species. Although collection could be a 
significant threat to the species due to its restricted range and 
because collection could potentially occur at any time, we do not have 
information indicating that the coqu[iacute] llanero is being 
collected. Therefore, we conclude that overutilization for commercial, 
recreational, scientific, or educational purposes is not a threat to 
the coqu[iacute] llanero.

C. Disease or Predation

    The effects of diseases or predation on the coqu[iacute] llanero 
are not well known. Because the species is known from only one 
location, and population size is not well estimated, disease and 
predation could pose a threat to its survival.
Disease
    The pathogenic chytrid fungus, Batrachochytrium dendrobatidis (Bd), 
is a widespread pathogen that is hypothesized to be the cause of mass 
mortality in some amphibian populations (Pilliod et al., 2009, p. 
1260). Chytridiomycosis (disease caused by the fungus) results when Bd 
invades keratinized tissue (tissue that makes the outside of the skin 
tough and resistant to injury) of an amphibian, disrupting cutaneous 
functions, compromising the host's immune system, and affecting the 
amphibian's behavior (Pilliod et al., 2009, p. 1260). In Puerto Rico, 
the fungus appears to be endemic above 1968.5 ft (600 m), occurring 
from east of Luquillo Mountain (El Yunque National Forest) throughout 
the Central Cordillera up to Maricao (Burrowes et al. 2008, p. 322). 
This occurrence is outside of the coqu[iacute] llanero's known range 
(see Species Information). Additionally, five coqu[iacute] llanero 
individuals have been sampled for Bd, with negative results (Burrowes 
et al. 2008, p. 323). Although Bd has been detected at lower elevations 
in other tropical environments, the best scientific and commercial 
information available for coqu[iacute] llanero indicates that this 
fungus is not a current threat to this species, nor is it likely to 
become so in the near future, even taking into consideration changing 
environmental conditions due to climate change (see discussion under 
Factor E). Based on the above information, we conclude that disease is 
not currently a threat to the coqu[iacute] llanero.
    Predation is a threat to the coqu[iacute] llanero, particularly at 
the dryer edges of the wetland. The eggs are preyed on by ants and by a 
terrestrial invertebrate. Information provided by R[iacute]os-
L[oacute]pez (2009, p. 11) indicates that natural predation pressure 
may be strong and that interspecific competition for breeding sites may 
be significant. Preliminary data indicated that the coqu[iacute] 
llanero has the lowest reproductive output of any coqu[iacute] species 
in Puerto Rico, averaging three eggs per clutch (PRDNER 2007a, p. 3; 
R[iacute]os-L[oacute]pez and Thomas 2007, p. 60; R[iacute]os-
L[oacute]pez 2009, p. 5). Egg predation by native and exotic 
invertebrates was observed, with some predators consuming entire egg 
masses in 3 days. However, the information available suggests that 
flooded conditions may limit predation pressure against the 
coqu[iacute] llanero. Predators of the coqu[iacute] llanero rarely 
invade more permanent flooded areas of the wetland, suggesting that 
predation could be exacerbated by the destruction, modification, or 
curtailment of the species' habitat (see discussion under Factor A).
    Based on the best scientific and commercial information available, 
we have determined that disease is not a threat to the coqu[iacute] 
llanero. However, predation is a threat to the continued existence of 
the species.

D. The Inadequacy of Existing Regulatory Mechanisms

    PRDNER designated the coqu[iacute] llanero as Critically Endangered 
and designated its habitat as Essential Critical Natural Habitat under 
Commonwealth Law 241 and Regulation 6766 in July 2007 (PRDNER 2007a and 
2007b). Article 2 of Regulation 6766 included all prohibitions and 
stated the designation as ``critically endangered,'' which prohibited 
any person from taking the species; it prohibited harm, possession, 
transportation, destruction, or import or export of individuals, nests, 
eggs, or juveniles without previous authorization from the Secretary of 
PRDNER (PRDNER 2007a, p. 9). Article 2.06 also prohibited collecting, 
harassing, hunting, and removing, among other activities, of listed 
animals within the jurisdiction of Puerto Rico (PRDNER 2007a, p. 9).
    The PRDNER designated approximately 1,602 ac (648 ha) as 
``Essential Critical Natural Habitat'' under Regulation 6766 (PRDNER 
2007b, p. 28). The coqu[iacute] llanero's habitat was the first 
designated essential critical natural habitat under Commonwealth Law 
241 and Regulation 6766. Article 4.05 of this regulation specifies that 
an area designated as Essential Critical Natural Habitat cannot be 
modified unless scientific studies determine that such designation 
should be changed.
    SSLM brought a lawsuit against the PRDNER, alleging that the agency 
designated as critical habitat of the coqu[iacute] llanero areas in 
excess of what is required for the conservation of the species. SSLM 
challenged the PRDNER designation, arguing the area does not reflect 
the presence of the coqu[iacute] llanero or physical and biological 
characteristics that sustain the species.
    On May 30, 2012, the Supreme Court of Puerto Rico held that PRDNER 
did not follow the designation process required by Commonwealth Law 170 
(Ley de Procedimientos Administrativos Uniformes del Estado Libre 
Asociado de Puerto Rico, del 12 de Agosto de 1988, 3 L.P.R.A. sec. 
2101, et seq.), and overturned the PRDNER designation of the 
coqu[iacute] llanero as ``critically endangered'' and the designated 
``essential critical natural habitat'' (Municipio de Toa Alta, et al. 
v. PRDNER, 2012 TSPR 94). Therefore, presently, PRDNER's designations 
for the coqu[iacute] llanero as critically endangered and its essential 
critical natural habitat, are invalid, and Commonwealth Law 241 and 
Regulation 6766 provide no protection for the species and its habitat. 
Additionally, the coqu[iacute] llanero is not currently on the 
Commonwealth list of endangered and threatened species.
    The Clean Water Act (CWA), 33 U.S.C. 1251 et seq., administered by 
the Corps, establishes the basic structure for regulating discharges of 
pollutants into the waters of the United States and regulating quality 
standards for surface waters. The objective of the CWA is to restore 
and maintain the chemical, physical, and biological integrity of the 
nation's waters by preventing point and nonpoint pollution sources. The 
CWA has a stated goal that ``* * * wherever attainable, an interim goal 
of water quality which provides for the protection and propagation of 
fish, shellfish, and wildlife and provides for recreation in and on the 
water be achieved by July 1, 1983.'' States are responsible for setting 
and

[[Page 60786]]

implementing water quality standards that align with the requirements 
of the CWA. Overall, implementation of the CWA could benefit the 
coqu[iacute] llanero through the point and nonpoint source programs.
    Nonpoint source (NPS) pollution comes from many diffuse sources, 
unlike pollution from industrial and sewage treatment plants. NPS 
pollution is caused by rainfall (water) moving over and through the 
ground. As the runoff moves, it transports natural and human-made 
pollutants to lakes, rivers, wetlands, coastal waters and ground 
waters. States report that nonpoint source pollution is the leading 
remaining cause of water quality problems. The effects of nonpoint 
source pollutants on specific waters vary and may not always be fully 
assessed. However, these pollutants have harmful effects on fisheries 
and wildlife (http://www.epa.gov/owow_keep/NPS/whatis.html).
    Sources of NPS pollution within the watershed that feed the wetland 
occupied by the coqu[iacute] llanero include clearing of riparian 
vegetation, urbanization, road construction, and other practices that 
allow bare earth to enter streams. The Service does not have any 
specific information about the sensitivity of the coqu[iacute] llanero 
to common NPS pollutants likely released from the activities discussed 
under Factor A, above. Because there is very little information known 
about water quality parameters necessary to fully protect the 
coqu[iacute] llanero, it is difficult to determine whether the CWA is 
adequately addressing the habitat and water quality threats to the 
species. However, based on the information currently available, the 
Service does not believe that the current water quality conditions are 
a threat to the species.
    Similarly, the CWA has mechanisms in place to protect the integrity 
of wetlands such that water quality is maintained. The Service 
currently consults with the Corps on wetland fill permits, and we 
anticipate that this process will adequately protect the integrity of 
the emergent wetland occupied by the coqu[iacute] llanero. Therefore, 
we do not find that inadequate implementation of the CWA is a threat to 
the species at this time.
Summary of Factor D
    The sole regulatory mechanisms that protected the coqu[iacute] 
llanero, Commonwealth Law 241 and Regulation 6766, have been 
invalidated by the court and are no longer in effect. Further, after 
evaluating the CWA, we determined that it provides adequate protection 
to the wetland occupied by the species and, therefore, inadequate 
implementation to the CWA is not a threat to the coqu[iacute] llanero 
at this time. We are not aware of any other existing regulatory 
mechanisms that address the threats to the species and its habitat 
identified under the other factors. In summary, we do not find that the 
inadequacy of existing regulatory mechanisms is a threat to the 
species.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    In the following section, we discuss the highly specialized 
ecological requirements of the species, as well as water and soil 
pollution, use of herbicides, brush fires, competition, climate change, 
and human use of and access to the wetland area.
Highly Specialized Ecological Requirements
    Because of its highly specialized ecological requirements for 
reproduction, the coqu[iacute] llanero's vulnerability to other threats 
discussed in this rule is exacerbated. As mentioned in the Background 
section, the coqu[iacute] llanero is known to exist in only one 
freshwater wetland in the municipality of Toa Baja, and after several 
searches in other similar locations (apparently there are few or no 
wetlands with similar plant composition), the species was not detected. 
R[iacute]os-L[oacute]pez and Thomas (2007, p. 60) found that the 
breeding events of the coqu[iacute] llanero were limited to one plant 
species, Sagittaria lancifolia. This plant is an obligate wetland 
indicator species. A general description of the major substrate types 
of the wetland that the coqu[iacute] llanero currently inhabits 
indicates a 7.4 percent vegetation cover of S. lancifolia (R[iacute]os-
L[oacute]pez 2009, p. 9). The coqu[iacute] llanero may also be 
selecting an intermediate S. lancifolia size class for egg laying, 
which suggests further specialization (R[iacute]os-L[oacute]pez 2010, 
unpubl. data, p. 8). Also, current research by R[iacute]os-L[oacute]pez 
(2010, unpubl. data, p. 11) suggests that reproduction may not occur 
randomly in space, but rather seems to be limited to plants located in 
areas of little disturbance, in areas that are permanently flooded, and 
in areas that are away from the wetland's edges.
    We find that the highly specialized ecological requirements of the 
coqu[iacute] llanero exacerbate its vulnerability to other threats, 
such that the continued existence of the species is likely to be 
impacted.
Water and Soil Pollution
    CPRC (2009, p. 6), PRDNER (2007b, p. 24), EGIS, Inc. (2007, p. 4), 
and Joglar (2007, p. 6) identify the TBML leachates as a threat to the 
coqu[iacute] llanero. This landfill is located on the limestone hills 
to the south of the wetland known to be occupied by the coqu[iacute] 
llanero. The CPRC submitted to EGIS a photograph of contaminated 
leachates draining towards that wetland. The leachate study submitted 
by EGIS described the hydrology of the area as typical of karst zones 
(area of limestone soil characterized by sinks, ravines, and 
underground streams) near the coast in which the runoff generated in 
the limestone hills, including at the TBML, flows at or near the 
surface through a series of channels and small valleys that ultimately 
reach the marshes and wetlands areas (including coqu[iacute] llanero 
habitat) to the north of the TBML (EGIS 2007, Appendix B, p. 7). The 
study specifies that a dark-colored leachate is currently flowing from 
the TBML towards the closed USNSGASS property, and that even during 
periods of drought, the leachate flows continuously towards the 
USNSGASS property, with flows increasing during rain events (EGIS 2007, 
Appendix B, p. 23). The leachate study identified high levels of 
arsenic, cyanide, sodium, lead, and chromium, among other elements. 
There did not appear to be much indication of petroleum-related 
pollutants, although sampling more strategically near the racetrack 
could more accurately assess this contamination impact relative to the 
coqu[iacute] llanero's habitat (EGIS 2007, p. 5).
    Additional analytical laboratory results from other threat zones 
associated with the wetland indicated elevated levels of certain heavy 
metals, coliform bacteria, chemical oxygen demand, and pesticides (EGIS 
2007, p. 18). High coliform bacteria counts could be from several 
sources (e.g., septic systems) or the CPRC (EGIS 2007, p. 5). Of 
particular concern is the possibility of bioaccumulation of toxins 
throughout the wetland food chain (PRDNER 2007b, p. 24). It is highly 
probable that the contaminated conditions of the soil and standing 
water would not be hospitable to a sensitive amphibian species, such as 
the coqu[iacute] llanero, that absorbs chemicals through the skin (EGIS 
2007, p. 5). Such chemicals could directly affect the coqu[iacute] 
llanero's development, cause abnormalities, or act indirectly by 
increasing its susceptibility to other environmental stressors such as 
infectious diseases and predation (Taylor et al., 2005, p. 1497). We 
have no information indicating any negative response of the species to 
soil and water pollution. However, we consider water

[[Page 60787]]

and soil pollution a potential threat to the species at this time.
Herbicides
    The CPRC (2009, p. 7) identified the use of herbicides for 
maintenance of green areas in the closed USNSGASS as a current threat 
to the species. However, SSLM (2009, p. 9) claims they do not use 
herbicides on the borders of the wetland as part of maintenance work on 
the USNSGASS property, and that the practice of using herbicides is not 
in accordance with its institutional environmental policies and the 
activities authorized to SSLM at the USNSGASS by the Navy. During a 
site visit by the Service, there were no signs of the use of herbicides 
along Redman Road within the area where coqu[iacute] llanero occurs at 
the USNSGASS. Moreover, a conversation with R[iacute]os-L[oacute]pez 
(2011 pers. comm.) confirmed that practice had apparently ceased.
    Nevertheless, herbicides may still be able to enter into the 
wetland because of possible herbicide use in the urban housing areas 
near the coqu[iacute] llanero's habitat. These herbicides could cause 
developmental abnormalities (e.g., limb malformations) to the 
coqu[iacute] llanero. In fact, pesticides have been known to be 
dispersed through precipitation and wind (Sparling et al. 2001, p. 
1595; Fellers et al. 2004, p. 2176). Other research suggests that 
important changes in an ecological community's food web resulted from 
pesticide and herbicide exposure, which influence the susceptibility of 
amphibian species to contaminants (Boone and James 2003, p. 829). We 
have no information indicating any negative response of the species to 
herbicides. However, we consider the use of herbicides in the 
surrounding area as a potential threat to the species at this time.
Brush Fires
    Brush fires have been identified as a current threat to the species 
(CPRC 2009, p. 6). SSLM (2009, p. 9) mentioned that the only fire 
incidents reported since 2007 have occurred on the North Tract of the 
USNSGASS and were limited to two or three incidents per year during the 
drought season. The habitat of the coqu[iacute] llanero is surrounded 
by several developments (e.g., race track and urban housing) that 
facilitate exposure and invasion of any accidental or deliberate fires 
into the wetland footprint and adjacent forest. This could exacerbate 
the entrance of invasive plants such as southern cattail and change the 
vegetation composition of the wetland (see discussion under Factor A). 
Changes to the wetland could create an environment where the cattail 
dominates the vegetation make-up and converts the wetland to a 
monotypic vegetation environment. This would reduce the plants that 
coqu[iacute] llanero depends on. In addition, these brush fires may 
encroach on the coqu[iacute] llanero's current limited habitat. A 
possibly extinct coqu[iacute] species in Puerto Rico (i.e., 
Eleutherodactylus jasperi) with limited distribution and highly 
specialized ecological requirements is known to have been adversely 
affected by fires in its type locality (D[iacute]az 1984, p. 4).
    Therefore, we believe that brush fires may be a threat to the 
coqu[iacute] llanero and its habitat.
Competition
    A common, and more widespread, coqu[iacute] species of Puerto Rico 
(i.e., Eleutherodactylus cochranae) can utilize the same habitats as 
the coqu[iacute] llanero, specifically the S. lancifolia egg-laying 
locations, displacing and damaging the coqu[iacute] llanero's eggs. 
These competitors rarely invade more permanently flooded areas of the 
wetland, suggesting a synergism between hydrology alteration and 
competition that may result in magnified, negative biological 
interactions against the coqu[iacute] llanero (R[iacute]os-L[oacute]pez 
2009, p. 4).
    Competition is a threat to the coqu[iacute] llanero, particularly 
at the dryer edges of the wetland. This threat could be exacerbated by 
the destruction, modification, or curtailment of the species habitat 
(see discussion under Factor A). The available information suggests 
that flooded conditions may limit competition pressure against the 
coqu[iacute] llanero. Therefore, based on the best scientific and 
commercial information available to us, we conclude that competition is 
a threat to the continued existence of the species.
Climate Change
    ``Climate'' refers to an area's long-term average weather 
statistics (typically from at least 20 or 30 year periods), including 
the mean and variation of surface variables such as temperature, 
precipitation, and wind; ``climate change'' refers to a change in the 
mean or variability or both of climate properties that persists for an 
extended period (typically decades or longer), whether due to natural 
processes or human activity (Intergovernmental Panel on Climate Change 
(IPCC) 2007a, p. 78). Although changes in climate occur continuously 
over geological time, changes are now occurring at an accelerated rate. 
For example, at continental, regional, and ocean basin scales, recent 
observed changes in long-term trends include: A substantial increase in 
precipitation in eastern parts of North America and South America, 
northern Europe, and northern and central Asia, and an increase in 
intense tropical cyclone activity in the North Atlantic since about 
1970 (IPCC 2007a, p. 30); and an increase in annual average temperature 
of more than 2 [deg]F (1.1 [deg]Celsius) across the United States since 
1960 (Global Climate Change Impacts in the United States (GCCIUS) 2009, 
p. 27). Examples of observed changes in the physical environment 
include: An increase in global average sea level, and declines in 
mountain glaciers and average snow cover in both the northern and 
southern hemispheres (IPCC 2007a, p. 30); substantial and accelerating 
reductions in Arctic sea-ice (e.g., Comiso et al. 2008, p. 1); and a 
variety of changes in ecosystem processes, the distribution of species, 
and the timing of seasonal events (e.g., GCCIUS 2009, pp. 79-88).
    The IPCC used Atmosphere-Ocean General Circulation Models and 
various greenhouse gas emissions scenarios to make projections of 
climate change globally and for broad regions through the 21st century 
(Meehl et al. 2007, p. 753; Randall et al. 2007, pp. 596-599), and 
reported these projections using a framework for characterizing 
certainty (Solomon et al. 2007, pp. 22-23). The projections include: 
(1) It is virtually certain there will be warmer and more frequent hot 
days and nights over most of the earth's land areas; (2) it is very 
likely there will be increased frequency of warm spells and heat waves 
over most land areas, and the frequency of heavy precipitation events 
will increase over most areas; and (3) it is likely that increases will 
occur in the incidence of extreme high sea level (excludes tsunamis), 
intense tropical cyclone activity, and the area affected by droughts 
(IPCC 2007b, p. 8, Table SPM.2). More recent analyses using a different 
global model and comparing other emissions scenarios resulted in 
similar projections of global temperature change across the different 
approaches (Prinn et al. 2011, pp. 527, 529).
    All models (not just those involving climate changes) have some 
uncertainty associated with projections due to assumptions used, data 
available, and features of the models. With regard to climate change, 
this includes factors such as assumptions related to emissions 
scenarios, internal climate variability, and differences among models. 
However, under all global models and emissions scenarios, the overall 
projected trajectory of surface air temperature is one of increased 
warming compared to current

[[Page 60788]]

conditions (Meehl et al. 2007, p. 762; Prinn et al. 2011, p. 527). 
Climate models, emissions scenarios, and associated assumptions, data, 
and analytical techniques will continue to be refined, as will 
interpretations of projections, as more information becomes available. 
For instance, some changes in conditions are occurring more rapidly 
than initially projected, such as melting of Arctic sea-ice (Comiso et 
al. 2008, p. 1; Polyak et al. 2010, p. 1797), and since 2000, the 
observed emissions of greenhouse gases, which are a key influence on 
climate change, have been occurring at the mid- to higher levels of the 
various emissions scenarios developed in the late 1990s and used by the 
IPPC for making projections (e.g., Raupach et al. 2007, Figure 1, p. 
10289; Manning et al. 2010, Figure 1, p. 377; Pielke et al. 2008, 
entire). Also, the best scientific and commercial data available 
indicate that average global surface air temperature is increasing and 
several climate-related changes are occurring and will continue for 
many decades even if emissions are stabilized soon (e.g., Meehl et al. 
2007, pp. 822-829; Church et al. 2010, pp. 411-412; Gillett et al. 
2011, entire).
    Changes in climate can have a variety of direct and indirect 
impacts on species, and can exacerbate the effects of other threats. 
Rather than assessing ``climate change'' as a single threat in and of 
itself, we examine the potential consequences to species and their 
habitats that arise from changes in environmental conditions associated 
with various aspects of climate change. For example, climate-related 
changes to habitats, predator-prey relationships, disease and disease 
vectors, or conditions that exceed the physiological tolerances of a 
species, occurring individually or in combination, may affect the 
status of a species. Vulnerability to climate change impacts is a 
function of sensitivity to those changes, exposure to those changes, 
and adaptive capacity (IPCC 2007, p. 89; Glick et al. 2011, pp. 19-22). 
As described above, in evaluating the status of a species, the Service 
uses the best scientific and commercial data available, and this 
includes consideration of direct and indirect effects of climate 
change. As is the case with all potential threats, if a species is 
currently affected or is expected to be affected by one or more 
climate-related impacts, this does not necessarily mean the species is 
an endangered or threatened species as defined under the Act. If a 
species is listed as endangered or threatened, this knowledge regarding 
its vulnerability to, and impacts from, climate-associated changes in 
environmental conditions can be used to help devise appropriate 
strategies for its recovery.
    While projections from global climate model simulations are 
informative and in some cases are the only or the best scientific 
information available, various downscaling methods are being used to 
provide higher-resolution projections that are more relevant to the 
spatial scales used to assess impacts to a given species (see Glick et 
al. 2011, pp. 58-61). The effects of climate change on coastal wetlands 
could be significant if sea level rises. Changes in precipitation 
patterns and warmer temperatures can likewise have detrimental effects 
on wetland function (Mitsch and Gosselink 2007, p. 313). Climate-linked 
amphibian population declines in Puerto Rico have been explained by a 
possible synergistic interaction between drought and the pathological 
effect of the chytrid fungus (Burrowes et al. 2004, p. 141) (see Factor 
C discussion). While we do not have specific information for the 
coqu[iacute] llanero and its habitat, information in the literature 
suggests that changes in environmental conditions that may result from 
climate change can influence the spread of nonnative, invasive species; 
fire; and precipitation levels, thereby potentially impacting the 
coqu[iacute] llanero.
Human Access or Use
    Although we currently do not have any information on the visitor 
use of the wetland where the coqu[iacute] llanero is known to occur, 
R[iacute]os-L[oacute]pez (2009, p. 3) suggests that visitation for 
educational, research, or recreational purposes may have significant 
impact on the unique vegetation assemblage of the wetland. These 
activities could result in vegetation destruction from the development 
of research transects and observation trails. Up to a 4-month delay of 
vegetation regeneration was documented after a transect was established 
for these activities and up to an 8-month delay of vegetation 
regeneration after a helicopter hovered approximately 30 ft (9 m) above 
a section of the wetland. Afterwards, short-term results included 
reduced calling by male coqu[iacute] llanero and invasion by another 
edge-associated coqu[iacute] species, Eleutherodactylus antillensis, on 
the bent vegetation that had formed a raft-like area (R[iacute]os-
L[oacute]pez 2009, p. 3). However, because the wetland area is 
generally closed to visitors and research limited and only by permit, 
human impact from these activities is expected to be minimal.
    Therefore, we conclude that human access or use is currently not a 
significant threat to the coqu[iacute] llanero and its habitat.
Summary of Factor E
    In summary, the coqu[iacute] llanero may be threatened by a variety 
of natural and manmade factors that may affect the continued existence 
of the species. The primary natural or manmade factors affecting the 
species are its highly specialized ecological requirements, which 
exacerbate the threats posed by other factors to the coqu[iacute] 
llanero, and competition with other coqu[iacute] species for egg-laying 
sites. Other potential threats that may affect the species are landfill 
leachate pollution, the use of herbicides, the threat of fire to the 
species' habitat, and changes in environmental conditions resulting 
from climate change. We determined that human access or use is not 
currently a significant threat to the coqu[iacute] llanero and its 
habitat. Based on the best available information, we conclude that the 
coqu[iacute] llanero may be threatened by other natural or manmade 
factors affecting its continued existence. Factors including the 
coqu[iacute] llanero's highly specialized ecological requirements, 
landfill leachate pollution, the use of herbicides, brush fires, 
competition, and environmental effects resulting from climate change 
are potential threats that may be expected to increase in the future 
depending on activities surrounding the species' habitat, placing the 
coqu[iacute] llanero at risk.
Cumulative Impacts
    Some of the threats discussed in this finding could work in concert 
with one another to cumulatively create situations that potentially 
impact coqu[iacute] llanero beyond the scope of the combined threats 
that we have already analyzed.
Summary of Factors
    The main factors from section 4(a)(1) of the Act that threaten 
coqu[iacute] llanero are Factors A, C, and E. The primary threat to the 
species is from habitat modification (Factor A) in the form of urban 
development and ongoing threats of habitat destruction and 
modification. Predation may also present a current threat to the 
coqu[iacute] llanero, particularly at the dryer edges of the wetland, 
and its isolation makes it particularly susceptible to disease and 
predation (Factor C). Other natural or manmade factors affecting its 
continued existence, particularly its specialized ecological 
requirements, also may be threats to the species (Factor E). Further, 
there are no existing regulatory mechanisms in place that address the 
threats to the species or its habitat (Factor D). These factors pose

[[Page 60789]]

imminent threats to the species because they are currently occurring. 
Depending on the intensity and immediacy of such threats, these 
factors, either by themselves or combined, are operative threats that 
act on the species and its habitat.

Determination

    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' We have carefully assessed the best 
scientific and commercial information available regarding the past, 
present, and future threats to the coqu[iacute] llanero, and have 
determined that the continued existence of the coqu[iacute] llanero is 
threatened by urban development and associated activities, changes in 
hydrology, surface and ground pollution, use of herbicides, invasion of 
nonnative species, predation, climate change, brush fires, and 
competition. Significant threats are occurring now and are likely to 
continue in the foreseeable future, at a high intensity, and across the 
species' limited range and not limited to or concentrated in any 
significant portion of its range; therefore, we have determined the 
species is currently on the brink of extinction. Because these threats 
are placing the species in danger of extinction now and not only at 
some point in the foreseeable future, we find this species meets the 
definition of an endangered species, not a threatened species. Hence, 
on the basis of the best available scientific and commercial 
information, we determined the coqu[iacute] llanero as an endangered 
species in accordance with sections 3(6) and 4(a)(1) of the Act.

Significant Portion of the Range

    We evaluated the current range (one known population occupying 
approximately 615 acres (248.8 ha) of wetland) of the coqu[iacute] 
llanero to determine if there is any apparent geographic concentration 
of potential threats for the species. The coqu[iacute] llanero is 
highly restricted in its range and the threats occur throughout its 
range. We considered the potential threats due to urban development, 
changes in hydrology, surface and ground pollution, invasion of 
nonnative species, brush fires, competition, predation, the inadequacy 
of existing regulatory mechanisms, chemical contaminants, and climate 
change. We found no concentration of threats because of the species' 
limited and curtailed range, and the uniformity of the threats 
throughout its entire range. Having determined that the coqu[iacute] 
llanero is in danger of extinction throughout its entire range, it is 
not necessary to evaluate whether there are any significant portions of 
its range. Therefore, we find that factors affecting the species are 
essentially uniform throughout its range, indicating no portion of the 
range of the species warrants further consideration of possible 
endangered or threatened species status under the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and requires that recovery actions be carried out for all listed 
species. The protection required by Federal agencies and the 
prohibitions against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five 
factors that control whether a species remains endangered or may be 
downlisted or delisted, and methods for monitoring recovery progress. 
Recovery plans also establish a framework for agencies to coordinate 
their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (comprised of species 
experts, Federal and State agencies, nongovernment organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Caribbean Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribal, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Once this species is listed (see DATES), funding for recovery 
actions will be available from a variety of sources, including Federal 
budgets, State programs, and cost share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, under section 6 of the Act, the Commonwealth of Puerto 
Rico will be eligible for Federal funds to implement management actions 
that promote the protection or recovery of the coqu[iacute] llanero. 
Information on our grant programs that are available to aid species 
recovery can be found at: http://www.fws.gov/grants.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of

[[Page 60790]]

proposed critical habitat. If a species is listed subsequently, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or destroy or adversely modify its 
critical habitat. If a Federal action may affect a listed species or 
its critical habitat, the responsible Federal agency must enter into 
formal consultation with the Service.
    Federal agency actions within the species habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include: Federal activities that may affect the coqu[iacute] 
llanero including, but not limited to, the carrying out or the issuance 
of permits for discharging fill material on wetlands for road or 
highway construction; installation of pipelines; development of 
residential, tourism, or commercial facilities; farming; channeling or 
stream alterations; discharge of contaminated waters; wastewater 
facility development; and renewable energy projects. Additional detail 
is provided below:
    (1) Actions that would significantly alter the structure and 
function of the wetland. Such actions or activities could include, but 
are not limited to, the filling or excavation of the wetland. The 
filling or excavation of the wetland would alter the hydrology of the 
site and would destroy the vegetation where the coqu[iacute] llanero 
spends all of its life stages. The filling or excavation of wetlands 
could result in the direct mortality of the species because it will 
destroy the only known population and locality where the coqu[iacute] 
llanero is found.
    (2) Actions that would significantly alter the vegetation structure 
in and around the wetland. Such actions or activities could include, 
but are not limited to, vegetation cutting for expanding or maintaining 
roads, construction of new roads, and development of new residences or 
commercial establishments. The alteration of the vegetation structure 
may change the wetland characteristics by changing the microhabitat 
(e.g., change in temperature and humidity levels) and could result in 
direct mortality of individuals and egg clutches through desiccation 
from sun exposure.
    (3) Actions that may alter the natural flow of water. Such actions 
or activities could include, but are not limited to, changes in the 
limestone hills located to the south of the wetland. The alteration of 
these limestone hills may affect the integrity of the wetland (e.g., 
change in hydrology, replenishment of water, sedimentation deposition 
or erosion). These activities could reduce the wetland composition, 
including the vegetation, and could result in direct or cumulative 
adverse effects to the species.
    (4) Actions that would significantly degrade water quality (for 
example, contaminants and excess nutrients). Such actions or activities 
could include, but are not limited to, landfill discharges, heated 
effluents into surface water or connected groundwater, and the spill of 
petroleum-based products by the nearby go-kart race track. These 
activities could alter water conditions that can consequently alter the 
plant composition in the wetland by exposing the species to more 
competition and result in direct or cumulative adverse effects to the 
species and its life cycle.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions of section 9(a)(2) of the Act, codified at 
50 CFR 17.21 for endangered wildlife, in part, make it illegal for any 
person subject to the jurisdiction of the United States to take 
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect; or to attempt any of these), import, export, ship 
in interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. 
Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also 
illegal to possess, sell, deliver, carry, transport, or ship any such 
wildlife that has been taken illegally. Certain exceptions apply to 
agents of the Service and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species, and at 17.32 for threatened species. With 
regard to endangered wildlife, a permit must be issued for the 
following purposes: for scientific purposes, to enhance the propagation 
or survival of the species, and for incidental take in connection with 
otherwise lawful activities.

Critical Habitat Designation for Coqu[iacute] Llanero

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided under 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 prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) requires consultation on Federal actions that 
may affect critical habitat. The designation of critical habitat does 
not affect land ownership or establish a refuge, wilderness, reserve, 
preserve, or other conservation area. Such designation does not allow 
the government or public to access private lands. Such designation does 
not require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner seeks or requests 
Federal agency funding or authorization for an action that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7(a)(2) would apply, but even in the event of a destruction or 
adverse modification finding, Federal action agency's and the 
applicant's obligation is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the 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

[[Page 60791]]

essential to the conservation of the species and (2) which may require 
special management considerations or protection. For these areas, 
critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, those physical or 
biological features that are essential to the conservation of the 
species (such as space, food, cover, and protected habitat). In 
identifying those physical and biological features within an area, we 
focus on the principal biological or physical constituent elements 
(primary constituent elements such as roost sites, nesting grounds, 
seasonal wetlands, water quality, tide, soil type) that are essential 
to the conservation of the species. Primary constituent elements are 
those specific elements of the physical or biological features that 
provide for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the 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. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (Section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion 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 insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical and Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and the regulations at 50 CFR 424.12, in determining which areas within 
the geographical area occupied at the time of listing (2012) to 
designate as critical habitat, we consider the physical and biological 
features essential to the conservation of the species which may require 
special management considerations or protection. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the coqu[iacute] llanero from studies of this species' habitat, 
ecology, and life history as described in the Critical Habitat section 
of the proposed rule to designate critical habitat published in the 
Federal Register on October 12, 2011 (76 FR 63420), and in the 
information presented below.
    Unfortunately, little is known of the specific habitat requirements 
for coqu[iacute] llanero other than it requires a palustrine herbaceous 
wetland and a specific vegetation composition. To identify the physical 
and biological needs of the species, we have relied on current 
conditions at locations where the species exists and the limited 
information available on this species. We have determined that 
coqu[iacute] llanero requires the following physical or biological 
features.

Space for Individual and Population Growth and for Normal Behavior

    Coqu[iacute] llanero is restricted to a palustrine (freshwater) 
herbaceous wetland located on both Commonwealth and Federal lands in 
the Sabana Seca Ward, Toa Baja, Puerto Rico. The Service has estimated 
the palustrine herbaceous wetland area occupied by the species to cover 
approximately 615 ac (249 ha).
    These wetland areas are within the subtropical moist forest life 
zone (Ewel and Whitmore 1973, p. 72). The variables used to delineate 
any given life zone are mean annual precipitation and mean annual 
temperature. The life zones and associations of which they are composed 
only define the potential vegetation or range of vegetation types that 
might be found in an area (Ewel and Whitmore 1973, p. 5). The mean 
annual precipitation for Puerto Rico is about 55 to 65 in (21.7 to 25.6 
cm) a year (NOAA Web site 2009, http://www.srh.noaa.gov/sju/?n=climo_annual01), and the temperature is 79.4[emsp14][deg]F (26.3 [deg]C) 
(Geo-Marine 2002, p. 2-1). The palustrine herbaceous wetland is where 
the non-tidal water regime may be seasonal to permanently flooded (NWI

[[Page 60792]]

Maps, Cowardin et al.1979, pp. 10-22) and found at low elevations up to 
approximately 56 ft (17 m) (R[iacute]os-L[oacute]pez and Thomas 2007, 
p. 61). As of today, the coqu[iacute] llanero has not been found in 
areas outside the marsh. However, based on current knowledge, it 
appears to be an obligate marsh-dwelling species (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 62).
    The current herbaceous vegetation in these wetlands consists of 
Blechnum serrulatum and Thelypteris interrupta (ferns), Sagittaria 
lancifolia (bulltongue arrowhead), Cyperus sp. (flatsedges), Eleocharis 
sp. (spike rushes), and vines and grasses. Although several of these 
plants have been documented at other sites in Puerto Rico, the 
vegetation composition (combination and abundance of each plant) is a 
unique ecosystem not found in other places in Puerto Rico (PRDNER 
2007b, p. 11). Studies indicate that the coqu[iacute] llanero perch, 
sit, or call on or from the herbaceous vegetation and mainly on the 
ferns (R[iacute]os-L[oacute]pez and Thomas 2007, p. 60; PRDNER 2007b, 
p. 9). Wetlands are maintained by water quantity, channel slope, and 
sediment input to the system through periodic flooding. Changes in one 
or more of these parameters can result in changes in the wetland 
function and vegetation composition, with serious effects to 
coqu[iacute] llanero. In addition, hydrology (the occurrence, 
circulation, and distribution of waters) is also an important factor to 
the wetland because it will connect areas that are separated by roads 
and other structures, hence making available nearby habitats for 
coqu[iacute] llanero.
    Hydrology connects the areas of currently known habitat of the 
species. Although the areas have several manmade drainage ditches used 
for agricultural purposes in the past, these have not modified the 
watershed boundaries (G.L. Morris Eng. 2007, p. 3; PRDNER 2007b, p. 
19). The topography of the Sabana Seca-Ingenio area, in general, has an 
east to west inclination where the surface and ground water from the 
limestone hills to the south of PR Road-867 discharges into the 
wetland, and eventually goes north and northwest connecting to 
Ca[ntilde]o Campanero, and then to Cocal River, ending in the Atlantic 
Ocean (PRDNER 2007b, p. 15). Factors that might threaten the water 
quality or the water flow of these drainages may affect the currently 
known population of coqu[iacute] llanero.
    Hydrologic conditions are important for the maintenance of a 
wetland structure and function. Hydrology includes the transport of 
energy (water) and nutrients to and from wetlands through pathways such 
as precipitation, surface run-off, groundwater, tides, and flooding 
rivers. This could affect species composition and richness, primary 
conductivity (salinity), organic accumulation, and nutrient cycling 
within the wetlands (Mitsch and Gosselink 2007, p. 107). Wetlands are 
sometimes referred to as ``the kidneys of the landscape'' because they 
filter the downstream waters and waste received from natural and human 
sources (Mitsch and Gosselink 2007, p. 4). Polluted waters that enter 
the wetland through its hydrology may affect the habitat of 
coqu[iacute] llanero. For example, an increase in the current polluted 
waters from the continued operation of the landfill pose a threat to 
the species and its habitat because underground contaminated waters and 
leachates may change water quality, soils, and consequently plant 
composition in the wetland. In addition, nonpoint source run-off from 
adjacent land surfaces (e.g., pesticides, herbicides, fertilizers, and 
sediments), and random spills or unregulated discharge events (e.g., 
petroleum-based substances from the nearby go-kart race track) may 
threaten the species and its habitat (see discussion under Factor A 
above). This could be particularly harmful during drought conditions 
when water flows are low and pollutants are more concentrated.
    On the basis of the information above, the palustrine herbaceous 
wetland located in the Sabana Seca-Ingenio area provides space for 
normal behaviors of the coqu[iacute] llanero. In addition, hydrology is 
essential to the maintenance, structure, and function of the wetland. 
The water quality and water flow that discharges onto the wetland 
allows the growth of the required vegetation composition on which the 
coqu[iacute] llanero depends for normal behavior, growth, and viability 
during most of its life stages. Therefore, we have identified the 
palustrine herbaceous wetland, and particularly the hydrology and 
vegetation of this area, to be physical or biological features for this 
species.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Although the life history of the coqu[iacute] llanero has not been 
studied, the life histories of other amphibians in the 
Eleutherodactylus genus indicate that amphibians are opportunistic 
feeders where diets reflect the availability of food of appropriate 
size (Duellman and Trueb 1994, p. 229; Joglar, 2005, p. 73). The 
wetland provides a variety of food sources (insects) for the 
coqu[iacute] llanero. Food availability might be affected by water 
quality and contamination of the wetland. Contaminated waters may 
change water quality, soils, and consequently plant composition in the 
wetland. These changes can open an opportunity to other species (plants 
or animals) to overshadow the current species present in the wetland, 
forcing the coqu[iacute] llanero to compete for available food sources 
or to move to other less competitive sites.
    Therefore, based on the information above, we identify food 
availability provided by the palustrine herbaceous wetland to be a 
physical or biological feature for this species.

Cover or Shelter

    The coqu[iacute] llanero appears to be an obligate marsh-dwelling 
species because it has not been found in areas outside of the marsh 
(R[iacute]os-L[oacute]pez and Thomas 2007, p. 62). The palustrine 
herbaceous wetland provides cover and shelter for coqu[iacute] llanero. 
The vegetation found in the palustrine wetland consists of herbaceous 
emergent vegetation characterized by erect, rooted herbaceous 
hydrophytes usually dominated by perennial plants (Cowardin et al. 
1979, p. 19), like ferns, Sagittaria lancifolia, flatsedges, spike 
rushes, vines, and grasses (R[iacute]os-L[oacute]pez and Thomas 2007, 
p. 60; PRDNER 2007b, p. 9). Studies on the species show normal behavior 
(e.g., perching, sitting, or calling) occurs on the herbaceous 
vegetation (R[iacute]os-L[oacute]pez and Thomas 2007, p. 60; PRDNER 
2007b, p. 9) (see ``Space for Individual and Population Growth and for 
Normal Behavior'').
    Therefore, based on the information above, we identify the 
vegetation (i.e., plant species, structure, and composition) of the 
palustrine herbaceous wetland located in the Sabana Seca-Ingenio area 
to be a physical or biological feature for this species.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Callings or sound production by animals is a method of advertising 
the presence of one individual to others of the same species. It is 
common in animals that have low density dispersal and in animals that 
jump or fly. Anurans (any amphibian of the Order Anura, comprising the 
frogs and toads) have well-developed vocal structures capable of 
producing sounds that serve to attract mates, advertise territories, or 
express distress (Duellman and Trueb 1994, p. 87). It has been 
documented that the coqu[iacute] llanero uses the herbaceous vegetation 
in the wetland, especially the ferns, as calling areas.

[[Page 60793]]

    In addition, it has been determined that the species deposits their 
egg clutches only in the leaf axis of Sagittaria lancifolia, and it 
appears that the species does not provide parental care (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 60; PRDNER 2007b, pp. 5, 9). Also, the 
coqu[iacute] llanero has direct development (embryos do not have an 
intermediate phase like tadpoles or aquatic larvae) where they develop 
directly to terrestrial amphibians (miniatures of the adults); hence 
the vegetation provides the only protection that egg clutches and the 
offspring might receive.
    Therefore, based on the information above, we identify the 
herbaceous vegetation, especially Sagittaria lancifolia and the ferns, 
of the palustrine wetland to be an important physical or biological 
feature for this species.

Habitats Protected From Disturbance or Representative of the 
Historical, Geographical, and Ecological Distributions of the Species

    The palustrine herbaceous wetland area where the coqu[iacute] 
llanero currently exists consists of Federal lands, part of which are 
lands previously managed by the U.S. Naval Security Group Activity 
(NSGA) and areas owned by the Commonwealth of Puerto Rico (University 
of Puerto Rico, PR Land Authority). The area previously managed by the 
NSGA had restricted access to people; thus, the coqu[iacute] llanero 
had experienced little disturbance from the military operations. The 
NSGA was managed as a high-frequency, direction-finding facility and 
provided communications and related support, including communications 
relay, communications security, and communication manpower assistance, 
to components of the U.S. Navy and other Department of Defense (DOD) 
elements (Geo-Marine 2002, p. 1-3). All DOD installations have to 
complete and implement an integrated natural resources management plan 
(INRMP) to ensure that all natural resources on the site are managed. 
However, the NSGA ceased operations in 2005, when technological 
advances and changes eliminated the need to continue the operations at 
the site. The area is no longer managed as a military base, and the 
INRMP implementation does not apply anymore. At present, the area is 
proposed for transfer or disposal, or a combination of both, and is 
currently leased to a private party to sell the area for private 
development (see Exemptions below).
    In 2007, the PRDNER designated Essential Critical Natural Habitat 
for the coqu[iacute] llanero that includes the palustrine herbaceous 
wetland and the limestone hills found south of the wetland area. As 
part of the designation process, the PRDNER contracted a third party to 
conduct a study to determine the surface water drainage pattern of the 
area. The study concluded that the limestone hills located south of the 
palustrine wetland contribute to the hydrology that maintains the 
wetland (PRDNER 2007b, p. 28). However, the limestone hills runoff is 
not the only water source feeding the wetland. Furthermore, it is 
unknown to what extent the surface water patterns and quantity are 
essential to maintain the actual conditions of the wetland (i.e., 
PCEs), or if there are other water sources (e.g., groundwater) with 
equal or more significant impact on the wetland than surface water. 
Although the hills might be important for contributing to the hydrology 
of the wetland, they do not provide habitat for the coqu[iacute] 
llanero. In addition, current information indicates the limestone hills 
will be protected in perpetuity and managed by the University of Puerto 
Rico for conservation because other Federal and Commonwealth listed 
species occur in that habitat.
Primary Constituent Elements
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the coqu[iacute] llanero in areas occupied at the time 
of listing (2012), focusing on the features' primary constituent 
elements. Primary constituent elements are those specific elements of 
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to the coqu[iacute] llanero are:
    (1) Primary Constituent Element 1--Palustrine herbaceous wetland. 
Palustrine emergent persistent wetlands that are seasonally to 
permanently flooded. Ocean-derived salts need to be less than 0.5 parts 
per thousand (ppt) salinity.
    (2) Primary Constituent Element 2--Vegetation and vegetation 
composition of the palustrine herbaceous wetland. Emergent vegetation 
characterized by erect, rooted herbaceous hydrophytes usually dominated 
by perennial plants like ferns, Sagittaria lancifolia, flatsedges, 
spike rushes, vines, and grasses. In addition to the combination of 
vegetation, at least 25 percent of the vegetation should be ferns and 
S. lancifolia.
    (3) Primary Constituent Element 3--Hydrology. A hydrologic flow 
regime (i.e., the pathways of precipitation, surface run-off, 
groundwater, tides, and flooding of rivers and canals [manmade 
ditches]) that maintains the palustrine herbaceous wetland.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing (2012) contain features that are essential to the 
conservation of the species and which may require special management 
considerations or protection.
    We find that the essential features within the area occupied at the 
time of listing (2012) may require special management consideration or 
protection due to threats to the coqu[iacute] llanero and or its 
habitat. The area is adjacent to roads, homes, or other manmade 
structures in which various activities may affect one or more of the 
primary constituent elements. The features essential to the 
conservation of this species may require special management 
considerations or protection to reduce the following threats or 
potential threats that may result in changes in the composition and 
abundance of vegetation inside the wetland: Fill of wetlands for 
development projects, degradation of water quality from underground 
contaminated waters and leachates from the nearby landfill, residential 
uses (e.g., use of pesticides and fertilizers), and road maintenance 
(e.g., use of herbicides).
    Management activities that could ameliorate these threats or 
potential threats include, but are not limited to: Establishing 
permanent conservation easements or land acquisition to protect the 
species on private lands; establishing conservation agreements on 
private and Federal lands to identify and reduce threats to the species 
and its features; minimizing habitat disturbance, fragmentation, and 
destruction; preventing the destruction of the limestone hills that 
supply water to the wetland; minimizing water quality degradation of 
the wetland; and minimizing the effects of fires and droughts.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific and commercial data available to designate

[[Page 60794]]

critical habitat. We reviewed available information pertaining to the 
habitat requirements of this species. In accordance with the Act and 
its implementing regulation at 50 CFR 424.12(e), we considered whether 
designating additional areas--outside those currently occupied as well 
as those occupied at the time of listing--is necessary to ensure the 
conservation of the species. Although additional (not occupied) habitat 
has been recommended to be added to the actual proposed designation, we 
are not including additional acreage outside the geographical area 
occupied by the species. At this time, no scientific information is 
available as to whether or not adjacent upland areas are considered 
essential for the continued existence of primary constituent elements 
of the species.
    We have defined occupied critical habitat as palustrine emergent 
persistent wetland with an herbaceous vegetation composition dominated 
by perennial plants like ferns, Sagittaria lancifolia, flatsedges, 
spike rushes, vines and grasses occupied by the coqu[iacute] llanero at 
the time of listing. We used information from site visits to the area, 
researchers, reports from the PRDNER, and consultants to identify the 
specific locations occupied by the coqu[iacute] llanero. All occurrence 
records of the coqu[iacute] llanero were plotted on maps in a 
geographic information system as points and polygons. Once we 
determined which area of the wetland was occupied, we focused on aerial 
photographs of the area and the NWI maps to delineate the palustrine 
emergent persistent wetlands used by the coqu[iacute] llanero. We 
estimated the area using the limits of the boundaries of the palustrine 
emergent persistent wetland.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack PBFs for the coqu[iacute] llanero. 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 final rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands will not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action would affect the 
physical and biological features in the adjacent critical habitat.
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain sufficient 
physical or biological features to support life-history processes 
essential for the conservation of the species.
    The critical habitat designation is defined by the map, as modified 
by any accompanying regulatory text, presented at the end of this 
document in the rule portion. We include more detailed information on 
the boundaries of the critical habitat designation in the preamble of 
this document. We will make the coordinates or plot points or both on 
which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2009-0022, on our Internet 
sites (http://www.fws.gov/caribbean/es/Endangered-Main.html ), and at 
the field office responsible for the designation (see FOR FURTHER 
INFORMATION CONTACT above).

Final Critical Habitat Designation

    We are designating one unit as critical habitat for the 
coqu[iacute] llanero. The critical habitat area we describe below 
constitutes our best assessment at this time of areas that meet the 
definition of critical habitat. The one area we are designating as 
critical habitat is Sabana Seca, and it is occupied by the coqu[iacute] 
llanero at the time of listing (2012) and contains sufficient physical 
and biological features to support life-history processes essential for 
the conservation of the species.
    We present a brief description of the unit, and reasons why it 
meets the definition of critical habitat for the coqu[iacute] llanero, 
below.

Sabana Seca Unit

    The unit includes approximately 615 ac (249 ha) located south of 
State Road PR-867, west of Ram[oacute]n R[iacute]os Rom[aacute]n 
Avenue, east of Jos[eacute] Juli[aacute]n Acosta Road, and north of the 
limestone hills located north of Highway PR-22 in the municipality of 
Toa Baja, Puerto Rico. This unit contains a palustrine herbaceous 
wetland with emergent vegetation that includes ferns, Sagittaria 
lancifolia, flatsedges, spike rushes, vines, and grasses. This unit is 
known to be currently occupied (that is, occupied at the time of 
listing) (R[iacute]os-L[oacute]pez and Thomas 2005; PRDNER 2007b; 
Service 2011, unpublished data). All the essential physical and 
biological features are found within the unit. The presence of the 
species and the physical and biological features at the site were 
confirmed by the Service during site visits conducted in January and 
March of 2011.
    The essential features within this unit may require special 
management considerations or protection to insure maintenance or 
improvement of, and to address any changes that could affect, the 
existing palustrine herbaceous wetland, such as filling in of the 
wetland to develop the land; water diversion or water withdrawal; 
alteration of water hydrology or degradation of water quality; and 
changes in vegetation composition that might be caused by changes in 
hydrology or development, inappropriate management practices on the 
farmlands, or contamination from the underground polluted waters and 
leachates from the landfill.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action 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.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the provisions of the Act, we determine 
destruction or adverse modification on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would continue to serve its intended conservation role for the 
species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under

[[Page 60795]]

section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit 
from the Service under section 10 of the Act) or that involve some 
other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local, or 
private lands that are not federally funded or authorized, do not 
require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect 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 Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species, or retain those physical and 
biological features that relate to the ability of the area to 
periodically support the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical and 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the coqui llanero. As 
discussed above, the role of critical habitat is to support the life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore should result 
in consultation for the coqu[iacute] llanero include, but are not 
limited to:
    (1) Actions that would significantly alter the structure and 
function of the wetland. Such actions or activities could include, but 
are not limited to, the filling or excavation of the wetland. The 
filling or excavation of the wetland could alter the hydrology of the 
site and destroy or remove the vegetation where the only known 
population of the coqu[iacute] llanero is found. The filling or 
excavation of wetlands could result in elimination or alteration of the 
coqu[iacute] llanero's habitat necessary for all life stages of the 
species.
    (2) Actions that would significantly alter the vegetation structure 
in and around the wetland. Such actions or activities could include, 
but are not limited to, removing or cutting the vegetation for 
expanding or maintaining roads, construction of new roads, development 
of new or maintenance of residences, and development of commercial 
establishments. The alteration of the vegetation structure may change 
the wetland characteristics by changing the microhabitat (e.g., change 
in temperature and humidity levels) and thereby negatively affect 
whether the coqu[iacute] llanero is able to complete all normal 
behaviors and necessary life functions or may allow invasion of 
competitors or predators.
    (3) Actions that may alter the natural flow of water to the 
wetlands occupied by the coqu[iacute] llanero. Such actions or 
activities could include, but are not limited to, alteration to the 
adjacent lands that may affect the integrity of the wetland (e.g., 
change in hydrology, replenishment of water, sedimentation deposition 
or erosion). These activities could reduce the natural cycling and 
functioning of the wetland; change its composition, including the 
vegetation types the species depends on; or result in direct or 
cumulative adverse effects to the species from the alteration of the 
wetland's hydrology.
    (4) Actions that would significantly degrade water quality (for 
example, actions that would add contaminants and excess nutrients). 
Such actions or activities could include, but are not limited to, 
landfill discharges or leachates from landfill, heated effluents into 
surface water or connected groundwater, or the spill of petroleum-based 
products at the nearby go-kart race track. These activities could alter 
water conditions that can consequently alter the plant composition in 
the wetland and result in less suitable habitat for the coqu[iacute] 
llanero or the opening of the wetland to the coqu[iacute] llanero 
competitors.

Exemptions

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

    The Sikes Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
     An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
     A statement of goals and priorities;
     A detailed description of management actions to be 
implemented

[[Page 60796]]

to provide for these ecological needs; and
     A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    The majority of the designated critical habitat is located in a 
closed military installation formerly managed by the NSGA, and the land 
had an INRMP (Geo-Marine 2002, pp. 1-5-4), which provided for the 
conservation of the natural resources inside the installation. The 
property was declared excess to the Navy in 2001, and the installation 
ceased operations in 2005, before the discovery of the species. 
Currently, the land is being leased to a private entity by the Military 
Housing Privatization Initiative as part of the National Defense 
Authorization Act for Fiscal Year 1996, Public Law 104-106, section 
2801, 110 Stat. 186 (10 U.S.C. 2871-2885), as amended. Currently there 
is no INRMP in place that would provide a benefit to coqu[iacute] 
llanero occurring in habitats within or adjacent the closed NSGA of 
Sabana Seca.
    Therefore, we are not exempting these lands from this final 
designation of critical habitat for the coqu[iacute] llanero under 
section 4(a)(3)(B)(i) of the Act.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. The statute on its face, as well as the legislative history, 
is clear that the Secretary has broad discretion regarding which 
factor(s) to use and how much weight to give to any factor in making 
that determination.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise his discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
identify and consider these potential economic impacts, we evaluate 
those impacts which are determined to be probable and incremental as a 
result of the proposed critical habitat designation. We announced the 
availability our evaluation of the probable incremental impacts of the 
designation of critical habitat for coqu[iacute] llanero in the Federal 
Register on June 16, 2012, (77 FR 36457) and opened a 30-day public 
comment period on the proposed rule and our evaluation.
    In our evaluation, we used our October 12, 2011, Incremental 
Effects Memorandum to identify potential effects associated with the 
following activities: (1) Species and habitat management; (2) 
residential, commercial, or industrial development; (3) agriculture; 
(4) construction of new, or maintenance of, roads and highways; (5) 
maintenance (including vegetation removal or alteration) of drainage 
ditches; (6) construction or maintenance of recreational facilities; 
(7) construction and maintenance of telecommunication towers; (8) 
renewable wind power energy; (9) gas pipeline; (10) closure of 
landfill; and (11) transfer of Federal lands (Navy).
    The intent of the economic evaluation was to consider the potential 
economic impacts of all reasonably likely conservation efforts for the 
coqu[iacute] llanero. The economic impact of the critical habitat 
designation is analyzed by comparing scenarios both ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, 
considering protections already in place for the species (e.g., under 
the Federal listing and other Federal, State, and local regulations). 
The baseline, therefore, represents the costs incurred regardless of 
whether critical habitat is designated. The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts are those not expected to 
occur absent the designation of critical habitat for the species. In 
other words, the incremental costs are those attributable solely to the 
designation of critical habitat above and beyond the baseline costs; 
these are the costs we consider when evaluating the potential economic 
impacts resulting from the final designation of critical habitat.
    If a Federal action may affect a listed species or its designated 
critical habitat, the action agency is required pursuant to section 
7(a)(2) of the Act, and its implementing regulations, to enter into 
consultation with the Service. In consultation, the Service must 
analyze whether the proposed action is likely to jeopardize the 
continued existence of the species or adversely modify or destroy 
critical habitat. Many conservation efforts for listed species result 
from this consultation process and we, therefore, focus our efforts on 
estimating costs on this process. We clarified the difference between 
the jeopardy and adverse modification standards for the coqu[iacute] 
llanero critical habitat. Because the designation of critical habitat 
for coqu[iacute] llanero is being proposed concurrently with the 
listing, it is more 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 and biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species; (2) the current range of the coqu[iacute] llanero is limited 
to the specific area identified as critical habitat; and (3) any 
actions that may affect the species or its habitat would also affect 
designated critical habitat. The Incremental Effects Memorandum

[[Page 60797]]

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 
potential incremental economic impacts of this designation of critical 
habitat.
    Following the close of the comment period, we re-evaluated the 
potential economic impacts of the designation taking into consideration 
the public comments and any new information. On the basis of our 
further evaluation, public comment and new information we confirmed 
that potential incremental impacts resulting from the designation are 
anticipated to be limited due to the reasons stated above. We 
identified that as a result of the listing and designation of critical 
habitat, there may be an increase in the number of technical reviews 
and informal and formal consultations with Federal agencies under 
section 7 of the Act, specifically an increase of 23 technical reviews 
and consultations in Toa Baja. However, based on the consultation 
history associated with other listed species, the majority of the 
reviews were technical assistance and only a minority resulted in 
informal or formal consultations. We anticipate that the situation for 
coqu[iacute] llanero will be comparable and that most effects (e.g., 
project modifications) would result from the species listing as an 
endangered species. Therefore, we expect that the incremental impacts 
due to the designation would be limited to administrative costs to 
address an adverse modification analysis in these reviews and 
consultations with Federal action agencies.
    On the basis of our evaluation of potential economic impacts that 
may result from the designation of critical habitat for coqu[iacute] 
llanero, we have found that incremental impacts and therefore costs 
would be limited to administrative costs to address adverse 
modification in technical reviews, informal and formal consultations. 
If we assume approximately the cost to address critical habitat in a 
technical review or consultation to be $10,000 (an approximate average 
for a comparable situation) and an increase of 23 technical reviews and 
consultations resulting from the listing and critical habitat, then the 
upper bound of potential economic impacts resulting from the 
designation would be approximately $230,000. This cost would be borne 
primarily by the Federal action agencies involved in the technical 
review or consultation and with the Service and would be spread across 
the reviews and consultations. As a result, we do not find that there 
would be disproportionate economic impacts resulting from this 
designation or that effects of this designation approach the $100 
million threshold for being an economically significant rule under 
Executive Order 12866. Consequently, the Secretary is not exerting his 
discretion to exclude any areas from this designation of critical 
habitat for the coqu[iacute] llanero based on potential economic 
impacts.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that most of the lands within the designation of critical 
habitat for the coqu[iacute] llanero are owned by the Department of 
Defense. These lands are no longer used by the Department of Defense 
and are for sale through a property management agency. Therefore, we 
anticipate no impact on national security. Consequently, the Secretary 
is not exerting his discretion to exclude any areas from this final 
designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any habitat conservation plans (HCPs) or 
other management plans for the area, or whether there are conservation 
partnerships that would be encouraged by designation of, or exclusion 
from, critical habitat. In addition, we look at any tribal issues, and 
consider the government-to-government relationship of the United States 
with tribal entities. We also consider any social impacts that might 
occur because of the designation.
    In preparing this final rule, we have determined that there are 
currently no HCPs or other management plans for the coqu[iacute] 
llanero, and the final designation does not include any tribal lands or 
trust resources. We anticipate no impact on tribal lands, partnerships, 
or HCPs from this critical habitat designation. Accordingly, the 
Secretary is not exercising his discretion to exclude any areas from 
this final designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended RFA to require 
Federal agencies to provide a certification statement of the factual 
basis for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities. In this final rule, 
we are certifying that the critical habitat designation for the 
coqu[iacute] llanero will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and

[[Page 60798]]

town governments that serve fewer than 50,000 residents; as well as 
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 consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., 
residential, commercial or industrial development, along with the 
accompanying infrastructure associated with such projects, including 
construction and maintenance of roads and drainage ditches, development 
of renewable wind power energy, gas pipeline, closure of landfill and 
transfer of Federal lands). We apply the ``substantial number'' test 
individually to each industry to determine if certification is 
appropriate. However, the SBREFA does not explicitly define 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the coqu[iacute] llanero. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities (see Application 
of the ``Adverse Modification'' Standard section).
    In our evaluation of the potential economic impacts that may result 
from the proposed designation of critical habitat for the coqu[iacute] 
llanero, first we identified, in an Incremental Effects Memorandum 
dated October 12, 2011, potential incremental costs associated with the 
following categories of activity: (1) Species and habitat management; 
(2) residential, commercial, or industrial development; (3) 
agriculture; (4) construction of new, or maintenance of, roads and 
highways; (5) maintenance (including vegetation removal or alteration) 
of drainage ditches; (6) construction or maintenance of recreational 
facilities; (7) construction and maintenance of telecommunication 
towers; (8) renewable wind power energy; (9) gas pipeline; (10) closure 
of landfill; and (11) transfer of Federal lands (Navy).
    Because the designation of critical habitat for the coqu[iacute] 
llanero is occurring concurrently with the listing, it is more 
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 and biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species, (2) the current range of the coqu[iacute] llanero is limited 
to the specific area identified as critical habitat, and (3) any 
actions that may affect the species or its habitat would also affect 
designated critical habitat. The Incremental Effects Memorandum 
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 
potential incremental economic impacts of the designation of critical 
habitat.
    On the basis of our evaluation of the potential incremental 
effects, we have determined that almost all conservation-related 
efforts and activities will result from the protections afforded the 
species through State and Federal law once the species is federally 
listed. In other words, specific actions or efforts, or project 
modifications that may be recommended to conserve the species or its 
habitat, will be recommended because the species is protected under 
both State and Federal law. While it has been suggested (Vermont Law 
School, 2012) that the proposed Via Verde pipeline would adversely 
affect the coqu[iacute] llanero and its critical habitat, at this time 
the proposed alignment is not anticipated to cross or affect the 
habitat of the coqu[iacute] llanero. Only in those cases where an 
action may affect the designated critical habitat and there is a 
Federal nexus (i.e., a Federal agency that is authorizing, funding, or 
permitting the action) will there be the additional requirement that 
the Federal action agency evaluate whether the action may adversely 
modify the designated critical habitat. This additional analysis by the 
Federal action agency is considered to be an incremental effect of the 
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 will predominantly be 
administrative in nature and also will not be significant. Because, in 
this circumstance, we believe that the incremental impacts of the 
designation, and therefore the potential economic impacts, will be 
limited to these administrative actions, we have determined that this 
rule will not result in a significant economic impact in any given year 
or result in a disproportionate economic impact to any particular 
sector.
    In summary, we considered whether this designation will result in a 
significant economic effect on a substantial number of small entities. 
Based on the above reasoning and currently available information, we 
concluded that this rule will not result in a significant economic 
impact on a substantial number of small entities. Therefore, we are 
certifying that the designation of critical habitat for the 
coqu[iacute] llanero will not have a significant economic impact on a 
substantial number of small entities, and a regulatory flexibility 
analysis is not required.

Energy Supply, Distribution, or Use

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that

[[Page 60799]]

outlines nine outcomes that may constitute ``a significant adverse 
effect'' when compared to not taking the regulatory action under 
consideration.
    We do not expect the designation of this critical habitat to 
significantly affect energy supplies, distribution, or use. The Sabana 
Seca unit is located approximately 1.4 mi (2.3 km) away from the 
proposed alignment of a natural gas pipeline project. Thus, possible 
construction and operation of the proposed energy project will not be 
affected by the designation of critical habitat. Therefore, this action 
is not a significant energy action, and no Statement of Energy Effects 
is required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (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 does not apply, nor does 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. In addition, adjacent upland properties are 
owned by private entities or State partners. Therefore, a Small 
Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for the coqu[iacute] llanero in a takings implications 
assessment. As discussed above, the designation of critical habitat 
affects only Federal actions. Although private parties that receive 
Federal funding, assistance, or 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. According to the economic analysis and the 
taking implication assessment, the costs associated with the critical 
habitat designation are insignificant because virtually all of the 
costs associated are confined to an increase in workload (additional 
analysis) by the Federal action agency. The takings implications 
assessment concludes that this designation of critical habitat for the 
coqu[iacute] llanero does not pose significant takings implications for 
lands within or affected by the designation.

Federalism

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this critical habitat designation 
with appropriate State resource agencies in Puerto Rico. We received no 
comments responsive to the listing and critical habitat designation 
from a State agency except for a response from one of the peer 
reviewers who is employed by the State agency. The peer reviewer's 
comments were incorporated in this final rule (see Summary of Comments 
and Recommendations). The designation of critical habitat in areas 
currently occupied by the coqu[iacute] llanero may impose nominal 
additional regulatory restrictions to those currently in place and, 
therefore, may have little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas that contain the physical or 
biological features essential to the conservation of the species are 
more clearly defined, and the elements of the features of the habitat 
necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) will be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

[[Page 60800]]

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. This final rule uses standard property descriptions and identifies 
the elements of physical or biological features essential to the 
conservation of the coqu[iacute] llanero within the designated areas to 
assist the public in understanding the habitat needs of the species.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as endangered or 
threatened under the Act. We published a notice outlining our reasons 
for this determination in the Federal Register on October 25, 1983 (48 
FR 49244).
    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by NEPA in connection with 
designating critical habitat under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We determined that there are no tribal lands occupied by the 
coqu[iacute] llanero at the time of listing (2012) that contain the 
features essential for conservation of the species, and no tribal lands 
unoccupied by the coqu[iacute] llanero that are essential for the 
conservation of the species. Therefore, we are not designating critical 
habitat for the coqu[iacute] llanero on tribal lands.

References Cited

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

Author

    The primary author of this document is the Caribbean Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. Amend Sec.  17.11(h) by adding an entry for ``Coqu[iacute] 
llanero,'' in alphabetical order under ``AMPHIBIANS,'' to the List of 
Endangered and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                  Vertebrate population
----------------------------------------------------------     Historic range      where endangered or       Status         When     Critical   Special
            Common name                Scientific name                                  threatened                         listed    habitat     rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
            Amphibians
 
                                                                      * * * * * * *
Coqu[iacute] llanero..............  Eleutherodactylus      U.S.A. (PR)..........  Entire...............  E                     810   17.95(d)         NA
                                     juanariveroi.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, amend paragraph (d) by adding an entry for 
``Coqu[iacute] Llanero (Eleutherodactylus juanariveroi)'' in the same 
alphabetical order that this species appears in the table at Sec.  
17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
    Coqu[iacute] Llanero (Eleutherodactylus juanariveroi)

[[Page 60801]]

    (1) Critical habitat unit is depicted for Toa Baja, Puerto Rico, on 
the map below.
    (2) Within this area, the primary constituent elements of the 
physical or biological features essential to the conservation of 
coqu[iacute] llanero consist of three components:
    (i) Palustrine herbaceous wetland. Palustrine emergent persistent 
wetlands that are seasonally to permanently flooded. Ocean-derived 
salts need to be less than 0.5 parts per thousand (ppt) salinity.
    (ii) Vegetation and vegetation composition of the palustrine 
herbaceous wetland. Emergent vegetation characterized by erect, rooted 
herbaceous hydrophytes usually dominated by perennial plants like 
ferns, Sagittaria lancifolia, flatsedges, spike rushes, vines, and 
grasses. In addition to the combination of vegetation, at least 25 
percent of the vegetation should be ferns and S. lancifolia.
    (iii) Hydrology. A hydrologic flow regime (i.e., the pathways of 
precipitation, surface run-off, groundwater, tides, and flooding of 
rivers and canals [manmade ditches]) that maintains the palustrine 
herbaceous wetland.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
November 5, 2012.
    (4) Critical habitat map units. Data layers defining map units were 
created by delineating habitats that contain at least one or more of 
the primary constituent elements defined in paragraph (2) of this 
entry, over a base of USGS digital topographic map quadrangle 
(Bayam[oacute]n) and a USDA 2007 digital ortho-photo mosaic, in 
addition to the National Wetland Inventory maps. The resulting critical 
habitat unit was then mapped using State Plane North American Datum 
(NAD) 83 coordinates. The maps in this entry, as modified by any 
accompanying regulatory text, establish the boundaries of the critical 
habitat designation. The coordinates or plot points or both on which 
each map is based are available to the public at the Service's Internet 
site, (http://www.fws.gov/caribbean/es/Endangered-Main.html), (http://www.regulations.gov at Docket No. FWS-R4-ES-2009-0022 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) Sabana Seca Unit, Toa Baja, Puerto Rico.
    (i) General Description: The Sabana Seca Unit consists of 
approximately 615 ac (249 ha) located south of State Road PR-867, west-
southwest of Ram[oacute]n R[iacute]os Rom[aacute]n Avenue, east of 
Jos[eacute] Juli[aacute]n Acosta Road, and north of the limestone hills 
located north of Highway PR-22 in the municipality of Toa Baja, Puerto 
Rico.
    (ii) Map of Sabana Seca Unit follows:
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[[Page 60802]]

[GRAPHIC] [TIFF OMITTED] TR04OC12.000

* * * * *

    Dated: September 19, 2012.
 Rachel Jacobson,
 Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-23999 Filed 10-3-12; 8:45 am]
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