[Federal Register Volume 78, Number 205 (Wednesday, October 23, 2013)]
[Rules and Regulations]
[Pages 63100-63127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24168]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2012-0082; 4500030114]
RIN 1018-AY20
Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for the Comal Springs Dryopid Beetle, Comal Springs Riffle
Beetle, and Peck's Cave Amphipod
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), revise the
critical habitat for the Comal Springs dryopid beetle (Stygoparnus
comalensis), Comal Springs riffle beetle (Heterelmis comalensis), and
Peck's cave amphipod (Stygobromus pecki), under the Endangered Species
Act of 1973, as amended. In total, we are designating approximately 169
acres (68 hectares) as revised critical habitat. The revised critical
habitat consists of four units in Comal and Hays Counties, Texas.
DATES: This rule is effective on November 22, 2013.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov and http://www.fws.gov/southwest/es/austintexas/.
Comments and materials we received, as well as some supporting
documentation we used in preparing this rule, are available for public
inspection at http://www.regulations.gov. All of the comments,
materials, and documentation that we considered in this rulemaking are
available by appointment, during normal business hours at: U.S. Fish
and Wildlife Service, Austin Ecological Services Field Office, 10711
Burnet Road, Suite 200, Austin, TX 78758; telephone 512-490-0057;
facsimile 512-490-0974.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this revised
critical habitat designation and are available at http://www.fws.gov/southwest/es/austintexas/, at http://www.regulations.gov at Docket No.
FWS-R2-ES-2012-0082, and at the Austin 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 appear at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
10711 Burnet Road, Suite 200, Austin, TX 78758; telephone at 512-490-
0057, extension 248; or facsimile at 512-490-0974. 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. This is a final rule to designate
revised critical habitat for the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod. Under the Endangered
Species Act of 1973, as amended (Act), any species that is determined
to be an endangered or threatened species requires critical habitat to
be designated, to the maximum extent prudent and determinable.
Designations and revisions of critical habitat can only be completed by
issuing a rule.
The areas we are designating as revised critical habitat in this
rule constitute our current best assessment of the areas that meet the
definition of critical habitat for the Comal Springs dryopid beetle,
Comal Springs riffle beetle, and Peck's cave amphipod. Here, we are
designating:
Comal Springs dryopid beetle: 39.4 acres (ac) (15.56
hectares (ha)) of surface and 139 ac (56 ha) of subsurface critical
habitat. The original designation was
[[Page 63101]]
surface critical habitat of 39.5 ac (16.0 ha) without subsurface.
Comal Springs riffle beetle: 54 ac (22 ha) of surface
critical habitat only. The original designation was surface critical
habitat of 30.3 ac (12.3 ha).
Peck's cave amphipod: 38.4 ac (15.16 ha) surface and 138
ac (56 ha) of subsurface critical habitat. The original designation was
surface critical habitat of 38.5 ac (15.6 ha) without subsurface.
We have prepared an economic analysis of the designation of
critical habitat. In order to consider economic impacts, we have
prepared an analysis of the economic impacts of the revised critical
habitat designations and related factors. We announced the availability
of the draft economic analysis (DEA) in the Federal Register on May 2,
2013 (78 FR 25679), allowing the public to provide comments on our
analysis. We have incorporated the comments and have completed the
final economic analysis (FEA) concurrently with this final
determination.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We obtained opinions from two knowledgeable
individuals with scientific expertise to review our technical
assumptions and analysis, and to determine whether or not we had used
the best available information. These peer reviewers generally
concurred with our methods and conclusions, and provided additional
information, clarifications, and suggestions to improve this final
rule. Information we received from peer review is incorporated in this
final revised designation. We also considered all comments and
information we received from the public during the comment periods.
Previous Federal Actions
We listed the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod as endangered species on December 18,
1997 (62 FR 66295). We designated critical habitat for these three
species on July 17, 2007 (72 FR 39248). On October 19, 2012 (77 FR
64272), we proposed to revise critical habitat for the Comal Springs
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod.
All other previous Federal actions are described in the October 19,
2012, proposed rule (77 FR 64272) to revise critical habitat for Comal
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave
amphipod.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
revision of critical habitat for the Comal Springs dryopid beetle,
Comal Springs riffle beetle, and Peck's cave amphipod during two
comment periods. The first comment period, associated with the
publication of the proposed rule (77 FR 64272), opened on October 19,
2012, and closed on December 18, 2012. We also requested comments on
the proposed revised critical habitat designations and associated draft
economic analysis during a comment period that opened May 2, 2013, and
closed on June 3, 2013 (78 FR 25679). We did receive one request for a
public hearing. We held a public hearing on May 17, 2013, in San
Marcos, Texas. 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 draft economic
analysis during these comment periods.
During the first comment period, we received five comment letters,
two from peer reviewers, one from a State agency, and two from the
public, directly addressing the proposed revised critical habitat
designations. During the second comment period, we received two comment
letters addressing the proposed critical habitat designations or the
draft economic analysis. During the May 17, 2013, public hearing, three
individuals made comments on the designation of critical habitat for
the Comal Springs dryopid beetle, Comal Springs riffle beetle, and
Peck's cave amphipod. All substantive information provided during
comment periods has either been incorporated directly into this final
designation or is addressed below. Comments we received 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 eight knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from two of the
peer reviewers.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding revised critical
habitat for the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod. The peer reviewers provided
additional information, clarifications, and suggestions to improve this
final critical habitat rule. Peer reviewer comments are addressed in
the following summary and incorporated into the final rule as
appropriate.
Peer Reviewer Comments
(1) Comment: One peer reviewer and several commenters suggested
that we extend the size of surface and subsurface critical habitat
units to incorporate recharge features, subterranean habitats, drainage
basins, flow routes, springsheds, and the extent of the aquifer.
Our Response: We have reviewed the available information and have
determined that there is not enough information to support a
modification to our designation of the area within 50 feet (ft) (15
meters (m)) of spring outlets as surface critical habitat for all three
species, and within 360 ft (110 m) of spring outlets as subsurface
critical habitat for the Peck's cave amphipod and Comal Springs dryopid
beetle. Based on the definition of critical habitat in the Act (16
U.S.C. 1531 et seq.), we may designate critical habitat in those areas
within the geographical area occupied by the species at the time it was
listed if the areas contain physical or biological features (1) which
are essential to the conservation of the species and (2) which may
require special management considerations or protection. In addition,
we may designate critical habitat in areas that were not occupied at
the time of listing if they are essential to the conservation of the
species. We used a distance of 50 ft (15 m) for surface critical
habitat because this distance has been found to contain food sources
where plant roots interface with water flows of the spring systems. We
used 360 ft (110 m) to define subsurface critical habitat for the
Peck's cave amphipod and Comal Springs dryopid beetle because this is
the greatest distance from spring outlets that these species have been
collected. We have no information upon which to base a larger or
different extent of critical habitat for these species because our
designation includes the known historical range of the species. While
other areas outside the designation (such as recharge features,
subterranean habitats, drainage basins, flow routes, springsheds, and
the entire aquifer) may be important because they support the physical
or features needed by these species, these areas do not constitute the
actual habitat for the species. These areas outside of the designated
critical habitat would still be subject to section 7 consultations, if
a proposed Federal
[[Page 63102]]
action in these areas may affect the listed species or its critical
habitat. In this way, these important areas receive some protections to
allow for their conservation and support of the physical and biological
features of the designated critical habitat. Therefore, as required by
section 4(b)(2) of the Act, we used the best scientific data available
to designate critical habitat and limit the designation to the actual
areas meeting the definitions under section 3(5)(A) of the Act.
Comments From Texas State Agencies
(2) Comment: The 360-ft (110-m) buffer for subsurface critical
habitat likely does not fit the actual area of subterranean habitats,
aquifer extent, and known conduits between significant groundwater
resources important for these species' survival. In addition, the 50-ft
(15-m) buffer for surface habitat should more accurately delineate the
contribution of upstream areas (springshed) to surface habitat quality.
Our Response: Please see our response to Comment (1) above.
(3) Comment: The Panther Canyon Well is a known locality for two
federally listed species and should be treated the same as other
occupied sites. Specifically, surface and subsurface critical habitat
buffers should include the area surrounding this site. Information
gathered from future dye trace studies may elucidate the approximate
location of groundwater flow intersecting this well and guide
delineation of a more defensible area of subterranean habitat than
currently proposed.
Our Response: We agree that additional future dye trace studies
could assist us in delineating subterranean habitat within the vicinity
of Panther Canyon Well. However, we designate critical habitat in those
areas known to be occupied by the species at the time of listing or
that were not occupied at the time of listing if they are essential to
the conservation of the species. In our review of the best available
scientific data, we did not find any information to support a
conclusion that any of the species occur outside the areas we are
designating as revised critical habitat. In other words, we did not
have any information that indicated that the species would be in areas
farther from the spring source beyond Panther Canyon Well; therefore,
we limited the designation to this extent. In addition, as we explained
in the response to Comment (1) above, we found no additional areas
outside of those occupied at the time of listing to be essential to the
conservation of the species.
(4) Comment: The dye trace studies indicate that groundwater
supplying Hueco Springs flows west to east. The subsurface critical
habitat buffer should take this into account, minimally, by shifting
the proposed critical habitat area westward to meet the eastern
boundary of surface critical habitat.
Our Response: Although dye trace studies may indicate that the
general direction of groundwater flow in the vicinity of Hueco Springs
is from west to east, we are unaware of any scientific data that
suggest that the movement of Peck's cave amphipods within subsurface
habitat is limited by the direction of flow. Therefore, we did not
change the critical habitat boundaries from what we proposed.
(5) Comment: The use of the ``incremental'' approach does not
assess the total economic impacts of the proposed designation. The
economic analysis describes impacts that could occur ``without critical
habitat,'' but it does not monetize these impacts. To fully evaluate
the cost of the critical habitat designation, the Service must consider
the full economic impact of the listing.
Our Response: The Office of Management and Budget's (OMB)
guidelines for best practices concerning the conduct of economic
analysis of Federal regulations direct agencies to measure the costs of
a regulatory action against a baseline, which it defines as the ``best
assessment of the way the world would look absent the proposed action''
(OMB, ``Circular A-4,'' September 17, 2003). The baseline utilized in
the economic analysis is the existing state of regulation, prior to the
designation of critical habitat, which provides protection to the
species under the Act, as well as under other Federal, State, and local
laws and guidelines. As such, the analysis focuses on the incremental
impacts of critical habitat designation over and above the expected
baseline (i.e., endangered species status under the Act). Section 1.3
of the economic analysis qualitatively describes baseline conservation
efforts for the three invertebrate species that are currently
implemented across the designation in order to provide context for the
incremental analysis. In addition, Appendix A of the report provides a
more detailed description of the methodological approach to the
analysis.
(6) Comment: The economic analysis evaluates the costs and benefits
of proposed critical habitat designations by comparing qualitative
benefits to quantitative costs. To produce an accurate analysis, the
costs and benefits must be in the same unit of measurement.
Our Response: Section A.3.3 of the economic analysis states that,
``In its guidance for implementing Executive Order 12866, OMB
acknowledges that it may not be feasible to monetize, or even quantify,
the benefits of environmental regulations due to either an absence of
defensible, relevant studies or a lack of resources on the implementing
agency's part to conduct new research. Rather than rely on economic
measures, we conclude that the direct benefits of the proposed rule are
best expressed in biological terms that can be weighed against the
expected cost impacts of the rulemaking.''
Furthermore, as described in section 2.3 of the economic analysis,
we do not anticipate that the designation of revised critical habitat
for the three invertebrate species will result in project modifications
or additional conservation measures for the species. Absent changes in
land or water management, no incremental economic benefits are forecast
to result from this designation of revised critical habitat. However,
the Service does anticipate that this rule will result in educational
benefits to the public associated with increased awareness of habitat
locations.
(7) Comment: The economic analysis is inconsistent with regard to
the incremental impacts to other activities in the Hueco Springs and
Fern Bank Springs Units. According to the economic analysis, no costs
are attributed to future actions in these units. However, Exhibit 2-2
indicates costs attributed to other activities.
Our Response: Although no specific actions likely requiring
consultation are expected in the Hueco Springs and Fern Bank Springs
Units, minor costs associated with area-wide habitat conservation plans
are attributed to those units. Section 2.2.2 of the economic analysis
states, ``re-initiation of several incidental take permits for HCPs in
the region may occur as a result of critical habitat designation for
the three invertebrate species. . . . The costs of re-initiated
consultations are assumed to be distributed equally across the four
proposed critical habitat units.''
Public Comments
(8) Comment: The boundary of proposed critical habitat unit 2 for
the Comal Springs dryopid beetle at Fern Bank Springs is based on a
360-ft (110-m) radius circle around the spring outlet. However, the
cave from which the spring issues is known to extend at least 377 feet
(115 m) to the southeast from the spring. The critical habitat unit
[[Page 63103]]
should be extended at least 360 ft (110 m) beyond the point where the
cave stream is known to extend.
Our Response: We designate critical habitat in those areas known to
be occupied by the species at the time of listing or in areas that were
not occupied at the time of listing if they are essential to the
conservation of the species. All of the collections of Comal Springs
dryopid beetle at Fern Bank Springs have occurred at spring outlets and
orifices along the bluff adjacent to the main spring outlet. In our
review of the best available scientific data, we did not find any
evidence that the Comal Springs dryopid beetle occurs within the cave
or cave stream at this location. We also did not find that the cave or
cave stream is essential to the conservation of the species because
these areas do not constitute the actual habitat for the species.
Therefore, we limited our designation to 360 ft (110 m) from the where
the species has been confirmed to occur.
(9) Comment: There is no justification for any critical habitat on
the north side of the Blanco River at Fern Bank Springs, since the
river has downcut considerably below the level of the spring. The area
of importance to this spring is the recharge area, which likely
consists of an extensive area to the southeast of the spring outlet
Our Response: We disagree that there is no justification for the
designation of critical habitat on the north side of the Blanco River
at Fern Bank Springs. The area of critical habitat that extends to the
north side of the Blanco River is entirely subsurface. The best
available data indicate that the Comal Springs dryopid beetle occurs
within the aquifer at distances of 360 ft (110 m) from spring outlets.
We are not aware of any information to support a conclusion that this
species is limited in its ability to move through the aquifer in a
particular direction. We agree that the recharge area is important for
this spring; however, we have no data to indicate that the Comal
Springs dryopid beetle population at this site occurs outside of the
area we are designating as revised critical habitat. In addition, we
found that areas outside the historic range, though important, do not
constitute habitat for the species (see response to Comment (1) above).
Summary of Changes From Proposed Rule
After reviewing all of the comments we received, we made no
substantive changes to this final rule compared to the proposed rule.
In response to comments, we made some editorial corrections and
clarifying revisions to this final rule.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are the
specific elements of 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 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,
[[Page 63104]]
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection.
These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographic, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the Comal Springs dryopid beetle, Comal Springs riffle beetle, and
Peck's cave amphipod from studies of this species' habitat, ecology,
and life history as described below. Additional information can be
found in the final listing rule published in the Federal Register on
December 18, 1997 (62 FR 66295), the previous critical habitat
designation (72 FR 39248, July 17, 2007), the San Marcos and Comal
Springs and Associated Aquatic Ecosystems (Revised) Recovery Plan
(Service 1996), the Edwards Aquifer Recovery Implementation Program
Habitat Conservation Plan (HCP) (RECON Environmental, Inc. et al.
2012), and the proposed revision of critical habitat designation (77 FR
64272, October 19, 2012). We have determined that the Comal Springs
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod
require the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
Very little is known regarding the space needed by the three
invertebrate species for individual and population growth and for
normal behavior. The Peck's cave amphipod and Comal Springs dryopid
beetle are most commonly found in subterranean areas where plant roots
are inundated or otherwise influenced by aquifer water. Gibson et al.
(2008, p. 77) found Peck's cave amphipod in gravel, rocks, and organic
debris (leaves, roots, wood) immediately inside of or adjacent to
springs, seeps, and upwellings of Comal Springs and their impoundment,
Landa Lake. The species were not observed in nearby surface habitats.
Gibson et al. (2008, p. 76) collected Peck's cave amphipods in drift
nets (a net that floats freely on surface water) that were placed over
spring openings at Hueco and Comal Springs. At Panther Canyon Well,
specimens were collected 59 ft (18 m) below the surface in a baited
bottle trap, which is located about 360 ft (110 m) from Comal Spring
Run No. 1 (Gibson et al. 2008, p. 76; R. Gibson 2012b, pers. comm.).
Gibson et al. (2008, p. 77) also found Comal Springs riffle beetles in
drift nets at Comal Springs that were placed in or over spring
openings. Therefore, based on the information above, we identify
springs, associated streams, and underground spaces immediately inside
of or adjacent to springs, seeps, and upwellings to be primary
components of the physical or biological features essential to the
conservation of the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food. Although specific food requirements of the three invertebrate
species are unknown, potential food sources for all three invertebrate
species include detritus (decomposed plant materials), leaf litter, and
decaying roots. It is possible that the Comal Springs dryopid beetle,
Comal Springs riffle beetle, and Peck's cave amphipod all feed on
microorganisms such as bacteria and fungi associated with decaying
riparian vegetation. Both beetle species likely are detritivores
(detritus-feeding animals) that consume detrital materials from spring-
influenced riparian (associated with rivers, creeks, or other water
bodies) zones (Brown 1987, p. 262; Gibson et al. 2008, p. 77). Riparian
vegetation is likely important for these species, as they are typically
found on roots where they feed on fungus and bacteria (Gibson et al.
2008, p. 77; Gibson 2012c, pers. comm.). The terrestrial larvae of the
Comal Springs dryopid beetle, found in association with roots, debris,
and soil lining the ceilings of subterranean cavities, are also
presumed to feed on bacteria and fungi (Barr and Spangler 1992, p. 41).
Available evidence suggests Peck's cave amphipod is likely an omnivore
(consumes everything available including both animal and plant matter).
It can feed as a scavenger or predator within the aquifer and as a
[[Page 63105]]
detrivore where plant roots are exposed, providing a medium for
microbial growth as well as a food source to potential prey (Gibson
2012a, pers. comm.). Among other things, trees and shrubs in riparian
areas adjacent to the spring system provide plant growth necessary to
maintain food sources such as decaying material for these
invertebrates. Roots from trees and shrubs in proximity to spring
outlets are most likely to penetrate underground down to the water
pools, where these roots can serve as habitat for the amphipod and
dryopid beetle.
Therefore, based on the information above, we identify sources of
detritus (decomposed plant materials), leaf litter, and decaying roots
of riparian vegetation to be primary components of the physical or
biological features essential to the conservation of the Comal Springs
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod.
Water. The Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod are all spring-adapted, aquatic
species dependent on high-quality, unpolluted groundwater that has low
levels of salinity and turbidity. The two beetle species are generally
associated with water that has adequate levels of dissolved oxygen for
respiration (Brown 1987, p. 260; Arsuffi 1993, p. 18). High-quality
discharge water from springs and adjacent subterranean areas help
sustain habitat components essential to these three aquatic
invertebrate species.
The temperature of spring water emerging from the Edwards Aquifer
at Comal and San Marcos Springs ordinarily occurs within a narrow range
of approximately 72 to 75 degrees Fahrenheit ([deg]F) (22 to 24 degrees
Celsius ([deg]C)) (Fahlquist and Slattery 1997, pp. 3-4; Groeger et al.
1997, pp. 282-283). Hueco Springs and Fern Bank Springs have
temperature records of 68 to 71[emsp14][deg]F (20 to 22 [deg]C) (George
1952, p. 52; Brune 1975, p. 94; Texas Water Development Board 2006, p.
1). The three listed invertebrate species complete their life-cycle
functions within these relatively narrow temperature ranges.
Landa Lake, Spring Lake, Hueco Springs, and Fern Bank Springs
typically provide adequate resources to sustain life-cycle functions
for resident populations of the Comal Springs dryopid beetle, Comal
Springs riffle beetle, or Peck's cave amphipod. However, a primary
threat to the three invertebrate species is the potential failure of
spring flow due to drought or groundwater pumping, which could result
in loss of aquatic habitat for the species.
Barr (1993, p. 55) found Comal Springs dryopid beetles in spring
flows with low- and high-volume discharge and suggested that presence
of the species was not necessarily dependent on high spring flow.
However, Barr (1993, p. 61) noted that effects on both subterranean
species (dryopid beetle and amphipod) from extended loss of spring flow
and low aquifer levels could not be predicted because details of their
life cycles and their subterranean distributions are unknown.
Riffle beetles are most commonly associated with flowing water that
has shallow riffles or rapids (Brown 1987, p. 253). Riffle beetles are
restricted to waters with high dissolved oxygen due to their reliance
on a plastron (thin sheet of air held by water-repellent hairs of some
aquatic insects) that is held next to the surface of the body by a mass
of water-repellent hairs. The mass of water-repellent hairs functions
as a physical gill by allowing oxygen to passively diffuse from water
into the plastron in order to replace oxygen absorbed during
respiration (Brown 1987, p. 260). However, slow-moving insects like
riffle beetles are limited to habitats with high oxygen levels because
oxygen will diffuse away from the beetle if concentrations are higher
in the plastron than in the surrounding water (Resh et al. 2008, pp.
44-45).
Bowles et al. (2003, p. 379) pointed out that the mechanism by
which the Comal Springs riffle beetle survived the 1950s drought and
the extent to which its population was negatively impacted are unknown.
Bowles et al. (2003, p. 379) speculated that the riffle beetle may be
able to retreat back into spring openings or burrow down to the
hyporheos (groundwater zone) below the stream channel. In reference to
the Comal Springs population of the riffle beetle, Bowles et al. (2003,
p. 380) stated that ``Reductions in water levels in the Edwards Aquifer
to the extent that spring-flows cease likely would have devastating
effects on . . . [this] population of this species and could result in
its extinction.''
Therefore, based on the information above, we identify unpolluted,
high-quality water with stable temperatures flowing through
subterranean habitat and exiting at spring openings to be primary
components of the physical or biological features essential to the
conservation of the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod.
Habitats Protected From Disturbance or Representative of the
Historical, Geographic, and Ecological Distributions of the Species
These freshwater invertebrates rely on spring water that follows
established hydrological flow paths within a limestone aquifer before
emerging. Water inside limestone aquifers flows through fractures,
pores, cave stream channels, and conduits (open channels) that have
been hollowed out within the limestone by dissolution processes (White
1988, pp. 119-148, 150-151). Alteration of subsurface water flows
through destruction of geologic features (for example, excavation) or
creation of impediments to flow (for example, concrete filling) in
proximity to spring outlets could negatively alter the hydraulic
connectivity necessary to sustain these species. Areas of subsurface
habitat must remain intact to provide adequate space for feeding,
breeding, and sheltering of the two subterranean species (amphipod and
dryopid beetle). In addition, subsurface habitat must remain intact
with sufficient hydraulic connectivity of flow paths and conduits to
ensure that other constituent elements (water quality, water quantity,
and food supply) for the revised critical habitat remain adequate for
all three listed invertebrates.
Comal Springs riffle beetles occur in conjunction with a variety of
bottom substrates that underlay these flow paths. Bowles et al. (2003,
p. 372) found that these beetles mainly occurred in areas with gravel
and cobble ranging between 0.3 to 5.0 in (inches) (8 to 128 millimeters
(mm)) in diameter and did not occur in areas dominated by silt, sand,
and small gravel. Collection efforts in areas of high sedimentation
generally do not yield riffle beetles (Bowles et al. 2003, p. 376;
Gibson, 2012d, pers. comm.).
Therefore, based on the information above, we identify spring water
that follows established hydrological flow paths within a limestone
aquifer to be a primary component of the physical or biological
features essential to the conservation of the Comal Springs dryopid
beetle, Comal Springs riffle beetle, and Peck's cave amphipod.
Primary Constituent Elements for the Comal Springs Dryopid Beetle,
Comal Springs Riffle Beetle, and Peck's Cave Amphipod
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the three invertebrates in areas occupied at the time
of listing, focusing on the features'
[[Page 63106]]
primary constituent elements. We consider primary constituent elements
to be the elements of physical or biological features that provide for
a species' life-history processes and are essential to the conservation
of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to the Comal Springs dryopid beetle, Comal Springs
riffle beetle, and Peck's cave amphipod are:
(1) Springs, associated streams, and underground spaces immediately
inside of or adjacent to springs, seeps, and upwellings that include:
(a) High-quality water with no or minimal pollutant levels of
soaps, detergents, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, and semivolatile compounds such as industrial
cleaning agents; and
(b) Hydrologic regimes similar to the historical pattern of the
specific sites, with continuous surface flow from the spring sites and
in the subterranean aquifer.
(2) Spring system water temperatures that range from 68 to
75[emsp14][deg]F (20 to 24 [deg]C).
(3) Food supply that includes, but is not limited to, detritus
(decomposed materials), leaf litter, living plant material, algae,
fungi, bacteria, other microorganisms, and decaying roots.
With this designation of revised critical habitat, we intend to
identify the physical or biological features essential to the
conservation of the species, through the identification of the
features' primary constituent elements sufficient to support the life-
history processes of the species. All revised critical habitat units
are currently occupied by one or more of the three invertebrates and
contain the primary constituent elements sufficient to support the
life-history needs of the species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographic area occupied by the species at the time of
listing contain features that are essential to the conservation of the
species and which may require special management considerations or
protection.
For the Comal Springs dryopid beetle, Comal Springs riffle beetle,
and Peck's cave amphipod, threats to adequate water quantity and
quality (PCEs 1 and 2) include alterations to the natural flow regimes
affecting the aquifer recharge system and its associated springs,
streams, and riparian areas. Threats to water quantity and quality
include water withdrawals, impoundment, and diversions; hazardous
material spills; stormwater drainage pollutants including soaps,
detergents, pharmaceuticals, heavy metals, fertilizer nutrients,
petroleum hydrocarbons, and semivolatile compounds such as industrial
cleaning agents; pesticides and herbicides associated with pathogenic
organisms or invasive species; invasive species altering the surface
habitat; excavation and construction surrounding the springs and in the
watershed; and climate change. All of these threats are known to be
ongoing at various levels in and around the Edwards Aquifer ecosystem.
Examples of special management actions that would ameliorate these
threats include: (1) Maintenance of sustainable groundwater use and
subsurface flows; (2) use of adequate buffers for water quality
protection; (3) selection of appropriate pesticides and herbicides; and
(4) implementation of integrated pest management plans to manage
existing invasive species as well as prevent the introduction of
additional invasive species.
Climate change could potentially affect water quantity and spring
flow as well as the food supply (PCEs 1, 2, and 3) for the Comal
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's Cave
amphipod. According to the Intergovernmental Panel on Climate Change
(IPCC 2007, p. 1), ``warming of the climate system is unequivocal, as
is now evident from observations of increases in global averages of air
and ocean temperatures, widespread melting of snow and ice, and rising
global average sea level.'' Regional projections suggest the
southwestern United States may experience the greatest temperature
increase of any area in the lower 48 States (IPCC 2007, p. 8), with
warming increases in southwestern States greatest in the summer. The
IPCC also predicts hot extremes, heat waves, and heavy precipitation
will increase in frequency (IPCC 2007, p. 8).
The degree to which climate change will affect habitats of the
Comal Springs dryopid beetle, Comal Springs riffle beetle, and Peck's
Cave amphipod is uncertain. Climate change will be a particular
challenge for biodiversity in general because the interaction of
additional stressors associated with climate change and current
stressors may push species beyond their ability to survive (Lovejoy
2005, pp. 325-326). The synergistic implications of climate change and
habitat fragmentation are the most threatening facets of climate change
for biodiversity (Hannah and Lovejoy 2005, p. 4). Current climate
change predictions for terrestrial areas in the Northern Hemisphere
indicate warmer air temperatures, more intense precipitation events,
and increased summer continental drying (Field et al. 1999, pp. 1-3;
Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6; IPCC 2007, p.
1181). Climate change may lead to increased frequency and duration of
severe storms and droughts (McLaughlin et al. 2002, p. 6074; Cook et
al. 2004, p. 1015; Golladay et al. 2004, p. 504).
An increased risk of drought could occur if evaporation exceeds
precipitation levels in a particular region due to increased
CO2 in the atmosphere (Mace and Wade 2008, p. 658). The
Edwards Aquifer is also predicted to experience additional stress from
climate change that could lead to decreased recharge and low or ceased
spring flows given increasing pumping demands (Lo[aacute]iciga et al.
2000, pp. 192-193). Mace and Wade (2008, p. 662) modeled the possible
effects of climate change on the San Antonio segment of the Edwards
Aquifer by scaling monthly recharge from 70 to 130 percent of the
historical value. The model estimated that Comal Springs would go dry
for about 2 years assuming historical recharge, less than a year
assuming 130 percent of historical recharge, and 3 years assuming 70
percent of historical recharge. The droughts of 2008-2009 and 2010-2011
were two of the worst short-term droughts in central Texas history,
with the period from October 2010 through September 2011 being the
driest 12-month period in Texas since rainfall records began (Lower
Colorado River Authority (LCRA) 2011, p. 1). As a result, the effects
of climate change could compound the threat of decreased water quantity
due to drought.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b) we
review available information pertaining to the habitat requirements of
the species. In accordance with the Act and its implementing
regulations at 50 CFR 424.12(e), we consider whether designating
additional areas--outside those currently occupied as well as those
occupied at the time of listing--is necessary to ensure the
conservation of the species. We are designating revised critical
habitat in areas within
[[Page 63107]]
the geographical area occupied by the species at the time of listing in
1997.
During our preparation for proposing revised critical habitat for
these three endangered invertebrate species, we reviewed the best
available scientific information including: (1) Historical and current
occurrence records, (2) information pertaining to habitat features for
these species, and (3) scientific information on the biology and
ecology of each species. We have also reviewed a number of studies and
surveys of the three listed invertebrates, including: Holsinger (1967),
Bosse et al. (1988), Barr and Spangler (1992), Arsuffi (1993), Barr
(1993), Bio-West (2001), Bio-West (2002a), Bio-West (2002b), Bio-West
(2003), Bowles et al. (2003), Bio-West (2004), Fries et al. (2004), and
Gibson et al. (2008).
Based on this review, the revised critical habitat areas described
below constitute our best assessment at this time of areas that: (1)
Are within the geographical range occupied by at least one of the three
invertebrate species, and (2) contain features essential to the
conservation of these species, which may require special management
considerations or protections. All areas we are designating as revised
critical habitat are occupied by at least one of the three
invertebrates and contain sufficient primary constituent elements to
support the life functions of the resident species. We defined the
boundaries of each species based on the below criteria.
Comal Springs Dryopid Beetle
We identified both surface and subsurface components of revised
critical habitat for this species, which has been found in Comal
Springs and Fern Bank Springs in Comal and Hays Counties, Texas.
Collections made from 2003 to 2009 further extended the known range of
the beetle within the Comal Springs system to all major spring runs,
seeps along the western shoreline of Landa Lake (the impounded portion
of the Comal Springs system), and Landa Lake upwellings in the Spring
Island area (Bio-West, Inc. 2003, p. 34; Bio-West 2004, pp. 5-6; Bio-
West 2005, pp. 5-6; Bio-West 2006, p. 37; Bio-West 2009, pp. 40-43;
Gibson 2012e, pers. comm.).
In addition, this species has also been collected from below the
surface in Panther Canyon Well, which is located about 360 ft (110 m)
away from the spring outlet of Spring Run No. 1 (Gibson et al. 2008, p.
76; Gibson 2012e, pers. comm.). As a result, we know that this species
occurs to some extent within the Edwards Aquifer, likely within some
distance from the spring outlets where it is are most commonly found.
To determine the extent of the subsurface area to include as revised
critical habitat we used the 360-ft (110-m) distance as a guide for the
boundaries of subsurface critical habitat around spring openings known
to be occupied by the species. While the species may occur in
additional areas of the aquifer, we have no supporting information to
determine the extent of its occurrence. However, this information from
Panther Canyon Well is our best available, and it demonstrates that the
Comal Springs dryopid beetle can occur within the aquifer at least up
to a distance of 360 ft (110 m) away from a spring outlet; therefore,
we used this distance from spring outlets to identify the subsurface
area of revised critical habitat for this species. We applied this
distance to all the known occupied spring outlets to guide the
boundaries of the subsurface critical habitat designation.
To determine surface area to include as revised critical habitat,
we used an area within 50 ft (15 m) from spring outlets. We used this
area because this distance has been found to contain food sources where
plant roots interface with water flows of the spring systems. This 50-
ft (15-m) distance defines the lateral extent of surface critical
habitat that contains elements necessary to provide for life functions
of this species with respect to roots that can penetrate into the
aquifer. The 50-ft (15-m) distance was calculated from evaluations of
aerial photographs and is based on tree and shrub canopies occurring in
proximity to spring outlets. Extent of canopy cover reflects the
approximate distances where plant root systems interface with water
flows of the two spring systems.
Comal Springs Riffle Beetle
For the Comal Springs riffle beetle, we only identified surface
areas as revised critical habitat because this species' habitat is
primarily restricted to surface water (rather than subsurface areas,
which are designated for the other two species). This habitat is
located in two impounded spring systems in Comal and Hays Counties,
Texas. In Comal County, this aquatic beetle is found in various spring
outlets of Comal Springs that occur within Landa Lake over a linear
distance of approximately 0.9 mi (1.4 km). The species has also been
found in outlets of San Marcos Springs in the upstream portion of
Spring Lake in Hays County. However, populations of Comal Springs
riffle beetles may exist elsewhere in Spring Lake (excluding a slough
portion that lacks spring outlets), but sampling for riffle beetles at
spring outlets within the lake has only been done on a limited basis.
Excluding the slough portion that lacks spring outlets, the approximate
linear distance of Spring Lake at its greatest length is 0.2 mi (0.3
km). Critical habitat unit boundaries for surface area were delineated
using the same criteria as described above for the Comal Springs
dryopid beetle; in other words, we included areas within 50 ft (15 m)
from occupied spring outlets.
Peck's Cave Amphipod
We identified both surface and subsurface components of revised
critical habitat for this species, which has been found in Comal
Springs and Hueco Springs, both located in Comal County, Texas. The
extent to which this subterranean species exists below ground away from
spring outlets is unknown; however, other species within the genus
Stygobromus are widely distributed in groundwater and cave systems
(Holsinger 1972, p. 65). Like the Comal Springs dryopid beetle, the
Peck's cave amphipod has been collected from Panther Canyon Well, which
is located about 360 ft (110 m) away from the spring outlet of Spring
Run No. 1 in the Comal Springs complex (Barr and Spangler 1992, p. 42;
Gibson et al. 2008, p. 76). To determine surface critical habitat, we
used a 50-ft (15-m) distance from the shoreline of both Comal Springs
and Hueco Springs (including several satellite springs that are located
between the main outlet of Hueco Springs and the Guadalupe River) to
include amphipod food sources in the root-water interfaces around
spring outlets. Critical habitat unit boundaries were delineated using
the same criteria as described above for the other two invertebrate
species; in other words, we included areas within 50 ft (15 m) from
occupied spring outlets as surface critical habitat, and we included
subsurface areas within 360 ft (110 m) of occupied spring outlets.
Areas Outside the Occupied Areas
The definition of critical habitat under the Act includes areas
outside the geographical area occupied by the species at the time of
listing, if those areas are found to be essential to the conservation
of the species. In the case of the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod, the geographical area
occupied by the species at the time of listing encompasses the known
historic range of these species. As such, we have not found any areas
outside the geographical areas occupied by these species at the time of
their listing to be
[[Page 63108]]
essential to the conservation of these species, and, therefore, we are
not designating any unoccupied areas as critical habitat.
Mapping
Critical habitat unit boundaries were delineated by creating
approximate areas for the units by screen-digitizing polygons (map
units) using ArcMap, version 10 (Environmental Systems Research
Institute, Inc.) and 2011 aerial imagery. When determining critical
habitat boundaries, we made every effort to avoid including developed
areas such as lands covered by buildings, pavement, and other
structures on the surface that lack physical or biological features
necessary for the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod. Subterranean critical habitat for the
Comal Springs dryopid beetle and Peck's cave amphipod may extend under
such structures and remains part of the critical habitat. 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 revised critical
habitat. Therefore, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
Summary
We are designating revised critical habitat for lands that we have
determined are occupied at the time of listing and contain sufficient
elements of physical or biological features to support life-history
processes essential for the conservation of the species.
Units are designated based on sufficient elements of physical or
biological features being present to support the life-history processes
of the Comal Springs dryopid beetle, Comal Springs riffle beetle, and
Peck's cave amphipod. All units contain all of the identified elements
of physical or biological features and support multiple life-history
processes.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the Regulation Promulgation section. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, on our Internet site at http://www.fws.gov/southwest/es/austintexas/, and at the field office responsible for the designation
(see FOR FURTHER INFORMATION CONTACT, above).
Summary of Changes From Previously Designated Critical Habitat
The areas identified in this final rule constitute a revision of
the areas we designated as critical habitat for the Comal Springs
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod
on July 17, 2007 (72 FR 39248). The significant differences between the
2007 rule and this rule are:
(1) In the 2007 critical habitat rule for these species, we did not
designate subsurface critical habitat. However, we are designating
subsurface critical habitat for the Comal Springs dryopid beetle and
the Peck's cave amphipod in this rule.
(2) The amount of critical habitat is increasing in this rule
because: (a) We are including subsurface habitat for the Comal Springs
dryopid beetle and Peck's Cave amphipod, and (b) we are including the
surface area extending 50 ft (15 m) from the shoreline for the Comal
Springs riffle beetle.
(3) The primary constituent elements have been modified to better
incorporate and define subsurface attributes.
Final Critical Habitat Designation
We are designating four units as critical habitat for the three
invertebrates. The critical habitat areas we describe below constitute
our best assessment of areas that meet the definition of critical
habitat for the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod. The four units are: (1) Comal
Springs, (2) Hueco Springs, (3) Fern Bank Springs, and (4) San Marcos
Springs. Table 1 shows the occupied units, and Tables 2, 3, and 4
provide the approximate size of each critical habitat unit for each
species.
Table 1--Occupancy of Comal Springs Dryopid Beetle, Comal Spring Riffle Beetle, and Peck's Cave Amphipod by
Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
Occupied at time of
Unit listing? Currently occupied? Listed species in unit
----------------------------------------------------------------------------------------------------------------
1. Comal Springs................. Yes...................... Yes..................... Comal Springs dryopid
beetle, Comal Springs
riffle beetle, and
Peck's Cave amphipod.
2. Hueco Springs................. Yes...................... Yes..................... Peck's Cave amphipod.
3. Fern Bank Springs............. Yes...................... Yes..................... Comal Springs dryopid
beetle.
4. San Marcos Springs............ Yes...................... Yes..................... Comal Springs riffle
beetle.
----------------------------------------------------------------------------------------------------------------
Table 2--Critical Habitat Units for the Comal Springs Dryopid Beetle. Area Estimates Reflect All Land Within
Critical Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
Size of unit in acres Size of unit in acres
Critical habitat units for the Comal Land ownership by type (hectares) (subsurface (hectares) (surface
Springs Dryopid Beetle critical habitat) critical habitat)
----------------------------------------------------------------------------------------------------------------
1. Comal Springs..................... State, City, Private... 124 (50) 38 (15)
2. Fern Bank Springs................. Private................ 15 (6) 1.4 (0.56)
-------------------------------------------------
Total............................ ....................... 139 (56) 39.4 (15.56)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
[[Page 63109]]
Table 3--Critical Habitat Units for the Comal Springs Riffle Beetle.
Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries
------------------------------------------------------------------------
Critical habitat units for Size of unit in acres
the Comal Springs Riffle Land ownership (hectares) (surface
Beetle by type critical habitat)
------------------------------------------------------------------------
1. Comal Springs............. State, City, 38 (15)
Private.
2. San Marcos Springs........ State........... 16 (6)
------------------------
Total.................... ................ 54 (22)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Table 4--Critical Habitat Units for the Peck's Cave Amphipod. Area Estimates Reflect All Land Within Critical
Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
Size of unit in acres Size of unit in acres
Critical habitat units for the Peck's Land ownership by type (hectares) (subsurface (hectares) (surface
Cave Amphipod critical habitat) habitat)
----------------------------------------------------------------------------------------------------------------
1. Comal Springs..................... State, City, Private... 124 (50) 38 (15)
2. Hueco Springs..................... Private................ 14 (6) 0.4 (0.16)
-------------------------------------------------
Total............................ ....................... 138 (56) 38.4 (15.16)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for the Comal Springs dryopid
beetle, Comal Springs riffle beetle, and Peck's cave amphipod, below.
Unit 1: Comal Springs Unit
The purpose of this unit is to independently support a population
of Comal Springs dryopid beetle, Comal Springs riffle beetle, and
Peck's cave amphipod in a functioning spring system with associated
streams and underground spaces immediately inside of or adjacent to
springs, seeps, and upwellings that provide suitable water quality,
supply, and detritus (decomposed plant material).
Unit 1 contains Comal Springs and consists of 124 ac (50 ha) of
subsurface critical habitat for the Comal Springs dryopid beetle and
the Peck's cave amphipod (Tables 2 and 4). Unit 1 also contains 38 ac
(15 ha) of surface habitat for these two species and the Comal Springs
riffle beetle (Table 3). This unit was occupied at the time of listing
and is still occupied by the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod (Table 1).
Portions of the Comal Springs Unit are owned by the State of Texas,
City of New Braunfels, and private landowners in southern Comal County,
Texas. A large portion of the unit is operated as a city park (Landa
Park) with private residences and landscaped yards along the edge of
the lower part of the unit. The surface water and bottom of Landa Lake
are State-owned. The City of New Braunfels owns approximately 40
percent of the land surface adjacent to the lake, and private
landowners own approximately 60 percent. This nearly L-shaped lake is
surrounded by the City of New Braunfels. The spring system primarily
occurs as a series of spring outlets that lie along the west shore of
Landa Lake and within the lake itself. Practically all of the spring
outlets and spring runs associated with Comal Springs occur within the
upper part of the lake above the confluence of Spring Run No. 1 to the
lake.
This unit contains all of the essential physical and biological
features for these species. The physical or biological features in this
unit require special management or protection because of the potential
for depletion of spring flow from water withdrawals, hazardous
materials spills from a variety of sources in the watershed, pesticide
use throughout the watershed, excavation and construction surrounding
the springs and in the watershed, stormwater pollutants in the
watershed, and invasive species impacts on the surface habitat.
Unit 2: Hueco Springs
The purpose of this unit is to independently support a population
of Peck's cave amphipod in a functioning spring system with associated
streams and underground spaces immediately inside of or adjacent to
springs, seeps, and upwellings that provide suitable water quality,
supply, and detritus (decomposed plant material).
Unit 2 contains Hueco Springs and consists of 14 ac (6 ha) of
subsurface and 0.4 ac (0.16 ha) of surface critical habitat for the
Peck's cave amphipod (Table 4). This unit was occupied at the time of
listing and is still occupied by the Peck's cave amphipod (Table 1).
The Hueco Springs Unit is on private land in Comal County, Texas.
The property is primarily undeveloped. The spring system has a main
outlet that is located approximately 0.1 mi (0.2 km) south of the
junction of Elm Creek with the Guadalupe River in Comal County. The
main outlet itself lies approximately 500 ft (152 m) from the west bank
of the Guadalupe River. Several satellite springs lie farther south
between the main outlet and the river. The main outlet of Hueco Springs
is located on undeveloped land, but the associated satellite springs
occur within a privately owned campground for recreational vehicles.
There is an access road to a field for parking, but no facilities or
utilities.
This unit contains all of the essential physical and biological
features for this species. The physical or biological features in this
unit require special management because of the potential for depletion
of spring flow from water withdrawals, pesticide use throughout the
watershed, and excavation and construction surrounding the springs and
in the watershed.
Unit 3: Fern Bank Springs
The purpose of this unit is to independently support a population
of Comal Springs dryopid beetle in a functioning spring system with
associated streams and underground spaces immediately inside of or
adjacent to springs, seeps, and upwellings that provide suitable water
quality, supply,
[[Page 63110]]
and detritus (decomposed plant material).
Unit 3 contains Fern Bank Springs and consists of 15 ac (6 ha) of
subsurface and 1.4 ac (0.56 ha) of surface critical habitat for the
Comal Springs dryopid beetle (Table 2). This unit was occupied at the
time of listing and is still occupied by the Comal Springs dryopid
beetle (Table 1).
The Fern Bank Springs Unit is on private land in Hays County,
Texas, approximately 0.2 mi (0.4 km) east of the junction of Sycamore
Creek with the Blanco River. The property and surrounding area are
primarily undeveloped. However, there is one rural residential home,
which is a small portion of this unit. The spring system consists of a
main outlet and a number of seep springs that occur at the base of a
high bluff along the Blanco River.
This unit contains all of the essential physical and biological
features for this species. The physical or biological features in this
unit require special management because of the potential for depletion
of spring flow from water withdrawals, pesticide use throughout the
watershed, and excavation and construction surrounding the springs and
in the watershed.
Unit 4: San Marcos Springs
The purpose of this unit is to independently support a population
of Comal Springs riffle beetle in a functioning spring system with
associated streams that provide suitable water quality, supply, and
detritus (decomposed plant material).
Unit 4 contains San Marcos Springs and consists of 16 ac (6 ha) of
surface critical habitat for the Comal Springs riffle beetle (Table 3).
This unit was occupied at the time of listing and is still occupied by
the Comal Springs riffle beetle (Table 1).
This unit is located on State-owned lands in the City of San
Marcos, Hays County, Texas.
This unit contains all of the essential physical and biological
features for this species. The physical or biological features in this
unit require special management or protection because of the potential
for depletion of spring flow from water withdrawals, hazardous
materials spills from a variety of sources in the watershed, pesticide
use throughout the watershed, excavation and construction surrounding
the springs and in the watershed, stormwater pollutants in the
watershed, and invasive species impacts on the surface habitat.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. 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 listed under the Act
or result in the destruction or adverse modification of critical
habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect 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
[[Page 63111]]
species. Activities that may destroy or adversely modify critical
habitat are those that alter the physical or biological features to an
extent that appreciably reduces the conservation value of critical
habitat for the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod. As discussed above, the role of
critical habitat is to support life-history needs of the species and
provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the three invertebrates. These activities include, but
are not limited to:
(1) Actions that would change the existing flow regimes and would
thereby significantly and detrimentally alter the primary constituent
elements necessary for conservation of these species. Such activities
could include, but are not limited to, water withdrawal, water
impoundment, and water diversions. These activities could eliminate or
reduce the habitat necessary for the growth and reproduction of these
species.
(2) Actions that would introduce, spread, or augment nonnative
species could destroy or adversely modify the critical habitat of any
listed invertebrate species. Such actions could include, but are not
limited to, stocking or otherwise transporting nonnative species into
critical habitat for any purpose.
(3) Actions that would alter current habitat conditions. Such
actions include, but are not limited to, the release of chemical or
biological pollutants into the surface water or connected groundwater
at a point source or by dispersed release (nonpoint source). These
activities could alter water conditions to a point that exceeds the
tolerances of the Comal Springs dryopid beetle, Comal Springs riffle
beetle, or Peck's cave amphipod, and results in direct or cumulative
adverse effects to these individuals and their life cycles, or
eliminates or reduces the habitat necessary for the growth,
reproduction, and survival of these invertebrate species.
(4) Actions that would physically remove or alter the habitat used
by the three invertebrates. These activities could lead to increased
sedimentation and degradation in water quality to levels that exceed
the tolerances of the Comal Springs dryopid beetle, Comal Springs
riffle beetle, or Peck's cave amphipod. Such activities could include,
but are not limited to, channelization, impoundment, road and bridge
construction, deprivation of substrate source, destruction and
alteration of riparian vegetation, excessive sedimentation from road
construction, vegetation removal, recreational facility development,
and other watershed disturbances.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographic 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 designation.'' There are no Department of Defense
lands within or near the revised critical habitat designation, so no
areas were exempted from the critical habitat designation under section
4(a)(3) 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. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise her discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis of the
proposed critical habitat designation and related factors. The draft
analysis, dated April 8, 2013, was made available for public review
from May 2, 2013, through June 3, 2013 (78 FR 25679). Following the
close of the comment period, a final analysis (dated June 19, 2013) of
the potential economic effects of the designation was developed taking
into consideration the public comments and any new information
(Industrial Economics, Incorporated 2013b).
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of all potential conservation efforts for the Comal
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave
amphipod; some of these costs will likely be incurred regardless of
whether we designate critical habitat (baseline). The economic impact
of the final 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 in
the final designation of critical habitat. The analysis looks
retrospectively at baseline impacts incurred since the
[[Page 63112]]
species was listed, and forecasts both baseline and incremental impacts
likely to occur with the designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA looks retrospectively at costs
that have been incurred since the species' listing in 1997 (62 FR
66295; December 18, 1997), and considers those costs that may occur in
the 20 years following the designation of critical habitat. Twenty
years was determined to be the appropriate period for analysis because
limited planning information was available for most activities to
forecast activity levels for projects beyond a 20-year timeframe. The
FEA quantifies economic impacts of Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod conservation efforts
associated with the following categories of activity: (1) Water
withdrawals, (2) construction or development projects, (3) water
quality-related projects, and (4) other miscellaneous projects with the
potential to affect the physical, biological, or hydrologic conditions
of proposed critical habitat.
The present value of total incremental costs of critical habitat
designation was estimated to be $71,000 over the next 20 years assuming
a 7 percent discount rate, or $6,300 on an annualized basis. The total
present value impacts are $80,000, or $5,200 on an annualized basis,
assuming a 3 percent discount rate. As highlighted in the FEA, the
Comal Springs Unit is likely to be subject to the greatest incremental
impacts, but these are expected to be limited to $28,000 over the next
20 years. For all three species, the economic impacts associated with
conservation efforts reflect increased administrative costs to
participate in section 7 consultations (Industrial Economics,
Incorporated 2013b, p. A-6).
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exerting her discretion to exclude any areas from this
designation of critical habitat for the Comal Springs dryopid beetle,
Comal Springs riffle beetle, and Peck's cave amphipod based on economic
impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Austin Ecological Services Field Office (see ADDRESSES)
or by downloading from the Internet at http://www.regulations.gov.
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 the lands within the designation of revised critical
habitat for the Comal Springs dryopid beetle, Comal Springs riffle
beetle, and Peck's cave amphipod are not owned or managed by the
Department of Defense or Department of Homeland Security, and,
therefore, we anticipate no impact on national security. Consequently,
the Secretary is not exercising her 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 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 that specifically address
all of the management needs for the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod, and the final
designation does not include any tribal lands or trust resources. In
the proposed rule we considered the exclusion of the springs covered by
the Edwards Aquifer Recovery Implementation Program (EARIP) HCP. During
the public comment periods for our proposed rule, we received no public
comments or requests for exclusions for the EARIP HCP. This HCP only
covers water withdrawal and water management activities within the
southern Edwards Aquifer. This HCP aims to maintain spring flows,
however, it is not a land-based HCP and the permittees do not own or
control land-based activities. Consequently, the Secretary is not
exercising her discretion to exclude any areas from the 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 (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish
a notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to
[[Page 63113]]
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 Comal springs dryopid beetle, Comal Springs riffle beetle, and
Peck's cave amphipod will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts on these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this
designation, as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the critical habitat designation, but the per-entity
economic impact is not significant, the Service may certify. Likewise,
if the per-entity economic impact is likely to be significant, but the
number of affected entities is not substantial, the Service may also
certify.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the E.O. regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.
In conclusion, we believe that, based on our interpretation of
directly regulated entities under the RFA and relevant case law, this
designation of critical habitat will only directly regulate Federal
agencies, which are not by definition small business entities. As such,
we certify that this designation of revised critical habitat will not
have a significant economic impact on a substantial number of small
business entities. Therefore, a final regulatory flexibility analysis
is not required. However, although not necessarily required by the RFA,
in our final economic analysis for this rule we considered and
evaluated the potential effects to third parties that may be involved
with consultations with Federal action agencies related to this action.
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 Comal Springs dryopid beetle, Comal Springs riffle
beetle, or Peck's cave amphipod. Federal agencies also must consult
with us if their activities may affect critical habitat. Designation of
critical habitat, therefore, could result in an additional economic
impact on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities (see Application of the
``Adverse Modification'' Standard section).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of the Comal
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave
amphipod and the designation of critical habitat. The analysis is based
on the estimated impacts associated with the rulemaking as described in
Chapters 1 and 2 and Appendix B of the analysis, and evaluates the
potential for economic impacts related to: (1) Water withdrawals, (2)
construction or development projects, (3) water quality-related
projects, and (4) other miscellaneous projects with the potential to
affect the physical, biological, or hydrologic conditions of proposed
critical habitat.
The FEA estimated incremental impacts that have the potential to be
borne by small entities are limited to the administrative costs of
section 7 consultation related to reinitiation of HCPs (six
consultations), Department of Defense (DOD) operations (two
consultations), as well as miscellaneous construction-related
activities in the Comal Springs and San Marcos Springs units that may
require a section 404 permit over the next 20 years (six
consultations). It was estimated that up to five developers could be
included as third parties participating in consultations associated
with construction-related activities within the Comal Springs unit. The
total cost of these five actions together is estimated to be $1,900 to
$2,100 annually, including Federal costs. This is not a significant
economic effect on a substantial number of small entities. The FEA
determined that the following activities are not expected to affect
small entities: (1) Consultations with DOD, (2) reinitiated
consultations associated with existing HCPs, and (3) one consultation
in San Marcos Springs involving the State of Texas (IEC 2013b, p. B-4).
In summary, we considered whether this designation would result in
a significant economic effect on a substantial number of small
entities.
[[Page 63114]]
Based on the above reasoning and currently available information, we
conclude 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 revised critical habitat for the
Comal Springs dryopid beetle, Comal Springs riffle beetle, and Peck's
cave amphipod will not have a significant economic impact on a
substantial number of small entities, and a regulatory flexibility
analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis finds that none of
these criteria is relevant to this analysis. Thus, based on information
in the economic analysis, energy-related impacts associated with
conservation activities for the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod within critical habitat
are not expected. As such, the designation of critical habitat is not
expected to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because the designation of critical habitat
imposes no obligations on State or local governments. By definition,
Federal agencies are not considered small entities, although the
activities they fund or permit may be proposed or carried out by small
entities. Consequently, we do not believe that the critical habitat
designation will significantly or uniquely affect small government
entities. As such, 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
revised critical habitat for the Comal Springs dryopid beetle, Comal
Springs riffle beetle, and Peck's cave amphipod 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. The takings implications
assessment concludes that this designation of revised critical habitat
for the Comal Springs dryopid beetle, Comal Springs riffle beetle, and
Peck's cave amphipod does not pose significant takings implications for
lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this revised critical habitat designation
with, appropriate State resource agencies in Texas. We received
comments from Texas Parks and Wildlife Department and have addressed
them in the Summary of Comments and Recommendations section of the
rule. From a federalism perspective, the designation of critical
habitat directly affects only the responsibilities of Federal agencies.
The Act imposes no other duties with respect to critical habitat,
either for States and local governments, or for anyone else. As a
result, the rule does not have substantial direct effects either on the
States, or on the relationship between the national government and the
States, or on the distribution of powers and responsibilities among the
various levels of government. The designation may have some benefit to
these governments because the areas that contain the features essential
to the conservation of the species are more
[[Page 63115]]
clearly defined, and the physical and biological 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 these local
governments in long-range planning (because these local governments no
longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating revised
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the Comal Springs dryopid beetle,
Comal Springs riffle beetle, and Peck's cave amphipod. The designated
areas of critical habitat are presented on maps, and the rule provides
several options for the interested public to obtain more detailed
location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain 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 (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Because Texas is
not in the Tenth Circuit jurisdiction, we have not prepared an
environmental assessment pursuant to NEPA.
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 Comal Springs dryopid beetle, Comal Springs
riffle beetle, or Peck's cave amphipod at the time of listing that
contain the physical or biological features essential to conservation
of the species, and no tribal lands unoccupied by the Comal Springs
dryopid beetle, Comal Springs riffle beetle, or Peck's cave amphipod
that are essential for the conservation of the species. Therefore, we
are not designating revised critical habitat for the Comal Springs
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod
on tribal lands.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov and upon request from the
Austin Ecological Services Field Office (see ADDRESSES).
Authors
The primary authors of this package are the staff members of the
Austin Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.95 by:
0
a. In paragraph (h), revising the critical habitat entry for ``Peck's
cave amphipod (Stygobromus pecki)''; and
0
b. In paragraph (i), revising the critical habitat entries for ``Comal
Springs dryopid beetle (Stygoparnus comalensis)'' and ``Comal Springs
riffle beetle (Heterelmis comalensis)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) Crustaceans.
* * * * *
Peck's Cave Amphipod (Stygobromus pecki)
(1) Critical habitat units are depicted for this species in Comal
County, Texas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of Peck's
cave amphipod consist of these components:
(i) Springs, associated streams, and underground spaces immediately
inside of or adjacent to springs, seeps, and upwellings that include:
(A) High-quality water with no or minimal pollutant levels of
soaps, detergents, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, and semivolatile compounds such as industrial
cleaning agents; and
[[Page 63116]]
(B) Hydrologic regimes similar to the historical pattern of the
specific sites, with continuous surface flow from the spring sites and
in the subterranean aquifer;
(ii) Spring system water temperatures that range from approximately
68 to 75[emsp14][deg]F (20 to 24 [deg]C); and
(iii) Food supply that includes, but is not limited to, detritus
(decomposed materials), leaf litter, living plant material, algae,
fungi, bacteria, other microorganisms, and decaying roots.
(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 on the surface within the legal
boundaries on November 22, 2013.
(4) Critical habitat map units. Data layers defining map units were
created using geographic information systems (GIS), which included
species locations, roads, property boundaries, 2011 aerial photography,
and USGS 7.5' quadrangles. Points were placed in the GIS. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the Service's Internet site at http://www.fws.gov/southwest/es/austintexas/, at http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, and at the field office responsible for this critical
habitat 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) The index map of the critical habitat units for the Peck's cave
amphipod follows:
BILLING CODE 4310-55-P
[[Page 63117]]
[GRAPHIC] [TIFF OMITTED] TR23OC13.004
(6) Unit 1: Comal Springs Unit, Comal County, Texas. Map of the
Comal Springs Unit follows:
[[Page 63118]]
[GRAPHIC] [TIFF OMITTED] TR23OC13.005
(7) Unit 2: Hueco Springs Unit, Comal County, Texas. Map of the
Hueco Springs Unit follows:
[[Page 63119]]
[GRAPHIC] [TIFF OMITTED] TR23OC13.006
[[Page 63120]]
* * * * *
(i) Insects.
* * * * *
Comal Springs dryopid beetle (Stygoparnus comalensis)
(1) Critical habitat units are depicted for this species in Comal
and Hays Counties, Texas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the Comal Springs dryopid
beetle consist of these components:
(i) Springs, associated streams, and underground spaces immediately
inside of or adjacent to springs, seeps, and upwellings that include:
(A) High-quality water with no or minimal pollutant levels of
soaps, detergents, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, and semivolatile compounds such as industrial
cleaning agents; and
(B) Hydrologic regimes similar to the historical pattern of the
specific sites, with continuous surface flow from the spring sites and
in the subterranean aquifer;
(ii) Spring system water temperatures that range from approximately
68 to 75[emsp14][deg]F (20 to 24 [deg]C); and
(iii) Food supply that includes, but is not limited to, detritus
(decomposed materials), leaf litter, living plant material, algae,
fungi, bacteria, other microorganisms, and decaying roots.
(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 on the surface within the legal
boundaries on November 22, 2013.
(4) Critical habitat map units. Data layers defining map units were
created using geographic information systems (GIS), which included
species locations, roads, property boundaries, 2011 aerial photography,
and USGS 7.5' quadrangles. Points were placed in the GIS. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the Service's Internet site at http://www.fws.gov/southwest/es/austintexas/, at http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, and at the field office responsible for this critical
habitat 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) The index map of the critical habitat units for the Comal
Springs dryopid beetle follows:
[[Page 63121]]
[GRAPHIC] [TIFF OMITTED] TR23OC13.007
(6) Unit 1: Comal Springs Unit, Comal County, Texas. Map of the
Comal Springs Unit follows:
[[Page 63122]]
[GRAPHIC] [TIFF OMITTED] TR23OC13.008
(7) Unit 2: Fern Bank Springs Unit, Hays County, Texas. Map of the
Fern Bank Springs Unit follows:
[[Page 63123]]
[GRAPHIC] [TIFF OMITTED] TR23OC13.009
Comal Springs riffle beetle (Heterelmis comalensis)
(1) Critical habitat units are depicted for this species in Comal
and Hays Counties, Texas, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the Comal Springs riffle
beetle consist of these components:
(i) Springs, associated streams, and underground spaces immediately
inside of or adjacent to springs, seeps, and upwellings that include:
(A) High-quality water with no or minimal pollutant levels of
soaps,
[[Page 63124]]
detergents, heavy metals, pesticides, fertilizer nutrients, petroleum
hydrocarbons, and semivolatile compounds such as industrial cleaning
agents; and
(B) Hydrologic regimes similar to the historical pattern of the
specific sites, with continuous surface flow from the spring sites and
in the subterranean aquifer;
(ii) Spring system water temperatures that range from approximately
68 to 75[emsp14][deg]F (20 to 24 [deg]C); and
(iii) Food supply that includes, but is not limited to, detritus
(decomposed materials), leaf litter, living plant material, algae,
fungi, bacteria, other microorganisms, and decaying roots.
(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 on the surface within the legal
boundaries on November 22, 2013.
(4) Critical habitat map units. Data layers defining map units were
created using geographic information systems (GIS), which included
species locations, roads, property boundaries, 2011 aerial photography,
and USGS 7.5' quadrangles. Points were placed on the GIS. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates or
plot points or both on which each map is based are available to the
public at the Service's Internet site at http://www.fws.gov/southwest/es/austintexas/, at http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, and at the field office responsible for this critical
habitat 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) The index map of critical habitat units for the Comal Springs
riffle beetle follows:
[[Page 63125]]
[GRAPHIC] [TIFF OMITTED] TR23OC13.010
(6) Unit 1: Comal Springs Unit, Comal County, Texas. Map of the
Comal Springs Unit follows:
[[Page 63126]]
[GRAPHIC] [TIFF OMITTED] TR23OC13.011
(7) Unit 2: San Marcos Springs Unit, Hays County, Texas. Map of the
San Marcos Springs Unit follows:
[[Page 63127]]
[GRAPHIC] [TIFF OMITTED] TR23OC13.012
* * * * *
Dated: September 27, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-24168 Filed 10-22-13; 8:45 am]
BILLING CODE 4310-55-C