[Federal Register Volume 80, Number 71 (Tuesday, April 14, 2015)]
[Proposed Rules]
[Pages 19941-19953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08277]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0002; 4500030113]
RIN 1018-AZ23
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Zuni Bluehead Sucker
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the public comment period on the January 25, 2013,
proposed designation of critical habitat for the Zuni bluehead sucker
(Catostomus discobolus yarrowi) under the Endangered Species Act of
1973, as amended (Act). We also announce the availability of the draft
economic analysis, draft environmental assessment, and amended required
determinations of the proposed designation. In addition, we are
proposing revisions to the proposed critical habitat boundaries that
would decrease our total proposed critical habitat designation for the
Zuni bluehead sucker from approximately 475.3 kilometers (291.3 miles)
to approximately 228.4 kilometers (141.9 miles). We are reopening the
comment period to allow all interested parties an opportunity to
comment simultaneously on the revisions to the proposed critical
habitat designation described in this document, the associated draft
economic analysis and draft environmental assessment, and the amended
required determinations section. Comments previously submitted need not
be resubmitted, as they will be fully considered in preparation of the
final rule.
DATES: We will consider comments received or postmarked on or before
May 14, 2015. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date. Any comments that we
receive after the closing date may not be considered in the final
decision on this action.
ADDRESSES:
Document availability: You may obtain copies of the proposed rule,
the draft economic analysis, and the draft environmental assessment on
the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0002 or by mail from the New Mexico Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Written comments: You may submit written comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the critical habitat proposal,
draft economic analysis, and draft environmental assessment by
searching for Docket No. FWS-R2-ES-2013-0002, which is the docket for
this rulemaking.
(2) By hard copy: Submit comments on the critical habitat proposal,
draft economic analysis, and draft environmental assessment by U.S.
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-
2013-0002; Division of Policy, Performance, and Management Programs;
U.S. Fish and Wildlife Service; 5275 Leesburg Pike MS: BPHC, Falls
Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section, below, for more information).
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna NE., Albuquerque, NM 87113; by telephone 505-346-
2525; or
[[Page 19942]]
by facsimile 505-346-2542. Persons who use a telecommunications device
for the deaf (TDD) may call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We are reopening the comment period for our proposed critical
habitat designation for the Zuni bluehead sucker that was published in
the Federal Register on January 25, 2013 (78 FR 5351). We are
specifically seeking comments on the revisions to the proposed critical
habitat designation described in this document, and on the draft
economic analysis and the draft environmental assessment, which are now
available, for the critical habitat designation; see ADDRESSES for
information on how to submit your comments. We will consider
information and recommendations from all interested parties. We are
also particularly interested in comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including whether there are threats to the subspecies from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(2) Specific information on:
(a) The amount and distribution of Zuni bluehead sucker habitat;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the subspecies, should be included in the designation
and why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the subspecies and why.
(3) Land use designations and current or planned activities in the
subject areas and their probable impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Zuni bluehead sucker and proposed critical
habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, we seek information on any impacts on small
entities or families, and the benefits of including or excluding areas
that exhibit these impacts.
(6) Information on the extent to which the description of economic
impacts in the draft economic analysis is complete and accurate and the
description of the environmental impacts in the draft environmental
assessment is complete and accurate.
(7) Whether any areas we are proposing for critical habitat
designation, and specifically proposed critical habitat on Tribal lands
owned by the Navajo Nation and Zuni Pueblo, should be considered for
exclusion under section 4(b)(2) of the Act, and whether the benefits of
potentially excluding any specific area outweigh the benefits of
including that area under section 4(b)(2) of the Act.
(8) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
(9) Information about the habitat conditions within the proposed
critical habitat designation for the Zuni bluehead sucker, especially
the quality and quantities of the primary constituent elements (PCEs),
particularly within the Rio Nutria above the Tampico Draw confluence,
Rio Pescado, and Cebolla Creek.
If you submitted comments or information on the proposed critical
habitat rule (78 FR 5351; January 25, 2013) during the initial comment
period from January 25, 2013, to March 26, 2013, please do not resubmit
them. We have incorporated them into the public record, and we will
fully consider them in the preparation of our final rule. Our final
determination concerning critical habitat will take into consideration
all written comments and any additional information we receive during
both comment periods. On the basis of public comments and other
relevant information, we may, during the development of our final
determination on the proposed critical habitat designation, find that
areas proposed are not essential, are appropriate for exclusion under
section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed
critical habitat designation, draft economic analysis, or draft
environmental assessment by one of the methods listed in the ADDRESSES
section. We request that you send comments only by the methods
described in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule, the draft
economic analysis, and the draft environmental assessment, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R2-ES-2013-0002, or by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may
obtain copies of the proposed rule, the draft economic analysis, and
the draft environmental assessment on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0002, or by mail from
the New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the Zuni bluehead sucker in
this document. For more information on previous Federal actions
concerning the designation of critical habitat, refer to the proposed
critical habitat rule, published in the Federal Register on January 25,
2013 (78 FR 5351). For more information on the Zuni bluehead sucker or
its habitat, refer to the final listing rule, published in the Federal
Register on July 24, 2014 (79 FR 43132) and the proposed critical
habitat rule, published on January 25, 2013 (78 FR 5351), or contact
the New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Previous Federal Actions
On January 25, 2013, we concurrently published a proposed rule to
list as endangered and a proposed rule to designate critical habitat
for the Zuni bluehead sucker (78 FR 5369 and 78 FR 5351, respectively).
We proposed to designate approximately 475.3 kilometers (km) (291.3
miles (mi)) in three units in McKinley, Cibola, and San Juan Counties,
New Mexico, and Apache County, Arizona as critical
[[Page 19943]]
habitat. That proposal had a 60-day comment period, ending March 26,
2013.
After the publication of the proposed rules, we found there was
substantial scientific disagreement regarding the taxonomic status of
some populations that we considered Zuni bluehead sucker in the
proposed listing rule. On January 9, 2014, we published in the Federal
Register a document that reopened the comment period for the proposed
listing rule and extended the final determination for the Zuni bluehead
sucker by 6 months due to substantial disagreement regarding the Zuni
bluehead sucker's taxonomic status in some locations (79 FR 1615). That
comment period closed on February 10, 2014. Based on information
received during the comment period, we revised the Zuni bluehead
sucker's range in the final listing rule. An error was reported in the
genetic data evaluated for the proposed listing rule (Schwemm and
Dowling 2008, entire); the correct information led to the determination
that the bluehead suckers in the Lower San Juan River watershed
(proposed critical habitat Unit 3; San Juan River Unit) were bluehead
suckers (Catostomus discobolus), not Zuni bluehead suckers (Catostomus
discobolus yarrowi). Thus, the San Juan River Unit populations were no
longer included in the final listing rule. We published in the Federal
Register a final listing determination for the Zuni bluehead sucker on
July 24, 2014 (79 FR 43132).
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. If the
proposed rule is made final, section 7 of the Act will prohibit
destruction or adverse modification of critical habitat by any activity
funded, authorized, or carried out by any Federal agency. Federal
agencies proposing actions affecting critical habitat must consult with
us on the effects of their proposed actions, under section 7(a)(2) of
the Act.
Changes From Previously Proposed Critical Habitat
In this document, we are proposing revisions to the critical
habitat designation for the Zuni bluehead that we proposed on January
25, 2013 (78 FR 5351). These revisions are based on information we
received during the comment period. The best available information
identifies that Zuni bluehead sucker does not occur in proposed Unit 3
(San Juan River Unit), and a portion of proposed Unit 1 (Zuni River
Unit) does not meet the definition of critical habitat. We are not
proposing any revisions to proposed Unit 2 (Kinlichee Creek Unit). As a
result of the removal of proposed Unit 3 and a portion of Unit 1 from
our proposed critical habitat designation, the total amount of proposed
critical habitat for the Zuni bluehead sucker is decreased from
approximately 475.3 kilometers (km) (291.3 miles (mi)) to approximately
228.4 km (141.9 mi).
Based on new information regarding the proposed Zuni River Unit
(Unit 1), we are removing the Rio Pescado above Pescado Dam from the
proposed critical habitat within the Zuni River Mainstem (Subunit 1b).
We originally proposed 107.8 km (67.0 mi) along the Zuni River, Rio
Pescado, and Cebolla Creek as critical habitat for the Zuni bluehead
sucker in Subunit 1b. Although we considered the entire subunit to be
unoccupied, we stated in the proposed designation that this subunit is
essential for the conservation of the Zuni bluehead sucker because it
provides for connection between populations and also provides space for
the growth and expansion of the subspecies in this portion of its
historical range. However, the presence of primary constituent elements
in this unit had not been investigated in any detail at the time of the
proposed critical habitat designation. Based upon further
investigation, this area of the Rio Pescado (above Pescado Dam) is a
dry wash with no running water present except during periods of rain;
this reach likely never had perennial flow. As a result, stream habitat
(pools, runs, riffles) and substrate (gravel, cobble) are absent, and
the area does not meet the habitat needs for any life stage, nor does
it provide connectivity to any population of Zuni bluehead sucker, nor
do we expect that it ever was habitat for the subspecies in the past.
Therefore, we are removing this portion of Subunit 1b from our proposed
critical habitat designation because suitable habitat is absent and is
unlikely to develop, and the segment is not essential to the
conservation of the subspecies. The removal of critical habitat above
Pescado Dam in Subunit 1b will reduce the total proposed critical
habitat designation for Unit 1 from 182 km (113.1 mi) to 131.8 km (81.9
mi).
In addition to these revisions to proposed Unit 1, we are removing
the entire San Juan River Unit (proposed Unit 3) from our proposed
critical habitat designation; this area includes 196.8 km (118.2 mi) of
Navajo Nation lands. We originally proposed two subunits within the San
Juan River Unit. The proposed Subunit 3a (Canyon de Chelly) included
187.9 km (112.7 mi) along Tsaile Creek, Wheatfields Creek, Whiskey
Creek, Coyote Wash, Crystal Creek, and Sonsela Creek in Apache County,
Arizona, and San Juan County, New Mexico. In the proposed critical
habitat designation, we stated that the Zuni bluehead sucker occupies
all stream reaches in this subunit, and the subunit contains all of the
primary constituent elements of the physical or biological features
essential to the conservation of the subspecies. The proposed Subunit
3b (Little Whiskey Creek) included 8.9 km (5.5 mi) along Little Whiskey
Creek in San Juan County, New Mexico. We identified this area as
unoccupied in the proposed critical habitat designation, but we
concluded that the area was essential to the conservation of the
subspecies.
Since the proposed critical habitat designation, we concluded in
the final listing determination (79 FR 43132, July 24, 2014) that the
bluehead suckers in the Lower San Juan River watershed should not be
recognized as part of the Zuni bluehead sucker subspecies. Rather, the
best scientific and commercial information available, including peer
review comments we received during the comment period for the 6-month
extension (79 FR 1615, January 9, 2014), indicates that these
populations in the proposed San Juan River Unit (Unit 3) are bluehead
suckers rather than Zuni bluehead suckers. Therefore, while the
originally proposed Unit 3 may be important for bluehead suckers, the
originally proposed Unit 3 can no longer be considered essential for
the conservation of the Zuni bluehead sucker. Therefore, we are
removing the San Juan River Unit from proposed critical habitat.
Revised Proposed Unit Descriptions for the Zuni Bluehead Sucker
Table 1, below, shows the occupancy, land ownership, and
approximate areas of the revised proposed critical habitat units for
the Zuni bluehead sucker. Following the table, we present a revised
description of Subunit 1b.
[[Page 19944]]
Table 1--Revised Proposed Critical Habitat Units for Zuni Bluehead Sucker
[Area estimates reflect all land within critical habitat unit boundaries]
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Length of unit
Stream segment Occupied at the time of Land ownership in kilometers
listing (miles)
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Unit 1-Zuni River Unit
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Subunit 1a--Zuni River Headwaters
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Agua Remora............................. Yes....................... Forest Service............ 6.6 (4.1)
Private................... 2.4 (1.5)
Rio Nutria.............................. Yes....................... Zuni Pueblo............... 38.9 (24.2)
Forest Service............ 4.1 (2.6)
State of New Mexico....... 1.8 (1.1)
Private................... 14.2 (8.8)
Tampico Draw............................ Yes....................... Forest Service............ 2.3 (1.4)
Private................... 3.7 (2.3)
Tampico Spring.......................... Yes....................... Private................... 0.2 (0.1)
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Total............................... .......................... .......................... 74.2 (46.1)
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Subunit 1b--Zuni River Mainstem
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Zuni River.............................. No........................ Zuni Pueblo............... 7.4 (4.6)
Rio Pescado............................. No........................ Zuni Pueblo............... 18.3 (11.4)
Cebolla Creek........................... No........................ Zuni Pueblo............... 3.7 (2.3)
State of New Mexico....... 0.4 (0.2)
Forest Service............ 6.4 (4.0)
Private................... 21.4 (13.3)
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Total............................... .......................... .......................... 57.6 (35.8)
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Unit 2--Kinlichee Creek Unit
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Subunit 2a--Kinlichee Creek
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Black Soil Wash......................... Yes....................... Navajo Nation............. 21.6 (13.4)
Kinlichee Creek......................... Yes....................... Navajo Nation............. 47.1 (29.3)
Scattered Willow Wash................... Yes....................... Navajo Nation............. 18.2 (11.3)
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Total............................... .......................... .......................... 86.9 (54.0)
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Subunit 2b--Red Clay Wash
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Red Clay Wash........................... No........................ Navajo Nation............. 9.6 (6.0)
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Total............................... .......................... .......................... 9.6 (6.0)
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Note: Area sizes may not sum due to rounding.
Unit 1: Zuni River Unit
Subunit 1b: Zuni River Mainstem: Subunit 1b consists of 57.6 km
(35.8 mi) of potential Zuni bluehead sucker habitat along the Zuni
River, Rio Pescado (below Pescado Dam), and Cebolla Creek in McKinley
and Cibola Counties, New Mexico. Land within this subunit is primarily
owned by Zuni Pueblo and private landowners, with a small amount of
Forest Service and State land. The Zuni bluehead sucker historically
occupied these streams but has not been found in the Zuni River or Rio
Pescado since the mid-1990s (NMDGF 2004, p. 5), and has been extirpated
from Cebolla Creek since at least 1979 (Hanson 1980, pp. 29, 34). We
consider this unit unoccupied. When wetted, the Zuni River and Rio
Pescado (below Pescado Dam) could provide important connections between
occupied reaches in Subunit 1a and potential future populations in
Cebolla Creek, which has been identified as containing suitable habitat
in the past and could provide for significant population expansion.
Therefore, this subunit is essential for the conservation of the Zuni
bluehead sucker because it provides for connection between populations
and also provides for the growth and expansion of the subspecies in
this portion of its historical range.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if the Secretary determines the benefits of excluding the area outweigh
the benefits of including the area as critical habitat, provided that
such exclusion will not result in the extinction of the species.
When considering the benefits of inclusion of an area, we consider
among other factors, the additional regulatory benefits that an area
would receive through the analysis under section 7 of the Act
addressing the destruction or adverse modification of critical habitat
as a result of actions with a Federal nexus (activities conducted,
funded, permitted, or authorized by Federal agencies), the educational
benefits of identifying areas containing essential
[[Page 19945]]
features that aid in the recovery of the listed species, and any
ancillary benefits triggered by existing local, State or Federal laws
as a result of the critical habitat designation.
When considering the benefits of excluding a particular area, we
consider, among other things, whether exclusion of a specific area is
likely to incentivize or result in the conservation of the species and
its habitat; the continuation, strengthening, or encouragement of
partnerships; or implementation of a conservation or management plan
for the species and its habitat. However, we are considering exclusion
of the proposed critical habitat areas owned by the Navajo Nation and
Zuni Pueblo to the extent consistent with the requirements of section
4(b)(2) of the Act. Areas owned by the Zuni Pueblo that we are
considering for exclusion from the final critical habitat designation
include 38.9 km (24.2 mi) in Subunit 1a and 29.4 km (18.3 mi) in
Subunit 1b. In addition, the Navajo Nation owns all of the proposed
critical habitat in Subunit 2a (86.9 km (54 mi)) and Subunit 2b (9.6 km
(6.0 mi)). For the reasons described below, the Service is also
considering all of these Navajo Nation lands for exclusion under
section 4(b)(2) of the Act.
In July 2012, we sent notification letters to the Tribes describing
the exclusion process under section 4(b)(2) of the Act, and we have
engaged in conversations with both Tribes about the proposed
designation to the extent possible without disclosing predecisional
information. In March 2013, we attended a coordination meeting with the
Navajo Nation to discuss the proposed designation, and the Navajo
Nation provided additional information regarding their land management
practices and the potential for developing a fisheries management plan
for sport and native fisheries on their lands. Since the meeting, we
have received information from the Navajo Nation that they are in the
process of amending the Navajo Nation Fisheries Management Plan to
ensure that native fishes are the priority in stream fisheries
management. We are also working with the Zuni Pueblo to develop a
management plan for their lands. The Navajo Nation provided for review
a draft management plan that specifically addresses the Zuni bluehead
sucker, and we anticipate a final draft will be developed. Although we
have not yet received a draft management plan from the Zuni Pueblo, we
are working with the Pueblo to assist in the preparation of these
documents to provide for the benefit of the subspecies and its habitat.
In addition to these management plans under development by the
Tribes, the Service also is considering exclusion of these Tribal lands
based on the working relationship we have established with the Tribes.
We are aware that designation of critical habitat on tribal lands is
generally viewed as an intrusion on their sovereign abilities to manage
natural resources in accordance with their own policies, customs, and
laws. To this end, we have received public comments indicating that
Tribes prefer to work with us on a government-to-government basis.
Therefore, we are considering exclusion of these Tribal lands in
proposed Units 1 and 2 to maintain our working relationships with the
Tribes.
In the case of the Zuni bluehead sucker, the benefits of
designating critical habitat include increasing public awareness of the
presence of the Zuni bluehead sucker and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for the Zuni bluehead sucker due to protection from
destruction or adverse modification of critical habitat.
A final decision on whether to exclude any areas will be based on
the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. We will take
into account public comments and carefully weigh the benefits of
exclusion versus inclusion of these areas.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
which includes the existing regulatory and socio-economic burden
imposed on landowners, managers, or other resource users potentially
affected by the designation of critical habitat (e.g., under the
Federal listing as well as other Federal, State, and local
regulations). The baseline, therefore, represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a 4(b)(2) economic
exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Zuni bluehead sucker (IEc 2014, entire). We
began by conducting a screening analysis of the proposed designation of
critical habitat in order to focus our analysis on the key factors that
are likely to result in incremental economic impacts. The purpose of
the screening analysis is to filter out the geographic areas in which
the critical habitat designation is unlikely to result in probable
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes probable economic impacts where land and water use may be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. The screening analysis
filters out particular areas of critical habitat that are already
subject to such protections and assesses whether units are unoccupied
by the species and may require additional management or conservation
efforts as a result of the critical habitat designation
[[Page 19946]]
for the species. This screening analysis combined with the information
contained in our IEM are what we consider our draft economic analysis
of the proposed critical habitat designation for the Zuni bluehead
sucker and is summarized in the narrative below.
Executive Orders 12866 and 13563 direct Federal agencies to assess
the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the Executive Orders' regulatory analysis requirements, our
effects analysis under the Act, may take into consideration impacts to
both directly and indirectly impacted entities, where practicable and
reasonable. We assess to the extent practicable, the probable impacts,
if sufficient data are available, to both directly and indirectly
impacted entities. As part of our screening analysis, we considered the
types of economic activities that are likely to occur within the areas
likely affected by the critical habitat designation. In our evaluation
of the probable incremental economic impacts that may result from the
proposed designation of critical habitat for the Zuni bluehead sucker,
first we identified, in the IEM dated June 21, 2013, probable
incremental impacts associated with the following categories of
activity: (1) Federal lands management (Forest Service, U.S. Bureau of
Reclamation); (2) roadway and bridge construction; (3) agriculture; (4)
grazing; (5) groundwater pumping; (6) in-stream dams and diversions;
(7) storage and distribution of chemical pollutants; (8) dredging; (9)
commercial or residential development; (10) timber harvest; and (11)
recreation (including sport fishing and sport-fish stocking, off
highway vehicle activity). We considered each industry or category
individually. Additionally, we considered whether their activities have
any Federal involvement. Critical habitat designation will not affect
activities that do not have any Federal involvement; designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. In areas where the Zuni bluehead
sucker is present, Federal agencies are already required to consult
with the Service under section 7 of the Act on activities they fund,
permit, or implement that may affect the subspecies. If we finalize
this proposed critical habitat designation, consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process that will also
consider jeopardy to the listed subspecies.
In our IEM, we attempted to clarify the distinction between the
effects that result from the subspecies being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the Zuni
bluehead sucker critical habitat. Because the designation of critical
habitat for Zuni bluehead sucker was proposed concurrently with the
listing, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical and
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to the Zuni bluehead sucker would also likely
adversely affect the essential physical and biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
subspecies. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the Zuni bluehead
sucker totals approximately 228.4 km (141.9 mi), of which approximately
70 percent (161.1 km (100.1 mi)) is currently occupied by the
subspecies. In these areas, any actions that may affect the subspecies
or its habitat would also affect designated critical habitat and it is
unlikely that any additional conservation efforts would be recommended
to address the adverse modification standard over and above those
recommended as necessary to avoid jeopardizing the continued existence
of the Zuni bluehead sucker. Therefore, only administrative costs are
expected in approximately 70 percent of the proposed critical habitat
designation. While this additional analysis will require time and
resources by both the Federal action agency and the Service, it is
believed that, in most circumstances, these costs would predominantly
be administrative in nature and would not be significant.
The remaining 67.3 km (41.8 mi) (30 percent of the total proposed
critical habitat designation) are currently unoccupied by the
subspecies but are essential for the conservation of the subspecies. In
these unoccupied areas, any conservation efforts or associated probable
impacts would be considered incremental effects attributed to the
critical habitat designation. Within the 67.3 km (41.8 mi) of
unoccupied critical habitat, few actions are expected to occur that
would result in section 7 consultations or associated project
modifications. In particular, Subunit 2b (9.6 km (6.0 mi)) occurs
entirely on Navajo Nation lands, and based on the results of the
coordination efforts with the Navajo Nation (see IEM), we do not
anticipate that any projects will result in section 7 consultation
within the proposed critical habitat areas on these lands. Subunit 1b
(57.6 km (35.8 mi)) includes U.S. Forest Service (USFS), private,
State, and Zuni Pueblo lands. Communications with affected entities
indicate that critical habitat designation is likely only to result in
more than just a few consultations in this unit, with minor
conservation efforts that would likely result in relatively low
probable economic impacts. While current projects are not planned in
proposed critical habitat areas on Tribal lands, impacts to future
Tribal planning efforts could be affected by proposed critical habitat
designation. These future costs are unknown but expected to be
relatively small given the projections by effected entities; they are
unlikely to exceed $100 million in any single year and therefore would
not be significant.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Activities we expect will be subject to consultations that may involve
private entities as third parties are residential and commercial
development that may occur on Tribal or private lands. However, based
on coordination efforts with Tribal partners and State and local
agencies, the cost to private entities within these sectors is expected
to be relatively minor (administrative costs of less than $10,000 per
consultation effort) and therefore would not be significant.
The probable incremental economic impacts of the Zuni bluehead
sucker critical habitat designation are expected to be limited to
additional administrative effort as well as minor costs of conservation
efforts resulting from a small number of future section 7
consultations. This is due to two factors: (1) A large portion of
proposed critical habitat stream reaches are considered to be occupied
by the subspecies (70
[[Page 19947]]
percent), and incremental impacts of critical habitat designation,
other than administrative costs, are unlikely; and (2) in proposed
areas that are not occupied by Zuni bluehead sucker (30 percent), few
actions are anticipated that will result in section 7 consultation or
associated project modifications. At approximately $10,000 or less per
consultation, in order to reach the threshold of $100 million of
incremental administrative impacts in a single year, critical habitat
designation would have to result in more than 11,000 consultations in a
single year. Thus, the annual administrative burden is unlikely to
reach $100 million. While current development or other projects are not
planned in proposed critical habitat areas on Tribal lands, future
Tribal planning efforts could be affected by proposed critical habitat
designation, but future probable incremental economic impacts are not
likely to exceed $100 million in any single year. Additionally, as
described above, our consideration of exclusions on Tribal lands in
proposed Units 1 and 2 may result in the probable economic impact being
less than anticipated.
As we stated earlier, we are soliciting data and comments from the
public on our consideration of economic impacts, as well as all aspects
of the proposed rule and our amended required determinations. We may
revise the proposed rule or supporting documents to incorporate or
address information we receive during the public comment period. In
particular, we may exclude an area from critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of this species.
Draft Environmental Assessment
The purpose of the draft environmental assessment, prepared
pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C.
4321 et seq.), is to identify and disclose the environmental
consequences resulting from the proposed action of designation of
critical habitat for the Zuni bluehead sucker. In the draft
environmental assessment, three alternatives are evaluated: Alternative
A, the no action alternative; Alternative B, the proposed rule without
exclusion or exemption areas; and Alternative C, the proposed rule with
exclusion or exemption areas. The no action alternative is required by
NEPA for comparison to the other alternatives analyzed in the draft
environmental assessment. The no action alternative is equivalent to no
designation of critical habitat for the Zuni bluehead sucker. Under
Alternative B, critical habitat would be designated, as proposed, with
no exclusions. Under Alternative C, critical habitat would be
designated; however, Tribal lands on the Navajo Nation and Zuni Pueblo
would be excluded from critical habitat designation. Our preliminary
determination is that designation of critical habitat for the Zuni
bluehead sucker will not have direct significant impacts on the human
environment. However, we will further evaluate this issue as we
complete our final environmental assessment.
As we stated earlier, we are soliciting data and comments from the
public on the draft environmental assessment, as well as all aspects of
the proposed rule. We may revise the proposed rule or supporting
documents to incorporate or address information we receive during the
comment period on the environmental consequences resulting from our
designation of critical habitat.
Required Determinations--Amended
In our January 25, 2013, proposed rule (78 FR 5351), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until we had evaluated the probable
effects on landowners and stakeholders and the resulting probable
economic impacts of the designation. Following our evaluation of the
probable incremental economic impacts resulting from the designation of
critical habitat for the Zuni bluehead sucker, we have amended or
affirmed our determinations below. Specifically, we affirm the
information in our proposed rule concerning Executive Orders (E.O.s)
12866 and 13563 (Regulatory Planning and Review), E.O. 12630 (Takings),
E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211
(Energy, Supply, Distribution, or Use), and the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.). However, based primarily on our
evaluation of the probable incremental economic impacts of the proposed
designation of critical habitat for the Zuni bluehead sucker, we are
amending our required determinations concerning the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.), the National Environmental Policy Act (42
U.S.C. 4321 et seq.), and the President's Memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. Based on our evaluation of the probable
economic impacts of the proposed designation, we provide our analysis
for determining whether the proposed rule would result in a significant
economic impact on a substantial number of small entities. Based on
comments we receive, we may revise this determination as part of our
final rulemaking.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as
[[Page 19948]]
amended, and following recent court decisions, is that Federal agencies
are only required to evaluate the potential incremental impacts of
rulemaking on those entities directly regulated by the rulemaking
itself and, therefore, are not required to evaluate the potential
impacts to indirectly regulated entities. The regulatory mechanism
through which critical habitat protections are realized is section 7 of
the Act, which requires Federal agencies, in consultation with the
Service, to ensure that any action authorized, funded, or carried by
the agency is not likely to destroy or adversely modify critical
habitat. Therefore, under section 7, only Federal action agencies are
directly subject to the specific regulatory requirement (avoiding
destruction and adverse modification) imposed by critical habitat
designation. Consequently, it is our position that only Federal action
agencies would be directly regulated by this designation. There is no
requirement under RFA to evaluate the potential impacts to entities not
directly regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities would be directly regulated by
this rulemaking, the Service certifies that, if promulgated, the
proposed critical habitat designation will not have a significant
economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. For the
above reasons and based on currently available information, we certify
that, if promulgated, the proposed critical habitat designation would
not have a significant economic impact on a substantial number of small
business entities. Therefore, an initial regulatory flexibility
analysis is not required.
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 it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. Therefore, a Small Government Agency Plan is not required.
National Environmental Policy Act (NEPA; 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 as defined by NEPA in conjunction 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 (1966)). However,
when the range of the species includes States within the Tenth Circuit,
such as that of Zuni bluehead sucker, under the Tenth Circuit ruling in
Catron County Board of Commissioners v. U.S. Fish and Wildlife Service,
75 F.3d 1429 (10th Cir. 1996), we will undertake a NEPA analysis for
critical habitat designation. In accordance with the Tenth Circuit, we
have completed a draft environmental assessment to identify and
disclose the environmental consequences resulting from the proposed
designation of critical habitat. Our preliminary determination is that
the designation of critical habitat for the Zuni bluehead sucker would
not have direct significant impacts on the human environment. However,
we will further evaluate this issue as we complete our final
environmental assessment.
Government-To-Government Relationship With Tribes
In July 2012, we sent notification letters in to both the Navajo
Nation and Zuni Pueblo describing the exclusion process under section
4(b)(2) of the Act, and we have engaged in conversations with both
Tribes about the proposed designation to the extent possible without
disclosing predecisional information. We coordinated with the Navajo
Nation in May, October, and November 2012, to organize Zuni bluehead
surveys on Navajo lands. We sent out notification letters in January
and February 2013 notifying the Tribes that the proposed rule had
published in the Federal Register to allow for the maximum time to
submit comments. Following those letters, we scheduled a meeting with
the Navajo Nation in March 2013, to discuss the proposed rule, and the
Navajo Nation provided additional information regarding their land
management practices and expressed their interest in developing a
[[Page 19949]]
fisheries management plan for sport and native fisheries. In addition
to the letters sent to Zuni Pueblo, a few telephone inquiries were
initiated to see if the Pueblo would like to meet to discuss the
proposed rule. At this time, no meeting has been scheduled. However, we
are working with Zuni Pueblo to develop a management plan for their
lands. In addition, we sent coordination letters on April 12, 2013, to
both the Navajo Nation and Zuni Pueblo seeking information for our
economic analysis. We will continue to communicate with all affected
Tribes.
Authors
The primary authors of this document are the staff members of the
New Mexico Ecological Services Field Office, Southwest Region, U.S.
Fish and Wildlife Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended on January 25, 2013 (78 FR 5351), 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; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.95(e) by revising paragraphs (5), (6), and (7), and
by removing paragraph (8), under the entry for ``Zuni Bluehead Sucker
(Catostomus discobolus yarrowi)'' as proposed to be amended on January
25, 2013 (78 FR 5351), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Zuni Bluehead Sucker (Catostomus discobolus yarrowi)
* * * * *
(5) Note: Index map of critical habitat units for the Zuni bluehead
sucker follows:
BILLING CODE 4310-55-P
[[Page 19950]]
[GRAPHIC] [TIFF OMITTED] TP14AP15.000
[[Page 19951]]
(6) Unit 1: Zuni River Unit, McKinley and Cibola Counties, New
Mexico. Map of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TP14AP15.001
[[Page 19952]]
(7) Unit 2: Kinlichee Creek Unit, Apache County, Arizona, and
McKinley County, New Mexico. Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TP14AP15.002
[[Page 19953]]
* * * * *
Dated: March 23, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-08277 Filed 4-13-15; 8:45 am]
BILLING CODE 4310-55-C