[Federal Register Volume 76, Number 148 (Tuesday, August 2, 2011)]
[Proposed Rules]
[Pages 46218-46234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19444]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2011-0042; MO 92210-0-0009]
RIN 1018-AV86


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for the Chupadera Springsnail (Pyrgulopsis 
chupaderae) and Proposed Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Chupadera springsnail (Pyrgulopsis chupaderae) as endangered 
under the Endangered Species Act of 1973, as amended (Act). If we 
finalize this rule as proposed, it would extend the Act's protections 
to this species. We also propose to designate critical habitat for the 
Chupadera springsnail under the Act. In total, approximately 0.7 
hectares (1.9 acres) are being proposed for designation as critical 
habitat, located in Socorro County, New Mexico.

DATES: We will accept comments received or postmarked on or before 
October 3, 2011. We must receive requests for public hearings, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section, by September 16, 2011.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter FWS-R2-ES-
2011-0042, which is the docket number for this rulemaking. Then, in the 
Search panel at the top of the screen, under the Document Type heading, 
check the box next to Proposed Rules to locate this document. You may 
submit a comment by clicking on ``Submit a Comment.''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2011-0042; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Requested 
section below for more details).

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; telephone 505-346-2525; 
facsimile 505-346-2542. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION: This document consists of both a proposed 
rule to list the Chupadera springsnail as endangered and proposed 
critical habitat designation for the Chupadera springsnail.

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from the public, other concerned governmental 
and Tribal agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule. We particularly seek 
comments concerning:
    (1) The historical and current status and distribution of the 
Chupadera springsnail, its biology and ecology, the range and 
population size of this species, including the locations of any 
additional populations of this species, and any information on the 
biological or ecological requirements of the species.
    (2) Information relevant to the factors that are the basis for 
making a listing determination for a species under section 4(a) of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence and threats to the species or its habitat.
    (3) Information about any ongoing conservation measures for, or 
threats to, the Chupadera springsnail and its habitat. We are 
particularly interested in receiving any information related to the 
potential effects of climate change on the Chupadera springsnail or its 
habitat.
    The following information regarding the potential economic and 
other impacts of the proposed critical habitat designation is requested 
solely so that we may consider the potential effects of critical 
habitat designation in the final rule.
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under the Act including whether there are threats 
to the species from human activity, the degree of which can be expected 
to increase due to the designation, and whether the benefit of 
designation would outweigh threats to the species caused by the 
designation, such that the designation of critical habitat is prudent.
    (2) Specific information on:
    (a) The amount and distribution of Chupadera springsnail habitat;
    (b) What occupied areas containing features essential to the 
conservation of the species should be included in the designation and 
why; and
    (c) What areas not occupied are essential for the conservation of 
the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any foreseeable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (5) 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.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.

[[Page 46219]]

    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information, such as your street address, phone 
number, or e-mail address, 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 this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the New Mexico Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

Previous Federal Actions

    We identified the Chupadera springsnail as a candidate for listing 
in the May 22, 1984, Notice of Review of Invertebrate Wildlife for 
Listing as Endangered or Threatened Species (49 FR 21664). Candidates 
are those fish, wildlife, and plants for which we have on file 
sufficient information on biological vulnerability and threats to 
support preparation of a listing proposal, but for which development of 
a listing regulation is precluded by other higher priority listing 
activities. The Chupadera springsnail was petitioned for listing on 
November 20, 1985, and was found to be warranted for listing but 
precluded by higher priority activities on October 4, 1988 (53 FR 
38969). The Chupadera springsnail has been included in all of our 
subsequent annual Candidate Notices of Review (54 FR 554, January 6, 
1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994; 
61 FR 7595, February 28, 1996; 62 FR 49397, September 19, 1997; 64 FR 
57533, October 25, 1999; 66 FR 54807, October 30, 2001; 67 FR 40657, 
June 13, 2002; 69 FR 24875, May 4, 2004; 70 FR 24869, May 11, 2005; 71 
FR 53755, September 12, 2006; 72 FR 69033, December 6, 2007; 73 FR 
75175, December 10, 2008; 74 FR 57803, November 9, 2009; and 75 FR 
69221, November 10, 2010). In 2002, the listing priority number was 
increased from 8 to 2 in accordance with our priority guidance 
published on September 21, 1983 (48 FR 43098). A listing priority of 2 
reflects a species with threats that are both imminent and high in 
magnitude.

Species Information

    The Chupadera springsnail (Pyrgulopsis chupaderae) is a tiny (1.6 
to 3.0 millimeters (mm) (0.06 to 0.12 inches (in) tall) freshwater 
snail (Taylor 1987, p. 25; Hershler 1994, p. 30) in the family 
Hydrobiidae. The pigmentation of the body and operculum (covering over 
the shell opening) of this species is much more intense than in any 
other species in the genus Pyrgulopsis (Taylor 1987, p. 26). The 
Chupadera springsnail was first described by Taylor (1987, pp. 24-27) 
as Fontelicella chupaderae. Hershler (1994, pp. 11, 13), in his review 
of the genus Pyrgulopsis, found that the species previously assigned to 
the genus Fontelicella had the appropriate morphological 
characteristics for inclusion in the genus Pyrgulopsis and formally 
placed them within that genus. Although the genetic characteristics of 
P. chupaderae have not been analyzed, based on its unique morphology 
and geographic isolation, it is a valid species.
    Springsnails are strictly aquatic, and respiration occurs through 
an internal gill. Springsnails in the genus Pyrgulopsis are egg-layers 
with a single small egg capsule deposited on a hard surface (Hershler 
1998, p. 14). The larval stage is completed in the egg capsule, and 
upon hatching, the snails emerge into their adult habitat (Brusca and 
Brusca 1990, p. 759; Hershler and Sada 2002, p. 256). The snail 
exhibits separate sexes; physical differences are noticeable between 
them, with females being larger than males. Because of their small size 
and dependence on water, significant dispersal likely does not occur, 
although on rare occasions aquatic snails have been transported by 
becoming attached to the feathers and feet of migratory birds (Roscoe 
1955, p. 66; Dundee et al. 1967, pp. 89-90). Hydrobiid snails feed 
primarily on periphyton, which is a complex mixture of algae, bacteria, 
and microbes that occurs on submerged surfaces in aquatic environments 
(Mladenka 1992, pp. 46, 81; Allan 1995, p. 83; Hershler and Sada 2002, 
p. 256; Lysne et al. 2007, p. 649). The lifespan of most aquatic snails 
is 9 to 15 months (Pennak 1989, p. 552).
    Snails in the family Hydrobiidae were once much more widely 
distributed during the wetter Pleistocene Age (1.6 million to 10,000 
years ago). As ancient lakes and streams dried, springsnails became 
patchily distributed across the landscape as geographically isolated 
populations exhibiting a high degree of endemism (species found only in 
a particular region, area, or spring) (Bequart and Miller 1973, p. 214; 
Taylor 1987, pp. 5-6; Shepard 1993, p. 354; Hershler and Sada 2002, p. 
255). Hydrobiid snails occur in springs, seeps, marshes, spring pools, 
outflows, and diverse flowing water habitats. Although hydrobiid snails 
as a group are found in a wide variety of aquatic habitats, they are 
sensitive to water quality and each species is usually found within 
relatively narrow habitat parameters (Sada 2008, p. 59). Proximity to 
spring vents, where water emerges from the ground, plays a key role in 
the life history of springsnails. Many springsnail species exhibit 
decreased abundance farther away from spring vents, presumably due to 
their need for stable water chemistry (Hershler 1994, p. 68; Hershler 
1998, p. 11; Hershler and Sada 2002, p. 256; Martinez and Thome 2006, 
p. 14). Several habitat parameters of springs, such as substrate, 
dissolved carbon dioxide, dissolved oxygen, temperature, conductivity, 
and water depth, have been shown to influence the distribution and 
abundance of Pyrgulopsis (O'Brien and Blinn 1999, pp. 231-232; Mladenka 
and Minshall 2001, pp. 209-211; Malcom et al. 2005, p. 75; Martinez and 
Thome 2006, pp. 12-15; Lysne et al. 2007, p. 650). Dissolved salts such 
as calcium carbonate may also be important factors because they are 
essential for shell formation (Pennak 1989, p. 552).
    The Chupadera springsnail is endemic to Willow Spring and an 
unnamed spring of similar size 0.5 kilometers (km) (0.3 miles (mi)) 
north of Willow Spring at the southeast end of the Chupadera Mountains 
in Socorro County, New Mexico (Taylor 1987, pp. 20-22; Mehlhop 1993, p. 
3; Lang 1998, p. 36). The two springs where Chupadera springsnail has 
been documented are on two hillsides where groundwater discharges flow 
through volcanic gravels containing sand, mud, and aquatic plants 
(Taylor 1987, p. 26). Water temperatures in areas of the springbrook 
(the stream flowing from the springhead) currently occupied by the 
springsnail range from 15 to 25 degrees Celsius ([deg]C) (59 to 77 
degrees Fahrenheit ([deg]F)) over all seasons (1997 to 1998). Water 
velocities range from 0.01 to 0.19 meters per second (m/s) (0.03 to 0.6 
feet per second (ft/s)) (Lang 2009, p. 1). In 1998, when Willow Spring 
was last visited, the springbrook was 0.5 to 2 meters (m) (1.6 to 6.6 
feet (ft)) wide, 6 to 15 centimeters (cm) (2.4 to 6 in) deep, and 
approximately 38 m (125 ft) long, upstream of where it entered a pond 
created by a berm (small earthen dam) across the springbrook (Lang 
2009, p. 1).
    Current status of the population at Willow Spring is unknown 
because access has been denied by the landowner since 1999, despite 
requests for access to monitor the springsnail (Carman 2004, pp. 1-2; 
2005, pp. 1-5; NMDGF 2007, p. 12). Prior surveys

[[Page 46220]]

show the springsnail population to be locally abundant in this location 
and stable through 1999 (Lang 1998, p. 36; Lang 1999, p. A5); 
therefore, we presume the species still persists at Willow Spring. At 
the unnamed spring, repeated sampling between 1995 and 1997 yielded no 
snails, and the habitat at that spring has been significantly degraded 
(devoid of riparian vegetation due to trampling by cattle, and the 
benthic habitat was covered with manure) (Lang 1998, p. 59; Lang 1999, 
p. B13). Therefore, the species is likely extirpated from this unnamed 
spring (NMDGF 1996, p. 16; Lang 1999, p. B13).
    Springsnail dispersal is primarily limited to aquatic habitat 
connections (Hershler et al. 2005, p. 1755). Once extirpated from a 
spring, natural recolonization of that spring or other nearby springs 
is very rare.

Summary of Factors Affecting the Species

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

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

    The principal threats to the habitat of Chupadera springsnail at 
Willow Spring include groundwater depletion, livestock grazing, and 
spring modification (Lang 1998, p. 59; NMDGF 2002, p. 45). These 
threats are intensified by the fact that the species' known historic 
range was only two small springs, and it has been extirpated from one 
of the known locations. Other potential threats, such as fire and 
recreational use at the springs, were considered but no information was 
found that indicated these may be affecting the species at this time.
Groundwater Depletion
    Habitat loss due to groundwater depletion threatens the Chupadera 
springsnail. Since spring ecosystems rely on water discharged to the 
surface from underground aquifers, groundwater depletion can result in 
the destruction of habitat by the drying of springs and cause the loss 
of spring fauna. For example, groundwater depletion from watering a 
lawn adjacent to a small spring (Snail Spring) in Cochise County, 
Arizona, has reduced habitat availability of the San Bernardino 
springsnail (Pyrgulopsis bernardina) at that location because of the 
loss of flowing water to the spring (Malcom et al. 2003, p. 18; Cox et 
al. 2007, p. 2). Also, in Pecos County, Texas, two large spring systems 
(Comanche Springs and Leon Springs) were completely lost to drying when 
irrigation wells were activated in the supporting local aquifer 
(Scudday 1977, pp. 515-516). Spring drying or flow reduction from 
groundwater pumping has also been documented in the Roswell (August 9, 
2005; 70 FR 46304) and Mimbres Basins (Summers 1976, pp. 62, 65) of New 
Mexico.
    Area groundwater use may significantly increase due to Highland 
Springs Ranch, a developing subdivision in the immediate vicinity of 
Chupadera springsnail habitat. Beginning in 2007, Highland Springs 
Ranch is being developed in four phases with approximately 650 lots 
ranging from 8 hectares (ha) (20 acres (ac)) to 57 ha (140 ac). There 
is no central water system, so each homeowner is responsible for 
drilling an individual water well. In Highland Springs Ranch, 
homeowners are entitled to 629 cubic meters (0.51 acre-feet) of water 
per year (New Mexico Office of the State Engineer (NMOSE) 2009).
    Because of the close proximity of the subdivision to Willow Spring 
(the northern boundary of lot 42A of Willow Springs Ranch, a phase of 
Highland Springs Ranch, is approximately 91 m (300 ft) from Willow 
Spring), it appears likely that groundwater pumping could affect the 
discharge from the spring through depletion of groundwater. Under 
normal conditions Willow Spring has a very small discharge (Lang 2009, 
p. 1), and, therefore, any reduction in available habitat from 
declining spring flows would be detrimental to the Chupadera 
springsnail. Given the close proximity of the unnamed spring (0.5 km 
(0.3 mi)) to Willow Spring, and because they both supported the 
Chupadera springsnail historically, we believe both springs are fed by 
the same groundwater aquifer. Thus, groundwater depletion that would 
affect spring flow at Willow Spring would also likely affect the 
unnamed spring.
    The Bosque del Apache National Wildlife Refuge western boundary is 
located about 0.8 km (0.5 mi) east of the spring where Chupadera 
springsnail occurs, providing protection from development and 
groundwater depletion for much of the land east of the spring.
    In addition, any decreases in regional precipitation due to 
prolonged drought will further stress groundwater availability and 
increase the risk of diminishment or drying of the springs. The 
current, multiyear drought in the western United States, including the 
Southwest, is the most severe drought recorded since 1900 (Overpeck and 
Udall 2010, p. 1642). In addition, numerous climate change models 
predict an overall decrease in annual precipitation in the southwestern 
United States and northern Mexico (see Factor E, Climate Change below). 
Recent regional drought may have affected habitat for Chupadera 
springsnail. For example, the extreme drought of 2002 resulted in 
drying streams across the State, with nearly all of the major river 
basins in New Mexico at historic low flow levels (New Mexico Drought 
Task Force 2002, p. 1). Because of our inability to access Willow 
Spring, we do not have information on how this drought affected the 
Chupadera springsnail.
    Drought affects both surface and groundwater resources and can lead 
to diminished water quality (Woodhouse and Overpeck 1998, p. 2693; 
MacRae et al. 2001, pp. 4, 10) in addition to reducing groundwater 
quantities. The small size of the springbrooks where the Chupadera 
springsnails reside (1.5 m (5 ft) wide or less) makes them particularly 
susceptible to drying, increased water temperatures, and freezing. The 
springs do not have to cease flowing completely to have an adverse 
effect on springsnail populations. Because these springs are so small, 
any reductions in the flow rates from the springs can reduce the 
available habitat for the springsnails, increasing the risk of 
extinction. Decreased spring flow can lead to a decrease in habitat 
availability, an increase in water temperature fluctuations, a decrease 
in dissolved oxygen levels, and an increase in salinity (MacRae et al. 
2001, p. 4). Water temperatures and factors such as dissolved oxygen in 
springs do not typically fluctuate, and springsnails are narrowly 
adapted to spring conditions and are sensitive to changes in water 
quality (Hershler 1998, p. 11). Groundwater depletion can lead to loss

[[Page 46221]]

and degradation of Chupadera springsnail habitat and presents a 
substantial threat to the species.
Livestock Grazing
    It is estimated that livestock grazing has damaged approximately 80 
percent of stream and riparian ecosystems in the western United States 
(Belsky et al. 1999, p. 419). The damage occurs from increased 
sedimentation, decreased water quality, and trampling and overgrazing 
stream banks where succulent (high water content) forage exists (Armour 
et al. 1994, p. 10; Fleischner 1994, p. 631; Belsky et al. 1999, p. 
419).
    The damage from livestock grazing on spring ecosystems can alter or 
remove springsnail habitat, resulting in restricted distribution or 
extirpation of springsnails. For example, cattle trampling at a spring 
in Owens Valley, California, reduced banks to mud and sparse grass, 
limiting the occurrence of the endangered Fish Slough springsnail 
(Pyrgulopsis pertubata) (Bruce and White 1998, pp. 3-4). Poorly managed 
livestock use of springbrooks can directly negatively affect 
springsnails through contamination of aquatic habitat from feces and 
urine, habitat degradation of the springbrook by trampling of substrate 
and loss of aquatic and riparian vegetation, and crushing of individual 
springsnails.
    Lang (1998, p. 59) reported that the unnamed spring was heavily 
impacted by cattle because it was devoid of riparian vegetation, and 
the gravel and cobbles were covered with mud and manure. It appears 
that overgrazing and access to the aquatic habitat of the spring by 
livestock caused the extirpation of the Chupadera springsnail 
population from this unnamed spring (NMDGF 1996, p. 16; Lang 1999, p. 
A5). Grazing was occurring at Willow Spring in 1999 (the last time the 
spring was visited) (Lang 1999, p. A5), and the Service has no 
information that grazing practices have changed since that time. 
Continued use of the springs by livestock presents a substantial threat 
to the Chupadera springsnail.
Spring Modification
    Spring modification occurs when attempts are made to increase flow 
through excavation at the springhead, when the springhead is tapped to 
direct the flow into a pipe and then into a tank or a pond, when 
excavation around the springhead creates a pool, inundating the 
springhead, or when the springbrook is dammed to create a pool 
downstream of the springbrook. Because springsnails are typically most 
abundant at the springhead where water chemistry and water quality are 
normally stable, any modification of the springhead could be 
detrimental to springsnail populations. In addition, any modification 
or construction done at the springhead could also affect individuals 
downstream through siltation of habitat. Because springsnails are 
typically found in shallow flowing water, inundation that alters 
springsnail habitat by changing water depth, velocity, substrate 
composition, vegetation, and water chemistry can cause population 
reduction or extirpation. For example, inundation has negatively 
affected populations of other springsnails such as Koster's springsnail 
(Juturnia kosteri) and Roswell springsnail (Pyrgulopsis roswellensis) 
at Bitter Lake National Wildlife Refuge and caused their extirpation 
from North Spring (NMDGF 2004, p. 33; 70 FR 46304, August 9, 2005).
    The springhead at Willow Spring has been modified through 
impoundment of the springbrook to maintain a pump and improve water 
delivery systems to cattle (Lang 1998, p. 59). It appears that 
springbrook impoundment has only occurred downstream of the source, 
leaving some appropriate springbrook habitat intact upstream (Taylor 
1987, p. 26). At the last visit to the spring in 1999, the habitat at 
the spring was of sufficient quality to sustain the Chupadera 
springsnail, but any subsequent alterations could be catastrophic for 
the species. Spring modification, either at the springhead or in the 
springbrook, is a threat to the Chupadera springsnail.
Small, Reduced Range
    The geographically small range of the Chupadera springsnail 
increases the risk of extinction from any effects associated with other 
threats (NMDGF 2002, p. 1). When species are limited to small, isolated 
habitats, like the Chupadera springsnail in one small arid spring 
system, they are more likely to become extinct due to a local event 
that negatively effects the population (Shepard 1993, pp. 354-357; 
McKinney 1997, p. 497; Minckley and Unmack 2000, pp. 52-53).
    The natural historic range of the Chupadera springsnail includes 
only two small spring sites. As a result of habitat alteration at the 
unnamed spring, the species now occurs only at Willow Spring (Lang 
1999, p. B13). We have no information on the current status of the 
species because access to Willow Spring has been continually denied 
since 1999 (Carman 2004, p. 1-2; Carman 2005, p. 1-5; NMDGF 2007, p. 
12). The springsnail is limited to aquatic habitats in small spring 
systems and has minimal mobility, so it is unlikely its range will ever 
expand. As a result, if the population at Willow Spring were extirpated 
for any reason, the species would be extinct, since there are no other 
sources of this springsnail from which to recolonize. This situation 
makes the magnitude of impact of any possible threat very high. In 
other words, the resulting effects of any of the threat factors under 
consideration here, even if they are relatively small on a temporal or 
geographic scale, could result in complete extinction of the species.
    Therefore, because the Chupadera springsnail is restricted to a 
single small site, it is particularly susceptible to extinction if its 
habitat is degraded or destroyed. While the small, reduced range does 
not represent an independent threat to the species, it does 
substantially increase the risk of extinction from the effects of all 
other threats, including those addressed in this analysis, and those 
that could occur in the future from unknown sources.
Summary of Factor A
    In summary, the Chupadera springsnail is threatened by the present 
destruction and modification of its habitat and range. Groundwater 
depletion due to new wells from nearby subdivision developments, in 
addition to droughts, is likely resulting in reduced flow at the spring 
that supports the species. Cattle grazing is occurring at both 
historically occupied sites and has resulted in the extirpation of the 
species at one of these springs. Grazing at these sites is likely to 
continue in the future. Finally, springhead and springbrook 
modification have affected Chupadera springsnail habitat at Willow 
Spring, and further modification may have occurred since the last visit 
to this site in 1999. Because of the extremely small and reduced range 
of the species, these threats have an increased risk of resulting in 
extinction of the Chupadera springsnail. These threats are already 
occurring, they affect the full historical range of the species, and 
they result in the species being at risk of extinction.

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

    There are very few people who are interested in or study 
springsnails, and those who do are sensitive to their rarity and 
endemism. Consequently, collection for scientific or educational 
purposes is very limited. As far as we know, because the Chupadera 
springsnail occurs on private land with limited access, there has been 
no collection since 1999 when NMDGF

[[Page 46222]]

made its last collection (Lang 2000, p. C5). There are no known 
commercial or recreational uses of the springsnails. For these reasons 
we find that the Chupadera springsnail is not threatened by 
overutilization for commercial, recreational, scientific, or 
educational purposes.

C. Disease or Predation

    The Chupadera springsnail is not known to be affected or threatened 
by any disease. At the time the spring was last surveyed, no nonnative 
predatory species were present. However, any future introduction of a 
nonnative species into habitat of the Chupadera springsnail could be 
catastrophic to the springsnail. The Chupadera springsnail has an 
extremely small and reduced range, and a nonnative predator or 
competitor has an increased risk of resulting in extinction of the 
Chupadera springsnail. Because there are no known nonnative species 
present, we find that the Chupadera springsnail is not currently 
threatened by disease or predation.

D. The Inadequacy of Existing Regulatory Mechanisms

    Existing regulatory mechanisms are not sufficient to protect the 
Chupadera springsnail and prevent its extinction. New Mexico State law 
provides limited protection to the Chupadera springsnail. The species 
is listed as a New Mexico State endangered species, Group 2, which are 
those species ``whose prospects of survival or recruitment within the 
state are likely to become jeopardized in the near future'' (NMDGF 
1988, p. 1). This designation provides protection under the New Mexico 
Wildlife Conservation Act of 1974 (i.e., State Endangered Species Act) 
(19 NMAC 33.6.8), but only prohibits direct take of species, except 
under issuance of a scientific collecting permit. No permit has been 
issued for taking this species. The New Mexico Wildlife Conservation 
Act defines ``take'' or ``taking'' as ``harass, hunt, capture, or kill 
any wildlife or attempt to do so'' (17 NMAC 17.2.38). In other words, 
New Mexico State status as an endangered species only conveys 
protection from collection or intentional harm to the animals 
themselves but does not provide habitat protection. Because most of the 
threats to the Chupadera springsnail are from effects to habitat, in 
order to protect individuals and ensure their long-term conservation 
and survival, their habitat must be protected.
    We are aware of no State laws or local ordinances that would limit 
groundwater pumping in the subdivisions adjacent to Willow Spring. The 
water supply for subdivision homes comes from individual wells, and 
each well in the Highland Springs Ranch subdivisions may pump up to 629 
cubic meters (0.51 acre feet) per year (NMOSE 2009, p. 1). Although 
water delivery systems are evaluated by the New Mexico Office of the 
State Engineer to determine if prior water rights or the welfare of the 
State might be impaired by groundwater pumping, the effect of 
individual domestic water wells only receives that evaluation if the 
area has been designated as a domestic well management area (Utton 
Transboundary Resources Center 2011, p. 3). The land being developed 
around Willow Spring has not been designated as such. As discussed in 
Factor A above, inadequate spring flow due to pumping from the 
groundwater aquifer by homeowners is a threat to the water supply of 
Chupadera springsnail, and there are currently no regulatory mechanisms 
in place to manage groundwater withdrawal and ensure adequate spring 
flows.
    In summary, the inadequacy of existing regulatory mechanisms poses 
a threat to the Chupadera springsnail. Existing Federal, State, and 
local laws have been inadequate to prevent ongoing loss of the limited 
habitat of this springsnail, and they are not expected to prevent 
further population declines of the species.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Other natural or manmade factors affecting the continued existence 
of the Chupadera springsnail include introduced species and climate 
change. These threats are intensified by the fact that the species' 
known historical range was only two small springs, and it has been 
extirpated from one of the known locations.
Introduced Species
    Introduced species are a serious threat to native aquatic species 
(Williams et al. 1989, p. 18; Lodge et al. 2000, p. 7). Because the 
distribution of the Chupadera springsnail is so limited, and its 
habitat so restricted, introduction of certain nonnative species into 
its habitat could be devastating. Saltcedar (Tamarix spp.) threatens 
spring habitats primarily through the amount of water it consumes and 
from the chemical composition of the leaves that drop to the ground and 
into the springs. Saltcedar leaves that fall to the ground and into the 
water add salt to the system, as their leaves contain salt glands 
(DiTomaso 1998, p. 333). Additionally, dense stands of common reed 
(Phragmites australis) choke small stream channels, slowing water 
velocity and creating more pool-like habitat; this habitat is not 
suitable for Chupadera springsnail, which are found in flowing water. 
Finally, Russian thistle (Salsola tragis; tumbleweed) can create 
problems in spring systems by being blown into the channel, slowing 
flow, and overloading the system with organic material (Service 2005, 
p. 2). The control and removal of nonnative vegetation can also impact 
springsnail habitats. For example, this has been identified as a factor 
responsible for localized extirpations of populations of the Federally 
endangered Pecos assiminea (Assiminea pecos), a springsnail in New 
Mexico, due to vegetation removal that resulted in soil and litter 
drying, thereby making the habitat unsuitable (Taylor 1987, pp. 5, 9).
    Likewise, nonnative mollusks have affected the distribution and 
abundance of native mollusks in the United States. Of particular 
concern for the Chupadera springsnail is the red-rim melania 
(Melanoides tuberculata), a snail that can reach tremendous population 
sizes and has been found in isolated springs in the west (McDermott 
2000, pp. 13-16; Ladd 2010, p. 1; U.S. Geological Survey 2010, p. 1). 
The red-rim melania has caused the decline and local extirpation of 
native snail species, and it is considered a threat to endemic aquatic 
snails that occupy springs and streams in the Bonneville Basin of Utah 
(Rader et al. 2003, p. 655). It is easily transported on gear or 
aquatic plants, and because it reproduces asexually (individuals can 
develop from unfertilized eggs), a single individual is capable of 
founding a new population. It has become established in isolated desert 
spring ecosystems such as Ash Meadows, Nevada, San Solomon Spring and 
Diamond Y Spring, Texas, and Cuatro Ci[eacute]negas, Mexico. In many 
locations, this exotic snail is so numerous that it covers the bottom 
of the small stream channel. If the red-rim melania were introduced 
into Willow Spring, it could easily outcompete and eliminate the 
Chupadera springsnail.
    None of these nonnative species are known to occur in the habitats 
of the Chupadera springsnail at this time, and so potential impacts 
have not been realized. While any of these species, or others, could 
threaten the Chupadera springsnail if they were introduced to the small 
habitats of the species, nonnative species are not considered a current 
threat to the Chupadera springsnail.

[[Page 46223]]

Climate Change
    According to the Intergovernmental Panel on Climate Change (IPCC 
2007, p. 5), ``[w]arming of the climate system is unequivocal, as is 
now evident from observations of increases in global average air and 
ocean temperatures, widespread melting of snow and ice, and rising 
global average sea level.'' The average Northern Hemisphere 
temperatures during the second half of the 20th century were very 
likely higher than during any other 50-year period in the last 500 
years and likely the highest in at least the past 1,300 years (IPCC 
2007, p. 5). It is very likely that over the past 50 years, cold days, 
cold nights, and frosts have become less frequent over most land areas, 
and hot days and hot nights have become more frequent (IPCC 2007, p. 
8). Data suggest that heat waves are occurring more often over most 
land areas, and the frequency of heavy precipitation events has 
increased over most areas (IPCC 2007, pp. 8, 15).
    The IPCC (2007, pp. 12, 13) predicts that changes in the global 
climate system during the 21st century will very likely be larger than 
those observed during the 20th century. For the next two decades a 
warming of about 0.2 [deg]C (0.4 [deg]F) per decade is projected (IPCC 
2007, p. 12). Afterwards, temperature projections increasingly depend 
on specific emission scenarios (IPCC 2007, p. 13). Various emissions 
scenarios suggest that by the end of the 21st century, average global 
temperatures are expected to increase 0.6 [deg]C to 4.0 [deg]C (1.1 
[deg]F to 7.2 [deg]F) with the greatest warming expected over land 
(IPCC 2007, p. 15). However, the growth rate of carbon dioxide 
emissions continues to accelerate and is above even the most fossil 
fuel intensive scenario used by the IPCC (Canadell et al. 2007, p. 
18866; Global Carbon Project 2008, p. 1), suggesting that the effects 
of climate change may be even greater than those projected by the IPCC.
    In consultation with leading scientists from the Southwest, the New 
Mexico Office of the State Engineer prepared a report for the Governor 
of New Mexico (NMOSE 2006). The report made the following observations 
about the impact of climate change in New Mexico:
    (1) Warming trends in the American Southwest exceed global averages 
by about 50 percent (p. 5);
    (2) Models suggest that even moderate increases in precipitation 
would not offset the negative impacts to the water supply caused by 
increased temperature (p. 5);
    (3) Temperature increases in the Southwest are predicted to 
continue to be greater than the global average (p. 5); and
    (4) The intensity, frequency, and duration of drought may increase 
(p. 7).
    One of the primary effects of climate change on the Chupadera 
springsnail is likely to be associated with groundwater availability 
that supports the spring flows in its habitat. There is high confidence 
that many semiarid areas like the western United States will suffer a 
decrease in water resources due to climate change (Kundzewicz et al. 
2007, p. 175). Consistent with the outlook presented for New Mexico, 
Hoerling (2007, p. 35) states that, relative to 1990-2005, modeling 
indicates that a 25 percent decline in stream flow will occur from 2006 
to 2030 and a 45 percent decline will occur from 2035 to 2060 in the 
Southwest. Milly et al. (2005, p. 349) project a 10-30 percent decrease 
in runoff in mid-latitude western North America by the year 2050 based 
on an ensemble of 12 climate models. Solomon et al. (2009, p. 1707) 
predict precipitation amounts in the southwestern United States and 
northern Mexico will decrease by as much as 9 to 12 percent (measured 
as percentage of change in precipitation per degree of warming, 
relative to 1900 to 1950 as the baseline period). Christensen et al. 
(2007, p. 888) state, ``The projection of smaller warming over the 
Pacific Ocean than over the continent, * * * is likely to induce a 
decrease in annual precipitation in the southwestern USA and northern 
Mexico.'' In addition, Seager et al. (2007, p. 1181) show that there is 
a broad consensus among climate models that the Southwest will get 
drier in the 21st century and that the transition to a more arid 
climate is already under way. Only one of 19 models has a trend toward 
a wetter climate in the Southwest (Seager et al. 2007, p. 1181). A 
total of 49 projections were created using the 19 models, and all but 
three predicted a shift to increasing aridity (dryness) in the 
Southwest as early as 2021 to 2040 (Seager et al. 2007, p. 1181). These 
research results indicate that the Southwest can be expected to be 
hotter and drier in the future, likely negatively affecting the water 
resources, including spring ecosystems such as Willow Spring.
    It is anticipated that the effects of climate change will also lead 
to greater human demands on scarce water sources while at the same time 
leading to decreasing water availability because of increased 
evapotranspiration (water drawn up by plants from the soil that 
evaporates from their leaves), reduced soil moisture, and longer, 
hotter summers (Archer and Predick 2008, p. 25; Karl et al. 2009, pp. 
47, 52). Climate change will likely reduce groundwater recharge through 
reduced snowpack and perhaps through increased severity in drought 
(Kundzewicz et al. 2007, p. 175; Stonestrom and Harrill 2008, p. 21). 
There is currently no information to quantify the likely effects of 
climate change on the groundwater system that supports the springs 
where the Chupadera springsnail occurs. However, in a study of the 
Ogallala aquifer, a much larger aquifer east of Willow Spring, 
Rosenberg et al. (1999, p. 688) found that groundwater recharge will be 
reduced in the face of climate change in spite of increased water 
yields in many areas. They also found that Ogallala aquifer water 
levels have been directly correlated with annual precipitation over 
time (Rosenberg et al. 1999, p. 679) and concluded that changes in 
climate could profoundly affect the accessibility and reliability of 
water supplies from the aquifer. We anticipate that the aquifer that 
supplies water to Chupadera springsnail habitat may also be susceptible 
to climate change-induced changes in precipitation.
    In summary, climate change could affect the Chupadera springsnail 
through the combined effects of global and regional climate change, 
along with the increased probability of long-term drought. However, we 
are not able to predict with certainty how these indirect effects of 
climate change will affect Chupadera springsnail habitats due to a lack 
of information on the groundwater system that provides water to the 
species' spring habitat. We conclude that climate change may be a 
significant stressor that indirectly exacerbates existing threats by 
increasing the likelihood of prolonged drought that would reduce 
groundwater availability and incur future habitat loss. As such, 
climate change, in and of itself, may affect the springsnail, but the 
magnitude and imminence (when the impacts occur) of the impacts remain 
uncertain. Climate change is not currently a threat to the Chupadera 
springsnail, but it has the potential to be a threat in the foreseeable 
future, and impacts from climate change in the future will likely 
exacerbate the current and ongoing threat of habitat loss caused by 
other factors, as discussed above.
Summary of Factor E
    The Chupadera springsnail is not currently threatened by other 
natural or man-made factors. However, any future introduction of 
harmful nonnative species could have severe effects on the species. In 
addition, the effects of

[[Page 46224]]

climate change, while difficult to quantify at this time, are likely to 
exacerbate the current and ongoing threat of habitat loss caused by 
other factors, particularly the loss of spring flows resulting from 
prolonged drought.

Proposed Listing Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Chupadera springsnail and have determined that the species 
warrants listing as endangered throughout its range. The loss of one of 
two known populations, the ongoing threat of modification of the 
habitat at the only known remaining site, Willow Spring, from grazing 
and spring modification, and the imminent threat of groundwater 
depletion posed by subdivision development adjacent to the spring, 
places this species at great risk of extinction. The small, reduced 
distribution of the Chupadera springsnail heightens the danger of 
extinction due to threats from Factors A (specifically loss of spring 
flow, livestock grazing, and spring modification) and D (inadequacy of 
existing regulatory mechanisms). The existing threats are exacerbated 
by the effects of ongoing and future climate change, primarily due to 
the projected increase in droughts. Because these threats are ongoing 
now or are imminent, and their potential impacts to the species would 
be catastrophic given the very limited range of the species, we find 
that a proposed designation of endangered, rather than threatened, is 
appropriate.
    The Act defines an endangered species as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range.'' In considering ``significant portion of the range,'' a key 
part of this analysis in practice is whether the threats are 
geographically concentrated in some way. If the threats to the species 
are essentially uniform throughout its range, no portion is likely to 
warrant further consideration. Based on the threats to the Chupadera 
springsnail throughout its entire limited range (one spring), we find 
that the species is in danger of extinction throughout all of its 
range, based on the immediacy, severity, and scope of the threats 
described above. The species is proposed as endangered, rather than 
threatened, because the threats are occurring now or are imminent, and 
their potential impacts to the species would be catastrophic given the 
very limited range of the species, making the Chupadera springsnail at 
risk of extinction at the present time. Since threats extend throughout 
its entire range, it is unnecessary to determine if it is in danger of 
extinction throughout a significant portion of its range. Therefore, on 
the basis of the best available scientific and commercial information, 
we propose listing the Chupadera springsnail as endangered throughout 
its range in accordance with sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and requires that recovery actions be carried out for all listed 
species. The protection measures required of Federal agencies and the 
prohibitions against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed, preparation of a draft and final 
recovery plan, and revisions to the plan as significant new information 
becomes available. The recovery outline guides the immediate 
implementation of urgent recovery actions and describes the process to 
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species, 
measurable criteria that determine when a species may be downlisted or 
delisted, and methods for monitoring recovery progress. Recovery plans 
also establish a framework for agencies to coordinate their recovery 
efforts and provide estimates of the cost of implementing recovery 
tasks. Recovery teams (comprised of species experts, Federal and State 
agencies, nongovernment organizations, and stakeholders) are often 
established to develop recovery plans. When completed, the recovery 
outline, draft recovery plan, and the final recovery plan will be 
available from our Web site (http://www.fws.gov/endangered), or from 
our New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, nongovernmental organizations, businesses, and 
private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private and State lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of New Mexico would be 
eligible for Federal funds to implement management actions that promote 
the protection and recovery of the Chupadera springsnail. Information 
on our grant programs that are available to aid species recovery can be 
found at: http://www.fws.gov/grants.
    Although the Chupadera springsnail is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer with the 
Service on any action

[[Page 46225]]

that is likely to jeopardize the continued existence of a species 
proposed for listing or result in destruction or adverse modification 
of proposed critical habitat. If a species is subsequently listed, 
section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or destroy or adversely modify its 
critical habitat. If a Federal action may adversely affect a listed 
species or its critical habitat, the responsible Federal agency must 
enter into formal consultation with the Service. For the Chupadera 
springsnail, Federal agency actions that may require consultation would 
include any Federally funded activities in the Willow Spring watershed, 
groundwater source area, or directly in the spring that may affect 
Willow Spring or the Chupadera springsnail; for example, activities 
that require a permit from the Army Corps of Engineers pursuant to 
section 404 of the Clean Water Act.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered 
wildlife, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (includes harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to 
attempt any of these), import, export, ship in interstate commerce in 
the course of commercial activity, or sell or offer for sale in 
interstate or foreign commerce any listed species. It is also illegal 
to possess, sell, deliver, carry, transport, or ship any such wildlife 
that has been taken illegally. Certain exceptions apply to agents of 
the Service and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened or endangered wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species. With regard to endangered wildlife, a 
permit must be issued for the following purposes: for scientific 
purposes, to enhance the propagation or survival of the species, and 
for incidental take in connection with otherwise lawful activities.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of species 
proposed for listing. The following activities could potentially result 
in a violation of section 9 of the Act; this list is not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for 
properly documented antique specimens of these taxa at least 100 years 
old, as defined by section 10(h)(1) of the Act;
    (2) Introduction of nonnative species that compete with or prey 
upon the Chupadera springsnail, such as the introduction of competing, 
nonnative species to the State of New Mexico;
    (3) The unauthorized release of biological control agents that 
attack any life stage of this species;
    (4) Unauthorized modification of the springs; and
    (5) Unauthorized discharge of chemicals or fill material into any 
waters in which the Chupadera springsnail is known to occur.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the New Mexico 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

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 seeks or requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) would apply, but even in the event of a destruction or adverse 
modification finding, 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.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain physical and biological features essential to the 
conservation of the species and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical and biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat), focusing on the principal 
biological or physical constituent elements (primary constituent 
elements) within an area that are essential to the conservation of the 
species (such as roost sites, nesting grounds, seasonal wetlands, water 
quality, tide, soil type). Primary constituent elements are the 
elements of physical and biological features that, when laid out in the 
appropriate quantity and spatial arrangement to provide for a species'

[[Page 46226]]

life-history processes, are essential to the conservation of the 
species.
    Under the Act and regulations at 50 CFR 424.12, 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. 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. When the best 
available scientific data do not demonstrate that the conservation 
needs of the species require such additional areas, we will not 
designate critical habitat in areas outside the geographical area 
occupied by the species. An area currently occupied by the species but 
that was not occupied at the time of listing may, however, be essential 
to the conservation of the species and may be included in the critical 
habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we determine which areas should be designated as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    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 required for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) 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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations exist: (1) The species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    There is no documentation that the Chupadera springsnail is 
threatened by collection, and it is unlikely to experience increased 
threats by identifying critical habitat. In the absence of a finding 
that the designation of critical habitat would increase threats to a 
species, if there are any benefits to a critical habitat designation, 
then a prudent finding is warranted. The potential benefits include: 
(1) Triggering consultation under section 7 of the Act in new areas for 
actions in which there may be a Federal nexus where it would not 
otherwise occur because, for example, it has become unoccupied or the 
occupancy is in question; (2) focusing conservation activities on the 
most essential features and areas; (3) providing educational benefits 
to State or county governments or private entities; and (4) preventing 
people from causing inadvertent harm to the species.
    The primary regulatory effect of critical habitat is the section 
7(a)(2) requirement that Federal agencies refrain from taking any 
action that destroys or adversely modifies critical habitat. Lands 
proposed for designation as critical habitat would be subject to 
Federal actions that trigger the section 7 consultation requirements. 
There may also be some educational or informational benefits to the 
designation of critical habitat. Educational benefits include the 
notification of the general public of the importance of protecting 
habitat.
    At present, the only known extant population of the Chupadera 
springsnail occurs on private lands in the United States. The species 
currently is not known to occur on Federal lands or lands under Federal 
jurisdiction. However, lands proposed for designation as critical 
habitat, whether or not under Federal jurisdiction, may be subject to 
Federal actions that trigger the section 7 consultation requirement, 
such as the granting of Federal monies or Federal permits.
    We reviewed the available information pertaining to habitat 
characteristics where this species is located. This and other 
information represent the best scientific data available and led us to 
conclude that the designation of critical habitat is prudent for the 
Chupadera springsnail because, as discussed above, there is no 
information to indicate that identification of critical habitat will 
result in increased threats to the species, and information indicates 
that designation of critical habitat would be beneficial to the 
species.

Critical Habitat Determinability

    As stated above, section 4(a)(3) of the Act requires the 
designation of critical habitat concurrently with the species' listing 
``to the maximum extent prudent and determinable.'' Our regulations at 
50 CFR 424.12(a)(2) state that critical habitat is not determinable 
when one or both of the following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to

[[Page 46227]]

permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act provides for an 
additional year to publish a critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. This and other information represent the best scientific data 
available, and the available information is sufficient for us to 
identify areas to propose as critical habitat. Therefore, we conclude 
that the designation of critical habitat is determinable for the 
Chupadera springsnail.

Physical and 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 and biological 
features 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, geographical, and ecological 
distributions of a species.
    We derived the specific physical and biological features required 
for Chupadera springsnail from studies of this species' habitat, 
ecology, and life history as described below. We have determined that 
Chupadera springsnail requires the following physical and biological 
features:
Space for Individual and Population Growth and Normal Behavior
    The Chupadera springsnail occurs where water emerges from the 
ground as a free-flowing spring and springbrook. Within the spring 
ecosystem, proximity to the springhead is important because of the 
appropriate stable water chemistry and temperature, substrate, and flow 
regime. The Chupadera springsnail occurs in one spring in an open 
foothill meadow at 1,620 m (5,315 ft) elevation. The species has been 
found in the springhead and springbrook. Historically, it was also 
found at an unnamed spring 0.5 km (0.3 mi) from this location.
Food, Water, Air, Light, or Other Nutritional or Physiological 
Requirements
    Taylor (1987, p. 26) found Chupadera springsnail on pebbles and 
cobbles interspersed with sand, mud, and aquatic plants. Individuals 
were abundant in flowing water on stones, dead wood, and among 
vegetation on firm surfaces that had an organic film (periphyton). 
Chupadera springsnail was not found in the impoundment created by 
damming the springbrook (Taylor 1987, p. 26). From data collected in 
1997 and 1998, Lang (2009, p. 1) determined the springsnails were found 
in water velocities that ranged from 0.01 to 0.19 m/s (0.03 to 0.6 ft/
s).
    Chupadera springsnail consume periphyton on submerged surfaces. 
Spring ecosystems occupied by Chupadera springsnail must support the 
periphyton upon which springsnails graze.
Sites for Breeding, Reproduction, and Rearing of Offspring
    Substrate characteristics influence the productivity of the 
springsnails. Suitable substrates are typically firm, characterized by 
cobble, gravel, sand, woody debris, and aquatic vegetation such as 
watercress. Suitable substrates increase productivity by providing 
suitable egg-laying sites and providing food resources.
Habitats Protected From Disturbance or Representative of the 
Historical, Geographical, and Ecological Distributions of the Species
    The Chupadera springsnail has a restricted geographic distribution. 
Endemic species whose populations exhibit a high degree of isolation 
are extremely susceptible to extinction from both random and nonrandom 
catastrophic natural or human-caused events. Therefore, it is essential 
to maintain the spring systems upon which the Chupadera springsnail 
depends. This means protection from disturbance caused by exposure to 
cattle grazing, water contamination, water depletion, springhead 
alteration, or nonnative species. The Chupadera springsnail must, at a 
minimum, sustain its current distribution for the one remaining 
population to remain viable.
    As discussed above (see Factor E: Other Natural or Manmade Factors 
Affecting Its Continued Existence), introduced species are a serious 
threat to native aquatic species (Williams et al. 1989, p. 18; Lodge et 
al. 2000, p. 7). Because the distribution of the Chupadera springsnail 
is so limited, and its habitat so restricted, introduction of certain 
nonnative species into its habitat could be devastating. Potentially 
harmful nonnative species include saltcedar, common reed, Russian 
thistle, and the red-rim melania.

Primary Constituent Elements for the Chupadera Springsnail

    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features essential to the 
conservation of Chupadera springsnail in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be the elements of physical 
and biological features that 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 Chupadera springsnail are springheads, 
springbrooks, seeps, ponds, and seasonally wetted meadows containing:
    (1) Unpolluted spring water (free from contamination) emerging from 
the ground and flowing on the surface;
    (2) Periphyton (an assemblage of algae, bacteria, and microbes) and 
decaying organic material for food;
    (3) Substrates that include cobble, gravel, pebble, sand, silt, and 
aquatic vegetation, for egg laying, maturing, feeding, and escape from 
predators; and
    (4) Nonnative predators and competitors either absent or present at 
low population levels.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the proposed 
areas contain features that are essential to the conservation of the 
species and may require special management considerations and 
protections. Threats to the physical and biological features essential 
to the conservation of the Chupadera springsnail include loss of spring 
flows due to groundwater pumping and drought, inundation of springheads 
due to pond creation, degradation of water quality and habitat due to 
livestock grazing or other alteration of water chemistry, and the 
introduction of nonnative predators and competitors. A more complete 
discussion of the threats to the Chupadera springsnail and its habitats

[[Page 46228]]

can be found in ``Summary of Factors Affecting the Species'' above.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
We review all available information pertaining to the habitat 
requirements of the species. As part of our review, in accordance with 
the Act and its implementing regulation at 50 CFR 424.12(e), we 
consider whether designating areas outside those currently occupied, as 
well as those occupied at the time of listing, are necessary to ensure 
the conservation of the species. We designate areas outside the 
geographical area occupied by a species at the time of listing only 
when a designation limited to its present range would be inadequate to 
ensure the conservation of the species.
    For the purpose of designating critical habitat for Chupadera 
springsnail, we define the occupied area based on the most recent 
surveys available, which are from 1999. There is only one area 
currently occupied. We then evaluated whether this area contains the 
primary constituent elements for the Chupadera springsnail and whether 
they require special management. Next we considered areas historically 
occupied, but not currently occupied. There is only one area where the 
Chupadera springsnail historically occurred but is not currently 
occupied. We evaluated this area to determine whether it was essential 
for the conservation of the species.
    To determine if the one currently occupied area (Willow Spring) 
contains the primary constituent elements, we assessed the life-history 
components of the Chupadera springsnail as they relate to habitat. The 
springsnail requires unpolluted spring water in the springheads and 
springbrooks; periphyton and decaying organic material for food; rock-
derived substrates for egg laying, maturation, feeding, and escape from 
predators; and absence of nonnative predators and competitors.
    To determine if the one site historically occupied by the Chupadera 
springsnail (unnamed spring) is essential for the conservation of the 
Chupadera springsnail, we considered: (1) The importance of the site to 
the overall status of the species to prevent extinction and contribute 
to future recovery of the Chupadera springsnail; (2) whether the area 
could be restored to contain the necessary physical and biological 
features to support the Chupadera springsnail; and (3) whether a 
population of the species could be reestablished at the site.
    We plotted the known occurrences of the Chupadera springsnail in 
springheads and springbrooks on 2007 U.S. Geological Survey (USGS) 
Digital Ortho Quarter Quad maps using ArcMap (Environmental Systems 
Research Institute, Inc.), a computer geographic information system 
(GIS) program. There are no known developed areas such as buildings, 
paved areas, and other structures that lack the biological features for 
the springsnail within the proposed critical habitat areas.
    In summary, we propose designating critical habitat in areas that 
we determine are occupied at the time of listing and contain sufficient 
primary constituent elements to support life-history functions 
essential to the conservation of the species and require special 
management, and areas outside the geographical area occupied at the 
time of listing that we determine are essential for the conservation of 
Chupadera springsnail.

Proposed Critical Habitat Designation

    We are proposing two units of critical habitat for the Chupadera 
springsnail. The critical habitat areas we describe below constitute 
our current best assessment of areas that meet the definition of 
critical habitat for Chupadera springsnail. The two areas we propose as 
critical habitat are: (1) Willow Spring, which is currently (at the 
time of listing) occupied and contains the primary constituent 
elements; and (2) unnamed spring, which is not currently (at the time 
of listing) occupied but is determined to be essential for the 
conservation of the species. The approximate area and land ownership of 
each proposed critical habitat unit is shown in table 1.

  Table 1--Ownership and Approximate Area of Proposed Critical Habitat
                     Units for Chupadera Springsnail
------------------------------------------------------------------------
                                                       Estimated size of
      Critical habitat unit        Land ownership by    unit in hectares
                                          type              (acres)
------------------------------------------------------------------------
1. Willow Spring Unit...........  Private............          0.5 (1.4)
2. Unnamed Spring Unit..........  Private............          0.2 (0.5)
                                                      ------------------
    Total.......................  ...................          0.7 (1.9)
------------------------------------------------------------------------

    We present below brief descriptions of the units and reasons why 
they meet the definition of critical habitat for Chupadera springsnail.

Unit 1: Willow Spring Unit

    Unit 1 consists of approximately 0.5 ha (1.4 ac) in Socorro County, 
New Mexico. When last visited in 1999, the proposed Willow Spring Unit 
was a wet meadow with a springbrook that runs approximately 38 m (125 
ft) before being impounded by a berm that crosses the meadow. The 
entire unit is in private ownership. We are proposing to designate a 
single critical habitat unit that encompasses Willow Spring and 
includes the springhead, springbrook, small seeps and ponds, and the 
seasonally wetted meadow associated with the spring downstream to the 
artificial berm. This spring is located within the drainage of the Rio 
Grande, approximately 2.7 km (1.7 mi) west of Interstate Highway 25.
    The Willow Spring site has documented occupancy of Chupadera 
springsnail from 1979 to 1999 (Taylor 1987 p. 24; NMDGF 2004, p. 45). 
The current status of the population is unknown, but absent information 
that indicates otherwise, we assume it persists at Willow Spring. The 
proposed Willow Spring Unit contains all the primary constituent 
elements to support all of the Chupadera springsnail life processes. 
Threats to the primary constituent elements in this unit that may 
require special management include the effects of cattle grazing, 
groundwater depletion, springhead or springbrook manipulation, water 
contamination, and potential competition from nonnative species.

Unit 2: Unnamed Spring Unit

    Unit 2 consists of approximately 0.20 ha (0.5 ac) in Socorro 
County, New Mexico. The entire unit is privately owned. We are 
proposing to designate a single critical habitat unit that

[[Page 46229]]

encompasses the unnamed spring and includes the springhead, 
springbrook, small seeps and ponds, and the seasonally wetted meadow 
associated with the spring. This spring is located within the drainage 
of the Rio Grande, approximately 2.7 km (1.7 mi) west of Interstate 
Highway 25, about 0.5 km (0.3 mi) north of Willow Spring.
    The proposed Unnamed Spring Unit is currently unoccupied by the 
Chupadera springsnail, but it was historically occupied (Taylor 1987, 
p. 24; Lang 1998, p. 36). The spring appears to share a common aquifer 
and similarities in water chemistry, temperature, and hydrology with 
Willow Spring. The Unnamed Spring Unit is essential to the conservation 
of the species because it is a site where Chupadera springsnail can be 
reintroduced. This area is important to prevent extinction of the 
Chupadera springsnail. When developing conservation strategies for 
species whose life histories are characterized by short generation 
time, small body size, high rates of population increase, and high 
habitat specificity, it is important to maintain multiple populations 
as opposed to protecting a single population (Murphy et al. 1990, pp. 
41-51). Having replicate populations is a recognized conservation 
strategy to protect species from extinction due to catastrophic events 
(Soule 1985, p. 731). Some habitat restoration work may be needed 
before Chupadera springsnail could be reintroduced to the Unnamed 
Spring Unit; however, creating a second population is important for the 
long-term persistence of the species. Therefore, we conclude this 
spring is essential to the conservation of the species.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the 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, or 
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.

Application of the ``Adverse Modification'' Standard

    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.
    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical and 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Chupadera springsnail. 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

[[Page 46230]]

authorized by a Federal agency, should result in consultation for the 
Chupadera springsnail. These activities include, but are not limited 
to:
    (1) Actions that would reduce the quantity of water flow within the 
spring systems proposed as critical habitat.
    (2) Actions that would modify the springheads within the spring 
systems proposed as critical habitat.
    (3) Actions that would degrade water quality within the spring 
systems proposed for designation as critical habitat.
    (4) Actions that would reduce the availability of coarse, firm 
aquatic substrates within the spring systems that are proposed as 
critical habitat.
    (5) Actions that would reduce the occurrence of native aquatic 
algae, and/or periphyton within the spring systems proposed as critical 
habitat.
    (6) Actions that would introduce, promote, or maintain nonnative 
predators and competitors within the spring systems proposed as 
critical habitat.

Exemptions

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

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resource management plan by November 17, 
2001. An INRMP integrates implementation of the military mission of the 
installation with stewardship of the natural resources found on the 
base.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands within the proposed 
critical habitat designation, and therefore there are no exemptions 
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 his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. Potential land use sectors that may be affected by Chupadera 
springsnail critical habitat designation include grazing, groundwater 
withdrawals, and subdivision development. We also consider any social 
impacts that might occur because of the designation.
    We will announce the availability of the draft economic analysis as 
soon as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://www.regulations.gov, or by contacting the New Mexico Ecological 
Services Field Office directly (see FOR FURTHER INFORMATION CONTACT 
section). During the development of a final designation, we will 
consider economic impacts, public comments, and other new information, 
and areas may be excluded from the final critical habitat designation 
under section 4(b)(2) of the Act and our implementing regulations at 50 
CFR 424.19.
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 (DOD) where a 
national security impact might exist. In preparing this proposal, we 
have determined that the lands within the proposed designation of 
critical habitat for the Chupadera springsnail are not owned or managed 
by the DOD, and therefore, anticipate no impact to national security. 
There are no areas proposed for exclusion 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 proposal, we have determined that there are 
currently no HCPs or other management plans for the Chupadera 
springsnail, and the proposed designation does not include any Tribal 
lands or trust resources. We anticipate no impact to Tribal lands, 
partnerships, or HCPs from this proposed critical habitat designation. 
There are no areas proposed for exclusion from this proposed 
designation based on other relevant impacts.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule.

[[Page 46231]]

The purpose of peer review is to ensure that our critical habitat 
designation is based on scientifically sound data, assumptions, and 
analyses. We have invited these peer reviewers to comment during this 
public comment period on our specific assumptions and conclusions in 
this proposed designation of critical habitat.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in the 
ADDRESSES section. We will schedule public hearings on this proposal, 
if any are requested, and announce the dates, times, and places of 
those hearings, as well as how to obtain reasonable accommodations, in 
the Federal Register and local newspapers at least 15 days before the 
hearing.
    Persons needing reasonable accommodations to attend and participate 
in a public hearing should contact the New Mexico Ecological Services 
Field Office at 505-346- 2525, as soon as possible. To allow sufficient 
time to process requests, please call no later than one week before the 
hearing date. Information regarding this proposed rule is available in 
alternative formats upon request.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
Executive Order 12866 (Regulatory Planning and Review). OMB bases its 
determination upon the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

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 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.
    At this time, we lack the available economic information necessary 
to provide an adequate factual basis for the required RFA finding. 
Therefore, we defer the RFA finding until completion of the draft 
economic analysis prepared under section 4(b)(2) of the Act and 
Executive Order 12866. This draft economic analysis will provide the 
required factual basis for the RFA finding. Upon completion of the 
draft economic analysis, we will announce availability of the draft 
economic analysis of the proposed designation in the Federal Register 
and reopen the public comment period for the proposed designation. We 
will include with this announcement, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination. On 
the basis of the development of our proposal, we have identified 
certain sectors and activities that may potentially be affected by a 
designation of critical habitat for the Chupadera springsnail. These 
sectors include grazing, groundwater withdrawals, and subdivision 
development. We recognize that not all of these sectors may qualify as 
small business entities. We have concluded that deferring the RFA 
finding until completion of the draft economic analysis is necessary to 
meet the purposes and requirements of the RFA. Deferring the RFA 
finding in this manner will ensure that we make a sufficiently informed 
determination based on adequate economic information and provide the 
necessary opportunity for public comment.

Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed rule to 
designate critical habitat for the Chupadera springsnail is not a 
significant regulatory action under Executive Order 12866, and we do 
not expect it 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. We will further evaluate 
energy-related issues as we conduct our economic analysis, and review 
and revise this assessment as warranted.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a

[[Page 46232]]

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 expect this rule to significantly or uniquely affect 
small governments because the proposed designation is on private land. 
Small governments will be affected only to the extent that any programs 
having Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat. Therefore, we do not believe a Small Government Agency Plan is 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment as 
warranted.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we will 
analyze the potential takings implications of designating critical 
habitat for the Chupadera springsnail in a takings implications 
assessment. The takings implications assessment will determine whether 
this designation of critical habitat for the Chupadera springsnail 
poses significant takings implications for lands within or affected by 
the proposed revised designation. We will further evaluate this issue 
as we conduct our economic analysis.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed critical habitat designation with 
appropriate State resource agencies in New Mexico. The designation of 
critical habitat on lands currently occupied by the Chupadera 
springsnail imposes no additional restrictions to those currently in 
place and, therefore, has little incremental impact on State and local 
governments and their activities. 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 clearly defined, 
and the primary constituent elements of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what Federally sponsored 
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7 
consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) 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

    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 have proposed designating 
critical habitat in accordance with the provisions of the Act. This 
proposed rule uses standard property descriptions and identifies the 
elements of physical and biological features essential to the 
conservation of the Chupadera springsnail within the designated areas 
to assist the public in understanding the habitat needs of the species.

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)). However, when the 
range of the species includes States within the Tenth circuit, such as 
that of the Chupadera springsnail, 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. We will prepare an environmental 
assessment for the proposed designation of critical habitat for the 
Chupadera springsnail and notify the public of the availability of the 
draft environmental assessment.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are

[[Page 46233]]

too long, the sections where you feel lists or tables would be useful, 
etc.

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 that were occupied by 
the Chupadera springsnail at the time of listing that contain the 
features essential for conservation of the species, and no Tribal lands 
unoccupied by the Chupadera springsnail that are essential for the 
conservation of the species. Therefore, we are not proposing to 
designate critical habitat for the Chupadera springsnail on Tribal 
lands.

Data Quality Act

    In developing this rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the data Quality Act 
(Pub. L. 106-554).

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov or upon request from the 
Field Supervisor, New Mexico Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT section).

Author(s)

    The primary authors of this document are the staff members of the 
New Mexico Ecological Services Field Services Office (see FOR FURTHER 
INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec.  17.11(h) add an entry for ``Springsnail, Chupadera'' to 
the List of Endangered and Threatened Wildlife in alphabetical order 
under SNAILS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species
----------------------------------------------------------       Historic range         Vertebrate population where endangered        Status           When  listed       Critical     Special
            Common name                Scientific name                                              or threatened                                                         habitat       rules
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                                          * * * * * * *
              Snails
 
                                                                                          * * * * * * *
Springsnail, Chupadera............  Pyrgulopsis            U.S.A. (NM)...............  Entire.................................  E                   ..................     17.95(f)           NA
                                     chupaderae.
 
                                                                                          * * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.95, amend paragraph (f) by adding an entry for 
``Chupadera springsnail (Pyrgulopsis chupaderae)'' in the same 
alphabetical order that the species appears in the table at Sec.  
17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *
Chupadera Springsnail (Pyrgulopsis chupaderae)
    (1) Critical habitat units are depicted for Socorro County, New 
Mexico, on the map below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
Chupadera springsnail consist of springheads, springbrooks, seeps, 
ponds, and seasonally wetted meadows containing:
    (i) Unpolluted spring water (free from contamination) emerging from 
the ground and flowing on the surface;
    (ii) Periphyton (an assemblage of algae, bacteria, and microbes) 
and decaying organic material for food;
    (iii) Substrates that include cobble, gravel, pebble, sand, silt, 
and aquatic vegetation, for egg laying, maturing, feeding, and escape 
from predators; and
    (iv) Nonnative predators and competitors either absent or present 
at low population levels.
    (3) Critical habitat does not include manmade structures (such as 
buildings, roads, and other paved areas, and the land on which they are 
located) existing on the effective date of this rule.
    (4) Critical habitat map units were plotted on 2007 USGS Digital 
Ortho Quarter UTM coordinates in ArcMap (Environmental Systems Research 
Institute, Inc.), a computer GIS program.
    (5) Unit 1: Willow Spring, Socorro County, New Mexico.
    (i) The critical habitat area includes the springhead, springbrook, 
small seeps and ponds, seasonally wetted meadow, and all of the 
associated spring features. This area is approximately 0.5 ha (1.4 ac) 
around the following coordinates: Easting 316889, northing 3743013 
(Universal Transverse Mercator Zone 13 using North American Datum of 
1983).
    (6) Unit 2: Unnamed Spring, Socorro County, New Mexico.
    (i) The critical habitat area includes the springhead, springbrook, 
small seeps and ponds, seasonally wetted meadow, and all of the 
associated spring features. This area is approximately 0.2

[[Page 46234]]

ha (0.5 ac) around the following coordinates: Easting 317048, northing 
3743418 (Universal Transverse Mercator Zone 13 using North American 
Datum of 1983).
    (ii) Note: Map of Units 1 and 2 follows:
    [GRAPHIC] [TIFF OMITTED] TP02AU11.092
    
* * * * *

    Dated: June 13, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-19444 Filed 8-1-11; 8:45 am]
BILLING CODE 4310-55-P