[Federal Register Volume 63, Number 250 (Wednesday, December 30, 1998)]
[Proposed Rules]
[Pages 71838-71854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34413]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AF37
Endangered and Threatened Wildlife and Plants; Proposed
Determination of Critical Habitat for the Huachuca Water Umbel, a Plant
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose
designation of critical habitat pursuant to the Endangered Species Act
of 1973, as amended (Act), for Lilaeopsis schaffneriana ssp. recurva,
the Huachuca water umbel, a plant. Proposed critical habitat includes a
total of 83.9 kilometers (52.1 miles) of streams or rivers in Cochise
and Santa Cruz counties, Arizona. If this proposal is made final,
section 7 of the Act would prohibit destruction or adverse modification
of critical habitat by any activity funded, authorized, or carried out
by any Federal agency. Section 4 of the Act requires us to consider
economic and other impacts of specifying any particular area as
critical habitat. We solicit data and comments from the public on all
aspects of this proposal, including data on the economic and other
impacts of the designation. We may revise this proposal to incorporate
or address new information received during the comment period.
DATES: We will accept comments until March 1, 1999. We will hold a
public hearing on this proposed rule; we will publish the date and
location of this hearing in the Federal Register and local newspapers
at least 15 days prior to the hearing.
ADDRESSES: Send comments and materials to the Field Supervisor, Arizona
Ecological Services Field Office, U.S. Fish and Wildlife Service, 2321
West Royal Palm Road, Suite 103, Phoenix, Arizona, 85021-4951. Comments
and materials received will be available for public inspection, by
appointment, during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Tom Gatz, Endangered Species
Coordinator, at the above address (telephone 602/640-2720 ext. 240;
facsimile 602/640-2730).
SUPPLEMENTARY INFORMATION:
Background
Lilaeopsis schaffneriana ssp. recurva (referred to as Lilaeopsis in
this proposed rule), the Huachuca water umbel, is a plant found in
cienegas (desert marshes), streams and springs in southern Arizona and
northern Sonora, Mexico, typically in mid-elevation wetland communities
often surrounded by relatively arid environments. These communities are
usually associated with perennial springs and stream headwaters, have
permanently or seasonally saturated highly organic soils, and have a
low probability of flooding or scouring (Hendrickson and Minckley
1984). Cienegas support diverse assemblages of animals and plants,
including many species of limited distribution, such as Lilaeopsis
(Hendrickson and Minckley 1984, Lowe 1985, Ohmart and Anderson 1982,
Minckley and Brown 1982).
[[Page 71839]]
Cienegas, perennial streams, and rivers in the desert southwest are
extremely rare. The Arizona Game and Fish Department (1993) recently
estimated that riparian vegetation associated with perennial streams
comprises about 0.4 percent of the total land area of Arizona, with
present riparian areas being remnants of what once existed. The State
of Arizona (1990) estimated that up to 90 percent of the riparian
habitat along Arizona's major desert watercourses has been lost,
degraded, or altered in historical times. Lilaeopsis occupies small
portions of these rare habitats.
Lilaeopsis is an herbaceous, semiaquatic to occasionally fully
aquatic perennial plant with slender, erect leaves that grow from
creeping rhizomes. The leaves are cylindrical, hollow with no pith, and
have septa (thin partitions) at regular intervals. The yellow-green or
bright green leaves are generally 1-3 millimeters (mm) (0.04-0.12
inches (in.)) in diameter and often 3-5 centimeters (cm) (1-2 in.)
tall, but can reach up to 20 cm (8 in.) tall under favorable
conditions. Three to 10 very small flowers are borne on an umbel that
is always shorter than the leaves. The fruits are globose, 1.5-2 mm
(0.06-0.08 in.) in diameter, and usually slightly longer than wide
(Affolter 1985). The species reproduces sexually through flowering and
asexually from rhizomes (root-like stems); the latter probably being
the primary reproductive mode. An additional dispersal opportunity
occurs as a result of the dislodging of clumps of plants which then may
reroot at different sites along streams.
Lilaeopsis schaffneriana spp. recurva was first described by A.W.
Hill based on the type specimen collected near Tucson in 1881 (Hill
1926). Hill applied the name Lilaeopsis recurva to the specimen, and
the name prevailed until Affolter (1985) revised the genus. Affolter
applied the name L. schaffneriana ssp. recurva to plants found west of
the continental divide.
Previous Federal Action
We included Lilaeopsis schaffneriana ssp. recurva, then under the
name L. recurva, as a category 2 candidate in our November 28, 1983 (45
FR 82480), and September 27, 1985 (50 FR 39526), plant notices of
review. Category 2 candidates were defined as those taxa for which we
had data indicating that listing was possibly appropriate but for which
we lacked substantial information on vulnerability and threats to
support proposed listing rules. In our February 21, 1990 (55 FR 6184),
and September 30, 1993 (58 FR 51144), notices, we included Lilaeopsis
as a category 1 candidate. Category 1 candidates were defined as those
taxa for which we had sufficient information on biological
vulnerability and threats to support proposed listing rules but for
which issuance of proposals to list were precluded by other higher-
priority listing activities. Beginning with our combined plant and
animal notice of review published in the Federal Register on February
28, 1996 (61 FR 7596), we discontinued the designation of multiple
categories of candidates and only taxa meeting the definition of former
category 1 candidates are now recognized as candidates for listing
purposes.
On June 3, 1993, we received a petition, dated May 31, 1993, from a
coalition of conservation organizations (Suckling et al. 1993) to list
Lilaeopsis and two other species as endangered species pursuant to the
Act. On December 14, 1993, we published a notice of 90-day finding that
the petition presented substantial information indicating that listing
of Lilaeopsis may be warranted, and requested public comments and
biological data on the status of the species (58 FR 65325).
On April 3, 1995, we published a proposal (60 FR 16836) to list
Lilaeopsis and two other species as endangered, and again requested
public comments and biological data on their status. After
consideration of comments and information received during the comment
period, we listed Lilaeopsis as endangered on January 6, 1997.
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate critical habitat at the time we
determine a species to be endangered or threatened.
[[Page 71840]]
At the time of listing, we determined that any potential benefits of
critical habitat beyond that of listing, when weighed against the
negative impacts of disclosing site-specific localities, did not yield
an overall benefit to the species, and, therefore, that designation of
critical habitat was not prudent.
On October 31, 1997, Southwest Center for Biological Diversity
filed a lawsuit in Federal District Court in Arizona against the
Department of Interior for failure to designate critical habitat for
the cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) and
Lilaeopsis (Southwest Center for Biological Diversity v. Bruce Babbitt,
Secretary of the Department of the Interior; CIV 97-704 TUC ACM). On
October 7, 1998, Alfredo C. Marquez, Senior U.S. District Judge, issued
an order stating that ``There being no evidence that designation of
critical habitat for the pygmy-owl and water umbel is not prudent, the
Secretary shall, without further delay, decide whether or not to
designate critical habitat for the pygmy-owl and water umbel based on
the best scientific and commercial information available.''
On November 25, 1998, in response to the Plaintiff's motion to
clarify his initial order, Judge Marquez further ordered ``that within
30 days of the date of this Order, the Secretary shall issue the
Proposed Rules for designating critical habitat for the pygmy-owl and
water umbel . . . and that within six months of issuing the Proposed
Rules, the Secretary shall issue final decisions regarding the
designation of critical habitat for the pygmy-owl and water umbel.''
Absent the court's order, the processing of this proposed rule
would not conform with our Fiscal Year 1998 and 1999 Listing Priority
Guidance, published on May 8, 1998 (63 FR 25502). The guidance
clarifies the order in which we will process rulemakings giving highest
priority (Tier 1) to processing emergency rules to add species to the
Lists of Endangered and Threatened Wildlife and Plants; second priority
(Tier 2) to processing final determinations on proposals to add species
to the lists, processing new listing proposals, processing
administrative findings on petitions (to add species to the lists,
delist species, or reclassify listed species), and processing a limited
number of proposed and final rules to delist or reclassify species; and
third priority (Tier 3) to processing proposed and final rules
designating critical habitat. The Service's Southwest Region is
currently working on Tier 2 actions; however, we are undertaking this
Tier 3 action in order to comply with the above-mentioned court order.
Habitat Characteristics
The physical and biological habitat features essential to the
conservation of Lilaeopsis include a riparian plant community that is
stable over time and relatively free of nonnative species, a stream
channel that is stable and subject to periodic flooding, refugial sites
(sites safe from catastrophic flooding), and a permanently wetted
substrate (soil) for growth and reproduction of the plant.
Lilaeopsis has an opportunistic strategy that ensures its survival
in healthy riverine systems, cienegas, and springs. In upper watersheds
that generally do not experience scouring floods, Lilaeopsis occurs in
microsites (small isolated sites) where competition between different
plant species is low. At these sites, Lilaeopsis occurs on wetted soils
interspersed with other plants at low density, along the periphery of
the wetted channel, or in small openings in the understory. The upper
Santa Cruz River and associated springs in the San Rafael Valley, where
a population of Lilaeopsis occurs, is an example of a site that meets
these conditions. The types of microsites required by Lilaeopsis were
generally lost from the main stems of the San Pedro and Santa Cruz
Rivers when channel entrenchment occurred in the late 1800s. Habitat on
the upper San Pedro River is recovering, and Lilaeopsis has recently
recolonized small reaches of the main channel.
Lilaeopsis can occur in backwaters and side channels of streams and
rivers, and in nearby springs. After a flood, Lilaeopsis can rapidly
expand its population and occupy disturbed habitat until interspecific
competition exceeds its tolerance. This response was recorded at
Sonoita Creek in August 1988, when a scouring flood removed about 95
percent of the Lilaeopsis population (Gori et al. 1990). One year
later, Lilaeopsis had recolonized the stream and was again co-dominant
with Rorippa nasturtium-aquaticum (watercress) (Warren et al. 1991).
The expansion and contraction of Lilaeopsis populations appears to
depend on the presence of ``refugia'' where the species can escape the
effects of scouring floods, a watershed that has an unaltered flow
regime, and a healthy riparian community that stabilizes the channel.
Two patches of Lilaeopsis on the San Pedro River were lost during a
winter flood in 1994 and the species had still not recolonized that
area as of May of 1995, demonstrating the dynamic and often precarious
nature of occurrences within a riparian system (Al Anderson, Grey Hawk
Ranch, in litt. 1995).
Density of Lilaeopsis plants and size of populations fluctuate in
response to both flood cycles and site characteristics. Some sites,
such as Black Draw, have a few sparsely distributed clones, possibly
due to the dense shade of the even-aged overstory of trees and deeply
entrenched channel. The Sonoita Creek population occupies 14.5 percent
of a 500.5 square-meter (sq-m) (5,385 square-foot (sq-ft)) patch of
habitat (Gori et al. 1990). Some populations are as small as 1-2 sq-m
(11-22 sq-ft). The Scotia Canyon population, by contrast, has dense
mats of leaves. Scotia Canyon contains one of the larger Lilaeopsis
populations, occupying about 57 percent of the 1,450-m (4,756-ft)
perennial reach (Gori et al. 1990; Jim Abbott, Coronado National
Forest, in litt. 1994).
While the extent of occupied habitat can be estimated, the number
of individuals in each population is difficult to determine because of
the intermeshing nature of the creeping rhizomes and the predominantly
asexual mode of reproduction. A ``population'' of Lilaeopsis may be
composed of one or many genetically distinct individuals.
Introduction of Lilaeopsis into ponds on the San Bernardino
National Wildlife Refuge (Refuge) appears to be successful (Warren
1991). In 1991, Lilaeopsis was transplanted from Black Draw into new
ponds and other Refuge wetlands. Transplants placed in areas with low
plant density expanded rapidly (Warren 1991). In 1992, Lilaeopsis
naturally colonized a pond created in 1991. However, as plant
competition increased around the perimeter of the pond, the Lilaeopsis
population decreased. This response seems to confirm observations
(Kevin Cobble, San Bernardino National Wildlife Refuge, pers. comm.
1994; and Peter Warren, Arizona Nature Conservancy, pers. comm. 1993)
that other species such as Typha sp. will out-compete Lilaeopsis.
Lilaeopsis has been documented from 25 sites in Santa Cruz,
Cochise, and Pima counties, Arizona, and in adjacent Sonora, Mexico,
west of the continental divide (Saucedo 1990, Warren et al. 1989,
Warren et al. 1991, Warren and Reichenbacher 1991). The plant has been
extirpated from six of the sites. The 19 extant sites occur in 4 major
watersheds--San Pedro River, Santa Cruz River, Rio Yaqui, and Rio
Sonora. All sites are between 1,148-2,133 m (3,500-6,500 ft) elevation.
New information received during the comment periods and in section 7
[[Page 71841]]
conferences and consultations for proposed Federal actions has
indicated that some of these sites are larger in extent than previously
known. This is likely due to the dynamic nature of riparian habitats.
Nine Lilaeopsis populations occur in the San Pedro River watershed
in Arizona and Sonora, on sites owned or managed by private landowners,
the Fort Huachuca Military Reservation, the Coronado National Forest,
and the Bureau of Land Management's (BLM) Tucson Field Office. Two
extirpated populations in the upper San Pedro watershed occurred at
Zinn Pond in St. David and the San Pedro River near St. David. Cienega-
like habitats were probably common along the San Pedro River prior to
1900 (Hendrickson and Minckley 1984, Jackson et al. 1987), but these
habitats are now largely gone. Surveys conducted for wildlife habitat
assessment have found several discontinuous clumps of Lilaeopsis within
the upper San Pedro River where habitat was present in 1996 prior to
recent flooding (Mark Fredlake, BLM, pers. comm. 1996).
The four Lilaeopsis populations in the Santa Cruz watershed
probably represent very small remnants of larger populations that may
have occurred in the extensive riparian and aquatic habitat formerly
existing along the river. Before 1890, the spatially intermittent,
perennial flows on the middle Santa Cruz River most likely provided a
considerable amount of habitat for Lilaeopsis and other aquatic plants.
The middle section of the Santa Cruz River mainstem is about a 130-
kilometer (km) (80-mile (mi)) reach that flowed perennially from the
Tubac area south to the United States/Mexico border and intermittently
from Tubac north to the Tucson area (Davis 1986).
Davis, Jr. (1982) quotes from the July 1855, descriptive journal
entry of Julius Froebel while camped on the Santa Cruz River near
Tucson: `` * * * rapid brook, clear as crystal, and full of aquatic
plants, fish, and tortoises of various kinds, flowed through a small
meadow covered with shrubs. * * *. '' This habitat and species
assemblage no longer occurs in the Tucson area. In the upper watershed
of the middle Santa Cruz River, the species is now represented only by
a single population in two short reaches of Sonoita Creek. A population
at Monkey Spring in the upper watershed of the middle Santa Cruz River
has been extirpated, although suitable habitat exists (Warren at el.
1991).
Lilaeopsis remains in small areas (generally less than 1 sq-m (10.8
sq-ft)) in Black Draw, Cochise County, Arizona. Transplants from Black
Draw have been successfully established in nearby wetlands and ponds.
Recent renovation of House Pond on private land near Black Draw
extirpated the population on that pond.
Two Lilaeopsis populations occur in the Rio Yaqui watershed. The
species was recently discovered at Presa Cuquiarichi, in the Sierra de
los Ajos, several miles east of Cananea, Sonora (Tom Deecken, Coronado
National Forest, pers. comm. 1994). A population in the Rio San
Bernardino in Sonora was also recently extirpated (Gori et al. 1990).
One Lilaeopsis population occurs in the Rio Sonora watershed at Ojo de
Agua, a cienega in Sonora at the headwaters of the river (Saucedo
1990).
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management consideration
or protection and; (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon determination that
such areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered species or a threatened species to the
point at which listing under Act is no longer necessary.
Section 4(b)(2) of the Act requires us to base critical habitat
proposals upon the best scientific and commercial data available,
taking into consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat. We may
exclude areas from critical habitat designation when the benefits of
exclusion outweigh the benefits of including the areas within critical
habitat, provided the exclusion will not result in the extinction of
the species (section 4(b)(2) of the Act).
Designation of critical habitat can help focus conservation
activities for a listed species by identifying areas, both occupied and
unoccupied, that contain or could develop the essential habitat
features (primary constituent elements), described below, and that are
essential for the conservation of a listed species. Designation of
critical habitat alerts the public as well as land-managing agencies to
the importance of these areas.
Critical habitat also identifies areas that may require special
management considerations or protection, and may provide additional
protection to areas where significant threats to the species have been
identified. Critical habitat receives protection from the prohibition
against destruction or adverse modification through required
consultation under section 7 of the Act with regard to actions carried
out, funded, or authorized by a Federal agency. Section 7 also requires
conferences on Federal actions that are likely to result in the adverse
modification or destruction of proposed critical habitat. Aside from
the protection that may be provided under section 7, the Act does not
provide other forms of protection to lands designated as critical
habitat.
Section 7(a)(2) of the Act prohibits Federal agencies from funding,
authorizing, or carrying out actions likely to jeopardize the continued
existence of a threatened or endangered species, or that are likely to
destroy or adversely modify critical habitat. ``Jeopardize the
continued existence'' is defined as an appreciable reduction in the
likelihood of survival and recovery of a listed species. ``Destruction
or adverse modification'' of critical habitat occurs when a Federal
action significantly reduces the value of critical habitat for the
survival and recovery of the listed species for which critical habitat
was designated. Thus, the definitions of ``jeopardy'' to the species
and ``adverse modification'' of critical habitat are similar.
Designating critical habitat does not, in itself, lead to recovery
of a listed species. Designation does not create a management plan,
establish numerical population goals, prescribe specific management
actions (inside or outside of critical habitat), or directly affect
areas not designated as critical habitat. Specific management
recommendations for critical habitat are most appropriately addressed
in recovery plans and management plans, and through section 7
consultations.
Critical habitat identifies specific areas, both occupied and
unoccupied, that are essential to the conservation of a listed species
and that may require special management considerations or protection.
Areas that do not currently contain all of the primary constituent
elements but that could develop them in the future may be essential to
the conservation of the species and may be designated as critical
habitat.
Section 3(5)(C) of the Act generally requires that not all areas
potentially occupied by a species be designated as critical habitat.
Therefore, not all areas containing the primary constituent elements
are necessarily essential to the
[[Page 71842]]
conservation of the species. Areas that contain one or more of the
primary constituent elements, but that are not included within critical
habitat boundaries, may still be important to a species' conservation
and may be considered under other parts of the Act or other
conservation laws and regulations.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features (primary
constituent elements) that are essential to the conservation of the
species and that may require special management considerations or
protection. These include, but are not limited to, the following:
Space for individual and population growth, and for normal
behavior;
Food, water, air, light, minerals or other nutritional or
physiological requirements;
Cover or shelter;
Sites for breeding, reproduction, or rearing of offspring,
germination, or seed dispersal; and
Habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
The primary constituent elements of critical habitat for Lilaeopsis
include, but are not limited to, the habitat components that provide:
(1) Sufficient perennial base flows to provide a permanently wetted
substrate for growth and reproduction of Lilaeopsis;
(2) A stream channel that is stable and subject to periodic
flooding that provides for rejuvenation of the riparian plant community
and produces open microsites for Lilaeopsis expansion;
(3) A riparian plant community that is stable over time and in
which nonnative species do not exist or are at a density that has
little or no adverse effect on resources available for Lilaeopsis
growth and reproduction; and
(4) Refugial sites in each watershed and in each stream reach,
including but not limited to springs or backwaters of mainstem rivers,
that allow each population to survive catastrophic floods and
recolonize larger areas.
We selected critical habitat areas to provide for the conservation
of Lilaeopsis throughout the remaining portion of its geographic range
in the United States. At least one segment of critical habitat is
proposed in each watershed containing the species, with the exception
of the Rio Yaqui watershed where the plants are found on the San
Bernardino National Wildlife Refuge. That population is secure under
current management and, therefore, does not require special management
considerations or protection.
Proposed Critical Habitat Designation
The proposed critical habitat areas described below, combined with
protected areas either known or suspected to contain some of the
primary constituent elements but not proposed as critical habitat,
constitute our best assessment at this time of the areas needed for the
species' conservation. However, the Arizona Plant Recovery Team will be
providing guidance on the recovery planning for this species and may
provide additional guidance regarding the significance of areas
proposed for critical habitat as well as additional areas not yet
proposed. Upon the team's completion of recovery planning guidance, we
will evaluate the recommendations and reexamine if and where critical
habitat is appropriate.
Critical habitat being proposed for Lilaeopsis includes areas that
currently sustain the species and areas that do not currently sustain
the species but offer recovery habitat. Protection of this proposed
critical habitat would be essential for the conservation of the
species. The species is already extirpated from a significant portion
of its historical range. Eight disjunct areas are being proposed as
critical habitat; all proposed areas are in Santa Cruz and Cochise
counties, Arizona, and include stream courses and adjacent areas out to
the beginning of upland vegetation.
The following general areas are proposed as critical habitat (see
legal descriptions for exact critical habitat boundaries):
approximately 2.0 km (1.25 mi) of Sonoita Creek southwest of Sonoita;
approximately 4.4 km (2.7 mi) of the Santa Cruz River on both sides of
Forest Road 61, plus approximately 3 km (1.9 mi) of an unnamed
tributary to the east of the river; approximately 5.4 km (3.4 mi) of
Scotia Canyon upstream from near Forest Road 48; approximately 1.1 km
(0.7 mi) of Sunnyside Canyon near Forest Road 117 in the Huachuca
Mountains; approximately 6.1 km (3.8 mi) of Garden Canyon near its
confluence with Sawmill Canyon; approximately 3.5 km (2.2 mi) at Lone
Mountain Canyon, plus approximately 1.7 km (1.0 mi) of an unnamed
tributary and 1.8 km (1.1 mi) of Bear Creek; an approximate 0.7-km
(0.4-mi) reach of Joaquin Canyon; and approximately 54.2 km (33.7 mi)
of the San Pedro River from the perennial flows reach north of Fairbank
(1991 DWR) to 200 m south of Hereford, San Pedro Riparian National
Conservation Area.
Although the majority of the land being proposed for critical
habitat designation is under Federal administration and management,
some riparian systems on private land are being proposed. The Sonoita
Creek segment and the San Rafael Valley segment within the Santa Cruz
River drainage are privately owned. The sites in the Huachuca Mountains
(Scotia, Sunnyside, Bear, Joaquin and a tributary of Lone Mountain,
canyons) are managed by the Coronado National Forest. The San Pedro
Riparian National Conservation Area is managed by the BLM. The Garden
Canyon segment is managed by the Fort Huachuca Military Reservation.
We are not proposing critical habitat for the four populations
occurring in Mexico because areas outside the United States are not
considered for critical habitat designation (50 CFR 424.12(h)). Also, a
population occurring on Turkey Creek, Canelo Hills is small and the
habitat is probably not capable of supporting a large population.
Similarly, the spring sites of Sawmill Spring, Sycamore Spring, Mud
Spring and Freeman Springs also are too small to support large stable
populations. We believe these isolated sites are not essential to the
conservation of the species and, therefore, are not including them in
proposed critical habitat.
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 encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against certain activities involving
listed species are discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated or proposed. 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 us
on any action
[[Page 71843]]
that is likely to jeopardize the continued existence of a proposed
species or result in destruction or adverse modification of proposed
critical habitat. If a species is listed or critical habitat is
designated subsequently, 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 such a species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with us.
Section 7(a)(4) of the Act and regulations at 50 CFR 402.10 require
Federal agencies to confer with us on any action that is likely to
result in destruction or adverse modification of proposed critical
habitat. Regulations at 50 CFR 402.16 require Federal agencies to
reinitiate consultation on previously reviewed actions in instances
where critical habitat is subsequently designated. Consequently, some
Federal agencies may request conference with us on actions for which
formal consultation has been completed. Conference reports provide
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The conservation
recommendations in a conference report are advisory.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
a biological opinion that is prepared according to 50 CFR 402.14, as if
critical habitat were designated. We may adopt the formal conference
report as the biological opinion when the critical habitat is
designated, if no significant new information or changes in the action
alter the content of the opinion (see 50 CFR 402.10(d)).
Activities on Federal lands that may affect Lilaeopsis or its
critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the U.S. Army Corps of Engineers under section 404 of
the Clean Water Act, would also be subject to the section 7
consultation process. Federal actions not affecting the species, as
well as actions on non-Federal lands that are not federally funded or
permitted would not require section 7 consultation.
Section 4(b)(8) of the Act requires us to describe in any proposed
or final regulation that designates critical habitat those activities
involving a Federal action that may destroy or adversely modify such
habitat or that may be affected by such designation. Activities that
may destroy or adversely modify critical habitat include those that
alter the primary constituent elements to the extent that the value of
critical habitat for both the survival and recovery of Lilaeopsis is
appreciably reduced. We note that such activities may also jeopardize
the continued existence of the species. Such activities may include but
are not limited to:
(1) Activities such as damming, water diversion, channelization,
excess groundwater pumping, or other actions that appreciably decrease
base flow and appreciably reduce the wetted surface area of perennial
rivers or springs;
(2) Activities that alter watershed characteristics in ways that
would appreciably reduce groundwater recharge or alter natural flooding
regimes needed to maintain natural, dynamic riparian communities. Such
activities adverse to Lilaeopsis could include, but are not limited to,
vegetation manipulation such as chaining or harvesting timber;
maintaining an unnatural fire regime either through fire suppression or
too frequent or poorly-timed prescribed fires; mining; military
maneuvers including bombing and tank operations; residential and
commercial development, including road building; and livestock
overgrazing;
(3) Activities that appreciably degrade or destroy native riparian
communities, including but not limited to livestock overgrazing,
clearing, cutting of live trees, introducing or encouraging the spread
of nonnative species, and heavy recreational use; and
(4) Activities that appreciably alter stream channel morphology
such as sand and gravel mining, road construction, channelization,
impoundment, overgrazing by livestock, watershed disturbances, off-road
vehicle use, heavy or poorly planned recreational use, and other uses.
Designation of critical habitat could affect the following agencies
and/or actions including, but not limited to, managing recreation, road
construction, livestock grazing, granting rights-of-way, timber
harvesting, and other actions funded, authorized, or carried out by the
Forest Service or BLM. Permitting of some military activities on Fort
Huachuca may be affected by designation. Development on private or
State lands requiring permits from Federal agencies, such as 404
permits from the U.S. Army Corps of Engineers, would also be subject to
the section 7 consultation process.
If you have questions regarding whether specific activities will
likely constitute adverse modification of critical habitat, contact the
Field Supervisor, Arizona Ecological Services Field Office (see
ADDRESSES section). Requests for copies of the regulations on listed
wildlife and inquiries about prohibitions and permits may be addressed
to the U.S. Fish and Wildlife Service, Branch of Endangered Species/
Permits, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone (505)
248-6920, facsimile (505) 248-6922).
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as part of
critical habitat. We cannot exclude such areas from critical habitat if
such exclusion would result in the extinction of the species concerned.
We will conduct an economic analysis for this proposal prior to a final
determination.
Public Comments Solicited
It is our intent that any final action resulting from this proposal
will be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefit of designation will outweigh any threats to the
species due to designation;
(2) Specific information on the amount and distribution of
Lilaeopsis habitat, and what habitat is essential to 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 or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families;
(5) Economic and other values associated with designating critical
habitat for Lilaeopsis such as those derived from non-consumptive uses
(e.g., hiking, camping, bird-watching, enhanced watershed protection,
improved air quality, increased soil retention, ``existence values,''
and reductions in administrative costs); and
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(6) The methodology we might use, under section 4(b)(2) of the Act,
in determining if the benefits of excluding an area from critical
habitat outweigh the benefits of specifying the area as critical
habitat.
In accordance with our policy published on July 1, 1994 (59 FR
34270), we will solicit the expert opinions of three appropriate and
independent specialists regarding this proposed rule. The purpose of
such review is to ensure listing decisions are based on scientifically
sound data, assumptions, and analyses. We will send to these peer
reviewers copies of this proposed rule immediately following
publication in the Federal Register. We will invite peer reviewers to
comment, during the public comment period, on the specific assumptions
and conclusions regarding the proposed designation of critical habitat.
We will consider all comments and information received during the
60-day comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final determination may differ from
this proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. We intend to schedule one public hearing regarding this
proposal. We will announce the date, time and place of that hearing in
the Federal Register and local newspapers at least 15 days prior to the
hearing.
Executive Order 12866
Executive order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this notice easier to understand including answers to questions
such as the following: (1) Are the requirements in the notice clearly
stated? (2) Does the notice contain technical language or jargon that
interferes with the clarity? (3) Does the format of the notice
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce its clarity? (4) Is the description of the notice in the
``Supplementary Information'' section of the preamble helpful in
understanding the notice? What else could we do to make the notice
easier to understand?
Send a copy of any comments that concern how we could make this
notice easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW, Washington,
DC 20240. You may e-mail your comments to this address:
E[email protected].
Required Determinations
1. Regulatory Planning and Review
In accordance with Executive Order 12866, this action was submitted
for review by the Office of Management and Budget. Following issuance
of this proposed rule, we will prepare an economic analysis to
determine the economic consequences of designating the specific areas
identified as critical habitat. If our economic analysis reveals that
the economic impacts of designating any area as critical habitat
outweigh the benefits of designation, we will exclude those areas from
consideration, unless such exclusion will result in the extinction of
the species. In the economic analysis, we will address any possible
inconsistencies with other agencies' actions and any effects on
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients. This rule will not raise novel legal
or policy issues.
2. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
In the economic analysis, we will determine whether designation of
critical habitat will have a significant effect on a substantial number
of small entities.
3. Small Business Regulatory Enforcement Fairness Act (5 U.S.C.
804(2)).
In the economic analysis, we will determine whether designation of
critical habitat will cause (a) any effect on the economy of $100
million or more, (b) any increases in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions in the economic analysis, or (c) any significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises.
4. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In the economic analysis, we will address any effects to small
governments resulting from designation of critical habitat and any
Federal mandate of $100 million or greater in any year.
5. Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications, and a takings implication assessment
is not required. This proposed rule, if made final, will not ``take''
private property and will not alter the value of private property.
Critical habitat designation is only applicable to Federal lands and to
private lands if a Federal nexus exists. We do not designate private
lands as critical habitat unless the areas are essential to the
conservation of a species.
6. Federalism
This proposed rule, if made final, will not affect the structure or
role of States, and will not have direct, substantial, or significant
effects on States. As previously stated, critical habitat is only
applicable to Federal lands and to non-Federal lands when a Federal
nexus exists. If our economic analysis reveals that the economic
impacts of designating any area of State concern as critical habitat
outweigh the benefits of designation, we will exclude those areas from
consideration, unless such exclusion will result in the extinction of
the species.
7. Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor
also will review the final determination for this proposal. We will
make every effort to ensure that the final determination contains no
drafting errors, provides clear standards, simplifies procedures,
reduces burden, and is clearly written such that litigation risk is
minimized.
8. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any information collection requirements
for which Office of Management and Budget approval under the Paperwork
Reduction Act is required.
9. National Environmental Policy Act
We have analyzed this rule in accordance with the criteria of the
National Environmental Policy Act. We have determined that this rule
does not constitute a major Federal action significantly affecting the
quality of the human environment. This proposed designation of critical
habitat, and the resulting final determination, will not require any
actions that will affect the environment. No construction or
destruction in any form is required under the provisions of critical
habitat.
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10. 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) and 512 DM 2: We understand that we must
relate to federally recognized Tribes on a Government-to-Government
basis. Secretarial Order 3206 American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities and the Endangered Species Act states
that ``Critical habitat shall not be designated in such areas [an area
that may impact Tribal trust resources] unless it is determined
essential to conserve a listed species. In designating critical
habitat, the Service shall evaluate and document the extent to which
the conservation needs of a listed species can be achieved by limiting
the designation to other lands.'' The proposed designation of critical
habitat for the water umbel does not contain any Tribal lands or lands
that we have identified as impacting Tribal trust resources.
References Cited
A complete list of all references cited in this proposed rule is
available upon request from the Arizona Ecological Services Field
Office (see ADDRESSES section).
Authors. The primary authors of this notice are Jim Rorabaugh and
Angela Brooks (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons given in the preamble, we propose to amend 50 CFR
part 17 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. 17.12(h) revise the entry for ``Lilaeopsis schaffneriana
ssp. recurva'' under ``FLOWERING PLANTS'' to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When Critical Special
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Lilaeopsis schaffneriana ssp. Huachuca water umbel U.S.A. (AZ), Mexico. Apiaceae............ E 600 17.96(a) NA
recurva.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.96 add critical habitat for Lilaeopsis schaffneriana
ssp. recurva, Huachuca water umbel, as the first entry under paragraph
(a) to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
Family Apiaceae: Lilaeopsis schaffneriana ssp. recurva (Huachuca water
umbel)
1. Critical habitat units are depicted for Santa Cruz and
Cochise counties, Arizona, on the maps below.
2. Critical habitat includes the stream courses identified on
the maps below and adjacent areas out to the beginning of upland
vegetation.
3. Within these areas, the primary constituent elements include,
but are not limited to, the habitat components which provide--(1)
Sufficient perennial base flows to provide a permanently wetted
substrate for growth and reproduction of Lilaeopsis schaffneriana
ssp. recurva; (2) A stream channel that is stable and subject to
periodic flooding that provides for rejuvenation of the riparian
plant community and produces open microsites for Lilaeopsis
expansion; (3) A riparian plant community that is stable over time
and in which nonnative species do not exist or are at a density that
has little or no adverse effect on resources available for
Lilaeopsis growth and reproduction; and (4) Refugial sites in each
watershed and in each stream reach, including but not limited to
springs or backwaters of mainstem rivers, that allow each population
to survive catastrophic events and recolonize larger areas.
Map Unit 1. Santa Cruz County, Arizona. From USGS 7.5'
quadrangle map Sonoita, Arizona. Gila and Salt Principal Meridian,
Arizona: T. 20 S., R. 16 E., beginning at a point on Sonoita Creek
in sec. 34 at approx. 31 deg. 39' 19'' N latitude and 110 deg. 41'
52'' W longitude proceeding downstream (westerly) to a point in sec.
33 at approx. 31 deg. 39' 07'' N latitude and 110 deg. 42' 46'' W
longitude covering approx. 2 km (1.25 mi.).
Map Unit 2. Santa Cruz County, Arizona. From USGS 7.5'
quadrangle map Lochiel, Arizona. That portion of the Santa Cruz
River beginning in the San Rafael De La Zanja Grant approx. at
31 deg. 22' 30'' N latitude and 110 deg. 35' 45'' W longitude
downstream (southerly) to Gila and Salt Principal Meridian, Arizona,
T. 24 S., R. 17 E., through secs. 11 and 14, to the south boundary
of sec. 14 covering approx. 4.4 km (2.7 mi.). Also, a tributary that
begins in T. 24 S., R. 17 E., sec. 13 at approx. 31 deg. 21' 10'' N
latitude and 110 deg. 34' 16'' W longitude downstream
(southwesterly) to its confluence with the Santa Cruz River covering
approx. 3 km (1.9 mi.).
Map Unit 3. Cochise County, Arizona. From USGS 7.5' quadrangle
map Huachuca Peak, Arizona. Gila and Salt Principal Meridian,
Arizona: That portion of Scotia Canyon beginning in T. 23 S., R. 19
E., sec. 3 at approx. 31 deg. 27' 19'' N latitude and 110 deg. 23'
44'' W longitude downstream (southwesterly) through secs. 10, 9, 16
and to approx. 31 deg. 25' 22'' N latitude and 110 deg. 25' 22'' W
longitude in sec. 21 covering approx. 5.4 km (3.4 mi.).
Map Unit 4. Cochise County, Arizona. From USGS 7.5' quadrangle
map Huachuca Peak, Arizona. Gila and Salt Principal Meridian,
Arizona: That portion of Sunnyside Canyon beginning in T. 23 S., R.
19 E., on the east boundary of sec. 10 downstream (southwesterly) to
the south boundary of sec. 10 covering approx. 1.1 km (0.7 mi.).
Map Unit 5. Cochise County, Arizona. From USGS 7.5' quadrangle
map Miller Peak, Arizona. That portion of Garden Canyon in the Fort
Huachuca Military Reservation beginning at approx. 31 deg. 27' 13''
N latitude and 110 deg. 22' 33'' W longitude downstream
(northwesterly) to approx. 31 deg. 28' 45'' N latitude and 110 deg.
20' 11'' W longitude covering approx. 6.1 km (3.8 mi.).
Map Unit 6. Cochise County, Arizona. From USGS 7.5' quadrangle
map Miller Peak, Arizona. Gila and Salt Principal Meridian, Arizona:
That portion of Lone Mountain Canyon beginning at a point in T. 23
S., R. 19 E., sec. 25 at approx. 31 deg. 24' 13'' N latitude and
110 deg. 21' 54'' W longitude downstream south through sec. 36 to a
point in T. 24 S.,
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R. 19 E., sec. 1 at approx. 31 deg. 22' 30'' N latitude and
110 deg.21' 47'' W longitude covering approx. 3.5 km (2.2 mi.).
Also, an unnamed tributary beginning at a point in T. 23 S., R. 19
E., sec. 25 at approx. 31 deg. 24' 08'' N latitude and 110 deg. 21'
32'' W longitude downstream (southwesterly) to its confluence with
Lone Mountain Canyon covering approx. 1.7 km (1.0 mi.). Also, that
portion of Bear Creek beginning at a point in T. 23 S., R. 20 E.,
sec. 30 at approx. 31 deg. 23' 44'' N latitude and 110 deg. 21' 14''
W longitude downstream (southerly) through sec. 31, and T. 23 S., R.
19 E., sec. 36 to its confluence with Lone Mountain Canyon covering
approx. 1.8 km (1.1 mi.).
Map Unit 7. Cochise County, Arizona. From USGS 7.5' quadrangle
maps Montezuma Pass, Arizona, Campini Mesa, Arizona. Gila and Salt
Principal Meridian, Arizona: that portion of Joaquin Canyon
beginning at a point in T. 24 S., R. 19 E., sec. 14 at approx.
31 deg. 20' 53'' N latitude and 110 deg. 22' 40'' W longitude
downstream (southwesterly) to a point in sec. 13 at approx. 31 deg.
20' 37'' N latitude and 110 deg. 22' 27'' W longitude covering
approx. 0.7 km (0.4 mi.).
Map Unit 8. Cochise County, Arizona. From USGS 7.5' quadrangle
maps: Hereford, Ariz.; Tombstone SE, Ariz.; Nicksville, Ariz.; Lewis
Springs, Ariz.; Fairbank, Ariz.; Land, Ariz. Gila and Salt Principal
Meridian, Arizona: That portion of the San Pedro River beginning in
the San Rafael Del Valle Grant at a point approx. 200 meters
upstream (south) of the Hereford Road bridge at approx. 31 deg.26'
16'' N latitude and 110 deg. 06' 24'' W longitude continuing
downstream (northerly) through the San Rafael Del Valle Grant; T. 21
S., R. 22 E.; T. 21 S., R 21 S.; through the San Juan De Las
Boquilla y Nogales Grant to a point at approx. 31 deg. 48' 28'' N
latitude and 110 deg. 12' 32'' W longitude covering approx. 54.2 km
(33.7 mi.).
Note: Maps follow:
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* * * * *
Dated: December 22, 1998.
Donald Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-34413 Filed 12-23-98; 3:59 pm]
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