[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Rules and Regulations]
[Pages 37441-37453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17403]
[[Page 37441]]
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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; Designation of
Critical Habitat for the Huachuca Water Umbel, a Plant
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat pursuant to the Endangered Species Act of 1973, as
amended (Act), for the plant Lilaeopsis schaffneriana var. recurva
(Huachuca water umbel). Designated habitat includes a total of 83.2
kilometers (km) (51.7 miles (mi)) of streams or rivers in Cochise and
Santa Cruz counties, Arizona. Section 7 of the Act prohibits
destruction or adverse modification of critical habitat by any activity
funded, authorized, or carried out by any Federal agency. As required
by section 4 of the Act, we considered economic and other relevant
impacts prior to making a final decision on the size and configuration
of critical habitat.
EFFECTIVE DATE: August 11, 1999.
ADDRESSES: The complete administrative record for this rule is on file
at the U.S. Fish and Wildlife Service, Arizona Ecological Services
Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona
85021-4951. The complete file for this rule is 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 var. recurva (referred to as Lilaeopsis in
this proposed rule), the Huachuca water umbel, is a plant found in
cienegas (desert marshes), rivers, 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).
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 (root-like stems). 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; 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 (48
FR 53640), 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. 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, the 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
[[Page 37442]]
Center for Biological Diversity v. Babbitt, 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.'' A
rule proposing 83.9 kilometers (km) (52.1 miles (mi)) of streams and
rivers in Cochise and Santa Cruz counties, Arizona, as critical habitat
for Lilaeopsis was published December 30, 1998.
The processing of the December 30, 1998, proposed rule and this
final rule does not conform with our Listing Priority Guidance for
Fiscal Years 1998 and 1999, 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. Our 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
fairly stable over time and not dominated by nonnative plant species, a
stream channel that is relatively stable but subject to periodic
flooding, refugial sites (sites safe from catastrophic flooding), and a
substrate (soil) that is permanently wet or nearly so, 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 among 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).
In rivers and streams, 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 1995, demonstrating the
dynamic and often precarious nature of occurrences within a riparian
system (Al Anderson, Grey Hawk Ranch, in litt. 1995).
The 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 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 Huachuca water
umbel populations, where in 1995 it occupied about 64 percent of a
1,420-m (4,660-ft) reach (Falk 1998).
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 and
Leslie Canyon National Wildlife Refuges, Arizona, appears to be
successful (Warren 1991; Kevin Cobble, San Bernardino National Wildlife
Refuge, pers. comm. 1999). In 1991, Lilaeopsis was transplanted from
Black Draw into new ponds and other wetlands at San Bernardino Refuge.
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, Service, pers. comm. 1994; and
Peter Warren, Arizona Nature Conservancy, pers. comm. 1993) that other
species such as Typha sp. will out-compete Lilaeopsis. A recent
introduction to Leslie Canyon Refuge is successful and the plant
appears to be expanding its distribution there (K. Cobble, pers. comm.
1999).
Lilaeopsis has been documented from 26 sites in Santa Cruz,
Cochise, and Pima counties, Arizona, and in adjacent Sonora, Mexico,
west of the continental divide (K. Cobble, pers. comm. 1999; Haas and
Frye 1997; 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 20 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.
Nine Lilaeopsis populations occur in the San Pedro River watershed
in Arizona and Sonora, on sites owned or managed by private landowners,
Fort Huachuca Military Reservation, the Coronado National Forest, and
the Bureau of Land Management's (BLM)
[[Page 37443]]
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-km
(80-mi) reach that flowed perennially from the United States/Mexico
border northward to Tubac area and intermittently from Tubac north to
the Tucson area (Davis 1986).
Davis (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 et al. 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,
including Leslie Canyon. A population at House Pond on private land
near Black Draw was thought to be extirpated, but was recently
rediscovered there (K. Cobble, pers. comm. 1999).
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 recently extirpated (Gori et al. 1990), but
another population was found in 1997 on Cajon Bonito near its
confluence with Black Draw in Sonora (K. Cobble, pers. comm. 1999). 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 the Act is no longer necessary.
Section 4(b)(2) of the Act requires that we 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 that contain the
physical and biological features essential for the conservation of that
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 requires Federal agencies to consult
with us to ensure that any action authorized, funded, or carried out is
not likely to jeopardize the continued existence of a threatened or
endangered species, or result in the destruction or adverse
modification of critical habitat. ``Jeopardize the continued
existence'' (of a species) is defined as an appreciable reduction in
the likelihood of survival and recovery of a listed species.
``Destruction or adverse modification'' (of critical habitat) is
defined as a direct or indirect alteration that appreciably diminishes
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 nearly identical (50 CFR Sec. 402.02).
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, 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 habitat components necessary for the primary biological needs
of a species 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 states that, ``except in those
circumstances determined by the Secretary, critical habitat shall not
include the entire geographical area which can be occupied by the
threatened or endangered species.'' All areas containing the primary
constituent elements are not necessarily essential to the conservation
of the species. Areas that contain one or more of the primary
constituent elements, but that are not included within critical habitat
[[Page 37444]]
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 Sec. 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features 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 or
nearly permanently wetted substrate for growth and reproduction of
Lilaeopsis;
(2) A stream channel that is relatively stable, but 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 relatively 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) In streams and rivers, refugial sites in each watershed and in
each 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
designated 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.
Critical Habitat Designation
The critical habitat areas described below, combined with other
habitat either known or suspected to contain some of the primary
constituent elements but not in need of special management, 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 recovery planning for this species and may
provide additional guidance regarding the significance of areas
designated as critical habitat or the need to designate other areas.
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 designated for Lilaeopsis includes areas that
currently sustain the species and areas that do not currently sustain
the species but offer recovery habitat. The species is already
extirpated from a significant portion of its historical range. Seven
disjunct areas are designated 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 designated 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 1.6 km (1.0 mi) of Lone
Mountain Canyon and approximately 1.6 km (1.0 mi) of Rattlesnake Canyon
and 1.0 km (0.6 mi) of an unnamed canyon, both of which are tributaries
to Lone Mountain Canyon; approximately 1.6 km (1.0 mi) of Bear Canyon;
an approximate 0.9-km (0.6-mi) reach of an unnamed tributary to Bear
Canyon; and approximately 54.2 km (33.7 mi) of the San Pedro River from
the perennial flows reach north of Fairbank (Arizona Department of
Water Resources 1991) to 200 meters (.13 mi) south of Hereford, San
Pedro Riparian National Conservation Area.
Although the majority of lands designated as critical habitat is
under Federal administration and management, some riparian systems on
private land are being designated. The Sonoita Creek segment and the
San Rafael Valley segment within the Santa Cruz River drainage are
privately owned. The upper portion of Scotia Canyon is privately owned,
but is expected to soon be acquired through land exchange by the
Coronado National Forest. Other sites in the Huachuca Mountains (lower
Scotia Canyon, Sunnyside, Bear, and Lone Mountain canyons, and
tributaries of the latter two 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.
Several areas where Lilaeopsis occurs are not designated as
critical habitat. We recognize the importance of all lands occupied or
potentially occupied by Lilaeopsis, but, as discussed below, not all
such areas were designated because some did not meet the designation
criteria (i.e., were too small to support a stable Lilaeopsis
population over time, and/or were already protected). Also, areas
outside the United States are not considered for critical habitat
designation (50 CFR 424.12(h)). Several sites were considered small and
not capable of supporting large stable populations, including Turkey
Creek in the Canelo Hills, Sawmill Spring, Sycamore Spring, Mud Spring,
and Freeman Springs.
We believe these small, isolated sites are important, but may not
be essential to the conservation of the species, and in the case of
Sawmill Spring and Freeman Spring, may not require special management
considerations or protection above that currently provided. Freeman
Spring is fenced to prevent livestock grazing. Sawmill Spring is an
isolated site near the western boundary of Fort Huachuca at which the
only significant threats are a trail to the site and wildfire.
Recreational use along the trail does not appear to be adversely
affecting the species, and Fort Huachuca has committed to various
measures to lessen the threat of wildfire.
Also not designated are portions of Bear Canyon above and below the
critical habitat reach and several isolated populations in the Bear and
Lone Mountain canyons complex. We believe the best habitat in this area
is included in the designated reaches of the two canyons and their
tributaries. Other reaches are intermittent with limited habitat for
Lilaeopsis, or are
[[Page 37445]]
small, relatively isolated sites. Also, designation of the critical
habitat reach provides some protection to at least the downstream reach
of Bear Canyon due to conservation of watershed values.
The 0.7-km (0.4-mi) reach of Joaquin Canyon, proposed as Unit 7, is
also not designated. This reach is currently administered by the
Coronado National Forest, but is expected to be exchanged into private
ownership in the near future. During the open comment period, we met
with both the Coronado National Forest and prospective new landowners.
Through these discussions we learned that the future owners plan to
continue current grazing practices, but no other uses of the property
are anticipated. Further, the effects of grazing are moderated at this
site because the stream channel is largely bedrock and not easily
subject to structural damage. Thus, we do not consider this area to be
in need of special management consideration or protection. In summary,
because of the small size of the Joaquin Canyon habitat and the low
degree of threats to the area, we did not designate this area as
critical habitat, because it is neither essential to the conservation
of the species nor in need of special management or protection. The
area proposed as Unit 8 now becomes Unit 7.
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)(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. Conferencing on Lilaeopsis critical habitat was requested
twice, including once by the Department of the Army, Fort Huachuca, in
regard to military activities, and once by the Coronado National Forest
on their forest-wide grazing program. These conferences are not yet
complete. With designation of critical habitat, these conferences are
now section 7 consultations.
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, will 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 will
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 diminished. We note that such activities will also likely
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 rivers,
streams, cienegas, 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 critical habitat 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; road construction; and
overgrazing that reduces fire frequency or otherwise degrades
watersheds;
(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, 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. These activities are already
subject to section 7 consultation because of the listing of Lilaeopsis.
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).
Summary of Comments and Recommendations
In the December 30, 1998, proposed rule to designate critical
habitat, we requested all interested parties to submit comments or
information that might bear on the listing or designation of critical
habitat for Lilaeopsis. The first comment period closed March 1, 1999.
We reopened the comment period from April 15 to May 15, 1999, to once
again solicit comments on the proposed
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rule and to accept comments on the draft economic analysis. Comments
received from March 2 to April 14, 1999, were entered into the
administrative record during the second comment period. All appropriate
State agencies, Federal agencies, County governments, scientific
organizations, and other interested parties were contacted and invited
to comment. We published newspaper notices inviting public comment in
the following newspapers in Arizona: Arizona Republic, Tucson Citizen,
Arizona Daily Star, Sierra Vista Herald, Green Valley News and Sun, The
Bulletin, The Tombstone Tumbleweed, and Nogales International. The
inclusive dates of publication were January 4 to 12, 1999, for the
initial comment period; January 26 to February 4, 1999, to advertise
the public hearings; and April 21 to 29, 1999, for the second comment
period.
We held three public hearings on the proposed rule, at Coolidge
(February 10, 1999), Sierra Vista (February 11, 1999), and Tucson,
Arizona (February 12, 1999). The hearings were also held to solicit
comments on the proposed rule to designate critical habitat for the
cactus ferruginous pygmy-owl, Glaucidium brasilianum cactorum (63 FR
71820). A notice of hearings and locations was published in the Federal
Register on January 26, 1999 (64 FR 3923). A total of 89 people
attended the public hearings, including 10 in Coolidge, 28 in Sierra
Vista, and 51 in Tucson. Transcripts of these hearings are available
for inspection (see ADDRESSES section).
We contacted three experts on the species that agreed to peer
review the proposed critical habitat designation. One of those peer
reviewers submitted comments. He concluded that ``the habitat sites
designated, to the best of my knowledge, seem reasonable enough to
guarantee its (Lilaeopsis') survival--even though I would prefer
additional ones.''
A total of 8 oral and 41 written comments were received during the
two comment periods. Of the 8 oral comments, 3 supported critical
habitat designation, 4 were opposed to designation, and 1 provided
additional information but did not support or oppose the proposal. Of
the written comments, 22 supported designation, 9 were opposed to it,
and 10 provided additional information only, or were nonsubstantive or
not relevant to the proposed designation. In total, oral and written
comments were received from 5 Federal agencies, 2 State agencies, 4
local governments, and 38 private organizations, companies, or
individuals.
We reviewed all comments received for substantive issues and new
data regarding critical habitat and Lilaeopsis. Comments of a similar
nature are grouped into a number of general issues. Fifteen general
issues were identified relating specifically to critical habitat. These
are addressed in the following summary.
Issue 1: The Service did not allow for an appropriate level of
local government involvement in the designation of critical habitat.
Several commenters said that cities and counties should have greater
say in critical habitat designations, while one commenter would have us
not consider comments from local governments.
Service Response: The Act requires that we ``give actual notice of
the proposed regulation (including the complete text of the regulation)
to* * *each county or equivalent jurisdiction in which the species is
believed to occur, and invite the comment of such agency, and each
jurisdiction'' (section 4(b)(5)(A)(ii)). The comments of local
governments are then entered into the administrative record for the
proposed regulation and are considered when developing proposed or
final rules. However, we do not weight comments from a local government
any more or less than other comments. Instead, we are required to base
our decision on the ``best scientific data available and after taking
into consideration the economic impact, and any other relevant impact,
of specifying any particular area as critical habitat'' (section
4(b)(2) of the Act). The proposed rule was sent to Cochise, Santa Cruz,
and Pima county offices, the Southeastern Arizona Council of
Governments, and the cities/towns of Patagonia, Benson, and Sierra
Vista. Of these local governments, comments were received from the City
of Benson. Those comments were considered in development of this final
rule.
Issue 2: Lilaeopsis receives an adequate level of protection on the
San Pedro River and at Fort Huachuca, and therefore critical habitat
should not be designated in these areas.
Service Response: The San Pedro River critical habitat unit is
administered by the BLM, while designated critical habitat on Fort
Huachuca (Garden Canyon) is administered by the Department of Defense.
Because of the protection afforded Lilaeopsis through section 7
consultations on these Federal lands resulted from listing of the
species, there is little additional benefit of critical habitat
designation in occupied habitats because Lilaeopsis occurs patchily in
both Garden Canyon and the San Pedro River, and a project that affects
one portion of a stream course will affect downstream and perhaps
upstream reaches as well.
Given the above, we fundamentally agree that critical habitat
designation provides no additional protection beyond that provided
through listing the species under the Act. However, given the outcome
of litigation surrounding this and other critical habitat designations,
we felt that the prudent course would be to designate critical habitat
in areas where Federal actions are likely to affect that habitat.
Issue 3: Most of the areas proposed for critical habitat do not
have constituent elements and thus should not be designated. Occupied
habitat is adequate to ensure conservation of the species, thus
unoccupied sites should not be designated. In particular, one commenter
said that the San Pedro River channel is too unstable to support
Lilaeopsis, no refugia exist where the species can escape the effects
of flooding, and it is dominated by nonnative species, such as Typha
spp. (cattail). This commenter also said that the San Pedro River
should not be designated critical habitat because flows could be
depleted or halted due to diversions or pumping in the upper watershed
in Mexico.
Service Response: Although Lilaeopsis occurs within all of the
critical habitat units, the extent of occupied habitat and areas where
all of the constituent elements are found are somewhat dynamic and
change within these systems depending on floods, drought, changes in
channel morphology, and other factors. Some portions of stream segments
designated as critical habitat have very little potential to support
Lilaeopsis, such as the majority of the upper portion of Lone Mountain
Canyon, but may support the species and constituent elements in wet
years.
Nevertheless, these segments are hydrologically connected to, and
part of, the drainages that support the most important populations of
Lilaeopsis. In the case of upper Lone Mountain Canyon, populations of
Lilaeopsis occur both upstream and downstream of this reach; thus not
only is this segment likely ephemeral habitat which affects downstream
populations hydrologically, it is also a link that can allow for flow
of individuals and genetic material among populations. Such flow is
essential for genetic diversity and for recolonization if populations
are extirpated (Shafer 1990).
In regard to the San Pedro River, the reach designated as critical
habitat supports six populations or clusters of
[[Page 37447]]
populations that are distributed from the southern to northern
boundaries of the reach. This reach is broadly defined by the Arizona
Department of Water Resources (1991) as perennial throughout, although
in most years flow is greatly reduced and many places are dry
immediately before the summer rains begin in July.
The commenter's suggestion that the San Pedro River channel is too
unstable; no refugia exist for persistence during floods; and
nonnatives such as Typha are common is belied by the fact that six
populations exist within the critical habitat reach, despite changes in
channel morphology and periodic flooding. Also, Typha is a native
emergent plant, although other non-natives, particularly Rorippa
nasturtium-aquaticum, are common in the San Pedro River. Habitat
suitability varies within the San Pedro critical habitat unit, but we
have no reason to believe that any significant portion of it is
unsuitable. With the removal of grazing and off-road vehicles since
1989, the channel has apparently become more stable, emergent and
riparian vegetation has increased in the river channel, and Lilaeopsis
was rediscovered on the river. The recent introduction of beavers to
the system should further hasten the recovery of cienega conditions and
Lilaeopsis habitat. Groundwater pumping or diversions, or other changes
in the watershed of the San Pedro River in Mexico or Arizona may affect
the ability of the river to support Lilaeopsis and to provide
constituent elements.
Issue 4: The economic effects of designating critical habitat
greatly outweigh any benefits of designating critical habitat. The
designation will have harmful impacts on the quality of life,
education, and economic stability. In particular, designation of
critical habitat on the San Pedro River would change groundwater
pumping, which could result in closure of Fort Huachuca and subsequent
devastating effects to the economy of Sierra Vista.
Service Response: Areas proposed as critical habitat may be
excluded from designation if ``the benefits of such exclusion outweigh
the benefits of specifying the areas as part of the critical habitat,''
unless it is determined that ``failure to designate such area as
critical habitat will result in extinction of the species'' (section
4(b)(2) of the Act). As discussed in our response to issue 2,
additional conservation benefits of designation for most species, are
few if any.
The economic analysis (McKenney et al. 1999), based on our view
that no restrictions beyond those resulting from listing the species
will result from critical habitat designation, found that the critical
habitat designation would have no economic effect on activities. Based
on our experience with consultation on Lilaeopsis as well as completed
and ongoing conferences on the species' proposed critical habitat, we
do not foresee any action that would result in a finding of destruction
or adverse modification of proposed critical habitat that would not
also result in a finding of jeopardy to the species. As a result, no
effects to the economy of Sierra Vista or other cities or towns are
anticipated from designation of critical habitat, and therefore the
benefits of excluding these areas do not outweigh the benefits of
including them as critical habitat.
Issue 5: Designation of critical habitat has significant takings
implications; thus a takings implications assessment, as required by
Executive Order 12630, must be conducted. Also, a Regulatory
Flexibility Analysis should have been done.
Service Response: Please see the discussions under the ``Required
Determinations'' section of this final rule that discusses takings
implications assessments.
Issue 6: San Bernardino National Wildlife Refuge should be
designated critical habitat instead of the San Pedro River.
Service Response: In determining what areas are critical habitat,
we consider physical and biological features that are essential to the
conservation of the species and that may require special management
considerations or protection (50 CFR 424.14(b)). San Bernardino and
Leslie Canyon National Wildlife Refuges, as well as the upper San Pedro
River, provide important habitat for Lilaeopsis. However, as National
Wildlife Refuges with mandates to conserve and protect rare species,
special management and protection are already in place. Thus, no
additional layer of protection is needed. However, as discussed herein
and in the final listing rule (62 FR 665), Lilaeopsis and its habitat
are threatened by groundwater overdraft on the upper San Pedro, which
may require special management considerations or protection. As a
result, critical habitat was designated on the upper San Pedro River
but not at San Bernardino or Leslie Canyon National Wildlife Refuges.
Issue 7: Critical habitat designation will direct collectors of
rare plants and recreationists to these important habitats, resulting
in increased collection of Lilaeopsis and habitat disturbance.
Service Response: Designation of critical habitat is not prudent
when the species is threatened by taking or other human activity, and
identification of critical habitat can be expected to increase the
degree of such threat to the species (50 CFR 424.19). As discussed in
the proposed rule, we are concerned that publishing maps of Lilaeopsis
critical habitat could facilitate collection or other adverse effects.
However, Lilaeopsis is a small, grass-like plant with inconspicuous
flowers that is unlikely to be highly prized by plant collectors.
Collection has not been identified as a threat.
Publishing the localities could facilitate visits by botanists or
recreationists to these sites, which could result in trampling of
plants or banklines. However, we expect that these visits will be few
in number and very little disturbance will result from such visits.
Issue 8: All Lilaeopsis localities should have been designated as
critical habitat, or the Service should provide a rationale for not
designating sites. One commenter suggested that more critical habitat
should be designated in Bear Canyon of Unit 6.
Service Response: In determining what areas are critical habitat,
we consider areas and constituent elements that are essential to the
conservation of the species and that may require special protection or
management considerations (50 CFR 424.19(b)). Thus, not all areas
occupied or potentially occupied by a species are appropriate for
designation. Our rationale for not designating all Lilaeopsis
localities as critical habitat is discussed in the section of this rule
entitled ``Critical Habitat Designation.''
Issue 9: Designation of critical habitat should be delayed until
better information becomes available on the species.
Service Response: Critical habitat designation can be found to be
not determinable if information is insufficient to perform the required
analyses of the impacts of the designation, or the biological needs of
the species are not known well enough to permit identification of an
area as critical habitat. Although additional work on this species is
needed, the biological needs of the species is far from unknown and an
analysis of economic impacts was completed (McKenney et al. 1999).
Surveys and ecological studies of Lilaeopsis (Affolter 1985, Falk 1998,
Falk and Warren 1994, Gori et al. 1990, Haas and Frye 1997, Saucedo
1990, Warren et al. 1989, Warren et al. 1991, Warren and Reichenbacher
1991) provide sufficient
[[Page 37448]]
information upon which to base a critical habitat determination.
Critical habitat may be revised if new information becomes available
suggesting such revision is needed (50 CFR 424.12(g)).
On November 25, 1998, Judge Marquez 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.''
Issue 10: The maps are inadequate for landowners to determine what
areas were proposed as critical habitat. The meaning of ``adjacent
areas out to the beginning of the upland vegetation'' is unclear.
Service Response: The maps are intended to be a general guide to
where critical habitat is located. To determine exactly where critical
habitat begins and ends along the designated canyons and stream
reaches, readers should refer to the legal descriptions in the section
entitled ``Critical Habitat--Plants.'' In regard to the precise
location of critical habitat within canyons or stream reaches, we
decided that an ecological description would be more appropriate than a
strictly legal description. The floodplain vegetation community defines
the area in which constituent elements will be found more precisely
than legal descriptions. Lilaeopsis habitat and constituent elements
are expected to change within those floodplains over time as the
watercourse changes direction, creates new channels, etc. Movement
within the floodplain is more likely to occur in a broad floodplain
such as the San Pedro River, as compared to a narrow canyon, such as
Rattlesnake Canyon in Unit 6. Although the habitat and constituent
elements may move within a floodplain, they will always be within that
floodplain and its associated zone of riparian and wetland vegetation,
thus we defined the boundaries of critical habitat by vegetation
communities. The boundary between riparian/wetland communities and
adjacent uplands are typically quite clear in the arid woodlands and
semi-desert grasslands in which Lilaeopsis habitat occurs and should be
easy to identify on the ground.
Issue 11: Further survey work is needed in Unit 6 to determine
where critical habitat should be designated.
Service Response: We reevaluated survey data and reports,
particularly Gori et al. (1990), Haas and Frye (1997), and Warren et
al. (1991); and in March, 1999, we made two field trips to the area to
investigate the distribution of Lilaeopsis and assess habitat
suitability. These field trips focused on Lone Mountain Canyon and its
tributaries. Our review of existing literature and investigations in
Lone Mountain Canyon confirmed that the stream reaches proposed as
critical habitat met the regulatory criteria for critical habitat.
Lilaeopsis was found by us and previous investigators in Lone Mountain
Canyon and its two tributaries, but there are long stretches of these
canyons that are typically dry, and the species was not located. The
species may occur in these reaches during wet periods, but as discussed
in our response to Issue 3, not only are these reaches likely ephemeral
habitat during wet cycles, but they also affect downstream populations
hydrologically, and are links that can allow for flow of individuals
and genetic material among populations.
Issue 12: There is no need to designate critical habitat on the
fringe of Lilaeopsis' range, where few areas contain constituent
elements.
Service Response: The commenter states that the range of Lilaeopsis
extends to central and northern Mexico and northwestern South America.
This is the range of the entire species, but the listed entity,
Lilaeopsis schaffneriana ssp. recurva, is only known from 26 sites in
Santa Cruz, Cochise, and Pima counties, Arizona, and in adjacent
Sonora, Mexico. These are not ``fringe'' localities; they represent the
only places where this taxon is found.
Issue 13: The Service failed to notify or request comments from the
State of Arizona, Mexico, and South American countries where Lilaeopsis
occurs, as required by the Act.
Service Response: As discussed in our response to Issue 12,
Lilaeopsis schaffneriana ssp. recurva does not occur in South America,
therefore we did not solicit comments from South American countries.
Pursuant to 50 CFR 424.16 (c)(1)(iv), we are required to give notice to
foreign countries in which the species occurs only if the proposed
regulation is to list, delist, or reclassify the species. Because this
is not an action to list, delist, or reclassify a species, this action
does not apply to Mexico, and we are not required to inform that
government of this designation. Within Arizona State government, the
proposed rule was sent to 28 contacts within numerous agencies,
including the Governor's Office and the Arizona Department of
Agriculture, which has jurisdiction over plant protection within State
government. Of these 28, the Arizona Department of Environmental
Quality and Arizona Game and Fish Department responded in writing to us
indicating they had no comments on the proposed designation.
Issue 14: The Service should focus on establishing Lilaeopsis in
small sites where it can persist, such as creating a small diversion
along the San Pedro River that could serve as a refugium for the
species, rather than designating large areas that impinge on property
and water rights and increase unnecessary regulation.
Service Response: Creation of habitat is an action that could be
employed to help recover and ultimately eliminate the need for
Lilaeopsis' endangered status and the critical habitat designation.
However, such decisions will be addressed in the species' recovery
plan, which has yet to be developed.
Because critical habitat designation would not affect any uses of
private property, unless those uses were federally authorized, funded,
or carried out, no infringement of property rights would result from
critical habitat designation. The designation is also not expected to
increase regulatory burden above and beyond that already imposed by
listing, because projects that would adversely modify or destroy
critical habitat would also result in jeopardy to the species.
Issue 15: The following finding from the proposed rule is
inconsistent with the Act and its implementing regulations: ``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.''
Service Response: The implementing regulations require that
analyses to determine critical habitat shall focus on the principal
biological and physical constituent elements within defined areas that
are essential to the conservation of the species (50 CFR 424.12(b)(5)).
The species occurs in all of the critical habitat units, but in certain
reaches within each unit it may at times be absent and some constituent
elements may be missing. Nevertheless, these areas are important as
habitat during wet cycles and/or are important corridors for movement
of plants and genetic material among populations. Since stream courses
are dynamic, as is the distribution of the plant, protection of sites
that do not currently support the water umbel but could do so in the
future are essential to the species' conservation.
Issue 16: The assumption used in the analysis is incorrect, as
designation of critical habitat will have economic
[[Page 37449]]
impacts on the City of Sierra Vista and Fort Huachuca.
Service Response: The designation of critical habitat for the
Huachuca water umbel has been evaluated in the economic context known
as ``with'' and ``without'' the rule. It was found that the status of
the Huachuca water umbel is such that any adverse modification of its
habitat would be likely to jeopardize the species. Further, it is our
position that both within and outside of critical habitat, Federal
agencies should consult under the jeopardy standard if a proposed
action is (1) within the geographic areas occupied by the species,
whether or not the Huachuca water umbel has been detected on the
specific project site; (2) the project site contains habitat features
that can be used by the species; and (3) the proposed action is likely
to adversely affect that habitat. Under this condition, any and all
real economic consequences would be due to the jeopardy call under
section 7 of the Act and an adverse modification without a jeopardy
call would not occur. Therefore, the economic consequences identified
during the comment period are all due to the listing of the water umbel
and not additional consequences accrued from the designation of
critical habitat. The economic analysis of designating critical habitat
determined that the same regulatory process is in place ``with'' as
well as ``without'' the rule, and consequently found no economic
effects attributable to the designation of critical habitat.
Issue 17: The designation will have harmful impacts on the quality
of life, education, and economic stability of small towns. There is an
expressed concern that the proposed critical habitat designation will
change groundwater pumping from the San Pedro River and this will
negatively affect the city of Sierra Vista and Fort Huachuca which
provides jobs to local residents.
Service Response: As stated in the economic analysis, the proposed
rule to designate critical habitat for the Huachuca water umbel is not
adding any new requirements to the regulatory process. Since the
adverse modification standard for critical habitat and the jeopardy
standard are almost identical, the listing of the Huachuca water umbel
itself invoked the requirement for consultation. The rule to designate
critical habitat adds no other requirements not already in place when
the species was listed.
Issue 18: The Service's designation of critical habitat has not
adequately considered potential economic implications. There is
opposition to the fact that the Service did not prepare an initial
regulatory flexibility analysis to address potential impact to small
businesses, as required under the Regulatory Flexibility Act.
Service Response: The proposed rule was published under very tight
time constraints placed by Court Order on December 24, 1998. At that
time we prepared a Record of Compliance certification that the proposed
critical habitat designation would not have a significant economic
impact on small entities. A detailed analysis was initiated by a
private firm under Government contract and subsequently, we distributed
a draft of the economic report for a 30-day public comment period
ending in May, 1999. The findings of the economic reports indicate that
the designation of critical habitat adds no new restrictions on
economic activity that were not in place with the listing of
Lilaeopsis. Therefore, there is no economic effect on small entities
attributable to this rulemaking, and a regulatory impact analysis is
not required.
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.
Economic effects caused by listing Lilaeopsis as endangered and by
other statutes are the baseline upon which critical habitat is imposed.
The economic analysis must then examine the incremental economic and
conservation effects of the critical habitat addition. Economic effects
are measured as changes in national income, regional jobs, and
household income.
An analysis of the economic effects of Lilaeopsis critical habitat
designation was prepared (McKenney et al. 1999) and made available for
public review. The final analysis, which reviewed and incorporated
public comments, concluded that no economic impacts are expected from
critical habitat designation above and beyond that already imposed by
listing Lilaeopsis. The only possible economic effects of critical
habitat designation are on activities funded, authorized, or carried
out by a Federal agency. These activities would be subject to section 7
consultation if they may affect critical habitat. However, activities
that may affect critical habitat may also affect the species, and would
thus be subject to consultation regardless of critical habitat
designation. Also, changes or mitigating measures that might increase
the cost of the project would only be imposed as a result of critical
habitat if the project adversely modifies or destroys that critical
habitat. We believe that any project that would adversely modify or
destroy critical habitat would also jeopardize the continued existence
of the species; thus no regulatory burden or additional costs would
accrue because of critical habitat above and beyond those resulting
from listing. Furthermore, we believe any reasonable and prudent
alternative that would remove jeopardy to the species would also remove
adverse modification of critical habitat.
A copy of the economic analysis and description of the exclusion
process with supporting documents are included in our administrative
record and may be obtained by contacting our office (see ADDRESSES
section).
Required Determinations
Regulatory Planning and Review. In accordance with Executive Order
12866, this action was submitted for review by the Office of Management
and Budget. Because the economic analysis identified no economic
benefits from excluding any of the proposed critical habitat areas, we
made a determination to designate all proposed critical habitat units,
with the exception of Unit 7, Joaquin Canyon, which is excluded because
its designation is not essential to the conservation of the species and
is not in need of special management or protection. No inconsistencies
with other agencies' actions and or effects on entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients, were identified in the economic analysis. This rule does
not raise novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
In the economic analysis we determined that designation of critical
habitat will not have a significant effect on a substantial number of
small entities. As discussed in that document and in this final rule,
designating critical habitat will not place restrictions on any actions
beyond those already resulting from listing Lilaeopsis as endangered.
We recognize that some towns, counties, and private entities are
considered small entities in accordance
[[Page 37450]]
with the Regulatory Flexibility Act, however, they also are not
affected by the designation of critical habitat because no additional
restrictions will result from this action.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
In the economic analysis, we determined that designation of
critical habitat will not 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.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In the economic analysis, we determined that no effects would occur
to small governments as a result of critical habitat designation.
Takings. In accordance with Executive Order 12630, this rule does
not have significant takings implications, and a takings implication
assessment is not required. This rule 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. Although the majority of lands designated as critical
habitat is under Federal administration and management, some riparian
systems on private land are being designated.
Federalism
This rule 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, and in the
economic analysis we determined that no economic impacts would result
from of critical habitat designation.
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. We have made every effort to
ensure that this final determination contains no drafting errors,
provides clear standards, simplifies procedures, reduces burden, and is
clearly written such that litigation risk is minimized.
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.
National Environmental Policy Act (NEPA)
We have determined that regulations adopted pursuant to section 4
of the Act need not undergo preparation of Environmental Assessments or
Environmental Impact Statements as defined under the authority of the
NEPA. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).
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.'' Lilaeopsis critical habitat 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 final rule is
available upon request from the Arizona Ecological Services Field
Office (see ADDRESSES section).
Authors
The primary author of this notice is Jim Rorabaugh (see ADDRESSES
section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
For the reasons given in the preamble, we 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
var. recurva'' under ``FLOWERING PLANTS'' to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Lilaeopsis schaffneriana var. Huachuca water umbel U.S.A. (AZ), Mexico Apiaceae........... E 600 Sec. 17.96 NA
recurva. (a)
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In section 17.96 add critical habitat for Lilaeopsis
schaffneriana var. recurva, Huachuca water umbel, as the first entry
under ``(a) Flowering plants'' to read as follows:
[[Page 37451]]
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
Family Apiaceae: Lilaeopsis schaffneriana var. recurva (Huachuca
water umbel). Critical habitat includes the stream courses
identified in the legal descriptions below, and includes adjacent
areas out to the beginning of upland vegetation. 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 or nearly permanently wetted
substrate for growth and reproduction of Lilaeopsis; (2) A stream
channel that is relatively stable, but 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 relatively 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) In streams and rivers, refugial sites in
each watershed and in each reach, including but not limited to
springs or backwaters of mainstem rivers, that allow each population
to survive catastrophic floods and recolonize larger areas.
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.).
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.).
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.).
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.).
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.).
Unit 6. Cochise County, Arizona. From USGS 7.5' quadrangle map
Miller Peak, Arizona.
Gila and Salt Principal Meridian, Arizona: That portion of Bear
Canyon beginning at a point in T. 24 S., R. 19 E., sec. 1 at approx.
31 deg.22'30'' N latitude and 110 deg.21'47'' W longitude upstream
through T. 23 S., R. 19 E., sec. 36 to a point in sec. 31 at approx.
31 deg.23'18'' N latitude and 110 deg.21'22'' W longitude covering
approx. 1.7 km (1.0 mi.). Also, continuing up an unnamed tributary
beginning at a point in T. 23 S., R. 19 E., sec. 31 at approx.
31 deg.23'18'' N latitude and 110 deg.21'22'' W longitude upstream
(northerly) to a point in T. 23 S., R. 19 E., sec. 30 at approx.
31 deg.23'44'' N latitude and 110 deg.21'14'' W longitude covering
approx. 0.9 km (0.5 mi.). Also, that portion of Lone Mountain Canyon
beginning at its confluence with Bear Creek at a point in T. 23 S.,
R. 19 E., sec. 36 at approx. 31 deg.22'54'' N latitude and
110 deg.21'43'' W longitude to a point in sec. 36 at approx.
31 deg.23'26'' N latitude and 110 deg.21'58'' W longitude, thence up
an unnamed tributary northwesterly into sec. 25 thence northerly to
a point at approx. 31 deg.24'13'' N latitude and 110 deg.21'54'' W
longitude covering approx. 2.7 km (1.7 mi.). Also that portion of
Rattlesnake Canyon beginning at its confluence with Lone Mountain
Canyon in T. 23 S., R. 19 E., sec. 36 upstream northeasterly into
sec. 25 to a point at approx. 31 deg.22'08'' N latitude and
110 deg.21'31'' W longitude covering approx. 1.5 km (1.0 mi.).
Unit 7. 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 for Units 1-7 follow:
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Dated: June 30, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-17403 Filed 7-6-99; 1:25 pm]
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