[Federal Register Volume 67, Number 29 (Tuesday, February 12, 2002)]
[Proposed Rules]
[Pages 6459-6479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3140]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI15


Endangered and Threatened Wildlife and Plants; Listing Roswell 
springsnail, Koster's tryonia, Pecos assiminea, and Noel's amphipod as 
Endangered With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to

[[Page 6460]]

list the Roswell springsnail (Pyrgulopsis roswellensis), Koster's 
tryonia (Tryonia kosteri), Pecos assiminea (Assiminea pecos), and 
Noel's amphipod (Gammarus desperatus) as endangered with critical 
habitat under the Endangered Species Act of 1973, as amended (Act) (16 
U.S.C. 1531 et seq.). These species occur at sinkholes, springs, and 
associated spring runs and wetland habitats. They are found at two 
sites in Chaves County, NM, one site in Pecos County, TX, and one site 
in Reeves County, TX. Pecos assiminea is also known from one area in 
Coahuila, Mexico.
    These three snails and one amphipod have an exceedingly limited 
distribution and are imperiled by local and regional groundwater 
depletion, surface and groundwater contamination, oil and gas 
extraction activities within the supporting aquifer and watershed, and 
direct loss of their habitat (e.g., through burning or removing marsh 
vegetation, cementing, or filling of habitat). This proposal, if made 
final, will implement the Federal protection and recovery provisions of 
the Act for these invertebrate species.

DATES: We will accept comments from all interested parties until April 
15, 2002. Public hearing requests must be received by March 29, 2002.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, New Mexico Ecological Services Field 
Office, U.S. Fish and Wildlife Service, 2105 Osuna NE, Albuquerque, NM 
87113. Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Joy Nicholopoulos, Field Supervisor, 
New Mexico Ecological Services Field Office at the above address 
(telephone 505/346-2525; facsimile 505/346-2542).

SUPPLEMENTARY INFORMATION:

Background

Springsnails

    The Permian Basin of the southwestern United States contains one of 
the largest carbonate (limestone) deposits in the world (New Mexico 
Department of Game and Fish (NMDGF) 1998). Within the Permian Basin of 
the Southwestern United States lies the Roswell Basin. Located in 
southeastern New Mexico, this Basin has a surface area of around 12,000 
square miles and generally begins north of Roswell, NM, and runs to the 
southeast of Carlsbad, NM. The Roswell Basin contains two major 
aquifers; a deep artesian aquifer, and a shallow surficial aquifer. 
Water in the springs originates from both the deep aquifer and the 
shallow aquifer. Here, the action of water on soluble rocks (e.g., 
limestone and dolomite) has formed abundant ``karst'' features such as 
sinkholes, caverns, springs, and underground streams (White et al. 
1995). These hydrogeological formations create unique settings 
harboring diverse assemblages of flora and fauna. The isolated 
limestone and gypsum springs, seeps, and wetlands located in and around 
Roswell, NM, and Pecos and Reeves Counties, TX, provide the last known 
habitats in the world for several endemic species of mollusks and 
crustaceans. These species include the Roswell springsnail and Koster's 
tryonia of the freshwater snail family Hydrobiidae, and Pecos assiminea 
of the snail family Assimineidae. These snails are distributed in 
isolated, geographically separate populations, and these species likely 
evolved from parent species that once enjoyed a wide distribution 
during wetter, cooler climates of the Pleistocene. Such divergence has 
been well-documented for aquatic and terrestrial macroinvertebrate 
groups within arid ecosystems of western North America (e.g., Taylor 
1987; Metcalf and Smartt 1997; Bowman 1981; Cole 1985).
    North American snails of the family Hydrobiidae inhabit a great 
diversity of aquatic systems from surface to cave habitats, small 
springs to large rivers, and high energy riffles to slack water pools 
(Wu et al. 1997). Snails of the family Assimineidae are typically found 
in coastal brackish waters or along tropical and temperate seacoasts 
worldwide (Taylor 1987). Inland species of the genus Assiminea are 
known from around the world, and in North America they occur in 
California (Death Valley National Monument), Utah, New Mexico, Texas 
(Pecos and Reeves Counties), and Mexico (Bolson de Cuatro Cienegas).
    The Roswell springsnail, Koster's tryonia, and Pecos assiminea are 
all aquatic species. These snails have lifespans of 9 to 15 months and 
reproduce several times during the spring through fall breeding season 
(Taylor 1987; Pennak 1989; Brown 1991). Snails of the family 
Hydrobiidae are sexually dimorphic with females being 
characteristically larger and longer-lived than males. As with other 
snails in the family, the Roswell springsnail and Koster's tryonia are 
completely aquatic but can survive in seepage areas, as long as flows 
are perennial and within the species' physiological tolerance limit. 
These two snails occupy spring heads and runs with variable water 
temperatures (10 to 20  deg.C) and slow to moderate water velocities 
over compact substrate ranging from deep organic silts to gypsum sands 
and gravel and compact substrate (NMDGF 1998). Conversely, the Pecos 
assiminea seldom occurs immersed in water, but prefers a humid 
microhabitat created by wet mud or beneath vegetation mats, typically 
within a few centimeters (cm) of running water.
    Gastropods are a class of mollusks with a body divided into a foot 
and visceral mass and a head which usually bears eyes and tentacles. 
Like most gastropods, the Roswell springsnail, Koster's tryonia, and 
Pecos assiminea feed on algae, bacteria, and decaying organic material 
(NMDGF 1988). They will also incidentally ingest small invertebrates 
while grazing on algae and detritus (dead or partially decayed plant 
materials or animals).
    These snails are fairly small; Koster's tryonia is the largest of 
the three snails, and is about 4 to 4.5 millimeters (mm) (0.16 to 0.18 
inches (in)) long with a pale tan shell that is narrowly conical with 
up to 4\1/4\ to 5\3/4\ whorls or twists. The Roswell springsnail is 3 
to 3.5 mm (0.12 to 0.14 in) long with a narrowly conical tan shell with 
up to 5 whorls. Pecos assiminea is the smallest of the three with a 
shell length of 1.55 to 1.87 mm (0.06 to 0.07 in) and a thin, nearly 
transparent chestnut-brown shell that is regularly conical with up to 
4\1/2\ strongly incised (shouldered) whorls and a broad oval opening. 
Although their shells are similar, the Roswell springsnail is 
distinguished from Koster's tryonia by a dark, amber operculum (foot 
disk covering the animal when retracted into the shell) with white 
spiral streaks, while that of Koster's tryonia is nearly colorless. The 
genus Assiminea can be determined from other snail genera by an almost 
complete lack of tentacles, leaving the eyes within the tips of short 
eye stalks (Taylor 1987).
    Taylor (1987) first described the Roswell springsnail from a 
``seepage'' along the west side of an impoundment in Unit 7 at Bitter 
Lake National Wildlife Refuge (NWR or Refuge), Chaves County, NM. Since 
then, Mehlhop (1992, 1993) has documented the species on the Refuge and 
in March 1995 also found it in a spring on private land east of Roswell 
(P. Mehlhop, University of New Mexico, pers. comm. 1998). However, the 
current status of the Roswell springsnail at the spring on private land 
is unknown since further access has not been granted. Monitoring 
efforts at Bitter Lake NWR (1995-1998)

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led to the discovery of Roswell springsnail populations in Bitter 
Creek, the Sago Springs Complex, and a drainage canal along the west 
shoreline of Unit 6. The Roswell springsnail is currently known only 
from Bitter Lake NWR with the core population in the Sago Springs 
Complex and Bitter Creek. The Sago Springs complex is approximately 0.3 
km long (1,000 linear feet), half of which is subterranean with flow in 
the upper reaches restricted to sinkholes. Bitter Creek is six times 
longer than the Sago Springs Complex and has a total length of 1.8 
kilometers (1.1 miles). Monthly monitoring and ecological studies of 
the Roswell springsnail initiated at Bitter Lake NWR in June 1995 
(NMDGF 1998) are ongoing.
    Roswell springsnail was formerly known from several other springs 
in the Roswell area, but these habitats have dried up apparently due to 
groundwater pumping (Cole 1981; Taylor 1983, 1987). Pleistocene fossils 
of the Roswell springsnail are known from Berrendo Creek and the Pecos 
River in Chaves County (Taylor 1987). No populations are currently 
known from these areas.
    Taylor (1987) first reported Koster's tryonia from Sago Spring at 
Bitter Lake NWR, and another population was documented in 1995 at North 
Spring on private land east of Roswell. The species was formerly found 
at several other springs in the Roswell area, but these habitats have 
since dried up due to groundwater pumping (Cole 1981; Taylor 1983, 
1987). Pleistocene fossils of Koster's tryonia are known from North 
Spring River and South Spring Creek in Chaves County (Taylor 1987). 
Monthly monitoring and ecological studies of Koster's tryonia initiated 
at Bitter Lake NWR in 1995 by the NMDGF indicate the species is most 
abundant in the deep organic substrates of Bitter Creek. It also occurs 
at the Sago Springs Complex, but in lower numbers. The current status 
of Koster's tryonia at the spring east of Roswell is unknown.
    Pecos assiminea is presently known from two sites at Bitter Lake 
NWR, Chaves County, NM, from a large population at Diamond Y spring and 
its associated drainage, Pecos County, TX, and at East Sandia Spring, 
Reeves County, TX. Historically, Pecos assiminea occurred sporadically 
throughout the Bolson de Cuatro Cienegas, Coahuila, Mexico (Taylor 
1987), but its present status there is unknown.
    Monitoring and ecological studies of Pecos assiminea initiated at 
Bitter Lake NWR in 1995 showed the snail to be typically absent from 
substrate samples. Extant populations of Pecos assiminea occur 
sporadically along Bitter Creek, and a dense population was confirmed 
on moist vegetation and on muddy surfaces within 1 cm (.39 in) of water 
in 1999 in an emergent marsh plant community around the perimeter of a 
sinkhole within the Sago Springs Complex (NMDGF 1999).

Noel's amphipod

    Noel's amphipod, in the family Gammaridae, is a small freshwater 
crustacean. Inland amphipods are sometimes referred to as freshwater 
shrimp. Noel's amphipod is brown-green in color with elongate, kidney-
shaped eyes, and flanked with red bands along the thoracic and 
abdominal segments, often with a red dorsal stripe. Males are slightly 
larger than females, and individuals range from 8.5 to 14.8 mm (0.33 to 
0.58 in) long (Cole 1981; 1985).
    Amphipods of the family Gammaridae commonly inhabit shallow, cool, 
well-oxygenated waters of streams, ponds, ditches, sloughs, and springs 
(Holsinger 1976, Pennak 1989). Because they are light-sensitive, these 
bottom-dwelling amphipods are active mostly at night and feed on algae, 
submergent vegetation, and decaying organic matter (Holsinger 1976, 
Pennak 1989). Young amphipods depend on microbial foods, such as algae 
and bacteria, associated with aquatic plants (Covich and Thorp 1991). 
Most amphipods complete their life cycle in one year and breed from 
February to October, depending on water temperature (Pennak 1978). 
Amphipods form breeding pairs that remain attached for 1 to 7 days at 
or near the substrate while continuing to feed and swim (Bousfield 
1989). They can produce from 15 to 50 offspring, forming a ``brood.'' 
Most amphipods produce one brood but some species produce a series of 
broods during the breeding season (Pennak 1978).
    Noel's amphipod is one of three species of endemic amphipods of the 
Pecos River Basin occurring from Roswell, NM, south to Fort Stockton, 
TX, known collectively as the Gammarus-pecos complex (Cole 1985). 
Noel's amphipod is currently known from only three sites at Bitter Lake 
NWR. These sites include the Sago Springs Complex, Bitter Creek, and 
along a drainage canal near impoundment 6 on the Refuge. Noel's 
amphipod was first described by Cole (1981) from a 1967 collection of 
amphipods taken from North Spring, east of Roswell. Based on 
morphological similarities, specimens collected from Lander Springbrook 
near Roswell were also identified as Noel's amphipod (Cole 1981). The 
amphipod was extirpated from Lander Springbrook between 1951 and 1960, 
and the North Spring population was lost between 1978 and 1988. Both 
incidences of extirpation were attributed to regional ground water 
depletions and habitat alterations (spring channelization) respectively 
(Cole 1981, 1988).

Previous Federal Actions

    On November 22, 1985, we received a petition from Mr. Harold F. 
Olson, Director of the NMDGF, to add 11 species of New Mexican mollusks 
to the Federal list of endangered and threatened wildlife. Roswell 
springsnail (Pyrgulopsis roswellensis formerly Fontelicella sp. 
(Hershler 1994)), Koster's tryonia, and Pecos assiminea were among the 
11 species. We determined the petition presented substantial 
information that the requested action may be warranted and published a 
positive 90-day petition finding in the Federal Register on August 20, 
1986 (51 FR 29671). A subsequent 12-month finding published in the 
Federal Register on July 1, 1987 (52 FR 24485) concluded that the 
petitioned action was warranted but precluded by other higher priority 
listing actions. This proposed rule constitutes our 12-month recycled 
petition finding for the Roswell springsnail, Koster's tryonia, and 
Pecos assiminea. This proposed rule includes a proposal for Noel's 
amphipod, which has recently been made a candidate for listing since 
this species shares the same threats and management needs.
    We identified the Noel's amphipod as a Category 2 species in our 
notices of review for animals published in the Federal Register on May 
22, 1984 (49 FR 21664), January 6, 1989 (54 FR 554), November 21, 1991 
(56 FR 58804), and November 15, 1994 (59 FR 58982). Before 1996, a 
Category 2 species was one that we were considering for possible 
addition to the Federal List of Endangered and Threatened Wildlife, but 
for which conclusive data on biological vulnerability and threats were 
not currently available to support a proposed rule. We discontinued 
designation of Category 2 species in the February 28, 1996, notice of 
review (61 FR 7956).
    The springsnails were included as category 1 candidate species in 
our comprehensive invertebrate Notice of Review published in the 
Federal Register on May 22, 1984 (49 FR 21664). Category 1 candidate 
species were those for which we had on file substantial information on 
biological vulnerability and threats to support proposals to designate 
them as threatened or endangered. On November 21, 1991,

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and November 15, 1994 (56 FR 58804, 59 FR 58982) we published revised 
lists of animals under review for threatened or endangered designation 
in the Federal Register. These notices retained Roswell springsnail, 
Koster's tryonia, and Pecos assiminea as category 1 candidate species. 
Subsequently, in the Federal Register Notices of Review on February 28, 
1996, September 19, 1997, and October 25, 1999 (61 FR 7596, 62 FR 
49398, 64 FR 57534), we ceased using category designations and 
classified these snails as candidate species. Candidate species are 
those for which we have sufficient information on biological 
vulnerability and threats to support proposals to designate them as 
threatened or endangered.
    On August 29, 2001, the Service announced a settlement agreement in 
response to litigation by the Center for Biological Diversity, the 
Southern Appalachian Biodiversity Project, and the California Native 
Plant. Terms of the agreement require that we submit to the Federal 
Register, on or by February 6, 2002, a 12-month finding and 
accompanying proposed listing rule and proposed critical habitat 
designation for the four invertebrates addressed in this proposed rule. 
This agreement was entered by the court on October 2, 2001, (Center for 
Biological Diversity, et al. v. Norton, Civ. No. 01-2063 (JR) 
(D.D.C.)).

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act and implementing 
regulations (50 CFR part 424) set forth the procedures for adding 
species to the Federal lists. A species may be determined to be 
threatened or endangered due to one or more of the five factors 
described in section 4(a)(1) of the Act. These factors and their 
application to the Roswell springsnail, Koster's tryonia, Pecos 
assiminea, and Noel's amphipod are as follows.

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

    These species are vulnerable to habitat degradation and local 
extinctions due to local and regional groundwater depletion 
(Hennighausen 1969, Quarles 1993, Jones and Balleau 1996); direct 
manipulation of flowing water and habitat conditions, such as damming 
or piping of water flow, pooling, or diverting flow (Cole 1981, NMDGF 
1988); and surface and groundwater contamination from residential, 
agricultural, and industrial runoff (e.g., herbicides, pesticides) 
(Eisler 1987, Rail 1989). Like many aquatic invertebrates, the Roswell 
springsnail, Koster's tryonia, Pecos assiminea, and Noel's amphipod are 
important ecological barometers of water quality because they are very 
sensitive to oxygen levels, water temperature, sediments, and 
contaminants (Quarles 1983, Eisler 1987, Arritt 1998, NMDGF 1998, 
1999). Their presence often indicates a pristine spring or watercourse.
    These four species depend upon water for their survival. Therefore, 
aquifer drawdown and contamination are among the most serious threats 
to these species. In order to assess the potential for water quality 
contamination, a study was completed in September 1999 to determine the 
sources of water for the springs at Bitter Lake NWR. This study 
(Balleau et al. 1999) reported that the source of water that will reach 
the Refuge springs over time periods ranging from 10 to 500 years 
includes a broad area beginning west of Roswell near Eightmile Draw, 
extending to the northeast to Salt Creek, and southeast to the Refuge. 
This broad area sits within a portion of the Roswell Basin and contains 
a mosaic of Federal, State, and private lands with multiple land uses 
including expanding urban development. Some of this development 
includes the installation of subsurface septic tanks, which can be a 
source of sewage contamination (McQuillan et al. 1989). Since this area 
delineates the ground water source area of surface water on the Refuge, 
it likewise represents pathways for contaminants to enter the species' 
habitat.
    Contamination of ground water sources from industry and commercial 
operations in and around Roswell is well documented. For example, 
perchloroethylene (PCE) was discovered in the McGaffey and Main ground 
water plume in Roswell in 1994 (Environmental Protection Agency (EPA) 
2001). It is suspected that a dry cleaning facility that operated from 
1956 to 1963 is the source of the PCE. The New Mexico Environment 
Department subsequently detected PCE in 13 of 16 groundwater wells in a 
1995 investigation (EPA 2001). This ground plume contamination was 
proposed for addition to the EPA's National Priority List on September 
13, 2001 (66 FR 47612). This list assists the EPA in determining 
national priority sites that warrant further investigation of the 
nature and extent of environmental risks associated with the release of 
hazardous substances. It is not known whether this ground water plume 
will affect water quality on the Refuge or whether this contamination 
would impact these invertebrate species. However, portions of the 
shallow alluvial aquifer underlying Roswell are a source zone for many 
different contaminants that could eventually reach the Bitter Lakes 
spring complex (Balleau et al. 1999). We do not have specific 
documentation of adverse impacts associated with chronic or episodic 
chemical contaminant events to these species. However, such events have 
been implicated in similar aquatic organisms sharing common 
characteristics (e.g. Higgins' eye mussel (Lampsilis higginsii)) 
(Service 1999).
    Any springsnails remaining at North Spring, which is surrounded by 
a golf course, are threatened by pesticide or herbicide use for 
landscaping or maintenance and springhead alteration, which includes 
piping, damming, or pooling spring outflow (NMDGF 1999). Populations of 
Roswell springsnail and Koster's tryonia at North Spring are reduced 
due to springhead modification (Landye 1981), regional groundwater 
depletion (Taylor 1987, NMDGF 1988), and recent observed reductions in 
springhead flow (Arritt 1998). The area of the historic Lander 
Springbrook (the first record of what was later identified as Noel's 
amphipod was discovered at Lander Springbrook) is believed to have 
existed near South Spring acres, where this historic spring joined the 
South Spring River. This area was visited in 1995 and found to be dry 
(William Radke, pers. comm. 2000). Given that the amphipod cannot 
survive outside of an aquatic environment, this population has likely 
been extirpated.
    Oil drilling occurs throughout the Roswell Basin. This activity and 
associated actions can threaten the water quality of the aquifer on 
which these species depend. For example, oil and other contaminants 
from drilling activities throughout the basin could enter the aquifer 
supplying the springs inhabited by all four species when the limestone 
layers are pierced by drilling activities. There are at least 190 oil 
wells in the area surrounding Bitter Lake NWR that are potential 
sources of contamination. The total number of wells that could 
potentially contaminate the underground water supply that is the source 
of water on the Refuge has not been quantified. According to Go-Tech, 
which is a database of oil and gas development and exploration actions 
in New Mexico, currently 23 ``intentions to drill'' (pursuit of 
required permits has been initiated by an applicant) are under way for 
oil or natural gas on Federal lands in Chavez County, 16 on State lands 
and 7 on private land (Go-Tech 2001). The Bureau of Land Management 
(BLM) continually receives requests for oil and gas development on 
public lands immediately adjacent to the Refuge. In March 2000 there 
were at

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least 36 oil wells in the immediate vicinity of the Refuge (New Mexico 
Bureau of Mines and Minerals 2000). To remediate (clean) the aquifer 
would be extremely difficult should it become contaminated by oil, 
chemicals, or organics like nitrates. In most cases contamination of an 
underground aquifer by agricultural, industrial, or domestic sources is 
treated at the source. When a contamination site is discovered, 
techniques are used to address the source of the contamination. Rarely 
do remediation efforts pump water from the aquifer and treat it before 
sending it back. This is largely because these techniques are very 
costly and difficult to apply (Sarah McGrath, New Mexico State Ground 
Water Bureau, pers. comm. 2001). Because these invertebrate species are 
sensitive to contaminants, efforts to clean up pollution source sites 
after the aquifer has been contaminated may not be sufficient to 
protect the aquatic habitat on which these species depend.
    Operations associated with oil and gas drilling such as 
exploration, storage, transfer, and refining are also potential threats 
to these species (Jercinovic 1982, 1984; Longmire 1983; Quarles 1983; 
Boyer 1986; Green and Trett 1989; Service 1997). Such extractive 
processes and industry operations are known to deplete groundwater 
aquifers and to contaminate ground and surface waters (Hennighausen 
1969; Jercinovic 1982, 1984; Longmire 1983; Quarles 1983; Boyer 1986; 
Richard 1988a, 1988b; Rail 1989; Richard and Boehm 1989a, 1989b; Jones 
and Balleau 1996; Martinez et al. 1998). This groundwater depletion and 
ground and surface water contamination can adversely impact aquatic 
mollusks (Eisler 1987, Havlik and Marking 1987, Green and Trett 1989), 
and threaten Roswell springsnail, Koster's tryonia, Pecos assiminea, 
and Noel's amphipod populations at Bitter Lake NWR (USFWS 1997).
    Oil and gas development along with the depletion of groundwater in 
the Pecos River valley also poses a threat to the population of Pecos 
assiminea at the Diamond Y Springs Complex. According to Veni (1991), 
over-pumping of the Pecos aquifer has dried other springs in the 
region, and the flow at Diamond Y spring is potentially threatened by 
groundwater withdrawal and contamination from agricultural and oil and 
gas industries within its drainage area. Reductions in endangered 
spring snail populations in other parts of the country due to 
reductions in water quality resulting from contamination by 
agricultural pesticides and herbicides are well documented (Frest and 
Johannes 1992, Mladenka 1992). There is evidence that colonies of Utah 
valvata (Valvata utahensis) and Bliss Rapids snail (Taylorconcha 
serpenticola) have recently declined or have been eliminated at several 
sites from changes in water quality due to agricultural and aquaculture 
wastewater originating outside the area (Frest and Johannes 1992). 
These two species are similar to the three snail species addressed in 
this proposal for listing, and as a result the three snail species 
could also be expected to experience adverse effects in response to 
environmental contaminants. Waste water from concentrated animal areas 
(i.e. dairies, feed lots, chicken farms), septic tanks, and 
agricultural uses is a known contributor of nitrates to surface and 
underground water sources. Nitrate levels in the underground aquifer 
near Roswell are known to be high. A significant source of the nitrates 
comes from surrounding dairy farms (Sarah McGrath, New Mexico State 
Ground Water bureau, pers. comm. 2001). The effects of nitrates on 
aquatic species are not entirely known because several outcomes may 
result from high level nitrate contamination in aquatic systems. One 
outcome includes increased growth of algae resulting from increased 
nutrients in the aquatic system. Too much algae in an aquatic 
environment could result in periods of low oxygen (resulting from 
increased respiration by algae) and in extreme cases this could be 
lethal to the snails and the amphipod. Also the type and amount of 
algae could change from more benign species to species which release 
phytotoxins into the environment and are lethal to some aquatic 
species. Elevated nutrient conditions favor blue-green algae which is a 
phytotoxin emitter. Should ammonia be a part of the pollution coming 
from industrial sites, agricultural areas, or domestic sources (i.e. 
septic tanks) this is a known acute toxin to aquatic life (Joel Lusk, 
USFWS, pers. comm., 2001). At least two dairy farms are currently 
required to do remediation for their contribution of nitrates to water 
pollution, both surface and underground (Sarah McGrath, New Mexico 
State Ground Water bureau, pers. comm. 2001). In addition, Diamond Y 
spring provides essential wetland habitat for several other rare and/or 
declining species such as the federally endangered Leon Springs pupfish 
(Cyprinodon bovinus) and federally threatened Pecos sunflower 
(Helianthus paradoxus).
    East and West Sandia Springs are at the base of the Davis Mountains 
just east of Balmorhea, TX, and are part of the Balmorhea Spring 
Complex, the largest remaining desert spring system in Texas where the 
Pecos assiminea is found. West Sandia Spring has ceased flowing in 
recent times (Chris Perez, USFWS, pers. comm). East Sandia Spring 
discharges at an elevation of 977 meters (m) (3,224 feet (ft)) from 
alluvial sand and gravel, but the water is likely derived from 
Comanchean limestone underlying the alluvium (clay, silt, sand, and 
other similar material deposited by running water) (Brune 1981). Brune 
(1981) noted that flows from Sandia Springs were declining. According 
to Schuster (1997), the combined discharge of the Toyah basin springs 
from 1990 to 1996, which includes East Sandia Spring, shows an overall 
declining trend. The small flow from these springs is used by the local 
farming community for agricultural irrigation (Schuster 1997).
    Finally, the range reduction trend in these snail species (e.g., by 
extirpation of once widely distributed but localized populations) is 
supported by the Pleistocene fossil record in conjunction with re-
inventory of known site occurrences in which no individuals were 
detected (Noel 1954; Taylor 1987; Mehlhop 1992, 1993; NMDGF 1999). 
Fossil records indicate that at least one or more of these snail 
species were historically found at Berrendo Creek, North Spring, and 
South Spring Rivers and along the Pecos River (NMDGF 1999). This 
evidence suggests an apparent historical decline in the numbers, range, 
and distribution of these species.

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

    We are unaware of threats to these four species from this factor. 
Roswell springsnail, Koster's tryonia, Pecos assiminea, and Noel's 
amphipod may occasionally be collected as specimens for scientific 
study, but these uses probably have a negligible effect on total 
population numbers. All of these species are currently not known to be 
of commercial value, and overutilization has not been documented. 
However, as their rarity becomes known, they may become more attractive 
to collectors. Although scientific collecting is not presently 
identified as a threat, unregulated collecting by private and 
institutional collectors could pose a threat to these locally 
restricted populations. We are aware of overcollection being a 
potential threat with other snails (e.g., armored snail (Pyrgulopsis 
(Marstonia) pachyta)(65 FR 10033); Bruneau hot springsnail (Pyrgulopsis 
bruneauensis) (58 FR

[[Page 6464]]

5938); and Socorro springsnail (Pyrgulopsis neomexicana) and Alamosa 
springsnail (Tryonia alamosae) (56 FR 49646)), due to their rarity, 
restricted distribution, and generally well known locations. Due to the 
small number of localities for the snails and the amphipod, these 
species are vulnerable to unrestricted collection, vandalism, or other 
disturbance. There is no documentation of collection as a significant 
threat to any of the species. Therefore, we believe that collection of 
the animals is a minor but present threat.

C. Disease or Predation

    Springsnails as well as amphipods provide a food source for other 
aquatic animals. Juvenile springsnails appear vulnerable to a variety 
of predators. Damselflies (Zygoptera) and dragonflies (Anisoptera) were 
observed feeding upon snails in the wild (Mladenka 1992). Mladenka 
(1992) observed guppies feeding upon snails in the laboratory. Disease 
is not a documented threat at this time.

D. The Inadequacy of Existing Regulatory Mechanisms

    Existing regulatory mechanisms are inadequate to protect the 
Roswell springsnail, Koster's tryonia, Pecos assiminea, and Noel's 
amphipod. All four species are listed as New Mexico State endangered 
species, Group 1, which are those species ``* * * whose prospects of 
survival or recruitment within the State are in jeopardy.'' This 
designation provides the protection of the New Mexico Wildlife 
Conservation Act and prohibits the take of these species, except under 
issuance of a scientific collecting permit. However, New Mexico State 
statutes do not address habitat protection, indirect effects, or other 
threats to these species. State status as an endangered species conveys 
protection from collection or intentional harm. However, there is no 
formal consultation process to address the habitat requirements of the 
species or how a proposed action may affect the needs of the species. 
In Texas, Pecos assiminea currently has no State or other regulatory 
protection.
    Members of these species that co-exist in springs with the 
endangered Pecos gambusia (Gambusia nobilis) at Bitter Lake NWR and 
Diamond Y Spring and the endangered Leon Springs pupfish at Diamond Y 
Spring may receive incidental habitat protection from the Endangered 
Species Act. However, possible habitat protection provided by the 
federally listed Pecos gambusia and the Leon Springs pupfish offers 
only partial protection for the Roswell springsnail, Koster's tryonia, 
Pecos assiminea, and Noel's amphipod because these federally listed 
fish are not found in all the springs the snails or amphipod inhabit. 
For example, Pecos assiminea does not normally occur directly within 
submerged habitats. It is most commonly found in moist soil or 
vegetation along the periphery of standing water. As a result, this 
habitat may not be afforded protection under current management actions 
or consultations which address conservation for listed fish species in 
the same area.
    Federal water-rights for the Bitter Lake NWR were secured in 1996 
(USDJ 1996). This acquisition should ensure minimum surface water 
discharge of Bitter Creek. However, if this water is contaminated, the 
Federal water right does not provide the required protection for these 
species.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Since these species inhabit only a few sites, there is a high 
probability that human-caused or natural events could destroy a 
significant portion of their remaining populations and habitat. 
Prolonged drought, for instance, could adversely impact populations by 
reducing groundwater recharge while increasing salinity and contaminant 
concentrations (NMDGF 1998).
    Fire, particularly during the winter months, will allow ash, 
sediment, salts and nutrients to more readily enter the aquatic habitat 
via precipitation and wind. Ash consists of carbon, soots, and other 
organic compounds that, upon entering the water column, provide a food 
source for bacteria and algae. With the addition of associated 
nutrients, and water temperature increases from the loss of streamside 
vegetation, populations of bacteria and algae will expand causing 
oxygen depletions. As a result, some invertebrates may perish in these 
situations, where they cannot escape the oxygen deficit. Additionally, 
denuded areas will allow erosion and sedimentation of the streamside 
habitat. Sedimentation could have the direct effect of smothering the 
invertebrates.
    The Refuge is characterized by sinkhole/karst terrain. This terrain 
poses safety threats to fire crews and suppression equipment. As a 
result, fire suppression efforts are largely restricted to established 
roads. This severely limits management ability to quickly suppress 
fires that threaten fragile aquatic habitats on the refuge. On March 5, 
2000, the Sandhill fire burned 405 hectares (ha) (1,000 acres (ac)) of 
the western portion of the refuge, including portions of Bitter Creek. 
Post-fire surveys indicated significant decreases in the invertebrate 
populations in Bitter Creek as well as decreases in dissolved oxygen 
levels (Brian Lang, NMDGF, pers. comm. 2000)
    The Pecos assiminea may be threatened by competition for resources 
from the tropical red-rimmed melania snail (Melanoides tuberculata). 
This exotic snail is abundant at Diamond Y Spring and outcompetes 
native aquatic snails (Lisa Kiner, pers. comm. 1999).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by these species in determining these species are vulnerable to 
extinction throughout all or a significant portion of their ranges. The 
habitat and range of Roswell springsnail, Koster's tryonia, Pecos 
assiminea, and Noel's amphipod are threatened with destruction, 
modification, and curtailment. Existing regulatory mechanisms do not 
provide adequate protection for these species, and other natural and 
manmade factors affect their continued existence. Because each of these 
four species has a very limited range, their populations are disjunct 
and isolated from each other, and potential habitat areas are isolated 
and separated by large areas of unsuitable habitat, these invertebrates 
are particularly vulnerable to localized extinction should their 
habitat be degraded or destroyed. Because their mobility is limited, 
populations will have little opportunity to leave degraded habitat 
areas in search of suitable habitat. As a result, one contamination 
event, or a short period of drawdown in the aquatic habitat where they 
are found could result in the loss of entire population areas, of which 
there are few. Therefore, we propose to list the Roswell springsnail, 
Koster's tryonia, Pecos assiminea, and Noel's amphipod as endangered. A 
threatened designation would not accurately reflect the population 
status, restricted distribution, vulnerability, and imminent threats.

General Critical Habitat Principles

    Critical habitat is defined in section 3(5)(A) of the Act as--(i) 
the specific areas within the geographical area occupied by a species, 
at the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection, and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the

[[Page 6465]]

conservation of the species. The term ``conservation'' as defined in 
section 3(3) of the Act means ``to use and the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to this Act are no longer necessary'' (i.e., the species is recovered 
and removed from the list of endangered and threatened species).
    Critical habitat receives protection from 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 conferencing 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 the section 7 adverse modification standard, designation 
of critical habitat does not provide prohibitions beyond those 
available from the listing of a species as endangered or threatened.
    Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas that contain the 
physical and biological features that are essential for 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 protection to areas where 
significant threats to the species have been identified.
    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 areas designated as critical habitat are most 
appropriately addressed in recovery and management plans, and through 
section 7 consultation and section 10 permits. Critical habitat 
identifies specific units that are essential to the conservation of a 
listed species and that may require special management considerations 
or protection.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR part 424.12) state that critical habitat shall be 
specified to the maximum extent prudent and determinable at the time a 
species is proposed for listing. When we designate critical habitat at 
the time of listing we will often not have sufficient information to 
identify all areas of critical habitat. We are required, nevertheless, 
to make a decision and thus must base our designations on what, at the 
time of designation, we know to be critical habitat. 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 can exclude areas from critical 
habitat designation if we determine that the benefits of exclusion 
outweigh the benefits of including the areas as critical habitat, 
provided the exclusion will not result in the extinction of the 
species.
    Critical habitat designations identify, to the extent known using 
the best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), provides criteria, establishes procedures, and provides 
guidance to ensure that decisions made by the Service represent the 
best scientific and commercial data available. It requires Service 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. Information may be obtained from a recovery 
plan, articles in peer-reviewed journals, conservation plans developed 
by States and counties, scientific status surveys and studies, and 
biological assessments or other unpublished materials (i.e., gray 
literature). Our final determination will be based on the best 
available scientific information and will take into consideration 
comments that we receive from peer reviewers and the public.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the geographical area 
designated is unimportant or may not be required for recovery. Areas 
outside the critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. 
Additionally, as described in the ``Available Conservation Measures'' 
section below, activities occurring within the larger supporting 
aquifer systems may also adversely modify the proposed critical habitat 
for these four invertebrate species. We specifically anticipate that 
federally funded or assisted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
and adverse modification findings in some cases. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.
    Critical habitat designation, by definition, directly affects only 
Federal agency actions through consultation under section 7(a)(2) of 
the Act. 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 a listed species or destroy or 
adversely modify its critical habitat.

Prudency Determination

    As mentioned above, section 4(a)(3) of the Act, as amended, and 
implementing regulations (50 CFR 424.12) require that, to the maximum 
extent prudent and determinable, we designate critical habitat at the 
time the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that the designation

[[Page 6466]]

of critical habitat is not prudent when one or both of the following 
situations exist--(1) the species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    In the last few years, a series of court decisions have overturned 
our determinations that designation of critical habitat would not be 
prudent for a variety of species (e.g., Natural Resources Defense 
Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 
1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280 
(D. Hawaii 1998)). Based on the standards applied in those judicial 
opinions, we have examined the question of whether critical habitat for 
these four invertebrate species would be prudent.
    Due to the small number of localities for the snails and the 
amphipod, these species are vulnerable to unrestricted collection, 
vandalism, or other disturbance. However, there is no documentation of 
collection as a significant threat to any of the species. Additionally, 
much of the habitat where the springsnails and amphipod occur is 
managed for the benefit of wildlife species where the threat of 
collection should be reduced. Consistent with recent case law, we must 
weigh the benefits in proposing to designate critical habitat for the 
snails and the amphipod against the harm which could be caused by 
disclosure of their location. We find that these benefits outweigh the 
risk of increased collection because the locations are already known 
and available to the public.
    The primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies consult with us to ensure that their 
proposed actions will not destroy or adversely modify critical habitat. 
While a critical habitat designation for these species in currently 
occupied habitat would not be likely to change the section 7 
consultation outcome because an action that destroys or adversely 
modifies such critical habitat would also be likely to result in 
jeopardy to the species, in some instances section 7 consultation might 
be triggered only if critical habitat is designated. Examples could 
include unoccupied habitat or occupied habitat that may become 
unoccupied in the future. Designating critical habitat may also have 
some educational or informational benefits. Therefore, we find that 
critical habitat is prudent for the three snails and the amphipod.
    Although we make a detailed determination of the habitat needs of a 
listed species during the recovery planning process, the Act has no 
provision to delay designation of critical habitat until such time as a 
recovery plan is prepared. We reviewed the available information 
pertaining to habitat characteristics where these species had been 
recently located. This and other information represent the best 
scientific and commercial data available, and led us to conclude that 
the designation of critical habitat is both prudent and determinable 
for these four invertebrate species. Therefore, we propose to designate 
critical habitat pursuant to the Act for the springsnails and the 
amphipod.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas to designate as critical 
habitat, we must consider those physical and biological features 
(primary constituent elements) essential to the conservation of the 
species. These primary constituent elements include, but are not 
limited to, space for individual and population growth and for normal 
behavior; food, water, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing of offspring; and habitats that are protected from disturbance 
or are representative of the historical geographical and ecological 
distributions of a species. The areas we are proposing to designate as 
critical habitat for the Roswell springsnail, Koster's tryonia, Pecos 
assiminea, and Noel's amphipod provide one or more of the primary 
constituent elements noted below.
    We determined the specific primary constituent elements for Roswell 
springsnail, Koster's tryonia, and Noel's amphipod from data and 
studies on their general habitat and life history requirements 
including, but not limited to, Noel 1954; Cole 1981; Taylor 1987; 
Pennak 1978, 1989; and NMDGF 1996, 1998, and 1999. These primary 
constituent elements include permanent, flowing, unpolluted fresh to 
moderately saline water; slow to moderate velocities of water over 
substrates (a surface on which a plant or animal grows or is attached) 
ranging from deep organic silts to limestone cobble and gypsum 
substrates; presence of algae, submergent vegetation, and detritus in 
the substrata; water temperatures in the approximate range of 10 to 20 
deg.C (50 to 68  deg.F) with natural diurnal and seasonal variation 
slightly above and below that range.
    These three species are completely aquatic and require perennial, 
flowing water for all of their life stages. The aquatic environment 
provides foraging and sheltering habitat, as well as habitat structure 
necessary for reproduction and successful recruitment of offspring. 
Water is also the medium necessary to provide the algae, detritus, 
bacteria, and submergent vegetation on which all four species depend as 
a food resource. The necessary substrates, silts, cobbles, or gypsum, 
also provide habitat within the aquatic environment for these species 
to shelter, reproduce, and forage. Submergent vegetation contributes to 
the necessary nutrients, detritus, and bacteria on which these species 
forage. This vegetation also provides sheltering habitat.
    We determined the primary constituent elements for Pecos assiminea 
from data and studies on its general habitat and life history 
requirements including, but not limited to, Taylor 1987; Pennak 1978, 
1989; and NMDGF 1996, 1998, and 1999. These primary constituent 
elements include those noted above for the Roswell springsnail, 
Koster's tryonia, and Noel's amphipod and, in addition, moist soil at 
stream or spring run margins with vegetation growing in or adapted to 
an aquatic or very wet environment, such as salt grass or sedges. The 
margins of riparian systems that already contain the above necessary 
elements were included in this proposed designation because Pecos 
assiminea is found within the mesic (moist) environment directly 
adjacent to the aquatic habitat. Substrates found in these marginal 
areas provide for temperatures within the environmental tolerance for 
this species, and the habitat for sheltering, foraging, and 
reproduction that the Pecos assiminea requires.

Proposed Critical Habitat Designation

    In proposing critical habitat for these species, we solicited 
information from knowledgeable biologists and recommendations contained 
in State wildlife resource reports (Balleau et al. 1999, NMDGF 1999, 
NMDGF 1998, Boghici 1997, Jones and Balleau 1996, and Cole 1985). We 
also reviewed the available literature pertaining to habitat 
requirements, historic localities, and current localities for these 
species. The proposed critical habitat described below constitutes our 
best assessment of areas needed for the conservation of the three 
springsnails and Noel's amphipod and is based on the best available 
scientific and commercial information available. The proposed areas are 
essential to the conservation of the species because they are within 
the

[[Page 6467]]

geographical area occupied by these macroinvertebrate populations and 
because they currently have one or more constituent elements (see 
description of primary constituent elements, above).
    Although these species are unique to only a few sites, important 
considerations in selection of areas proposed in this rule include 
factors specific to each geographic area or complex of areas, such as 
size, connectivity, and habitat diversity, as well as range-wide 
recovery considerations, such as genetic diversity and representation 
of all major portions of the species' historical ranges. The proposed 
critical habitat designation includes all known populations of Roswell 
springsnail, Koster's tryonia, Pecos assiminea, and Noel's amphipod. 
Uncertainty of occurrence at other sites may result in small areas of 
occupied habitat not being included in the designation.
    We are not including North Spring, Chaves County, NM, as critical 
habitat because it has been significantly modified by private land 
uses, it is surrounded by a golf course, and it is unlikely that these 
species still exist at this site. This site is also isolated from the 
springsnail populations in Bitter Creek and the Sago Springs Complex, 
which comprise the core populations of these species. Due to habitat 
modifications at North Spring, we do not know if the area provides for 
the essential life cycle needs of these species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)) and, therefore, we are not proposing to include it in the 
designation. We intend to work with land managers at North Spring to 
address important conservation needs of any remaining springsnails 
there.
    We propose the following areas as critical habitat for these 
invertebrate species (see the ``Regulation Promulgation'' section of 
this proposed rule for exact boundary descriptions). These proposed 
critical habitat areas include primary constituent elements that 
provide for the physiological, behavioral, and ecological requirements 
essential for the conservation of Roswell springsnail, Koster's 
tryonia, Pecos assiminea, and Noel's amphipod. The proposed designation 
includes two areas or ``complexes'' on Bitter Lake NWR, one complex at 
Diamond Y Spring, associated springs, and a segment of their drainages, 
and East Sandia Spring. A broad array of sinkholes and spring complexes 
provide a diversity of habitat types. We are proposing to include these 
areas in the critical habitat designation to maintain ecological 
distribution as well as adequate pathways necessary for genetic 
exchange, thereby fostering genetic diversity and population viability.
    1. Sago/Bitter Creek Complex, Bitter Lake NWR, Chaves County, NM. 
Sago Springs, Bitter Creek, and the adjacent gypsum sinkholes comprise 
the core population center for all four species. The proposed 
designation includes all springs, seeps, sinkholes, and outflows 
surrounding Bitter Creek and the Sago Springs complex. This designation 
is approximately 211 ha (521 ac).
    2. Impoundment Complex, Bitter Lake NWR, Chaves County, NM. This 
complex includes portions of impoundments 3, 5, 6, 7, 15, and Hunter 
Marsh. This is a secondary population center for all four invertebrates 
with Koster's tryonia being the principal species there. The proposed 
designation includes all springs, seeps, sinkholes, and outflows 
surrounding the Refuge impoundments. This designation is approximately 
245 ha (606 ac).
    3. Diamond Y Springs Complex, Pecos County, TX. This area comprises 
a major population of Pecos assiminea. The proposed designation 
includes the Diamond Y Spring and approximately 6.8 km (4.2 mi) of its 
outflow ending at approximately 0.8 km (0.5 mi) downstream of the State 
Highway 18 bridge crossing. Also included is approximately 0.8 km (0.5 
mi) of Leon Creek upstream of the confluence with Diamond Y Draw. All 
surrounding riparian vegetation and mesic soil environments within the 
spring, outflow, and portion of Leon Creek are also proposed for 
designation as these areas are considered habitat for the Pecos 
assiminea. This designation is approximately 153.8 ha (380 ac) of 
aquatic and neighboring mesic habitat.
    4. East Sandia Spring, Reeves County, TX. This spring contains a 
population of Pecos assiminea. The proposed designation includes the 
springhead itself, surrounding seeps, and all submergent vegetation and 
moist soil habitat found at the margins of these areas. These areas are 
considered habitat for the Pecos assiminea. This designation is 
approximately 6.7 ha (16.5 ac) of aquatic and neighboring upland 
habitat.

Land Ownership

    Most of the land included in the designation is within the 
administrative boundaries of the Bitter Lake NWR. However, within the 
designation are also private lands associated with the Diamond Y Spring 
Complex and East Sandia Spring. Both of these springs support 
populations of the Pecos assiminea. Diamond Y Spring is located in 
Pecos County, TX, and East Sandia Spring is located in Reeves County, 
TX. These private lands are managed as a nature preserve by The Nature 
Conservancy. Surrounding land uses include ranching and irrigated 
farming.
    A general description of land ownership in each area follows.
    1. Sago/Bitter Creek Complex-This complex occurs entirely on Bitter 
Lake NWR (Federal ownership).
    2. Impoundment Complex-This complex occurs entirely on Bitter Lake 
NWR (Federal ownership).
    3. Diamond Y Springs Complex-This complex occurs entirely on 
private lands. Private land in the immediate vicinity of the Diamond Y 
Springs Complex is managed as a nature preserve by The Nature 
Conservancy.
    4. East Sandia Spring. The site is private land managed as a nature 
preserve by The Nature Conservancy.
    The approximate Federal and private ownership within the boundaries 
of the critical habitat is shown in Table 1.

             Table 1.--Approximate Critical Habitat by Land Ownership and State in Hectares (Acres)
----------------------------------------------------------------------------------------------------------------
                                       New Mexico             Texas                         Total
----------------------------------------------------------------------------------------------------------------
Federal Land (National Wildlife   456 ha (1,127 ac)..  None...............  456 ha (1,127 ac).
 Refuge).
Private Land....................  None...............  160.5 ha (396.5ac).  160.5 ha (396.5 ac).
Total...........................  ...................  ...................  616.5 ha (1,523.5 ac).
Total critical habitat units....  ...................  ...................  4.
----------------------------------------------------------------------------------------------------------------


[[Page 6468]]

Special Management Considerations and Protection

    Section 3(5) of the Act defines critical habitat, in part, as areas 
within the geographical area occupied by the species ``on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations and protection.'' Additional special 
management is not required if adequate management or protection is 
already in place. Adequate special management considerations or 
protection is provided by a legally operative plan or agreement that 
addresses the maintenance and improvement of the primary constituent 
elements important to the species and manages for the long-term 
conservation of the species. We use the following three criteria to 
determine if a plan provides adequate special management or protection: 
(1) A current plan or agreement must be complete and provide sufficient 
conservation benefit to the species; (2) the plan must provide 
assurances that the conservation management strategies will be 
implemented; and (3) the plan must provide assurances that the 
conservation management strategies will be effective, i.e., provide for 
periodic monitoring and revisions as necessary. If all of these 
criteria are met, then the lands covered under the plan would no longer 
meet the definition of critical habitat.
    Two proposed critical habitat sites are currently being managed by 
The Nature Conservancy (TNC). The Nature Conservancy currently has no 
formal management plans for these areas, but intends to have draft 
plans developed. If these plans are finalized prior to our final 
determination, we will consider whether they provide special management 
and we may exclude these areas if we determine that no additional 
special management is required.

Effect of Critical Habitat Designation

    The designation of critical habitat directly affects Federal 
agencies. The Act requires Federal agencies to ensure that actions they 
fund, authorize, or carry out do not destroy or adversely modify 
critical habitat to the extent that the action appreciably diminishes 
the value of the critical habitat for the survival and recovery of the 
species. Individuals, organizations, States, local and Tribal 
governments, and other non-Federal entities are only affected by the 
designation of critical habitat if their actions occur on Federal 
lands, require a Federal permit, license, or other authorization, or 
involve Federal funding.
    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 proposed or designated 
critical habitat. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. 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 jeopardize the continued 
existence of a proposed species or to result in destruction or adverse 
modification of proposed critical habitat.
    If a species is subsequently listed or critical habitat is 
designated, then 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 destroy or 
adversely modify its critical habitat. To that end, if a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with us. Regulations at 50 
CFR 402.16 also require Federal agencies to reinitiate consultation in 
instances where we have already reviewed an action for its effects on a 
listed species if critical habitat is subsequently designated.
    Section 4(b)(8) of the Act requires us to include in any proposed 
or final regulation that designates critical habitat, a brief 
description and evaluation of those activities (whether public or 
private) which, in the opinion of the Secretary, if undertaken may 
adversely modify such habitat, or may be affected by such designation. 
Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements (defined 
above) to an extent that the value of critical habitat for both the 
survival and recovery of the springsnails and amphipod is appreciably 
reduced.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species (see the next section, ``Available Conservation 
Measures,'' for a discussion of specific actions that may affect listed 
species or critical habitat). It is important to note that proposed 
critical habitat may also be adversely modified by certain activities 
occurring within the larger supporting aquifer systems. This would 
particularly include adverse impacts to the Roswell Basin aquifer for 
Bitter Lake NWR and Rustler aquifer (Boghici 1997) for Diamond Y 
Springs Complex. Section 7 prohibits actions funded, authorized, or 
carried out by Federal agencies from jeopardizing the continued 
existence of a listed species or destroying or adversely modifying the 
listed species' critical habitat. Actions likely to ``jeopardize the 
continued existence'' of a species are those that would appreciably 
reduce the likelihood of the species' survival and recovery. Actions 
likely to ``destroy or adversely modify'' critical habitat are those 
that would appreciably reduce the value of critical habitat for the 
survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species, in the case of critical 
habitat by reducing the value of the habitat so designated. Given the 
similarity of these definitions, actions likely to destroy or adversely 
modify critical habitat for these springsnails and the amphipod would 
almost always result in jeopardy to the species concerned, particularly 
when the area of the proposed action is occupied by these species. In 
those cases, critical habitat provides little additional protection to 
a species, and the existence of a critical habitat designation does not 
materially affect the outcome of consultation.

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 authorizes recovery plans for all 
listed species. The protection required of Federal agencies and the 
prohibitions against certain activities involving listed animals are 
discussed in part in the ``Effect of Critical Habitat Designation'' 
section below.
    Federally supported actions that could affect the springsnails, 
amphipod, or their habitats include any activity that would 
significantly alter the source-water capture zones, subterreanean 
flows, or water level of the supporting aquifers; any activity that 
would significantly alter the water chemistry and physical parameters 
(e.g., temperature) in the wetland habitats and systems where these 
species occur;

[[Page 6469]]

and any activity that would introduce, spread, or augment non-native 
aquatic predators or competitors. This may generally involve 
groundwater pumping, water diversion, drainage alteration projects, 
wetland filling, road construction, construction of public and private 
facilities, chemical applications, oil and gas permitting activities, 
technical assistance programs, and wastewater or point-source discharge 
permits. Specific examples include, but are not limited to, EPA 
authorization of discharges under the National Pollutant Discharge 
Elimination System and registration of pesticides; Federal Highway 
Administration approval or funding of road or highway infrastructure 
and maintenance; BLM issuance of oil and gas leases or permits; U.S. 
Army Corps of Engineers authorization of discharges of dredged or fill 
material into waters of the United States under section 404 of the 
Clean Water Act; USDA-Natural Resources Conservation Service technical 
assistance and other programs; USDA-Rural Utilities Service 
infrastructure or development; Federal Energy Regulatory Commission 
permitting activities; and the Department of Housing and Urban 
Development's Small Cities Community Development Block Grant and home 
loan programs.
    The Act and implementing regulations found at 50 CFR 17.21 set 
forth a series of general prohibitions and exceptions that apply to all 
endangered wildlife. These prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to take 
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or 
collect, or to attempt any of these), import or export, ship in 
interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. It 
also is illegal to possess, sell, deliver, carry, transport, or ship 
any such wildlife that has been taken illegally. Certain exceptions 
apply to agents of the U.S. Fish and Wildlife Service and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, or for incidental take in the 
course of otherwise lawful activities.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify to the maximum extent practicable those 
activities that would or would not constitute a violation of section 9 
of the Act. The intent of this policy is to increase public awareness 
as to the effects of this proposed listing on future and ongoing 
activities within the species' range. We believe, based on the best 
available information, that the following actions will not result in a 
violation of section 9:
    (1) Possession, delivery, or movement, including interstate 
transport that does not involve commercial activity, of specimens of 
these species that were legally acquired prior to the publication in 
the Federal Register of the final regulation adding these species to 
the list of endangered species;
    (2) Oil and gas exploration and drilling in areas where surface or 
groundwater is not connected to habitats occupied by the Roswell 
springsnail, Koster's tryonia, Pecos assiminea, and Noel's amphipod;
    (3) Groundwater pumping or use of a supporting aquifer that would 
not result in a significant lowering of aquifer levels or reduced 
spring water discharges; and
    (4) Domestic sewer hook-ups to city wastewater treatment systems 
within the groundwater recharge zones of the supporting aquifers.
    Potential activities involving these species that we believe will 
likely be considered a violation of section 9 include, but are not 
limited to, the following:
    (1) Collection of specimens of these species for private possession 
or deposition in an institutional collection without the appropriate 
Federal permits;
    (2) The use of chemical insecticides or herbicides in violation of 
the label directions which results in killing or injuring these 
species;
    (3) The unauthorized release of biological control agents (e.g., 
insects) that attack any life stage of these species;
    (4) Subsurface drilling or similar activities that contaminate or 
cause significant degradation of surface drainage water or aquifer 
water quality that supports the habitat occupied by these species;
    (5) Groundwater pumping to the extent that a significant reduction 
in the quantity or quality of water in areas occupied by these species 
occurs;
    (6) Septic tank placement where the groundwater is connected to 
sinkhole or other aquatic habitats occupied by these species;
    (7) Activities occurring within the surface drainage zones that 
produce contaminated run-off (e.g., dumping waste products such as 
chemicals or oils on upland sites) during significant rain events; and
    (8) Habitat modification such as removal of marsh emergent or 
perennial vegetation, construction, clearing, grading, digging, 
filling, blasting, and alteration of the natural drainages within or 
adjacent to the occupied wetland feature that results in killing or 
injuring these species by significantly impairing essential life-
sustaining requirements such as breeding, feeding, and shelter.
    If you have questions regarding whether specific activities will 
likely violate section 9, contact the New Mexico Ecological Services 
Field Office (see ADDRESSES section). For Pecos assiminea in Texas, 
contact the Austin Ecological Services Field Office, 10711 Burnet Road, 
Suite 200, Hartland Bank Building, Austin, TX 78758, (512/490-0057). 
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, Division of Endangered Species, P.O. Box 1306, 
Albuquerque, NM 87103 (telephone 505/248-6920; facsimile 505/248-6788).

Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial information 
available and consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We based this 
proposal on the best available scientific information. We will use the 
economic analysis, and take into consideration all comments and 
information submitted during the comment period, to make a final 
critical habitat designation. We may exclude areas from critical 
habitat upon a determination that the benefits of exclusion outweigh 
the benefits of specifying an area as critical habitat. We cannot 
exclude areas from critical habitat when the exclusion will result in 
extinction of the species. We will conduct a robust economic analysis 
on the effects of the proposed critical habitat designation prior to a 
final determination that will comply with the ruling by the Tenth 
Circuit Court of Appeals in New Mexico Cattle Growers Association, 
et.al. v. U.S. Fish and Wildlife Service. When the draft economic 
analysis is completed, we will announce its availability with a notice 
in the Federal Register, and we will reopen the comment period at that 
time to accept comments on the economic analysis or further comment on 
the proposed rule.

[[Page 6470]]

Secretarial Order 3206: American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act

    The purpose of Secretarial Order 3206 (Secretarial Order) is to, 
``clarif(y) the responsibilities of the component agencies, bureaus, 
and offices of the Department of the Interior and the Department of 
Commerce, when actions taken under authority of the Act and associated 
implementing regulations affect, or may affect, Indian lands, tribal 
trust resources, or the exercise of American Indian tribal rights.'' If 
there is potential that a tribal activity could cause either direct or 
incidental take of a species proposed for listing under the Act, then 
meaningful government-to-government consultation will occur to try to 
harmonize the Federal trust responsibility to tribes and tribal 
sovereignty with our statutory responsibilities under the Act. The 
Secretarial Order also requires us to consult with tribes if the 
designation of an area as critical habitat might impact tribal trust 
resources, tribally owned fee lands, or the exercise of tribal rights. 
However, no known tribal activities could cause either direct or 
incidental take of the four species in this proposed rule, and no 
tribal lands or tribal trust resources are anticipated to be affected 
by the proposed designation of critical habitat.

Public Comments Solicited

    The Service expects any final rule resulting from this proposal to 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to these species;
    (2) Additional information concerning the range, distribution, and 
population size of these species, including the locations of any 
additional populations of these species;
    (3) Current or planned activities in the subject area and their 
possible impacts on these species;
    (4) Reasons why any habitat should or should not be determined to 
be critical habitat for these species pursuant to section 4 of the Act; 
and
    (5) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish us to withhold your name or address, you must state 
this prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours (see ADDRESSES section).
    In accordance with interagency policy published on July 1, 1994 (59 
FR 34270), upon publication of this proposed rule in the Federal 
Register, we will solicit expert reviews by at least three specialists 
regarding pertinent scientific or commercial data and our conclusions 
relating to the taxonomic, biological, and ecological information for 
the three snails and the amphipod. The purpose of such a review is to 
ensure that decisions are based on scientifically sound data, 
assumptions, and analyses, including the input of appropriate experts. 
We will send these peer reviewers copies of this proposed rule 
immediately following publication in the Federal Register. We will 
invite these peer reviewers to comment, during the public comment 
period, on the information presented in this proposed rule to list and 
designate critical habitat for the three springsnails and amphipod.
    In making a final decision on this proposed rule, we will take into 
consideration the comments and any additional information we receive. 
The final rule may differ as a result of this process.

Public Hearings

    The Endangered Species Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days of the date of publication of the proposal in the Federal 
Register. Such requests must be made in writing and addressed to New 
Mexico Ecological Services Field Office (see DATES and ADDRESSES 
sections).

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the ``Supplementary Information'' section of the preamble helpful in 
understanding the proposed rule? What else could we do to make the rule 
easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. 
You may also 
e-mail the comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the proposed designation 
of critical habitat in this document is a significant rule and has been 
reviewed by the Office of Management and Budget (OMB). Under section 
4(b)(1)(A) of the Act, the Secretary is to make listing proposals 
solely on the basis of the best scientific and commercial data 
available, after conducting a review of the status of the species and 
taking into account any efforts being made to protect the species. 
Therefore, our analyses under E.O. 12866 and the Regulatory Flexibility 
Act pertain only to the proposed critical habitat portion of this rule, 
and not to the proposed listing. Under section 4(b)(2) of the Act, the 
Secretary is to designate critical habitat based 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.
    (a) While we will prepare an economic analysis to assist us in 
considering whether areas should be excluded pursuant to section 4 of 
the Act, we believe that the proposed critical habitat designation will 
not have an annual economic effect of $100 million or more or adversely 
affect an economic sector, productivity, jobs, the environment, or 
other units of government. Under the Act, critical habitat may not be 
destroyed or adversely modified by a Federal agency

[[Page 6471]]

action; the Act does not impose any restrictions related to critical 
habitat on non-Federal persons unless they are conducting activities 
funded or otherwise sponsored or permitted by a Federal agency.
    (b) This proposed designation of critical habitat, if finalized, 
will not create inconsistencies with other agencies' actions. As 
discussed above, Federal agencies are required to ensure that their 
actions do not jeopardize the continued existence of listed species. 
The prohibition against adverse modification of critical habitat is not 
expected to impose any substantial additional restrictions to those 
that will exist from a proposed or final listing of these four 
invertebrate species. Because of the potential for impacts on other 
Federal agencies' activities, we will continue to review this proposed 
action for any inconsistencies with other Federal agencies' actions.
    (c) We believe that this proposed designation of critical habitat, 
if finalized, will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients, 
except those involving Federal agencies which would be required to 
ensure that their activities do not destroy or adversely modify 
designated critical habitat. As discussed above, we do not anticipate 
that the adverse modification prohibition (from critical habitat 
designation) will have any significant economic effects, but will wait 
until completion of the economic analysis to fully evaluate expected 
effects.
    (d) OMB has determined that the proposed designation of critical 
habitat for these species may raise novel legal or policy issues and, 
as a result, this rule has undergone OMB review.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Act (SBREFA) of 
1996), whenever an agency is required to publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act (RFA) to require Federal agencies to provide a 
statement of the factual basis for certifying that the rule will not 
have a significant economic effect on a substantial number of small 
entities. SBREFA also amended the RFA to require a certification 
statement. In today's proposed rule, we are certifying that the 
proposed designation of critical habitat will not have a significant 
effect on a substantial number of small entities. The following 
discussion explains our rationale.
    The Small Business Administration (http://www.sba.gov/size) defines 
small entities to include small organizations, such as independent non-
profit organizations, and small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if a rule designating critical habitat would affect a 
substantial number of small entities, we consider the number of small 
entities affected within particular types of economic activities (e.g., 
housing development, grazing, oil and gas production, timber 
harvesting, etc.). We apply the ``substantial number'' test 
individually to each industry to determine if certification is 
appropriate. In some circumstances, especially with proposed critical 
habitat designations of very limited extent, we may aggregate across 
all industries and consider whether the total number of small entities 
affected is substantial. In estimating the numbers of small entities 
potentially affected, we also consider whether their activities have 
any Federal involvement; some kinds of activities are unlikely to have 
any Federal involvement and so will not be affected by critical habitat 
designation.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies; private or State activities 
are not affected by the designation unless they have a Federal nexus. 
If the listing of these species is finalized, Federal agencies will be 
required to consult with us under section 7 of the Act on activities 
that they fund, permit, or implement that may affect Roswell 
springsnail, Koster's tryonia, Noel's amphipod or Pecos assiminea. If 
this proposed critical habitat designation is finalized, Federal 
agencies must also consult with us if their activities may affect 
designated critical habitat. However, we do not believe this will 
result in any significant additional regulatory burden on Federal 
agencies or their applicants because consultation would already be 
required due to the presence of these species that are proposed for 
listing, and the duty to avoid adverse modification of critical habitat 
would not trigger additional regulatory impacts beyond the duty to 
avoid jeopardizing the species.
    Because these species have not been listed, there is no history of 
consultations. Therefore, for the purposes of this review and 
certification under the Regulatory Flexibility Act, we are assuming 
that any future consultations in the area proposed as critical habitat 
will be due to the listing and critical habitat designation. The areas 
where critical habitat designations are being proposed are largely 
being managed for the benefit of wildlife. Projected land uses for the 
majority of the proposed critical habitat consists of habitat 
improvement projects (i.e., exotic weed control and prescribed 
burning), wildlife management, and recreational use (i.e., hunting, 
bird watching, and hiking).
    On non-federal lands, activities that lack Federal involvement 
would not be affected by the critical habitat designation. Activities 
of an economic nature that are most likely to occur on non-federal 
lands in the area encompassed by this proposed designation are 
recreation-related activities (i.e., hiking, trail construction, 
hunting, bird watching, and fishing). Oil and gas development and 
agricultural uses are also potential activities which could occur on 
private lands proposed as critical habitat in this designation. 
However, we do not expect the economic development of these lands 
through oil and gas or agricultural uses to be likely because these 
lands are currently owned by The Nature Conservancy and are managed as 
nature preserves to benefit wildlife and plant species. Land use 
outside of the proposed critical habitat designation that surrounds the 
Diamond Y Springs Complex is predominantly ranching and irrigated 
farming. We also do not expect the economic development of these

[[Page 6472]]

lands through agricultural uses to be likely because existing water 
rights are already established in this area and the use of chemical 
insecticides or herbicides carried out in accordance with the label 
directions would not result in a significant economic effect.
    This proposed designation of critical habitat would not affect a 
substantial number of small entities currently involved in oil 
production. Prohibitions on oil and gas development or exploration are 
not anticipated. Conservation measures or stipulations to future 
permits and leases may be necessary to prevent contamination of water 
resources; however, these measures and stipulations should not result 
in significant economic hardship to a substantial number of small 
entities. We are not aware of a significant number of future activities 
that would require Federal permitting or authorization; therefore, we 
conclude that the proposed rule would not affect a substantial number 
of small entities involved in oil production.
    We also considered the likelihood that this proposed designation of 
critical habitat would result in significant economic impacts to small 
entities. In general, two different mechanisms in section 7 
consultations could lead to additional regulatory requirements for 
small entities who are usually applicants for Federal permits. First, 
if we conclude, in a biological opinion, that a proposed action is 
likely to jeopardize the continued existence of a species or adversely 
modify its critical habitat, we can offer ``reasonable and prudent 
alternatives.'' Reasonable and prudent alternatives are alternative 
actions that can be implemented in a manner consistent with the scope 
of the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that would avoid 
jeopardizing the continued existence of listed species or resulting in 
adverse modification of critical habitat. A Federal agency and an 
applicant may elect to implement a reasonable and prudent alternative 
associated with a biological opinion that has found jeopardy or adverse 
modification of critical habitat. An agency or applicant could 
alternatively choose to seek an exemption from the requirements of the 
Act or proceed without implementing the reasonable and prudent 
alternative. However, unless an exemption were obtained, the Federal 
agency or applicant would be at risk of violating section 7(a)(2) of 
the Act if it chose to proceed without implementing the reasonable and 
prudent alternatives. Secondly, if we find that a proposed action is 
not likely to jeopardize the continued existence of a listed species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with section 7 consultations for all listed 
species, virtually all projects--including those that, in their initial 
proposed form, would result in jeopardy or adverse modification 
determinations in section 7 consultations--can be implemented 
successfully with, at most, the adoption of reasonable and prudent 
alternatives. These measures must be economically feasible and within 
the scope of authority of the Federal agency involved in the 
consultation. As we have no consultation history for these springsnails 
and amphipod, we can only describe the general kinds of actions that 
may be identified in future reasonable and prudent alternatives. These 
are based on our understanding of the needs of the species and the 
threats they face. The kinds of actions that may be included in future 
reasonable and prudent alternatives include monitoring of water 
contamination and measures to prevent contamination, such as 
stipulations on permits to drill for natural gas or oil, control of 
exotic weeds in spring areas, and suspended or restricted use of 
pesticides or herbicides in areas occupied by and necessary to the 
survival and recovery of these species. Because recommended reasonable 
and prudent alternative measures must be economically feasible, these 
measures are not likely to result in a significant economic impact to a 
substantial number of small entities.
    As required under section 4(b)(2) of the Act, we will conduct an 
analysis of the potential economic impacts of this proposed critical 
habitat designation, and will make that analysis available for public 
review and comment before finalizing this designation. However, court 
deadlines require us to publish this proposed rule before the economic 
analysis can be completed.
    In summary, we have considered whether this proposed designation of 
critical habitat would result in a significant economic effect on a 
substantial number of small entities. It would not affect a substantial 
number of small entities. Many of the parcels within this designation 
are located in areas where likely future land uses would not be 
affected by designation of critical habitat. As discussed earlier, the 
private parcels within the proposed designation are currently being 
managed for the benefit of wildlife and, therefore, are not likely to 
require any Federal authorization. In the remaining areas, Federal 
involvement--and thus section 7 consultations, the only trigger for 
economic impact due to the proposed designation of critical habitat--
would be limited to a subset of the area proposed. The most likely 
future section 7 consultations resulting from this rule would be for 
habitat improvement projects (i.e., invasive species control or 
prescribed burning), oil and gas development or exploration permitting, 
and activities which may result in the depletion of underground water 
sources or contamination of the underground aquifer. The proposed 
designation of critical habitat would result in project modifications 
only when proposed Federal activities, or non-Federal activities with a 
Federal nexus, would destroy or adversely modify critical habitat. 
While this may occur, it is not expected frequently enough to affect a 
substantial number of small entities. Even when it does occur, we do 
not expect it to result in a significant economic impact, as the 
measures included in reasonable and prudent alternatives must be 
economically feasible and consistent with the proposed action. 
Therefore, we are certifying that the proposed designation of critical 
habitat for the Roswell springsnail, Koster's tryonia, Noel's amphipod 
and Pecos assiminea will not have a significant economic impact on a 
substantial number of small entities, and an initial regulatory 
flexibility analysis is not required.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Although this proposed designation of critical habitat is a significant 
regulatory action under Executive Order 12866, it is not expected to 
significantly affect energy supplies, distribution, or use. 
Prohibitions to carry out energy development or exploration are not 
anticipated as a result of this action either within the proposed 
designation or within the larger supporting aquifer systems. Based on 
our experience with section 7 consultations for all listed species, 
virtually all projects--including

[[Page 6473]]

those that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures must be economically feasible and 
within the scope of authority of the Federal agency involved in the 
consultation. As we have no consultation history for these springsnails 
and amphipod, we can only describe the general kinds of actions that 
may be identified in future reasonable and prudent alternatives. These 
are based on our understanding of the needs of the species and the 
threats they face. The kinds of actions that may be included in future 
reasonable and prudent alternatives for energy development include 
monitoring of water contamination and measures to prevent 
contamination. Stipulations on permits to drill for natural gas or oil 
and mineral leases may be necessary, in some circumstances, to protect 
aquatic habitat from contamination or degradation. However, these 
measures and stipulations should not result in significant negative 
impacts to energy supplies, distribution or use. Energy development 
within the proposed critical habitat designation is very unlikely given 
current land ownership. Future development and exploration beyond that 
which currently exists on the Refuge are also unlikely as no additional 
mineral leases are available that have not already been developed and/
or abandoned. Therefore, this action is not a significant energy action 
and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any of their 
actions involving Federal funding or authorization must not destroy or 
adversely modify the critical habitat or take these species under 
section 9.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act).

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of the 
proposed listing and designation of critical habitat for these 4 
species. The takings implications assessment concludes that this 
proposed rule does not pose significant takings implications. A copy of 
this assessment is available by contacting the New Mexico Ecological 
Services Field Office (see ADDRESSES section).

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposal 
with appropriate resource agencies in New Mexico and Texas (i.e., 
during the prior 90-day finding comment period and on an annual basis 
with the New Mexico Department of Game and Fish). We will continue to 
coordinate any future listing decisions or designation of critical 
habitat for the three springsnails and the amphipod with the 
appropriate Federal, State, and local agencies. Designation of critical 
habitat only affects activities conducted, funded, or permitted by 
Federal agencies; non-Federal activities are not affected by the 
designation if they lack Federal involvement. In areas occupied by the 
Roswell springsnail, Koster's tryonia, Noel's amphipod, and Pecos 
assiminea, Federal agencies funding, permitting, or implementing 
activities will be required, if these species are listed, through 
consultation with us under section 7 of the Act, to avoid jeopardizing 
their continued existence. If this critical habitat designation is 
finalized, Federal agencies also must ensure, also through consultation 
with us, that their activities do not destroy or adversely modify 
designated critical habitat.
    In unoccupied areas, or areas of uncertain occupancy, designation 
of critical habitat could trigger additional review of Federal 
activities under section 7 of the Act, and may result in additional 
requirements on Federal activities to avoid destroying or adversely 
modifying critical habitat. Any development that lacked Federal 
involvement would not be affected by the critical habitat designation. 
Should a federally funded, permitted, or implemented project be 
proposed that may affect designated critical habitat, we will work with 
the Federal action agency and any applicant, through section 7 
consultation, to identify ways to implement the proposed project while 
minimizing or avoiding any adverse effect to the species or critical 
habitat. In our experience, the vast majority of such projects can be 
successfully implemented with at most minor changes that avoid 
significant economic impacts to project proponents.
    The designations may have some benefit to these governments in that 
the areas essential to the conservation of these species are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the survival of these species are specifically identified. 
While our making this definition and identification does not alter 
where and what federally sponsored activities may occur, these 
determinations may assist these local governments in long-range 
planning (rather than waiting for case-by-case section 7 consultations 
to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule would not unduly burden the 
judicial system and would meet the requirements of sections 3(a) and 
3(b)(2) of the Order. We propose to list these four species and 
designate critical habitat in accordance with the provisions of the 
Act. The rule uses standard property descriptions and identifies the 
primary constituent elements within the designated areas to assist the 
public in understanding the habitat needs of the springsnails and the 
amphipod.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. This rule will not impose new record-keeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996). However, when the range of the species 
includes States within the Tenth Circuit, such as that of the 
springsnails,

[[Page 6474]]

pursuant to the Tenth Circuit ruling in Catron County Board of 
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th 
Cir. 1996), we will undertake a NEPA analysis for critical habitat 
designation and notify the public of the availability of the draft 
environmental assessment for this proposal when it is finished.

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), E.O. 13175, and the Department of the 
Interior's requirement at 512 DM 2, we understand that recognized 
Federal Tribes must be related to on a Government-to-Government basis. 
We are not aware of any Tribal lands essential for the conservation of 
the four invertebrates. Therefore, we are not proposing to designate 
critical habitat for these species on Tribal lands. Additionally, the 
proposed designation does not contain any lands that we have identified 
as impacting Tribal trust resources.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the New Mexico Ecological Services Field 
Office (see ADDRESSES section).

Author

    The primary authors of this proposed rule are the New Mexico 
Ecological Services Field Office staff (see ADDRESSES section) 
(telephone 505/346-2525).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. Amend Sec. 17.11(h) as follows:
    a. Add Koster's tryonia snail, Pecos assiminea snail, and Roswell 
springsnail in alphabetical order under ``SNAILS''; and
    b. Add Noel's amphipod under ``CRUSTACEANS'', to the List of 
Endangered and Threatened Wildlife to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                               Vertebrate
-------------------------------------------------------                       population
                                                                                where                                                          Special
                                                           Historic range     endangered      Status      When listed    Critical habitat       rules
           Common name               Scientific name                              or
                                                                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Snails
 
 
                   *                  *                  *                  *                  *                  *                  *
Snail, Koster's tryonia..........  Tryonia kosteri....  U.S.A. (NM)........           NA  E               ...........  17.95(f)............           NA
 
 
                   *                  *                  *                  *                  *                  *                  *
Snail, Pecos assiminea...........  Assiminea pecos....  U.S.A. (NM, TX),              NA  ..............            E  17.95(f)............           NA
                                                         Mexico.
 
 
                   *                  *                  *                  *                  *                  *                  *
Springsnail, Roswell.............  Pyrgulopsis          U.S.A. (NM)........           NA  E               ...........  17.95(f)............           NA
                                    (=Fontelicella)
                                    roswellensis.
 
 
                   *                  *                  *                  *                  *                  *                  *
           Crustaceans
 
 
                   *                  *                  *                  *                  *                  *                  *
Amphipod, Noel's.................  Gammarus desperatus  U.S.A. (NM)........           NA  E               ...........  17.95(h)............           NA
 
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95 as follows:
    a. In paragraph (f), add critical habitat for Koster's tryonia, 
Pecos assiminea, and Roswell springsnail; and
    b. In paragraph (h), add critical habitat for Noel's amphipod, in 
the same alphabetical order as these species occur in Sec. 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and snails.
* * * * *

Koster's tryonia (Tryonia kosteri)

    1. Critical habitat is depicted for the Koster's tryonia in 
Chaves County, NM, at the Bitter Lake National Wildlife Refuge and 
Sago Springs, Bitter Creek, the adjacent gypsum sinkholes, portions 
of impoundments 3, 5, 6, 7, 15, and Hunter Marsh, on the map and as 
described below. The described proposed designation includes all 
springs, seeps, sinkholes, and outflows surrounding Bitter Creek, 
Refuge impoundments, and the Sago Springs complex. Legal 
description: USGS 7.5 minute quad-Bitter Lake, N.Mex., T10S, R25E, 
NW\1/4\ NE\1/4\, SE\1/4\ NE\1/4\, E\1/2\ SE\1/4\ Section 9; E\1/2\ 
NE\1/4\, SW\1/4\ NE\1/4\, W\1/2\ SE\1/4\ Section 16; E \1/2\ NW\1/
4\, SW\1/4\ NW\1/4\, NW\1/4\ NE\1/4\, N\1/2\ NW\1/4\, N\1/2\ SW\1/4\ 
Section 21; N\1/2\ SE\1/4\ Section 20; E\1/2\ NE\1/4\, NE\1/4\ NE\1/
4\ Section 29; NW\1/4\ SW\1/4\. T9S, R25E, SE\1/4\ NE\1/4\, SE\1/4\,

[[Page 6475]]

SE\1/4\ SW\1/4\ Section 32. T10S, R25E NE\1/4\, E\1/2\ NW\1/4\, N\1/
2\ SE\1/4\, SE\1/4\ SE\1/4\ Section 5, W\1/2\ SW\1/4\.
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[[Page 6476]]


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    2. Within these areas, the primary constituent elements include 
permanent, flowing, unpolluted fresh to moderately saline water; 
slow to moderate velocities of water over substrates (a surface on 
which a plant or animal grows or is attached) ranging from deep 
organic silts to limestone cobble and gypsum substrates; presence of 
algae, submergent vegetation, and detritus in the substrata; water 
temperatures in the approximate range of 10-20 degrees Centigrade 
(50-68 degrees Fahrenheit) with natural diurnal and seasonal 
variation slightly above and below that range.
* * * * *

Pecos assiminea (Assiminea pecos)

    1. A portion of the critical habitat for the Pecos assiminea is 
located in paragraph (f) of this section within the text for the 
Koster's tryonia. These species occur together, and critical habitat 
and the primary constituent elements are identical for these snails. 
In addition, critical habitat is depicted for the Pecos assiminea in 
Pecos County, TX, at the Diamond Y Springs complex. The proposed 
designation includes the Diamond Y Spring, which is located at UTM 
13-698261 E, 3431372 N and approximately 6.8 km (4.2 mi) of its 
outflow ending at approximately UTM 13-701832 E, 3436112 N, about 
0.8 km (0.5 mi) downstream of the State Highway 18 bridge crossing. 
Also included is approximately 0.8 km (0.5 mi) of Leon Creek 
upstream of the confluence with Diamond Y Draw. All surrounding 
riparian vegetation and mesic soil environments within the spring, 
outflow and portion of Leon Creek are also proposed for designation 
as these areas are considered habitat for the Pecos assiminea. 
Critical habitat is also depicted for the Pecos assiminea in Reeves 
County, TX, at the East Sandia Spring complex. East Sandia Spring is 
located at UTM 13-698266 E, 3431347 N. The proposed designation 
includes the springhead itself, surrounding seeps and all submergent 
vegetation and moist soil habitat found at the margins of these 
areas. These areas are considered habitat for the Pecos assiminea.


[[Page 6477]]


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[[Page 6478]]

[GRAPHIC] [TIFF OMITTED] TP12FE02.008

    2. The primary constituent elements of critical habitat for 
Pecos assiminea are found in paragraph (f) of this section within 
the text for Koster's tryonia. In addition, Pecos assiminea requires 
moist soil at stream or

[[Page 6479]]

spring run margins with hydrophytic vegetation such as salt grass or 
sedges.

Roswell springsnail (Pyrgulopsis roswellensis)

    The critical habitat map and description for the Roswell 
springsnail is located in paragraph (f) of this section within the 
text for the Koster's tryonia. These species occur together and 
critical habitat and the primary constituent elements are identical 
for these snails.
* * * * *
    (h) Crustaceans.
* * * * *

Noel's amphipod (Gammarus desperatus)

    The critical habitat map and description, including the primary 
constituent elements, for the Noel's amphipod is located in 
paragraph (f) of this section, within the text for the Koster's 
tryonia. These species occur together, and critical habitat and the 
primary constituent elements are identical for this snail and the 
Noel's amphipod.


    Dated: January 29, 2002.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-3140 Filed 2-11-02; 8:45 am]
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