[Federal Register Volume 72, Number 136 (Tuesday, July 17, 2007)]
[Rules and Regulations]
[Pages 39248-39283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3267]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Peck's Cave Amphipod, Comal Springs Dryopid Beetle, and
Comal Springs Riffle Beetle; Final Rule
Federal Register / Vol. 72 , No. 136 / Tuesday, July 17, 2007 / Rules
and Regulations
[[Page 39248]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU75
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Peck's Cave Amphipod, Comal Springs Dryopid
Beetle, and Comal Springs Riffle Beetle
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating critical habitat for the Peck's cave amphipod (Stygobromus
pecki), Comal Springs dryopid beetle (Stygoparnus comalensis), and
Comal Springs riffle beetle (Heterelmis comalensis) in areas of
occupied, spring-related aquatic habitat in Texas under the Endangered
Species Act of 1973, as amended (Act). The three listed species are
known only from four spring systems in central Texas: Comal Springs and
Hueco Springs in Comal County, and Fern Bank Springs and San Marcos
Springs in Hays County. The total area designated as critical habitat
for the amphipod is about 38.5 acres (ac) (15.6 hectares (ha)), for the
dryopid beetle it is about 39.5 ac (16.0 ha), and for the riffle beetle
it is about 30.3 ac (12.3 ha).
DATES: This rule becomes effective on August 16, 2007.
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor,
Austin Ecological Services Office, 10711 Burnet Road, Suite 200,
Austin, TX 78758 (telephone 512-490-0057; facsimile 512-490-0974).
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this rule. For more information
on these species, refer to the final rule listing the Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
that was published in the Federal Register on December 18, 1997 (62 FR
66295).
All three of the listed species included in this final rule for
critical habitat designation are freshwater invertebrates. The Peck's
cave amphipod is an eyeless, subterranean (below ground) arthropod that
has been found in Comal Springs and Hueco Springs (also spelled Waco
Springs). Both spring systems are located in Comal County, Texas. The
Comal Springs dryopid beetle is a subterranean insect with vestigial
(poorly developed, non-functional) eyes. The species has been found in
two spring systems, Comal Springs and Fern Bank Springs, that are
located in Comal and Hays Counties, respectively. The Comal Springs
riffle beetle is an aquatic insect that is found in and primarily
restricted to surface water associated with Comal Springs in Comal
County and with San Marcos Springs in Hays County.
The four spring systems (Comal, Fern Bank, Hueco, and San Marcos)
designated as critical habitat units are produced by discharge of
aquifer spring water along the Balcones fault zone at the edge of the
Edwards Plateau in central Texas. The source of water flows for Comal
Springs and San Marcos Springs is the San Antonio segment of the
Edwards Aquifer. This aquifer is characterized by highly varied, below
ground spaces that have been hollowed out within limestone bedrock
through dissolution by rainwater. Groundwater is held and conveyed
within these hollowed-out spaces, which range in size from honeycomb-
like pores to large caverns. The San Antonio segment of the aquifer
occurs in a crescent-shaped section over a distance of 176 miles (mi)
(283 kilometers (km)), from the town of Brackettville in Kinney County
on the segment's west side over to the town of Kyle in Hays County at
the segment's northeast side. Groundwater generally moves from recharge
areas in the southwest part of the San Antonio segment and travels
toward discharge areas in the northeast part of the segment, which
includes Comal Springs and San Marcos Springs. The area that recharges
groundwater coming to Comal Springs may occur as much as 62 mi (100 km)
away from the springs (Brune 1981, p. 130). Hueco Springs is recharged
locally from the local watershed basin and possibly by the San Antonio
segment of the Edwards Aquifer (Guyton and Associates 1979, p. 2). The
source of water for Fern Bank Springs has not been determined. Fern
Bank Springs discharges water from the upper member of the Glen Rose
Formation, and its flow could originate primarily from that unit;
however, water discharged from the springs could also be (1) Drainage
from the nearby Edwards Aquifer recharge zone, (2) water lost from the
Blanco River, or (3) a combination of all three sources (Veni 2006,
p.1).
Comal Springs and San Marcos Springs are the two largest spring
systems in Texas with respective mean annual flows of 284 and 170 cubic
feet per second (8 and 5 cubic meters per second) (Fahlquist and
Slattery 1997, p. 1; Slattery and Fahlquist 1997, p. 1). Both spring
systems emerge as a series of spring outlets along the Balcones fault
that follows the edge of the Edwards Plateau in Texas. Fern Bank
Springs and Hueco Springs have considerably smaller flows and consist
of one main spring with several satellite springs or seep areas.
The four spring systems designated for critical habitat are
characterized by high water quality and relatively constant water
flows, with temperatures that range from 68 to 75 [deg]F (Fahrenheit)
(20 to 24 [deg]C (Celsius)). Due to the underlying limestone aquifer,
discharged water from these springs has a carbonate chemistry (Ogden et
al. 1986, p. 103). Although flows from San Marcos Springs can vary
according to fluctuations in the source aquifer, records indicate that
this spring system has never ceased flowing. San Marcos Springs has
been monitored since 1894, and has exhibited the greatest flow
dependability of any major spring system in central Texas (Puente 1976,
p. 27). Comal Springs has a flow record nearly comparable to that of
San Marcos Springs; however, Comal Springs ceased flowing from June 13
to November 3, 1956, during a severe drought (U.S. Army Corps of
Engineers 1965, p. 59). Water pumping from the aquifer contributed to
cessation of flow at Comal Springs during the drought period (U.S. Army
Corps of Engineers 1965, p. 59). Hueco Springs has gone dry a number of
times in the past during drought periods (Puente 1976, p. 27; Guyton
and Associates 1979, p. 46). Although flow records are unavailable for
Fern Bank Springs, the spring system is considered to be perennial
(Barr 1993, p. 39).
Each of the four spring systems and related subterranean aquifers
typically provide adequate resources to sustain life cycle functions
for resident populations of the Peck's cave amphipod, Comal Springs
dryopid beetle, and Comal Springs riffle beetle. However, a primary
threat to the three invertebrate species is the potential failure of
spring flow due to drought or excessive groundwater pumping, which
could result in loss of aquatic habitat for the species. Although these
invertebrate species persisted at Comal Springs in the 1950s despite
drought conditions (Bowles et al. 2003, p. 379), all three species are
aquatic and require water to complete their individual life cycles.
Bowles et al. (2003, p. 379) pointed out that the mechanism by
which the Comal Springs riffle beetle survived the drought and the
extent to which its population was negatively impacted are
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uncertain. Bowles et al. (2003, p. 379) speculated that the riffle
beetle may be able to retreat back into spring openings or burrow down
to wet areas below the surface of the streambed.
Barr (1993, p. 55) found Comal Springs dryopid beetles in spring
flows with low volume discharge as well as high volume discharge and
suggested that presence of the species did not necessarily depend on a
high spring flow. However, Barr (1993, p. 61) noted that effects on
both subterranean species (dryopid beetle and amphipod) from extended
loss of spring flow and low aquifer levels could not be predicted due
to limited knowledge about their life cycles.
Previous Federal Actions
Information about previous Federal actions for Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
can be found in our proposal to designate critical habitat for these
species published in the Federal Register on July 17, 2006 (71 FR
40588). On March 16, 2007, we announced the availability of our draft
economic analysis, and we reopened the public comment period on the
proposed rule (72 FR 12585). The reopened public comment period ended
on April 16, 2007.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for Peck's cave amphipod, Comal Springs
dryopid beetle, and Comal Springs riffle beetle in the proposed rule
published on July 17, 2006 (71 FR 40588) and in our March 16, 2007,
Federal Register notice (72 FR 12585). We also contacted appropriate
Federal, State, and local agencies; scientific organizations; and other
interested parties and invited them to comment on the proposed rule.
During the comment period that opened on July 17, 2006, and closed
on September 15, 2006, we received eight responses directly addressing
the proposed critical habitat designation: four from peer reviewers,
one from a State agency, and three from organizations or individuals.
The response we received from the State agency, the Texas Department of
Transportation, indicated that the proposed critical habitat
designations for these species were ``prudently identified'' by the
Service. However, that agency did not offer any other comments. After
completing the draft economic analysis, we reopened the comment period
between March 16, 2007, and April 16, 2007 (72 FR 12585). During the
second comment period, we received one comment from a peer reviewer and
four from organizations; two of which included comments on the economic
analysis. Responses to all comments were grouped by those from peer
reviewers, followed by public comments. These comments are addressed in
the following summary and incorporated into the final rule as
appropriate. We did not receive any requests for a public hearing and
thus no public hearing was held.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from nine knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occur, and
conservation biology principles. We received responses from four of the
peer reviewers. Although none of the peer reviewers disagreed with our
methods in designating critical habitat for the Peck's cave amphipod,
Comal Springs dryopid beetle, and Comal Springs riffle beetle, three of
the responses indicated that the critical habitat designation failed to
address the broader issue of maintaining spring flows, ecosystem
functioning, and groundwater levels within the Edwards Aquifer. Also,
two of the peer reviewers disagreed with the reasoning we presented in
our determination of Primary Constituent Element (PCE) 4. Three of the
peer reviewers' responses provided additional information,
clarifications, and suggestions to improve the final critical habitat
rule. We address peer reviewer comments in the following summary and
have incorporated them into the final rule as appropriate.
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the Peck's cave amphipod, Comal Springs dryopid beetle, and
Comal Springs riffle beetle, and address them in the following summary.
Peer Reviewer Comments
1. Comment: One of the critical factors affecting the Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
is continued natural spring flows. Adequate or minimum spring flows
should be included as a PCE.
Our Response: We agree that adequate water quantity is necessary
for the survival of the three invertebrate species. We indicated that
availability and access to water at the spring sites are important
factors in maintaining the life history functions of the Peck's cave
amphipod, the Comal Springs dryopid beetle, and the Comal Springs
riffle beetle by highlighting the role of water in the descriptions of
PCEs 1, 2, and 3 of this final rule. We clarified the language for PCE
3 to highlight the importance of spring flows in maintaining adequate
dissolved oxygen levels. We also state in the Special Management
Considerations section of this rule that prolonged cessation of spring
flows as a result of the loss of hydrological connectivity within the
aquifer may require special management considerations, such as
maintenance of sustainable groundwater use and subsurface flows.
2. Comment: PCE 5 should be corrected to indicate that the
substrate habitat of the Peck's cave amphipod, Comal Springs dryopid
beetle, and Comal Springs riffle beetle should also be free of sand and
silt.
Our Response: We incorporated this suggestion into PCE 5.
3. Comment: Riparian vegetation in the immediate vicinity of the
spring openings are likely not the food source for any of the three
invertebrate species, as described in PCE 4. Aquatic invertebrates
typically feed on plant material well after it has been mechanically
broken down. Flow in the vicinity of spring openings would quickly
carry away leaf litter and other plant material before it could become
mechanically broken down. The detritus that comprises the food source
for the Comal Springs dryopid beetle is most likely introduced into the
aquifer at recharge points far upstream of the spring openings (i.e.,
within the recharge area of the aquifer). Similarly, the food source
for the Peck's cave amphipod is likely found within the Edwards
Aquifer. Specifically, the food source may be composed of material that
enters through the recharge area of the aquifer and the many other
organisms that co-occur within the aquifer. Aquatic macrophyte (i.e.,
large plant) roots may be a source of detritus for invertebrates in a
spring-run downstream of a spring opening. However, the roots are
likely not the food sources for the Peck's cave amphipod, because the
amphipod is found only near the spring openings and within the aquifer.
Because the riparian habitats around the springs are likely not
influencing these three species, the critical habitat designations only
represent the smallest part of their habitats or range.
Our Response: The Comal Springs dryopid beetle has only been
observed near spring outlets. Adults have been
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found on rocks and cotton cloth lures in spring openings. They have
also been observed on rotting wood above spring upwellings near tree
roots growing just under the gravel substrate more than 16 feet (ft) (5
meters (m)) from the shore of Landa Lake (Gibson et al. 2006, p. 3).
Larvae of this species do not have gills and are considered
terrestrial, as they typically inhabit moist soil along stream banks
(Brown 1987, p. 253; Ulrich 1986, p. 325). Because of these
characteristics, we believe Comal Springs dryopid beetle larvae feed on
roots and decaying vegetation in areas just above the aquifer (i.e.,
subsurface area) water line. We believe the Peck's cave amphipod likely
consumes both animals and plants, and feeds both within the aquifer and
on detritus in areas near spring outlets where plant roots interface
with spring water (Gibson 2006, p. 1). Therefore, we believe critical
habitat should include the riparian vegetation as a food source for the
Peck's cave amphipod and Comal Springs dryopid beetle.
4. Comment: The designation of 50-ft distances around spring
openings seems reasonable to protect and maintain the subsurface
vegetation profile in the immediate area of the springs; however, the
detrital food base could come from sources at greater distances.
Our Response: Although there may be some contribution of detrital
food sources from greater distances within the aquifer, we are unaware
of any data that indicate this. As explained in our response to Comment
3 above, there is available information that suggests that riparian
vegetation near the spring openings is an important habitat component
for the Peck's cave amphipod, Comal Springs dryopid beetle, and Comal
Springs riffle beetle, and may provide a source of food for these
species.
5. Comment: Under PCE 1, the pesticides mentioned only refer to
classes such as organochlorines, organophosphates, and chlorinated
hydrocarbons. The Service should consider pesticide classes such as
insect growth regulators as well as pharmaceuticals that could enter
groundwater sources. The Service should clarify the differences between
these compounds and their potential effects on the listed species.
Our Response: We have added pharmaceuticals to the list of
potential pollutants discussed under PCE 1 in response to this comment.
There are no scientific studies available on the potential effects that
each of these pollutants have on the Peck's cave amphipod, Comal
Springs dryopid beetle, and Comal Springs riffle beetle, so we are
unable to address the potential effects of these pollutants in the
final rule. We acknowledge the importance of maintaining high water
quality within the Edwards Aquifer, and we will work to evaluate and
address the effects of pollutants during the recovery planning and
implementation processes for these species.
6. Comment: With regard to PCE 1, Hueco Springs and Fern Bank
Springs may be influenced by storm water. Can the claim be made that
the spring systems are characterized by high water quality?
Our Response: Spring systems in general may have some short-term
changes in water quality after storm events. Hueco Springs and Fern
Bank Springs are smaller in size and may have more local recharge
features than Comal Springs and San Marcos Springs. Although these
characteristics may make them more susceptible to short-term changes in
water quality after storm events, the Service has no data to indicate
that these temporary changes negatively affect the species that occur
near the spring openings. Comal and San Marcos Springs may also be
affected by local runoff from storm events based on tracer tests by the
Edwards Aquifer Authority. We consider all of the spring systems
occupied by the Peck's cave amphipod, Comal Springs dryopid beetle, and
Comal Springs riffle beetle to have high water quality.
7. Comment: There is a strong likelihood that additional
populations of the Comal Springs riffle beetle occur in or around the
various spring outlets in the bottoms of Spring Lake and Landa Lake,
where substrate is sufficiently coarse to serve as habitat.
Our Response: We believe this is addressed through the designation
of all aquatic habitat within Landa Lake where springs are present and
PCEs are known to exist for the Peck's cave amphipod and Comal Springs
dryopid beetle. However, this point was clarified in the Critical
Habitat Designation section of this final rule describing the
designated critical habitat areas within Landa Lake for the Comal
Springs Unit in Comal County, Texas.
8. Comment: Paragraph 8 under ``Adverse Modification Standard''
states that ``ongoing human activities that occur outside the proposed
critical habitat are unlikely to threaten the physical and biological
features of the proposed critical habitat.'' However, if there is an
increase in pumping water from the aquifer prior to the ruling on
critical habitat, then that new pumping may impact PCEs 2, 3, and 5.
Our Response: We agree with the commenter and have clarified the
language in the Effects of Critical Habitat Designation section that
groundwater pumping from the Edwards Aquifer may affect critical
habitat and require section 7 consultation.
9. Comment: The critical habitat designations may provide benefits
to the Peck's cave amphipod, Comal Springs dryopid beetle, and Comal
Springs riffle beetle on a local scale (i.e., in the immediate area of
the spring openings), but they do not offer protections to the Edwards
Aquifer ecosystem. Critical habitat for these species should be
extended to include the entire Edwards Aquifer, including subsurface
areas. Until parts of the Edwards Aquifer can be shown to not have
populations of these two species, the most sensible solution is to
assume that the entire aquifer is critical habitat. Also, there are
ecosystem processes (e.g., organic matter inputs, interactions with
other species, nutrient availability) that are not addressed by the
PCEs and may be addressed by designating the entire Edwards Aquifer.
Our Response: Organic matter and nutrient availability are
addressed in PCE 4. We recognize the importance of maintaining
ecosystem integrity and functionality and implementing strategies to
protect the entire Edwards Aquifer. However, we reviewed all available
information that pertains to the occurrence of the Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle
beetle. Although the Peck's cave amphipod and the Comal Springs dryopid
beetle are believed to be subterranean, we have no information
available to show that the entire Edwards Aquifer ecosystem is occupied
by the species. Nor do we believe the PCEs are found throughout the
aquifer. We cannot demonstrate that the entire aquifer is essential to
the conservation of the species. Although the entire aquifer has not
been designated as critical habitat, Federal activities outside of
designated critical habitat areas are subject to review under section 7
of the Act if these activities may adversely affect the PCEs within the
critical habitat designation.
10. Comment: The PCEs do nothing to safeguard the source of the
water--the Edwards Aquifer, upon which the invertebrates depend. A
comprehensive plan for the Edwards Aquifer with constraints on
groundwater pumping and pollution of recharge should be developed.
Our Response: Designating critical habitat is only one means to aid
in the habitat conservation of listed species. Efforts to address
threats to the Edwards Aquifer can be undertaken through the
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recovery implementation process for these and the other federally-
listed species that depend on the aquifer for their survival. For
example, we are working with a large number of partner agencies and
organizations, including the Edwards Aquifer Authority, to develop an
Edwards Aquifer Recovery Implementation Program (RIP) to address
threats to the Edwards Aquifer. The Edwards Aquifer Authority (EAA) is
the agency with the responsibility to manage, enhance, and protect the
Edwards Aquifer system through a variety of mechanisms including the
issuing of pumping permits for use of water from the aquifer. We intend
to continue our close work with the EAA and others for conservation of
the springs that flow from the Edwards Aquifer.
Public Comments
11. Comment: It seems imprudent to designate critical habitat for
the Peck's cave amphipod, Comal Springs dryopid beetle, and Comal
Springs riffle beetle, when this would provide no benefit to the
species beyond that provided by listing of the species and any
subsequent evaluation of activities in light of section 7 consultation
requirements.
Our Response: The Role of Critical Habitat in Actual Practice of
Administering and Implementing the Act section in the proposed rule has
been removed from this final rule. We recognize some benefits to
critical habitat designations. Federal activities outside of designated
critical habitat areas are subject to review under section 7 of the Act
if these activities may adversely affect the PCEs within the critical
habitat designation. The Ninth Circuit Court's decision in Gifford
Pinchot Task Force v. United States Fish and Wildlife Service, 378 F.3d
1059 (9th Cir 2004) (hereinafter Gifford Pinchot) requires
consideration of the recovery of species. Thus, under this court
ruling, and our implementation of Section 7 of the Act, critical
habitat designations may provide greater benefits to the recovery of a
species. Also, we have found that critical habitat designations serve
to educate landowners, State and local governments, and the public
regarding the potential conservation value of the areas designated.
12. Comment: This critical habitat designation is not beneficial,
especially in light of a recent initiation of a RIP for the endangered
species of the Edwards Aquifer under the encouragement of the Service.
Our Response: In designating critical habitat areas, we have
reviewed the overall approach to the conservation of the Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
undertaken by local, Federal, and State agencies; and by private
organizations operating within the species' range since their listing.
As noted above, we are very supportive of the RIP process; however,
this process is in its initial stages of development, and therefore we
were not able to consider the potential conservation benefits of the
RIP to these species in our critical habitat determination. Also, as
stated in our response to Comment 11 above, we recognize several
benefits to designating critical habitat.
13. Comment: In the Critical Habitat section of the proposed rule,
the Service understates the extent to which critical habitat
designations provide additional protection for species above and beyond
the prohibition of take that comes with federally listing species as
endangered or threatened. This approach is legally and scientifically
unsubstantiated, and it shortchanges the goals of the Act to provide
for the conservation and recovery of listed species.
Our Response: As discussed above, we agree that the designation of
critical habitat can serve positive purposes, but we also believe it is
only one tool for managing listed species' habitat. In addition to the
designation of critical habitat, we have determined that other
conservation mechanisms, including the recovery planning process,
section 6 funding to States, section 7 consultations, management plans,
Safe Harbor agreements, and other on-the-ground strategies, contribute
to species' conservation. We will continue to work with local partner
organizations (such as the Edwards Aquifer Authority, San Antonio Water
System, local municipalities, Texas Parks and Wildlife Department, and
others) through the RIP, to develop means for voluntary conservation of
habitats for these listed species. We believe these other conservation
measures often provide incentives for project planners and greater
conservation benefits than critical habitat designation.
14. Comment: There does not appear to be a clear correlation
between the needs of the Peck's cave amphipod, Comal Springs dryopid
beetle, and Comal Springs riffle beetle and particular spring flow
conditions to require such special management considerations.
Our Response: There is information to indicate that availability
and access to water at the spring sites are important factors in
maintaining the life history functions (i.e., those functions that are
dependent on high water quality, adequate water temperature, and
adequate dissolved oxygen levels) of the Peck's cave amphipod, Comal
Springs dryopid beetle, and Comal Springs riffle beetle, as described
under PCEs 1, 2, and 3. We believe that prolonged cessation of spring
flows as a result of the loss of hydrological connectivity within the
aquifer may require special management considerations, such as
maintenance of sustainable groundwater use and subsurface flows.
15. Comment: The proposed rule only designates as critical habitat
the aquatic areas where the Peck's cave amphipod, Comal Springs dryopid
beetle, and Comal Springs riffle beetle are found, plus a 50-ft
distance from the spring outlets. The proposed rule does nothing to
control water quality impacts from activities occurring in the
contributing and recharge zones of the aquifer, limiting the critical
habitat to only a 50-ft buffer beyond the spring outlets to protect the
species' food sources. Such a buffer would fail to protect the water
quality in the aquatic habitat. Typical buffers to protect water
quality tend to be at least 100 ft on each side of sensitive waters.
The critical habitat should likewise at least accommodate such extended
buffers to help protect water quality in the aquatic habitat.
Our Response: We proposed designating critical habitat in areas
that we have determined are occupied by the Peck's cave amphipod, Comal
Springs dryopid beetle, and Comal Springs riffle beetle; contain
sufficient PCEs to support life-history functions essential for the
conservation of the species; and require special management or
protection. The 50-ft (15.2-m) distances define the lateral extent of
critical habitat that contains PCEs with respect to food sources in
root/water interfaces. Use of a 100-ft (30.4-m) buffer for this
critical habitat designation would extend the boundary to include areas
not known to contain the PCEs; therefore, use of this larger buffer is
not consistent with the criteria used to identify critical habitat.
The designation of critical habitat requires Federal agencies to
consult with us when activities they fund, authorize, or carry out may
affect the critical habitat of a listed species. Consultation is
required where projects may (indirectly or directly) adversely affect
critical habitat, even if those projects occur outside designated
critical habitat (e.g., the contributing and recharge zones of the
aquifer).
16. Comment: The final rule should include the minimal spring flow
rates provided in the EAA's 2005 Draft Habitat Conservation Plan.
Our Response: The EAA's 2005 Draft Habitat Conservation Plan (HCP)
has not
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been finalized, nor have we issued a permit for the EAA. We have not
analyzed spring flow rates from the 2005 Draft HCP for effects to the
Peck's cave amphipod, Comal Springs dryopid beetle, and Comal Springs
riffle beetle. In addition, flow from Fern Bank Springs is from the
Trinity Aquifer, not the Edwards Aquifer. Thus, the draft EAA HCP does
not address the maintenance of Fern Bank Springs habitat and that
population of the Comal Springs dryopid beetle.
17. Comment: The economic analysis should include the benefits of
designating critical habitat for the invertebrate species. Without
estimating the benefits to designation, the costs seem unreasonably
high, and therefore paint the conservation effort in a negative light.
A full benefits analysis should include direct, indirect, and non-use
benefits.
Our Response: As stated in Chapter 1 of the final economic
analysis, a potential direct benefit of the rulemaking is the potential
to enhance conservation of the species. The published economics
literature has documented that social welfare benefits can result from
the conservation and recovery of endangered and threatened species.
However, in its guidance for implementing Executive Order 12866, OMB
acknowledges that it may not be feasible to monetize, or even quantify,
the benefits of environmental regulations due to either an absence of
defensible, relevant studies or a lack of resources on the implementing
agency's part to conduct new research. Rather than rely on economic
measures, we believe that the direct benefits of the proposed rule are
best expressed in biological terms that can be weighed against the
expected cost impacts of the rulemaking.
Where data are available, the economic analysis does discuss and
attempt to measure the net economic impacts of this rulemaking. For
example, Chapter 2 discusses the reduction in net economic benefit to
municipal and industrial water users that may occur with pumping
restrictions. The analysis also discusses the fact that higher
springflow levels are anticipated to contribute to river flows
downstream of the aquifer, which will make more water available to
municipalities, industries, and farmers who use river water. Whether
the users will use the water to an economic benefit depends on a myriad
of factors that are beyond the scope of the economic analysis; however,
the analysis notes that increased springflows are likely to generate
potentially significant ecological and/or recreational benefits.
18. Comment: Section 1.34(c) of the EAA Act of 1993, as amended,
notes that a ``holder of a permit for irrigation use may not lease more
than 50 percent of the irrigation rights initially permitted. The
user's remaining irrigation water rights must be used in accordance
with the original permit and must pass with transfer of the irrigated
land.'' Paragraph 83 of the economic analysis makes it unclear whether
this restriction on irrigation transfers was considered in the
analysis.
Our Response: The analysis predicts that water users, when faced
with lowered water permit availability, will sell or lease their water
rights to higher-valued uses. The value of water in the planning area
is assumed to rise faster than the profitability of irrigated crops,
and thus agricultural water will be traded from agriculture to
municipal and industrial use, as has been common in the western United
States. Despite the current restriction on the sale and lease of
irrigation rights in the Edwards Aquifer, the analysis assumes that the
Edwards Aquifer Authority will be able to purchase and retire
sufficient agricultural water rights for the purposes of maintaining
aquifer levels in the future. While this assumption was implicit in the
draft economic analysis, it is now stated explicitly in the final
economic analysis.
19. Comment: PCE 5 concludes that a gravel substrate is necessary
for the Comal Springs riffle beetle because specimens were not found in
Spring Run 4 where the substrate was primarily sand and not gravel. The
Service has drawn this conclusion from a preliminary correlation
reported in a study done by Bowles et al. (2003), and therefore, a
definitive conclusion may inaccurately represent the findings. A number
of abiotic and biotic factors, including flow rates, competition with
other species, and other life-history traits may all have been
contributing factors to the absence of the beetle in Spring Run 4.
Our Response: In reviewing the best available information, we found
that additional searches for the Comal Springs riffle beetle in Spring
Run 3 and the western shoreline habitat of Landa Lake yielded results
similar to those found by Bowles et al. (2003) with regard to the
occurrence of this species on gravel, cobble, and rock substrates
outside of areas with sedimentation or silt buildup (BIO-WEST 2002a, p.
11). We included this additional reference within the discussion of PCE
5. By referencing the survey results of Bowles et al. (2003), it was
not our intention to imply that the Comal Springs riffle beetle could
never be found in smaller sized substrates. Although we cannot
determine the full scope of substrate habitat restrictions for the
Comal Springs riffle beetle from the information provided in the above
referenced reports, it does indicate that gravel, cobble, and rock
substrates that are free of silt and sedimentation are essential
features of the habitat for this species.
20. Comment: ``Global warming'' is another impact to consider in
protecting water quantity in the habitat of the Peck's cave amphipod,
Comal Springs dryopid beetle, and Comal Springs riffle beetle. At least
one science team has predicted higher temperatures, and thus, higher
evaporation rates, and reduced rainfall for central Texas as a result
of global warming.
Our Response: We recognize that global climate change may affect
global temperatures, and that this in turn can cause other climatic
changes, such as changes in the amount and pattern of precipitation.
However, the consequences of such changes to the Peck's cave amphipod,
Comal Springs dryopid beetle, and Comal Springs riffle beetle are
unknown. We therefore believe this issue to be outside the scope of the
critical habitat designation for these species.
Summary of Changes From Proposed Rule
Based upon our review of the peer review and public comments,
economic analysis, and any new relevant information that may have
become available since the publication of the proposal, we reevaluated
our proposed critical habitat designation for the Peck's cave amphipod,
Comal Springs dryopid beetle, and Comal Springs riffle beetle. We made
no changes to the critical habitat designation as described in the
proposed rule. Other than minor clarifications and incorporation of
additional information on the species' biology, status, and threats,
this final rule differs from the proposal by the following:
(1) We modified the primary constituent elements for clarity and to
reflect additional information received during the public comment
period. Specifically we added, ``other compounds containing
surfactants'' and ``pharmaceuticals and veterinary medicines,'' under
the list of potential pollutants under PCE 1. Under PCE 3, we added the
phrase, ``that allows for adequate spring flows'' to clarify the intent
of the hydrologic regime. For PCE 4, we added, ``living plant material,
algae, fungi, bacteria and other
[[Page 39253]]
microorganisms,'' to the list of potential food items.
(2) We made technical corrections to some of the information found
in the Primary Constituent Elements, Background, and Criteria Used to
Identify Critical Habitat sections of this rule.
Critical Habitat
Critical habitat is defined in section 3 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 conservation of
the species. Conservation, as defined under section 3 of the Act means
to use and the use of all methods and procedures that are necessary to
bring any endangered species or threatened species to the point at
which the measures provided under the Act are no longer necessary. Such
methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 of the Act requires
consultation on Federal actions that are likely to result in the
destruction or adverse modification of critical habitat. The
designation of critical habitat does not affect land ownership or
establish a refuge, wilderness, reserve, preserve, or other
conservation area. Such designation does not allow government or public
access to private lands. Section 7 of the Act is a purely protective
measure and does not require implementation of restoration, recovery,
or enhancement measures.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are essential to the conservation of the species. Critical habitat
designations identify, to the extent known using the best scientific
data available, habitat areas that provide essential life cycle needs
of the species (i.e., areas on which are found the primary constituent
elements (PCEs), as defined at 50 CFR 424.12(b)).
Occupied habitat may be included in critical habitat only if the
essential features thereon may require special management or
protection. Furthermore, when the best available scientific data do not
demonstrate that the conservation needs of the species require
additional areas, we cannot designate critical habitat in areas outside
the geographical area occupied by the species at the time of listing.
However, an area currently occupied by the species but not occupied at
the time of listing, will likely be essential to the conservation of
the species and, therefore, may be included in the critical habitat
designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and Section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service biologists, to the
extent consistent with the Act and with the use of the best scientific
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information is generally the listing package for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge. All information is used in
accordance with the provisions of Section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available. 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, critical habitat designations do not signal that habitat
outside the designation is unimportant or may not be required for
recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy 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.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to designate as critical
habitat, we consider those physical and biological features (known as
primary constituent elements) that are essential to the conservation of
the species, and within areas occupied by the species at the time of
listing, that may require special management considerations or
protection. These include, but are not limited to: (1) Space for
individual and population growth, and for normal behavior; (2) food,
water, air, light, minerals, or other nutritional or physiological
requirements; (3) cover or shelter; (4) sites for breeding,
reproduction, and rearing (or development) of offspring; and (5)
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
The specific primary constituent elements required for the Peck's
cave amphipod, Comal Springs dryopid beetle, and Comal Springs riffle
beetle are derived from the biological needs of these species as
described in the Background section of this final rule and in the
December 18, 1997, final rule listing these species (62 FR 66295).
Pursuant to the Act and its implementing regulations, we are
required to identify the known physical
[[Page 39254]]
and biological features (PCEs) within the geographical area occupied at
the time of listing that are essential to the conservation of the
Peck's cave amphipod, Comal Springs dryopid beetle, and Comal Springs
riffle beetle, which may require special management considerations or
protections. All areas designated as critical habitat for Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
are occupied, within the species' historic geographic ranges, and
contain sufficient PCEs to support at least one life history function.
Based on our current knowledge of the life history, biology, and
ecology of these species, and the habitat requirements for sustaining
the essential life history functions of these species, we have
determined that the Peck's cave amphipod, Comal Springs dryopid beetle,
and Comal Springs riffle beetle require the PCEs described below. The
PCEs apply to all three species unless otherwise noted.
PCE 1. High-quality water with no or minimal levels of pollutants,
such as soaps and detergents (Brown 1987, p. 261) and other compounds
containing surfactants, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, pharmaceuticals and veterinary medicines, and
semi-volatile compounds, such as industrial cleaning agents, and
including:
(a) Low salinity with total dissolved solids that generally range
from about 307 to 368 milligrams per liter (mg/L); and
(b) Low turbidity that generally is less than 5 nephelometric
(measurement of turbidity in a water sample by passing light through
the sample and measuring the amount of the light that is deflected)
turbidity units (NTUs).
These spring-adapted aquatic species live in high-quality
unpolluted groundwater and spring outflows that have low levels of
salinity and turbidity. High-quality discharge water from springs and
adjacent subterranean areas also help sustain habitat components, such
as riparian vegetation, that are essential to the Peck's cave amphipod,
Comal Springs dryopid beetle, and Comal Springs riffle beetle. The two
beetle species are thought to require water with adequate levels of
dissolved oxygen for respiration (Brown 1987, p. 260; Arsuffi 1993, p.
18). Amphipods generally require relatively high concentrations of
oxygen and may serve as an indicator of good water quality (Arsuffi
1993, p. 15). While definitive studies on the limits of tolerance and
preference for these aquatic invertebrates have not been completed, the
aquatic invertebrates are exclusively found in aquatic habitats with
constant temperature, low salinity, low turbidity, and extremely low
levels of pollutants. In particular, respiration in the riffle beetle
may be inhibited by pollutants such as soaps and detergents that can
affect its respiratory mechanism (Brown 1987, p. 261). The dryopid
beetle may also be affected by these particular pollutants, since this
species shares a similar respiratory structure (Arsuffi 1993, p. 18).
However, biological tolerances for this species are not understood due
to its existence within a subterranean habitat.
Based on available literature, we believe that the PCE for high
water quality in the critical habitat for these species should have an
approximate range of salinity of about 307 to 368 mg/L and a turbidity
of less than 5 NTUs. Fahlquist and Slattery (1997, p. 3) reported a low
salinity (as measured by total dissolved solids) as low as 307 mg/L at
Comal Springs, and Slattery and Fahlquist (1997, p. 4) found that San
Marcos Springs had a low salinity of 328 mg/L. The two springs also
have a low turbidity of less than 5 NTUs (Fahlquist and Slattery 1997,
p. 3; Slattery and Fahlquist 1997, p. 4). Brune (1975, p. 94) reported
a salinity for Hueco Springs of 322 mg/L. The highest salinity (as
determined by analysis of total dissolved solids) that we have found
associated with any of these invertebrates was 368 mg/L, which was
reported from Fern Bank Springs on April 28, 2005 (Texas Water
Development Board 2006, p. 1).
PCE 2. Aquifer water temperatures that range from approximately 68
to 75 [deg]F (20 to 24 [deg]C).
The three listed invertebrate species complete their life cycle
functions within a relatively narrow temperature range; water
temperatures outside of this range could be harmful to these
invertebrates. The temperature of spring water emerging from the
Edwards Aquifer at Comal Springs and San Marcos Springs ordinarily
occurs within a narrow range of approximately 72 to 75 [deg]F (22 to 24
[deg]C) (Fahlquist and Slattery 1997, pp. 3-4; Groeger et al. 1997, pp.
282-283). Hueco Springs and Fern Bank Springs have temperature records
of 68 to 71 [deg]F (20 to 22 [deg]C) (George 1952, p. 52; Brune 1975,
p. 94; Texas Water Development Board 2006, p. 1).
PCE 3. A hydrologic regime that allows for adequate spring flows
that provide levels of dissolved oxygen in the approximate range of 4.0
to 10.0 mg/L for respiration of the Comal Springs riffle beetle and
Comal Springs dryopid beetle.
Respiration in most beetle species belonging to the family Elmidae
(which includes the Comal Springs riffle beetle) typically requires
flowing waters highly saturated with dissolved oxygen (Brown 1987, p.
260). As a consequence, riffle beetles are most commonly associated
with flowing water that has shallow riffles (small waves) or rapids
(Brown 1987, p. 253). Although there are not available data to support
a correlation between minimum spring flows and survival or other
sublethal, adverse effects of low or no spring flows on these species,
there is information to indicate that availability and access to water
at the spring sites are important factors in their respiration. For
example, riffle beetles are known to be restricted to waters with high
dissolved oxygen due to their reliance on a plastron (a thin sheet of
air) that is held next to the underside of the body surface by a mass
of minute, hydrophobic (tending to repel and not absorb water) hairs.
The plastron functions as a gill by allowing oxygen to diffuse
passively from water into the plastron and replace oxygen absorbed
during respiration (Brown 1987, p. 260). Beetle species in the Elmidae
family are generally limited to well-aerated water environments since
gaseous exchange with a plastron can actually be reversed in oxygen-
depleted waters (Brown 1987, p. 260; Ward 1992, p. 130). The Comal
Springs dryopid beetle also relies on a plastron for respiration, and
this beetle species may also be affected by changes in oxygen levels
caused by habitat modification (Arsuffi 1993, pp. 17-18).
PCE 4. Food supply that includes detritus (decomposed materials),
leaf litter, living plant material, algae, fungi, bacteria and other
microorganisms, and decaying roots.
Feeding ecology in the Elmidae family varies among species, but
most riffle beetles, as larvae and adults, feed on algae and detritus
scraped from the substrates within their habitat (Brown 1987, p. 262).
Specific food requirements for each of the three invertebrate species
are unknown. However, the Peck's cave amphipod and dryopid beetle are
most commonly found in areas where plant roots are inundated or
otherwise influenced by aquifer water. Potential food sources for all
three species in these areas include detritus (decomposed materials),
leaf litter, and decaying roots; however, it is possible that these
species feed on bacteria and fungi associated with decaying plant
material. Both beetle species may be detritivores (detritus-feeding
animals) that consume detrital materials in spring-influenced riparian
zones (Brown 1987, p. 262; Randy
[[Page 39255]]
Gibson 2006, pp. 1-2). The best information available indicates the
Peck's cave amphipod is an omnivore (a species capable of consuming
both animals and plants), which would enable the amphipod to exist as a
scavenger or predator inside the aquifer in addition to using detritus
in areas near spring outlets where plant roots interface with spring
water (Gibson 2006, p. 1).
Trees and shrubs in riparian areas adjacent to the spring system
may provide plant growth necessary to maintain food sources such as
decaying material for these invertebrates. Roots from trees and shrubs
in proximity to spring outlets are most likely to penetrate underground
down to the water pools, where these roots can serve as habitat for the
amphipod and dryopid beetle. We believe relatively intact riparian
areas with trees and shrubs may provide an important function within
areas designated for critical habitat of the two subterranean species.
According to patterns of plant canopies as determined from aerial
photographs, trees and shrubs (and their root systems) are generally
within 50 ft (15.2 m) of the edge of water in these spring systems.
PCE 5. Bottom substrate in surface water habitat of the Comal
Springs riffle beetle that is free of sand and silt, and is composed of
gravel and cobble ranging in size between 0.3 to 5.0 inches (in) (8-128
millimeters (mm)).
Although Comal Springs riffle beetles occur in conjunction with a
variety of bottom substrates in surface water habitat, Bowles et al.
(2003, p. 372) found that these beetles mainly occurred in areas with
gravel and cobble ranging between 0.3 to 5.0 in (8-128 mm). Collection
efforts in areas of high sedimentation generally do not yield riffle
beetles (Bowles et al. 2003, p. 376). Similarly, BIO-WEST (2002, p. 11)
conducted surveys for the Comal Springs riffle beetle in the Comal
system and found that individuals of this species were restricted to
habitat areas that consisted of rocks and gravel. They also observed
that riffle beetles were only found in areas that were largely silt-
free (BIO-WEST 2002, p.11).
This designation is designed for the conservation of PCEs necessary
to support the life history functions that were the basis for the
proposal and the areas containing those PCEs. Because not all life
history functions require all of the PCEs, not all of the designated
critical habitat may contain all the PCEs.
Units are designated based on sufficient PCEs being present to
support at least one of each of the species' life history functions.
Some units contain all PCEs and support multiple life processes, while
some units contain only a portion of the PCEs necessary to support the
species' particular use of that habitat. Where a subset of the PCEs is
present at the time of designation, this rule protects those PCEs and
thus the conservation function of the habitat.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing contain the features
essential to the conservation that may require special management
considerations or protections. Primary threats to the spring systems
designated as critical habitat for the three invertebrate species that
may require special management are summarized in Table 2. The threats
for individual springs vary according to the degree of urbanization and
availability of aquifer source water, but possible threats generally
include prolonged cessation of spring flows (in 1956, Comal Springs at
New Braunfels did not flow from mid-June to November (U.S. Army Corps
of Engineers 1965)) as a result of the loss of hydrological
connectivity within the aquifer (e.g., groundwater pumping, excavation,
concrete filling), pollutants (e.g., stormwater drainage, pesticide
use), and non-native species (e.g., biological control, sport fish
stocking). To address the threats affecting these three invertebrate
species, certain special management actions may be required--for
example, maintenance of sustainable groundwater use and subsurface
flows, use of adequate buffers for water quality protection, selection
of appropriate pesticides, and implementation of integrated pest
management plans.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available in determining areas that
contain the features that are essential to the conservation of the
Peck's cave amphipod, Comal Springs dryopid beetle, and Comal Springs
riffle beetle.
We reviewed available information that pertains to the presence and
habitat requirements of these three invertebrate species, such as
research published in peer-reviewed articles, data in reports submitted
during section 7 consultations, contracted surveys, agency reports and
databases, and aerial photographs. Information that has been reviewed
includes, but is not limited to: Holsinger (1967), Bosse et al. (1988),
Barr and Spangler (1992), Arsuffi (1993), Barr (1993), BIO-WEST (2001,
2002a, 2002b, 2003, 2004), Bowles et al. (2003), Fries et al. (2004),
and Krejca (2005). As part of the process, we also reviewed the overall
approach to conservation of these species undertaken by local, State,
and Federal agencies, and private and non-governmental organizations
operating within the species' range since their listing in 1997.
Peck's cave amphipod--The Peck's cave amphipod has been found in
Comal Springs and Hueco Springs, which are both located in Comal
County. While limited data have been collected on the extent to which
this subterranean species exists below ground away from outlets of
spring systems, other species within the genus Stygobromus are known to
be widely distributed in groundwaters and cave systems (Holsinger 1972,
p. 65). Although this species could possibly range throughout the 4-
mile (mi) (8-kilometer (km)) distance between the two habitat spring
systems through the ``honeycomb'' pores and conduits of the Edwards
Aquifer, it is not known to what extent below-ground connections
between Comal Springs and Hueco Springs are inhabited by the amphipod.
The only specific location information we have for this species
regarding its distribution in the aquifer, aside from where they exit
the aquifer via spring openings, is an observation of Peck's cave
amphipods at the bottom of a well (Panther Canyon well) that is located
approximately 360 ft (110 m) away from the head outlet of Spring Run
No. 1 (as designated in Barr and Spangler 1992, Fig. 1 on p. 42) in the
Comal Springs complex (Krejca 2005, p. 83).
We are designating critical habitat for the Peck's cave amphipod in
aquatic habitat associated with both Comal Springs and Hueco Springs.
To include amphipod food sources in root/water interfaces around spring
outlets, we also are designating an area consisting of a 50-ft (15.2-m)
distance from spring outlets of both Comal Springs and Hueco Springs
(including several satellite springs that are located between the main
outlet of Hueco Springs and the Guadalupe River). We believe that this
50-ft distance defines the lateral extent of critical habitat that
contains PCEs necessary to provide for life functions of the Peck's
cave amphipod with respect to roots that can penetrate into the
aquifer. Based on the 50-ft distance, the areas designated for the
amphipod critical habitat are about 38.1 ac (15.4 ha) at Comal Springs
and 0.4 ac (0.2 ha) at Hueco Springs. The acreages were calculated with
a computer-based Geographical Information System (GIS). Designated
critical habitat does not
[[Page 39256]]
include areas where PCEs do not occur for this species, such as
buildings, roads, sidewalks, campgrounds, and lawns. Where lakes are
designated, critical habitat is only designated in a radius of 50 ft
(15.2 m) around springs and does not include other areas of the lake
bottom where springs do not occur.
Comal Springs dryopid beetle--The Comal Springs dryopid beetle has
been found in only two spring systems, Comal Springs and Fern Bank
Springs, located in Comal and Hays Counties, respectively. The
subterranean species is primarily collected near spring outlets (Barr
and Spangler 1992, p. 41). While the extent to which the dryopid beetle
inhabits subterranean areas away from spring outlets is unknown, this
species does not swim and may be limited to relatively short ranges
within the aquifer. In addition, immature stages of the species are
thought to be terrestrial (Barr 1993, p. 56); however, they may also
exist in spring outlets and in subterranean, air-filled chambers, such
as caves (Barr and Spangler 1992, pp. 51-52). Barr and Spangler (1992,
p. 41) collected larvae of the dryopid beetle near spring outlets of
Comal Springs and believed that the larvae were associated with
ceilings of spring orifices. Extension of the dryopid beetle into the
aquifer may also be limited by the lack of food materials associated
with decaying plant roots that occur near spring orifices.
For critical habitat of the Comal Springs dryopid beetle, we are
designating aquatic habitat and a 50-ft (15.2-m) distance from spring
outlets of Comal Springs and Fern Bank Springs. The 50-ft (15.2-m)
distance is based on evaluations of aerial photographs showing tree and
shrub canopies occurring in proximity to spring outlets at both spring
systems. These plant canopies reflect approximate distances where plant
root systems interface with water flows of the two spring systems.
Based on the 50-ft (15.2-m) distance, the area designated for dryopid
beetle critical habitat at Comal Springs is about 38.1 ac (15.4 ha),
and 1.4 ac (0.6 ha) at Fern Bank Springs. These acreages include
occupied areas that contain PCEs necessary for life history functions
of the Comal Springs dryopid beetle. The acreages were calculated with
GIS. Designated critical habitat does not include areas where PCEs do
not occur for this species, such as lawns, buildings, roads, parking
lots, and sidewalks. Where lakes are designated, critical habitat is
only designated in a radius of 50 ft (15.2 m) around springs and does
not include other areas of the lake bottom where springs do not occur.
Comal Springs riffle beetle--For the Comal Springs riffle beetle,
habitat is primarily restricted to surface water in two impounded
spring systems that are located within Comal and Hays Counties in
central Texas. In Comal County, the aquatic beetle species is found in
various spring outlets and seeps of Comal Springs that occur within the
spring runs of Landa Lake and within Landa Lake itself, over a linear
distance of about 0.9 mi (1.4 km). The species has also been found in
outlets of San Marcos Springs in the upstream portion of Spring Lake in
Hays County. However, populations of Comal Springs riffle beetles may
exist elsewhere in Spring Lake since spring systems within the lake are
interconnected, and sampling to date for the species within the lake
has been limited.
For critical habitat of the Comal Springs riffle beetle, we are
designating an area that encompasses all of the spring outlets that are
found within the same lake (excluding a slough (slack water) portion
that lacks spring outlets). Apart from the slough portion, the
approximate linear distance of Spring Lake at its greatest length is
0.2 mi (0.3 km). We are designating about 19.8 ac (8.0 ha) of aquatic
habitat in Landa Lake and about 10.5 ac (4.3 ha) of aquatic habitat in
Spring Lake as critical habitat. These areas contain PCEs necessary for
life-history functions of the Comal Springs riffle beetle. We did not
include the 50-ft (15.2-m) lateral extent around springs because,
unlike the other two species, the riffle beetle is believed to occur on
the surface and not subterranean. The acreages were estimated by
calculating the cross-hatched polygon area in two map figures of these
lakes using GIS. Designated critical habitat does not include areas
where PCEs do not occur for this species, such as lawns, buildings,
roads, parking lots, and sidewalks.
When determining critical habitat boundaries, we made every effort
to avoid including within those boundaries of the maps contained within
this final rule developed areas such as buildings, paved areas, and
other structures that lack PCEs for the Peck's cave amphipod, Comal
Springs dryopid beetle, or Comal Springs riffle beetle. These efforts
included overlaying critical habitat boundaries onto aerial photos to
determine the percentage of buildings, lawns, and paved areas that were
located within the critical habitat designations. In the few instances
that this occurred, these areas were excluded in the text of the
critical habitat unit descriptions in the Critical Habitat Designation
section of this final rule. The estimated acreages for these areas were
so small (i.e., approximately 2 percent or less of the critical habitat
units involved), it was not practical to exclude them from the GIS
coordinates provided for the designated critical habitat units in this
final rule. We believe that eliminating buildings, lawns, and paved
areas in the text of the critical habitat descriptions was the most
feasible means of excluding these areas from the designations and
provided a clearer indication of the exclusions for the public. The
scale of the maps prepared under the parameters for publication within
the Code of Federal Regulations may not reflect the exclusion of such
developed areas. Any such structures and the surface under them
inadvertently left inside critical habitat boundaries shown on the maps
of this final rule have been excluded by text in the final rule and are
not designated as critical habitat. Therefore, Federal actions limited
to these areas would not trigger section 7 consultation, unless they
may affect the species or PCEs in adjacent critical habitat.
We are designating critical habitat in areas that we have
determined were occupied at the time of listing and contain sufficient
PCEs to support life-history functions essential for the conservation
of the species. Units of Comal Springs, Fern Bank Springs, Hueco
Springs, and San Marcos Springs were designated based on sufficient
PCEs being present to support at least one life process for the Peck's
cave amphipod, Comal Springs dryopid beetle, and/or Comal Springs
riffle beetle. A brief discussion of each area designated as critical
habitat is provided in the unit descriptions below.
Critical Habitat Designation
We are designating four units as critical habitat for the Peck's
cave amphipod, Comal Springs dryopid beetle, and Comal Springs riffle
beetle. The critical habitat areas described below constitute our best
assessment of areas determined to be occupied at the time of listing,
that contain the PCEs essential for the conservation of these species
and may require special management, and those additional areas that
were not known to be occupied at the time of listing but were found to
be essential to the conservation of the Peck's cave amphipod, Comal
Springs dryopid beetle, and Comal Springs riffle beetle. The four
spring systems designated as critical habitat are: (1) The Comal
Springs Unit, (2) the Fern Bank Springs Unit, (3) the Hueco Springs
Unit, and (4) the San Marcos Springs Unit. Table 1 shows the occupied
units,
[[Page 39257]]
as well as provides approximate areas (ac/ha) of these spring units
that have been determined to meet the definition of critical habitat
for the three listed invertebrates.
Table 1.--Spring System Units, Occupancy, Distances From Spring Outlets, and Acreages of Critical Habitat
Designated for the Peck's Cave Amphipod, Comal Springs Dryopid Beetle, and Comal Springs Riffle Beetle in Comal
and Hays Counties, Texas
----------------------------------------------------------------------------------------------------------------
Distance from
Spring systems spring outlets Designated
designated as Occupied at Currently for designated critical
Species critical habitat time of occupied critical habitat
areas listing habitat ft acreage ac
(m) (ha)
----------------------------------------------------------------------------------------------------------------
Peck's cave amphipod.......... Comal Springs Yes........... Yes........... 50 (15.2) 38.1 (15.4)
Unit.
Hueco Springs Yes........... Yes........... 50 (15.2) 0.4 (0.2)
Unit.
Comal Springs dryopid beetle.. Comal Springs Yes........... Yes........... 50 (15.2) 38.1 (15.4)
Unit.
Fern Bank Yes........... Yes........... 50 (15.2) 1.4 (0.6)
Springs Unit.
Comal Springs riffle beetle... Comal Springs Yes........... Yes........... (\1\) 19.8 (8.0)
Unit.
San Marcos Yes........... Yes........... (\1\) 10.5 (4.3)
Springs Unit.
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.
Table 2 summarizes land ownership and threats for the four spring
systems designated for critical habitat. Land ownership for these
spring systems involves only the State of Texas, municipalities, and
private landowners, and does not involve Federal or Tribal holdings.
Comal Springs and San Marcos Springs are surrounded, respectively, by
the cities of New Braunfels and San Marcos. Both Comal Springs and San
Marcos Springs have been impounded with dams to form Landa Lake and
Spring Lake, respectively. Possible threats to these urban spring
systems include, but are not limited to, water withdrawals, pesticide
use, and stormwater runoff of pollutants that have accumulated on
impervious cover (paved driveways, parking lots, sidewalks, etc.) in
urban areas. A thorough threats discussion is found in the December 18,
1997, final rule listing these species (62 FR 66295).
Table 2.--Ownership and Threats to Springs or Listed Species for
Critical Habitat Units
------------------------------------------------------------------------
Ownership of
Designated critical habitat critical habitat by Threats to spring
units listed species ac system or listed
(ha) species
------------------------------------------------------------------------
Comal Springs Unit, Comal Peck's cave amphipod Water withdrawals,
County. State--19.8 (8.0).. hazardous materials
Municipal--7.3 spills, pesticide
(3.0). use, excavation/
Private--11.0 (4.5) construction,
stormwater
pollutants,
invasive species,
and well
entrainment.
Comal Springs ....................
dryopid beetle
State--19.8 (8.0)..
Municipal--7.3
(3.0).
Private--11.0 (4.5)
Comal Springs riffle ....................
beetle
State--19.8 (8.0)..
Fern Bank Springs Unit, Hays Comal Springs Water withdrawals,
County. dryopid beetle. excavation/
Private--1.4 (0.6). construction, and
pesticide use.
Hueco Springs Unit, Comal Peck's cave amphipod Water withdrawals,
County. Private--0.4 (0.2). hazardous materials
spills, pesticide
use, excavation/
construction,
stormwater
pollutants, and
well entrainment.
San Marcos Springs Unit, Comal Springs riffle Water withdrawals,
Hays County. beetle. hazardous materials
State--10.5 (4.3).. spills, pesticide
use, excavation/
construction,
stormwater
pollutants, and
invasive species.
------------------------------------------------------------------------
We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for Peck's cave amphipod, Comal
Springs dryopid beetle, and Comal Springs riffle beetle below. Maps of
the designated critical habitat units are provided in the Regulation
Promulgation section of this rule.
Comal Springs Unit--Comal County, Texas
The Comal Springs system provides habitat for all three listed
invertebrate species, along with a federally listed fish, the
endangered fountain darter (Etheostoma fonticola). No other critical
habitat has been designated at this spring system. Comal Springs
provides all of the PCEs necessary for conservation of the three
invertebrate species. The spring system primarily occurs as a series of
spring outlets that lie along the west shoreline of Landa Lake and
within the lake itself. This nearly L-shaped lake is surrounded by the
City of New Braunfels. Practically all of the spring outlets and spring
runs associated with Comal Springs occur within the upper part of the
lake above the confluence of Spring Run No. 1 with the lake. The land
ownership of Comal Springs consists of private, municipal, and State
holdings. The surface water and bottom of Landa Lake are State-owned.
The City of New Braunfels owns approximately 40 percent of the land
surface adjacent to the lake, and private landowners own approximately
60 percent. Approximate acreages of surface land ownership within the
designated critical habitat unit and
[[Page 39258]]
threats to the unit are shown in Table 2.
Critical habitat for the three listed invertebrate species in the
Comal Springs Unit is as follows:
(1) Landa Lake (Comal Springs riffle beetle only)--aquatic habitat
within the lake and outlying spring runs that occur from the confluence
of Blieders Creek at the upstream end of Landa Lake down to the lake's
lowermost point of confluence with Spring Run No. 1. The part of Landa
Lake that lies below the confluence with Spring Run No. 1 down to the
impounding dams at the downstream end of the lake is not included.
(2) Aquatic habitat and shoreline areas of Landa Lake (Peck's cave
amphipod and Comal Springs dryopid beetle only)--aquatic habitat within
the lake and outlying spring runs that occur from the confluence of
Blieders Creek at the upstream end of Landa Lake down to the lake's
lowermost point of confluence with Spring Run No. 1. The part of Landa
Lake that lies below the confluence with Spring Run No. 1 down to the
impounding dams at the downstream end of the lake is not included. Land
areas along the shoreline of Landa Lake and on small islands inside the
lake that are within a 50-ft (15.2-m) distance from habitat spring
outlets are included in the critical habitat. These shoreline areas in
proximity to spring outlets provide trees and shrubs with roots that
penetrate underground to serve as habitat for the Peck's cave amphipod
and Comal Springs dryopid beetle. The critical habitat designated for
the Peck's cave amphipod and Comal Springs dryopid beetle includes only
aquatic and shoreline areas where PCEs exist for these two species and
does not include areas where these features do not occur, such as
lawns, buildings, roads, parking lots, and sidewalks. Where lakes are
included, critical habitat is only designated for areas within a radius
of 50 ft (15.2 m) around springs and does not include other areas of
the lake bottom in areas where springs are absent.
Fern Bank Springs Unit--Hays County, Texas
The Fern Bank Springs system provides habitat for only the Comal
Springs dryopid beetle. No other critical habitat has been designated
at this spring system. Fern Bank Springs provides all of the PCEs
necessary for conservation of this species. The spring system is
located approximately 0.2 mi (0.4 km) east of the junction of Sycamore
Creek with the Blanco River in Hays County. This spring system occurs
in a rural area and is relatively unaffected by current urban
activities in the vicinity of the springs. It consists of a main outlet
and a number of seep springs that occur at the base of a high bluff
overlooking the Blanco River. This spring system is located entirely on
land that is privately owned. Approximate acreages of land ownership
encompassed within the designated critical habitat unit and threats to
the unit are shown in Table 2.
Critical habitat for the Comal Springs dryopid beetle in the Fern
Bank Springs Unit as follows: Fern Bank Springs--aquatic habitat and
land areas that are within a 50-ft (15.2-m) distance from spring
outlets, including the main outlet of Fern Bank Springs and its
associated seep springs. These land areas in proximity to spring
outlets provide trees and shrubs with roots that penetrate underground
to serve as habitat for the Comal Springs dryopid beetle. The critical
habitat designated for the Comal Springs dryopid beetle includes only
areas where PCEs exist for this species and does not include areas
where these features do not occur, such as buildings, lawns, or paved
areas.
Hueco Springs Unit--Comal County, Texas
The Hueco Springs system provides habitat for only the Peck's cave
amphipod. No other critical habitat has been designated at this spring
system. Hueco Springs provides all of the PCEs necessary for
conservation of this species. This spring system occurs in a rural area
and is relatively unaffected by current urban activities in the
vicinity of the springs. It has a main outlet that is located
approximately 0.1 mi (0.2 km) south of the junction of Elm Creek with
the Guadalupe River in Comal County. The main outlet itself lies
approximately 500 ft (152 m) from the west bank of the Guadalupe River.
Several satellite springs lie further south between the main outlet and
the river. This spring system is located entirely on private land. The
main outlet of Hueco Springs is located on undeveloped land, but the
satellite springs occur within undeveloped areas of a privately owned
campground. Approximate acreages of land ownership encompassed within
the designated critical habitat unit and threats to the unit are
indicated in Table 2.
We designate critical habitat for the Peck's cave amphipod within
the Hueco Springs Unit as follows:
(1) Hueco Springs--aquatic habitat and land areas that are within
50 ft (15.2 m) from habitat spring outlets, including the main outlet
of Hueco Springs and its associated satellite springs. These land areas
in proximity to spring outlets provide trees and shrubs with roots that
penetrate underground to serve as habitat for the Peck's cave amphipod.
The critical habitat designated for the Peck's cave amphipod includes
only aquatic habitat and land areas where PCEs exist for this species.
Areas consisting of buildings, roads, sidewalks, campgrounds, and lawns
are excluded from this designation.
San Marcos Springs Unit--Hays County, Texas
The San Marcos Springs system provides habitat only for the Comal
Springs riffle beetle. However, the San Marcos Springs system provides
habitat for five other federally listed species: (1) The endangered
fountain darter, (2) the endangered San Marcos gambusia (Gambusia
georgei), (3) the threatened San Marcos salamander (Eurycea nana), (4)
the endangered Texas blind salamander (Eurycea (formerly Typhlomolge)
rathbuni), and (5) endangered Texas wild-rice (Zizania texana) (Service
1996, p. 6). However, the San Marcos gambusia has not been found in
surveys during recent years and is presumed to be extinct (Edwards
1999, p. 3). Critical habitat has been designated for the fountain
darter, San Marcos gambusia, San Marcos salamander, and Texas wild-rice
within Spring Lake and portions of the San Marcos River that lie
downstream from Spring Lake (45 FR 47355, July 14, 1980). The San
Marcos Springs unit provides all of the PCEs necessary for conservation
of the Comal Springs riffle beetle. The spring system primarily occurs
as a series of spring outlets that lie at the bottom of Spring Lake and
along its shoreline. The lake is surrounded by the City of San Marcos
in Hays County. The spring outlets associated with San Marcos Springs
occur within the main part of the lake, excluding the slough portion
that exists as an arm of the lake. The land ownership involving San
Marcos Springs consists entirely of State holdings. The surface water
and bottom of Spring Lake are State-owned; the State-affiliated Texas
State University owns the adjacent land surface. Approximate acreages
of surface land ownership in the designated critical habitat unit and
threats to the unit are shown in Table 2.
We designate critical habitat for the Comal Springs riffle beetle
in the San Marcos Springs unit as: Spring Lake--aquatic habitat areas
within the lake upstream of Spring Lake dam, with the exception of the
slough portion of the lake upstream of its confluence with the main
body.
[[Page 39259]]
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, recent decisions by the 5th and 9th Circuit
Courts of Appeal have invalidated this definition. Pursuant to current
national policy and the statutory provisions of the Act, destruction or
adverse modification is determined on the basis of whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain the current ability for the
PCEs to be functionally established) to serve the intended conservation
role for the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
compliance with the requirements of section 7(a)(2) will be documented
through the Service's issuance of: (1) A concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat; or (2) a biological opinion for Federal
actions that may affect, but are likely to adversely affect, listed
species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy to a listed species or the destruction or
adverse modification of critical habitat, we also provide reasonable
and prudent alternatives to the project, if any are identifiable.
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as
alternative actions identified during consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid
jeopardy to the listed species or destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where a new
species is listed or critical habitat is subsequently designated that
may be affected and the Federal agency has retained discretionary
involvement or control over the action or such discretionary
involvement or control is authorized by law. Consequently, some Federal
agencies may request reinitiation of consultation with us on actions
for which formal consultation has been completed, if those actions may
affect subsequently listed species or designated critical habitat or
adversely modify or destroy proposed critical habitat.
Federal activities that may affect the Peck's cave amphipod, Comal
Springs dryopid beetle, or Comal Springs riffle beetle or their
designated critical habitat will require section 7 consultation under
the Act. Activities on State, Tribal, local, or private lands requiring
a Federal permit (such as a permit from the U.S. Army Corps of
Engineers under section 404 of the Clean Water Act or a permit under
section 10(a)(1)(B) of the Act from the Service) or involving some
other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or Federal Emergency
Management Agency) will also be subject to the section 7 consultation
process. Federal actions requiring section 7 consultation also include
pumping of Edwards Aquifer water by Federal agencies, such as the
Department of Defense or Service. Federal actions not affecting listed
species or critical habitat, and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or permitted,
do not require section 7 consultations.
Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to the Peck's Cave Amphipod, Comal Springs
Dryopid Beetle, and Comal Springs Riffle Beetle and Their Critical
Habitat
Jeopardy Standard
The Service has applied an analytical framework for jeopardy
analyses of Peck's cave amphipod, Comal Springs dryopid beetle, and
Comal Springs riffle beetle that relies heavily on the importance of
habitat conditions to the survival and recovery of these species. The
section 7(a)(2) analysis is focused on the habitat conditions necessary
to support them.
The jeopardy analysis usually expresses the survival and recovery
needs of the Peck's cave amphipod, Comal Springs dryopid beetle, and
Comal Springs riffle beetle in a qualitative fashion without making
distinctions between what is necessary for survival and what is
necessary for recovery. Generally, if a proposed Federal action is
incompatible with the viability of the affected species, inclusive of
associated habitat conditions, a jeopardy finding is warranted because
of the relationship of each core area population to the survival and
recovery of the species as a whole.
Adverse Modification Standard
For the reasons described in the Director's December 9, 2004,
memorandum, the key factor related to the adverse modification
determination is whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional (or
retain the current ability for the PCEs to be functionally established)
to serve the intended conservation role for the species. Generally, the
conservation role of critical habitat units for the Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
is to have each unit support viable populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species.
Activities that may destroy or adversely modify critical habitat
are
[[Page 39260]]
those that alter the PCEs to an extent that the conservation value of
critical habitat for Peck's cave amphipod, Comal Springs dryopid
beetle, and Comal Springs riffle beetle is appreciably reduced.
Activities that, when carried out, funded, or authorized by a Federal
agency, may affect critical habitat and, therefore, should result in
consultation for these listed species include, but are not limited to:
(1) Actions that can negatively affect the PCEs of the Peck's cave
amphipod, Comal Springs dryopid beetle, or Comal Springs riffle beetle;
(2) Activities that would significantly and detrimentally alter the
water quality in any of the spring systems listed above and would
thereby destroy or adversely modify the critical habitat for any of
theses species. These activities include, but are not limited to,
sedimentation from construction or release of chemical or biological
pollutants into the surface water or connected groundwater at a point
source or by dispersed release (non-point source); such activities
could also alter water conditions to a point that negatively affects
these invertebrate species;
(3) Actions that change the existing and historic flow regimes and
would thereby significantly and detrimentally alter the PCEs necessary
for conservation of these species. Such activities could include, but
are not limited to, water withdrawal, impoundment, and water
diversions. These activities could eliminate or reduce the habitat
necessary for the growth, reproduction, or survival of these
invertebrate species; and
(4) Actions that remove hydraulic connectivity of the aquifer and
the spring areas where it exists and would thereby negatively affect
the PCEs of the designated critical habitat of these species and the
population dynamics of the species. Alteration of subsurface water
flows through destruction of geologic features (for example,
excavation) or creation of impediments to flow (for example, concrete
filling), especially in proximity to spring outlets, could negatively
alter the hydraulic connectivity necessary to sustain these species. It
is necessary for subsurface habitat to remain intact with sufficient
hydraulic connectivity of flow paths and conduits to ensure that PCEs
(water quality, water quantity, and food supply) for the designated
critical habitat remain adequate for all three listed invertebrates.
Due in large part to the nature of the aquifer and spring systems,
ongoing human activities that occur outside the designated critical
habitat may threaten the physical and biological features of the
designated critical habitat. While we are only designating critical
habitat in occupied areas where PCEs exist and are in need of special
management (i.e., areas meeting the Service's criteria for defining
critical habitat), consultation may also be needed outside of
designated areas in order to avoid adverse modification of the PCEs
within the designation. Federal activities outside of critical habitat
(such as groundwater pumping, pollution, issuance of a section
10(a)(1)(B) permit, highway construction, etc.) are subject to review
under section 7 of the Act if they may affect these species or
adversely affect their critical habitat.
We consider all of the units designated as critical habitat to
contain features essential to the conservation of the Peck's cave
amphipod, Comal Springs dryopid beetle, or Comal Springs riffle beetle.
All units are within the geographic range of the species, all were
occupied by the species at the time of listing (based on observations
made within the last 9 years), and are likely to be used by these
listed invertebrates. Federal agencies already consult with us on
activities in areas currently occupied by these listed invertebrates,
or if the species may be affected by the action, to ensure that their
actions do not jeopardize the continued existence of the Peck's cave
amphipod, Comal Springs dryopid beetle, or Comal Springs riffle beetle.
Application of Section 4(a)(3) of the Act--Approved Integrated Natural
Resource Management Plans
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete, by November 17, 2001, an Integrated Natural Resource
Management Plan (INRMP). An INRMP integrates implementation of the
military mission of the installation with stewardship of the natural
resources found on the base.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for designation.
There are no Department of Defense lands within the designated
critical habitat that have completed an INRMP.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude an area
from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the Secretary is afforded broad discretion, and the
Congressional record is clear that, in making a determination under the
section, the Secretary has discretion as to which factors and how much
weight will be given to any factor.
Under section 4(b)(2), in considering whether to exclude a
particular area from the designation, we must identify the benefits of
including the area in the designation, identify the benefits of
excluding the area from the designation, determine whether the benefits
of exclusion outweigh the benefits of inclusion. If an exclusion is
contemplated, then we must determine whether excluding the area would
result in the extinction of the species. In the following sections, we
address a number of general issues that are relevant to the exclusions
we considered.
Pursuant to section 4(b)(2) of the Act, we must consider relevant
impacts in addition to economic ones. We determined that the lands
within the designation of critical habitat for the Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
are not owned or managed by the Department of Defense; there are
currently no habitat conservation plans for the Peck's cave amphipod,
Comal Springs dryopid beetle, and Comal Springs riffle beetle; and the
designation does not include any Tribal lands or trust resources.
We have considered a number of programs that exist at the State and
local levels (e.g., EAA and Texas Commission for Environmental Quality)
to protect the Edwards Aquifer and manage spring flows. As a result of
a ruling in a 1991 court case (Sierra Club v. Secretary of the
Interior, No. MO-91-CA-069), we
[[Page 39261]]
identified minimum spring flows from Comal and San Marcos springs
likely to cause take, jeopardy, and adverse modification of critical
habitat for other listed aquatic species. As a result of the Sierra
Club lawsuit, the State legislature created the EAA through Senate Bill
1477 to regulate groundwater withdrawals. The EAA has issued withdrawal
permits and created drought response plans that help protect the PCEs
related to water quantity and temperature. The EAA has prepared a draft
Habitat Conservation Plan (HCP) to provide for water quantity in the
aquifer and protect spring dependent species. If finalized and
permitted, the HCP is expected to help protect the aquifer. However, at
this time the HCP has not been completed and the EAA is continuing to
develop aquifer management strategies to permit appropriate pumping
levels and conserve downstream spring flows. The full effects of future
pumping strategies on spring flows remain uncertain and do not allow us
to exclude any areas from critical habitat based on the benefits of the
Edwards Aquifer management.
Other programs that provide some aquifer protection are Edwards
Aquifer Rules and Phase I optional water quality measures of the Texas
Commission on Environmental Quality (TCEQ). The Edwards Aquifer Rules
provide protection for drinking water, and the Phase I measures provide
protection for fountain darter, Texas wild-rice, San Marcos salamander,
and San Marcos gambusia. The Edwards Aquifer Rules protect water
quality by reducing pollutant loading through the implementation of
best management practices that can help prevent degradation of
groundwater. The Phase I optional water quality measures include
enhanced best management practices that protect sensitive karst
features. These measures also contain other protective actions that can
be applied to many types of new projects. The Edwards Aquifer Rules and
Phase I optional measures provide some benefits for the three Comal
Springs invertebrates. However, the Phase I optional measures are not
mandated for every project. Therefore we have considered excluding but
have not excluded any lands from this designation based on the
potential benefits from these planned or existing aquifer and water
quality management initiatives.
We anticipate no impact to national security, Tribal lands,
partnerships, or habitat conservation plans from this critical habitat
designation. Based on the best available information, including the
prepared economic analysis, we believe that all of these units contain
the features that are essential for the conservation of the species.
Our economic analysis does not indicate any areas within the critical
habitat designation will bear a disproportionate cost of the
designation. Therefore, we have found no areas for which the benefits
of exclusion outweigh the benefits of inclusion, and so have not
excluded any areas from this designation of critical habitat for the
Peck's cave amphipod, Comal Springs dryopid beetle, and Comal Springs
riffle beetle based on economic impacts. As such, we have considered
but not excluded any lands from this designation based on the potential
impacts to economic factors.
Economics
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information available and
to consider the economic and other relevant impacts of designating a
particular area as critical habitat. We may exclude areas from critical
habitat upon a determination that the benefits of such exclusions
outweigh the benefits of specifying such areas as critical habitat. We
cannot exclude such areas from critical habitat when such exclusion
will result in the extinction of the species concerned.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on March 16, 2007 (72 FR 12585). We
accepted comments on the draft analysis until April 16, 2007.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the conservation of the
Peck's cave amphipod, Comal Springs dryopid beetle, and Comal Springs
riffle beetle. This economic analysis considers the economic efficiency
effects that may result from the designation, including habitat
protections that may be co-extensive with the listing of the species.
It also addresses distribution of impacts, including an assessment of
the potential effects on small entities and the energy industry. This
information can be used by the Secretary to assess whether the effects
of the designation might unduly burden a particular group or economic
sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, section 7 consultations under the jeopardy standard, local
zoning laws, State and natural resource laws, and enforceable
management plans and best management practices applied by other State
and Federal agencies.
Under scenarios 1 and 2 in the draft economic analysis, impacts
associated with water use changes comprised the vast majority, or
between 91 and 99 percent, of the total quantified impacts in the areas
we proposed for designation. Economic impacts were based on the total
permitted withdrawals from the Edwards Aquifer that are planned to be
reduced in part to provide spring flows that were identified in a 1993
lawsuit concerning five endangered species in the Edwards Aquifer that
share habitat with the Peck's cave amphipod, Comal Springs dryopid
beetle, and Comal Springs riffle beetle. The analysis considered that
as soon as 2008, total permitted water withdrawals in the Edwards
Aquifer may be further limited from the present 549,000 acre-feet per
year to 400,000 acre-feet per year (scenario 1). It is also possible
that, in dry years, additional restrictions may be imposed that will
further limit aquifer withdrawals to 340,000 acre-feet (scenario 2).
The draft economic analysis examined social welfare and regional
economic impacts that could result from these limits to water
withdrawals in the aquifer. It should be noted that the majority of
economic impacts quantified in the draft economic analysis are jointly
caused by eight endangered species, including the Peck's cave amphipod,
Comal Springs dryopid beetle, and Comal Springs riffle beetle. Because
all of these species reside in the same habitat, separating future
impacts of the Peck's cave amphipod, Comal Springs dryopid beetle, and
Comal Springs riffle beetle from those of the other listed species in
the aquifer was not attempted.
We estimated costs related to conservation activities for the area
proposed for designation of critical habitat for the Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
under sections 4, 7, and 10 of the Act to be approximately $24.5
million over the next 20 years under scenario 1, or $154.3 million
under scenario 2 in undiscounted dollars (annualized dollars are
estimated to be $1.2 million under scenario 1 and $7.7 million under
scenario 2). Future economic impacts associated with conservation
activities in areas designated as critical habitat at a 3 percent
discount rate are estimated to be $18 million over the next 20 years
[[Page 39262]]
under scenario 1, or $113 million under scenario 2 (annualized dollars
are estimated to be $1.2 million under scenario 1 and $7.6 million
under scenario 2). Future economic impacts associated with conservation
efforts in areas proposed as critical habitat at a 7 percent discount
rate were estimated to be $12.5 million over the next 20 years under
scenario 1, or $78.5 million under scenario 2 (annualized dollars are
estimated to be $1.3 million under scenario 1 and $7.4 million under
scenario 2). No areas were excluded from this designation as a result
of the economic analysis. The economic analysis did not consider recent
changes to the Edwards Aquifer Authority passed by the Texas
Legislature in May 2007 (Senate Bill 3).
A copy of the final economic analysis with supporting documents may
be obtained by contacting U.S. Fish and Wildlife Service, Branch of
Endangered Species (see FOR FURTHER INFORMATION CONTACT) or by download
from the Internet at http://www.fws.gov/southwest/es/Library/.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order (E.O.) 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but will not have an annual effect on the economy of $100 million or
more or affect the economy in a material way. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule. As explained above,
we prepared an economic analysis of this action. We used this analysis
to meet the requirement of section 4(b)(2) of the Act to determine the
economic consequences of designating the specific areas as critical
habitat. We also used it to help determine whether to exclude any area
from critical habitat, as provided for under section 4(b)(2) of the
Act, if we determine that the benefits of such exclusion outweigh the
benefits of specifying an area as part of the critical habitat, unless
we determine, based on the best scientific data available, that the
failure to designate such an area as critical habitat will result in
the extinction of the species.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (as amended by the Small
Business Regulatory Enforcement Fairness 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
effect of the rule on small entities (small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a statement of factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. The SBREFA also amended the RFA
to require a certification statement.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; 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 the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (such as
housing development, grazing, oil and gas production, timber
harvesting). We apply the ``substantial number'' test individually to
each industry to determine if certification is appropriate. However,
the SBREFA does not explicitly define ``substantial number'' or
``significant economic impact.'' Consequently, to assess whether a
``substantial number'' of small entities is affected by this
designation, this analysis considers the relative number of small
entities likely to be impacted in an area. In some circumstances,
especially with critical habitat designations of limited extent, we may
aggregate across all industries and consider whether the total number
of small entities affected is substantial. In estimating the number of
small entities potentially affected, we also consider whether their
activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or implement that may
affect the Peck's cave amphipod, Comal Springs dryopid beetle, and
Comal Springs riffle beetle. Federal agencies also must consult with us
if their activities may affect critical habitat. Designation of
critical habitat, therefore, could result in an additional economic
impact on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities.
The draft economic analysis examined the potential for Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
conservation efforts to affect small entities. This analysis was based
on the estimated impacts associated with the proposed critical habitat
designation and evaluated the potential for economic impacts related to
water use for agricultural activities, construction or development, and
aquatic restoration. Aquatic restoration activities were not
anticipated to affect small entities, as these activities will be
carried out by a Federal agency (U.S. Army Corps of Engineers).
Accordingly, the small business analysis focused on economic impacts
resulting from potential water use changes for agricultural activities
and construction or development activities. Future restrictions on
groundwater pumping are expected to cause irrigated crop acreage to
shift to dryland production. Under Scenario 1, where future groundwater
pumping is restricted to 400,000 acre-feet per year, approximately
33,000 acres of irrigated cropland are expected to shift to dryland
production, and 507 farms are likely to experience a reduction in
output valued between $8,000 and $44,000. Under Scenario 2, where
future groundwater pumping is restricted to 340,000 acre-feet per year,
approximately 35,000 acres of irrigated cropland are expected to shift
to dryland production, and 532 farms are likely to experience a
reduction in
[[Page 39263]]
output valued between $9,000 and $45,000. However, these costs are
associated with the conservation of the species, and may result from
desirable management, but not necessarily management that can be
required under the Act. For those development projects likely to be
undertaken by a small entity, Peck's cave amphipod, Comal Springs
dryopid beetle, and Comal Springs riffle beetle conservation costs are
estimated to be between $1,340 and $1,710. Assuming the annual revenues
of an average small developer are $18.0 million, the average annualized
cost per project is about 0.1 percent of typical annual sales.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for the approximately
four small businesses, on average, that may be required to consult with
us each year regarding their project's impact on the Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle beetle
and its habitat. 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 result 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.
Second, if we find that a proposed action is not likely to
jeopardize the continued existence of a listed animal or plant 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 consultations pursuant to section 7 of
the Act 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, by definition, must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation. 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 it faces, as described in the final
listing rule and this critical habitat designation. Within the final
critical habitat units, the types of Federal actions or authorized
activities that we have identified as potential concerns are:
(1) Regulation of activities affecting waters of the United States
by the U.S. Army Corps of Engineers under section 404 of the Clean
Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization implemented or licensed by Federal agencies;
(3) Activities that may lead to storm water runoff that are
regulated under the National Pollution Discharge Elimination System of
the Clean Water Act by the Environmental Protection Agency;
(4) Activities authorized, carried out, or funded by any Federal
agency that may result in point source storm water pollutant
discharges, including excavation, site development, construction, and
other surface disturbing activities;
(5) Activities authorized, carried out, or funded by the Federal
Highway Administration that could lead to the introduction of
pollutants into receiving waters from highway runoff; and
(6) Activities authorized, carried out, or funded by any Federal
agency that could result in a reduction of groundwater supplies that
support the Peck's cave amphipod, Comal Springs dryopid beetle, and
Comal Springs riffle beetle.
It is likely that a developer or other project proponent could
modify a project or take measures to protect the Peck's cave amphipod,
Comal Springs dryopid beetle, and Comal Springs riffle beetle. The
kinds of actions that may be included if future reasonable and prudent
alternatives become necessary include conservation set-asides,
management of competing nonnative species, restoration of degraded
habitat, and regular monitoring. These are based on our understanding
of the needs of the species and the threats it faces, as described in
the final listing rule and proposed critical habitat designation. These
measures are not likely to result in a significant economic impact to
project proponents.
In summary, we have considered whether this would result in a
significant economic effect on a substantial number of small entities.
We have determined, for the above reasons and based on currently
available information, that it is not likely to affect a substantial
number of small entities. Federal involvement, and thus section 7
consultations, would be limited to a subset of the area designated. The
most likely Federal involvement could include actions needing a section
404 permit under the Clean Water Act, actions receiving Federal Highway
Administration funding, and actions needing a section 10(a)(1)(B)
permit under the Endangered Species Act of 1973, as amended. A
regulatory flexibility analysis is not required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et
seq.)
Under SBREFA, this rule is not a major rule. Our detailed
assessment of the economic effects of this designation is described in
the economic analysis. Based on the effects identified in the economic
analysis, we believe that this rule will not have an annual effect on
the economy of $100 million or more, will not cause a major increase in
costs or prices for consumers, and will not have significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. Refer to the final economic analysis for a
discussion of the effects of this determination.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211
(Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) 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. This final rule to designated critical habitat for the
[[Page 39264]]
Peck's cave amphipod, Comal Springs dryopid beetle, and Comal Springs
riffle beetle is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. (At the
time of enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) A condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. As such, a Small Government Agency Plan is
not required.
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
designating 38.5 ac (15.6 ha) of lands in Comal County, Texas, as
critical habitat for the Peck's cave amphipod, 39.5 ac (16.0 ha) of
lands in Comal and Hays Counties, Texas, as critical habitat for the
Comal Springs dryopid beetle, and 30.3 ac (12.3 ha) of lands in Comal
and Hays counties, Texas, as critical habitat for the Comal Springs
riffle beetle in a takings implication assessment. The takings
implications assessment concludes that this final designation of
critical habitat does not pose significant takings implications for
lands within or affected by the designation.
Federalism
In accordance with Executive Order 13132 (Federalism), the rule
does not have significant Federalism effects. A Federalism assessment
is not required. In keeping with the Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of, this final critical habitat designation
with appropriate State resource agencies in Texas. The designation may
have some benefit to these governments in that the areas that contain
the features essential to the conservation of the species are more
clearly defined, and the primary constituent elements of the habitat
necessary to the conservation of the species are specifically
identified. While making this definition and identification does not
alter where and what federally sponsored activities may occur, it 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 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Endangered Species
Act. This final 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 Peck's cave
amphipod, Comal Springs dryopid beetle, and Comal Springs riffle
beetle.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the Tenth
Federal Circuit, we do not need to prepare environmental analyses as
defined by 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 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive
[[Page 39265]]
Order 13175, and the Department of Interior's manual at 512 DM 2, we
readily acknowledge our responsibility to communicate meaningfully with
recognized Federal Tribes on a government-to-government basis. In
accordance with Secretarial Order 3206 of June 5, 1997, ``American
Indian Tribal Rights, Federal--Tribal Trust Responsibilities, and the
Endangered Species Act,'' we readily acknowledge our responsibilities
to work directly with tribes in developing programs for healthy
ecosystems, to acknowledge that tribal lands are not subject to the
same controls as Federal public lands, to remain sensitive to Indian
culture, and to make information available to tribes. We have
determined that there are no Tribal lands occupied at the time of
listing that contain the features essential for the conservation and no
Tribal lands that are unoccupied areas that are essential for the
conservation of the Peck's cave amphipod, Comal Springs dryopid beetle,
and Comal Springs riffle beetle. Therefore, we have not designated
critical habitat for the Peck's cave amphipod, Comal Springs dryopid
beetle, and Comal Springs riffle beetle on Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Austin Ecological
Services Office (see FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary authors of this final rule are staff of the Ecological
Services Office in Austin, Texas (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11(h), the List of Endangered and Threatened
Wildlife, as follows:
0
a. Under ``INSECTS,'' revise the entries for ``Beetle, Comal Springs
dryopid'' and ``Beetle, Comal Springs riffle'' to read as set forth
below; and
0
b. Under ``CRUSTACEANS,'' revise the entry for ``Amphipod, Peck's
cave'' to read as set forth below.
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------------ population where When Critical Special
Historic range endangered or Status listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
INSECTS
* * * * * * *
Beetle, Comal Springs dryopid...... Stygoparnus comalensis U.S.A. (TX)........... NA E 629 17.95(i) NA
Beetle, Comal Springs riffle....... Heterelmis comalensis. U.S.A. (TX)........... NA E 629 17.95(i) NA
* * * * * * *
CRUSTACEANS
* * * * * * *
Amphipod, Peck's cave.............. Stygobromus U.S.A. (TX)........... NA E 629 17.95(h) NA
(=Stygonectes) Pecki.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95 as follows:
0
a. In paragraph (h), add an entry for ``Peck's cave amphipod
(Stygobromus pecki)'', in the same alphabetical order in which the
species appears in the table at 50 CFR 17.11(h), to read as set forth
below; and
0
b. In paragraph (i), add entries for ``Comal Springs dryopid beetle
(Stygoparnus comalensis)'' and ``Comal Springs riffle beetle
(Heterelmis comalensis)'', in the same alphabetical order in which
these species appear in the table at 50 CFR 17.11(h), to read as set
forth below.
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(h) Crustaceans.
* * * * *
Peck's cave amphipod (Stygobromus pecki).
(1) Critical habitat units are depicted for Comal County, Texas, on
the maps below.
(2) The primary constituent elements of critical habitat for Peck's
cave amphipod are:
(i) High-quality water with no or minimal levels of pollutants,
such as soaps and detergents (Brown 1987, p. 261) and other compounds
containing surfactants, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, pharmaceuticals and veterinary medicines, and
semi-volatile compounds, such as industrial cleaning agents, and
including:
(A) Low salinity with total dissolved solids that generally range
from 307 to 368 mg/L; and
(B) Low turbidity that generally is less than 5 nephelometric
turbity units;
(ii) Aquifer water temperatures that range from approximately 68 to
75 [deg]F (20 to 24 [deg]C); and
(iii) Food supply that includes detritus (decomposed materials),
leaf litter, living plant material, algae, fungi,
[[Page 39266]]
bacteria and other microorganisms, and decaying roots.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, roads, and other paved areas) and the land on
which they are located existing within the legal boundaries on the
effective date of this rule. Where lakes are designated, critical
habitat is only designated for areas where springs occur and does not
include areas of the lake bottom beyond a radius of 50 ft (15.2 m) from
the spring outlet.
(4) Critical habitat map units. Data layers defining map units were
created by using ArcGIS. All coordinates are UTM zone 14 coordinate
pairs, referenced to North American Horizontal Datum 1983. Coordinates
were derived from 2004 digital orthophotographs. All acreage and
mileage calculations were performed using GIS.
(5) Note: Index map (Map 1) follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR17JY07.000
[[Page 39267]]
(6) Comal Springs Unit, Comal County, Texas.
(i) Aquatic habitat areas bounded by the UTM Zone 14 NAD 83
coordinates (meters E, meters N): 583387, 3287251; 583392, 3287264;
583405, 3287280; 583404, 3287290; 583407, 3287301; 583414, 3287307;
583425, 3287308; 583425, 3287320; 583433, 3287328; 583444, 3287330;
583454, 3287325; 583463, 3287301; 583482, 3287272; 583486, 3287286;
583501, 3287296; 583520, 3287314; 583547, 3287326; 583557, 3287333;
583572, 3287335; 583586, 3287342; 583567, 3287387; 583560, 3287408;
583559, 3287423; 583534, 3287403; 583499, 3287359; 583491, 3287347;
583484, 3287340; 583471, 3287334; 583461, 3287334; 583452, 3287340;
583450, 3287350; 583454, 3287364; 583465, 3287374; 583494, 3287415;
583521, 3287443; 583526, 3287453; 583563, 3287477; 583589, 3287503;
583613, 3287519; 583643, 3287547; 583662, 3287561; 583719, 3287617;
583759, 3287669; 583780, 3287701; 583811, 3287743; 583833, 3287764;
583848, 3287784; 583892, 3287826; 583911, 3287850; 583970, 3287907;
584008, 3287938; 584047, 3287963; 584055, 3287964; 584065, 3287960;
584073, 3287948; 584074, 3287941; 584081, 3287952; 584131, 3288011;
584164, 3288044; 584183, 3288062; 584197, 3288071; 584216, 3288093;
584236, 3288110; 584258, 3288138; 584284, 3288161; 584325, 3288209;
584343, 3288223; 584364, 3288233; 584375, 3288243; 584386, 3288244;
584401, 3288234; 584403, 3288218; 584433, 3288201; 584437, 3288193;
584436, 3288184; 584416, 3288167; 584405, 3288167; 584375, 3288184;
584365, 3288180; 584344, 3288156; 584329, 3288131; 584320, 3288125;
584298, 3288103; 584273, 3288067; 584204, 3287997; 584187, 3287985;
584176, 3287973; 584152, 3287943; 584147, 3287933; 584105, 3287880;
584080, 3287862; 584049, 3287844; 584026, 3287815; 584021, 3287805;
584013, 3287798; 584009, 3287787; 583999, 3287775; 583971, 3287751;
583947, 3287735; 583927, 3287725; 583920, 3287718; 583890, 3287704;
583850, 3287673; 583845, 3287665; 583851, 3287662; 583860, 3287650;
583865, 3287640; 583865, 3287629; 583863, 3287622; 583854, 3287609;
583840, 3287600; 583836, 3287584; 583829, 3287576; 583838, 3287552;
583841, 3287535; 583841, 3287520; 583835, 3287501; 583804, 3287452;
583790, 3287435; 583766, 3287416; 583727, 3287406; 583706, 3287406;
583695, 3287398; 583686, 3287370; 583699, 3287298; 583698, 3287288;
583694, 3287282; 583617, 3287257; 583610, 3287258; 583605, 3287262;
583597, 3287280; 583584, 3287277; 583565, 3287270; 583541, 3287255;
583534, 3287244; 583518, 3287233; 583510, 3287211; 583496, 3287192;
583480, 3287183; 583459, 3287177; 583436, 3287178; 583419, 3287184;
583400, 3287198; 583396, 3287205; 583387, 3287251.
(ii) Note: Comal Springs Unit (Map 2) follows:
[[Page 39268]]
[GRAPHIC] [TIFF OMITTED] TR17JY07.001
(7) Hueco Springs Unit, Comal County, Texas.
(i) Aquatic habitat areas bounded by the UTM Zone 14 NAD 83
coordinates (meters E, meters N): 583113, 3292498; 583114, 3292498;
583115, 3292498; 583116, 3292498; 583117, 3292498; 583118, 3292497;
583119, 3292497; 583120, 3292497; 583120, 3292496; 583121, 3292496;
583122, 3292495; 583123, 3292495; 583124, 3292494; 583124, 3292493;
583125, 3292493;
[[Page 39269]]
583126, 3292492; 583126, 3292491; 583127, 3292490; 583127, 3292489;
583127, 3292489; 583128, 3292488; 583128, 3292487; 583128, 3292486;
583128, 3292485; 583128, 3292484; 583128, 3292483; 583128, 3292482;
583128, 3292481; 583128, 3292480; 583128, 3292479; 583128, 3292478;
583127, 3292477; 583127, 3292477; 583127, 3292476; 583126, 3292475;
583126, 3292474; 583125, 3292473; 583124, 3292473; 583124, 3292472;
583123, 3292471; 583122, 3292471; 583122, 3292470; 583121, 3292470;
583120, 3292469; 583119, 3292469; 583118, 3292468; 583117, 3292468;
583116, 3292468; 583115, 3292468; 583114, 3292468; 583113, 3292468;
583112, 3292468; 583111, 3292468; 583111, 3292468; 583110, 3292468;
583109, 3292468; 583108, 3292469; 583107, 3292469; 583106, 3292470;
583105, 3292470; 583104, 3292471; 583104, 3292471; 583103, 3292472;
583102, 3292472; 583102, 3292473; 583101, 3292474; 583100, 3292475;
583100, 3292475; 583100, 3292476; 583099, 3292477; 583099, 3292478;
583099, 3292479; 583098, 3292480; 583098, 3292481; 583098, 3292482;
583098, 3292483; 583098, 3292484; 583098, 3292485; 583098, 3292486;
583098, 3292487; 583099, 3292488; 583099, 3292488; 583099, 3292489;
583100, 3292490; 583100, 3292491; 583101, 3292492; 583101, 3292493;
583102, 3292493; 583103, 3292494; 583103, 3292495; 583104, 3292495;
583105, 3292496; 583106, 3292496; 583107, 3292497; 583108, 3292497;
583108, 3292497; 583109, 3292498; 583110, 3292498; 583111, 3292498;
583112, 3292498; 583113, 3292498.
(ii) Aquatic habitat areas bounded by the UTM Zone 14 NAD 83
coordinates (meters E, meters N): 583132, 3292420; 583133, 3292421;
583133, 3292421; 583133, 3292422; 583134, 3292423; 583134, 3292424;
583134, 3292425; 583135, 3292426; 583136, 3292426; 583136, 3292427;
583137, 3292428; 583138, 3292428; 583138, 3292429; 583139, 3292430;
583140, 3292430; 583141, 3292430; 583142, 3292431; 583143, 3292431;
583143, 3292431; 583144, 3292432; 583145, 3292432; 583146, 3292432;
583147, 3292432; 583148, 3292432; 583149, 3292432; 583150, 3292432;
583151, 3292432; 583152, 3292431; 583153, 3292431; 583154, 3292431;
583155, 3292430; 583155, 3292430; 583156, 3292429; 583157, 3292429;
583158, 3292428; 583158, 3292427; 583159, 3292427; 583160, 3292426;
583160, 3292425; 583161, 3292424; 583161, 3292423; 583162, 3292422;
583162, 3292422; 583162, 3292421; 583162, 3292420; 583163, 3292419;
583163, 3292418; 583163, 3292417; 583163, 3292416; 583163, 3292415;
583162, 3292414; 583162, 3292413; 583162, 3292412; 583162, 3292411;
583161, 3292410; 583161, 3292409; 583160, 3292409; 583160, 3292408;
583159, 3292407; 583159, 3292406; 583158, 3292406; 583157, 3292405;
583156, 3292404; 583156, 3292404; 583156, 3292403; 583155, 3292402;
583155, 3292402; 583155, 3292401; 583154, 3292400; 583154, 3292399;
583153, 3292398; 583152, 3292398; 583152, 3292397; 583151, 3292396;
583150, 3292396; 583149, 3292395; 583149, 3292395; 583148, 3292394;
583147, 3292394; 583146, 3292393; 583145, 3292393; 583144, 3292393;
583143, 3292393; 583142, 3292393; 583141, 3292393; 583140, 3292393;
583139, 3292393; 583138, 3292393; 583137, 3292393; 583137, 3292393;
583136, 3292394; 583135, 3292394; 583134, 3292395; 583133, 3292395;
583132, 3292396; 583132, 3292396; 583131, 3292397; 583130, 3292397;
583129, 3292398; 583129, 3292399; 583128, 3292400; 583128, 3292400;
583127, 3292401; 583127, 3292402; 583127, 3292403; 583126, 3292404;
583126, 3292405; 583126, 3292406; 583126, 3292407; 583126, 3292408;
583126, 3292409; 583126, 3292410; 583126, 3292411; 583126, 3292412;
583127, 3292413; 583127, 3292413; 583127, 3292414; 583128, 3292415;
583128, 3292416; 583129, 3292417; 583129, 3292418; 583130, 3292418;
583131, 3292419; 583131, 3292420; 583132, 3292420.
(iii) Note: Hueco Springs Unit (Map 3) follows:
[[Page 39270]]
[GRAPHIC] [TIFF OMITTED] TR17JY07.002
* * * * *
(i) Insects.
* * * * *
Comal Springs dryopid beetle (Stygoparnus comalensis).
(1) Critical habitat units are depicted for Comal and Hays
Counties, Texas, on the maps below.
[[Page 39271]]
(2) The primary constituent elements of critical habitat for the
Comal Springs dryopid beetle are:
(i) High-quality water with no or minimal levels of pollutants,
such as soaps and detergents (Brown 1987, p. 261) and other compounds
containing surfactants, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, pharmaceuticals and veterinary medicines, and
semi-volatile compounds, such as industrial cleaning agents, and
including:
(A) Low salinity with total dissolved solids that generally range
from 307 to 368 mg/L; and
(B) Low turbidity that generally is less than 5 nephelometric
turbidity units;
(ii) Aquifer water temperatures that range from approximately 68 to
75 [deg]F (20 to 24 [deg]C);
(iii) A hydrologic regime that allows for adequate spring flows
that provide levels of dissolved oxygen in the approximate range of 4.0
to 10.0 mg/L for respiration of the Comal Springs dryopid beetle; and
(iv) Food supply that includes detritus (decomposed materials),
leaf litter, living plant material, algae, fungi, bacteria and other
microorganisms, and decaying roots.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, roads, and other paved areas) and the land on
which they are located existing with the legal boundaries on the
effective date of this rule. Where lakes are designated, critical
habitat is only designated for areas where springs occur and does not
include areas of the lake bottom beyond a radius of 50 ft (15.2 m) from
the spring outlet.
(4) Critical habitat map units. Data layers defining map units were
created by using ArcGIS. All coordinates are UTM zone 14 coordinate
pairs, referenced to North American Horizontal Datum 1983. Coordinates
were derived from 2004 digital orthophotographs. All acreage and
mileage calculations were performed using GIS.
(5) Note: Index map of the critical habitat units for Comal Springs
dryopid beetle (Map 1) follows:
[[Page 39272]]
[GRAPHIC] [TIFF OMITTED] TR17JY07.003
(6) Comal Springs Unit, Comal County, Texas.
(i) Aquatic habitat areas bounded by the UTM Zone 14 NAD 83
coordinates (meters E, meters N): 583387, 3287251; 583392, 3287264;
583405, 3287280; 583404, 3287290; 583407, 3287301; 583414, 3287307;
583425, 3287308; 583425, 3287320; 583433, 3287328; 583444, 3287330;
583454, 3287325; 583463, 3287301; 583482, 3287272; 583486, 3287286;
583501, 3287296; 583520, 3287314; 583547, 3287326; 583557, 3287333;
583572, 3287335; 583586, 3287342; 583567, 3287387; 583560, 3287408;
583559, 3287423; 583534, 3287403; 583499, 3287359; 583491, 3287347;
583484, 3287340; 583471, 3287334; 583461, 3287334; 583452, 3287340;
583450, 3287350; 583454, 3287364; 583465, 3287374; 583494, 3287415;
583521, 3287443; 583526, 3287453; 583563, 3287477; 583589, 3287503;
583613, 3287519; 583643, 3287547; 583662, 3287561; 583719, 3287617;
583759, 3287669; 583780, 3287701; 583811, 3287743; 583833, 3287764;
583848, 3287784; 583892, 3287826; 583911, 3287850; 583970, 3287907;
584008, 3287938; 584047, 3287963; 584055, 3287964; 584065, 3287960;
584073, 3287948; 584074, 3287941; 584081, 3287952;
[[Page 39273]]
584131, 3288011; 584164, 3288044; 584183, 3288062; 584197, 3288071;
584216, 3288093; 584236, 3288110; 584258, 3288138; 584284, 3288161;
584325, 3288209; 584343, 3288223; 584364, 3288233; 584375, 3288243;
584386, 3288244; 584401, 3288234; 584403, 3288218; 584433, 3288201;
584437, 3288193; 584436, 3288184; 584416, 3288167; 584405, 3288167;
584375, 3288184; 584365, 3288180; 584344, 3288156; 584329, 3288131;
584320, 3288125; 584298, 3288103; 584273, 3288067; 584204, 3287997;
584187, 3287985; 584176, 3287973; 584152, 3287943; 584147, 3287933;
584105, 3287880; 584080, 3287862; 584049, 3287844; 584026, 3287815;
584021, 3287805; 584013, 3287798; 584009, 3287787; 583999, 3287775;
583971, 3287751; 583947, 3287735; 583927, 3287725; 583920, 3287718;
583890, 3287704; 583850, 3287673; 583845, 3287665; 583851, 3287662;
583860, 3287650; 583865, 3287640; 583865, 3287629; 583863, 3287622;
583854, 3287609; 583840, 3287600; 583836, 3287584; 583829, 3287576;
583838, 3287552; 583841, 3287535; 583841, 3287520; 583835, 3287501;
583804, 3287452; 583790, 3287435; 583766, 3287416; 583727, 3287406;
583706, 3287406; 583695, 3287398; 583686, 3287370; 583699, 3287298;
583698, 3287288; 583694, 3287282; 583617, 3287257; 583610, 3287258;
583605, 3287262; 583597, 3287280; 583584, 3287277; 583565, 3287270;
583541, 3287255; 583534, 3287244; 583518, 3287233; 583510, 3287211;
583496, 3287192; 583480, 3287183; 583459, 3287177; 583436, 3287178;
583419, 3287184; 583400, 3287198; 583396, 3287205; 583387, 3287251.
(ii) Note: Comal Springs Unit (Map 2) follows:
[[Page 39274]]
[GRAPHIC] [TIFF OMITTED] TR17JY07.004
(7) Fern Bank Springs Unit, Hays County, Texas.
(i) Aquatic habitat areas bounded by the UTM Zone 14 NAD 83
coordinates (meters E, meters N): 595131, 3317374; 595131, 3317375;
595132, 3317376; 595132, 3317377; 595132, 3317378; 595132, 3317379;
595133, 3317380; 595133, 3317381; 595133, 3317382; 595134, 3317383;
595135, 3317383; 595135, 3317384; 595136, 3317385; 595137, 3317386;
595137, 3317386;
[[Page 39275]]
595138, 3317387; 595139, 3317387; 595140, 3317388; 595141, 3317388;
595141, 3317388; 595168, 3317398; 595181, 3317411; 595198, 3317428;
595198, 3317428; 595199, 3317429; 595199, 3317430; 595200, 3317430;
595201, 3317431; 595202, 3317431; 595203, 3317432; 595204, 3317432;
595205, 3317432; 595206, 3317432; 595207, 3317433; 595208, 3317433;
595209, 3317433; 595210, 3317433; 595211, 3317433; 595212, 3317433;
595213, 3317432; 595214, 3317432; 595214, 3317432; 595215, 3317431;
595216, 3317431; 595217, 3317430; 595218, 3317430; 595219, 3317429;
595219, 3317428; 595220, 3317428; 595221, 3317427; 595237, 3317406;
595237, 3317406; 595238, 3317405; 595238, 3317404; 595239, 3317404;
595239, 3317403; 595239, 3317402; 595240, 3317401; 595240, 3317400;
595240, 3317400; 595240, 3317399; 595240, 3317398; 595240, 3317397;
595240, 3317396; 595240, 3317395; 595240, 3317394; 595240, 3317394;
595240, 3317393; 595239, 3317392; 595239, 3317391; 595239, 3317390;
595238, 3317389; 595238, 3317388; 595237, 3317388; 595237, 3317388;
595223, 3317369; 595223, 3317369; 595222, 3317368; 595221, 3317367;
595221, 3317366; 595220, 3317366; 595219, 3317365; 595218, 3317365;
595217, 3317364; 595217, 3317364; 595173, 3317343; 595173, 3317343;
595172, 3317343; 595171, 3317342; 595170, 3317342; 595169, 3317342;
595168, 3317342; 595167, 3317342; 595166, 3317342; 595165, 3317342;
595164, 3317342; 595163, 3317342; 595162, 3317343; 595146, 3317347;
595146, 3317348; 595145, 3317348; 595144, 3317348; 595143, 3317349;
595142, 3317349; 595141, 3317350; 595141, 3317350; 595141, 3317350;
595140, 3317351; 595139, 3317352; 595139, 3317352; 595139, 3317353;
595138, 3317353; 595138, 3317354; 595137, 3317355; 595137, 3317356;
595136, 3317357; 595136, 3317357; 595132, 3317369; 595132, 3317370;
595132, 3317370; 595132, 3317371; 595132, 3317372; 595131, 3317373;
595131, 3317374.
(ii) Note: Fern Bank Springs Unit (Map 3) follows:
[[Page 39276]]
[GRAPHIC] [TIFF OMITTED] TR17JY07.005
* * * * *
Comal Springs riffle beetle (Heterelmis comalensis).
(1) Critical habitat units are depicted for Comal and Hays
Counties, Texas, on the maps below.
(2) The primary constituent elements of critical habitat for Comal
Springs riffle beetle are:
[[Page 39277]]
(i) High-quality water with no or minimal levels of pollutants,
such as soaps and detergents (Brown 1987, p. 261) and other compounds
containing surfactants, heavy metals, pesticides, fertilizer nutrients,
petroleum hydrocarbons, pharmaceuticals and veterinary medicines, and
semi-volatile compounds, such as industrial cleaning agents, and
including:
(A) Low salinity with total dissolved solids that generally range
from 307 to 368 mg/L; and
(B) Low turbidity that generally is less than 5 nephelometric
turbidity units;
(ii) Aquifer water temperatures that range from approximately 68 to
75 [deg]F (20 to 24 [deg]C);
(iii) A hydrologic regime that allows for adequate spring flows
that provide levels of dissolved oxygen in the approximate range of 4.0
to 10.0 mg/L for respiration of the Comal Springs riffle beetle;
(iv) Food supply that includes detritus (decomposed materials),
leaf litter, living plant material, algae, fungi, bacteria and other
microorganisms, and decaying roots; and
(v) Bottom substrate in surface water habitat of the Comal Springs
riffle beetle that is free of sand and silt, and is composed of gravel
and cobble ranging in size from 0.3 to 5.0 inches (8 to 128
millimeters).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, roads, and other paved areas) and the land on
which they are located existing within the legal boundaries on the
effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created by using ArcGIS. All coordinates are UTM zone 14 coordinate
pairs, referenced to North American Horizontal Datum 1983. Coordinates
were derived from 2004 digital orthophotographs. All acreage and
mileage calculations were performed using GIS.
(5) Note: Index map of the critical habitat units for Comal Springs
riffle beetle (Map 1) follows:
[[Page 39278]]
[GRAPHIC] [TIFF OMITTED] TR17JY07.006
(6) Comal Springs Unit, Comal County, Texas.
(i) Aquatic habitat areas bounded by the UTM Zone 14 NAD 83
coordinates (meters E, meters N): 583420, 3287293; 583423, 3287293;
583426, 3287293; 583428, 3287290; 583429, 3287285; 583428, 3287280;
583426, 3287273; 583422, 3287268; 583416, 3287259; 583415, 3287255;
583415, 3287249; 583417, 3287238; 583418, 3287233; 583419, 3287228;
583418, 3287222; 583421, 3287221; 583427, 3287216; 583429, 3287207;
583435, 3287204; 583442, 3287203; 583455, 3287203; 583464, 3287203;
583468, 3287205; 583475, 3287209; 583479, 3287213; 583479, 3287217;
583483, 3287224; 583486, 3287232; 583490, 3287246; 583491, 3287248;
583485, 3287247; 583481, 3287245; 583476, 3287243; 583471, 3287241;
583461, 3287239; 583460, 3287242; 583460, 3287248; 583459, 3287255;
583459, 3287261; 583458, 3287266; 583455, 3287272; 583455, 3287277;
583452, 3287282; 583449, 3287284; 583446, 3287288; 583445, 3287295;
583441, 3287307; 583439, 3287314; 583443, 3287315; 583444, 3287309;
583446, 3287303; 583449, 3287293; 583450, 3287291; 583453, 3287288;
583457, 3287284; 583461, 3287278; 583466, 3287271; 583468, 3287263;
583469, 3287255; 583470, 3287251; 583480, 3287257; 583484, 3287256;
583488, 3287254;
[[Page 39279]]
583492, 3287253; 583493, 3287254; 583496, 3287255; 583500, 3287257;
583503, 3287258; 583507, 3287260; 583509, 3287261; 583509, 3287262;
583509, 3287265; 583508, 3287266; 583504, 3287270; 583502, 3287270;
583499, 3287270; 583497, 3287271; 583497, 3287273; 583498, 3287276;
583500, 3287277; 583502, 3287279; 583505, 3287281; 583508, 3287282;
583512, 3287285; 583516, 3287291; 583521, 3287294; 583525, 3287298;
583528, 3287301; 583531, 3287303; 583535, 3287305; 583540, 3287306;
583544, 3287309; 583551, 3287311; 583556, 3287313; 583560, 3287317;
583563, 3287319; 583567, 3287320; 583571, 3287320; 583575, 3287320;
583578, 3287321; 583580, 3287322; 583583, 3287324; 583587, 3287326;
583592, 3287328; 583595, 3287329; 583597, 3287330; 583600, 3287331;
583603, 3287332; 583604, 3287333; 583605, 3287337; 583605, 3287340;
583604, 3287344; 583601, 3287346; 583598, 3287353; 583593, 3287363;
583589, 3287371; 583587, 3287378; 583581, 3287392; 583580, 3287400;
583575, 3287411; 583574, 3287420; 583575, 3287430; 583575, 3287435;
583575, 3287438; 583575, 3287441; 583574, 3287442; 583573, 3287442;
583572, 3287442; 583569, 3287441; 583567, 3287442; 583563, 3287442;
583558, 3287441; 583553, 3287437; 583549, 3287435; 583542, 3287429;
583539, 3287428; 583536, 3287425; 583533, 3287420; 583524, 3287415;
583516, 3287405; 583510, 3287398; 583505, 3287392; 583499, 3287383;
583494, 3287378; 583486, 3287368; 583482, 3287361; 583479, 3287356;
583475, 3287353; 583467, 3287349; 583465, 3287349; 583466, 3287355;
583468, 3287356; 583470, 3287357; 583471, 3287359; 583473, 3287361;
583475, 3287362; 583479, 3287367; 583485, 3287377; 583491, 3287386;
583498, 3287395; 583506, 3287406; 583509, 3287407; 583511, 3287412;
583523, 3287423; 583533, 3287434; 583535, 3287437; 583537, 3287442;
583549, 3287449; 583558, 3287455; 583565, 3287461; 583571, 3287464;
583576, 3287468; 583584, 3287478; 583598, 3287491; 583610, 3287498;
583623, 3287507; 583635, 3287519; 583653, 3287536; 583672, 3287549;
583685, 3287562; 583697, 3287574; 583731, 3287607; 583739, 3287618;
583753, 3287634; 583761, 3287645; 583772, 3287660; 583784, 3287679;
583792, 3287692; 583809, 3287716; 583823, 3287733; 583844, 3287754;
583859, 3287773; 583870, 3287784; 583883, 3287797; 583903, 3287816;
583913, 3287829; 583922, 3287839; 583933, 3287849; 583941, 3287857;
583951, 3287867; 583961, 3287878; 583971, 3287886; 583980, 3287896;
583991, 3287905; 584005, 3287917; 584017, 3287926; 584024, 3287931;
584038, 3287941; 584049, 3287948; 584052, 3287949; 584055, 3287948;
584056, 3287945; 584059, 3287941; 584059, 3287937; 584055, 3287935;
584054, 3287932; 584055, 3287929; 584060, 3287926; 584067, 3287926;
584071, 3287924; 584078, 3287920; 584081, 3287921; 584085, 3287929;
584093, 3287942; 584108, 3287958; 584116, 3287970; 584128, 3287984;
584142, 3288000; 584150, 3288007; 584157, 3288014; 584163, 3288021;
584169, 3288027; 584174, 3288033; 584181, 3288039; 584187, 3288044;
584192, 3288050; 584207, 3288060; 584216, 3288071; 584227, 3288082;
584239, 3288093; 584247, 3288099; 584251, 3288104; 584255, 3288109;
584261, 3288116; 584265, 3288121; 584270, 3288128; 584277, 3288132;
584282, 3288138; 584289, 3288144; 584296, 3288151; 584303, 3288161;
584313, 3288171; 584318, 3288178; 584328, 3288188; 584336, 3288198;
584342, 3288201; 584347, 3288204; 584349, 3288207; 584352, 3288210;
584357, 3288212; 584360, 3288215; 584366, 3288217; 584371, 3288219;
584374, 3288221; 584378, 3288225; 584382, 3288229; 584388, 3288225;
584388, 3288224; 584388, 3288220; 584388, 3288216; 584388, 3288214;
584389, 3288211; 584389, 3288209; 584395, 3288205; 584401, 3288203;
584422, 3288191; 584411, 3288181; 584393, 3288192; 584382, 3288198;
584376, 3288200; 584371, 3288199; 584363, 3288197; 584355, 3288191;
584348, 3288183; 584340, 3288175; 584332, 3288165; 584326, 3288157;
584319, 3288147; 584316, 3288143; 584317, 3288141; 584316, 3288140;
584314, 3288141; 584309, 3288136; 584303, 3288129; 584286, 3288113;
584277, 3288100; 584269, 3288089; 584261, 3288077; 584253, 3288071;
584240, 3288057; 584236, 3288052; 584228, 3288045; 584219, 3288035;
584210, 3288026; 584203, 3288019; 584193, 3288008; 584183, 3288002;
584176, 3287996; 584169, 3287987; 584165, 3287984; 584158, 3287974;
584150, 3287966; 584139, 3287951; 584135, 3287942; 584127, 3287933;
584114, 3287915; 584105, 3287905; 584094, 3287891; 584082, 3287884;
584072, 3287875; 584059, 3287867; 584047, 3287862; 584038, 3287855;
584033, 3287848; 584025, 3287840; 584019, 3287830; 584016, 3287827;
584016, 3287827; 584013, 3287824; 584011, 3287820; 584009, 3287814;
584005, 3287811; 584000, 3287806; 583996, 3287795; 583988, 3287786;
583982, 3287780; 583972, 3287771; 583962, 3287764; 583950, 3287757;
583939, 3287748; 583928, 3287743; 583917, 3287737; 583917, 3287737;
583912, 3287731; 583895, 3287724; 583881, 3287717; 583872, 3287708;
583860, 3287701; 583847, 3287692; 583838, 3287683; 583829, 3287669;
583828, 3287663; 583830, 3287659; 583835, 3287653; 583840, 3287651;
583843, 3287647; 583847, 3287642; 583850, 3287636; 583850, 3287630;
583847, 3287625; 583842, 3287619; 583836, 3287616; 583829, 3287611;
583824, 3287603; 583823, 3287597; 583822, 3287591; 583820, 3287588;
583814, 3287587; 583813, 3287583; 583812, 3287580; 583814, 3287575;
583815, 3287570; 583817, 3287565; 583820, 3287558; 583824, 3287548;
583826, 3287541; 583826, 3287534; 583826, 3287522; 583823, 3287515;
583821, 3287507; 583813, 3287493; 583807, 3287485; 583803, 3287481;
583803, 3287478; 583799, 3287472; 583792, 3287462; 583779, 3287446;
583769, 3287437; 583757, 3287428; 583753, 3287427; 583746, 3287426;
583734, 3287423; 583725, 3287421; 583715, 3287420; 583709, 3287421;
583702, 3287421; 583696, 3287418; 583689, 3287413; 583683, 3287407;
583679, 3287400; 583677, 3287393; 583674, 3287383; 583671, 3287371;
583672, 3287360; 583675, 3287341; 583678, 3287324; 583680, 3287312;
583684, 3287297; 583684, 3287293; 583616, 3287272; 583615, 3287275;
583610, 3287289; 583606, 3287294; 583601, 3287295; 583595, 3287296;
583592, 3287294; 583580, 3287292; 583569, 3287288; 583557, 3287283;
583548, 3287276; 583539, 3287271; 583531, 3287267; 583525, 3287260;
583523, 3287255; 583517, 3287253; 583513, 3287248; 583507, 3287243;
583502, 3287236; 583500, 3287228; 583497, 3287219; 583493, 3287213;
583486, 3287203; 583474, 3287197; 583458, 3287192; 583447, 3287192;
583439, 3287193; 583434, 3287196; 583430, 3287198; 583428, 3287197;
583424, 3287198; 583422, 3287201; 583419, 3287203; 583415, 3287205;
583411, 3287209; 583409, 3287221; 583406, 3287230; 583404, 3287240;
583402, 3287251; 583405, 3287256; 583408, 3287259; 583412, 3287263;
583417, 3287270; 583420, 3287276; 583422, 3287279; 583421, 3287282;
583419, 3287285; 583419, 3287288; 583420, 3287293.
(ii) Note: Comal Springs Unit (Map 2) follows:
BILLING CODE 4310-55-P
[[Page 39280]]
[GRAPHIC] [TIFF OMITTED] TR17JY07.007
(7) San Marcos Springs Unit, Hays County, Texas.
(i) Aquatic habitat areas bounded by the UTM Zone 14 NAD 83
coordinates (meters E, meters N): 602869, 3307092; 602870, 3307100;
602877, 3307131; 602892, 3307172; 602926, 3307215; 602936, 3307229;
602942, 3307237; 602945, 3307243; 602957, 3307286; 603007, 3307329;
603072, 3307386; 603154, 3307462; 603158, 3307463; 603166, 3307466;
603175, 3307465;
[[Page 39281]]
603186, 3307473; 603219, 3307486; 603258, 3307508; 603288, 3307526;
603307, 3307541; 603317, 3307544; 603326, 3307539; 603329, 3307527;
603319, 3307512; 603251, 3307456; 603234, 3307439; 603224, 3307433;
603218, 3307419; 603206, 3307412; 603192, 3307406; 603175, 3307418;
603170, 3307419; 603153, 3307414; 603144, 3307404; 603141, 3307389;
603145, 3307379; 603147, 3307369; 603152, 3307352; 603141, 3307339;
603135, 3307339; 603124, 3307337; 603120, 3307336; 603116, 3307335;
603114, 3307325; 603109, 3307318; 603105, 3307315; 603104, 3307314;
603100, 3307310; 603024, 3307239; 603023, 3307240; 603019, 3307237;
603017, 3307233; 603026, 3307203; 603035, 3307187; 603038, 3307178;
603038, 3307166; 603033, 3307148; 603027, 3307138; 603018, 3307123;
603002, 3307117; 602983, 3307109; 602968, 3307097; 602962, 3307105;
602962, 3307105; 602965, 3307112; 602963, 3307116; 602958, 3307119;
602954, 3307123; 602946, 3307126; 602938, 3307129; 602928, 3307129;
602921, 3307129; 602913, 3307128; 602896, 3307105; 602894, 3307101;
602887, 3307097; 602881, 3307091; 602883, 3307087; 602877, 3307082;
602875, 3307084; 602872, 3307087; 602869, 3307092.
(ii) Note: San Marcos Springs Unit (Map 3) follows:
[[Page 39282]]
[GRAPHIC] [TIFF OMITTED] TR17JY07.008
[[Page 39283]]
* * * * *
Dated: June 28, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-3267 Filed 7-16-07; 8:45 am]
BILLING CODE 4310-55-C