[Federal Register Volume 74, Number 47 (Thursday, March 12, 2009)]
[Proposed Rules]
[Pages 10701-10703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5357]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2009-0014] [92210-1117-0000-B4]
RIN 1018-AT52


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Roswell springsnail (Pyrgulopsis roswellensis), 
Koster's springsnail (Juturnia kosteri), Noel's amphipod (Gammarus 
desperatus), and Pecos assiminea (Assiminea pecos)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of public comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), take this 
action pursuant to a settlement agreement and court order that vacated, 
in part, the August 9. 2005 final rule that designated critical habitat 
under the Endangered Species Act of 1973, as amended (Act), for the 
Roswell springsnail (Pyrgulopsis roswellensis), Koster's springsnail 
(Juturnia kosteri), Noel's amphipod (Gammarus desperatus), and Pecos 
assiminea (Assiminea pecos) with respect to lands at the Bitter Lake 
National Wildlife

[[Page 10702]]

Refuge. Accordingly, the February 12, 2002, proposed critical habitat 
designation is reinstated for these invertebrates with respect to 
Bitter Lake National Wildlife Refuge and we announce the reopening of 
the public comment period for the February 12, 2002, proposed rule in 
order to reconsider designation of these lands. This re-evaluation of 
the designation of critical habitat at Bitter Lake National Wildlife 
Refuge does not affect the designation of critical habitat at Diamond Y 
Spring and Sandia Spring. Comments previously submitted on the February 
12, 2002, proposed rule (67 FR 6459) need not be resubmitted as they 
have been incorporated into the public record as part of this reopening 
of the comment period and will be fully considered in preparation of 
the final rule. Additionally, so that we may fully consider any new 
information available, we are also soliciting comments and information 
on the final economic analysis and final environmental assessment that 
were made available concurrent with the August 9, 2005, final 
designation of critical habitat.

DATES: We will accept comments received or postmarked on or before May 
11, 2009. We must receive requests for public hearings, in writing, at 
the address shown in the ADDRESSES section by April 27, 2009.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2009-0014; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all information 
received on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Public 
Comments Solicited section below for more details).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services Field Office, 2105 Osuna NE, 
Albuquerque, NM 87113; telephone 505-761-4781; facsimile 505-346-2542. 
If you use a telecommunications device for the deaf (TTD), you may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    The Roswell springsnail (Pyrgulopsis roswellensis), Koster's 
springsnail (Juturnia kosteri), Noel's amphipod (Gammarus desperatus), 
and Pecos assiminea (Assiminea pecos) (four invertebrates) occupy 
springs, seeps, sinkholes, and wetlands near Roswell, New Mexico, and 
in Reeves and Pecos counties, Texas. On February 12, 2002 (67 FR 6459), 
we published a proposed rule to list the four invertebrates as 
endangered under the Endangered Species Act of 1973, as amended (Act; 
16 U.S.C. 1531 et seq.) and to designate critical habitat for them. The 
proposed rule included two complexes on Bitter Lake National Wildlife 
Refuge (Refuge) totaling 456 hectares (ha) (1127 acres (ac)), one 
complex at Diamond Y Springs in Pecos County, Texas, of 153.8 ha (380 
ac), and one complex at East Sandia Spring in Reeves County, Texas, of 
6.7 ha (16.5 ac). On August 9, 2005, we published our final rule 
listing the four invertebrates as endangered with critical habitat (70 
FR 46304). In that final rule, critical habitat was designated at the 
Diamond Y Spring and East Sandia Spring complexes but was not 
designated on the Refuge on the ground that these areas did not meet 
the definition of ``critical habitat'' under section 3(5)(A) of the Act 
(70 FR 46323).
    On December 19, 2007, Forest Guardians (now WildEarth Guardians) 
filed a complaint challenging the merits of our critical habitat 
designation for the four invertebrates, including the exclusion of the 
Refuge from the final critical habitat designation. The plaintiffs 
alleged that the Refuge should have been included in the designation 
because it is the last known occupied habitat for three of the four 
species (Roswell springsnail, Koster's springsnail, and Noel's 
amphipod) and that the Refuge's Comprehensive Conservation Plan would 
not adequately protect the species from threats, including oil and gas 
development, outside of the Refuge boundaries. Pursuant to a settlement 
agreement, the court has partially vacated the August 9, 2005, critical 
habitat decision (70 FR 46304) with respect to the areas excluded under 
section 3(5)(A) of the Act.
    If the proposed rule with respect to the Bitter Lake National 
Wildlife Refuge is made final, section 7 of the Act will prohibit 
adverse modification of critical habitat by any activity funded, 
authorized, or carried out by any Federal agency. Federal agencies 
proposing actions that may affect areas designated as critical habitat 
must consult with us on the effects of their proposed actions, pursuant 
to section 7(a)(2) of the Act. This re-evaluation of the designation of 
critical habitat on the Refuge does not affect the August 9, 2005, 
final designation of critical habitat (70 FR 46304) with respect to 
designated critical habitat at Diamond Y Spring and Sandia Spring, and 
consultation on activities that may result in destruction or adverse 
modification of critical habitat is still required in these areas. 
Further, section 7(a)(4) of the Act and regulations at 50 CFR 402.10 
require Federal agencies to confer with us on any action that is likely 
to result in destruction or adverse modification of proposed critical 
habitat. Thus, Federal agencies are required to confer with the Service 
on any such action that may affect the proposed critical habitat on the 
Refuge as identified in the February 12, 2002, proposed rule (67 FR 
6459).
    Section 4 of the Act requires that we consider economic and other 
relevant impacts prior to making a final decision on what areas to 
designate as critical habitat. A final economic analysis and final 
environmental assessment were made available concurrent with the 
publication of the August 9, 2005, final critical habitat designation 
(70 FR 46304). We solicit data and comments from the public on the 
final economic analysis and final environmental assessment, as well as 
on all aspects of the proposed rule. We will review and consider all 
best available information including public comments or other 
information submitted previously or as part of the present comment 
period, as we develop our final determination. In particular, we may 
exclude an area from critical habitat if we determine that the benefits 
of excluding the area outweigh the benefits of including the area as 
critical habitat, provided such exclusion will not result in the 
extinction of the species.

Public Comments Solicited

    To ensure that the final critical habitat designation is complete 
and based on the best available scientific information, we are 
soliciting information from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek information 
concerning:
    (1) The reasons why habitat on the Refuge should or should not be 
determined to be critical habitat as provided by section 4 of the Act, 
including whether the benefits of inclusion of these areas will or will 
not outweigh the benefits of exclusion from critical habitat 
designation;

[[Page 10703]]

    (2) Specific information on the distribution of the four 
invertebrates and their habitats, and which habitats are essential to 
the conservation of the species and why;
    (3) Land use management and current or planned activities in the 
subject area and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, environmental, or other impacts 
resulting from the proposed designation of critical habitat;
    (5) Whether the economic analysis makes appropriate assumptions 
regarding current practices and likely regulatory changes imposed as a 
result of the designation of critical habitat; and
    (6) Whether the economic analysis appropriately identifies all 
costs that could result or have already resulted from the designation.
    Comments previously submitted on the February 12, 2002, proposed 
rule (67 FR 6459) need not be resubmitted as they have been 
incorporated into the public record as part of this reopening of the 
comment period and will be fully considered in preparation of the final 
rule. Comments submitted during this comment period also will be 
incorporated into the public record and will be fully considered in the 
final rule.
    You may submit comments and materials concerning the proposed rule, 
the associated economic analysis, and the associated environmental 
assessment by one of the methods listed in the ADDRESSES section. We 
will not consider comments sent by e-mail or fax, or to an address not 
listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including your personal identifying information--will be 
posted on the Web site. If your submission is made via a hardcopy that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this notice, will be available for 
public inspection on http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    You may obtain copies of the proposed rule, the final economic 
analysis, and the final environmental assessment on the Internet at 
http://www.regulations.gov, or by mail from the New Mexico Ecological 
Services Field Office.

Author

    The primary authors of this notice are the staff of the New Mexico 
Ecological Services Field Office, 2105 Osuna NE, Albuquerque, NM 87113.

Authority

    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).

    Dated: March 3, 2009.
Jane Lyder,
Assistant Deputy Secretary for Department of the Interior.
[FR Doc. E9-5357 Filed 3-11-09; 8:45 am]
BILLING CODE 4310-55-S