[Federal Register Volume 76, Number 33 (Thursday, February 17, 2011)]
[Proposed Rules]
[Pages 9297-9309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3673]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2009-0014; 92210-1117-0000-B4]
RIN 1018-AW50


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Roswell Springsnail, Koster's 
Springsnail, Noel's Amphipod, and Pecos Assiminea

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revision and reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce reopening of 
the public comment period on the June 22, 2010, proposal to revise 
designated critical habitat for the Pecos assiminea (Assiminea pecos), 
and to newly designate critical habitat for the Roswell springsnail 
(Pyrgulopsis roswellensis), Koster's springsnail (Juturnia kosteri), 
and Noel's amphipod (Gammarus desperatus), under the Endangered Species 
Act of 1973, as amended (Act). We also announce revisions to the 
proposed critical habitat, as it was described in the proposed rule 
published in the Federal Register on June 22, 2010 (75 FR 35375). In 
total, we are proposing to designate as critical habitat 520.8 acres 
(210.8 hectares) for the four species. In this proposal we include as 
critical habitat for Noel's amphipod an additional 5.8 acres (2.3 
hectares) for Chaves County, New Mexico, as a population of amphipods 
was recently confirmed to be Noel's amphipod at this location. We are 
reopening the comment period to allow all interested parties an 
opportunity to comment simultaneously on the revised proposed rule, the 
associated economic analysis, environmental assessment, and the amended 
required determinations.

DATES: We will consider comments received on or before March 21, 2011. 
Comments must be received by 11:59 p.m. Eastern Time on the closing 
date. Any comments that we receive after the closing date may not be 
fully considered in the final decision on this action.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for docket number FWS-R2-ES-2009-0014 and then follow the 
instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: Docket No. 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 post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna Rd., NE., Albuquerque, NM 87113; telephone 505-761-
4781; facsimile 505-246-2542. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed designation of the proposed 
revisions to critical habitat for the Pecos assiminea (Assiminea 
pecos), and the proposed critical habitat for the Roswell springsnail 
(Pyrgulopsis roswellensis), Koster's springsnail (Juturnia kosteri), 
and Noel's amphipod (Gammarus desperatus) (four invertebrates) that was 
published in the Federal Register on June 22, 2010, (75 FR 35375), and 
the additional area proposed in this notice. As a result of information 
sent to us in response to our June 22, 2010, proposal and request for 
comments, we became aware that a population of amphipods was confirmed 
to be Noel's amphipod along the Rio Hondo, on the South Tract of Bitter 
Lake National Wildlife Refuge. We are particularly interested in 
information on our proposed inclusion of this new habitat in our final 
critical habitat designation, including comments on the economic 
analysis and environmental assessment of the proposed designation 
related to this new area. We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act of 
1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether 
there are threats to the species from human activity, the degree of 
which can be expected to increase due to the designation, and whether 
that increase in threat outweighs the benefit of designation such that 
the designation of critical habitat is not prudent.
    (2) Specific information on:
    (a) The amount and distribution of habitat for the Roswell 
springsnail, Koster's springsnail, Noel's amphipod, and Pecos 
assiminea;
    (b) What areas occupied at the time of listing and that contain 
features essential to the conservation of the species we should include 
in the designation and why. We are particularly interested in 
information on the additional habitat containing the recently 
discovered Noel's amphipod population on the South Tract of Bitter Lake 
National Wildlife Refuge;
    (c) Special management considerations or protections for areas that 
contain the features essential to the conservation of the Roswell 
springsnail, Koster's springsnail, Noel's amphipod, and Pecos assiminea 
that have been identified in this proposal, including management for 
the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Land use management and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat, 
particularly in the area occupied by the recently discovered Noel's 
amphipod population on the South Tract of Bitter Lake National Wildlife 
Refuge.
    (4) Any foreseeable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly

[[Page 9298]]

interested in any impacts on small entities or families, and the 
benefits of including or excluding areas that exhibit these impacts.
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (6) Information on the extent to which the description of economic 
impacts in the economic analysis is complete and accurate, and 
information on potential economic impacts that may occur should we 
designate the area occupied by the recently discovered Noel's amphipod 
population on the South Tract of Bitter Lake National Wildlife Refuge.
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the economic analysis and 
environmental assessment, and how the consequences of such reactions, 
if likely to occur, would relate to the conservation and regulatory 
benefits of the proposed critical habitat designation.
    If you submitted comments or information on the proposed rule (75 
FR 35375) during the initial comment period from June 22, 2010, to 
August 23, 2010, please do not resubmit them. We have incorporated them 
into the public record as part of that comment period, and we will 
fully consider them in the preparation of our final determination. Our 
final determination concerning revised critical habitat will take into 
consideration all written comments and any additional information we 
receive during both comment periods. On the basis of public comments, 
we may, during the development of our final determination, find that 
areas proposed are not essential, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rule, economic analysis, or 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 any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule, economic 
analysis, and environmental assessment will be available for public 
inspection on http://www.regulations.gov at Docket No. FWS-R2-ES-2009-
0014, 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, economic analysis, and environmental assessment on the Internet 
at http://www.regulations.gov at Docket Number FWS-R2-ES-2009-0014, or 
by mail from the New Mexico Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT section).

Background

    It is our intent to discuss in this notice only those topics 
relevant to the designation of one additional critical habitat unit for 
Noel's amphipod (Gammarus desperatus) in this proposed rule. For more 
information on the Roswell springsnail (Pyrgulopsis roswellensis), 
Koster's springsnail (Juturnia kosteri), Noel's amphipod, and Pecos 
assiminea (Assiminea pecos), refer to the final listing rule published 
in the Federal Register on August 9, 2005 (70 FR 46304), and to the 
proposed rule revising critical habitat for Pecos assiminea and 
proposing new critical habitat for Roswell springsnail, Koster's 
springsnail, and Noel's amphipod that published in the Federal Register 
on June 22, 2010 (75 FR 35375).
    Noel's amphipod is a small, freshwater shrimp in the family 
Gammaridae that inhabits shallow, cool, well-oxygenated waters of 
streams, ponds, ditches, sloughs, and springs in southeast New Mexico 
(Holsinger 1976, p. 28; Pennak 1989, p. 478). Since publication of the 
June 22, 2010, proposed rule (75 FR 35375), a new population of 
amphipods found in spring vents along the Rio Hondo on the South Tract 
of Bitter Lake National Wildlife Refuge (Refuge) was confirmed 
genetically and morphologically to be Noel's amphipod (Berg 2010, p. 1; 
Lang 2010, pp. 2-3).

Previous Federal Actions

    On August 9, 2005, we listed Roswell springsnail, Koster's 
springsnail, Noel's amphipod, and Pecos assiminea as endangered under 
the Act (70 FR 46304). In that rule, we also designated critical 
habitat for Pecos assiminea at Diamond Y Springs Complex in Pecos 
County, Texas, and at East Sandia Springs in Reeves County, Texas. We 
excluded the Refuge from the critical habitat designation because 
special management for the four invertebrates was already occurring 
there.
    On March 12, 2009, in response to a complaint filed by Forest 
Guardians (now WildEarth Guardians) challenging the exclusion of the 
Refuge from the final critical habitat designation for the four 
species, we reopened the comment period on the proposed designation of 
lands of the Bitter Lake National Wildlife Refuge as critical habitat 
for the four invertebrates (74 FR 10701).
    On June 22, 2010, we published a proposed rule revising critical 
habitat for the Pecos assiminea and proposing new critical habitat for 
Roswell springsnail, Koster's springsnail, and Noel's amphipod (75 FR 
35375). The comment period was open for 60 days and closed on August 
23, 2010. Information we received during that comment period led to our 
consideration of a new area for critical habitat for the Noel's 
amphipod and, therefore, to publishing this additional notice to accept 
public comment on the proposed designation of the additional area.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) essential to the conservation of the species and
    (b) which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
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 
an endangered 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

[[Page 9299]]

and maintenance, propagation, live trapping, 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 requirement that Federal agencies insure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not 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 the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner seeks or requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) would apply, but even in the event of a destruction or adverse 
modification finding, the obligation of the Federal action agency and 
the landowner is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain the physical and biological features essential to the 
conservation of the species and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life-cycle needs of the species (areas on which are found the 
physical and biological features laid out in the appropriate quantity 
and spatial arrangement for the conservation of the species).
    Under the Act, we can designate critical habitat in areas outside 
the geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species. When the best available scientific data do not demonstrate 
that the conservation needs of the species require such additional 
areas, we will not designate critical habitat in areas outside the 
geographical area occupied by the species. An area currently occupied 
by the species but that was not occupied at the time of listing may, 
however, be essential to the conservation of the species and may be 
included in the critical habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our 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 we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process 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.
    We recognize that critical habitat designated at a particular point 
in time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be required for 
recovery of the species. Areas that are important to the conservation 
of the species, but are outside the critical habitat designation, will 
continue to be subject to conservation actions we implement under 
section 7(a)(1) of the Act. Areas that support populations are also 
subject to the regulatory protections afforded by the section 7(a)(2) 
jeopardy standard, as determined on the basis of the best available 
scientific information at the time of the agency 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 (HCPs), or other species conservation 
planning efforts if new information available at the time of these 
planning efforts calls for a different outcome.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied at the time of listing to designate as 
critical habitat, we consider the physical and biological features 
essential to the conservation of the species 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, or 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.
    We consider the physical or biological features essential to the 
conservation of the species to be the primary constituent elements 
(PCEs) laid out in the appropriate quantity and spatial arrangement for 
the conservation of the species. We derived the specific PCEs from 
studies of the habitat, ecology, and life history of the Roswell 
springsnail, Koster's springsnail, Noel's amphipod, and Pecos 
assiminea. The description of the PCEs for all four invertebrates and a 
full description of the essential environment as it relates to the 
specific PCEs are described in the June 22, 2010, published proposed 
designation of critical habitat for the four invertebrates (75 FR 
35375). We are restating the PCEs for Noel's amphipod here, as the 
additional proposed critical habitat area contains only that species.
Noel's Amphipod
    Based on the species' needs and our current knowledge of the life 
history, biology, and ecology of Noel's

[[Page 9300]]

amphipod and the habitat requirements for sustaining its essential 
life-history functions, we have determined that the primary constituent 
element essential to the conservation of Noel's amphipod is springs and 
spring-fed wetland systems that:
    (1) Have permanent, flowing, unpolluted water;
    (2) Have slow to moderate water velocities;
    (3) Have substrates including limestone cobble and aquatic 
vegetation;
    (4) Have stable water levels with natural diurnal (daily) and 
seasonal variations;
    (5) Consist of fresh to moderately saline water;
    (6) Have minimal sedimentation;
    (7) Vary in temperature between 10-20 [deg]C (50-68 [deg]F) with 
natural seasonal and diurnal variations slightly above and below that 
range; and
    (8) Provide abundant food, consisting of:
    (a) Submergent vegetation and decaying organic matter;
    (b) A surface film of algae, diatoms, bacteria, and fungi; and
    (c) Microbial foods, such as algae and bacteria, associated with 
aquatic plants, algae, bacteria, and decaying organic material.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and that may require special management considerations or 
protection. As stated in the final listing rule (70 FR 46304, August 9, 
2005), threats to the four invertebrates include reducing or 
eliminating water in suitable or occupied habitat through drought or 
pumping; introducing pollutants to levels unsuitable for the species 
from urban areas, agriculture, release of chemicals, and oil and gas 
operations; fires that reduce or eliminate available habitat; and 
introducing nonnative species into the invertebrates' inhabited spring 
systems such that suitable habitat is reduced or eliminated. Each of 
these threats is discussed in detail in the June 22, 2010, proposed 
designation of critical habitat for the four invertebrates (75 FR 
35375); only those threats relevant to the newly found population and 
not discussed in the previous proposed rule are discussed here. Other 
threats (water quantity, contamination from oil and gas operations, 
fire, and introduced species) are also threats to this population.
Water Contamination
    Water contamination is a significant threat for Noel's amphipod in 
the small spring vents along the Rio Hondo on the South Tract of the 
Refuge. One possible source of water contamination is runoff of 
agricultural fertilizers and pesticides that are applied to the 
croplands on the South Tract of the Refuge. This tract encompasses 
approximately 1,400 acres (ac) (566 hectares (ha)) that are closed to 
public access. About 330 ac (133.5 ha) are used as agricultural 
cropland (Service 1998, p. 7) to provide food, habitat, and feeding 
areas for wintering migratory bird populations (Service 1998, p. 7). 
Alfalfa, corn, hegari, barley, winter wheat, sorghum, and other small 
grains are cultivated on this tract (Service 2010, p. 14). Although 
crop rotation minimizes the need for chemical fertilizers, both 
fertilizers and pesticides are used on this tract, and these chemicals 
have the potential to enter the springs inhabited by Noel's amphipod. 
Chemicals used on the South Tract in the past 10 years include Accent 
(Nicosulfuron), Banvel (Dicamba), Pounce (Permethrin), Roundup and 
Equivalents (Glyphosate), Pursuit DG (Imazathapyr), Rhonox (2-
ethylhexyl ester of 2-methyl-4-chlorophenoxyacetic acid), Steadfast 
(Nicosulfuron/Rimsulfuron), Malathion 57 (Malathion), and Impact 
(Topramezone) (Service 2010, p. 43-44). To protect aquatic life in the 
Rio Hondo, the Refuge implements chemical-specific buffers within which 
the chemicals cannot be used. Additionally, restrictions are in place 
prohibiting use of chemicals on Refuges that dissolve and travel in 
groundwater. These restrictions and buffers serve to minimize exposure 
of Noel's amphipod to these chemicals. Nevertheless, there remains a 
potential for contamination and negative effects to Noel's amphipod and 
its habitat.
    The Refuge is in the process of reviewing the farming program on 
the South Tract. A draft environmental analysis (Service 2010, pp. 1-
55) evaluates the effects of several levels of farming on this tract. 
The current preferred alternative is to eliminate farming on the South 
Tract; if the draft environmental analysis is adopted, no future 
chemical application of fertilizers or pesticides would occur in the 
vicinity of Noel's amphipod populations, and this source of potential 
water contamination would be eliminated.
    Another potential source of water contamination in Noel's amphipod 
habitats on the South Tract is from periodic inundation by water from 
the Rio Hondo. The Rio Hondo is a perennial stream from Roswell to its 
confluence with the Pecos River, and its watershed extends eastward to 
the Sacramento Mountains. The majority of the lower Rio Hondo valley is 
used for extensive agricultural purposes, including ranching, 
commercial livestock feeding, and crop production, as well as 
residential land use (USACE 1974, p. 8). Stormwater runoff from areas 
with these land uses is one way contaminants can be transported into 
the Rio Hondo and into Noel's amphipod habitats. In addition, 
stormwater runoff from urban areas (such as from the City of Roswell) 
has been identified as potentially containing many materials such as 
solids, plastics, sediment, nutrients, metals, pathogens, salts, oils, 
fuels, and various chemicals, including antifreeze, detergents, 
pesticides, and other pollutants that can be toxic to aquatic life 
(Burton and Pitt 2002, pp. 6-7; Selbig 2009, p. 1).
    Another way the Rio Hondo receives contaminants is by wastewater 
effluent discharge (USACE 1974, p. 9; Smith 2000, p. 65). At the 
present time, the average return flow from City of Roswell Wastewater 
Treatment Facility is approximately 6.2 cubic feet per second (cfs) 
(0.18 cubic meters per second (cms)). Effluent from the Roswell 
Wastewater Treatment Facility is largely used for crop irrigation from 
February through November or is discharged to the North Spring River, 
which flows 5 miles (mi) (8 kilometers (km)) before entering the Rio 
Hondo (Smith 2000, p. 65; USEPA 2006, p. 2), upstream of the Noel's 
amphipod population. In 2010, the Roswell Wastewater Treatment Facility 
was modified to provide a higher level of water purification that 
should improve the quality of the effluent discharge (J. Anderson, City 
of Roswell, pers. comm. December 9, 2010; USEPA 2007, p. 5). However, 
some nutrients, bacteria, metals, pesticides, oxygen-demanding 
substances, organic chemicals, surfactants, flame retardants, personal 
care products, steroids, hormones, and pharmaceuticals are expected to 
remain in the Rio Hondo (USEPA 2009, pp. 26-39).
    Past analysis of water quality in the Rio Hondo has indicated some 
concerns. For example, sampling in the past yielded that total 
dissolved solids in Rio Hondo water averaged 935 mg/L, sulfates 
averaged 722 mg/L, and chlorides averaged 40 mg/L (USACE 1974, p. V-4) 
(both sulfates and chlorides are components of salt). However, more 
recent sampling by the New Mexico Environment Department (NMED) (2006a, 
p. 13) found higher total dissolved solids (average 7,321 mg/L), 
including more chloride (average

[[Page 9301]]

2,640 mg/L) and slightly more sulfate (average 776 mg/L) than reported 
by the USACE (1974, p. V-4). In addition, the NMED (2006b, p. 32) 
identified water quality parameters of nutrients, bacteria, salinity, 
and temperature as a concern in the upper Rio Hondo watershed. 
Potential sources of nutrients or bacteria are municipal wastewater 
treatment facility effluents, onsite waste treatment systems (septic 
tanks), residential areas, landscape maintenance, livestock feeding 
operations, rangeland grazing, atmospheric deposition, stream 
modification or destabilization, and urban areas and construction sites 
(NMED 2006b, p. 32).
    Riverine conditions in the Rio Hondo are not suitable for Noel's 
amphipod; the amphipod is found only in the nearby springs. However, 
Noel's amphipod could be affected by river water entering the spring 
runs during periods of high flow by either flushing the amphipods 
downstream or by river water mixing with spring water and introducing 
contaminants or altered water chemistry to the spring habitats. The Rio 
Hondo has a base flow between 2 and 6 cfs (0.06 to 0.17 cms) but 
exceeds 10 cfs (.03 cms; a flow high enough to inundate the springs) 
approximately 5 to 10 times per year for short durations (USGS 2010, p. 
1). Under base flow conditions, the spring runs that harbor Noel's 
amphipod are found along the riverbank at elevations higher than the 
stream, and, therefore, the water from the river does not mix with the 
spring outflow water. However, when Rio Hondo flows are elevated, these 
springs become inundated with water from the river and the amphipods 
may be exposed to contaminants from the Rio Hondo.
    Groundwater that supplies the outflow to the springs where the 
amphipod occurs is an additional potential source of spring water 
contamination. This water is clearly distinct from the water of the 
nearby Rio Hondo based on very different temperatures and low dissolved 
oxygen measurements (Lusk 2010, p. 1). Low dissolved oxygen is typical 
of spring water conditions, as oxygen enters the water mainly through 
the atmosphere (White et al. 1990, p. 584), and spring water 
temperatures remain much more constant throughout the year due to the 
insulating effect of soil and rock on groundwater (Constantz 1998, p. 
1610). The South Tract of the Refuge lies within the same groundwater 
source area as the Middle Tract, where the other Noel's amphipod 
populations are found and is, therefore, subject to the same threat of 
contamination from oil and gas activities as was discussed in the 
proposed designation of critical habitat for the four invertebrates (75 
FR 35375, June 22, 2010).
    There has been no research on the specific effects on Noel's 
amphipod of contaminants such as metals, pesticides, fertilizers, 
nutrients, or bacteria. However, there is some evidence that freshwater 
amphipods in the family Gammaridae (in particular, Gammarus) may 
require higher oxygen levels and less polluted water than some other 
amphipods such as Crangonyx (e.g., MacNeil et al. 1997, pp. 350, 356; 
MacNeil et al. 2000, p. 2). Gammarid amphipods (such as Noel's 
amphipod) may be considered an indicator of relatively unpolluted 
waters (MacNeil et al. 1997, p. 356; MacNeil et al. 2000, p. 6). 
Additionally, bacteria in high levels can affect amphipods directly 
through infections, or indirectly by depleting the dissolved oxygen in 
the water column through respiration or decomposition (Boylen and Brock 
1973, p. 631).

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 to determine critical habitat. 
In accordance with the Act and its implementing regulation at 50 CFR 
424.12(e), we consider whether designating additional areas--outside 
those currently occupied as well as those occupied at the time of 
listing--are necessary to ensure the conservation of the species. For 
our June 22, 2010 proposed designation of critical habitat (75 FR 
35375), we evaluated areas within the geographical area occupied at the 
time of listing that contain the features essential to the conservation 
of Roswell springsnail, Koster's springsnail, Noel's amphipod, and 
Pecos assiminea. We considered an area to be currently occupied if 
Roswell springsnail, Koster's springsnail, Pecos assiminea, or Noel's 
amphipod were found to be present by species experts within the last 5 
years and no major habitat modification has occurred that would 
preclude its presence. We also considered areas outside of the 
geographical area occupied at the time of the listing rule to designate 
critical habitat for the four invertebrates (75 FR 35375), and 
recommendations contained in State wildlife resource reports (Cole 
1985, pp. 93-104; Jones and Balleau 1996, pp. 1-16; Boghici 1997, pp. 
1-120; Balleau et al. 1999, pp. 1-42; NMDGF 1999, pp. A1-B46; NMDGF 
2006, pp. 1-16; NMDGF 2007, pp. 1-20; and NMDGF 2008, pp. 1-28) and the 
State recovery plan (NMDGF 2005, pp. 1-80) in making this 
determination. We also reviewed the available literature pertaining to 
habitat requirements, historic localities, and current localities for 
these species. This includes data submitted during section 7 
consultations and regional geographic information system (GIS) 
coverages.
    Since the June 22, 2010, proposal we identified an additional site 
along the Rio Hondo on the South Tract of the Refuge that is currently 
occupied by Noel's amphipod, but not by the other three species. We 
believe this site was occupied by Noel's amphipod at the time of 
listing because amphipods were first found at this site in 2006, one 
year after listing (Warrick 2006, p. 1). However, they were not 
taxonomically confirmed to be Noel's amphipod until 2010 (Berg 2010, p. 
1; Lang 2010, p. 1). Since this spring area is isolated from other 
occupied areas and no reintroduction efforts have taken place, it has 
likely been occupied for a very long time, but appropriate surveys had 
not been previously conducted to verify it. We reasonably assume, 
therefore, that the site was occupied at the time of listing in 2005 
and not discovered until 2006.
Essential Areas
    In our June 22, 2010 proposed designation of additional critical 
habitat for the four invertebrates, we selected areas based on the best 
scientific data available that possess those PCEs essential to the 
conservation of the species that may require special management 
considerations or protection. We are now modifying that proposed 
critical habitat to add the additional site along the Rio Hondo on the 
South Tract of the Refuge that is currently occupied only by Noel's 
amphipod. By inclusion of the additional site along the Rio Hondo, we 
are again proposing to designate as critical habitat all sites 
currently occupied by at least one of the four invertebrates.
    Our reason for proposing to designate all known occupied habitat 
for these species is that the four invertebrates are not migratory, nor 
is there frequent gene exchange between populations or critical habitat 
units. Further, the proposed critical habitat units in New Mexico and 
west Texas are sufficiently distant (40 to 100 mi (64 to 161 km)) from 
one another to rule out Pecos assiminea gene exchange. Therefore, due 
to the lack of frequent gene exchange, we have determined that all of 
the currently occupied sites of these populations are essential to the 
conservation of the species because they provide for the maintenance of 
the genetic diversity of the four invertebrates, and contain all of the

[[Page 9302]]

known remaining genetic diversity within each species. All of the 
proposed critical habitat units also have the defined PCEs and the 
kind, amount, and quality of habitat associated with those occurrences. 
The units contain the appropriate quantity and distribution of PCEs to 
support the life cycle stages we have determined are essential to the 
conservation of the species.
    When determining critical habitat boundaries within this proposed 
rule, including the newly proposed Unit 5, we made every effort to 
avoid including structures such as culverts and roads, because areas 
with such structures lack PCEs for the four invertebrates. The scale of 
the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
areas. Any such structures inadvertently left inside critical habitat 
boundaries shown on the map of this proposed rule have been excluded by 
text in the proposed rule and are not proposed for designation as 
critical habitat. Therefore, if the critical habitat were finalized as 
proposed, a Federal action involving these areas would not trigger 
section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the PCEs in the adjacent critical habitat.
    In summary, this proposed critical habitat designation includes 
populations of the four invertebrates and habitats that possess the 
physical and biological features essential to the conservation of the 
species. We believe the populations included in this designation, if 
secured, would provide for the conservation of Roswell springsnail, 
Koster's springsnail, Pecos assiminea, and Noel's amphipod by:
    (1) Maintaining the physical and biological features essential to 
the conservation of the species in areas where populations of the four 
invertebrates are known to occur, and
    (2) Maintaining the current distribution of these populations, and 
thus preserving genetic variation throughout the ranges of the four 
invertebrates and minimizing the potential effects of local extinction.

Summary of Changes From Previously Proposed and Designated Critical 
Habitat

    The area identified in this proposed rule constitutes an addition 
to the proposed revision of the areas we proposed for designation as 
critical habitat for the four invertebrates on June 22, 2010 (75 FR 
35375). All areas proposed on June 22, 2010, remain proposed for 
designation as critical habitat. In this proposed rule, we are 
proposing an additional area on the South Tract of the Refuge along the 
Rio Hondo in which amphipod populations were recently confirmed to be 
Noel's amphipod (Berg 2010, p. 1). Therefore, we are proposing as 
critical habitat all occupied sites for Noel's amphipod, as all of 
these sites are essential to the conservation of the species.

Proposed Critical Habitat Designation

    We are proposing an additional unit as critical habitat for Noel's 
amphipod in New Mexico. For a full description of Units 1 through 4, 
please see the June 22, 2010, proposed rule (75 FR 35375). The new Unit 
5 we propose as additional critical habitat for Noel's amphipod, and 
its approximate area, is displayed in Table 3. This location is 
currently occupied by Noel's amphipod. In total, we are proposing to 
designate as critical habitat 520.8 acres (210.8 hectares) for the four 
species.

  Table 1--Proposed Critical Habitat Units for Roswell Springsnail and
                          Koster's Springsnail
      [Area estimates reflect all land within critical habitat unit
  boundaries.] These units were proposed and discussed in the previous
  proposal to designate critical habitat for the four invertebrates on
                      June 22, 2010 (75 FR 35375).
------------------------------------------------------------------------
                                                          Size of  unit
      Critical habitat unit          Land ownership by       in acres
                                           type             (hectares)
------------------------------------------------------------------------
1. Sago/Bitter Creek Complex.....  Service.............      31.9 (12.9)
2. Impoundment Complex...........  Service.............      35.9 (14.5)
                                   City of Roswell.....        2.8 (1.1)
                                  --------------------------------------
    Total........................  ....................      70.6 (28.6)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


  Table 2--Proposed Revised Critical Habitat Units for Pecos Assiminea
      [Area estimates reflect all land within critical habitat unit
  boundaries.] These units were proposed and discussed in the previous
  proposal to designate critical habitat for the four invertebrates on
                      June 22, 2010 (75 FR 35375).
------------------------------------------------------------------------
                                                         Size of unit in
      Critical habitat unit          Land ownership by        acres
                                           type             (hectares)
------------------------------------------------------------------------
1. Sago/Bitter Creek Complex.....  Service.............      31.9 (12.9)
2. Impoundment Complex...........  Service.............      35.9 (14.5)
                                   City of Roswell.....        2.8 (1.1)
3. Diamond Y Springs Complex.....  The Nature              441.4 (178.6)
                                    Conservancy.
4. East Sandia Spring............  The Nature                  3.0 (1.2)
                                    Conservancy.
                                  --------------------------------------
    Total........................  ....................    515.0 (208.4)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


[[Page 9303]]


      Table 3--Proposed Critical Habitat Units for Noel's Amphipod
      [Area estimates reflect all land within critical habitat unit
 boundaries.] Units 1 and 2 were proposed and discussed in the previous
  proposal to designate critical habitat for the four invertebrates on
                      June 22, 2010 (75 FR 35375).
------------------------------------------------------------------------
                                                           Size of unit
      Critical habitat unit          Land ownership by       in acres
                                           type             (hectares)
------------------------------------------------------------------------
1. Sago/Bitter Creek Complex.....  Service.............      31.9 (12.9)
2. Impoundment Complex...........  Service.............      35.9 (14.5)
                                   City of Roswell.....        2.8 (1.1)
5. Rio Hondo.....................  Service.............        5.8 (2.3)
                                  --------------------------------------
    Total........................  ....................      76.4 (30.9)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present a brief description of the new unit and reasons why the 
proposed critical habitat unit meets the definition of critical habitat 
for Noel's amphipod below.

Unit 5: Rio Hondo

    Unit 5 consists of 5.8 ac (2.3 ha) of habitat that is currently 
occupied by Noel's amphipod (Berg 2010, p. 1; Lang 2010, p. 1). We 
propose to designate this unit as critical habitat for Noel's amphipod 
only. It contains all of the features essential to the conservation of 
this species. We consider this site to be occupied by Noel's amphipod 
at the time of listing. Although the amphipods were first found at this 
site in 2006, one year after listing (Warrick 2006, p. 1), they were 
taxonomically confirmed to be Noel's amphipod in 2010 (Berg 2010, p. 1; 
Lang 2010, p. 1). Unit 5 is located on the South Tract of Bitter Lake 
National Wildlife Refuge, Chaves County, New Mexico. The complex of 
springs and seeps along the banks of approximately 0.4 mi (0.64 km) of 
the Rio Hondo comprises the population center of this proposed critical 
habitat unit. The proposed designation includes all springs and seeps 
along the Rio Hondo in this reach. Habitat in this unit is threatened 
by subsurface drilling or similar activities that contaminate surface 
drainage or aquifer water; nonnative fish, crayfish, snails, and 
vegetation; chemical fertilizers and pesticides applied to adjacent 
farmland; contaminants in the Rio Hondo from upstream of the amphipod 
populations; fire; and unauthorized activities, including dumping of 
pollutants or fill material into occupied sites. Therefore, the PCEs in 
this unit may require special management considerations or protection 
to minimize impacts resulting from these threats. The entire unit is 
owned by the Service.

Exemptions

Application of Section 4(a)(3) of the Act

    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 an integrated natural resources management plan (INRMP) by 
November 17, 2001.
    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 areas we are 
proposing to designate as critical habitat for the four invertebrates; 
therefore, we are not exempting any areas from designation.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat 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 statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. 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, and 
determine whether the benefits of exclusion outweigh the benefits of 
inclusion. If, based on this analysis, we make this determination, then 
we can exclude the area only if such exclusion would not result in the 
extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws than 
may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; implementation of a management plan that provides equal 
to or more conservation that a critical habitat designation would 
provide; or some combination of these.
    After evaluating the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to determine whether the 
benefits of

[[Page 9304]]

exclusion outweigh those of inclusion. If we determine that they do, we 
then determine whether exclusion would result in extinction. If 
exclusion of an area from critical habitat will result in extinction, 
we will not exclude it from the designation.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors.
    A draft analysis of the economic effects of the proposed critical 
habitat designation was prepared and with this proposed rule is made 
available for public review. The economic analysis considers the 
economic impacts of conservation measures taken prior to and subsequent 
to the final listing and designation of critical habitat for the four 
invertebrates. Baseline impacts are typically defined as all management 
efforts that have occurred since the time of listing. We listed the 
four invertebrates in August 2005 (70 FR 46304). Incremental costs are 
those that are attributable to critical habitat designation alone. 
Total baseline costs associated with this proposed critical habitat 
designation are estimated to be $1,150,000 to $1,560,000 over the next 
30 years, and incremental costs are estimated to be $6,420 to $68,000.
    Copies of the economic analysis are available for downloading from 
the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2009-0014 or by contacting the New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. In preparing this proposal, we 
have determined that the lands within the proposed designation of 
critical habitat for the four invertebrates are not owned or managed by 
the DOD. We are aware that there are DOD lands in the vicinity of the 
Refuge, but our proposed designation does not include these lands, and 
we anticipate no impact to national security. Therefore, we have not 
proposed any areas for exclusion based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any habitat conservation plans (HCPs) or 
other management plans for the area, or whether there are conservation 
partnerships that would be encouraged by designation of, or exclusion 
from, critical habitat. In addition, we look at any tribal issues, and 
consider the government-to-government relationship of the United States 
with tribal entities. We also consider any social impacts that might 
occur because of the designation.
    In preparing this proposal, we have determined that there are 
currently no HCPs for the four invertebrates, and the proposed 
designation does not include any tribal lands or trust resources. We 
anticipate no impact to tribal lands, partnerships, or HCPs from this 
proposed critical habitat designation. There are no areas proposed for 
exclusion from this proposed designation based on other relevant 
impacts.
    The Refuge has developed and completed a Comprehensive Conservation 
Plan that provides the framework for protection and management of all 
trust resources, including federally listed species and sensitive 
natural habitats. These lands are protected areas for wildlife and are 
currently managed for the conservation of wildlife, including 
endangered and threatened species, and specifically the four 
invertebrates, including Noel's amphipod. A description of the 
management being provided by the Refuge for the conservation of the 
four invertebrates within areas proposed for designation as critical 
habitat is provided in the previous proposed rule to designate critical 
habitat for the four invertebrates (75 FR 35375, June 22, 2010).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we sought the expert opinions 
of three appropriate and independent specialists to review the proposed 
critical habitat during the public comment period for the previous 
proposed rule to designate critical habitat for the four invertebrates 
(75 FR 35375). The purpose of peer review was to ensure that our 
critical habitat designation is based on scientifically sound data, 
assumptions, and analyses. One substantial comment received from peer 
reviewers was to add the additional area as critical habitat for Noel's 
amphipod, which led to this proposal of an additional critical habitat 
unit for the species.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
Executive Order 12866 (E.O. 12866). OMB bases its determination upon 
the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish 
a notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities.
    In the draft economic analysis of the proposed revised critical 
habitat designation, we evaluated the potential economic effects on 
small business entities resulting from conservation actions related to 
the listing of the Roswell springsnail, Koster's springsnail, Noel's 
amphipod, and Pecos assiminea (baseline costs), and the additional 
potential economic effects resulting from the proposed

[[Page 9305]]

designation of their critical habitat (incremental costs). This 
analysis estimated prospective economic impacts due to the 
implementation of conservation efforts for the four invertebrates in 
five categories: (a) Modifications to oil and gas activities; (b) 
habitat management; (c) conservation of agricultural groundwater 
withdrawals; (d) control of residential septic systems; and (e) 
controls on confined animal feeding operations. We determined from our 
analysis that there will be minimal additional economic impacts to 
small entities resulting from the proposed designation of critical 
habitat, because almost all of the project modification and 
conservation costs identified in the economic analysis represent 
baseline costs that would be realized in the absence of critical 
habitat. There are several factors that eliminate the potential for 
incremental costs among small entities, including:
     Conservation measures implemented by New Mexico's oil and 
gas firms comply with BLM's Bitter Lake Habitat Restoration Zone 
requirements. Likewise, modifications pursued by oil and gas developers 
on private land near The Nature Conservancy units are already 
implemented for the benefit of various listed species in the immediate 
area.
     All of the proposed critical habitat is occupied. 
Therefore, ongoing project modifications and conservation measures 
requested through consultation with the Service under Section 7 of the 
Act are expected to be similar to those already required to satisfy the 
jeopardy standard.
     Most of the proposed critical habitat is already managed 
for conservation purposes. The small portion of proposed critical 
habitat owned by the City of Roswell has already been designated as 
critical habitat for the Pecos sunflower (Helianthus paradoxus) and, as 
a wetland, it is unsuitable for development.
     Habitat management costs are attributable to existing 
conservation agreements and are, therefore, classified as baseline 
costs.
     Most consultations under section 7 of the Act would be 
pursued in the absence of critical habitat. To the extent that 
incremental costs are introduced, they are borne by public agencies 
rather than private entities.
    The draft economic analysis estimates the annual incremental costs 
associated with the designation of critical habitat for the 
invertebrates to be very modest, at approximately $6,420. All of these 
costs would derive from the added effort associated with considering 
adverse modification in the context of section 7 consultations.
    We will consider the information in our final economic analysis, 
and in any public comments we receive, in determining whether this 
designation would result in a significant economic effect on a 
substantial number of small entities, and announce our determination in 
our final rule. Based on the above reasoning and currently available 
information, it appears that this rule may not result in a significant 
economic impact on a substantial number of small entities. If we 
determine that is the case, then we will certify that the designation 
of critical habitat for the four invertebrates will not have a 
significant economic impact on a substantial number of small entities, 
and a regulatory flexibility analysis will not be required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) 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; Aid to Families 
with Dependent Children 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 that receive 
Federal funding, assistance, or permits, or that 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 onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments. The public lands we are proposing to 
designate as critical habitat are owned by the City of Roswell and the 
Service. Small governments, such as the City of Roswell, will be 
affected only to the extent that any programs having Federal funds, 
permits, or other authorized activities must ensure that their actions 
will not adversely affect the critical habitat. As discussed above, the 
areas owned by the City of Roswell which are being proposed for 
designation as critical habitat for the four invertebrates have already 
been designated as critical habitat for the Pecos sunflower and are 
unsuitable for development. Therefore, a Small Government Agency Plan 
is not required. However, we will further evaluate this issue as we 
complete our final economic analysis, and review and revise this 
assessment as appropriate.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Roswell springsnail, Koster's springsnail, Noel's 
amphipod, and Pecos assiminea in a takings implications assessment. 
Critical habitat designation does not affect landowner

[[Page 9306]]

actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to allow actions that do require Federal 
funding or permits to go forward. The takings implications assessment 
concludes that this designation of critical habitat for the four 
invertebrates does not pose significant takings implications for lands 
within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed critical habitat designation with 
appropriate State resource agencies in New Mexico and Texas. The 
designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the physical and biological 
features of the habitat necessary to the conservation of the species 
are specifically identified. This information does not alter where and 
what federally sponsored activities may occur. However, it may assist 
local governments in long-range planning (rather than having them wait 
for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
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.

Civil Justice Reform--Executive Order 12988

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We propose designating critical habitat in 
accordance with the provisions of the Act. This proposed rule uses 
standard property descriptions and identifies the physical and 
biological features within the designated areas to assist the public in 
understanding the habitat needs of the Roswell springsnail, Koster's 
springsnail, Noel's amphipod, and Pecos assiminea.

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 of 1995 (44 
U.S.C. 3501 et seq.). 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 (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by the National Environmental Policy 
Act (42 U.S.C. 4321 et seq.) in connection with designating critical 
habitat under the Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244). This position was upheld by the U.S. Court of Appeals for the 
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), 
cert. denied 516 U.S. 1042 (1996)). However, when the range of the 
species includes States within the Tenth Circuit, such as that of the 
Roswell springsnail, Koster's springsnail, Noel's amphipod, and Pecos 
assiminea, under the Tenth Circuit ruling in Catron County Board of 
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th 
Cir. 1996), we will undertake an analysis for critical habitat 
designation and notify the public of the availability of the 
environmental assessment for this proposal when it is finished. A draft 
environmental assessment is now available for public review along with 
the publication of this proposal. You may obtain a copy of the 
environmental assessment online at http://www.regulations.gov at Docket 
No. FWS-R2-ES-2009-0014, by mail from the New Mexico Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's 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 of, and no tribal lands that are essential for the 
conservation of, the Roswell springsnail, Koster's springsnail, Pecos 
assiminea, and Noel's amphipod. Therefore, we have not proposed 
designation of critical habitat for the four invertebrates on tribal 
lands.

Energy Supply, Distribution, or Use

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects

[[Page 9307]]

when undertaking certain actions. We do not expect this rule to 
significantly affect energy supplies, distribution, or use due to the 
small amount of habitat we are proposing for designation and the fact 
that the habitat is primarily on a National Wildlife Refuge. Therefore, 
we have made a preliminary determination that this action is not a 
significant energy action, and no Statement of Energy Effects is 
required. However, we will further evaluate this issue as we complete 
our final economic analysis, and review and revise this assessment as 
appropriate.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov at Docket No. FWS-R2-ES-2009-0014 and upon 
request from the New Mexico Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this package are the staff members of the 
New Mexico Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 75 FR 35375 (June 22, 2010), as follows:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

    2. In Sec.  17.95, Critical habitat for ``Noel's amphipod (Gammarus 
desperatus)'', which was proposed to be added to paragraph (h) on June 
22, 2010, at 75 FR 35375, is further amended by adding a paragraph (7) 
to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (h) Crustaceans.
* * * * *
    Noel's amphipod (Gammarus desperatus).
* * * * *
    (7) Unit 5: Rio Hondo, Chaves County, New Mexico.
    (i) [Reserved for textual description of unit.]
    (ii) Map of Unit 5 for Noel's amphipod follows:
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* * * * *

    Dated: February 10, 2011.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-3673 Filed 2-16-11; 8:45 am]
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