[Federal Register Volume 76, Number 192 (Tuesday, October 4, 2011)]
[Proposed Rules]
[Pages 61330-61339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25083]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2010-0072; MO 92210-0-0009-B4]
RIN 1018-AX17


Endangered and Threatened Wildlife and Plants; Endangered Status 
and Designation of Critical Habitat for Spikedace and Loach Minnow; 
Revised Proposed Rule

AGENCY: Fish and Wildlife Service, Interior.

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

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening 
of the October 28, 2010, public comment period on the proposed 
designation of critical habitat and proposed endangered status for the 
spikedace (Meda fulgida) and loach minnow (Tiaroga cobitis) under the 
Endangered Species Act of 1973, as amended (Act). We also announce the 
availability of a draft economic analysis (DEA) and draft environmental 
assessment (EA) on the proposed designation of critical habitat for 
spikedace and loach minnow, and an amended required determinations 
section of the proposal. We are also announcing a revision to proposed 
critical habitat units 6 (San Francisco River Subbasin) and 8 (Gila 
River Subbasin) for loach minnow. We are reopening the comment period 
to allow all interested parties an opportunity to comment 
simultaneously on the proposed rule, revisions to the proposed rule, 
the associated DEA and draft EA, and the amended required 
determinations section. Comments previously submitted need not be 
resubmitted and will be fully considered in preparation of the final 
rule.

DATES: Comment submission: We will consider comments received on or 
before November 3, 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 considered in the final decision on this 
action.
    Public hearing: We will hold a public hearing on the critical 
habitat proposal, draft economic analysis, and draft environmental 
assessment, preceded by an informational session. The informational 
session will be held from 3 to 4:30 p.m., followed by a public hearing 
from 6:30 to 8 p.m., on October 17, 2011.

ADDRESSES: Document availability: You may obtain a copy of the DEA or 
EA at http://www.regulations.gov at Docket No. FWS-R2-ES-2010-0072 or 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT.
    Comment submission: You may submit comments by one of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R2-
ES-2010-0072.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2010-0072, Division of Policy and Directives 
Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, 
Suite 222, Arlington, VA 22203.
    Public hearing: The public hearing of October 17, 2011, will be 
held at the Apache Gold Convention Center (Geronimo Room), located five 
miles east of Globe, Arizona on Highway 70. People needing reasonable 
accommodations in order to attend and participate in the public 
hearings should contact Steve Spangle, Arizona Ecological Services 
Office, at (602) 242-0210 as soon as possible (see FOR FURTHER 
INFORMATION CONTACT). In order to allow sufficient time to process 
requests, please call no later than one week before the hearing date.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Office, 2321 W. 
Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone (602) 242-
0210; facsimile (602) 242-2513. Persons who use a telecommunications 
device for the deaf (TDD) may 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 uplisting and designation of 
critical habitat for the spikedace and loach minnow that was published 
in the Federal Register on October 28, 2010 (75 FR 66482), our draft 
economic analysis and draft environmental assessment of the proposed 
designation, and the amended required determinations provided in this 
document. We will consider information and recommendations from all 
interested parties. We are particularly interested in comments 
concerning:
    (1) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which 
are: (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (b) Overutilization for 
commercial, recreational, scientific, or educational purposes; (c) 
Disease or predation; (d) The inadequacy of existing regulatory 
mechanisms; or (e) Other natural or manmade factors affecting its 
continued existence.
    (2) Additional information concerning the range, distribution, and 
population size of this species, including the locations of any 
additional populations of this species.
    (3) Any information on the biological or ecological requirements of 
the species.
    (4) 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 may not be prudent.
    (5) Specific information on:
    (a) The amount and distribution of spikedace and loach minnow 
habitat;
    (b) What areas occupied at the time of listing and containing 
features essential to the conservation of the species should be 
included in the designation and why;

[[Page 61331]]

    (c) Special management considerations or protections that features 
essential to the conservation of spikedace and loach minnow, as 
identified in this proposal, may require, including managing 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.
    (6) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (7) Any probable economic, national security, or other impacts of 
designating any area that may be included in the final designation. We 
are particularly interested in any impacts on small entities or 
families, and the benefits of including or excluding areas that exhibit 
these impacts.
    (8) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (9) Information on whether the benefit of an exclusion of any 
particular area outweighs the benefit of inclusion under section 
4(b)(2) of the Act. We specifically solicit the delivery of spikedace- 
and loach minnow-specific management plans for areas included in this 
proposed designation. Management plans considered in previous critical 
habitat exclusions for spikedace and loach minnow are available through 
the contact information listed in FOR FURTHER INFORMATION CONTACT.
    (10) Information on the projected and reasonably likely impacts of 
climate change on spikedace and loach minnow and on the critical 
habitat areas we are proposing.
    If you submitted comments or information on the proposed rule (75 
FR 66482) during the initial comment period from October 28, 2010, to 
December 27, 2010, please do not resubmit them. We will incorporate 
them into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determination. Our 
final determination concerning 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, DEA, or draft environmental assessment by one of the methods 
listed in ADDRESSES. We will not consider comments sent by e-mail or 
fax or to an address not listed in ADDRESSES.
    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, DEA, and draft 
environmental assessment will be available for public inspection on 
http://www.regulations.gov at Docket No. FWS-R2-ES-2010-0072, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Arizona Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT). You may obtain copies of the proposed rule and 
the DEA on the Internet at http://www.regulations.gov at Docket Number 
FWS-R2-ES-2010-0072, or by mail from the Arizona Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the spikedace and loach minnow 
in this document. For more information on previous Federal actions 
concerning the spikedace and loach minnow, refer to the proposed 
designation of critical habitat published in the Federal Register on 
October 28, 2010 (75 FR 66482). For more information on the spikedace 
and loach minnow or their habitat, refer to the final listing rule 
published in the Federal Register on (51 FR 23769, July 1, 1986 
(spikedace), and 51 FR 39468, October 28, 1986 (loach minnow), and the 
previous critical habitat designation (72 FR 13356, March 21, 2007), 
which are available online from the Arizona Ecological Services Office 
(see FOR FURTHER INFORMATION CONTACT). The recovery plans for spikedace 
and loach minnow were both finalized in 1991, and we have initiated 
updates and revisions for both plans.
    On December 20, 2005, we published a proposed critical habitat 
designation (70 FR 75546), and on March 21, 2007, we published a final 
critical habitat designation (72 FR 13356) for the spikedace and loach 
minnow. The 2007 designation was challenged in Coalition of Arizona/New 
Mexico Counties for Stable Economic Growth v. Salazar, (D.N.M.), which 
was consolidated with another lawsuit brought by the Center for 
Biological Diversity. Both parties contested the validity of the 
designation, but for different reasons. We filed a motion for voluntary 
remand of the final rule on February 2, 2009, in order to reconsider 
the final rule in light of a recently issued Department of the Interior 
Solicitor's Opinion, which discusses the Secretary of the Interior's 
authority to exclude areas from a critical habitat designation under 
section 4(b)(2) of the Act. On May 4, 2009, the Court granted our 
motion for voluntary remand, but retained the 2007 critical habitat 
designation pending promulgation of a new designation.
    On October 28, 2010, we published a proposed rule to designate 
critical habitat for the spikedace and loach minnow (75 FR 66482). We 
proposed 1,168 kilometers (km) (726 miles (mi)) of streams as critical 
habitat for spikedace, and 1,172.4 km (728.5 mi) of streams as critical 
habitat for loach minnow. Of this total mileage, 874 km (543 mi) of 
streams are overlapping (proposed for designation for both species). We 
are revising critical habitat unit 6 (San Francisco River Subbasin) for 
loach minnow by adding 22.8 km (14.2 mi) to the San Francisco River. In 
addition, we are proposing 31.4 km (19.5 mi) of Bear Creek for loach 
minnow in Grant County, New Mexico. This would be an addition to 
critical habitat unit 8 (Gila River subbasin). The explanation for 
these proposed changes are discussed below. The October 28, 2010, 
proposal had a 60-day comment period, ending December 27, 2010. We 
received two requests for public hearing, and have scheduled a public 
hearing on the date specified above in DATES and at the location 
specified above in ADDRESSES. We will submit for publication in the 
Federal Register a final critical habitat designation for spikedace and 
loach minnow on or before October 28, 2011.
    We are notifying the public of several changes made to the proposed 
listing rule. First, in the proposed rule, we defined occupied areas as 
those streams for which we have species records up to 1986, when they 
were first listed (51 FR 39468, October 28, 1986, for loach minnow; and 
51 FR 23769, July 1, 1986, for spikedace), as well as areas determined 
to be occupied since listing. To improve clarity, we are revising the

[[Page 61332]]

definition. We propose to include as occupied those areas which were 
identified as occupied for each species in the original listing 
documents, as well as any additional areas determined to be occupied 
after 1986. Our reasoning for the inclusion of these additional areas 
(post-1986) is that it is likely that those areas were occupied at the 
time of the original listings, but had not been detected in surveys. 
This change in definition does not result in a change to any of the 
areas included or excluded as critical habitat in the proposed rule, 
and the total amount designated as critical habitat will not change, 
except for the addition of critical habitat along the San Francisco 
River discussed below. However, some of the areas previously identified 
as occupied habitat in the proposed rule may now be classified as 
essential unoccupied habitat.
    Second, we would like to provide clarification regarding the 
criteria that we used to identify critical habitat in our proposed 
rule. We based our criteria, in part, on a preliminary assessment of 
steps necessary to achieve recovery of spikedace and loach minnow. We 
refer to these criteria as a ruleset and the elements are described in 
the ``Criteria Used to Identify Critical Habitat'' section of the 
proposed rule (October 28, 2010, 75 FR 66482). One of the criteria used 
evaluates the potential of a stream segment to ``connect to other 
occupied areas, which will enhance genetic exchange between 
populations.'' In the proposed rule, we identified the following three 
segments under this criterion: Granite Creek in the Verde River 
Subbasin for both species; and Deer Creek and Turkey Creek for loach 
minnow in the San Pedro Subbasin. After additional review, we conclude 
that these three segments do not connect to other occupied areas, and 
there are no other unoccupied stream segments in the proposed rule that 
connect occupied habitats. At this time, we are unable to identify 
other areas that could serve as connective corridors between occupied 
and unoccupied habitat. Therefore, we are removing this criterion as an 
element of the rule set. The removal of this criterion does not alter 
the proposed rule or the amount of critical habitat being proposed, 
except for the revision within unit 6, as the areas proposed meet one 
or more of the remaining criteria outlined in the ruleset.
    We acknowledge the absence of connective corridors in the proposed 
designation. We continue to believe that both loach minnow and 
spikedace conservation will require genetic exchange between the 
remaining populations to allow for genetic variation, which is 
important for species' fitness and adaptive capability. Our inability 
to identify unoccupied streams that would provide connections between 
occupied areas is a result of the highly degraded condition of 
unoccupied habitat and the uncertainty of stream corridor restoration 
potential. We also acknowledge that other areas, outside of the 
critical habitat designation, may be necessary for long-term 
conservation. These areas will be subject to future on-the-ground 
recovery actions and opportunities under section 7(a)(1) of the Act. 
Furthermore, we will address the issue of restoration of genetic 
exchange in our revised Recovery Plan.
    Third, we would like to correct an error we made in the October 28, 
2010, proposed rule. The error is within Unit 6 (San Francisco River 
Subbasin), and applies to the amount of stream miles designated as 
critical habitat for loach minnow on the San Francisco River. On pp. 
66515, 66533 (legal description), and 66534 (map), we state that 181.0 
km (112.3 mi) of the San Francisco River, from the confluence with the 
Gila River in Greenlee County, Arizona, upstream to the confluence with 
the Tularosa River in Catron County, New Mexico, is included in the 
designation. We intended to use the same area described in the 2007 
final rule (72 FR 13356); that is, 203.5 km (126.5 mi) of the San 
Francisco River, from the confluence with the Gila River upstream to 
the mouth of the Box, a canyon above the town of Reserve in Catron 
County, New Mexico. This will add 22.8 km (14.2 mi) to the current 
designation for loach minnow. The total amount of designated habitat 
for loach minnow is 1,164 km (723 mi), rather than the 1,141 km (709 
mi) referred to in the October 28, 2010, proposed rule. The unit 
descriptions, legal description, and map will be corrected in the final 
rule. The stream miles (181.0 km (112.3)) of the San Francisco River 
designated for spikedace will remain the same.
    Fourth, we are going to propose an additional stream segment in New 
Mexico for loach minnow. In our October 28, 2010, proposed rule, Bear 
Creek in Grant County, New Mexico, was not included in the proposed 
critical habitat designation. Although we had records of loach minnow 
occurrence in Bear Creek in 2005, we concluded that most of the stream 
was intermittent and that loach minnow were not likely to persist there 
over time. We also concluded that the loach minnow in Bear Creek likely 
moved upstream during a period of high flow when Bear Creek was 
temporarily connected to the Gila River where loach minnow are known to 
persist. After the receipt of agency and public comments and our 
internal review, we have also been made aware of loach minnow records 
in Bear Creek from 2006. Bear Creek would be categorized as a 1a stream 
under the ruleset found in the proposed rule because of the records of 
loach minnow from 2005 and 2006. Given the presence of loach minnow in 
the upper portion of Bear Creek, in this revised proposed rule in unit 
8, we propose to include 31.4 km (19.5 mi) of Bear Creek from the 
confluence with the Gila River upstream to the confluence with Sycamore 
and North Fork Walnut creeks. We recognize that portions of this stream 
are intermittent, but also acknowledge that streams with intermittent 
flows can function as connective corridors through which the species 
may move when the area is wetted. We will continue to solicit 
additional information on this stream segment during the open comment 
period to aid us in making a determination of the suitability of 
including this stream in the final rule.
    We have a final clarification on the language used in our proposed 
rule. Under the Act and its implementing regulations, we are required 
to identify the physical and biological features (PBFs) essential to 
the conservation of spikedace and loach minnow in areas occupied at the 
time of listing, focusing on the features' primary constituent elements 
(PCEs). We consider PCEs to be the elements of physical and biological 
features that, when laid out in the appropriate quantity and spatial 
arrangement to provide for a species' life-history processes, are 
essential to the conservation of the species. We outline the 
appropriate quantities and spatial arrangements of the elements in the 
Physical and Biological Features (PBFs) section of the October 28, 
2010, proposed rule. For example, spawning substrate would be 
considered an essential feature, while the specific composition (sand, 
gravel, and cobble) and level of embeddedness are the elements (PCEs) 
of that feature.
    Section 3 of the Act defines critical habitat as 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 essential to the conservation of the species and 
that may require special management considerations or protection, and 
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. If the proposed rule is 
made final, section 7 of

[[Page 61333]]

the Act will prohibit destruction or adverse modification of critical 
habitat by any activity funded, authorized, or carried out by any 
Federal agency. Federal agencies proposing actions affecting critical 
habitat must consult with us on the effects of their proposed actions, 
under section 7(a)(2) of the Act.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. 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.
    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 (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that 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; or implementation of a management plan.
    The final decision on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis (DEA) concerning the 
proposed critical habitat designation, which is available for review 
and comment (see ADDRESSES).

Draft Economic Analysis

    To consider the economic impacts ``of specifying any particular 
area as critical habitat,'' as section 4(b)(2) of the Act requires, the 
Service must first identify the probable economic impacts that stem 
from a designation (50 CFR 424.19). We have interpreted ``probable 
economic impacts'' to be those potential impacts that are reasonably 
likely to occur as a result of the critical habitat designation. The 
identification of the probable incremental effects of a critical 
habitat designation involves comparing the economic and other relevant 
impacts that would be present without the designation of a particular 
area as critical habitat with what would be expected if the particular 
area is included in the designation--in other words, a comparison of 
the world with and without critical habitat. A key aspect of this 
comparison requires identifying, at a general level, the additional 
protections for species (e.g., project modification or conservation 
measures) or changes in behavior (e.g., increased awareness that may 
result in reinitiations of consultation, or additional consultations, 
under section 7 of the Act; compliance with other laws such as State 
environmental oversight regulations) and the corresponding costs and 
impacts to society that may result as a consequence of the critical 
habitat designation. The scope of probable impacts, then, is inevitably 
determined by the purpose and function of critical habitat as 
understood at the time of designation and the conservation measures in 
place prior to the designation for the particular species and its 
habitat.
    The Service traditionally understood the first sentence of section 
4(b)(2) of the Act to require consideration of only those impacts that 
are solely attributable to--that would not occur ``but for''--the 
proposed critical habitat designation. Under this approach, known as 
the ``incremental effects analysis'' (otherwise referred to by the 
courts as the ``baseline approach''), the Service isolates the probable 
impacts that would result solely from the designation (incremental 
effects) from those that stem also from other causes, such as the 
underlying listing determination or other conservation measures being 
implemented for the species and its habitat (baseline effects). Once 
identified, the resulting incremental effects of the designation are 
then used in the balancing analysis, if one is conducted, under the 
second sentence of section 4(b)(2) for evaluating the benefits of 
including a particular area in, or excluding it from, critical habitat, 
and for evaluating compliance with the required determinations.
    However, the application of this relatively straightforward 
paradigm had become problematic by the late 1990s, in light of our 
interpretations and practices that had the effect of minimizing the 
role of critical habitat in safeguarding species' recovery. This 
stemmed in part from the Service's and National Marine Fisheries 
Service's 1986 joint regulations implementing the interagency 
consultation provisions of section 7 of the Act (50 CFR 402). Those 
regulations govern the assessment of Federal actions that may have 
adverse impacts on listed species or their critical habitat. They 
interpret and implement the statute's prohibitions against actions that 
are likely to jeopardize the continued existence of listed species or 
result in destruction or adverse modification of critical habitat. 
However, two key definitions (``jeopardize the continued existence of'' 
and ``destruction or adverse modification'') had been defined in a 
similar manner in that they each evaluated impacts on both survival and 
recovery of a species.
    Moreover, our general practice had been to infrequently designate 
critical habitat in areas where the species was not currently present; 
because consultation under the jeopardy standard can occur wherever the 
species is present, this limited the circumstances in which a 
consultation under the adverse-modification standard would take place 
without a concomitant consultation under the jeopardy standard. Because 
the section 7 prohibition against Federal agency actions that may 
result in ``destruction or adverse modification'' is the most 
significant and direct protection afforded by a critical habitat 
designation, equating the two standards while making them occur in 
conjunction with each other made it practically impossible to 
distinguish the protections stemming from critical habitat (i.e., 
incremental effects) from those afforded a species by it being listed 
as an endangered or threatened species (i.e., baseline effects).
    As a result, case law significantly influenced the Service's 
methodology for evaluating the probable economic effects of a critical 
habitat designation. In 2001, the United States Court of Appeals for 
the Tenth Circuit held that, in light of the narrow role reserved for 
critical habitat under the regulations and the Service's view at the 
time, the Service was legally precluded from relying on the 
incremental-effects approach. New Mexico Cattle Growers Ass'n v. United 
States Fish & Wildlife Serv., 248 F.3d 1277, 1283-85 (10th Cir. 2001). 
The court specifically identified the source of the problem as being 
``FWS's long held policy position that [critical habitat 
determinations] are unhelpful, duplicative, and unnecessary.'' The 
court held that this position was rooted in the interpretations of the 
``jeopardy standard'' and the ``adverse

[[Page 61334]]

modification standard'' in 50 CFR 402.02, which the court saw as being 
defined either to be ``virtually identical'' or such that the latter 
was subsumed into the ``jeopardy standard.''
    To satisfy section 4(b)(2) of the Act in light of the then-current 
regulations, the court ruled that the Service must consider all impacts 
that stem in any way from the proposed critical habitat designation, 
even if they are also partially caused (or, caused ``coextensively'') 
by listing. In other words, even if there was no ``but for'' economic 
impact as a result of critical habitat designation, the Service was 
still required to consider the coextensive economic impacts. The court 
did not define ``coextensive'' economic analysis; however, the Services 
interpreted ``coextensive'' to be the sum of anticipated baseline and 
incremental economic impacts. As a consequence, following the New 
Mexico Cattle Growers decision, the Service began to apply a 
coextensive approach that evaluated all costs related to the 
conservation of the species and its habitat, including those attributed 
to the species being listed as an endangered or threatened species.
    Meanwhile, other courts began to conclude that the definition of 
``destruction or adverse modification'' in the 1986 regulations did not 
adequately fulfill the statute's conservation purpose. In fact, the 
Ninth Circuit in Gifford Pinchot Task Force v. U.S. Fish & Wildlife 
Service, 378 F.3d 1059 (9th Cir.), modified, 387 F.3d 968 (9th Cir. 
2004), invalidated the regulatory definition of ``destruction or 
adverse modification.'' Following the Ninth Circuit's decision, most 
district court decisions have rejected coextensive economic analyses. 
For example, the court in Cape Hatteras Access Pres. Alliance v DOI, 
344 F. Supp. 2d 108, 128-30 (D.D.C. 2004) (Cape Hatteras) found that an 
evaluation of the incremental effect of a critical habitat designation 
was reasonable and permissible. In that decision the court stated, 
``[t]he baseline approach is a reasonable method for assessing the 
actual costs of a particular critical habitat designation. To find the 
true cost of a designation, the world with the designation must be 
compared to the world without it. * * * In order to calculate the costs 
above the baseline, those that are the ``but for'' result of 
designation, the agency may need to consider the economic impact of 
listing and other events that contribute to and fall below the 
baseline.''
    Similarly, in 2010, the Ninth Circuit concluded that the faulty 
underlying premises that led to the invalidation of the incremental 
effects (baseline approach) in 2001 no longer applied, and that our 
consideration of ``but for'' impacts in the increment above the 
baseline is permissible under the Act (Arizona Cattle Growers Ass'n v. 
Salazar, 606 F.3d 1160, 1173 (9th Cir. 2010). It, therefore, held, in 
light of this change in circumstances, that ``the FWS may employ the 
baseline approach in analyzing a critical habitat designation.'' In so 
holding, the court noted that the baseline approach is ``more logical 
than'' the coextensive approach. The Ninth Circuit further reaffirmed 
its conclusion in Home Builders Ass'n of Northern California v. U.S. 
Fish & Wildlife Serv. 616 F.3d 983 (9th Cir. 2010), in which plaintiffs 
challenged the use of the Service's incremental-effects (baseline) 
approach. The Court held that the Service properly analyzed the 
economic impacts of the critical habitat designation for vernal pool 
species and stated that the plain language of the Act directs the 
agency to consider only those impacts caused by the critical habitat 
designation itself.
    In 2008, the Solicitor for the Department of the Interior drafted a 
Memorandum Opinion summarizing case law on the Secretary's authority to 
exclude areas from a critical habitat designation under section 4(b)(2) 
of the Act, including the appropriate use of economic analyses in 
critical habitat determinations. [Department of the Interior Solicitor 
Memorandum, October 3, 2008, The Secretary's Authority to Exclude Areas 
from a Critical Habitat Designation under Section 4(b)(2) of the 
Endangered Species Act (Opinion M-37016)] In this opinion, the 
Solicitor concluded that--

the reasoning in the Cape Hatteras line of cases persuasive for the 
proposition that ``to find the true cost of a designation, the world 
with the designation must be compared to the world without it.'' 
Cape Hatteras, 344 F. Supp. 2d at 130. The purpose of excluding an 
area from critical habitat is to avoid the impacts of the 
designation, or to realize the benefits that the Secretary 
determines will flow from that exclusion. Benefits of exclusion are 
often in the form of avoiding a cost imposed by the designation. By 
definition, when impacts are completely ``coextensive'', ``such that 
they will occur even if the area is not designated, any ``cost'' 
imposed by the designation will not be avoided if the area at issue 
is excluded. Therefore, exclusion of the area based on such costs 
would serve no purpose.

    Consistent with recent case law and the 2008 Solicitors Memorandum 
Opinion, the Service concludes that the appropriate analysis to 
consider economic impacts of a critical habitat designation is to limit 
the evaluation of the probable economic effects to those that are 
incremental to, or result solely from, the designation itself. The 
Service also believes that the use of an incremental-effects analysis 
is sufficient to fulfill the requirement under section 4(b)(2) of the 
Act. However, given that we do not have a new definition of 
``destruction or adverse modification,'' there may be certain 
circumstances where we may want to evaluate impacts beyond those that 
are solely incremental. Such is the case with spikedace and loach 
minnow, where we have extensive case law and determinations of effects 
that suggest we evaluate not only incremental effects, but also 
coextensive effects. While we think that the incremental effects 
approach is appropriate and meets the intent of the Act, we have taken 
a conservative approach in this instance to ensure that we are fully 
evaluating the probable effects of this designation.
    The Service attempted to clarify the difference between the 
jeopardy and adverse modification standards for the spikedace and loach 
minnow critical habitat in our Incremental Effects Memorandum. This 
memorandum outlined typical conservation actions, project 
modifications, and minimization measures that would be requested by the 
Service to meet the ``not likely to destroy or adversely modify'' 
standard, above what would be requested to avoid jeopardy to the 
species. This evaluation of the incremental effects as outlined in the 
Incremental Effects Memorandum has been used as the basis to develop 
the draft economic analysis of this proposed designation of critical 
habitat.
    The purpose of the draft economic analysis is to identify and 
analyze the probable incremental economic impacts associated with the 
proposed critical habitat designation for the spikedace and loach 
minnow. The analysis focuses on quantification of the incremental costs 
of this rulemaking, but provides information on expected costs of 
conservation efforts expected to occur under the regulatory baseline as 
context. The ``incremental'' economic impacts are those not expected to 
occur absent the designation of critical habitat for the spikedace and 
loach minnow. For a further description of the methodology of the 
analysis, see Chapter 2, ``Framework for Analysis,'' of the draft 
economic analysis.
    The draft economic analysis provides estimated costs of the 
reasonably probable incremental economic impacts of the proposed 
critical habitat designation for the spikedace and loach minnow over 
the next 20 years, which was determined to be the appropriate period 
for analysis because limited planning information is available for

[[Page 61335]]

most activities to forecast activity levels for projects beyond a 20-
year timeframe. It also notes that the timeframe over which certain 
future impacts can be forecast may be a shorter period. The draft 
economic analysis quantifies economic impacts of spikedace and loach 
minnow conservation efforts associated with the following categories of 
activity:
    (1) Water management: Including agricultural, municipal, and 
industrial water diversions. Other affected activities may include 
flood control and dam operation and maintenance.
    (2) Grazing: Particularly, increased sedimentation and erosion 
related to grazing on Bureau of Land Management and U.S. Forest Service 
lands.
    (3) Mining: In particular, copper mining operations along Eagle 
Creek previously have expressed concerns about the potential for 
critical habitat designation to affect ongoing operations.
    (4) Species management: Including installation of fish barriers, 
native species recovery, annual monitoring, and impacts to 
sportfishing.
    (5) Residential and commercial development: Including construction 
in riparian areas and runoff from roads and golf courses.
    (6) Transportation: Particularly construction and maintenance of 
bridges, roads, and culverts.
    (7) Fire Management. Including increased ash, change in water 
temperature, debris flows, and the use of chemical flame retardants.
    The draft economic analysis also describes various concerns 
expressed by Arizona Tribes concerning possible restrictions on their 
water rights or water management, but does not quantify potential 
tribal impacts, except additional administrative costs.
    Total incremental impacts for all of the above activities are 
estimated to be $2.29 to $47.2 million over 20 years ($202,000 to $4.16 
million annually) using a real rate of seven percent. However, as 
discussed above, we are taking a more conservative approach in that we 
are also evaluating coextensive effects (the sum of baseline and 
incremental effects). Coextensive effects are estimated to be $75.29 to 
$169.2 million over 20 years ($6.602 to $15.16 million annualized) 
using a real rate of seven percent. Quantified baseline costs are 
primarily associated with:
    (1) Water conservation and protection measures that are currently 
ongoing at Fort Huachuca related to the San Pedro River unit ($4.4 
million, annualized at a seven percent discount rate). Many of these 
actions have been undertaken at the Fort to be protective of the 
Huachuca water umbel, but are expected to provide baseline protections 
to the spikedace and loach minnow.
    (2) $0.1 million to $2.6 million (annualized at a seven percent 
discount rate) related to grazing-related conservation efforts, 
including riparian fencing construction and maintenance.
    (3) $1.7 to $3.0 million (annualized at a seven percent discount 
rate) in other species management efforts, including activities 
undertaken by the U.S. Bureau of Reclamation, the Arizona Game and Fish 
Department, and the New Mexico Department of Game and Fish.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis, as well as all aspects of the 
proposed rule and our amended required determinations. We may revise 
the proposed rule or supporting documents to incorporate or address 
information we receive during the public comment period. 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, provided the exclusion will not result in the extinction of this 
species.

Draft Environmental Assessment

    The purpose of this draft EA, prepared pursuant to the National 
Environmental Policy Act (NEPA), is to identify and disclose the 
environmental consequences resulting from the proposed action of 
designating critical habitat for the spikedace and loach minnow. In the 
draft EA, three alternatives are evaluated: Alternative A, the proposed 
rule with exclusion areas; Alternative B, proposed rule without 
exclusion areas; and the no action alternative. Under Alternative A, 
critical habitat segments flowing through tribal and other lands could 
potentially be excluded in the final rule based on economic impact, 
national security, or other relevant impacts. The potential exclusion 
areas discussed in the proposed rule include stream segments that flow 
through Yavapai-Apache, White Mountain Apache, and San Carlos tribal 
lands and through lands owned by Freeport-McMoRan. Alternative B is the 
current proposal, and the no action alternative is equivalent to the 
2007 final rule designating critical habitat for spikedace and loach 
minnow. The no action alternative is required by NEPA for comparison to 
the other alternatives analyzed in the draft EA.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft EA, as well as all aspects of the proposed rule. We 
may revise the proposed rule or supporting documents to incorporate or 
address information we receive during the comment period on the 
environmental consequences resulting from our designation of critical 
habitat.

Required Determinations--Amended

    In our proposed rule, we indicated that we would defer our 
determination of compliance with several statutes and executive orders 
until the information concerning potential economic impacts of the 
designation and potential effects on landowners and stakeholders became 
available in the DEA and the draft environmental assessment. We have 
now made use of the DEA data to make these initial determinations. In 
this document, we affirm the information in our proposed rule 
concerning Executive Order (E.O.) 12866 (Regulatory Planning and 
Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), 
E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded 
Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.), and the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951). However, based on the DEA 
data and the draft environmental assessment, we are amending our 
required determination concerning the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), E.O. 12630 (Takings), and National Environmental 
Policy Act (42 U.S.C. 4321 et seq.).

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), 
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 (i.e., 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. Based on our DEA of the proposed 
designation, we provide our analysis for determining whether the 
proposed rule would result in a significant economic impact on a 
substantial number of small entities. Based on comments we receive, we 
may revise this determination as part of our final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations;

[[Page 61336]]

small governmental jurisdictions, including school boards and city and 
town governments that serve fewer than 50,000 residents; and small 
businesses (13 CFR 121.201). 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 considered the types of activities that might trigger 
regulatory impacts under this designation as well as 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 proposed designation of critical habitat for 
the spikedace and loach minnow would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities, such as mining, species 
management, transportation, and fire management activities, water 
management, grazing, and development. In order to determine whether it 
is appropriate for our agency to certify that this rule would not have 
a significant economic impact on a substantial number of small 
entities, we considered each industry or category individually. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement. 
Critical habitat designation will not affect activities that do not 
have any Federal involvement; designation of critical habitat only 
affects activities conducted, funded, permitted, or authorized by 
Federal agencies. In areas where the species are 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 
species. If we finalize this proposed critical habitat designation, 
consultations to avoid the destruction or adverse modification of 
critical habitat would be incorporated into the existing consultation 
process.
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation actions related 
to the proposed designation of critical habitat for the spikedace and 
loach minnow. No incremental impacts are anticipated for mining, 
species management, transportation, or fire management activities. The 
DEA concluded that incremental impacts may be borne by water 
management, grazing, and development activities. The analysis estimates 
that 92 small entities may be affected by the rule, each with estimated 
revenues ranging from $750,000 to $6.4 million per entity. Depending on 
the activity, annualized impacts may represent between 0 percent and 
1.18 percent of annual revenues. Please refer to the DEA of the 
proposed critical habitat designation for a more detailed discussion of 
potential economic impacts.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. For the 
above reasons and based on currently available information, we certify 
that, if promulgated, the proposed designation would not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

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 Spikedace and Loach minnow in a takings implications 
assessment. Critical habitat designations do not affect landowner 
actions that do not require Federal funding or permits, nor do they 
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 these proposed designations of critical habitat do not 
pose significant takings implications for lands within or affected by 
the designations. However, we will further evaluate this issue as we 
complete our final economic analysis, and review and revise this 
assessment as appropriate.

National Environmental Policy Act (NEPA)

    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 NEPA (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 Spikedace and Loach 
minnow, 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 a NEPA analysis for critical habitat 
designation. In accordance with the Tenth Circuit, we have completed a 
draft environmental assessment to identify and disclose the 
environmental consequences resulting from the proposed designations of 
critical habitat for the Spikedace and Loach minnow. Our preliminary 
determination is that the designations of critical habitat for the 
Spikedace and Loach minnow would not have direct impacts on the 
environment. However, we will further evaluate this issue as we 
complete our final environmental assessment.

List of Subjects in 50 CFR Part 17

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

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 66482, October 28, 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. Amend Sec.  17.95(e), in the entry for ``Loach minnow (Tiaroga 
cobitis),'' by revising paragraphs (6), (12)(i) and (v), and (14)(vi) 
and by adding paragraph (14)(vii) to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Loach minnow (Tiaroga cobitis)
* * * * *

[[Page 61337]]

    (6) Note: Index map for loach minnow critical habitat units 
follows:
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[GRAPHIC] [TIFF OMITTED] TP04OC11.013

* * * * *
    (12) * * *
    (i) San Francisco River for approximately 202.6 km (125.9 mi) of 
the San Francisco River extending from the confluence with the Gila 
River in Arizona in Township 5 South, Range 29 East, southeast quarter 
of section 21 upstream to Township 6 South, Range 19 West, section 2 in 
New Mexico.
* * * * *
    (v) Note: Map of Unit 6, San Francisco Subbasin, follows:

[[Page 61338]]

[GRAPHIC] [TIFF OMITTED] TP04OC11.014

* * * * *
    (14) * * *
    (vi) Bear Creek for approximately 31.4 km (19.5 mi) extending from 
the confluence with the Gila River at Township 15 South, Range 17 West, 
center of section 33 upstream to the confluence with Sycamore and North 
Fork Walnut creeks at Township 16 South, Range 15 West, northeast 
quarter of section 15.
    (vii) Note: Map of Unit 8, Gila River Subbasin, follows:

[[Page 61339]]

[GRAPHIC] [TIFF OMITTED] TP04OC11.015

* * * * *

Authority

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

    Dated: September 20, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-25083 Filed 10-3-11; 8:45 am]
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