[Federal Register Volume 77, Number 134 (Thursday, July 12, 2012)]
[Rules and Regulations]
[Pages 41088-41106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16988]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2011-0042; 4500030113]
RIN 1018-AV86


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Chupadera Springsnail and Designation of 
Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, determine endangered 
status for the Chupadera springsnail and designate critical habitat for 
the species under the Endangered Species Act of 1973, as amended. The 
effect of this rule is to conserve the Chupadera springsnail and its 
habitat under the Endangered Species Act.

DATES: This rule becomes effective on August 13, 2012.

ADDRESSES: This final rule and associated final economic analysis and 
final environmental assessment are available on the Internet at http://www.regulations.gov or http://www.fws.gov/southwest/es/NewMexico/. 
Comments and materials received, as well as supporting documentation 
used in preparing this final rule, are available for public inspection, 
by appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, New Mexico Ecological Services Field Office, 2105 
Osuna Rd. NE., Albuquerque, NM 87113; telephone 505-346-2525; facsimile 
505-346-2542.

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 505-346-
2525; facsimile 505-346-2542. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION: This document consists of: (1) A final rule 
to list the Chupadera springsnail as endangered and (2) a final 
critical habitat designation for the Chupadera springsnail.

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, a 
species may warrant protection through listing if it is endangered or 
threatened throughout all or a significant portion of its range. The 
Chupadera springsnail (Pyrgulopsis chupaderae) qualifies for listing as 
endangered based on threats to its habitat and its very limited range, 
which makes it more susceptible to extinction.
    This rule designates the Chupadera springsnail as endangered with 
critical habitat. We are listing the Chupadera springsnail as 
endangered. In addition, we are designating critical habitat for the 
species in two units on private property totaling 0.7 hectares (1.9 
acres) in Socorro County, New Mexico.
    The Endangered Species Act provides the basis for our action. Under 
the Endangered Species Act, we can determine that a species is 
endangered or threatened based on any of the following five factors: 
(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.
    We have determined that the Chupadera springsnail is endangered by 
habitat loss and degradation of aquatic resources, particularly 
decreases in spring flow due to drought and ongoing and future 
groundwater pumping in the surrounding area, habitat degradation from 
livestock grazing, and springhead modification.
    We prepared an economic analysis. To ensure that we consider the 
economic impacts, we prepared an economic analysis of the designation 
of critical habitat. We published an announcement and solicited public 
comments on the draft economic analysis. The analysis found no economic 
impact of the designation of critical habitat beyond an unquantified 
``stigma effect'' to land values.
    We requested peer review of the methods used in our designation. We 
specifically requested that three knowledgeable individuals with 
scientific expertise in desert spring ecosystems or related fields 
review the scientific information and methods that we used when we 
proposed the species as endangered. The peer reviewers generally 
concurred with our methods and conclusions and provided additional 
information, clarifications, and suggestions to improve the final 
listing and critical habitat rule.
    We sought public comment on the designation. During the first 
comment period, we received five comment letters directly addressing 
the proposed listing and critical habitat designation. During the 
second comment period, we received two comment letters addressing the 
proposed listing and critical habitat designation. We received no 
comments during the third comment period, nor any comments regarding 
the draft economic analysis or draft environmental assessment.

Background

    It is our intent to discuss below only those topics directly 
relevant to the listing of the Chupadera springsnail as endangered in 
this section of the final rule.

Previous Federal Actions

    We identified the Chupadera springsnail as a candidate for listing 
in the May 22, 1984, Notice of Review of Invertebrate Wildlife for 
Listing as Endangered or Threatened Species (49 FR 21664). Candidates 
are those fish, wildlife, and plants for which we have on file 
sufficient information on biological vulnerability and threats to 
support preparation of a listing proposal, but for which development of 
a listing regulation is precluded by other higher priority listing 
activities. The Chupadera springsnail was petitioned for listing on 
November 20, 1985, and was found to be warranted for listing but 
precluded by higher priority activities on October 4, 1988 (53 FR 
38969). The Chupadera springsnail has been included in all of our 
subsequent annual Candidate Notices of Review (54 FR 554, January 6, 
1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994; 
61 FR 7595, February 28, 1996; 62 FR 49397, September 19, 1997; 64 FR 
57533, October 25, 1999; 66 FR 54807, October 30, 2001; 67 FR 40657, 
June 13, 2002; 69 FR 24875, May 4, 2004; 70 FR 24869, May 11, 2005; 71 
FR 53755, September 12, 2006; 72 FR 69033, December 6, 2007; 73 FR 
75175, December 10, 2008; 74 FR 57803, November 9, 2009; 75 FR 69221, 
November 10, 2010; and 76 FR 66370, October 26, 2011). In 2002, the 
listing priority number was increased from 8 to 2 in accordance with 
our priority guidance published on September 21, 1983 (48 FR 43098). A 
listing priority of 2 reflects a species with threats that are both 
imminent and high in magnitude. On August 2, 2011, we published a 
proposed rule to list the Chupadera springsnail as endangered with 
critical habitat (76 FR 46218), and

[[Page 41089]]

on January 20, 2012, we published a notice of availability of the draft 
environmental assessment and draft economic analysis and reopened the 
comment period for the proposed rule (77 FR 2943). Finally, on May 1, 
2012, we reopened the comment period for the proposed rule and its 
associated documents for an additional 15 days (77 FR 25668).

Species Information

    The Chupadera springsnail (Pyrgulopsis chupaderae) is a tiny (1.6 
to 3.0 millimeters (mm) (0.06 to 0.12 inches (in)) tall) freshwater 
snail (Taylor 1987, p. 25; Hershler 1994, p. 30) in the family 
Hydrobiidae. The pigmentation of the body and operculum (covering over 
the shell opening) of this species is much more intense than in any 
other species in the genus Pyrgulopsis (Taylor 1987, p. 26). The 
Chupadera springsnail was first described by Taylor (1987, pp. 24-27) 
as Fontelicella chupaderae. Hershler (1994, pp. 11, 13), in his review 
of the genus Pyrgulopsis, found that the species previously assigned to 
the genus Fontelicella had the appropriate morphological 
characteristics for inclusion in the genus Pyrgulopsis and formally 
placed them within that genus. Preliminary genetic information confirms 
that the Chupadera springsnail is a valid species (Hershler et al. 
2010, p. 246).
    Springsnails are strictly aquatic, and respiration occurs through 
an internal gill. Springsnails in the genus Pyrgulopsis are egg-layers 
with a single small egg capsule deposited on a hard surface (Hershler 
1998, p. 14). The larval stage is completed in the egg capsule, and 
upon hatching, the snails emerge into their adult habitat (Brusca and 
Brusca 1990, p. 759; Hershler and Sada 2002, p. 256). The snail 
exhibits separate sexes; physical differences are noticeable between 
them, with females being larger than males. Because of their small size 
and dependence on water, significant dispersal likely does not occur, 
although on rare occasions aquatic snails have been transported by 
becoming attached to the feathers and feet of migratory birds (Roscoe 
1955, p. 66; Dundee et al. 1967, pp. 89-90; Hershler et al. 2005, p. 
1763). Hydrobiid snails feed primarily on periphyton, which is a 
complex mixture of algae, bacteria, and microbes that occurs on 
submerged surfaces in aquatic environments (Mladenka 1992, pp. 46, 81; 
Allan 1995, p. 83; Hershler and Sada 2002, p. 256; Lysne et al. 2007, 
p. 649). The lifespan of most aquatic snails is 9 to 15 months (Pennak 
1989, p. 552).
    Snails in the family Hydrobiidae were once much more widely 
distributed during the wetter Pleistocene Age (1.6 million to 10,000 
years ago). As ancient lakes and streams dried, springsnails became 
patchily distributed across the landscape in geographically isolated 
populations exhibiting a high degree of endemism (species found only in 
a particular region, area, or spring) (Bequart and Miller 1973, p. 214; 
Taylor 1987, pp. 5-6; Shepard 1993, p. 354; Hershler and Sada 2002, p. 
255). Hydrobiid snails occur in springs, seeps, marshes, spring pools, 
outflows, and diverse flowing water habitats. Although Hydrobiid snails 
as a group are found in a wide variety of aquatic habitats, they are 
sensitive to water quality, and each species is usually found within 
relatively narrow habitat parameters (Sada 2008, p. 59). Proximity to 
spring vents, where water emerges from the ground, plays a key role in 
the life history of springsnails. Many springsnail species exhibit 
decreased abundance farther away from spring vents, presumably due to 
their need for stable water chemistry (Hershler 1994, p. 68; Hershler 
1998, p. 11; Hershler and Sada 2002, p. 256; Martinez and Thome 2006, 
p. 14). Several habitat parameters of springs, such as substrate, 
dissolved carbon dioxide, dissolved oxygen, temperature, conductivity, 
and water depth, have been shown to influence the distribution and 
abundance of Pyrgulopsis (O'Brien and Blinn 1999, pp. 231-232; Mladenka 
and Minshall 2001, pp. 209-211; Malcom et al. 2005, p. 75; Martinez and 
Thome 2006, pp. 12-15; Lysne et al. 2007, p. 650). Dissolved salts such 
as calcium carbonate may also be important factors because they are 
essential for shell formation (Pennak 1989, p. 552).
    The Chupadera springsnail is endemic to Willow Spring and an 
unnamed spring of similar size 0.5 kilometers (km) (0.3 miles (mi)) 
north of Willow Spring at the southeast end of the Chupadera Mountains 
in Socorro County, New Mexico (Taylor 1987, p. 24; Mehlhop 1993, p. 3; 
Lang 1998, p. 36). The two springs where the Chupadera springsnail has 
been documented are on two hillsides where groundwater discharges flow 
through volcanic gravels containing sand, mud, and aquatic plants 
(Taylor 1987, p. 26). Water temperatures in areas of the springbrook 
(the stream flowing from the springhead) currently occupied by the 
springsnail range from 15 to 25 degrees Celsius ([deg]C) (59 to 77 
degrees Fahrenheit ([deg]F)) over all seasons (as measured in 1997 to 
1998). Water velocities range from 0.01 to 0.19 meters per second (m/s) 
(0.03 to 0.6 feet per second (ft/s)) (Lang 2009, p. 1). In 1998, when 
Willow Spring was visited by New Mexico Game and Fish biologists, the 
springbrook was 0.5 to 2 meters (m) (1.6 to 6.6 feet (ft)) wide, 6 to 
15 centimeters (cm) (2.4 to 6 in) deep, and approximately 38 m (125 ft) 
long, upstream of where it entered a pond created by a berm (small 
earthen dam) across the springbrook (Lang 2009, p. 1).
    The current status of the population at Willow Spring is unknown 
because access has been denied by the landowner since 1999, despite 
requests for access to monitor the springsnail (Carman 2004, pp. 1-2; 
2005, pp. 1-5; NMDGF 2007, p. 12). Prior surveys show the springsnail 
population to be locally abundant and stable at this location through 
1999 (Lang 1998, p. 36; Lang 1999, p. A5), with average densities in 
1997-1998 of 23,803  17,431 per square meter (2,211  1,619 per square foot) (NMDGF 2011, p. 2). The landowner 
recently provided qualitative information in response to the 2011 
proposed rule (76 FR 46218) that a springsnail, presumed to be the 
Chupadera springsnail, continues to occur at the springhead, although 
not in high numbers, and is abundant in the springbrook (Highland 
Springs Ranch, LLC 2011, p. 4). At the unnamed spring, the species was 
originally discovered in 1986 (Stefferud 1986, p. 1) and reported from 
this location again in 1993 (Melhop 1993, p. 11). However, repeated 
sampling between 1995 and 1997 yielded no snails, and the habitat at 
that spring has been significantly degraded (devoid of riparian 
vegetation due to trampling by cattle, and the benthic habitat was 
covered with manure) (Lang 1998, p. 59; Lang 1999, p. B13). Therefore, 
the species is likely extirpated from this unnamed spring (NMDGF 1996, 
p. 16; Lang 1999, p. B13).
    Springsnail dispersal is primarily limited to aquatic habitat 
connections (Hershler et al. 2005, p. 1755). Once extirpated from a 
spring, natural recolonization of that spring or other nearby springs 
is very rare.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
listing of the Chupadera springsnail and the proposed designation of 
critical habitat for the Chupadera springsnail during three comment 
periods. The first comment period associated with the publication of 
the proposed rule (76 FR 46218) opened on August 2, 2011, and closed on 
October 3, 2011. We also requested comments on the proposed critical

[[Page 41090]]

habitat designation, associated draft economic analysis, and associated 
environmental assessment during a comment period that opened January 
20, 2012, and closed on February 21, 2012 (77 FR 2943). Finally, on May 
1, 2012, we reopened the comment period for an additional 15 days (77 
FR 25668). We did not receive any requests for a public hearing, and 
none was held.
    During the first comment period, we received five comment letters 
directly addressing the proposed listing and critical habitat 
designation. During the second comment period, we received two comment 
letters addressing the proposed listing and critical habitat 
designation. During the third comment period, we received no comment 
letters. We received no comments regarding the draft economic analysis 
or draft environmental assessment. All substantive information provided 
during the comment periods has either been incorporated directly into 
this final determination or is addressed below. Comments we received 
were grouped into eight general issues specifically relating to the 
proposed listing status or proposed critical habitat designation for 
the Chupadera springsnail and are addressed in the following summary 
and incorporated into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from three knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from all three 
peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Chupadera springsnail. The peer reviewers generally concurred with 
our methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final listing and 
critical habitat rule. Peer reviewer comments are addressed in the 
following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer and one commenter noted that, while 
the loss of groundwater is the biggest threat to the Chupadera 
springsnail, protections afforded by the Endangered Species Act are not 
sufficient to ameliorate this threat.
    Our Response: Under section 4(b)(1)(A) of the Endangered Species 
Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), we must base a 
listing decision solely on the best scientific and commercial data 
available. The legislative history of this provision clearly states the 
intent of Congress to ensure that listing decisions are ``based solely 
on biological criteria and to prevent non-biological criteria from 
affecting such decisions'' (House of Representatives Report Number 97-
835, 97th Congress, Second Session 19 (1982)). Therefore, we are not 
able to consider the potential efficacy of listing a species under the 
Act when making this determination. If a species meets the definition 
of endangered or threatened based on a review of the best available 
scientific information, then we must list that species under the Act. 
There is no discretion under the Act to make a not warranted finding 
based on a perception that the protections afforded by the Act would 
not be effective.
    (2) Comment: One peer reviewer suggested that, since we have no 
information about the Chupadera springsnail or its habitat since 1999, 
we should presume that other natural or manmade factors (Factor E) may 
be a threat.
    Our Response: Under Factor E, we found that the best scientific and 
commercial information available indicates that climate change may 
exacerbate current threats to the Chupadera springsnail but that 
climate change is not a threat in and of itself. We did not find other 
natural or manmade factors that warranted evaluation under Factor E. 
The lack of recent information does not necessitate presuming there are 
other natural or manmade factors threatening the species.

Comments From States

    We received one comment letter from the New Mexico Department of 
Game and Fish regarding the proposal to list and designate critical 
habitat for the Chupadera springsnail, indicating their support for 
listing and critical habitat designation. Additional information 
regarding population status and species biology was also included in 
the letter, and that information has been incorporated into the 
appropriate sections of this rule.

Public Comments

    (3) Comment: One commenter was concerned that we did not complete 
an initial regulatory flexibility analysis pursuant to the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) prior to publication of the 
proposed rule.
    Our Response: We were unable to determine if an initial regulatory 
flexibility analysis was necessary prior to completion of the draft 
economic analysis. After considering the draft economic analysis, we 
certified in the January 20, 2012 (77 FR 2943, p. 2946), publication 
that an initial regulatory flexibility analysis is not required. 
Compliance with the Regulatory Flexibility Act is part of this final 
rule and can be found under the subheading of ``Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.)''.
    (4) Comment: Two commenters suggested that we not designate the 
unnamed spring as critical habitat for the Chupadera springsnail 
because the species has been extirpated and habitat does not currently 
exist at the site.
    Our Response: To be included in the critical habitat designation, 
unoccupied habitat must be considered to be essential for the 
conservation of the Chupadera springsnail. We considered the importance 
of the unnamed spring to the overall status of the species to prevent 
extinction and contribute to recovery, whether the unnamed spring could 
be restored to contain the necessary physical and biological features 
to support the Chupadera springsnail, and whether a population could be 
reestablished at the site. Although the unnamed spring has been 
excavated and currently exists as a pool and downstream marsh, we 
believe the site could be restored to provide suitable habitat for the 
Chupadera springsnail. Because the species only exists at one other 
site, the reintroduction of the snail at this unnamed spring would 
provide protection against extinction due to catastrophic events and 
contribute to its recovery. As a result, we have included the unnamed 
spring in this final critical habitat designation, as we believe it is 
essential for the conservation of the species.
    (5) Comment: Two commenters pointed out that the information 
regarding the species' population numbers is more than 10 years old and 
suggested we rely on more recent survey information.
    Our Response: We agree that recent information would be more 
informative of the population's status, but State of New Mexico and 
Service biologists have not been allowed access to the springs since 
1999, despite repeated requests. Under the Act, we must use the best 
available scientific and commercial information to inform our listing 
decisions; in this case, the data up through 1999 is the best available

[[Page 41091]]

information about the species and its habitat.
    (6) Comment: One commenter questioned whether the Chupadera 
springsnail ever occurred at the unnamed spring and why we stated the 
species has been known from Willow Spring since 1979 when the species 
was described in 1987.
    Our Response: The Chupadera springsnail was documented from the 
unnamed spring in 1986 (Stefferud 1986, p. 1). Additionally, while the 
Chupadera springsnail was not described in the peer-reviewed literature 
until 1987 (Taylor 1987, pp. 24-26), it was first collected in 1979 by 
D.W. Taylor and R.H. Weber (Taylor 1987, p. 24).
    (7) Comment: One commenter asked if we proposed to designate a 
buffer around the springhead, springbrook, seeps, ponds, and seasonally 
wetted meadow, and if so, how far from these features the buffer 
extended.
    Our Response: We did not propose to designate a buffer around the 
spring features. We identified a coordinate for each spring and 
proposed to designate as critical habitat the springhead, springbrook, 
small seeps and ponds, seasonally wetted meadow, and all of the 
associated spring features. To determine the approximate area of the 
critical habitat, we used satellite imagery to roughly calculate the 
area of the spring features surrounding those coordinates.
    (8) Comment: One commenter suggested that, in lieu of listing, the 
Service buy the land surrounding Willow Spring.
    Our Response: The Act requires us to determine if the Chupadera 
springsnail is in danger of extinction throughout all or a significant 
portion of its range at the time we conduct a review of the species. 
Any future conservation actions, such as purchasing land, if the 
landowner is willing, or land management efforts to ameliorate threats, 
will be evaluated as part of the recovery planning process after the 
species is listed.

Summary of Changes From Proposed Rule

    Since the publication of the August 2, 2011, proposed rule to list 
the Chupadera springsnail as endangered with critical habitat (76 FR 
46218), we have made the following changes:
    (1) The New Mexico Department of Game and Fish provided us with 
more detailed information regarding the Chupadera springsnail 
population and habitat at Willow Spring, and we updated the biological 
information in this rule accordingly.
    (2) The landowner of Willow Spring provided qualitative information 
about the current habitat at Willow Spring and the current presence of 
the Chupadera springsnail, which we have incorporated into this rule.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for adding species to the Federal Lists 
of Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (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. Listing actions may 
be warranted based on any of the above threat factors, singly or in 
combination. Each of these factors is discussed below.

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

    The principal threats to the habitat of Chupadera springsnail at 
Willow Spring include groundwater depletion, livestock grazing, and 
spring modification (Lang 1998, p. 59; NMDGF 2002, p. 45). These 
threats are intensified by the fact that the species' known historic 
range was only two small springs, and it has been extirpated from one 
of the known locations. Other potential threats, such as fire and 
recreational use at the springs, were considered, but no information 
was found that indicated these may be affecting the species at this 
time.
Groundwater Depletion
    Habitat loss due to groundwater depletion threatens the Chupadera 
springsnail. Since spring ecosystems rely on water discharged to the 
surface from underground aquifers, groundwater depletion can result in 
the destruction of habitat by the drying of springs and cause the loss 
of spring fauna. For example, groundwater depletion from watering a 
lawn adjacent to a small spring (Snail Spring) in Cochise County, 
Arizona, has reduced habitat availability of the San Bernardino 
springsnail (Pyrgulopsis bernardina) at that location because of the 
loss of flowing water to the spring (Malcom et al. 2003, p. 18; Cox et 
al. 2007, p. 2). Also, in Pecos County, Texas, two large spring systems 
(Comanche Springs and Leon Springs) were completely lost to drying when 
irrigation wells were activated in the supporting local aquifer 
(Scudday 1977, pp. 515-516). Spring drying or flow reduction from 
groundwater pumping has also been documented in the Roswell (August 9, 
2005; 70 FR 46304) and Mimbres Basins (Summers 1976, pp. 62, 65) of New 
Mexico.
    Area groundwater use may significantly increase due to Highland 
Springs Ranch, a developing subdivision in the immediate vicinity of 
Chupadera springsnail habitat. Beginning in 1999, Highland Springs 
Ranch is being developed in four phases with approximately 650 lots 
ranging from 8 hectares (ha) (20 acres (ac)) to 57 ha (140 ac). There 
is no central water system, so each homeowner is responsible for 
drilling individual water wells. In Highland Springs Ranch, homeowners 
are entitled to 629 cubic meters (0.51 acre-feet) of water per year 
(New Mexico Office of the State Engineer (NMOSE) 2009, p. 1).
    Although the NMOSE offered a positive opinion determining that 
sufficient groundwater is available to supply the needs of the 
subdivision for 40 years (Highland Springs, LLC 2011, p. 2), the NMOSE 
bases that decision on water availability, not on ensuring spring flow. 
Because of the proximity of the subdivision to Willow Spring (the 
northern boundary of one of the lots (42A) of Mountain Shadows, a phase 
of Highland Springs Ranch, is approximately 91 m (300 ft) from Willow 
Spring), it appears likely that groundwater pumping could affect the 
discharge from the spring through depletion of groundwater. Under 
normal conditions, Willow Spring has a very small discharge (Lang 2009, 
p. 1), and, therefore, any reduction in available habitat from 
declining spring flows would be detrimental to the Chupadera 
springsnail. Given the proximity of the unnamed spring (0.5 km (0.3 
mi)) to Willow Spring, and because they both were historically occupied 
by the Chupadera springsnail, we believe both springs are fed by the 
same groundwater aquifer. Thus, groundwater depletion that would affect 
spring flow at Willow Spring would also likely affect the unnamed 
spring.
    The Bosque del Apache National Wildlife Refuge western boundary is 
located about 0.8 km (0.5 mi) east of the spring where Chupadera 
springsnail occurs, providing protection from development and 
groundwater depletion for much of the land east of the spring. 
Therefore, any development

[[Page 41092]]

activities that may deplete groundwater are likely to occur in areas 
west of the springs.
    In addition, any decreases in regional precipitation due to 
prolonged drought will further stress groundwater availability and 
increase the risk of diminishment or drying of the springs. The 
current, multiyear drought in the western United States, including the 
Southwest, is the most severe drought recorded since 1900 (Overpeck and 
Udall 2010, p. 1642). In addition, numerous climate change models 
predict an overall decrease in annual precipitation in the southwestern 
United States and northern Mexico (see discussion under Factor E, 
Climate Change, below). Recent regional drought may have affected 
habitat for Chupadera springsnail. For example, the extreme drought of 
2002 resulted in drying streams across the State, with nearly all of 
the major river basins in New Mexico at historic low flow levels (New 
Mexico Drought Task Force 2002, p. 1). Because of our inability to 
access Willow Spring, we do not have information on how this drought 
affected the Chupadera springsnail.
    Drought affects both surface and groundwater resources and can lead 
to diminished water quality (Woodhouse and Overpeck 1998, p. 2693; 
MacRae et al. 2001, pp. 4, 10), in addition to reducing groundwater 
quantities. The small size of the springbrooks where the Chupadera 
springsnail resides (1.5 m (5 ft) wide or less) makes them particularly 
susceptible to drying, increased water temperatures, and freezing. The 
springs do not have to cease flowing completely to have an adverse 
effect on springsnail populations. Because these springs are so small, 
any reductions in the flow rates from the springs can reduce the 
available habitat for the springsnails, increasing the species' risk of 
extinction. Decreased spring flow can lead to a decrease in habitat 
availability, an increase in water temperature fluctuations, a decrease 
in dissolved oxygen levels, and an increase in salinity (MacRae et al. 
2001, p. 4). Water temperatures and factors such as dissolved oxygen in 
springs do not typically fluctuate under natural conditions, and 
springsnails are narrowly adapted to spring conditions and are 
sensitive to changes in water quality (Hershler 1998, p. 11). 
Groundwater depletion can lead to loss and degradation of Chupadera 
springsnail habitat and presents a substantial threat to the species.
Livestock Grazing
    It is estimated that livestock grazing has damaged approximately 80 
percent of stream and riparian ecosystems in the western United States 
(Belsky et al. 1999, p. 419). The damage occurs from increased 
sedimentation, decreased water quality, and trampling and overgrazing 
stream banks where succulent (high water content) forage exists (Armour 
et al. 1994, p. 10; Fleischner 1994, p. 631; Belsky et al. 1999, p. 
419). Livestock grazing within spring ecosystems can alter or remove 
springsnail habitat, resulting in restricted distribution or 
extirpation of springsnails. For example, cattle trampling at a spring 
in Owens Valley, California, reduced banks to mud and sparse grass, 
limiting the occurrence of the endangered Fish Slough springsnail 
(Pyrgulopsis perturbata) (Bruce and White 1998, pp. 3-4). Poorly 
managed livestock use of springbrooks can directly negatively affect 
springsnails through contamination of aquatic habitat from feces and 
urine, habitat degradation of the springbrook by trampling of substrate 
and loss of aquatic and riparian vegetation, and crushing of individual 
springsnails.
    When the species was first collected at the unnamed spring in 1986, 
Stefferud (1986, p. 1) reported that the spring was already a series of 
small stock tanks for cattle and horses with very little riparian 
vegetation. Lang (1998, p. 59) reported that the unnamed spring was 
heavily impacted by cattle because it was devoid of riparian 
vegetation, and the gravel and cobbles were covered with mud and 
manure. It appears that overgrazing and access to the aquatic habitat 
of the spring by livestock may have caused the extirpation of the 
Chupadera springsnail population from this unnamed spring (NMDGF 1996, 
p. 16; Lang 1999, p. A5). Grazing was occurring at Willow Spring in 
1999 (the last time the spring was visited) (Lang 1999, p. A5). The 
landowner has indicated that cattle ranching continues to occur in 
areas of Highland Springs Ranch, but that no grazing is currently 
occurring within or adjacent to Willow Spring (Highland Springs, LLC 
2011, p. 3). Continued use of the springs by livestock, if it is 
occurring at Willow Spring or the unnamed spring we are designating as 
critical habitat in this rule, presents a substantial threat to the 
Chupadera springsnail.
Spring Modification
    Spring modification occurs when attempts are made to increase flow 
through excavation at the springhead, when the springhead is tapped to 
direct the flow into a pipe and then into a tank or a pond, when 
excavation around the springhead creates a pool, inundating the 
springhead, or when the springbrook is dammed to create a pool 
downstream of the springbrook. Because springsnails are typically most 
abundant at the springhead where water chemistry and water quality are 
normally stable, any modification of the springhead could be 
detrimental to springsnail populations. In addition, any modification 
or construction done at the springhead could also affect individuals 
downstream through siltation of habitat. Because springsnails are 
typically found in shallow flowing water, inundation that alters 
springsnail habitat by changing water depth, velocity, substrate 
composition, vegetation, and water chemistry can cause population 
reduction or extirpation. For example, inundation has negatively 
affected populations of other springsnails such as Koster's springsnail 
(Juturnia kosteri) and Roswell springsnail (Pyrgulopsis roswellensis) 
at Bitter Lake National Wildlife Refuge and caused their extirpation 
from North Spring in Chaves County, New Mexico (NMDGF 2004, p. 33; 70 
FR 46304, August 9, 2005).
    The springheads at both Willow Spring and the unnamed spring have 
been modified through impoundment of the springbrooks and, at Willow 
Spring, to maintain a pump and improve water delivery systems to cattle 
(Lang 1998, p. 59). At Willow Spring, it appears that springbrook 
impoundment has only occurred downstream of the source, leaving some 
appropriate springbrook habitat intact upstream (Taylor 1987, p. 26). 
At the last visit to the Willow Spring in 1999, the habitat at the 
spring was of sufficient quality to sustain the Chupadera springsnail, 
but any subsequent alterations could be catastrophic for the species. 
Spring modification, either at the springhead or in the springbrook, is 
a threat to the Chupadera springsnail.
Small, Reduced Range
    The geographically small range of the Chupadera springsnail 
increases the risk of extinction from any effects associated with other 
threats (NMDGF 2002, p. 1). When species are limited to small, isolated 
habitats, like the Chupadera springsnail in one small desert spring 
system, they are more likely to become extinct due to a local event 
that negatively effects the population (Shepard 1993, pp. 354-357; 
McKinney 1997, p. 497; Minckley and Unmack 2000, pp. 52-53).
    The natural historic range of the Chupadera springsnail includes 
only

[[Page 41093]]

two small spring sites. As a result of habitat alteration at the 
unnamed spring, the species now occurs only at Willow Spring (Lang 
1999, p. B13). We have very limited information on the current status 
of the species because access to Willow Spring has been continually 
denied since 1999 (Carman 2004, p. 1-2; Carman 2005, p. 1-5; NMDGF 
2007, p. 12). The springsnail is limited to aquatic habitats in small 
spring systems and has minimal mobility, so it is unlikely its range 
will ever expand. As a result, if the population at Willow Spring were 
extirpated for any reason, the species would be extinct, since there 
are no other sources of this springsnail from which to recolonize. This 
situation makes the magnitude of impact of any possible threat very 
high. In other words, the resulting effects of any of the threat 
factors under consideration here, even if they are relatively small on 
a temporal or geographic scale, could result in complete extinction of 
the species.
    Therefore, because the Chupadera springsnail is restricted to a 
single small site, it is particularly susceptible to extinction if its 
habitat is degraded or destroyed. While the small, reduced range does 
not represent an independent threat to the species, it does 
substantially increase the risk of extinction from the effects of all 
other threats, including those addressed in this analysis, and those 
that could occur in the future from unknown sources.
Summary of Factor A
    In summary, the Chupadera springsnail is threatened by the present 
destruction and modification of its habitat and range. Groundwater 
depletion due to new wells from nearby subdivision developments, in 
addition to droughts, is likely resulting in reduced flow at the spring 
that supports the species. Livestock grazing has likely resulted in the 
extirpation of the species from habitat alteration and contamination at 
one of these springs and may continue in the future. Finally, 
springhead and springbrook modification have affected Chupadera 
springsnail habitat at Willow Spring, and further modification may have 
occurred since the last visit to this site in 1999. Because of the 
extremely small and reduced range of the species, these threats have an 
increased risk of resulting in extinction of the Chupadera springsnail. 
These threats are already occurring, they affect the full historical 
range of the species, and they result in the species being at risk of 
extinction.

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

    There are very few people who are interested in or study 
springsnails, and those who do are sensitive to their rarity and 
endemism. Consequently, collection for scientific or educational 
purposes is very limited. As far as we know, because the Chupadera 
springsnail occurs on private land with limited access, there has been 
no collection of individuals since 1999, when NMDGF made its last 
collection (Lang 2000, p. C5). There are no known commercial or 
recreational uses of the springsnails. For these reasons, we find that 
the Chupadera springsnail is not threatened by overutilization for 
commercial, recreational, scientific, or educational purposes.

C. Disease or Predation

    The Chupadera springsnail is not known to be affected or threatened 
by any disease. At the time the spring was last surveyed, no nonnative 
predatory species were present. However, any future introduction of a 
nonnative species into the habitat of the Chupadera springsnail could 
be catastrophic to the springsnail. The Chupadera springsnail has an 
extremely small and reduced range, and introduction of a nonnative 
predator or competitor carries an increased risk of resulting in 
extinction of the Chupadera springsnail. Because there are no known 
nonnative species present, we find that the Chupadera springsnail is 
not currently threatened by disease or predation.

D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory 
mechanisms are inadequate to address the threats to the species 
discussed under the other factors. Section 4(b)(1)(A) of the Act 
requires the Service to take into account ``those efforts, if any, 
being made by any State or foreign nation, or any political subdivision 
of a State or foreign nation, to protect such species * * *.'' We 
interpret this language to require the Service to consider relevant 
Federal, State, and tribal laws, plans, regulations, Memoranda of 
Understanding (MOUs), Cooperative Agreements, and other such mechanisms 
that may minimize any of the threats we describe in threat analyses 
under the other four factors, or otherwise enhance conservation of the 
species. We give strongest weight to statutes and their implementing 
regulations and management direction that stems from those laws and 
regulations. An example would be State governmental actions enforced 
under a State statute or constitution, or Federal action under statute.
    Having evaluated the significance of the threat as mitigated by any 
such conservation efforts, we analyze under Factor D the extent to 
which existing regulatory mechanisms are inadequate to address the 
specific threats to the species. Regulatory mechanisms, if they exist, 
may reduce or eliminate the impacts from one or more identified 
threats. In this section, we review existing State and Federal 
regulatory mechanisms to determine whether they effectively reduce or 
remove threats to the Chupadera springsnail.
    New Mexico State law provides some limited protection to the 
Chupadera springsnail. The species is listed as a New Mexico State 
endangered species, which are those species ``whose prospects of 
survival or recruitment within the state are likely to become 
jeopardized in the near future'' (NMDGF 1988, p. 1). This designation 
provides protection under the New Mexico Wildlife Conservation Act of 
1974 (the State's endangered species act) (19 NMAC 33.6.8), but only 
prohibits direct take of species, except under issuance of a scientific 
collecting permit. No permit has been issued for taking this species. 
The New Mexico Wildlife Conservation Act defines ``take'' or ``taking'' 
as ``harass, hunt, capture, or kill any wildlife or attempt to do so'' 
(17 NMAC 17.2.38). In other words, New Mexico State status as an 
endangered species only conveys protection from collection or 
intentional harm to the animals themselves but does not provide habitat 
protection. Because most of the threats to the Chupadera springsnail 
are from effects to its habitat, in order to protect individuals and 
ensure their long-term conservation and survival, their habitat must be 
protected. Therefore, this existing regulation is inadequate to 
mitigate the impacts of identified threats to the species. Namely, the 
existing New Mexico Wildlife Conservation Act will not prevent 
modification to the habitat of the Chupadera springsnail.
    We also considered whether there were any other regulations that 
might address the identified threats to the species. In particular, we 
searched for State laws or local ordinances that would prevent 
groundwater pumping in the subdivisions adjacent to Willow Spring from 
affecting spring flows in the habitat of the Chupadera springsnail. The 
water supply for subdivision homes comes from individual wells, and 
each well in the Highland Springs Ranch subdivisions may pump up to 629 
cubic meters (0.51 acre feet) per year (NMOSE

[[Page 41094]]

2009, p. 1). We found that the New Mexico Office of the State Engineer 
evaluates proposed water delivery systems if the proposed system is in 
an area designated as a domestic well management area (Utton 
Transboundary Resources Center 2011, p. 3). The land being developed 
around Willow Spring has not been designated as such and therefore does 
not provide protections to the habitat of Chupadera springsnail. As 
discussed in Factor A above, inadequate spring flow due to pumping of 
the groundwater aquifer by homeowners is a threat to the habitat of the 
Chupadera springsnail, and the current regulatory mechanisms in place 
do not alleviate this threat. Additionally, habitat degradation from 
livestock grazing is also a threat to the Chupadera springsnail, and 
there are no regulatory mechanisms to protect the springs from the 
effects of livestock grazing, and so none are evaluated for their 
adequacy.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Other natural or manmade factors affecting the continued existence 
of the Chupadera springsnail include introduced species and climate 
change. These threats are intensified by the fact that the species' 
known historical range was only two small springs, and it has been 
extirpated from one of the known locations.
Introduced Species
    Introduced species are a serious threat to native aquatic species 
(Williams et al. 1989, p. 18; Lodge et al. 2000, p. 7). Because the 
distribution of the Chupadera springsnail is so limited, and its 
habitat so restricted, introduction of certain nonnative species into 
its habitat could be devastating. Saltcedar (Tamarix spp.) threatens 
spring habitats primarily through the amount of water it consumes and 
from the chemical composition of the leaves that drop to the ground and 
into the springs. Saltcedar leaves that fall to the ground and into the 
water add salt to the system, as their leaves contain salt glands 
(DiTomaso 1998, p. 333). Additionally, dense stands of common reed 
(Phragmites australis) choke small stream channels, slowing water 
velocity and creating more pool-like habitat; this habitat is not 
suitable for Chupadera springsnail, which are found in flowing water. 
Finally, Russian thistle (Salsola tragis; tumbleweed) can create 
problems in spring systems by being blown into the channel, slowing 
flow, and overloading the system with organic material (Service 2005, 
p. 2). The control and removal of nonnative vegetation can also impact 
springsnail habitats. For example, this has been identified as a factor 
responsible for localized extirpations of populations of the federally 
endangered Pecos assiminea (Assiminea pecos), a snail in New Mexico, 
due to vegetation removal that resulted in soil and litter drying, 
thereby making the habitat unsuitable (Taylor 1987, pp. 5, 9).
    Likewise, nonnative mollusks have affected the distribution and 
abundance of native mollusks in the United States. Of particular 
concern for the Chupadera springsnail is the red-rim melania 
(Melanoides tuberculata), a snail that can reach tremendous population 
sizes and has been found in isolated springs in the west (McDermott 
2000, pp. 13-16; Ladd 2010, p. 1; U.S. Geological Survey 2010, p. 1). 
The red-rim melania has caused the decline and local extirpation of 
native snail species, and it is considered a threat to endemic aquatic 
snails that occupy springs and streams in the Bonneville Basin of Utah 
(Rader et al. 2003, p. 655). It is easily transported on fishing gear 
or aquatic plants, and because it reproduces asexually (individuals can 
develop from unfertilized eggs), a single individual is capable of 
founding a new population. It has become established in isolated desert 
spring ecosystems such as Ash Meadows, Nevada, San Solomon Spring and 
Diamond Y Spring, Texas, and Cuatro Ci[eacute]negas, Mexico. In many 
locations, this exotic snail is so numerous that it covers the bottom 
of the small stream channel. If the red-rim melania were introduced 
into Willow Spring, it could outcompete and eliminate the Chupadera 
springsnail.
    None of these nonnative species is known to occur in the habitats 
of the Chupadera springsnail at this time, and so potential impacts 
have not been realized. While any of these species, or others, could 
threaten the Chupadera springsnail if they were introduced to the small 
habitats of the species, nonnative species are not considered a current 
threat to the Chupadera springsnail.
Climate Change
    According to the Intergovernmental Panel on Climate Change (IPCC 
2007, p. 5), ``[w]arming of the climate system is unequivocal, as is 
now evident from observations of increases in global average air and 
ocean temperatures, widespread melting of snow and ice, and rising 
global average sea level.'' The average Northern Hemisphere 
temperatures during the second half of the 20th century were very 
likely higher than during any other 50-year period in the last 500 
years and likely the highest in at least the past 1,300 years (IPCC 
2007, p. 5). It is very likely that over the past 50 years, cold days, 
cold nights, and frosts have become less frequent over most land areas, 
and hot days and hot nights have become more frequent (IPCC 2007, p. 
8). Data suggest that heat waves are occurring more often over most 
land areas, and the frequency of heavy precipitation events has 
increased over most areas (IPCC 2007, pp. 8, 15).
    The IPCC (2007, pp. 12, 13) predicts that changes in the global 
climate system during the 21st century will very likely be larger than 
those observed during the 20th century. For the next two decades, a 
warming of about 0.2 [deg]C (0.4 [deg]F) per decade is projected (IPCC 
2007, p. 12). Afterwards, temperature projections increasingly depend 
on specific emission scenarios (IPCC 2007, p. 13). Various emissions 
scenarios suggest that by the end of the 21st century, average global 
temperatures are expected to increase 0.6 [deg]C to 4.0 [deg]C (1.1 
[deg]F to 7.2 [deg]F), with the greatest warming expected over land 
(IPCC 2007, p. 15). However, the growth rate of carbon dioxide 
emissions continues to accelerate and is above even the most fossil 
fuel intensive scenario used by the IPCC (Canadell et al. 2007, p. 
18866; Global Carbon Project 2008, p. 1), suggesting that the effects 
of climate change may be even greater than those projected by the IPCC.
    In consultation with leading scientists from the Southwest, the New 
Mexico Office of the State Engineer prepared a report for the Governor 
of New Mexico (NMOSE 2006), which made the following observations about 
the impact of climate change in New Mexico:
    (1) Warming trends in the American Southwest exceed global averages 
by about 50 percent (p. 5);
    (2) Models suggest that even moderate increases in precipitation 
would not offset the negative impacts to the water supply caused by 
increased temperature (p. 5);
    (3) Temperature increases in the Southwest are predicted to 
continue to be greater than the global average (p. 5); and
    (4) The intensity, frequency, and duration of drought may increase 
(p. 7).
    One of the primary effects of climate change on the Chupadera 
springsnail is likely to be associated with groundwater availability 
that supports the spring flows in its habitat. There is high confidence 
that many semiarid areas like the western United States will suffer a 
decrease in water resources due to climate change (Kundzewicz et al. 
2007, p. 175). Consistent with the outlook presented for New Mexico, 
Hoerling (2007, p. 35) reports that

[[Page 41095]]

modeling indicates that a 25 percent decline in stream flow will occur 
from 2006 to 2030, and a 45 percent decline will occur from 2035 to 
2060 in the Southwest, compared to stream flows between 1990 and 2005. 
Milly et al. (2005, p. 349) project a 10 to 30 percent decrease in 
runoff in mid-latitude western North America by the year 2050, based on 
an ensemble of 12 climate models. Solomon et al. (2009, p. 1707) 
predict precipitation amounts in the southwestern United States and 
northern Mexico will decrease by as much as 9 to 12 percent (measured 
as percentage of change in precipitation per degree of warming, 
relative to 1900 to 1950 as the baseline period). Christensen et al. 
(2007, p. 888) state, ``The projection of smaller warming over the 
Pacific Ocean than over the continent * * * is likely to induce a 
decrease in annual precipitation in the southwestern USA and northern 
Mexico.'' In addition, Seager et al. (2007, p. 1181) show that there is 
a broad consensus among climate models that the Southwest will get 
drier in the 21st century and that the transition to a more arid 
climate is already under way. Only one of 19 models has a trend toward 
a wetter climate in the Southwest (Seager et al. 2007, p. 1181). A 
total of 49 projections were created using the 19 models, and all but 
three predicted a shift to increasing aridity (dryness) in the 
Southwest as early as 2021 to 2040 (Seager et al. 2007, p. 1181). These 
research results indicate that the Southwest can be expected to be 
hotter and drier in the future, likely negatively affecting the water 
resources, including spring ecosystems such as Willow Spring.
    It is anticipated that the effects of climate change will also lead 
to greater human demands on scarce water sources while at the same time 
leading to decreasing water availability because of increased 
evapotranspiration (water drawn up by plants from the soil that 
evaporates from their leaves), reduced soil moisture, and longer, 
hotter summers (Archer and Predick 2008, p. 25; Karl et al. 2009, pp. 
47, 52). Climate change will likely reduce groundwater recharge through 
reduced snowpack and perhaps through increased severity in drought 
(Kundzewicz et al. 2007, p. 175; Stonestrom and Harrill 2008, p. 21). 
There is currently no information to quantify the likely effects of 
climate change on the groundwater system that supports the springs 
where the Chupadera springsnail occurs. However, in a study of the 
Ogallala aquifer, a much larger aquifer east of Willow Spring, 
Rosenberg et al. (1999, p. 688) found that groundwater recharge will be 
reduced in the face of climate change. They also found that Ogallala 
aquifer water levels have been directly correlated with annual 
precipitation over time (Rosenberg et al. 1999, p. 679) and concluded 
that changes in climate could profoundly affect the accessibility and 
reliability of water supplies from the aquifer. We anticipate that the 
aquifer that supplies water to Chupadera springsnail habitat may also 
be susceptible to climate change-induced changes in precipitation.
    In summary, the Chupadera springsnail could be affected by the 
combined effects of global and regional climate change, along with the 
increased probability of long-term drought. However, we are not able to 
predict with certainty how these indirect effects of climate change 
will affect Chupadera springsnail habitat because we lack specific 
information on the groundwater system that provides water to the 
species' spring habitat. However, we conclude that climate change may 
be a significant stressor that indirectly exacerbates existing threats 
by increasing the likelihood of prolonged drought that would reduce 
groundwater availability and incur future habitat loss. As such, 
climate change, in and of itself, may affect the springsnail, but the 
severity and immediacy (when the impacts occur) of the impacts remain 
uncertain. We conclude that climate change is not currently a threat to 
the Chupadera springsnail, but it has the potential to be a threat in 
the foreseeable future, and impacts from climate change in the future 
will likely exacerbate the current and ongoing threat of habitat loss 
caused by other factors, as discussed above.
Summary of Factor E
    The Chupadera springsnail is not currently threatened by other 
natural or manmade factors. However, any future introduction of harmful 
nonnative species could have severe effects on the species. In 
addition, the effects of climate change, while difficult to quantify at 
this time, are likely to exacerbate the current and ongoing threat of 
habitat loss caused by other factors, particularly the loss of spring 
flows resulting from prolonged drought.

Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Chupadera springsnail and have determined that the species 
warrants listing as endangered throughout its range. The loss of one of 
two known populations, the ongoing threat of modification of the 
habitat at the only known remaining site (Willow Spring) from grazing 
and spring modification, and the imminent threat of groundwater 
depletion posed by subdivision development adjacent to the spring 
places this species at great risk of extinction. The small, reduced 
distribution of the Chupadera springsnail heightens the danger of 
extinction due to threats from Factor A (specifically loss of spring 
flow, livestock grazing, and spring modification). Additionally, the 
existing regulatory mechanisms are not adequate to ameliorate known 
threats (Factor D). The existing threats are exacerbated by the effects 
of ongoing and future climate change, primarily due to the projected 
increase in droughts. Because these threats are ongoing now or are 
imminent, and their potential impacts to the species would be 
catastrophic given the very limited range of the species, we find that 
a designation of endangered, rather than threatened, is appropriate.
    The Act defines an endangered species as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range.'' In considering ``significant portion of the range,'' a key 
part of this analysis in practice is whether the threats are 
geographically concentrated in some way. If the threats to the species 
are essentially uniform throughout its range, no portion is likely to 
warrant further consideration. Based on the threats to the Chupadera 
springsnail throughout its entire limited range (one spring), we find 
that the species is in danger of extinction throughout all of its 
range, based on the immediacy, severity, and scope of the threats 
described above. The species is designated as endangered, rather than 
threatened, because the threats are occurring now or are imminent, and 
their potential impacts to the species would be catastrophic given the 
very limited range of the species, making the Chupadera springsnail at 
risk of extinction at the present time. Because threats extend 
throughout its entire range, it is unnecessary to determine if it is in 
danger of extinction throughout a significant portion of its range. 
Therefore, on the basis of the best available scientific and commercial 
information, we designate the Chupadera springsnail as endangered 
throughout its range in accordance with sections 3(6) and 4(a)(1) of 
the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or

[[Page 41096]]

threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and requires that recovery actions be carried out for all listed 
species. The protection measures required of Federal agencies and the 
prohibitions against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed, preparation of a draft and final 
recovery plan, and revisions to the plan as significant new information 
becomes available. The recovery outline guides the immediate 
implementation of urgent recovery actions and describes the process to 
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species, 
measurable criteria that determine when a species may be downlisted or 
delisted, and methods for monitoring recovery progress. Recovery plans 
also establish a framework for agencies to coordinate their recovery 
efforts and provide estimates of the cost of implementing recovery 
tasks. Recovery teams (comprised of species experts, Federal and State 
agencies, nongovernment organizations, and stakeholders) are often 
established to develop recovery plans. When completed, the recovery 
outline, draft recovery plan, and the final recovery plan will be 
available from our Web site (http://www.fws.gov/endangered), or from 
our New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, nongovernmental organizations, businesses, and 
private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private and State lands.
    Once this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of New Mexico would be 
eligible for Federal funds to implement management actions that promote 
the protection and recovery of the Chupadera springsnail. Information 
on our grant programs that are available to aid species recovery can be 
found at: http://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for this species. Additionally, we invite you to 
submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. Once a species is 
subsequently listed, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of the species or destroy 
or adversely modify its critical habitat. If a Federal action may 
adversely affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with the 
Service. For the Chupadera springsnail, Federal agency actions that may 
require consultation would include any federally funded activities in 
the Willow Spring watershed, groundwater source area, or directly in 
the spring that may affect Willow Spring or the Chupadera springsnail 
(for example, activities that require a permit from the U.S. Army Corps 
of Engineers pursuant to section 404 of the Clean Water Act (33 U.S.C. 
1251 et seq.)).

Jeopardy Standard

    Prior to and following listing and designation of critical habitat, 
if prudent and determinable, the Service applies an analytical 
framework for jeopardy analyses that relies heavily on the importance 
of core area populations to the survival and recovery of the species. 
The section 7(a)(2) analysis is focused not only on these populations 
but also on the habitat conditions necessary to support them. The 
jeopardy analysis usually expresses the survival and recovery needs of 
the species in a qualitative fashion without making distinctions 
between what is necessary for survival and what is necessary for 
recovery. Generally, if a proposed Federal action is incompatible with 
the viability of the affected core area population(s), inclusive of 
associated habitat conditions, a jeopardy finding is considered to be 
warranted, because of the relationship of each core area population to 
the survival and recovery of the species as a whole.

Section 9 Take

    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered 
wildlife, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (includes harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to 
attempt any of these), import, export, ship in interstate commerce in 
the course of commercial activity, or sell or offer for sale in 
interstate or foreign commerce any listed species. It is also illegal 
to possess, sell, deliver, carry, transport, or ship any such wildlife 
that has been taken illegally. Certain exceptions apply to agents of 
the Service and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered or threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for

[[Page 41097]]

endangered species. With regard to endangered wildlife, a permit must 
be issued for the following purposes: For scientific purposes, to 
enhance the propagation or survival of the species, and for incidental 
take in connection with otherwise lawful activities.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that will or will not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of listed species. The 
following activities could potentially result in a violation of section 
9 of the Act; this list is not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for 
properly documented antique specimens of these taxa at least 100 years 
old, as defined by section 10(h)(1) of the Act;
    (2) Introduction of nonnative species that compete with or prey 
upon the Chupadera springsnail, such as the introduction of competing, 
nonnative species to the State of New Mexico;
    (3) The unauthorized release of biological control agents that 
attack any life stage of this species;
    (4) Unauthorized modification of the springs; and
    (5) Unauthorized discharge of chemicals or fill material into any 
waters in which the Chupadera springsnail is known to occur.
    Questions regarding whether specific activities constitute a 
violation of section 9 of the Act should be directed to the New Mexico 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Critical Habitat

Background

    It is our intent to discuss below only those topics directly 
relevant to the designation of critical habitat for the Chupadera 
springsnail in this section of the final rule.
    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 pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, 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 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, those physical and biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat), focusing on the principal 
biological or physical constituent elements (primary constituent 
elements) within an area that are essential to the conservation of the 
species (such as roost sites, nesting grounds, seasonal wetlands, water 
quality, tide, soil type). Primary constituent elements are 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.
    Under the Act and regulations at 50 CFR 424.12, 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.

[[Page 41098]]

    When we determine 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, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. 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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations exist: (1) The species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    There is no documentation that the Chupadera springsnail is 
threatened by collection, and it is unlikely to experience increased 
threats by identifying critical habitat. In the absence of a finding 
that the designation of critical habitat would increase threats to a 
species, if there are any benefits to a critical habitat designation, 
then a prudent finding is warranted. The potential benefits include: 
(1) Triggering consultation under section 7 of the Act in new areas for 
actions in which there may be a Federal nexus where it would not 
otherwise occur because, for example, an area has become unoccupied or 
the occupancy is in question; (2) focusing conservation activities on 
the most essential features and areas; (3) providing educational 
benefits to State or county governments or private entities; and (4) 
preventing people from causing inadvertent harm to the species.
    The primary regulatory effect of critical habitat is the section 
7(a)(2) requirement that Federal agencies refrain from taking any 
action that destroys or adversely modifies critical habitat. Lands 
designated as critical habitat that are subject to Federal actions may 
trigger the section 7 consultation requirements. There may also be some 
educational or informational benefits to the designation of critical 
habitat. Educational benefits include the notification of the general 
public of the importance of protecting habitat.
    At present, the only known extant population of the Chupadera 
springsnail occurs on private lands in the United States. The species 
currently is not known to occur on Federal lands or lands under Federal 
jurisdiction. However, lands designated as critical habitat, whether or 
not under Federal jurisdiction, may be subject to Federal actions that 
trigger the section 7 consultation requirement, such as the granting of 
Federal monies or Federal permits.
    We reviewed the available information pertaining to habitat 
characteristics where this species is located. This and other 
information represent the best scientific data available and led us to 
conclude that the designation of critical habitat is prudent for the 
Chupadera springsnail because, as discussed above, there is no 
information to indicate that identification of critical habitat will 
result in increased threats to the species, and information indicates 
that designation of critical habitat will be beneficial to the species.

Critical Habitat Determinability

    As stated above, section 4(a)(3) of the Act requires the 
designation of critical habitat concurrently with the species' listing 
``to the maximum extent prudent and determinable.'' Our regulations at 
50 CFR 424.12(a)(2) state that critical habitat is not determinable 
when one or both of the following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act provides for an 
additional year to publish a critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. This and other information represent the best scientific data 
available, and the available information is sufficient for us to 
identify areas to designate as critical habitat. Therefore, we conclude 
that the designation of critical habitat is determinable for the 
Chupadera springsnail.

Physical and Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
the 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 which 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 specific physical and biological features essential 
to the

[[Page 41099]]

conservation of the species and laid out in the appropriate quantity 
and spatial arrangement for the conservation of the species. We derive 
the specific physical and biological features for the Chupadera 
springsnail from the biological needs of this species as described 
above (see Species Information).
    Based on the needs and our current knowledge of the life history, 
biology, and ecology of the species and the habitat requirements for 
sustaining the essential life-history functions of the species, we have 
determined that the Chupadera springsnail requires the following 
physical and biological features:
Space for Individual and Population Growth and for Normal Behavior
    The Chupadera springsnail occurs where water emerges from the 
ground as a free-flowing spring and springbrook. Within the spring 
ecosystem, proximity to the springhead is important because of the 
appropriate stable water chemistry and temperature, substrate, and flow 
regime. The Chupadera springsnail occurs in one spring in an open 
foothill meadow at 1,620 m (5,315 ft) elevation. The species has been 
found in the springhead and springbrook. Historically, it was also 
found at an unnamed spring 0.5 km (0.3 mi) from this location. 
Therefore, based on the information above, we identify unpolluted 
spring water (free from contamination) emerging from the ground and 
flowing on the surface as a physical and biological feature for the 
Chupadera springsnail.
Food, Water, Air, Light, or Other Nutritional or Physiological 
Requirements
    Taylor (1987, p. 26) found Chupadera springsnails on pebbles and 
cobbles interspersed with sand, mud, and aquatic plants. Individuals 
were abundant in flowing water on stones, dead wood, and among 
vegetation on firm surfaces that had an organic film (periphyton). 
Chupadera springsnail was not found in the impoundment created by 
damming the springbrook (Taylor 1987, p. 26). From data collected in 
1997 and 1998, Lang (2009, p. 1) determined the springsnails were found 
in water velocities that ranged from 0.01 to 0.19 m/s (0.03 to 0.6 ft/
s).
    Chupadera springsnails consume periphyton on submerged surfaces. 
Spring ecosystems occupied by Chupadera springsnails must support the 
periphyton upon which springsnails graze. Therefore, based on the 
information above, we identify periphyton (an assemblage of algae, 
bacteria, and microbes) and decaying organic material as a physical and 
biological feature for the Chupadera springsnail.
Sites for Breeding, Reproduction, and Rearing of Offspring
    Substrate characteristics influence the productivity of the 
springsnails. Suitable substrates are typically firm, characterized by 
cobble, gravel, sand, woody debris, and aquatic vegetation such as 
watercress. Suitable substrates increase productivity by providing 
suitable egg-laying sites and providing food resources. Therefore, 
based on the information above, we identify substrates that include 
cobble, gravel, pebble, sand, silt, and aquatic vegetation, for egg 
laying, maturing, feeding, and escape from predators as a physical and 
biological feature for the Chupadera springsnail.
Habitats Protected From Disturbance or Representative of the 
Historical, Geographical, and Ecological Distributions of the Species
    The Chupadera springsnail has a restricted geographic distribution. 
Endemic species whose populations exhibit a high degree of isolation 
are extremely susceptible to extinction from both random and nonrandom 
catastrophic natural or human-caused events. Therefore, it is essential 
to maintain the spring systems upon which the Chupadera springsnail 
depends. This means protection from disturbance caused by exposure to 
cattle grazing, water contamination, water depletion, springhead 
alteration, or nonnative species. The Chupadera springsnail must, at a 
minimum, sustain its current distribution for the one remaining 
population to remain viable.
    As discussed above (see Factor E. Other Natural or Manmade Factors 
Affecting Its Continued Existence), introduced species are a serious 
threat to native aquatic species (Williams et al. 1989, p. 18; Lodge et 
al. 2000, p. 7). Because the distribution of the Chupadera springsnail 
is so limited, and its habitat so restricted, introduction of certain 
nonnative species into its habitat could be devastating. Potentially 
harmful nonnative species include saltcedar, common reed, Russian 
thistle, and the red-rim melania. Therefore, based on the information 
above, we identify nonnative species either absent or present at low 
population levels as a physical and biological feature for the 
Chupadera springsnail.
Primary Constituent Elements for the Chupadera Springsnail
    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features essential to the 
conservation of Chupadera springsnail in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be the elements of physical 
and biological features that are essential to the conservation of the 
species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to Chupadera springsnail are springheads, 
springbrooks, seeps, ponds, and seasonally wetted meadows containing:
    (1) Unpolluted spring water (free from contamination) emerging from 
the ground and flowing on the surface;
    (2) Periphyton (an assemblage of algae, bacteria, and microbes) and 
decaying organic material for food;
    (3) Substrates that include cobble, gravel, pebble, sand, silt, and 
aquatic vegetation, for egg laying, maturing, feeding, and escape from 
predators; and
    (4) Nonnative species either absent or present at low population 
levels.

Special Management Considerations or Protections

    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 which may require special management considerations or 
protection. Threats to the physical and biological features essential 
to the conservation of the Chupadera springsnail include loss of spring 
flows due to groundwater pumping and drought, inundation of springheads 
due to pond creation, degradation of water quality and habitat due to 
livestock grazing or other alteration of water chemistry, and the 
introduction of nonnative species. A more complete discussion of the 
threats to the Chupadera springsnail and its habitats can be found in 
``Summary of Factors Affecting the Species'' above.

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 designate critical habitat. 
We review all available information pertaining to the habitat

[[Page 41100]]

requirements of the species. As part of our review, in accordance with 
the Act and its implementing regulation at 50 CFR 424.12(e), we 
consider whether designating areas outside those currently occupied, as 
well as those occupied at the time of listing, are necessary to ensure 
the conservation of the species. We designate areas outside the 
geographical area occupied by a species at the time of listing only 
when a designation limited to its present range would be inadequate to 
ensure the conservation of the species.
    For the purpose of designating critical habitat for Chupadera 
springsnail, we define the occupied area based on the most recent 
surveys available, which are from 1999. There is only one area 
currently occupied. We then evaluated whether this area contains the 
primary constituent elements for the Chupadera springsnail and whether 
they require special management. Next we considered areas historically 
occupied, but not currently occupied. There is only one area where the 
Chupadera springsnail historically occurred but is not currently 
occupied. We evaluated this area to determine whether it was essential 
for the conservation of the species.
    To determine if the one currently occupied area (Willow Spring) 
contains the primary constituent elements, we assessed the life-history 
components of the Chupadera springsnail as they relate to habitat. The 
springsnail requires unpolluted spring water in the springheads and 
springbrooks; periphyton and decaying organic material for food; rock-
derived substrates for egg laying, maturation, feeding, and escape from 
predators; and absence of nonnative species.
    To determine if the one site historically occupied by the Chupadera 
springsnail (unnamed spring) is essential for the conservation of the 
Chupadera springsnail, we considered: (1) The importance of the site to 
the overall status of the species to prevent extinction and contribute 
to future recovery of the Chupadera springsnail; (2) whether the area 
could be restored to contain the necessary physical and biological 
features to support the Chupadera springsnail; and (3) whether a 
population of the species could be reestablished at the site.
    We plotted the known occurrences of the Chupadera springsnail in 
springheads and springbrooks on 2007 U.S. Geological Survey (USGS) 
Digital Ortho Quarter Quad maps using ArcMap (Environmental Systems 
Research Institute, Inc.), a computer geographic information system 
(GIS) program. There are no known developed areas such as buildings, 
paved areas, and other structures that lack the biological features for 
the springsnail within the designated critical habitat areas.
    In summary, we are designating critical habitat in areas that we 
determined are occupied at the time of listing and contain sufficient 
primary constituent elements to support life-history functions 
essential to the conservation of the species and require special 
management, and areas outside the geographical area occupied at the 
time of listing that we determine are essential for the conservation of 
Chupadera springsnail.

Final Critical Habitat Designation

    We are designating two units of critical habitat for the Chupadera 
springsnail. The critical habitat areas we describe below constitute 
our current best assessment of areas that meet the definition of 
critical habitat for Chupadera springsnail. The two areas we designate 
as critical habitat are: (1) Willow Spring, which is currently (at the 
time of listing) occupied and contains the primary constituent 
elements; and (2) unnamed spring, which is not currently (at the time 
of listing) occupied but is determined to be essential for the 
conservation of the species. The approximate area and land ownership of 
each critical habitat unit is shown in Table 1.

  Table 1--Ownership and Approximate Area of Critical Habitat Units for
                          Chupadera Springsnail
------------------------------------------------------------------------
                                                              Estimated
                                                               size of
        Critical habitat unit          Land  ownership  by     unit in
                                               type            hectares
                                                               (acres)
------------------------------------------------------------------------
1. Willow Spring Unit...............  Private..............    0.5 (1.4)
2. Unnamed Spring Unit..............  Private..............    0.2 (0.5)
                                                            ------------
    Total...........................  .....................    0.7 (1.9)
------------------------------------------------------------------------

    We present below brief descriptions of the units and reasons why 
they meet the definition of critical habitat for Chupadera springsnail.

Unit 1: Willow Spring Unit

    Unit 1 consists of approximately 0.5 ha (1.4 ac) in Socorro County, 
New Mexico. When last visited in 1999, the Willow Spring Unit was a wet 
meadow with a springbrook that runs approximately 38 m (125 ft) before 
being impounded by a berm that crosses the meadow. The entire unit is 
in private ownership. We are designating a single critical habitat unit 
that encompasses Willow Spring and includes the springhead, 
springbrook, small seeps and ponds, and the seasonally wetted meadow 
associated with the spring downstream to the artificial berm. This 
spring is located within the drainage of the Rio Grande, approximately 
2.7 km (1.7 mi) west of Interstate Highway 25.
    The Willow Spring site has documented occupancy of Chupadera 
springsnail from 1979 to 1999 (Taylor 1987 p. 24; NMDGF 2004, p. 45). 
Based on observations in 2011 provided by the landowner (Highland 
Springs, LLC 2011, p. 3), we presume the species persists at Willow 
Spring. The Willow Spring Unit contains all the primary constituent 
elements to support all of the Chupadera springsnail's life processes. 
Threats to the primary constituent elements in this unit that may 
require special management include the effects of livestock grazing, 
groundwater depletion, springhead or springbrook modification, water 
contamination, and potential effects from nonnative species.

Unit 2: Unnamed Spring Unit

    Unit 2 consists of approximately 0.2 ha (0.5 ac) in Socorro County, 
New Mexico. The entire unit is privately owned. We are designating a 
single critical habitat unit that encompasses the unnamed spring and 
includes the springhead, springbrook, small seeps and ponds, and the 
seasonally wetted meadow associated with the spring. This spring is 
located within the drainage of the Rio Grande, approximately 2.7 km 
(1.7 mi) west of Interstate Highway 25, and about 0.5 km (0.3 mi) north 
of Willow Spring.
    The Unnamed Spring Unit is currently unoccupied by the Chupadera 
springsnail, but it was historically occupied (Stefferud 1986, p. 1; 
Taylor 1987, p. 24; Lang 1998, p. 36). The spring appears to share a 
common aquifer and similarities in water chemistry, temperature, and 
hydrology with Willow Spring. When developing conservation strategies 
for species whose life histories are characterized by short generation 
time, small body size, high rates of population increase, and high 
habitat specificity, it is important to maintain multiple populations 
as opposed to protecting a single population (Murphy et al. 1990, pp. 
41-51). Having replicate populations is a recognized conservation 
strategy to protect species from extinction due to catastrophic events 
(Soule 1985, p. 731). This area is important to prevent extinction of 
the Chupadera springsnail. Some habitat restoration work may be needed 
before Chupadera springsnail

[[Page 41101]]

could be reintroduced to the Unnamed Spring Unit; however, creating a 
second population is important for the long-term persistence of the 
species. The Unnamed Spring Unit is essential for the conservation of 
the species because it is a site where the Chupadera springsnail can be 
reintroduced.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the courts of appeals for the Fifth and Ninth Circuits have 
invalidated our definition of ``destruction or adverse modification'' 
(50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and 
Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v. 
U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 
2001)), and we do not rely on this regulatory definition when analyzing 
whether an action is likely to destroy or adversely modify critical 
habitat. Under the statutory provisions of the Act, we determine 
destruction or adverse modification on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain those physical and 
biological features that relate to the ability of the area to 
periodically support the species) to serve its intended conservation 
role for the species.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) through 
our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``Reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.

Application of the ``Adverse Modification'' Standard

    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical and 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Chupadera springsnail. As 
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, will result in consultation 
for the Chupadera springsnail. These activities include, but are not 
limited to:
    (1) Actions that would reduce the quantity of water flow within the 
spring systems designated as critical habitat.
    (2) Actions that would modify the springheads within the spring 
systems designated as critical habitat.
    (3) Actions that would degrade water quality within the spring 
systems designated as critical habitat.
    (4) Actions that would reduce the availability of coarse, firm 
aquatic substrates within the spring systems designated as critical 
habitat.
    (5) Actions that would reduce the occurrence of native aquatic 
algae or periphyton or both within the spring systems designated as 
critical habitat.
    (6) Actions that would introduce, promote, or maintain nonnative 
species within the spring systems designated as critical habitat.

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 by November 
17, 2001. This plan integrates implementation of the military mission 
of the installation with stewardship of the natural resources found on 
the base.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands within the critical 
habitat designation, and, therefore, there are no exemptions under 
section 4(a)(3) of the Act.

[[Page 41102]]

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 identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
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 prepared a draft economic analysis, which 
we made available for public review on January 20, 2012 (77 FR 2943), 
based on the proposed rule published on August 2, 2011 (76 FR 46218). 
We accepted comments on the draft economic analysis until February 21, 
2012. Following the close of the comment period, a final analysis of 
the potential economic effects of the designation was completed in 
April 2011, taking into consideration the public comments and any new 
information. No comments were received during the final comment period 
(77 FR 25668; May 1, 2012).
    The intent of the final economic analysis is to identify and 
analyze the potential economic impacts associated with the critical 
habitat designation for the Chupadera springsnail. The final economic 
analysis describes the economic impacts of all potential conservation 
efforts for the Chupadera springsnail; some of these costs will likely 
be incurred regardless of whether we designate critical habitat. The 
economic impact of the final critical habitat designation is analyzed 
by comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for the species (e.g., under the Federal listing and 
other Federal, State, and local regulations). The baseline, therefore, 
represents the costs incurred regardless of whether critical habitat is 
designated. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat, above and beyond the baseline costs; these are the 
costs we consider in the final designation of critical habitat when 
evaluating the benefits of excluding particular areas under section 
4(b)(2) of the Act. The analysis looks at baseline impacts incurred 
from the listing of the species and forecasts both baseline and 
incremental impacts likely to occur with the designation of critical 
habitat. For a further description of the methodology of the analysis, 
see the ``Framework for the Analysis'' section of the final economic 
analysis.
    The final economic analysis provides estimated costs of the 
foreseeable potential economic impacts of the final critical habitat 
designation for the Chupadera springsnail. It identifies potential 
incremental costs as a result of the final critical habitat 
designation; these are those costs attributed to critical habitat over 
and above those baseline costs attributed to listing. The final 
economic analysis quantifies economic impacts of Chupadera springsnail 
conservation efforts associated with residential development and ranch 
activities.
    Existing and planned subdivision development in the area can lead 
to groundwater depletion, threatening the springsnail and its habitat 
by reducing water flow at the spring that supports the species. 
Residential activities can also lead to modification of the area around 
the springhead and springbrook, causing habitat degradation through 
inundation and changes in water flow and chemistry. However, a Federal 
nexus consultation under section 7 of the Act is unlikely to exist, as 
each parcel will have its own groundwater well, which is regulated by 
the New Mexico Office of the State Engineer with no Federal 
involvement. Unit 1 is not slated for development; therefore, it is 
unlikely the landowners will apply for a permit under section 404 of 
the Clean Water Act. We are unaware of the plans for Unit 2, but we 
believe that any development would avoid the spring and therefore avoid 
the need for a section 404 permit. Because there are no foreseeable 
activities with a Federal nexus, the draft economic analysis found no 
economic impact of the designation of critical habitat beyond a 
possible ``stigma effect'' to land values. This stigma effect arises 
from the perception of landowners that designation of critical habitat 
may impede future land development and, therefore, depress land values. 
Our economic analysis was unable to quantify the economic value of any 
possible stigma effects.
    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary is not exerting his discretion to exclude any areas from this 
designation of critical habitat for the Chupadera springsnail based on 
economic impacts. A copy of the final economic analysis with supporting 
documents may be obtained by contacting the New Mexico Ecological 
Services Field Office (see ADDRESSES) or for downloading from the 
Internet at http://www.regulations.gov.
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 where a national 
security impact might exist. In preparing this final rule, we have 
determined that the lands within the designation of critical habitat 
for the Chupadera springsnail are not owned or managed by the 
Department of Defense, and therefore, anticipate no impact to national 
security, and the Secretary is not exerting his discretion to exclude 
any areas from this final designation 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

[[Page 41103]]

consider a number of factors including whether the landowners have 
developed any 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 final rule, we have determined that there are 
currently no HCPs or other management plans for the Chupadera 
springsnail, and the final designation does not include any Tribal 
lands or trust resources. We anticipate no impact to Tribal lands, 
partnerships, or HCPs from this critical habitat designation. In 
addition, we considered other relevant impacts during preparation of 
the environmental assessment pursuant to the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.) (see Required Determinations, 
National Environmental Policy Act (NEPA) below) and found no other 
significant impacts that would warrant our consideration for excluding 
any areas from critical habitat designation. Accordingly, the Secretary 
is not exercising his discretion to exclude any areas from this final 
designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
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. Based on our final economic analysis of the 
critical habitat designation, we provide our analysis for determining 
whether the final rule will result in a significant economic impact on 
a substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; 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 designation of critical habitat for the 
Chupadera springsnail will affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as residential 
development and ranch activities. In order to determine whether it is 
appropriate for our agency to certify that this final rule will 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 Chupadera springsnail is present, 
Federal agencies will be, as of the effective date of this rule (see 
DATES), required to consult with us under section 7 of the Act on 
activities they fund, permit, or implement that may affect the species. 
Consultations to avoid the destruction or adverse modification of 
critical habitat will be incorporated into the consultation process.
    In the final economic analysis, we evaluated the potential economic 
effects on small entities resulting from implementation of conservation 
actions related to the designation of critical habitat for the 
Chupadera springsnail. Information in the final economic analysis and 
final environmental assessment indicates the critical habitat 
designation will have no effect on any small entities. Please refer to 
the final economic analysis of the final critical habitat designation 
for a more detailed discussion of potential economic impacts.
    In summary, we have considered whether the final designation will 
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. We have 
identified no small entity that may be impacted by the final critical 
habitat designation. For this reason, and based on currently available 
information, we certify that the final critical habitat designation 
will not have a significant economic impact on a substantial number of 
small business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of

[[Page 41104]]

the economic effects of this designation is described in the final 
economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued Executive Order 13211 (E.O. 
13211; ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'') on regulations that 
significantly affect energy supply, distribution, and use. E.O. 13211 
requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. OMB has provided guidance for implementing 
this Executive Order that outlines nine outcomes that may constitute 
``a significant adverse effect'' when compared to not taking the 
regulatory action under consideration. The economic analysis finds that 
none of these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis, energy-related impacts associated 
with Chupadera springsnail conservation activities within critical 
habitat are not expected. As such, the designation of critical habitat 
is not expected to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal 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.
    (b) We do not expect this rule to significantly or uniquely affect 
small governments because the critical habitat designation is on 
private land. Small governments 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. Therefore, we do not believe a Small Government 
Agency Plan is required.

Takings

    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 Chupadera springsnail in a takings 
implications assessment. Critical habitat designation does not affect 
landowner 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 permit actions that do require 
Federal funding or permits to go forward. The takings implications 
assessment concludes that this designation of critical habitat for the 
Chupadera springsnail does not pose significant takings implications 
for lands within or affected by the designation.

Federalism

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A federalism impact summary statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this critical habitat designation with 
appropriate State resource agencies in New Mexico. We received comments 
from the New Mexico Department of Game and Fish and have addressed them 
in the Summary of Comments and Recommendations section of this rule. 
The designation of critical habitat in areas currently occupied by the 
Chupadera springsnail imposes no additional restrictions to those that 
will be put in place on the effective date of this rule (see DATES) 
and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas that contain the physical and 
biological 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).

[[Page 41105]]

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), this rule 
meets the applicable standards set forth in sections 3(a) and 3(b)(2) 
of the executive order. We are designating critical habitat in 
accordance with the provisions of the Act. This final rule uses 
standard property descriptions and identifies the physical and 
biological features essential to the conservation of the subspecies 
within the designated areas to assist the public in understanding the 
habitat needs of the Chupadera springsnail.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget 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 (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, because the range of the Chupadera springsnail 
is in a State within the Tenth Circuit under the ruling in Catron 
County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 
F.3d 1429 (10th Cir. 1996), we prepared a draft environmental 
assessment. We made the draft environmental assessment available for 
public review on January 20, 2012 (77 FR 2943) and accepted comments on 
the draft environmental assessment until February 21, 2012, and again 
between May 1, 2012, and May 16, 2012 (77 FR 25668). Following the 
close of the final comment period, a final environmental assessment of 
the potential environmental consequences associated with the proposed 
critical habitat designation for the Chupadera springsnail was 
completed. The final environmental assessment found that designating 
critical habitat for the Chupadera springsnail within the two units 
will not have significant impacts to the human environment and finding 
of no significant impact was made.

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 determined that there are no 
Tribal lands occupied at the time of listing that contain the features 
essential for the conservation, and no unoccupied Tribal lands that are 
essential for the conservation of the Chupadera springsnail. Therefore, 
we are not designating critical habitat for the Chupadera springsnail 
on Tribal lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the New 
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this notice are the staff members of the New 
Mexico Ecological Services Field Office, Southwest Region, U.S. Fish 
and Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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


0
2. Amend Sec.  17.11(h) by adding an entry for ``Springsnail, 
Chupadera'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under SNAILS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species                                                    Vertebrate
------------------------------------------------------------                         population
                                                                                       where                                      Critical     Special
                                                                 Historic range      endangered       Status       When listed    habitat       rules
            Common name                  Scientific name                                 or
                                                                                     threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
               Snails
 
                                                                      * * * * * * *
Springsnail, Chupadera.............  Pyrgulopsis chupaderae  U.S.A. (NM)..........           NA  E                 ...........     17.95(f)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 41106]]


0
3. In Sec.  17.95, amend paragraph (f) by adding an entry for 
``Chupadera Springsnail (Pyrgulopsis chupaderae)'' in the same 
alphabetical order that the species appears in the table at Sec.  
17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *
Chupadera Springsnail (Pyrgulopsis chupaderae)
    (1) Critical habitat units are depicted for Socorro County, New 
Mexico, on the map below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
Chupadera springsnail consist of springheads, springbrooks, seeps, 
ponds, and seasonally wetted meadows containing:
    (i) Unpolluted spring water (free from contamination) emerging from 
the ground and flowing on the surface;
    (ii) Periphyton (an assemblage of algae, bacteria, and microbes) 
and decaying organic material for food;
    (iii) Substrates that include cobble, gravel, pebble, sand, silt, 
and aquatic vegetation, for egg laying, maturing, feeding, and escape 
from predators; and
    (iv) Nonnative species either absent or present at low population 
levels.
    (3) Critical habitat does not include manmade structures (such as 
buildings, roads, and other paved areas, and the land on which they are 
located) existing on the effective date of this rule.
    (4) Critical habitat map units were plotted on 2007 USGS Digital 
Ortho Quarter UTM coordinates in ArcMap (Environmental Systems Research 
Institute, Inc.), a computer GIS program
    (5) Unit 1: Willow Spring, Socorro County, New Mexico.
    (i) The critical habitat area includes the springhead, springbrook, 
small seeps and ponds, seasonally wetted meadow, and all of the 
associated spring features. This area is approximately 0.5 ha (1.4 ac) 
around the following coordinates: Easting 316889, northing 3743013 
(Universal Transverse Mercator Zone 13 using North American Datum of 
1983).
    (ii) Map of Units 1 and 2 follows:
    [GRAPHIC] [TIFF OMITTED] TR12JY12.003
    
    (6) Unit 2: Unnamed Spring, Socorro County, New Mexico.
    (i) The critical habitat area includes the springhead, springbrook, 
small seeps and ponds, seasonally wetted meadow, and all of the 
associated spring features. This area is approximately 0.2 ha (0.5 ac) 
around the following coordinates: Easting 317048, northing 3743418 
(Universal Transverse Mercator Zone 13 using North American Datum of 
1983).
    (ii) Map of Unit 2 is provided at paragraph (5)(ii) of this entry.
* * * * *

    Dated: June 19, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-16988 Filed 7-11-12; 8:45 am]
BILLING CODE 4310-55-P