[Federal Register Volume 77, Number 193 (Thursday, October 4, 2012)]
[Rules and Regulations]
[Pages 60778-60802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23999]
[[Page 60777]]
Vol. 77
Thursday,
No. 193
October 4, 2012
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Species Status for Coqu[iacute] Llanero Throughout Its Range
and Designation of Critical Habitat; Final Rule
Federal Register / Vol. 77, No. 193 / Thursday, October 4, 2012 /
Rules and Regulations
[[Page 60778]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2009-0022]
RIN 1018-AX68
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Species Status for Coqu[iacute] Llanero Throughout Its Range
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
species status under the Endangered Species Act of 1973 (Act), as
amended, for the coqu[iacute] llanero (Eleutherodactylus juanariveroi),
and designate critical habitat. In total, we are designating
approximately 615 acres (249 hectares) of a freshwater wetland in
Sabana Seca Ward, Municipality of Toa Baja, Puerto Rico, as critical
habitat. The effect of this regulation is to conserve the coqu[iacute]
llanero and its habitat under the Act.
DATES: This rule becomes effective on November 5, 2012.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. 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 U.S. Fish and Wildlife Service, Caribbean Ecological Services
Field Office, P.O. Box 491, Road 301 Km 5.1, Boquer[oacute]n, PR 00622;
by telephone, 787-851-7297; or by facsimile, 787-851-7440.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at (http://www.fws.gov/caribbean/es/Endangered-Main.html), http://www.regulations.gov at Docket No. FWS-
R4-ES-2009-0022, and at the Caribbean Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT). Any additional tools or
supporting information that we may develop for this critical habitat
designation will also be available at the Fish and Wildlife Service Web
site and Field Office set out above, and may also be included in the
preamble or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Marelisa Rivera, Deputy Field
Supervisor, U.S. Fish and Wildlife Service, Caribbean Ecological
Services Field Office, P.O. Box 491, Road 301 Km 5.1, Boquer[oacute]n,
PR 00622; by telephone, 787-851-7297, extension 206; or by facsimile,
787-851-7440. If you use a telecommunications device for the deaf
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, the Service shall
designate critical habitat for any species or subspecies that is
determined to be an endangered or threatened species, to the maximum
extent prudent and determinable. On October 12, 2011, we published the
proposed rule to list the coqu[iacute] llanero as an endangered species
(76 FR 63420). In that document, we explained that the species
currently exists in a freshwater wetland at Sabana Seca, faces numerous
threats, and therefore warrants listing under the Act as an endangered
species. Additionally, we proposed the designation of the coqu[iacute]
llanero's critical habitat and discussed our criteria for the
designation. This rule finalizes the protection proposed for the
coqu[iacute] llanero as an endangered species and the designation of
615 acres (249 hectares) in Sabana Seca Ward, Toa Baja, Puerto Rico, as
critical habitat, following careful consideration of all comments we
received during the public comment period.
The basis for our action. Under the Act, a species may be
determined to be an endangered or threatened species based on any of
the 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. Coqu[iacute] llanero is determined
to be an endangered species due to three of these five factors. Section
4(b)(2) of the Act states that the Secretary shall designate 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.
Peer review and public comment. When we published the proposed rule
on October 12, 2011, we opened a 60-day comment period on the proposed
listing and critical habitat designation for the coqu[iacute] llanero.
On June 19, 2012, we reopened the comment period for an additional 30
days. During the comment periods, we sought comments from independent
specialists (peer reviewers) on the specific assumptions and
conclusions in our listing proposal to ensure that the designation of
critical habitat is based on scientifically sound data, assumptions,
and analyses. In addition, we sought comments from interested parties
and the general public. We considered all comments and information
received during the comment periods.
Background
This document consists of: (1) A final rule to list the
coqu[iacute] llanero as an endangered species; and (2) a final critical
habitat designation for the coqu[iacute] llanero.
Previous Federal Actions
On May 22, 2007, we received a petition, dated May 11, 2007, from
the Caribbean Primate Research Center (CPRC) (CPRC 2007, pp. 1-29)
requesting that the coqu[iacute] llanero be listed as an endangered
species under the Act. The petition also requested that we designate
critical habitat concurrently with listing, if listing occurs. In a
letter to the petitioner dated July 23, 2007, we acknowledged receipt
of the petition and stated that (1) we would not be able to address the
petition until funding became available, and (2) actions requested by
this petition were precluded by court orders and settlement agreements
for other listing actions that required nearly all of our listing funds
for the current (2007) fiscal year.
On January 22, 2009, we received an amended petition dated January
13, 2009. The amended petition included updated information on current
threats to the species and its habitat (CPRC 2009, pp. 1-19). On July
8, 2009, we published in the Federal Register (74 FR 32510) our finding
that the petition to list the coqu[iacute] llanero presented
substantial information indicating that the requested action may be
warranted, and we initiated a status review of the species.
On October 12, 2011, we published in the Federal Register (76 FR
63420) our 12-month finding on the petition, combined with a proposed
rule to list the species as an endangered species
[[Page 60779]]
and designate critical habitat. Publication of the proposed rule opened
a 60-day public comment period.
On June 19, 2012, we published in the Federal Register (77 FR
36457) our evaluation of the potential economic impacts of the proposed
critical habitat designation, and we reopened the public comment period
for the proposed rule and critical habitat designation for 30 days.
Species Information
The coqu[iacute] llanero, an endemic Puerto Rican frog, was first
collected by Neftal[iacute] R[iacute]os-L[oacute]pez and Richard Thomas
in 2005, from a freshwater herbaceous wetland on the closed U.S. Naval
Security Group Activity Sabana Seca (USNSGASS) property and the
Caribbean Primate Research Center (CPRC), Toa Baja, Puerto Rico (PR).
This wetland area is considered as the ``type locality'' (similar
location) because the species was first collected and described from
this area. When discovered, the coqu[iacute] llanero was only known to
occur at the Ingenio Sector in the Sabana Seca Ward, Toa Baja, PR,
located on the northern coast, north of Toa Alta and Bayam[oacute]n,
east of Dorado, and west of Cata[ntilde]o, approximately 12 miles (mi)
(20 kilometers (km)) from San Juan, PR.
Taxonomy and Species Description
In 2007, the coqu[iacute] llanero was described as a new species of
the genus Eleutherodactylus, family Leptodactylidae. Although the
coqu[iacute] llanero is similar to Eleutherodactylus gryllus (cricket
coqu[iacute] or green coqu[iacute]), differences in morphological
ratios, body coloration, call frequency and structure, deoxyribonucleic
acid (DNA), and habitat association indicate that it is a well-
differentiated species (R[iacute]os-L[oacute]pez and Thomas 2007, pp.
53-60; CPRC 2009, p. 1). The coqu[iacute] llanero is the smallest and
only known herbaceous wetland specialist within the genus
Eleutherodactylus in Puerto Rico (R[iacute]os-L[oacute]pez and Thomas
2007, p. 62). It has a mean snout-vent length of 0.58 inches (in) (14.7
millimeters (mm)) in males and 0.62 in (15.8 mm) in females. The nares
(nasal passages) are prominent and a ridge connects them behind the
snout tip, giving the tip a somewhat squared appearance. The species
has well-developed glands throughout its body; its dorsal coloration is
yellow to yellowish brown with a light, longitudinal, reversed comma
mark on each side; and its mid-dorsal zone is broadly bifurcated
(divided into two branches) (R[iacute]os-L[oacute]pez and Thomas 2007,
p. 55). The species' communication call consists of a series of short,
high-pitched notes, with call duration varying from 4 to 21 seconds.
The advertisement call has the highest frequency among all Puerto Rican
Eleutherodactylus, between 7.38 and 8.28 kilohertz (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 61). The calling activity starts at
approximately 4:30 p.m. and decreases significantly before midnight.
Distribution
The coqu[iacute] llanero is found only on a palustrine herbaceous
wetland at Sabana Seca Ward. When the species was first discovered and
described, the author estimated that the coqu[iacute] llanero occurs on
approximately 445 acres (ac) (180 hectares (ha)) (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 60). Joglar (2007, p. 2) conducted
additional surveys and estimated that the distribution of the species
to occur on approximately 504.5 ac (204 ha). The Service has estimated
the palustrine herbaceous wetland area where the coqu[iacute] llanero
is now found to be about 615 ac (249 ha) (Service 2011, unpublished
data).
Vega-Castillo (2011) conducted diurnal and nocturnal surveys in
wetland areas and channels located between PR Road-867 and PR Road-165
to the north of where the coqu[iacute] llanero was found while
evaluating the proposed alignment for a natural gas pipeline. These
surveys were conducted during January 2011, using recorded male calling
(Vega-Castillo 2011, pp. 9-12). During this period, Vega-Castillo
(2011) detected at least 6 individual coqu[iacute] llanero vocalizing
at the edge of a vegetated drainage channel that is a tributary of the
Cocal River. The locality where these individuals were reported is
about 1.7 mi (2.7 km) northwest from the type locality. This area is
mainly dominated by pasture (Vega-Castillo 2011, p. 12). In March 2011,
Service biologists conducted several site visits to the area to confirm
the report. In addition, the Service installed a recorder for a 24-hour
period during March 2011, to detect individuals vocalizing in the area.
However, the Service did not detect the species in this area. Based on
the Service's observations, the area is highly degraded, dominated by
lands cleared (burned) and converted to pastureland.
Habitat
The habitat for the coqu[iacute] llanero comprises an area of
approximately 615 ac (249 ha) that includes approximately 97 ac (39 ha)
of Commonwealth land and 518 ac (209 ha) of Federal land (Geo-Marine
2002, pp. 2-13; R[iacute]os-L[oacute]pez and Thomas 2007, p. 60; Joglar
2007, p. 2; Tec Inc. and AH Environmental 2008, p. 3-2; PR Land
Authority 2011, unpublished data; Service 2011, unpublished data).
The habitat of the coqu[iacute] llanero is located within the
subtropical moist forest life zone (tropical and subtropical forest
ecosystems) (Ewel and Whitmore 1973, pp. 20-38). This life zone (areas
with similar plant and animal communities) covers about 60.5 percent of
the total area of Puerto Rico (Ewel and Whitmore 1973, p. 9). The
species appears to be an obligate marsh dweller (R[iacute]os-
L[oacute]pez 2007, p. 195). The coqu[iacute] llanero has been found
only in freshwater, herbaceous wetland habitat at an elevation of 55.8
ft (17 m) (R[iacute]os-L[oacute]pez and Thomas 2007, p. 60). The
National Wetland Inventory (NWI) classifies the majority of this
wetland as palustrine emergent persistent seasonally flooded, an area
with surface water present for extended periods during the growing
season. The soils of this wetland consist of swamp and marsh organic
deposits from Pleistocene or recent origin or both (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 60). The species' habitat may
represent a relic of an endemic seasonally to permanently flooded,
herbaceous wetland habitat type (R[iacute]os-L[oacute]pez and Thomas
2007, p. 63). Herbaceous vegetation in this habitat shows a species
composition consisting of Blechnum serrulatum (toothed midsorus fern),
Thelypteris interrupta (willdenow's maiden fern), Sagittaria lancifolia
(bulltongue arrowhead), Cyperus sp. (flatsedges), Eleocharis sp. (spike
rushes), and vines and grasses (R[iacute]os-L[oacute]pez and Thomas
2007, p. 60). The majority of coqu[iacute] llanero have been found
perching and calling on the toothed midsorus fern and willdenow's
maiden fern. At discovery, all the individuals collected were perching,
sitting, or calling on herbaceous vegetation, mainly on ferns.
Biology
The coqu[iacute] llanero is insectivorous (feeds on small insects).
The species has been observed to reproduce only on Sagittaria
lancifolia (bulltongue arrowhead) (CPRC 2009, p. 4). Egg clutches were
found on leaf axils (21 egg clutches) or leaf surfaces (3 egg clutches)
of only Sagittaria lancifolia (R[iacute]os-L[oacute]pez and Thomas
2007, p. 60) within the wetland area. Egg clutches comprise one to five
eggs and are found on leaf axils or leaf surfaces between 1.3 feet (ft)
(0.4 meters (m)) and 3.9 ft (1.2 m) above water level (R[iacute]os-
L[oacute]pez and Thomas 2007, pp. 53-62). Observers did not witness
parental care in the field (CPRC 2009, p. 5).
[[Page 60780]]
Summary of Comments and Recommendations
Due to the nature of the proposed rule, we received combined
comments from the public on the listing action and the critical habitat
designation. We have addressed these issues in a single comment
section.
We requested written comments from the public during two comment
periods on the proposed listing of the coqu[iacute] llanero and the
proposed designation of critical habitat for the coqu[iacute] llanero.
The first comment period associated with the publication of the
proposed rule (76 FR 63420) opened on October 12, 2011, and closed on
December 12, 2011. We also requested comments on the proposed critical
habitat designation and our evaluation of the potential economic
impacts during a comment period that opened June 19, 2012, and closed
on July 19, 2012 (77 FR 36457). We also contacted appropriate Federal,
State, and local agencies, scientific organizations, and other
interested parties and invited them to comment on the proposed rule and
our evaluation of the potential economic impacts during these comment
periods.
During the first comment period, we received 11 comment letters
directly addressing either the proposed listing or proposed critical
habitat designation. During the second comment period, we received 14
comment letters addressing the proposed critical habitat designation or
the evaluation of the potential economic impacts. We did not receive
any requests for a public hearing.
Substantive comments we received were grouped into four general
issues specifically relating to the proposed listing determination or
proposed critical habitat designation for the coqu[iacute] llanero.
These comments 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 six individuals with
knowledge and scientific expertise that included familiarity with the
species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from four of
those individuals.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding the proposed listing
and critical habitat for the coqu[iacute] llanero. The peer reviewers
generally concurred with our methods and conclusions, and provided
additional information, clarifications, and suggestions to improve the
final rule. Peer reviewers' comments are addressed in the following
summary and are incorporated into this final rule, as appropriate.
Peer Reviewer Comments
(1) Comment: The peer reviewers and others commenters suggested
various editorial changes to the final rule.
Our Response: We evaluated all of the suggested editorial changes,
and we incorporated them into this final rule, as appropriate.
(2) Comment: A commenter suggests that ``tree frog'' is not a
correct name for the coqu[iacute] llanero (Eleutherodactylus sp.). He
recommends that a generic name for the Puerto Rican Eleutherodactylus
should be coqu[iacute]es or frogs. Frogs known as ``tree frogs'' are
usually members of the Hylidae or Centrolenidae taxonomic families.
Our Response: We acknowledge this recommendation and agree with the
observation. The recommendation is incorporated into this final rule.
(3) Comment: A peer reviewer states that there have been very few
publications and reports on this species. The peer reviewer suggested
that more research is needed. The peer reviewer stated that since the
species' description in 2007, there have been no peer-reviewed
publications on this species. All information related to the species'
conservation and its habitat is based on anecdotal information, such as
personal communications, presentations, and non-published reports.
Our Response: The Service agrees that there is limited information
and peer-reviewed publications on the coqu[iacute] llanero. However, in
accordance with section 4 of the Act, the Service is required to use,
and has used, the best available scientific and commercial information
in this rulemaking. We relied upon primary and original sources of
information in order to meet the ``best available scientific and
commercial information'' standard. We evaluated information from many
different sources, including articles in peer-reviewed journals, former
rules and habitat designations developed by the Commonwealth of Puerto
Rico, scientific surveys and studies, other unpublished materials, and
experts' opinions or personal knowledge. Also, in accordance with the
peer review policy published on July 1, 1994 (59 FR 34270), we
solicited expert opinions from knowledgeable individuals with
scientific expertise that included familiarity with the species.
Additionally, we requested comments or information from other concerned
governmental agencies, the scientific community, and any other
interested parties.
(4) Comment: Peer reviewers and commenters state that the proposed
natural gas pipeline project ``Via Verde'' will be a serious threat to
the coqu[iacute] llanero and its habitat by adversely affecting the
hydrology of the occupied wetland.
Our Response: Via Verde's proposed right-of-way alignment through
Toa Baja is approximately 1.5 miles (2.4 kilometers) northwest of the
known wetland habitat supporting the coqu[iacute] llanero (PRDNER
2007b, p. 16). The topography of the Sabana Seca has an east-to-west
inclination (Morris 2007, p. 5); therefore, the project of concern will
be located downstream of the coqu[iacute] llanero's habitat.
We do not consider the proposed natural gas pipeline project a
threat to the coqu[iacute] llanero or its habitat because the best
available scientific information does not indicate that it is a threat.
If additional information becomes available on the impacts of the Via
Verde project on the coqu[iacute] llanero, we will reevaluate the
threats and could, if appropriate, revise the designation.
(5) Comment: A peer reviewer and other interested parties
petitioned the Service to exercise its authority under section 4(b)(7)
of the Act to emergency list the coqu[iacute] llanero as an endangered
species. The petition was based on the species' severely limited
geographic range, small population size, and several imminent threats
to the ecosystem it depends upon for reproduction and survival.
Our Response: The Act at 16 U.S.C. 1533(b)(3)(A) establishes a
single petition process for listing a species as an endangered or
threatened species. There is no separate process in the Act or its
implementing regulations for requesting an ``emergency listing'' as
opposed to a ``non-emergency'' listing. Therefore, we treat a petition
requesting emergency listing solely as a petition to list a species
under the Act. Furthermore, although 16 U.S.C. 1533(b)(7) does empower
the Secretary to list a species based upon an ``emergency posing a
significant risk to the well-being of [that] species,'' that type of
listing is expressly committed to the Secretary's discretion, the
exercise of which is not structured by any statutorily prescribed
criteria or procedures.
Our initial review of this emergency petition did not indicate that
an emergency listing was warranted because, at the time of the
petition, the species was protected by the
[[Page 60781]]
Commonwealth of Puerto Rico and because the Service was in the process
of listing the coqu[iacute] llanero and designating critical habitat
under the Act. On May 30, 2012, the protection given the coqu[iacute]
llanero by Puerto Rico's Commonwealth Law 241 and Regulation 6766 was
overturned by the Supreme Court of Puerto Rico. However, the Service
has continued to proceed with its final rule to list the coqu[iacute]
llanero as an endangered species and to designate critical habitat,
which will provide the species protection under the Act.
As a result, the Commonwealth of Puerto Rico will also grant
protection to the coqu[iacute] llanero under the authority of the 1984
Cooperative Agreement between the Service and the Puerto Rico
Department of Natural and Environmental Resources (PRDNER) under
section 6 of the Act and under Puerto Rico's Regulation 6766. Under the
cooperative agreement and Regulation 6766, if the Federal Government
makes a designation of critical habitat or lists a species under the
jurisdiction of the Commonwealth of Puerto Rico, the PRDNER will assure
both the addition of the species to the Commonwealth list and the
designation of critical habitat. After this final rule is effective,
the coqu[iacute] llanero will be protected by both entities, the
Federal Government and the Commonwealth of Puerto Rico.
(6) Comment: A peer reviewer provided a new estimated mean
population size for the coqu[iacute] llanero, 473.3 186
individuals per hectare (or 192 per acre). This information was based
on counts performed on 5 transects of 90 square meters each within the
occupied wetland. The peer reviewer cautioned how these estimates may
be misleading because the species is not evenly distributed throughout
the landscape.
Our Response: We acknowledge the new estimated mean population size
for the coqu[iacute] llanero. In the proposed rule, we stated the
estimated mean population size of the coqu[iacute] llanero was
approximately 181 individuals per ac (453 per ha). The new estimated
mean population provided by the peer reviewer is based on the analysis
of data collected from 5 transects of 90 square meters (area of 450
square meters) and, therefore, we consider it accurate. This data will
be updated in this final rule based on the new information provided.
(7) Comment: A peer reviewer states that areas within the
designated critical habitat are classified by the Toa Baja Municipality
as urban soils (designated for urban development) and, if development
occurred, it would affect the hydrology of the wetland occupied by the
coqu[iacute] llanero.
Our Response: The Service recognizes that areas within the critical
habitat designation are threatened by urban development (see Summary of
Factors Affecting the Species section). The selection of sites to be
included in the critical habitat designation is based on the needs of
the species. Before we consider land ownership, we determine what is
needed for the species' conservation based on the best available
scientific and commercial information. The Service will always work on
actions to support the recovery of the coqu[iacute] llanero wherever
possible. However, the designation of critical habitat does not impose
a legally binding duty on private parties. The section entitled
Critical Habitat Designation for Coqu[iacute] Llanero will provide
information on how critical habitat was determined and how development
activities will be considered and evaluated.
(8) Comment: A peer reviewer and the Commonwealth of Puerto Rico
suggest that the delimitation of critical habitat needs to be expanded
east (the Commonwealth of Puerto Rico suggested at least 50 m (164
feet) passing over the maintenance dirt road, as any negative impact to
this structure (e.g., oil spill, heavy sedimentation with water run-
off) will directly impact the species.
Our Response: The Service has found no scientific justification for
expanding critical habitat to the suggested area. The Service is
designating areas as defined in section 3 of the Act. The Service has
articulated a basis for designating the unit as critical habitat under
the unit description in the Final Critical Habitat Designation section.
The Secretary could revise the designation, as appropriate and as
resources allow, in the future if new information becomes available.
(9) Comment: Peer reviewers, the Commonwealth of Puerto Rico, and
other commenters recommend that although the nearby limestone hills are
not occupied by, nor provide habitat for, the species, the limestone
hills should be included in the critical habitat designation. Some
commenters have witnessed strong water run-off flooding in the wetland
after significant rain events. Others suggest viewing the limestone
hills as an ecosystem and considering them as part of the watershed
because it is clear that they are essential for the conservation of the
species. Although some reviewers are aware of the Navy's intention to
protect the limestone hills in perpetuity, they still recommend
including the hills as part of the critical habitat designation,
stating that the hydrological connection of the limestone hills with
the wetland is essential for the protection of the coqu[iacute]
llanero. Some also request that the Service adopt the former
designation of Critical Essential Natural Habitat by the PRDNER.
Our Response: The Service has determined that hydrology is one of
the primary constituent elements (PCEs) specific to the conservation of
the coqu[iacute] llanero and has recognized that changes in hydrology
may result in changes in the wetland function and vegetation
composition, as well as affect the connectivity with nearby habitats,
all with serious effects to the coqu[iacute] llanero. However, the
available hydrological study for this area only describes the limits of
the watersheds that, based on surface topography, are tributary to the
wetland (i.e., surface water drainage patterns, not groundwater flow
patterns). Hence, no information is available as to what extent the
surface water patterns and quantities are essential in maintaining the
actual conditions of the wetland (i.e., maintaining the PCEs), or if
there are other water sources (e.g., groundwater) with an equivalent or
more positive impact on the wetland other than surface water.
Nonetheless, the Service has information indicating that ownership of
the limestone hills is to be transferred by the U.S. Navy to the
University of Puerto Rico for perpetual protection.
The Service acknowledges the recommendation of expanding the
critical habitat designation. However, additional information is needed
to determine the importance of the limestone hills to the conservation
of the species and the additional area needed to maintain the hydrology
of the wetland (i.e., the PCEs of the occupied habitat). If data become
available in the future that justify the addition of the limestone
hills and any other suitable areas to critical habitat, the Secretary
may revise the designation, as appropriate and as resources allow,
under the authority of section 4(a)(3)(A)(ii) of the Act.
(10) Comment: A peer reviewer and several commenters state that the
Service should include Ca[ntilde]o Campanero and Cocal River in the
critical habitat designation because these water bodies are responsible
for maintaining the wetland and may be natural corridors for individual
coqu[iacute] llanero migrating from the existing wetland, thus
contributing to the species' persistence in Toa Baja.
Our Response: Although we recognize the importance of Ca[ntilde]o
Campanero and the Cocal River as drainage outlets for
[[Page 60782]]
the wetland, the best available scientific information does not
indicate that these water bodies are essential for the conservation of
the coqu[iacute] llanero. Therefore, Ca[ntilde]o Campanero and the
Cocal River do not meet the definition of critical habitat under the
Act and are not included in this final designation.
Comments From the States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.'' The
only comment received from the Commonwealth of Puerto Rico was from a
peer reviewer, who supported the listing and designation of critical
habitat and recommended that the critical habitat for the coqu[iacute]
llanero be expanded. (See comments (8) and (9) and our responses).
Public Comments
General Comment Issue 1 Critical Habitat
(11) Comment: A commenter understands our conclusion that the
limestone hills are important for the water supply of the wetland, but
states that we should focus instead on the fact that contamination,
hazardous substance release, or direct human impact (construction) of
any virgin land within the watershed will likely affect the water
amount and condition within the entire watershed.
Our Response: The Service agrees that contamination might
constitute a threat to the species (see Summary of Factors Affecting
the Species). However, the Service does not have sufficient information
to determine the impacts to the watershed, and how those impacts would
influence the wetland. The Service does have information on the surface
water runoff towards the wetland (Gregory Morris 2007), but there is a
lack of information to clearly understand the groundwater, water
distribution, and contaminants that would enter the wetland. The
Service considered both the importance of space for individual and
population growth and for normal behavior, as well as sites for
breeding, reproduction, or rearing (or development) of offspring when
developing the PCEs. The PCEs in this final rule represent the best
current understanding of the habitat requirements for the coqu[iacute]
llanero.
(12) Comment: A commenter requested that approximately 30 ac (12.1
ha) of an upland non-flooded area be excluded from the proposed
critical habitat. The commenter's rationale is that Sagittaria
lancifolia, an essential PCE for the conservation of the species, is
clearly absent given that the parcel is a non-wetland.
Our Response: The approximate area being described occurs within
the geographical area occupied by the species at the time of listing.
Reports confirm that the coqu[iacute] llanero occupies the area. The
Service acknowledges that the area is between manmade structures, but
those structures (e.g., buildings, houses, roads, and other paved
areas) are not included because they do not contain the PCEs and
because they do not meet the definition of critical habitat under the
Act. The 30-ac area (12.1-ha), on the other hand, does not contain any
structures and is connected to the main wetland area.
The fact that there is no Sagittaria lancifolia in the area only
means that the coqu[iacute] llanero will not lay their eggs there;
however, the area contains other vegetation that is part of the same
PCE. Therefore, we have determined that these lands meet the definition
of critical habitat under the Act and remain within this final
designation.
General Comment Issue 2 Outreach and Education
(13) Comment: A commenter recommends development of a public
educational campaign to support the decision (listing and critical
habitat designation).
Our Response: The Service agrees and will promote outreach for this
final rule via a variety of media.
General Comment Issue 3 General Information
(14) Comment: A commenter clarified information regarding the
entity that will be handling the disposal of the Navy Base's lands. The
proposed rule indicated that the Navy is conveying approximately 2,075
ac (840 ha) of the property to Sabana Seca Land Management (SSLM).
However, the entity that will be marketing and selling the Base is
named Sabana Seca Partners, LLC (SSPL), which is an entity different
from SSLM.
Our Response: We acknowledge this comment and we have made the
correction in this final rule.
Summary of Changes From Proposed Rule
The Service reviewed and fully considered all comments received
from the public and peer reviewers in response to the proposed rule of
October 12, 2011 (76 FR 63420), to list the coqu[iacute] llanero as an
endangered species and to designate its critical habitat. The Service
also considered all comments received in response to the reopened
comment period on June 19, 2012 (77 FR 36457), and has made minor
corrections, as appropriate, including the deletion of the reference to
the coqu[iacute] llanero as a tree frog as acknowledged in the response
to comment (2), above.
Status Assessment for the Coqu[iacute] Llanero
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 coqu[iacute] llanero was discovered in 2005. Additional on-the-
ground surveys based upon habitat characteristics revealed no
additional populations. As a result, we do not know if the historical
range of the species may be different from its present, known range.
Therefore, we present and discuss only factors that may affect the
current habitat or range of coqu[iacute] llanero in this section,
including: (1) Urban development; (2) operation and possible expansion
of a go-kart and motorbike racetrack in coqu[iacute] llanero wetland
habitat; (3) contamination from the Toa Baja Municipal Landfill (TBML);
(4) habitat degradation for flood control projects; and (5) competition
from invasive wetland plant species.
Urban Development
Large-scale residential projects that are currently planned within
and around the site where the species is known to occur pose a threat
to the coqu[iacute] llanero and its habitat (Gonz[aacute]lez 2010,
pers. comm.; R[iacute]os-L[oacute]pez 2010, pers. comm.). The most
significant portion of this habitat falls within the southern portion
of the USNSGASS. Its land comprises approximately 2,195 ac (888.3 ha),
which is divided into two
[[Page 60783]]
large areas: the North and South Tracts. The North Tract accounts for
approximately 1,330 ac (538.2 ha), with the majority of land currently
leased to a local cattle farmer. The South Tract comprises
approximately 865 ac (350.1 ha) and is where the coqu[iacute] llanero
is known to occur on 260 ac (105 ha).
The USNSGASS is disposing of the property in accordance with
section 2801 of the National Defense Authorization Act (NDAA) for
Fiscal Year 1996 (FY1996), Public Law 104-106, 110 Stat. 186 (10 U.S.C.
2871-2885), as amended. Section 2801 of NDAA provides the authority to
the Department of Defense (DOD) to work with the private sector
nationwide, in order to build and renovate family housing and ancillary
facilities in key areas of need. The Navy is conveying approximately
2,075 ac (840 ha) of the property to a private entity, Sabana Seca
Partners (SSPL), LLC, which is associated with the Navy's Public
Private Venture partnership for military family housing (Tec Inc. and
AH Environmental 2008, p. ES-1). SSPL will market and sell the closed
Navy base property to non-Federal entities through Forest City
Enterprises, Inc.
The environmental assessment (EA) for the transfer-disposal of
USNSGASS property states that the property disposed of by the Navy
would be redeveloped in a manner similar to surrounding areas (Tec Inc.
and AH Environmental 2008, p. 4-1). According to the EA, the preferred
alternative for the wetland area that contains occupied coqu[iacute]
llanero habitat is residential use (Tec Inc. and AH Environmental 2008,
p. 2-2). Furthermore, coqu[iacute] llanero wetland habitat is not
within the areas that would be zoned for conservation by the Toa Baja
municipality, and, according to their land-use plan, they intend to
zone the area for residential development. Also, coqu[iacute] llanero
wetland habitat is not within the parcels conveyed to the University of
Puerto Rico for the purpose of protection in perpetuity.
The ultimate reuse of the USNSGASS property would be determined by
the non-Federal entities receiving the property from SSLM and Forest
City Enterprise, Inc. The EA explains that the development within
wetlands and the magnitude of the impacts that could occur, if such
development was permitted, would be dependent upon the actual placement
of new residential areas and the amount of wetland removal or
alteration allowed for site development (Tec Inc. and AH Environmental
2008, p. 4-15). Possible impacts (approximately 221 ac (89 ha) of the
palustrine emergent wetland (Tec Inc. and AH Environmental 2008, p. 4-
16)) could occur by draining and filling these wetlands, which are
occupied by the coqu[iacute] llanero, leaving little to no suitable
habitat for the coqu[iacute] llanero to carry out its life-history
processes. In addition, filling the wetland for future development
could require Clean Water Act (CWA; 33 U.S.C. 1251 et seq.) section 404
permits from the U.S. Army Corp of Engineers (Corps). If the
development would likely adversely affect the species once it is
federally listed, consultation under section 7 of the Act should be
conducted between the Corps and the Service.
Nevertheless, prior to the discovery of the coqu[iacute] llanero,
land-use history for this area has shown that urban and commercial
development has adversely impacted wetland resources, and, although not
documented, presumably affected coqu[iacute] llanero individuals and
habitat. An example of those impacts is the fill of a freshwater
emergent wetland for residential housing at the western end of
coqu[iacute] llanero habitat (Zegarra and Pacheco 2010, pers. obs.).
The wetland where coqu[iacute] llanero is currently present was
previously impacted by the construction and maintenance of Redman Road.
This road was constructed in an area identified in the NWI maps as
freshwater emergent and forested shrub wetlands habitat, and the road's
construction interrupted the natural flow of water and affected the
hydrology of the wetland. Further adverse effects to the same wetland
habitat can be observed in the residential community that exists on the
boundary of the closed USNSGASS property near the intersection of PR
Road 867 and Redman Road. This community has expanded over the past 40
years and presently consists of approximately 50 houses, 20 of which
are on Navy property (U.S. Navy 2000 in Tec Inc. and AH Environmental
2008, p. 3-4). Prior to the closure of the USNSGASS, the Navy was
planning to construct a new fence on the property to eliminate further
encroachment on its land holdings (Tec Inc. and AH Environmental 2008,
p. 3-6).
Implementing the preferred alternative of the EA for the disposal
of the USNSGASS may result in the destruction of approximately 416 ac
(168 ha) of wetlands, including coqu[iacute] llanero habitat (Tec Inc.
and AH Environmental 2008, p. 4-5). Additionally, implementing the
preferred alternative would most likely result in new residential
development (Tec Inc. and AH Environmental 2008, p. 4-6). According to
the Puerto Rican Planning Board (PRPB) Web site, 11 development
projects are under evaluation around the southern section of the
wetland type locality, possibly impacting 1,087 ac (440 ha) (http://www.jp.gobierno.pr, accessed February 2010). Urban development adjacent
to the wetland type locality would fragment and directly impact
suitable habitat for the coqu[iacute] llanero and would limit the
species' population expansion in the area. In addition, with the
creation of new residential projects, traffic would be expected to
increase, and, thus, the three primary roadways surrounding the
USNSGASS would likely require some improvements (Tec Inc. and AH
Environmental 2008, p. 4-6). Vehicle traffic on roads within the
essential habitat of amphibian species can be a direct source of
mortality and, in some instances, can be catastrophic and should not be
underestimated (Glista et al. 2007, p. 85). According to Janice
Gonz[aacute]lez, Director of the Caribbean Primate Research Center
(CPRC), approximately 30 CPRC employees drive vehicles on Redman Road
daily, as it is currently the main access road to the CPRC
(Gonz[aacute]lez 2010, pers. comm.). Any improvement of the road or
increase in traffic may affect the suitability of the wetland. The
biological effects to the coqu[iacute] llanero from the existing road
network around the southern section of the wetlands are not well
understood. The combination of habitat fragmentation and high vehicle
use of the roads may negatively impact the coqu[iacute] llanero and its
habitat through loss of habitat connectivity, degradation of water
quality, direct mortality, edge effects of the road and wetland, and
changes in hydrology.
For the above reasons, we conclude that urban development and
associated infrastructure and human use are a threat to the
coqu[iacute] llanero by direct mortality and due to permanent loss,
fragmentation, or alteration of its habitat.
Go-Kart and Motorbike Racetrack
Although the Service does not have information regarding the
specific date of the construction of the existing racetrack, we
estimate that approximately 29 ac (11.6 ha) of freshwater emergent and
forested shrub wetlands were impacted. These data were quantified using
Geographic Information Systems analysis with aerial photography and the
NWI layers. The Puerto Rico Department of Natural and Environmental
Resources (PRDNER) provided a photograph of the coqu[iacute] llanero's
habitat that was filled by the construction of the racetrack (PRDNER
2007b, p. 25). It is also evident that the racetrack floods during
heavy rain events and serves as a
[[Page 60784]]
potential source of contamination with oil, gasoline, and other
pollutants, affecting the suitability of the coqu[iacute] llanero's
habitat (PRDNER 2007b, p. 25). The possible effects of waterborne
contaminants on the coqu[iacute] llanero are discussed under Factor E.
Comments submitted by SSLM (2009, p. 4) expressed concern regarding
the operators of the racetrack removing soil to expand the parking lot.
The soil was deposited on the USNSGASS grounds, affecting coqu[iacute]
llanero habitat by filling part of the wetland. Joglar (2007, p. 2)
identified the wetland area contiguous to the racetrack as occupied by
the coqu[iacute] llanero.
Based on the above information, we conclude that any further
expansion of the racetrack or its operation may potentially impact the
coqu[iacute] llanero through permanent loss, alteration, or
contamination of its habitat.
Toa Baja Municipal Landfill (TBML)
The current operation of the TBML constitutes a threat to the
coqu[iacute] llanero. The landfill is located inland on top of a
limestone hill 0.5 mi (0.8 km) south of the known coqu[iacute] llanero
habitat. The polluted discharge or runoff waters from the continued
operation of the landfill may pose a threat to the species because
underground contaminated waters and leachates reaching the wetlands may
change water quality, soils, and consequently plant composition (CPRC
2009, pp. 6-9). See discussion below under Factor E.
The legal representative for the Toa Baja Municipal Administration
sent a letter to the Service dated September 8, 2009, supporting the
listing of the coqu[iacute] llanero as an endangered species and
supporting the PRDNER Essential Critical Natural Habitat delineation,
except for one 83-ac (33.6-ha) parcel necessary for the implementation
of TBML closure activities ordered by the U.S. Environmental Protection
Agency (EPA). According to a PRDNER technical assistance letter dated
February 26, 2010 (PRDNER 2010, pp. 1-6), another area on the north
side of the TBML is also being considered for use in closure
activities. The area identified as Area B by the Puerto Rico
Environmental Quality Board (EQB) is located within the area formerly
designated by PRDNER as Essential Critical Natural Habitat for the
coqu[iacute] llanero. Activities identified in the closure procedures
will direct the TBML storm water drainages towards the wetland. Storm
water that drains from the TBML currently flows into coqu[iacute]
llanero habitat and is contaminated with leachate (see Factor E
discussion). In addition, the TBML closure measures would modify the
hydrology of the area and could adversely affect the hydrology of the
wetland by affecting part of the limestone hills, which supply water to
the wetland and affect the suitability of habitat for the species.
Based on the above information, we conclude that the current
operation and possible closure measures of the TBML are a threat to the
coqu[iacute] llanero by potentially altering the hydrology of its
wetland habitat and by contaminating the wetland with landfill runoff.
Channel-Clearing Activities for Flood Control
The municipality of Toa Baja periodically removes riparian
vegetation along the main drainage channel within the wetland where the
species is known to occur. These flood control measures are implemented
during the rainy season to facilitate water flow and prevent flooding
of nearby communities such as Ingenio, Villas del Sol, and Brisas de
Campanero. However, channel-clearing activities may facilitate drainage
and drying of the wetland, and accelerate colonization of invasive,
herbaceous vegetation along the edges of the channel towards the
wetland (R[iacute]os-L[oacute]pez 2009, p. 3). Preliminary studies on
the reproductive biology of the coqu[iacute] llanero suggest that
wetland areas subjected to prolonged dry periods (e.g., towards the
edges of wetland) are characterized by greater vegetation cover of
grasses instead of the native ferns and arrowheads that the
coqu[iacute] llanero depends on for reproduction and survival. These
areas also have a disproportionate abundance of coqu[iacute] llanero
egg clutch predators, both native and exotic mollusks and insects
(R[iacute]os-L[oacute]pez 2009, pp. 3, 11).
Based on the above information, we conclude that channel-clearing
activities may be an indirect threat to the coqu[iacute] llanero
because they prolong dryer conditions along the edges of the wetland,
allowing invasive plants and predators to colonize the wetland.
Invasive Wetland Plant Species
Invasive native wetland plants such as Typha domingensis (Southern
cattail) may invade and alter diverse native wetland communities, often
resulting in plant monocultures that support few wildlife species
(Houlahan and Findlay 2004, p. 1132). Southern cattail may alter the
wetland attributes, including geomorphology, fire regime, hydrology,
microclimate, nutrient cycling, and productivity (Woo and Zedler 2002,
p. 509). Based on our previous experience in the Laguna Cartagena
National Wildlife Refuge, the southern cattail colonized disturbed
areas faster than other native wetland plants, thereby excluding the
native plants. The southern cattail is currently found in patches
within coqu[iacute] llanero wetland habitat (Service 2011, pers. obs.).
If the southern cattail continues to spread and colonizes coqu[iacute]
llanero wetland habitat, it could replace all Sagittaria lancifolia and
the ferns that the coqu[iacute] llanero depends on for reproduction and
normal behavior.
Therefore, we conclude that invasive wetland species are a threat
to the coqu[iacute] llanero due to changes in the wetland hydrology and
plant species composition the coqu[iacute] llanero needs for survival.
Summary of Factor A
Based on the best scientific and commercial information available,
we find that urban development, the operation of the existing race
track, activities associated with the operation and future closure of
the TBML, channel-clearing activities for flood control, and invasive
plant species pose a threat to the species. The scope of this factor is
exacerbated because the only known population of coqu[iacute] llanero
occurs on land that is slated for development and surrounded by lands
subject to urban development. Because these threats are already
occurring, and are expected to continue into the future, on the
extremely localized known range of the coqu[iacute] llanero, they are
having or are likely to have a significant impact on the species.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The coqu[iacute] llanero is not a commercially valuable species or
a species sought after for recreational or educational purposes.
However, this recently discovered species could be actively sought for
scientific purposes. Forty-five coqu[iacute] llanero specimens were
collected for scientific purposes in 2005 to describe the species, and
some specimens have been deposited in universities and private
collections (R[iacute]os-L[oacute]pez and Thomas 2007, p. 54). In
addition, an undisclosed number of eggs and individuals were collected
for scientific research of the species' reproductive biology, potential
captive breeding capability, and pathogen sampling. Despite scientific
collection having been identified as a possible contribution to the
decline of other coqu[iacute] species in Puerto Rico, scientific
collection had not previously been identified as a threat to this
species because the coqu[iacute] llanero had legal protection under
Commonwealth Law 241 and PRDNER Regulation 6766,
[[Page 60785]]
promulgated in 2007. Commonwealth Law 241 and PRDNER Regulation 6766
prohibited collection of the coqu[iacute] llanero without authorization
of the Secretary of the PRDNER (PRDNER 2007a, p. 9). However, on May
30, 2012, the Supreme Court of Puerto Rico overturned the protection
and critical habitat designation established by the PRDNER for the
coqu[iacute] llanero (Municipio de Toa Alta, et al. v. PRDNER, 2012
TSPR 94), leaving the species without legal protection. This issue is
discussed under Factor D.
As a recently discovered species, the coqu[iacute] llanero is
recognized for its rarity and restricted range. However, there is no
regulation limiting its collection, making the species more attractive
to collectors and scientists. Currently, only a few researchers are
conducting studies on the species. Although collection could be a
significant threat to the species due to its restricted range and
because collection could potentially occur at any time, we do not have
information indicating that the coqu[iacute] llanero is being
collected. Therefore, we conclude that overutilization for commercial,
recreational, scientific, or educational purposes is not a threat to
the coqu[iacute] llanero.
C. Disease or Predation
The effects of diseases or predation on the coqu[iacute] llanero
are not well known. Because the species is known from only one
location, and population size is not well estimated, disease and
predation could pose a threat to its survival.
Disease
The pathogenic chytrid fungus, Batrachochytrium dendrobatidis (Bd),
is a widespread pathogen that is hypothesized to be the cause of mass
mortality in some amphibian populations (Pilliod et al., 2009, p.
1260). Chytridiomycosis (disease caused by the fungus) results when Bd
invades keratinized tissue (tissue that makes the outside of the skin
tough and resistant to injury) of an amphibian, disrupting cutaneous
functions, compromising the host's immune system, and affecting the
amphibian's behavior (Pilliod et al., 2009, p. 1260). In Puerto Rico,
the fungus appears to be endemic above 1968.5 ft (600 m), occurring
from east of Luquillo Mountain (El Yunque National Forest) throughout
the Central Cordillera up to Maricao (Burrowes et al. 2008, p. 322).
This occurrence is outside of the coqu[iacute] llanero's known range
(see Species Information). Additionally, five coqu[iacute] llanero
individuals have been sampled for Bd, with negative results (Burrowes
et al. 2008, p. 323). Although Bd has been detected at lower elevations
in other tropical environments, the best scientific and commercial
information available for coqu[iacute] llanero indicates that this
fungus is not a current threat to this species, nor is it likely to
become so in the near future, even taking into consideration changing
environmental conditions due to climate change (see discussion under
Factor E). Based on the above information, we conclude that disease is
not currently a threat to the coqu[iacute] llanero.
Predation is a threat to the coqu[iacute] llanero, particularly at
the dryer edges of the wetland. The eggs are preyed on by ants and by a
terrestrial invertebrate. Information provided by R[iacute]os-
L[oacute]pez (2009, p. 11) indicates that natural predation pressure
may be strong and that interspecific competition for breeding sites may
be significant. Preliminary data indicated that the coqu[iacute]
llanero has the lowest reproductive output of any coqu[iacute] species
in Puerto Rico, averaging three eggs per clutch (PRDNER 2007a, p. 3;
R[iacute]os-L[oacute]pez and Thomas 2007, p. 60; R[iacute]os-
L[oacute]pez 2009, p. 5). Egg predation by native and exotic
invertebrates was observed, with some predators consuming entire egg
masses in 3 days. However, the information available suggests that
flooded conditions may limit predation pressure against the
coqu[iacute] llanero. Predators of the coqu[iacute] llanero rarely
invade more permanent flooded areas of the wetland, suggesting that
predation could be exacerbated by the destruction, modification, or
curtailment of the species' habitat (see discussion under Factor A).
Based on the best scientific and commercial information available,
we have determined that disease is not a threat to the coqu[iacute]
llanero. However, predation is a threat to the continued existence of
the species.
D. The Inadequacy of Existing Regulatory Mechanisms
PRDNER designated the coqu[iacute] llanero as Critically Endangered
and designated its habitat as Essential Critical Natural Habitat under
Commonwealth Law 241 and Regulation 6766 in July 2007 (PRDNER 2007a and
2007b). Article 2 of Regulation 6766 included all prohibitions and
stated the designation as ``critically endangered,'' which prohibited
any person from taking the species; it prohibited harm, possession,
transportation, destruction, or import or export of individuals, nests,
eggs, or juveniles without previous authorization from the Secretary of
PRDNER (PRDNER 2007a, p. 9). Article 2.06 also prohibited collecting,
harassing, hunting, and removing, among other activities, of listed
animals within the jurisdiction of Puerto Rico (PRDNER 2007a, p. 9).
The PRDNER designated approximately 1,602 ac (648 ha) as
``Essential Critical Natural Habitat'' under Regulation 6766 (PRDNER
2007b, p. 28). The coqu[iacute] llanero's habitat was the first
designated essential critical natural habitat under Commonwealth Law
241 and Regulation 6766. Article 4.05 of this regulation specifies that
an area designated as Essential Critical Natural Habitat cannot be
modified unless scientific studies determine that such designation
should be changed.
SSLM brought a lawsuit against the PRDNER, alleging that the agency
designated as critical habitat of the coqu[iacute] llanero areas in
excess of what is required for the conservation of the species. SSLM
challenged the PRDNER designation, arguing the area does not reflect
the presence of the coqu[iacute] llanero or physical and biological
characteristics that sustain the species.
On May 30, 2012, the Supreme Court of Puerto Rico held that PRDNER
did not follow the designation process required by Commonwealth Law 170
(Ley de Procedimientos Administrativos Uniformes del Estado Libre
Asociado de Puerto Rico, del 12 de Agosto de 1988, 3 L.P.R.A. sec.
2101, et seq.), and overturned the PRDNER designation of the
coqu[iacute] llanero as ``critically endangered'' and the designated
``essential critical natural habitat'' (Municipio de Toa Alta, et al.
v. PRDNER, 2012 TSPR 94). Therefore, presently, PRDNER's designations
for the coqu[iacute] llanero as critically endangered and its essential
critical natural habitat, are invalid, and Commonwealth Law 241 and
Regulation 6766 provide no protection for the species and its habitat.
Additionally, the coqu[iacute] llanero is not currently on the
Commonwealth list of endangered and threatened species.
The Clean Water Act (CWA), 33 U.S.C. 1251 et seq., administered by
the Corps, establishes the basic structure for regulating discharges of
pollutants into the waters of the United States and regulating quality
standards for surface waters. The objective of the CWA is to restore
and maintain the chemical, physical, and biological integrity of the
nation's waters by preventing point and nonpoint pollution sources. The
CWA has a stated goal that ``* * * wherever attainable, an interim goal
of water quality which provides for the protection and propagation of
fish, shellfish, and wildlife and provides for recreation in and on the
water be achieved by July 1, 1983.'' States are responsible for setting
and
[[Page 60786]]
implementing water quality standards that align with the requirements
of the CWA. Overall, implementation of the CWA could benefit the
coqu[iacute] llanero through the point and nonpoint source programs.
Nonpoint source (NPS) pollution comes from many diffuse sources,
unlike pollution from industrial and sewage treatment plants. NPS
pollution is caused by rainfall (water) moving over and through the
ground. As the runoff moves, it transports natural and human-made
pollutants to lakes, rivers, wetlands, coastal waters and ground
waters. States report that nonpoint source pollution is the leading
remaining cause of water quality problems. The effects of nonpoint
source pollutants on specific waters vary and may not always be fully
assessed. However, these pollutants have harmful effects on fisheries
and wildlife (http://www.epa.gov/owow_keep/NPS/whatis.html).
Sources of NPS pollution within the watershed that feed the wetland
occupied by the coqu[iacute] llanero include clearing of riparian
vegetation, urbanization, road construction, and other practices that
allow bare earth to enter streams. The Service does not have any
specific information about the sensitivity of the coqu[iacute] llanero
to common NPS pollutants likely released from the activities discussed
under Factor A, above. Because there is very little information known
about water quality parameters necessary to fully protect the
coqu[iacute] llanero, it is difficult to determine whether the CWA is
adequately addressing the habitat and water quality threats to the
species. However, based on the information currently available, the
Service does not believe that the current water quality conditions are
a threat to the species.
Similarly, the CWA has mechanisms in place to protect the integrity
of wetlands such that water quality is maintained. The Service
currently consults with the Corps on wetland fill permits, and we
anticipate that this process will adequately protect the integrity of
the emergent wetland occupied by the coqu[iacute] llanero. Therefore,
we do not find that inadequate implementation of the CWA is a threat to
the species at this time.
Summary of Factor D
The sole regulatory mechanisms that protected the coqu[iacute]
llanero, Commonwealth Law 241 and Regulation 6766, have been
invalidated by the court and are no longer in effect. Further, after
evaluating the CWA, we determined that it provides adequate protection
to the wetland occupied by the species and, therefore, inadequate
implementation to the CWA is not a threat to the coqu[iacute] llanero
at this time. We are not aware of any other existing regulatory
mechanisms that address the threats to the species and its habitat
identified under the other factors. In summary, we do not find that the
inadequacy of existing regulatory mechanisms is a threat to the
species.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
In the following section, we discuss the highly specialized
ecological requirements of the species, as well as water and soil
pollution, use of herbicides, brush fires, competition, climate change,
and human use of and access to the wetland area.
Highly Specialized Ecological Requirements
Because of its highly specialized ecological requirements for
reproduction, the coqu[iacute] llanero's vulnerability to other threats
discussed in this rule is exacerbated. As mentioned in the Background
section, the coqu[iacute] llanero is known to exist in only one
freshwater wetland in the municipality of Toa Baja, and after several
searches in other similar locations (apparently there are few or no
wetlands with similar plant composition), the species was not detected.
R[iacute]os-L[oacute]pez and Thomas (2007, p. 60) found that the
breeding events of the coqu[iacute] llanero were limited to one plant
species, Sagittaria lancifolia. This plant is an obligate wetland
indicator species. A general description of the major substrate types
of the wetland that the coqu[iacute] llanero currently inhabits
indicates a 7.4 percent vegetation cover of S. lancifolia (R[iacute]os-
L[oacute]pez 2009, p. 9). The coqu[iacute] llanero may also be
selecting an intermediate S. lancifolia size class for egg laying,
which suggests further specialization (R[iacute]os-L[oacute]pez 2010,
unpubl. data, p. 8). Also, current research by R[iacute]os-L[oacute]pez
(2010, unpubl. data, p. 11) suggests that reproduction may not occur
randomly in space, but rather seems to be limited to plants located in
areas of little disturbance, in areas that are permanently flooded, and
in areas that are away from the wetland's edges.
We find that the highly specialized ecological requirements of the
coqu[iacute] llanero exacerbate its vulnerability to other threats,
such that the continued existence of the species is likely to be
impacted.
Water and Soil Pollution
CPRC (2009, p. 6), PRDNER (2007b, p. 24), EGIS, Inc. (2007, p. 4),
and Joglar (2007, p. 6) identify the TBML leachates as a threat to the
coqu[iacute] llanero. This landfill is located on the limestone hills
to the south of the wetland known to be occupied by the coqu[iacute]
llanero. The CPRC submitted to EGIS a photograph of contaminated
leachates draining towards that wetland. The leachate study submitted
by EGIS described the hydrology of the area as typical of karst zones
(area of limestone soil characterized by sinks, ravines, and
underground streams) near the coast in which the runoff generated in
the limestone hills, including at the TBML, flows at or near the
surface through a series of channels and small valleys that ultimately
reach the marshes and wetlands areas (including coqu[iacute] llanero
habitat) to the north of the TBML (EGIS 2007, Appendix B, p. 7). The
study specifies that a dark-colored leachate is currently flowing from
the TBML towards the closed USNSGASS property, and that even during
periods of drought, the leachate flows continuously towards the
USNSGASS property, with flows increasing during rain events (EGIS 2007,
Appendix B, p. 23). The leachate study identified high levels of
arsenic, cyanide, sodium, lead, and chromium, among other elements.
There did not appear to be much indication of petroleum-related
pollutants, although sampling more strategically near the racetrack
could more accurately assess this contamination impact relative to the
coqu[iacute] llanero's habitat (EGIS 2007, p. 5).
Additional analytical laboratory results from other threat zones
associated with the wetland indicated elevated levels of certain heavy
metals, coliform bacteria, chemical oxygen demand, and pesticides (EGIS
2007, p. 18). High coliform bacteria counts could be from several
sources (e.g., septic systems) or the CPRC (EGIS 2007, p. 5). Of
particular concern is the possibility of bioaccumulation of toxins
throughout the wetland food chain (PRDNER 2007b, p. 24). It is highly
probable that the contaminated conditions of the soil and standing
water would not be hospitable to a sensitive amphibian species, such as
the coqu[iacute] llanero, that absorbs chemicals through the skin (EGIS
2007, p. 5). Such chemicals could directly affect the coqu[iacute]
llanero's development, cause abnormalities, or act indirectly by
increasing its susceptibility to other environmental stressors such as
infectious diseases and predation (Taylor et al., 2005, p. 1497). We
have no information indicating any negative response of the species to
soil and water pollution. However, we consider water
[[Page 60787]]
and soil pollution a potential threat to the species at this time.
Herbicides
The CPRC (2009, p. 7) identified the use of herbicides for
maintenance of green areas in the closed USNSGASS as a current threat
to the species. However, SSLM (2009, p. 9) claims they do not use
herbicides on the borders of the wetland as part of maintenance work on
the USNSGASS property, and that the practice of using herbicides is not
in accordance with its institutional environmental policies and the
activities authorized to SSLM at the USNSGASS by the Navy. During a
site visit by the Service, there were no signs of the use of herbicides
along Redman Road within the area where coqu[iacute] llanero occurs at
the USNSGASS. Moreover, a conversation with R[iacute]os-L[oacute]pez
(2011 pers. comm.) confirmed that practice had apparently ceased.
Nevertheless, herbicides may still be able to enter into the
wetland because of possible herbicide use in the urban housing areas
near the coqu[iacute] llanero's habitat. These herbicides could cause
developmental abnormalities (e.g., limb malformations) to the
coqu[iacute] llanero. In fact, pesticides have been known to be
dispersed through precipitation and wind (Sparling et al. 2001, p.
1595; Fellers et al. 2004, p. 2176). Other research suggests that
important changes in an ecological community's food web resulted from
pesticide and herbicide exposure, which influence the susceptibility of
amphibian species to contaminants (Boone and James 2003, p. 829). We
have no information indicating any negative response of the species to
herbicides. However, we consider the use of herbicides in the
surrounding area as a potential threat to the species at this time.
Brush Fires
Brush fires have been identified as a current threat to the species
(CPRC 2009, p. 6). SSLM (2009, p. 9) mentioned that the only fire
incidents reported since 2007 have occurred on the North Tract of the
USNSGASS and were limited to two or three incidents per year during the
drought season. The habitat of the coqu[iacute] llanero is surrounded
by several developments (e.g., race track and urban housing) that
facilitate exposure and invasion of any accidental or deliberate fires
into the wetland footprint and adjacent forest. This could exacerbate
the entrance of invasive plants such as southern cattail and change the
vegetation composition of the wetland (see discussion under Factor A).
Changes to the wetland could create an environment where the cattail
dominates the vegetation make-up and converts the wetland to a
monotypic vegetation environment. This would reduce the plants that
coqu[iacute] llanero depends on. In addition, these brush fires may
encroach on the coqu[iacute] llanero's current limited habitat. A
possibly extinct coqu[iacute] species in Puerto Rico (i.e.,
Eleutherodactylus jasperi) with limited distribution and highly
specialized ecological requirements is known to have been adversely
affected by fires in its type locality (D[iacute]az 1984, p. 4).
Therefore, we believe that brush fires may be a threat to the
coqu[iacute] llanero and its habitat.
Competition
A common, and more widespread, coqu[iacute] species of Puerto Rico
(i.e., Eleutherodactylus cochranae) can utilize the same habitats as
the coqu[iacute] llanero, specifically the S. lancifolia egg-laying
locations, displacing and damaging the coqu[iacute] llanero's eggs.
These competitors rarely invade more permanently flooded areas of the
wetland, suggesting a synergism between hydrology alteration and
competition that may result in magnified, negative biological
interactions against the coqu[iacute] llanero (R[iacute]os-L[oacute]pez
2009, p. 4).
Competition is a threat to the coqu[iacute] llanero, particularly
at the dryer edges of the wetland. This threat could be exacerbated by
the destruction, modification, or curtailment of the species habitat
(see discussion under Factor A). The available information suggests
that flooded conditions may limit competition pressure against the
coqu[iacute] llanero. Therefore, based on the best scientific and
commercial information available to us, we conclude that competition is
a threat to the continued existence of the species.
Climate Change
``Climate'' refers to an area's long-term average weather
statistics (typically from at least 20 or 30 year periods), including
the mean and variation of surface variables such as temperature,
precipitation, and wind; ``climate change'' refers to a change in the
mean or variability or both of climate properties that persists for an
extended period (typically decades or longer), whether due to natural
processes or human activity (Intergovernmental Panel on Climate Change
(IPCC) 2007a, p. 78). Although changes in climate occur continuously
over geological time, changes are now occurring at an accelerated rate.
For example, at continental, regional, and ocean basin scales, recent
observed changes in long-term trends include: A substantial increase in
precipitation in eastern parts of North America and South America,
northern Europe, and northern and central Asia, and an increase in
intense tropical cyclone activity in the North Atlantic since about
1970 (IPCC 2007a, p. 30); and an increase in annual average temperature
of more than 2 [deg]F (1.1 [deg]Celsius) across the United States since
1960 (Global Climate Change Impacts in the United States (GCCIUS) 2009,
p. 27). Examples of observed changes in the physical environment
include: An increase in global average sea level, and declines in
mountain glaciers and average snow cover in both the northern and
southern hemispheres (IPCC 2007a, p. 30); substantial and accelerating
reductions in Arctic sea-ice (e.g., Comiso et al. 2008, p. 1); and a
variety of changes in ecosystem processes, the distribution of species,
and the timing of seasonal events (e.g., GCCIUS 2009, pp. 79-88).
The IPCC used Atmosphere-Ocean General Circulation Models and
various greenhouse gas emissions scenarios to make projections of
climate change globally and for broad regions through the 21st century
(Meehl et al. 2007, p. 753; Randall et al. 2007, pp. 596-599), and
reported these projections using a framework for characterizing
certainty (Solomon et al. 2007, pp. 22-23). The projections include:
(1) It is virtually certain there will be warmer and more frequent hot
days and nights over most of the earth's land areas; (2) it is very
likely there will be increased frequency of warm spells and heat waves
over most land areas, and the frequency of heavy precipitation events
will increase over most areas; and (3) it is likely that increases will
occur in the incidence of extreme high sea level (excludes tsunamis),
intense tropical cyclone activity, and the area affected by droughts
(IPCC 2007b, p. 8, Table SPM.2). More recent analyses using a different
global model and comparing other emissions scenarios resulted in
similar projections of global temperature change across the different
approaches (Prinn et al. 2011, pp. 527, 529).
All models (not just those involving climate changes) have some
uncertainty associated with projections due to assumptions used, data
available, and features of the models. With regard to climate change,
this includes factors such as assumptions related to emissions
scenarios, internal climate variability, and differences among models.
However, under all global models and emissions scenarios, the overall
projected trajectory of surface air temperature is one of increased
warming compared to current
[[Page 60788]]
conditions (Meehl et al. 2007, p. 762; Prinn et al. 2011, p. 527).
Climate models, emissions scenarios, and associated assumptions, data,
and analytical techniques will continue to be refined, as will
interpretations of projections, as more information becomes available.
For instance, some changes in conditions are occurring more rapidly
than initially projected, such as melting of Arctic sea-ice (Comiso et
al. 2008, p. 1; Polyak et al. 2010, p. 1797), and since 2000, the
observed emissions of greenhouse gases, which are a key influence on
climate change, have been occurring at the mid- to higher levels of the
various emissions scenarios developed in the late 1990s and used by the
IPPC for making projections (e.g., Raupach et al. 2007, Figure 1, p.
10289; Manning et al. 2010, Figure 1, p. 377; Pielke et al. 2008,
entire). Also, the best scientific and commercial data available
indicate that average global surface air temperature is increasing and
several climate-related changes are occurring and will continue for
many decades even if emissions are stabilized soon (e.g., Meehl et al.
2007, pp. 822-829; Church et al. 2010, pp. 411-412; Gillett et al.
2011, entire).
Changes in climate can have a variety of direct and indirect
impacts on species, and can exacerbate the effects of other threats.
Rather than assessing ``climate change'' as a single threat in and of
itself, we examine the potential consequences to species and their
habitats that arise from changes in environmental conditions associated
with various aspects of climate change. For example, climate-related
changes to habitats, predator-prey relationships, disease and disease
vectors, or conditions that exceed the physiological tolerances of a
species, occurring individually or in combination, may affect the
status of a species. Vulnerability to climate change impacts is a
function of sensitivity to those changes, exposure to those changes,
and adaptive capacity (IPCC 2007, p. 89; Glick et al. 2011, pp. 19-22).
As described above, in evaluating the status of a species, the Service
uses the best scientific and commercial data available, and this
includes consideration of direct and indirect effects of climate
change. As is the case with all potential threats, if a species is
currently affected or is expected to be affected by one or more
climate-related impacts, this does not necessarily mean the species is
an endangered or threatened species as defined under the Act. If a
species is listed as endangered or threatened, this knowledge regarding
its vulnerability to, and impacts from, climate-associated changes in
environmental conditions can be used to help devise appropriate
strategies for its recovery.
While projections from global climate model simulations are
informative and in some cases are the only or the best scientific
information available, various downscaling methods are being used to
provide higher-resolution projections that are more relevant to the
spatial scales used to assess impacts to a given species (see Glick et
al. 2011, pp. 58-61). The effects of climate change on coastal wetlands
could be significant if sea level rises. Changes in precipitation
patterns and warmer temperatures can likewise have detrimental effects
on wetland function (Mitsch and Gosselink 2007, p. 313). Climate-linked
amphibian population declines in Puerto Rico have been explained by a
possible synergistic interaction between drought and the pathological
effect of the chytrid fungus (Burrowes et al. 2004, p. 141) (see Factor
C discussion). While we do not have specific information for the
coqu[iacute] llanero and its habitat, information in the literature
suggests that changes in environmental conditions that may result from
climate change can influence the spread of nonnative, invasive species;
fire; and precipitation levels, thereby potentially impacting the
coqu[iacute] llanero.
Human Access or Use
Although we currently do not have any information on the visitor
use of the wetland where the coqu[iacute] llanero is known to occur,
R[iacute]os-L[oacute]pez (2009, p. 3) suggests that visitation for
educational, research, or recreational purposes may have significant
impact on the unique vegetation assemblage of the wetland. These
activities could result in vegetation destruction from the development
of research transects and observation trails. Up to a 4-month delay of
vegetation regeneration was documented after a transect was established
for these activities and up to an 8-month delay of vegetation
regeneration after a helicopter hovered approximately 30 ft (9 m) above
a section of the wetland. Afterwards, short-term results included
reduced calling by male coqu[iacute] llanero and invasion by another
edge-associated coqu[iacute] species, Eleutherodactylus antillensis, on
the bent vegetation that had formed a raft-like area (R[iacute]os-
L[oacute]pez 2009, p. 3). However, because the wetland area is
generally closed to visitors and research limited and only by permit,
human impact from these activities is expected to be minimal.
Therefore, we conclude that human access or use is currently not a
significant threat to the coqu[iacute] llanero and its habitat.
Summary of Factor E
In summary, the coqu[iacute] llanero may be threatened by a variety
of natural and manmade factors that may affect the continued existence
of the species. The primary natural or manmade factors affecting the
species are its highly specialized ecological requirements, which
exacerbate the threats posed by other factors to the coqu[iacute]
llanero, and competition with other coqu[iacute] species for egg-laying
sites. Other potential threats that may affect the species are landfill
leachate pollution, the use of herbicides, the threat of fire to the
species' habitat, and changes in environmental conditions resulting
from climate change. We determined that human access or use is not
currently a significant threat to the coqu[iacute] llanero and its
habitat. Based on the best available information, we conclude that the
coqu[iacute] llanero may be threatened by other natural or manmade
factors affecting its continued existence. Factors including the
coqu[iacute] llanero's highly specialized ecological requirements,
landfill leachate pollution, the use of herbicides, brush fires,
competition, and environmental effects resulting from climate change
are potential threats that may be expected to increase in the future
depending on activities surrounding the species' habitat, placing the
coqu[iacute] llanero at risk.
Cumulative Impacts
Some of the threats discussed in this finding could work in concert
with one another to cumulatively create situations that potentially
impact coqu[iacute] llanero beyond the scope of the combined threats
that we have already analyzed.
Summary of Factors
The main factors from section 4(a)(1) of the Act that threaten
coqu[iacute] llanero are Factors A, C, and E. The primary threat to the
species is from habitat modification (Factor A) in the form of urban
development and ongoing threats of habitat destruction and
modification. Predation may also present a current threat to the
coqu[iacute] llanero, particularly at the dryer edges of the wetland,
and its isolation makes it particularly susceptible to disease and
predation (Factor C). Other natural or manmade factors affecting its
continued existence, particularly its specialized ecological
requirements, also may be threats to the species (Factor E). Further,
there are no existing regulatory mechanisms in place that address the
threats to the species or its habitat (Factor D). These factors pose
[[Page 60789]]
imminent threats to the species because they are currently occurring.
Depending on the intensity and immediacy of such threats, these
factors, either by themselves or combined, are operative threats that
act on the species and its habitat.
Determination
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species ``that is likely to
become endangered throughout all or a significant portion of its range
within the foreseeable future.'' We have carefully assessed the best
scientific and commercial information available regarding the past,
present, and future threats to the coqu[iacute] llanero, and have
determined that the continued existence of the coqu[iacute] llanero is
threatened by urban development and associated activities, changes in
hydrology, surface and ground pollution, use of herbicides, invasion of
nonnative species, predation, climate change, brush fires, and
competition. Significant threats are occurring now and are likely to
continue in the foreseeable future, at a high intensity, and across the
species' limited range and not limited to or concentrated in any
significant portion of its range; therefore, we have determined the
species is currently on the brink of extinction. Because these threats
are placing the species in danger of extinction now and not only at
some point in the foreseeable future, we find this species meets the
definition of an endangered species, not a threatened species. Hence,
on the basis of the best available scientific and commercial
information, we determined the coqu[iacute] llanero as an endangered
species in accordance with sections 3(6) and 4(a)(1) of the Act.
Significant Portion of the Range
We evaluated the current range (one known population occupying
approximately 615 acres (248.8 ha) of wetland) of the coqu[iacute]
llanero to determine if there is any apparent geographic concentration
of potential threats for the species. The coqu[iacute] llanero is
highly restricted in its range and the threats occur throughout its
range. We considered the potential threats due to urban development,
changes in hydrology, surface and ground pollution, invasion of
nonnative species, brush fires, competition, predation, the inadequacy
of existing regulatory mechanisms, chemical contaminants, and climate
change. We found no concentration of threats because of the species'
limited and curtailed range, and the uniformity of the threats
throughout its entire range. Having determined that the coqu[iacute]
llanero is in danger of extinction throughout its entire range, it is
not necessary to evaluate whether there are any significant portions of
its range. Therefore, we find that factors affecting the species are
essentially uniform throughout its range, indicating no portion of the
range of the species warrants further consideration of possible
endangered or threatened species status under the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
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 required by 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 and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five
factors that control whether a species remains endangered or 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 on our Web site (http://www.fws.gov/endangered), or from our Caribbean 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, Tribal, 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, State, and Tribal lands.
Once this species is listed (see DATES), 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, under section 6 of the Act, the Commonwealth of Puerto
Rico will be eligible for Federal funds to implement management actions
that promote the protection or recovery of the coqu[iacute] llanero.
Information on our grant programs that are available to aid species
recovery can be found at: http://www.fws.gov/grants.
Section 7(a) of the Act 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) of the Act 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
[[Page 60790]]
proposed critical habitat. If a species is listed subsequently, 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 destroy or adversely modify its
critical habitat. If a Federal action may affect a listed species or
its critical habitat, the responsible Federal agency must enter into
formal consultation with the Service.
Federal agency actions within the species habitat that may require
conference or consultation or both as described in the preceding
paragraph include: Federal activities that may affect the coqu[iacute]
llanero including, but not limited to, the carrying out or the issuance
of permits for discharging fill material on wetlands for road or
highway construction; installation of pipelines; development of
residential, tourism, or commercial facilities; farming; channeling or
stream alterations; discharge of contaminated waters; wastewater
facility development; and renewable energy projects. Additional detail
is provided below:
(1) Actions that would significantly alter the structure and
function of the wetland. Such actions or activities could include, but
are not limited to, the filling or excavation of the wetland. The
filling or excavation of the wetland would alter the hydrology of the
site and would destroy the vegetation where the coqu[iacute] llanero
spends all of its life stages. The filling or excavation of wetlands
could result in the direct mortality of the species because it will
destroy the only known population and locality where the coqu[iacute]
llanero is found.
(2) Actions that would significantly alter the vegetation structure
in and around the wetland. Such actions or activities could include,
but are not limited to, vegetation cutting for expanding or maintaining
roads, construction of new roads, and development of new residences or
commercial establishments. The alteration of the vegetation structure
may change the wetland characteristics by changing the microhabitat
(e.g., change in temperature and humidity levels) and could result in
direct mortality of individuals and egg clutches through desiccation
from sun exposure.
(3) Actions that may alter the natural flow of water. Such actions
or activities could include, but are not limited to, changes in the
limestone hills located to the south of the wetland. The alteration of
these limestone hills may affect the integrity of the wetland (e.g.,
change in hydrology, replenishment of water, sedimentation deposition
or erosion). These activities could reduce the wetland composition,
including the vegetation, and could result in direct or cumulative
adverse effects to the species.
(4) Actions that would significantly degrade water quality (for
example, contaminants and excess nutrients). Such actions or activities
could include, but are not limited to, landfill discharges, heated
effluents into surface water or connected groundwater, and the spill of
petroleum-based products by the nearby go-kart race track. These
activities could alter water conditions that can consequently alter the
plant composition in the wetland by exposing the species to more
competition and result in direct or cumulative adverse effects to the
species and its life cycle.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
wildlife. The prohibitions of section 9(a)(2) of the Act, 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.
Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), 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 and threatened wildlife species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.22 for endangered species, and at 17.32 for threatened 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.
Critical Habitat Designation for Coqu[iacute] Llanero
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) requires consultation on Federal actions that
may affect 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, Federal action agency's and the
applicant's obligation is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are
[[Page 60791]]
essential to the conservation of the species and (2) which may require
special management considerations or protection. For these areas,
critical habitat designations identify, to the extent known using the
best scientific and commercial data available, those physical or
biological features that are essential to the conservation of the
species (such as space, food, cover, and protected habitat). In
identifying those physical and biological features within an area, we
focus on the principal biological or physical constituent elements
(primary constituent elements such as roost sites, nesting grounds,
seasonal wetlands, water quality, tide, soil type) that are essential
to the conservation of the species. Primary constituent elements are
those specific elements of the physical or biological features that
provide for a species' life-history processes and are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
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. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. 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.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (Section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. 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 needed
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) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. 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.
Physical and Biological Features
In accordance with sections 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 (2012) 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 derive the specific physical or biological features essential
for the coqu[iacute] llanero from studies of this species' habitat,
ecology, and life history as described in the Critical Habitat section
of the proposed rule to designate critical habitat published in the
Federal Register on October 12, 2011 (76 FR 63420), and in the
information presented below.
Unfortunately, little is known of the specific habitat requirements
for coqu[iacute] llanero other than it requires a palustrine herbaceous
wetland and a specific vegetation composition. To identify the physical
and biological needs of the species, we have relied on current
conditions at locations where the species exists and the limited
information available on this species. We have determined that
coqu[iacute] llanero requires the following physical or biological
features.
Space for Individual and Population Growth and for Normal Behavior
Coqu[iacute] llanero is restricted to a palustrine (freshwater)
herbaceous wetland located on both Commonwealth and Federal lands in
the Sabana Seca Ward, Toa Baja, Puerto Rico. The Service has estimated
the palustrine herbaceous wetland area occupied by the species to cover
approximately 615 ac (249 ha).
These wetland areas are within the subtropical moist forest life
zone (Ewel and Whitmore 1973, p. 72). The variables used to delineate
any given life zone are mean annual precipitation and mean annual
temperature. The life zones and associations of which they are composed
only define the potential vegetation or range of vegetation types that
might be found in an area (Ewel and Whitmore 1973, p. 5). The mean
annual precipitation for Puerto Rico is about 55 to 65 in (21.7 to 25.6
cm) a year (NOAA Web site 2009, http://www.srh.noaa.gov/sju/?n=climo_annual01), and the temperature is 79.4[emsp14][deg]F (26.3 [deg]C)
(Geo-Marine 2002, p. 2-1). The palustrine herbaceous wetland is where
the non-tidal water regime may be seasonal to permanently flooded (NWI
[[Page 60792]]
Maps, Cowardin et al.1979, pp. 10-22) and found at low elevations up to
approximately 56 ft (17 m) (R[iacute]os-L[oacute]pez and Thomas 2007,
p. 61). As of today, the coqu[iacute] llanero has not been found in
areas outside the marsh. However, based on current knowledge, it
appears to be an obligate marsh-dwelling species (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 62).
The current herbaceous vegetation in these wetlands consists of
Blechnum serrulatum and Thelypteris interrupta (ferns), Sagittaria
lancifolia (bulltongue arrowhead), Cyperus sp. (flatsedges), Eleocharis
sp. (spike rushes), and vines and grasses. Although several of these
plants have been documented at other sites in Puerto Rico, the
vegetation composition (combination and abundance of each plant) is a
unique ecosystem not found in other places in Puerto Rico (PRDNER
2007b, p. 11). Studies indicate that the coqu[iacute] llanero perch,
sit, or call on or from the herbaceous vegetation and mainly on the
ferns (R[iacute]os-L[oacute]pez and Thomas 2007, p. 60; PRDNER 2007b,
p. 9). Wetlands are maintained by water quantity, channel slope, and
sediment input to the system through periodic flooding. Changes in one
or more of these parameters can result in changes in the wetland
function and vegetation composition, with serious effects to
coqu[iacute] llanero. In addition, hydrology (the occurrence,
circulation, and distribution of waters) is also an important factor to
the wetland because it will connect areas that are separated by roads
and other structures, hence making available nearby habitats for
coqu[iacute] llanero.
Hydrology connects the areas of currently known habitat of the
species. Although the areas have several manmade drainage ditches used
for agricultural purposes in the past, these have not modified the
watershed boundaries (G.L. Morris Eng. 2007, p. 3; PRDNER 2007b, p.
19). The topography of the Sabana Seca-Ingenio area, in general, has an
east to west inclination where the surface and ground water from the
limestone hills to the south of PR Road-867 discharges into the
wetland, and eventually goes north and northwest connecting to
Ca[ntilde]o Campanero, and then to Cocal River, ending in the Atlantic
Ocean (PRDNER 2007b, p. 15). Factors that might threaten the water
quality or the water flow of these drainages may affect the currently
known population of coqu[iacute] llanero.
Hydrologic conditions are important for the maintenance of a
wetland structure and function. Hydrology includes the transport of
energy (water) and nutrients to and from wetlands through pathways such
as precipitation, surface run-off, groundwater, tides, and flooding
rivers. This could affect species composition and richness, primary
conductivity (salinity), organic accumulation, and nutrient cycling
within the wetlands (Mitsch and Gosselink 2007, p. 107). Wetlands are
sometimes referred to as ``the kidneys of the landscape'' because they
filter the downstream waters and waste received from natural and human
sources (Mitsch and Gosselink 2007, p. 4). Polluted waters that enter
the wetland through its hydrology may affect the habitat of
coqu[iacute] llanero. For example, an increase in the current polluted
waters from the continued operation of the landfill pose a threat to
the species and its habitat because underground contaminated waters and
leachates may change water quality, soils, and consequently plant
composition in the wetland. In addition, nonpoint source run-off from
adjacent land surfaces (e.g., pesticides, herbicides, fertilizers, and
sediments), and random spills or unregulated discharge events (e.g.,
petroleum-based substances from the nearby go-kart race track) may
threaten the species and its habitat (see discussion under Factor A
above). This could be particularly harmful during drought conditions
when water flows are low and pollutants are more concentrated.
On the basis of the information above, the palustrine herbaceous
wetland located in the Sabana Seca-Ingenio area provides space for
normal behaviors of the coqu[iacute] llanero. In addition, hydrology is
essential to the maintenance, structure, and function of the wetland.
The water quality and water flow that discharges onto the wetland
allows the growth of the required vegetation composition on which the
coqu[iacute] llanero depends for normal behavior, growth, and viability
during most of its life stages. Therefore, we have identified the
palustrine herbaceous wetland, and particularly the hydrology and
vegetation of this area, to be physical or biological features for this
species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Although the life history of the coqu[iacute] llanero has not been
studied, the life histories of other amphibians in the
Eleutherodactylus genus indicate that amphibians are opportunistic
feeders where diets reflect the availability of food of appropriate
size (Duellman and Trueb 1994, p. 229; Joglar, 2005, p. 73). The
wetland provides a variety of food sources (insects) for the
coqu[iacute] llanero. Food availability might be affected by water
quality and contamination of the wetland. Contaminated waters may
change water quality, soils, and consequently plant composition in the
wetland. These changes can open an opportunity to other species (plants
or animals) to overshadow the current species present in the wetland,
forcing the coqu[iacute] llanero to compete for available food sources
or to move to other less competitive sites.
Therefore, based on the information above, we identify food
availability provided by the palustrine herbaceous wetland to be a
physical or biological feature for this species.
Cover or Shelter
The coqu[iacute] llanero appears to be an obligate marsh-dwelling
species because it has not been found in areas outside of the marsh
(R[iacute]os-L[oacute]pez and Thomas 2007, p. 62). The palustrine
herbaceous wetland provides cover and shelter for coqu[iacute] llanero.
The vegetation found in the palustrine wetland consists of herbaceous
emergent vegetation characterized by erect, rooted herbaceous
hydrophytes usually dominated by perennial plants (Cowardin et al.
1979, p. 19), like ferns, Sagittaria lancifolia, flatsedges, spike
rushes, vines, and grasses (R[iacute]os-L[oacute]pez and Thomas 2007,
p. 60; PRDNER 2007b, p. 9). Studies on the species show normal behavior
(e.g., perching, sitting, or calling) occurs on the herbaceous
vegetation (R[iacute]os-L[oacute]pez and Thomas 2007, p. 60; PRDNER
2007b, p. 9) (see ``Space for Individual and Population Growth and for
Normal Behavior'').
Therefore, based on the information above, we identify the
vegetation (i.e., plant species, structure, and composition) of the
palustrine herbaceous wetland located in the Sabana Seca-Ingenio area
to be a physical or biological feature for this species.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Callings or sound production by animals is a method of advertising
the presence of one individual to others of the same species. It is
common in animals that have low density dispersal and in animals that
jump or fly. Anurans (any amphibian of the Order Anura, comprising the
frogs and toads) have well-developed vocal structures capable of
producing sounds that serve to attract mates, advertise territories, or
express distress (Duellman and Trueb 1994, p. 87). It has been
documented that the coqu[iacute] llanero uses the herbaceous vegetation
in the wetland, especially the ferns, as calling areas.
[[Page 60793]]
In addition, it has been determined that the species deposits their
egg clutches only in the leaf axis of Sagittaria lancifolia, and it
appears that the species does not provide parental care (R[iacute]os-
L[oacute]pez and Thomas 2007, p. 60; PRDNER 2007b, pp. 5, 9). Also, the
coqu[iacute] llanero has direct development (embryos do not have an
intermediate phase like tadpoles or aquatic larvae) where they develop
directly to terrestrial amphibians (miniatures of the adults); hence
the vegetation provides the only protection that egg clutches and the
offspring might receive.
Therefore, based on the information above, we identify the
herbaceous vegetation, especially Sagittaria lancifolia and the ferns,
of the palustrine wetland to be an important physical or biological
feature for this species.
Habitats Protected From Disturbance or Representative of the
Historical, Geographical, and Ecological Distributions of the Species
The palustrine herbaceous wetland area where the coqu[iacute]
llanero currently exists consists of Federal lands, part of which are
lands previously managed by the U.S. Naval Security Group Activity
(NSGA) and areas owned by the Commonwealth of Puerto Rico (University
of Puerto Rico, PR Land Authority). The area previously managed by the
NSGA had restricted access to people; thus, the coqu[iacute] llanero
had experienced little disturbance from the military operations. The
NSGA was managed as a high-frequency, direction-finding facility and
provided communications and related support, including communications
relay, communications security, and communication manpower assistance,
to components of the U.S. Navy and other Department of Defense (DOD)
elements (Geo-Marine 2002, p. 1-3). All DOD installations have to
complete and implement an integrated natural resources management plan
(INRMP) to ensure that all natural resources on the site are managed.
However, the NSGA ceased operations in 2005, when technological
advances and changes eliminated the need to continue the operations at
the site. The area is no longer managed as a military base, and the
INRMP implementation does not apply anymore. At present, the area is
proposed for transfer or disposal, or a combination of both, and is
currently leased to a private party to sell the area for private
development (see Exemptions below).
In 2007, the PRDNER designated Essential Critical Natural Habitat
for the coqu[iacute] llanero that includes the palustrine herbaceous
wetland and the limestone hills found south of the wetland area. As
part of the designation process, the PRDNER contracted a third party to
conduct a study to determine the surface water drainage pattern of the
area. The study concluded that the limestone hills located south of the
palustrine wetland contribute to the hydrology that maintains the
wetland (PRDNER 2007b, p. 28). However, the limestone hills runoff is
not the only water source feeding the wetland. Furthermore, it is
unknown to what extent the surface water patterns and quantity are
essential to maintain the actual conditions of the wetland (i.e.,
PCEs), or if there are other water sources (e.g., groundwater) with
equal or more significant impact on the wetland than surface water.
Although the hills might be important for contributing to the hydrology
of the wetland, they do not provide habitat for the coqu[iacute]
llanero. In addition, current information indicates the limestone hills
will be protected in perpetuity and managed by the University of Puerto
Rico for conservation because other Federal and Commonwealth listed
species occur in that habitat.
Primary Constituent Elements
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the coqu[iacute] llanero in areas occupied at the time
of listing (2012), focusing on the features' primary constituent
elements. Primary constituent elements are those specific elements of
the physical or biological features that provide for a species' life-
history processes and 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 the coqu[iacute] llanero are:
(1) Primary Constituent Element 1--Palustrine herbaceous wetland.
Palustrine emergent persistent wetlands that are seasonally to
permanently flooded. Ocean-derived salts need to be less than 0.5 parts
per thousand (ppt) salinity.
(2) Primary Constituent Element 2--Vegetation and vegetation
composition of the palustrine herbaceous wetland. Emergent vegetation
characterized by erect, rooted herbaceous hydrophytes usually dominated
by perennial plants like ferns, Sagittaria lancifolia, flatsedges,
spike rushes, vines, and grasses. In addition to the combination of
vegetation, at least 25 percent of the vegetation should be ferns and
S. lancifolia.
(3) Primary Constituent Element 3--Hydrology. A hydrologic flow
regime (i.e., the pathways of precipitation, surface run-off,
groundwater, tides, and flooding of rivers and canals [manmade
ditches]) that maintains the palustrine herbaceous wetland.
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 (2012) contain features that are essential to the
conservation of the species and which may require special management
considerations or protection.
We find that the essential features within the area occupied at the
time of listing (2012) may require special management consideration or
protection due to threats to the coqu[iacute] llanero and or its
habitat. The area is adjacent to roads, homes, or other manmade
structures in which various activities may affect one or more of the
primary constituent elements. The features essential to the
conservation of this species may require special management
considerations or protection to reduce the following threats or
potential threats that may result in changes in the composition and
abundance of vegetation inside the wetland: Fill of wetlands for
development projects, degradation of water quality from underground
contaminated waters and leachates from the nearby landfill, residential
uses (e.g., use of pesticides and fertilizers), and road maintenance
(e.g., use of herbicides).
Management activities that could ameliorate these threats or
potential threats include, but are not limited to: Establishing
permanent conservation easements or land acquisition to protect the
species on private lands; establishing conservation agreements on
private and Federal lands to identify and reduce threats to the species
and its features; minimizing habitat disturbance, fragmentation, and
destruction; preventing the destruction of the limestone hills that
supply water to the wetland; minimizing water quality degradation of
the wetland; and minimizing the effects of fires and droughts.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we used the best
scientific and commercial data available to designate
[[Page 60794]]
critical habitat. We reviewed available information pertaining to the
habitat requirements of this species. In accordance with the Act and
its implementing regulation at 50 CFR 424.12(e), we considered whether
designating additional areas--outside those currently occupied as well
as those occupied at the time of listing--is necessary to ensure the
conservation of the species. Although additional (not occupied) habitat
has been recommended to be added to the actual proposed designation, we
are not including additional acreage outside the geographical area
occupied by the species. At this time, no scientific information is
available as to whether or not adjacent upland areas are considered
essential for the continued existence of primary constituent elements
of the species.
We have defined occupied critical habitat as palustrine emergent
persistent wetland with an herbaceous vegetation composition dominated
by perennial plants like ferns, Sagittaria lancifolia, flatsedges,
spike rushes, vines and grasses occupied by the coqu[iacute] llanero at
the time of listing. We used information from site visits to the area,
researchers, reports from the PRDNER, and consultants to identify the
specific locations occupied by the coqu[iacute] llanero. All occurrence
records of the coqu[iacute] llanero were plotted on maps in a
geographic information system as points and polygons. Once we
determined which area of the wetland was occupied, we focused on aerial
photographs of the area and the NWI maps to delineate the palustrine
emergent persistent wetlands used by the coqu[iacute] llanero. We
estimated the area using the limits of the boundaries of the palustrine
emergent persistent wetland.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack PBFs for the coqu[iacute] llanero. The scale of the maps we
prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the
physical and biological features in the adjacent critical habitat.
We are designating as critical habitat lands that we have
determined are occupied at the time of listing and contain sufficient
physical or biological features to support life-history processes
essential for the conservation of the species.
The critical habitat designation is defined by the map, as modified
by any accompanying regulatory text, presented at the end of this
document in the rule portion. We include more detailed information on
the boundaries of the critical habitat designation in the preamble of
this document. We will make the coordinates or plot points or both on
which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2009-0022, on our Internet
sites (http://www.fws.gov/caribbean/es/Endangered-Main.html ), and at
the field office responsible for the designation (see FOR FURTHER
INFORMATION CONTACT above).
Final Critical Habitat Designation
We are designating one unit as critical habitat for the
coqu[iacute] llanero. The critical habitat area we describe below
constitutes our best assessment at this time of areas that meet the
definition of critical habitat. The one area we are designating as
critical habitat is Sabana Seca, and it is occupied by the coqu[iacute]
llanero at the time of listing (2012) and contains sufficient physical
and biological features to support life-history processes essential for
the conservation of the species.
We present a brief description of the unit, and reasons why it
meets the definition of critical habitat for the coqu[iacute] llanero,
below.
Sabana Seca Unit
The unit includes approximately 615 ac (249 ha) located south of
State Road PR-867, west of Ram[oacute]n R[iacute]os Rom[aacute]n
Avenue, east of Jos[eacute] Juli[aacute]n Acosta Road, and north of the
limestone hills located north of Highway PR-22 in the municipality of
Toa Baja, Puerto Rico. This unit contains a palustrine herbaceous
wetland with emergent vegetation that includes ferns, Sagittaria
lancifolia, flatsedges, spike rushes, vines, and grasses. This unit is
known to be currently occupied (that is, occupied at the time of
listing) (R[iacute]os-L[oacute]pez and Thomas 2005; PRDNER 2007b;
Service 2011, unpublished data). All the essential physical and
biological features are found within the unit. The presence of the
species and the physical and biological features at the site were
confirmed by the Service during site visits conducted in January and
March of 2011.
The essential features within this unit may require special
management considerations or protection to insure maintenance or
improvement of, and to address any changes that could affect, the
existing palustrine herbaceous wetland, such as filling in of the
wetland to develop the land; water diversion or water withdrawal;
alteration of water hydrology or degradation of water quality; and
changes in vegetation composition that might be caused by changes in
hydrology or development, inappropriate management practices on the
farmlands, or contamination from the underground polluted waters and
leachates from the landfill.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory 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 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 continue to serve its intended conservation role for the
species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under
[[Page 60795]]
section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit
from the Service under section 10 of the Act) or that involve some
other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local, or
private lands that are not federally funded or authorized, do not
require section 7 consultation.
As a result of section 7 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 and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of 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.
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.
Application of the ``Adverse Modification'' Standard
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, or retain those physical and
biological features that relate to the ability of the area to
periodically support 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 the coqui llanero. As
discussed above, the role of critical habitat is to support the 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, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for the coqu[iacute] llanero include, but are not
limited to:
(1) Actions that would significantly alter the structure and
function of the wetland. Such actions or activities could include, but
are not limited to, the filling or excavation of the wetland. The
filling or excavation of the wetland could alter the hydrology of the
site and destroy or remove the vegetation where the only known
population of the coqu[iacute] llanero is found. The filling or
excavation of wetlands could result in elimination or alteration of the
coqu[iacute] llanero's habitat necessary for all life stages of the
species.
(2) Actions that would significantly alter the vegetation structure
in and around the wetland. Such actions or activities could include,
but are not limited to, removing or cutting the vegetation for
expanding or maintaining roads, construction of new roads, development
of new or maintenance of residences, and development of commercial
establishments. The alteration of the vegetation structure may change
the wetland characteristics by changing the microhabitat (e.g., change
in temperature and humidity levels) and thereby negatively affect
whether the coqu[iacute] llanero is able to complete all normal
behaviors and necessary life functions or may allow invasion of
competitors or predators.
(3) Actions that may alter the natural flow of water to the
wetlands occupied by the coqu[iacute] llanero. Such actions or
activities could include, but are not limited to, alteration to the
adjacent lands that may affect the integrity of the wetland (e.g.,
change in hydrology, replenishment of water, sedimentation deposition
or erosion). These activities could reduce the natural cycling and
functioning of the wetland; change its composition, including the
vegetation types the species depends on; or result in direct or
cumulative adverse effects to the species from the alteration of the
wetland's hydrology.
(4) Actions that would significantly degrade water quality (for
example, actions that would add contaminants and excess nutrients).
Such actions or activities could include, but are not limited to,
landfill discharges or leachates from landfill, heated effluents into
surface water or connected groundwater, or the spill of petroleum-based
products at the nearby go-kart race track. These activities could alter
water conditions that can consequently alter the plant composition in
the wetland and result in less suitable habitat for the coqu[iacute]
llanero or the opening of the wetland to the coqu[iacute] llanero
competitors.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
A statement of goals and priorities;
A detailed description of management actions to be
implemented
[[Page 60796]]
to provide for these ecological needs; and
A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
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.''
The majority of the designated critical habitat is located in a
closed military installation formerly managed by the NSGA, and the land
had an INRMP (Geo-Marine 2002, pp. 1-5-4), which provided for the
conservation of the natural resources inside the installation. The
property was declared excess to the Navy in 2001, and the installation
ceased operations in 2005, before the discovery of the species.
Currently, the land is being leased to a private entity by the Military
Housing Privatization Initiative as part of the National Defense
Authorization Act for Fiscal Year 1996, Public Law 104-106, section
2801, 110 Stat. 186 (10 U.S.C. 2871-2885), as amended. Currently there
is no INRMP in place that would provide a benefit to coqu[iacute]
llanero occurring in habitats within or adjacent the closed NSGA of
Sabana Seca.
Therefore, we are not exempting these lands from this final
designation of critical habitat for the coqu[iacute] llanero under
section 4(a)(3)(B)(i) of the Act.
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. The statute on its face, as well as the legislative history,
is clear that the Secretary has broad discretion regarding which
factor(s) to use and how much weight to give to any factor in making
that determination.
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
identify and consider these potential economic impacts, we evaluate
those impacts which are determined to be probable and incremental as a
result of the proposed critical habitat designation. We announced the
availability our evaluation of the probable incremental impacts of the
designation of critical habitat for coqu[iacute] llanero in the Federal
Register on June 16, 2012, (77 FR 36457) and opened a 30-day public
comment period on the proposed rule and our evaluation.
In our evaluation, we used our October 12, 2011, Incremental
Effects Memorandum to identify potential effects associated with the
following activities: (1) Species and habitat management; (2)
residential, commercial, or industrial development; (3) agriculture;
(4) construction of new, or maintenance of, roads and highways; (5)
maintenance (including vegetation removal or alteration) of drainage
ditches; (6) construction or maintenance of recreational facilities;
(7) construction and maintenance of telecommunication towers; (8)
renewable wind power energy; (9) gas pipeline; (10) closure of
landfill; and (11) transfer of Federal lands (Navy).
The intent of the economic evaluation was to consider the potential
economic impacts of all reasonably likely conservation efforts for the
coqu[iacute] llanero. The economic impact of the 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 when evaluating the potential economic
impacts resulting from the final designation of critical habitat.
If a Federal action may affect a listed species or its designated
critical habitat, the action agency is required pursuant to section
7(a)(2) of the Act, and its implementing regulations, to enter into
consultation with the Service. In consultation, the Service must
analyze whether the proposed action is likely to jeopardize the
continued existence of the species or adversely modify or destroy
critical habitat. Many conservation efforts for listed species result
from this consultation process and we, therefore, focus our efforts on
estimating costs on this process. We clarified the difference between
the jeopardy and adverse modification standards for the coqu[iacute]
llanero critical habitat. Because the designation of critical habitat
for coqu[iacute] llanero is being proposed concurrently with the
listing, it is more difficult to discern which conservation efforts are
attributable to the species being listed and those which will result
solely from the designation of critical habitat. However, the following
specific circumstances in this case help to inform our evaluation: (1)
The essential physical and biological features identified for critical
habitat are the same features essential for the life requisites of the
species; (2) the current range of the coqu[iacute] llanero is limited
to the specific area identified as critical habitat; and (3) any
actions that may affect the species or its habitat would also affect
designated critical habitat. The Incremental Effects Memorandum
[[Page 60797]]
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for this species. This evaluation of
the incremental effects has been used as the basis to evaluate the
potential incremental economic impacts of this designation of critical
habitat.
Following the close of the comment period, we re-evaluated the
potential economic impacts of the designation taking into consideration
the public comments and any new information. On the basis of our
further evaluation, public comment and new information we confirmed
that potential incremental impacts resulting from the designation are
anticipated to be limited due to the reasons stated above. We
identified that as a result of the listing and designation of critical
habitat, there may be an increase in the number of technical reviews
and informal and formal consultations with Federal agencies under
section 7 of the Act, specifically an increase of 23 technical reviews
and consultations in Toa Baja. However, based on the consultation
history associated with other listed species, the majority of the
reviews were technical assistance and only a minority resulted in
informal or formal consultations. We anticipate that the situation for
coqu[iacute] llanero will be comparable and that most effects (e.g.,
project modifications) would result from the species listing as an
endangered species. Therefore, we expect that the incremental impacts
due to the designation would be limited to administrative costs to
address an adverse modification analysis in these reviews and
consultations with Federal action agencies.
On the basis of our evaluation of potential economic impacts that
may result from the designation of critical habitat for coqu[iacute]
llanero, we have found that incremental impacts and therefore costs
would be limited to administrative costs to address adverse
modification in technical reviews, informal and formal consultations.
If we assume approximately the cost to address critical habitat in a
technical review or consultation to be $10,000 (an approximate average
for a comparable situation) and an increase of 23 technical reviews and
consultations resulting from the listing and critical habitat, then the
upper bound of potential economic impacts resulting from the
designation would be approximately $230,000. This cost would be borne
primarily by the Federal action agencies involved in the technical
review or consultation and with the Service and would be spread across
the reviews and consultations. As a result, we do not find that there
would be disproportionate economic impacts resulting from this
designation or that effects of this designation approach the $100
million threshold for being an economically significant rule under
Executive Order 12866. Consequently, the Secretary is not exerting his
discretion to exclude any areas from this designation of critical
habitat for the coqu[iacute] llanero based on potential economic
impacts.
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 most of the lands within the designation of critical
habitat for the coqu[iacute] llanero are owned by the Department of
Defense. These lands are no longer used by the Department of Defense
and are for sale through a property management agency. Therefore, we
anticipate no impact on national security. Consequently, 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 consider a number of factors, including whether the
landowners have developed any habitat conservation plans (HCPs) or
other management plans for the area, or whether there are conservation
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at any tribal issues, and
consider the government-to-government relationship of the United States
with tribal entities. We also consider any social impacts that might
occur because of the designation.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans for the coqu[iacute]
llanero, and the final designation does not include any tribal lands or
trust resources. We anticipate no impact on tribal lands, partnerships,
or HCPs from this 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
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended RFA to require
Federal agencies to provide a certification statement of the factual
basis for certifying that the rule will not have a significant economic
impact on a substantial number of small entities. In this final rule,
we are certifying that the critical habitat designation for the
coqu[iacute] llanero will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and
[[Page 60798]]
town governments that serve fewer than 50,000 residents; as well as
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 consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g.,
residential, commercial or industrial development, along with the
accompanying infrastructure associated with such projects, including
construction and maintenance of roads and drainage ditches, development
of renewable wind power energy, gas pipeline, closure of landfill and
transfer of Federal lands). We apply the ``substantial number'' test
individually to each industry to determine if certification is
appropriate. However, the SBREFA does not explicitly define
``substantial number'' or ``significant economic impact.''
Consequently, to assess whether a ``substantial number'' of small
entities is affected by this designation, this analysis considers the
relative number of small entities likely to be impacted in an area. In
some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect the coqu[iacute] llanero. Federal agencies also must
consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification'' Standard section).
In our evaluation of the potential economic impacts that may result
from the proposed designation of critical habitat for the coqu[iacute]
llanero, first we identified, in an Incremental Effects Memorandum
dated October 12, 2011, potential incremental costs associated with the
following categories of activity: (1) Species and habitat management;
(2) residential, commercial, or industrial development; (3)
agriculture; (4) construction of new, or maintenance of, roads and
highways; (5) maintenance (including vegetation removal or alteration)
of drainage ditches; (6) construction or maintenance of recreational
facilities; (7) construction and maintenance of telecommunication
towers; (8) renewable wind power energy; (9) gas pipeline; (10) closure
of landfill; and (11) transfer of Federal lands (Navy).
Because the designation of critical habitat for the coqu[iacute]
llanero is occurring concurrently with the listing, it is more
difficult to discern which conservation efforts are attributable to the
species being listed and those which will result solely from the
designation of critical habitat. However, the following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical and biological features identified for critical
habitat are the same features essential for the life requisites of the
species, (2) the current range of the coqu[iacute] llanero is limited
to the specific area identified as critical habitat, and (3) any
actions that may affect the species or its habitat would also affect
designated critical habitat. The Incremental Effects Memorandum
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for this species. This evaluation of
the incremental effects has been used as the basis to evaluate the
potential incremental economic impacts of the designation of critical
habitat.
On the basis of our evaluation of the potential incremental
effects, we have determined that almost all conservation-related
efforts and activities will result from the protections afforded the
species through State and Federal law once the species is federally
listed. In other words, specific actions or efforts, or project
modifications that may be recommended to conserve the species or its
habitat, will be recommended because the species is protected under
both State and Federal law. While it has been suggested (Vermont Law
School, 2012) that the proposed Via Verde pipeline would adversely
affect the coqu[iacute] llanero and its critical habitat, at this time
the proposed alignment is not anticipated to cross or affect the
habitat of the coqu[iacute] llanero. Only in those cases where an
action may affect the designated critical habitat and there is a
Federal nexus (i.e., a Federal agency that is authorizing, funding, or
permitting the action) will there be the additional requirement that
the Federal action agency evaluate whether the action may adversely
modify the designated critical habitat. This additional analysis by the
Federal action agency is considered to be an incremental effect of the
designation. While this additional analysis will require time and
resources by both the Federal action agency and the Service, it is
believed that, in most circumstances, these costs will predominantly be
administrative in nature and also will not be significant. Because, in
this circumstance, we believe that the incremental impacts of the
designation, and therefore the potential economic impacts, will be
limited to these administrative actions, we have determined that this
rule will not result in a significant economic impact in any given year
or result in a disproportionate economic impact to any particular
sector.
In summary, we considered whether this designation will result in a
significant economic effect on a substantial number of small entities.
Based on the above reasoning and currently available information, we
concluded that this rule will not result in a significant economic
impact on a substantial number of small entities. Therefore, we are
certifying that the designation of critical habitat for the
coqu[iacute] llanero will not have a significant economic impact on a
substantial number of small entities, and a regulatory flexibility
analysis is not required.
Energy Supply, Distribution, or Use
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that
[[Page 60799]]
outlines nine outcomes that may constitute ``a significant adverse
effect'' when compared to not taking the regulatory action under
consideration.
We do not expect the designation of this critical habitat to
significantly affect energy supplies, distribution, or use. The Sabana
Seca unit is located approximately 1.4 mi (2.3 km) away from the
proposed alignment of a natural gas pipeline project. Thus, possible
construction and operation of the proposed energy project will not be
affected by the designation of critical habitat. 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:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act does not apply, nor does
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. In addition, adjacent upland properties are
owned by private entities or State partners. Therefore, a Small
Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for the coqu[iacute] llanero in a takings implications
assessment. As discussed above, the designation of critical habitat
affects only Federal actions. Although private parties that receive
Federal funding, assistance, or 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. According to the economic analysis and the
taking implication assessment, the costs associated with the critical
habitat designation are insignificant because virtually all of the
costs associated are confined to an increase in workload (additional
analysis) by the Federal action agency. The takings implications
assessment concludes that this designation of critical habitat for the
coqu[iacute] llanero does not pose significant takings implications for
lands within or affected by the designation.
Federalism
In accordance with Executive Order 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 Puerto Rico. We received no
comments responsive to the listing and critical habitat designation
from a State agency except for a response from one of the peer
reviewers who is employed by the State agency. The peer reviewer's
comments were incorporated in this final rule (see Summary of Comments
and Recommendations). The designation of critical habitat in areas
currently occupied by the coqu[iacute] llanero may impose nominal
additional regulatory restrictions to those currently in place and,
therefore, may have 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 or
biological features essential to the conservation of the species are
more clearly defined, and the elements of the features of the habitat
necessary to the conservation of the species are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) will be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
[[Page 60800]]
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. This final rule uses standard property descriptions and identifies
the elements of physical or biological features essential to the
conservation of the coqu[iacute] llanero within the designated areas to
assist the public in understanding the habitat needs of the species.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with listing a species as endangered or
threatened under the Act. We published a notice outlining our reasons
for this determination in the Federal Register on October 25, 1983 (48
FR 49244).
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 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)).
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), 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 by the
coqu[iacute] llanero at the time of listing (2012) that contain the
features essential for conservation of the species, and no tribal lands
unoccupied by the coqu[iacute] llanero that are essential for the
conservation of the species. Therefore, we are not designating critical
habitat for the coqu[iacute] llanero 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
Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Author
The primary author of this document is the Caribbean Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
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 ``Coqu[iacute]
llanero,'' in alphabetical order under ``AMPHIBIANS,'' to the List of
Endangered and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
---------------------------------------------------------- Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Amphibians
* * * * * * *
Coqu[iacute] llanero.............. Eleutherodactylus U.S.A. (PR).......... Entire............... E 810 17.95(d) NA
juanariveroi.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (d) by adding an entry for
``Coqu[iacute] Llanero (Eleutherodactylus juanariveroi)'' in the same
alphabetical order that this species appears in the table at Sec.
17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
Coqu[iacute] Llanero (Eleutherodactylus juanariveroi)
[[Page 60801]]
(1) Critical habitat unit is depicted for Toa Baja, Puerto Rico, on
the map below.
(2) Within this area, the primary constituent elements of the
physical or biological features essential to the conservation of
coqu[iacute] llanero consist of three components:
(i) Palustrine herbaceous wetland. Palustrine emergent persistent
wetlands that are seasonally to permanently flooded. Ocean-derived
salts need to be less than 0.5 parts per thousand (ppt) salinity.
(ii) Vegetation and vegetation composition of the palustrine
herbaceous wetland. Emergent vegetation characterized by erect, rooted
herbaceous hydrophytes usually dominated by perennial plants like
ferns, Sagittaria lancifolia, flatsedges, spike rushes, vines, and
grasses. In addition to the combination of vegetation, at least 25
percent of the vegetation should be ferns and S. lancifolia.
(iii) Hydrology. A hydrologic flow regime (i.e., the pathways of
precipitation, surface run-off, groundwater, tides, and flooding of
rivers and canals [manmade ditches]) that maintains the palustrine
herbaceous wetland.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
November 5, 2012.
(4) Critical habitat map units. Data layers defining map units were
created by delineating habitats that contain at least one or more of
the primary constituent elements defined in paragraph (2) of this
entry, over a base of USGS digital topographic map quadrangle
(Bayam[oacute]n) and a USDA 2007 digital ortho-photo mosaic, in
addition to the National Wetland Inventory maps. The resulting critical
habitat unit was then mapped using State Plane North American Datum
(NAD) 83 coordinates. The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's Internet
site, (http://www.fws.gov/caribbean/es/Endangered-Main.html), (http://www.regulations.gov at Docket No. FWS-R4-ES-2009-0022 and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Sabana Seca Unit, Toa Baja, Puerto Rico.
(i) General Description: The Sabana Seca Unit consists of
approximately 615 ac (249 ha) located south of State Road PR-867, west-
southwest of Ram[oacute]n R[iacute]os Rom[aacute]n Avenue, east of
Jos[eacute] Juli[aacute]n Acosta Road, and north of the limestone hills
located north of Highway PR-22 in the municipality of Toa Baja, Puerto
Rico.
(ii) Map of Sabana Seca Unit follows:
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[GRAPHIC] [TIFF OMITTED] TR04OC12.000
* * * * *
Dated: September 19, 2012.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-23999 Filed 10-3-12; 8:45 am]
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