[Federal Register Volume 78, Number 17 (Friday, January 25, 2013)]
[Proposed Rules]
[Pages 5351-5369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01302]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0002; 4500030114]
RIN 1018-AZ23


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Zuni Bluehead Sucker

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate 
critical habitat for the Zuni bluehead sucker. If we finalize this rule 
as proposed, it would extend the Act's protections to this subspecies' 
critical habitat. The effect of these regulations will be to protect 
the Zuni bluehead sucker's habitat under the Act.

DATES: We will accept comments received or postmarked on or before 
March 26, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date. We must receive requests 
for public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by March 11, 2013.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2013-0002, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2013-0002; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).
    The coordinates or plot points or both from which the critical 
habitat maps are generated are included in the administrative record 
for this rulemaking and are available at http://www.fws.gov/southwest/es/NewMexico/, http://www.regulations.gov at Docket No. FWS-R2-ES-2013-
0002, and at the New Mexico Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we may develop for this rulemaking 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 and/or at 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna NE., Albuquerque, NM 87113, by telephone 505-346-
2525 or by facsimile 505-346-2542. Persons who use a telecommunications 
device for the deaf (TDD) may 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, once a species is 
determined to be an endangered or threatened species throughout all or 
a significant portion of its range, we are required to promptly publish 
a proposal in the Federal Register and make a determination on our 
proposal within 1 year. Additionally, critical habitat shall be 
designated, to the maximum extent prudent and determinable, for any 
species determined to be an endangered or threatened species under the 
Act. Designations and revisions of critical habitat can only be 
completed by issuing a rule. Elsewhere in today's Federal Register, we 
propose to list the Zuni bluehead sucker as an endangered species under 
the Act.
    This rule consists of: A proposed rule for designation of critical 
habitat for the Zuni bluehead sucker. The Zuni bluehead sucker has been 
proposed for listing under the Act. This rule proposes designation of 
critical habitat necessary for the conservation of the species.
    The basis for our action. Under the Act, when a species is proposed 
for listing, to the maximum extent prudent and determinable, we must 
designate critical habitat for the species. The species has been 
proposed for listing as endangered, and therefore, we also propose to 
designate approximately 472 km (293 mi) of stream habitat as critical 
habitat in Apache County, Arizona, and

[[Page 5352]]

Cibola, McKinley, and San Juan Counties, New Mexico, and on the Navajo 
Indian Reservation.
    We will seek peer review. We are seeking comments from 
knowledgeable individuals with scientific expertise to review our 
analysis of the best available science and application of that science 
and to provide any additional scientific information to improve this 
proposed rule. Because we will consider all comments and information 
received during the comment period, our final determinations may differ 
from this proposal.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from the public, other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested parties concerning this proposed rule. We 
particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threats outweighs the benefit 
of designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of the Zuni bluehead sucker and its 
habitat;
    (b) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (c) Where these features are currently found;
    (d) Whether any of these features may require special management 
considerations or protection;
    (e) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why; and
    (f) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
areas occupied by the species or proposed to be designated as critical 
habitat, and possible impacts of these activities on this species and 
proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Zuni bluehead sucker and proposed critical 
habitat.
    (5) Any foreseeable economic, national security, or other relevant 
impacts that may result from designating any area that may be included 
in the final designation. We are particularly interested in any impacts 
on small entities, and the benefits of including or excluding areas 
from the proposed designation that are subject to these impacts.
    (6) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat and how the consequences of such reactions, if 
likely to occur, would relate to the conservation and regulatory 
benefits of the proposed critical habitat designation.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, New Mexico Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    All previous Federal actions are described in the proposal to list 
the Zuni bluehead sucker as an endangered species under the Act 
published elsewhere in today's Federal Register.

Critical Habitat Designation for the Zuni Bluehead Sucker

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 pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of

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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 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) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    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) 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 essential to the conservation of the species (such as space, 
food, cover, and protected habitat). In identifying those physical or 
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 geographic 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 geographic 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 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, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. Climate change will be a particular challenge for 
biodiversity because the interaction of additional stressors associated 
with climate change and current stressors may push species beyond their 
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic 
implications of climate change and habitat fragmentation are the most 
threatening facet of climate change for biodiversity (Hannah and 
Lovejoy 2005, p. 4). Current climate change predictions for terrestrial 
areas in the Northern Hemisphere indicate warmer air temperatures, more 
intense precipitation events, and increased summer continental drying 
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 
2005, p. 6; Intergovernmental Panel on Climate Change (IPCC) 2007, p. 
1181). Climate change may lead to increased frequency and duration of 
severe storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et 
al. 2002, p. 6074; Cook et al. 2004, p. 1015).
    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 ensure 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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the 
designation of critical habitat is not prudent when one or both of the 
following situations exist: (1) The species is threatened by taking or 
other human activity, and identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    There is currently no immediate threat of take attributed to 
collection or vandalism under Factor B for this species, and 
identification and mapping

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of critical habitat is not expected to initiate any such threat. In the 
absence of finding that the designation of critical habitat would 
increase threats to a species, if there are any benefits to a critical 
habitat designation, then a prudent finding is warranted. Here, the 
potential benefits of designation include: (1) Triggering consultation 
under section 7 of the Act, in new areas for actions in which there may 
be a Federal nexus where it would not otherwise occur because, for 
example, it is or has become unoccupied or the occupancy is in 
question; (2) focusing conservation activities on the most essential 
features and areas; (3) providing educational benefits to State or 
county governments or private entities; and (4) preventing people from 
causing inadvertent harm to the species. Therefore, because we have 
determined that the designation of critical habitat will not likely 
increase the degree of threat to the species and may provide some 
measure of benefit, we find that designation of critical habitat is 
prudent for the Zuni bluehead sucker.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act, we must find whether critical habitat for the Zuni 
bluehead sucker is determinable. Our regulations at 50 CFR 424.12(a)(2) 
state that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where the species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the Zuni bluehead sucker.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographic area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features that are essential to the conservation of the species and 
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 historical, geographic, and ecological 
distributions of a species.
    We derive the specific physical or biological features required for 
the Zuni bluehead sucker from studies of this species' habitat, 
ecology, and life history as described below. Habitat needs for 
specific life stages for Zuni bluehead sucker have not been described; 
therefore, when necessary we will rely on information available for the 
bluehead sucker, which is closely related to the Zuni bluehead sucker.
Space for Individual and Population Growth and for Normal Behavior
    Zuni bluehead sucker occur in stream habitats with abundant shade 
from overhanging vegetation and boulders, in pools, runs, and riffles 
with water velocities ranging from 0 to 0.35 m/sec (1.15 ft/sec) or 
less and ranging in depth from 0.2-2.0 m (7.9-78.7 in) (Hanson 1980, 
pp. 34, 42; Propst and Hobbes 1996, pp. 13, 16; Gilbert and Carmen 
2011, pp. 8-10). Shade provided by the overhanging vegetation curtails 
water temperature fluctuations in small, headwater streams, such as 
those occupied by Zuni bluehead sucker (Whitledge et al. 2006, p. 
1461). Substrate in Zuni bluehead sucker habitat ranges from silt and 
pebbles to cobbles, boulders, and bedrock (Hanson 1980, pp. 34, 42; 
Propst and Hobbes 1996, pp. 13, 16; Gilbert and Carmen 2011, pp. 8-10; 
NMDGF 2012). Clean substrate, such as gravel and coarse sand, free of 
silt, is necessary for spawning and egg development (Maddux and Kepner 
1988, p. 364). Excessive levels of silt can inhibit egg and juvenile 
fish development through the clogging of the small spaces between 
substrate particles, which prevents the free flow of oxygenated water. 
Additionally, siltation can reduce the suitability of the habitat for 
prey organisms. Juvenile bluehead sucker have been found nearshore in 
slower and shallower habitats, then moving out into deeper water and 
faster flowing habitat as they age (Childs et al. 1998, p. 624).
    Water temperatures in occupied habitats in New Mexico have ranged 
from 9.9 to 25.2 degrees Celsius ([deg]C) (49.8 to 77.3 degrees 
Fahrenheit ([deg]F)) during survey efforts (Propst et al. 2001, p. 163; 
Gilbert and Carmen 2011, pp. 8-10). Year-round data loggers have 
recorded temperatures as low as -3.2[deg]C (24.3 [deg]F) and as high as 
24.1[deg]C (75.3 [deg]F) (Gilbert and Carmen 2011, pp. 8-10).
    Therefore, based on the information above, we identify the 
following habitat parameters as the physical or biological features for 
the Zuni bluehead sucker:
     A variety of stream habitats, including riffles, runs, and 
pools, with appropriate flows and substrates, with low to moderate 
amounts of fine sediment and substrate embeddedness, as maintained by 
natural, unregulated flow that allows for periodic flooding or, if 
flows are modified or regulated, flow patterns that allow the river to 
mimic natural functions, such as flows capable of transporting 
sediment.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Food. The Zuni bluehead sucker is a benthic forager (eats food from 
the stream bottom) that scrapes algae, insects, and other organic and 
inorganic material from the surface of rocks (NMDGF 2004, p. 8). 
Stomach content analysis of Zuni bluehead suckers revealed small 
particulate organic matter, including detritus (nonliving organic 
material), algae, small midge (two-winged fly) larvae, caddisfly 
larvae, mayfly larvae, flatworms, and the occasional small terrestrial 
insects (Smith and Koehn 1979, p. 38). In addition, Smith and Koehn 
(1979, p. 38) also found fish scales, snails, and insect eggs in Zuni 
bluehead sucker stomachs.
    The primary source of food for Zuni bluehead sucker is periphytic 
algae (algae attached to rocks), which occurs mainly on cobble, 
boulder, and bedrock substrates with clean flowing water. Diet 
preferences have been described for adults, but not for the remaining 
life stages of Zuni bluehead sucker. Larval bluehead suckers (<25 mm 
(approx.1 in) total length) feed on diatoms (a type of algae), 
zooplankton (small floating or swimming organisms that drift with water 
currents), and dipteran larvae (true fly larvae) in stream areas with 
low velocity or in backwater habitats (Muth and Snyder 1995, p. 100). 
Juvenile and adult bluehead sucker are reported primarily to eat a 
variety of inorganic material, organic material, and bottom-dwelling 
insects and other small organisms (Childs et al. 1998, p. 625;

[[Page 5355]]

Osmundson 1999, p. 28; Brooks et al. 2000, pp. 66-69).
    Aquatic invertebrates are another important component of the Zuni 
bluehead sucker diet. These aquatic invertebrates have specific habitat 
requirements of their own. Both caddisflies and mayflies occur 
primarily in a wide variety of standing and running-water habitats with 
the greatest diversity being found in rocky-bottom streams with an 
abundance of oxygen (Merritt and Cummins 1996, pp. 126, 309). 
Caddisflies and mayflies feed on a variety of detritus, algae, diatoms, 
and macrophytes (aquatic plants) (Merritt and Cummins 1996, pp. 126, 
309). Habitat that consists of rocky bottoms with periphytic algal 
growth is not only important to sustain aquatic invertebrate 
populations (a Zuni bluehead sucker food source), but also serves as a 
primary food resource of the Zuni bluehead sucker.
    Water. As a purely aquatic species, Zuni bluehead sucker is 
entirely dependent on stream habitat for all stages of their life 
cycle. Therefore, perennial flows are an essential feature with 
appropriate seasonal flows to maintain habitat conditions that remove 
excess sediments. Areas with intermittent flows may serve as connective 
corridors between occupied or seasonally occupied habitat through which 
the species may move when the habitat is wetted.
    There is very little information on water quality requirements for 
Zuni bluehead sucker. However, excessive sedimentation is the primary 
threat to water quality for the Zuni bluehead sucker (as discussed 
above), primarily due to its effects on reproduction and food 
resources. Turbidity (sediment suspended in the water column) can 
inhibit algae production through reducing sunlight penetration into the 
water.
    Therefore, based on the information above, we identify the 
following prey base and water quality characteristics as physical or 
biological features for the Zuni bluehead sucker:
     An abundant source of algae production and an aquatic 
insect food base consisting of caddisflies, mayflies, midges, and 
various terrestrial insects;
     Streams with no harmful levels of pollutants;
     Areas devoid of sediment deposition;
     Perennial flows, or interrupted stream courses that are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted;
     Dynamic flows that allow for periodic changes in channel 
morphology.
Cover or Shelter
    Cover from predation may be in the form of deep water or physical 
structure. Very little is known about habitat parameters specifically 
relating to cover for Zuni bluehead sucker. However, during surveys, 
Zuni bluehead sucker have been found in shaded pools and near boulder 
outcrops, which may be used for cover (Kitcheyan 2012, pers. comm.). 
Additionally, mature bluehead sucker are found in deeper water than 
larvae and in habitats with less woody cover than younger life stages, 
which are more vulnerable to predation (Childs et al. 1998, p. 624).
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Zuni bluehead sucker spawn from early April to early June when 
water temperatures are 6 to 15 [deg]C (43 to 59 [deg]F), peaking around 
10 [deg]C (50 [deg]F) (Propst 1999, p. 50; Propst et al. 2001, p. 164). 
Zuni bluehead sucker may have two spawning periods, with the majority 
of the spawning effort expended early in the season (Propst et al. 
2001, p. 158). Females in spawning condition have been found over 
gravel beds (Sublette et al. 1990, p. 210; Propst et al. 2001, p. 158), 
Clean substrates free of excessive sedimentation are essential for 
successful breeding (see Habitat and Life History section of our 
proposed listing rule published elsewhere in today's Federal Register). 
Periodic flooding removes excess silt and fine sand from the stream 
bottom, breaks up embedded bottom materials, and rearranges sediments 
in ways that promote algae production and create suitable habitats with 
silt-free substrates.
    Therefore, based on the information above, we identify the 
following parameters for breeding, reproduction, or development of 
offspring as physical or biological features for the Zuni bluehead 
sucker:
     Gravel and cobble substrates;
     Pool habitat;
     Slower currents along stream margins with appropriate 
stream velocities for larvae;
     Instream flow velocities that are less than 35 cm/sec (1.1 
ft/sec); and
     Dynamic flows that allow for periodic changes in channel 
morphology.
Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species
    The Zuni bluehead sucker has a restricted geographic distribution. 
Endemic species (species that are exclusively native to a particular 
location) whose populations exhibit a high degree of isolation are 
extremely susceptible to extinction from both random and nonrandom 
catastrophic natural or human-caused events. Therefore, it is essential 
to maintain both springs and stream systems upon which the Zuni 
bluehead sucker depends. This means protection from disturbance caused 
by exposure to land management actions (logging, cattle grazing, and 
road construction), water contamination, water depletion, beaver dams, 
or nonnative species. The Zuni bluehead sucker must, at a minimum, 
sustain its current distribution for the species to continue to 
persist., Introduced species are a serious threat to native aquatic 
species (Miller 1961, pp. 365, 397-398; Lachner et al. 1970, p. 21; Ono 
et al. 1983, pp. 90-91; Carlson and Muth 1989, pp. 222, 234; Fuller et 
al. 1999, p. 1; Propst et al. 2008, pp. 1246-1251; Pilger et al. 2010, 
pp. 300, 311-312; see both Factor C: Disease and Predation, and Factor 
E: Other Natural or Manmade Factors Affecting Its Continued Existence 
sections of our proposed listing rule published elsewhere in today's 
Federal Register). Because the distribution of the Zuni bluehead sucker 
is so isolated and its habitat so restricted, introduction of certain 
nonnative species into its habitat could be devastating. Potentially 
harmful nonnative species include green sunfish, northern crayfish, 
fathead minnow, and other nonnative fish-eating fishes.
    Zuni bluehead sucker typically inhabit small desert stream systems 
including isolated headwater springs, small headwater springs, and 
mainstem river habitats (Gilbert and Carman 2011, p. 2) with clean, 
hard substrate, flowing water, and abundant riparian vegetation. 
Degraded habitat consists of silt-laden substrates, high turbidity, and 
deep, stagnant water (Gilbert and Carman 2011, p. 6). Ponds formed by 
beaver dams and impoundments as well as pools formed during river 
intermittency create such degraded habitats. Therefore, based on the 
information above, we identify the necessary physical or biological 
features for the Zuni bluehead sucker:
     Nondegraded habitat devoid of nonnative aquatic species, 
or habitat in

[[Page 5356]]

which nonnative aquatic species are at levels that allow persistence of 
Zuni bluehead sucker.
Primary Constituent Elements for the Zuni Bluehead Sucker
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Zuni bluehead sucker in areas occupied at the time 
of listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be the elements of physical 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 Zuni bluehead sucker are:
    (1) A riverine system with habitat to support all life stages of 
Zuni bluehead sucker (egg, larval, juvenile, and adult), which 
includes:
    a. Dynamic flows that allow for periodic changes in channel 
morphology and adequate river functions, such as channel reshaping and 
delivery of coarse sediments.
    b. Stream courses with perennial flows, or areas that may be 
periodically dewatered but serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted;
    c. Stream microhabitat types including runs, riffles, and pools 
with substrate ranging from gravel, cobble, and bedrock substrates with 
low or moderate amounts of fine sediment and substrate embeddedness; 
and
    d. Streams with depths generally less than 2 m (3.3 ft), and with 
slow to swift flow velocities less than 35 cm/sec (1.1 ft/sec);
    e. Clear, cool water with low turbidity and temperatures in the 
general range of 9.0 to 28.0 [deg]C (48.2 to 82.4 [deg]F).
    f. No harmful levels of pollutants;
    g. Adequate riparian shading to reduce water temperatures when 
ambient temperatures are high and provide protective cover from 
predators; and
    (2) An abundant aquatic insect food base consisting of fine 
particulate organic material, filamentous algae, midge larvae, 
caddisfly larvae, mayfly larvae, flatworms, and small terrestrial 
insects.
    (3) Areas devoid of nonnative aquatic species or areas that are 
maintained to kept nonnatives at a level that allows the Zuni bluehead 
sucker to continue to survive and reproduce.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographic area occupied by the species at the time of 
listing contain features which are essential to the conservation of the 
species and which may require special management considerations or 
protection. We believe each area included in these designations 
requires special management and protections as described in our unit 
descriptions.
    We need to consider special management considerations or protection 
for the features essential to the conservation of the species within 
each critical habitat area. The special management considerations or 
protections will depend on the threats to the essential features in 
that critical habitat area. For example, threats requiring special 
management considerations or protection include the continued spread of 
nonnative fish species into Zuni bluehead sucker habitat or increasing 
number of beavers that reduce habitat quality and foster expansion of 
nonnative fish and crayfish. Other threats requiring special management 
considerations or protection include the threat of wildfire and 
excessive ash and sediment following fire. Improper livestock grazing 
can be a threat to the remaining populations of Zuni bluehead sucker 
through trampling of habitat and increasing sedimentation. Inadequate 
water quantity resulting from drought and water withdrawals affect all 
life stages of Zuni bluehead sucker. Additionally, the construction of 
impoundments and water diversions can cause an increase in water depth 
behind the structure and a reduction or elimination of stream habitat 
below.
    We have included below in our description of each of the critical 
habitat areas for the Zuni bluehead sucker a discussion of the threats 
occurring in that area requiring special management considerations or 
protection.

Criteria Used To Identify Critical Habitat

    As required by Section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time 
of listing--are necessary to ensure the conservation of the species. We 
are proposing to designate critical habitat in areas within the 
geographic area occupied by the species at the time of listing, as 
described above in the proposed rule to list the Zuni bluehead sucker, 
and that contain sufficient elements of physical or biological features 
to support life-history processes essential for the conservation of the 
species. We are also proposing to designate specific areas outside the 
geographic area occupied by the species at the time of listing because 
such areas are essential for the conservation of the species.
    Sources of data for this species include multiple databases 
maintained by universities and State agencies for Arizona and New 
Mexico, existing State recovery plans, endangered species reports, and 
numerous survey reports on streams throughout the species' range 
(Sanchez 1975, pp. 1, 4; Propst et al. 1986, pp. 49-51; NMDGF 2003, pp. 
6-10; Sponholtz 2003, pp. 18-22; NMDGF 2004, pp. 1-40; Clarkson and 
Marsh 2006, pp. 1-2; David 2006, pp. 1-40; NMDGF 2007, pp. 1-27; 
Douglas et al. 2009, p. 67; Service 2010, pp. 1-2; NMDGF 2012; Navajo 
Nation Heritage Program 2012, pp. 1-20). We have also reviewed 
available information that pertains to the habitat requirements of this 
species. Sources of information on habitat requirements include 
existing State recovery plans, endangered species reports, studies 
conducted at occupied sites and published in peer-reviewed articles, 
agency reports, and data collected during monitoring efforts (Propst et 
al. 2001, pp. 159-161; NMDGF 2003, pp. 1-14; NMDGF 2004, pp. 4-7).
    The current distribution of the Zuni bluehead sucker is much 
reduced from its historical distribution. We anticipate that recovery 
will require continued protection of existing populations and habitat, 
as well as establishing populations in additional streams that more 
closely approximate its historic distribution in order to ensure there 
are adequate numbers of fish in stable populations and that these 
populations occur over a wide geographic area. This will help to ensure 
that catastrophic events, such as wildfire, cannot simultaneously 
affect all known populations.
Areas Occupied at the Time of Listing
    The proposed critical habitat designation does not include all 
streams known to have been occupied by the species historically; 
instead, it focuses on occupied streams within the

[[Page 5357]]

historical range that have retained the necessary PCEs that will allow 
for the maintenance and expansion of existing populations. The 
following streams meet the definition of areas occupied by the species 
at the time of listing: Agua Remora, Rio Nutria, Tampico Spring, 
Tampico Draw, Kinlichee Creek, Black Soil Wash, Scattered Willow Wash, 
Coyote Wash, Crystal Creek, Sonsela Creek, Tsaile Creek, Wheatfields 
Creek, and Whiskey Creek. There are no developed areas within the 
proposed designation except for barriers constructed on streams or road 
crossings of streams, which do not remove the suitability of these 
areas for this species.
Areas Outside of the Geographic Range at the Time of Listing
    The Zuni River, Rio Pescado, Cebolla Creek, Red Clay Wash, 
Palisades Creek, and Little Whiskey Creek are within the historical 
range of the Zuni bluehead sucker but are not within the geographic 
range currently occupied by the species; the Zuni River and Rio Pescado 
experience a high degree of river intermittency, and the Zuni bluehead 
sucker has not been seen in Cebolla Creek, Red Clay Wash, and Little 
Whiskey Creek in over 30 years, and it has not been observed in the 
Zuni River or Rio Pescado in approximately 20 years. We consider these 
sites to be extirpated. For areas not occupied by the species at the 
time of listing, we must demonstrate that these areas are essential to 
the conservation of the species in order to include them in our 
critical habitat designation. To determine if these areas are essential 
for the conservation of the Zuni bluehead sucker, we considered: (1) 
The importance of the site to the overall status of the species to 
prevent extinction and contribute to future recovery of the Zuni 
bluehead sucker; (2) whether the area could be restored to contain the 
necessary habitat to support the Zuni bluehead sucker; (3) does the 
site provide connectivity between occupied sites for genetic exchange: 
and (4) whether a population of the species could be reestablished in 
the area.
    Of the unoccupied streams, the Zuni River, Rio Pescado, and 
Palisades Creek exhibit varying degrees of intermittency; the Zuni 
River and Rio Pescado are generally only continuous after heavy flows 
in the spring (NMDGF 2004, p. 13; New Mexico Environment Department 
(NMED) 2004, p. 1), and Palisades Creek has been noted as dry during 
recent visits (Hobbes 2001, pp. 25-26; Carman 2004, p. 9). However, 
when the Zuni River, Rio Pescado, and Cebolla Creek do exhibit flow and 
if suitable habitat were restored, they could allow for important 
population expansion in this watershed and they are therefore essential 
for the conservation of the Zuni bluehead sucker. On the other hand, 
Palisades Creek is a tributary to Whiskey Creek that, when wetted, 
likely does not provide much benefit to the species. Because this 
formerly occupied site has been so severely impacted and, as a small 
tributary, it does not connect occupied sites, it is unlikely to 
contribute to the recovery of the species and is not considered 
essential to the conservation of the species. Therefore, it is not 
included in the proposed designation of critical habitat.
    In summary, for areas within the geographic area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the following criterion:
    (1) Evaluate habitat suitability of stream segments within the 
geographic area occupied at the time of listing, and retain those 
segments that contain some or all of the PCEs to support life-history 
functions essential for conservation of the species.
    For areas outside the geographic area occupied by the species at 
the time of listing, we delineated critical habitat unit boundaries 
using the following steps:
    (2) Evaluate stream segments not known to have been occupied at 
listing but that are within the historical range of the species 
(outside of the geographic area occupied by the species) to determine 
if they are essential to the survival and recovery of the species. 
Essential areas are those that:
    (a) Serve as an extension of habitat within the geographic area of 
an occupied unit;
    (b) Expand the geographic distribution within areas not occupied at 
the time of listing across the historical range of the species; and
    (c) Are connected to other occupied areas, which will enhance 
genetic exchange between populations.
    We conclude that the areas proposed for critical habitat provide 
for the conservation of the Zuni bluehead sucker because they include 
habitat for all extant populations and include habitat for connectivity 
and dispersal opportunities within units. Such opportunities for 
dispersal assist in maintaining the population structure and 
distribution of the species. The current amount of habitat that is 
occupied is not sufficient for the recovery of the species; therefore, 
we included unoccupied habitat in this proposed critical habitat 
designation.
    As a final step, we evaluated those occupied stream segments 
retained through step 1 of the above analysis and refined the starting 
and ending points by evaluating the presence or absence of appropriate 
PCEs. We selected upstream and downstream cutoff points to omit areas 
that are highly degraded and are not likely restorable. For example, 
permanently dewatered areas, or areas in which there was a change to 
unsuitable parameters (e.g., water quality, bedrock substrate) were 
used to mark the start or endpoint of a stream segment proposed for 
designation. Critical habitat stream segments were then mapped using 
ArcMap version 10 (Environmental Systems Research Institute, Inc.), a 
Geographic Information Systems program.
    The areas proposed for designation as critical habitat provide 
sufficient stream and spring habitat for breeding, nonbreeding, and 
dispersing adult Zuni bluehead sucker, as well as for the habitat needs 
for juvenile and larval stages of this fish. In general, the PCEs of 
critical habitat are contained within the riverine ecosystem formed by 
the wetted channel and the adjacent floodplains within 91.4 lateral m 
(300 lateral ft) on either side of bankfull stage, except where bounded 
by canyon walls. Areas within the lateral extent also contribute to the 
PCEs, including water quality and intermittent areas through which fish 
may move when wetted. Zuni bluehead sucker use the riverine ecosystem 
for feeding, breeding, and sheltering while breeding and migrating.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by bridges, docks, aqueducts, and other structures because such lands 
lack physical or biological features for the Zuni bluehead sucker. 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 proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    We are proposing for designation of critical habitat lands that we 
have determined are occupied at the time of listing and contain 
sufficient elements

[[Page 5358]]

of physical or biological features to support life-history processes 
essential for the conservation of the species, and lands outside of the 
geographic area occupied at the time of listing that we have determined 
are essential for the conservation of the Zuni bluehead sucker.
    Segments were proposed for designation based on sufficient elements 
of physical or biological features being present to support the Zuni 
bluehead sucker life-history processes. Some segments contained all of 
the identified elements of physical or biological features and 
supported multiple life-history processes. Some segments contained only 
some elements of the physical or biological features necessary to 
support the Zuni bluehead sucker's particular use of that habitat.
    The critical habitat designation is defined by the map or maps, 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-R2-ES-2012-0101, on our Internet 
sites http://www.fws.gov/southwest/es/NewMexico/, and at the field 
office responsible for the designation (see FOR FURTHER INFORMATION 
CONTACT above).

Proposed Critical Habitat Designation

    We are proposing to designate approximately 472 km (293 mi) in 
three units as critical habitat for the Zuni bluehead sucker. The 
critical habitat areas we describe below constitute our current best 
assessment of areas that meet the definition of critical habitat for 
Zuni bluehead sucker. The three areas we propose as critical habitat 
are: (1) Zuni River Unit; (2) Kinlichee Creek Unit; and (3) San Juan 
River Unit. Table 1 shows the occupancy of the units, the land 
ownership, and approximate areas of the proposed designated areas for 
the Zuni bluehead sucker.

                        Table 1--Proposed Critical Habitat Units for Zuni Bluehead Sucker
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                                                  Length of unit
             Stream segment                 Occupied at the time of         Land ownership         in kilometers
                                                    listing                                           (miles)
----------------------------------------------------------------------------------------------------------------
                                             Unit 1--Zuni River Unit
----------------------------------------------------------------------------------------------------------------
                                        Subunit 1a--Zuni River Headwaters
----------------------------------------------------------------------------------------------------------------
Agua Remora.............................  Yes.......................  Forest Service............       6.6 (4.1)
                                                                      Private...................       2.4 (1.5)
Rio Nutria..............................  Yes.......................  Zuni Pueblo...............     38.9 (24.2)
                                                                      Forest Service............       4.1 (2.6)
                                                                      State of New Mexico.......       1.8 (1.1)
                                                                      Private...................      14.2 (8.8)
Tampico Draw............................  Yes.......................  Forest Service............       2.3 (1.4)
                                                                      Private...................       3.7 (2.3)
Tampico Spring..........................  Yes.......................  Private...................       0.2 (0.1)
                                         -----------------------------------------------------------------------
    Total...............................  ..........................  ..........................     74.2 (46.1)
----------------------------------------------------------------------------------------------------------------
                                         Subunit 1b--Zuni River Mainstem
----------------------------------------------------------------------------------------------------------------
Zuni River..............................  No........................  Zuni Pueblo...............       7.4 (4.6)
Rio Pescado.............................  No........................  Zuni Pueblo...............     47.3 (29.4)
                                                                      State of New Mexico.......       5.8 (3.6)
                                                                      Private...................      15.4 (9.6)
Cebolla Creek...........................  No........................  Zuni Pueblo...............       3.7 (2.3)
                                                                      State of New Mexico.......       0.4 (.02)
                                                                      Forest Service............       6.4 (4.0)
                                                                      Private...................     21.4 (13.3)
                                         -----------------------------------------------------------------------
    Total...............................  ..........................  ..........................    107.8 (67.0)
----------------------------------------------------------------------------------------------------------------
                                          Unit 2--Kinlichee Creek Unit
----------------------------------------------------------------------------------------------------------------
                                           Subunit 2a--Kinlichee Creek
----------------------------------------------------------------------------------------------------------------
Black Soil Wash.........................  Yes.......................  Navajo Nation.............     21.6 (13.4)
Kinlichee Creek.........................  Yes.......................  Navajo Nation.............     47.1 (29.3)
Scattered Willow Wash...................  Yes.......................  Navajo Nation.............     18.2 (11.3)
                                         -----------------------------------------------------------------------
    Total...............................  ..........................  ..........................     86.9 (54.0)
----------------------------------------------------------------------------------------------------------------
                                            Subunit 2b--Red Clay Wash
----------------------------------------------------------------------------------------------------------------
Red Clay Wash...........................  No........................  Navajo Nation.............       9.6 (6.0)
----------------------------------------------------------------------------------------------------------------
                                           Unit 3--San Juan River Unit
----------------------------------------------------------------------------------------------------------------
                                          Subunit 3a--Canyon de Chelly
----------------------------------------------------------------------------------------------------------------
Coyote Wash.............................  Yes.......................  Navajo Nation *...........       6.4 (4.0)

[[Page 5359]]

 
Crystal Creek...........................  Yes.......................  Navajo Nation *...........       0.5 (0.3)
                                                                      Navajo Nation.............     34.2 (21.2)
Sonsela Creek...........................  Yes.......................  Navajo Nation *...........     19.5 (12.1)
Tsaile Creek............................  Yes.......................  Navajo Nation *...........     23.0 (14.3)
                                                                      Navajo Nation.............     30.6 (19.0)
Wheatfields Creek.......................  Yes.......................  Navajo Nation *...........       8.5 (5.3)
                                                                      Navajo Nation.............     29.3 (18.2)
Whiskey Creek...........................  Yes.......................  Navajo Nation *...........       7.5 (4.7)
                                                                      Navajo Nation.............     28.1 (17.5)
                                         -----------------------------------------------------------------------
    Total...............................  ..........................  ..........................   187.9 (112.7)
----------------------------------------------------------------------------------------------------------------
                                        Subunit 3b--Little Whiskey Creek
----------------------------------------------------------------------------------------------------------------
Little Whiskey Creek....................  No........................  Navajo Nation.............       8.9 (5.5)
                                         -----------------------------------------------------------------------
    Total...............................  ..........................  ..........................       8.9 (5.5)
----------------------------------------------------------------------------------------------------------------
* These lands are managed by National Park Service in trust for the Navajo Nation.
Note: Area sizes may not sum due to rounding.

    We present below brief descriptions of the units and reasons why 
the units meet the definition of critical habitat for the Zuni bluehead 
sucker.

Unit 1: Zuni River Unit

    Subunit 1a--Zuni River Headwaters: Subunit 1a consists of 74.2 km 
(46.1 mi) along Agua Remora, Rio Nutria, Tampico Draw, and Tampico 
Spring in McKinley County, New Mexico. The land in this subunit is 
primarily owned by Zuni Pueblo, Forest Service, and private landowners 
with a small amount of State inholdings. The Zuni bluehead sucker 
occupies all stream reaches in this subunit, and the subunit contains 
all of the primary constituent elements of the physical or biological 
features essential to the conservation of the Zuni bluehead sucker. 
This unit represents the only remaining headwater spring habitats 
occupied by Zuni bluehead sucker.
    Livestock grazing is primarily regulated by the Forest Service and 
Zuni Pueblo in this subunit; however, trespass livestock grazing may 
occur. Additional special management considerations or protection may 
be required within Subunit 1a to address low water levels as a result 
of water withdrawals and drought, predation from nonnative green 
sunfish, and the upstream and downstream effects of impoundments. Such 
special management or protection may include maintaining instream 
flows, nonnative species removal, and reservoir management that 
improves up- and downstream habitat to benefit the Zuni bluehead 
sucker.
    Subunit 1b--Zuni River Mainstem: Subunit 1b consists of 107.8 km 
(67.0 mi) of potential Zuni bluehead sucker habitat along the Zuni 
River, Rio Pescado, and Cebolla Creek in McKinley and Cibola Counties, 
New Mexico. Land within this subunit is primarily owned by Zuni Pueblo 
and private landowners, with a small amount of Forest Service and State 
land. The Zuni bluehead sucker historically occupied these streams but 
has not been found in the Zuni River or Rio Pescado since the mid-1990s 
(NMDGF 2004, p. 5) and has been extirpated from Cebolla Creek since at 
least 1979 (Hanson 1980, pp. 29, 34). We consider this unit unoccupied. 
When wetted and if suitable habitat were present, the Zuni River and 
Rio Pescado could provide important connections between occupied 
reaches in Subunit 1a and potential future populations in Cebolla 
Creek, which has been identified as containing suitable habitat in the 
past and could provide for significant population expansion. Therefore, 
this subunit is essential for the conservation of the Zuni bluehead 
sucker because it provides for connection between populations and also 
provides space for the growth and expansion of the species in this 
portion of its historical range.

Unit 2: Kinlichee Creek Unit

    Subunit 2a--Kinlichee Creek: Subunit 2a consists of 86.9 km (54.0 
mi) along Kinlichee Creek and two tributaries (Black Soil Wash and 
Scattered Willow Wash) in Apache County, Arizona. This entire subunit 
is located within the Navajo Indian Reservation. The Zuni bluehead 
sucker occupies all stream reaches in this subunit, and the subunit 
contains all of the primary constituent elements of the physical or 
biological features essential to the conservation of the Zuni bluehead 
sucker.
    Special management considerations or protection may be required 
within Subunit 2a to address low water levels as a result of water 
withdrawals and drought, sedimentation and riparian vegetation 
destruction from road development and livestock grazing, and predation 
from nonnative species. Such special management considerations or 
protection may include instream flows, stream fencing, erosion control 
structures along roads and during construction, reservoir management 
that improves up- and downstream habitat to benefit the Zuni bluehead 
sucker and nonnative species removal.
    Subunit 2b--Red Clay Wash: Subunit 2b consists of 9.6 km (6.0 mi) 
of potential Zuni bluehead sucker habitat along Red Clay Wash, in 
Apache County, Arizona, on the Navajo Indian Reservation. The Zuni 
bluehead sucker historically occupied this stream but does not 
currently occur there. Inclusion of Red Clay Wash expands the recovery 
potential of the Zuni bluehead sucker in the lower Kinlichee watershed 
by increasing population redundancy within the species' historical 
range and is therefore essential to the conservation of the species.

Unit 3: San Juan River Unit

    Subunit 3a--Canyon de Chelly: Subunit 3a consists of 187.9 km 
(112.7 mi) along Tsaile Creek, Wheatfields Creek, Whiskey Creek, Coyote 
Wash, Crystal Creek, and Sonsela Creek in

[[Page 5360]]

Apache County, Arizona, and San Juan County, New Mexico. This unit is 
located within the Navajo Indian Reservation, portions of which are 
managed by the National Park Service as Canyon de Chelly National 
Monument in trust for the Navajo Nation. The Zuni bluehead sucker 
occupies all stream reaches in this subunit, and the subunit contains 
all of the primary constituent elements of the physical or biological 
features essential to the conservation of the Zuni bluehead sucker.
    Special management considerations or protection may be required 
within Subunit 3a to address low water levels as a result of water 
withdrawals and drought, sedimentation and riparian vegetation 
destruction from road development and livestock grazing, and predation 
from nonnative species. Such special management considerations or 
protection may include instream flows stream fencing, erosion control 
structures along roads and during construction, reservoir management 
that improves up- and downstream habitat to benefit the Zuni bluehead 
sucker, and nonnative species removal.
    Subunit 3b--Little Whiskey Creek: Subunit 3b consists of 8.9 km 
(5.5 mi) of potential Zuni bluehead sucker habitat along Little Whiskey 
Creek in San Juan County, New Mexico, on the Navajo Indian Reservation. 
The Zuni bluehead sucker does not currently occur in Little Whiskey 
Creek, but suitable habitat is present and it is reasonable to conclude 
the species occurred there historically. Inclusion of Little Whiskey 
Creek expands the recovery potential of the Zuni bluehead sucker in the 
upper Whiskey Creek watershed by increasing population redundancy 
within the species' historical range and is therefore essential to the 
conservation of the species.

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 statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would 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 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. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the Zuni bluehead sucker. As 
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such

[[Page 5361]]

habitat, or that may be affected by such designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Zuni bluehead sucker. These activities include, 
but are not limited to:
    (1) Actions that would diminish flows within the active stream 
channel. Such activities could include, but are not limited to: Water 
diversion, water withdrawal, channelization, construction of any 
barriers or impediments within the active stream channel, construction 
of permanent or temporary diversion structures, and groundwater pumping 
within aquifers associated with the stream or springs. These activities 
could affect water depth, velocity, and flow patterns, all of which are 
essential to the different life stages of Zuni bluehead sucker.
    (2) Actions that would significantly increase sediment deposition 
within a stream channel. Such activities could include, but are not 
limited to: Excessive sedimentation from livestock grazing, road 
construction, commercial or urban development, channel alteration, 
timber harvest, or other watershed and floodplain disturbances. These 
activities could adversely affect reproduction of the species by 
preventing hatching of eggs through suffocation, or by eliminating 
suitable habitat for egg placement by Zuni bluehead sucker. In 
addition, excessive levels of sedimentation reduce or eliminate algae 
production and can make it difficult for the Zuni bluehead sucker to 
locate prey.
    (3) Actions that result in the introduction, spread, or 
augmentation of nonnative aquatic species in occupied stream segments, 
or in stream segments that are hydrologically connected to occupied 
stream segments, even if those segments are occasionally intermittent, 
or introduction of other species that compete with or prey on Zuni 
bluehead sucker. Possible actions could include, but are not limited 
to: Stocking of nonnative fishes, stocking of sport fish, or other 
related actions. These activities can introduce parasites or disease, 
or affect the growth, reproduction, and survival of Zuni bluehead 
sucker.
    (4) Actions that would significantly alter channel morphology. Such 
activities could include, but are not limited to: Channelization, 
impoundment, road and bridge construction, mining, dredging, and 
destruction of riparian vegetation. These activities may lead to 
changes in water flows and levels that would degrade or eliminate the 
Zuni bluehead, their habitats, or both. These actions can also lead to 
increased sedimentation and degradation of the water.
    (5) Actions that significantly alter the water chemistry of the 
active channel. Such activities could include release of chemicals, 
biological pollutants, or other substances into the surface water or 
connected groundwater at a point source or by dispersed release 
(nonpoint source), and storage of chemicals or pollutants that can be 
transmitted, via surface water, groundwater, or air, into critical 
habitat. These actions can affect water chemistry and the prey base of 
the Zuni bluehead sucker.

Exemptions

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

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) 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 geographic areas owned 
or controlled by the Department of Defense, or designated for its use, 
that are subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation.''
    There are no Department of Defense lands within the proposed 
critical habitat designation for Zuni bluehead sucker.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. Potential land use sectors that may be affected by the Zuni 
bluehead sucker critical habitat designation include water diversion or 
impoundment repairs, forest management (silvicultural practices), fire 
suppression activities, road development, grazing, groundwater

[[Page 5362]]

withdrawals, and subdivision development. We also consider any social 
impacts that might occur because of the designation.
    During the development of a final designation, we will consider 
economic impacts based on information in our economic analysis, public 
comments, and other new information, and areas may be excluded from the 
final critical habitat designation under section 4(b)(2) of the Act and 
our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands where a national security impact might exist. In preparing this 
proposal, we have determined that the lands within the proposed 
designation of critical habitat for the Zuni bluehead sucker are not 
owned or managed by the Department of Defense, and, therefore, we 
anticipate no impact on national security. Consequently, the Secretary 
is not intending to exercise his discretion to exclude any areas from 
the 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 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.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    There are tribal lands included in the proposed designation of 
critical habitat for the Zuni bluehead sucker. Using the criteria found 
in the Criteria Used To Identify Critical Habitat section, we have 
determined that tribal lands that are occupied by the Zuni bluehead 
sucker contain the features essential for the conservation the species, 
as well as tribal lands unoccupied by the Zuni bluehead sucker that are 
essential for the conservation of the species. We have begun 
government-to-government consultation with these tribes, and will 
continue to do so throughout the public comment period and during 
development of the final designation of critical habitat for the Zuni 
bluehead sucker. We will consider these areas for exclusion from the 
final critical habitat designation to the extent consistent with the 
requirements of section 4(b)(2) of the Act. The Navajo Nation and Zuni 
Pueblo are the main tribes affected by this proposed rule. We sent 
notification letters in July 2012 to both tribes describing the 
exclusion process under section 4(b)(2) of the Act, and we have engaged 
in conversations with both tribes about the proposal to the extent 
possible without disclosing predecisional information. We coordinated 
with the Navajo Nation in May 2012, to coordinate surveys on Navajo 
lands. Additionally, we are working with Zuni Pueblo to develop a 
management plan for their lands. We will schedule a meeting with the 
tribes and any other interested tribes shortly after publication of 
this proposed rule so that we can give them as much time as possible to 
comment.
    A final determination on whether the Secretary will exercise his 
discretion to exclude any of these areas from critical habitat for the 
Zuni bluehead sucker will be made when we publish the final rule 
designating critical habitat. We will take into account public comments 
and carefully weigh the benefits of exclusion versus inclusion of these 
areas. We may also consider areas not identified above for exclusion 
from the final critical habitat designation based on information we may 
receive during the preparation of the final rule (e.g., management 
plans for additional areas).

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our listing determination and critical habitat designation are 
based on scientifically sound data, assumptions, and analyses. We have 
invited these peer reviewers to comment during this public comment 
period.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in the FOR 
FURTHER INFORMATION CONTACT section. We will schedule public hearings 
on this proposal, if any are requested, and announce the dates, times, 
and places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs 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 Executive Order 
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. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an

[[Page 5363]]

agency must publish a notice of rulemaking for any proposed or final 
rule, it must prepare and make available for public comment a 
regulatory flexibility analysis that describes the effects of the rule 
on small entities (small businesses, small organizations, and small 
government jurisdictions). However, no regulatory flexibility analysis 
is required if the head of the agency certifies the rule will not have 
a significant economic impact on a substantial number of small 
entities. The SBREFA amended the RFA to require Federal agencies to 
provide a certification statement of the factual basis for certifying 
that the rule will not have a significant economic impact on a 
substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as 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 forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. However, Executive Orders 
12866 and 13563 direct Federal agencies to assess costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts if sufficient data are available, whether or not this 
analysis is believed by the Service to be strictly required by the RFA. 
In other words, while the effects analysis required under the RFA is 
limited to entities directly regulated by the rulemaking, the effects 
analysis under the Act, consistent with the EO regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies which are not by definition small business entities. And as 
such, we certify that, if promulgated, this designation of critical 
habitat would not have a significant economic impact on a substantial 
number of small business entities. Therefore, an initial regulatory 
flexibility analysis is not required. However, though not necessarily 
required by the RFA, in our draft economic analysis for this proposal 
we will consider and evaluate the potential effects to third parties 
that may be involved with consultations with Federal action agencies 
related to this action.

Energy Supply, Distribution, or Use--Executive Order 13211

    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. We do not expect the designation of this proposed 
critical habitat to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required. However, we will further 
evaluate this issue as we conduct our economic analysis, and review and 
revise this assessment as warranted.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This proposed 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

[[Page 5364]]

condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We lack the available economic information to determine if a 
Small Government Agency Plan is required. Therefore, we defer this 
finding until completion of the draft economic analysis is prepared 
under section 4(b)(2) of the Act.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we will analyze the potential takings implications of designating 
critical habitat for the Zuni bluehead sucker in a takings implications 
assessment. The draft economic analysis will provide the foundation for 
us to use in preparing a takings implication assessment. Critical 
habitat designation does not affect landowner actions that do not 
require Federal funding or permits, nor does it preclude development of 
habitat conservation programs or issuance of incidental take permits to 
permit actions that do require Federal funding or permits to go 
forward.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism assessment is not required. In keeping with Department of 
the Interior and Department of Commerce policy, we requested 
information from, and coordinated development of, this proposed 
critical habitat designation with appropriate State resource agencies 
in New Mexico and Arizona. The designation of critical habitat in areas 
currently occupied by the Zuni bluehead sucker imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments because 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) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with 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 requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, the rule 
identifies the elements of physical or biological features essential to 
the conservation of the species. The designated areas of critical 
habitat are presented on maps, and the rule provides several options 
for the interested public to obtain more detailed location information, 
if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to NEPA in connection with designating 
critical habitat under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244). This position was upheld by 
the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. 
Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 
(1996)). However, when the range of the species includes States within 
the Tenth Circuit, such as that of the Zuni bluehead sucker, under the 
Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. 
Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will 
undertake a NEPA analysis for critical habitat designation and notify 
the public of the availability of the draft environmental assessment 
for this proposal when it is finished.

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.
    There are tribal lands in Arizona and New Mexico included in this 
proposed designation of critical habitat. Using the criteria found in 
the Criteria Used To Identify Critical Habitat section, we

[[Page 5365]]

have determined that there are tribal lands that are occupied by the 
Zuni bluehead sucker that contain the features essential for the 
conservation of the species, as well as tribal lands unoccupied by the 
species at the time of listing that are essential for the conservation 
of the Zuni bluehead sucker. We have begun government-to-government 
consultation with these tribes throughout the public comment period and 
during development of the final designation of Zuni bluehead sucker 
critical habitat. We will consider these areas for exclusion from the 
final critical habitat designation to the extent consistent with the 
requirements of section 4(b)(2) of the Act. The Navajo Nation and Zuni 
Pueblo are the main tribes affected by this proposed rule. We sent 
notification letters in July 2012 to each tribe describing the 
exclusion process under section 4(b)(2) of the Act, and we have engaged 
in conversations with both tribes about the proposal to the extent 
possible without disclosing predecisional information. We coordinated 
with the Navajo Nation in May 2012 to coordinate surveys on Navajo 
lands. Additionally, we are working with Zuni Pueblo to develop a 
management plan for their lands. We will schedule meetings with these 
tribes and any other interested tribes shortly after publication of 
this proposed rule so that we can give them as much time as possible to 
comment.

Clarity of the Rule

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

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to 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; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. In Sec.  17.95, amend paragraph (e) by adding an entry for ``Zuni 
bluehead sucker (Catostomus discobolus yarrowi),'' after the entry for 
``Warner Sucker (Catostomus warnerensis)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Zuni bluehead sucker (Catostomus discobolus yarrowi)
    (1) Critical habitat units are depicted for Apache County, Arizona, 
and Cibola, McKinley, and San Juan Counties, New Mexico, on the maps 
below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Zuni bluehead sucker consist of three components:
    (i) A riverine system with habitat to support all life stages of 
Zuni bluehead sucker, which includes:
    (A) Dynamic flows that allow for periodic changes in channel 
morphology and adequate river functions, such as channel reshaping and 
delivery of coarse sediments.
    (B) Stream courses with perennial flows, or areas that may be 
periodically dewatered but serve as connective corridors between 
occupied or seasonally occupied habitat and through which the species 
may move when the habitat is wetted.
    (C) Stream microhabitat types including runs, riffles, and pools 
with substrate ranging from gravel, cobble and bedrock substrates with 
low or moderate amounts of fine sediment and substrate embeddedness.
    (D) Streams with depths generally less than 2 m (3.3 ft), and with 
slow to swift flow velocities less than 35 cm/sec (1.1 ft/sec).
    (E) Clear, cool water with low turbidity and temperatures in the 
general range of 9.0 to 28.0 [deg]C (48.2 to 82.4 [deg]F).
    (F) No harmful levels of pollutants.
    (G) Adequate riparian shading to reduce water temperatures when 
ambient temperatures are high and provide protective cover from 
predators.
    (ii) An abundant aquatic insect food base consisting of fine 
particulate organic material, filamentous algae, midge larvae, 
caddisfly larvae, mayfly larvae, flatworms, and small terrestrial 
insects.
    (iii) Areas devoid of nonnative aquatic species or areas that are 
maintained to kept nonnatives at a level that allows the Zuni bluehead 
sucker to continue to survive and reproduce.
    (3) Critical habitat does not include manmade structures (such as 
bridges, docks, and aqueducts) and the land on which they are located 
existing within the legal boundaries on [DATE 30 DAYS AFTER THE DATE OF 
PUBLICATION OF THE FINAL RULE IN THE Federal Register].
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS digital ortho-photo quarter-quadrangles, and 
critical habitat units were then mapped using Universal Transverse 
Mercator (UTM) Zone 15N 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/southwest/es/NewMexico/), 
(http://www.regulations.gov at Docket No. FWS-R2-ES-2013-002 and at the 
New Mexico Ecological Services Field Office. You may obtain field 
office location information by contacting one of the Service regional 
offices, the addresses of which are listed at 50 CFR part 22.
    (5) Note: Index of critical habitat units for the Zuni bluehead 
sucker follows:
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    (6) Unit 1: Zuni River Unit, McKinley and Cibola Counties, New 
Mexico. Map of Unit 1 follows:

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    (7) Unit 2: Kinlichee Creek Unit, Apache County, Arizona, and 
McKinley and San Juan Counties, New Mexico. Map of Unit 2 follows:

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    (8) Unit 3: San Juan River Unit, Apache County, Arizona, and San 
Juan County, New Mexico. Map of Unit 3 is provided at paragraph (7) of 
this entry.
* * * * *

    Dated: January 15, 2013.
Michael Bean,
Acting Principal Deputy Assistant Secretary for Fish Wildlife and 
Parks.
[FR Doc. 2013-01302 Filed 1-24-13; 8:45 am]
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