[Federal Register Volume 78, Number 85 (Thursday, May 2, 2013)]
[Proposed Rules]
[Pages 25679-25685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09895]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0082; 4500030114]
RIN 1018-AY20


Endangered and Threatened Wildlife and Plants; Proposed Revision 
of Critical Habitat for the Comal Springs Dryopid Beetle, Comal Springs 
Riffle Beetle, and Peck's Cave Amphipod

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the October 19, 2012, 
proposed revision of critical habitat for the Comal Springs dryopid 
beetle (Stygoparnus comalensis), Comal Springs riffle beetle 
(Heterelmis comalensis), and Peck's cave amphipod (Stygobromus pecki) 
under the Endangered Species Act of 1973, as amended. We also announce 
the availability of a draft economic analysis of the proposed 
designation of critical habitat for the Comal Springs dryopid beetle, 
Comal Springs riffle beetle, and Peck's cave amphipod and an amended 
required determinations section of the proposal. We are reopening the 
comment period to allow all interested parties an opportunity to 
comment simultaneously on the proposed rule, the associated draft 
economic analysis (DEA), and the amended required determinations 
section. Comments previously submitted need not be resubmitted, as they 
will be fully considered in preparation of the final rule.

DATES: The comment period for the proposed rule published October 
October 19, 2012, at 77 FR 77 FR 64272, is reopened. Written Comments: 
We will consider comments received or postmarked on or before June 3, 
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.
    Public Information Meeting: We will hold a public information 
meeting on Friday, May 17, 2013, from 5:30 p.m. to 6:30 p.m. (see 
ADDRESSES section, below).
    Public Hearing: We will hold a public hearing on Friday, May 17, 
2013 from 7:00 p.m. to 8:30 p.m. (see ADDRESSES section, below).

ADDRESSES:
    Document Availability: You may obtain copies of the proposed rule 
and DEA on the internet at http://www.regulations.gov at Docket No. 
FWS-R2-ES-2012-0082 or by mail from the Austin Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).
    Written Comments: You may submit written comments by one of the 
following methods, or at the public information meeting or public 
hearing:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R2-ES-2012-0082, which 
is the docket number for this rulemaking, and follow the directions for 
submitting a comment.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2012-0082; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    Public Information Meeting and Public Hearing: The public 
informational session and hearing will be held at San Marcos Activity 
Center, 501 E. Hopkins, San Marcos, TX 78666. People needing reasonable 
accommodation in order to attend and participate in the public hearing 
should contact Adam Zerrenner, Field Supervisor, Austin Ecological 
Services Field Office, as soon as possible (see FOR FURTHER INFORMATION 
CONTACT).
    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).

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office, 
10711 Burnet Road, Suite 200, Austin, TX 78758; by telephone at 512-
490-0057, extension 248; or by facsimile at 512-490-0974. Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our proposed revision of critical habitat 
for Comal Springs dryopid beetle, Comal Springs riffle beetle, and 
Peck's cave amphipod that published in the Federal Register on October 
19, 2012 (77 FR 64272), our DEA of the proposed designation, and the 
amended required determinations provided in this document. We will 
consider information and recommendations from all interested parties. 
We are particularly interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act of 
1973, as amended (Act; 16 U.S.C. 1531 et seq.), including whether there 
are threats to the Comal Springs dryopid beetle, Comal Springs riffle 
beetle, and Peck's cave amphipod from human activity, the degree of 
which can be expected to

[[Page 25680]]

increase due to the designation, and whether that increase in threat 
outweighs the benefit of designation such that the designation of 
critical habitat is not prudent.
    (2) Specific information on:
    (a) The amount and distribution of these species and their habitat;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of these species, should be included in the designation 
and why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Any data documenting the extent of subsurface areas used by any 
of the species for breeding, feeding, or sheltering.
    (4) Land use designations and current or planned activities in the 
subject areas and the possible impacts of these designations or 
activities on both species and their proposed critical habitat.
    (5) Information on the projected and reasonably likely impacts of 
climate change on these species and proposed critical habitat.
    (6) Any foreseeable economic, national security, or other relevant 
impacts of 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.
    (7) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act, in particular for those areas that may 
benefit from the proposed Edwards Aquifer Recovery Implementation 
Program Habitat Conservation Plan (HCP). Copies of the draft HCP are 
available from the Austin Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).
    (8) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (9) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (10) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed critical habitat designation.
    If you submitted comments or information on the proposed rule (77 
FR 64272) during the initial comment period from October 19, 2012, to 
December 18, 2012, please do not resubmit them. We will incorporate 
them into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determination.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in the ADDRESSES section. 
Verbal testimony may also be presented during the public hearing (see 
DATES and ADDRESSES sections). We request that you send comments only 
by the methods described in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R2-ES-2012-0082, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Austin Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may 
obtain copies of the proposed rule and the DEA on the Internet at 
http://www.regulations.gov at Docket Number FWS-R2-ES-2012-0082, or by 
mail from the Austin Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Information Meeting and Public Hearing

    We are holding a public information meeting and a public hearing on 
the date listed in the DATES section at the address listed in the 
ADDRESSES section (above). We are holding the public hearing to provide 
interested parties an opportunity to present verbal testimony (formal, 
oral comments) or written comments regarding the proposed revision of 
critical habitat for the Comal Springs invertebrates, and the 
associated DEA. A formal public hearing is not, however, an opportunity 
for dialogue with the Service; it is only a forum for accepting formal 
verbal testimony. In contrast to the hearing, the public information 
meeting will allow the public the opportunity to interact with Service 
staff, who will be available to provide information and address 
questions on the proposed rule and its associated DEA. We cannot accept 
verbal testimony at the public information meeting; verbal testimony 
can only be accepted at the public hearing. Anyone wishing to make an 
oral statement at the public hearing for the record is encouraged to 
provide a written copy of their statement to us at the hearing. At the 
public hearing, formal verbal testimony will be transcribed by a 
certified court reporter and will be fully considered in the 
preparation of our final determination. In the event there is a large 
attendance, the time allotted for oral statements may be limited. 
Speakers can sign up at the hearing if they desire to make an oral 
statement. Oral and written statements receive equal consideration. 
There are no limits on the length of written comments submitted to us.
    Persons with disabilities needing reasonable accommodations to 
participate in the public information meeting or public hearing should 
contact Adam Zerrenner, Field Supervisor, Austin Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT). Reasonable 
accommodation requests should be received at least 3 business days 
prior to the public information meeting or public hearing to help 
ensure availability; at least 2 weeks' prior notice is requested for 
American Sign Language needs.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of revised critical habitat for the Comal Springs 
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod 
in this document. For more information on previous Federal actions 
concerning the Comal Springs dryopid beetle, Comal Springs riffle 
beetle, and Peck's cave amphipod, refer to the proposed revision of 
critical habitat published in the Federal Register on October 19, 2012 
(77 FR

[[Page 25681]]

64272), which is available online at http://www.regulations.gov (at 
Docket Number FWS-R2-ES-2012-0082) or from the Austin Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    The final rule to list Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod as endangered species was 
published in the Federal Register on December 18, 1997 (62 FR 66295). 
Critical habitat was not designated at the time of listing due to the 
determination by the Service that designation for the three 
invertebrate species was not prudent because it would not provide 
benefits to the species beyond listing and the subsequent evaluation of 
activities required under section 7 of the Act. The lack of designated 
critical habitat for these species was subsequently challenged by the 
Center for Biological Diversity in the U.S. District Court for the 
District of Columbia. As part of a stipulated settlement agreement 
between the plaintiff and the Service, the Service subsequently 
proposed critical habitat on July 17, 2006 (71 FR 40588), and 
designated critical habitat for the species on July 17, 2007 (72 FR 
39248).
    On January 14, 2009, the Center for Biological Diversity, Citizens 
Alliance for Smart Expansion, and Aquifer Guardians in Urban Areas 
(CBD, et al. v. Kempthorne, No. 1:09-cv-00031-LY (W.D. Tex.)) filed 
suit in Federal Court (Western District of Texas) alleging that the 
Service failed to use the best available science in the critical 
habitat designation. On December 18, 2009, the parties filed a 
settlement agreement where we agreed to submit a revised proposed 
critical habitat determination for publication in the Federal Register 
by October 17, 2012, and a final revised determination by October 13, 
2013.
    On October 19, 2012, we published a proposed rule to revise 
critical habitat for the Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod (77 FR 64272). We proposed to 
designate approximately 39.4 acres (ac) (15.56 hectares (ha)) of 
surface area and 139 ac (56 ha) of subsurface area in two units (Comal 
and Fern Bank Springs Units) located in Comal and Hays Counties, Texas, 
as critical habitat for Comal Springs dryopid beetle; approximately 54 
ac (22 ha) of surface area in two units (Comal and San Marcos Springs 
Unit) located in Comal and Hays Counties, Texas, as critical habitat 
for the Comal Springs riffle beetle; and approximately 38.4 ac (15.16 
ha) of surface area and 138 ac (56 ha) of subsurface area in two units 
(Comal and Hueco Springs Units) located in Comal and Hayes County, 
Texas, as critical habitat for Peck's cave amphipod. In total, 
approximately 169 ac (68 ha) are proposed as revised critical habitat 
for all three species in Hays and Comal Counties, Texas.
    That proposal had a 60-day comment period, ending December 18, 
2012. In accordance with the December 18, 2009, settlement agreement, 
we will submit for publication in the Federal Register a final revised 
critical habitat designation for Comal Springs dryopid beetle, Comal 
Springs riffle beetle, and Peck's cave amphipod on or before October 
13, 2013.

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat must consult with us on the effects of their 
proposed actions, under section 7(a)(2) of the Act.

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

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus (activities conducted, funded, permitted, 
or authorized by Federal agencies), the educational benefits of mapping 
areas containing essential features that aid in the recovery of the 
listed species, and any benefits that may result from designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan. In the case of 
the Comal Springs dryopid beetle, Comal Springs riffle beetle, and 
Peck's cave amphipod, the benefits of critical habitat include public 
awareness of the presence of either species and the importance of 
habitat protection, and, where a Federal nexus exists, increased 
habitat protection for Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod due to protection from adverse 
modification or destruction of critical habitat. In practice, 
situations with a Federal nexus exist primarily on Federal lands or for 
projects undertaken by Federal agencies.
    We have not proposed to exclude any areas from critical habitat; 
however, in the proposed rule we explained that we are considering the 
exclusion of the lands covered by the Edwards Aquifer Recovery 
Implementation Program HCP that provide for the conservation of the 
Comal Springs dryopid beetle, Comal Springs riffle beetle, and Peck's 
cave amphipod (77 FR 64272, October 19, 2012). The final decision on 
whether to exclude any area will be based on the best scientific data 
available at the time of the final designation, including information 
obtained during the comment periods and information about the economic 
impact of designation. Accordingly, we have prepared a DEA concerning 
the proposed revised critical habitat designation, which is available 
for review and comment (see ADDRESSES).

Draft Economic Analysis

    The purpose of the DEA is to identify and analyze the potential 
economic impacts associated with the proposed revision of critical 
habitat designation for the Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod. The economic impact of the 
proposed critical habitat designation is analyzed by comparing 
scenarios ``with critical habitat'' and ``without critical habitat.'' 
The ``without critical habitat'' scenario represents the baseline for 
the analysis, considering protections otherwise afforded to the Comal 
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave

[[Page 25682]]

amphipod (e.g., under the Federal listing and other Federal, State, and 
local regulations). The baseline, therefore, represents the costs 
incurred regardless of whether critical habitat is designated. The 
``with critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
these species.
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, and considers the protections already afforded the 
species regardless of critical habitat designation. The baseline for 
this analysis is the state of regulation, absent designation of 
critical habitat, that provides protection to the species under the 
Act, as well as under other Federal, State, and local laws and 
conservation plans. The baseline includes sections 7, 9, and 10 of the 
Act to the extent that they are expected to apply absent the 
designation of critical habitat for the species. The analysis 
qualitatively describes how baseline conservation for the Comal Springs 
invertebrates is currently implemented across the proposed revised 
designation in order to provide context for the incremental analysis 
(Chapters 2 of the DEA).
    The ``with critical habitat'' scenario describes and monetizes the 
incremental impacts specifically due to designation of revised critical 
habitat for the species. The incremental conservation efforts and 
associated impacts are those not expected to occur absent the 
designation of critical habitat for these species. In other words, the 
incremental costs are those attributable solely to the designation of 
revised critical habitat, above and beyond the baseline costs; these 
are the costs we may consider in the final designation of critical 
habitat when evaluating the benefits of excluding particular areas 
under section 4(b)(2) of the Act. The analysis looks at baseline 
impacts incurred from the listing of the species and forecasts both 
baseline and incremental impacts likely to occur if we finalize the 
proposed revised critical habitat designation. For a further 
description of the methodology of the analysis, see Appendix B 
``Framework for Analysis,'' of the DEA.
    The DEA provides estimated costs of the foreseeable potential 
economic impacts of the proposed revised critical habitat designation 
for the Comal Springs dryopid beetle, Comal Springs riffle beetle, and 
Peck's cave amphipod over the next 20 years, which was determined to be 
the appropriate period for analysis because limited planning 
information is available for most activities to forecast activity 
levels for projects beyond a 20-year timeframe. It identifies potential 
incremental costs as a result of the proposed revised critical habitat 
designation; these are those costs attributed to critical habitat over 
and above those baseline costs attributed to listing.
    In the DEA, we concentrated on the activities of primary concern 
with respect to potential adverse modification of critical habitat. The 
key concerns are the potential for activities to result in changes to 
existing water flow regimes; the introduction or augmentation of 
nonnative species; and physical, biological, or chemical changes to 
current habitat conditions. Within these activity categories, we focus 
our analysis on those projects and activities that are considered 
reasonably likely to occur within the proposed revised critical habitat 
area. This includes projects or activities that are currently planned 
or proposed, or that permitting agencies or land managers indicate are 
likely to occur.
    When a species is federally listed as an endangered or threatened 
species, it receives protection under the Act. For example, under 
section 7 of the Act, Federal agencies must consult with the Service to 
ensure that actions they fund, authorize, or carry out do not 
jeopardize the continued existence of the species. Economic impacts of 
conservation measures undertaken to avoid jeopardy to the species are 
considered baseline impacts in our analysis, as they are not generated 
by the critical habitat designation. In other words, baseline 
conservation measures and associated economic impacts are not affected 
by decisions related to critical habitat designation for these species. 
Other baseline protections accorded listed species under the Act and 
other Federal and State regulations and programs are described in 
Chapter 2 of the DEA.
    The only Federal regulatory effect of the designation of critical 
habitat is the prohibition on Federal agencies taking actions that are 
likely to adversely modify critical habitat. They are not required to 
avoid or minimize effects unless the effects rise to the level of 
destruction or adverse modification as those terms are used in section 
7 of the Act. Even then, the Service must recommend reasonable and 
prudent alternatives that can be implemented consistent with the 
intended purpose of the action, that are within the scope of the 
Federal agency's legal authority and jurisdiction, and that are 
economically and technologically feasible. Thus, while the Service may 
recommend conservation measures, unless the action is likely to destroy 
or adversely modify critical habitat, implementation of recommended 
measures is voluntary and Federal agencies and applicants have 
discretion in how they carry out their section 7 mandates.
    Thus, the direct, incremental impacts of critical habitat 
designation stem from the consideration of the potential for 
destruction or adverse modification of critical habitat during section 
7 consultations. The two categories of direct, incremental impacts of 
critical habitat designation are: (1) The administrative costs of 
conducting section 7 consultation; and (2) implementation of any 
conservation efforts requested by the Service through section 7 
consultation, or required by section 7 to prevent the destruction or 
adverse modification of critical habitat.
    The DEA describes the types of project modifications currently 
recommended by the Service to avoid jeopardy to the Comal Springs 
invertebrates in proposed critical habitat (``baseline'' project 
modifications). These baseline project modifications would be 
recommended in occupied habitat areas regardless of whether critical 
habitat is designated for these species. Although the standards for 
jeopardy and adverse modification of critical habitat are not the same, 
because the degradation or loss of habitat is a key threat to the Comal 
Springs invertebrates, our jeopardy analyses for these species would 
already consider the potential for project modifications to avoid the 
destruction of habitat; therefore recommendations to avoid jeopardy 
would also likely avoid adverse modification or destruction of critical 
habitat for these species.
    The designation of critical habitat may, under certain 
circumstances, affect actions that do not have a Federal nexus and thus 
are not subject to the provisions of section 7 under the Act. Indirect 
impacts are those unintended changes in economic behavior that may 
occur outside of the Act that may occur through other Federal, State, 
or local actions, and that are caused by the designation of critical 
habitat. Appendix A of the DEA discusses the common types of indirect 
impacts that may be associated with the designation of critical 
habitat, such as time delays, regulatory uncertainty, and negative 
perceptions related to critical habitat designation on private 
property. These types of impacts are not always considered incremental. 
In the case that these types of conservation efforts and economic 
effects are expected to occur regardless of critical habitat 
designation, they are appropriately considered baseline impacts in this 
analysis.
    We do not anticipate recommending incremental conservation measures 
to

[[Page 25683]]

avoid adverse modification of critical habitat over and above those 
recommended to avoid jeopardy of these species. Therefore, incremental 
impacts of critical habitat designation are expected to be limited to 
the costs of additional administrative effort in section 7 
consultations to consider adverse modification, as described in Chapter 
2 of the DEA. Although we recognize that the standards for jeopardy and 
adverse modification of critical habitat are not the same, with the 
latter focusing more closely on effects to conservation of the species, 
in this case and for the reasons described above, the designation of 
critical habitat in occupied areas would likely result only in 
incremental effects over and above the costs associated with 
consultation due to the presence of the species. A number of factors 
limit the extent to which the proposed critical habitat designation 
will result in incremental costs, including the fact that all the 
proposed critical habitat is occupied by the species, the species' 
survival is so closely linked to the quality of their habitat, the 
species have limited ability to move beyond their immediate locations, 
few actions are carried out in the area that are subject to a Federal 
nexus, and a portion of the proposed habitat is currently managed for 
conservation.
    Quantified incremental impacts are limited to the administrative 
costs of section 7 consultation. The Service anticipates two 
consultations with the Department of Defense operations, and six 
consultations with the Army Corps of Engineers pertaining to several 
construction-related activities in the Comal Springs Unit and San 
Marcos Springs Unit that may require a section 404 permit over the next 
20 years. There are four existing HCPs that include these three Comal 
species and two pending HCPs that may include these three Comal species 
in which designation of critical habitat may trigger re-initiation of 
consultation on the issuance of incidental take permits for HCPs. Re-
initiation of intraservice section 7 consultation for existing HCPs is 
not automatic and would likely only occur when an incidental take 
permit holder seeks amendment of the incidental take permit. We can 
foresee no likely Federal activities in the future that would result in 
section 7 consultations caused by the designation of critical habitat 
beyond those that would occur due to the listing of the species. We 
anticipate no new project proponents or additional activities that 
would require consultation due to critical habitat designation. The 
Comal Springs invertebrates have been listed since 1997. It is unlikely 
that any additional entities will pursue HCPs as a result of this 
revised critical habitat designation.
    The aquatic habitat, in which the three Comal Springs invertebrates 
are found, also encompasses habitat for other species listed as 
endangered or threatened under the Act. San Marcos Springs currently 
has critical habitat designated for the fountain darter (Etheostoma 
fonticola), San Marcos salamander (Eurycea nana), and Texas wild-rice 
(Zizania texana). Comal Springs has critical habitat designated for the 
fountain darter.
    Some projects within the proposed revised critical habitat area for 
the Comal Springs invertebrate species have already incorporated 
conservation measures to avoid adversely affecting the critical habitat 
of the listed fountain darter, San Marcos salamander, and Texas wild-
rice. The Comal Springs invertebrate species, therefore, may benefit 
from the conservation efforts already in place for the fountain darter, 
San Marcos salamander, and Texas wild-rice.
    In addition, groundwater production from the Edwards Aquifer is 
regulated by the Edwards Aquifer Authority (EAA), a special groundwater 
district established by the State of Texas Edwards Aquifer Authority 
Act (hereafter, ``EAA-Act''). Under the EAA-Act, EAA is responsible for 
groundwater management in a jurisdictional area that spans 8,800 square 
miles across eight counties, including portions of Comal and Hays 
Counties. The EAA-Act also directs EAA to implement management 
practices that ensure the continuous minimum springflows of Comal 
Springs and San Marcos Springs to protect endangered and threatened 
species. The Service has developed minimum flow guidelines for the San 
Marcos salamander, Texas blind salamander, and Texas wild-rice, and 
fountain darter. These guidelines have been incorporated into the EAA's 
Demand Management/Critical Period Management Trigger Levels, which 
determine aquifer-wide pumping reductions necessary during periods of 
reduced springflow.
    The total projected incremental costs of administrative efforts 
resulting from section 7 consultations is approximately $14,000 for 
water use actions, over 20 years ($1,200 on an annualized basis), 
assuming a 7 percent discount rate, and $57,000 for other actions, over 
20 years ($5,000 on an annualized basis), assuming a 7 percent discount 
rate. The analysis estimates potential future administrative impacts 
based on the historical rate of consultation on co-occurring listed 
species in areas proposed as revised critical habitat as discussed 
Chapter 2 of the DEA.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule and our 
amended required determinations. We may revise the proposed rule or 
supporting documents to incorporate or address information we receive 
during the public comment period. In particular, we may exclude an area 
from critical habitat if we determine that the benefits of excluding 
the area outweigh the benefits of including the area, provided the 
exclusion will not result in the extinction of this species.

Required Determinations--Amended

    In our October 19, 2012, proposed rule (77 FR 64272), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders became available in the DEA. We have now 
made use of that data to make these determinations. In this document, 
we affirm the information in our proposed rule concerning Executive 
Orders (E.O.) 12866 and 13563 (Regulatory Planning and Review), E.O. 
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice 
Reform), E.O. 13211 (Energy Supply, Distribution, or Use), the Unfunded 
Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy 
Act (42 U.S.C. 4321 et seq.), and the President's memorandum of April 
29, 1994, ``Government-to-Government Relations with Native American 
Tribal Governments'' (59 FR 22951). However, based on the DEA data, we 
are amending our required determination concerning the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory

[[Page 25684]]

flexibility analysis is required if the head of the agency certifies 
the rule will not have a significant economic impact on a substantial 
number of small entities. The SBREFA amended the RFA to require Federal 
agencies to provide a certification statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. Based on our DEA of the 
proposed revised designation, we provide our analysis for determining 
whether the proposed rule would result in a significant economic impact 
on a substantial number of small entities. Based on comments we 
receive, we may revise this determination as part of our final 
rulemaking.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of revised critical 
habitat for the Comal Springs dryopid beetle, Comal Springs riffle 
beetle, and Peck's cave amphipod would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities, such as changes to 
existing flow regimes, introduction or augmentation of nonnative 
species, and physical, biological, or chemical changes to current 
habitat conditions. However, the SBREFA does not explicitly define 
``substantial number'' or ``significant economic impact.'' 
Consequently, to assess whether a ``substantial number'' of small 
entities is affected by this designation, this analysis considers the 
relative number of small entities likely to be impacted in an area. In 
some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the Comal 
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave 
amphipod are present, Federal agencies already are required to consult 
with us under section 7 of the Act on activities they authorize, fund, 
or carry out that may affect the species. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities (see Application 
of the ``Adverse Modification'' Standard section of the October 19, 
2012, proposed rule (77 FR 64272)).
    In the DEA, we evaluated the potential economic effects on small 
entities resulting from implementation of conservation actions related 
to the proposed designation of revised critical habitat for the Comal 
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave 
amphipod. Quantified incremental impacts that may be borne by small 
entities are limited to the administrative costs of section 7 
consultation related to actions that alter water quality and quantity 
(Appendix B of the DEA).
    We do not anticipate recommending incremental conservation measures 
to avoid adverse modification of critical habitat over and above those 
recommended to avoid jeopardy to the species, and as such, the economic 
analysis forecasts few incremental economic impacts as a result of the 
designation of revised critical habitat for these species. Those 
incremental impacts forecasted are solely related to administrative 
costs for adverse modification analyses in section 7 consultations. We 
forecast five formal section 7 consultations in the Comal Springs Unit 
and one formal section 7 consultation in the San Marcos Springs Unit 
relating to dam and retaining wall repair at Landa Lake and additional 
projects in the area surrounding Landa Lake that may require CWA 404 
permits from the Corps in the future, as residential development is 
expanding in the area and funding for development and maintenance 
projects has increased relative to past years during the 20-year 
timeframe of the analysis. Due to uncertainty about when consultation 
will occur, the costs of these consultations are distributed evenly 
throughout the period of analysis. Because no projects, with or without 
a Federal nexus, are known, we do not attribute any costs to future 
actions in the Hueco Springs Unit in Comal County or the Fern Bank 
Springs Unit in Hays County. Re-initiation of section 7 consultation 
with the Service could potentially occur in 2013, for the Hays County-
Regional Habitat Conservation Plan (RHCP), the Comal County RHCP, the 
South Edwards Plateau HCP, and the Cibolo Canyon Property HCP, as each 
of these HCPs manage activity within the Edwards Aquifer and thus may 
choose to consider impacts to critical habitat for all listed species 
within their designated plan areas. The costs of any potential 
reinitiated intra-Service Section 7 consultations resulting from 
voluntary changes to incidental take permits associated with the 
aforementioned HCPs are assumed to be distributed equally across the 
four proposed revised critical habitat units.
    The Department of Defense consultations are not expected to involve 
small entities. Reinitiated consultations related to incidental take 
permits are typically conducted by the Service alone, and thus may not 
require a third party. Although a third party such as the Edwards 
Aquifer Authority, Comal County, or Hays County could take part in 
potential reinitiated intra-Service Section 7 consultations resulting 
from voluntary changes to incidental take permits associated with the 
aforementioned HCPs, none of these entities are small entities. One 
consultation in San Marcos Springs is anticipated to involve the State 
of Texas as a third party. The State is not a small entity. Five 
miscellaneous consultations are anticipated in the Comal Springs Unit 
related to construction-related activities. The majority of these 
administrative costs are expected to be borne by Federal entities, but 
some costs would be borne by third parties participating in section 7 
consultations. These entities may include the City of New Braunfels 
(population of 59,600), as well as developers. The City of New 
Braunfels is not considered a small government, as its population 
exceeds 50,000. It is possible that up to five

[[Page 25685]]

developers could be included as third parties in these consultations. 
The total costs of these five actions together are estimated to be 
$1,900 to $2,100 annually, including Federal costs.
    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 E.O. regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable.
    In summary, we have considered whether the proposed revised 
designation would result in a significant economic impact on a 
substantial number of small entities. Information for this analysis was 
gathered from the Small Business Administration, stakeholders, and the 
Service. For the above reasons and based on currently available 
information, we certify that, if promulgated, the proposed revised 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Authors

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

Authority

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

    Dated: April 17, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-09895 Filed 5-1-13; 8:45 am]
BILLING CODE 4310-55-P