[Federal Register Volume 78, Number 131 (Tuesday, July 9, 2013)]
[Rules and Regulations]
[Pages 40970-40996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16230]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0004; 4500030113]
RIN 1018-AZ26


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Six West Texas Aquatic Invertebrates

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical 
habitat for the following six west Texas aquatic invertebrate species 
under the Endangered Species Act of 1973, as amended: Phantom 
springsnail (Pyrgulopsis texana), Phantom tryonia (Tryonia cheatumi), 
diminutive amphipod (Gammarus hyalleloides), Diamond tryonia 
(Pseudotryonia adamantina), Gonzales tryonia (Tryonia circumstriata), 
and Pecos amphipod (Gammarus pecos). The effect of this regulation is 
to conserve critical habitat for the six west Texas aquatic 
invertebrates under the Act.

DATES: This rule becomes effective August 8, 2013.

ADDRESSES: This final rule and other supplementary information are 
available on the Internet at http://www.regulations.gov (Docket No. 
FWS-R2-ES-2013-0004) and also at http://www.fws.gov/southwest/es/AustinTexas/. These documents are also available for public inspection, 
by appointment, during normal business hours at: U.S. Fish and Wildlife 
Service, Austin Ecological Services Field Office, 10711 Burnet Road, 
Suite 200, Austin, TX 78758; by telephone 512-490-0057; or by facsimile 
512-490-0974.
    The coordinates or plot points or both from which the critical 
habitat maps are generated are included in the administrative record 
for this critical habitat designation and are available on the internet 
at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0004, and 
from the Austin Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT). Any additional tools or supporting information 
that we developed for this critical habitat designation will also be 
available at the Fish and Wildlife Service Web site and Field Office 
set out above and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office (see 
ADDRESSES). 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

    This document consists of final rules to designate critical habitat 
designations for six west Texas aquatic invertebrate species. The 
species are: Phantom springsnail (Pyrgulopsis texana), Phantom tryonia 
(Tryonia cheatumi), diminutive amphipod (Gammarus hyalleloides), 
Diamond tryonia

[[Page 40971]]

(Pseudotryonia adamantina), Gonzales tryonia (Tryonia circumstriata), 
and Pecos amphipod (Gammarus pecos). The current range for the first 
three species is limited to spring outflows in the San Solomon Springs 
system near Balmorhea in Reeves and Jeff Davis Counties, Texas. The 
current range of the latter three species is restricted to spring 
outflow areas within the Diamond Y Spring system north of Fort Stockton 
in Pecos County, Texas.
    Why we need to publish a rule. Under the Endangered Species Act 
(Act), any species that is determined to be a threatened or endangered 
species requires critical habitat to be designated, to the maximum 
extent prudent and determinable. Designations and revisions of critical 
habitat can only be completed by issuing a rule.
    We, the U.S. Fish and Wildlife Service (Service), published final 
rules listing the six west Texas aquatic invertebrates as endangered 
elsewhere in today's Federal Register. On August 16, 2012, we published 
in the Federal Register a proposed critical habitat designation for 
these species (77 FR 49602). Section 4(b)(2) of the Act states that the 
Secretary shall designate critical habitat on the basis of the best 
available scientific data after taking into consideration the economic 
impact, the impact on national security, and any other relevant impact 
of specifying any particular area as critical habitat. The critical 
habitat areas we are designating in this rule constitute our current 
best assessment of the areas that meet the definition of critical 
habitat for these species.
    These rules will designate critical habitat for all six of these 
species listed as endangered under the Act. Under the Endangered 
Species Act, we designate specific areas as critical habitat to foster 
conservation of listed species. Future actions funded, permitted, or 
otherwise carried out by Federal agencies will be reviewed to ensure 
they do not adversely modify critical habitat. Critical habitat does 
not affect private actions on private lands. Table 1 identifies the 
areas in Texas being designated as critical habitat for Phantom 
springsnail, Phantom tryonia, and diminutive amphipod.

   Table 1--Location, Land Ownership, and Size of Areas Designated as
     Critical Habitat for Phantom Springsnail, Phantom Tryonia, and
                           Diminutive Amphipod
------------------------------------------------------------------------
                                                         Size of unit in
     Critical habitat unit      Land ownership by type      hectares
                                                             (Acres)
------------------------------------------------------------------------
San Solomon Spring, Reeves      State-Texas Parks and          1.8 (4.4)
 County.                         Wildlife Department.
Giffin Spring, Reeves County..  Private...............         0.7 (1.7)
East Sandia Spring, Reeves      Private-The Nature             1.2 (3.0)
 County.                         Conservancy.
Phantom Lake Spring, Jeff       Federal-Bureau of            0.02 (0.05)
 Davis County.                   Reclamation.
    Total.....................  ......................         3.7 (9.2)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    Table 2 identifies the areas in Texas being designated as critical 
habitat for Diamond tryonia, Gonzales tryonia, and Pecos amphipod.

   Table 2--Location, Land Ownership, and Size of Areas Designated as
    Critical Habitat for Diamond Tryonia, Gonzales Tryonia, and Pecos
                                Amphipod
------------------------------------------------------------------------
                                                         Size of unit in
     Critical habitat unit      Land ownership by type      hectares
                                                             (acres)
------------------------------------------------------------------------
Diamond Y Spring System, Pecos  Private--The Nature        178.6 (441.4)
 County.                         Conservancy.
    Total.....................  ......................     178.6 (441.4)
------------------------------------------------------------------------

    We prepared an economic analysis. To allow for consideration of the 
economic impacts of the final designations of critical habitat, we 
prepared an economic analysis of the final designations of critical 
habitat. We found the incremental administrative economic impacts 
related to consultations on the six West Texas invertebrates and their 
critical habitat are expected to amount to an estimated $41,000 over 20 
years ($3,600 on an annualized basis), assuming a discount rate of 
seven percent.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data, assumptions, and analyses. We received comments from four 
knowledgeable individuals with scientific expertise to review our 
technical assumptions, analysis, and whether or not we had used the 
best available information. These peer reviewers generally concurred 
with our methods and conclusions and provided additional information, 
clarifications, and suggestions to improve this final rule. Information 
we received from peer review is incorporated in this final revised 
designation. We also considered all comments and information received 
during two comment periods.

Previous Federal Actions

    Please see the proposed listing and critical habitat designations 
published on August 16, 2012 (77 FR 49602), for a complete discussion 
of the previous Federal actions for these species.
    We proposed all six species be listed as endangered with critical 
habitat on August 16, 2012 (77 FR 49602). We also reopened the public 
comment on the proposed rules on February 5, 2013 (78 FR 8096).

Summary of Comments and Recommendations

    In the proposed rules published on August 16, 2012 (77 FR 49602), 
we requested that all interested parties submit written comments on the 
proposals by October 15, 2012. We also contacted appropriate Federal 
and State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on

[[Page 40972]]

the proposal. We reopened the comment period on February 5, 2013 (78 FR 
8096), for these proposed rules and to accept additional public comment 
on the draft economic analysis for the proposed designation of critical 
habitat. This second comment period closed on March 22, 2013. We 
received a request for a public hearing, and one was held on February 
22, 2013, at Balmorhea State Park in Toyahvale, Texas. Newspaper 
notices inviting general public comment were published in the Alpine 
Avalanche and Fort Stockton Pioneer newspapers on February 14, 2013.
    During the comment period for the proposed rule, we received 27 
comments addressing the proposed listing and critical habitat for the 
west Texas invertebrates. During the February 22, 2013, public hearing, 
one individual made a comment on the proposed rules. All substantive 
information provided during the comment periods has either been 
incorporated directly into our final determinations or addressed below 
in our response to comments. Elsewhere in today's Federal Register, we 
have published a final rule that addresses additional comments on the 
listing determination for these species.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from five knowledgeable 
individuals with scientific expertise that included familiarity with 
the species or their habitats, biological needs, and threats. We 
received comments from four peer reviewers. The peer reviewers 
generally concurred with our methods and conclusions and provided 
additional information, clarifications, and suggestions to improve the 
final rule. Information received from peer reviewers has been 
incorporated into our final rules, and comments are addressed in our 
response to comments below.
    (1) Comment: The common (or vernacular) names applied to the four 
species of snails are not in accord with the ``standardized'' English 
names for North American mollusks as provided in Turgeon et al. (1988, 
1998).
    Our Response: We agree and have revised the common names of the 
four snails throughout the final rules. See ``Summary of Changes from 
Proposed Rule'' sections of the final rules for a list of the changes 
to the common names.

State Agencies

    We received a number of comments from Texas State agencies, 
including the Texas Governor's Office, the Texas Parks and Wildlife 
Department, the Texas Comptroller's Office, the Texas Water Development 
Board, the Texas Commission on Environmental Quality, the Texas Land 
Commission, and the Texas Department of Agriculture.
    (2) Comment: The Texas Parks and Wildlife Department, while 
indicating they strongly encourage the use of incentive-based 
conservation programs for private land stewardship in Texas, indicated 
they had no additional information beyond what we referenced in the 
proposed rule and agreed that the most significant threat to the 
species' continued survival is the potential failure of spring flow due 
to unmanaged groundwater pumping thresholds, which do not consider 
surface flow and wildlife needs, and prolonged drought.
    Our Response: We concur with the comments and information provided.
    (3) Comment: The Texas Governor's office was concerned that our 
proposal is largely based on conflicting reports, inconclusive data, 
hypothetical scenarios, various assumptions and vast speculation about 
species populations, water quantity and quality, the effect of existing 
regulatory mechanisms and other potential threats. Such information 
fails to provide any sound scientific foundation on which to justify 
the listing and critical habitat designation of these species.
    Our Response: Under the standards of the Act, we are to base our 
determinations of species status on the best available scientific 
information. Oftentimes, scientific data are limited, studies are 
conflicting, or results are seemingly inconclusive. Our review of the 
best available scientific information, including both published 
publications and unpublished scientific reports, supports our 
determinations that these species meet the definition of endangered 
species under the Act. As such we are finalizing critical habitat 
designations for these species as well.
    (4) Comment: One State agency and others commented that the areas 
proposed to be designated as critical habitat are already under Federal 
protection due to the presence of other listed species and private 
conservation protection by The Nature Conservancy; therefore, no 
additional restrictions on those areas are warranted.
    Our Response: It is true that all of the areas where these six 
species occur are inhabited by other species already protected under 
the Act, and these listed species provide some ancillary conservation 
to the invertebrate species. However, the presence of other listed 
species has not abated the primary threat to these species from the 
loss of habitat due to declining spring flows. The Nature Conservancy 
does provide significant conservation efforts for the surface habitat 
of these species at Diamond Y Preserve and Sandia Springs Preserve, 
however, the conservation of the lands around the springs does not 
alleviate the threats related to groundwater and spring flow 
maintenance for the aquatic habitats upon which the species depend. In 
addition, the Act requires us to designate critical habitat for listed 
species if it is prudent and determinable, regardless of whether there 
are other species already protected in an area. We found that critical 
habitat is prudent and determinable for these species.
    (5) Comment: A State agency commented that the use of different 
discount rates over the same time period should result in a range of 
estimated costs of critical habitat designation. The commenter notes 
that the costs presented at discount rates of seven and three percent 
in Exhibit 2-4 on page 2-10 of the Draft Economic Analysis were almost 
identical. Because of this, the commenter was unable to replicate the 
estimate costs from the information presented.
    Our Response: The range of estimated costs presented in Exhibit 2-4 
on page 2-10 of the Draft Economic Analysis was rounded to one 
significant digit, as stated in the notes to Exhibit 2-4. As a result, 
estimated costs discounted at a three percent discount rate appear to 
be similar to the estimated costs discounted at a seven percent 
discount rate. In the Final Economic Analysis, estimated costs are 
rounded to two significant figures to provide further clarity.
    (6) Comment: Two State agencies and a number of others were 
concerned about the impacts of listing these species and designating 
critical habitat on private property rights, oil and gas development, 
and agricultural activities.
    Our Response: Although the Act does not allow us to consider the 
economic impacts of our listing decisions, we did consider the 
potential economic impacts regarding the designation of critical 
habitat. Critical habitat only directly affects actions funded, 
permitted, or carried out by a Federal agency, and very limited Federal 
activities could affect the habitat in these areas. As a result, we 
found only extremely small potential indirect effects from the proposed 
designation of critical habitat. For critical habitat, our economic 
analysis found the incremental administrative economic impacts related 
to consultations on the critical habitat of the six west Texas

[[Page 40973]]

invertebrates are expected to amount to an estimated $41,000 over 20 
years ($3,600 on an annualized basis), assuming a discount rate of 
seven percent.
    In addition, at this time we do not anticipate noticeable impacts 
to private property rights, oil and gas development, or agricultural 
activities from either the listing or the designation of critical 
habitat for these species. Other listed species have been in these 
areas for more than 30 years with very few, if any, conflicts with 
economic development. However, if future conflicts arise we will work 
closely with the potentially affected parties to find cooperative 
solutions for conservation of these species while striving to minimize 
potential effects on economic activities.

Federal Agencies

    (7) Comment: The Federal landowner of the area around Phantom Lake 
Spring we consider withdrawing the proposed critical habitat at Phantom 
in favor of a conservation agreement and strategy to implement a 
management plan for the species.
    Our Response: The only opportunity for withdrawing the area around 
Phantom Lake Spring from critical habitat would be if we were to 
exclude the area under section 4(b)(2) of the Act. The Secretary of 
Interior has discretion to exclude proposed areas from critical habitat 
if she finds the benefits of excluding the area outweigh the benefits 
of including the area. Critical habitat most clearly adds conservation 
benefits in cases where there is a Federal action subject to a section 
7 consultation. This is always the case on Federal lands. Federal 
agencies have an independent obligation under section 7(a)(2) of the 
Act to avoid jeopardy to listed species and avoid adverse modification 
of their critical habitat providing potential benefits to the species. 
In addition, we expect that ongoing conservation efforts in this area 
will continue with or without critical habitat designation thereby 
suggesting limited benefits of excluding the area from critical 
habitat. Furthermore, a conservation agreement or updated management 
plan was not produced for us to consider a possible exclusion of this 
area. Therefore, we considered, but chose not to exclude Federal lands 
at Phantom Lake Spring from the final designation of critical habitat.

Other Public Comments

    (8) Comment: One commenter expressed several concerns that we did 
not demonstrate the required determinations for the critical habitat 
designation at Diamond Y Spring. For example, the commenter stated that 
the designation of critical habitat is not prudent because there are no 
benefits to the species. Also, the entire proposed critical habitat 
area does not contain the primary constituent elements, and we did not 
show that they require special management. Finally, the commenter 
questioned whether the occurrence of the species is consistent with the 
proposed designation of more than 440 acres at Diamond Y Spring. For 
example, the proposal says the Diamond Y Spring snail (now called 
Diamond tryonia) is limited to the first 50 m of the outflow channel.
    Our Response: We provided our assessments of prudency and 
determinability of the critical habitat designations in both the 
proposed and final rules. Critical habitat designation is prudent 
because it provides some limited benefits to the species. Specific 
benefits include: (1) Triggering consultations under section 7 of the 
Act; (2) focusing conservation activities; (3) providing educational 
benefits; and (4) preventing inadvertent harm to the species. While we 
realize these benefits are limited due to lack of Federal activities in 
the area and the existing knowledge about and conservation efforts for 
the species, we make a prudent finding if designation would result in 
any benefits to the species. We found some benefits to the species from 
critical habitat under the three reasons listed above.
    The Diamond Y Spring unit contains the physical and biological 
features of critical habitat and is within the geographical area 
occupied by all three Diamond Y species. The critical habitat 
boundaries of this unit were extended laterally beyond the mapped 
spring outflow channels to incorporate any and all small springs and 
seeps that may not be mapped or surveyed but would contain the physical 
or biological features of critical habitat. This situation is different 
than the other critical habitat units designated within this rule for 
the San Solomon Spring species. Those habitats are well-defined and 
exclusively contained within the confined spring outflow channels. At 
Diamond Y Spring, in contrast, the spring outlets are more diffuse and 
can be dependent on climatic conditions where surface water may expand 
during wetter periods with higher groundwater levels. Under these 
conditions, the occupied habitat containing the physical and biological 
features is present outside of the defined spring outflow channels. The 
physical and biological features related to the water and physical 
environment of the springs require management (such as managing 
groundwater pumping, preventing contamination, preventing alterations 
to spring channels) to ensure the habitat continues to support the 
species.
    Although we did closely define the confirmed distribution of the 
species primarily to the spring outflows, we recognize that this 
distribution information is based on limited data and the species may 
also occur in small spring seeps, some of which may not be mapped or 
surveyed but occur within the lateral areas included within the Diamond 
Y Spring critical habitat unit.
    (9) Comment: The proposed critical habitat rule indicated there 
were no ``developed areas'' within the Diamond Y Spring critical 
habitat unit. However, there are existing oil and gas operations within 
the proposed area that should be considered developed areas and not 
included in the critical habitat designation.
    Our Response: We concur and have revised the final rule to mention 
that developed areas, such as those used by existing oil and gas 
operations (e.g., roads and well pad sites) do not contain the physical 
and biological features and, therefore, are not considered critical 
habitat even though they may occur within the critical habitat unit 
boundaries.

Summary of Changes From Proposed Rule

    One important change we made in these final rules is the revision 
to the common names of the four species of snails to conform to 
scientifically accepted nomenclature (Turgeon et al. 1998, pp. 75-76). 
These changes were suggested by a peer reviewer of the proposed rule. 
Table 1 lists the names used in the proposed rules and the revised 
names used in the final rules. We have used the revised names of all 
the snails throughout these final rules. No changes were made to the 
scientific names.

[[Page 40974]]



   Table 3--Revised Common Names for the Six West Texas Invertebrates
------------------------------------------------------------------------
                               Common name used in   Revised common name
       Scientific name           proposed rules      used in final rules
------------------------------------------------------------------------
Pyrgulopsis texana..........  Phantom Cave snail..  Phantom springsnail.
Tryonia cheatumi............  Phantom springsnail.  Phantom tryonia.
Gammarus hyalleloides.......  diminutive amphipod.  No change.
Pseudotryonia adamantina....  Diamond Y Spring      Diamond tryonia.
                               snail.
Tryonia circumstriata.......  Gonzales springsnail  Gonzales tryonia.
Gammarus pecos..............  Pecos amphipod......  No change.
------------------------------------------------------------------------

    Other minor changes were made in the SUPPLEMENTARY INFORMATION 
section of these final rules to correct and update discussions of 
issues raised by peer and public commenters. No changes were made to 
the 50 CFR part 17 section of the rules.

Species Background

    We intend to discuss below only those topics directly relevant to 
the critical habitat designation for the six west Texas aquatic 
invertebrates. Additional background information on the biology and 
ecology of these species can be found in the final rule listing these 
species as endangered available at http://www.regulations.gov, Docket 
No. FWS-R2-ES-2012-0029.

Critical Habitat

Prudency Determination

    Section 4 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 species or a threatened 
species. Our regulations at 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 activity and the identification of critical habitat can be 
expected to increase the degree of threat to the species; or (2) the 
designation of critical habitat would not be beneficial to the species.
    We have no indication that the six species of west Texas 
invertebrates are threatened by collection, and the degree of threats 
to the species are not likely to increase if critical habitat were 
designated. These species are not targets of collection, and the areas 
identified for designation either have restricted public access or are 
already readily open to the public (i.e., Balmorhea State Park). None 
of the threats identified to the species are associated with human 
access to the sites, with the possible exception of the potential for 
introducing nonnative species at San Solomon Spring in Balmorhea State 
Park. This threat, or any other identified threat, is not expected to 
increase as a result of critical habitat designation because the San 
Solomon Spring swimming pool is already heavily visited, Balmorhea 
State Park takes proactive measures to prevent introduction of 
nonnative species, and the designation of critical habitat will not 
change the situation.
    In the absence of finding that the designation of critical habitat 
would increase threats to a species, if any benefits would result from 
critical habitat designation, then a prudent finding is warranted. The 
potential benefits of critical habitat to the six west Texas 
invertebrates 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, Federal 
agencies were not aware of the potential impacts of an action on the 
species; (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 any of the six species and may provide 
some measure of benefit, we find that designation of critical habitat 
is prudent for the Phantom springsnail, Phantom tryonia, diminutive 
amphipod, Diamond tryonia, Gonzales tryonia, and Pecos amphipod.

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 
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 geographic area occupied by the species at the time it 
was listed are

[[Page 40975]]

included in a critical habitat designation if they contain physical or 
biological features (1) which are essential to the conservation of the 
species and (2) which may require special management considerations or 
protection. For these areas, critical habitat designations identify, to 
the extent known using the best scientific and commercial data 
available, those physical or biological features that are essential to 
the conservation of the species (such as space, food, cover, and 
protected habitat). In identifying those physical and biological 
features within an area, we focus on the principal biological or 
physical constituent elements (primary constituent elements such as 
roost sites, nesting grounds, seasonal wetlands, water quality, tide, 
soil type) that are essential to the conservation of the species. 
Primary constituent elements are the elements of physical or biological 
features that, when laid out in the appropriate quantity and spatial 
arrangement to provide for a species' life-history processes, are 
essential to the conservation of the species.
    Under the 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. 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) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available at the time 
of these planning efforts calls for a different outcome.

Physical or Biological Features

    In accordance with sections 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 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 Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales 
tryonia, diminutive amphipod, and Pecos amphipod from studies of the 
species' habitat, ecology, and life history as described below. We have 
determined that the following physical or biological features are 
essential for the Phantom springsnail, Phantom tryonia, Diamond 
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod.
Space for Individual and Population Growth and for Normal Behavior
    The aquatic environment associated with spring outflow channels and 
marshes provide the habitat for Phantom springsnail, Phantom tryonia, 
Diamond tryonia, Gonzales tryonia, diminutive amphipod, and Pecos 
amphipod growth and normal behavior. The areas must contain permanent 
flowing water to provide for the biological needs of the species. Each 
of the species completes all of their life-history functions in the 
water and cannot exist for any time outside of the aquatic environment.
    Several habitat parameters of springs, such as temperature, 
dissolved carbon dioxide, dissolved oxygen, conductivity, substrate 
type, and water depth have been shown to influence the distribution and 
abundance of other related species of springsnails (O'Brien and Blinn 
1999, pp. 231-232; Mladenka and Minshall 2001, pp. 209-211; Malcom et 
al. 2005, p. 75; Martinez and Thome 2006, pp. 12-15; Lysne et al. 2007, 
p. 650). Dissolved salts such as calcium carbonate may also be 
important factors because they are essential for shell formation for 
the snails (Pennak 1989, p. 552). Salinity levels are also relevant, 
particularly at Diamond Y Spring because elevated salinity levels (3 to 
6 parts per thousand (Hubbs 2001, p. 314) of dissolved salts) may 
prevent other more freshwater-

[[Page 40976]]

adapted species from competing with the native species adapted to 
higher salinity levels.
    The six invertebrates inhabit springs and spring-fed aquatic 
habitats with low variability in water temperatures. For example, Hubbs 
(2001, pp. 311-312, 314-315) reported that the spring outflow 
temperatures had very low variability with average readings of 20 
degrees Celsius ([deg]C) (68 degrees Fahrenheit ([deg]F)) at Diamond Y 
Spring and 19 [deg]C (66 [deg]F) at East Sandia Spring with a range 
between 11 and 25 [deg]C (52 to 77[emsp14][deg]F). Spring measurements 
from 2001 to 2003 at the four springs in the San Solomon Spring complex 
found water temperatures ranging from 17 to 27 [deg]C (63 to 
81[emsp14][deg]F) (Texas Water Development Board 2005, p. 38). 
Proximity to spring vents, where water emerges from the ground, plays a 
key role in the life history of the six west Texas aquatic 
invertebrates. For example, many springsnail species exhibit decreased 
abundance farther away from spring vents, presumably due to their need 
for stable water chemistry (Hershler 1994, p. 68; Hershler 1998, p. 11; 
Hershler and Sada 2002, p. 256; Martinez and Thome 2006, p. 14).
    The six west Texas aquatic invertebrates are sensitive to water 
contamination. Hydrobiid snails as a group are considered sensitive to 
water quality changes, and each species is usually found within 
relatively narrow habitat parameters (Sada 2008, p. 59). Taylor (1985, 
p. 15) suggested that an unidentified groundwater pollutant may have 
been responsible for reductions in abundance of Diamond tryonia in the 
headspring and outflow of Diamond Y Spring, although no follow-up 
studies have been conducted to investigate the presumption. 
Additionally, amphipods generally do not tolerate habitat desiccation 
(drying), standing water, sedimentation, or other adverse environmental 
conditions; they are considered very sensitive to habitat degradation 
(Covich and Thorpe 1991, pp. 676-677).
    All six species are most commonly found in flowing water, 
presumably where dissolved oxygen levels are higher. The species are 
often found in moderate flowing water along the spring outflow margins 
rather than in central channels. Water depths where the species occur 
are generally very shallow, usually less than 1 m (3 ft) deep. An 
exception to this is the bottom of the San Solomon Spring pool where, 
because of the construction of the swimming pool, water depths are much 
greater, exceeding 5 m (15 ft). In San Solomon, Giffin, and Phantom 
Lake Springs, the habitats for the species are limited to the spring 
outflow channels because past alteration of the system (building of 
ditches) has eliminated any small spring openings. However, at Diamond 
Y Spring (and to a limited extent, East Sandia Spring) the spring 
outflows have not been severely modified so that small springs, seeps, 
and marshes still provide diffuse shallow flowing water habitat 
associated with emergent bulrush and saltgrass (Taylor 1987, p. 38; 
Echelle et al. 2001, p. 5). While these areas are more difficult to 
map, measure, and survey, these small springs and seeps are important 
habitat for the three invertebrate species at Diamond Y Spring as long 
as they provide flowing water.
    Therefore, based on the information above, we identify permanent, 
flowing, unpolluted water (free from contamination) within natural 
temperature variations, emerging from the ground and flowing on the 
surface, to be a physical or biological feature necessary for these 
species.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Invertebrates in small spring ecosystems depend on food from two 
sources: that which grows in or on the substrate (aquatic and attached 
plants and algae) and that which falls or is blown into the system 
(primarily leaves). Water is also the medium necessary to provide the 
algae, detritus (dead or partially decayed plant materials or animals), 
bacteria, and submergent vegetation on which all six species depend as 
a food resource. Abundant sunlight is necessary to promote the growth 
of algae upon which all six west Texas aquatic invertebrates feed.
    All four snails are presumably fine-particle feeders on detritus 
(organic material from decomposing organisms) and periphyton (mixture 
of algae and other microbes attached to submerged surfaces) associated 
with the substrates (mud, rocks, and vegetation) (Allan 1995, p. 83; 
Hershler and Sada 2002, p. 256; Lysne et al. 2007, p. 649). Dundee and 
Dundee (1969, p. 207) found diatoms (a group of single-celled algae) to 
be the primary component in the digestive tract of the Phantom 
springsnail and Phantom tryonia, indicating diatoms are a primary food 
source. Spring ecosystems occupied by these snail species must support 
the periphyton upon which springsnails graze. Additionally, submergent 
vegetation contributes the necessary nutrients, detritus, and bacteria 
on which these species forage.
    Amphipods are omnivorous, feeding on algae, submergent vegetation, 
and decaying organic matter (Smith 2001, p. 572). Both species of 
amphipod are often found in beds of submerged aquatic plants (Cole 
1976, p. 80), indicating that they probably feed on a surface film of 
algae, diatoms, bacteria, and fungi (Smith 2001, p. 572). Young 
amphipods depend on microbial foods, such as algae and bacteria, 
associated with aquatic plants (Covich and Thorp 1991, p. 677).
    Therefore, based on the information above, we identify the presence 
of abundant food, consisting of algae, bacteria, decaying organic 
material, and submergent vegetation that contributes the necessary 
nutrients, detritus, and bacteria on which these species forage to be a 
physical or biological feature for these species.
Sites for Cover or Shelter and for Breeding, Reproduction, or Rearing 
(or Development) of Offspring
    The six west Texas aquatic invertebrates occur across a wide range 
of substrate types. The Phantom springsnail is most commonly attached 
to hard surfaces, especially large algae-covered rocks, submerged 
vegetation, or even concrete walls of the irrigation ditches, and found 
in areas of higher water velocities (Bradstreet 2011, pp. 73, 91). The 
other springsnails may also be attached to hard surfaces but will also 
often be found in the softer substrate at the margins of the stream 
flows. Suitable substrates for egg laying by the snails are typically 
firm, characterized by cobble, gravel, sand, woody debris, and aquatic 
vegetation. These substrates increase productivity by providing 
suitable egg-laying sites for the snails.
    The amphipods, in the absence of predatory fishes, will swim over 
any open substrate on the channel bottom, but in circumstances where 
fishes are abundant they may be found in greater abundance underneath 
large rocks, embedded in gravels, or associated with submerged 
vegetation. Amphipods do not lay eggs upon a surface; instead, the eggs 
are held within a marsupium (brood pouch) within the female's 
exoskeleton.
    Therefore, based on the information above, we identify substrates 
that include cobble, gravel, pebble, sand, silt, and aquatic 
vegetation, for breeding, egg laying, maturing, feeding, and escape 
from predators to be a physical or biological feature for these 
species.

[[Page 40977]]

Habitats Protected from Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species
    The Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales 
tryonia, diminutive amphipod, and Pecos amphipod have a very restricted 
geographic distribution. Endemic species whose populations exhibit a 
high degree of isolation are extremely susceptible to extinction from 
both random and nonrandom catastrophic natural or human-caused events. 
Therefore, it is essential to maintain the spring systems in which they 
are currently found and upon which these species depend. Adequate 
spring sites, free of inappropriate disturbance, must exist to promote 
population expansion and viability. This means protection from 
disturbance caused by water depletion, water contamination, springhead 
alteration, or nonnative species. These species must, at a minimum, 
sustain their current distributions if ecological representation of 
these species is to be ensured.
    As discussed in the final listing rule, introduced species are a 
moderate threat to native aquatic species (Williams et al. 1989, p. 18; 
Lodge et al. 2000, p. 7), including the six west Texas aquatic 
invertebrates. The red-rim melania already competes with all six 
species where they occur, and the quilted melania has been introduced 
into habitats occupied by the San Solomon Spring species. Feral hogs 
cause local spring channel destruction within the Diamond Y Spring 
system. Because the distribution of the Phantom springsnail, Phantom 
tryonia, Diamond tryonia, Gonzales tryonia, diminutive amphipod, and 
Pecos amphipod is so limited, and their habitat so restricted, 
introduction of additional nonnative species into their habitat could 
be devastating.
    Therefore, based on the information above, we identify either an 
absence of nonnative predators and competitors or nonnative predators 
and competitors at low population levels to be a physical or biological 
feature necessary for these species.

Primary Constituent Elements

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Phantom springsnail, Phantom tryonia, Diamond 
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod 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 Phantom springsnail, Phantom tryonia, 
diminutive amphipod, Diamond tryonia, Gonzales tryonia, and Pecos 
amphipod are springs and spring-fed aquatic systems that contain:
    a. Permanent, flowing, unpolluted water (free from contamination) 
emerging from the ground and flowing on the surface;
    b. Water temperatures that vary between 11 and 27 [deg]C (52 to 81 
[deg]F) with natural seasonal and diurnal variations slightly above and 
below that range;
    c. Substrates that include cobble, gravel, pebble, sand, silt, and 
aquatic vegetation, for breeding, egg laying, maturing, feeding, and 
escape from predators;
    d. Abundant food, consisting of algae, bacteria, decaying organic 
material, and submergent vegetation that contributes the necessary 
nutrients, detritus, and bacteria on which these species forage; and
    e. Either an absence of nonnative predators and competitors or 
nonnative predators and competitors at low population levels.
    With this designation of critical habitat, we intend to identify 
the physical or biological features essential to the conservation of 
the species, through the identification of the appropriate quantity and 
spatial arrangement of the primary constituent elements sufficient to 
support the life-history processes of the species. All units and 
subunits designated as critical habitat are currently occupied by the 
Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales 
tryonia, diminutive amphipod, and Pecos amphipod and contain the 
primary constituent elements sufficient to support the life history 
needs of the species.

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 that are essential to the conservation of the 
species and which may require special management considerations or 
protection. The features essential to the conservation of the Phantom 
springsnail, Phantom tryonia, Diamond tryonia, Gonzales tryonia, 
diminutive amphipod, and Pecos amphipod may require special management 
considerations or protection to reduce threats, such as reducing or 
eliminating water in suitable or occupied habitat through drought or 
groundwater pumping; introducing pollutants to levels unsuitable for 
the species; and introducing nonnative species into the inhabited 
spring systems such that suitable habitat is reduced or eliminated. 
Special management considerations or protection are required within 
critical habitat areas to address these threats (for more information 
on the threats see Summary of Factors Affecting the Species in the 
final listing rules available at http://www.regulations.gov, Docket No. 
FWS-R2-ES-2012-0029). Management activities that could ameliorate these 
threats include management of groundwater levels to ensure the springs 
remain flowing (all spring sites), managing oil and gas activities to 
eliminate the threat of groundwater or surface water contamination 
(Diamond Y Spring), maintaining the pump within Phantom Lake Spring to 
ensure consistent flow, managing existing nonnative species, red-rim 
melania, quilted melania, and feral hogs (San Solomon, Giffin, Phantom 
Lake, and Diamond Y Springs), and preventing the introduction of 
additional nonnative species (all spring sites).

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 not designating any areas outside the geographic area occupied by 
the species because none of the historically occupied areas (or those 
that may have been occupied) was found to be essential for the 
conservation of the species (see discussion below).
    We relied on information from knowledgeable biologists and 
recommendations contained in state wildlife resource reports (Dundee 
and Dundee 1969, entire; Cole and Bousfield 1970, entire; Cole 1976, 
entire; Cole 1985, entire; Taylor 1985, entire; Henry

[[Page 40978]]

1992, entire; Bowles and Arsuffi 1993, entire; Seidel et al. 2009, 
entire; Hershler et al. 2010, entire; Ladd 2010, entire; Allan 2011, 
entire; Bradstreet 2011, entire; Hershler 2011, p. 1) in making this 
determination. We also reviewed the available literature pertaining to 
habitat requirements, historic localities, and current localities for 
these species. This includes regional geographic information system 
(GIS) coverages.
Areas Occupied at the Time of Listing
    For the purpose of designating critical habitat for the Phantom 
springsnail, Phantom tryonia, Diamond tryonia, Gonzales tryonia, 
diminutive amphipod, and Pecos amphipod, we defined the occupied area 
based on the most recent surveys available, which includes the Diamond 
Y and San Solomon Spring systems. We then evaluated whether these areas 
contain the primary constituent elements for the species and whether 
they require special management considerations or protection. Next we 
considered areas historically occupied, but not currently occupied. 
While the west Texas aquatic invertebrates may have inhabited other 
springs in the area (such as Saragosa and Toyah Springs, for the San 
Solomon Spring species, and Leon and Comanche Springs for the Diamond Y 
Spring species), we only have confirmation that the Diamond tryonia and 
Gonzales tryonia occurred in Comanche Spring at some point in the past. 
We evaluated these areas to determine whether they were essential for 
the conservation of the species.
    To determine if currently occupied areas contain the primary 
constituent elements, we assessed the life-history components of the 
species as they relate to habitat. All of the west Texas aquatic 
invertebrate species require unpolluted spring water in the springheads 
and spring outflows; periphyton and decaying organic material for food; 
a combination of soft and hard substrates for maturation, feeding, egg 
laying by snails, and escape from predators; and absence of nonnative 
predators and competitors (see discussion on Physical or Biological 
Features).
Areas Unoccupied at the Time of Listing
    To determine if the sites that may have been historically occupied 
by the Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales 
tryonia, diminutive amphipod, and Pecos amphipod are essential for 
their conservation, we considered: (1) The importance of the site to 
the overall status of the species to prevent extinction and contribute 
to future recovery of each species; (2) whether the area could be 
restored to contain the necessary physical or biological features to 
support the species; and (3) whether a population of the species could 
be reestablished at the site.
    The Phantom springsnail, Phantom tryonia, and diminutive amphipod 
occur in the San Solomon Spring system, which includes San Solomon 
Spring, Giffin Spring, East Sandia Spring, and Phantom Spring. These 
species may have occurred in other springs within the system, including 
Saragosa, Toyah, and West Sandia Springs. These springs now lack water 
flow and the physical or biological features necessary to support the 
San Solomon Spring system invertebrates--mainly the lack of flowing 
water. We do not foresee these features being restorable to the point 
where populations of the Phantom springsnail, Phantom tryonia, and 
diminutive amphipod could be reestablished. These springs are not 
restorable because we do not foresee an opportunity for groundwater 
levels to rise sufficiently in the future to restore permanent spring 
flows because the supporting aquifers are of ancient origin and do not 
receive substantial modern recharge. Therefore, even if current pumping 
activities were to be managed for the benefit of spring flows, it is 
doubtful that aquifer levels would rise sufficiently to provide 
restoration of permanent aquatic habitat at these sites. For these 
reasons, we are not designating Saragosa Spring, Toyah Spring, or West 
Sandia Spring or any other unoccupied areas as critical habitat for the 
San Solomon Spring system invertebrates.
    The Diamond tryonia, Gonzales tryonia, and Pecos amphipod occur in 
the Diamond Y Spring system. The Diamond tryonia and Gonzales tryonia 
historically occurred at Comanche Spring, and the Pecos amphipod may 
have occurred there as well. All three species may have occurred at 
Leon Spring. Both Comanche Spring and Leon Spring, which have aquifer 
sources that may be different or more localized than that of Diamond Y 
Spring, are dry or nearly so and have been altered to such a degree 
that they no longer contain the physical or biological features 
necessary to support the Diamond Y Spring invertebrates--mainly the 
lack of flowing water. Natural flow conditions from these springs do 
not appear to be restorable to the point where populations of the 
Diamond tryonia, Gonzales tryonia, and Pecos amphipod could be 
reestablished. For these reasons, we are not designating Leon Spring or 
Comanche Spring as critical habitat for the Diamond Y Spring 
invertebrates.
Mapping
    For the areas we are designating as critical habitat, we plotted 
the known occurrences of the Phantom springsnail, Phantom tryonia, 
Diamond tryonia, Gonzales tryonia, diminutive amphipod, and Pecos 
amphipod in springheads and spring outflows on 2010 aerial photography 
from U.S. Department of Agriculture, National Agriculture Imagery 
Program base maps using ArcMap (Environmental Systems Research 
Institute, Inc.), a computer geographic information system (GIS) 
program. We drew the boundaries around the water features that make up 
the critical habitat in each area. Other than at San Solomon Spring and 
some well pads at Diamond Y Spring, no known developed areas such as 
buildings, paved areas, and other structures that lack the physical or 
biological features for the springsnail are within the critical habitat 
areas.
    When determining critical habitat boundaries, we intended to avoid 
including developed areas such as lands covered by buildings, pavement, 
and other structures including oil and gas well pads because such lands 
lack physical or biological features for the species. 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 within Balmorhea State Park at San Solomon Spring or at Diamond Y 
Spring. Any such lands left inside critical habitat boundaries shown on 
the maps of these rules (such as the asphalt and concrete-paved dry 
surfaces in Balmorhea State Park or oil and gas well pads at Diamond Y 
Spring) have been excluded by text in these final rules and are not 
designated as critical habitat. Therefore, 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.
Summary
    We are designating critical habitat lands that we have determined 
are occupied at the time of listing and contain sufficient elements of 
physical or biological features to support life-history processes 
essential for the conservation of the species. Critical habitat units 
are designated based on sufficient elements of physical or biological 
features being present to

[[Page 40979]]

support the Phantom springsnail, Phantom tryonia, Diamond tryonia, 
Gonzales tryonia, diminutive amphipod, and Pecos amphipod life-history 
processes. Some units contain all of the identified elements of 
physical or biological features and support multiple life-history 
processes. Some segments contain only some elements of the physical or 
biological features necessary to support the Phantom springsnail, 
Phantom tryonia, Diamond tryonia, Gonzales tryonia, diminutive 
amphipod, and Pecos amphipod particular use of that habitat.

Critical Habitat Designation

    We are designating four areas as critical habitat for the Phantom 
springsnail, Phantom tryonia, and diminutive amphipod. We are 
designating one area as critical habitat for the Diamond tryonia, 
Gonzales tryonia, and Pecos amphipod. The critical habitat areas we 
describe below constitute our current best assessment of areas that 
meet the definition of critical habitat for the species. The five areas 
we are designating as critical habitat are: (1) San Solomon Spring; (2) 
Giffin Spring; (3) East Sandia Spring; (4) Phantom Lake Spring; and (5) 
the Diamond Y Spring System. Phantom springsnail, Phantom tryonia, and 
diminutive amphipod all occur in the first 4 units and they are listed 
in Table 4. Diamond tryonia, Gonzales tryonia, and Pecos amphipod occur 
in the Diamond Y Spring Unit, and it is listed in Table 5.

   Table 4--Designated Critical Habitat Units for Phantom Springsnail,
                Phantom Tryonia, and Diminutive Amphipod
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                                         Size of unit in
     Critical habitat unit      Land ownership by type      hectares
                                                             (acres)
------------------------------------------------------------------------
San Solomon Spring............  State--Texas Parks and         1.8 (4.4)
                                 Wildlife Department.
Giffin Spring.................  Private...............         0.7 (1.7)
East Sandia Spring............  Private--The Nature            1.2 (3.0)
                                 Conservancy.
Phantom Lake Spring...........  Federal--Bureau of           0.02 (0.05)
                                 Reclamation.
    Total.....................  ......................         3.7 (9.2)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


 Table 5--Designated Critical Habitat Unit for Diamond Tryonia, Gonzales
                       Tryonia, and Pecos Amphipod
      [Area estimate reflects all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                                         Size of unit in
      Critical habitat unit         Land ownership by       hectares
                                           type              (acres)
------------------------------------------------------------------------
Diamond Y Spring System..........  Private--The Nature     178.6 (441.4)
                                    Conservancy.
    Total........................  ...................     178.6 (441.4)
------------------------------------------------------------------------

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat below.
San Solomon Spring Unit
    The San Solomon Spring Unit consists of 1.8 ha (4.4 ac) that is 
currently occupied by the Phantom springsnail, Phantom tryonia, and 
diminutive amphipod and contains all of the features essential to the 
conservation of these species. It is located in Reeves County, near 
Balmorhea, Texas. San Solomon Spring provides the water for the large 
swimming pool at Balmorhea State Park, which is owned and managed by 
the Texas Parks and Wildlife Department. The designation includes all 
springs, seeps, and outflows of San Solomon Spring, including the part 
of the concrete-lined pool that has a natural substrate bottom and 
irrigation ditch, and two constructed ci[eacute]negas. While the 
ditches do not provide all of the physical or biological features (such 
as submerged vegetation), there are sufficient features (including 
natural substrates on the ditch bottoms) to provide for the life-
history processes of the species. Habitat in this unit is threatened by 
future declining spring flows due to drought or groundwater 
withdrawals, the presence of nonnative snails, and the introduction of 
other nonnative species. Therefore, the physical or biological features 
in this unit may require special management considerations or 
protection to minimize impacts resulting from these threats.
Giffin Spring Unit
    The Giffin Spring Unit consists of 0.7 ha (1.7 ac) that is 
currently occupied by the Phantom springsnail, Phantom tryonia, and 
diminutive amphipod and contains all of the features essential to the 
conservation of these species. It is located on private property in 
Reeves County, near Balmorhea, Texas, and its waters are captured in 
irrigation earthen channels for agricultural use. The designation 
includes all springs, seeps, sinkholes, and outflows of Giffin Spring. 
The unit contains most all of the identified physical or biological 
features essential to the conservation of the species. Habitat in this 
unit is threatened by declining spring flows due to drought or 
groundwater withdrawals, the presence of nonnative snails, the 
introduction of other nonnative species, and further modification of 
spring outflow channels. Therefore, the physical or biological features 
in this unit may require special management considerations or 
protection to minimize impacts resulting from these threats.
East Sandia Spring Unit
    East Sandia Spring consists of 1.2 ha (3.0 ac) that is currently 
occupied by the Phantom springsnail, Phantom tryonia, and diminutive 
amphipod and contains all of the features essential to the conservation 
of these species. This unit is included within a preserve owned and 
managed by The Nature Conservancy (Karges 2003, p. 145) in Reeves 
County just east of Balmorhea, Texas. The designation includes the 
springhead itself and surrounding seeps and outflows. The unit contains 
all of the identified physical or biological

[[Page 40980]]

features essential to the conservation of the species. Habitat in this 
unit is threatened by declining spring flows due to drought or 
groundwater withdrawals, the introduction of nonnative species, and 
modification of spring outflow channels. Therefore, the physical or 
biological features in this unit may require special management 
considerations or protection to minimize impacts resulting from these 
threats.
Phantom Lake Spring Unit
    Phantom Lake Spring consists of a small pool about 0.02 ha (0.05 
ac) in size that is currently occupied by the Phantom springsnail, 
Phantom tryonia, and diminutive amphipod and contains the features 
essential to the conservation of these species. Phantom Lake Spring is 
owned by the U.S. Bureau of Reclamation about 6 km (4 mi) west of 
Balmorhea State Park in Jeff Davis County, Texas. The designation 
includes only the springhead pool. The physical or biological features 
of the habitat at Phantom Lake Spring have been maintained since 2000 
by a pumping system and subsequent reconstruction of the spring pool. 
Although artificially maintained, the site continues to provide 
sufficient physical or biological features to provide for all the life-
history processes of the three invertebrate species. Habitat in this 
unit is threatened by future declining spring flows due to drought or 
groundwater withdrawals, the presence of nonnative snails, and the 
introduction of other nonnative species. Therefore, the physical or 
biological features in this unit may require special management 
considerations or protection to minimize impacts resulting from these 
threats.
Diamond Y Spring Unit
    Diamond Y Spring Unit consists of 178.6 ha (441.4 ac) that is 
currently occupied by the Diamond tryonia, Gonzales tryonia, and Pecos 
amphipod and contains all of the features essential to the conservation 
of these species. Diamond Y Spring and surrounding lands are owned and 
managed by The Nature Conservancy. The final designation includes the 
Diamond Y Spring and approximately 6.8 km (4.2 mi) of its outflow, 
including both upper and lower watercourses, ending at approximately 
0.8 km (0.5 mi) downstream of the State Highway 18 bridge crossing. 
Also included in this unit is approximately 0.8 km (0.5 mi) of Leon 
Creek upstream of the confluence with Diamond Y Draw. The boundaries of 
this unit extend out laterally beyond the mapped spring outflow 
channels to incorporate any and all small springs and seeps that may 
not be mapped or surveyed but are expected to contain the species and 
the necessary physical or biological features. The unit contains all of 
the identified physical or biological features. Habitat in this unit is 
threatened by declining spring flows due to drought or groundwater 
withdrawals, subsurface drilling and other oil and gas activities that 
could contaminate surface drainage or aquifer water, the presence of 
nonnative snails and feral hogs, the introduction of other nonnative 
species, and modification of spring outflow channels. Therefore, the 
physical or biological features in this unit may require special 
management considerations or protection to minimize impacts resulting 
from these threats.

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 that 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, or 
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

[[Page 40981]]

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 Phantom springsnail, 
Phantom tryonia, Diamond tryonia, Gonzales tryonia, diminutive 
amphipod, and Pecos amphipod. As discussed above, the role of critical 
habitat is to support the life-history needs of the species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Phantom springsnail, Phantom tryonia, Diamond 
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod. 
These activities include, but are not limited to:
    (1) Actions that would reduce the quantity of water flow within the 
spring systems designated as critical habitat.
    (2) Actions that would contaminate or cause significant degradation 
of water quality within the spring systems designated as critical 
habitat, including surface drainage water or aquifer water quality.
    (3) Actions that would modify the springheads or outflow channels 
within the spring systems designated as critical habitat.
    (4) Actions that would reduce or alter the availability of aquatic 
substrates within the spring systems that are designated as critical 
habitat.
    (5) Actions that would reduce the occurrence of native aquatic 
periphyton within the spring systems designated as critical habitat.
    (6) Actions that would introduce, promote, or maintain nonnative 
predators and competitors within the spring systems designated as 
critical habitat.

Exemptions

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

    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 on some Department of Defense lands. There are no 
Department of Defense lands within or near the critical habitat 
designation, so section 4(a)(3)(B)(i) of the Act does not apply.

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 she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she 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 her discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. Potential land use sectors that may be affected by critical 
habitat designation include oil and gas development near the Diamond Y 
Spring system and agriculture (irrigated lands using groundwater 
withdrawals) at both spring systems. We also consider any social 
impacts that might occur because of the designation.
    We anticipate conducting approximately 7 formal, 15 informal, and 3 
technical assistance consultations considering the designation, for a 
total of 25 consultations, over the next 20 years. Assuming the 
consultations are equally likely to occur in any year, this results in 
fewer than two consultations a year. As a result of our analysis of 
probable economic impacts, we found only small incremental impacts 
related to the administrative costs of these consultations from the 
designation of critical habitat. In total, economic impacts are 
expected to amount to an estimated $41,000 over 20 years ($3,600 on an 
annualized basis), assuming a discount rate of seven percent. Based on 
our consultation history, we estimate that most consultations are not 
likely to involve a third party, and therefore, fewer than two small 
entities, if any, could be affected each year. The probable incremental 
cost per entity per year is likely to range from $260 to $2,100. 
Therefore, after considering the economic impact of these designations 
of critical habitat, we are not excluding any critical habitat areas 
based on economic impacts.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense or Department of 
Homeland Security where a national security impact might exist. In 
preparing this rule, we have determined that the lands within the 
designation of critical habitat for the Phantom springsnail, Phantom 
tryonia, Diamond tryonia, Gonzales tryonia, diminutive amphipod, and 
Pecos amphipod are not owned or managed by the Department of Defense or 
Department of Homeland Security, and, therefore, we anticipate no 
impact on national security. Consequently, the Secretary has not 
exerted her discretion to exclude any areas from the final

[[Page 40982]]

designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any habitat conservation plans or other 
management plans for the area, or whether any conservation partnerships 
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. We are not excluding any areas from the critical 
habitat designation under section 4(b)(2) of the Act.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish 
a notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. 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. In this final rule, we are certifying that the critical 
habitat designation for the six west Texas aquatic invertebrates will 
not have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    According to the Small Business Administration, 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; as well as small businesses. 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 on 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities. We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect the six west Texas aquatic invertebrates. Federal 
agencies also must consult with us if their activities may affect 
critical habitat. Designation of critical habitat, therefore, could 
result in an additional economic impact on small entities due to the 
requirement to reinitiate consultation for ongoing Federal activities 
(see Application of the ``Adverse Modification Standard'' section).
    In our final economic analysis of the critical habitat designation, 
we evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the designation of 
critical habitat for the six west Texas aquatic invertebrates. The 
analysis is based on the estimated impacts associated with the 
rulemaking as described in Chapter 2 of the analysis and evaluates the 
potential for economic impacts. The analysis anticipated the Service 
will conduct approximately 7 formal, 15 informal, and 3 technical 
assistance consultations considering the designation, for a total of 25 
consultations, over the next 20 years. Assuming the consultations are 
equally likely to occur in any year, this total results in fewer than 
two consultations a year. Based on the consultation history, most 
consultations are unlikely to involve a third party. Therefore, fewer 
than two small entities, if any, could be affected each year. The 
incremental cost per third-party entity of participating in a 
consultation is likely to range from $260 to $2,100 (see Exhibit B-1 in 
Appendix B of the Final Economic Analysis). This level of impact does 
not exceed the thresholds for significant economic effects on a 
substantial number of small entities.

[[Page 40983]]

    In summary, we considered whether this designation would result in 
a significant economic effect on a substantial number of small 
entities. Based on the above reasoning and currently available 
information, we concluded that this rule would not result in a 
significant economic impact on a substantial number of small entities. 
Therefore, we are certifying that the designation of critical habitat 
for the six west Texas aquatic invertebrates will not have a 
significant economic impact on a substantial number of small entities, 
and a regulatory flexibility analysis is not required.

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

    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. The Office of Management and Budget has provided 
guidance for implementing this Executive Order that outlines nine 
outcomes that may constitute ``a significant adverse effect'' when 
compared to not taking the regulatory action under consideration.
    As described in Sections 2.2, 2.5, and A.4 of the final economic 
analysis, the critical habitat designation for the six invertebrates is 
anticipated to result in minimal consultations related to natural gas 
pipelines. We do not anticipate incremental impacts to these projects 
beyond the administrative costs of addressing the adverse modification 
standard in section 7 consultation. Given the small number of projects 
affected, the designation is not anticipated to increase the cost of 
energy production or distribution in the United States in excess of one 
percent. Thus, none of the nine threshold levels of impact would be 
exceeded. As a result, we do not expect the designation of critical 
habitat to significantly affect energy supplies, distribution, or use 
due to the small amount of habitat we have designated and the lack of 
Federal activities that would be affected by the designation. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

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 rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because the land in this designation is either 
privately owned or owned by U.S. Bureau of Reclamation or the State of 
Texas. None of these government entities fit the definition of ``small 
governmental jurisdiction.'' In addition, our final economic analysis, 
section A.2, found no enforceable duties placed upon State, local, or 
Tribal governments. Therefore, a Small Government Agency Plan is not 
required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for the Phantom springsnail, Phantom tryonia, Diamond 
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod in a 
takings implications assessment. Critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits, nor does it preclude development of habitat conservation 
programs or issuance of incidental take permits to permit actions that 
do require Federal funding or permits to go forward. The takings 
implications assessment found this designation of critical habitat for 
the Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales 
tryonia, diminutive amphipod, and Pecos amphipod does not pose 
significant takings implications for lands within or affected by the 
designation. Similarly, our final economic analysis, section A.3 and 
described in Chapter 2, concluded that the incremental effects of the 
designation are limited to additional administrative costs of 
consultation. Therefore, activities taking place on private property 
are not likely to be affected, and the critical habitat designation is 
unlikely to have takings implications.

Federalism

    In accordance with Executive Order 13132 (Federalism), these rules 
do not have significant federalism effects. A federalism assessment is 
not required. In keeping with Department of the Interior policy, we 
requested information from, and coordinated development of, these 
critical habitat designations with appropriate State resource agencies 
in Texas. We received comments from several State of Texas agencies and 
have addressed them in

[[Page 40984]]

the Summary of Comments and Recommendations section of this rule. The 
designation of critical habitat in areas currently occupied by the 
Phantom springsnail, Phantom tryonia, Diamond tryonia, Gonzales 
tryonia, diminutive amphipod, and Pecos amphipod 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 have designating critical 
habitat in accordance with the provisions of the Act. These final rules 
use standard mapping technology and identify the elements of physical 
or biological features essential to the conservation of the Phantom 
springsnail, Phantom tryonia, Diamond tryonia, Gonzales tryonia, 
diminutive amphipod, and Pecos amphipod within the designated areas to 
assist the public in understanding the habitat needs of the species.

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

    These rules do 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.). These rules do 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.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as endangered or 
threatened under the Endangered Species Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244).
    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses 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)). The range of the Phantom springsnail, Phantom tryonia, Diamond 
tryonia, Gonzales tryonia, diminutive amphipod, and Pecos amphipod does 
not occur in the Tenth Circuit, so a NEPA analysis was not conducted.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We determined that there are no tribal lands within or near the 
current or historic ranges of the Phantom springsnail, Phantom tryonia, 
Diamond tryonia, Gonzales tryonia, diminutive amphipod, and Pecos 
amphipod that contain the features essential for conservation of the 
species. Therefore, we are not designating critical habitat on tribal 
lands.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0004 and upon request from the Austin Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this package are the staff members of the 
Southwest Region of the Service.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.95 by:
0
a. In paragraph (f), adding an entry for ``Phantom springsnail 
(Pyrgulopsis texana) and Phantom tryonia (Tryonia cheatumi)'' followed 
by an entry for ``Diamond tryonia (Pseudotryonia adamantina) and 
Gonzales tryonia (Tryonia circumstriata)'' after the entry for ``Three 
Forks Springsnail (Pyrgulopsis trivialis)''; and
0
b. In paragraph (h), adding an entry for ``Diminutive amphipod 
(Gammarus hyalleloides)'' and an entry for ``Pecos amphipod (Gammarus 
pecos)'' in the same alphabetical order that these species appear in 
the table at Sec.  17.11(h).
    The additions read as follows.

[[Page 40985]]

Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *
Phantom springsnail (Pyrgulopsis texana) and Phantom tryonia (Tryonia 
cheatumi)
    (1) Critical habitat units are depicted for Jeff Davis County and 
Reeves County, Texas, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of 
Phantom springsnail and Phantom tryonia are springs and spring-fed 
aquatic systems that contain:
    (i) Permanent, flowing, unpolluted water (free from contamination) 
emerging from the ground and flowing on the surface;
    (ii) Water temperatures that vary between 11 and 27 [deg]C (52 to 
81[emsp14][deg]F) with natural seasonal and diurnal variations slightly 
above and below that range;
    (iii) Substrates that include cobble, gravel, pebble, sand, silt, 
and aquatic vegetation, for breeding, egg laying, maturing, feeding, 
and escape from predators;
    (iv) Abundant food, consisting of algae, bacteria, decaying organic 
material, and submergent vegetation that contributes the necessary 
nutrients, detritus, and bacteria on which these species forage; and
    (v) Either an absence of nonnative predators and competitors or 
nonnative predators and competitors at low population levels.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, well pads, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
August 8, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created on 2010 aerial photography from U.S. Department of Agriculture, 
National Agriculture Imagery Program base maps using ArcMap 
(Environmental Systems Research Institute, Inc.), a computer geographic 
information system (GIS) program. 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 on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0004 and at the field 
office responsible for this designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.
    (5) San Solomon Spring Unit, Reeves County, Texas. Map of San 
Solomon Spring Unit follows:
BILLING CODE 4310-55-P

[[Page 40986]]

[GRAPHIC] [TIFF OMITTED] TR09JY13.006

    (6) Giffin Spring Unit, Reeves County, Texas. Map of Giffin Spring 
Unit is provided at paragraph (5) of this entry.
    (7) East Sandia Spring Unit, Reeves County, Texas. Map of East 
Sandia Spring Unit follows:

[[Page 40987]]

[GRAPHIC] [TIFF OMITTED] TR09JY13.007

    (8) Phantom Lake Spring Unit, Jeff Davis County, Texas. Map of 
Phantom Lake Spring Unit follows:

[[Page 40988]]

[GRAPHIC] [TIFF OMITTED] TR09JY13.008

Diamond tryonia (Pseudotryonia adamantina) and Gonzales tryonia 
(Tryonia circumstriata)
    (1) A critical habitat unit is depicted for Pecos County, Texas, on 
the map below.
    (2) Within this area, the primary constituent elements of the 
physical or biological features essential to the conservation of 
Diamond tryonia and Gonzales tryonia are springs and spring-fed aquatic 
systems that contain:
    (i) Permanent, flowing, unpolluted water (free from contamination) 
emerging from the ground and flowing on the surface;
    (ii) Water temperatures that vary between 11 and 27 [deg]C (52 to 
81[emsp14][deg]F) with natural seasonal and diurnal variations slightly 
above and below that range;
    (iii) Substrates that include cobble, gravel, pebble, sand, silt, 
and aquatic vegetation, for breeding, egg laying, maturing, feeding, 
and escape from predators;
    (iv) Abundant food, consisting of algae, bacteria, decaying organic 
material, and submergent vegetation that contributes the necessary 
nutrients, detritus, and bacteria on which these species forage; and

[[Page 40989]]

    (v) Either an absence of nonnative predators and competitors or 
nonnative predators and competitors at low population levels.
    (3) Critical habitat does not include manmade structures (such as 
buildings, roads, oil and gas well pads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
August 8, 2013.
    (4) Critical habitat map unit. Data layers defining the map unit 
were created on 2010 aerial photography from U.S. Department of 
Agriculture, National Agriculture Imagery Program base maps using 
ArcMap (Environmental Systems Research Institute, Inc.), a computer 
geographic information system (GIS) program. 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 on the 
internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-
0004 and at the field office responsible for this designation. You may 
obtain field office location information by contacting one of the 
Service regional offices, the addresses of which are listed at 50 CFR 
2.2.
    (5) Diamond Y Spring Unit, Pecos County, Texas. Map of Diamond Y 
Spring Unit follows:

[[Page 40990]]

[GRAPHIC] [TIFF OMITTED] TR09JY13.009

* * * * *
    (h) Crustaceans.
Diminutive amphipod (Gammarus hyalleloides)
    (1) Critical habitat units are depicted for Jeff Davis County and 
Reeves County, Texas, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of 
diminutive amphipod are springs and spring-fed aquatic systems that 
contain:
    (i) Permanent, flowing, unpolluted water (free from contamination) 
emerging from the ground and flowing on the surface;
    (ii) Water temperatures that vary between 11 and 27 [deg]C (52 to 
81 [deg]F) with natural seasonal and diurnal variations slightly above 
and below that range;
    (iii) Substrates that include cobble, gravel, pebble, sand, silt, 
and aquatic vegetation, for breeding, maturing, feeding, and escape 
from predators;
    (iv) Abundant food, consisting of algae, bacteria, decaying organic 
material, and submergent vegetation that contributes the necessary 
nutrients, detritus, and bacteria on which these species forage; and

[[Page 40991]]

    (v) Either an absence of nonnative predators and competitors or 
nonnative predators and competitors at low population levels.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, well pads, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
August 8, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created on 2010 aerial photography from U.S. Department of Agriculture, 
National Agriculture Imagery Program base maps using ArcMap 
(Environmental Systems Research Institute, Inc.), a computer geographic 
information system (GIS) program. 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 on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0004 and at the field 
office responsible for this designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.
    (5) San Solomon Spring Unit, Reeves County, Texas. Map of San 
Solomon Spring Unit follows:

[[Page 40992]]

[GRAPHIC] [TIFF OMITTED] TR09JY13.010

    (6) Giffin Spring Unit, Reeves County, Texas. Map of Giffin Spring 
Unit is provided at paragraph (5) of this entry.
    (7) East Sandia Spring Unit, Reeves County, Texas. Map of East 
Sandia Spring Unit follows:

[[Page 40993]]

[GRAPHIC] [TIFF OMITTED] TR09JY13.011

    (8) Phantom Lake Spring Unit, Jeff Davis County, Texas. Map of 
Phantom Lake Spring Unit follows:

[[Page 40994]]

[GRAPHIC] [TIFF OMITTED] TR09JY13.012

* * * * *
Pecos amphipod (Gammarus pecos)
    (1) The critical habitat unit is depicted for Pecos County, Texas, 
on the map below.
    (2) Within this area, the primary constituent elements of the 
physical or biological features essential to the conservation of Pecos 
amphipod are springs and spring-fed aquatic systems that contain:
    (i) Permanent, flowing, unpolluted water (free from contamination) 
emerging from the ground and flowing on the surface;
    (ii) Water temperatures that vary between 11 and 27 [deg]C (52 to 
81 [deg]F) with natural seasonal and diurnal variations slightly above 
and below that range;
    (iii) Substrates that include cobble, gravel, pebble, sand, silt, 
and aquatic vegetation, for breeding, maturing, feeding, and escape 
from predators;
    (iv) Abundant food, consisting of algae, bacteria, decaying organic 
material, and submergent vegetation that contributes the necessary 
nutrients, detritus, and bacteria on which these species forage; and

[[Page 40995]]

    (v) Either an absence of nonnative predators and competitors or 
nonnative predators and competitors at low population levels.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, oil and gas well pads, roads, and other paved 
areas) and the land on which they are located existing within the legal 
boundaries on the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created on 2010 aerial photography from U.S. Department of Agriculture, 
National Agriculture Imagery Program base maps using ArcMap 
(Environmental Systems Research Institute, Inc.), a computer geographic 
information system (GIS) program. 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 on the internet at 
http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0004 and at the 
field office responsible for this designation. You may obtain field 
office location information by contacting one of the Service regional 
offices, the addresses of which are listed at 50 CFR 2.2.
    (5) Diamond Y Spring Unit, Pecos County, Texas. Map of Diamond Y 
Spring Unit follows:

[[Page 40996]]

[GRAPHIC] [TIFF OMITTED] TR09JY13.013

* * * * *

    Dated: June 26, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-16230 Filed 7-8-13; 8:45 am]
BILLING CODE 4310-55-C