[Federal Register Volume 81, Number 109 (Tuesday, June 7, 2016)]
[Rules and Regulations]
[Pages 36762-36785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13246]



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Vol. 81

Tuesday,

No. 109

June 7, 2016

Part IV





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





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

  Federal Register / Vol. 81 , No. 109 / Tuesday, June 7, 2016 / Rules 
and Regulations  

[[Page 36762]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

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


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Zuni bluehead sucker (Catostomus discobolus 
yarrowi) under the Endangered Species Act of 1973, as amended (Act). In 
total, approximately 55.7 kilometers (km) (34.6 miles (mi)) in McKinley 
and Cibola Counties, New Mexico, fall within the boundaries of the 
critical habitat designation.

DATES: This rule is effective on July 7, 2016.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at the New Mexico Ecological Services Field 
Office (address below). Comments and materials we received, as well as 
some supporting documentation we used in preparing this rule, are 
available for public inspection at http://www.regulations.gov. All of 
the comments, materials, and documentation that we considered in this 
rulemaking are available by appointment, during normal business hours 
at: U.S. Fish and Wildlife Service, New Mexico Ecological Services 
Field Office, 2105 Osuna Road NE., Albuquerque, NM 87113; telephone 
505-346-2525; facsimile 505-346-2542.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R2-ES-2013-0002, on the Service's Web site at http://www.fws.gov/southwest/es/newmexico, and at the New Mexico Ecological 
Services Field Office. 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 may also be included in the preamble of this rule 
and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna Road NE., Albuquerque, NM 87113; telephone 505-346-
2525; facsimile 505-346-2542. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. This final rule designates critical 
habitat for the Zuni bluehead sucker. Under the Endangered Species Act, 
any species that is determined to be an endangered or threatened 
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 listed the Zuni bluehead sucker as an endangered species on July 
24, 2014 (79 FR 43132). On January 25, 2013, we published in the 
Federal Register a proposed critical habitat designation for the Zuni 
bluehead sucker (78 FR 5351). Section 4(b)(2) of the Act states that 
the Secretary shall designate critical habitat on the basis of the best 
available scientific data after taking into consideration the economic 
impact, national security impact, and any other relevant impact of 
specifying any particular area as critical habitat.
    The 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 the Zuni bluehead sucker. We are 
designating approximately 55.7 km (34.6 mi) of the Zuni River Watershed 
in one unit in in McKinley and Cibola Counties, New Mexico.
    We have prepared an economic analysis of the designation of 
critical habitat. In order to consider economic impacts, we prepared an 
incremental effects memorandum (IEM) and screening analysis which, 
together, we consider our draft economic analysis (DEA) of the proposed 
critical habitat designation and related factors (80 FR 19941; April 
14, 2015). The analysis, dated October 22, 2014, was made available for 
public review from April 14, 2015, through May 14, 2015 (80 FR 19941). 
The DEA addressed probable economic impacts of critical habitat 
designation for the Zuni bluehead sucker. Following the close of the 
comment period, we reviewed and evaluated all information submitted 
during the comment period that may pertain to our consideration of the 
probable incremental economic impacts of this critical habitat 
designation. We have incorporated the comments into this final 
determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We obtained opinions from three knowledgeable 
individuals with scientific expertise to review our technical 
assumptions and 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 we 
received from the public during the comment period.

Previous Federal Actions

    On January 25, 2013, we published a proposed rule to list the Zuni 
bluehead sucker as an endangered species and a proposed rule to 
designate critical habitat for the Zuni bluehead sucker (78 FR 5369 and 
78 FR 5351, respectively). We proposed to designate as critical habitat 
approximately 475.3 km (291.3 mi) in three units in McKinley, Cibola, 
and San Juan Counties, New Mexico, and Apache County, Arizona.
    After the publication of the proposed rules, we found there was 
substantial scientific disagreement regarding the taxonomic status of 
some populations that we considered Zuni bluehead sucker in the 
proposed listing rule. On January 9, 2014, we published in the Federal 
Register a document that reopened the comment period for the proposed 
listing rule and extended the final determination of listing status for 
the Zuni bluehead sucker by 6 months due to substantial disagreement 
regarding the Zuni bluehead sucker's taxonomic status in some locations 
(79 FR 1615).
    On July 24, 2014, we published in the Federal Register a final rule 
to list the Zuni bluehead sucker as an endangered species (79 FR 
43132). In this final listing determination, we revised the Zuni 
bluehead sucker's range to exclude populations from the previously 
identified proposed San Juan River critical habitat unit. This change 
was based on an error in the genetic data evaluated for the proposed 
listing rule (Schwemm and Dowling 2008, entire); the correct 
information led to the determination that the bluehead suckers in the 
Lower San Juan River Watershed (proposed critical habitat Unit 3; San

[[Page 36763]]

Juan River Unit) were bluehead suckers (Catostomus discobolus), not 
Zuni bluehead suckers (Catostomus discobolus yarrowi). Thus, the San 
Juan River Unit populations were no longer included in the range 
estimate provided in the final listing rule.
    On April 14, 2015, we published in the Federal Register our revised 
proposed critical habitat designation of 228.4 km (141.9 mi) and 
reopened the public comment period until May 14, 2015 (80 FR 19941). We 
also announced the availability of the draft economic analysis and a 
draft environmental assessment prepared pursuant to the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) for the 
proposed critical habitat designation. The draft economic analysis (IEc 
2014, entire) was prepared to identify and evaluate the economic 
impacts of the proposed critical habitat designation.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Zuni bluehead sucker during two 
comment periods. The first comment period, associated with the 
publication of the proposed rule (78 FR 5351), opened on January 25, 
2013, and closed on March 26, 2013. We also requested comments on the 
revised proposed critical habitat designation and associated draft 
economic analysis during a comment period that opened April 14, 2015, 
and closed on May 14, 2015 (80 FR 19941). We did not receive any 
requests for a public hearing. We also contacted appropriate Federal, 
State, Tribal, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule, 
draft economic analysis, and draft environmental assessment during 
these comment periods.
    During the first comment period, we received six comment letters 
directly addressing the proposed critical habitat designation. During 
the second comment period, we received 13 comment letters addressing 
the proposed critical habitat designation or the draft economic 
analysis. All substantive information provided during comment periods 
is either incorporated directly into this final determination or is 
addressed below. Comments received are grouped into general issues 
specifically relating to the proposed critical habitat designation for 
the Zuni bluehead sucker and are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Review

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

Peer Reviewer Comments

    (1) Comment: Two peer reviewers suggested postponing critical 
habitat designations in the Kinlichee and San Juan River Units 
(proposed critical habitat units 2 and 3) until the taxonomic status of 
the catostomids (suckers) in these areas is resolved.
    Our Response: In the proposed listing rule, we identified 
populations in the San Juan Unit (proposed critical habitat Unit 3) as 
Zuni bluehead sucker because previous genetic analysis (Schwemm and 
Dowling 2008, entire) provided evidence supporting this conclusion. 
However, as mentioned in the ``Taxonomy and Genetics'' section of our 
final listing rule published July 24, 2014 (79 FR 43132), this 
conclusion was based on inaccurate information. The San Juan River Unit 
was removed from critical habitat designation due to results from 
genetics studies, and we made the appropriate changes in this final 
rule to reflect the updated classifications of populations as bluehead 
sucker. Kinlichee Creek was retained as a population of Zuni bluehead 
sucker, based on the morphological evidence and the presence of unique 
Zuni bluehead sucker genetics in some sites within the watershed; 
however, we are excluding this unit from final critical habitat 
designation (see Exclusions Based on Other Relevant Impacts, below).
    (2) Comment: One peer reviewer stated that although Zuni bluehead 
sucker is closely related to bluehead sucker, caution needs to be taken 
when assuming bluehead sucker have the same needs or attributes as Zuni 
bluehead sucker.
    Our Response: We agree. We have added language throughout this 
final rule to distinguish which species or subspecies we are 
referencing. We used information specific to Zuni bluehead sucker 
whenever possible. However, because there are many information gaps 
(such as habitat needs for specific life stages of Zuni bluehead 
sucker), we relied on information available for a closely related and 
more thoroughly studied species, the bluehead sucker.
    (3) Comment: One peer reviewer noted that vague terms such as 
``appropriate stream velocity,'' ``very,'' and ``recent'' should be 
avoided.
    Our Response: We used the most specific characteristics possible 
when describing the physical and biological features of critical 
habitat for the Zuni bluehead sucker. Unfortunately, information is not 
always available to describe these characteristics quantitatively. In 
these cases, we used qualitative terms to describe the characteristics 
of critical habitat. We clarified our language where it was appropriate 
and accurate to do so.
    (4) Comment: Two peer reviewers noted that 74.2 km (46.1 mi) of 
proposed critical habitat in the Zuni River Headwaters (Subunit 1a) was 
stated to be occupied at the time of listing, but the proposed listing 
stated the subspecies occurs in only 4.8 km (3 mi) of habitat in these 
headwaters.
    Our Response: We have revised this discussion and clarified the 
description of Subunit 1a. The most recent surveys only included the 
4.8-km (3-mi) reach referred to in the proposed listing rule. We used 
the recent survey information in combination with both historical 
survey records and Geographical Information System (GIS) information 
indicating 74.2 km (46.1 mi) of the Zuni River Headwaters (Subunit 1a) 
contained the physical and biological features essential for the 
subspecies' conservation. We conclude the full reach was occupied based 
on the presence of suitable habitat and repeated positive survey data 
since the 1990s; this area has been regularly sampled since 2003 
(Propst and Hobbes 1996, p. 13; Carman 2010, pp. 13-15; Gilbert and 
Carman 2011, p. 23; NMDGF 2013, p. 24).
    (5) Comment: One peer reviewer was opposed to the exclusion of 
designated critical habitat of any area that is shown by available 
scientific information to be important to the conservation and recovery 
of the subspecies.
    Our Response: Section 4(b)(2) of the Act (16 U.S.C. 1531 et seq.) 
states that the Secretary shall designate and make

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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. When 
identifying the benefits of inclusion for an area, we consider the 
additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus, the educational benefits of mapping 
essential habitat for recovery of the listed species, and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat. When identifying the benefits of 
exclusion, we consider, among other things, whether exclusion of a 
specific area is likely to result in conservation; the continuation, 
strengthening, or encouragement of partnerships; or implementation of a 
management plan that provides equal to or more conservation than a 
critical habitat designation would provide.
    Lands excluded under section 4(b)(2) of the Act may still be 
considered essential to the conservation of the Zuni bluehead sucker. 
Such areas were identified as critical habitat because they either 
provide the essential physical or biological features, if occupied, or 
were otherwise determined to be essential, if unoccupied. Exclusion 
should never be interpreted as meaning that such areas are unimportant 
to the conservation of the subspecies. Exclusion is based upon a 
determination by the Secretary that the benefit of excluding an area 
outweighs the benefit of including an area in critical habitat.
    In this case, the Secretary has chosen to exercise her discretion 
to exclude non-Federal lands from the final designation of critical 
habitat if an existing conservation agreement or partnership is in 
place that provides benefits that are greater than the benefits that 
would be provided by the designation of critical habitat. Such 
exclusions have only been made following a careful weighing of both the 
benefits of inclusion and the benefits of exclusion. We wish to 
emphasize that the exclusion of lands from the critical habitat 
designation should not be construed as a message that these lands are 
not important or essential for the conservation of the Zuni bluehead 
sucker, nor should exclusion be interpreted as some indication that 
these lands are now somehow subject to habitat degradation or 
destruction because they are not included in critical habitat. Lands 
excluded on the basis of conservation agreements and the recognition of 
conservation partnerships are fully expected to continue to make an 
important contribution to the conservation and recovery of the Zuni 
bluehead sucker absent the designation of critical habitat. Such lands 
are excluded only if we have evidence that such expectations for future 
contributions of the habitat on these lands are well-founded, as 
evidenced by a conservation easement, habitat conservation plan, safe 
harbor agreement, or other instrument, or by a proven track record of 
conservation by the partner in question. The details of our considered 
analyses of each area under consideration for exclusion are provided in 
the Consideration of Impacts under Section 4(b)(2) of the Act, below.

Comments From States

    We received three comments from the Arizona Game and Fish 
Department (AGFD) and New Mexico Department of Game and Fish (NMDGF) 
supporting the critical habitat designation. In addition, NMDGF 
provided their most recent Zuni bluehead sucker annual report that was 
used to update habitat conditions for the Zuni bluehead sucker in the 
Zuni River Watershed.
    (6) Comment: Any critical habitat designation for occupied or 
unoccupied habitats on private lands should be carefully weighed 
against the private property interests in the watershed.
    Our Response: For lands meeting the definition of critical habitat, 
we have considered each of the potential bases for exclusion from 
critical habitat designation. In order to do so, we conducted an 
economic analysis, an environmental assessment to comply with NEPA, and 
a takings implications assessment. The economic analysis found that no 
significant economic impacts are likely to result from the designation 
of critical habitat for the Zuni bluehead sucker. Because the Act's 
critical habitat protection requirements apply only to Federal agency 
actions, few conflicts between critical habitat and private property 
rights should result from this designation.
    The designation of critical habitat does not require implementation 
of restoration, recovery, or enhancement measures by non-Federal 
landowners. 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. In the event of a finding of 
destruction or adverse modification of critical habitat, the obligation 
of the Federal action agency is not to restore or recover the species, 
but to implement reasonable and prudent alternatives to avoid 
destruction or adverse modification of critical habitat. 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. 
Critical habitat designations do not affect activities by private 
landowners if there is no Federal nexus--that is, no Federal funding or 
authorization.
    (7) Comment: Any exclusion of tribal lands should be supported by 
sound management plans and sufficient monitoring efforts to track the 
status of Zuni bluehead sucker in those areas.
    Our Response: Each of the exclusions is assessed in greater detail 
and meets the statutory basis that the benefits of exclusion outweigh 
the benefits of inclusion and will not result in extinction. Navajo 
Nation has submitted a final fisheries management plan and the Zuni 
Tribe has submitted a draft fisheries management plan; the plans are 
described in detail below (see ``Tribal Lands'' under the heading 
Exclusions Based on Other Relevant Impacts, below). In addition, the 
Service has been assisting Navajo Nation in monitoring Zuni bluehead 
sucker populations on their lands, and a monitoring component is 
identified within their Fisheries Management Plan. The Zuni Tribe has 
also been integral to monitoring Zuni bluehead sucker in the Rio Nutria 
from the 1960s to early 2000s, and the Zuni Tribe has included a 
monitoring component within their Fisheries Management Plan that abides 
by their cultural beliefs. Although the Zuni Fisheries Management Plan 
is currently draft, its development, and the Tribe's coordination with 
us, provides evidence of our working relationship with the Zuni Tribe 
for conservation of the subspecies. We are excluding all tribal lands 
within Subunits 1a and 1b and

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Unit 2 from this final designation under section 4(b)(2) of the Act. We 
have determined that the benefits of exclusion outweigh the benefits of 
inclusion and are therefore excluding these areas from the final 
critical habitat designation (see Consideration of Impacts under 
Section 4(b)(2) of the Act, below).
    (8) Comment: AGFD encourages the Service to work closely with 
Navajo Nation, the Zuni Tribe, the Cibola National Forest, NMDGF, and 
private landowners to develop and implement effective conservation and 
recovery efforts for this subspecies and its habitat.
    Our Response: The Service is actively working with our stakeholders 
in developing fisheries management plans, developing monitoring 
populations, and identifying recovery streams and refugia locations. 
The Service recognizes the vital importance of working with our 
stakeholders in developing and implementing conservation measures in 
achieving the recovery of endangered and threatened species. However, 
the designation of critical habitat does not require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. If there is not a Federal nexus for activities taking place 
on private or State lands, then critical habitat designation does not 
restrict any actions that destroy or adversely modify critical habitat.

Tribal Comments

    (9) Comment: During the public comment period, we met and received 
comments from Navajo Nation and the Zuni Tribe expressing their 
opposition to the designation of critical habitat. They stated that 
exclusion of their lands from critical habitat designation is warranted 
due to tribal self-governance and would help maintain cooperative 
working relationships.
    Our Response: The portions of Subunits 1a and 1b on the Zuni 
Reservation and all of Unit 2 on the Navajo Nation are excluded from 
this final designation under section 4(b)(2) of the Act. We have 
determined that the benefits of exclusion outweigh the benefits of 
inclusion and that these exclusions will not result in the extinction 
of the subspecies. Therefore, we are excluding these areas from the 
final critical habitat designation (see Consideration of Impacts under 
Section 4(b)(2) of the Act, below).

Public Comments

    (10) Comment: One commenter stated it is unclear from the 
information provided that the entire proposed critical habitat area has 
been recently surveyed to assess whether it should be designated.
    Our Response: As required by the Act, we rely upon the best 
scientific and commercial data available to assess the current and 
historical distributions of the Zuni bluehead sucker. We are not 
required to conduct surveys prior to critical habitat designation. 
However, much of the designated habitat has been regularly sampled 
since 2003, by either electrofishing or visual surveys in New Mexico 
(Propst and Hobbes 1996, p. 13; Carman 2010, pp. 13-15; Gilbert and 
Carman 2011, p. 23; NMDGF 2013, p. 24) and Arizona (Kitcheyan and Mata 
2012, entire; Kitcheyan and Mata 2013, entire). Other sources of 
information include articles published in peer-reviewed journals and 
data collected by the Service and NMDGF, and any other data available 
at the time of the designation. Additional information on our data 
sources can be found in the final listing rule published in the Federal 
Register on July 24, 2014 (79 FR 43132) under the heading ``Range and 
Distribution.''
    (11) Comment: One commenter suggested that if Navajo lands are 
excluded from the final critical habitat designation, the Service 
should ensure that the tribe follows through on its conservation 
commitments.
    Our Response: We have a productive working relationship with Navajo 
Nation to promote the conservation of the Zuni bluehead sucker and its 
habitat. This working relationship provides substantial benefit to the 
subspecies, as Navajo Nation has submitted a final fisheries management 
plan, described in detail below (see ``Tribal Lands'' under Exclusions 
Based on Other Relevant Impacts, below). In addition, the Service has 
been assisting Navajo Nation in monitoring Zuni bluehead sucker 
populations on their lands, and a monitoring component is identified 
within their Fisheries Management Plan. Annual work plans in accordance 
with the Fisheries Management Plan will be developed with full 
cooperation of the Navajo Nation Department of Fish and Wildlife, 
Bureau of Indian Affairs (BIA), and the Service. The Fisheries 
Management Plan will be updated as necessary every 5 years.
    (12) Comment: One commenter stated Tampico Springs is not native 
habitat for the Zuni bluehead sucker and should not be designated as 
critical habitat for this subspecies.
    Our Response: As mentioned in the ``Taxonomy and Genetics'' 
discussion in our final listing rule (79 FR 43132; July 24, 2014), the 
Tampico Springs population was founded through translocation in the 
mid-1970s. This population is within the general historical range of 
the subspecies and has been self-sustaining since its founding. We find 
the population in Tampico Springs is essential to the conservation of 
the Zuni bluehead sucker.
    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we considered the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. Under the 
first part of the Act's definition of critical habitat, areas within 
the geographical area occupied by the species at the time it was listed 
are included in a critical habitat designation if they contain physical 
or biological features (1) which are essential to the conservation of 
the species and (2) which may require special management considerations 
or protection. Tampico Springs was occupied at the time of listing, 
contains the physical and biological features essential to the 
conservation of the subspecies, and therefore meets the definition of 
critical habitat.
    (13) Comment: Tampico Springs (on private land) should be excluded 
as a critical habitat for the Zuni bluehead sucker, because exclusion 
would allow and promote the continuation of strong partnerships with 
State and Federal agencies, industry, and other entities, resulting in 
continued habitat protection.
    Our Response: The area that the commenter requested that the 
Service exclude from critical habitat is included in the Silva Forestry 
Management Plan, which we reviewed for evidence of habitat protections 
undertaken on this portion of land. The Forestry Management Plan is 
focused on forest management and not conservation of Zuni bluehead 
sucker and its habitat in this area. We are aware of no specific 
conservation actions in the submitted plan that would benefit the Zuni 
bluehead sucker; therefore the Secretary has chosen not to enter into 
the discretionary 4(b)(2) exclusion analysis in this particular case.

Summary of Changes From Proposed Rule

    In total, we are designating a total of approximately 55.7 km (34.6 
mi) of critical habitat for the Zuni bluehead sucker, which is 172.7 km 
(107.3 mi) less than our proposed critical habitat designation. Our 
final designation of

[[Page 36766]]

critical habitat reflects the following changes from the proposed rule:
    (1) New information resulted in the removal of a portion of the 
proposed Zuni River Unit (Unit 1). Based upon further investigation, a 
section of Cebolla Creek (from Pescado Reservoir upstream on Cebolla 
Creek to Ramah Reservoir) is a dry wash with no running water or stream 
channel present except during periods of rain; this reach is unlikely 
to have perennial or intermittent flows. As a result, 7.9 km (4.9 mi) 
was removed because this section of Cebolla Creek is not essential to 
the conservation of the subspecies and does not meet the definition of 
critical habitat.
    (2) We carefully considered the benefits of inclusion and the 
benefits of exclusion, under section 4(b)(2) of the Act, of the 
specific areas identified in the proposed critical habitat rule, 
particularly in areas where a management plan specific to the Zuni 
bluehead sucker are in place, and also where the maintenance and 
fostering of important conservation partnerships are a consideration. 
Based on the results of our analysis, we are excluding approximately 
38.9 km (24.2 mi) of Subunit 1a, 29.4 km (18.3 mi) of Subunit 1b, and 
all of Unit 2 (96.5 km (60.0 mi)) from our final critical habitat 
designation for the Zuni bluehead sucker (see Consideration of Impacts 
under Section 4(b)(2) of the Act, below).
    Exclusion from critical habitat should not be interpreted as a 
determination that these areas are unimportant, that they do not 
provide physical or biological features essential to the conservation 
of the species (for occupied areas), or are not otherwise essential for 
conservation (for unoccupied areas); exclusion merely reflects the 
Secretary's determination that the benefits of excluding those 
particular areas outweigh the benefits of including them in the 
designation.
    (3) We inadvertently omitted language from the Proposed Regulation 
Promulgation section of the proposed rule, although we discussed it as 
part of our methodology for designation in the preamble of the proposed 
rule. Therefore, in this final rule, we add the following language 
under the Regulation Promulgation section: Critical habitat includes 
the adjacent floodplains within 91.4 lateral meters (m) (300 lateral 
feet (ft)) on either side of bankfull discharge, except where bounded 
by canyon walls. Bankfull discharge is the flow at which water begins 
to leave the channel and disperse into the floodplain, and generally 
occurs every 1 to 2 years.
    (4) In the proposed rule, we stated that the Zuni bluehead sucker 
needs clear, cool water with low turbidity and temperatures in the 
general range of 9.0 to 28.0 degrees Celsius ([deg]C) (48.2 to 82.4 
degrees Fahrenheit ([deg]F)). New information has resulted in a change 
to the temperatures, and in this final rule that primary constituent 
element is clear, cool water with low turbidity and temperatures in the 
general range of 2.0 to 23.0 [deg]C (35.6 to 73.4[emsp14][deg]F).
    (5) We added a general description of the designated critical 
habitat unit to the Regulation Promulgation section of this rule.

Critical Habitat

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 apply, but even in the event of a destruction or adverse 
modification finding, the obligation of the Federal action agency and 
the landowner is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) 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 or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements (PCEs) are 
those specific elements of the physical or biological features that 
provide for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.

[[Page 36767]]

    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may disperse from one area to 
another over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.
    On February 11, 2016, we published a final rule in the Federal 
Register (81 FR 7413) to amend our regulations concerning the 
procedures and criteria we use to designate and revise critical 
habitat. That rule became effective on March 14, 2016, but, as stated 
in that rule, the amendments it sets forth apply to ``rules for which a 
proposed rule was published after March 14, 2016.'' We published our 
proposed critical habitat designation for the Zuni bluehead sucker on 
January 25, 2013 (78 FR 5351); therefore, the amendments set forth in 
the February 11, 2016, final rule at 81 FR 7413 do not apply to this 
final designation of critical habitat for the Zuni bluehead sucker.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical 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, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Zuni bluehead sucker from studies of this subspecies' habitat, 
ecology, and life history as described in the proposed rule to 
designate critical habitat published in the Federal Register on January 
25, 2013 (78 FR 5351), in the revisions to the proposed critical 
habitat designation published in the Federal Register on April 14, 2015 
(80 FR 19941), and as described below. Habitat needs for specific life 
stages for the Zuni bluehead sucker have not been described; therefore, 
when necessary we rely on information available for the bluehead 
sucker, which is closely related to the Zuni bluehead sucker. 
Additional information can be found in the final listing rule published 
in the Federal Register on July 24, 2014 (79 FR 43132). We have 
determined that the Zuni bluehead sucker requires the physical or 
biological features described below.
Space for Individual and Population Growth and for Normal Behavior
    The Zuni bluehead sucker occurs in a variety of stream habitats 
ranging from no shade to habitats with abundant shade from overhanging 
vegetation and boulders, in pools, runs, and riffles with water 
velocities ranging from 0 to 0.35 meters per second (m/sec) (1.15 feet 
per second (ft/sec)) and average water depths ranging from 0.2-2.0 m 
(7.9-78.7 inches (in)) (Hanson 1980, pp. 34, 42; Propst and Hobbes 
1996, pp. 13, 16; NMDGF 2013, pp. 13-15). Shade provided by the 
overhanging vegetation buffers water temperature fluctuations in small, 
headwater streams, such as those occupied by the Zuni bluehead sucker 
(Whitledge et al. 2006, p. 1461). Substrate in Zuni bluehead sucker 
habitat ranges from silt and pebbles to cobbles, boulders, and bedrock 
(Hanson 1980, pp. 34, 42; Propst and Hobbes 1996, pp. 13, 16; NMDGF 
2013, pp. 13-15; Ulibarri 2015, p. 12). Maddux and Kepner (1988, p. 
364), observed that the bluehead sucker needed clean and loosely 
consolidated substrate, such as gravel, for both spawning and egg 
development. Similar observations were made for the Zuni bluehead 
sucker, where females selected spawning sites over loosely consolidated 
gravel (Service 2015a, entire). Excessive levels of silt can inhibit 
egg and juvenile fish development through the clogging of the small 
spaces between substrate particles, which prevents the free flow of 
oxygenated water. Additionally, siltation can reduce the suitability of 
the habitat for prey organisms. Juvenile bluehead suckers have been 
found near shore in slower and shallower habitats, then moving out into 
deeper water and faster flowing habitat as they age (Childs et al. 
1998, p. 624).
    Water temperatures in occupied habitats in Arizona and New Mexico 
have ranged from 2.0 to 22.3 [deg]C (35.6 to 72.1[emsp14][deg]F) during 
survey efforts (Propst et al. 2001, p. 163; NMDGF 2013, pp. 20-21, 
Ulibarri 2015, pp. 11-12).
    Therefore, based on the information above, we identify the 
following habitat

[[Page 36768]]

characteristics as the physical or biological features for the Zuni 
bluehead sucker:
     A variety of stream habitats, including riffles, runs, and 
pools, with appropriate flows and substrates, with low to moderate 
amounts of fine sediment and substrate embeddedness, as maintained by 
natural, unregulated flow that allows for periodic flooding or, if 
flows are modified or regulated, flow patterns that allow the river to 
mimic natural functions, such as flows capable of transporting 
sediment.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Food. The Zuni bluehead sucker is a benthic forager (eats food from 
the stream bottom) that scrapes algae, insects, and other organic and 
inorganic material from rock surface (NMDGF 2004, p. 8). Stomach 
content analysis of Zuni bluehead suckers revealed small particulate 
organic matter, including detritus (nonliving organic material), 
filamentous algae, small midge (two-winged fly) larvae, caddisfly 
larvae, mayfly larvae, flatworms, and occasional small terrestrial 
insects (Smith and Koehn 1979, p. 38). In addition, Smith and Koehn 
(1979, p. 38) also found fish scales, snails, and insect eggs in Zuni 
bluehead sucker stomachs.
    The primary food source for Zuni bluehead sucker is periphytic 
algae (algae attached to rocks), which occurs mainly on cobble, 
boulder, and bedrock substrates with clean flowing water. Only food 
found in stomach contents of adult Zuni bluehead suckers has been 
described. Stomach contents of larval bluehead suckers (<25 millimeters 
(mm) (~1 in) total length) have been analyzed (Muth and Snyder 1995, 
entire). Larval bluehead suckers feed on diatoms (a type of algae), 
zooplankton (small floating or swimming organisms that drift with water 
currents), and dipteran larvae (true fly larvae) in stream areas with 
low velocity or in backwater habitats (Muth and Snyder 1995, p. 100). 
Juvenile and adult bluehead suckers are reported primarily to eat a 
variety of inorganic material, organic material, and bottom-dwelling 
insects and other small organisms (Childs et al. 1998, p. 625; 
Osmundson 1999, p. 28; Brooks et al. 2000, pp. 66-69).
    Aquatic invertebrates are a secondary component of the Zuni 
bluehead sucker's diet. Aquatic invertebrates have specific habitat 
requirements of their own. Both caddisflies and mayflies occur 
primarily in a wide variety of standing and running water habitats with 
the greatest diversity being found in rocky-bottom streams with an 
abundance of oxygen (Merritt and Cummins 1996, pp. 126, 309). 
Caddisflies and mayflies feed on a variety of detritus, algae, diatoms, 
and macrophytes (aquatic plants) (Merritt and Cummins 1996, pp. 126, 
309). Habitat that consists of rocky bottoms with periphytic algal 
growth is not only important to sustain aquatic invertebrate 
populations, but also serves as a primary food resource of the Zuni 
bluehead sucker.
    Water. As a purely aquatic subspecies, Zuni bluehead suckers are 
entirely dependent on stream habitat for all stages of their life 
cycle. Therefore, perennial flows are an essential feature with 
appropriate seasonal flows to maintain habitat conditions that remove 
excess sediments. Areas with intermittent flows may serve as connective 
corridors between occupied or seasonally occupied habitat through which 
the subspecies may disperse when the habitat is wetted.
    There is little information on water quality requirements for the 
Zuni bluehead sucker. However, excessive sedimentation is the primary 
threat to water quality for the Zuni bluehead sucker (as discussed 
above), primarily due to its effects on reproduction and food 
resources. Turbidity (sediment suspended in the water column) can 
inhibit algae production through reducing sunlight penetration into the 
water.
    Therefore, based on the information above, we identify the 
following prey base and water quality characteristics as physical or 
biological features for the Zuni bluehead sucker:
     An abundant source of algae production and an aquatic 
insect food base consisting of caddisflies, mayflies, midges, and 
various terrestrial insects;
     Streams with no harmful levels of pollutants;
     Areas with low levels of sediment deposition;
     Perennial flows, or interrupted stream courses that are 
periodically dewatered but that serve as connective corridors between 
occupied or seasonally occupied habitat and through which the 
subspecies may disperse when the habitat is wetted;
     Dynamic flows that allow for periodic changes in channel 
morphology.
Cover or Shelter
    Cover from predation (by nonnative fish and avian predators) may be 
in the form of deep water or physical structure. Little is known about 
habitat characteristics specifically relating to cover for the Zuni 
bluehead sucker. However, during surveys, Zuni bluehead suckers have 
been found in shaded pools and near boulder outcrops, which may be used 
for cover (Kitcheyan 2012, pers. comm.). Additionally, mature bluehead 
suckers are found in deeper water than larvae and in habitats with less 
woody cover than younger life stages, which are more vulnerable to 
predation (Childs et al. 1998, p. 624). Recent investigations on Navajo 
Nation have shown that Zuni bluehead suckers use aquatic macrophytes as 
cover, perhaps due to the lack of riparian vegetation (Ulibarri 2015, 
p. 12). In contrast, bluehead suckers in an adjacent drainage were 
found to use branches and woody debris as cover (Ulibarri 2015, p. 12).
    Therefore, based on the information above, we identify the 
following characteristics for cover or shelter as physical or 
biological features for the Zuni bluehead sucker:
     Streams with large rocks, boulders, undercut banks, woody 
debris or aquatic macrophytes.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Zuni bluehead sucker spawn from early April to early June when 
water temperatures are 6 to 15 [deg]C (43 to 59[emsp14][deg]F), peaking 
around 10 [deg]C (50[emsp14][deg]F) (Propst 1999, p. 50; Propst et al. 
2001, p. 164). The Zuni bluehead sucker may have two spawning periods, 
with the majority of the spawning effort expended early in the season 
(Propst et al. 2001, p. 158). Females in spawning condition have been 
found over gravel beds (Sublette et al. 1990, p. 210; Propst et al. 
2001, p. 158). Clean substrates free of excessive sedimentation are 
essential for successful breeding (see the ``Habitat and Life History'' 
discussion in the final listing rule; 79 FR 43132, July 24, 2014). 
Periodic flooding removes excess silt and fine sand from the stream 
bottom, breaks up embedded bottom materials, and rearranges sediments 
in ways that promote algae production and create suitable habitats with 
silt-free substrates.
    Therefore, based on the information above, we identify the 
following characteristics for breeding, reproduction, or development of 
offspring as physical or biological features for the Zuni bluehead 
sucker:
     Gravel and cobble substrates;
     Pool and run habitats;
     Slower currents along stream margins with appropriate 
stream velocities for larvae;
     Instream flow velocities that are less than 0.35 m/sec 
(1.15 ft/sec); and
     Dynamic flows that allow for periodic changes in channel 
morphology.

[[Page 36769]]

Habitats Protected From Disturbance or Representative of the 
Historical, Geographical, and Ecological Distributions of the Species
    The Zuni bluehead sucker has a restricted geographic distribution. 
Endemic species (species that are exclusively native to a particular 
location) whose populations exhibit a high degree of isolation are 
extremely susceptible to extinction from both random and nonrandom 
catastrophic natural or human-caused events. Therefore, it is essential 
to maintain both springs and stream systems upon which the Zuni 
bluehead sucker depends. This means protection from disturbance caused 
by exposure to land management actions (logging, cattle grazing, and 
road construction), water contamination, water depletion, or nonnative 
species. The Zuni bluehead sucker must, at a minimum, sustain its 
current distribution for the subspecies to continue to persist.
    Introduced species are a serious threat to native aquatic species 
(Miller 1961, pp. 365, 397-398; Lachner et al. 1970, p. 21; Ono et al. 
1983, pp. 90-91; Carlson and Muth 1989, pp. 222, 234; Fuller et al. 
1999, p. 1; Propst et al. 2008, pp. 1246-1251; Pilger et al. 2010, pp. 
300, 311-312; see both Factor C: Disease or Predation and Factor E: 
Other Natural or Manmade Factors Affecting Its Continued Existence 
discussions in our final listing rule published July 24, 2014 (79 FR 
43132)). Because the distribution of the Zuni bluehead sucker is so 
isolated and its habitat so restricted, introduction of certain 
nonnative species into its habitat could be devastating. Potentially 
harmful nonnative species include green sunfish (Lepomis cyanellus), 
northern crayfish (Orconectes virilis), fathead minnow (Pimephales 
promelas), and other nonnative fish-eating fishes.
    The Zuni bluehead sucker typically inhabits small desert stream 
systems including isolated headwater springs, small headwater springs, 
and mainstem river habitats (Gilbert and Carman 2011, p. 2) with clean, 
hard substrate; flowing water; and abundant riparian vegetation. 
Degraded habitat consists of silt-laden substrates; high turbidity; and 
deep, stagnant water (Gilbert and Carman 2011, p. 6). Therefore, based 
on the information above, we identify the necessary physical or 
biological features for the Zuni bluehead sucker:
     Nondegraded habitat devoid of nonnative aquatic species, 
or habitat in which nonnative aquatic species are at levels that allow 
persistence of the Zuni bluehead sucker.

Primary Constituent Elements for the Zuni Bluehead Sucker

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Zuni bluehead sucker in areas occupied at the time 
of listing, focusing on the features' primary constituent elements. 
Primary constituent elements are those specific elements of the 
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the 
subspecies' life-history processes, we determine that the primary 
constituent elements specific to the Zuni bluehead sucker are:
    (1) A riverine system with habitat to support all life stages of 
the Zuni bluehead sucker (egg, larval, juvenile, and adult), which 
includes:
    a. Dynamic flows that allow for periodic changes in channel 
morphology and adequate river functions, such as channel reshaping and 
delivery of coarse sediments;
    b. Stream courses with perennial flows or intermittent flows that 
serve as connective corridors between occupied or seasonally occupied 
habitat through which the subspecies may disperse when the habitat is 
wetted;
    c. Stream mesohabitat types including runs, riffles, and pools with 
substrate ranging from gravel, cobble, and bedrock substrates with low 
or moderate amounts of fine sediment and substrate embeddedness;
    d. Streams with depths generally less than 2 m (3.3 ft), and with 
slow to swift flow velocities less than 0.35 m/sec (1.15 ft/sec);
    e. Clear, cool water with low turbidity and temperatures in the 
general range of 2.0 to 23.0 [deg]C (35.6 to 73.4[emsp14][deg]F);
    f. No harmful levels of pollutants; and
    g. Adequate riparian shading to reduce water temperatures when 
ambient temperatures are high and provide protective cover from 
predators.
    (2) An abundant aquatic insect food base consisting of fine 
particulate organic material, filamentous algae, midge larvae, 
caddisfly larvae, mayfly larvae, flatworms, and small terrestrial 
insects.
    (3) Areas devoid of nonnative aquatic species or areas that are 
maintained to keep nonnatives at a level that allows the Zuni bluehead 
sucker to continue to survive and reproduce.

Special Management Considerations or Protection

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

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. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b) we 
review available information pertaining to the habitat requirements of 
the species and identify occupied areas at the time of listing that 
contain the features essential to the conservation of the species. If, 
after

[[Page 36770]]

identifying currently occupied areas, we determine that those areas are 
inadequate to ensure conservation of the species, in accordance with 
the Act and our implementing regulations at 50 CFR 424.12(e) we then 
consider whether designating additional areas--outside those currently 
occupied--are essential for the conservation of the species. We are 
designating critical habitat in areas within the geographical area 
occupied by the subspecies at the time of listing in 2014. We also are 
designating specific areas outside the geographical area occupied by 
the subspecies at the time of listing that were historically occupied 
but are presently unoccupied, because we have determined that such 
areas are essential for the conservation of the subspecies.
    Sources of data for this subspecies include multiple databases 
maintained by universities and State agencies from Arizona and New 
Mexico, existing State recovery plans, endangered species reports, and 
numerous survey reports on streams throughout the subspecies' range 
(Propst 1999, pp. 49-51; NMDGF 2003, pp. 6-10; NMDGF 2004, pp. 1-40; 
David 2006, pp. 1-40; NMDGF 2007, pp. 1-27; Douglas et al. 2009, p. 67; 
Navajo Nation Heritage Program 2012, pp. 1-20, NMDGF 2013, entire). We 
have also reviewed available information that pertains to the habitat 
requirements of this subspecies. Sources of information on habitat 
requirements include existing State recovery plans, endangered species 
reports, studies conducted at occupied sites and published in peer-
reviewed articles, agency reports, and data collected during monitoring 
efforts (Propst et al. 2001, pp. 159-161; NMDGF 2003, pp. 1-14; NMDGF 
2004, pp. 4-7; Kitcheyan and Mata 2013, pp. 5-12).
    The current distribution of the Zuni bluehead sucker is much 
reduced from its historical distribution. We anticipate that recovery 
will require continued protection of existing populations and habitat, 
as well as establishing populations in additional streams that more 
closely approximate its historic distribution in order to ensure there 
are adequate numbers of fish in stable populations and that these 
populations occur over a wide geographic area. This will help to ensure 
that catastrophic events, such as wildfire, cannot simultaneously 
affect all known populations.
Areas Occupied at the Time of Listing
    The critical habitat designation includes all streams known to have 
been occupied by the subspecies historically and that have retained the 
necessary PCEs that will allow for the maintenance and expansion of 
existing populations. The following streams meet the definition of 
areas occupied by the subspecies at the time of listing: Agua Remora, 
Rio Nutria, Tampico Springs, Tampico Draw, Kinlichee Creek, Black Soil 
Wash, and Scattered Willow Wash. There are no developed areas within 
the designation except for barriers constructed on streams or road 
crossings of streams, which do not remove the suitability of these 
areas for this subspecies.
Areas Outside the Geographical Area Occupied by the Species at the Time 
of Listing
    The Zuni River, Rio Pescado, Cebolla Creek, and Red Clay Wash are 
within the historical range of the Zuni bluehead sucker but are not 
within the geographical range occupied by the subspecies at the time of 
listing. The Zuni River and Rio Pescado experience a high degree of 
river intermittency, and the Zuni bluehead sucker has not been seen in 
these streams in approximately 20 years. Additionally, Zuni bluehead 
suckers have not been observed in Cebolla Creek and Red Clay Wash in 
over 30 years. We consider these sites to be extirpated. For areas not 
occupied by the subspecies at the time of listing, we must demonstrate 
that these areas are essential to the conservation of the subspecies in 
order to include them in our critical habitat designation. To determine 
if these areas are essential for the conservation of the Zuni bluehead 
sucker, we considered: (1) The importance of the site to the overall 
status of the subspecies to prevent extinction and contribute to future 
recovery of the Zuni bluehead sucker; (2) whether special management 
could cause the site to contain the necessary habitat to support the 
Zuni bluehead sucker; (3) whether the site provides connectivity 
between occupied sites for genetic exchange; and (4) whether a 
population of the subspecies could be reestablished in the area.
    Of the unoccupied streams, the Zuni River, Rio Pescado and Cebolla 
Creek exhibit varying degrees of intermittency; the Zuni River and Rio 
Pescado are generally only continuous after heavy flows in the spring 
(NMDGF 2004, p. 13; New Mexico Environment Department (NMED) 2004, p. 
1). However, when the Zuni River, Rio Pescado, and portions of Cebolla 
Creek do exhibit flow, and if special management were to occur, they 
could allow for important population expansion in this watershed. These 
sites include habitat for connectivity and dispersal opportunities 
between occupied and occupied areas. Such opportunities for dispersal 
assist in maintaining the population structure and distribution of the 
subspecies. The current amount of habitat that is occupied is not 
sufficient for the recovery of the subspecies. Therefore, the 
unoccupied areas are essential for the conservation of the Zuni 
bluehead sucker.
    In summary, for areas within the geographic area occupied by the 
subspecies at the time of listing, we delineated critical habitat unit 
boundaries by evaluating habitat suitability of stream segments within 
the geographic area occupied at the time of listing, and retaining 
those segments that contain some or all of the PCEs to support life-
history functions essential for conservation of the subspecies.
    For areas outside the geographic area occupied by the subspecies at 
the time of listing, we delineated critical habitat unit boundaries by 
evaluating stream segments not known to have been occupied at listing 
but that are within the historical range of the subspecies (outside of 
the geographic area occupied by the subspecies) to determine if they 
are essential to the conservation of the subspecies. Essential areas 
are those that:
    (1) Are important to the overall status of the subspecies to 
prevent extinction and contribute to future recovery;
    (2) Expand the geographic distribution within areas not occupied at 
the time of listing across the historical range of the subspecies;
    (3) Serve as an extension of habitat within the geographic area of 
an occupied unit; and
    (4) Are connected to other occupied areas, which will enhance 
genetic exchange between populations.
    In conclusion, based on the best available information, we 
determined that the areas within the historical range are essential to 
provide for the conservation of the Zuni bluehead sucker because they 
include habitat for all extant populations, and they include habitat 
for connectivity and dispersal opportunities between the unit and 
occupied areas. Such opportunities for dispersal assist in maintaining 
the population structure and distribution of the subspecies. The 
current amount of habitat that is occupied is not sufficient for the 
recovery of the subspecies; therefore, we include unoccupied habitat in 
this critical habitat designation.
    As a final step, we evaluated the occupied stream segments and 
refined the starting and ending points by evaluating the presence or 
absence of appropriate PCEs. We selected upstream and downstream cutoff 
points to omit areas that are highly degraded and are

[[Page 36771]]

not likely to be able to support the Zuni bluehead sucker in the 
future. For example, permanently dewatered areas, or areas in which 
there was a change to unsuitable characteristics (e.g., water quality, 
bedrock substrate), were used to mark the start or endpoint of a stream 
segment proposed for designation. Critical habitat stream segments were 
then mapped using ArcMap version 10 (Environmental Systems Research 
Institute, Inc.), a Geographic Information Systems program.
    Areas designated as critical habitat provide sufficient stream and 
spring habitat for breeding, nonbreeding, and dispersing adult Zuni 
bluehead suckers, as well as for the habitat needs for juvenile and 
larval stages of this fish. In general, the PCEs of critical habitat 
are contained within the riverine ecosystem formed by the wetted 
channel and the adjacent floodplains within 91.4 lateral m (300 lateral 
ft) on either side of bankfull discharge, except where bounded by 
canyon walls. Bankfull discharge is the flow at which water begins to 
leave the channel and disperse into the floodplain and generally occurs 
every 1 to 2 years. Areas within the lateral extent also contribute to 
the PCEs, including water quality and intermittent areas through which 
fish may disperse when wetted.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack physical or biological features for the Zuni bluehead 
sucker. The scale of the maps we prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect the 
exclusion of such developed lands. Any such lands inadvertently left 
inside critical habitat boundaries shown on the maps of this final rule 
have been excluded by text in the rule and are not designated as 
critical habitat. Therefore, a Federal action involving these lands 
will not trigger section 7 consultations 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.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the Regulation Promulgation section. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0002, on our Internet site at http://www.fws.gov/southwest/es/NewMexico/, and at the field office responsible for the designation 
(see FOR FURTHER INFORMATION CONTACT, above).
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain sufficient 
physical or biological features to support life-history processes 
essential to the conservation of the subspecies, and lands outside of 
the geographical area occupied at the time of listing that we have 
determined are essential for the conservation of the Zuni bluehead 
sucker.
    Units are designated based on sufficient elements of physical or 
biological features being present to support the Zuni bluehead sucker's 
life processes. Some units contain all of the identified elements of 
physical or biological features and support multiple life processes. 
Some segments contain only some elements of the physical or biological 
features necessary to support the Zuni bluehead sucker's particular use 
of that habitat.

Final Critical Habitat Designation

    We are designating one unit, the Zuni River Unit, as critical 
habitat for the Zuni bluehead sucker. Following our evaluation and 
analysis under section 4(b)(2) of the Act, Unit 2 (Kinlichee Creek 
Unit) is excluded in its entirety (see Consideration of Impacts under 
Section 4(b)(2) of the Act, below). The critical habitat areas 
described below constitute our best assessment at this time of areas 
that meet the definition of critical habitat. Table 1 shows the 
occupied subunits.

                       Table 1--Designated Critical Habitat Unit for Zuni Bluehead Sucker
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                         Occupied at the time of                              Length of unit  in
            Stream segment                       listing                 Land ownership       kilometers (miles)
----------------------------------------------------------------------------------------------------------------
                                             Unit 1--Zuni River Unit
----------------------------------------------------------------------------------------------------------------
                                        Subunit 1a--Zuni River Headwaters
----------------------------------------------------------------------------------------------------------------
Agua Remora...........................  Yes......................  Forest Service...........           6.6 (4.1)
                                                                   Private..................           2.4 (1.5)
Rio Nutria............................  Yes......................  Forest Service...........           4.1 (2.6)
                                                                   State of New Mexico......           1.8 (1.1)
                                                                   Private..................          14.2 (8.8)
Tampico Draw..........................  Yes......................  Forest Service...........           2.3 (1.4)
                                                                   Private..................           3.7 (2.3)
Tampico Spring........................  Yes......................  Private..................           0.2 (0.1)
                                                                                             -------------------
    Total.............................  .........................  .........................         35.4 (22.0)
----------------------------------------------------------------------------------------------------------------
                                         Subunit 1b--Zuni River Mainstem
----------------------------------------------------------------------------------------------------------------
Cebolla Creek.........................  No.......................  State of New Mexico......           0.4 (0.2)
                                                                   Forest Service...........           6.4 (4.0)
                                                                   Private..................          13.5 (8.4)
                                                                                             -------------------
    Total.............................  .........................  .........................         20.3 (12.6)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


[[Page 36772]]

    Below we present brief descriptions of the unit and reasons why it 
meets the definition of critical habitat for the Zuni bluehead sucker.

Unit 1: Zuni River Unit

    Subunit 1a--Zuni River Headwaters: Subunit 1a consists of 35.4 km 
(22.0 mi) along Agua Remora, Rio Nutria, Tampico Draw, and Tampico 
Springs in McKinley County, New Mexico. We exclude approximately 38.9 
km (24.2 mi) of Subunit 1a, which was primary along the Rio Nutria on 
the Zuni Reservation. The land in this subunit is primarily owned by 
Forest Service, and private landowners with a small amount of State 
inholdings. At the time of listing, the Zuni bluehead sucker occupied 
all stream reaches in this subunit, and the subunit contains all of the 
physical or biological features essential to the conservation of the 
Zuni bluehead sucker. This unit represents the only remaining headwater 
spring habitats occupied by Zuni bluehead sucker.
    Activities in the watershed include livestock grazing, water 
withdrawals, and impoundments. Livestock grazing is primarily regulated 
by the Forest Service in this subunit; however, trespass livestock 
grazing may occur. Additional special management considerations or 
protection may be required within Subunit 1a to address low water 
levels as a result of water withdrawals and drought, predation from 
nonnative green sunfish (Lepomis cyanellus), and the upstream and 
downstream effects of impoundments. Such special management or 
protection may include maintaining instream flows, nonnative species 
removal, and reservoir management that improves upstream and downstream 
habitat to benefit the Zuni bluehead sucker.
    Subunit 1b--Zuni River Mainstem: Subunit 1b consists of 20.3 km 
(12.6 mi) of potential Zuni bluehead sucker habitat along Cebolla Creek 
in McKinley and Cibola Counties, New Mexico. Land within this subunit 
is primarily owned by private landowners, with a small amount owned by 
Forest Service and the State of New Mexico. We removed 7.9 km (4.9 mi) 
of Cebolla Creek that had been included in the proposed designation 
because it does not meet the definition of critical habitat. Based upon 
further investigation, a section of Cebolla Creek (from Pescado 
Reservoir upstream on Cebolla Creek to Ramah Reservoir) lacks certain 
morphological features of suitable Zuni bluehead sucker habitat with no 
running water present except during periods of rain; this reach is 
unlikely to have perennial or intermittent flows due to agricultural 
practices in the area. This section of Cebolla Creek is not essential 
to the conservation of the subspecies and does not meet the definition 
of critical habitat. Therefore, critical habitat in Cebolla Creek is 
the reach from Ramah Reservoir upstream for approximately 23.2 km (14.4 
mi) of stream habitat.
    This unit was unoccupied at the time of listing. Zuni bluehead 
sucker historically occupied streams (Zuni River and Rio Pescado) 
adjacent to Cebolla Creek but has not been found in the Zuni River or 
Rio Pescado since the mid-1990s (NMDGF 2004, p. 5). In addition, the 
Zuni bluehead sucker has been extirpated from Cebolla Creek since at 
least 1979 (Hanson 1980, pp. 29, 34). Cebolla Creek upstream of Ramah 
Reservoir has been identified as containing suitable habitat and could 
provide for significant population expansion. Therefore, this subunit 
is essential for the conservation of the Zuni bluehead sucker because 
it provides growth and expansion of the subspecies in this portion of 
its historical range.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule that sets forth a new definition of 
``destruction or adverse modification'' on February 11, 2016 (81 FR 
7214); that final rule became effective on March 14, 2016. 
``Destruction or adverse modification'' means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for the conservation of a listed species. Such alterations may include, 
but are not limited to, those that alter the physical or biological 
features essential to the conservation of a species or that preclude or 
significantly delay development of such features.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate

[[Page 36773]]

consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

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

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation.''
    There are no Department of Defense lands within the critical 
habitat designation for the Zuni bluehead sucker; therefore, we are not 
exempting any areas under section 4(a)(3)(B)(i) of the Act.

Consideration of Impacts Under 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.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State, Tribal, or Federal 
laws that may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more

[[Page 36774]]

conservation than a critical habitat designation would provide.
    In the case of the Zuni bluehead sucker, the benefits of critical 
habitat include promotion of public awareness of the presence of the 
Zuni bluehead sucker and the importance of habitat protection, and in 
cases where a Federal nexus exists, potentially greater habitat 
protection for the Zuni bluehead sucker due to the protection from 
adverse modification or destruction of critical habitat.
    When we evaluate the existence of a conservation plan when 
considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates the benefits of exclusion outweigh the benefits of inclusion, 
we then determine whether exclusion would result in extinction. If 
exclusion of an area from critical habitat will result in extinction, 
we will not exclude it from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments we received, we evaluated 
whether certain lands in the proposed critical habitat were appropriate 
for exclusion from this final designation pursuant to section 4(b)(2) 
of the Act. We are excluding the following areas from critical habitat 
designation for the Zuni bluehead sucker:

               Table 3--Areas Excluded From Critical Habitat Designation by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting the
                                                                 definition of critical    Areas excluded from
           Subunit             Specific area    Land ownership   habitat, in kilometers    critical habitat, in
                                                                        (miles)            kilometers  (miles)
----------------------------------------------------------------------------------------------------------------
1a..........................  Rio Nutria.....  Zuni Tribe.....              38.9 (24.2)              38.9 (24.2)
1b..........................  Zuni River.....  Zuni Tribe.....                7.4 (4.6)                7.4 (4.6)
1b..........................  Rio Pescado....  Zuni Tribe.....              18.3 (11.4)              18.3 (11.4)
1b..........................  Cebolla Creek..  Zuni Tribe.....                3.7 (2.3)                3.7 (2.3)
2a..........................  Black Soil Wash  Navajo Nation..              21.6 (13.4)              21.6 (13.4)
2a..........................  Kinlichee Creek  Navajo Nation..              47.1 (29.3)              47.1 (29.3)
2a..........................  Scattered        Navajo Nation..              18.2 (11.3)              18.2 (11.3)
                               Willow Wash.
2b..........................  Red Clay Wash..  Navajo Nation..                9.6 (6.0)                9.6 (6.0)
----------------------------------------------------------------------------------------------------------------

Consideration of 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 incremental effects 
memorandum (IEM) and screening analysis which together with our 
narrative and interpretation of effects we consider our draft economic 
analysis (DEA) of the proposed critical habitat designation and related 
factors (IEc 2014, entire).
    The analysis, dated October 22, 2014, was made available for public 
review from April 14, 2015, through May 14, 2015 (80 FR 19941). The DEA 
addressed probable economic impacts of critical habitat designation for 
the Zuni bluehead sucker. Following the close of the comment period, we 
reviewed and evaluated all information submitted during the comment 
period that may pertain to our consideration of the probable 
incremental economic impacts of this critical habitat designation. 
Additional information relevant to the probable incremental economic 
impacts of critical habitat designation for the Zuni bluehead sucker is 
summarized below and available in the screening analysis for the Zuni 
bluehead sucker (IEc 2014, entire), at http://www.regulations.gov under 
Docket No. FWS-R2-ES-2013-0002.
    We prepared an incremental effects memorandum (IEM) and screening 
analysis which, together, we consider our draft economic analysis (DEA) 
of the proposed critical habitat designation and related factors (IEc 
2014, entire). As required by Executive Order 12866, any rule that 
results in costs that exceed $100 million is considered a significant 
regulatory action. The purpose of the economic analysis is to provide 
us with the information on the potential for the proposed critical 
habitat rule to result in costs or benefits exceeding $100 million in 
any given year. The economic analysis addressed potential economic 
impacts of critical habitat designation for the Zuni bluehead sucker. 
The analysis estimates impacts to activities, including Federal lands 
management, roadway and bridge construction, agriculture, grazing, 
groundwater pumping, and instream dams and diversions, that may 
experience the greatest impacts in compliance with section 4(b)(2) of 
the Act. The economic impacts will most likely be limited to additional 
administrative effort resulting from a small number of future section 7 
consultations, as well as minor costs of conservation efforts. This 
finding is based on the following information:
    1. Approximately 70 percent (161.1 km (100.1 mi)) of proposed 
critical habitat stream reaches are considered to be occupied by the 
subspecies. Critical habitat designation is unlikely to result in 
incremental changes to conservation actions in currently occupied areas 
over and above those necessary to avoid jeopardizing of the subspecies. 
As such, only administrative costs are expected in those areas.
    2. In proposed areas that are not occupied by Zuni bluehead sucker 
(30 percent of proposed critical habitat), few actions are expected to 
result in section 7 consultation or associated project modifications. 
In particular, Subunit 2b (9.6 km (6.0 mi)) occurs entirely on Navajo 
Nation lands. Our outreach efforts to Navajo Nation indicate that there 
would be no projects that would result in section 7 consultation within 
the proposed critical habitat areas on these lands. Subunit 1b (57.6 km 
(35.8 mi)) includes U.S. Forest Service, private, State, and Zuni 
Pueblo lands. Communications with affected entities indicate that 
critical habitat designation is unlikely to result in more than just a 
few consultations in this unit, with

[[Page 36775]]

minor conservation efforts that would result in relatively low costs.
    3. We are excluding 164.8 km (102.4 mi) and removing 7.9 km (4.9 
mi) of critical habitat from the final designation; therefore, the 
economic impacts of critical habitat designation are expected to be 
less than the economic analysis anticipated.
    Entities most likely to incur costs are parties to section 7 
consultations, including Federal action agencies and, in some cases, 
third parties, most frequently State agencies or municipalities. 
Activities potentially subject to consultations that may involve 
private entities as third parties are primarily limited to residential 
and commercial development. The cost to private entities within these 
sectors is expected to be relatively minor (administrative costs of 
less than $10,000 per consultation effort). Therefore, we conclude that 
these future costs are unknown, but appear unlikely to exceed $100 
million in any single year. Therefore, we conclude that critical 
habitat designation for the Zuni bluehead sucker is unlikely to 
generate costs exceeding $100 million in a single year.

Exclusions Based on Economic Impacts

    The Service considered the economic impacts of the critical habitat 
designation and the Secretary is not exercising her discretion to 
exclude any areas from this designation of critical habitat for the 
Zuni bluehead sucker based on economic impacts.
    A copy of the IEM and screening analysis with supporting documents 
may be obtained by contacting the New Mexico Ecological Services Field 
Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov.

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that there were no lands identified to have a national 
security impact. Consequently, the Secretary is not exercising her 
discretion to exclude any areas from this final designation based on 
impacts on national security or homeland security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we also consider any other 
relevant impacts resulting from the designation of critical habitat. We 
consider a number of factors, including whether the landowners have 
developed any HCPs or other management plans for the area, or whether 
there are conservation partnerships that would be encouraged by 
designation of, or exclusion from, critical habitat. In addition, we 
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.
Tribal Lands
    There are several Executive Orders, Secretarial Orders, and 
policies that relate to working with Tribes. These guidance documents 
generally confirm our trust responsibilities to Tribes, recognize that 
Tribes have sovereign authority to control Tribal lands, emphasize the 
importance of developing partnerships with Tribal governments, and 
direct the Service to consult with Tribes on a government-to-government 
basis.
    A joint Secretarial Order that applies to both the Service and the 
National Marine Fisheries Service (NMFS), Secretarial Order 3206, 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most 
comprehensive of the various guidance documents related to Tribal 
relationships and Act implementation, and it provides the most detail 
directly relevant to the designation of critical habitat. In addition 
to the general direction discussed above, S.O. 3206 explicitly 
recognizes the right of Tribes to participate fully in the listing 
process, including designation of critical habitat. The Order also 
states: ``Critical habitat shall not be designated in such areas unless 
it is determined essential to conserve a listed species. In designating 
critical habitat, the Services shall evaluate and document the extent 
to which the conservation needs of the listed species can be achieved 
by limiting the designation to other lands.'' In light of this 
instruction, when we undertake a discretionary section 4(b)(2) 
exclusion analysis, we will always consider exclusions of Tribal lands 
under section 4(b)(2) of the Act prior to finalizing a designation of 
critical habitat, and will give great weight to Tribal concerns in 
analyzing the benefits of exclusion.
    However, S.O. 3206 does not preclude us from designating Tribal 
lands or waters as critical habitat, nor does it state that Tribal 
lands or waters cannot meet the Act's definition of ``critical 
habitat.'' We are directed by the Act to identify areas that meet the 
definition of ``critical habitat'' (i.e., areas occupied at the time of 
listing that contain the essential physical or biological features that 
may require special management or protection and unoccupied areas that 
are essential to the conservation of a species), without regard to 
landownership. While S.O. 3206 provides important direction, it 
expressly states that it does not modify the statutory authority of the 
Secretary of the Interior and the Secretary of Commerce.
    We sometimes exclude specific areas from critical habitat 
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships. A conservation plan or agreement describes actions that 
are designed to provide for the conservation needs of a species and its 
habitat, and may include actions to reduce or mitigate negative effects 
on the species caused by activities on or adjacent to the area covered 
by the plan. Conservation plans or agreements can be developed by 
private entities with no Service involvement, or in partnership with 
the Service.
    We evaluate a variety of factors to determine how the benefits of 
any exclusion and the benefits of inclusion are affected by the 
existence of private or other non-Federal conservation plans or 
agreements and their attendant partnerships when we undertake a 
discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list 
of factors that we will consider for non-permitted plans or agreements 
is shown below. These factors are not required elements of plans or 
agreements, and all items may not apply to every plan or agreement.
    (1) The degree to which the plan or agreement provides for the 
conservation of the species or the essential physical or biological 
features (if present) for the species;
    (2) Whether there is a reasonable expectation that the conservation 
management strategies and actions contained in a management plan or 
agreement will be implemented;
    (3) The demonstrated implementation and success of the chosen 
conservation measures;
    (4) The degree to which the record of the plan supports a 
conclusion that a critical habitat designation would impair the 
realization of benefits expected from the plan, agreement, or 
partnership;
    (5) The extent of public participation in the development of the 
conservation plan;

[[Page 36776]]

    (6) The degree to which there has been agency review and required 
determinations (e.g., State regulatory requirements), as necessary and 
appropriate;
    (7) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 
et seq.) compliance was required; and
    (8) Whether the plan or agreement contains a monitoring program and 
adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
    We believe that the Navajo Nation Fisheries Management Plan and 
Zuni Tribe's draft Fisheries Management Plan fulfill the above 
criteria, and, as discussed below, are excluding non-Federal lands 
covered by these plans that provide for the conservation of the Zuni 
bluehead sucker.
I. Navajo Nation
    On Navajo Nation (Unit 2 in the proposed rule), we proposed 96.5 km 
(60.0 mi) of critical habitat along the stream channels within Apache 
County, Arizona. Much of the habitat was historically occupied by the 
subspecies with individuals detected as recently as 2015 (Crabtree and 
Buth 1987, p. 851; Kitcheyan and Mata 2013, p. 10; Service 2015b, 
entire). Subunit 2 was considered occupied at the time of listing, 
except for Subunit 2b (Red Clay Wash).
A. Navajo Nation Fisheries Management Plan
    Navajo Nation has developed a Fisheries Management Plan (FMP), 
which is a joint effort between Navajo Nation Department of Fish and 
Wildlife (NNDFW), the Service, and the Bureau of Indian Affairs (BIA). 
The FMP is designed for the purpose of long-term planning and 
implementation of fisheries-related issues on Navajo Nation and is part 
of an integrated, interagency cooperative effort to manage its 
fisheries resources based on sound ecological management practices. The 
FMP serves as a guide for accomplishing the goals outlined in the 
management plan for managing, maintaining, enhancing, and conserving 
the fisheries resources on the Navajo Nation. One objective in the FMP 
is to identify and protect existing Zuni bluehead sucker populations 
and their habitats, and expand their distribution to suitable streams. 
This would be accomplished by the following actions:
    (1) Monitoring populations of Zuni bluehead sucker and their 
habitat conditions to evaluate population structure, distribution, and 
dynamics, and to implement adaptive management programs and habitat 
restoration where needed.
    (2) Re-establishing the Zuni bluehead sucker in reclaimed streams 
using existing Zuni bluehead suckers from Federal hatchery facilities, 
or from a donor stream.
    (3) Reducing or eliminating threats from nonnative fishes and other 
nonnative aquatic biota (e.g., crayfish), if present within recovery 
portions of streams using mechanical, chemical, or other effective 
methods.
    (4) When possible, constructing fencing exclosures to minimize and/
or prevent domestic livestock overgrazing and encroachment into 
riparian areas.
    (5) Improving and restoring habitat conditions as needed to provide 
suitable habitat for the Zuni bluehead sucker.
    (6) Evaluating the feasibility of constructing and maintaining 
artificial fish barriers to prevent upstream movement of nonnative 
fishes into protected areas.
    (7) Monitoring for presence of diseases and/or causative agents, 
parasites, and pathogens through wild fish health surveys.
    (8) Identifying facilities or refugium sites (i.e., natural or 
hatchery) with capacity to maintain isolated populations of Zuni 
bluehead sucker, and establishing a broodstock program to act as a 
refugia population.
    (9) Developing and implementing fire and drought contingency plans 
to formalize rescue and refugia strategy for the protection of 
temporarily vulnerable populations.
    (10) Participating in a Zuni bluehead sucker Recovery Team, if 
established, or recovery planning, when initiated by the Service.
    (11) Coordinating annual meetings to evaluate the subspecies' 
status, distribution, and potential impacts, and to inform and update 
agency partners of recovery actions and progress (NNDFW 2015, pp. 26-
27).
    In addition, NNDFW has authority over endangered and threatened 
species protection, and all temporary and permanent developments (i.e., 
draining, dredging, filling, excavating, building, grazing, and 
pollution) within designated sensitive areas must receive a permit or 
other formal authorization from NNDFW. Navajo Nation evaluates a 
project's potential impact on protected fish and wildlife and their 
habitats by using their Natural Heritage Database and various tribal 
and Federal wildlife protection regulations (refer to the discussion 
under Factor D. The Inadequacy of Existing Regulatory Mechanisms in our 
final listing rule published July 24, 2014 (79 FR 43132)). Navajo 
Nation's regulatory process divides their land into six separate land 
status categories to manage actions in a way that minimize impacts to 
sensitive species and habitats.
    The Zuni bluehead sucker critical habitat that was proposed within 
the Kinlichee Creek Watershed falls into areas that Navajo Nation has 
delineated as a highly sensitive area. Highly Sensitive Areas are areas 
that are the most protected on Navajo Nation and contain a high degree 
of habitat or resource importance for one or more protected species; 
these areas have been relatively undisturbed by development. Permanent 
development is not prohibited, but those developments must demonstrate 
that impacts to protected species will be minimal, and if possible, 
NNDFW strongly urges relocating projects to less sensitive habitats.
    In the FMP, Navajo Nation recognizes that management is needed to 
address impacts that grazing has on riparian areas near Zuni bluehead 
sucker habitat. Navajo Nation can withdraw riparian habitat from 
grazing use and has previously worked with other Navajo agencies to 
reduce and eliminate grazing in important habitats along the San Juan 
River. Efforts are underway by Navajo policy makers and agencies to 
address past grazing impacts on Navajo Nation lands and to improve 
protection and enforcement of Navajo resources and ecosystems. For 
example, in 2012, the Navajo Departments of Resource Enforcement and 
Agriculture conducted roundups to reduce overgrazing by stray, feral, 
and unpermitted livestock.
    Additionally, Navajo Nation and BIA conducted public outreach 
regarding grazing impacts and the necessity of immediate and proactive 
steps to be taken to reduce grazing pressure and restore productivity 
of Navajo Nation rangelands. More recently, Navajo Nation has developed 
a draft Navajo Rangeland Improvement Act of 2014 to improve the 
ecological health and productivity of Navajo rangelands in order to 
protect the interests of present and future generations of Navajo 
people (Navajo Nation 2014, entire). One purpose is to mandate the 
implementation of sound grazing management and conservation techniques 
and practices on Navajo rangelands (Navajo Nation 2014, p. 4). Although 
the Navajo Rangeland Improvement Act of 2014 is currently draft, it 
provides evidence of the Navajo Nation's interest in conserving habitat 
and minimizing impacts of grazing, a result of our positive working 
relationship.

[[Page 36777]]

B. Benefits of Inclusion
    As discussed above under Section 7 Consultation, Federal agencies, 
in consultation with the Service, must ensure that their actions are 
not likely to jeopardize the continued existence of any listed species 
or result in the destruction or adverse modification of any designated 
critical habitat of such species. The difference in the outcomes of the 
jeopardy analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat.
    Unit 2 of the proposed critical habitat for Zuni bluehead sucker is 
the Kinlichee Creek Unit, which contains Subunits 2a (occupied) and 2b 
(unoccupied). If there are Federal actions or if Federal permitting 
occurs in Subunit 2a, these actions would undergo section 7 
consultation under the jeopardy standard, because the subunit is 
occupied by the subspecies. Critical habitat along Subunit 2a 
(Kinlichee Creek, Black Soil Wash, and Scattered Willow Wash) may not 
provide an additional regulatory benefit for the Zuni bluehead sucker 
under section 7 of the Act when there is a Federal nexus present for a 
project that might adversely modify critical habitat. Because the 
subspecies is so closely tied to its habitat, the results of 
consultation under the adverse modification standard are not likely to 
differ from the results of consultation under the jeopardy standard. It 
is unlikely that additional project modification would be required 
above and beyond those to avoid jeopardy in order to avoid adverse 
modification or destruction of critical habitat. However, Subunit 2b 
(Red Clay Wash) is unoccupied by the Zuni bluehead sucker; therefore, 
if a Federal action or permitting occurs, there may not be a 
consultation under section 7 of the Act unless critical habitat is 
designated. Our coordination with the Navajo Nation indicates that it 
is unlikely that any project will result in section 7 consultation 
within the areas proposed as critical habitat within Subunit 2b. Our 
Incremental Effects Memo provides further description of this (Service 
2013, entire).
    Our economic analysis found that incremental costs would mainly 
occur in unoccupied areas of critical habitat, specifically Subunit 2b. 
Based on communications with Navajo Nation, we do not anticipate a 
significant number of consultations in this subunit, resulting in 
relatively low cost. We do not anticipate that any formal consultations 
from urban development or recreation would occur if critical habitat 
were designated, primarily because there would be no Federal nexus. The 
types of projects we might anticipate that may have a Federal nexus 
(riparian habitat restoration, forest management plans, and livestock 
grazing activities) would all provide long-term benefits to Zuni 
bluehead sucker habitat, suggesting that effects to the Zuni bluehead 
sucker from Federal projects would likely result in insignificant and 
discountable impacts because conservation measures would be focused on 
habitat improvement and management. Because of how Navajo Nation 
manages and conserves their lands through establishment of policies, 
rules, and regulation (such as the Navajo Nation Endangered Species 
List, Biological Resources Land Use Clearance Policies and Procedures, 
Navajo Nation Water Quality Standards of 2007, Navajo Nation Aquatic 
Resources Protection Program, and Navajo Nation's 10-Year Forest 
Management Plan), and active conservation of the Zuni bluehead sucker 
and other imperiled species, we do not anticipate that Navajo Nation's 
actions would considerably change in the future. Therefore, the 
regulatory benefit of critical habitat designation on these lands is 
minimized.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
Zuni bluehead sucker that reaches a wide audience, including parties 
engaged in conservation activities, is valuable. The designation of 
critical habitat may also strengthen or reinforce some Federal laws 
such as the Clean Water Act. These laws analyze the potential for 
projects to significantly affect the environment. Critical habitat may 
signal the presence of sensitive habitat that could otherwise be missed 
in the review process for these other environmental laws.
    The educational benefits that might follow critical habitat 
designation, such as providing information to Navajo Nation on areas 
that are important for the long-term survival and conservation of the 
subspecies, have already been achieved. Navajo Nation is fully aware of 
the Zuni bluehead sucker and its habitat needs, and has demonstrated 
commitment to address management and recovery of other endangered and 
threatened species (i.e., southwestern willow flycatcher (flycatcher) 
(Empidonax traillii extimus), Colorado pikeminnow (Ptychocheilus 
lucius), and razorback sucker (Xyrauchen texanus)). Navajo Nation was 
an integral partner in identifying which bluehead sucker populations 
were in fact Zuni bluehead sucker. Since 2013, Navajo Nation has been 
actively monitoring their Zuni bluehead sucker populations (Kitcheyan 
and Mata 2012, entire; Kitcheyan and Mata 2013, entire) and have 
identified additional occupied sites within the proposed critical 
habitat area, as well as potential new locations for population 
replication (NNDFW 2015, entire). Navajo Nation is also a partner on a 
habitat suitability study on the Zuni bluehead sucker with the 
University of Arizona and has actively been seeking funds for several 
fish passage projects on Navajo Nation. Additionally, the NNDFW has 
authority with regard to endangered and threatened species protection 
and is in the process of listing the Zuni bluehead sucker as an 
endangered species for added protection, which is a tribal designation 
by Navajo Nation different from the endangered designation under the 
Act. Finally, Navajo Nation has incorporated outreach and educational 
components regarding native fishes, including the Zuni bluehead sucker, 
within their FMP. The FMP provides guidance and oversight on the 
management of both recreational and native fish, including the Zuni 
bluehead sucker. We find that the Navajo Nation Fisheries Management 
Plan is complete, and the commitment to implement conservation 
activities described provides significant conservation benefit to the 
Zuni bluehead sucker. The FMP specifically provides periodic updates as 
appropriate. The assurances, protections, and conservation actions for 
the Zuni bluehead sucker within the Kinlichee Creek watershed on Navajo 
Nation lands provide extensive benefit to the subspecies. These 
baseline conservation efforts would minimize any regulatory benefit of 
critical habitat designation on these lands. For these reasons, we 
believe there is little educational benefit or support for other laws 
and regulations attributable to critical habitat beyond those benefits 
already achieved from listing the Zuni bluehead sucker under the Act on 
July 24, 2014 (79 FR 43132).
C. Benefits of Exclusion
    The benefits of excluding Navajo Nation from designated critical 
habitat include: (1) The advancement of our Federal Indian Trust 
obligations and our deference to tribes to develop and implement tribal 
conservation and natural resource management plans for their lands and 
resources, which includes the Zuni bluehead sucker; and

[[Page 36778]]

(2) the maintenance of effective collaboration and cooperation to 
promote the conservation of the Zuni bluehead sucker and its habitat, 
and other species and their habitats.
    We have an effective working relationship with Navajo Nation, which 
was reinforced when we proposed critical habitat for four endemic 
Colorado River basin fishes: Razorback sucker (Xyrauchen texanus), 
Colorado pikeminnow (Ptychocheilus lucius), humpback chub (Gila cypha), 
and bonytail chub (Gila elegans) (59 FR 13374; March 21, 1994)) and has 
evolved through consultations on the flycatcher (69 FR 60706; October 
12, 2004). The designation of critical habitat on Navajo Nation would 
be expected to adversely impact our working relationship. During our 
discussions with Navajo Nation, they informed us that critical habitat 
would be viewed as an intrusion on their sovereign abilities to manage 
natural resources in accordance with their own policies, customs, and 
laws. We believe that continuing our positive working relationships 
with Navajo Nation would provide more conservation for the Zuni 
bluehead sucker than the regulatory designation of critical habitat. We 
view this as a substantial benefit since we have developed a 
cooperative working relationship with Navajo Nation for the mutual 
benefit of Zuni bluehead sucker conservation and the conservation of 
other endangered and threatened species.
    During the development of the Zuni bluehead sucker critical habitat 
proposal, we met with Navajo Nation to discuss how they might be 
affected by the regulations associated with endangered species 
management, recovery, the designation of critical habitat, and measures 
to minimize any impacts from planned projects. As such, we established 
cooperative relationships for the management and conservation of 
endangered species and their habitats. As part of our relationship, we 
provided technical assistance to develop measures to conserve 
endangered and threatened species such as the Colorado pikeminnow, 
razorback sucker, humpback chub, bonytail chub, and flycatcher and 
their habitats. Navajo Nation has already requested similar assistance 
for the Zuni bluehead sucker, and we anticipate providing further 
assistance in their efforts to conserve the subspecies.
    All of these proactive actions were conducted in accordance with 
Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act'' (June 5, 
1997); the relevant provision of the Departmental Manual of the 
Department of the Interior (512 DM 2); and Secretarial Order 3317, 
``Department of Interior Policy on Consultation with Indian Tribes'' 
(December 1, 2011). We believe Navajo Nation should be the governmental 
entity to manage and promote the Zuni bluehead sucker conservation on 
their lands.
D. Benefits of Exclusion Outweigh the Benefits of Inclusion
    The benefits of including Navajo Nation in the critical habitat 
designation are limited to educational awareness and projects that may 
result in section 7 consultation. It is unlikely that many projects 
will result in section 7 consultation within the proposed critical 
habitat areas on Navajo Nation based on section 7 consultations for 
other listed species and lack of a Federal nexus. However, as discussed 
in detail above, we believe these benefits are minimized because Navajo 
Nation is familiar with the Zuni bluehead sucker and its habitat needs, 
and has demonstrated commitment to address management and recovery for 
this subspecies and others (e.g., flycatcher, Colorado pikeminnow, and 
razorback sucker).
    The benefits of excluding Navajo Nation from designation as Zuni 
bluehead sucker critical habitat are: (1) The advancement of our 
Federal Indian Trust obligations; (2) the conservation benefits to Zuni 
bluehead sucker, riparian habitats, and other native species from 
implementation of conservation actions under the FMP; and (3) the 
maintenance of effective collaboration and cooperation to promote the 
conservation of the Zuni bluehead sucker and its habitat. Overall, 
these conservation actions accomplish greater conservation than would 
be available through the implementation of a designation of critical 
habitat on a project-by-project basis. Excluding Navajo Nation from 
critical habitat will allow them to manage their natural resources to 
benefit the Zuni bluehead sucker without the perception of Federal 
Government intrusion. This philosophy is also consistent with our 
published policies on Native American natural resource management. The 
exclusion of these areas will likely also provide additional benefits 
to other listed species that would not otherwise be available without 
the Service's maintenance of a cooperative working relationship. In 
conclusion, we find that the benefits of excluding Navajo Nation from 
critical habitat designation outweigh the benefits of including these 
areas.
E. Exclusion Will Not Result in Extinction of the Species
    As noted above, the Secretary, under section 4(b)(2) of the Act, 
may exclude areas from the critical habitat designation unless it is 
determined, based on the best scientific and commercial data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species concerned. There is a small portion of 
proposed critical habitat on Navajo Nation that is considered to be 
unoccupied; Subunit 2b (Red Clay Wash) is approximately 9.6 km (6.0 
mi). The remaining 86.9 km (54.0 mi) of critical habitat on Navajo 
Nation is considered to be occupied. Therefore, Federal activities in 
these areas that may affect the Zuni bluehead sucker will still require 
consultation under section 7(a)(2) of the Act. Section 7(a)(2) of the 
Act requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of listed species. Therefore, even without critical habitat designation 
on these lands, activities that occur on these lands cannot jeopardize 
the continued existence of the Zuni bluehead sucker. Even so, our 
record demonstrates that formal section 7 consultations rarely occur on 
tribal lands, which is likely a result of existing conservation 
planning by both Navajo Nation and BIA. Second, Navajo Nation has 
committed to protecting and managing Zuni bluehead sucker habitat 
according to their management plans and natural resource management 
objectives. We believe this commitment accomplishes greater 
conservation than would be available through the implementation of a 
designation of critical habitat on a project-by-project basis. With the 
implementation of their natural resource management objectives, based 
upon strategies developed in the Fisheries management plan, we have 
concluded that this exclusion from critical habitat will not result in 
the extinction of the Zuni bluehead sucker. Accordingly, under section 
4(b)(2) of the Act, we have determined that the benefit of exclusion of 
Navajo Nation lands in Unit 2 outweigh the benefits of their inclusion; 
the exclusion of these lands from the designation will not result in 
the extinction of the species; and therefore, we are excluding these 
lands from critical habitat designation for the Zuni bluehead sucker.
II. Zuni Tribe
    The Zuni Tribe is a federally recognized Indian Tribe with 
reservation lands totaling nearly 463,271 acres. The Zuni Reservation 
is

[[Page 36779]]

located in western New Mexico, approximately 150 miles west of 
Albuquerque in McKinley County. On the Zuni Reservation (within Unit 1 
in the proposed rule), we proposed 68.3 km (42.4 mi) of stream habitat. 
Much of the habitat was historically occupied, with individuals 
detected as recently as 1990 (Propst and Hobbes 1996, p. 13; Carman 
2010, pp. 13-15; Gilbert and Carman 2011, p. 23; NMDGF 2013, p. 26); 
however, many areas have not been surveyed for Zuni bluehead sucker due 
to drought conditions or complexity of sampling due to access, variety 
of habitat, and visibility due to increase turbidity. We consider all 
portions of Subunit 1a to be occupied.
    As analyzed below, we are excluding the Zuni Tribe's lands from 
critical habitat based on our ongoing conservation partnership where 
the benefits of exclusion from critical habitat outweigh the benefits 
of including an area in critical habitat. We believe the Zuni Tribe has 
demonstrated a productive working relationship on a Government-to-
Government basis with us. The designation of critical habitat on the 
Zuni Reservation would be expected to adversely impact our working 
relationship with the Tribe.
    Zuni Tribe has worked cooperatively with the Service on a draft 
Fisheries Management Plan (draft FMP), which includes the Zuni bluehead 
sucker. The draft FMP is a joint effort between Zuni Fish and Wildlife 
Department, the Service, and BIA. The draft FMP is designed for the 
purpose of long-term planning and implementation of fisheries-related 
issues on Zuni Reservation and is part of an integrated, interagency 
cooperative effort to manage its fisheries resources based on sound 
ecological management practices. The draft FMP serves as a guide for 
accomplishing goals outlined in the Management Plan for managing, 
maintaining, enhancing, and conserving the fisheries resources on Zuni 
Reservation. Two objectives in the draft FMP are to identify and 
protect existing Zuni bluehead sucker populations and their habitats 
and to expand distribution to suitable streams. These objectives would 
be accomplished by actions similar to those described in the Navajo 
Nation FMP. The Zuni Tribe draft FMP was based on the Navajo Nation 
FMP, with a few differences. The main difference in the Zuni Tribe 
draft FMP is that consultation is needed with the Zuni Cultural 
Resource Advisory Team to ensure that implementation of the Fisheries 
Management Plan does not affect Zuni Tribe's cultural beliefs. In 
addition, the Zuni Tribe identifies responsible parties that can aid in 
the improvement of grazing management along streams containing Zuni 
bluehead sucker habitat. Although this plan is currently in draft, it 
serves as evidence of our cooperative working relationship with Zuni 
Tribe.
    In addition, Zuni Tribe has established conservation partnerships 
with the Service, NMDGF, Cibola National Forest, The Nature 
Conservancy, and private landowners. Zuni Tribe has participated in and 
implemented conservation and recovery actions for the Zuni bluehead 
sucker. Zuni Tribe, NMDGF, and the Service continue to work together to 
monitor, conserve, and protect known occupied Zuni bluehead sucker 
habitat on Tribal property and upstream habitat on The Nature 
Conservancy's lands.
A. Benefits of Inclusion
    On Zuni Reservation, we proposed as critical habitat 38.9 km (24.2 
mi) within Subunit 1a (Zuni River Headwaters), which is occupied by the 
Zuni bluehead sucker. Therefore, if a Federal action or permitting 
occurs, there is a section 7 nexus, and the incremental impacts due to 
critical habitat would be limited to administrative cost. We also 
proposed as critical habitat 29.4 km (18.3 mi) on Zuni Reservation 
within Subunit 1b (Zuni River Mainstem), which is unoccupied by the 
Zuni bluehead sucker; therefore, if a Federal action or permitting 
occurs, there may not be a consultation under section 7 of the Act 
unless critical habitat is designated. Our draft economic analysis 
found that if we designate critical habitat on Zuni Reservation, it is 
expected that there will be a small number of informal consultations 
that would incur limited administrative costs only and that no Zuni 
Tribe activities are expected to result in formal consultation; 
however, future impacts are possible.
    Our section 7 consultation history for another riparian species, 
the flycatcher, shows that since listing in 1995, we have conducted 
informal consultations on the flycatcher with agencies implementing 
actions or providing funding. However, since listing in 1995, no formal 
section 7 consultations have occurred on Zuni Reservation. Effects to 
the flycatcher from Federal projects have all resulted in insignificant 
and discountable impacts because conservation measures have focused on 
habitat improvement and management for the flycatcher and its habitat. 
We anticipate a similar scenario for the Zuni bluehead sucker.
    If we designate critical habitat on the Zuni Reservation, our 
previous section 7 consultation history for the flycatcher in riparian 
habitat indicates that there could be a few regulatory benefits to the 
Zuni bluehead sucker on Subunit 1b, which is currently unoccupied.
    Formal consultation for Zuni bluehead sucker on the Zuni 
Reservation is unlikely. There are no projects planned within the 
proposed critical habitat units, and future projects that we might 
anticipate (riparian habitat restoration, establishment of refugia 
populations, construction of fish barriers and livestock exclosure 
fencing) are actions that provide long-term benefits to the Zuni 
bluehead sucker and its habitat. Therefore, effects to the Zuni 
bluehead sucker from Federal projects would likely result in 
insignificant and discountable impacts because conservation measures 
would be focused on habitat improvement and management. Because of how 
Zuni Tribe manages and conserves its lands through establishment of 
fish regulation, livestock grazing exclosures, and establishment of 
management plans and active conservation of the Zuni bluehead sucker 
and other imperiled species, we do not anticipate that Zuni Tribe's 
actions would considerably change in the future. These baseline 
conservation efforts would minimize any regulatory benefit of critical 
habitat designation on these lands. Therefore, the benefits of 
inclusion of the lands are minimized by the continuing conservation 
efforts on the Zuni Tribe lands.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
Zuni bluehead sucker that reaches a wide audience, including parties 
engaged in conservation activities, is valuable. The designation of 
critical habitat may also strengthen or reinforce some Federal laws 
such as the Clean Water Act. These laws analyze the potential for 
projects to significantly affect the environment. Critical habitat may 
signal the presence of sensitive habitat that could otherwise be missed 
in the review process for these other environmental laws.
    The educational benefits that might follow critical habitat 
designation, such as providing information to Zuni Tribe on areas that 
are important for the long-term survival and conservation of the 
subspecies, have already been achieved. Zuni Tribe is familiar with the 
Zuni bluehead sucker and its habitat needs and has successfully worked 
with the Service to address Zuni bluehead sucker

[[Page 36780]]

management and recovery. The Zuni bluehead sucker population has been 
widely known since the 1960s (Merkel 1979, entire; Hanson 1980, entire; 
Propst and Hobbes 1996, p. 13; Carman 2010, pp. 13-15; Gilbert and 
Carman 2011, p. 23; NMDGF 2013, p. 24). Thus, the educational benefits 
that might follow critical habitat designation, such as providing 
information to Zuni Tribe on areas that are important for the long-term 
survival and conservation of the subspecies, have already been provided 
by decades of partnerships with NMDGF and the Service. For these 
reasons, we believe there is little educational benefit or support for 
other laws and regulations attributable to critical habitat beyond 
those benefits already achieved.
B. Benefits of Exclusion
    The benefits of excluding the Zuni Tribe from designated critical 
habitat include: (1) The advancement of our Federal Indian Trust 
obligations and our deference to tribes to develop and implement tribal 
conservation and natural resource management plans for their lands and 
resources, which includes the Zuni bluehead sucker; and (2) the 
fostering of our partnership with Zuni Tribe, which results in 
effective collaboration and cooperation to promote the conservation of 
the Zuni bluehead sucker and its habitat, and other species and their 
habitats.
    We have an effective working relationship with Zuni Tribe, which 
has evolved through consultations on the flycatcher (69 FR 60706; 
October 12, 2004) and through cooperative fisheries management. As part 
of our relationship, we have provided technical assistance to develop 
measures to conserve the Zuni bluehead and its habitat on the Tribe's 
lands, as well as conducting surveys and research investigations 
regarding the subspecies' needs (e.g., habitat and spawning). These 
proactive actions were conducted in accordance with Secretarial Order 
3206, ``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'' (June 5, 1997); the 
relevant provision of the Departmental Manual of the Department of the 
Interior (512 DM 2); and Secretarial Order 3317, ``Department of 
Interior Policy on Consultation with Indian Tribes'' (December 1, 
2011). We believe Zuni Tribe should be the governmental entity to 
manage and promote Zuni bluehead sucker conservation on their lands. 
During our communication with Zuni Tribe, we recognized and endorsed 
their fundamental right to provide for tribal resource management 
activities, including those relating to riparian habitat and fishing 
regulation restrictions.
    During the comment periods, we received input from Zuni Tribe 
expressing the view that designating Zuni bluehead sucker critical 
habitat on tribal land would adversely affect our working relationship. 
They noted that the beneficial cooperative working relationship has 
assisted in the conservation of listed species and other natural 
resources. During our discussions with Zuni Tribe, they informed us 
that critical habitat would be viewed as an intrusion on their 
sovereign abilities to manage natural resources in accordance with 
their own policies, customs, and laws. For this reason, we believe that 
our working relationships with Zuni Tribe would be better maintained if 
we exclude their lands from the designation of Zuni bluehead sucker 
critical habitat. We view this as a substantial benefit since we have 
developed a cooperative working relationship with Zuni Tribe for the 
mutual benefit of Zuni bluehead sucker conservation and the 
conservation of other endangered and threatened species.
    We have coordinated and collaborated with Zuni Tribe on the 
management and recovery of the endangered species and their habitats by 
establishing conservation partnerships. Many tribes and pueblos 
recognize that their management of riparian habitat and conservation of 
the flycatcher and the Zuni bluehead sucker are common goals they share 
with the Service. Zuni Tribe's management actions are evidence of their 
commitment toward measures to improve riparian habitat for endangered 
and threatened species. Some of the common management strategies are 
maintaining riparian conservation areas, preserving habitat, improving 
habitat, protecting the species under Zuni Tribe Game and Fish Codes 
starting in 1968 (Zuni Tribe 1989, entire), and conducting surveys with 
Service since 1954.
    Zuni Tribe will continue to work cooperatively with us and others 
to benefit other listed species, but only if they view the relationship 
as mutually beneficial. Consequently, the development of future 
voluntary management actions for other listed species may be 
compromised if these lands are designated as critical habitat for the 
Zuni bluehead sucker.
C. Benefits of Exclusion Outweigh the Benefits of Inclusion
    The benefits of including Zuni Tribe in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, and 
educational awareness. However, as discussed in detail above, we 
believe these benefits are minimized because they are provided for 
through other mechanisms, such as (1) The advancement of our Federal 
Indian Trust obligations; (2) the conservation benefits to the Zuni 
bluehead sucker from implementation of baseline conservation actions 
through our partnership; and (3) the maintenance of effective 
collaboration and cooperation to promote the conservation of the Zuni 
bluehead sucker and its habitat.
    The benefits of excluding Zuni Tribe's lands from designation as 
Zuni bluehead sucker critical habitat are more significant and include 
encouraging the continued implementation of tribal management and 
conservation measures such as monitoring, surveying, habitat management 
and protection, and recovery activities that are planned for the future 
or are currently being implemented. Overall, these conservation actions 
and management of the subspecies and its habitat likely accomplish 
greater conservation than would be available through the implementation 
of a designation of critical habitat on a project-by-project basis 
(especially when formal section 7 consultations are rare) and 
implementation of the draft Zuni Fisheries Management Plan. These 
programs will allow Zuni Tribe to manage their natural resources to 
benefit riparian habitat for the Zuni bluehead sucker, without the 
perception of Federal Government intrusion. This philosophy is also 
consistent with our published policies on Native American natural 
resource management. The exclusion of these areas will likely also 
provide additional benefits to other listed species that would not 
otherwise be available without the Service's maintenance of a 
cooperative working relationship. In conclusion, we find that the 
benefits of excluding Zuni Tribe's lands from critical habitat 
designation outweigh the benefits of including these areas.
D. Exclusion Will Not Result in Extinction of the Species
    As noted above, the Secretary, under section 4(b)(2) of the Act, 
may exclude areas from the critical habitat designation unless it is 
determined, based on the best scientific and commercial data available, 
that the failure to designate such area as critical

[[Page 36781]]

habitat will result in the extinction of the species concerned.
    First, Federal activities on these areas that may affect the Zuni 
bluehead sucker will still require consultation under section 7 of the 
Act. Section 7(a)(2) of the Act requires Federal agencies to ensure 
that activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of listed species. Therefore, even 
without critical habitat designation on these lands, activities that 
occur on these lands cannot jeopardize the continued existence of the 
Zuni bluehead sucker. Even so, our record demonstrates that formal 
section 7 consultations rarely occur on tribal lands, which is likely 
the result of existing conservation planning. Second, Zuni Tribe is 
committed to protecting and managing the Zuni bluehead sucker's habitat 
according to the Tribe's management plans and natural resource 
management objectives. We believe this commitment accomplishes greater 
conservation than would be available through the implementation of a 
designation of critical habitat on a project-by-project basis. With the 
implementation of their natural resource management objectives, based 
upon strategies developed in the Fisheries Management Plan, we have 
concluded that this exclusion from critical habitat will not result in 
the extinction of the Zuni bluehead sucker. Accordingly, under section 
4(b)(2) of the Act, we have determined the benefits of exclusion of 
Zuni Tribe lands in Unit 1 outweigh the benefits of their inclusion; 
the exclusion of these lands from the designation will not result in 
the extinction of the species; and, therefore, we are excluding these 
lands from critical habitat designation for the Zuni bluehead sucker.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself and, therefore, are not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried by the agency is not likely to destroy or adversely modify 
critical habitat. Therefore, under section 7 only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Consequently, it is our position that only Federal 
action agencies will be directly regulated by this designation. There 
is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities are directly 
regulated by this rulemaking, the Service certifies that this final 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation 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. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
    The economic analysis finds that none of these criteria is relevant 
to this analysis. Thus, based on information in

[[Page 36782]]

the economic analysis, energy-related impacts associated with Zuni 
bluehead sucker conservation activities within critical habitat are not 
expected. As such, the designation of critical habitat is not expected 
to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

Unfunded Mandates Reform Act (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 most of the lands within the 
designated critical habitat do not occur within the jurisdiction of 
small governments. This rule will not produce a Federal mandate of $100 
million or greater in any year. Therefore, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. The 
designation of critical habitat imposes no obligations on State or 
local governments. Consequently, we do not believe that the critical 
habitat designation would significantly or uniquely affect small 
government entities. As such, 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 Zuni bluehead sucker in a takings 
implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding or assistance or require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency.
    The economic analysis found that no significant economic impacts 
are likely to result from the designation of critical habitat for the 
Zuni bluehead sucker. Because the Act's critical habitat protection 
requirements apply only to Federal agency actions, few conflicts 
between critical habitat and private property rights should result from 
this designation. Based on information contained in the economic 
analysis and described within this document, economic impacts to a 
property owner are unlikely to be of a sufficient magnitude to support 
a takings action. Therefore, the takings implications assessment 
concludes that this designation of critical habitat for the Zuni 
bluehead sucker does not pose significant takings implications for 
lands within or affected by the designation. Based on the best 
available information, the takings implications assessment concludes 
that this designation of critical habitat for the Zuni bluehead sucker 
does not pose significant takings implications.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A federalism summary impact statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this critical habitat designation with, 
appropriate State resource agencies in Arizona and New Mexico. We 
received comments from Arizona and New Mexico, and have addressed them 
under Summary of Comments and Recommendations, above. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the rule does not have 
substantial direct effects either on the States, or on the relationship 
between the national government and the States, or on the distribution 
of powers and responsibilities among the various levels of government. 
The designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the physical and biological 
features of the habitat necessary to the conservation of the species 
are specifically identified. This information does not alter where and 
what federally sponsored activities may occur. However, it may assist 
these local governments in long-range planning (because these local 
governments no longer have to 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

[[Page 36783]]

under section 7(a)(2) of the Act 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 applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
subspecies, the rule identifies the elements of physical or biological 
features essential to the conservation of the Zuni bluehead sucker. The 
designated areas of critical habitat are presented on maps, and the 
rule provides several options for the interested public to obtain more 
detailed location information, if desired.

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

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

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of the Zuni bluehead sucker, under the Tenth Circuit ruling in 
Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 
75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for 
critical habitat designation and notify the public of the availability 
of the draft environmental assessment for a proposal when it is 
finished.
    We performed the NEPA analysis, and the draft environmental 
assessment was made available for public comment on April 14, 2015 (80 
FR 19941). The final environmental assessment has been completed and is 
available for review with the publication of this final rule. You may 
obtain a copy of the final environmental assessment online at http://www.regulations.gov, by mail from the New Mexico Ecological Services 
Field Office (see ADDRESSES), or by visiting our Web site at http://www.fws.gov/southwest/es/newmexico.

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.
    Navajo Nation and the Zuni Tribe are the only tribes affected by 
this final rule. We sent notification letters in July 2012 to each 
tribe describing the exclusion process under section 4(b)(2) of the 
Act, and we have engaged in conversations with both tribes about the 
proposal to the extent possible without disclosing predecisional 
information. We sent out notification letters on April 12, 2013, 
notifying the tribes that the proposed rule had published in the 
Federal Register to allow for the maximum time to submit comments. On 
April 14, 2015, we also sent letters notifying the tribes that we had 
made available the draft environmental assessment and draft economic 
analysis in the Federal Register.
    We had a government-to-government coordination meeting with Navajo 
Nation in March 2013. Additionally, we worked closely with the Zuni 
Tribe to develop a draft fisheries management plan for their respective 
land. We met on May 7, 2015, to discuss the proposed rule and their 
draft fisheries management plan. We considered these tribal areas for 
exclusion from final critical habitat designation to the extent 
consistent with the requirements of 4(b)(2) of the Act, and, 
subsequently, excluded the lands of Navajo Nation and the Zuni Tribe 
from this final designation.

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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.  17.11(h) by revising the entry for ``Sucker, Zuni 
bluehead'' under FISHES in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 36784]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Fishes               ....................  ...................  ...................  ..............  ...........  ...........  ...........
 
                                                                      * * * * * * *
Sucker, Zuni bluehead............  Catostomus            U.S.A. (AZ, NM)....  Entire.............  E                       839     17.95(e)           NA
                                    discobolus yarrowi.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


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


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Zuni bluehead sucker (Catostomus discobolus yarrowi)
    (1) Critical habitat unit is depicted for Cibola and McKinley 
Counties, New Mexico, on the map below.
    (2) Critical habitat includes the adjacent floodplains within 91.4 
lateral meters (m) (300 lateral feet (ft)) on either side of bankfull 
discharge, except where bounded by canyon walls. Bankfull discharge is 
the flow at which water begins to leave the channel and disperse into 
the floodplain, and generally occurs every 1 to 2 years.
    (3) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Zuni bluehead sucker consist of three components:
    (i) A riverine system with habitat to support all life stages of 
the Zuni bluehead sucker, which includes:
    (A) Dynamic flows that allow for periodic changes in channel 
morphology and adequate river functions, such as channel reshaping and 
delivery of coarse sediments.
    (B) Stream courses with perennial flows or intermittent flows that 
serve as connective corridors between occupied or seasonally occupied 
habitat through which the subspecies may disperse when the habitat is 
wetted.
    (C) Stream mesohabitat types including runs, riffles, and pools 
with substrate ranging from gravel, cobble, and bedrock substrates with 
low or moderate amounts of fine sediment and substrate embeddedness.
    (D) Streams with depths generally less than 2 meters (3.3 feet), 
and with slow to swift flow velocities less than 0.35 meters per second 
(1.15 feet per second).
    (E) Clear, cool water with low turbidity and temperatures in the 
general range of 2.0 to 23.0 [deg]C (35.6 to 73.4[emsp14][deg]F).
    (F) No harmful levels of pollutants.
    (G) Adequate riparian shading to reduce water temperatures when 
ambient temperatures are high and provide protective cover from 
predators.
    (ii) An abundant aquatic insect food base consisting of fine 
particulate organic material, filamentous algae, midge larvae, 
caddisfly larvae, mayfly larvae, flatworms, and small terrestrial 
insects.
    (iii) Areas devoid of nonnative aquatic species or areas that are 
maintained to keep nonnatives at a level that allows the Zuni bluehead 
sucker to continue to survive and reproduce.
    (4) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
July 7, 2016.
    (5) Critical habitat map units. Data layers defining map unit were 
developed using ESRI ArcGIS mapping software along with various spatial 
layers. Data layers defining map units were created with U.S. 
Geological Survey National Hydrography Dataset (NHD) Medium Flowline 
data. ArcGIS was also used to calculate river kilometers and river 
miles from the NHD dataset, and it was used to determine longitude and 
latitude coordinates in decimal degrees. Critical habitat upstream 
limits were delineated based on the upper limits identified in the NHD 
dataset for each stream. The projection used in mapping and calculating 
distances and locations within the unit was North American Equidistant 
Conic, NAD 83. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the Service's Internet site 
(http://www.fws.gov/southwest/es/newmexico), at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0002, 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.
    (6) Unit 1: Zuni River Unit, McKinley and Cibola Counties, New 
Mexico.
    (i) General description: Unit 1 consists of approximately 55.7 
kilometers (km) (34.6 miles (mi)) of the Zuni River watershed and the 
adjacent floodplains within 91.4 lateral meters (300 lateral feet) on 
either side of bankfull discharge, except where bounded by canyon walls 
in McKinley and Cibola Counties, and is composed of land ownership by 
the State (2.1 km (1.3 mi)), Forest Service (19.5 km (12.1 mi)) and 
private landowners (34.0 km (21.1 mi)).
    (ii) Map of Unit 1 follows:
 BILLING CODE 4333-15-C

[[Page 36785]]

[GRAPHIC] [TIFF OMITTED] TR07JN16.002

 BILLING CODE 4333-15-P
* * * * *

    Dated: May 24, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2016-13246 Filed 6-6-16; 8:45 am]
 BILLING CODE 4333-15-P