[Federal Register Volume 89, Number 105 (Thursday, May 30, 2024)]
[Proposed Rules]
[Pages 46838-46852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11847]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2023-0188; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BH12


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Dixie Valley Toad

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Dixie Valley toad (Anaxyrus 
williamsi) under the Endangered Species Act of 1973, as amended (Act). 
In total, approximately 930 acres (376 hectares) in Churchill County, 
Nevada, fall within the boundaries of the proposed critical habitat 
designation. If we finalize this rule as proposed, it would extend the 
Act's protections to this species' critical habitat. We also announce 
the availability of a draft economic analysis of the proposed 
designation of critical habitat for the Dixie Valley toad.

DATES: We will accept comments received or postmarked on or before July 
29, 2024. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by July 15, 2024.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R8-ES-2023-0188, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R8-ES-2023-0188, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment (SSA) report and draft economic analysis 
(DEA), are available at https://www.regulations.gov under Docket No. 
FWS-R8-ES-2023-0188. For the proposed critical habitat designation, the 
coordinates or plot points or both from which the map is generated are 
included in the decision file for this critical habitat designation and 
are available at https://www.regulations.gov under Docket No. FWS-R8-
ES-2023-0188.

FOR FURTHER INFORMATION CONTACT: Jodie Mamuscia, Field Supervisor, U.S. 
Fish and Wildlife Service, Reno Fish and Wildlife Office, 1340 
Financial Blvd., Suite 234, Reno, NV 89502; telephone 775-861-6300. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States. Please see Docket No. FWS-R8-ES-2023-0188 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et 
seq.), when we determine that any species warrants listing as an 
endangered or threatened species, we are required to designate critical 
habitat, to the maximum extent prudent and determinable. Designations 
of critical habitat can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. We propose to designate critical habitat 
for the Dixie Valley toad, which is listed as an endangered species 
(see 87 FR 73971; December 2, 2022).
    The basis for our action. Section 4(a)(3) of the Act requires the 
Secretary of the Interior (Secretary), to the maximum extent prudent 
and determinable, to designate critical habitat concurrent with 
listing. Section 3(5)(A) of the Act defines critical habitat as (i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed, on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection; and 
(ii) specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination by the Secretary 
that such areas are essential for the conservation of the species. 
Section 4(b)(2) of the Act states that the Secretary must make the 
designation on the basis of the best scientific data available and 
after taking into consideration the economic impact, the impact on 
national security, and any other relevant impacts of specifying any 
particular area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific data available and be as accurate 
and as effective as possible. Therefore, we request comments or 
information from other governmental agencies, Native American Tribes, 
the scientific community, industry, or any other interested parties 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) Specific information on:
    (a) The amount and distribution of Dixie Valley toad habitat;
    (b) Any additional areas occurring within the range of the species 
(Churchill County, Nevada) that should be included in the designation 
because they (i) are occupied at the time of listing and contain the 
physical or biological features that are essential to the conservation 
of the species and that may require special management considerations 
or protection, or (ii) are

[[Page 46839]]

unoccupied at the time of listing and are essential for the 
conservation of the species; and
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change.
    (2) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (3) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (4) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts and any additional information 
regarding probable economic impacts that we should consider.
    (5) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. If you think we should exclude any 
additional areas, please provide information supporting a benefit of 
exclusion.
    (6) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(2) of 
the Act directs that the Secretary shall designate critical habitat on 
the basis of the best scientific data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as new information that may become available after this proposal. Based 
on the new information we receive (and, if relevant, any comments on 
that new information), our final designation may not include all areas 
proposed, may include some additional areas that meet the definition of 
critical habitat, may exclude some areas if we find the benefits of 
exclusion outweigh the benefits of inclusion and exclusion will not 
result in the extinction of the species, or may exempt areas owned or 
controlled by the Department of Defense if we find the Air Station's 
integrated natural resources management plan (INRMP) provides a 
conservation benefit to the species in accordance with 50 CFR 
424.12(h). In our final rule, we will clearly explain our rationale and 
the basis for our final decision, including why we made changes, if 
any, that differ from this proposal.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    On April 7, 2022, we published in the Federal Register a proposed 
rule (87 FR 20374) and emergency listing rule (87 FR 20336) to list the 
Dixie Valley toad as an endangered species. We determined that 
designation of critical habitat was prudent but not determinable 
because we lacked specific information on the impacts of our 
designation. On December 2, 2022, we published in the Federal Register 
(87 FR 73971) a final rule to list the Dixie Valley toad as an 
endangered species. In that rule, we stated that assessments of the 
economic impacts that may occur due to a critical habitat designation 
were not yet complete. See the April 7, 2022, emergency rule and 
December 2, 2022, final rule for more information on previous Federal 
actions concerning the Dixie Valley toad.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the Dixie Valley toad SSA report 
(Service 2022, entire). We sent the SSA report to four independent peer 
reviewers and received three responses; we incorporated the results of 
these reviews, as appropriate, into the SSA report, which is the 
foundation for this proposed rule. Results of this structured peer 
review process can be found at https://www.regulations.gov. For a 
summary of peer reviewer comments, please refer to the December 2, 
2022, final listing rule (87 FR 73971).

Background

    It is our intent to discuss in this proposed rule only those topics 
directly relevant to the designation of critical habitat for the Dixie 
Valley toad. For more information on the taxonomy, life history, 
habitat, population descriptions, and factors affecting the species, 
please refer to the April 7, 2022, emergency listing rule (87 FR 20336) 
and proposed listing rule (87 FR 20374), as well as the December 2, 
2022, final listing rule (87 FR 73971).
    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

[[Page 46840]]

    (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.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    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 each Federal action agency 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 designated 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 also 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. Rather, designation requires that, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect an area designated as critical habitat, the Federal agency 
consult with the Service under section 7(a)(2) of the Act. If the 
action may affect the listed species itself (such as for occupied 
critical habitat), the Federal agency would have already been required 
to consult with the Service even absent the designation because of the 
requirement to ensure that the action is not likely to jeopardize the 
continued existence of the species. Even if the Service were to 
conclude after consultation that the proposed activity is likely to 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must 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 data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    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.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
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 the 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 those planning efforts calls for a 
different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define

[[Page 46841]]

``physical or biological features essential to the conservation of the 
species'' as the features that occur in specific areas and that are 
essential to support the life-history needs of the species, including, 
but not limited to, water characteristics, soil type, geological 
features, sites, prey, vegetation, symbiotic species, or other 
features. A feature may be a single habitat characteristic or a more 
complex combination of habitat characteristics. Features may include 
habitat characteristics that support ephemeral or dynamic habitat 
conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity. For example, physical features essential 
to the conservation of the species might include gravel of a particular 
size required for spawning, alkaline soil for seed germination, 
protective cover for migration, or susceptibility to flooding or fire 
that maintains necessary early-successional habitat characteristics. 
Biological features might include prey species, forage grasses, 
specific kinds or ages of trees for roosting or nesting, symbiotic 
fungi, or absence of a particular level of nonnative species consistent 
with conservation needs of the listed species. The features may also be 
combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic essential to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    The following is a summary of the key information describing the 
physical and biological features essential to the conservation of the 
Dixie Valley toad. More information on species ecology and resource 
needs is available in chapter 3 of the SSA report (Service 2022, pp. 
14-26), which is available on https://www.regulations.gov at Docket No. 
FWS-R8-ES-2023-0188, and on the Service's Environmental Conservation 
Online System (ECOS) website at https://ecos.fws.gov/ServCat/DownloadFile/215829.

Space for Individual and Population Growth and for Normal Behavior

    Dixie Valley toads need enough wetland habitat to maintain 
population dynamics and life-history functions. Wetland habitat needs 
to include enough wetted area and have the natural range of variability 
of water extent to support the vegetation Dixie Valley toads use for 
brumation (periods of inactivity during cold temperatures) and shelter; 
open, ephemeral wetted areas for breeding; as well as the prey items 
the species relies upon.
    There is little information on Dixie Valley toad dispersal 
capacity, besides the fact that they cannot disperse outside of the 
Dixie Meadows wetlands because they are surrounded by a dry landscape. 
However, we assume Dixie Valley toads can disperse among the wetlands, 
via upland corridors, during wet periods or rain. Maintaining the 
upland dispersal corridors between wetlands is important to maintain 
genetic diversity within the population and species.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Dixie Meadows contains 122 known spring and seep sources (McGinley 
and Associates 2021, pp. 1-2) that distribute water across the 
landscape. Dixie Valley toads are completely reliant on the wetlands 
produced by the Dixie Meadows springs, as the species is highly aquatic 
and individuals are rarely found more than 14 meters (m) (46 feet (ft)) 
away from water (Halstead et al. 2021, pp. 28, 30).
    Not only is the water itself necessary for the Dixie Valley toad, 
but the warm water temperatures produced by the springs are necessary 
for the species. The Dixie Meadows springs are thermal springs, 
providing relatively stable, warm temperatures to the wetlands. Dixie 
Valley toads select areas that are warmer than other surrounding 
available habitat, particularly in spring, fall, and winter months 
(Halstead et al. 2021, pp. 30, 33-34). In the spring, Dixie Valley 
toads select areas with warmer water for breeding (oviposition sites), 
which allows for faster egg hatching and time to metamorphosis. In the 
fall, Dixie Valley toads select different areas (closer to thermal 
springs with dense vegetation) to satisfy their thermal preferences as 
nighttime temperatures decrease. As they enter winter months, toads 
find areas with consistent warm temperatures during brumation (periods 
of inactivity during cold temperatures) so that they do not freeze 
(Halstead et al. 2021, pp. 30, 33-34). Dixie Valley toads are reliant 
on warm water temperatures, with Dixie Valley toad tadpoles found most 
often between 20 [deg]C-28 [deg]C (68 [deg]F-82 [deg]F), in wetland 
habitat for all life-history stages (Rose et al. 2023, p. 560).
    The exact water quality parameters preferred by the Dixie Valley 
toad are unknown; however, this species has evolved only in Dixie 
Meadows and is presumed to thrive in the existing complex mix of water 
emanating from both the basin-fill aquifer and the deep geothermal 
reservoir. Temperature, dissolved oxygen, pH, salinity and water 
conductivity, and excessive nutrient concentrations (among others) have 
all been shown to have direct and indirect impacts to amphibian species 
when found to be outside of naturally occurring levels for any 
particular location (Sparling 2010, pp. 105-117). The natural variation 
of water quality parameters found in Dixie Meadows is considered a need 
for the species.
    There is no published information on the feeding habits of the 
Dixie Valley toad. It is assumed that adult Dixie Valley toads are 
opportunistic feeders, similar to other toad species (e.g., Muths and 
Nanjappa 2005, p. 395), and their diet most likely consists of the 
available aquatic and terrestrial invertebrates found in Dixie Meadows. 
Toad tadpoles are assumed to feed on algae and detritus (e.g., Fellers 
2005, p. 407).

Cover or Shelter

    Dixie Valley toads need sufficient wetland vegetation to use as 
shelter. The species uses dense stands of bulrush (Schoenoplectus spp.) 
for shelter from predators and as brumation sites during cold winter 
months. Dixie Valley toads use other types of vegetation for shelter as 
well, so the natural heterogeneity of the wetland vegetation found in 
Dixie Meadows is a need for the species (e.g., Juncus balticus (Baltic 
rush), Schoenoplectus spp. (bulrushes), Phragmites australis (common 
reed), Eleocharis spp. (spikerushes), Carex spp. (sedges), and 
Distichlis spicata (saltgrass)) (Halstead et al. 2021, p. 34).

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    Dixie Valley toad breeding occurs annually from March through May 
(Forrest et al. 2013, p. 76). Breeding appears protracted due to the 
thermal nature of the habitat and can last for months, with toads 
breeding early in the year in habitats closer to the thermal spring 
sources and then moving downstream into habitats as they warm 
throughout the spring and early

[[Page 46842]]

summer, which is not typical of other toad species that have a much 
more contracted breeding season of 3 to 4 weeks (e.g., Sherman 1980, 
pp. 18-19, 72-73). Dixie Valley toads prefer to breed in open, 
ephemerally wetted areas adjacent to vegetated areas (Rose et al. 2023, 
p. 560).

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of the Dixie Valley toad from studies of the species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (Service 2022, pp. 14-27; 
available on https://www.regulations.gov under Docket No. FWS-R8-ES-
2022-0024). We have determined that the following physical or 
biological features are essential to the conservation of the Dixie 
Valley toad:
    (1) Wetlands within Dixie Valley that are composed of some 
combination of the following characteristics:
    (a) Diverse wetland vegetation that includes, but is not limited 
to, native phreatophyte (deep-rooted) species found within the Dixie 
Meadows wetlands (e.g., Juncus balticus (Baltic rush), Schoenoplectus 
spp. (bulrushes), Phragmites australis (common reed), Eleocharis spp. 
(spikerushes), Carex spp. (sedges), and Distichlis spicata 
(saltgrass)).
    (b) Dense bulrush stands for brumation and shelter.
    (c) Open, ephemerally wetted areas adjacent to vegetated areas for 
breeding.
    (d) The natural range of variability of water temperatures found 
throughout each wetland.
    (e) The natural range of variability of water extent found 
throughout each wetland.
    (f) Water quality necessary to sustain natural physiological 
processes for normal behavior, growth, and viability of all life 
stages.
    (g) A variety of aquatic and terrestrial invertebrates, detritus, 
and algae for feeding.
    (2) Upland habitat between wetlands through which Dixie Valley 
toads can disperse when conditions permit.

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 which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the Dixie 
Valley toad may require special management considerations or protection 
to reduce the following threats: (1) groundwater pumping activities, 
such as those associated with geothermal energy development and 
production; and (2) cattle grazing. Geothermal development is 
considered the primary threat to the Dixie Valley toad. Specifically, 
the Dixie Meadows Geothermal Utilization Project could have 
significant, detrimental impacts to the water flow and temperature 
emanating from the thermal springs the Dixie Valley toad relies on 
(Service 2022, pp. 39-41, 80-84, 113-119; Tetra Tech 2023a, pp. 3-7; 
Tetra Tech 2023b, pp. 2-3). A decrease in water flow would reduce 
habitat in the wetlands, and water temperatures in the wetlands could 
be reduced to a degree that the species cannot survive through cold 
winter months. Cattle can step on Dixie Valley toads while grazing, 
causing direct mortality and grazing may have impacts on water quality 
due to defecation and urination in the water.
    Management activities that could ameliorate these threats include, 
but are not limited to, development and use of best management 
practices designed to maintain natural spring flows, spring 
temperatures, and water quality; use of best management practices 
designed to control or minimize the level of grazing in order to 
maintain the desired condition of Dixie Valley toad habitat; and 
restoration of disturbed features to their pre-disturbance, natural 
state.

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 specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not currently proposing to 
designate any areas outside the geographical area occupied by the 
species because we have not identified any unoccupied areas that meet 
the Act's definition of critical habitat. There are no unoccupied areas 
that have the unique characteristics and physical and biological 
features necessary to support the Dixie Valley toad.
    Sources of data for the Dixie Valley toad and its habitat needs 
include peer-reviewed articles on the species and related species, 
satellite imagery analysis done by the U.S. Geological Survey (USGS), 
and communication with species experts.
    To determine which areas to propose as critical habitat, we used 
the Dixie Meadows wetlands as a starting point. All of the wetlands are 
considered occupied by the Dixie Valley toad (Rose et al. 2023, entire) 
and are proposed as critical habitat.
    We then used USGS's satellite imagery analysis on the extent of 
land cover vegetation and soil wetness from October 2015 through 
January 2022 (Bransky et al. 2023, entire), to determine the upland 
habitat that could be used by Dixie Valley toads to disperse between 
wetlands. We delineated all areas of habitat classified by USGS with at 
least a class two landcover class (apparent moist soil and sparse or 
short vegetation) at some time during the analysis period, using the 
Green Normalized Difference Vegetation Index (gNDVI; Gitelson et al. 
1996, entire), as suitable upland dispersal habitat for inclusion in 
the proposed critical habitat. Although upland habitat is not occupied 
year-round, it is assumed to be used during wet periods each year, 
playing a vital role in maintaining genetic diversity throughout the 
single population of the species.
    In summary, for areas within the geographic area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the following criteria:
    (1) We identified the wetlands occupied by the Dixie Valley toad.
    (2) We then delineated the upland habitat between wetlands that 
included all areas that could be used for dispersal. Upland habitat was 
considered dispersal habitat if it has been classified by USGS at some 
time from October 2015 through January 2022 as at least a gNDVI class 
two land cover class based on satellite imagery analysis.
    When determining proposed critical habitat boundaries, 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 necessary for the Dixie Valley toad. 
The scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat.

[[Page 46843]]

Therefore, if the critical habitat is finalized as proposed, a Federal 
action involving these lands would not trigger section 7 consultation 
with respect to critical habitat and the requirement of no adverse 
modification unless the specific action would affect the physical or 
biological features in the adjacent critical habitat.
    The proposed critical habitat designation is defined by the map, as 
modified by any accompanying regulatory text, presented at the end of 
this document under Proposed Regulation Promulgation. 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 the map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R8-ES-
2023-0188.

Proposed Critical Habitat Designation

    We are proposing to designate approximately 930 acres (ac) (376 
hectares (ha)) in one unit as critical habitat for the Dixie Valley 
toad. The critical habitat area we describe below as Dixie Meadows is 
occupied by the species and constitutes our current best assessment of 
the area that meets the definition of critical habitat for the Dixie 
Valley toad. Table 1 shows the land ownership and approximate areas of 
the proposed critical habitat unit for the Dixie Valley toad.

                        Table 1--Proposed Critical Habitat Unit for the Dixie Valley Toad
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                       Size of unit
          Critical habitat unit             Land ownership by type       in acres              Occupied?
                                                                        (hectares)
----------------------------------------------------------------------------------------------------------------
Dixie Meadows...........................  Department of Defense            588 (238)  Yes.
                                           (DoD).
                                          BLM.......................       342 (138)
                                                                     ----------------
                                           Total....................       930 (376)
----------------------------------------------------------------------------------------------------------------

    We present a brief description and map of the proposed unit, and 
reasons why it meets the definition of critical habitat for the Dixie 
Valley toad, below.

Dixie Meadows Unit

    The Dixie Meadows Unit consists of 930 ac (376 ha) of occupied 
wetland and upland habitat in Dixie Meadows, Churchill County, Nevada. 
This unit encompasses the entire range of the Dixie Valley toad and 
contains all of the physical or biological features essential to the 
conservation of the species. This unit is essential to the recovery of 
Dixie Valley toad because it includes all the habitat that is occupied 
by the species across its range. Special management considerations or 
protection may be required to protect against impacts from threats that 
are anticipated: to reduce water flow, temperature, and quality 
emanating from the springs; and to reduce water quality, water 
temperature, the amount of wetted area, and vegetation on the 
landscape. Sources of these threats include geothermal development and 
production, groundwater pumping activities, and grazing (see Special 
Management Considerations or Protection, above). Special management 
considerations related to geothermal development and production, 
groundwater pumping, and grazing include, but are not limited to: 
development and use of best management practices designed to maintain 
natural spring flows, spring temperatures, and water quality; use of 
best management practices designed to control or minimize the level of 
grazing in order to maintain the desired condition of Dixie Valley toad 
habitat; and restoration of disturbed features back to their pre-
disturbance, natural state.
    Roughly 63 percent (588 ac (238 ha)) of the Unit is part of the Air 
Station's lands and 37 percent (342 ac (138 ha)) is Bureau of Land 
Management (BLM) land. The 588 ac (238 ha) of Air Station lands are 
being considered for exemption from the critical habitat designation 
(see Exemptions, below).
    A map of the proposed unit, showing areas of wetlands, the Air 
Station's lands, and BLM land appears below. Please note that the BLM 
lands are those areas within the proposed unit's boundaries that are 
not labeled as Department of Defense lands:

[[Page 46844]]

[GRAPHIC] [TIFF OMITTED] TP30MY24.011

Figure 1. Proposed Dixie Meadows Unit for the Dixie Valley Toad

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 authorize, fund, 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.
    Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species (50 CFR 402.02).

[[Page 46845]]

    Compliance with the requirements of section 7(a)(2) is documented 
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 Service 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 set forth requirements for Federal 
agencies to reinitiate consultation. Reinitiation of consultation is 
required and shall be requested by the Federal agency, where 
discretionary Federal involvement or control over the action has been 
retained or is authorized by law and: (1) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion or written 
concurrence; or (4) if a new species is listed or critical habitat 
designated that may be affected by the identified action. As provided 
in 50 CFR 402.16, the requirement to reinitiate consultations for new 
species listings or critical habitat designation does not apply to 
certain agency actions (e.g., land management plans issued by the 
Bureau of Land Management in certain circumstances).

Destruction or Adverse Modification of Critical Habitat

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat for the 
conservation of the listed species. As discussed above, the role of 
critical habitat is to support the 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 that our Federal Register 
notices ``shall, to the maximum extent practicable also include a brief 
description and evaluation of those activities (whether public or 
private) which, in the opinion of the Secretary, if undertaken may 
adversely modify [critical] habitat, or may be affected by such 
designation.'' Activities that may be affected by designation of 
critical habitat for the Dixie Valley toad include those that may 
affect the physical or biological features of the Dixie Valley toads' 
critical habitat (see Physical or Biological Features Essential to the 
Conservation of the Species).

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 DoD, or 
designated for its use, that are subject to an integrated natural 
resources management plan (INRMP) prepared under section 101 of the 
Sikes Act Improvement Act of 1997 (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.
    An INRMP was completed by the Air Station in 2014, prior to the 
Dixie Valley toad being described as a species and before the toad was 
listed as an endangered species. The Air Station is in the process of 
amending its INRMP to incorporate the DoD's National Strategic Plan for 
amphibian and reptile conservation and management (Lovich et al. 2015, 
entire), which will include specific management for Dixie Meadows and 
the Dixie Valley toad (Schofield 2023, in litt.). After we receive the 
INRMP amendment, we will assess its conservation benefit to the toad 
under 50 CFR 424.12(h) before the final critical habitat designation. 
If we determine the Air Station lands qualify for exemption from 
critical habitat designation, then the 588 ac (238 ha) of Air Station 
land would be exempted from the final designation, which is 63 percent 
of the proposed critical habitat designation.

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 designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), both of which were developed jointly with the 
National Marine Fisheries Service (NMFS). We also refer to a 2008 
Department of the Interior Solicitor's opinion entitled, ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, 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. In our final rules, we explain any decision to exclude 
areas, as well as decisions not to exclude, to make clear the rational 
basis for our decision. We describe below the process that we use for 
taking into consideration each

[[Page 46846]]

category of impacts and any initial analyses of the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary section 
4(b)(2) exclusion analysis.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Executive 
Order 14094 reaffirms the principles of E.O.s 12866 and 13563 and 
states that regulatory analysis should facilitate agency efforts to 
develop regulations that serve the public interest, advance statutory 
objectives, and are consistent with E.O. 12866, E.O. 13563, and the 
Presidential Memorandum of January 20, 2021 (Modernizing Regulatory 
Review). Consistent with the E.O. regulatory analysis requirements, our 
effects analysis under the Act may take into consideration impacts to 
both directly and indirectly affected entities, where practicable and 
reasonable. If sufficient data are available, we assess to the extent 
practicable the probable impacts to both directly and indirectly 
affected entities. Section 3(f) of E.O. 12866 identifies four criteria 
when a regulation is considered a ``significant regulatory action'' and 
requires additional analysis, review, and approval if met. The 
criterion relevant here is whether the designation of critical habitat 
may have an economic effect of $200 million or more in any given year 
(section 3(f)(1), as amended by E.O. 14094). Therefore, our 
consideration of economic impacts uses a screening analysis to assess 
whether a designation of critical habitat for the Dixie Valley toad is 
likely to exceed the economically significant threshold.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Dixie Valley toad (Industrial Economics (IEc) 
2023, entire). We began by conducting a screening analysis of the 
proposed designation of critical habitat in order to focus our analysis 
on the key factors that are likely to result in incremental economic 
impacts. The purpose of the screening analysis is to filter out 
particular geographical areas of critical habitat that are already 
subject to such protections and are, therefore, unlikely to incur 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes any probable incremental economic impacts where land and 
water use may already be subject to conservation plans, land management 
plans, best management practices, or regulations that protect the 
habitat area as a result of the Federal listing status of the species.
    Ultimately, the screening analysis allows us to focus our analysis 
on evaluating the specific areas or sectors that may incur probable 
incremental economic impacts as a result of the designation. The 
presence of the listed species in occupied areas of critical habitat 
means that any destruction or adverse modification of those areas is 
also likely to jeopardize the continued existence of the species. 
Therefore, designating occupied areas as critical habitat typically 
causes little if any incremental impacts above and beyond the impacts 
of listing the species. As a result, we generally focus the screening 
analysis on areas of unoccupied critical habitat (unoccupied units or 
unoccupied areas within occupied units). Overall, the screening 
analysis assesses whether designation of critical habitat is likely to 
result in any additional management or conservation efforts that may 
incur incremental economic impacts. This screening analysis combined 
with the information contained in our IEM constitute what we consider 
to be our draft economic analysis (DEA) of the proposed critical 
habitat designation for the Dixie Valley toad; our DEA is summarized in 
the narrative below.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for the Dixie Valley toad, first we 
identified, in the IEM dated April 10, 2023, probable incremental 
economic impacts associated with the following categories of 
activities: (1) geothermal development and production (BLM, DoD); (2) 
groundwater withdrawal; and (3) grazing (BLM). We considered each 
industry or category individually. Additionally, we considered whether 
their activities have any Federal involvement. Critical habitat 
designation generally will not affect activities that do not have any 
Federal involvement; under the Act, designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies. In the area where the Dixie Valley toad is present, 
Federal agencies are required to consult with the Service under section 
7 of the Act on activities they authorize, fund, or carry out that may 
affect the species. If we finalize this proposed critical habitat 
designation, Federal agencies would be required to consider the effects 
of their actions on the designated habitat, and if the Federal action 
may affect critical habitat, our consultations would include an 
evaluation of measures to avoid the

[[Page 46847]]

destruction or adverse modification of critical habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the Dixie 
Valley toad's critical habitat. It has been our experience that it is 
difficult to discern which conservation efforts are attributable to the 
species being listed and those which will result solely from the 
designation of critical habitat. However, the following specific 
circumstances in this case help to inform our evaluation: (1) The 
essential physical or biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species, and (2) any actions that would likely adversely affect the 
essential physical or biological features of occupied critical habitat 
are also likely to adversely affect the species itself. The IEM 
outlines our rationale concerning this limited distinction between 
baseline conservation efforts and incremental impacts of the 
designation of critical habitat for this species. This evaluation of 
the incremental effects has been used as the basis to evaluate the 
probable incremental economic impacts of this proposed designation of 
critical habitat.
    The proposed critical habitat designation for the Dixie Valley toad 
includes 930 ac (376 ha) of wetland and upland habitat in one occupied 
unit. The Air Station manages 588 ac (238 ha), and the BLM manages the 
remaining 342 ac (138 ha). Any actions that may affect the species or 
its habitat would also affect designated critical habitat, and it is 
unlikely that any additional conservation efforts would be recommended 
to address the adverse modification standard over and above those 
recommended as necessary to avoid jeopardizing the continued existence 
of the Dixie Valley toad. Therefore, only administrative costs are 
expected to result from the proposed critical habitat designation. 
While this additional analysis will require time and resources by both 
the Federal action agency and the Service, it is believed that, in most 
circumstances, these costs would predominantly be administrative in 
nature and would not be significant.
    The probable incremental costs of designating critical habitat for 
the Dixie Valley toad are likely to be limited to additional 
administrative efforts to consider adverse modification in section 7 
consultations. This limitation is because all of the proposed critical 
habitat designation is occupied by the Dixie Valley toad. The 
incremental administrative burden resulting from the designation of 
critical habitat for the Dixie Valley toad is not anticipated to reach 
$200 million in any given year based on the anticipated annual number 
of consultations and associated consultation costs, which are not 
expected to exceed $7,000 per year (2023 dollars). If Air Station lands 
are determined to be exempt from the critical habitat designation for 
the Dixie Valley toad, the anticipated annual consultations costs are 
not expected to exceed $4,000 per year. The designation is unlikely to 
trigger additional requirements under State or local regulations. Thus, 
the annual administrative burden is relatively low.
    We are soliciting data and comments from the public on the DEA 
discussed above. During the development of a final designation, we will 
consider the information presented in the DEA and any additional 
information on economic impacts we receive during the public comment 
period to determine whether any specific areas should be excluded from 
the final critical habitat designation under the authority of section 
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and 
the 2016 Policy. We may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of this species.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), then national-security 
or homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
However, we must still consider impacts on national security, including 
homeland security, on those lands or areas not covered by section 
4(a)(3)(B)(i) because section 4(b)(2) requires the Service to consider 
those impacts whenever it designates critical habitat. Accordingly, if 
DoD, Department of Homeland Security (DHS), or another Federal agency 
has requested exclusion based on an assertion of national-security or 
homeland-security concerns, or we have otherwise identified national-
security or homeland-security impacts from designating particular areas 
as critical habitat, we generally have reason to consider excluding 
those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
information, including a reasonably specific justification of an 
incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    Under section 4(b)(2) of the Act, we also consider whether a 
national security or homeland security impact might exist on lands 
owned or managed by DoD or DHS. The Air Station may request exclusion 
on the basis of national-security or homeland-security impacts. The 
only DoD or DHS lands within the proposed critical habitat designation 
are the 588 ac (238 ha) of Air Station lands, which is 63 percent of 
the proposed critical habitat designation, that are being considered 
for exemption under section 4(a)(3)(B)(i) of the Act (see Exemptions, 
above). The Air Station has not requested exclusion based on national 
security impacts.

[[Page 46848]]

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are approved and permitted conservation 
agreements or plans covering the species in the area--such as safe 
harbor agreements (SHAs), candidate conservation agreements with 
assurances (CCAAs) or ``conservation benefit agreement'' or 
``conservation agreement'' (``CBAs'') (CBAs are a new type of agreement 
replacing SHAs and CCAAs in use after April 2024 (89 FR 26070; April 
12, 2024)) or HCPs--or whether there are non-permitted conservation 
agreements and partnerships that may be impaired by designation of, or 
exclusion from, critical habitat. In addition, we look at whether 
Tribal conservation plans or partnerships, Tribal resources, or 
government-to-government relationships of the United States with Tribal 
entities may be affected by the designation. We also consider any 
State, local, social, or other impacts that might occur because of the 
designation.

Summary of Exclusions Considered Under 4(b)(2) of the Act

    In preparing this proposal, we have determined that no HCPs or 
other management plans for Dixie Valley toad currently exist, and the 
proposed designation does not include any Tribal lands or trust 
resources or any lands for which designation would have any economic 
impacts. We note that this land is a sacred site to the Fallon Paiute-
Shoshone Tribe and that they supported the listing of the Dixie Valley 
toad in their comments on the April 7, 2022, proposed listing rule (87 
FR 20374). Therefore, we anticipate no other relevant impacts to Tribal 
lands, partnerships, or HCPs from this proposed critical habitat 
designation, and, thus, as described above, we are not considering 
excluding any particular areas on the basis of the presence of 
conservation agreements or impacts to trust resources. We will consider 
exclusion of the Air Station lands if the Air Station requests an 
exclusion based on national-security impacts.
    However, if through the public comment period we receive 
information that we determine indicates that there are economic, 
national security, or other relevant impacts from designating 
particular areas as critical habitat, then as part of developing the 
final designation of critical habitat, we will evaluate that 
information and may conduct a discretionary exclusion analysis to 
determine whether to exclude those areas under authority of section 
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. 
If we receive a request for exclusion of a particular area and after 
evaluation of supporting information we do not exclude, we will fully 
describe our decision in the final rule for this action. (Please see 
ADDRESSES, above, for instructions on how to submit comments).

Required Determinations

Clarity of the Rule

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

Regulatory Planning and Review (Executive Orders 12866, 13563, and 
14094)

    Executive Order (E.O.) 12866, as reaffirmed by E.O. 13563 and E.O. 
14094, provides that the Office of Information and Regulatory Affairs 
(OIRA) in the Office of Management and Budget (OMB) will review all 
significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. 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 proposed 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 whether 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.

[[Page 46849]]

    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies 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 out 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 would be directly 
regulated if we adopt the proposed critical habitat designation. The 
RFA does not require evaluation of the potential impacts to entities 
not directly regulated. Moreover, Federal agencies are not small 
entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, the proposed critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

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 ``to the extent 
permitted by law'' when undertaking actions identified as significant 
energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a 
``significant energy action'' as an action that (i) is a significant 
regulatory action under E.O. 12866 (or any successor order, including, 
most recently, E.O. 14094 (88 FR 21879; April 11, 2023)); and (ii) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This rule is not a significant 
regulatory action under E.O. 12866 or 14094. Therefore, this action is 
not a significant energy action, and there is no requirement to prepare 
a statement of energy effects for this action.

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 finding:
    (1) This proposed rule would 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 are not likely to 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 would significantly or 
uniquely affect small governments. The lands being proposed for 
critical habitat designation are owned by the DoD and BLM. Neither of 
these government entities fit the definition of ``small governmental 
jurisdiction.'' Therefore, a Small Government Agency Plan is not 
required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Dixie Valley toad in a takings implications assessment. 
The Act does not authorize the Service to regulate private actions on 
private lands or confiscate private property as a result of critical 
habitat designation. Designation of critical habitat does not affect 
land ownership, or establish any closures or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
proposed designation of critical habitat for the Dixie Valley toad, and 
it concludes that, if adopted, this designation of critical habitat 
does not pose significant takings implications for lands within or 
affected by the designation.

[[Page 46850]]

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed 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 proposed critical habitat designation 
with, appropriate State resource agencies. 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 proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the Federal Government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed 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 or biological features of the habitat necessary for 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 State and local 
governments in long-range planning because they 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 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 E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule would not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Act. To assist the public in 
understanding the habitat needs of the species, this proposed rule 
identifies the physical or biological features essential to the 
conservation of the species. The proposed area of critical habitat is 
presented on a map, and the proposed 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 information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are 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.)

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations. In a line of cases starting with Douglas County 
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this 
position.

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), E.O. 13175 (Consultation and Coordination 
with Indian Tribal Governments), the President's memorandum of November 
30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479, 
December 5, 2022), and the Department of the Interior's manual at 512 
DM 2, we readily acknowledge our responsibility to communicate 
meaningfully with federally recognized Tribes on a government-to-
government basis. In accordance with Secretaries' Order 3206 of June 5, 
1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. We requested information from the Fallon Paiute-Shoshone 
Tribe during the SSA and proposed listing processes and responded to 
comments the Tribe made on the proposed listing rule. The Fallon 
Paiute-Shoshone Tribe commented that they support the listing of the 
Dixie Valley toad and that the Dixie Meadows hot springs are one of the 
most sacred sites in their Tribe's culture. The Service met with the 
Fallon Paiute-Shoshone Tribe for government-to-government consultation 
in March 2023 at the Tribe's request. During this consultation, the 
Service emphasized our commitment to incorporating the Tribe's 
traditional ecological knowledge, to the extent to which the Tribe is 
comfortable, into the proposed critical habitat designation process, 
and we stated that we welcome further conversations to facilitate this. 
We will continue to work with Tribal entities during the development of 
a final rule for the designation of critical habitat for the Dixie 
Valley toad.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Reno Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the Reno 
Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--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; and 4201-4245, 
unless otherwise noted.

0
2. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by revising the entry for ``Toad,

[[Page 46851]]

Dixie Valley'' under AMPHIBIANS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                                   Amphibians
 
                                                  * * * * * * *
Toad, Dixie Valley..............  Anaxyrus williamsi  Wherever found....  E              87 FR 73971, 12/2/2022;
                                                                                          50 CFR 17.95(d).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec.  17.95, amend paragraph (d) by adding an entry for ``Dixie 
Valley Toad (Anaxyrus williamsi)'' after the entry for ``Arroyo Toad 
(Anaxyrus californicus)'', to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (d) Amphibians.
* * * * *
    Dixie Valley Toad (Anaxyrus williamsi)
    (1) The critical habitat unit for the Dixie Valley toad in 
Churchill County, Nevada, is depicted on the map in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Dixie Valley toad consist of the 
following components:
    (i) Wetlands within Dixie Valley that are composed of some 
combination of the following characteristics:
    (A) Diverse wetland vegetation that includes, but is not limited 
to, native phreatophyte (deep-rooted) species found within the Dixie 
Meadows wetlands (e.g., Juncus balticus (Baltic rush), Schoenoplectus 
spp. (bulrushes), Phragmites australis (common reed), Eleocharis spp. 
(spikerushes), Carex spp. (sedges), and Distichlis spicata 
(saltgrass)).
    (B) Dense bulrush stands for brumation and shelter.
    (C) Open, ephemerally wetted areas adjacent to vegetated areas for 
breeding.
    (D) The natural range of variability of water temperatures found 
throughout each wetland.
    (E) The natural range of variability of water extent found 
throughout each wetland.
    (F) Water quality necessary to sustain natural physiological 
processes for normal behavior, growth, and viability of all life 
stages.
    (G) A variety of aquatic and terrestrial invertebrates, detritus, 
and algae for feeding.
    (ii) Upland habitat between wetlands through which Dixie Valley 
toads can disperse when conditions permit.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of the final rule.
    (4) Data layers defining the map unit were created by the Service, 
and the critical habitat unit was then mapped using Universal 
Transverse Mercator Zone 11N coordinates. The map in this entry, as 
modified by any accompanying regulatory text, establishes the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which this map is based are available to the public 
at the Service's internet site at https://www.regulations.gov at Docket 
No. FWS-R8-ES-2023-0188, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Dixie Meadows Unit; Churchill County, Nevada.
    (i) The unit consists of 930 acres (ac) (376 hectares (ha)) in 
Churchill County and is composed of Federal lands owned by the 
Department of Defense (588 ac (238 ha)) and Bureau of Land Management 
(342 ac (138 ha)).
    (ii) Map follows:

Figure 1 to Dixie Valley Toad (Anaxyrus williamsi) Paragraph (5)(ii)

[[Page 46852]]

[GRAPHIC] [TIFF OMITTED] TP30MY24.012


Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-11847 Filed 5-29-24; 8:45 am]
BILLING CODE 4333-15-P