[Federal Register: April 1, 2008 (Volume 73, Number 63)]
[Rules and Regulations]
[Page 17761-17807]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap08-8]
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Part III
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 Helianthus Paradoxus (Pecos Sunflower); Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R2-ES-2008-0002; 92210-1117-0000-B4]
RIN 1018-AV02
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Helianthus Paradoxus (Pecos Sunflower)
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 Helianthus paradoxus (Pecos Sunflower) under the
Endangered Species Act of 1973, as amended (Act). In total,
approximately 1,305 acres (ac) (528) hectares (ha)) in Chaves, Cibola,
and Guadalupe counties, New Mexico, and in Pecos County, Texas, fall
within the boundaries of the final critical habitat designation.
DATES: This final rule becomes effective on May 1, 2008.
ADDRESSES: This final rule and final economic analysis is available on
the Internet at http://www.regulations.gov and http://www.fws.gov/
southwest/es/newmexico/. Supporting documentation we used in preparing
this final rule will be available for public inspection, by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, New Mexico Ecological Services Field Office, 2105
Osuna Road, NE., Albuquerque, New Mexico 87113; telephone 505-346-2525;
facsimile 505-346-2542.
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office (see ADDRESSES section). If you use a telecommunications device
for the deaf (TDD), call the Federal Information Relay Service (FIRS)
at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the development and designation of critical habitat in this final rule.
For additional information on Helianthus paradoxus, refer to the
proposed critical habitat rule published in the Federal Register on
March 27, 2007 (72 FR 14328), the final listing rule published in the
Federal Register on October 20, 1999 (64 FR 56582), or the Pecos
Sunflower Recovery Plan available on the Internet at http://
www.regulations.gov and http://www.ecos.fws.gov/docs/recovery_plans/
2005/050915.pdf.
Previous Federal Actions
On March 27, 2007, we published a proposed rule to designate
critical habitat for Helianthus paradoxus (72 FR 14328). We solicited
data and comments from the public on the proposed rule. The comment
period opened on March 27, 2007, and closed on May 29, 2007. On
December 11, 2007, we published a notice announcing the availability of
the draft economic analysis, draft environmental assessment, and the
reopening of the public comment period (72 FR 70269). We also announced
a revision to proposed critical habitat Unit 4 and a clarification of
Unit 5. Section 4(b)(2) of the Act requires that we consider economic
impacts, impacts to national security, and other relevant impacts prior
to making a final decision on what areas to designate as critical
habitat. We solicited data and comments from the public on these draft
documents, as well as on all aspects of our proposal, so that we could
consider these in this final determination. This comment period closed
on January 10, 2008. For more information on previous Federal actions
concerning Helianthus paradoxus, please refer to the proposed critical
habitat rule published in the Federal Register on March 27, 2007 (72 FR
14328), and the final listing rule published in the Federal Register on
October 20, 1999 (64 FR 56582).
Summary of Comments and Recommendations
We requested comments from the public on the proposed designation
of critical habitat for Helianthus paradoxus during two comment
periods. The first comment period associated with the publication of
the proposed rule (72 FR 14328) opened on March 17, 2007, and closed on
May 29, 2007. We did not receive any requests for a public hearing
during this comment period. We also requested comments on the proposed
critical habitat designation, associated draft economic analysis, and
draft environmental assessment during a comment period that opened
December 11, 2007, and closed on January 10, 2008 (72 FR 70269). We
contacted appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed rule and/or draft economic analysis and draft
environmental assessment during these two comment periods.
During the first comment period, we received seven comments
directly addressing the proposed critical habitat designation: one from
a State agency, one from a Federal agency, and five from organizations
or individuals. During the second comment period, we received seven
comments addressing the proposed critical habitat designation, the
draft economic analysis, or the draft environmental assessment. All
substantive information provided during both public comment periods has
been either incorporated directly into this final determination or
addressed below.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from three knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received a response from one of the
three peer reviewers from which we requested comments. The peer
reviewer generally agreed that the physical and biological features
identified in the proposed designation for Helianthus paradoxus were
accurate. However, the peer reviewer suggested that the designation
should be expanded to include additional areas and increase the size of
existing units.
We reviewed all comments received from the public and the peer
reviewer for substantive issues and new information regarding the
designation of critical habitat for Helianthus paradoxus, and address
them in the following summary.
Peer Reviewer Comments
1. Comment: The peer reviewer questioned why the proposed critical
habitat designation did not include additional sites that were occupied
by Helianthus paradoxus at the time of listing.
Our Response: In the notice of availability published on December
11, 2007 (72 FR 70269), we proposed to include two additional sites
(Subunits 4a and 4b) within the designation. Nevertheless, we recognize
that this critical habitat designation does not include all of the
areas that are occupied by H. paradoxus throughout the species' range.
Additional sites were not proposed as critical habitat because it is
unclear whether they are stable or support sufficient numbers of plants
to be considered stable and therefore do not meet our criteria for
designation as critical habitat for H. paradoxus (Blue Earth Ecological
Consultants, Inc.
[[Page 17763]]
2007b, p. 3; Poole 1992, p. 27; 2006, p. 3). These additional areas
that were not proposed as critical habitat will continue to be subject
to conservation actions implemented under section 7(a)(1) of the Act
and to the regulatory protections afforded by the section 7(a)(2)
jeopardy standard, as determined on the basis of the best available
information at the time of the action. Please see the ``Criteria Used
to Identify Critical Habitat'' section below for more discussion of
stable populations.
2. Comment: The peer reviewer stated that the map of Unit 5 at
Diamond Y Spring Preserve in West Texas does not depict proposed
critical habitat on the north side of Leon Creek, even though the area
is occupied by Helianthus paradoxus.
Our Response: We reviewed the map and description of the boundaries
for Unit 5 and found that the map in the proposed rule incorrectly
displayed Unit 5. However, the textual description of the boundaries is
accurate. We have corrected the map in this final rule. The maps
published in the Federal Register are for illustration purposes and the
amount of detail that can be published is limited. If additional
clarification is necessary, contact the New Mexico Ecological Services
Field Office (see ADDRESSES section).
3. Comment: The peer reviewer questioned whether Unit 5 contained a
small group of plants downstream of The Nature Conservancy's Diamond Y
Spring Preserve at a nearby highway right-of-way.
Our Response: In our notice of availability published on December,
11, 2007 (72 FR 70269), we clarified that the right-of-way site should
not have been included in the unit description. Our notice revised
proposed Unit 5 and did not include the right-of-way as critical
habitat because this small area is not known to be able to support
sufficient numbers of plants to be considered stable (Blue Earth
Ecological Consultants, Inc. 2007b, p 3; Poole 2006, p. 3). Please see
the ``Criteria Used to Identify Critical Habitat'' section below for
more discussion of stable populations.
4. Comment: The peer reviewer questioned whether wetland filling
and development has been documented as a threat within Unit 5.
Our Response: Our final economic analysis found that the land area
at Diamond Y Spring Preserve proposed as critical habitat in Unit 5
does not face residential development pressure. However, the subsurface
mineral rights are not owned by the landowners. Therefore, a future
potential threat of wetland filling and development for drilling pads
and access roads for oil and gas exists (see pages 3-10 of the final
economic analysis). The information in the ``Final Critical Habitat
Designation'' section below has been updated to reflect this
information.
5. Comment: The peer reviewer questioned whether landowners were
contacted prior to critical habitat being proposed for designation.
Our Response: We attempted to contact all of the private landowners
on February 28, 2007, prior to the publication of the proposed rule.
Furthermore, we sent the proposed rule and December 11, 2007, notice of
availability to all interested parties, including landowners.
Additionally, contractors contacted affected private parties during the
development of the draft and final economic analyses.
Comments From the Public
6. Comment: The Service should exclude the La Joya Wildlife
Management Area (Unit 2) from the final designation.
Our Response: We agree. After conducting an analysis under section
4(b)(2) of the Act, we concluded that the benefits of excluding Unit 2
from the final designation outweigh the benefits of inclusion (see
``Exclusions under Section 4(b)(2)'' section).
7. Comment: A management plan has been developed for Unit 2. This
plan provides considerably more conservation for the species than the
designation of critical habitat.
Our Response: We agree. Please see our response to Comment 6.
8. Comment: La Joya Wildlife Management Area lies in the path of
the Westwide Energy Corridor, a proposal that would focus energy
infrastructure such as pipelines, within a predefined corridor.
Critical habitat would help prevent this proposed project from
adversely impacting Helianthus paradoxus.
Our Response: Projects associated with the Westwide Energy Corridor
proposal that are funded, permitted, or carried out by a Federal agency
(i.e., projects with a Federal nexus) would require section 7
consultation under the adverse modification standard if they affected
designated critical habitat (see ``Section 7 Consultation'' section for
more discussion of this process). However, because this area is also
occupied by Helianthus paradoxus, consultation would be required under
section 7 of the Act under the jeopardy standard whether the area is
designated as critical habitat or not. As discussed in our
environmental assessment and in the ``Application of the Adverse
Modification Standard'' section, the outcome of such consultations
under the jeopardy and adverse modification standards are not likely to
differ materially (Service 2008, p. 23, 24). Further, as discussed
under our response to comment 6 above, we have excluded the La Joya
Wildlife Management Area from this final designation.
9. Comment: One commenter expressed concern that there are areas
containing Helianthus paradoxus that were not proposed as critical
habitat. The Service should designate additional occupied sites that
were not identified in the proposed rule.
Our Response: See response to Comment 1.
10. Comment: The Service must include suitable unoccupied habitat
within the final designation to conserve Helianthus paradoxus.
Our Response: We disagree. We are not able to designate unoccupied
areas as critical habitat for a species unless we make a determination
that those areas are essential to the conservation of the species. We
used a specific set of criteria, consistent with the biology of this
species, to determine habitat essential for the conservation of
Helianthus paradoxus. Please see the ``Criteria Used to Identify
Critical Habitat'' section below for additional discussion of these
criteria. Based on the areas that were identified using these criteria,
we determined that additional, unoccupied areas were not essential for
the conservation of the species.
11. Comment: If the Service excludes an area because of a
management plan, the plan must fulfill the listing criteria of the Act.
It cannot be voluntary, unenforceable, speculative, nor have funding
uncertainties.
Our Response: Pursuant to section 4(b)(2) of the Act, we are
required to take into consideration the economic, national security,
and any other relevant impact of specifying any particular area as
critical habitat. We may exclude any area from the critical habitat
designation if we determine that the benefits of such exclusion
outweigh the benefits (i.e., biological or conservation benefits) of
including such area within critical habitat, providing that the failure
to designate such area will not result in the extinction of the
species. This analysis includes consideration of the impacts of the
designation, the benefits to the species, as well as policy
considerations such as national security, Tribal relationships, and
impacts on conservation partnerships. We have utilized management plans
in this rule as a part of this balancing analysis under section 4(b)(2)
of the Act. Critical
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habitat does not require proactive management, only that Federal
actions do not adversely modify the habitat. In many cases, management
plans provide for proactive management and conservation of listed
species, thereby improving the habitat quality rather than just
maintaining the status quo. This proactive management may be more
beneficial to the conservation of the species than the critical habitat
prohibitions would be. Although these plans may not always be fully
certain of implementation and funding, taken in concert with the other
impacts analyzed under section 4(b)(2), the benefits of exclusion may
still outweigh the benefits of inclusion. Please see the ``Exclusions
Under Section 4(b)(2)'' section for further discussion of management
plans in 4(b)(2) analyses.
12. Comment: The Service should not exclude Bitter Lake National
Wildlife Refuge from the designation.
Our Response: We agree. We have determined that certain areas
managed by Bitter Lake National Wildlife Refuge (Refuge) meet the
definition of occupied critical habitat for Helianthus paradoxus. The
Refuge has developed and completed a Comprehensive Conservation Plan
(CCP) that provides the framework for protection and management of all
trust resources, including federally listed species and sensitive
natural habitats. In our December 11, 2007, notice of availability (72
FR 70269), we stated our belief that the Refuge lands are being
adequately protected and managed for the conservation of H. paradoxus.
Nevertheless, we believe it is appropriate to designate lands within
the Bitter Lake National Wildlife Refuge and the associated Refuge Farm
as critical habitat in this final rule.
13. Comment: The maps for Bitter Lake National Wildlife Refuge and
the Refuge Farm include areas that are not occupied by the species and
are not suitable habitat.
Our Response: Upon further review of records from Bitter Lake
National Wildlife Refuge, we have determined that the proposal included
lands that are not occupied by the species, do not contain physical and
biological features essential to the conservation of the species, and
do not themselves meet the definition of critical habitat (Service
2008, p. 1). For example, the proposed maps included open water areas,
dry native grassland, cultivated fields, and other non-essential
features and habitat (Service 2008, p. 1). As such, we corrected the
maps for Subunits 4a and 4b to include only those areas that contain
suitable Helianthus paradoxus habitat and possess all of the primary
constituent elements (PCEs). As explained in response to Comment 1, we
subsequently removed an approximately 3,586 ac (1,451 ha) area of
Federal land that was proposed as critical habitat in Subunit 4a and 4b
from this final designation because these areas do not meet our
criteria for designation of critical habitat for H. paradoxus.
14. Comment: The Service should include Bureau of Land Management
(BLM) lands adjacent to Bitter Lake National Wildlife Refuge in the
critical habitat designation for Helianthus paradoxus.
Our Response: We have determined that BLM lands adjacent to the
Refuge do not contain the physical and biological features essential to
the conservation of Helianthus paradoxus nor do they meet our criteria
for designation as critical habitat for this species (see responses to
comments 9 and ``Criteria Used to Identify Critical Habitat'' section
below).
15. Comment: The Service should recognize that the designation of
critical habitat for Helianthus paradoxus on Bitter Lake National
Wildlife Refuge would provide benefits to the Roswell springsnail
(Pyrgulopsis roswellensis), Koster's springsnail (Juturnia kosteri),
Noel's amphipod (Gammarus desperatus), and the Pecos assiminea
(Assiminea pecos).
Our Response: This discussion is provided in our environmental
assessment (Service 2008), which included an analysis of the general
benefits of an overlap with other listed species.
16. Comment: The Service continues to understate the impact of
livestock grazing on Helianthus paradoxus. If private lands are
designated as critical habitat, H. paradoxus would benefit from the
higher protections provided under the adverse modification standard
than the jeopardy standard.
Our Response: We disagree. The proposed rule states that one of the
threats to Helianthus paradoxus is overgrazing by livestock during the
species' flowering season (72 FR 14328). The proposed rule notes that
livestock will eat H. paradoxus when other green forage is scarce, and
when the buds are developing and abundant (Service 1999, p. 56587).
Cattle and horses tend to pull off the flower heads, which can reduce
seed production (Bush and Van Auken 1997, p. 416). Nevertheless, we
also note that properly managed livestock grazing can be compatible
with H. paradoxus conservation.
Federal agencies already consult with us on activities in areas
occupied by the species. Action on private lands that are not federally
funded, authorized, or permitted, do not require section 7
consultations. Our environmental assessment found that a designation of
critical habitat would have no effect on livestock grazing because
there is no Federal nexus associated with any of the ongoing livestock
grazing within any of the critical habitat units.
17. Comment: The designation should be larger to buffer the species
from extended droughts caused by climate change. Critical habitat would
provide an increased ability to the Service to respond to anthropogenic
threats to maximize the species' chances of surviving climate change.
Our Response: The commenter did not cite any specific information
that we could review on the vulnerability of Helianthus paradoxus to
broad-scale environmental changes, such as climate change. One of our
criteria for selecting areas to include in critical habitat was the
size and stability of populations. We focused on large, stable
occurrences because they are more likely to support intact ecosystem
processes and native species. Therefore, we believe these areas have
the highest likelihood of persisting through the environmental extremes
and to withstand future introduced stressors such as climate change.
We are not aware of any reliable information that is currently
available to us that was not considered in this designation process.
This final determination constitutes our best assessment of areas
needed for the conservation of the species. Much remains to be learned
about this species; should credible, new information become available
which contradicts this designation, we will reevaluate our analysis
and, if appropriate, propose to modify this critical habitat
designation, depending on available funding and staffing. We must make
this designation on the basis of the information available at this
time, and we may not delay our decision until more information about
the species and its habitat are available (Southwest Center for
Biological Diversity v. Babbitt, 215 F.3d 58 D.C. Cir. 2000).
18. Comment: A more expansive critical habitat designation would
address the threat of hybridization with common sunflower (Helianthus
annuus).
Our Response: Pecos sunflower will naturally hybridize with common
sunflower (Helianthus annuus). As noted in the recovery plan, there is
concern about the extent to which backcrosses from common sunflower
could affect the genetic integrity of small Pecos sunflower
populations.
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Obvious hybrid plants have been found on the drier peripheries of the
Pecos sunflower populations at Santa Rosa and La Joya, New Mexico.
However, the dense stands of Pecos sunflower on wetter habitats appear
to remain genetically pure based upon their appearance (Sivinski,
personal observations, 1994-2004, cited in Service 2005, p. 10). We
conclude that a more expansive designation would do nothing to
alleviate the threat of hybridization.
19. Comment: The Service did not consider the threat of air
pollution on Helianthus paradoxus. The National Park Service has
described this threat for another, recently delisted sunflower,
Helianthus eggertii (Olson undated).
Our Response: We appreciate the additional information; however, we
believe we do not have specific and credible information to consider
air pollution as a threat to Helianthus paradoxus. The National Park
Service information concerns an area where acid deposition from air
pollution is much more prevalent than it is in the range of H.
paradoxus.
20. Comment: The designation of Unit 2 would result in unresolvable
conflicts between the Rio Grande silvery minnow (Hybognathus amarus)
and southwestern willow flycatcher (Empidonax traillii extimus) because
these species are also dependent on the same limited supply of water as
Helianthus paradoxus.
Our Response: The commenter did not provide any indication of the
types of conflicts that might occur. The final economic analysis does
point to one recorded instance where delivery of water to La Joya's
holding ponds was postponed so that water would be available for the
Rio Grande silvery minnow downstream. However, no adverse impacts to
Helianthus paradoxus were recorded as a result of that event. It is
therefore unclear whether any potential changes to water management
would be needed to protect the plant. The economic analysis therefore
does not quantify future impacts on water withdrawals in this unit.
We are required to designate critical habitat to the maximum extent
prudent and determinable for each species that is listed as threatened
or endangered within the United States. As part of this process, within
the specific areas occupied by the species, we are to determine those
physical and biological features essential to the conservation of the
species and define critical habitat based on those features. We
recognize that, in some cases, critical habitat for one species may
overlap with critical habitat for another species which could result in
conflicts in management or conservation actions. These conflicts would
need to be addressed on a case-by-case basis with the Federal action
agencies involved in any given consultation under section 7 of the Act
to ensure that the actions would not result in the adverse modification
of critical habitat for each species concerned.
21. Comment: The jeopardy standard does not protect habitat that is
not occupied by Helianthus paradoxus.
Our Response: We have determined that unoccupied areas are not
essential to the conservation of this species; therefore, we are
precluded from designating such areas as critical habitat. When Federal
actions do not directly or indirectly affect Helianthus paradoxus, the
actions do not require section 7(a)(2) consultation and thus, are not
protected by the jeopardy standard. However, when a Federal agency
funds, authorizes, or carries out an action that may affect H.
paradoxus, the Act requires that the agency consult with us under
section 7 of the Act. Our view is that any Federal action that affects
H. paradoxus should be considered a situation that ``may affect'' the
species and should undergo section 7 consultation under the jeopardy
standard. As in the past, the Federal action agency will continue to
make the determination as to whether their project ``may affect'' the
species or designated critical habitat.
22. Comment: The destruction of a single population of Helianthus
paradoxus would violate the Act's prohibition on adverse modification.
Our Response: Activities that may result in the destruction or
adverse modification of critical habitat include those that alter the
physical and biological features to an extent that the value of
critical habitat for the conservation of Helianthus paradoxus is
appreciably reduced (i.e., with the implementation of the proposed
project, will the critical habitat remain functional). We note that
such activities may also jeopardize the continued existence of the
species. Actions that would be expected to both jeopardize the
continued existence of H. paradoxus and destroy or adversely modify its
critical habitat would include those that significantly and
detrimentally alter the species' habitat over an area large enough that
the likelihood of H. paradoxus' persistence and recovery range-wide is
significantly reduced. Thus, the likelihood of an adverse modification
or jeopardy determination would depend on the baseline condition of the
species as a whole.
Comments Related to the Draft Economic Analysis
23. Comment: According to the draft economic analysis, most of the
projected costs associated with critical habitat for Helianthus
paradoxus are from non-native species control. Non-native species
control is voluntary on state and private lands and has been ongoing on
the Refuge. Therefore, critical habitat designation does not cause
these funds to be expended and should not be a basis for excluding
areas from the final designation.
Our Response: The final economic analysis has been updated to
include an assessment of incremental costs (i.e., those costs directly
associated with the designation of critical habitat). While the costs
of non-native species management are presented as part of the
coextensive economic impacts associated with the conservation of
Helianthus paradoxus, they are considered to be baseline impacts (i.e.,
not directly associated with this rulemaking) in the final economic
analysis (Appendix B). As such they are not considered to be costs of
including those areas as critical habitat.
24. Comment: Benefits that should have been considered in the
economic analysis include the benefit of National Wildlife Refuges to
neighboring communities, the economic benefits to The Nature
Conservancy, and the value of ecosystem services. Specifically, the
Service should consider economic benefits such as additional protection
of National Wildlife Refuge lands that currently attract visitors and
provide benefits to local communities.
Our Response: Where data are available, the final economic analysis
attempts to recognize and measure the net economic impact of the
proposed designation. However, monetization of this category of
benefits would require detailed information that quantifies, for
example, the recreational value added by critical habitat designation
and its impact on visitation to the National Wildlife Refuge. This
information is currently not available and thus is not included in the
economic analysis. Such ``baseline'' benefits occur regardless of the
designation of critical habitat and would not be considered in the
evaluation under section 4(b)(2) of the Act.
25. Comment: In the economic analysis for the four invertebrates
found at Bitter Lake National Wildlife Refuge, New Mexico, and on
Diamond Y Spring Preserve in West Texas, it was noted that the
designation of critical habitat might increase recognition and
potential funding for restoration or conservation
[[Page 17766]]
projects. This economic benefit should be integrated into the final
economic analysis for Helianthus paradoxus.
Our Response: We acknowledge that the general statement appeared in
our economic analysis for the four invertebrates on the Refuge.
However, we did not have any specific information at that time, nor are
we aware of any information that is currently available to us that
would permit us to quantify this assumed benefit. Please see our
response to comment 23 for additional information regarding treatment
of benefits in the final economic analysis.
26. Comment: It is unacceptable to place dollar values on Pueblo of
Acoma lands in the economic analysis, as those lands will not be sold.
Our Response: The final economic analysis states that the Pueblo of
Acoma lands in Unit 1a have recently been acquired by the Pueblo, and
that it may wish to develop the land at some point, though no
definitive plans were provided. The final economic analysis quantifies
potential impacts to the Pueblo of Acoma related to the development of
a management plan, monitoring costs, and management of livestock to
avoid impacts to Helianthus paradoxus. The analysis does not quantify
potential impacts on property value for Pueblo lands nor is it meant to
quantify the actual property value of the area.
Comments From the State
27. Comment: The water source for Unit 2 is currently used by the
New Mexico Department of Game and Fish (NMDGF) to inundate portions of
the La Joya Wildlife Management Area. However, the water source is not
secure (i.e., protected by a water right) and is subject to changing
water management practices of the Middle Rio Grande Conservancy
District (MRGCD).
Our Response: The designation of critical habitat would also not
secure the water source. Critical habitat does not establish a preserve
or provide water rights to designated areas. Designation of critical
habitat requires that Federal agencies consult on actions they fund,
authorize, permit, or carry out in order to ensure that the actions do
not adversely modify the critical habitat. These consultations may
limit the effects of changing water management, but are not guaranteed
to preserve water in the area. In addition, unless there is a Federal
nexus, any activities related to water management operations would not
result in a consultation with us.
The water right at La Joya Wildlife Management Area is owned by
MRGCD; however, NMDGF (i.e., the State of New Mexico) has a written
agreement from 1960 with the MRGCD that allows them to replenish the
water in six ponds from the return flow during the non-irrigation
season (approximately October to February) to provide resting places
for migratory waterfowl (NMDGF 2007). During this period, the MRGCD
will allow the diversion of water from the return flow to an extent
that such water is available (NMDGF 2007). This water is used to
inundate wetland areas within La Joya Wildlife Management Area at a
time of the year when other water demands are at their lowest. To date,
there have been no conflicts associated with competing demands for this
water. There are no known projects anticipated to impact water
withdrawals in the future (Service 2008). Therefore, we find no reason
that this relationship would not continue into the future.
Summary of Changes From the Proposed Rule
In preparing the final critical habitat designation for Helianthus
paradoxus, we reviewed and considered comments from the public and peer
reviewers on the March 27, 2007, proposed designation of critical
habitat (72 FR 14328) and the December 11, 2007, notice announcing the
availability of the draft economic analysis and draft environmental
assessment, as well as the proposal of two additional subunits and the
clarification of one unit as critical habitat (72 FR 70269). As a
result of comments received, we made the following changes to our
proposed designation:
(1) The final designation includes a correction to Subunits 4a and
4b and a clarification with respect to Unit 5. These three areas: (a)
Are within the historical range of the species and were occupied at the
time of listing; (b) provide the physical and biological features
essential for the long-term persistence of Helianthus paradoxus
populations; and (c) are currently occupied.
(2) We have excluded 854 ac (346 ha) of lands within the La Joya
Wildlife Management Area (Unit 2) proposed as critical habitat for
Helianthus paradoxus from the final designation (see the ``Exclusions
under Section 4(b)(2) of the Act'' section of this final rule for
further details).
(3) We have excluded land on the Pueblo of Laguna (Subunit 1c)
proposed as critical habitat for Helianthus paradoxus from the final
designation (see the ``Exclusions under Section 4(b)(2) of the Act''
section of this final rule for further details).
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(i) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management consideration or
protections; and
(ii) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered or threatened species to the point at which the measures
provided under 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 prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) of the Act requires consultation on Federal
actions that may affect 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 private 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) would apply, but even in
the event of a destruction or adverse modification finding, the
landowner's obligation is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the
[[Page 17767]]
geographical area occupied by the species at the time of listing must
contain the physical and biological features essential to the
conservation of the species, and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific data available, habitat areas that provide essential life
cycle needs of the species (i.e., areas on which are found the PCEs
laid out in the appropriate quantity and spatial arrangement for the
conservation of the species). Under the Act, we can designate critical
habitat in areas outside the geographical area occupied by the species
at the time it is listed only when we determine that those 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 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
issued by the Service, provide criteria, establish procedures, and
provide guidance to ensure that our decisions are based on the best
scientific data available. They require Service 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 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, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that designation of
critical habitat may not include all of the habitat areas that we may
eventually determine to be 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 promote
the recovery of the species.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions. They are also subject to the regulatory protections afforded
by the section 7(a)(2) jeopardy standard, as determined on the basis of
the best available information at the time of the action. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may require consultation under
section 7 of the Act and may still result in jeopardy findings in some
cases. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans, or other species conservation planning efforts if
information available at the time of these planning efforts calls for a
different outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas occupied by the species at
the time of listing to designate as critical habitat, we consider those
physical and biological features essential to the conservation of the
species that may require special management considerations or
protection. We consider the physical or biological features to be the
PCEs laid out in the appropriate quantity and spatial arrangement for
the conservation of the species. The PCEs 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, and rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derived the specific PCEs required for Helianthus paradoxus from
the biological needs of the species as described below. Additional
information can also be found in the final listing rule published in
the Federal Register on October 20, 1999 (64 FR 56582).
Space for Individual and Population Growth, Including Sites for
Germination, Pollination, Reproduction, and Seed Bank
Helianthus paradoxus is an annual species that must re-establish
populations of adult plants each year from seed produced during
previous years' reproductive efforts. Habitats with suitable alkaline
soils and perennially wet hydrologic conditions for all of the life
functions of H. paradoxus are typically small areas around springs and
ponds. Therefore, populations tend to grow in crowded patches of dozens
or even thousands of individuals. Solitary individuals may be found
around the periphery of the wetland, but dense, well-defined stands
within suitable habitats are more typical. Aggregations of individuals
may occur in different adjacent areas than the patches of dead stalks
from the population of the previous year (Sivinski 1992, p. 125). This
suggests seed dispersal or the presence of a persistent soil seed bank
(Van Auken 2001). Patch densities and locations are determined by a
combination of factors, including variations in seasonal soil moisture,
salinity, oxygen, disturbance, and competing vegetation (Bush 2002, pp.
1-2; Van Auken and Bush 1995, p. 15; Bush and Van Auken 1997, p. 417).
Dense stands of Helianthus paradoxus produce smaller, spindly
plants, while more open stands have larger plants (Service 2005, p. 6).
Likewise, experiments to remove competing vegetation, such as alkali
sacaton (Sporobolus airoides) and saltgrass (Distichlis spicata), also
produced larger H. paradoxus plants with more flowers per plant (Bush
and Van Auken 1997, p. 417).
Pollination vectors for Helianthus paradoxus have not been studied.
However, most plants in the aster family with ray-like flowers, such as
H. paradoxus, attract a variety of insect pollinators (Service 2005, p.
7). Seed production is greatly enhanced in H. paradoxus by cross-
pollination between individual plants. An experiment that excluded
pollinators from flower heads produced only 5 percent viable seed
compared to 84 percent viable seed produced by flower heads that were
open to insect pollination (Van Auken and Bush 1997, p. 44). Helianthus
paradoxus blooms in the months of September and October. Flowering
peaks the second week of September in the northern-most New Mexico
populations. The peak flowering time for the southern-most population
in West Texas is later in October. Seeds fill and mature during October
and
[[Page 17768]]
November and then require a 2- to 3-month after-ripening period before
germination (Van Auken 2001, p. 157). A few seeds remain dormant for
longer periods and appear to be insurance for species survival by
remaining viable in the soil seed bank (Van Auken 2001). The duration
of seed viability has not yet been studied.
Areas That Provide the Basic Requirements for Growth (Such as Water,
Light, and Minerals)
Helianthus paradoxus habitat attributes usually are present in
desert wetland areas that contain permanently saturated soils in the
root zone (Service 2005, p. 6). These are most commonly desert springs
and seeps that form wet meadows called ``cienegas.'' Nevertheless, H.
paradoxus also can occur around the margins of lakes and creeks
(Service 2005, p. 6). When H. paradoxus grows around lakes or ponds,
these areas are usually associated with natural cienega habitats. The
soils of these desert wetlands and riparian areas are typically saline
or alkaline because the waters are high in dissolved solids and
elevated evaporation rates leave deposits of salts, including
carbonates, at the soil's surface. Studies by Van Auken and Bush (1995,
p. 14) showed that H. paradoxus grows in saline soils, but seeds
germinate and establish best when precipitation and high water tables
reduce salinity near the soil surface. Based on greenhouse and limited
field studies, H. paradoxus requires salinity levels ranging from 10 to
40 parts per thousand for optimal growth in competition with other salt
marsh plant species (Van Auken and Bush 2006, p. 29). Helianthus
paradoxus can occur on cienegas that contain alkaline, fine sand soils
that may be dry at the surface during summer months, but are sub-
irrigated in the root zone. Where saturated soils are shaded by taller
vegetation, H. paradoxus may also not be present every year or in
numbers greater than a few hundred plants. Like all sunflowers, this
species requires open areas that are not shaded by taller vegetation
for optimal growth. Solitary trees or shrubs are sometimes located
within stands of H. paradoxus. Clusters of tall trees and shrubs will
inhibit H. paradoxus' growth by shading germinating seeds and seedlings
(Service 2005, p. 6).
Primary Constituent Elements for Helianthus paradoxus
Pursuant to the Act and its implementing regulations, we are
required to identify the physical and biological features within the
geographical area occupied by Helianthus paradoxus at the time of
listing that are essential to the conservation of the species and which
may require special management considerations or protections. The
physical and biological features are those primary constituent elements
(PCEs) laid out in a specific spatial arrangement and quantity to be
essential to the conservation of the species. All areas designated as
critical habitat for H. paradoxus are currently occupied, within the
species' historical geographic range, and contain sufficient PCEs to
support at least one life history function.
Based on our current knowledge of the life history, biology, and
ecology of the species and the habitat requirements for sustaining the
essential life history functions of the species, we have determined
that Helianthus paradoxus' PCEs are the desert wetland or riparian
habitat components that provide:
(1) Silty clay or fine sand soils that contain high organic
content, are saline or alkaline, are permanently saturated within the
root zone (top 50 cm of the soil profile), and have salinity levels
ranging from 10 to 40 parts per thousand; and
(2) Low proportion (less than 10 percent) of woody shrub or canopy
cover directly around the plant.
This final designation is designed for the conservation of the PCEs
necessary to support the life history functions of the species and the
areas containing those PCEs in the appropriate quantity and spatial
arrangement essential for the conservation of the species. Because all
of the species' life history functions require all of the PCEs, all
critical habitat units contain all of the PCEs.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
occupied by the species at the time of listing contain the physical and
biological features essential to the conservation of the species, and
whether these features may require special management consideration or
protections. As stated in the final listing rule (64 FR 56582), threats
to Helianthus paradoxus and its physical and biological features
include drying of wetlands from groundwater depletion, alteration of
wetlands (e.g., wetland fills, draining, impoundment, and development),
competition from nonnative plant species, overgrazing by livestock
during H. paradoxus' flowering season, impacts from recreational
activities, mowing, and highway maintenance.
The loss or alteration of wetland habitat continues to be the main
threat to Helianthus paradoxus. The scattered distribution of cienegas
makes them aquatic islands of unique habitat in an arid-land matrix
(Hendrickson and Minckley 1984, p. 169). There is evidence these
habitats have been historically, and are presently being, reduced or
eliminated by aquifer depletion, and severely impacted by agricultural
activities and encroachment by exotic plants (Poole 1992, pp. 1-2;
Sivinski 1995, p. 11). The lowering of water tables through aquifer
withdrawals for irrigation and municipal use, diversion of water from
wetlands for agriculture and recreational uses, and wetland filling for
conversion to dry land uses destroy or degrade desert wetlands.
In Grants, New Mexico, Helianthus paradoxus has been observed in
close proximity to building sites that may have contained suitable
wetland habitat prior to filling (Service 2005, p. 8). A cienega
containing H. paradoxus near Dexter, New Mexico, was dried when a
wellhead was placed on the spring and the water diverted for other uses
(Service 2005, p. 8). Springs that have fed H. paradoxus habitats have
been converted to swimming pools and fishing ponds in the towns of
Roswell and Santa Rosa, New Mexico (Service 2005, p. 8). Groundwater
withdrawals for agriculture in Pecos and Reeves counties in Texas have
had an especially severe impact on desert springs (Service 2005, p. 8).
Of the 61 historical desert springs in these two counties, only 13 were
still flowing in 1980 (Brune 1981 in Poole 1992, p. 5). Beginning
around 1946, groundwater levels fell as much as 400 feet (ft) (120
meters (m)) in Pecos County and 500 ft (150 m) in Reeves County.
Groundwater pumping has lessened in more recent years due to the higher
cost of removing water from deeper aquifers, but rising water tables
and resumption of spring flows are not expected (Poole 1992, p. 5). We
are not aware of any protections afforded by Texas water law for the
remaining springs that support H. paradoxus populations on The Nature
Conservancy properties, which limits options for addressing this
threat.
Livestock will eat Helianthus paradoxus when other green forage is
scarce, and when the buds are developing and abundant (Service 1999, p.
56587). Cattle and horses tend to pull off the flower heads, which can
reduce seed production (Bush and Van Auken 1997, p. 416). However,
well-managed grazing during non-flowering months may have a beneficial
effect on H. paradoxus populations by decreasing the density and
biomass of potentially competing plant species in these
[[Page 17769]]
habitats. This sunflower germinates earlier than most associated plants
and grows vigorously on wet, bare, highly insolated soils (Service
2005, p. 9). Actions that remove shading grass cover, such as grazing,
appear to enhance growth and reproduction of sunflower plants that are
later protected from grazing while they are reproductively maturing.
Therefore, properly managed livestock grazing can be compatible with H.
paradoxus conservation. Livestock grazing operations that are not
managed to protect H. paradoxus occur in populations in the Grants and
Roswell areas of New Mexico (Service 2005, p. 9).
Although water contamination is a significant threat for the
Roswell springsnail, Koster's springsnail, Noel's amphipod, and the
Pecos assiminea found on Bitter Lake National Wildlife Refuge (70 FR
46304), we have no information on whether contamination of water would
affect Helianthus paradoxus. We did not find that reduced water quality
was a threat to the species when it was listed in 1999 (64 FR 56582).
Moreover, we are not aware of any research or information that
documents the species' response to elevated nutrients or contaminants.
For these reasons, we do not believe that water contamination is a
significant threat to H. paradoxus at this time.
We have determined that each area included in this designation
meets the definition of critical habitat for the reasons described in
our unit descriptions below.
Criteria Used To Identify Critical Habitat
We are designating critical habitat in areas that were occupied by
the species at the time of listing and contain PCEs in the quantity and
spatial arrangement to support life history functions essential for the
conservation of the species. Each such area contains all PCEs and
support multiple life processes. We are also designating critical
habitat in two areas that were not occupied by the species at the time
of listing. We have determined that these areas, which are currently
occupied, are essential to the conservation of the species.
For many species that are listed under the Act, habitat loss is a
primary factor in their decline. For these species it is very important
to conserve every piece of available habitat, and, in some cases, it is
essential to conserve areas that may become suitable habitat in the
future. This is not the case for Helianthus paradoxus, because this
species currently exists throughout its range in a spatial arrangement
that would provide for its long-term conservation, if the populations
were secure from threats. For this reason, not all areas which are
known to be occupied by H. paradoxus are required in order to conserve
the species. To include all areas that are occupied by the Pecos
sunflower, and unoccupied areas that could be occupied by the species,
would encompass more areas than are reasonably needed to conserve the
species. Thus, we developed a set of restrictive criteria to focus on
those areas most likely to contribute to the long-term conservation of
the species. We have chosen to focus on larger populations supported by
water sources that are thought to be relatively stable. By focusing on
size and stability, we believe we have chosen the populations that are
most likely to become secure from threats in the long term and provide
for the long-term conservation of this species.
Occupancy
We consider an area to be currently occupied if Helianthus
paradoxus was found to be present by species experts within the last
two years (Hirsch 2006, p. 1; Poole 2006, p. 1; Ulibarri 2006, p. 1;
Sivinski 2007, p. 1). Two years is an appropriate time period because
surveys may not occur in all areas in all years, and because plants
reestablish in an area from seeds left in the ground from the previous
year's production. The sunflower would be likely to persist in an area
over multiple years unless major habitat modification occurred
resulting in destruction of the seed bank.
Stability
In designating critical habitat, we considered the stability of the
known populations, including size and status over time. According to
population-level analysis conducted for Helianthus paradoxus,
approximately 1,600 or more individuals is a population target that
gives a high probability of having a stable population over time (Poole
2004; Sanderson 2006, p. 918). We consider the status of a population
to be stable when it appears that (1) the number of new individuals in
a population is equal to or greater than the number of individuals
dying, and (2) the population occupies a similar or larger area over
multiple survey periods. The survey and field data on which this
designation is based are from consistently observed populations during
the last several years. Most of the sites included in this designation
were visited by species experts four or more times between 1992 and
2007; however, at a minimum each site was visited twice.
By including stable populations, we are designating currently
occupied habitat that provides for important life-history functions,
such as seed dispersal and genetic exchange, which will contribute to
the long-term conservation of the species. Locations that have
populations that do not support at least 1,600 individuals are usually
either dependent on an inconsistent water supply or rely on small,
restricted, or modified habitats. We believe that, by designating large
populations, the species will persist, the potential for successful
pollination is high, and genetic exchange is facilitated. Using this
criteria results in some occupied areas not being included; however, we
believe we have included the most important areas and in a spatial
arrangement and quantity that allows for long-term conservation of the
species.
Essential Areas
For areas not occupied by the species at the time of listing, the
Service must demonstrate that these areas are essential to the
conservation of the species in order to include them in a critical
habitat designation. Helianthus paradoxus critical habitat units in New
Mexico and west Texas (shown in Table 1) are sufficiently distant (40
to 100 miles (mi) (64 to 161 kilometers (km)) from one another to rule
out frequent gene exchange by pollen vectors or seed dispersal.
Therefore, due to the spatial distance between them, we have determined
that each of these populations, including two not occupied by the
species at the time of listing (Unit 2 and Subunit 3b), are essential
to the conservation of the species because they provide for the
maintenance of the genetic diversity of H. paradoxus. The areas we have
determined meet the definition of critical habitat for this species
include populations containing all of the known remaining genetic
diversity within the species. These areas include representation of
each major subbasin in the known historical range of the species
(Service 2005, p. 4).
In summary, this critical habitat designation includes populations
of Helianthus paradoxus and habitats that possess the physical and
biological features essential to the conservation of the species. We
believe the populations included in this designation, if secured, would
provide for the conservation of H. paradoxus by: (1) Maintaining the
physical and biological features essential to the conservation of the
species in areas where large populations
[[Page 17770]]
of H. paradoxus are known to occur; (2) maintaining the current
distribution, thus preserving genetic variation throughout the range of
H. paradoxus and minimizing the potential effects of local extinction;
(3) minimizing fragmentation within populations by establishing
contiguous occurrences and maintaining existing connectivity; (4)
including sufficient pollinators; and (5) protecting the seed bank to
ensure long-term persistence of the species.
Mapping
The designated Helianthus paradoxus critical habitat areas are
grouped both spatially and by watershed into four larger units: West-
Central New Mexico, Santa Rosa, Roswell/Dexter, and West Texas. The
boundaries of the critical habitat designation for each subunit were
mapped using a global positioning system (GPS) along the outside
boundary of the area of occupied habitat (Pittenger 2007). We attempted
to encompass only areas that contain all of the PCEs in a year of
average rainfall. The elevated water table that provides conditions
favorable to H. paradoxus growth is influenced by both past and current
precipitation. Groundwater level is often affected by precipitation in
the entire watershed from many prior years as water slowly moves
through the soil and geologic features into springs and wetlands. The
groundwater provides a relatively reliable, stable water source
permanently saturating soils adjacent to springs and wetlands. Winter
storms and monsoons provide a more dynamic source of precipitation to
H. paradoxus habitat. The suitable habitat expands and contracts
horizontally and laterally from the groundwater-influenced areas
depending on the amount of annual precipitation (Sivinski 1992, p.
125). Therefore, in very wet years, suitable H. paradoxus habitat may
extend beyond the mapped boundaries for critical habitat and in very
dry years may shrink to a smaller area than delineated.
In a few of the subunits we include narrow dirt roads within the
mapped boundaries when these roads were present within the occupied
habitat. Due to soil compaction from vehicle tracks, these roads do not
provide the PCEs for Helianthus paradoxus. They do, however, represent
a small area (6 ft (2 m) wide), and they are directly adjacent to
occupied habitat, so we found it too difficult, due to mapping
constraints, to exclude them from the maps of critical habitat. To the
best of our knowledge, no other areas were included within the mapped
boundaries of subunits that do not possess all of the PCEs.
We were not able to obtain physical access to some private lands in
order to map the boundaries of Helianthus paradoxus habitat. We
utilized U.S. Geological Survey 7.5 minute quadrangle maps to create
maps that depict the habitat containing the physical and biological
features essential to the conservation of the species. One of the
features of 7.5 minute quadrangle maps is their accurate depiction of
permanent water sources (e.g., springs and wetlands) associated with
these populations. The depiction of the subunits is based on: (1) Map
features, (2) limited visual observations, and (3) a knowledge of how
spring/wetland habitats influence similar H. paradoxus populations in
other geographic areas within the species' range.
With the exception of the narrow dirt roads discussed above, when
determining critical habitat boundaries, we made every effort to avoid
including (within the boundaries of the map contained within this final
rule) developed areas such as buildings, paved areas, and other
structures that lack PCEs for Helianthus paradoxus. The scale of the
maps prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
areas.
We are designating critical habitat in areas that we have
determined were occupied at the time of listing, and that contain the
PCEs laid out in the appropriate quantity and spatial arrangement to
support life history functions essential for the conservation of the
species. We are also designating critical habitat in areas that were
not occupied at the time of listing, but are now occupied. We have
determined that these areas are essential to the conservation of the
species.
Final Critical Habitat Designation
The critical habitat areas described below constitute our current
best assessment of areas determined to meet the definition of critical
habitat for H. paradoxus. Table 1 outlines these areas and the threats
requiring special management.
Table 1.--Threats and Occupancy in Areas Containing Physical and Biological Features Essential to the
Conservation of Helianthus paradoxus
----------------------------------------------------------------------------------------------------------------
Threats requiring
Geographic area/unit special management or Occupied at the time Currently occupied
protections of listing
----------------------------------------------------------------------------------------------------------------
Unit 1. West--Central New Mexico
----------------------------------------------------------------------------------------------------------------
Subunit 1a. Rancho del Padre Spring Water withdrawal, Yes................... Yes.
Cienega. wetland filling and
development,
incompatible livestock
management.
Subunit 1b. Grants Salt Flat Wetland.. Wetland filling and Yes................... Yes.
development,
encroachment by
nonnative vegetation,
incompatible livestock
management.
Subunit 1c. Pueblo of Laguna.......... Water withdrawal, Yes................... Yes.
incompatible livestock
management,
encroachment by
nonnative vegetation.
Unit 2. La Joya--La Joya State Encroachment by No.................... Yes.
Wildlife Management Area. nonnative vegetation.
----------------------------------------------------------------------------------------------------------------
Unit 3. Santa Rosa
----------------------------------------------------------------------------------------------------------------
Subunit 3a. Blue Hole Cienega/Blue Encroachment by Yes................... Yes.
Hole Fish Hatchery Ponds. nonnative vegetation;
on City land, wetland
filling and recreation
use, mowing to edges of
ponds, dredging ponds
and filling of wetlands.
Subunit 3b. Westside Spring........... Water withdrawal, No.................... Yes.
wetland filling and
development,
encroachment by
nonnative vegetation.
----------------------------------------------------------------------------------------------------------------
[[Page 17771]]
Unit 4. Roswell/Dexter
----------------------------------------------------------------------------------------------------------------
Subunit 4a. Bitter Lake National Water withdrawal, Yes................... Yes.
Wildlife Refuge/ City of Roswell Land. encroachment by
nonnative vegetation;
on City land, wetland
filling and
development,
incompatible livestock
management.
Subunit 4b. Bitter Lake National Water withdrawal and Yes................... Yes.
Wildlife Refuge Farm. encroachment by
nonnative vegetation.
Subunit 4c. Oasis Dairy............... Water withdrawal, Yes................... Yes.
wetland filling and
development,
incompatible livestock
management.
Subunit 4d. Lea Lake at Bottomless Campgrounds and human Yes................... Yes.
Lakes State Park. trampling, encroachment
by nonnative vegetation.
Subunit 4e. Dexter Cienega............ Water withdrawal, Yes................... Yes.
wetland filling and
development,
incompatible livestock
management.
Unit 5. West Texas--Diamond Y Spring.. Water withdrawal, Yes................... Yes.
wetland filling and
development,
incompatible livestock
management.
----------------------------------------------------------------------------------------------------------------
The approximate area encompassed within each critical habitat unit
is shown in Table 2.
Table 2.--Lands Designated as Critical Habitat for Helianthus paradoxus and Land Ownership
[Area is displayed in acres (hectares)]
----------------------------------------------------------------------------------------------------------------
Lands meeting
the Lands
Geographic area/unit Land ownership definition of excluded from Critical
critical critical habitat
habitat habitat
----------------------------------------------------------------------------------------------------------------
Subunit 1a. Rancho del Padre Spring Private and Tribal...... 26 (10) 0 (0) 26 (10)
Cienega.
Subunit 1b. Grants Salt Flat Wetland.. Private................. 63 (25) 0 (0) 63 (25)
Subunit 1c. Pueblo of Laguna.......... Tribal.................. (\1\) (\1\) 0 (0)
Unit 2. La Joya--La Joya State State of New Mexico..... 854 (346) 854 (346) 0 (0)
Wildlife Management Area.
Subunit 3a. Blue Hole Cienega/Blue State of New Mexico and 134 (54) 0 (0) 134 (54)
Hole Fish Hatchery Ponds. City of Roswell.
Subunit 3b. Westside Spring........... Private................. 6 (3) 0 (0) 6 (3)
Subunit 4a. Bitter Lake National U.S. Fish and Wildlife 576 (233) 0 (0) 576 (233)
Wildlife Refuge/City of Roswell Land. Service and City of
Roswell.
Subunit 4b. Bitter Lake National U.S. Fish and Wildlife 96 (39) 0 (0) 96 (39)
Wildlife Refuge Farm. Service.
Subunit 4c. Oasis Dairy............... Private................. 104 (42) 0 (0) 104 (42)
Subunit 4d. Lea Lake at Bottomless State of New Mexico..... 20 (8) 0 (0) 20 (8)
Lakes State Park.
Subunit 4e. Dexter Cienega............ Private................. 41 (17) 0 (0) 41 (17)
Unit 5. West Texas--Diamond Y Spring.. Private................. 240 (97) 0 (0) 240 (97)
-----------------------------------------------
Total Acres (Hectares)............ ........................ .............. .............. 1,305 (528)
----------------------------------------------------------------------------------------------------------------
\1\ Undefined.
Below, we present a brief description of all subunits that meet the
definition of critical habitat for Helianthus paradoxus (see Criteria
Used To Identify Critical Habitat section above).
Unit 1: West-Central New Mexico
Subunit 1a is located at Rancho del Padre Spring Cienega. This
subunit is 26 ac (10 ha) in Cibola County, New Mexico. The subunit
consists of an area of Rancho del Padre Spring Cienega from the spring
on the south side of I-40 then northeast approximately 0.5 mi (0.8 km)
to the Rio San Jose.
This population consists of large patches of several thousand
plants on areas owned by two private landowners (23 ac (9 ha)) and the
Pueblo of Acoma (3 ac (1 ha)). This site was known to be occupied at
the time of listing and has been visited or observed from a public
right-of-way by species experts during four or more seasons. These
experts have found the site occupied by H. paradoxus on every visit
(Sivinski 2007a, p. 3). This unit is currently occupied, contains all
of the PCEs in the appropriate spatial arrangement and quantity, and is
threatened by water withdrawal, wetland filling and development, and
livestock grazing during H. paradoxus's growing and flowering season.
Therefore, special management or protections may be required to
minimize these threats. At this time, we are not aware of any
[[Page 17772]]
management plans that address H. paradoxus in this area.
Subunit 1b is located at Grants Salt Flat Wetland. This subunit is
63 ac (25 ha) of private land in Cibola County, New Mexico. The subunit
consists of an area of wet alkaline playa (i.e., a seasonal, shallow
desert lake) between railroad tracks and I-40 and west of Hwy 122 (Road
from Interstate to downtown Grants). Playas are nearly level areas at
the bottom of undrained desert basins that are sometimes covered in
water.
This population consists of large patches of several thousand
plants mostly on private property. This site was occupied at the time
of listing and has been visited or observed from a public right-of-way
by species experts during four or more seasons. These experts have
found the site occupied by Helianthus paradoxus on every visit
(Sivinski 2007). This unit is currently occupied, contains all of the
PCEs in the appropriate spatial arrangement and quantity, and is
threatened by wetland filling and development, encroachment by
nonnative vegetation, and livestock management not compatible with H.
paradoxus physiology. Therefore, special management or protections may
be required to minimize these threats. At this time, we are not aware
of any management plans that address H. paradoxus in this area.
Subunit 1c is located at the Pueblo of Laguna. This subunit's
acreage is undefined in Valencia County, New Mexico. The subunit
consists of an area along the Rio San Jose, South Garcia, New Mexico.
At this site, Helianthus paradoxus plants are located in patches at
springs along the Rio San Jose. Each patch consists of several hundred
to several thousand plants, and a few scattered plants grow along the
river (Sivinski 1995, p. 4). The entire site belongs to the Pueblo of
Laguna. This site was occupied at the time of listing, is currently
occupied, contains all of the PCEs in the appropriate spatial
arrangement and quantity, and is threatened by water withdrawal,
encroachment by nonnative vegetation, and livestock grazing during H.
paradoxus' growing and flowering season. The Pueblo has developed a
management plan for H. paradoxus. On the basis of this plan and our
partnership with the Pueblo of Laguna, we are excluding this area from
the final critical habitat designation pursuant to section 4(b)(2) of
the Act (see ``Application of Section 4(b)(2) of the Act'' section
below for additional information).
Unit 2: La Joya Wildlife Management Area
Unit 2 is located in the La Joya Wildlife Management Area. This
unit is 854 ac (346 ha) in Socorro County, New Mexico. This population
is located about 7 mi (11 km) south of Bernardo within Socorro County
near the confluence of the Rio Grande and the Rio Puerco. The La Joya
population is bounded to the west by I-25 and to the east by the Unit 7
Drain. The north boundary is adjacent to River Mile 126 of the Rio
Grande and the south boundary is adjacent to River Mile 123.
One of the largest populations of Helianthus paradoxus occurs
adjacent to the Rio Grande at La Joya. This Rio Grande population
consists of 100,000 to 1,000,000 plants and occurs on the La Joya
Wildlife Management Area (Service 2005, p. 4). It is within the La Joya
Unit of the Ladd S. Gordon Waterfowl Complex. This property is owned by
the New Mexico State Game Commission. It is managed by the NMDGF for
migratory waterfowl habitat, which is compatible with preservation of
wetlands for H. paradoxus.
We believe this area was not occupied at the time of listing. It
was discovered in 2004. This site has been found to be occupied every
year since then and represents one of the largest populations of
Helianthus paradoxus in the range of the species (Hirsch 2006, p. 1).
This unit is currently occupied by a stable population (Blue Earth
Ecological Consultants, Inc. 2007c, p. 3), contains all of the PCEs in
the appropriate spatial arrangement and quantity, and is threatened by
encroachment of nonnative vegetation.
We have determined this site to be essential to the conservation of
the species because it is currently occupied by a stable, very large
population of Helianthus paradoxus, and is sufficiently distant (over
40 mi (64 km)) from other populations to serve as an additional
locality that contributes to the conservation of genetic variation.
This population may prevent extirpation of the species resulting from
encroachment of nonnative species, degradation of habitat, or a
catastrophic event because it is the sole representative located in an
area distinct from any other population in the range of the species. As
such, it may contain genetic variation not found anywhere else in the
range of the species. Because the water source for this population is
stable, this population can be expected to persist in very large
numbers every year.
As described below, we are excluding Unit 2, the La Joya Wildlife
Management Area, from the critical habitat designation for Helianthus
paradoxus (see ``Exclusions Under Section 4(b)(2)'' section).
Unit 3: Santa Rosa
Subunit 3a is located at Blue Hole Cienega/Blue Hole Fish Hatchery
Ponds. This subunit is 134 ac (54 ha) in Guadalupe County, New Mexico.
The Blue Hole Fish Hatchery Ponds population of Helianthus paradoxus is
part of the same population as and nearly contiguous with the Blue Hole
Cienega in Santa Rosa, New Mexico. The Blue Hole Fish Hatchery Ponds
population is immediately north of Blue Hole Road and the Blue Hole
Cienega is immediately south.
This subunit was occupied at the time of listing and has been
visited by species experts during four or more seasons. These experts
found the subunit to be occupied by Helianthus paradoxus on every visit
(Sivinski 2007a, p. 2). This subunit is currently occupied (Blue Earth
Ecological Consultants, Inc. 2006, p.1), contains all of the PCEs in
the appropriate spatial arrangement and quantity, and is threatened by
encroachment of nonnative vegetation, wetland filling, and park
maintenance activities. Therefore, special management or protections
may be required to minimize these threats. At this time, we are not
aware of any management plans that address H. paradoxus in this area.
The part of this population at Blue Hole Cienega consists of
100,000 to 1,000,000 plants and is the largest population of Helianthus
paradoxus in the upper Pecos River basin. A non-traditional section 6
grant was awarded to the State of New Mexico in 2004 for acquisition of
the Blue Hole Cienega, which was finalized in July 2005. At this site,
shallow ground water seeps to the surface to create cienega
communities. This subunit is currently occupied, contains all of the
PCEs in the appropriate spatial arrangement and quantity, and is
threatened by encroachment by nonnative vegetation. Therefore, special
management or protections may be required to minimize these threats. At
this time, we are not aware of any management plans that address H.
paradoxus in this area.
The part of this population at the Blue Hole Fish Hatchery Ponds is
owned and administered by the City of Santa Rosa and consists of
approximately 1,000 plants. This site is maintained as a recreational
area. City of Santa Rosa park maintenance staff have voluntarily
stopped mowing and cutting Helianthus paradoxus during the months of
August and September. An information kiosk
[[Page 17773]]
on endangered wetland plants is being planned for the bike/foot path
along the creek at Blue Hole Park.
This subunit was confirmed to be occupied in 2006 (Blue Earth
Ecological Consultants, Inc. 2006, p. 4), contains all of the PCEs, and
is threatened by encroachment from nonnative vegetation, wetland
filling, and park maintenance activities. Therefore, special management
or protections may be required to minimize these threats. At this time,
we are not aware of any management plans that address Helianthus
paradoxus in this area.
Subunit 3b is located at Westside Spring. This subunit is 6 ac (3
ha) of private land in Santa Rosa, Guadalupe County, New Mexico. The
subunit consists of an area along an unnamed spring on the west side of
the Pecos River, located to the west of River Road and 1 mi (1.6 km)
east of Highway 54.
We believe this area was not occupied at the time of listing. It
was discovered in 2005, and contained thousands of plants. This site
was found to be occupied again in 2006 by a species expert observing
from a public right-of-way (Sivinski 2007). This subunit is currently
occupied by a stable population, contains all of the PCEs in the
appropriate spatial arrangement and quantity, and is threatened by
water withdrawal, wetland filling and development, and encroachment of
nonnative vegetation. Therefore, special management or protections may
be required to minimize these threats. At this time, we are not aware
of any management plans that address Helianthus paradoxus in this area.
We have determined this site to be essential to the conservation of
the species because it is currently occupied by a stable, large
population of Helianthus paradoxus, and is one of only two stable,
large populations in Unit 3. This subunit is sufficiently distant (over
40 mi (64 km)) from other populations to serve as an additional
locality that contributes to the conservation of genetic variation.
This population may prevent extirpation of the species resulting from
encroachment of nonnative species, degradation of habitat, or a
catastrophic event that could occur to the other subunit in Unit 3. It
may also contain genetic variation specific to this Unit. Because the
water source for this population is stable and not anticipated to be
subject to any known future water withdrawals, this population can be
expected to persist in large numbers every year.
Unit 4: Roswell/Dexter
Subunit 4a includes 576 ac (233 ha) of Bitter Lake National
Wildlife Refuge and City of Roswell land located in Chaves County, New
Mexico. This subunit is located approximately 5 mi (8 km) northeast of
the city of Roswell.
One of the largest Helianthus paradoxus populations occurs on the
Bitter Lake National Wildlife Refuge in New Mexico on Federal lands
managed by the Service. Several hundred thousand to a few million
plants occur nearly continuously along the shores and small islands of
all the artificial lakes in the southern unit of the refuge. Also, a
few small patches of plants occur on the west side of Bitter Lake Playa
and adjacent springs on the Lost River.
This area was occupied at the time of listing and has been visited
by species experts during four or more seasons. These experts found the
site occupied by Helianthus paradoxus on every visit (Ulibarri 2006a,
p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological Consultants, Inc.
2007a, p. 3). This area is currently occupied, contains all of the PCEs
essential to the conservation of the species, and is threatened by
water withdrawal and encroachment of nonnative vegetation. Additional
threats occurring on the City of Roswell lands include wetland filling
and development, and incompatible livestock management. Therefore,
special management or protections may be required to minimize these
threats.
Subunit 4b includes 96 ac (39 ha) of land within the Bitter Lake
National Wildlife Refuge Farm (Refuge Farm). This subunit is located in
Chaves County, New Mexico, approximately 5 mi (8 km) east of Roswell on
the west side of the Pecos River.
Subunit 4b consists of a few large patches with several thousand
plants on alkaline seeps behind the dikes on the western edge of the
Refuge Farm south of Highway 380. This land is owned and managed by the
Service as a grain farm and feeding area for migratory birds. The
eastern portion of the Refuge Farm is a marshy spring-seep area that
contains a large population of Helianthus paradoxus. The wet soils in
this population are not cultivated.
This area was known to be occupied at the time of listing and has
been visited by species experts during four or more seasons. The
experts found the site occupied by Helianthus paradoxus on every visit
(Ulibarri 2006b, p. 1; Sivinski 2007a, p. 2; Blue Earth Ecological
Consultants, Inc. 2007a, p. 3). This subunit is currently occupied and
contains all of the PCEs in the appropriate spatial arrangement and
quantity essential to the conservation of the species.
Subunit 4c is located at the Oasis Dairy. This subunit is 104 ac
(42 ha) of private land in Chaves County, New Mexico. The subunit is
located on the east side of Roswell, west side of Pecos River Valley,
approximately 4 mi (7 km) southeast of the Hwy 380 bridge, and beside
an unnamed spring approximately 0.6 mi (1 km) west of the Pecos River
and 6 mi (9 km) south of Highway 380.
This site contains a very large, dense patch of several thousand
Helianthus paradoxus in a low alkaline sink area approximately 0.5 mi
(0.8 km) west of the Pecos River on private land. It also contains a
large patch with many thousands of H. paradoxus in a low area below a
spring, also on private land. This site was occupied at the time of
listing and has been visited by species experts during at least three
seasons. These experts found the site occupied by H. paradoxus on every
visit (Sivinski 2007a, p. 3). This subunit is currently occupied,
contains all of the PCEs in the appropriate spatial arrangement and
quantity, and is threatened by livestock grazing during H. paradoxus'
growing and flowering season, water withdrawal, and wetland filling and
development. Therefore, special management or protections may be
required to minimize these threats. At this time, we are not aware of
any management plans that address H. paradoxus in this area.
Subunit 4d is located at Lea Lake at Bottomless Lakes State Park.
This subunit is 20 ac (8 ha) in Chaves County, New Mexico. It includes
the wet margins of Lea Lake.
This site contains a few thousand plants on the riparian margins of
Lea Lake. This land belongs to the State of New Mexico and is managed
by the New Mexico Parks and Recreation Division. The lands adjacent to
Lea Lake are used as a picnic area and campground for the State Park.
This site was occupied at the time of listing and has been visited by
species experts during four or more seasons. These experts found the
site occupied by Helianthus paradoxus on every visit (Sivinski 2007a,
p. 3). This subunit is currently occupied (Sivinski 2007a, p. 3; Blue
Earth Ecological Consultants, Inc. 2007a, p. 3), contains all of the
PCEs in the appropriate spatial arrangement and quantity, and is
threatened by encroachment of nonnative vegetation, and recreational
and park maintenance activities. Therefore, special management or
protections may be required to minimize these threats. At this time, we
are not aware of any management plans that address H. paradoxus in this
area.
[[Page 17774]]
Subunit 4e is located at Dexter Cienega. This subunit is 41 ac (17
ha) of private land in Chaves County, New Mexico. The subunit is
located in a small valley west of the Pecos River, east of the Hagerman
Irrigation Canal, and 3 mi (5 km) north of Dexter.
This site consists of several thousand plants on private land along
a wide, boggy drainage bottom. This site was known to be occupied at
the time of listing based upon observations from a public right-of-way
by species experts during at least three seasons (Sivinski 2007a, p.
2). This subunit is currently occupied, contains all of the PCEs in the
appropriate spatial arrangement and quantity, and is threatened by
water withdrawal, wetland filling and development, and livestock
grazing during Helianthus paradoxus' growing and flowering season.
Therefore, special management or protections may be required to
minimize these threats. At this time, we are not aware of any
management plans that address H. paradoxus in this area.
Unit 5: West Texas
Unit 5 includes 240 ac (97 ha) of private land located on Diamond Y
Spring in Pecos County, Texas. The unit is located approximately 12 mi
(20 km) north-northwest of Fort Stockton, Texas.
Unit 5 consists of several hundred thousand to one million plants
found on The Nature Conservancy's Diamond Y Spring Preserve and a
contiguous parcel of private land. This site was occupied at the time
of listing and has been visited by species experts during four or more
seasons. These experts found the site occupied by Helianthus paradoxus
on every visit (Poole 2006, p. 2). This unit is currently occupied
(Blue Earth Ecological Consultants, Inc. 2007b, p. 3) and contains all
of the PCEs essential to the conservation of the species.
The land within The Nature Conservancy's Diamond Y Spring Preserve
was purchased to protect Diamond Y Spring Preserve and other rare or
endangered aquatic species in the Diamond Y Spring system. This habitat
is managed for the conservation of such species (Service 2005, p. 12).
Diamond Y Spring Preserve has recently expanded from 1,500 ac (607 ha)
to 4,000 ac (1,618 ha). However, Helianthus paradoxus on the Preserve
is threatened by water withdrawal occurring outside the Preserve. On
the adjacent private land, H. paradoxus is also threatened by water
withdrawal, wetland filling and development, and livestock grazing
during the growing and flowering season. As a result, special
management or protections may be required to minimize these threats. At
this time, we are not aware of any completed management plans that
address H. paradoxus in this area.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to jeopardize the continued existence of a listed species or
destroy or adversely modify designated critical habitat. Decisions by
the Fifth and Ninth Circuit Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, destruction or adverse modification is
determined on the basis of whether, with implementation of the proposed
Federal action, the affected critical habitat would remain functional
(or retain the current ability for the PCEs to be functionally
established) to serve its intended conservation role for the species.
Under section 7(a)(2) of the Act, 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. As a result of
this 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 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 or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where a new
species is listed or critical habitat is subsequently designated that
may be affected and the Federal agency has retained discretionary
involvement or control over the action or such discretionary
involvement or control is authorized by law. Consequently, some Federal
agencies may need to request reinitiation of consultation with us on
actions for which formal consultation has been completed, if those
actions may affect subsequently listed species or designated critical
habitat.
Federal activities that may affect Helianthus paradoxus or its
designated critical habitat will require consultation under section
7(a)(2) of the Act. Activities on State, Tribal, local, or private
lands requiring 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(a)(1)(B) of
the Act) or involving some other Federal action (such as funding from
the Federal Highway Administration, Federal Aviation Administration, or
the Federal Emergency Management Agency) are examples of agency actions
that may be subject to the section 7 consultation process. Federal
actions not affecting listed species or critical habitat, and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or permitted, do not require section 7(a)(2)
consultations.
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 remain functional (or retain the
current ability for the PCEs to be functionally established) to serve
its intended conservation role for the species. Activities that may
destroy or adversely modify critical habitat are those that alter the
physical and
[[Page 17775]]
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Helianthus paradoxus.
Generally, the conservation role of H. paradoxus critical habitat units
is to support viable core area populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, those activities involving a Federal action that may destroy
or adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and, therefore, should
result in consultation for Helianthus paradoxus include, but are not
limited to:
(1) Projects that physically alter permanently saturated saline or
alkaline soils (e.g., salt deposits or crusts present) or result in the
loss and degradation of Helianthus paradoxus habitat. Such activities
could include, but are not limited to, drying of wetlands from
groundwater depletion, alteration of wetlands (e.g., wetland fills,
draining, construction of water impoundments), livestock management not
compatible with H. paradoxus physiology, clearing, introducing or
encouraging the spread of nonnative plants, and recreational use (such
as the use of off-road vehicles);
(2) Removing, thinning, or destroying Helianthus paradoxus plants.
This may occur through plowing, grading, wetland filling and
development, road building, burning, mechanical weed control, herbicide
application, recreational use, and activities associated with
firefighting (e.g., staging areas, surface disturbance); and
(3) Activities that appreciably diminish habitat value or quality
through indirect effects (e.g., encroachment of nonnative plants or
animals, or fragmentation).
All of the units designated as critical habitat, as well as Subunit
1c and Unit 2 that have been excluded under section 4(b)(2) of the Act,
contain the physical and biological features essential to the
conservation of Helianthus paradoxus. The five units are within the
geographic range of the species, all except two were known to be
occupied by the species at the time of listing (based on observations
made within the last 14 seasons (Ulibarri 2006; Kargas 2007; Sivinski
2007)), and all units are currently occupied. Federal agencies already
consult with us on activities in areas occupied by the species, and if
the species may be affected by the proposed action, the consultation is
to ensure that their actions do not jeopardize the continued existence
of H. paradoxus.
We recognize that jeopardy and adverse modification are not
equivalent standards. However, for Helianthus paradoxus, there is not
likely to be any difference in project modifications made under the
jeopardy standard and the adverse modification standard. In other
words, the material outcomes of consultations completed under the two
standards are not likely to differ. Whether consulting under either
standard, in order to reach a conclusion of jeopardy or adverse
modification, the proposed action would have to make the habitat
unsuitable to support plants. Helianthus paradoxus is an annual species
that re-establishes populations of adult plants each year from seed
produced during the previous year or years' reproductive efforts. Roots
and seeds are present in the soil year round, even when the plants are
not flowering. Because the plant grows in patches and sprouts from
seeds left in the ground the year before, harming or killing existing
plants would not likely result in jeopardy to the species. The outcome
of formal consultation that does not determine jeopardy or adverse
modification results in only discretionary conservation
recommendations. Critical habitat designation may interject additional
considerations for protection of habitat function, suitability, or
capability over the long term into section 7 consultations. This could
result in additional discretionary conservation recommendations.
Alternatively, in order to conclude that a proposed action
jeopardizes the continued existence of Helianthus paradoxus, an action
would have to make the habitat unsuitable within critical habitat units
or core areas. Temporary effects to this fairly hardy plant would not
have lasting effects at the population level, and likely would not
jeopardize the continued existence of the species, as long as the
habitat remained suitable. For example, an area that is completely
mowed would result in adverse effects to the H. paradoxus, but likely
would not jeopardize the species because the plant should re-establish
from seeds in the soil.
If a consultation were to reach the conclusion that the action
jeopardized the continued existence of Helianthus paradoxus, the
reasonable and prudent alternative, which would be required if the
project was to proceed, would have to reduce impacts to plants and the
biological and physical features of habitat. The reasonable and prudent
alternative under a conclusion that the action would result in adverse
modification of critical habitat would not likely add any additional
requirements because the alternative for jeopardy already considers
effects to the biological and physical features of habitat.
Consequently, the outcome of section 7 consultations in such cases may
not be substantially different with designation of critical habitat
compared to existing consultation conducted under the jeopardy
standard.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the statute on its face, as well as the legislative
history are clear that the Secretary has broad discretion regarding
which factor(s) to use and how much weight to give any factor. In the
following sections, we address a number of general issues that are
relevant to the exclusions we considered.
Benefits of Designating Critical Habitat
The process of designating critical habitat as described in the Act
requires that the Service identify those lands on which are found the
physical or biological features essential to the conservation of the
species that may require special management considerations or
protection, and those areas outside the geographical area occupied by
the species at the time of listing that are essential to the
conservation of the species. In identifying those lands, the Service
must consider the recovery needs of the species, such that, on the
basis of the best scientific and commercial data available at the time
of designation, the habitat that is identified, if managed, could
provide for the survival and recovery of the species.
The identification of those areas that are essential for the
conservation of the species and can, if managed, provide for the
recovery of a species is beneficial. The process of proposing and
finalizing a critical habitat rule provides the
[[Page 17776]]
Service with the opportunity to determine the physical and biological
features essential for conservation of the species within the
geographical area occupied by the species at the time of listing, as
well as to determine other areas essential to the conservation of the
species. The designation process includes peer review and public
comment on the identified physical and biological features and areas.
This process is valuable to land owners and managers in developing
conservation management plans for identified areas, as well as any
other occupied habitat or suitable habitat that may not have been
included in the Service's determination of essential habitat.
The consultation provisions under section 7(a)(2) of the Act
constitute the regulatory benefits of critical habitat. As discussed
above, Federal agencies must consult with the Service on actions that
may affect critical habitat and must avoid destroying or adversely
modifying critical habitat. Federal agencies must also consult with us
on actions that may affect a listed species and refrain from
undertaking actions that are likely to jeopardize the continued
existence of such species. The analysis of effects to critical habitat
is a separate and different analysis from that of the effects to the
species. Therefore, the difference in outcomes of these two analyses
represents the regulatory benefit of critical habitat. For some
species, and in some locations, the outcome of these analyses will be
similar, because effects to habitat will often also result in effects
to the species. However, the regulatory standard is different, as the
jeopardy analysis looks on the action's impact to survival and recovery
of the species and the adverse modification analysis looks at the
effects to the designated habitat's contribution to conservation of the
species. This will, in many instances, lead to different results, and
different regulatory requirements. Thus, critical habitat designations
may provide greater regulatory benefits to the recovery of a species
than would listing alone.
There are two limitations to the regulatory effect of critical
habitat. First, a section 7(a)(2) consultation is only required where
there is a Federal nexus (an action authorized, funded, or carried out
by any Federal agency)--if there is no Federal nexus, the critical
habitat designation of private lands itself does not restrict any
actions that destroy or adversely modify critical habitat. Second, the
designation only limits destruction or adverse modification. By its
nature, the prohibition on adverse modification is designed to ensure
that the conservation role and function of those areas that contain the
physical and biological features essential to the conservation of the
species or of unoccupied areas that are essential for the conservation
of the species are not appreciably reduced. Critical habitat
designation alone, however, does not require private property owners to
undertake specific steps toward recovery of the species.
Once an agency determines that consultation under section 7(a)(2)
of the Act is necessary, the process may conclude informally when the
Service concurs in writing that the proposed Federal action is not
likely to adversely affect critical habitat. However, if the Service
determines through informal consultation that adverse impacts are
likely to occur, then formal consultation is initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to result in
destruction or adverse modification of critical habitat.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to the physical and biological features essential to the conservation
of the species, but it would not suggest the implementation of any
reasonable and prudent alternative. We suggest reasonable and prudent
alternatives to the proposed Federal action only when our biological
opinion results in an adverse modification conclusion.
As stated above, the designation of critical habitat does not
require that any management or recovery actions take place on the lands
included in the designation. Even in cases where consultation has been
initiated under section 7(a)(2) of the Act, the end result of
consultation is to avoid jeopardy to the species and/or adverse
modification of its critical habitat, but not necessarily to manage
critical habitat or institute recovery actions on critical habitat.
Conversely, voluntary conservation efforts implemented through
management plans institute proactive actions over the lands they
encompass and are put in place to remove or reduce known threats to a
species or its habitat; therefore, implementing recovery actions. We
believe that in many instances the regulatory benefit of critical
habitat is low when compared to the conservation benefit that can be
achieved through conservation efforts or management plans. The
conservation achieved through implementing Habitat Conservation Plans
(HCPs) under section 10 of the Act or other habitat management plans is
typically greater than would be achieved through multiple site-by-site,
project-by-project, section 7 consultations involving consideration of
critical habitat. Management plans commit resources to implement long-
term management and protection to particular habitat for at least one
and possibly other listed or sensitive species. Section 7 consultations
only commit Federal agencies to prevent adverse modification to
critical habitat caused by the particular project, and they are not
committed to provide conservation or long-term benefits to areas not
affected by the proposed project. Thus, implementation of any HCP or
management plan that incorporates enhancement or recovery as the
management standard may often provide as much or more benefit than a
consultation for critical habitat designation.
Another benefit of including lands in critical habitat is that
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and promote conservation efforts by
other parties by clearly delineating areas of high conservation value
for Helianthus paradoxus. In general, critical habitat designation
always has educational benefits; however, in some cases, they may be
redundant with other educational effects. For example, HCPs have
significant public input and may largely duplicate the educational
benefits of a critical habitat designation. Including lands in critical
habitat also would inform State agencies and local governments about
areas that could be conserved under State laws or local ordinances.
Recovery Benefits
The process of designating critical habitat as described in the Act
requires that the Service identify those lands on which are found the
physical or biological features essential to the conservation of the
species which may require special management consideration or
protections. In identifying those lands, the Service must consider the
recovery needs of the species, such that the habitat that is
identified, if managed, could provide for the survival and recovery of
the species. Furthermore, once critical habitat has been designated,
Federal agencies must consult with the Service under section 7(a)(2) of
the Act to ensure that their actions will not adversely modify
designated critical habitat or jeopardize the continued existence of
the species. As noted in the Ninth Circuit's Gifford
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Pinchot decision, the Court ruled that the jeopardy and adverse
modification standards are distinct, and that adverse modification
evaluations require consideration of impacts to the recovery of
species. Thus, through the section 7(a)(2) consultation process,
critical habitat designations provide recovery benefits to species by
ensuring that Federal actions will not destroy or adversely modify
designated critical habitat.
It is beneficial to identify those lands that are necessary for the
conservation of the species and that, if managed appropriately, would
further recovery measures for the species. The process of proposing and
finalizing a critical habitat rule provides the Service with the
opportunity to determine lands essential for conservation as well as
identify the physical and biological features essential for
conservation on those lands. The designation process includes peer
review and public comment on the identified features and lands. This
process is valuable to landowners and managers in developing habitat
management plans for identified lands, as well as any other occupied
habitat or suitable habitat that may not have been included in the
Service's determination of essential habitat.
However, the designation of critical habitat does not require that
any management or recovery actions take place on the lands included in
the designation. Even in cases where consultation has been initiated
under section 7(a)(2) of the Act, the end result of consultation is to
avoid jeopardy to the species and adverse modification of its critical
habitat, but not specifically to manage remaining lands or institute
recovery actions on remaining lands. Conversely, management plans
institute proactive actions over the lands they encompass intentionally
to remove or reduce known threats to a species or its habitat and,
therefore, implement recovery actions. We believe that the conservation
of a species and its habitat that could be achieved through the
designation of critical habitat, in some cases, is less than the
conservation that could be achieved through the implementation of a
management plan that includes species-specific provisions and considers
enhancement or recovery of listed species as the management standard
over the same lands. Consequently, implementation of an HCP or
management plan that considers enhancement or recovery as the
management standard will often provide as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without the cooperation of non-Federal landowners. More than 60 percent
of the United States is privately owned (National Wilderness Institute
1995, p. 2), and at least 80 percent of endangered or threatened
species occur either partially or solely on private lands (Crouse et
al. 2002, p. 720). Stein et al. (1995, p. 400) found that only about 12
percent of listed species were found almost exclusively on Federal
lands (90 to 100 percent of their known occurrences restricted to
Federal lands) and that 50 percent of federally listed species are not
known to occur on Federal lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-Federal landowners
(Wilcove and Chen 1998, p. 1407; Crouse et al. 2002, p. 720; James
2002, p. 271). Building partnerships and promoting voluntary
cooperation of landowners is essential to understanding the status of
species on non-Federal lands and is necessary to implement recovery
actions such as reintroducing listed species, habitat restoration, and
habitat protection.
Many non-Federal landowners derive satisfaction in contributing to
endangered species recovery. The Service promotes these private-sector
efforts through the Department of the Interior's Cooperative
Conservation philosophy. Conservation agreements with non-Federal
landowners (HCPs, safe harbor agreements, other conservation
agreements, easements, and State and local regulations) enhance species
conservation by extending species protections beyond those available
through section 7 consultations. In the past decade, we have encouraged
non-Federal landowners to enter into conservation agreements, based on
a view that we can achieve greater species conservation on non-Federal
land through such partnerships than we can through regulatory methods
(61 FR 63854; December 2, 1996).
Many private landowners, however, are wary of the possible
consequences of encouraging endangered species to their property, and
there is mounting evidence that some regulatory actions by the Federal
Government, while well-intentioned and required by law, can (under
certain circumstances) have unintended negative consequences for the
conservation of species on private lands (Wilcove et al. 1996, pp. 5-6;
Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp.
270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-1643). Many
landowners fear a decline in their property value due to real or
perceived restrictions on land-use options where threatened or
endangered species are found. Consequently, harboring endangered
species is viewed by many landowners as a liability. This perception
results in anti-conservation incentives because maintaining habitats
that harbor endangered species represents a risk to future economic
opportunities (Main et al. 1999, pp. 1264-1265; Brook et al. 2003, pp.
1644-1648).
According to some researchers, the designation of critical habitat
on private lands significantly reduces the likelihood that landowners
will support and carry out conservation actions (Main et al. 1999, p.
1263; Bean 2002, p. 2; Brook et al. 2003, pp. 1644-1648). The magnitude
of this negative outcome is greatly amplified in situations where
active management measures (such as reintroduction, fire management,
and control of invasive species) are necessary for species conservation
(Bean 2002, pp. 3-4). The Service believes that the judicious exclusion
of specific areas of non-federally owned lands from critical habitat
designations can contribute to species recovery and provide a superior
level of conservation than critical habitat alone.
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7(a)(2) of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands. Thus,
the benefits of excluding areas that are covered by partnerships or
voluntary conservation efforts can often be high.
Benefits of Excluding Lands With HCPs or Other Management Plans From
Critical Habitat
The benefits of excluding lands with HCPs or other management plans
from critical habitat designation include relieving landowners,
communities, and counties of any additional regulatory burden that
might be imposed by a critical habitat designation. Most HCPs
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and other conservation plans take many years to develop and, upon
completion, are consistent with the recovery objectives for listed
species that are covered within the plan area. Many conservation plans
also provide conservation benefits to unlisted sensitive species.
Imposing an additional regulatory review as a result of the designation
of critical habitat may undermine these conservation efforts and
partnerships designed to proactively protect species to ensure that
listing under the Act will not be necessary. Our experience in
implementing the Act has found that designation of critical habitat
within the boundaries of management plans that provide conservation
measures for a species is a disincentive to those entities currently
developing these plans or contemplating them in the future, because one
of the incentives for undertaking conservation is greater ease of
permitting where listed species are affected. Addition of a new
regulatory requirement would remove a significant incentive for
undertaking the time and expense of management planning. In fact,
designating critical habitat in areas covered by a pending HCP or
conservation plan could result in the loss of some species' benefits if
participants abandon the planning process, in part because of the
strength of the perceived additional regulatory compliance that such
designation would entail. The time and cost of regulatory compliance
for a critical habitat designation do not have to be quantified for
them to be perceived as additional Federal regulatory burden sufficient
to discourage continued participation in plans targeting listed
species' conservation.
A related benefit of excluding lands covered by approved HCPs or
other management plans from critical habitat designation is the
unhindered, continued ability it gives us to seek new partnerships with
future plan participants, including States, Counties, local
jurisdictions, conservation organizations, and private landowners,
which together can implement conservation actions that we would be
unable to accomplish otherwise. If lands within approved management
plan areas are designated as critical habitat, it would likely have a
negative effect on our ability to establish new partnerships to develop
these plans, particularly plans that address landscape-level
conservation of species and habitats. By preemptively excluding these
lands, we preserve our current partnerships and encourage additional
conservation actions in the future.
Furthermore, HCP applications require consultation, which would
review the effects of all HCP-covered activities that might adversely
impact the species under a jeopardy standard, including possibly
significant habitat modification (see definition of ``harm'' at 50 CFR
17.3), even without the critical habitat designation. In addition, all
other Federal actions that may affect the listed species would still
require consultation under section 7(a)(2) of the Act, and we would
review these actions for possibly significant habitat modification in
accordance with the definition of harm referenced above.
The information provided in the previous section applies to all the
following discussions of benefits of inclusion or exclusion of critical
habitat.
Exclusions Under Section 4(b)(2) of the Act
When performing the required analysis under section 4(b)(2) of the
Act, the existence of a management plan (HCPs as well as other types)
that considers enhancement or recovery of listed species as its
management standard is relevant to our weighing of the benefits of
inclusion of a particular area in the critical habitat designation. We
considered the following criteria in evaluating the management and
protection provided by such plans:
(1) The plan is complete and provides for the conservation and
protection of the physical and biological features essential to the
conservation of the species;
(2) There is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and
(3) The plan provides conservation strategies and measures
consistent with currently accepted principles of conservation biology.
Discussions of Subunit 1c, the Pueblo of Laguna, and Unit 2, the La
Joya Wildlife Management Area, under the provisions in section 4(b)(2)
of the Act are provided below.
La Joya Wildlife Management Area
During the first comment period, which closed on May 29, 2007 (72
FR 14328), the NMDGF requested technical assistance on the development
of a habitat management plan for Helianthus paradoxus. During the
second comment period, which closed on January 10, 2008, we received
the final Pecos sunflower (Helianthus paradoxus) Habitat Management
Plan on the La Joya Wildlife Management Area from the NMDGF. The NMDGF
finalized the habitat management plan in order to preclude the
designation of critical habitat on their lands (NMDGF 2008, p. 1).
The purpose of the management plan is to support conservation of
the species on the La Joya Wildlife Management Area by: (1) Annually
controlling invasive species; (2) protecting the natural spring in Unit
5 from motorized vehicles and heavy equipment; (3) monitoring core
populations by digitizing these areas annually; (4) conserving H.
paradoxus by adjusting invasive species treatment area boundaries; and
(5) restoring native habitat through revegetation.
The habitat management plan was developed in accordance with the
recovery plan for Helianthus paradoxus (NMDGF 2008, p. 1). The recovery
plan identifies that the recovery objective for H. paradoxus is to
protect and manage significant populations. The recovery plan
identified the La Joya population as a core conservation area that
would ensure the survival of the species (Service 2006, p. 17). Long-
term protection can be provided by purchasing populations and
implementing appropriate management plans for H. paradoxus (Service
2006, p. 15-16). The recovery plan outlines that these management plans
should reduce the identified threats to H. paradoxus (e.g., controlling
invasive plants, identifying and restricting incompatible land uses,
and ensuring spring flows). We find that the management plan developed
by NMDGF is consistent with the tenets identified in the recovery plan
for H. paradoxus. Therefore, we conclude that the plan is complete and
provides for the conservation and protection of the physical and
biological features essential to the conservation of the species.
Benefits of Inclusion
The benefits of including lands in critical habitat can be
regulatory, educational, or to aid in recovery of species as generally
discussed in the ``Benefits of Designating Critical Habitat'' section.
Few additional benefits would be derived from including the La Joya
Wildlife Management Area in a critical habitat designation for
Helianthus paradoxus beyond what will be achieved through the
implementation of NMDGF's management plan. The principal benefit of
designating critical habitat in that area would be that activities that
affect H. paradoxus would require consultation under section 7 of the
Act. Consultation would ensure that a proposed action does not result
in the
[[Page 17779]]
destruction or adverse modification of critical habitat.
Based upon our analysis conducted within the environmental
assessment and discussion in the ``Application of the Adverse
Modification Standard'' section, we conclude that few regulatory
benefits to Helianthus paradoxus would be gaine