71838 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules

* * * * * streams or rivers in Cochise and Santa appointment, during normal business Dated: December 22, 1998. Cruz counties, . If this proposal hours at the above address. Donald Barry, is made final, section 7 of the Act would FOR FURTHER INFORMATION CONTACT: prohibit destruction or adverse Tom Assistant Secretary for Fish and Wildlife and Gatz, Endangered Coordinator, Parks. modification of critical habitat by any at the above address (telephone 602/ [FR Doc. 98–34412 Filed 12–23–98; 3:59 pm] activity funded, authorized, or carried 640–2720 ext. 240; facsimile 602/640– BILLING CODE 4310±55±C out by any Federal agency. Section 4 of the Act requires us to consider 2730). economic and other impacts of SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE INTERIOR specifying any particular area as critical habitat. We solicit data and comments Background Fish and Wildlife Service from the public on all aspects of this schaffneriana ssp. recurva proposal, including data on the 50 CFR Part 17 (referred to as Lilaeopsis in this economic and other impacts of the proposed rule), the Huachuca water RIN 1018±AF37 designation. We may revise this umbel, is a found in cienegas proposal to incorporate or address new (desert marshes), streams and springs in Endangered and Threatened Wildlife information received during the southern Arizona and northern Sonora, and ; Proposed Determination of comment period. , typically in mid-elevation Critical Habitat for the Huachuca Water DATES: We will accept comments until wetland communities often surrounded Umbel, a Plant March 1, 1999. We will hold a public by relatively arid environments. These AGENCY: Fish and Wildlife Service, hearing on this proposed rule; we will communities are usually associated Interior. publish the date and location of this with perennial springs and stream hearing in the Federal Register and ACTION: Proposed rule. headwaters, have permanently or local newspapers at least 15 days prior seasonally saturated highly organic SUMMARY: We, the U.S. Fish and to the hearing. soils, and have a low probability of Wildlife Service (Service), propose ADDRESSES: Send comments and flooding or scouring (Hendrickson and designation of critical habitat pursuant materials to the Field Supervisor, Minckley 1984). Cienegas support to the Endangered Species Act of 1973, Arizona Ecological Services Field diverse assemblages of animals and as amended (Act), for Lilaeopsis Office, U.S. Fish and Wildlife Service, plants, including many species of schaffneriana ssp. recurva, the 2321 West Royal Palm Road, Suite 103, limited distribution, such as Lilaeopsis Huachuca water umbel, a plant. Phoenix, Arizona, 85021–4951. (Hendrickson and Minckley 1984, Lowe Proposed critical habitat includes a total Comments and materials received will 1985, Ohmart and Anderson 1982, of 83.9 kilometers (52.1 miles) of be available for public inspection, by Minckley and Brown 1982). Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules 71839

Cienegas, perennial streams, and mode. An additional dispersal precluded by other higher-priority rivers in the desert southwest are opportunity occurs as a result of the listing activities. Beginning with our extremely rare. The Arizona Game and dislodging of clumps of plants which combined plant and animal notice of Fish Department (1993) recently then may reroot at different sites along review published in the Federal estimated that riparian vegetation streams. Register on February 28, 1996 (61 FR associated with perennial streams spp. recurva 7596), we discontinued the designation comprises about 0.4 percent of the total was first described by A.W. Hill based of multiple categories of candidates and land area of Arizona, with present on the type specimen collected near only taxa meeting the definition of riparian areas being remnants of what Tucson in 1881 (Hill 1926). Hill applied former category 1 candidates are now once existed. The State of Arizona the name Lilaeopsis recurva to the recognized as candidates for listing (1990) estimated that up to 90 percent specimen, and the name prevailed until purposes. of the riparian habitat along Arizona’s Affolter (1985) revised the . On June 3, 1993, we received a major desert watercourses has been lost, Affolter applied the name L. petition, dated May 31, 1993, from a degraded, or altered in historical times. schaffneriana ssp. recurva to plants coalition of conservation organizations Lilaeopsis occupies small portions of found west of the continental divide. (Suckling et al. 1993) to list Lilaeopsis these rare habitats. and two other species as endangered Previous Federal Action Lilaeopsis is an herbaceous, species pursuant to the Act. On semiaquatic to occasionally fully We included Lilaeopsis schaffneriana December 14, 1993, we published a aquatic perennial plant with slender, ssp. recurva, then under the name L. notice of 90-day finding that the petition erect leaves that grow from creeping recurva, as a category 2 candidate in our presented substantial information rhizomes. The leaves are cylindrical, November 28, 1983 (45 FR 82480), and indicating that listing of Lilaeopsis may hollow with no pith, and have septa September 27, 1985 (50 FR 39526), plant be warranted, and requested public (thin partitions) at regular intervals. The notices of review. Category 2 candidates comments and biological data on the yellow-green or bright green leaves are were defined as those taxa for which we status of the species (58 FR 65325). generally 1–3 millimeters (mm) (0.04– had data indicating that listing was On April 3, 1995, we published a 0.12 inches (in.)) in diameter and often possibly appropriate but for which we proposal (60 FR 16836) to list Lilaeopsis 3–5 centimeters (cm) (1–2 in.) tall, but lacked substantial information on and two other species as endangered, can reach up to 20 cm (8 in.) tall under vulnerability and threats to support and again requested public comments favorable conditions. Three to 10 very proposed listing rules. In our February and biological data on their status. After small flowers are borne on an umbel 21, 1990 (55 FR 6184), and September consideration of comments and that is always shorter than the leaves. 30, 1993 (58 FR 51144), notices, we information received during the The fruits are globose, 1.5–2 mm (0.06– included Lilaeopsis as a category 1 comment period, we listed Lilaeopsis as 0.08 in.) in diameter, and usually candidate. Category 1 candidates were endangered on January 6, 1997. slightly longer than wide (Affolter defined as those taxa for which we had Section 4(a)(3) of the Act requires 1985). The species reproduces sexually sufficient information on biological that, to the maximum extent prudent through flowering and asexually from vulnerability and threats to support and determinable, we designate critical rhizomes (root-like stems); the latter proposed listing rules but for which habitat at the time we determine a probably being the primary reproductive issuance of proposals to list were species to be endangered or threatened. 71840 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules

At the time of listing, we determined order to comply with the above- (Al Anderson, Grey Hawk Ranch, in litt. that any potential benefits of critical mentioned court order. 1995). habitat beyond that of listing, when Density of Lilaeopsis plants and size Habitat Characteristics weighed against the negative impacts of of populations fluctuate in response to disclosing site-specific localities, did The physical and biological habitat both flood cycles and site not yield an overall benefit to the features essential to the conservation of characteristics. Some sites, such as species, and, therefore, that designation Lilaeopsis include a riparian plant Black Draw, have a few sparsely of critical habitat was not prudent. community that is stable over time and distributed clones, possibly due to the On October 31, 1997, Southwest relatively free of nonnative species, a dense shade of the even-aged overstory Center for Biological Diversity filed a stream channel that is stable and subject of trees and deeply entrenched channel. lawsuit in Federal District Court in to periodic flooding, refugial sites (sites The population occupies Arizona against the Department of safe from catastrophic flooding), and a 14.5 percent of a 500.5 square-meter (sq- Interior for failure to designate critical permanently wetted substrate (soil) for m) (5,385 square-foot (sq-ft)) patch of habitat for the cactus ferruginous growth and reproduction of the plant. habitat (Gori et al. 1990). Some pygmy-owl (Glaucidium brasilianum Lilaeopsis has an opportunistic populations are as small as 1–2 sq-m cactorum) and Lilaeopsis (Southwest strategy that ensures its survival in (11–22 sq-ft). The Scotia Canyon Center for Biological Diversity v. Bruce healthy riverine systems, cienegas, and population, by contrast, has dense mats Babbitt, Secretary of the Department of springs. In upper watersheds that of leaves. Scotia Canyon contains one of the Interior; CIV 97–704 TUC ACM). On generally do not experience scouring the larger Lilaeopsis populations, October 7, 1998, Alfredo C. Marquez, floods, Lilaeopsis occurs in microsites occupying about 57 percent of the Senior U.S. District Judge, issued an (small isolated sites) where competition 1,450-m (4,756-ft) perennial reach (Gori order stating that ‘‘There being no between different plant species is low. et al. 1990; Jim Abbott, Coronado evidence that designation of critical At these sites, Lilaeopsis occurs on National Forest, in litt. 1994). habitat for the pygmy-owl and water wetted soils interspersed with other While the extent of occupied habitat umbel is not prudent, the Secretary plants at low density, along the can be estimated, the number of shall, without further delay, decide periphery of the wetted channel, or in individuals in each population is whether or not to designate critical small openings in the understory. The difficult to determine because of the habitat for the pygmy-owl and water upper Santa Cruz River and associated intermeshing nature of the creeping umbel based on the best scientific and springs in the San Rafael Valley, where rhizomes and the predominantly commercial information available.’’ a population of Lilaeopsis occurs, is an asexual mode of reproduction. A On November 25, 1998, in response to example of a site that meets these ‘‘population’’ of Lilaeopsis may be the Plaintiff’s motion to clarify his conditions. The types of microsites composed of one or many genetically initial order, Judge Marquez further required by Lilaeopsis were generally distinct individuals. ordered ‘‘that within 30 days of the date lost from the main stems of the San Introduction of Lilaeopsis into ponds of this Order, the Secretary shall issue Pedro and Santa Cruz Rivers when on the San Bernardino National Wildlife the Proposed Rules for designating channel entrenchment occurred in the Refuge (Refuge) appears to be successful critical habitat for the pygmy-owl and late 1800s. Habitat on the upper San (Warren 1991). In 1991, Lilaeopsis was water umbel . . . and that within six Pedro River is recovering, and transplanted from Black Draw into new months of issuing the Proposed Rules, Lilaeopsis has recently recolonized ponds and other Refuge wetlands. the Secretary shall issue final decisions small reaches of the main channel. Transplants placed in areas with low regarding the designation of critical Lilaeopsis can occur in backwaters plant density expanded rapidly (Warren habitat for the pygmy-owl and water and side channels of streams and rivers, 1991). In 1992, Lilaeopsis naturally umbel.’’ and in nearby springs. After a flood, colonized a pond created in 1991. Absent the court’s order, the Lilaeopsis can rapidly expand its However, as plant competition processing of this proposed rule would population and occupy disturbed increased around the perimeter of the not conform with our Fiscal Year 1998 habitat until interspecific competition pond, the Lilaeopsis population and 1999 Listing Priority Guidance, exceeds its tolerance. This response was decreased. This response seems to published on May 8, 1998 (63 FR recorded at Sonoita Creek in August confirm observations (Kevin Cobble, 25502). The guidance clarifies the order 1988, when a scouring flood removed San Bernardino National Wildlife in which we will process rulemakings about 95 percent of the Lilaeopsis Refuge, pers. comm. 1994; and Peter giving highest priority (Tier 1) to population (Gori et al. 1990). One year Warren, Arizona Nature Conservancy, processing emergency rules to add later, Lilaeopsis had recolonized the pers. comm. 1993) that other species species to the Lists of Endangered and stream and was again co-dominant with such as Typha sp. will out-compete Threatened Wildlife and Plants; second Rorippa nasturtium-aquaticum Lilaeopsis. priority (Tier 2) to processing final (watercress) (Warren et al. 1991). Lilaeopsis has been documented from determinations on proposals to add The expansion and contraction of 25 sites in Santa Cruz, Cochise, and species to the lists, processing new Lilaeopsis populations appears to Pima counties, Arizona, and in adjacent listing proposals, processing depend on the presence of ‘‘refugia’’ Sonora, Mexico, west of the continental administrative findings on petitions (to where the species can escape the effects divide (Saucedo 1990, Warren et al. add species to the lists, delist species, of scouring floods, a watershed that has 1989, Warren et al. 1991, Warren and or reclassify listed species), and an unaltered flow regime, and a healthy Reichenbacher 1991). The plant has processing a limited number of riparian community that stabilizes the been extirpated from six of the sites. proposed and final rules to delist or channel. Two patches of Lilaeopsis on The 19 extant sites occur in 4 major reclassify species; and third priority the San Pedro River were lost during a watersheds—San Pedro River, Santa (Tier 3) to processing proposed and final winter flood in 1994 and the species Cruz River, Rio Yaqui, and Rio Sonora. rules designating critical habitat. The had still not recolonized that area as of All sites are between 1,148–2,133 m Service’s Southwest Region is currently May of 1995, demonstrating the (3,500–6,500 ft) elevation. New working on Tier 2 actions; however, we dynamic and often precarious nature of information received during the are undertaking this Tier 3 action in occurrences within a riparian system comment periods and in section 7 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules 71841 conferences and consultations for Arizona. Transplants from Black Draw considerations or protection, and may proposed Federal actions has indicated have been successfully established in provide additional protection to areas that some of these sites are larger in nearby wetlands and ponds. Recent where significant threats to the species extent than previously known. This is renovation of House Pond on private have been identified. Critical habitat likely due to the dynamic nature of land near Black Draw extirpated the receives protection from the prohibition riparian habitats. population on that pond. against destruction or adverse Nine Lilaeopsis populations occur in Two Lilaeopsis populations occur in modification through required the San Pedro River watershed in the Rio Yaqui watershed. The species consultation under section 7 of the Act Arizona and Sonora, on sites owned or was recently discovered at Presa with regard to actions carried out, managed by private landowners, the Cuquiarichi, in the Sierra de los Ajos, funded, or authorized by a Federal Fort Huachuca Military Reservation, the several miles east of Cananea, Sonora agency. Section 7 also requires Coronado National Forest, and the (Tom Deecken, Coronado National conferences on Federal actions that are Bureau of Land Management’s (BLM) Forest, pers. comm. 1994). A population likely to result in the adverse Tucson Field Office. Two extirpated in the Rio San Bernardino in Sonora modification or destruction of proposed populations in the upper San Pedro was also recently extirpated (Gori et al. critical habitat. Aside from the watershed occurred at Zinn Pond in St. 1990). One Lilaeopsis population occurs protection that may be provided under David and the San Pedro River near St. in the Rio Sonora watershed at Ojo de section 7, the Act does not provide other David. Cienega-like habitats were Agua, a cienega in Sonora at the forms of protection to lands designated probably common along the San Pedro headwaters of the river (Saucedo 1990). as critical habitat. River prior to 1900 (Hendrickson and Section 7(a)(2) of the Act prohibits Critical Habitat Minckley 1984, Jackson et al. 1987), but Federal agencies from funding, these habitats are now largely gone. Critical habitat is defined in section 3 authorizing, or carrying out actions Surveys conducted for wildlife habitat of the Act as—(i) the specific areas likely to jeopardize the continued assessment have found several within the geographic area occupied by existence of a threatened or endangered discontinuous clumps of Lilaeopsis a species, at the time it is listed in species, or that are likely to destroy or within the upper San Pedro River where accordance with the Act, on which are adversely modify critical habitat. habitat was present in 1996 prior to found those physical or biological ‘‘Jeopardize the continued existence’’ is recent flooding (Mark Fredlake, BLM, features (I) essential to the conservation defined as an appreciable reduction in pers. comm. 1996). of the species and (II) that may require the likelihood of survival and recovery The four Lilaeopsis populations in the special management consideration or of a listed species. ‘‘Destruction or Santa Cruz watershed probably protection and; (ii) specific areas adverse modification’’ of critical habitat represent very small remnants of larger outside the geographic area occupied by occurs when a Federal action populations that may have occurred in a species at the time it is listed, upon significantly reduces the value of the extensive riparian and aquatic determination that such areas are critical habitat for the survival and habitat formerly existing along the river. essential for the conservation of the recovery of the listed species for which Before 1890, the spatially intermittent, species. ‘‘Conservation’’ means the use critical habitat was designated. Thus, perennial flows on the middle Santa of all methods and procedures that are the definitions of ‘‘jeopardy’’ to the Cruz River most likely provided a necessary to bring an endangered species and ‘‘adverse modification’’ of considerable amount of habitat for species or a threatened species to the critical habitat are similar. Lilaeopsis and other aquatic plants. The point at which listing under Act is no Designating critical habitat does not, middle section of the Santa Cruz River longer necessary. in itself, lead to recovery of a listed mainstem is about a 130-kilometer (km) Section 4(b)(2) of the Act requires us species. Designation does not create a (80-mile (mi)) reach that flowed to base critical habitat proposals upon management plan, establish numerical perennially from the Tubac area south the best scientific and commercial data population goals, prescribe specific to the United States/Mexico border and available, taking into consideration the management actions (inside or outside intermittently from Tubac north to the economic impact, and any other of critical habitat), or directly affect Tucson area (Davis 1986). relevant impact, of specifying any areas not designated as critical habitat. Davis, Jr. (1982) quotes from the July particular area as critical habitat. We Specific management recommendations 1855, descriptive journal entry of Julius may exclude areas from critical habitat for critical habitat are most Froebel while camped on the Santa Cruz designation when the benefits of appropriately addressed in recovery River near Tucson: ‘‘ * * * rapid brook, exclusion outweigh the benefits of plans and management plans, and clear as crystal, and full of aquatic including the areas within critical through section 7 consultations. plants, fish, and tortoises of various habitat, provided the exclusion will not Critical habitat identifies specific kinds, flowed through a small meadow result in the extinction of the species areas, both occupied and unoccupied, covered with shrubs. * * *. ’’ This (section 4(b)(2) of the Act). that are essential to the conservation of habitat and species assemblage no Designation of critical habitat can a listed species and that may require longer occurs in the Tucson area. In the help focus conservation activities for a special management considerations or upper watershed of the middle Santa listed species by identifying areas, both protection. Areas that do not currently Cruz River, the species is now occupied and unoccupied, that contain contain all of the primary constituent represented only by a single population or could develop the essential habitat elements but that could develop them in in two short reaches of Sonoita Creek. features (primary constituent elements), the future may be essential to the A population at Monkey Spring in the described below, and that are essential conservation of the species and may be upper watershed of the middle Santa for the conservation of a listed species. designated as critical habitat. Cruz River has been extirpated, Designation of critical habitat alerts the Section 3(5)(C) of the Act generally although suitable habitat exists (Warren public as well as land-managing requires that not all areas potentially at el. 1991). agencies to the importance of these occupied by a species be designated as Lilaeopsis remains in small areas areas. critical habitat. Therefore, not all areas (generally less than 1 sq-m (10.8 sq-ft)) Critical habitat also identifies areas containing the primary constituent in Black Draw, Cochise County, that may require special management elements are necessarily essential to the 71842 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules conservation of the species. Areas that watershed where the plants are found DWR) to 200 m south of Hereford, San contain one or more of the primary on the San Bernardino National Wildlife Pedro Riparian National Conservation constituent elements, but that are not Refuge. That population is secure under Area. included within critical habitat current management and, therefore, Although the majority of the land boundaries, may still be important to a does not require special management being proposed for critical habitat species’ conservation and may be considerations or protection. designation is under Federal administration and management, some considered under other parts of the Act Proposed Critical Habitat Designation or other conservation laws and riparian systems on private land are regulations. The proposed critical habitat areas being proposed. The Sonoita Creek described below, combined with segment and the San Rafael Valley Primary Constituent Elements protected areas either known or segment within the Santa Cruz River In accordance with section 3(5)(A)(i) suspected to contain some of the drainage are privately owned. The sites of the Act and regulations at 50 CFR primary constituent elements but not in the Huachuca Mountains (Scotia, 424.12, in determining which areas to proposed as critical habitat, constitute Sunnyside, Bear, Joaquin and a tributary propose as critical habitat, we consider our best assessment at this time of the of Lone Mountain, canyons) are those physical and biological features areas needed for the species’ managed by the Coronado National (primary constituent elements) that are conservation. However, the Arizona Forest. The San Pedro Riparian National essential to the conservation of the Plant Recovery Team will be providing Conservation Area is managed by the species and that may require special guidance on the recovery planning for BLM. The Garden Canyon segment is management considerations or this species and may provide additional managed by the Fort Huachuca Military protection. These include, but are not guidance regarding the significance of Reservation. limited to, the following: areas proposed for critical habitat as We are not proposing critical habitat • Space for individual and well as additional areas not yet for the four populations occurring in population growth, and for normal proposed. Upon the team’s completion Mexico because areas outside the behavior; of recovery planning guidance, we will United States are not considered for • Food, water, air, light, minerals or evaluate the recommendations and critical habitat designation (50 CFR other nutritional or physiological reexamine if and where critical habitat 424.12(h)). Also, a population occurring requirements; is appropriate. on Turkey Creek, Canelo Hills is small • Cover or shelter; Critical habitat being proposed for and the habitat is probably not capable • Sites for breeding, reproduction, or Lilaeopsis includes areas that currently of supporting a large population. rearing of offspring, germination, or sustain the species and areas that do not Similarly, the spring sites of Sawmill seed dispersal; and currently sustain the species but offer Spring, Sycamore Spring, Mud Spring • Habitats that are protected from recovery habitat. Protection of this and Freeman Springs also are too small disturbance or are representative of the proposed critical habitat would be to support large stable populations. We historic geographical and ecological essential for the conservation of the believe these isolated sites are not distributions of a species. species. The species is already essential to the conservation of the The primary constituent elements of extirpated from a significant portion of species and, therefore, are not including critical habitat for Lilaeopsis include, its historical range. Eight disjunct areas them in proposed critical habitat. but are not limited to, the habitat are being proposed as critical habitat; all Available Conservation Measures components that provide: proposed areas are in Santa Cruz and (1) Sufficient perennial base flows to Cochise counties, Arizona, and include Conservation measures provided to provide a permanently wetted substrate stream courses and adjacent areas out to species listed as endangered or for growth and reproduction of the beginning of upland vegetation. threatened under the Act include Lilaeopsis; The following general areas are recognition, recovery actions, (2) A stream channel that is stable and proposed as critical habitat (see legal requirements for Federal protection, and subject to periodic flooding that descriptions for exact critical habitat prohibitions against certain practices. provides for rejuvenation of the riparian boundaries): approximately 2.0 km (1.25 Recognition through listing encourages plant community and produces open mi) of Sonoita Creek southwest of and results in conservation actions by microsites for Lilaeopsis expansion; Sonoita; approximately 4.4 km (2.7 mi) Federal, State, and private agencies, (3) A riparian plant community that is of the Santa Cruz River on both sides of groups, and individuals. The Act stable over time and in which nonnative Forest Road 61, plus approximately 3 provides for possible land acquisition species do not exist or are at a density km (1.9 mi) of an unnamed tributary to and cooperation with the States and that has little or no adverse effect on the east of the river; approximately 5.4 requires that recovery actions be carried resources available for Lilaeopsis growth km (3.4 mi) of Scotia Canyon upstream out for all listed species. The protection and reproduction; and from near Forest Road 48; required of Federal agencies and the (4) Refugial sites in each watershed approximately 1.1 km (0.7 mi) of prohibitions against certain activities and in each stream reach, including but Sunnyside Canyon near Forest Road 117 involving listed species are discussed, not limited to springs or backwaters of in the Huachuca Mountains; in part, below. mainstem rivers, that allow each approximately 6.1 km (3.8 mi) of Garden Section 7(a) of the Act requires population to survive catastrophic Canyon near its confluence with Federal agencies to evaluate their floods and recolonize larger areas. Sawmill Canyon; approximately 3.5 km actions with respect to any species that We selected critical habitat areas to (2.2 mi) at Lone Mountain Canyon, plus is proposed or listed as endangered or provide for the conservation of approximately 1.7 km (1.0 mi) of an threatened and with respect to its Lilaeopsis throughout the remaining unnamed tributary and 1.8 km (1.1 mi) critical habitat, if any is designated or portion of its geographic range in the of Bear Creek; an approximate 0.7-km proposed. Regulations implementing United States. At least one segment of (0.4-mi) reach of Joaquin Canyon; and this interagency cooperation provision critical habitat is proposed in each approximately 54.2 km (33.7 mi) of the of the Act are codified at 50 CFR part watershed containing the species, with San Pedro River from the perennial 402. Section 7(a)(4) requires Federal the exception of the Rio Yaqui flows reach north of Fairbank (1991 agencies to confer with us on any action Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules 71843 that is likely to jeopardize the continued Activities that may destroy or adversely Supervisor, Arizona Ecological Services existence of a proposed species or result modify critical habitat include those Field Office (see ADDRESSES section). in destruction or adverse modification that alter the primary constituent Requests for copies of the regulations on of proposed critical habitat. If a species elements to the extent that the value of listed wildlife and inquiries about is listed or critical habitat is designated critical habitat for both the survival and prohibitions and permits may be subsequently, section 7(a)(2) requires recovery of Lilaeopsis is appreciably addressed to the U.S. Fish and Wildlife Federal agencies to ensure that activities reduced. We note that such activities Service, Branch of Endangered Species/ they authorize, fund, or carry out are not may also jeopardize the continued Permits, P.O. Box 1306, Albuquerque, likely to jeopardize the continued existence of the species. Such activities New Mexico 87103 (telephone (505) existence of such a species or to destroy may include but are not limited to: 248–6920, facsimile (505) 248–6922). or adversely modify its critical habitat. (1) Activities such as damming, water If a Federal action may affect a listed diversion, channelization, excess Economic Analysis species or its critical habitat, the groundwater pumping, or other actions Section 4(b)(2) of the Act requires us responsible Federal agency must enter that appreciably decrease base flow and to designate critical habitat on the basis into consultation with us. appreciably reduce the wetted surface of the best scientific and commercial Section 7(a)(4) of the Act and area of perennial rivers or springs; information available and to consider regulations at 50 CFR 402.10 require (2) Activities that alter watershed the economic and other relevant Federal agencies to confer with us on characteristics in ways that would impacts of designating a particular area any action that is likely to result in appreciably reduce groundwater as critical habitat. We may exclude areas destruction or adverse modification of recharge or alter natural flooding from critical habitat upon a proposed critical habitat. Regulations at regimes needed to maintain natural, determination that the benefits of such 50 CFR 402.16 require Federal agencies dynamic riparian communities. Such exclusions outweigh the benefits of to reinitiate consultation on previously activities adverse to Lilaeopsis could specifying such areas as part of critical reviewed actions in instances where include, but are not limited to, habitat. We cannot exclude such areas critical habitat is subsequently vegetation manipulation such as from critical habitat if such exclusion designated. Consequently, some Federal chaining or harvesting timber; would result in the extinction of the agencies may request conference with maintaining an unnatural fire regime species concerned. We will conduct an us on actions for which formal either through fire suppression or too economic analysis for this proposal consultation has been completed. frequent or poorly-timed prescribed prior to a final determination. Conference reports provide conservation fires; mining; military maneuvers recommendations to assist the agency in including bombing and tank operations; Public Comments Solicited eliminating conflicts that may be caused residential and commercial It is our intent that any final action by the proposed action. The development, including road building; resulting from this proposal will be as conservation recommendations in a and livestock overgrazing; accurate and as effective as possible. conference report are advisory. (3) Activities that appreciably degrade Therefore, we solicit comments or We may issue a formal conference or destroy native riparian communities, suggestions from the public, other report if requested by a Federal agency. including but not limited to livestock concerned governmental agencies, the Formal conference reports on proposed overgrazing, clearing, cutting of live scientific community, industry, or any critical habitat contain a biological trees, introducing or encouraging the other interested party concerning this opinion that is prepared according to 50 spread of nonnative species, and heavy proposed rule. We particularly seek CFR 402.14, as if critical habitat were recreational use; and comments concerning: designated. We may adopt the formal (4) Activities that appreciably alter (1) The reasons why any habitat conference report as the biological stream channel morphology such as should or should not be determined to opinion when the critical habitat is sand and gravel mining, road be critical habitat as provided by section designated, if no significant new construction, channelization, 4 of the Act, including whether the information or changes in the action impoundment, overgrazing by livestock, benefit of designation will outweigh any alter the content of the opinion (see 50 watershed disturbances, off-road vehicle threats to the species due to designation; CFR 402.10(d)). use, heavy or poorly planned (2) Specific information on the Activities on Federal lands that may recreational use, and other uses. amount and distribution of Lilaeopsis affect Lilaeopsis or its critical habitat Designation of critical habitat could habitat, and what habitat is essential to will require section 7 consultation. affect the following agencies and/or the conservation of the species and why; Activities on private or State lands actions including, but not limited to, (3) Land use designations and current requiring a permit from a Federal managing recreation, road construction, or planned activities in the subject areas agency, such as a permit from the U.S. livestock grazing, granting rights-of-way, and their possible impacts on proposed Army Corps of Engineers under section timber harvesting, and other actions critical habitat; 404 of the Clean Water Act, would also funded, authorized, or carried out by the (4) Any foreseeable economic or other be subject to the section 7 consultation Forest Service or BLM. Permitting of impacts resulting from the proposed process. Federal actions not affecting some military activities on Fort designation of critical habitat, in the species, as well as actions on non- Huachuca may be affected by particular, any impacts on small entities Federal lands that are not federally designation. Development on private or or families; funded or permitted would not require State lands requiring permits from (5) Economic and other values section 7 consultation. Federal agencies, such as 404 permits associated with designating critical Section 4(b)(8) of the Act requires us from the U.S. Army Corps of Engineers, habitat for Lilaeopsis such as those to describe in any proposed or final would also be subject to the section 7 derived from non-consumptive uses regulation that designates critical consultation process. (e.g., hiking, camping, bird-watching, habitat those activities involving a If you have questions regarding enhanced watershed protection, Federal action that may destroy or whether specific activities will likely improved air quality, increased soil adversely modify such habitat or that constitute adverse modification of retention, ‘‘existence values,’’ and may be affected by such designation. critical habitat, contact the Field reductions in administrative costs); and 71844 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules

(6) The methodology we might use, Required Determinations and will not alter the value of private under section 4(b)(2) of the Act, in property. Critical habitat designation is 1. Regulatory Planning and Review determining if the benefits of excluding only applicable to Federal lands and to an area from critical habitat outweigh In accordance with Executive Order private lands if a Federal nexus exists. the benefits of specifying the area as 12866, this action was submitted for We do not designate private lands as critical habitat. review by the Office of Management and critical habitat unless the areas are In accordance with our policy Budget. Following issuance of this essential to the conservation of a published on July 1, 1994 (59 FR proposed rule, we will prepare an species. 34270), we will solicit the expert economic analysis to determine the opinions of three appropriate and economic consequences of designating 6. Federalism independent specialists regarding this the specific areas identified as critical proposed rule. The purpose of such habitat. If our economic analysis reveals This proposed rule, if made final, will review is to ensure listing decisions are that the economic impacts of not affect the structure or role of States, based on scientifically sound data, designating any area as critical habitat and will not have direct, substantial, or assumptions, and analyses. We will outweigh the benefits of designation, we significant effects on States. As send to these peer reviewers copies of will exclude those areas from previously stated, critical habitat is only this proposed rule immediately consideration, unless such exclusion applicable to Federal lands and to non- following publication in the Federal will result in the extinction of the Federal lands when a Federal nexus Register. We will invite peer reviewers species. In the economic analysis, we exists. If our economic analysis reveals to comment, during the public comment will address any possible that the economic impacts of period, on the specific assumptions and inconsistencies with other agencies’ designating any area of State concern as conclusions regarding the proposed actions and any effects on entitlements, critical habitat outweigh the benefits of designation of critical habitat. grants, user fees, loan programs, or the designation, we will exclude those areas We will consider all comments and rights and obligations of their recipients. from consideration, unless such information received during the 60-day This rule will not raise novel legal or exclusion will result in the extinction of comment period on this proposed rule policy issues. the species. during preparation of a final rulemaking. Accordingly, the final 2. Regulatory Flexibility Act (5 U.S.C. 7. Civil Justice Reform determination may differ from this 601 et seq.) proposal. In the economic analysis, we will In accordance with Executive Order determine whether designation of 12988, the Department of the Interior’s Public Hearings critical habitat will have a significant Office of the Solicitor has determined The Act provides for one or more effect on a substantial number of small that this rule does not unduly burden public hearings on this proposal, if entities. the judicial system and does meet the requested. We intend to schedule one requirements of sections 3(a) and 3(b)(2) 3. Small Business Regulatory public hearing regarding this proposal. of the Order. The Office of the Solicitor Enforcement Fairness Act (5 U.S.C. We will announce the date, time and also will review the final determination 804(2)). place of that hearing in the Federal for this proposal. We will make every Register and local newspapers at least In the economic analysis, we will effort to ensure that the final 15 days prior to the hearing. determine whether designation of determination contains no drafting Executive Order 12866 critical habitat will cause (a) any effect errors, provides clear standards, on the economy of $100 million or Executive order 12866 requires each simplifies procedures, reduces burden, more, (b) any increases in costs or prices and is clearly written such that agency to write regulations/notices that for consumers, individual industries, litigation risk is minimized. are easy to understand. We invite your Federal, State, or local government comments on how to make this notice agencies, or geographic regions in the 8. Paperwork Reduction Act of 1995 (44 easier to understand including answers economic analysis, or (c) any significant U.S.C. 3501 et seq.) to questions such as the following: (1) adverse effects on competition, Are the requirements in the notice employment, investment, productivity, This rule does not contain any clearly stated? (2) Does the notice innovation, or the ability of U.S.-based information collection requirements for contain technical language or jargon that enterprises to compete with foreign- which Office of Management and interferes with the clarity? (3) Does the based enterprises. Budget approval under the Paperwork format of the notice (grouping and order Reduction Act is required. of sections, use of headings, 4. Unfunded Mandates Reform Act (2 paragraphing, etc.) aid or reduce its U.S.C. 1501 et seq.) 9. National Environmental Policy Act clarity? (4) Is the description of the In the economic analysis, we will We have analyzed this rule in notice in the ‘‘Supplementary address any effects to small accordance with the criteria of the Information’’ section of the preamble governments resulting from designation National Environmental Policy Act. We helpful in understanding the notice? of critical habitat and any Federal What else could we do to make the mandate of $100 million or greater in have determined that this rule does not notice easier to understand? any year. constitute a major Federal action Send a copy of any comments that significantly affecting the quality of the concern how we could make this notice 5. Takings human environment. This proposed easier to understand to: Office of In accordance with Executive Order designation of critical habitat, and the Regulatory Affairs, Department of the 12630, this rule does not have resulting final determination, will not Interior, Room 7229, 1849 C Street, NW, significant takings implications, and a require any actions that will affect the Washington, DC 20240. You may e-mail takings implication assessment is not environment. No construction or your comments to this address: required. This proposed rule, if made destruction in any form is required [email protected]. final, will not ‘‘take’’ private property under the provisions of critical habitat. Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules 71845

10. Government-to-Government limiting the designation to other lands.’’ Proposed Regulation Promulgation Relationship With Tribes The proposed designation of critical For the reasons given in the preamble, In accordance with the President’s habitat for the water umbel does not we propose to amend 50 CFR part 17 as memorandum of April 29, 1994, contain any Tribal lands or lands that set forth below: ‘‘Government-to-Government Relations we have identified as impacting Tribal trust resources. With Native American Tribal PART 17Ð[AMENDED] Governments’’ (59 FR 22951) and 512 References Cited DM 2: We understand that we must A complete list of all references cited 1. The authority citation for part 17 relate to federally recognized Tribes on continues to read as follows: a Government-to-Government basis. in this proposed rule is available upon Secretarial Order 3206 American Indian request from the Arizona Ecological Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Tribal Rights, Federal-Tribal Trust Services Field Office (see ADDRESSES 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Responsibilities and the Endangered section). 625, 100 Stat. 3500; unless otherwise noted. Species Act states that ‘‘Critical habitat Authors. The primary authors of this 2. In § 17.12(h) revise the entry for shall not be designated in such areas [an notice are Jim Rorabaugh and Angela ‘‘Lilaeopsis schaffneriana ssp. recurva’’ area that may impact Tribal trust Brooks (see ADDRESSES section). resources] unless it is determined under ‘‘FLOWERING PLANTS’’ to read List of Subjects in 50 CFR Part 17 essential to conserve a listed species. In as follows: designating critical habitat, the Service Endangered and threatened species, § 17.12 Endangered and threatened plants. shall evaluate and document the extent Exports, Imports, Reporting and to which the conservation needs of a recordkeeping requirements, * * * * * listed species can be achieved by Transportation. (h) * * *

Species Historic range Family Status When list- Critical Special Scientific name Common name ed habitat rules

FLOWERING PLANTS

******* Lilaeopsis Huachuca water U.S.A. (AZ), Mexico ...... E 600 17.96(a) NA schaffneriana ssp. umbel. recurva.

*******

3. In § 17.96 add critical habitat for stream reach, including but not limited to Canyon beginning in T. 23 S., R. 19 E., sec. Lilaeopsis schaffneriana ssp. recurva, springs or backwaters of mainstem rivers, 3 at approx. 31° 27′ 19′′ N latitude and 110° Huachuca water umbel, as the first entry that allow each population to survive 23′ 44′′ W longitude downstream under paragraph (a) to read as follows: catastrophic events and recolonize larger (southwesterly) through secs. 10, 9, 16 and to areas. approx. 31° 25′ 22′′ N latitude and 110° 25′ § 17.96 Critical habitatÐplants. Map Unit 1. Santa Cruz County, Arizona. 22′′ W longitude in sec. 21 covering approx. ′ (a) Flowering plants. From USGS 7.5 quadrangle map Sonoita, 5.4 km (3.4 mi.). Arizona. Gila and Salt Principal Meridian, Map Unit 4. Cochise County, Arizona. Family Apiaceae: Lilaeopsis Arizona: T. 20 S., R. 16 E., beginning at a From USGS 7.5′ quadrangle map Huachuca schaffneriana ssp. recurva (Huachuca point on Sonoita Creek in sec. 34 at approx. Peak, Arizona. Gila and Salt Principal water umbel) 31° 39′ 19′′ N latitude and 110° 41′ 52′′ W Meridian, Arizona: That portion of 1. Critical habitat units are depicted for longitude proceeding downstream (westerly) ° ′ ′′ Sunnyside Canyon beginning in T. 23 S., R. Santa Cruz and Cochise counties, Arizona, on to a point in sec. 33 at approx. 31 39 07 ° ′ ′′ 19 E., on the east boundary of sec. 10 the maps below. N latitude and 110 42 46 W longitude downstream (southwesterly) to the south 2. Critical habitat includes the stream covering approx. 2 km (1.25 mi.). courses identified on the maps below and Map Unit 2. Santa Cruz County, Arizona. boundary of sec. 10 covering approx. 1.1 km adjacent areas out to the beginning of upland From USGS 7.5′ quadrangle map Lochiel, (0.7 mi.). vegetation. Arizona. That portion of the Santa Cruz River Map Unit 5. Cochise County, Arizona. 3. Within these areas, the primary beginning in the San Rafael De La Zanja From USGS 7.5′ quadrangle map Miller Peak, constituent elements include, but are not Grant approx. at 31° 22′ 30′′ N latitude and Arizona. That portion of Garden Canyon in limited to, the habitat components which 110° 35′ 45′′ W longitude downstream the Fort Huachuca Military Reservation provide—(1) Sufficient perennial base flows (southerly) to Gila and Salt Principal beginning at approx. 31° 27′ 13′′ N latitude to provide a permanently wetted substrate for Meridian, Arizona, T. 24 S., R. 17 E., through and 110° 22′ 33′′ W longitude downstream growth and reproduction of Lilaeopsis secs. 11 and 14, to the south boundary of sec. (northwesterly) to approx. 31° 28′ 45′′ N schaffneriana ssp. recurva; (2) A stream 14 covering approx. 4.4 km (2.7 mi.). Also, latitude and 110° 20′ 11′′ W longitude a tributary that begins in T. 24 S., R. 17 E., channel that is stable and subject to periodic covering approx. 6.1 km (3.8 mi.). flooding that provides for rejuvenation of the sec. 13 at approx. 31° 21′ 10′′ N latitude and ° ′ ′′ Map Unit 6. Cochise County, Arizona. riparian plant community and produces open 110 34 16 W longitude downstream ′ microsites for Lilaeopsis expansion; (3) A (southwesterly) to its confluence with the From USGS 7.5 quadrangle map Miller Peak, riparian plant community that is stable over Santa Cruz River covering approx. 3 km (1.9 Arizona. Gila and Salt Principal Meridian, time and in which nonnative species do not mi.). Arizona: That portion of Lone Mountain exist or are at a density that has little or no Map Unit 3. Cochise County, Arizona. Canyon beginning at a point in T. 23 S., R. adverse effect on resources available for From USGS 7.5′ quadrangle map Huachuca 19 E., sec. 25 at approx. 31° 24′ 13′′ N latitude Lilaeopsis growth and reproduction; and (4) Peak, Arizona. Gila and Salt Principal and 110° 21′ 54′′ W longitude downstream Refugial sites in each watershed and in each Meridian, Arizona: That portion of Scotia south through sec. 36 to a point in T. 24 S., 71846 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules

R. 19 E., sec. 1 at approx. 31° 22′ 30′′ N Map Unit 7. Cochise County, Arizona. Ariz. Gila and Salt Principal Meridian, latitude and 110°21′ 47′′ W longitude From USGS 7.5′ quadrangle maps Arizona: That portion of the San Pedro River covering approx. 3.5 km (2.2 mi.). Also, an Montezuma Pass, Arizona, Campini Mesa, beginning in the San Rafael Del Valle Grant unnamed tributary beginning at a point in T. Arizona. Gila and Salt Principal Meridian, at a point approx. 200 meters upstream 23 S., R. 19 E., sec. 25 at approx. 31° 24′ 08′′ Arizona: that portion of Joaquin Canyon (south) of the Hereford Road bridge at N latitude and 110° 21′ 32′′ W longitude beginning at a point in T. 24 S., R. 19 E., sec. approx. 31°26′ 16′′ N latitude and 110° 06′ downstream (southwesterly) to its confluence 14 at approx. 31° 20′ 53′′ N latitude and 110° 24′′ W longitude continuing downstream ′ ′′ with Lone Mountain Canyon covering 22 40 W longitude downstream (northerly) through the San Rafael Del Valle approx. 1.7 km (1.0 mi.). Also, that portion (southwesterly) to a point in sec. 13 at Grant; T. 21 S., R. 22 E.; T. 21 S., R 21 S.; ° ′ ′′ ° ′ of Bear Creek beginning at a point in T. 23 approx. 31 20 37 N latitude and 110 22 through the San Juan De Las Boquilla y ° ′ ′′ ′′ S., R. 20 E., sec. 30 at approx. 31 23 44 N 27 W longitude covering approx. 0.7 km (0.4 Nogales Grant to a point at approx. 31° 48′ ° ′ ′′ latitude and 110 21 14 W longitude mi.). 28′′ N latitude and 110° 12′ 32′′ W longitude downstream (southerly) through sec. 31, and Map Unit 8. Cochise County, Arizona. covering approx. 54.2 km (33.7 mi.). T. 23 S., R. 19 E., sec. 36 to its confluence From USGS 7.5′ quadrangle maps: Hereford, Note: Maps follow: with Lone Mountain Canyon covering Ariz.; Tombstone SE, Ariz.; Nicksville, Ariz.; approx. 1.8 km (1.1 mi.). Lewis Springs, Ariz.; Fairbank, Ariz.; Land, BILLING CODE 4310±55±P Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules 71847 71848 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules 71849 71850 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules 71851 71852 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules 71853 71854 Federal Register / Vol. 63, No. 250 / Wednesday, December 30, 1998 / Proposed Rules

* * * * * Dated: December 22, 1998. Donald Barry, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 98–34413 Filed 12–23–98; 3:59 pm] BILLING CODE 4310±55±C