Designation of Critical Habitat for Jaguar; Final Rule

Vol. 79 Wednesday, No. 43 March 5, 2014

Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Jaguar; Final Rule

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DEPARTMENT OF THE INTERIOR Wildlife Office (see FOR FURTHER • Unit 2, Atascosa Unit, INFORMATION CONTACT). Any additional approximately 58,624 ha (144,865 ac) in Fish and Wildlife Service tools or supporting information that we the Tumacacori, Atascosa, and Pajarito developed for this critical habitat Mountains, in Pima and Santa Cruz 50 CFR Part 17 designation will also be available at the Counties, Arizona. • Unit 3, Patagonia Unit, [Docket No. FWS–R2–ES–2012–0042; Fish and Wildlife Service Web site and 4500030114] Field Office set out above, and may also approximately 142,248 ha (351,501 ac) be included at http:// in the Santa Rita, Patagonia, Empire, RIN 1018–AX13 www.regulations.gov. and Huachuca Mountains, and Grosvenor and Canelo Hills, in Pima, FOR FURTHER INFORMATION CONTACT: Endangered and Threatened Wildlife Santa Cruz, and Cochise Counties, Steve Spangle, Field Supervisor, U.S. and Plants; Designation of Critical Arizona. Habitat for Jaguar Fish and Wildlife Service, Arizona • Unit 4, Whetstone Unit, Ecological Services Fish and Wildlife approximately 38,149 ha (94,269 ac) in AGENCY: Fish and Wildlife Service, Office, 2321 West Royal Palm Drive, Interior. the Whetstone Mountains, including Suite 103, Phoenix, AZ 85021; connections to the Empire, Santa Rita ACTION: Final rule. telephone 602–242–0210. If you use a and Huachuca Mountains, in Pima, telecommunications device for the deaf SUMMARY: We, the U.S. Fish and Santa Cruz, and Cochise Counties, (TDD), call the Federal Information Wildlife Service (Service), designate Arizona. Relay Service (FIRS) at 800–877–8339. • critical habitat for the jaguar (Panthera Unit 5, Peloncillo Unit, onca) under the Endangered Species SUPPLEMENTARY INFORMATION: approximately 41,571 ha (102,724 ac) in Act, as amended. In total, approximately Executive Summary the Peloncillo Mountains, in Cochise 309,263 hectares (764,207 acres) in County, Arizona, and Hidalgo County, Why we need to publish a rule. This Pima, Santa Cruz, and Cochise Counties, New Mexico. is a final rule to designate critical • Arizona, and Hidalgo County, New Unit 6, San Luis Unit, habitat for the jaguar. Under the Mexico, fall within the boundaries of approximately 3,122 ha (7,714 ac) in the Endangered Species Act of 1973, as the critical habitat designation. This San Luis Mountains, Hidalgo County, amended (16 U.S.C. 1531 et seq.) (Act), designation fulfills our obligations New Mexico. any species that is determined to be an This rule consists of: A final rule for under a settlement agreement. The effect endangered or threatened species designation of critical habitat for the of this regulation is to designate critical requires critical habitat to be designated, jaguar. The jaguar is already listed habitat for jaguar under the Endangered to the maximum extent prudent and under the Act. This rule designates Species Act. determinable. Designations and critical habitat essential for the DATES: This rule is effective on April 4, revisions of critical habitat can only be conservation of the species. 2014. completed by issuing a rule. We have prepared an economic ADDRESSES: This final rule is available We, the U.S. Fish and Wildlife analysis and environmental assessment on the Internet at http://www.fws.gov/ Service (Service), listed the jaguar as an of the designation of critical habitat. In southwest/es/arizona/Jaguar.htm, and at endangered species on March 30, 1972 order to consider economic impacts, we http://www.regulations.gov. Comments (37 FR 6476), in accordance with the have prepared an analysis of the and materials received, as well as some Endangered Species Conservation Act of economic impacts of the critical habitat supporting documentation we used in 1969, a precursor to the Endangered designation and related factors. We have preparing this final rule, including the Species Act of 1973, as amended (Act; also completed an environmental final economic analysis and final 16 U.S.C. 1531 et seq.). On August 20, assessment to evaluate whether there environmental assessment, are available 2012, we published in the Federal would be any significant environmental for public inspection at http:// Register a proposed critical habitat impacts as a result of the critical habitat www.regulations.gov. Some supporting designation for jaguar (77 FR 50213). designation. We announced the documentation is also available at Section 4(b)(2) of the Act states that the availability of both the draft economic http://www.fws.gov/southwest/es/ Secretary shall designate critical habitat analysis and draft environmental arizona/Jaguar.htm. All of the on the basis of the best available assessment in the Federal Register on comments, materials, and scientific data after taking into July 1, 2013 (78 FR 39237), allowing the documentation that we considered in consideration the economic impact, public to provide comments on our this rulemaking are available by national security impact, and any other analyses. We have incorporated the appointment, during normal business relevant impact of specifying any comments and have completed the final hours at: U.S. Fish and Wildlife Service, particular area as critical habitat. economic analysis and final Arizona Ecological Services Fish and The critical habitat areas we are environmental assessment with this Wildlife Office, 2321 West Royal Palm designating in this rule constitute our final determination. Drive, Suite 103, Phoenix, AZ 85021; current best assessment of the areas that Peer review and public comment. We telephone 602–242–0210. If you use a meet the definition of critical habitat for sought comments from seven telecommunications device for the deaf the jaguar. Here we are designating independent specialists to ensure that (TDD), call the Federal Information approximately 309,263 hectares (ha) our designation is based on Relay Service (FIRS) at 800–877–8339. (764,207 acres (ac)) in Pima, Santa Cruz, scientifically sound data and analyses. The coordinates or plot points or both and Cochise Counties, Arizona, and We obtained opinions from six from which the maps are generated are Hidalgo County, New Mexico, in six knowledgeable individuals with included in the administrative record critical habitat units. scientific expertise to review our for this critical habitat designation and • Unit 1, Baboquivari Unit, technical assumptions, analysis, and are available at http:// approximately 25,549 ha (63,134 ac) whether or not we had used the best www.regulations.gov at Docket No. Baboquivari, Saucito, Quinlan, and available information. Most of the peer FWS–R2–ES–2012–0042, and at the Coyote Mountains in Pima County, reviewers (five of the six) generally Arizona Ecological Services Fish and Arizona. concurred with our methods and

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conclusions and provided additional determinations section of the proposal. most robust jaguar populations have information, clarifications, and Additionally, we announced the been associated with tropical climates suggestions to improve this final rule. reopening of the comment period. The in areas of low elevation with dense One peer reviewer was against critical comment period opened July 1, 2013, cover and year-round water sources. habitat designation for the jaguar, and closed August 9, 2013. Brown and Lo´pez Gonza´lez (2001, p. 43) stating that there is no habitat in the On August 15, 2013, the U.S. District further state that, in South and Central United States at this time that is critical Court for the District of Columbia America, jaguars usually avoid open to the survival of the jaguar as a species. granted the Service’s motion to extend country like grasslands or desertscrub, Information we received from peer the deadline for publishing a final instead preferring the closed vegetative review is incorporated in this final critical habitat designation for the jaguar structure of nearly every tropical forest revised designation. We also considered to December 16, 2013. This rescheduled type. all comments and information received final rulemaking date allowed us to However, jaguars have been from the public during the comment reopen the public comment period documented in arid areas of period. again, for which we had received northwestern Mexico and the multiple requests. On August 29, 2013 southwestern United States, including Previous Federal Actions (78 FR 53390), we announced the thornscrub, desertscrub, lowland desert, On August 20, 2012, we published in reopening of the comment period for an mesquite grassland, Madrean oak the Federal Register a proposed rule to additional 15 days. The comment period woodland, and pine-oak woodland designate critical habitat for the jaguar opened August 29, 2013, and closed communities (Brown and Lo´pez (77 FR 50214). In that proposed rule, we September 13, 2013. Gonza´lez 2001, pp. 43–50; Boydston proposed to designate approximately All previous Federal actions are and Lo´pez Gonza´lez 2005, p. 54; 339,220 ha (838,232 ac) as critical described in the proposal and revised McCain and Childs 2008, p. 7; Rosas- habitat in six units located in Pima, proposal to designate critical habitat for Rosas and Bender 2012, p. 88). The Santa Cruz, and Cochise Counties, the jaguar under the Act published in more open, dry habitat of the Arizona, and Hidalgo County, New the Federal Register (77 FR 50214; southwestern United States has been Mexico. The comment period opened August 20, 2012 and 78 FR 39237; July characterized as marginal habitat for August 20, 2012, and closed October 19, 1, 2013, respectively) and the final rule jaguars in terms of water, cover, and 2012. clarifying the status of the jaguar in the prey densities (Rabinowitz 1999, p. 97). On March 12, 2013, we received a United States (62 FR 39147; July 22, However, McCain and Childs (2008, p. report from the Jaguar Recovery Team 1997). 7) documented two male jaguars (and (described later in this document) possibly a third) using an extensive area Background entitled Jaguar Habitat Modeling and including habitats of the Sonoran Database Update (Sanderson and Fisher Below we provide a general lowland desert, Sonoran desertscrub, 2013, entire) that included a revised discussion of jaguar habitat mesquite grassland, Madrean oak habitat model for the jaguar in the requirements. Additional background woodland, and pine-oak woodland in proposed Northwestern Recovery Unit. information on the jaguar, beyond what mountain ranges in southern Arizona. This report recommended defining is provided below, can be found in the Additionally, another male jaguar has habitat patches of less than 100 square proposed jaguar critical habitat been documented utilizing Madrean kilometers (km2) (38.6 square miles designation published in the Federal evergreen woodland habitat in southern (mi2)) in size as unsuitable for jaguars; Register on August 20, 2012 (77 FR Arizona from 2011 through 2013 (see therefore, we incorporated this 50214), the revisions to our proposed Table 1 in the ‘‘Class I Records’’ section, information into the physical and designation of critical habitat for the below). Therefore, while habitat in the biological feature for the jaguar, which jaguar published in the Federal Register United States can be considered formerly described areas of less than 84 on July 1, 2013 (78 FR 39237), and this marginal when compared to other areas km2 (32.4 mi2) as unsuitable. final rule clarifying the status of the throughout the species’ range, it appears Additionally, the report recommended jaguar in the United States (62 FR that a few, possibly resident jaguars are slight changes to some of the habitat 39147; July 22, 1997). able to use the more open, arid habitat features we used to describe the primary Jaguar Habitat Requirements in the found in the southwestern United constituent elements (PCEs) comprising States. jaguar critical habitat (see Summary of United States and U.S.-Mexico Changes from Proposed Rule, above). Borderlands Area Jaguar Recovery Planning in Relation to The revised physical and biological Most of the information regarding Critical Habitat feature and PCEs resulted in changes to jaguar habitat requirements comes from Information currently available for the boundaries of our original proposed Central and South America; little, if any, northern jaguars is scant; therefore, we critical habitat. is available for the northwestern-most convened a binational Jaguar Recovery On July 1, 2013 (78 FR 39237), we portion of its range, including the Team team in 2010 to synthesize announced the revisions described United States. Jaguar habitat available in information on the jaguar, focusing on a above to our proposed designation of the U.S.-Mexico borderlands area is unit comprising jaguars in the critical habitat for the jaguar, which quite different from habitat in Central northernmost portion of their range, the now included approximately 347,277 ha and South America, where jaguars show proposed Northwestern Recovery Unit. (858,137 ac) as critical habitat in six a high affinity for lowland wet The team comprises members from the units located in Pima, Santa Cruz, and communities, including swampy United States and Mexico, and is Cochise Counties, Arizona, and Hidalgo savannas or tropical rain forests toward composed of two subgroups: A technical County, New Mexico. We also and at middle latitudes. Swank and Teer subgroup and an implementation announced the availability of a draft (1989, p. 14) state that jaguars prefer a subgroup. Both subgroups have nearly economic analysis and draft warm, tropical climate, usually equal representation from the United environmental assessment of the revised associated with water, and are rarely States and Mexico. The technical proposed designation of critical habitat found in extensive arid areas. subgroup consists of feline ecologists, for jaguar and an amended required Rabinowitz (1999, p. 97) affirms that the conservation biologists, and other

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experts, who advise the Jaguar Recovery Recovery Team 2012, pp. 40, 42). For (Lesica and Allendorf 1995, entire). This Team and the Service on appropriate example, specific areas within this may be particularly important short- and long-term actions necessary secondary area that provide the physical considering the potential threats of to recover the jaguar. The and biological features essential to global climate change (see ‘‘Climate implementation subgroup consists of jaguar habitat can contribute to the Change,’’ below). The ability for jaguars members who advise the technical species’ persistence and, therefore, in the proposed Northwestern Recovery subgroup and the Service on ways to overall conservation. These areas Unit to utilize physical and biological achieve timely recovery with minimal support some individuals during habitat features in the borderlands social and economic impacts or costs. dispersal movements, provide small region is ecologically important to the Specifically, the implementation patches of habitat (perhaps in some recovery of the species; therefore, subgroup consists of landowners and cases with a few resident jaguars), and maintaining connectivity to Mexico is land and wildlife managers from provide areas for cyclic expansion and essential to the conservation of the Federal, state, tribal, and private contraction of the nearest core area and jaguar. entities. The Jaguar Recovery Team has breeding population in the Through an iterative process two co-leaders, one from the United Northwestern Recovery Unit (about 210 incorporating new information and States and one from Mexico; both are km (130 mi) south of the U.S.-Mexico expert opinion (as described in the members of the technical subgroup, border in Sonora near the towns of Jaguar Habitat Modeling and Database though they serve as co-leaders for the Huasabas, Sahuaripa (Brown and Lo´pez Update report produced by Sanderson entire Jaguar Recovery Team. Gonza´lez 2001, pp. 108–109), and and Fisher (2013, entire)), the Jaguar In April 2012, the Jaguar Recovery Nacori Chico (Rosas-Rosas and Bender Recovery Team developed and refined Team produced the Recovery Outline 2012, pp. 88–89)). the habitat requirements for jaguars in for the Jaguar. The Recovery Outline Independent peer review cited in our the proposed Northwestern Recovery serves as an interim guidance document July 22, 1997, clarifying rule (62 FR Unit. For the portion of this recovery to direct recovery efforts, including 39147, pp. 39153–39154) states that unit encompassing the United States, recovery planning, for the jaguar until a individuals dispersing into the United the habitat features providing jaguar full recovery plan is developed and States are important because they habitat include areas of at least 100 km2 approved (a draft recovery plan for the occupy habitat that serves as a buffer to (38.6 mi2) in size (the minimum area jaguar is expected to be completed in zones of regular reproduction and are necessary to support one jaguar) in spring 2014). It includes a preliminary potential colonizers of vacant range, and which can be found: (1) Tree cover from strategy for recovery of the species, and that, as such, areas supporting them are greater than 1 to 50 percent; (2) recommends high-priority actions to important to maintaining normal intermediately, moderately, or highly stabilize and recover the species. The demographics, as well as allowing for rugged terrain; (3) water within 10 km Recovery Outline delineates two possible range expansion. As described (6.2 mi); (4) an elevation of less than recovery units for the species, the in the Recovery Outline for the Jaguar 2,000 meters (m) (6,562 feet (ft)); (5) Northwestern Recovery Unit (Jaguar Recovery Team 2012, pp. 40, Sierra Madre Occidental pine-oak (encompassing the United States and 42), the Northwestern Recovery Unit is forests; and (6) a Human Influence northwestern Mexico) and the Pan essential for the conservation of the Index (HII) of less than 20 (habitat American Recovery Unit (encompassing species; therefore, consideration of the factors, habitat types, and masks as the rest of the range). The recovery units spatial and biological dynamics that described in Sanderson and Fisher are further divided into core or allow this unit to function and that 2013, pp. 33–34, 38, and 41). Therefore, secondary areas. Lands within the benefit the overall unit is prudent. we are basing our definition of jaguar United States are a part of the Providing connectivity from the United habitat in the United States on these Borderlands Secondary Area within the States to Mexico is a key element to features (see Physical or Biological proposed Northwestern Recovery Unit maintaining those processes. Features, below). (Sanderson and Fisher 2013, p. 10; note Additionally, as thoroughly discussed Summary of Changes From Proposed that this map updates the map of the in the Recovery Outline for the Jaguar Rule Northwestern Recovery Unit shown on (Jaguar Recovery Team 2012, pp. 19–20) p. 58 of the Recovery Outline for the and Johnson et al. (2011, pp. 30–31), In developing the final jaguar critical Jaguar). populations at the edge of a species’ habitat designation, we reviewed public The Borderlands Secondary Area range play a role in maintaining the comments received on the proposed within the proposed Northwestern total genetic diversity of a species; in rule (77 FR 50214; August 20, 2012), the Recovery Unit for the jaguar (Jaguar some cases, these peripheral revision to the proposed rule, the draft Recovery Team 2012, p. 58; Sanderson populations persist the longest as economic analysis, and the draft and Fisher 2013, p. 10) is only a small fragmentation and habitat loss impact environmental assessment (78 FR portion of the jaguar’s range. Because the total range (Channell and Lomolino 39237; July 1, 2013 and 78 FR 53390; such a small portion occurs in the 2000, pp. 84–85). The United States and August 29, 2013). United States, researchers anticipate northwestern Mexico represent the On August 20, 2012, we published in that recovery of the entire species will northernmost extent of the jaguar’s the Federal Register a proposed rule to rely primarily on actions that occur current range, with populations designate critical habitat for the jaguar outside of the United States; activities persisting in one of only four distinct (77 FR 50214). We based the physical that may adversely or beneficially affect xeric (extremely dry) habitats that occur and biological feature and PCEs on a jaguars in the United States are less within the species’ range (Sanderson et preliminary habitat modeling report we likely to affect recovery than activities al. 2002, Appendix 1). Peripheral received from the Jaguar Recovery Team in core areas of their range (Jaguar populations such as these are an in 2011 entitled Jaguar Habitat Modeling Recovery Team 2012, p. 38). However, important genetic resource in that they and Database (Sanderson and Fisher the portion of the United States is may be beneficial to the protection of 2011, pp. 1–11), in which the habitat located within a secondary area that evolutionary processes and the features preferred by the jaguar in the provides a recovery function benefitting environmental systems that are likely to proposed Northwestern Recovery Unit the overall recovery unit (Jaguar generate future evolutionary diversity were described based on the best

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available science and expert opinion of of the proposed Northwestern Recovery in the changes noted in our July 1, 2013 the Jaguar Recovery Team at that time. Unit (formerly PCE 6, now PCE 7). (78 FR 39237), proposed rule. In our revised proposed rule we When combined and analyzed with a In this final rule we are making the modified the critical habitat boundaries geographic information system (GIS), following changes. We are excluding based on new information received. these changes added some new areas and exempting areas from the final Since August 20, 2012, the Jaguar containing all of the PCEs, while other designation pursuant to sections 4(b)(2) Recovery Team continued to revise and areas no longer contained all of the and 4(a)(3) of the Act, respectively. We refine the habitat features preferred by PCEs and, therefore, were removed (see are excluding lands owned and the jaguar through an iterative process Primary Constituent Elements for managed by the Tohono O’odham based on additional information and Jaguar, below, for further information). Nation, and we are exempting lands expert opinion, resulting in an updated An increase in area was usually due to owned and managed by Fort Huachuca. habitat modeling report entitled Jaguar the increased range in canopy cover Figure 1 displays the excluded and Habitat Modeling and Database Update (from greater than 1 to 50 percent, (Sanderson and Fisher 2013, entire) that instead of 3 to 40 percent), while a exempted areas in relation to the final we received on March 12, 2013. decrease in area was usually due to the critical habitat designation. The Changes to habitat features preferred by upper elevation limit of 2,000 m (6,562 exclusion of Tohono O’odham Nation jaguars in the proposed Northwestern ft). lands in Unit 1 resulted in the Recovery Unit included: (1) Defining In addition to the changes described appearance of five disconnected areas of habitat patches of less than 100 km2 above, multiple photos of a jaguar in the land in Subunit 1a and of two (38.6 mi2) in size as too small to support Santa Rita Mountains taken since our disconnected areas of land in Subunit a jaguar (the physical and biological August 20, 2012 (77 FR 50214), 1b. Figure 2 is a magnified view of Unit feature formerly described areas of less proposed designation provided 1 displaying the excluded areas in than 84 km2 (32.4 mi2) as too small); (2) additional information about the relation to critical habitat for Unit 1. a canopy cover from greater than 1 to 50 occupancy status of Unit 3 (Patagonia These areas that appear disconnected percent as suitable in the northern part Unit) of jaguar critical habitat, which are not in fact disjunct, as there is of the proposed Northwestern Recovery formerly contained only one jaguar continued jaguar habitat within the Unit (PCE 4 formerly included a range record in the Patagonia Mountains from excluded areas that provides continuity of 3 to 40 percent canopy cover); (3) 1965 (see Table 1 in the ‘‘Class I and connectivity among the areas that delineating areas 2,000 m (6,562 ft) and Records’’ section, below). While our appear disconnected. The exemption of higher as unsuitable (previously there understanding of the habitat features Fort Huachuca did not result in the was no PCE related to an upper- did not change drastically between 2012 appearance of any disconnected areas. elevation limit); and (4) slightly and 2013, the combination of a slightly (See the Final Critical Habitat diminishing (from up to or equal to 20 different physical and biological feature Designation section, below, for to less than 20) the level of the HII and several PCEs (as described above) additional information). tolerated by jaguars in the northern part and the recent jaguar sightings resulted BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C Critical Habitat (1) The specific areas within the geographical area occupied by the Background species, at the time it is listed in Critical habitat is defined in section 3 accordance with the Act, on which are of the Act as:

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found those physical or biological biological features (1) which are our primary source of information is features essential to the conservation of the generally the information developed (a) Essential to the conservation of the species and (2) which may require during the listing process for the species, and special management considerations or species. Additional information sources (b) Which may require special protection. For these areas, critical may include the recovery plan for the management considerations or habitat designations identify, to the species, articles in peer-reviewed protection; and extent known using the best scientific journals, conservation plans developed (2) Specific areas outside the and commercial data available, those by States and counties, scientific status geographical area occupied by the physical or biological features that are surveys and studies, biological species at the time it is listed, upon a essential to the conservation of the assessments, other unpublished determination that such areas are species (such as space, food, cover, and materials, or experts’ opinions or essential for the conservation of the protected habitat). In identifying those personal knowledge. species. physical or biological features within an Habitat is dynamic, and species may Conservation, as defined under area, we focus on the principal move from one area to another over section 3 of the Act, means to use and biological or physical constituent time. We recognize that critical habitat the use of all methods and procedures elements (primary constituent elements designated at a particular point in time that are necessary to bring an such as roost sites, nesting grounds, may not include all of the habitat areas endangered or threatened species to the seasonal wetlands, water quality, tide, that we may later determine are point at which the measures provided soil type) that are essential to the necessary for the recovery of the pursuant to the Act are no longer conservation of the species. Primary species. For these reasons, a critical necessary. Such methods and constituent elements are those specific habitat designation does not signal that procedures include, but are not limited elements of the physical or biological habitat outside the designated area is to, all activities associated with features that provide for a species’ life- unimportant or may not be needed for scientific resources management such as history processes and are essential to recovery of the species. Areas that are research, census, law enforcement, the conservation of the species. important to the conservation of the habitat acquisition and maintenance, Under the second part of the Act’s species, both inside and outside the propagation, live trapping, and definition of critical habitat, we can critical habitat designation, will transplantation, and, in the designate critical habitat in areas continue to be subject to: (1) extraordinary case where population outside the geographical area occupied Conservation actions implemented pressures within a given ecosystem by the species at the time it is listed, under section 7(a)(1) of the Act, (2) cannot be otherwise relieved, may upon a determination that such areas regulatory protections afforded by the include regulated taking. are essential for the conservation of the requirement in section 7(a)(2) of the Act Critical habitat receives protection species. For example, an area currently for Federal agencies to insure their under section 7 of the Act through the occupied by the species but that was not actions are not likely to jeopardize the requirement that Federal agencies occupied at the time of listing may be continued existence of any endangered ensure, in consultation with the Service, essential to the conservation of the or threatened species, and (3) section 9 that any action they authorize, fund, or species and may be included in the of the Act’s prohibitions on taking any carry out is not likely to result in the critical habitat designation. We individual of the species, including destruction or adverse modification of designate critical habitat in areas taking caused by actions that affect critical habitat. The designation of outside the geographical area occupied habitat. Federally funded or permitted critical habitat does not affect land by a species only when a designation projects affecting listed species outside ownership or establish a refuge, limited to its range would be inadequate their designated critical habitat areas wilderness, reserve, preserve, or other to ensure the conservation of the may still result in jeopardy findings in conservation area. Such designation species. some cases. These protections and does not allow the government or public Section 4 of the Act requires that we conservation tools will continue to to access private lands. Such designate critical habitat on the basis of contribute to recovery of this species. designation does not require the best scientific data available. Similarly, critical habitat designations implementation of restoration, recovery, Further, our Policy on Information made on the basis of the best available or enhancement measures by non- Standards Under the Endangered information at the time of designation Federal landowners. Where a landowner Species Act (published in the Federal will not control the direction and requests Federal agency funding or Register on July 1, 1994 (59 FR 34271)), substance of future recovery plans, authorization for an action that may the Information Quality Act (section 515 habitat conservation plans (HCPs), or affect a listed species or critical habitat, of the Treasury and General other species conservation planning the consultation requirements of section Government Appropriations Act for efforts if new information available at 7(a)(2) of the Act would apply, but even Fiscal Year 2001 (Pub. L. 106–554; H.R. the time of these planning efforts calls in the event of a destruction or adverse 5658)), and our associated Information for a different outcome. modification finding, the obligation of Quality Guidelines provide criteria, In the following sections we will the Federal action agency and the establish procedures, and provide define the regulatory terms in the landowner is not to restore or recover guidance to ensure that our decisions definition of critical habitat, as they the species, but to implement are based on the best scientific data apply to the jaguar, and then explain reasonable and prudent alternatives to available. They require our biologists, to how the critical habitat boundaries were avoid destruction or adverse the extent consistent with the Act and developed based on the application of modification of critical habitat. with the use of the best scientific data these terms. Under the first part of the Act’s available, to use primary and original definition of critical habitat, areas sources of information as the basis for Occupied Area at the Time of Listing within the geographical area occupied recommendations to designate critical Determining jaguar occupancy at the by the species at the time it was listed habitat. time of listing is particularly difficult. are included in a critical habitat When we are determining which areas Jaguars were added to the list many designation if they contain physical or should be designated as critical habitat, years ago, and, by nature, are cryptic

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and difficult to detect, so assuming an Class I Records evidence for a jaguar occurrence. This area is occupied or unoccupied must be classification protocol was developed by based on limited information that can be Reports of jaguar sightings are sorted adapting criteria published by Tewes interpreted in several ways. Based on into multiple ‘‘classes’’ based on the and Everett (1986, entire), based on our analysis, we are including areas as degree of certainty that a jaguar was work in Texas with jaguarundis and occupied that contain an undisputed sighted. We are only considering ocelots (Leopardus pardalis). The Class I record at some time between undisputed Class I reports as valid Arizona-New Mexico Jaguar 1962 to the present (September 11, records of jaguar locations. Class I Conservation Team (for a description 2013). However, we acknowledge the reports are those for which some sort of and history of this team, see Johnson et uncertainty and lack of concrete physical evidence is provided for al. 2011, pp. 37–40) reviewed and information (undisputed Class I records, verification (such as a skin, skull, or endorsed the protocol in 1998 for use in described below) during the period we photograph); they are considered evaluating jaguar occurrence reports for are defining as occupied at the time of ‘‘verified’’ or ‘‘highly probable’’ as Arizona and New Mexico. Therefore, we listing. Therefore, we have further evidence for a jaguar occurrence. Class are using the same criteria to evaluate evaluated these areas and have also II records have detailed information of jaguar occurrence reports in the United determined these areas to be essential to the observation provided but do not States, and consider undisputed Class I the conservation of the jaguar. Our include any physical evidence of a records as the best available rationale for this approach is explained jaguar. Class II observations are information. Table 1 summarizes these in the following sections. considered ‘‘probable’’ or ‘‘possible’’ as records, below. TABLE 1—UNDISPUTED CLASS I* JAGUAR RECORDS FOR ARIZONA AND NEW MEXICO USED FOR PURPOSES OF DETERMINING OCCUPANCY OF JAGUAR CRITICAL HABITAT, 1962–SEPTEMBER 11, 2013

Circumstance/docu- Date Collector Sex Location mentation Biotic community Information source

2013: 9/11, 8/1, 6/17, University of Arizona Male (same as 2011 Santa Rita Moun- Trail camera photo- Madrean evergreen USFWS Flickr site: 5/31, 5/29, 5/17, 5/ male based on tains. graphs. woodland, http://bit.ly/ 11, 4/27, 1/16. pelage compari- semidesert grass- TapYhK. son). land. 2012: 12/31, 11/11, University of Arizona Male (same as 2011 Santa Rita Moun- Trail camera photo- Madrean evergreen USFWS Flickr site: 11/10, 10/25. male based on tains. graphs. woodland, http://bit.ly/ pelage compari- semidesert grass- TapYhK. son). land. 2012: 9/23 ...... AGFD ...... Male (same as 2011 Santa Rita Moun- Trail camera photo- Semidesert grass- USFWS: http://www. male based on tains. graph. land. fws.gov/southwest/ pelage compari- es/arizona/Docu- son). ments/Species Docs/Jaguar/fNR- jaguar-pics_Dec_ 2012B.docx.pdf. 2011: 11/19 ...... D Fenn ...... Male (5th unique AZ- Whetstone Moun- Treed by hunting Madrean evergreen AGFD: http:// NM jaguar since tains. dogs; photos and woodland. www.azgfd.gov/w_ 1996). video. c/jaguar/documents/Web%20 Release%20jag %20reports%20 2012.02.24.pdf. 2008: 8/2 ...... J Childs and E Male (Macho B) ...... Atascosa Mountains Trail camera photo- Madrean evergreen J Childs and E McCain. graph. woodland. McCain, BJDP unpubl. data. 2008: 7/29 ...... J Childs and E Unknown or Male Tumacacori Moun- Trail camera photo- Semidesert grass- J Childs and E McCain. (Macho B). tains. graph (photo too land. McCain, BJDP fuzzy to identify unpubl. data. jaguar). 2007: 7/25, 5/7, 4/25, J Childs and E Male (Macho B) ...... Coyote Mountains, Trail camera photo- Madrean evergreen J Childs and E 4/22, 4/21, 4/3, 3/27, McCain. Baboquivari Moun- graphs, video, woodland, McCain, BJDP 3/26, 3/25, 3/7, 2/22, tains. tracks. semidesert grass- unpubl. data; see 2/12, 2/9, 1/25, 1/22, land. also McCain and 1/19, 1/10, 1/1. Childs 2008, pp. 3, 7. 2007: 2/22 ...... J Childs and E Male (Macho B) ...... Baboquivari Moun- 500-lb calf depreda- Madrean evergreen J Childs and E McCain. tains. tion. woodland. McCain, BJDP unpubl. data; see also McCain and Childs 2008, pp. 3, 7. 2006: 12/29, 12/3, 11/ J Childs and E Male (Macho B) ...... Coyote Mountains, Trail camera photo- Madrean evergreen J Childs and E 20, 10/18, 10/15, 9/ McCain. Baboquivari Moun- graphs, video, woodland, McCain, BJDP 26, 6/9, 5/31, 5/27, tains, Atascosa tracks. semidesert grass- unpubl. data; see 5/23, 5/21, 5/14, 5/ Mountains. land, Sonoran also McCain and 13, 5/12, 5/10, 5/6, desertscrub. Childs 2008, pp. 3, 5/5, 5/4, 5/2, 4/30, 4/ 7. 28, 4/27, 4/23, 4/18, 4/3, 3/30, 3/27, 3/26. 2006: 2/20 ...... W Glenn ...... Male (4th unique AZ- South of Animas Photographs ...... Madrean evergreen AGFD unpubl. data; NM jaguar since Mountains on woodland. Childs and Childs 1996). north end of San 2008, p. 95. Luis Mountains.

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TABLE 1—UNDISPUTED CLASS I* JAGUAR RECORDS FOR ARIZONA AND NEW MEXICO USED FOR PURPOSES OF DETERMINING OCCUPANCY OF JAGUAR CRITICAL HABITAT, 1962–SEPTEMBER 11, 2013—Continued

Circumstance/docu- Date Collector Sex Location mentation Biotic community Information source

2005: 12/17, 12/12, J Childs and E Male (Macho B) ...... Tumacacori Moun- Trail camera photo- Madrean evergreen J Childs and E 11/18, 11/17, 11/16, McCain. tains, Atascosa graphs and tracks. woodland, McCain, BJDP 11/6, 11/5, 11/4, 7/ Mountains. semidesert grass- unpubl. data; see 29, 7/28, 7/26, 7/3, land. also McCain and 6/8, 6/3, 1/12, 1/2. Childs 2008, pp. 3, 7. 2005: 9/26, 7/11 ...... J Childs and E Unknown ...... Atascosa Mountains Tracks ...... Madrean evergreen J Childs and E McCain. woodland. McCain, BJDP unpubl. data; see also McCain and Childs 2008, pp. 3, 7. 2004: 12/31, 12/29, J Childs and E Male (Macho B) ...... Atascosa Mountains Trail camera photo- Madrean evergreen J Childs and E 12/27, 12/19, 12/17, McCain. graphs and track. woodland, McCain, BJDP 12/12, 11/28, 11/8, semidesert grass- unpubl. data; see 10/27, 9/26, 8/31. land. also McCain and Childs 2008, pp. 3, 7. 2004: 12/7, 9/12, 6/24 J Childs and E Unknown (possibly Atascosa Mountains Trail camera photo- Madrean evergreen J Childs and E McCain. Macho A or pos- graphs and track. woodland. McCain, BJDP sible 6th unique unpubl. data; see AZ-NM jaguar also McCain and since 1996). Childs 2008, pp. 3, 7; and McCain and Childs 2008, p. 5 for a description of why this individual could be Macho A or possibly another unique jaguar. 2004: 9/25 ...... J Childs and E Male (Macho A) ...... Atascosa Mountains Trail camera photo- Madrean evergreen J Childs and E McCain. graph. woodland. McCain, BJDP unpubl. data; see also McCain and Childs 2008, pp. 3, 7. 2003: 8/7 ...... J Childs and E Male (Macho A) ...... Atascosa Mountains Trail camera photo- Madrean evergreen J Childs and E McCain. graph. woodland. McCain, BJDP unpubl. data; see also McCain and Childs 2008, pp. 3, 7. 2001: 12/9 ...... J Childs and E Male (Macho A; 3rd Atascosa Mountains Trail camera photo- Madrean evergreen J Childs and E McCain. unique jaguar graph. woodland. McCain, BJDP since 1996). unpubl. data; see also McCain and Childs 2008, pp. 3, 7. 1996: 8/31 ...... J Childs ...... Male (Macho B; 2nd Baboquivari Moun- Treed while lion Madrean evergreen Brown and Lo´pez unique AZ-NM jag- tains. hunting; photo- woodland. Gonza´lez 2001, p. uar since 1996). graphs. 7, McCain and Childs 2008, p. 2. 1996: 3/7 ...... W Glenn ...... Male (1st unique AZ- Peloncillo Mountains Bayed while lion Madrean evergreen Glenn 1996; Brown NM jaguar since hunting with dogs; woodland. and Lo´pez 1996). photographs. Gonza´lez 2001, p. 6. 1995: 4/19 ...... B Starrett ...... Unknown ...... Peloncillo Mountains Photograph of track Madrean evergreen AGFD unpubl. data; woodland. NMDGF unpubl. data. 1986: 12 ...... J Klump ...... Male ...... Dos Cabezas Moun- Bayed and killed Madrean evergreen Brown and Lo´pez tains. while lion hunting woodland. Gonza´lez 2001, p. with dogs. 7. 1971: 11/16 ...... R Farley and T Car- Male ...... Santa Cruz River ..... Killed by boys duck Madrean evergreen Brown and Lo´pez tier. hunting with shot- woodland, Gonza´lez 2001, p. guns. semidesert grass- 7. land. 1965: 11/16 ...... L McGee ...... Male ...... Patagonia Mountains Shot while deer hunt- Madrean evergreen Brown and Lo´pez ing. woodland. Gonza´lez 2001, p. 7. * Physical evidence (e.g., skin, skull, photograph, track) was reviewed and accepted by the Arizona Game and Fish Department (AGFD), New Mexico Department of Game and Fish (NMDGF), or other credible person(s). (BJDP=Borderlands Jaguar Detection Project).

There are several disputed Class I September 28, 1963, in the White central Arizona (Brown and Lo´pez jaguar records from 1962 forward that Mountains of east-central Arizona, and Gonza´lez 2001, p. 7). As described in we are not considering in our analysis. another is a male trapped on January 16, Johnson et al. (2011, p. 9), as well as One of these is a female shot on 1964, near the Black River in east- from information provided during the

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public comment period on our August listing (1972), presumably these areas Jaguar Detection Difficulty 20, 2012, proposed critical habitat would have been inhabited by jaguars designation (77 FR 50214), the validity when the species was listed in 1972. In addition to lowered detection probabilities (the probability of of these locations is questionable Additionally, we are including areas because of the suspicion that these detecting a jaguar when present) as occupied in which reports of jaguars resulting from the rarity of animals, animals were released for ‘‘canned exist from 1982 to the present. Our hunts’’ (hunts involving release of many mobile species are difficult to reasoning for including areas in which detect in the wild because of captive animals). Therefore, we are not sightings have occurred after 1982 is including them as undisputed Class I morphological features (such as that it is likely those areas were records. The other exceptions are any camouflaged appearance) or elusive occupied at the time of the original records of the jaguar known as Macho behavioral characteristics (such as listing, but jaguars had not been B dating from October 3, 2008, until his nocturnal activity) (Peterson and Bayley detected because of their rarity, the final capture on March 2, 2009. We have 2004, pp. 173, 175), as is the case for the determined that it is within this difficulty in detecting them, and a lack jaguar. This fact presents challenges in timeframe that female jaguar scat may of surveys for the species, as described determining whether or not a particular have been used as scent lure at some below. area is occupied because we cannot be trail camera locations within the Reduced Jaguar Numbers sure that a lack of detection indicates Coronado National Forest that may have that the species is absent (Peterson and affected his behavior; therefore, we are By the time the jaguar was listed in Bayley 2004, p. 173). not including these observations as 1972, the species was rare within the For example, the Sonoran desert undisputed Class I records. United States, making those individuals tortoise is difficult to monitor in the that may have been present more Time of Listing wild because of its slow movement and difficult to detect. The gradual decline camouflaged appearance, especially in While the jaguar was not explicitly of the jaguar in the southwestern United the smaller hatchling and juvenile age listed in the United States until July 22, States was concurrent with predator classes. In addition, the habitat in which 1997 (62 FR 39147), we are using the control measures associated with the Sonoran desert tortoise population date the jaguar was listed throughout its settlement of land and the development densities are the highest is complex, range as endangered in accordance with of the cattle industry (Brown 1983, p. meaning it often contains many large the Endangered Species Conservation 460). For example, from 1900 to 1949, boulders, somewhat dense vegetation, Act, which is March 30, 1972 (37 FR 53 jaguars were recorded as killed in the and challenging topographic relief. 6476). Our rationale for using this date Southwest, whereas only 4 were These factors can significantly hamper a is based on our July 25, 1979, recorded as killed between 1950 and surveyor’s ability to detect them in the publication (44 FR 43705) in which we 1979 (Brown 1983, p. 460). When a field (Zylstra et al. 2010, p. 1311). asserted that it was always the intent of species is rare on the landscape, the Service that all populations of seven individuals are difficult to detect Sampling Method Difficulty species, including the jaguar, deserved because they are sparsely distributed to be listed as endangered, whether they Jaguars are difficult to detect due to over a large area (McDonald 2004, p. their rarity, cryptic appearance, elusive occurred in the United States or in 11). foreign countries. Therefore, our behavior, and habitat complexity. intention was to consider the jaguar Jaguars, in particular, are territorial Compounding the problem of low endangered throughout its entire range and require expansive open spaces for detection rates is that not all individuals when it was listed as endangered in each individual, meaning large areas can be detected using any one particular 1972, rather than only outside of the may be occupied by just a few sampling method or even using multiple United States. individuals, thus reducing the methods. Pollock et al. (2004, p. 43) likelihood of detecting them. As present the example of the dugong (sea Occupancy at the Time of Listing evidence, only six, possibly seven, cow) off the coast of Australia. Using We are including areas in which individual jaguars have been detected in one method of detection—aerial reports of jaguar exist during the 10 the United States since 1982 (five, surveys—some dugongs may be years prior to its listing as occupied at possibly six, individuals since 1996, as underwater and invisible to the the time of listing, meaning we are well as the jaguar shot in the Dos observers searching for them from considering records back to 1962. Our Cabezas Mountains in 1986; see Table 1, aircraft, or the observer may miss rationale for including these records is above), including two that have been detecting them due to his or her based on expert opinion regarding the documented utilizing two distinct uncertain perception process. Similarly, average lifespan of the jaguar, the mountain ranges, one of which terrestrial salamanders in North consensus being 10 years. Therefore, we encompassed approximately 1,359 km2 Carolina and Tennessee most often assume that areas that would have been (525 mi2) (McCain and Childs 2008, occur below the surface of the ground, considered occupied at the time of entire) (see ‘‘Space for Individual and making detection particularly difficult, listing would have included sightings Population Growth and for Normal especially when using standard 10 years prior to its listing, as Behavior’’ section, below). Therefore, sampling protocols that only sample the presumably these areas were still we believe that undisputed Class I surface population (Pollock et al. 2004, inhabited by jaguars when the species records within mountain ranges from p. 53). Attempting to detect rare species was listed in 1972. 1982 to the present indicate that these by using multiple sampling methods or For this same reason, we are mountain ranges were likely occupied surveying multiple times can increase including areas as occupied at the time by transient jaguars from Mexico at the detections or increase confidence that of listing in which reports of jaguar exist time the species was listed, but non-detections are true absences; during the 10 years after listing, individuals remained undetected due to however, this is often prohibitively meaning we are considering records up the jaguar’s ability to move long time-consuming and expensive and may to 1982. If jaguars were present in an distances within and between mountain not always be feasible because of the area within 10 years after the time of ranges. sensitivity of the species.

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Jaguars, specifically, are secretive and jaguar was listed in 1972 (37 FR 6476). 50214), in the proposed revision of nocturnal in nature (Seymour 1989, p. 2; The lack of jaguar sightings at that time, critical habitat published in the Federal 62 FR 39147, p. 39153; McCain and as well as some expert opinions cited in Register on July 1, 2013 (78 FR 39237), Childs 2008, p. 5) and, in the United our July 22, 1997, clarifying rule (62 FR and in the information presented below. States and northern Mexico, inhabit 39147) (for example, Swank and Teer Additional information can be found in rugged, remote areas that are logistically 1989), suggest that jaguars in the United the final clarifying rule published in the difficult to survey. Even in studies States had declined to such an extent by Federal Register on July 22, 1997 (62 FR designed to detect jaguars using both that point as to be effectively 39147), the Recovery Outline for the camera traps and track surveys in eliminated. Therefore, an argument Jaguar (Jaguar Recovery Team 2012, northern Mexico, neither method was could be made that no areas in the entire), the Digital Mapping in Support completely effective in identifying United States were occupied by the of Recovery Planning for the Northern individuals due to logistical problems species at the time it was listed, or that Jaguar report (Sanderson and Fisher related to rugged topography, hard soils, only areas containing undisputed Class 2011, pp. 1–11), and the Jaguar Habitat absence of roads, and harsh weather I records from between 1962 and 1982 Modeling and Update report (Sanderson conditions (Rosas-Rosas and Bender were occupied. and Fisher 2013, entire). We used the 2012, pp. 95–96). In the United States For this reason, we also analyzed best scientific information available on specifically, most of the recent whether or not these areas are essential habitat in the United States essential to occurrences of jaguars (after 1996) to the conservation of the species. the conservation of the jaguar as would not have been known but for a Through our analysis, we determine that gathered by the Jaguar Recovery Team substantial amount of time and effort they are essential to the conservation of through the team’s recovery planning being invested by the Borderlands the species for the following reasons: (1) effort. A complete list of information Jaguar Detection Project (BJDP) (Johnson They have demonstrated recent (since sources is available in our Literature et al. 2011, p. 40). From 1997 to 2010, 1996) occupancy by jaguars; (2) they Cited located on http:// the BJDP maintained 45–50 remote- contain features that comprise jaguar www.regulations.gov at Docket No. camera stations across three counties in habitat; and (3) they contribute to the FWS–R2–ES–2012–0042 and at the field Arizona, conducted track and scat species’ persistence in the United States office responsible for the designation (feces) surveys opportunistically, and by allowing the normal demographic (see FOR FURTHER INFORMATION CONTACT followed up on credible sighting reports function and possible range expansion above). from other individuals, resulting in 105 of the Northwestern Recovery Unit, To define the physical and biological jaguar locations representing two adult which is essential to the conservation of features required for jaguar habitat in male jaguars and possibly a third of the species (as discussed in the Jaguar the United States, we reviewed available unknown sex (Johnson et al. 2011, p. Recovery Planning in Relation to information and supporting data that 40). From the time the jaguar was listed Critical Habitat section, above). pertains to the habitat requirements of in 1972 until 1997, no effort was made the jaguar, focusing on studies to detect jaguars in the United States, so Physical or Biological Features conducted in Mexico as close to the we cannot be sure that a lack of In accordance with sections 3(5)(A)(i) U.S.-Mexico border as available. Many detection indicates the species was and 4(b)(1)(A) of the Act and regulations of these studies have been compiled and absent. at 50 CFR 424.12, in determining which summarized by the Jaguar Recovery areas within the geographical area Summary Team in the Recovery Outline for the occupied by the species at the time of Jaguar (Jaguar Recovery Team 2012, Based on the above information, we listing to designate as critical habitat, entire), the 2011 Digital Mapping in determine that areas in which jaguars we consider the physical or biological Support of Recovery Planning for the have been documented from 1962 to the features essential to the conservation of Northern Jaguar preliminary report present may have been occupied at the the species and which may require (Sanderson and Fisher 2011, pp. 1–11) time of the original listing (March 30, special management considerations or and the 2013 Jaguar Habitat Modeling 1972; 37 FR 6476) because: (1) Jaguars protection. These include, but are not and Update report (Sanderson and were rare on the landscape and limited to: distributed over large, rugged areas, (1) Space for individual and Fisher 2013, entire), which we regard as meaning they were difficult to detect; population growth and for normal the best available scientific information (2) jaguars are cryptic and nocturnal by behavior; for the jaguar and its habitat needs in nature, making them difficult to detect; (2) Food, water, air, light, minerals, or the northern portion of its range. To and (3) no survey effort was made to other nutritional or physiological define the physical and biological detect them in 1972, meaning we cannot requirements; features and associated PCEs required be sure that a lack of detection indicates (3) Cover or shelter; for jaguar habitat in the United States, the species was absent. Therefore, based (4) Sites for breeding, reproduction, or we relied primarily on information on the best available information related rearing (or development) of offspring; compiled in the Jaguar Habitat Modeling to jaguar rarity, biology, and survey and and Database Update report (Sanderson effort, we determine that areas (5) Habitats that are protected from and Fisher 2013, entire). In two cases containing undisputed Class I records disturbance or are representative of the we substituted data layers for which from 1962 to the present (September 11, historical, geographical, and ecological more detailed, higher-resolution data 2013) may have been occupied by distributions of a species. were available for the United States (see jaguars at the time of listing. We derive the specific physical or ‘‘Cover or Shelter’’ and ‘‘Habitats that biological features essential for the are Protected from Disturbance or are Occupancy Uncertainty jaguar from studies of this species’ Representative of the Historical, To the extent that uncertainty exists habitat, ecology, and life history as Geographical, and Ecological regarding our analysis of these data, we described in the Critical Habitat section Distributions of a Species’’ sections, acknowledge there is an alternative of the proposed rule to designate critical below). For a complete list of data explanation as to whether or not these habitat published in the Federal sources, see our response to comment areas were occupied at the time the Register on August 20, 2012 (77 FR number 63 in our Summary of

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Comments and Recommendations comm.). No home range studies using in the United States; however, as they section. standard radio-telemetry techniques are mainly using them for passage, We have determined that the jaguar have been conducted for jaguars in the jaguars do not linger in these areas. As requires the following physical or southwestern United States, although a result, there is only one occurrence biological feature as further described McCain and Childs (2008, p. 5), using record of a jaguar in these areas. With below: Expansive open spaces in the camera traps, reported one jaguar in only one record, we are unable to southwestern United States with southeastern Arizona as having a describe the features of these areas adequate connectivity to Mexico that minimum observed ‘‘range’’ of 1,359 because of a lack of information. contain a sufficient native prey base and km2 (525 mi2) encompassing two Therefore, while we acknowledge that available surface water, have suitable distinct mountain ranges. This study, habitat connectivity within the United vegetative cover and rugged topography however, was not designed to determine States is important, the best available to provide sites for resting, are below home range size. Therefore, we are scientific and commercial information 2,000 m (6,562 feet (ft)), and have relying on minimum home-range does not allow us to determine that any minimal human impact. estimates for male and female jaguars particular area within the valleys is ´ ´ essential, and all of the valley habitat is Space for Individual and Population from Sonora, Mexico (Lopez Gonzalez not essential to the conservation of the Growth and for Normal Behavior 2011, pers. comm.), as well as the expert opinion of the technical subgroup of the species. Therefore we are not Expansive open spaces—Jaguars Jaguar Recovery Team, which came to designating any areas within the valleys require a significant amount of space for the consensus that areas less than 100 between the montane habitat as critical individual and population growth and km2 (38.6 mi2) were too small to support habitat. for normal behavior. Jaguars have a jaguar (Sanderson and Fisher 2013, p. Food, Water, Air, Light, Minerals, or relatively large home ranges and, 30) for the minimum amount of according to Brown and Lo´pez Gonza´lez Other Nutritional or Physiological adequate habitat required by jaguars in Requirements (2001, p. 60), their home ranges are the United States. highly variable and depend on Therefore, based on the information Food—Jaguar and large-cat experts topography, available prey, and above, we identify expansive open believe that high-quality habitat for population dynamics. Home ranges spaces in the United States of at least jaguars in the northwestern portion of need to provide reliable surface water, 100 km2 (38.6 mi2) in size as an their range should include a high available prey, and sites in rugged essential component of the physical or abundance of native prey, particularly terrain for resting that are removed from biological feature essential for the large prey like white-tailed deer and the impacts of human activity and conservation of the jaguar in the United collared peccary (javelina), as well as an influence (Jaguar Recovery Team 2012, States. adequate number of medium-sized prey pp. 15–16). The availability of these Connectivity between expansive open (Jaguar Recovery Team 2012, pp. 15– habitat characteristics can fluctuate spaces in the United States and 16). However, the Jaguar Recovery Team within a year (dry versus wet seasons) Mexico—As discussed in the Jaguar (2012, pp. 15–16) did not quantify ‘‘high and between years (drought years versus Recovery Planning in Relation to abundance’’ or ‘‘adequate number’’ of wet years). Critical Habitat section, above, each type of prey, making it difficult to Specific home ranges for jaguars connectivity between the United States state the density of prey required to depend on the sex of the individual, and Mexico is essential for the sustain a resident jaguar in this portion season, and vegetation type. The home conservation of jaguars. Therefore, we of its range. ranges of borderland jaguars are identify connectivity between expansive Jaguars usually catch and kill their presumably as large or larger than the open spaces in the United States and prey by stalking or ambush and biting home ranges of tropical jaguars (Brown Mexico as an essential component of the through the nape as do most Felidae and Lo´pez Gonza´lez 2001, p. 60; physical or biological feature essential (members of the cat family) (Seymour McCain and Childs 2008, pp. 6–7), as for the conservation of the jaguar in the 1989, p. 5). Like other large cats, jaguars jaguars in this area are at the northern United States. rely on a combination of cover, surprise, limit of their range and the arid Connectivity between expansive open acceleration, and body weight to capture environment contains resources and spaces within the United States—We their prey (Schaller 1972 and Hopcraft environmental conditions that are more know that connectivity between et al. 2005, as cited by Cavalcanti 2008, variable than those in the tropics (Hass expansive open areas of habitat for the p. 47). Jaguars are considered 2002, as cited in McCain and Childs jaguar in the United States is necessary opportunistic feeders, and their diet 2008, p. 6). Therefore, jaguars require if viable habitat for the jaguar is to be varies according to prey density and more space in arid areas to obtain maintained. This is particularly true in ease of prey capture (sources as cited in essential resources such as food, water, the mountainous areas of Arizona and Seymour 1989, p. 4). Jaguars equally use and cover (discussed below). New Mexico, where isolated mountain medium- and large-size prey, with a Only one limited home range study ranges providing the physical and trend toward use of larger prey as using standard radio-telemetry biological feature of jaguar habitat are distance increases from the equator techniques and two home range studies separated by valley bottoms that may (Lo´pez Gonza´lez and Miller 2002, p. using camera traps have been conducted not possess the feature described in this 218). for jaguars in northwestern Mexico. final rule. However, we also know that, In northeastern Sonora, where the Telemetry data from one adult female based on home range sizes and research northernmost breeding population of tracked for 4 months during the dry and monitoring, jaguars will use valley jaguars occurs, Rosas-Rosas (2006, pp. season in Sonora indicated a home bottoms (for example, McCain and 24–25) found that large prey greater range size of 100 km2 (38.6 mi2) (Lo´pez Childs 2008, p. 7) and other areas of than 10 kilograms (kg) (22 pounds (lb)) Gonza´lez 2011, pers. comm.). habitat connectivity to move among accounted for more than 80 percent of Additionally, a male in Sonora was areas of higher quality habitat found in the total biomass consumed. documented through camera traps using isolated mountain ranges. We Specifically, cattle accounted for more an average home range of 84 km2 (32 acknowledge that jaguars use connective than half of the total biomass consumed mi2) (Lo´pez Gonza´lez 2011, pers. areas to move between mountain ranges (57 percent), followed by white-tailed

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deer (23 percent), and collared peccary followed major drainages within their southwestern United States, including (5.12 percent). Medium-sized prey (1–10 study area. thornscrub, desertscrub, lowland desert, kg; 2–22 lb), including lagomorphs In the United States, Hatten et al. mesquite grassland, Madrean oak (rabbit family) and coatis (Nasua (2005, p. 1026) analyzed distance to woodland, and pine-oak woodland nasua), accounted for less than 20 water as a feature of jaguar habitat using communities (Brown and Lo´pez percent of biomass. Small prey, less jaguar records from Arizona dating from Gonza´lez 2001, pp. 43–50; Boydston than 1 kg (2 lb), were not found in scats 1900 to 2002, from which they selected and Lo´pez Gonza´lez 2005, p. 54; (Rosas-Rosas 2006, p. 24). At the the most reliable records (those with McCain and Childs 2008, p. 7; Rosas- Chamela-Cuixmala Biosphere Reserve in physical evidence or from a reliable Rosas et al. 2010, p. 103). As most of the Jalisco, Mexico (which is closed to witness) and most spatially accurate information pertaining to jaguar habitat livestock grazing), deer and javelina records (those with spatial errors of less in the U.S.-Mexico borderlands relies on were the two most preferred prey than 8 km (5 mi)) to create a habitat descriptions of biotic communities from species for jaguars, with jaguars suitability model. Of the 57 records they Brown and Lowe (1980, map) and consuming the equivalent of 85 deer per considered, 25 records were deemed Brown (1994, entire, including individual per year (Brown and Lo´pez reliable and accurate enough to include appendices), for purposes of this Gonza´lez 2001, p. 51). No estimates of in the model. Using a digital GIS layer document we are using these same the number of javelina consumed were that included perennial and intermittent sources and descriptions, as well. provided, although in combination with water sources (streams, rivers, lakes, According to Brown and Lo´pez deer, armadillo, and coati, these four and springs), Hatten et al. (2005, p. Gonza´lez (2001, p. 46), the most prey items provided 98 percent of the 1029) found that when perennial and important biotic community for jaguars biomass taken by jaguars (Brown and intermittent water sources were in the southwestern borderlands Lo´pez Gonza´lez 2001, p. 50). Most combined, 100 percent of the 25 jaguar (Arizona, New Mexico, Sonora, jaguar experts believe that collared records used for their model were Chihuahua) is Sinaloan thornscrub (as peccary and deer are mainstays in the within 10 km (6.2 mi) of a water source. described in Brown 1994, pp. 100–105), diet of jaguars in the United States and This distance from water (10 km; 6.2 mi) with 80 percent of the jaguars killed in Mexico borderlands (62 FR 39147), was then incorporated into a jaguar the state of Sonora documented in this although other available prey, including habitat modeling exercise in New vegetation biome (Brown and Lo´pez coatis, skunk (Mephitis spp., Spilogale Mexico (Menke and Hayes 2003, pp. 15– Gonza´lez 2001, p. 48). This biotic gracilis), raccoon (Procyon lotor), 16), as well. community, however, is absent in the jackrabbit (Lepus spp.), domestic In the jaguar habitat models United States (Brown and Lowe 1980, livestock, and horses are taken as well developed by Sanderson and Fisher map; Brown and Lo´pez Gonza´lez 2001, (Brown and Lo´pez Gonza´lez 2001, p. 51; (2011, pp. 10–11; 2013, pp. 33–34) for p. 49). Madrean evergreen woodland is Hatten et al. 2005, p. 1024; Rosas-Rosas the proposed Northwestern Recovery also important for borderlands jaguars; 2006, p. 24). Unit, 10 km (6.2 mi) was also nearly 30 percent of jaguars killed in the Therefore, based on the information determined to be the maximum distance borderlands region were documented in above, we identify areas containing from water that could still provide this biotic community (Brown and adequate numbers of native prey, jaguar habitat. In addition, this distance Lo´pez Gonza´lez 2001, p. 45). Brown and including deer, javelina, and medium- was further acknowledged by the Lo´pez Gonza´lez (2000, p. 538) indicate sized prey items (such as coatis, skunks, technical subgroup of the Jaguar jaguars in Arizona and New Mexico raccoons, or jackrabbits) as an essential Recovery Team as the maximum predominantly use montane component of the physical and distance an area could be from a year- environments, probably because of more biological feature essential for the round water source to constitute high- amiable temperatures and prey conservation of the jaguar in the United quality jaguar habitat (Jaguar Recovery availability. A smaller, but still notable, States. Team 2012, pp. 15–16). number of jaguars were killed in Water—Several studies have Therefore, based on the information chaparral and shrub-invaded semidesert demonstrated that jaguars require above, we identify sources of surface grasslands (Brown and Lo´pez Gonza´lez surface water within a reasonable water within at least 20 km (12.4 mi) of 2001, p. 48). In Arizona, approximately distance year-round. This requirement each other such that a jaguar would be 15 percent of the jaguars taken within likely stems from increased prey within 10 km (6.2 mi) of a water source the State between the years 1900 and abundance at or near water sources at any given time (i.e., if it were halfway 2000 were in semidesert grasslands (Cavalcanti 2008, p. 68; Rosas-Rosas et between these water sources) as an (Brown and Lo´pez Gonza´lez 2001, p. al. 2010, pp. 107–108), particularly in essential component of the physical or 49). arid environments, although it is biological feature essential for the The more recent sightings (2001– conceivable that jaguars require a conservation of the jaguar in the United 2007), as described in McCain and nearby water source for drinking, as States. Childs (2008, pp. 3, 7), document well. Seymour (1989, p. 4) found that jaguars in these same biotic jaguars are most commonly found in Cover or Shelter communities (note that the Madrean areas with a water supply, although the Vegetative Cover—Jaguars require evergreen woodland and semidesert distance to this water supply is not vegetative cover allowing them to stalk grassland biotic communities defined. In northeastern Sonora, and ambush prey, as well as providing encompass mesquite grassland, Mexico, Rosas-Rosas et al. (2010, p. 107) areas in which to den and rest (Jaguar Madrean oak woodland, and pine-oak found that sites of jaguar cattle kills Recovery Team 2012, pp. 15–16). woodland habitats), and the most recent were positively associated with Jaguars are known from a variety of sightings of a jaguar in Arizona (2011– proximity to permanent water sources. vegetation communities (Seymour 1989, 2013) were in Madrean evergreen They also found that these sites were p. 2), sometimes called biotic woodland, as well (see Table 1 in the positively associated with proximity to communities or vegetation biomes ‘‘Class I Records’’ section, above). roads, but concluded that the effect of (Brown 1994, p. 9). Jaguars have been Several modeling studies roads likely represented a response to documented in arid areas in incorporating vegetation characteristics major drainages, as roads generally northwestern Mexico and the have attempted to refine the general

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understanding of habitats that have been not cover the entire Northwestern Lowe (1980, map) and Brown (1994, or might be used by jaguars in the Recovery Unit for the jaguar; therefore, entire, including appendices) are United States. To characterize an appropriate substitution was included instead of Sierra Madre vegetation biomes, Hatten et al. (2005, required for modeling purposes. Within Occidental pine-oak, Sonoran desert, entire) used a digital vegetation layer this ecoregion’s digital layer, the and Chihuahuan desert vegetation based on Brown and Lowe (1980, map) category given the highest relative communities described by the World and Brown (1994, entire). They found weight (0.2) within the United States is Wildlife Fund Ecoregion data layer that 100 percent of the 25 jaguar records called Sierra Madre Occidental pine-oak because of the higher resolution of these used for their model were observed in forests, representing the best jaguar data and more accurate representation four vegetation biomes, including: (1) habitat within the borderlands region of the vegetation communities in the Scrub grasslands of southeastern (Sanderson and Fisher 2013, p. 34). This United States and borderlands region Arizona (56 percent); (2) Madrean category most closely resembles the and their importance to jaguars within evergreen forest (20 percent); (3) Rocky Madrean evergreen woodland biotic this area (as described above; see also Mountain montane conifer forest (12 community. There is no equivalent Table 1 in the ‘‘Class I Reports’’ section, percent); and (4) Great Basin conifer category for semidesert grassland in the above). We directly incorporate the tree woodland (12 percent). ecoregions digital layer; instead, cover recommendation within the In addition, two studies (Menke and Sonoran desert and Chihuahuan desert northern part of the Northwestern Hayes 2003, entire; Robinson et al. cover all grassland and desert biotic Recovery Unit (greater than 1 to 50 2006, entire) attempted to evaluate communities. These two desert percent; Sanderson and Fisher 2013, p. potential jaguar habitat in New Mexico categories are given a very low relative 33) as part of this essential physical or using methods similar to those weight (0.01), representing poorer biological feature component. described in Hatten et al. (2005, pp. quality jaguar habitat within the Rugged Topography—Rugged 1025–1028). However, due to the small borderlands region (Sanderson and topography (including canyons, ridges, number of reliable and spatially Fisher 2013, p. 34). and some rocky hills to provide sites for accurate records within New Mexico, Sanderson and Fisher (2011, p. 7; resting) is acknowledged as an neither model was able to determine 2013, pp. 5–6) also added a digital layer important component of jaguar habitat patterns of habitat use (and associated to capture canopy cover (called land in the northwestern-most portion of its vegetation communities) for jaguars in cover in the reports), as represented by range (Jaguar Recovery Team 2012, pp. New Mexico, instead relying on a digital layer called tree cover. In the 15–16). The most recent Sanderson and literature and expert opinion for latest version of the model (version 13), Fisher (2013, p. 17) habitat model for elements to include in the models. Sanderson and Fisher (2013, p. 20) the Northwestern Recovery Unit for the These vegetation communities included analyzed the tree cover preferred by jaguar determined that jaguars in this Madrean evergreen woodland, which jaguars in the Jalisco Core Area (the area were most frequently found in Menke and Hayes (2003, p. 13) southernmost part of the Northwestern intermediately, moderately, and highly considered the most similar to habitats Recovery Unit) separately from tree rugged terrain. Additionally, one study used by the closest breeding cover in all other areas (note that p. 15 in the U.S.-Mexico borderlands area populations of jaguars in Mexico, as of this report incorrectly states that the (Boydston and Lo´pez Gonza´lez 2005, well as grasslands (semidesert, Plains Sinaloa Secondary Area is included entire) and one in northeastern Mexico and Great Basin, and subalpine), interior with the Jalisco Core Area in this (Ortega-Huerta and Medley 1999, entire) chaparral, conifer forests and analysis) to reflect the major habitat incorporate slope as a factor in woodlands (Great Basin, Petran shift from the dry tropical forest of describing jaguar habitat. Although montane, and Petran subalpine), and Jalisco, Mexico, to the thornscrub slope can provide some understanding desertscrub (Chihuahuan, Arizona vegetation of Sonora, Mexico. The of topography (steep slopes generally upland Sonoran, and Great Basin). results of these analyses indicate that indicate a more rugged landscape), it is Using the methodology described in jaguars in the southernmost part of the less descriptive in terms of quantifying Hatten et al. (2005, pp. 1025–1028), but Northwestern Recovery Unit (the Jalisco terrain heterogeneity (diversity) (Hatten with some modifications, Sanderson Core Area) seem to inhabit a wider et al. 2005, pp. 1026–1027). and Fisher (2011, pp. 1–11; and 2013, range of tree cover values (greater than Nonetheless, in these studies, jaguar entire) created jaguar habitat models for 1 to 100 percent), whereas jaguars distribution was found to be on steeper the proposed Northwestern Recovery throughout the rest of the Northwestern slopes than those slopes that were Unit. In the latest version of the model Recovery Unit (including the United available for the study areas in general (version 13), Sanderson and Fisher States) appear to inhabit a narrower (Ortega-Huerta and Medley 1999, p. 261; (2013, p. 13) used a data set of 453 range of tree cover values (greater than Boydston and Lo´pez Gonza´lez 2005, p. jaguar observations (note that Table 1.3 1 to 50 percent) (Sanderson and Fisher, 54), indicating jaguars were found in incorrectly states 452 instead of 453) for p. 20). more rugged areas in these studies. which the description of the location Therefore, based on the information Two modeling exercises incorporating was sufficient to place it with certainty above, we identify Madrean evergreen ruggedness have been conducted to within 10 km (6.2 mi) of its actual woodlands and semidesert grasslands determine existing jaguar habitat in the location, and for which a date to the containing greater than 1 to 50 percent southwestern United States, one in nearest century was available tree cover (or canopy cover) as an Arizona and another in New Mexico. To (Sanderson and Fisher 2013, pp. 3–5 essential component of the physical or examine the relationship between and Appendix 2). Sanderson and Fisher biological feature essential for the jaguars and landscape roughness in (2013, p. 6) substituted a digital layer conservation of the jaguar in the United Arizona, Hatten et al. (2005, p. 1026) describing ecoregions (World Wildlife States. Though slightly different than calculated a terrain ruggedness index Fund Ecoregions) for the digital biotic the habitat characteristics included in (TRI; Riley et al. 1999, as cited in Hatten community layer based on Brown and the latest habitat model produced by the et al. 2005, p. 1026) measuring the slope Lowe (1980, map) and Brown (1994, Jaguar Recovery Team, Madrean in all directions of each 1-km2 (0.4-mi2) entire), however. The reason for this evergreen woodland and semidesert cell (pixel) in their model. They divided was because the latter two references do grassland as described by Brown and the TRI data into seven classes

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according to relative roughness: level, Unit, Sanderson and Fisher (2013, pp. habitat, and habitat fragmentation. nearly level, slightly rugged, 19, 29) incorporated this upper- Rangewide, illegal killing of jaguars is intermediately rugged, moderately elevation limit and excluded areas one of the two most significant threats rugged, highly rugged, and extremely above 2,000 m (6,562 ft). Therefore, to the jaguar (Nowell and Jackson 1996, rugged. With respect to topography, based on this information, we identify p. 121; Nu´ n˜ ez et al. 2002, p. 100; Taber they found that 92 percent of the 25 areas of less than 2,000 m (6,562 ft) in et al. 2002, p. 630; Cha´vez and Ceballos jaguar records used in their model (see elevation as an essential component of 2006, p. 10), and, according to the July ‘‘Water’’ in the ‘‘Food, Water, Air, Light, the physical or biological feature 22, 1997, clarifying rule (62 FR 39147), Minerals, or Other Nutritional or essential for the conservation of the the primary threat to jaguars in the Physiological Requirements’’ section, jaguar in the United States. United States was illegal shooting (see above) occurred in intermediately Sites for Breeding, Reproduction, or listing rule for a detailed discussion). rugged to extremely rugged terrain (the Rearing (or Development) of Offspring This, however, is no longer accurate, as remaining 8 percent were in nearly level the most recent known shooting of a terrain). As demonstrated in Table 1, above, jaguar in Arizona was in 1986 (Brown Menke and Hayes (2003, entire) from 1962 to the present all undisputed and Lo´pez Gonza´lez 2001, p. 7). Jaguars attempted to evaluate potential jaguar Class I jaguar observations for which the are protected by Federal law through the habitat in New Mexico using methods sex of the animal could be determined Act and by State law in Arizona and similar to those described in Hatten et have been male individuals. Few New Mexico. Four of the individual al. (2005, pp. 1025–1028). While records of females exist within the jaguars most recently documented patterns of habitat use for jaguars could United States (see Brown and Lo´pez (since 1996) in Arizona and New not be determined (due to the small Gonza´lez 2001, pp. 6–9 for records from Mexico have been documented by lion number of reliable and spatially 1900–2000), and even fewer records of hunters, who took photographs of the accurate records within New Mexico, of jaguar breeding events in the United jaguars and then reported them to the which there were seven), all sighting States have been documented. The most Arizona Game and Fish Department and locations occurred in areas that were recent known breeding event is from the Service. While illegal killing of assigned a highly rugged value, and over 100 years ago in 1910 of a female jaguars continues to be a major threat to terrain ruggedness was the single jaguar with one cub at the head of jaguars south of the U.S.-Mexico variable that appeared to have a high Chevlon Canyon in the Sitgreaves international border, it does not appear degree of correlation with locations of National Forest in Arizona (Brown and to be a significant threat within the Lo´pez Gonza´lez 2001, p. 9). Further, as jaguar observations in New Mexico. United States. In addition, through the most recent described in the Jaguar Recovery habitat modeling efforts for the jaguar in Planning in Relation to Critical Habitat In terms of human influence and the Northwestern Recovery Unit, section, above, the recovery function impact on jaguars other than by direct Sanderson and Fisher (2013, pp. 33–34) and value of critical habitat within the killing, human populations have both determined that intermediately, United States is to contribute to the direct and indirect impacts on jaguar moderately, or highly rugged terrain species’ persistence and, therefore, survival and mortality. For example, an represented the best habitat available for overall conservation by providing areas increase in road density and human jaguars in the northwestern-most part of to support some individuals during settlements tends to fragment habitat their range. dispersal movements, by providing and isolate populations of jaguars and Therefore, based on this information, small patches of habitat (perhaps in other wildlife. For carnivores in general, we identify areas of intermediately, some cases with a few resident jaguars), the impacts of high road density have moderately, or highly rugged terrain as and as areas for cyclic expansion and been well documented and thoroughly an essential component of the physical contraction of the nearest core area and reviewed (Noss et al. 1996 and Carroll or biological feature essential for the breeding population in the et al. 2001, as cited by Menke and Hayes conservation of the jaguar in the United Northwestern Recovery Unit (Jaguar 2003, p. 12). Roads may have direct States. Recovery Team 2012, pp. 40, 42). Since impacts to carnivores and carnivore Elevation—Elevation is a component the last known breeding event in the habitats, including roadkill, of jaguar habitat in the northwestern- United States was in 1910, the breeding disturbance, habitat fragmentation, most portion of its range (Sanderson and habitat for jaguars in the United States changes in prey numbers or Fisher 2013, pp. 5, 6, Appendix 2). is not clearly understood. Further, while distribution, and increased access for Based on a visual analysis of the some assessment of breeding habitat has legal or illegal harvest (Menke and frequency of jaguar observations at been conducted in Mexico, this habitat Hayes 2003, p. 12; Colchero et al. 2010, different elevations within the is different than the habitat in the entire). Studies have also shown that northwestern-most portion of the United States. Therefore we are not able jaguars selectively use large areas of species’ range, the technical subgroup of to identify any additional habitat relatively intact habitat away from the Jaguar Recovery Team determined features needed for purposes of certain forms of human influence. Zarza that areas above 2,000 m (6,562 ft) did reproduction, beyond those habitat et al. (2007, pp. 107, 108) report that not provide jaguar habitat, as only 3.3 features already identified. towns and roads had an impact on the percent (15 of 453) of the observations spatial distribution of jaguars in the utilized in the most recent jaguar habitat Habitats That Are Protected From Yucatan peninsula, where jaguars used modeling effort occurred above this Disturbance or Are Representative of the areas located more than 6.5 km (4 mi) elevation (Sanderson and Fisher 2013, Historical, Geographical, and Ecological from human settlements and 4.5 km (2.8 pp. 19, 29; note that p. 19 incorrectly Distributions of a Species mi) from roads. In the State of Mexico, states 20 observations above 2,000 m Human populations can impact Mexico, Monroy-Vilchis et al. (2008, p. (6,562 ft) instead of 15, and Table 1.3 on jaguars directly by killing individuals 535) report that one male jaguar p. 13 incorrectly states 452 jaguar through hunting, poaching, or occurred with greater frequency in areas observations total instead of 453). In the depredation control, as well as relatively distant from roads and human most recent habitat model for the jaguar indirectly through disturbance of populations. In some areas of western in the proposed Northwestern Recovery normal biological activities, loss of Mexico, however, jaguars (both sexes)

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have frequently been recorded near and 2013, pp. 33–42) include a Human features that provide for a species’ life- human settlements and roads (Nu´ n˜ ez Influence Index (HII) criterion history processes and are essential to 2011, pers. comm.). In Marismas developed by the Wildlife Conservation the conservation of the species. Nacionales, Nayarit, a jaguar den was Society (WCS) and Center for Based on our current knowledge of recently located very close to an International Earth Science Information the physical or biological features and agricultural field, apparently 1 km (0.6 Network (CIESIN) at the Socioeconomic habitat characteristics required to mi) from a small town (Nu´ n˜ ez 2011, Data and Applications Center (SEDAC) sustain the species’ life-history pers. comm.). Jaguar presence is affected at Columbia University (SEDAC 2012, p. processes, we determine that the in different ways by various human 1). Using procedures developed by primary constituent elements specific to activities; however, direct persecution Sanderson (2002, as described in jaguars are: likely has the most significant impact. SEDAC 2012, pp. 1–2), WCS and CIESIN Expansive open spaces in the Because jaguars are secretive animals combined scores for eight input layers southwestern United States of at least and generally tend to avoid highly (human population density per km2, 100 km2 (38.6 mi2) in size which: disturbed areas (Quigley and Crawshaw railroads, major roads, navigable rivers, (1) Provide connectivity to Mexico; 1992, entire; Hatten et al. 2005, p. 1025), coastlines, stable nighttime lighting, (2) Contain adequate levels of native human density was a factor considered urban polygons, and land cover) to prey species, including deer and in jaguar habitat modeling exercises for calculate a composite HII for 1-km2 (0.4- javelina, as well as medium-sized prey Arizona (Hatten et al. 2005, p. 1025) and mi2) grid cells (pixels) worldwide. such as coatis, skunks, raccoons, or New Mexico (Menke and Hayes 2003, These values could range from 0 to 64, jackrabbits; pp. 9–13; Robinson et al. 2006, pp. 10, with 0 representing no human influence (3) Include surface water sources 15, 18–20), and the habitat models and 64 representing the maximum available within 20 km (12.4 mi) of each developed by Sanderson and Fisher human influence possible using all 8 other; (2011, pp. 5–11 and 2013, entire) for the measures of human presence. (4) Contain from greater than 1 to 50 northwestern Mexico and the U.S.- In the most recent version of the percent canopy cover within Madrean Mexico borderlands area. Hatten et al. habitat model (version 13), Sanderson evergreen woodland, generally (2005, p. 1025) excluded areas within and Fisher (2013, pp. 20, 34) analyzed recognized by a mixture of oak (Quercus city boundaries, higher density rural the HII preferred by jaguars in the spp.), juniper (Juniperus spp.), and pine areas visible on satellite imagery, and Jalisco Core Area (the southernmost part (Pinus spp.) trees on the landscape, or agricultural areas from their Arizona of the Northwestern Recovery Unit) semidesert grassland vegetation habitat model, as recommended by separately from the HII in all other areas communities, usually characterized by jaguar experts. All of the jaguar (note that p. 15 of this report incorrectly locations used in their model fell states that the Sinaloa Secondary Area Pleuraphis mutica (tobosagrass) or outside of these areas, indicating jaguars is included with the Jalisco Core Area Bouteloua eriopoda (black grama) along are not found in highly developed or in this analysis) to recognize that jaguars with other grasses; disturbed areas (Figure 6, p. 1031). may respond more tolerantly to human (5) Are characterized by Menke and Hayes (2003, pp. 9–13) influence in the south than they do in intermediately, moderately, or highly attempted to evaluate potential jaguar the north. The results of these analyses rugged terrain; habitat in New Mexico using methods indicate that jaguars in the (6) Are below 2,000 m (6,562 feet) in similar to those described in Hatten et southernmost part of the Northwestern elevation; and al. (2005, p. 1025). Because of a lack of Recovery Unit (the Jalisco Core Area) (7) Are characterized by minimal to comparable digital data for New Mexico, seem to inhabit a wider range of HII no human population density, no major they instead created a data layer of road values (less than 30), whereas jaguars roads, or no stable nighttime lighting density per km2 and classified it into throughout the rest of the Northwestern over any 1-km2 (0.4-mi2) area. habitat suitability categories. However, Recovery Unit (including the United Because habitat in the United States is due to the small number of reliable and States) appear to inhabit a narrower at the edge of the species’ northern spatially accurate jaguar occurrence range of HII values (less than 20) range, and is marginal compared to records within New Mexico (a total of (Sanderson and Fisher 2013, pp. 20, 34). known habitat throughout the range, we seven), patterns of habitat use for Therefore, based on this information, have determined that all of the primary jaguars could not be determined from we identify areas in which the HII constituent elements discussed must be their model, and they did not calculated over 1 km2 (0.4 mi2) is less present in each specific area to summarize the road density categories than 20 as an essential component of the constitute critical jaguar habitat in the in which jaguars were found within the physical or biological feature essential United States, including connectivity to State. In the habitat model for New for the conservation of the jaguar in the Mexico (but that connectivity may be Mexico developed by Robinson et al. United States. These areas are provided either through a direct (2006), areas with continuous row crop characterized by minimal to no human connection to the border or by other agriculture, human residential population density, no major roads, or areas essential for the conservation of development in excess of 1 house per 4 no stable nighttime lighting over any 1- the species; see Areas Essential for the ha (10 ac), or industrial areas were not km2 (0.4-mi2) area. Conservation of Jaguars, below). considered jaguar habitat, and were Special Management Considerations or therefore excluded from their model. Primary Constituent Elements for Jaguar Protections Similarly to Menke and Hayes (2003, Under the Act and its implementing entire), patterns of habitat use for regulations, we are required to identify When designating critical habitat, we jaguars could not be determined from the physical or biological features assess whether the specific areas within their model, and they did not essential to the conservation of jaguar in the geographical area occupied by the summarize the human footprint areas occupied at the time of listing, species at the time of listing contain categories in which jaguars were found focusing on the features’ primary features that are essential to the within the State. constituent elements. Primary conservation of the species and which The habitat models developed by constituent elements are those specific may require special management Sanderson and Fisher (2011, pp. 5–11 elements of the physical or biological considerations or protection.

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Jaguar habitat and the features and result in general disturbance to Distributions of the Species’’ section, essential to their conservation are jaguars and degradation of their habitat. above, studies have also shown that threatened by the direct and indirect While current levels of law jaguars selectively use large areas of effects of increasing human influence enforcement activity do not pose a relatively intact habitat away from into remote, rugged areas, as well as significant threat, a substantial increase human influence (Zarza et al. 2007, pp. projects and activities that sever in activity levels could be of concern. 107, 108). Modeling exercises both in connectivity to Mexico. These may We note that some level of law the United States (Menke and Hayes include, but are not limited to: enforcement activity can be beneficial, 2003, entire; Hatten et al. 2005, entire; Significant increases in border-related as it decreases illegal traffic. Significant Robinson et al. 2006, entire) and in activities, both legal and illegal; increases in illegal crossborder activities northwestern Mexico and the U.S.- construction of roadways, power lines, in the designated critical habitat areas Mexico borderlands area (Sanderson or pipelines; construction or expansion could pose a threat to the jaguar, and, and Fisher 2011, pp. 1–11 and 2013, of human developments; mineral therefore, border security actions entire) incorporate low levels of human extraction and mining operations; provide a beneficial decrease in influence when mapping potential military activities in remote locations; crossborder violations and their jaguar habitat in the United States. and human disturbance related to impacts. In summary, special Special management considerations of increased activities in or access to management considerations or the physical and biological feature remote areas. protection of the physical or biological essential to the conservation of the Jaguars in the United States are feature essential to the conservation of jaguar may be needed to alleviate the understood to be individuals dispersing jaguar habitat may be needed to effects on jaguar habitat of new road north from Mexico (perhaps in some alleviate the effects of border-related construction or construction or cases becoming resident in the United activities, allowing for some level of expansion of power line and pipeline States), where the closest breeding permeability so that jaguars may pass projects; human developments; mining population occurs about 210 km (130 through the U.S.-Mexico border. operations; and ground-based military mi) south of the U.S.-Mexico border in Under section 102 of the Illegal activities. Future projects should avoid Sonora near the towns of Huasabas, Immigration Reform and Immigrant (to the maximum extent possible) areas Sahuaripa (Brown and Lo´pez Gonza´lez Responsibility Act, the Secretary of the identified as meeting the definition of 2001, pp. 108–109), and Nacori Chico Department of Homeland Security critical habitat for jaguars, and if (Rosas-Rosas and Bender 2012, pp. 88– (DHS) is authorized to waive laws unavoidable, should be constructed or 89). Therefore, impeding jaguar where the Secretary of DHS deems it carried out to minimize habitat effects. movement from Mexico to the United necessary to ensure the expeditious States would adversely affect the construction of border infrastructure in Areas Essential for the Conservation of Northwestern Recovery Unit’s ability to areas of high illegal entry. As noted Jaguars cyclically expand and contract as jaguar above, we know of no plans to construct As described in the ‘‘Occupied Area populations in that unit recover. additional security fences in the at the Time of Listing’’ section, above, Continuing threats from construction designated critical habitat. However, if we acknowledge that the lack of jaguar of border infrastructure (such as future national security issues require sightings at the time the species was pedestrian fences and roads), as well as additional measures and the Secretary listed as endangered in 1972 (37 FR illegal activities and resultant law of DHS invokes the waiver, review 6476), as well as some expert opinions enforcement response (such as through the section 7 consultation cited in our July 22, 1997, clarifying rule increased human presence, vehicles, process would not be conducted. If DHS (62 FR 39147) (for example, Swank and and lighting), may limit movement of chooses to consult with the Service on Teer 1989), suggest that jaguars in the jaguars at the U.S.-Mexico border activities covered by a waiver, special United States had declined to such an (Service 2007, pp. 23–27; 2008, pp. 73– management considerations would extent by that point as to be effectively 75). The border from the Tohono continue to occur on a voluntary basis. eliminated. Only two undisputed Class O’odham Nation, Arizona, to Construction of roadways, power I records (Table 1 in the ‘‘Class I southwestern New Mexico has a mix of lines, or pipelines (all of which usually Records,’’ above) exist for jaguars pedestrian fence (not permeable to include maintenance roads), between 1962 and 1982, both of which jaguars), vehicle fence (fence designed construction or expansion of human were males killed by hunters. To the to prevent vehicle but not pedestrian developments, mineral extraction and extent that areas described above may entry; it is generally permeable enough mining operations, and military not have been occupied at the time of to allow for the passage of jaguars), operations on the ground can have the listing, we determine that they are legacy (older) pedestrian and vehicle effect of altering habitat characteristics essential to the conservation of the fence, and unfenced segments and increasing human presence in species for the following reasons: (1) (primarily in rugged, mountainous otherwise remote locations. Activities They have demonstrated recent (since areas). Fences designed to prevent the that can permanently alter vegetation 1996) occupancy by jaguars; (2) they passage of humans across the border characteristics, displace native wildlife, contain features that comprise suitable also prevent passage of jaguars. affect sources of water, and/or alter jaguar habitat; and (3) they contribute to However, there is little to no terrain ruggedness, such as construction the species’ persistence in the United impermeable fence in areas designated and mining, may render an area States by allowing the normal as critical habitat, and we do not unsuitable for jaguars. In addition, these demographic function and possible anticipate the construction of activities, as well as military operations range expansion of the proposed impermeable fence in such areas. on the ground in remote areas, bring an Northwestern Recovery Unit, which is Additionally, fences may cause an increase in human disturbance into essential to the conservation of the increase in illegal traffic and subsequent jaguar habitat, potentially fragmenting it species (as discussed in the Jaguar law enforcement activities in areas further. As described in the ‘‘Habitats Recovery Planning in Relation to where no fence exists (such as rugged, Protected from Disturbance or Critical Habitat section, above). mountainous areas). This activity may Representative of the Historical, Therefore, we include them in the limit jaguar movement across the border Geographic, and Ecological critical habitat designation.

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Additionally, as discussed in the moderate tree cover or intermediately to weather events, such as heat waves, Jaguar Recovery Planning in Relation to highly rugged terrain is present. droughts, and floods (Weiss and Critical Habitat and ‘‘Space for Consequently, we are further defining Overpeck 2005, p. 2074; Archer and Individual and Population Growth and areas essential for the conservation of Predick 2008, p. 24). How climate for Normal Behavior’’ sections, above, jaguars as those areas without a Class I change will affect summer precipitation connectivity to Mexico is essential for observation that: (1) Connect an area is less certain, because precipitation the conservation of jaguars. Jaguars in that may have been occupied that is predictions are based on continental- the United States are understood to be isolated within the United States to scale general circulation models that do individuals dispersing from the nearest Mexico, either through a direct not yet account for land use and land core population in Mexico, which connection to the international border cover effects or regional phenomena, includes areas in central Sonora, or through another area that may have such as those that control monsoonal southwestern Chihuahua, and been occupied; and (2) contain low rainfall in the Southwest (Weiss and northeastern Sinaloa (Jaguar Recovery human influence and impact, and either Overpeck 2005, p. 2075; Archer and vegetative cover or rugged terrain. Based Team 2012, p. 21). The closest known Predick 2008, pp. 23–24). Some models on these criteria, we identified three breeding population occurs about 210 predict dramatic changes in subunits outside of areas that may have Southwestern vegetation communities km (130 mi) south of the U.S.-Mexico been occupied that are also essential for as a result of climate change (Weiss and border in Sonora near the towns of the conservation of jaguars in the United Overpeck 2005, p. 2074; Archer and Huasabas, Sahuaripa (Brown and Lo´pez States because they provide Predick 2008, p. 24), especially as ´ Gonzalez 2001, pp. 108–109), and connectivity to Mexico. They include wildfires carried by nonnative plants Nacori Chico (Rosas-Rosas and Bender the southern extent of the Baboquivari (e.g., buffelgrass) potentially become 2012, pp. 88–89). In several of our Mountains, an east-west connection area more frequent, promoting the presence Federal Register documents pertaining between the Santa Rita and Empire of exotic species over native ones (Weiss to the jaguar, including the notice in Mountains and northwestern extent of and Overpeck 2005, p. 2075). which we determined that designating the Whetstone Mountains, and a north- The impact of future drought, which critical habitat was prudent (75 FR south connection area between the may be long-term and severe (Seager et 1741, p. 1743), we discussed the need southern extent of the Whetstone al. 2007, pp. 1183–1184; Archer and to develop and maintain travel corridors Mountains and the Huachuca Predick 2008, entire), may affect jaguar for jaguars between the United States Mountains (including the Mustang habitat in the U.S.-Mexico borderlands and Mexico to enable a few, possibly Mountains). area, but the information currently resident individuals to persist north of available on the effects of global climate Climate Change the international border. Therefore, we change and increasing temperatures conclude that maintaining travel The degree to which climate change does not make sufficiently precise corridors to Mexico is essential for the will affect jaguar habitat in the United estimates of the location and magnitude conservation of jaguars in the States is uncertain, but it has the of the effects. We do not know whether Northwestern Recovery Unit, and, potential to adversely affect the jaguar the changes that have already occurred therefore, for the species as a whole. within the next 50 to 100 years (Jaguar have affected jaguar populations or Recovery Team 2012, p. 32). Climate As we discussed under ‘‘Space for distribution, nor can we predict how the change will be a particular challenge for Individual and Population Growth and species will adapt to or be affected by biodiversity because the interaction of the type and degree of climate changes for Normal Behavior,’’ above, describing additional stressors associated with these areas of connectivity within the forecast. We are not currently aware of climate change and current stressors any climate change information specific United States is difficult because of a may push species beyond their ability to lack of information about the features to the habitat of the jaguar that would survive (Lovejoy 2005, pp. 325–326). indicate what areas may become these areas encompass. However, in The synergistic implications of climate important to the species in the future. some areas there may be a level of change and habitat fragmentation are Therefore, we are unable to determine connectivity to Mexico that could be the most threatening facet of climate what additional areas, if any, may be provided because these areas contain change for biodiversity (Hannah and appropriate to include in the final some, but not all, of the PCEs described Lovejoy 2005, p. 4). Current climate critical habitat designation for this above. In the 2011 jaguar habitat model change predictions for terrestrial areas species specifically to address the developed for northwestern Mexico and in the Northern Hemisphere indicate effects of climate change. the U.S.-Mexico borderlands area, warmer air temperatures, more intense Sanderson and Fisher (2011, p. 11) precipitation events, and increased Criteria Used To Identify Critical described how low human influence is summer continental drying (Field et al. Habitat perhaps the most important feature 1999, pp. 1–3; Hayhoe et al. 2004, p. As required by section 4(b)(2) of the defining jaguar habitat, as jaguars most 12422; Cayan et al. 2005, p. 6; Act, we use the best scientific data often avoid areas with too much human Intergovernmental Panel on Climate available to designate critical habitat. pressure. Furthermore, their model Change (IPCC) 2007, p. 1181). Climate We reviewed available information and described a level of uncertainty change may lead to increased frequency supporting data that pertains to the regarding jaguar use of areas with and duration of severe storms and habitat requirements of the jaguar. Much moderate tree cover and intermediate to droughts (Golladay et al. 2004, p. 504; of this information is compiled in the high ruggedness, as jaguars could McLaughlin et al. 2002, p. 6074; Cook Recovery Outline for the Jaguar (Jaguar potentially be found in areas meeting et al. 2004, p. 1015). Recovery Team 2012, entire), Digital only one of these habitat qualities. The current prognosis for climate Mapping in Support of Recovery Therefore, we have determined the most change impacts in the American Planning for the Northern Jaguar report likely areas providing connectivity from Southwest includes fewer frost days; (Sanderson and Fisher 2011, pp. 1–11), occupied areas in the United States to warmer temperatures; greater water and Jaguar Habitat Modeling and Mexico are those in which the human demand by plants, animals, and people; Database Update report (Sanderson and influence is low, and either or both and an increased frequency of extreme Fisher 2013, entire), which we regard as

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the best available information for the biological feature described above (see comprehensive, consistent data jaguar and its habitat needs in the below for the steps we followed to regarding prey distribution across northern portion of its range. A delineate critical habitat boundaries). Arizona and New Mexico is lacking. complete list of information sources is Therefore, occupied areas may include Therefore, we relied on the best available in our Literature Cited located the Baboquivari, Quinlan, Coyote, information that is readily available on http://www.regulations.gov at Docket Pajarito, Atascosa, Tumacacori, from the Arizona Game and Fish No. FWS–R2–ES–2012–0042 and at the Patagonia, Canelo Hills, Huachuca, Department (Hunt Arizona 2012 field office responsible for the Grosvenor Hills, Santa Rita, Empire, Edition, available at: http:// designation (see FOR FURTHER Whetstone, and Peloncillo Mountains of www.azgfd.gov/regs/ INFORMATION CONTACT above). Arizona, and the Peloncillo and San HuntArizona2012.pdf) and the New In accordance with the Act and our Luis Mountains of New Mexico. Mexico Department of Game and Fish implementing regulations at 50 CFR All undisputed Class I records of (Harvest Information, available at: 424.12(b), we review available jaguars documented in the United States http://www.wildlife.state.nm.us/ information pertaining to the habitat since 1962 have been within the recreation/hunting/). requirements of the species and identify aforementioned mountain ranges, with Using this information, we occupied areas at the time of listing that the following two exceptions. We are determined that white-tailed deer and contain the features essential to the not including the Dos Cabezas javelina (the preferred prey of the jaguar conservation of the species. If, after Mountains in Arizona (one male jaguar in the northwesternmost part of its identifying occupied areas, a killed in 1986) as critical habitat range) have been present in each critical determination is made that those areas because, while this mountain range habitat unit (described in Final Critical are inadequate to ensure conservation of contains some of the primary Habitat Designation, below) in Arizona the species, in accordance with the Act constituent elements of the physical or for at least 50 years, and have been and our implementing regulations at 50 biological feature required for critical successfully hunted in each hunt unit CFR 424.12(e), we then consider habitat, by itself it is not of an adequate 2 2 overlapping jaguar critical habitat for whether designating additional areas— size (100 km (38.6 mi )) to meet the the same period of time (Game outside those currently occupied—are expansive open spaces requirement. Management Units 30A, 34A, 34B, 35A, essential for the conservation of the Additionally, the 1971 record of a male 35B, 36A, 36B, and 36C). Historical species. We are designating critical jaguar killed by hunters was along the harvest information from New Mexico is habitat in areas within the geographical Santa Cruz River, not within a mountain not as readily available; however, based area occupied by the species at the time range. As described above under ‘‘Space on the most recent harvest information, of listing in 1972. While we understand for Individual and Population Growth white-tailed deer and javelina are there may be alternative explanations as and for Normal Behavior,’’ this is the available in Unit 5 of jaguar critical to whether or not areas were occupied only record found in a valley bottom habitat (Game Management Unit 27), at the time the jaguar was listed, we are since the species was listed, and likely and are likely available in Unit 6 (both required to make an administrative represents a jaguar moving between described in Final Critical Habitat decision regarding occupancy status for areas of higher quality habitat found in Designation, below) of jaguar critical purposes of delineating critical habitat the surrounding isolated mountain habitat (Game Management Unit 26; we units and applying the policy as ranges. Therefore, because we are can determine that javelina have been described in the Act. Based on our unable to describe or delineate the analyses as discussed under the Areas features of areas connecting mountain successfully harvested in this Game Essential for the Conservation of ranges in the United States due to a lack Management Unit, but this particular Jaguars, above, it is our determination of information, this record does not fall unit lumps all deer together, so we are that the lands described were occupied within or near the physical or biological unable to distinguish hunt success at the time of listing, and thus are feature described above. between mule deer and white-tailed described in the unit descriptions, We are also designating specific areas deer). Therefore, while we were unable below, as being occupied. However, without a Class I observation outside the to map prey distribution within Arizona these same areas are also considered geographical area that may have been and New Mexico, we believe adequate essential, based on our analysis, above. occupied by the species at the time of levels of prey are available, and have We also are designating specific areas listing. These areas provide connectivity been available for at least 50 years in without a Class I observation outside the to Mexico, or to another area that may Arizona. geographical area that may have been have been occupied that provides Areas (also called polygons) that were occupied by the species at the time of connectivity to Mexico (see Areas adjacent to each other (for example, listing. These subunits provide Essential for the Conservation of touching at corners) were merged into connectivity between subunits that may Jaguars, above), because such areas are one polygon. We then selected polygons have been occupied and Mexico because essential for the conservation of the containing at least one undisputed Class we have determined that such areas are species. I record of a jaguar from 1962 through essential for the conservation of the We delineated (mapped) critical September 11, 2013 (Table 1 in the species. habitat boundaries using the following ‘‘Class I Records’’ section, above). We As discussed above, we are defining steps: also selected polygons that fell partially the areas that may be occupied by (1) We mapped areas containing PCEs or entirely within 1 km (0.4 mi) of these jaguars to include rugged mountain 3, 4, 5, and 7 as determined from GIS polygons because most of the GIS ranges in southeastern Arizona and data on water availability, vegetation datasets we used were of a 1-km2 (0.4- extreme southwestern New Mexico: (1) community, tree cover, ruggedness, and mi2) resolution (pixel size), and, In which an undisputed Class I record human influence (for a list of data therefore, we determined that this was has been documented (see Table 1 in the sources, see our response to comment the distance within which some ‘‘Class I Records’’ section, above) 63 in the Summary of Comments and mapping error may have occurred. If the between 1962 and the present Recommendations section). We did not area within the selected polygons did (September 11, 2013), and (2) that use data describing distribution of not meet the minimum size criterion of currently contain the physical or native prey to map areas because 100 km2 (38.6 mi2) when added

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together, we removed those polygons Therefore, we are designating six also essential for the conservation of from further consideration. units based on sufficient elements of the jaguars in the Northwestern Recovery We placed a 1-km (0.4-mi) buffer essential physical or biological feature Unit and, therefore, for the species as a around the remaining polygons to being present to support jaguar life- whole (see Areas Essential for the account for mapping error, but did not history processes. The occupied Conservation of Jaguars, above). apply this buffer to areas in which the mountain ranges within the units The critical habitat designation is vegetation community was other than contain all of the identified elements of defined by the map or maps, as Madrean evergreen woodland or the physical or biological feature modified by any accompanying semidesert grassland, or areas in which necessary for jaguars. The unoccupied regulatory text, presented at the end of the HII was 20 or more (see ‘‘Habitats areas denoted as Subunits 1b, 4b, and 4c Protected from Disturbance or are essential for the conservation of the this document in the rule portion. We Representative of the Historical, species, as they provide the jaguar include more detailed information on Geographic, and Ecological connectivity with Mexico within the the boundaries of the critical habitat Distributions of the Species,’’ above). Northwestern Recovery Unit. designation in the preamble of this The vegetation community data we used When determining critical habitat document. We will make the were not mapped at a 1-km2 (0.4-mi2) boundaries within this final rule, we coordinates or plot points or both on resolution, and, therefore, we made every effort to avoid including which each map is based available to determined the 1-km (0.4-mi) buffer did developed areas such as lands covered the public on http:// not apply to this dataset. Our rationale by buildings, pavement, and other www.regulations.gov at Docket No. for ensuring only areas in which the HII structures because such lands lack the FWS–R2–ES–2012–0042, and at the was less than 20 (as described in the physical or biological feature necessary field office responsible for the ‘‘Habitats Protected from Disturbance or for jaguars. The scale of the maps we designation (see FOR FURTHER Representative of the Historical, prepared under the parameters for INFORMATION CONTACT above). Geographic, and Ecological publication within the Code of Federal Distributions of the Species’’ section, Regulations may not reflect the Final Critical Habitat Designation above) were included in the designation exclusion of such developed lands. Any We are designating 6 units as critical was based on Sanderson and Fisher such lands inadvertently left inside habitat for the jaguar. The critical (2011, p. 11), in which they described critical habitat boundaries shown on the habitat areas described below constitute low human influence as being essential maps of this final rule have been our best assessment at this time of areas to the jaguar; we, therefore, did not excluded by text in the rule and are not that meet the definition of critical include any areas in which this PCE was designated as critical habitat. Therefore, habitat. Those 6 units are: (1) absent because of its importance in a Federal action involving these lands Baboquivari Unit divided into subunits describing jaguar habitat. We also will not trigger section 7 consultation removed areas above 2,000 m (6,562 ft) with respect to critical habitat and the (1a) Baboquivari-Coyote Subunit, (PCE 6). Small areas of 1 km2 (0.4 mi2) requirement of no adverse modification including the Northern Baboquivari, or less (our tolerance buffer as described unless the specific action would affect Saucito, Quinlan, and Coyote above) that were excluded within the the physical or biological feature in the Mountains, and (1b) the Southern polygons were then included, as these adjacent critical habitat. Baboquivari Subunit; (2) Atascosa Unit, areas were of a size in which a mapping Based on our analyses of areas as both including the Pajarito, Atascosa, and error could have occurred. For the same occupied and unoccupied (but essential Tumacacori Mountains; (3) Patagonia reason, we also removed small areas of for the conservation of the species), we Unit, including the Patagonia, Santa 1 km2 (0.4 mi2) or less (our tolerance are designating critical habitat lands Rita, Empire, and Huachuca Mountains, buffer as described above) around the that we have determined may have been and the Canelo and Grosvenor Hills; (4) edges of the polygons if, due to the steps occupied at the time of listing and Whetstone Unit, divided into subunits described above, they were contain sufficient elements of the (4a) Whetstone Subunit, (4b) Whetstone- disconnected or connected only by physical or biological feature to support Santa Rita Subunit, and (4c) Whetstone- corners. life-history processes essential for the Huachuca Subunit; (5) Peloncillo Unit, (2) If a polygon described in step 1, conservation of the species and lands including the Peloncillo Mountains both above, was not connected to Mexico, we outside of the geographical area that in Arizona and New Mexico; and (6) selected and added areas containing low may have been occupied at the time of San Luis Unit, including the northern human influence and impact and either listing that we have determined are also extent of the San Luis Mountains at the or both vegetative cover or rugged essential. In our analysis we also New Mexico-Mexico border. Table 2 terrain to connect these areas directly to evaluated the areas we consider lists both the unoccupied units and Mexico or to another occupied area occupied at the time of listing and those that may have been occupied at connected directly to Mexico. determined that these same areas are the time of listing.

TABLE 2—OCCUPANCY OF JAGUAR BY DESIGNATED CRITICAL HABITAT UNITS

Occupied at Unit time of listing

1—Baboquivari Unit: 1a—Baboquivari-Coyote Subunit: Coyote Mountains Yes. Quinlan Mountains Yes. Saucito Mountains Yes. Northern Baboquivari Mountains Yes. 1b—Southern Baboquivari Subunit: Southern Baboquivari Mountains Connection No. 2—Atascosa Unit:

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TABLE 2—OCCUPANCY OF JAGUAR BY DESIGNATED CRITICAL HABITAT UNITS—Continued

Occupied at Unit time of listing

Tumacacori Mountains Yes. Atascosa Mountains Yes. Pajarito Mountains Yes. 3—Patagonia Unit: Empire Mountains Yes. Santa Rita Mountains Yes. Grosvenor Hills Yes. Patagonia Mountains Yes. Canelo Hills Yes. Huachuca Mountains Yes. 4—Whetstone Unit: 4a—Whetstone Subunit: Whetstone Mountains Yes. 4b—Whetstone-Santa Rita Subunit: Whetstone-Santa Rita Mountains Connection No. 4c—Whetstone-Huachuca Subunit: Whetstone-Huachuca Mountains Connection No. 5—Peloncillo Unit: Peloncillo Mountains (Arizona and New Mexico) Yes. 6—San Luis Unit: San Luis Mountains (New Mexico) Yes.

The approximate area of each critical habitat unit is shown in Table 3.

TABLE 3—DESIGNATED CRITICAL HABITAT UNITS FOR JAGUAR

Federal State Tribal Private Total Unit or subunit Ha Ac Ha Ac Ha Ac Ha Ac Ha Ac

1a—Baboquivari-Coyote Subunit 4,396 10,862 9,239 22,831 0 0 3,290 8,130 16,925 41,823 1b—Southern Baboquivari Subunit ...... 624 1,543 6,157 15,213 0 0 1,843 4,555 8,624 21,312 2—Atascosa Unit ...... 53,807 132,961 2,296 5,672 0 0 2,522 6,231 58,625 144,865 3—Patagonia Unit...... 101,354 250,452 11,847 29,274 0 0 29,046 71,775 142,248 351,501 4a—Whetstone Subunit...... 16,066 39,699 5,445 13,455 0 0 3,774 9,325 25,284 62,479 4b—Whetstone-Santa Rita Subunit ...... 532 1,313 4,612 11,396 0 0 0 0 5,143 12,710 4c—Whetstone-Huachuca Subunit ...... 1,350 3,336 2,981 7,366 0 0 3,391 8,379 7,722 19,081 5—Peloncillo Unit...... 28,393 70,160 7,861 19,426 0 0 5,317 13,138 41,571 102,724 6—San Luis Unit ...... 0 0 0 0 0 0 3,122 7,714 3,122 7,714

Grand Total...... 206,522 510,326 50,437 124,633 0 0 52,304 129,247 309,263 764,207 Note: Area sizes may not sum due to rounding.

We present brief descriptions of all There are four small areas of land that a privately owned area within the units, and reasons why they meet the are disconnected from the main section boundaries of the Tohono O’odham definition of critical habitat for jaguar, of this subunit. One is a privately Nation. Land ownership within the below. owned area within the boundaries of the entire unit includes approximately Tohono O’odham Nation approximately 4,396 ha (10,862 ac) of Federal lands; Unit 1: Baboquivari Unit 4 km (2.5 mi) west of the main, largest 9,239 ha (22,831 ac) of Arizona State Subunit 1a—Baboquivari-Coyote section and approximately 22.7 km lands; and 3,290 ha (8,130 ac) of private Subunit: Subunit 1a consists of 16,925 (14.1 mi) south of State Highway 86. lands. The Federal land is administered ha (41,823 ac) in the northern The second largest area is almost by the Service and Bureau of Land Baboquivari, Saucito, Quinlan, and directly north of the main, largest Management. We consider the Coyote Mountains in Pima County, section and is primarily Federally and Baboquivari-Coyote Subunit occupied at Arizona. The main, larger section of this State owned, with a small amount of the time of listing (37 FR 6476; March subunit is generally bounded by the private land included within the 30, 1972) (see ‘‘Occupied Area at the eastern boundary of the Tohono boundary. Between this area and the Time of Listing’’ section, above), and it O’odham Nation to the west and north, main, largest section is a small piece of may be currently occupied, based on the western side of the Altar Valley to State land included within the jaguar photos from 1996 and from 2001– the east, and up to and including Leyvas boundary. The last area is north and 2008 (see Table 1 in the ‘‘Class I Canyon and Three Peaks to the south. slightly west of the main section, and is Records’’ section, above). It contains all

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elements of the physical or biological to the south. Land ownership within the or biological feature essential to the feature essential to the conservation of unit includes approximately 53,807 ha conservation of the jaguar. the jaguar, except for connectivity to (132,961 ac) of Federal lands; 2,296 ha The primary land uses within Unit 3 Mexico. (5,672 ac) of Arizona State lands; and include Federal land management The primary land uses within Subunit 2,522 ha (6,231 ac) of private lands. The activities, border-related activities, 1a include ranching, grazing, border- Federal land is administered by the grazing, and recreational activities related activities, Federal land Coronado National Forest and Bureau of throughout the year, including, but not management activities, and recreational Land Management. We consider the limited to, hiking, camping, birding, activities throughout the year, Atascosa Unit occupied at the time of horseback riding, picnicking, including, but not limited to, hiking, listing (37 FR 6476; March 30, 1972) sightseeing, and hunting. Activities that birding, horseback riding, and hunting. (see ‘‘Occupied Area at the Time of may require special management may Activities that may require special Listing’’ section, above), and it may be include, for example, habitat clearing, management may include, for example, currently occupied based on multiple the construction of facilities, expansion habitat clearing, the construction of photos of two, or possibly three, jaguars of linear projects that may fragment facilities, expansion of linear projects from 2001–2008 (see Table 1 in the jaguar habitat, some fuels-management that may fragment jaguar habitat, some ‘‘Class I Records’’ section, above). It activities, and some prescribed fire. fuels-management activities, and some contains all elements of the physical or Unit 4: Whetstone Unit prescribed fire. biological feature essential to the Subunit 1b—Southern Baboquivari conservation of the jaguar. Subunit 4a—Whetstone Subunit: Subunit: Subunit 1b consists of 8,624 ha The primary land uses within Unit 2 Subunit 4a consists of 25,284 ha (62,479 (21,312 ac) in the southern Baboquivari include Federal land management ac) in the Whetstone Mountains, Mountains in Pima County, Arizona. activities, border-related activities, including connections to the Santa Rita This subunit is generally bounded by grazing, and recreational activities and Huachuca Mountains, in Pima, the eastern boundary of the Tohono throughout the year, including, but not Santa Cruz, and Cochise Counties, O’odham Nation to the west, up to but limited to, hiking, camping, birding, Arizona. Subunit 4a is generally not including Leyvas and Bear Canyons horseback riding, picnicking, bounded by a line running roughly 4 km to the north, the western side of the sightseeing, and hunting. Activities that (2.5 mi) east of Cienega Creek to the Altar Valley to the east, and the U.S.- may require special management may west, a line running roughly 6 km (3.7 Mexico border to the south. There is one include, for example, habitat clearing, mi) south of Interstate 10 to the north, small, privately owned area within the the construction of facilities, expansion Highway 90 to the east, and Highway 82 boundaries of the Tohono O’odham of linear projects that may fragment to the south. Land ownership within the Nation that is disconnected from the jaguar habitat, some fuels-management subunit includes approximately 16,066 main section of this subunit. It is activities, and some prescribed fire. ha (39,699 ac) of Federal lands; 5,445 ha located approximately 1.2 km (0.75 mi) (13,455 ac) of Arizona State lands; and west of the main, largest section and Unit 3: Patagonia Unit 3,774 ha (9,325 ac) of private lands. The approximately 10 km (6.2 mi) north of Unit 3 consists of 142,248 ha (351,501 Federal land is administered by the the U.S.-Mexico border. Land ac) in the Patagonia, Santa Rita, Empire, Coronado National Forest and Bureau of ownership within the unit includes and Huachuca Mountains, as well as the Land Management. We consider the approximately 624 ha (1,543 ac) of Canelo and Grosvenor Hills, in Pima, Whetstone Subunit 4a occupied at the Federal lands; 6,157 ha (15,213 ac) of Santa Cruz, and Cochise Counties, time of listing (37 FR 6476; March 30, Arizona State lands; and 1,843 ha (4,555 Arizona. Unit 3 is generally bounded by 1972) (see ‘‘Occupied Area at the Time ac) of private lands. The Federal land is a line running roughly 3 km (1.9 mi) of Listing’’ section, above), and, based administered by the Service and Bureau east of Interstate 19 to the west; a line on photographs taken in 2011, it may be of Land Management. The Southern running roughly 6 km (3.7 mi) south of currently occupied (see Table 1 in the Baboquivari Subunit provides Interstate 10 to the north; Cienega Creek ‘‘Class I Records’’ section, above). The connectivity to Mexico and was not and Highways 83, 90, and 92 to the east, mountain range within this subunit occupied at the time of listing, but is including the eastern slopes of the contains all elements of the physical or essential to the conservation of the Empire Mountains; and the U.S.-Mexico biological feature essential to the jaguar because it contributes to the border to the south. Land ownership conservation of the jaguar, except for species’ persistence by providing within the unit includes approximately connectivity to Mexico. connectivity to occupied areas. 101,354 ha (250,452 ac) of Federal The primary land uses within Subunit The primary land uses within Subunit lands; 11,847 ha (29,274 ac) of Arizona 4a include Federal land management 1b include ranching, grazing, border- State lands; and 29,046 ha (71,775 ac) of activities, grazing, and recreational related activities, Federal land private lands. The Federal land is activities throughout the year, management activities, and recreational administered by the Coronado National including, but not limited to, hiking, activities throughout the year, Forest, Bureau of Land Management, camping, birding, horseback riding, including, but not limited to, hiking, and National Park Service. We consider picnicking, sightseeing, and hunting. birding, horseback riding, and hunting. the Patagonia Unit occupied at the time Activities that may require special of listing (37 FR 6476; March 30, 1972) management may include, for example, Unit 2: Atascosa Unit based on the 1965 record from the habitat clearing, the construction of Unit 2 consists of 58,625 ha (144,865 Patagonia Mountains (see ‘‘Occupied facilities, expansion of linear projects ac) in the Pajarito, Atascosa, and Area at the Time of Listing’’ section, that may fragment jaguar habitat, some Tumacacori Mountains in Pima and above) and currently occupied based on fuels-management activities, and some Santa Cruz Counties, Arizona. Unit 2 is photos taken from October 2012, prescribed fire. generally bounded by the eastern side of through September 11, 2013, of a male Subunit 4b—Whetstone-Santa Rita San Luis Mountains (Arizona) to the jaguar in the Santa Rita Mountains (see Subunit: Subunit 4b consists of 5,143 ha west, roughly 4 km (2.5 mi) south of Table 1 in the ‘‘Class I Records’’ section, (12,710 ac) between the Empire Arivaca Road to the north, Interstate 19 above). The mountain ranges within this Mountains and northern extent of the to the east, and the U.S.-Mexico border unit contain all elements of the physical Whetstone Mountains in Pima County,

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Arizona. Subunit 4b is generally Canyon Road and the northern immediately adjacent south of the U.S.- bounded by (but does not include): The boundary of the Coronado National Mexico border, and, therefore, this area eastern slopes of the Empire Mountains Forest to the north, the western side of represents a small portion of a much to the west, a line running roughly 6 km the Animas Valley to the east, and the larger area of habitat. (3.7 mi) south of Interstate 10 to the U.S.-Mexico border on the south. Land The primary land uses within Unit 6 north, the western slopes of the ownership within the unit includes include border-related activities, Whetstone Mountains to the east, and approximately 28,393 ha (70,160 ac) of grazing, and some recreational activities Stevenson Canyon to the south. Land Federal lands; 7,861 ha (19,426 ac) of throughout the year, including, but not ownership within the subunit includes Arizona State lands; and 5,317 ha limited to, hiking, horseback riding, and approximately 532 ha (1,313 ac) of (13,138 ac) of private lands. The Federal hunting. Activities that may require Federal lands and 4,612 ha (11,396 ac) land is administered by the Coronado special management may include, for of Arizona State lands. The Whetstone- National Forest and Bureau of Land example, habitat clearing, the Santa Rita Subunit provides Management. We consider the construction of facilities, expansion of connectivity from the Whetstone Peloncillo Unit occupied at the time of linear projects that may fragment jaguar Mountains to Mexico and was not listing (37 FR 6476; March 30, 1972) habitat, some fuels-management occupied at the time of listing, but is (see ‘‘Occupied Area at the Time of activities, and some prescribed fire. essential to the conservation of the Listing’’ section, above), and it may be jaguar because it contributes to the currently occupied based on a track Effects of Critical Habitat Designation species’ persistence by providing documented in 1995 and photographs Section 7 Consultation connectivity to occupied areas. taken in 1996 (see Table 1 in the ‘‘Class Section 7(a)(2) of the Act requires The primary land uses within Subunit I Records’’ section, above). It contains Federal agencies, including the Service, 4b include grazing and recreational all elements of the physical or biological to ensure that any action they fund, activities throughout the year, feature essential to the conservation of authorize, or carry out is not likely to including, but not limited to, hiking, the jaguar. camping, birding, horseback riding, The primary land uses within Unit 5 jeopardize the continued existence of picnicking, sightseeing, and hunting. include Federal land management any endangered species or threatened Subunit 4c—Whetstone-Huachuca activities, border-related activities, species or result in the destruction or Subunit: Subunit 4c consists of 7,722 ha grazing, and recreational activities adverse modification of designated (19,081 ac) between the Huachuca throughout the year, including, but not critical habitat of such species. In Mountains and southern extent of the limited to, hiking, camping, birding, addition, section 7(a)(4) of the Act Whetstone Mountains in Santa Cruz and horseback riding, picnicking, requires Federal agencies to confer with Cochise Counties, Arizona. Subunit 4c sightseeing, and hunting. Activities that the Service on any agency action which is generally bounded by Highway 83, may require special management may is likely to jeopardize the continued Elgin-Canelo Road, and Upper Elgin include, for example, habitat clearing, existence of any species proposed to be Road to the west; Highway 82 to the the construction of facilities, expansion listed under the Act or result in the north; a line running roughly 4 km (2.5 of linear projects that may fragment destruction or adverse modification of mi) west of Highway 90 to the east; and jaguar habitat, some fuels-management proposed critical habitat. up to but not including the Huachuca activities, and some prescribed fire. Decisions by the 5th and 9th Circuit Mountains to the south. Land Courts of Appeals have invalidated our ownership within the subunit includes Unit 6: San Luis Unit regulatory definition of ‘‘destruction or approximately 1,350 ha (3,336 ac) of Unit 6 consists of 3,122 ha (7,714 ac) adverse modification’’ (50 CFR 402.02) Federal lands; 2,981 ha (7,366 ac) of in the northern extent of the San Luis (see Gifford Pinchot Task Force v. U.S. Arizona State lands; and 3,391 ha (8,379 Mountains in Hidalgo County, New Fish and Wildlife Service, 378 F. 3d ac) of private lands. The Federal land is Mexico. Unit 6 is generally bounded by 1059 (9th Cir. 2004) and Sierra Club v. administered by the Coronado National the eastern side of the Animas Valley to U.S. Fish and Wildlife Service et al., 245 Forest and Bureau of Land Management. the west, a line running roughly 1.5 km F.3d 434, 442 (5th Cir. 2001)), and we The Whetstone-Huachuca Subunit (0.9 mi) south of Highway 79 to the do not rely on this regulatory definition provides connectivity from the north, an elevation line at when analyzing whether an action is Whetstone Mountains to Mexico and approximately 1,600 m (5,249 ft) on the likely to destroy or adversely modify was not occupied at the time of listing, east side of the San Luis Mountains, and critical habitat. Under the statutory but is essential to the conservation of the U.S.-Mexico border to the south. provisions of the Act, we determine the jaguar because it contributes to the Land within the unit is entirely destruction or adverse modification on species’ persistence by providing privately owned. We consider the San the basis of whether, with connectivity to occupied areas. Luis Unit occupied at the time of listing implementation of the proposed Federal The primary land uses within Subunit (37 FR 6476; March 30, 1972) (see action, the affected critical habitat 4c include Federal forest management ‘‘Occupied Area at the Time of Listing’’ would continue to serve its intended activities, grazing, and recreational section, above), and it may be currently conservation role for the species. activities throughout the year, occupied based on photographs taken in If a Federal action may affect a listed including, but not limited to, hiking, 2006 (see Table 1 in the ‘‘Class I species or its critical habitat, the camping, birding, horseback riding, Records’’ section, above). Unit 6 responsible Federal agency (action picnicking, sightseeing, and hunting. contains almost all elements of the agency) must enter into consultation physical or biological feature essential with us. Examples of actions that are Unit 5: Peloncillo Unit to the conservation of the jaguar except subject to the section 7 consultation Unit 5 consists of 41,571 ha (102,724 for expansive open space of at least 100 process are actions on State, tribal, ac) in the Peloncillo Mountains in km2 (38.6 mi2). This unit is included local, or private lands that require a Cochise County, Arizona, and Hidalgo because, while by itself it does not Federal permit (such as a permit from County, New Mexico. Unit 5 is generally provide at least 100 km2 (38.6 mi2) of the U.S. Army Corps of Engineers under bounded by the eastern side of the San jaguar habitat in the United States, section 404 of the Clean Water Act (33 Bernardino Valley to the west, Skeleton additional habitat can be found U.S.C. 1251 et seq.) or a permit from the

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Service under section 10 of the Act) or authorized by law). Consequently, section 7 review for effects to the that involve some other Federal action Federal agencies sometimes may need to species itself. (such as funding from the Federal request reinitiation of consultation with Actions with effects to the PCEs or Highway Administration, Federal us on actions for which formal physical and biological feature of jaguar Aviation Administration, or the Federal consultation has been completed, if critical habitat that are discountable, Emergency Management Agency). those actions with discretionary insignificant, or wholly beneficial are Federal actions not affecting listed involvement or control may affect considered not likely to adversely affect species or critical habitat, and actions subsequently listed species or critical habitat and do not require on State, tribal, local, or private lands designated critical habitat. formal consultation if the Service concurs in writing with that Federal that are not federally funded or Determinations of Adverse Effects and authorized, do not require section 7 action agency determination. Examples Application of the ‘‘Adverse of these actions may include some fuels- consultation. Modification’’ Standard As a result of section 7 consultation, management activities, prescribed fire, we document compliance with the Section 4(b)(8) of the Act requires us or closing and re-vegetating roads. requirements of section 7(a)(2) through to briefly evaluate and describe, in any Actions with adverse effects to the our issuance of: proposed or final regulation that PCEs or physical or biological feature in (1) A concurrence letter for Federal designates critical habitat, activities the short term, but that result over the actions that may affect, but are not involving a Federal action that may long term in an improvement in the likely to adversely affect, listed species destroy or adversely modify such function of the habitat to the jaguar or critical habitat; or habitat, or that may be affected by such would likely not constitute adverse (2) A biological opinion for Federal designation. modification of critical habitat either, actions that may affect and are likely to Section 7(a)(2) of the Act requires although due to the adverse effects, adversely affect, listed species or critical Federal agencies to ensure their actions these actions may require formal habitat. do not jeopardize the continued consultation. We anticipate that actions When we issue a biological opinion existence of listed species or destroy or consistent with the stated goals or concluding that a project is likely to adversely modify critical habitat. The recovery actions of the Recovery Outline jeopardize the continued existence of a key factor involved in the destruction/ for the Jaguar (Jaguar Recovery Team listed species and/or destroy or adverse modification determination for 2012, entire) or the future recovery plan adversely modify critical habitat, we a proposed Federal agency action is for the species, once completed, would provide reasonable and prudent whether the affected critical habitat fall into this category. alternatives to the project, if any are would continue to serve its intended Actions that are likely to adversely identifiable, that would avoid the conservation role for the species with affect the PCEs or physical or biological likelihood of jeopardy and/or implementation of the proposed action feature of jaguar critical habitat require destruction or adverse modification of after taking into account any anticipated formal consultation and the preparation critical habitat. We define ‘‘reasonable cumulative effects (Service 2004, in litt. of a biological opinion by the Service. and prudent alternatives’’ (at 50 CFR entire). Activities that may destroy or The biological opinion sets forth the 402.02) as alternative actions identified adversely modify critical habitat are basis for our section 7(a)(2) during consultation that: those that alter the physical or determination as to whether the (1) Can be implemented in a manner biological features to an extent that proposed Federal action is likely to consistent with the intended purpose of appreciably reduces the conservation destroy or adversely modify jaguar the action, value of critical habitat for the jaguar. critical habitat. Some activities may (2) Can be implemented consistent As discussed above, the role of critical adversely affect the PCEs, but not result with the scope of the Federal agency’s habitat is to support life-history needs of in adverse modification of critical legal authority and jurisdiction, the species and provide for the habitat. Activities that may destroy or (3) Are economically and conservation of the species. adversely modify critical habitat are technologically feasible, and In general, there are five possible those that alter the essential physical or (4) Would, in the Director’s opinion, outcomes in terms of how proposed biological feature of the critical habitat avoid the likelihood of jeopardizing the Federal actions may affect the PCEs or to an extent that appreciably reduces the continued existence of the listed species physical or biological feature of jaguar conservation value of the critical habitat and/or avoid the likelihood of critical habitat: (1) No effect; (2) wholly for the listed species. destroying or adversely modifying beneficial effects (e.g., improve habitat As discussed above, the conservation critical habitat. condition); (3) both short-term adverse role or value of jaguar critical habitat is Reasonable and prudent alternatives effects and long-term beneficial effects; to provide areas to support some can vary from slight project (4) insignificant or discountable adverse individuals during transient movements modifications to extensive redesign or effects; or (5) wholly adverse effects. by providing patches of habitat (perhaps relocation of the project. Costs Actions with no effect on the PCEs in some cases with a few resident associated with implementing a and physical or biological feature of jaguars), and as areas for cyclic reasonable and prudent alternative are jaguar critical habitat do not require expansion and contraction of the nearest similarly variable. section 7 consultation, although such core area and breeding population in the Regulations at 50 CFR 402.16 require actions may still have adverse or Northwestern Recovery Unit. Therefore, Federal agencies to reinitiate beneficial effects on the species itself actions that could destroy or adversely consultation on previously reviewed that require consultation. Examples of modify jaguar critical habitat include actions in instances where we have these actions may include grazing, those that would permanently sever listed a new species or subsequently ranching operations, routine border connectivity to Mexico or within a designated critical habitat that may be security activities, or limited critical habitat unit such that movement affected and the Federal agency has recreational activity, which we of jaguars between habitat in the United retained discretionary involvement or anticipate would not result in adverse States and Mexico is eliminated. In control over the action (or the agency’s effects or adverse modification to jaguar general, such activities could include discretionary involvement or control is critical habitat, but may still require building impermeable fences (such as

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pedestrian fences discussed in Special does not constitute destruction or located within the range of the critical Management Considerations or adverse modification of jaguar critical habitat designation for the jaguar to Protection, above) in areas of vegetated habitat. The other is the Hermosa Mine determine if they meet the criteria for rugged terrain or major road but this is only in the planning phase exemption from critical habitat under construction projects (such as new and the Service has not received mine section 4(a)(3) of the Act. The following highways or significant widening of development plans. Consequently, areas are Department of Defense lands existing highways). Activities that may section 7 consultation has not been with completed, Service-approved adversely affect the PCEs (such as initiated. INRMPs within the final critical habitat permanently displacing native prey designation. species, increasing the distance to water Exemptions Approved INRMPs to more than 10 km (6.2 mi), removing Application of Section 4(a)(3) of the Act tree cover, altering rugged terrain, or The Sikes Act Improvement Act of Fort Huachuca—Unit 3 and Subunit 4c, appreciably increasing human presence 1997 (Sikes Act) (16 U.S.C. 670a) Arizona on the landscape), but may not destroy required each military installation that Fort Huachuca is located in Cochise or adversely modify critical habitat includes land and water suitable for the County, in southeast Arizona, about 24 could include habitat clearing, the conservation and management of km (15 mi) north of the border with construction of facilities, or expansion natural resources to complete an Mexico. Fort Huachuca is home to the of linear projects that may fragment Integrated Natural Resources U.S. Army Intelligence Center and the jaguar habitat and reduce the amount of U.S. Army Network Enterprise habitat available but that do not Management Plan (INRMP) by Technology Command (NETCOM)/9th permanently sever essential movement November 17, 2001. An INRMP Army Signal Command. There are between the United States and Mexico integrates implementation of the approximately of 6,421 ha (15,867 ac) of or within a given critical habitat unit. military mission of the installation with At this time, we do not anticipate stewardship of the natural resources critical habitat on Fort Huachuca. activities such as grazing, ranching found on the base. Each INRMP Approximately 6,117 ha (15,115 ac) are operations, or limited recreational includes: in Unit 3, and approximately 304 ha activity would have adverse effects to (1) An assessment of the ecological (752 ac) are in Subunit 4c. Habitat features essential to jaguar jaguar critical habitat, nor do we needs on the installation, including the conservation exist on Fort Huachuca. anticipate activities consistent with the need to provide for the conservation of stated goals or recovery actions of the listed species; Nearly 95 percent of the activities on Recovery Outline for the Jaguar (Jaguar (2) A statement of goals and priorities; Fort Huachuca are military intelligence Recovery Team 2012, entire) or the (3) A detailed description of and communications systems testing future recovery plan for the species management actions to be implemented and training. Other activities on the would constitute adverse modification. to provide for these ecological needs; installation include field-training We also do not anticipate further and exercises, aviation activities, live-fire impermeable fencing being built in (4) A monitoring and adaptive qualification and training, vehicle areas with rugged terrain, as management plan. maneuver training, and administrative technological solutions (such as video Among other things, each INRMP and support activities. Fort Huachuca’s surveillance) for Homeland Security must, to the extent appropriate and military mission is not heavily land- purposes are more likely to be applied applicable, provide for fish and wildlife based. Generally, direct and repeated in these areas. We also are unaware of management; fish and wildlife habitat impacts have been restricted to any plans to expand highways through enhancement or modification; wetland localized areas. Fort Huachuca has an jaguar critical habitat. We are aware of protection, enhancement, and approved INRMP, completed in 2002 two large-scale mining operations. One restoration where necessary to support and updated in 2013 to specifically is the Rosemont Mine that has been fish and wildlife; and enforcement of address the jaguar. Appendix 7 was evaluated within jaguar revised applicable natural resource laws. added to focus on specific benefits of proposed critical habitat (this The National Defense Authorization the INRMP to federally listed species, consultation was completed prior to this Act for Fiscal Year 2004 (Pub. L. 108– including the jaguar. Appendix 7 final rule designating critical habitat). 136) amended the Act to limit areas outlines how INRMP management We have evaluated this project through eligible for designation as critical actions provide conservation benefits the section 7 consultation process, and habitat. Specifically, section 4(a)(3)(B)(i) for the jaguar. These actions include: our determination is that it does not of the Act (16 U.S.C. 1533(a)(3)(B)(i)) ecosystem and hunting management constitute destruction or adverse now provides: ‘‘The Secretary shall not intended to ensure adequate jaguar prey; modification of jaguar critical habitat. designate as critical habitat any lands or water resource protection measures; fire The other is the Hermosa Mine, but this other geographical areas owned or management activities that maintain project is only in the planning phase controlled by the Department of canopy cover; prohibition of recreation and the Service has not received mine Defense, or designated for its use, that at night; briefings on threatened and development plans. Consequently, are subject to an integrated natural endangered species; and a cooperative section 7 consultation has not been resources management plan prepared relationship with the University of initiated. under section 101 of the Sikes Act (16 Arizona’s Wild Cat Research and We are aware of two large-scale U.S.C. 670a), if the Secretary determines Conservation Center. The U.S. Army is mining operations. One is the Rosemont in writing that such plan provides a committed to working closely with the Mine that has been evaluated within benefit to the species for which critical Service and Arizona Game and Fish jaguar revised proposed critical habitat habitat is proposed for designation.’’ Department to continually refine the (this consultation was completed prior We consult with the military on the existing INRMP as part of the Sikes to this final rule designating critical development and implementation of Act’s INRMP review process. Based on habitat). We have evaluated this project INRMPs for installations with listed our review of the INRMP for this through the section 7 consultation species. We analyzed INRMPs military installation, and in accordance process, and our determination is that it developed by military installations with section 4(a)(3)(B)(i) of the Act, we

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have determined that the portion of Unit habitat has been degraded or lost or d. Installing and maintaining all- 3 and Subunit 4c within this where potential exists for improving weather signs along the single-lane dirt installation, identified as meeting the habitat. roads within Huachuca and Garden definition of critical habitat, is subject to (4) Containing greater than 1 percent Canyons, and their tributary canyons the INRMP, and that conservation to 50 percent canopy cover with trails, that inform visitors that the efforts identified in this INRMP will a. Coordinating on prescribed fire and Canyon is home to sensitive species and provide a benefit to the jaguar. fuel management activities in the require visitors to stay on trails and be Therefore, lands within this installation Huachuca Mountains with the U.S. as quiet and unobtrusive as possible; are exempt from critical habitat Forest Service, State Parks, State Lands, e. Ensuring that no seeding/planting designation under section 4(a)(3)(B) of The Nature Conservancy, San Pedro of nonnative grasses or other plants will the Act. National Conservation Area, Audubon occur on the installation that may alter Fort Huachuca’s 2013 INRMP Research Ranch, and private ranchers, fire frequencies in the wildland areas; includes benefits for jaguars and their and as specified in the Fort’s Integrated f. Employing an adaptive management habitat that were not included in their Wildland Fire Management Plan such framework providing natural resources previous INRMP. The INRMP protects that natural fire regimes will eventually management at the ecosystem level. the PCEs, through: be restored; Implementation of these activities on (1) Providing connectivity to Mexico b. Managing invasive species to the Fort is currently conducted in a a. Providing connectivity to Mexico protect natural resources and critical manner that minimizes impacts to through lands owned by the Fort by habitat for threatened and endangered jaguars and their habitat. This military maintaining wildlife-permeable fencing species. installation has an approved INRMP around the perimeter of the Fort; (5) Characterized by intermediately, that provides a benefit to the jaguar, and b. Minimal training and testing moderately, or highly rugged terrain: Fort Huachuca has committed to work occurring in the rugged areas of the No activities occurring or planned to closely with the Service and the State Huachuca Mountains because the vast occur in the mountains affecting or wildlife agency to continually refine majority of training and testing can altering the terrain. their existing INRMP as part of the Sikes effectively be conducted elsewhere (6) Characterized by minimal to no Act’s INRMP review process. (access to the mountains is limited by human population Based on the above considerations, rugged topography and single lane, four- a. Controlling human activity and and in accordance with section wheel drive dirt roads); road/infrastructure development in 4(a)(3)(B)(i) of the Act, we have c. Maintaining large open areas in the potential jaguar habitat (no major roads determined that conservation efforts mountains on the Fort by avoiding occur within the installation); identified in the 2013 INRMP for Fort construction activities in those areas; b. Closing all canyons within the Huachuca provide a benefit to the jaguar d. Developing partnerships to protect Huachuca Mountains to recreational use and its habitat. Therefore, lands subject land and natural resources beyond the between sunset and sunrise (the most to the INRMP for Fort Huachuca, which installation and across administrative active time for jaguars); includes the lands leased from the boundaries; c. Minimizing impacts from field Department of Defense by other parties, i. Obtaining conservation easements training activities by conducting these are exempt from critical habitat on private lands from private activities outside of mountainous areas, designation under section 4(a)(3) of the landowners within the Sierra Vista except for a minimal amount of Act, and we are not including subwatershed (an area of approximately equipment testing along roadsides; approximately 6,117 ha (15,115 ac) of 2 2 6,475 km (2,500 mi ) in size containing d. Providing environmental awareness Unit 3 and approximately 304 ha (752 the Fort, City of Sierra Vista, Huachuca training to Special Forces units that ac) in Subunit 4c for a total of 6,421 ha City, and most of the San Pedro occasionally request conducting (15,867 ac) in this final critical habitat Riparian National Conservation Area) to patrolling training in the mountains to designation because of this exemption. reduce the potential for incompatible minimize their impact on jaguars and land use by buffering agricultural and jaguar habitat; Exclusions undeveloped areas under airspace and e. Maintaining dark skies in Application of Section 4(b)(2) of the Act to manage the regional water table mountainous areas within the adjacent to the San Pedro Riparian installation; Section 4(b)(2) of the Act states that National Conservation Area through the f. Minimizing impacts from low-level the Secretary shall designate and make Army Compatible Use Buffer Program. helicopter and Unmanned Aerial revisions to critical habitat on the basis (2) Containing adequate levels of Systems flights (the predominant types of the best available scientific data after native prey of flights conducted over the Fort) by taking into consideration the economic a. Employing an ecosystem avoiding them over the Huachuca impact, national security impact, and management approach benefiting all Mountains at altitudes below 152 m any other relevant impact of specifying native species, including jaguars and (500 ft) above ground level, except for any particular area as critical habitat. their prey; life, health and safety purposes. The Secretary may exclude an area from b. Coordinating with the Arizona (7) Providing additional ongoing critical habitat if she determines that the Game and Fish Department to limit the activities benefiting the jaguar benefits of such exclusion outweigh the number of deer and javelina hunting a. Cooperating with the University of benefits of specifying such area as part permits issued within the Fort’s Arizona’s Wild Cat Research and of the critical habitat, unless she boundaries to ensure adequate prey are Conservation Center to permit surveying determines, based on the best scientific available for the top predators known to and monitoring for the jaguar on the data available, that the failure to occur on the installation. installation; designate such area as critical habitat (3) Including surface water sources b. Providing threatened and will result in the extinction of the within 20 km (12.4 mi) of one another: endangered species awareness training species. In making that determination, Managing pond and spring habitat on to troops [in safety briefings]; the statute on its face, as well as the the installation for threatened and c. Completing game species legislative history are clear that the endangered species, especially where management plans (including hunting); Secretary has broad discretion regarding

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which factor(s) to use and how much would listing alone because it will Based on the information provided by weight to give to any factor. provide another and alternative focus on entities seeking exclusion, as well as In considering whether to exclude a factors affecting listed species. any additional public comments we particular area from the designation, we Nonetheless, for many species (in at received, we evaluated whether certain identify the benefits of including the least some locations) the outcome of lands in the proposed critical habitat area in the designation, identify the these analyses in terms of any required were appropriate for exclusion from this benefits of excluding the area from the habitat protections will be similar final designation pursuant to section designation, and evaluate whether the because effects to habitat will often also 4(b)(2) of the Act. We are excluding benefits of exclusion outweigh the result in effects to the species. approximately 20,764 ha (51,308 ac) of benefits of inclusion. If the analysis When identifying the benefits of Tohono O’odham Nation land in indicates that the benefits of exclusion exclusion, we consider, among other Subunit 1a and approximately 10,829 ha outweigh the benefits of inclusion, the things, whether exclusion of a specific (26,759 ac) of Tohono O’odham Nation Secretary may exercise her discretion to area due to the continuation, land in Subunit 1b from the final exclude the area only if such exclusion strengthening, or encouragement of designation of critical habitat (see would not result in the extinction of the partnerships, or implementation of a Exclusions Based on Other Relevant species. management plan that provides equal to Impacts below). When identifying the benefits of or more conservation than a critical inclusion for an area, we consider the habitat designation would provide. Exclusions Based on Economic Impacts additional regulatory benefits that area In the case of the jaguar, the benefits Under section 4(b)(2) of the Act, we would receive from the protection from of critical habitat include public consider the economic impacts of adverse modification or destruction as a awareness of jaguar presence and the specifying any particular area as critical result of actions with a Federal nexus; importance of habitat protection, and in habitat. In order to consider economic the educational benefits of mapping cases where a Federal nexus exists, impacts, we prepared a draft economic essential habitat for recovery of the increased habitat protection for the analysis of the proposed critical habitat listed species; and any benefits that may jaguar due to the protection from designation and related factors (78 FR result from a designation due to State or adverse modification or destruction of 39237; July 1, 2013). The draft economic Federal laws that may apply to critical critical habitat. In practice, a Federal analysis, dated May 2013, was made habitat. nexus exists primarily on Federal lands available for public review from July 11, The principal benefit of including an or for projects undertaken, permitted, or 2013, through August 9, 2013 (78 FR area in a critical habitat designation is funded by Federal agencies. Since 39237; July 1, 2013), and again from the requirement for Federal agencies to jaguars were listed in 1972, we have had August 29, 2013, through September 13, ensure actions they fund, authorize, or no projects on privately owned lands 2013 (78 FR 53390; August 29, 2013). carry out are not likely to result in the that had a Federal nexus to trigger Following the close of the comment destruction or adverse modification of formal consultation under section 7 of period, a final analysis (dated January any designated critical habitat, the the Act. On Federal lands, we have been 15, 2014) of the potential economic regulatory standard of section 7(a)(2) of consulting with Federal agencies on effects of the designation was developed the Act under which consultation is their effects to jaguar since jaguars were taking into consideration the public completed. Federal agencies must also listed. comments and any new information (IEc consult with us on actions that may When we evaluate the existence of a 2014). affect a listed species to ensure their conservation plan when considering the The intent of the final economic proposed actions are not likely to benefits of exclusion, we consider a analysis is to quantify the economic jeopardize the continued existence of variety of factors, including but not impacts of all potential conservation such species. The analysis of effects to limited to, whether the plan is finalized; efforts for the jaguar; some of these costs critical habitat is a separate step and how it provides for the conservation of will likely be incurred regardless of different standard from that of the the essential physical or biological whether we designate critical habitat. effects to the species. Therefore, the features; whether there is a reasonable The economic impact of the final difference in outcomes of these two expectation that the conservation critical habitat designation is analyzed analyses represents the regulatory management strategies and actions by comparing scenarios both ‘‘with benefit of critical habitat. contained in a management plan will be critical habitat’’ and ‘‘without critical The two regulatory standards are implemented into the future; whether habitat.’’ The ‘‘without critical habitat’’ different and, significantly, the factors the conservation strategies in the plan scenario represents the baseline for the that are reviewed under each standard are likely to be effective; and whether analysis, considering protections are different as well. The jeopardy the plan contains a monitoring program already in place for the species (e.g., analysis investigates the action’s impact or adaptive management to ensure that under the Federal listing and other to survival and recovery of the species the conservation measures are effective Federal, State, and local regulations). with a focus on how the action affects and can be adapted in the future in The baseline, therefore, represents the attributes such as numbers, distribution, response to new information. costs incurred regardless of whether and reproduction of the species. On the After identifying the benefits of critical habitat is designated. The ‘‘with other hand, the adverse-modification inclusion and the benefits of exclusion, critical habitat’’ scenario describes the analysis investigates the action’s effects we carefully weigh the two sides to incremental impacts associated to the designated habitat’s contribution evaluate whether the benefits of specifically with the designation of to recovery with a focus on the exclusion outweigh those of inclusion. critical habitat for the species. The conservation role the habitat plays for If our analysis indicates that the benefits incremental conservation efforts and the listed species. This difference in the of exclusion outweigh the benefits of associated impacts are those not two consultation standards and focus of inclusion, we then determine whether expected to occur absent the designation review, in some instances, will lead to exclusion would result in extinction. If of critical habitat for the species. In different conclusions. Thus, critical exclusion of an area from critical habitat other words, the incremental costs are habitat designations may provide greater will result in extinction, we will not those attributable solely to the benefits to the recovery of a species than exclude it from the designation. designation of critical habitat above and

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beyond the baseline costs; these are the jaguars. Major construction projects $180,000, or $16,000 annualized (2013 costs we consider in the final (such as new highways, significant dollars). designation of critical habitat. The widening of existing highways, or Border Protection—U.S. Customs and analysis looks retrospectively at construction of large facilities or mines) Border Protection (CBP) reports that the baseline impacts incurred since the could sever connectivity within these agency already considers potential species was listed, and forecasts both critical habitat units and subunits and impacts of its operations on jaguar in all baseline and incremental impacts likely could constitute adverse modification. critical habitat units. Under section 102 to occur with the designation of critical Estimated baseline costs range from $2.8 of the Illegal Immigration Reform and habitat. For a further description of the million to $3.9 million in the first 20 Immigrant Responsibility Act, the methodology of the analysis, see years, with a seven and three percent Secretary of the Department of Chapter 2, Framework for the Analysis discount rate, respectively. The total Homeland Security (DHS) is authorized of the economic analysis. potential incremental economic impacts to waive laws where the Secretary of The final economic analysis also for all of the categories in areas DHS deems it necessary to ensure the addresses how potential economic proposed as revised critical habitat over expeditious construction of border impacts are likely to be distributed, the next 20 years range from $4.2 infrastructure in areas of high illegal including an assessment of any local or million to $5.6 million ($370,000 to entry. However, the CBP does not regional impacts of habitat conservation $370,000 annualized), assuming a seven always waive compliance with the ESA and the potential effects of conservation and three percent discount rate, and does engage in section 7 activities on government agencies, respectively. The analysis estimates consultation with the Service. private businesses, and individuals. The future potential administrative impacts The CBP does not currently anticipate final economic analysis evaluates based on the historical rate of that planned activities in critical habitat potential lost economic efficiency consultations on the jaguar in areas areas will cause permanent changes to associated with residential and proposed for critical habitat, as landscape or sever connectivity to commercial development and public discussed in Chapter 2 of the final Mexico. Furthermore, the CBP does not projects and activities, such as economic analysis. A brief summary of anticipate that jaguar critical habitat economic impacts on water the estimated impacts within each will change the outcome of future management and transportation category is provided below. Please refer section 7 consultations regarding jaguar projects, Federal lands, small entities, to the final economic analysis for a and its habitat associated with border and the energy industry. Decision- comprehensive discussion of the operations in critical habitat areas. As makers can use this information to potential impacts. such, quantified incremental costs are assess whether the effects of the limited to administrative costs of Since the jaguar is currently a listed designation might unduly burden a consultation. Incremental costs, which species under the Act, baseline efforts particular group or economic sector. are estimated to include the additional are likely already undertaken to protect Finally, the final economic analysis administrative costs of considering the jaguar. In addition, efforts to protect considers those costs that may occur in critical habitat in consultation, are other endangered and threatened the 20 years following the designation of anticipated to be $17,000, or $1,500 species in the area, and the critical habitat, which was determined annualized. While specific future implementation of general conservation to be the appropriate period for analysis conservation efforts are unknown, we measures by land managers likely also because limited planning information utilize available data on past was available for most activities to provide protection for jaguars. conservation efforts to estimate that CBP forecast activity levels for projects Depending on the discount rate applied, will spend approximately $48,000 per beyond a 20-year timeframe. we estimate that these baseline costs year on jaguar monitoring efforts, as The final economic analysis will range from $2.8 million and $3.9 well as $312,000 per consultation on quantifies economic impacts of jaguar million in the first 20 years, with a other actions. Using the past conservation efforts associated with the seven and three percent discount rate, consultation as a guide to the number of following categories of activity: (1) respectively. On an annualized basis, future actions, we anticipated that in Federal land management; (2) border baseline impacts are likely to range from total, using a seven percent discount protection activities; (3) mining; (4) $240,000 to $250,000 depending on the rate, baseline costs will be $770,000 transportation activities; (5) private discount rate assumption. Additionally, over 20 years, or $68,000 annualized residential or commercial development; many baseline measures that benefit the (2013 dollars), related to approximately (6) military activities; (7) livestock jaguar, such as maintenance of habitat two formal consultations over the next grazing and other activities; (8) Tohono and open space, conservation measures 20 years. Incremental costs, which are O’odham Nation activities; and (9) other for other species, monitoring, and more estimated to include the additional limited activities. Given the secretive are not quantified in this analysis due administrative costs of considering and transient nature of the jaguar, which to a lack of cost data on these actions. critical habitat in consultation, are makes it difficult to determine whether Federal Land Management—The U.S. anticipated to be $17,000, or $1,500 a particular area is used by jaguars, Bureau of Land Management (BLM), annualized (2013 dollars). Federal land managers already take U.S. Forest Service (USFS), U.S. Mining—Incremental project steps to protect the jaguar even without National Park Service (NPS), and modifications beyond what would have critical habitat by consulting under Service land managers in proposed been recommended under the baseline section 7 jeopardy standards. We do not critical habitat areas state that they to avoid jeopardy are generally unlikely, anticipate recommending incremental already consider potential impacts to unless a project is likely to permanently conservation measures to avoid adverse jaguar when conducting activities alter habitat or sever connectivity to modification of critical habitat over and within these areas. As such, quantified Mexico. The Service and a number of above those recommended to avoid costs are limited to administrative costs land managers agree that few changes to jeopardy of the species, except in cases of consultation. Using a seven percent recommendations resulting from where an activity could create a discount rate, baseline costs are consultations in response to critical situation in which a unit of critical $200,000, or $18,000 annualized (2013 habitat designation are expected habitat could become inaccessible to dollars), and incremental costs are because mining activity generally occurs

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in Unit 3, which is considered occupied rather a result of the jaguar being a development activities in the privately by the jaguar. However, to the extent listed species, and, therefore, owned areas designated as jaguar that additional conservation efforts are incremental impacts of the critical critical habitat. While local ranchers do undertaken for critical habitat, estimates habitat designation are largely limited to take advantage of Natural Resources of incremental impacts would be transactional costs. As a result, the Conservation Service (NRCS) programs, understated in the econcomic analysis. incremental impact, economic or from these programs are not expected to play Overall, baseline costs are estimated other relevant factors, of the designation a role in development activities. As at $1.2 million ($110,000 on an on the mine is expected to be minimal. such, future consultations related to annualized basis), of which $66,000 Forecast conservation measures are residential and commercial ($5,800 on an annualized basis) are primarily associated with conservation development activities are not currently administrative impacts. Most of these efforts in the biological opinion issued anticipated in the critical habitat areas. costs are likely to occur as a result of for the Rosemont Mine in October 2013, No incremental impacts of critical baseline conservation measures which includes multiple species in habitat designation on residential or implemented for the protection of the addition to the jaguar. We note that commercial development are forecast. jaguar, such as road-kill monitoring and costs associated with incremental Military—While the jaguar has not the minimization of nighttime lighting; project modifications for the Rosemont recently been documented at Fort however, we are unable to fully quantify Mine are included, to the extent that Huachuca in Unit 3 and Subunit 4c, the those costs. Although they are included cost information was available. In Department of Defense (DOD) is aware in the baseline estimates where addition, incremental costs may be that the species can be present and has possible, some of these baseline associated with conservation measures incorporated the species into its conservation measures are intended to such as restoration of surface springs management planning. Both baseline benefit multiple species, and therefore and revegetation, but information on the and incremental costs are limited to the only a portion of these costs may be incremental costs of these measures was administrative costs of consultation. attributed to conservation of the jaguar. not available. The conference opinion Using a seven percent discount rate, There are two large-scale mining notes that some of these efforts, baseline costs are estimated to be projects proposed in critical habitat Unit including the management of $10,000, or $900 annualized over the 3, the Rosemont Copper Project and the conservation lands, will be undertaken next 20 years (2013 dollars), and Hermosa Project, as well as smaller- to benefit multiple species, in addition incremental costs are $20,000, or $1,700 scale mineral exploration projects. to the jaguar. Therefore, these costs may annualized (2013 dollars). Forecast incremental economic impacts overstate the incremental impacts of Grazing—In general, most private and associated with mining operations jaguar critical habitat designation alone. State lands in the designated critical include costs of addressing adverse Transportation—Arizona Department habitat areas for the jaguar are currently modification of critical habitat in the of Transportation (ADOT) already used for agricultural production, most context of a section 7 consultation, as considers potential impacts of its commonly for livestock grazing. These well as costs of implementing associated projects on jaguar in the three Arizona activities do not typically require conservation measures. The incremental counties where critical habitat for the Federal permitting or funding for analysis forecasts $3.9 million ($340,000 jaguar is proposed. No major roads operation. However, many ranchers on an annualized basis) in present-value intersect the proposed critical habitat receive some funding from NRCS, often impacts associated with all of the area in New Mexico. While the for conducting range improvements or aforementioned mining activities, of construction of new roads has the conservation activities. While which $22,000 ($1,900 annually) are potential to sever connectivity of jaguar consultations on NRCS activities are administrative costs. habitat, no such projects are planned in rare, several public commenters as well In October 2013, the Service critical habitat areas in the foreseeable as NRCS have noted that some ranchers completed a biological opinion and future. We estimate that approximately may withdraw applications for NRCS conference opinion with the U.S. Forest two formal consultations and seven funding following jaguar critical habitat Service providing Federal approval of technical assistance efforts will occur in order to avoid any potential the Rosemont Mine. The biological related to minor transportation projects obligations related to consultations opinion concluded that the Rosemont over the next 20 years in the critical between NRCS and the Service. Total Mine would not constitute jeopardy to habitat areas. Incremental costs are administrative baseline impacts to the jaguar. A conference opinion was estimated to be $5,900, or $520 grazing and agriculture are $14,000, or also completed to address the impacts of annualized (2013 dollars). Baseline $1,200 annualized over the next 20 the Rosemont Mine to the then- costs are estimated at $390,000, or years (2013 dollars). Incremental costs, proposed critical habitat designation for $34,000 annualized (2013 dollars), including administrative costs of jaguar, which concluded that the mining discounted at seven percent. consultation, are $24,000, or $2,100 operation is not likely to destroy or Private Residential or Commercial annualized over the next 20 years (2013 adversely modify jaguar critical habitat. Development—The vast majority of the dollars). The Rosemont Mine is located in a 129,246 acres of privately owned lands Tribal Activities—Due to the trust unit of critical habitat that is occupied designated as jaguar critical habitat are relationship between the United States by the jaguar. Since the jaguar is rural and fall outside of any major urban and Native Americans, a significant currently a listed species, conservation areas. County planners state that these number of Tribal activities involve efforts are already undertaken to avoid areas are unlikely to be developed in the Federal funding or oversight that serve jeopardy to the species in this area and, foreseeable future, with the exception of as a nexus for section 7 consultation. therefore, the economic impacts are areas around Patagonia, Santa Cruz Therefore, where critical habitat is predominantly captured in the baseline. County, Arizona, (population as of 2010 designated on Tribal lands, many Through our evaluation of impacts of was 3,213 U.S. Census Bureau) in Unit projects will have a Federal nexus for the critical habitat designation, we 3 and on the eastern border of Unit 2. section 7 consultation. Communication determined that most of the However, even if these areas are with the Tohono O’odham Nation did conservation efforts are not a result of developed, there are unlikely to be any not identify any specific, planned the critical habitat designation itself, but Federal permits or Federal funding for projects that may result in section 7

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consultation. We are also not aware of and effective working partnership with Commission, the Animal and Plant any previous section 7 consultations the Tohono O’odham Nation to promote Health Inspection Service, the Federal regarding activities on Tohono O’odham the conservation of listed species, Aviation Administration, the Federal Nation lands. However, given the including the jaguar and its habitat. Emergency Management Agency, and likelihood of a Federal nexus and the Other Activities—Limited other other Federal and non-Federal agencies. proposal to designate unoccupied activities occur within the critical In particular, the proposed Sierrita critical habitat on Tohono O’odham habitat area. We use historical rates of natural gas pipeline may cross the lands, the Tohono O’odham Nation consultation for activities not described designated areas and would have a above to determine future rates of could have incurred incremental Federal nexus through the Federal consultation for other activities. administrative impacts as a result of the Energy Regulatory Commission (FERC). Agencies involved in these designation. Costs associated with one consultations have included: the Due to limited additional conservation fully incremental formal consultation Federal Energy Regulatory Commission efforts resulting from consultation, we considering adverse modification of (FERC), U.S. Department of Energy, the estimate only administrative costs of critical habitat are expected to be Corps, Arizona Department of consultation. Baseline impacts are $20,000, of which $3,500 could be Environmental Quality, the Arizona $180,000, or $16,000 annualized over incurred by the Tohono O’odham Department of Water Resources, the U.S. the next 20 years (2013 dollars), and Nation. However, the Secretary has used Environmental Protection Agency, the incremental impacts are $82,000, or her discretion to exclude the Tohono U.S. Department of Agriculture (USDA), $7,300 annualized over the next 20 O’odham Nation based on our ongoing the Federal Communications years (2013 dollars).

TABLE 5—SUMMARY OF FORECAST INCREMENTAL IMPACTS BY ACTIVITY, 2013 TO 2032 [Seven percent discount rate]

Percent of total Activity Present value Annualized impacts Potential additional impacts

Federal lands management ...... $180,000 $16,000 4.4 Border protection ...... $17,000 $1,500 0 .4 Mining ...... $3,900,000 $340,000 92 If mining companies choose not to proceed to production due to the designation of critical habitat, economic activity that would have been associated with the mines would not occur. Transportation ...... $5,900 $520 0 .1 If mining plans move forward, incremental changes to planned road improvements could occur that themselves could result in conservation efforts for jaguar that are not captured in this analysis. Development ...... $0 $0 0 Military ...... $20,000 $1,700 5.50 Grazing ...... $24,000 $2,100 0.5 It is possible that some ranchers may withdraw applications for NRCS funding following jaguar critical habitat in order to avoid any potential obligations to consult with the Service. Other ...... $82,000 $7,300 .06 Tribal ...... Unquantified Unquantified 0 Administrative or project modification costs associated with future projects on Tohono O’odham Nation lands. Negative economic impacts on the Na- tion’s ability to manage its lands independent of Federal oversight.

Total: ...... $420,000,000 $3,700,000 100 Note: Totals may not sum due to rounding.

Our economic analysis did not Office (see ADDRESSES) or by designation of critical habitat those identify any disproportionate costs that downloading from the Internet at Department of Defense lands with are likely to result from the designation. http://www.regulations.gov. completed INRMPs determined to Consequently, the Secretary is not provide a benefit to the jaguar. Fort Exclusions Based on National Security exerting her discretion to exclude any Huachuca lands, as discussed above in Impacts areas from this designation of critical Application of Section 4(a)(3) of the Act habitat for the jaguar based on economic Under section 4(b)(2) of the Act, we was exempted from designation. There impacts. consider whether there are lands owned are Department of Defense lands on A copy of the final economic analysis or managed by the Department of which the U.S. Customs and Border with supporting documents may be Defense where a national security Protection (CBP) operates along the obtained by contacting the Arizona impact might exist. In preparing this U.S.-Mexico border. However, we Ecological Services Fish and Wildlife final rule, we have exempted from the anticipate no impact on national

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security. Consequently, the Secretary is Tribes on a government-to-government sovereign status and their right to not exercising her discretion to exclude basis. Further, Secretarial Order 3206, manage their own resources. They are any areas from this final designation ‘‘American Indian Tribal Rights, concerned that critical habitat based on impacts on national security. Federal-Tribal Trust Responsibilities, designation on their land would limit and the Endangered Species Act’’ (1997) the Nation’s right to self-determination Exclusions Based on Other Relevant states that (1) critical habitat shall not be and self-governance. The Tohono Impacts designated in areas that may impact O’odham Nation recognizes that their Under section 4(b)(2) of the Act, we tribal trust resources, may impact land contains jaguar habitat, and they consider any other relevant impacts, in tribally owned fee lands, or are used to consider the jaguar to be culturally addition to economic impacts and exercise tribal rights unless it is significant. impacts on national security. We determined essential to conserve a listed (1) Benefits of Inclusion consider a number of factors including species; and (2) in designating critical whether the landowners have developed habitat, the Service shall evaluate and As discussed above under any HCPs or other management plans document the extent to which the Application of Section 4(b)(2) of the Act, for the area, or whether there are conservation needs of the listed species Federal agencies, in consultation with conservation partnerships that would be can be achieved by limiting the the Service, must ensure that their encouraged by designation of, or designation to other lands. actions are not likely to jeopardize the exclusion from, critical habitat. In We have conducted government-to- continued existence of any listed addition, we look at any tribal issues government consultation with the species or result in the destruction or and consider the government-to- Tohono O’odham Nation regarding the adverse modification of any designated government relationship of the United designation of critical habitat for the critical habitat of such species. The States with tribal entities. We also jaguar and continued to do so difference in the outcomes of the consider any social impacts that might throughout the public comment period jeopardy analysis and the adverse occur because of the designation. and during development of this final modification analysis represents the In preparing this final rule, we have designation of critical habitat for the regulatory benefit and costs of critical determined that there are currently no jaguar. We sent notification letters on habitat. Approximately two-thirds of the HCPs or other management plans that May 16, 2012, September 28, 2012, and areas proposed as critical habitat that address jaguar habitat needs. September 3, 2013, to the Tribe occur within the Tohono O’odham Accordingly, the Secretary is not describing the exclusion process under Nation are considered occupied by the exercising her discretion to exclude any section 4(b)(2) of the Act and engaged in jaguar and, therefore, if a Federal action areas from this final designation based conversations with the Tribe about the or permitting occurs, there is a Federal on HCPs or other private management proposal to the extent possible without nexus that would result in consultation plans for jaguars. However, below we disclosing predecisional information. under section 7 of the Act on these evaluate impacts to conservation We continue to work with the Tohono lands whether or not the area is partnerships and consider the O’odham Nation and the BIA on designated as critical habitat. Our government-to-government relationship wildlife and plant-related projects, section 7 consultation history across the of the United States with tribal entities. including recovery efforts for Sonoran jaguar’s range shows that since listing in pronghorn and jaguar, as well as surveys 1972, no formal consultations have Tohono O’odham Nation and monitoring for Pima pineapple occurred for actions conducted on tribal The Tohono O’odham Nation is cactus, jaguar, ocelot, lesser long-nosed lands that resulted in adverse effects to located in southern Arizona on lands in bat, and cactus ferruginous pygmy owls. jaguars. No formal jaguar consultations Pima, Pinal, and Maricopa Counties. We have established and maintain a have been conducted with the BIA, a The Tohono O’odham Nation cooperative working relationship with likely source of Federal funding for encompasses 1,133,120 ha (2,800,000 the Tohono O’odham Nation and the Native American Tribes. Additionally, ac) of land and is divided into 11 BIA when they request review of no informal consultations with agencies districts. The Tohono O’odham Nation’s environmental assessments, seek implementing actions on tribal lands eastern boundary is located technical advice, and conduct have been conducted, although we have approximately 24 km (15 mi) west of the consultations for Tohono O’odham provided technical assistance on some city of Tucson, and the administrative Nation projects. Surveys for any listed projects to the Tohono O’odham Nation. center is in the town of Sells, species are conducted by the BIA or Because of how the Tohono O’odham approximately 88 km (55 mi) southwest Tohono O’odham Nation personnel Nation has chosen to manage and of Tucson. The revised proposed critical prior to implementation of projects. In conserve its lands and the lack of past habitat designation within the Tohono April of 2003, the Tohono O’odham section 7 consultation history, we do O’odham Nation boundaries included Nation and the Service signed a not anticipate that Tribal actions would approximately 20,764 ha (51,308 ac) in Statement of Relationship, which considerably change in the future, and Subunit 1a and approximately 10,829 ha indicates the Tohono O’odham Nation, we do not anticipate a noticeable (26,759 ac) in Subunit 1b, totaling through its Natural Resources increase in section 7. 31,593 ha (78,067 ac) of Madrean Department, will work in close The draft environmental analysis evergreen woodland and semidesert collaboration with the Service to found that the effects of critical habitat grassland. provide effective protections for listed designation on tribal resources are In accordance with the President’s species. expected to be negligible because (1) memorandum of April 29, 1994, As a sovereign entity, the Tohono new consultations based solely on the ‘‘Government-to-Government Relations O’odham Nation seeks to continue to presence of designated critical habitat with Native American Tribal protect and manage their resources are unlikely, because land managers are Governments’’ (59 FR 22951); Executive according to their traditional and already consulting on jaguar throughout Order 13175; and the relevant provision cultural practices. The Tohono O’odham the proposed critical habitat areas; and of the Departmental Manual of the Nation requests that their land be (2) tribal-related activities that currently Department of the Interior (512 DM 2), excluded from the designation of critical occur or are anticipated to occur are not we coordinate with federally recognized habitat for the jaguar due to their likely to require reasonable and prudent

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alternatives developed to avoid adverse critical habitat, the benefits of a critical The Tohono O’odham Nation assists modification. habitat designation are minimized. the Service in monitoring lesser long- Were we to designate critical habitat nosed bats at a maternity roost on tribal (2) Benefits of Exclusion on Tohono O’odham Nation lands, our lands, which is only one of three known section 7 consultation history indicates Benefits of excluding these tribal maternity roosts. By adopting voluntary that there would be few regulatory lands from designated critical habitat conservation measures, the Nation benefits to the jaguar. As described include our deference to tribes to ensures that habitat protection measures above, no formal jaguar-related section 7 develop and implement tribal are implemented. Further, the Nation is consultations have occurred on Tribal conservation and natural resource committed to working with the Service lands. Further, the Tohono O’odham management plans for their lands and to ensure their management meets the Nation and the BIA request review of resources, which includes the jaguar, Service’s requirements of both the environmental assessments, seek and the preservation of our cooperative jaguar and its habitat. These efforts by technical advice, and conduct partnership with the Tohono O’odham the Nation demonstrate their past and consultations for Tohono O’odham Nation. The Service and Tohono ongoing cooperation with the Service, Nation projects. The BIA or Tohono O’odham Nation have established and and their commitment to continue O’odham Nation personnel also conduct maintain a cooperative conservation cooperation with the Service in the surveys for any listed species prior to partnership for the jaguar, as well as future. Further demonstration of the implementation of projects. In addition, several other listed species that occur on Nations commitment to cooperate with the Tohono O’odham Nation already the Nation’s lands. Partnership and the Service is expressed in their manages their lands for the benefit of cooperation have developed through the Statement of Relationship (April 2013) the jaguar and its habitat, adopting Jaguar Recovery Team, to which the to develop and promote communication voluntary conservation measures on the tribe has appointed a representative. In and understanding to preserve tribal western side of Unit 1 to ensure habitat addition, the Nation is developing a sovereignty and accomplish protection measures are implemented. jaguar management plan. While the conservation of natural resources on the For these reasons, it would be highly Service cannot consider draft Nation’s lands. unlikely that any consultation would management plans for exclusions, this The benefit of exclusion is the result in a determination of adverse plan demonstrates the Nations continuance and strengthening of our modification. cooperative conservation partnership ongoing and effective working In addition, during coordination with with the Service and their commitment partnership with the Tohono O’odham the Tohono O’odham Nation, the Nation to jaguar conservation. In addition, the Nation to promote the conservation of indicated that they are not considering Nation has been working with the listed species, including the jaguar and any actions that would destroy or Service to develop a memorandum of its habitat. We consider that adversely modify jaguar critical habitat, agreement to conduct a jaguar survey conservation benefits, as described they are participating on the Jaguar and monitoring study as identified in above, are being provided to the jaguar Recovery Team, and they are the 2012 Jaguar Recovery Outline. and its habitat through our cooperative implementing a jaguar survey and Further, the Nation’s survey and working relationship with the Tohono monitoring project to detect jaguars on monitoring plan is consistent with an O’odham Nation. Tohono O’odham Nation lands on the approved study plan currently under We have established a working west side of the Baboquivari and Coyote contract with the Service to detect relationship with the Tohono O’odham Mountains (within Subunits 1a and 1b). jaguars in the Northwestern Recovery Nation through informal and formal Therefore, the Service also does not Unit over a 3-year period. meetings that offered information anticipate that the Tohono O’odham The Tohono O’odham Nation sharing and technical advice and Nation actions would be likely to result conducts environmental reviews of any assistance about the jaguar and in adverse impacts to the jaguar project occurring on their lands, which recommended conservation measures requiring formal section 7 consultations. includes surveying for threatened and for the species and its habitat. These For these reasons, the beneficial effect of endangered species (such as the Pima proactive actions were conducted in a critical habitat designation on these pineapple cactus) and culturally- accordance with Secretarial Order 3206, lands is minimal. sensitive species (such as the cactus American Indian Tribal Rights, Federal- The principal benefit of any ferruginous pygmy-owl). They are Tribal Trust Responsibilities, and the designated critical habitat is that currently implementing a Tribal Endangered Species Act (June 5, 1997); activities in and affecting such habitat Wildlife Grant to establish baseline data the relevant provision of the require consultation under section 7 of on the occupancy and distribution of Departmental Manual of the Department the Act. Such consultation would flora and fauna in the Baboquivari, of the Interior (512 DM 2); and ensure that adequate protection is Quinlan, and Coyote Mountains with Secretarial Order 3317, Department of provided to avoid destruction or adverse the tribal boundary. They are also Interior Policy on Consultation with modification of critical habitat. confirming known populations and Indian Tribes (December 1, 2011). However, because no formal identifying previously unknown During our communication with the consultations have been conducted on populations of rare, threatened, or Tohono O’odham Nation, we recognized tribal lands or with the BIA, and no endangered species such as the and endorsed their fundamental right to informal consultations with agencies Chiricahua leopard frog, Kearney’s blue provide for tribal resource management implementing actions on tribal lands star, and Mexican spotted owl. Further, activities, including those relating to have been conducted; and because they are identifying species areas of jaguar habitat. Tohono O’odham Nation has chosen to unique biological importance for future The designation of critical habitat on manage and conserve its lands, monitoring, protection, and these tribal lands would be expected to coordinates with the Service prior to management efforts. They are adversely impact our working projects, implements jaguar surveys establishing a model for future relationship with the Tohono O’odham prior to project implementation, and inventory protocols on the remainder of Nation. During our discussions with the does not foresee any actions that would the tribal lands and are providing for the Tohono O’odham Nation and through a destroy or adversely modify jaguar capability to continue such studies. letter received during our first public

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comment period, we were informed that discussed above, these benefits are Summary of Comments and the designation of critical habitat on minimal because they are provided for Recommendations tribal land would be viewed as an through other mechanisms, such as the We requested written comments from intrusion on their sovereign ability to Nation’s commitment to jaguar the public on the proposed designation manage natural resources in accordance conservation and the maintenance of of critical habitat for the jaguar during with their own policies, customs, and effective collaboration and cooperation three comment periods. The first laws. The perceived future restrictions to promote the conservation of the comment period associated with the (whether realized or not) of a critical jaguar and its habitat. publication of the proposed rule opened habitat designation could have a on August 20, 2012, and closed on damaging effect to coordination efforts, Alternatively, the benefits of excluding these areas from critical October 19, 2012 (August 20, 2012, 77 possibly preventing actions that might FR 50214). The second comment period maintain, improve, or restore habitat for habitat for the jaguar are more associated with the proposed revision of the jaguar and other species. To this significant and include the continued critical habitat designation, as well as end, the Tohono O’odham Nation would development and implementation of the associated draft economic analysis prefer to work with us on a government- special management measures and and draft environmental assessment, to-government basis. For these reasons, coordination with the Service for the opened July 1, 2013, and closed on we believe that our working relationship jaguar and other listed species on the August 9, 2013, (July 1, 2013; 78 FR with the Tohono O’odham Nation Tohono O’odham Nation lands. As 39237). A third comment period from would be better maintained and more discussed above, the Service has August 29, 2013, through September 13, effective if they are excluded from the established a cooperative conservation 2013 (August 29, 2013, 78 FR 53390), designation of critical habitat for the partnership with the Nation. was provided to the public for jaguar. The benefits of excluding this Maintaining this relationship is additional review and comment on the area from critical habitat will include important to the continued conservation the continued cooperation and proposed revision of critical habitat of the jaguar, as well as several other designation, as well as the associated development of data-sharing and listed species, that occur on the Nation’s management plans for this and other draft economic analysis and draft lands. Exclusion from critical habitat environmental assessment. We received listed species. If this area is designated designation will allow the Tohono as critical habitat, the government-to- several requests for a public hearing, O’odham Nation to manage their natural which we held on July 30, 2013. We government relationship we have with resources to benefit the jaguar, without the Tohono O’odham Nation will be also contacted appropriate Federal, the perception of Federal Government State, and local agencies; scientific damaged and this situation will affect intrusion because of the designation of the Service’s opportunities to assist the organizations; and other interested critical habitat on their land. This Tohono O’odham Nation with technical parties and invited them to comment on philosophy is also consistent with our reviews, voluntary consultations, and the proposed rule and draft economic data sharing. We view such published policies on Native American analysis and draft environmental opportunities as a substantial benefit natural resource management. The assessment during these comment since we have developed a cooperative exclusion of this area will likely also periods. working relationship with the Tohono provide additional benefits to the We received approximately 33,000 O’odham Nation for the mutual benefit species that would not otherwise be comment letters on this action through of jaguar conservation and other available to encourage and maintain the end of the final comment period. All endangered and threatened species. cooperative working relationships. substantive information provided In addition, there are other listed Therefore, we find that the benefits of during comment periods has either been species and habitat on the Tohono excluding this area from critical habitat incorporated directly into this final O’odham Nation for which conservation designation outweigh the benefits of designation or addressed below. efforts of the tribe are important. We including this area. Furthermore, Comments received were grouped into believe that the tribe is willing to work conservation of other species and their general issues specifically relating to the cooperatively with us and others to habitat provides conservation benefits critical habitat designation for the jaguar benefit other listed species, but only if for the environment as a whole, which and are addressed in the following they view the relationship as mutually is a benefit for the jaguar. summary and incorporated into the final beneficial. Consequently, the rule as appropriate. (4) Exclusion Will Not Result in development of future voluntary Peer Review management actions for other listed Extinction species may be compromised if these In accordance with our peer review As noted above, the Secretary, under tribal lands are designated as critical policy published on July 1, 1994 (59 FR section 4(b)(2) of the Act, may exclude habitat for the jaguar. Thus, a benefit of 34270), we solicited expert opinions areas from the critical habitat excluding these lands would be future from seven knowledgeable individuals designation unless it is determined, conservation efforts that would benefit with scientific expertise that included other listed species. based on the best scientific and familiarity with the species, the commercial data available, that the geographic region in which the species (3) Benefits of Exclusion Outweigh the failure to designate such area as critical occurs, and conservation biology Benefits of Inclusion habitat will result in the extinction of principles. We received responses from The benefits of including the Tohono the species concerned. Jaguars range six of the seven peer reviewers. O’odham Nation in critical habitat are from the southern United States to We reviewed all comments received limited to the incremental benefits South America (Swank and Teer 1989, from the peer reviewers for substantive gained through the regulatory p. 14). Consequently, we have issues and new information regarding requirement to consult under section 7 determined that exclusion of the critical habitat for the jaguar. Most of and consideration of the need to avoid Tohono O’odham Nation from the the peer reviewers (five of the six) adverse modification of critical habitat, critical habitat designation will not generally concurred with our methods and educational awareness. However, as result in the extinction of the jaguar. and conclusions and provided

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additional information, clarifications, habitat would not be expected to the best available scientific data as and suggestions to improve this final increase the degree of threat to the required by the Act. We recognize that rule. One peer reviewer was against species. As such, we no longer find that information currently available for critical habitat designation for the designation of critical habitat for the northern jaguars is scant; therefore, we jaguar, stating that there is no habitat in jaguar is not prudent under our convened a binational Jaguar Recovery the United States at this time that is regulations, and, conversely, determine Team in 2010 to synthesize information critical to the survival of the jaguar as that designation is prudent. Therefore, on the jaguar, focusing on a area a species. Peer reviewer comments are we are required to designate critical comprising jaguars in the northernmost addressed in the following summary habitat for the jaguar to fulfill our legal portion of their range, the proposed and incorporated into the final rule as and statutory obligations. Based on the Northwestern Recovery Unit. The Jaguar appropriate. best scientific data available, the Service Recovery Team comprises members has determined that designation of from the United States and Mexico, and Peer Reviewer Comments critical habitat for the jaguar is prudent is composed of two subgroups: a (1) Comment: There is no habitat in and determinable. technical subgroup and an the United States that is critical to the The first part of section 3(5)(A) of the implementation subgroup. We have recovery of the jaguar or its survival as Act defines critical habitat as areas based jaguar critical habitat on a species. within the geographical area occupied information compiled and produced by Our response: The Service has by the species, at the time it is listed, the Jaguar Recovery Team, to the identified critical habitat for the jaguar on which are found those physical or greatest extent possible. As described in in accordance with the Act and its biological features that are essential to the proposed rule and this final rule, to implementing regulations. Section the conservation of the species. Under the greatest extent possible, we based 4(a)(3)(A) of the Act states that critical the second part of the Act’s definition critical habitat boundaries on the habitat shall be designated for of critical habitat, we can designate physical and biological feature and endangered and threatened species to critical habitat in areas outside the PCEs from the latest jaguar habitat the maximum extent prudent and geographical area occupied by the model produced by the Jaguar Recovery determinable. Designation of critical species at the time it is listed, upon a Team (Sanderson and Fisher 2013, habitat is not prudent when one or both determination that such areas are entire), which we consider the best of the following situations exist (50 CFR essential for the conservation of the commercial and scientific data 424.12(a)(1)): identification of critical species. As discussed in the Background available. The Jaguar Recovery Team habitat can be expected to increase the section of the January 13, 2010, Notice comprises jaguar experts, large-cat degree of a threat or such designation of Determination (75 FR 1741), jaguars experts, and stakeholders from the would not be beneficial to the species. have been found in the United States in United States and Mexico; therefore, we On March 30, 2009, the United States the past and may occur in the United consider that the work produced by the District Court for the District of Arizona States now or in the future. As such, team is the best available scientific and (Court) issued an opinion in Center for physical and biological features that can commercial data and, subsequently, the Biological Diversity v. Kempthorne, CV be used by jaguars occur in the United best information to use in determining 07–372–TUC JMR (Lead) and Defenders States. We have determined that there the physical or biological feature and of Wildlife v. Hall, CV08–335 TUC JMR are geographical areas in the United associated PCEs of jaguar critical (Consolidated) (D. Ariz., Mar. 30, 2009), States that may have been occupied by habitat. Using this information, we have that set aside the Service’s previous not the species at the time it was listed. The determined that the physical or prudent determination and required the Service has determined that data are biological feature of jaguar critical Service issue a new determination on sufficient to determine the physical or habitat and the associated PCEs are whether designation is prudent, stating biological feature and associated PCEs present in the United States, and that that Service regulations at https:// for jaguar critical habitat. We have these areas were occupied at the time of www.federalregister.gov/select-citation/ determined that the essential physical listing. 2010/01/13/50-CFR-424.12 (b) require or biological feature and the associated (2) Comment: Designation of critical that the Service shall focus on the PCEs essential for jaguar conservation habitat is not due to new data, but due principal biological constituent are present in the United States. Critical to litigation. The Service’s previous elements within the defined area that habitat in the United States contributes 1997 and 2006 not prudent are essential to the conservation of the to recovery the jaguar’s persistence and determinations for designating critical species. The court did not order the recovery across the species’ entire range habitat for the jaguar were valid Service to designate critical habitat, by providing small patches of habitat decisions, but the 2010 prudent rather the court ordered the Service to (perhaps in some cases with a few determination to designate critical reevaluate whether designation of resident jaguars), and as areas for cyclic habitat for the jaguar is not valid. The critical habitat for the jaguar is prudent. expansion and contraction of the nearest court did not order the Service to Thus, in responding to the Court’s core area and breeding population in the designate critical habitat, but rather to order, we reevaluated our previous ‘‘not proposed Northwestern Recovery Unit. determine if the physical and biological prudent’’ finding regarding critical Section 4(b)(2) of the Act states that features upon which jaguars depend habitat designation for the jaguar. the Secretary shall designate critical could be found in the United States and, Following a review of the best available habitat, and make revisions thereto, if so, were essential to the conservation information, including the ongoing under subsection (a)(3) on the basis of of the species. conservation programs for the jaguar, the best scientific data available and Our response: The Service has and information and analysis that after taking into consideration the identified critical habitat for the jaguar became available subsequent to the July economic impact, and any other in accordance with the Act and its 12, 2006, not prudent finding, we relevant impact, of specifying any implementing regulations. See our determined that the designation of particular area as critical habitat. It is response to comment number 1 in the critical habitat for the jaguar would be often the case that biological Peer Reviewer Comments above. beneficial to the species. We also information may be lacking for rare (3) Comment: The Service received determined that designation of critical species; however, the Service has used multiple comments related to the

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inclusion of areas north of the proposed sustaining population. As discussed in morphological features (such as critical habitat. Some thought areas the proposed rule and this final rule, the camouflaged appearance) or elusive north of the proposed critical habitat purpose of designating critical habitat in behavioral characteristics (such as along the Mogollon Rim in Arizona, and the United States is to provide areas for nocturnal activity) (Peterson and Bayley to the north and east into the Gila transient jaguars (with possibly a few 2004, pp. 173, 175). This situation highlands in New Mexico are where the residents) to support the nearest presents challenges in determining best biophysical potential for jaguar breeding area to the south in Mexico, whether or not a particular area is recovery in the United States exists. allowing this population to expand and occupied because we cannot be sure Others thought jaguars would use contract, and, ultimately, recover. It is that a lack of detection indicates that the habitat north of the proposed critical our intent that the designation of critical species is absent (Peterson and Bayley habitat, but thought the use and habitat will protect the functional 2004, p. 173). However, the Service importance of these areas were lower integrity of the features essential for used the best available data pertaining given their distance from breeding jaguar life-history requirements for this to jaguar occurrences. See Occupied populations. purpose into the future. Area at the Time of Listing, above, in Our response: Areas north of (5) Comment: The Service should this final rule. designated critical habitat may be usable expand critical habitat to represent all (7) Comment: The Service should by jaguars and may in fact contribute to ecoregions and biotic communities from follow the jaguar habitat modeling the recovery of the species. However, which jaguars in the United States have efforts of Hatten et al. (2005) and these areas do not meet the definition of been extirpated, including portions of Robinson (2006) as a basis for including critical habitat under the Act because California, Texas, and possibly additional areas in these two states. they were neither occupied at the time Louisiana. Hatten et al. (2005) identified 21–30 of listing nor are they considered Our response: Designating all the percent of Arizona (approximately essential to the conservation of the ecoregions and biotic communities in 62,000–88,600 km2 (23,938–34,209 species. See Areas Essential for the the United States from which jaguars mi2)) as potential jaguar habitat and Conservation of Jaguars, above. have been extirpated as critical habitat Robinson (2006) identified We recognize that critical habitat does not meet the definition of critical approximately half of New Mexico designated at a particular point in time habitat under the Act because they were (approximately 156,800 km2 (60,541 may not include all of the habitat areas neither occupied at the time of listing mi2)) as potential jaguar habitat. that we may later determine are nor are they considered essential to the Our response: Designating all areas of necessary for the recovery of the conservation of the species. To meet the potential habitat in the United States as species. For these reasons, a critical requirements of the Act, the Service critical habitat does not meet the habitat designation does not signal that determined areas that were occupied by definition of critical habitat under the habitat outside the designated area is jaguars at the time of listing that Act because they were neither occupied unimportant or may not be needed for contained the physical and biological at the time of listing nor are they recovery of the species. However, we features essential to the conservation of considered essential the conservation of have determined that the critical habitat the jaguar and unoccupied areas that the species. We recognize that the area areas that we are designating in the were essential to the conservation of the of potential habitat is larger than what United States are sufficient for the jaguar. Additionally, to the greatest we have designated as critical habitat, conservation of jaguars. We do not agree extent possible, we based critical habitat but as required under the Act, we have that areas in the United States outside unit boundaries on the physical and designated those areas within the of the proposed Northwestern Recovery biological feature and PCEs from the geographical area occupied by the Unit must be designated as critical latest jaguar habitat model produced by species, at the time it is listed, on which habitat to recover the species, as the the Jaguar Recovery Team (Sanderson are found those physical or biological boundaries of the recovery unit were and Fisher 2013, entire), which is the features that are essential to the determined by the Jaguar Recovery best commercial and scientific data conservation of the species; or areas Team. All designated areas contain all available. In areas where the critical outside the geographical area occupied of the physical and biological features habitat units did not provide by the species at the time it is listed, upon which jaguars in the United States connectivity to Mexico (PCE 1), we upon a determination that such areas depend, including connectivity to identified additional areas to provide are essential for the conservation of the Mexico, which is a key component this connectivity under the second part species. We also recognize that critical aiding the recovery of the species, or the of the definition of critical habitat. See habitat designated at a particular point designated areas are considered Criteria Used To Identify Critical in time may not include all of the essential to the conservation of the Habitat, above. Further, section 3(5)(C) habitat areas that we may later jaguar. of the Act states that, except in those determine are necessary for the recovery (4) Comment: The Service should circumstances determined by the of the species. For these reasons, a include designation of additional areas Secretary, critical habitat shall not critical habitat designation does not to support a viable, self-sustaining include the entire geographical area signal that habitat outside the population of jaguars within the United which can be occupied by the designated area is unimportant or may States (of 50 to 100 individuals) in order threatened or endangered species. not be needed for recovery of the to recover the species within the United (6) Comment: The lack of detection of species. States. jaguars does not indicate the species is In the Jaguar Recovery Team’s Our response: Creating a viable, self- absent. analysis and modeling effort, the team sustaining population (of perhaps 50 to Our response: The Service agrees that considered the modeling efforts of 100 jaguars) in the United States is not the lack of detection does not indicate Hatten et al. (2005, entire) and Robinson a recovery goal for the jaguar (Jaguar the species is absent, and we (2006, entire) and further refined the Recovery Team 2012, pp. 38–42). acknowledge this in our proposed rule Hatten et al. (2005) model such that a Recovery of the jaguar does not require and this final rule. The Service similar model could be applied across that areas in the United States contain recognizes that many mobile species are the entire Northwestern Recovery Unit. females, documented breeding, or a self- difficult to detect in the wild because of The Jaguar Recovery Team provided this

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analysis and habitat model in their 2013 we determined that no additional areas influenced in some way or that may not, report entitled Jaguar Habitat Modeling within the United States must be in fact, be a sighting of a jaguar. For and Database Update (Sanderson and designated to connect critical habitat these reasons, we determined that Fisher 2013, entire). We based critical units together. As described in the final undisputed Class I jaguar records are the habitat boundaries on the physical or rule, there is only one occurrence record most reliable; therefore, we used these biological feature and PCEs from the of a jaguar in a valley between mountain records to determine critical habitat updated habitat modeling report, in ranges. With only one record, we are occupancy. See Occupied Area at the which the habitat features preferred by unable to describe the features of these Time of Listing, above, in this final rule. the jaguar in the proposed Northwestern areas because of a lack of information. (10) Comment: It is possible that Recovery Unit were described based on Therefore, while we acknowledge that jaguars were not present at the time of the best available science and expert habitat connectivity within the United listing; however, the absence of jaguars opinion of the Jaguar Recovery Team. States is important, the best available was most certainly the result of human (8) Comment: The Service should scientific and commercial information killing of jaguars, and jaguars almost expand critical habitat to ensure habitat does not allow us to determine that any certainly occupied and reproduced in connectivity. The Service should particular area within the valleys is southern Arizona in the late 19th and include linkages between all of the essential, and all of the valley habitat is early 20th century, shortly prior to critical habitat units. not essential to the conservation of the listing. Our response: We recognize that species. Therefore, we are not Our response: Jaguars were present at connecting critical habitat units in the designating any areas within the valleys the time of listing as well as historically United States is important to achieve between the montane habitat as critical in the United States. Based on the best connectivity between the United States habitat. See Connectivity between available information related to jaguar and Mexico. We have identified expansive open spaces within the rarity, biology, and survey effort, we connectivity between expansive open United States, above, in this final rule. determine that areas containing spaces in the United States and Mexico (9) Comment: The Service should undisputed Class I records from 1962 to as an essential component of the include all Class II observations and the present (September 11, 2013) may physical or biological feature essential suspect Class I observations. The have been occupied by jaguars at the for the conservation of the jaguar in the Service should include all historic time of listing. Our rationale for United States, and we understand that records. The Service is dismissing the including these records is based on connectivity between expansive open current and former U.S. jaguar range. expert opinion regarding the average areas of habitat for the jaguar in the The Service appears to be trying to lifespan of the jaguar, the consensus United States is necessary if viable introduce balance in the treatment of being 10 years. It is likely that areas in habitat for the jaguar is to be false negative and positive biases in which jaguar sightings have occurred maintained. We acknowledge that, time. However, the more value-neutral after 1982 were occupied at the time of based on home range sizes and research approach would be to use both Class I the original listing, but jaguars had not and monitoring, jaguars will use valley and Class II records. been detected because of their rarity, the bottoms (for example, McCain and Our response: The Service considers difficulty in detecting them, and a lack Childs 2008, p. 7) and other areas of undisputed Class I records as the best of surveys for the species. habitat connectivity to move among available scientific data to determine To the extent that uncertainty exists areas of higher quality habitat found in occupancy. To meet the requirements of regarding our analysis of these isolated mountain ranges in the United section 3(5)(A)(i) of the Act and its occurrence data, we acknowledge there States. Therefore, in areas where critical implementing regulations, we are is an alternative explanation as to habitat was designated based on the first required to define the specific areas whether or not these areas were part of the definition of critical habitat within the geographical area occupied occupied at the time the jaguar was (areas within the geographical area by the species at the time it is listed. listed in 1972 (37 FR 6476). The lack of occupied by the species, at the time it Determining jaguar occupancy at the jaguar sightings at that time, as well as is listed, on which are found those time of listing is particularly difficult some expert opinions cited in our July physical or biological features that are because jaguars were added to the list 22, 1997, clarifying rule (62 FR 39147) essential to the conservation of the many years ago, the species was rare (for example, Swank and Teer 1989), species) in which connectivity to within the United States, and jaguars suggest that jaguars in the United States Mexico (PCE 1) was not provided are, by nature, cryptic and difficult to had declined to such an extent by that through a direct connection to Mexico, detect, so defining an area as occupied point as to be effectively eliminated. we identified areas under the second or unoccupied must be done based on Therefore, an argument could be made part of critical habitat (defined in the limited information. Class I records are that no areas in the United States were Act as the specific areas outside the those for which some sort of physical occupied by the species at the time it geographical area occupied by the evidence is provided for verification was listed, or that only areas containing species at the time it is listed, upon a (such as a skin, skull, or photograph); undisputed Class I records from determination that such areas are they are considered ‘‘verified’’ or between 1962 and 1982 were occupied. essential for the conservation of the ‘‘highly probable’’ as evidence for a For this reason we also analyzed species) to provide this connectivity. jaguar occurrence. We determined that whether or not critical habitat areas are We did this by selecting and adding undisputed Class I observations from essential to the conservation of the subunits containing low human 1962 through September 11, 2013, species. Through our analysis, we influence and impact, and either or both provided the best scientific and determined that they are essential to the vegetative cover or rugged terrain. See commercial data available, as these are conservation of the species because: (1) Connectivity between expansive open the most reliable and verifiable records They have demonstrated recent (since spaces in the United States and Mexico, for jaguars. Suspect (validity of these 1996) occupancy by jaguars; (2) they above, in this final rule. locations is questionable) Class I contain features that comprise jaguar In response to the need to include observations, Class II observations, and habitat; and (3) they contribute to the linkages between all of the critical other historical records represent species’ persistence in the United States habitat units within the United States, observations that may have been by allowing the normal demographic

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function and possible range expansion areas of critical habitat for the purposes scientific and commercial data of the Northwestern Recovery Unit, stated above. available. The Jaguar Recovery Team which is essential to the conservation of (12) Comment: Jaguars do not remain produced a habitat model based on the the species (as discussed in the Jaguar in the United States, nor are they found best information available, which Recovery Planning in Relation to in abundance in the United States, indicates that habitat for jaguars in the Critical Habitat section). Therefore, because areas in the United States United States is in rugged, mountainous whether or not they were occupied at provide suboptimal conditions in terms areas. Therefore, we have utilized this the time of listing, we are designating of food and reproduction. information to inform this designation. them as critical habitat. Our response: The purpose of critical (15) Comment: Areas in the United (11) Comment: The Service’s habitat for the jaguar in the United States will function primarily to support description of occupancy is not States is to contribute to the species’ dispersing or transient jaguars, although consistent with the Act; no data from persistence and, therefore, overall breeding could have occurred in the 1962 onward indicate any breeding or conservation by providing areas to past. resident populations of jaguars within support some individuals during Our response: The Service agrees that the United States, as originally stated in dispersal movements, by providing critical habitat in the United States will the 1972 rule. small patches of habitat (perhaps in function primarily to support dispersing or transient jaguars. Jaguars may have Our response: The Act does not some cases with a few resident jaguars), and as areas for cyclic expansion and bred in the United States in the past (see require an area to have a resident contraction of the nearest core area and Table 1 in Brown and Lo´pez Gonza´lez population, documented breeding, or breeding population in the 2001, pp. 6–9), but breeding has not females in order to be considered Northwestern Recovery Unit. Through been documented recently. As described occupied. Rather, section 3(5)(A) of the our analysis, we determined there are in the proposed rule and this final rule, Act defines the first part of critical areas within the United States the recovery function and value of habitat as the specific areas within the containing the physical or biological critical habitat for the jaguar within the geographical area occupied by the feature and associated PCEs of jaguar United States is to contribute to the species, at the time it is listed, on which critical habitat to support this function, species’ persistence and, therefore, are found those physical or biological including adequate food, water, shelter, overall conservation by providing areas features essential to the conservation of and space. Therefore, we are designating to support some individuals during the species. The Service has determined these areas of critical habitat for the dispersal movements, by providing that physical and biological features that purposes stated above. small patches of habitat (perhaps in are essential to the conservation of the (13) Comment: The central goal some cases with a few resident jaguars), jaguar occur in the United States. statement offered by the proposed rule and as areas for cyclic expansion and Further, in Arizona Cattle Grower’s is to bring an endangered or threatened contraction of the nearest core area and Assoc. v. Salazar, 2009 U.S. App. Lexis species to the point at which the breeding population in the 29107 (June 4, 2010), the Ninth Circuit measures provided pursuant to the Act Northwestern Recovery Unit. affirmed that the Service has the are no longer necessary. The totality of (16) Comment: The Service received authority to designate as occupied all what is necessary in terms of space, several comments related to the use of areas used by a listed species with quality, or numbers needed to attain the best available scientific data. Some sufficient regularity that members of the viability is not specified anywhere in noted that the Service has used the best species are likely to be present during the proposed rule. The closest available literature and data, and any reasonable span of time. Therefore, approximation is statements to the effect acknowledged that there is a lack of data occupancy of an area can be indicated that some amount (not specified) of on jaguar habitat in this region; by the presence of an individual essential habitat is needed to achieve however, additional data would not member of the species, and we have recovery goals for jaguars in the United result in a significantly different or determined that areas may have been States, with the remaining focus on better map of critical habitat. occupied at the time of listing based on defining essential jaguar habitat, which Conversely, others asserted that the this definition in conjunction with is not a recovery goal. Service did not use the best available observations of jaguars in those areas (as Our response: The designation of scientific data and data is lacking to described in Table 1 of this final rule). critical habitat is only one component of justify the designation of critical habitat. Further, the purpose of critical habitat recovery for a species. The recovery Others also asserted that the proposed for the jaguar in the United States is to plan is the appropriate instrument to rule continually uses assumptions and contribute to the species’ persistence define recovery goals. The Service is in speculation as fact. and, therefore, overall conservation by the process of developing a recovery Our response: In accordance with providing areas to support some plan. section 4 of the Act, we are required to individuals during dispersal (14) Comment: The Service assumes designate critical habitat on the basis of movements, by providing small patches that optimal habitat for jaguars in the the best scientific data available. of habitat (perhaps in some cases with United States would be the high Further, our Policy on Information a few resident jaguars), and as areas for mountains or rugged areas, because this Standards under the Act (published in cyclic expansion and contraction of the is where the most sightings have been the Federal Register on July 1, 1994 (59 nearest core area and breeding reported. However, jaguar prey prefers FR 34271)), the Information Quality Act population in the Northwestern lowland areas and are only relegated to (section 515 of the Treasury and General Recovery Unit. Through our analysis, more rugged regions when the lowland Government Appropriations Act for we determined there are areas within areas have been taken over or destroyed. Fiscal Year 2001 (Pub. L. 106–554; H.R. the United States containing the Our response: Biological information 5658)), and our associated Information physical or biological feature and is often lacking for rare species, Quality Guidelines (www.fws.gov/ associated PCEs of jaguar critical habitat particularly with a cryptic species like informationquality/), provide criteria to support this function, including the jaguar that is difficult to detect. and guidance, and establish procedures adequate food, water, shelter, and space. However, the Act requires the Service to to ensure that our decisions are based Therefore, we are designating these make determinations based on the best on the best scientific data available.

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They require our biologists, to the extent portion of their range, the proposed information to support our decision. consistent with the Act and with the use Northwestern Recovery Unit. The Jaguar Data reviewed by the Secretary may of the best scientific data available, to Recovery Team comprises members include, but are not limited to scientific use primary and original sources of from the United States and Mexico, and or commercial publications, information as the basis for is composed of two subgroups: A administrative reports, maps or other recommendations to designate critical technical subgroup and an graphic materials, information received habitat. implementation subgroup. The from experts on the subject, and Primary or original information technical subgroup consists of feline comments from interested parties. We sources are those that are closest to the ecologists, conservation biologists, and have based jaguar critical habitat on subject being studied, as opposed to other experts, who advise the Jaguar information compiled and produced by those that cite, comment on, or build Recovery Team and the Service on the Jaguar Recovery Team, to the upon primary sources. The Act and our appropriate short- and long-term actions greatest extent possible. We consider the regulations do not require us to use only necessary to recover the jaguar. The work produced by the Jaguar Recovery peer-reviewed literature, but instead implementation subgroup consists of Team as the best available scientific and they require us to use the ‘‘best landowners and land and wildlife commercial data, and that following the scientific and commercial data managers from Federal, State, tribal, and team’s recommendations is the best available’’ in a critical habitat private entities, who advise the avenue for achieving conservation of the designation. We use information from technical subgroup and the Service on species and, by extension, designating many different sources, including ways to achieve timely recovery with critical habitat. The PCEs are based on articles in peer-reviewed journals, minimal social and economic impacts or the latest jaguar habitat model produced scientific status surveys and studies costs. by the Jaguar Recovery Team completed by qualified individuals, As stated above and in the proposed (Sanderson and Fisher 2013, entire), Master’s thesis research that has been rule, we have based jaguar critical which is the best commercial and reviewed but not published in a journal, habitat on information compiled and scientific data available. Consequently, other unpublished governmental and produced by the Jaguar Recovery Team, the Service has used the best available nongovernmental reports, reports to the greatest extent possible. We scientific information to support our prepared by industry, personal consider that the work produced by the decision. communication about management or Jaguar Recovery Team is the best (18) Comment: The Service should other relevant topics, conservation plans available scientific and commercial have considered the population viability developed by States and counties, data, and that following the team’s analysis (PVA) model in their decision biological assessments, other recommendations is the best avenue for process. The population viability and, unpublished materials, experts’ achieving conservation of the species related, minimum viable populations, opinions or personal knowledge, and and, by extension, designating critical received only passing reference in the other sources. We have relied on habitat. We acknowledge that the proposed rule and with no articulated published articles, unpublished scientific information regarding the justification. The PVA concept is central research, habitat modeling reports, jaguar has limitations and that some of to the notion of recovery in that it digital data publicly available on the our citations are not specific to these informs population targets, which in Internet, and the expert opinion of the species or geographic area. turn inform habitat targets (the focus of Jaguar Recovery Team to designate Nevertheless, the citations offer this decision process). critical habitat for the jaguar. evidence in basic biological responses Our response: During the Also, in accordance with our peer for similar species, and we would development of the Recovery Outline review policy published on July 1, 1994 expect a similar response with the and as a part of the recovery planning (59 FR 34270), we solicited peer review jaguar. Consequently, the Service has process, the Jaguar Recovery Team from knowledgeable individuals with used the best available scientific worked with the Wildlife Conservation scientific expertise that included information to support our decision. Society to create a jaguar habitat model familiarity with the species, the (17) Comment: The Service’s process (Sanderson and Fisher 2011, pp. 1–11; geographic region in which the species of designating critical habitat is logical, 2013, entire), and the Conservation occurs, and conservation biology consistent, and reasonable, and the data Breeding Specialist Group of the principles. Additionally, we requested used were carefully evaluated and based Species Survival Commission/ comments or information from other on sound ecological principles. The use International Union for Conservation of concerned governmental agencies, of the model to identify areas with Nature to conduct a PVA and Native American Tribes, the scientific features important to the jaguar habitat population habitat viability analysis community, industry, and any other allows areas to be evaluated that have (PHVA) for the jaguar. We anticipated interested parties concerning the not been surveyed, but have high that these analyses would assist us in proposed rule. Comments and potential to provide habitat for jaguars. determining those recovery actions that information we received helped inform Relying solely on surveys or anecdotes would be most effective for achieving a this final rule. Further, information will almost always yield a flawed viable jaguar population for the provided in comments on the proposed product because surveys never cover all Northwestern Recovery Unit (not the designations and the draft areas of potential interest, are imperfect United States), as well as provide environmental and economic analyses for elusive animals that are challenging information relevant to determining were evaluated and taken into to detect, and, for species whose critical habitat for the jaguar. However, consideration in the development of populations are thought to be the PHVA analysis and PVA themselves, these final designations, as appropriate. suppressed, there are almost certainly while informative for recovery-planning Information currently available for areas on the landscape that can function purposes, did not contribute to the northern jaguars is scant; therefore, we as habitat, but that are unoccupied determination of critical habitat. Critical convened a binational Jaguar Recovery because of reduced population levels. habitat for the jaguar focuses on the Team in 2010 to synthesize information Our response: We agree. In our physical or biological features available on the jaguar, focusing on an area proposed rule and this final rule, we in the United States that are essential to comprising jaguars in the northernmost used the best available scientific the conservation of the species; it is not

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based on an overall number of jaguars, team’s recommendations is the best (21) Comment: There has been no nor is it required to be, whereas the PVA avenue to designating critical habitat detailed prey occurrence or density and PHVA are used to determine a and conservation of the species. study cited for the areas under minimum viable population. The (20) Comment: We received multiple consideration despite recognition that purpose of critical habitat for the jaguar comments concerning the adequate prey is a major factor in is to provide areas to support some characterization of prey abundance. assessing critical habitat. individuals during dispersal Some noted that the Service should Our response: See our response to movements, by providing small patches include actual estimates of prey density comment number 20 in Peer Reviewer of habitat (perhaps in some cases with in the analysis so as to meet the best Comments above. a few resident jaguars), and as areas for available data standard and to be (22) Comment: The Service should cyclic expansion and contraction of the consistent with treatment of other consider that jaguar observations would nearest core area and breeding habitat factors. Others stated that it is likely be biased towards areas where population in the Northwestern impossible to characterize prey there was more human activity together Recovery Unit, which contributes to the abundance in any temporally and with greater visibility, specifically: overall recovery of the jaguar. Therefore, spatially meaningful way. Rather, the nearer water sources, in less rugged the Service relied on habitat features as relative permanent physical and areas, in areas with less forest or shrub described in the preliminary report ecological features that are important to cover, in areas with better access, and in entitled Digital Mapping in Support of jaguars and their prey (e.g., vegetation areas with more human residences. This Recovery Planning for the Northern structure and composition, proximity to is not intrinsically problematic, but this Jaguar (Sanderson and Fisher 2011, pp. water, topography) are more useful for precautionary bias should be recognized 1–11) for our August 20, 2012, proposed characterizing habitat. and explained. rule (77 FR 50214), and a later report Our response: We have relied on the Our response: We acknowledge that entitled Jaguar Habitat Modeling and best available scientific information on certain types of bias could be evident in Database Update (Sanderson and Fisher prey that is readily available from the jaguar observations due to their cryptic, 2013, entire) for our July 1, 2013, Arizona Game and Fish Department nocturnal, and predatory nature. revised proposed rule (78 FR 39237) and (Hunt Arizona 2012 Edition, available However, based on section 4(b)(1)(A) of this final rule. Please see the Criteria at: http://www.azgfd.gov/regs/ the Act, the Secretary is required to Used to Identify Critical Habitat section HuntArizona2012.pdf) and the New make determinations on the basis of the of the final rule and our response to Mexico Department of Game and Fish best scientific and commercial data comment number 1 in Peer Reviewer (Harvest Information, available at: available. Comments above for further information http://www.wildlife.state.nm.us/ (23) Comment: The Service should about how we incorporated these recreation/hunting/). Using this understand that just because under-use reports into our determination. information, we have determined that of habitat near human facilities has been (19) Comment: The Service should white-tailed deer and javelina (the demonstrated, it does not mean that consider mountain lion (puma) preferred prey of the jaguar in the individual animals will not use areas literature where the data and research northwestern-most part of its range) near people as a result of or in the on jaguars is scant. Mountain lions, like have been present in each critical process of losing their fear. As long as jaguars, have an exceptionally large habitat unit for at least 50 years in jaguars are not harassed or killed at a range that spans many degrees of Arizona, and have been successfully high rate around human facilities, there latitude and longitude with different hunted in each hunt unit overlapping is a high likelihood that jaguars could habitat types and are hypercarnivorous jaguar critical habitat for the same heavily use otherwise suitable habitats felid ambush predators that exhibit period of time (Game Management Units near people, in areas where the HII is substantial diversity of diet and specific 30A, 34A, 34B, 35A, 35B, 36A, 36B, and greater than 20. habitat relations, depending on the 36C). This information indicates that Our response: We recognize that male environment. The Service has the adequate levels of prey are currently jaguars have been documented near inherent authority and ability to use the available in critical habitat units in roads, but the data do not indicate that best available science regarding Arizona, and have been available for at this is where the majority of jaguar connectivity for other similar species, least 50 years in these units. sightings occur. Further, based on such as the mountain lion, to make a Historical harvest information from section 4(b)(1)(A) of the Act, the reasoned judgment about the most likely New Mexico is not as readily available. Secretary is required to make areas that would facilitate connectivity However, based on the most recent determinations on the basis of the best for the jaguar. Consideration of harvest information, white-tailed deer scientific and commercial data mountain lions also argues against and javelina are available in Unit 5 of available. We have determined that the giving credence to Rabinowitz (1999) jaguar critical habitat (Game best scientific data available is that and Swank and Teer (1989). Management Unit 27). White-tailed and which has been compiled and produced Our response: The Service recognizes mule deer and javelina are likely by the Jaguar Recovery Team. Therefore, the overlap in the ecology of mountain available in Unit 6 of jaguar critical while we acknowledge that some lions and jaguars; however, we have habitat (Game Management Unit 26). We jaguars may be able to use areas of a based jaguar critical habitat on can determine that javelina have been higher HII, for the purposes of critical information compiled and produced by successfully harvested in this Unit 6 habitat we are using the range of values the Jaguar Recovery Team to the greatest (Game Management Unit 26), but this recommended by the Jaguar Recovery extent possible. The Jaguar Recovery particular Game Management Unit Team in the northern portion of the Team comprises jaguar experts, large-cat lumps all deer together, so we are proposed Northwestern Recovery Unit. experts (knowledgeable about mountain unable to distinguish hunt success (24) Comment: The Service received lions), and stakeholders from the United between mule deer and white-tailed multiple comments regarding the use of States and Mexico; therefore, we deer. This information indicates that different habitat models for designating consider that the work produced by the adequate levels of prey are currently critical habitat corridors. Some team is the best available scientific and available in critical habitat units located recommended using specific models commercial data, and that following the in New Mexico. such as Beier et al. (2006) and

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Rabinowitz and Zeller (2010). Others determined that the designated areas are scientific data. These subunits contain a recommended using Pima County adequate for these purposes. combination of low human influence Wildlife Connectivity Assessment and (27) Comment: The Service should and either or both canopy cover and Arizona’s Wildlife Linkages connect critical habitat units in the ruggedness such that they represent Assessment. One recommended using a United States because connectivity is areas through which a jaguar may travel thesis by M. Rudy. Others needed to mitigate for border-related between Subunit 4a and Mexico. Either recommended using features on the activities that may sever connectivity to Subunit 4b or 4c may be used by a landscape such as rivers, streams, Mexico. jaguar based on these habitat draws, washes, and wetlands. Others Our response: All projects with a characteristics; therefore, we have no recommended using mountain lion data Federal nexus proposed within jaguar reason not to include these areas as or other corridor data regarding corridor critical habitat in the United States will critical habitat, regardless of which one width. be evaluated on a case-by-case basis provides a more direct connection to Our response: In response to the with respect to section 7 of the Act to Mexico, as both subunits provide various models recommended, we ensure they do not destroy or adversely connectivity to Mexico through Unit 3. understand there are different modify designated areas. Please see our (31) Comment: Future human impacts approaches to modeling jaguar habitat response to comment number 8 Peer within Subunit 4c will render that than the method we used, each Review Comments above regarding subunit nonviable. involving different methodologies, connectivity of critical habitat. Our response: We understand that assumptions, and data layers. However, (28) Comment: The Service should additional human impacts from future we believe that the information connect critical habitat units in the development on private or State lands collected by the Jaguar Recovery Team United States because connectivity is could occur. However, critical habitat and the latest habitat model the team needed to support 50 to 100 jaguars in does afford protection to the jaguar produced (Sanderson and Fisher 2013, Arizona and New Mexico. through section 7 consultation under entire) is the best available scientific Our response: Please see our response the Act through the requirement that data, and is appropriate to inform to comment number 4 Peer Review Federal agencies ensure, in consultation critical habitat for the jaguar. Their Comments above. with the Service, that any action they methodology closely follows another (29) Comment: The Service has not authorize, fund, or carry out is not likely jaguar habitat mapping effort conducted explained the placement of Subunits 4b to result in the destruction or adverse by Hatten et al. (2005, entire), and and 4c. In particular, the placement of modification of critical habitat. Under essentially involves determining the 4b is not supported by the best scientific the statutory provisions of the Act, we habitat features most relied upon by data, and the Service has not justified determine destruction or adverse jaguars in the northwestern-most part of including this subunit and does not modification on the basis of whether, the species’ range by overlaying spatial provide empirical data (data acquired by with implementation of the proposed data layers representing these habitat means of observation or Federal action, the affected critical features with observations of jaguars experimentation). habitat would continue to serve its within this range (see the Criteria Used Our response: Subunits 4b and 4c do intended conservation role for the to Identify Critical Habitat section of the not contain all of the PCEs, nor are they species. Therefore, actions that are final rule for more detailed required to, as these subunits are funded, permitted, or carried out by a information). Additionally, by following considered unoccupied. Section 3 of the Federal agency within jaguar critical the Sanderson and Fisher (2013) Act requires that the Service designate habitat will continue to be evaluated to methodology, final critical habitat works critical habitat in specific areas outside determine their impacts on critical alongside and supports the recovery- the geographical area occupied by the habitat. planning process in that the information species at the time it is listed, upon a (32) Comment: The single observation used for both processes is compatible. determination that such areas are of a jaguar along the Santa Cruz River (25) Comment: The Service should essential for the conservation of the contains considerable information of connect critical habitat units in the species. Subunits 4b and 4c contain a relevance to identifying corridors, United States because sufficient combination of low human influence especially if framed in terms of prior connectivity between critical habitat and either or both canopy cover and knowledge of jaguar ecology elsewhere. units within the United States is ruggedness such that they represent Our response: Please see our response needed. areas through which a jaguar may travel to comment number 8 Peer Review Our response: See our response to between the United States and Mexico. Comments above regarding connectivity comment number 8 in Peer Review These critical habitat subunits provide of critical habitat. Comments above. connectivity between critical habitat (33) Comment: The Service should (26) Comment: The Service should units within the United States, and they consider that numerous scientific connect critical habitat units in the provide connectivity between the publications (some cited by the United States because connectivity is United States and Mexico. proposed rule) make the case for needed to facilitate dispersal events, (30) Comment: The Service should foreseeable warming and drying of the adaptation to changing environmental include the least-cost corridor modeled regions in question; which is to say that conditions, and genetic exchange. by Rosemont Mine to replace Subunit the hypotheses (models of the world) Our response: As described in the 4b, as well as the elimination of Subunit tacitly adopted by the proposed rule are final rule, the purpose of critical habitat 4b altogether because Subunit 4c not defensible in light of the best is to provide areas to support some provides a more direct route to Mexico available scientific information. individuals during dispersal from Subunit 4a. Additional numerous publications movements, by providing small patches Our response: In determining the describe not only projected geospatial of habitat (perhaps in some cases with most likely areas that would connect patterns of warming and drying based a few resident jaguars), and as areas for Subunit 4a to Mexico (by connecting to on regional general circulation models, cyclic expansion and contraction of the Unit 3), we again relied on data but also projected geospatial changes in nearest core area and breeding provided by the Jaguar Recovery Team, vegetation and plant species population in Mexico. We have which we consider the best available distributions for biomes and species that

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contribute directly to the proposed include manmade structures (such as Northern Recovery Unit for the last 50 rule’s definition of essential jaguar buildings, aqueducts, runways, roads, years with no evidence of breeding in habitat. It is plausible that portions of and other paved areas), and the land on the United States during that time. the United States could become crucial which they are located, existing within Our response: Evidence of breeding is to persistence of jaguars due to climate the legal boundaries on the effective not required for an area to be designated change. date of this rule. However, the presence as critical habitat. See our response to Our response: The Service considered of a road does not exclude an area of comment number 11 in Peer Reviewer numerous scientific information sources 100 km2 that contains all the PCEs from Comments above. as cited in our proposed rule and this being designated as critical habitat. (39) Comment: Designation of critical final rule. The Service recognizes that Areas in which the HII calculated over habitat is not due to new data but due some species are shifting their 1 km2 (0.4 mi2) is 20 or less are to litigation. The Service’s previous geographic ranges, often moving considered an essential component of 1997 and 2006 not-prudent poleward or upwards in elevation the physical or biological feature determinations for designating critical (National Fish, Wildlife, and Plants essential for the conservation of the habitat for the jaguar were valid 2012, p. 10). Range shifts are not always jaguar in the United States. decisions, but the 2010 prudent negative: habitat loss in one area may be (35) Comment: Clarify what expansive determination to designate critical offset by an increase elsewhere such open space is. habitat for the jaguar is not valid. The that if a species is able to disperse, it Our response: Expansive open spaces court did not order the Service to may face little long-term risk. However, in the southwestern United States is designate critical habitat, but rather to it is clear that shifting distributions can defined as areas of at least 100 km2 (32 determine if the physical and biological lead to a number of new challenges to 38.6 mi2) in size which: (1) Provide features upon which jaguars depend (National Fish, Wildlife, and Plants connectivity to Mexico; (2) contain could be found in the United States and, 2012, p. 26). Changes in climate can adequate levels of native prey species, if so, were essential to the conservation have a variety of direct and indirect including deer and javelina, as well as of the species. ecological impacts on species, and can medium-sized prey such as coatis, Our response: The Service has exacerbate the effects of other threats. skunks, raccoons, or jackrabbits; (3) identified critical habitat for the jaguar Climate-associated environmental include surface water sources available in accordance with the Act and its changes to the landscape, such as within 20 km (12.4 mi) of each other; (4) implementing regulations. The Service decreased stream flows, increased water contain from greater than 1 to 50 has determined that designation of temperatures, reduced snowpack, and percent canopy cover within Madrean critical habitat for the jaguar is prudent increased fire frequency, can affect evergreen woodland, generally and determinable based on the best species and their habitats. The recognized by a mixture of oak (Quercus scientific data available. Section vulnerability of a species to climate spp.), juniper (Juniperus spp.), and pine 4(a)(3)(A) of the Act states that critical change impacts is a function of the (Pinus spp.) trees on the landscape, or habitat shall be designated for species’ sensitivity to those changes, its semidesert grassland vegetation endangered and threatened species to exposure to those changes, and its communities, usually characterized by the maximum extent prudent and capacity to adapt to those changes. The Pleuraphis mutica (tobosagrass) or determinable. Therefore, we are Service acknowledges in the proposed Bouteloua eriopoda (black grama) along required to designate critical habitat for rule and this final rule that climate with other grasses; (5) are characterized the jaguar to fulfill our legal and change has the potential to adversely by intermediately, moderately, or highly statutory obligations. See our responses affect the jaguar within the next 50 to rugged terrain; (6) are below 2,000 m to comment numbers 1 and 2 in Peer 100 years (Jaguar Recovery Team 2012, (6,562 feet) in elevation; and (7) are Review Comments above. p. 32). However, the degree to which characterized by minimal to no human (40) Comment: There are no physical climate change will affect jaguar habitat population density, no major roads, or or biological features to support jaguars, in the United States is uncertain. no stable nighttime lighting over any 1- and, therefore, there is no jaguar habitat Further, we do not know whether the km2 (0.4-mi2) area. in New Mexico. changes that have already occurred have (36) Comment: Clarify habitat-related Our response: We have determined affected jaguar populations or terminology (i.e., habitat, suitable that the physical or biological feature for distribution, nor can we predict how the habitat, high-quality habitat, essential jaguar critical habitat and the associated species will adapt to or be affected by habitat, and critical habitat), especially PCEs are present in the United States, the type and degree of climate changes the relations of one term to another, and including New Mexico. To the greatest forecast. Consequently, because the maintain its use throughout. extent possible, we have based jaguar specific impacts of climate change on Our response: The terms suitable critical habitat on information compiled jaguar habitats remains uncertain at this habitat, high-quality habitat, and and produced by the Jaguar Recovery time, we did not recommend any areas essential habitat are not used in the final Team. The Jaguar Recovery Team be designated as critical habitat rule. Critical habitat is defined within comprises jaguar experts, large-cat specifically to account for the negative the proposed rule and this final rule. experts, and stakeholders from the effects of climate change. United States and Mexico; therefore, we (34) Comment: Clarify the exclusion Comments From States consider that the work produced by the of manmade features, specifically if a (37) Comment: There is no habitat in team is the best available scientific and road runs through a wilderness area, the United States that is critical to the commercial data, and that following the would this entire area be excluded from recovery of the jaguar or its survival as team’s recommendations is the best critical habitat or just the road? a species. avenue to designating critical habitat Our response: A road through a Our response: See our response to and conservation of the species. wilderness area would be excluded from comment number 1 in Peer Reviewer (41) Comment: Habitat in New Mexico critical habitat because it does not Comments above. and Arizona is marginal for the jaguar; contain the physical or biological (38) Comment: Jaguar critical habitat therefore, it is not essential. features essential to the jaguar’s in the United States is not essential Our response: Section 3(5)(A) of the conservation. Critical habitat does not because jaguars have persisted in the Act defines critical habitat as the

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specific areas within the geographical still inhabited by jaguars when the Our response: In determining areas area occupied by the species, at the time species was listed in 1972. Based on the that may be occupied by jaguars, we it is listed on which are found those best available information related to used undisputed Class I records from physical or biological features essential jaguar rarity, biology, and survey effort, 1962 through September 11, 2013. We to the conservation of the species. As we determine that areas containing understand that some of the jaguar described in the final rule, the recovery undisputed Class I records from 1962 records used in our proposed rule may function and value of critical habitat for (10 years prior to listing, which is the be disputed due to the possibility that the jaguar within the United States is to average lifespan of a jaguar) to the female scat was used as a scent lure in contribute to the species’ persistence present (September 11, 2013) may have some areas. Therefore, we removed all and, therefore, overall conservation by been occupied by jaguars at the time of sightings that may have been influenced providing areas to support some listing. by female scat, which we determined to individuals during dispersal The second part of the Act’s be from October 3, 2008 (the date of movements, by providing small patches definition of critical habitat is defined Emil McCain’s request for jaguar scat of habitat (perhaps in some cases with as specific areas outside the from the Phoenix Zoo) through March 2, a few resident jaguars), and as areas for geographical area occupied by the 2009 (the date Macho B was captured cyclic expansion and contraction of the species at the time it is listed, upon a and flown to the Phoenix Zoo). See nearest core area and breeding determination by the Secretary that such ‘‘Class I Records’’ section above and population in the Northwestern areas are essential for the conservation Table 1 above of this final rule for all Recovery Unit. The Northwestern of the species. For these reasons, we of the undisputed Class I jaguar records Recovery Unit is essential for the also analyzed whether or not critical used to determine occupancy. conservation of the species; therefore, habitat areas are essential to the In determining the physical and or areas within New Mexico containing the conservation of the species. To the biological features essential to the jaguar physical and biological feature and extent that uncertainty exists regarding in the northwestern most part of its associated PCEs are essential to the our analysis of these data, we range, we relied on information jaguar. acknowledge there is an alternative compiled and produced by the Jaguar (42) Comment: The Service did not explanation as to whether or not these Recovery Team, which we consider the use the correct listing time period to areas were occupied at the time the best available science. Our August 20, determine occupancy. The commenter jaguar was listed in 1972 (37 FR 6476, 2012 (77 FR 50214), proposed critical is concerned that the Service used data March 30, 1972). The lack of jaguar habitat designation was based on a from 1982 to the present. sightings at that time, as well as some preliminary report from the Jaguar Our response: The Service’s expert opinions cited in our July 22, Recovery Team entitled Digital Mapping designation of occupied critical habitat 1997, clarifying rule (62 FR 39147) (for in Support of Recovery Planning for the is in compliance with the Act. example, Swank and Teer 1989), suggest Northern Jaguar (Sanderson and Fisher Determining jaguar occupancy at the that jaguars in the United States had 2011, pp. 1–11), which described a time of listing is particularly difficult declined to such an extent by that point model for mapping jaguar habitat in the given that: (1) Jaguars were rare on the as to be effectively eliminated. northwestern-most part of the species landscape in the United States at the Therefore, an argument could be made range. This 2011 report relied on 333 time of listing, making those individuals that no areas in the United States were records of mapped jaguar observations that may have been present more occupied by the species at the time it across habitat variables to determine a difficult to detect; (2) jaguars require was listed, or that only areas containing categorization of the variables and expansive open spaces for each undisputed Class I records from selection of categories to include in the individual, thus reducing the likelihood between 1962 and 1982 were occupied. model. of detecting them; (3) jaguars are highly For this reason, we also analyzed These 333 records included cultural mobile and inhabit rugged, remote whether or not these areas are essential evidence of jaguars (such as a jaguar areas, thus we cannot be sure that a lack to the conservation of the species. painting in a cave or a place name of detection indicates that the species is Through our analysis, we determine that including the word jaguar), sightings of absent; and (4) no effort was made to they are essential to the conservation of live animals or their sign, mortalities detect jaguars in the United States from the species for the following reasons: (1) (such as hunting events or jaguars killed 1972 to 1997. As discussed in the They have demonstrated recent (since after a predation event), and proposed rule and this final rule, our 1996) occupancy by jaguars; (2) they observations of possible jaguars (such as intention was to list the species contain features that comprise jaguar a cat, spotted cat, or large quadruped throughout its entire range at the time habitat; and (3) they contribute to the (four-footed animal)). This means that it was added to the Endangered Species species’ persistence in the United States these records included Class I Conservation Act in 1972; therefore, we by allowing the normal demographic (observations with physical evidence for determine that 1972 is the date the function and possible range expansion verification, such as a skin, skull, or species was listed. We are including of the Northwestern Recovery Unit, photo), Class II (observations with areas in which reports of jaguar exist which is essential to the conservation of detailed information but no physical during the 10 years prior to its listing as the species (as discussed in the Jaguar evidence, such as a first-hand report occupied at the time of listing, meaning Recovery Planning in Relation to from a qualified individual), and Class we are considering records back to 1962. Critical Habitat section, above). III (all other observations, such as Our rationale for including these Therefore, whether or not they were second- or third-hand reports of a records is based on expert opinion occupied at the time of listing, we are jaguar) sightings. We refined this model regarding the average lifespan of the designating those areas as critical further for proposed critical habitat in jaguar, the consensus being 10 years. habitat. the United States by analyzing the same Therefore, we assume that areas that (43) Comment: The revised proposed habitat variables, but we used only would have been considered occupied rule is based on highly inaccurate and undisputed Class I jaguar observations at the time of listing would have notoriously unreliable jaguar records in the United States from 1962 to mid- included sightings 10 years prior to its rather than the Class I records standard 2012 (which, at that time, was 130 listing, as presumably these areas were that the Service established. observations). This resulted in slightly

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different ranges of habitat variables in records), and (3) all evidence types resulted in 333 observations, 44 of some cases (specifically for canopy (similar to the previous, but also which are located in the United States cover and the Human Influence Index) including first, second, and third-hand (note that the reason the number of for proposed critical habitat than the reports of jaguars, cultural artifacts, observations in the United States in this range of habitat variables described in stories, and representations of jaguars, dataset is less than the number of the 2011 habitat modeling report and other types of evidence; the observations used to determine critical (Sanderson and Fisher 2011, pp. 1–11). equivalent of Class I, II, and III records; habitat in our proposed rule is because Since the publication of the proposed see Table 1.4 of Sanderson and Fisher of the methods the Jaguar Recovery rule, the Jaguar Recovery Team (2013, p. 14) for a complete list of Team developed to avoid pseudo- continued to refine the jaguar habitat evidence types). Using these filters, replication from camera trap and model. By including jaguar observations Sanderson and Fisher (2013, pp. 3–5 radiotelemetry studies; these methods in addition to the 333 used in the and Appendix 2) analyzed the were not applied to the dataset we used preliminary 2011 report (described in frequency that these 453 jaguar for our August 20, 2012, proposed rule). Sanderson and Fisher 2013, pp. 3 and observations occurred across the range We also separated jaguar records from 7), developing a method to avoid of habitat variables used in the model. north to south in the same manner that pseudo-replication (many locations of Upon viewing this analysis, the Jaguar Sanderson and Fisher (2013, p. 20) did the same animal in close proximity in Recovery Team determined that the for the tree cover and HII habitat time and in space) from camera trap and overall pattern of frequencies of these variables. radiotelemetry studies (Sanderson and observations relative to the habitat The results of our additional analysis Fisher 2013, p. 3), and applying criteria variables were similar, meaning that indicate that the overall pattern in and filters to the jaguar observation regardless of the type of evidence used frequency of jaguar observations using database to further refine the habitat (physical evidence only, physical and these highly accurate locations relative variables included in the model sign evidence, or all evidence), jaguar to the habitat variables is similar to the (Sanderson and Fisher 2013, pp. 3–5 observations in relation to the habitat patterns observed using the entire data and Appendix 2; note that this resulted variables occurred with the same set used for the updated habitat model in splitting the proposed Northwestern frequency. The Jaguar Recovery Team (Sanderson and Fisher 2013, entire). For Recovery Unit into northern and hypothesized that this is because jaguars example, 95 percent of these highly southern portions, each with a different are habitat generalists, with jaguar accurate locations are found in greater range selected for some habitat variables habitat generally defined as cover, prey, than 1 to 50 percent tree cover (for all (Sanderson and Fisher 2013, pp. 7 and and limited human persecution within jaguar observations except those in the 20)). This resulted in an updated habitat the proposed Northwestern Recovery southernmost part of the proposed model, which was included in a final Unit. The Jaguar Recovery Team, Northwestern Recovery Unit); 97 report we received in March 2013, therefore, decided to use all types of percent correspond to a HII of less than entitled Jaguar Habitat Modeling and evidence, because that resulted in the 20 (for all jaguar observations except Database Update (Sanderson and Fisher largest number of observations (453; those in the southernmost part of the 2013, entire). note that the 452 included in Table 1.3 proposed Northwestern Recovery Unit); In the updated jaguar habitat model, of Sanderson and Fisher (2013, p. 13) is 99 percent are within 10 km (6.2 mi) of Sanderson and Fisher (2013, pp. 3–5 incorrect) for inclusion in the updated water; 75 percent are in intermediately, and Appendix 2) utilized all jaguar model. moderately, or highly rugged terrain; observations for which the description To further analyze the frequency of and 98 percent are found at less than of the location was sufficient to place it jaguar observations relative to habitat 2,000 m (6,562 ft) in elevation. with certainty within 10 km (6.2 mi) of variables, the Service analyzed a subset Therefore, for the reasons stated above, its actual location, and for which a date of recent, highly accurate jaguar we determine that the Sanderson and to the nearest century was available. locations from Mexico and the United Fisher (2013, entire) updated habitat This resulted in 453 observations (note States to determine if filtering the model is not unreliable because it that the 452 included in Table 1.3 of observations in this way would incorporates jaguar observations for Sanderson and Fisher (2013, p. 13) is influence the frequency that these which there is no physical evidence, incorrect) for inclusion in the updated observations occurred across the range and that the information from the Jaguar model including Class I, II, and III of habitat variables. From the 453 Recovery Team is the best available sightings, but removed any sightings observations used in the updated habitat science regarding the habitat recorded as cat, spotted cat, or large model (Sanderson and Fisher 2013, characteristics that are essential to the quadruped (four-footed animal), as well entire), we selected records that met the jaguar in the northwestern-most part of as locations that were described too following criteria: (1) They were part of its range. generally to accurately locate on a map a scientific study (and therefore utilized In the revised proposed rule and this (e.g., southern Arizona). The reason for Global Positioning System (GPS) or final rule, we did not further refine the selecting these observations to use in radiotelemetry receivers); (2) they were updated habitat model by using only the habitat model was because the not disputed due to the possible use of Class I jaguar locations specific to the Jaguar Recovery Team came to the scent lure; and (3) they were from May United States like we did in our analysis consensus this was appropriate after 2000 forward (the time that public GPS for the proposed rule, because we analyzing these jaguar observations receivers became more accurate because determined that the ranges of habitat through three different evidence filters: the intentional degradation of public variables selected by the Jaguar (1) Physical evidence only (photograph GPS signals implemented for national Recovery Team in the northern part of or video, skull, hide, or carcass security reasons was discontinued; see the proposed Northwestern Recovery measured; the equivalent of a very strict http://www.gps.gov/systems/gps/ Unit adequately represent available interpretation of Class I records), (2) modernization/sa/for more habitat for jaguars in the United States. physical and sign evidence (similar to information). Additionally, the same We used the same data layers and the previous, but also including tracks, criteria to avoid pseudo-replication ranges of habitat variables as used in the jaguar kills, and other physical (Sanderson and Fisher 2013, p. 3) were updated jaguar habitat model evidence; the equivalent of Class I applied to this subset of data. This (Sanderson and Fisher 2013, entire) to

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determine the PCEs of jaguar critical critical habitat in areas outside the to Mexico (PCE 1) in areas containing habitat in the United States. However, geographical area occupied by a species low human influence and impact, and in two cases we substituted data layers only when a designation limited to its either or both vegetative cover or rugged for variables for which more detailed, range would be inadequate to ensure the terrain. It is our intent that the higher-resolution data were available for conservation of the species. The area designation of critical habitat will the United States: (1) For water sources currently occupied by the jaguar outside protect the functional integrity of the we substituted the United States the United States is adequate for the features essential for jaguar life-history Geological Services (USGS) National conservation of the jaguar. requirements for this purpose into the Hydrography Dataset (NHD) (available Our response: See our response to future. at http://nhd.usgs.gov/data.html) for comment number 1 in Peer Reviewers (48) Comment: There are no PCEs in USGS HydroSHEDS, and (2) for Comments above. Arizona. vegetation communities we substituted (46) Comment: The Service’s critical Our response: The best available Brown and Lowe (1980) Biotic habitat analysis and designation are scientific data indicates PCEs are Communities of the Southwest scientifically invalid and incomplete in present in Arizona. To the greatest (available at http://azconservation.org/ nature. Without an adequate, extent possible, we have based jaguar downloads/biotic_communities_of_the_ quantitative, science-based critical habitat on information compiled southwest_gis_data) for World Wildlife understanding of all components of and produced by the Jaguar Recovery Fund Ecoregions (note that the World jaguar habitat requirements, critical Team. The Jaguar Recovery Team Wildlife Fund Ecoregions habitat type habitat cannot and should not be comprises jaguar experts, large-cat representing the Sky Islands region in designated. The data are insufficient to experts, and stakeholders from the the Jaguar Recovery Team updated understand jaguar habitat. United States and Mexico; therefore, we model was Sierra Madre Occidental Our response: See our response to consider that the work produced by the pine-oak forests, for which we comment number 16 in Peer Review team is the best available scientific and substituted the classifications of Comments above. commercial data, and that following the Madrean evergreen woodland and (47) Comment: The Service has team’s recommendations is the best semidesert grassland from Biotic accurately described habitat, but it does avenue to conservation of the species Communities of the Southwest to not mean these areas are essential. and by extension designating critical represent the Sky Islands region). The Our response: The Service has habitat. We have determined that the other data sources in the updated model designated critical habitat in essential physical or biological feature include: (1) MODerate-resolution compliance with the Act. Section for jaguar critical habitat and the Imaging Spectroradiometer (MODIS) 3(5)(A) states that the Service shall associated PCEs are present in the Tree cover for canopy cover (continuous designate geographic areas occupied by United States, and that these areas field data) (available at http:// the species at the time it was listed if contribute to the species’ persistence glcf.umd.edu/data/vcf/); (2) Advanced they contain physical or biological and, therefore, overall conservation by Spaceborne Thermal Emission and features, which are essential to the providing areas to support some Reflection Radiometer (ASTER DEM) for conservation of the species, and areas individuals during dispersal ruggedness and elevation (available at outside the geographical area occupied movements, by providing small patches https://wist.echo.nasa.gov); and (3) by the species at the time it is listed, of habitat (perhaps in some cases with Human Influence Index (HII) for human upon a determination that such areas a few resident jaguars), and as areas for influence (available at http:// are essential for the conservation of the cyclic expansion and contraction of the sedac.ciesin.columbia.edu/wildareas/) species. In the proposed rule and this nearest core area and breeding (to exclude cities, agricultural and final rule we have determined that areas population in the Northwestern developed rural areas). Sanderson and in the United States occupied by the Recovery Unit. Fisher (2013, entire) did not use a data species at the time it was listed contain (49) Comment: The Arizona Game and layer for prey, nor did we. See our the physical or biological feature for Fish Department’s Jaguar Conservation response to comment number 20 in Peer jaguar critical habitat and the associated Assessment is the best science. Reviewers Comments. See the Criteria PCEs are present. We identify Our response: The Arizona Game and Used to Identify Critical Habitat section connectivity between expansive open Fish Department’s Jaguar Conservation of the final rule for more information. In spaces in the United States and Mexico Assessment provides valuable summary, we used only Class I as an essential component of the information regarding the status of the undisputed sightings to define the physical or biological feature essential jaguar in Arizona, New Mexico, and occupied area, but after the sensitivity for the conservation of the jaguar in the northern Mexico. The Service analysis described above we determined United States. Providing connectivity considered and utilized this information it was acceptable to use the habitat from the United States to Mexico is a in this final rule. See Johnson et al. analysis based on a larger category of key element to maintaining those (2011) as referenced in the final rule. sightings. processes. The ability for jaguars in the (50) Comment: The Service did not (44) Comment: There is no long-term proposed Northwestern Recovery Unit use the best available science because presence, sustained use, or reproduction to utilize physical and biological habitat we utilized McCain and Childs (2008), of jaguars in the United States. features in the borderlands region is in which female scat was used as scent Our response: The Act does not ecologically important to the recovery of lure. require a breeding or reproducing the species; therefore, maintaining Our response: The Service used the population of jaguars, long-term connectivity to Mexico is essential to best available science to determine presence of jaguars, or sustained use by the conservation of the jaguar. critical habitat for the jaguar. We jaguars for the purposes of designating Consequently, we have also determined understand that some of the jaguar critical habitat. See our response to that areas in the United States outside records used in our proposed rule may comment number 11 in the Peer the geographical area that may be be disputed due to the possibility that Reviewer Comments above. occupied by the species at the time it is female scat was used as a scent lure in (45) Comment: The Service states in listed are essential to the conservation some areas. Therefore, we removed all the proposed rule that they designate of the jaguar by providing connectivity sightings that may have been influenced

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by female scat, which we determined to the jaguar. We anticipated that these consequences of model assumptions, be from October 3, 2008 (the date of analyses would assist us in determining and natural and human-caused Emil McCain’s request for jaguar scat those recovery actions that would be catastrophes are not included. Miller from the Phoenix Zoo) through March 2, most effective for achieving a viable (2013) inappropriately interprets the 2009 (the date Macho B was captured jaguar population for the Northwestern results of its reported PVA models, and and flown to the Phoenix Zoo). See our Recovery Unit (not the United States), as the Service has implicitly accepted the response to comment number 43 in well as provide information relevant to assumptions of Miller (2013) that Comments from States above. determining critical habitat for the dispersal costs and drought have no (51) Comment: The designation of jaguar. In both analyses, the focus was effect on jaguar populations. critical habitat is because the Service is on the habitat and jaguar population in Our response: See our response to trying to avoid further litigation. the Northwestern Recovery Unit. comment number 53 in Comments from Our response: See our response to However, the PHVA and PVA States above. comment numbers 1 and 2 in the Peer themselves, while informative for (55) Comment: Jaguar habitat cannot Reviewer Comments above. recovery-planning purposes, did not be determined without a full (52) Comment: The Service should contribute to the determination of understanding of the jaguar’s prey not designate critical habitat because a critical habitat. requirements and the availability of PVA demonstrates that establishing a Critical habitat for the jaguar focuses prey species within a habitat location to population of jaguars in the United on the physical or biological features meet those requirements. States would destabilize populations in available in the United States that are Our response: See our response to Sonora. essential to the conservation of the comment number 20 in the Peer Our response: We disagree that species; it is not based on an overall Reviewer Comments above. designating critical habitat will number of jaguars, nor is it required to (56) Comment: The Service did not destabilize the nearest breeding be, whereas the PVA is used to use data regarding the distribution of population in Mexico, and we disagree determine a minimum viable native prey in designating critical that habitat in the United States is a population. The purpose of critical habitat. The Service has not presented population sink. The purpose of habitat for the jaguar is to provide areas and has refused to consider any relevant designating critical habitat in the United to support some individuals during scientific data regarding the prey States is not to create a self-sustaining, dispersal movements, by providing component of habitat for the jaguar breeding population north of the U.S.- small patches of habitat (perhaps in within the proposed critical habitat Mexico border, but to provide small some cases with a few resident jaguars), boundaries. patches of habitat (perhaps in some and as areas for cyclic expansion and Our response: We have relied on the cases with a few resident jaguars) to contraction of the nearest core area and best available scientific information that allow for the cyclical expansion and breeding population in the is readily available from the Arizona contraction of the nearest core area in Northwestern Recovery Unit, which Game and Fish Department (Hunt Mexico. See our response to comment contributes to the overall recovery of the Arizona 2012 Edition, available at: number 18 in the Peer Reviewer jaguar. Therefore, the Service relied on http://www.azgfd.gov/regs/ Comments above. habitat features as described in the HuntArizona2012.pdf) and the New (53) Comment: Given the heavy preliminary report entitled Digital Mexico Department of Game and Fish reliance that the Service places on the Mapping in Support of Recovery (Harvest Information, available at: results of PVA models such as those Planning for the Northern Jaguar http://www.wildlife.state.nm.us/ presented by Miller (2013) to support (Sanderson and Fisher 2011, pp. 1–11) recreation/hunting/). The Service did the designation of critical habitat, we for our August 20, 2012, proposed rule not receive additional data on prey request that the data and complete (77 FR 50214), and a later report entitled abundance sufficient to include in modeling information be provided to Jaguar Habitat Modeling and Database critical habitat modeling efforts during the public such that the assumptions Update (Sanderson and Fisher 2013, any of the three comment periods. See and specifics of these analyses can be entire) for our July 1, 2013, revised our response to comment number 20 in properly and transparently analyzed. proposed rule (78 FR 39237) and this the Peer Reviewer Comments above. Our response: The Service did not use final rule. Please see the Criteria Used (57) Comment: Without an adequate, the PVA to designate critical habitat for to Identify Critical Habitat section of the quantitative, science-based the jaguar. The Service originally final rule above and our response to understanding of year-round water planned to use the PVA in designating comment number 18 in the Peer availability, critical habitat should not critical habitat for the jaguar; however, Reviewer Comments above for further be designated. we realized that the habitat models information about how we incorporated Our response: We have determined (Sanderson and Fisher 2011, pp. 1–11; these reports into our determination. that waters within 20 km (12.4 mi) of 2013, entire) created for the PHVA and (54) Comment: The Service should each other are available within the PVA processes were the components not use the PVA (Miller 2013) because designated critical habitat. We consider that could best inform critical habitat for it relies on dubious data produced by the best available information for water the jaguar in the United States. During McCain and Childs and other sources in the United States as that the development of the Recovery undisclosed data, the data has produced by the USGS through their Outline and as a part of the recovery undergone 13 iterations of analysis, it is National Hydrography Dataset (NHD) planning process, the Jaguar Recovery fatally flawed by substitution of (see our response to comment number Team worked with the Wildlife untested hypotheses for data, the 43 for a Web site link to the GIS data Conservation Society to create a jaguar authors never cited any study of the layer). For water sources, Sanderson and habitat model (Sanderson and Fisher prey base of the jaguar, it does not Fisher (2013, p. 6) utilized USGS 2011, pp. 1–11; 2013, entire), and the provide the necessary details to HydroSHEDS in their updated model Conservation Breeding Specialist Group replicate the results of Miller (2013), it because this data layer covers both the of the Species Survival Commission/ contradicts the treatment of parameter United States and Mexico. In our International Union for Conservation of assumptions by the Service, it lacks modeling analysis, we substituted the Nature to conduct a PVA and PHVA for sensitivity analyses to inform the USGS NHD because this data layer

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provides higher-resolution data within Our response: The Service recognizes considerations or protections. The Act the United States. The USGS NHD data that the current climate change models does not state that those features must layer indicates that there are no areas are not downscaled to a local level. require such management or protection. within critical habitat lacking waters Projections of climate change globally Nonetheless, special management within 20 km (12.4 mi) of each other. and for broad regions through the 21st considerations of the physical and We understand that the availability of century are based on the results of biological feature essential to the water across the landscape during the modeling efforts using state-of-the-art conservation of the jaguar may be year is variable. Regardless, according to Atmosphere-Ocean General Circulation needed to alleviate the effects on jaguar the best available scientific data, it Models and various greenhouse gas habitat of road, power line, and pipeline appears that there is sufficient water emissions scenarios (Meehl et al. 2007, projects; human developments; mining available for jaguars within the final p. 753; Randall et al. 2007, pp. 596– operations; and ground-based military critical habitat designation. 599). As is the case with all models, activities. Future projects should avoid (58) Comment: The Service fails to uncertainty is associated with the (to the maximum extent possible) areas account for ecological changes as the projections due to assumptions used identified as meeting the definition of result of climate change or climate- and other features of the models. critical habitat for jaguars, and if based factors that would eliminate However, despite differences in unavoidable, should be constructed or proposed habitat. If the predicted assumptions and other parameters used carried out to minimize habitat effects. climate change for the Southwest is in climate change models, the overall (61) Comment: The designation of hotter and drier, then the designated surface air temperature trajectory is one jaguar critical habitat will limit game critical habitat would not have the of increased warming in comparison to management activities and recreational capability to support jaguars; therefore, current conditions (Meehl et al. 2007, p. activities, such as hunting, and the Service should not designate critical 762; Prinn et al. 2011, p. 527). Among litigation will be used to impact game habitat. the IPCC’s projections for the 21st activities. Our response: The Service recognizes century are the following: (1) Warmer Our response: The designation of that some models predict dramatic and more frequent hot days and nights critical habitat does not affect land changes in Southwestern vegetation over most of the earth’s land areas are ownership or establish a refuge, communities as a result of climate virtually certain; (2) increased frequency wilderness, reserve, preserve, or other change (Weiss and Overpeck 2005, p. of warm spells and heat waves over conservation area. Such designation 2074; Archer and Predick 2008, p. 24) most land areas is very likely, and the does not allow the government or public and the projections presented for the frequency of heavy precipitation events to access private lands. Such Southwest predict warmer, drier, and will increase over most areas; and (3) designation does not require more drought-like conditions (Hoerling increases will likely occur in the implementation of restoration, recovery, and Eischeid 2007, p. 19; Seager et al. incidence of extreme high sea level or enhancement measures by non- 2007, p. 1181). Further, the Service (excludes tsunamis), intense tropical Federal landowners. acknowledges in the proposed rule and cyclone activity, and the area affected In our economic analysis we this final rule that climate change has by droughts in various regions of the considered all of the potential the potential to adversely affect the world (IPCC 2007b, p. 8). additional conservation efforts or jaguar within the next 50 to 100 years Climate simulations of the Palmer restrictions that could occur as the (Jaguar Recovery Team 2012, p. 32). The Drought Severity Index (a calculation of result of the addition of critical habitat. Service recognizes in the proposed rule the cumulative effects of precipitation We found the incremental effects of the and this final rule that the impact of and temperature on surface moisture critical habitat designation to be future drought, which may be long-term balance) for the Southwest for the relatively minor, as additional measures and severe (Seager et al. 2007, pp. 1183– periods of 2006 to 2030 and 2035 to beyond those already in place are 1184; Archer and Predick 2008, entire), 2060 show an increase in drought unlikely. We found that the designation may affect jaguar habitat in the U.S.- severity with surface warming. of critical habitat for the jaguar would Mexico borderlands area, but the Additionally, drought still increases not have direct impacts on the information currently available on the even during wetter simulations because environment as designation is not effects of global climate change and of the effect of heat-related moisture loss expected to impose land use restrictions increasing temperatures does not make through evaporation and or prohibit land use activities. sufficiently precise estimates of the evapotranspiration (Hoerling and Further, the species is already present location and magnitude of the effects. Eischeid 2007, p. 19). Annual mean in the United States. We are not We do not know whether the changes precipitation is likely to decrease in the proposing to reintroduce or supplement that have already occurred have affected Southwest, as is the length of snow the existing jaguars in the United States. jaguar populations or distribution, nor season and snow depth (IPCC 2007b, p. The designation of critical habitat does can we predict how the species will 887). Most models project a widespread not translate into an increase of jaguars adapt to or be affected by the type and decrease in snow depth in the Rocky in the United States. As discussed in the degree of climate changes forecast. Mountains and earlier snowmelt (IPCC proposed rule and this final rule, the Consequently, because the specific 2007b, p. 891). The Service will purpose of designating critical habitat in impacts of climate change on jaguar continue to follow and assess the the United States is to provide areas for habitats remains uncertain at this time, science behind climate change and transient jaguars (with possibly a few we did not recommend any areas be update our summaries as new residents) to support the nearest designated as critical habitat or not be information is published. breeding area to the south in Mexico, designated as critical habitat specifically (60) Comment: There are no areas allowing this population to expand and to account for the negative effects of requiring special management. contract, and, ultimately, recover. It is climate change. Our response: Section 3(5)(A)(i) of the our intent that the designation of critical (59) Comment: The Service should Act states that the physical and habitat will protect the functional not consider climate change models biological features essential to the integrity of the features essential for because they cannot be downscaled to conservation of the species ‘‘may’’ jaguar life-history requirements for this the level of the jaguar critical habitat. require special management purpose into the future.

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Critical habitat receives protection www.azgfd.gov/regs/ Brown and Lowe (1980) Biotic under section 7 of the Act through the HuntArizona2012.pdf) and the New Communities of the Southwest requirement that Federal agencies Mexico Department of Game and Fish (available at http://azconservation.org/ ensure, in consultation with the Service, (Harvest Information, available at: downloads/biotic_communities_of_the_ that any action they authorize, fund, or http://www.wildlife.state.nm.us/ southwest_gis_data) for the World carry out is not likely to result in the recreation/hunting/). Using this Wildlife Fund Ecoregions data layer destruction or adverse modification of information, we determined that white- used in the jaguar habitat model critical habitat. Any of these or other tailed deer and javelina (the preferred developed by the Jaguar Recovery Team actions on Federal lands that may affect prey of the jaguar in the (Sanderson and Fisher 2013, Table 1, p. the jaguar or its designated critical northwesternmost part of its range) have 6). habitat would be required to consult been present in each critical habitat unit PCE 5: Are characterized by with the Service to ensure those actions (described in Final Critical Habitat intermediately, moderately, or highly are not adversely modifying its critical Designation, above) for at least 50 years rugged terrain—For terrain ruggedness habitat. However, consultation is in Arizona, and have been successfully we used the same data layer as used in already required in occupied areas hunted in each hunt unit overlapping the jaguar habitat model developed by because the jaguar is listed as an jaguar critical habitat for the same the Jaguar Recovery Team (Sanderson endangered species. All projects with a period of time (Game Management Units and Fisher 2013, Table 1, p. 6), called Federal nexus proposed within jaguar 30A, 34A, 34B, 35A, 35B, 36A, 36B, and Advanced Spaceborne Thermal critical habitat in the United States will 36C). Historical harvest information Emission and Reflection Radiometer be evaluated on a case-by-case basis from New Mexico is not as readily Digital Elevation Model (ASTER DEM) with respect to section 7 of the Act. available; however, based on the most (available at https://lpdaac.usgs.gov/ (62) Comment: The Service should recent harvest information, white-tailed products/) and followed the provide maps delineating the PCEs. deer and javelina are available in Unit methodology described in Hatten et al. Our response: The coordinates or plot 5 of jaguar critical habitat (Game (2005, p. 1026). points or both from which the maps are Management Unit 27), and are likely PCE 6: Are below 2,000 m (6,562 feet) generated are included in the available in Unit 6 (both described in in elevation—For elevation we used the administrative record for this critical Final Critical Habitat Designation, Advanced Spaceborne Thermal habitat designation and are available at above) of jaguar critical habitat (Game Emission and Reflection Radiometer http://www.regulations.gov at Docket Management Unit 26; we can determine Digital Elevation Model (ASTER DEM) No. FWS–R2–ES–2012–0042 and at the that javelina have been successfully data layer (available at https:// Arizona Ecological Services Fish and harvested in this Game Management lpdaac.usgs.gov/products/), which is a Wildlife Office (see FOR FURTHER Unit, but this particular unit lumps all standard digital layer used to describe INFORMATION CONTACT). Enhanced color deer together, so we are unable to elevation. maps and site-specific boundaries of the distinguish hunt success between mule PCE 7: Are characterized by minimal critical habitat in both GIS and Google deer and white-tailed deer). Therefore, to no human population density, no Earth format can be viewed and while we were unable to map prey major roads, or no stable nighttime downloaded from http://www.fws.gov/ distribution within Arizona and New lighting over any 1 km2 (0.4 mi2) area— southwest/es/arizona. Mexico, we believe adequate levels of For human influence (to exclude cities, (63) Comment: The Service did not prey are available, and have been agricultural, and developed rural areas) provide the data or sources used in the available for at least 50 years in Arizona. we used the same data layer as used in habitat model. PCE 3: Include surface water sources the jaguar habitat model developed by Our response: As stated in the available within 20 km (12.4 mi) of each the Jaguar Recovery Team (Sanderson proposed rule and this final rule below other—For water sources we substituted and Fisher 2013, Table 1, p. 6), called are the PCEs and data sources. PCE 1: the USGS National Hydrography Dataset the HII (available at http://sedac.ciesin. Provide connectivity to Mexico—If an (NHD) (available at http://nhd.usgs.gov/ columbia.edu/wildareas/). occupied area was not connected to data.html) for the HydroSHEDS data (64) Comment: Arizona and New Mexico, we selected and added areas layer used in the jaguar habitat model Mexico should be withdrawn or containing low human influence and developed by the Jaguar Recovery Team excluded from critical habitat because impact (PCE 7) and either or both (Sanderson and Fisher 2013, Table 1, p. the distribution of the jaguar within the vegetative cover (PCE 4) or rugged 6). United States represents less than 1 terrain (PCE 5) to connect these areas PCE 4: Contain from greater than 1 to percent of the total occupied range and directly to Mexico or to another 50 percent canopy cover within the jaguar rarely (if ever) contained a occupied area providing connectivity to Madrean evergreen woodland, generally breeding population even in historical Mexico. Below are the data sources and recognized by a mixture of oak, juniper, times. Web site links to all the GIS data layers and pine trees on the landscape, or Our response: The Service is not that we used in evaluating PCEs in this semidesert grassland vegetation withdrawing Arizona or New Mexico final rule. communities, usually characterized by from critical habitat because the Service PCE 2: Contain adequate levels of Pleuraphis mutica (tobosagrass) or is required under the Act to designate native prey species, including deer and Bouteloua eriopoda (black grama) along critical habitat to the maximum extent javelina, as well as medium-sized prey with other grasses—For canopy cover prudent and determinable. See our such as coatis, skunks, raccoons, or we used the same data layer as used in response to comment 1 in the Peer jackrabbits—Comprehensive, consistent the jaguar habitat model developed by Reviewer Comments above. data regarding prey distribution across the Jaguar Recovery Team (Sanderson Further, the Service is not excluding Arizona and New Mexico is lacking. and Fisher 2013, Table 1, p. 6), called Arizona or New Mexico from critical Therefore, we relied on the best MODerate-resolution Imaging habitat because section 4(b)(2) of the Act information that is readily available Spectroradiometer (MODIS) Tree cover states that the Secretary shall designate from the Arizona Game and Fish (continuous field data; available at and make revisions to critical habitat on Department (Hunt Arizona 2012 http://glcf.umd.edu/data/vcf/). For the basis of the best available scientific Edition, available at: http:// vegetation communities we substituted data after taking into consideration the

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economic impact, national security response to comment number 64 in the these or other actions on Federal lands impact, and any other relevant impact of Comments from States above for that may affect the jaguar or its specifying any particular area as critical additional information on exclusions designated critical habitat would be habitat. Areas that were considered for under the Act. In the case of the jaguar required to consult with the Service to exclusion were locations where the where a Federal nexus exists, the ensure those actions are not adversely benefits of exclusion may outweigh the benefits of critical habitat include modifying its critical habitat. However, benefits of inclusion as critical habitat increased habitat protection for the consultation is already required because (see Exclusion section above). The jaguar due to the protection from the jaguar is listed as endangered. All Secretary may exclude an area from adverse modification or destruction of projects with a Federal nexus proposed critical habitat if she determines that the critical habitat. See the Application of within jaguar critical habitat in the benefits of such exclusion outweigh the Section 4(b)(2) of the Act for a full United States will be evaluated on a benefits of specifying such area as part discussion of the areas we have case-by-case basis with respect to of the critical habitat, unless she determined are appropriate to exclude section 7 of the Act. The designation of determines, based on the best scientific from the final designation of critical critical habitat does not prohibit data available, that the failure to habitat. humans and legal activities. Legal designate such area as critical habitat (66) Comment: Federal lands should activities that have a Federal nexus (in will result in the extinction of the be excluded from critical habitat that they occur on Federal lands, require species. In making that determination, designation. a Federal permit, or receive Federal the statute on its face, as well as the Our response: The Service is not funds) will be evaluated on a case-by- legislative history are clear, that the excluding Federal lands from critical case basis with respect to section 7 Secretary has broad discretion regarding habitat designation. Please see our (consultation with the Service) of the which factor(s) to use and how much responses to comment numbers 64 and Act to ensure they do not destroy or weight to give to any factor. When 65 in the Comments from States above adversely modify designated critical identifying the benefits of inclusion for for additional information on exclusions habitat. an area, we consider the additional under the Act. There is additional We have been consulting with Federal regulatory benefits that area would benefit to including the federally owned agencies on their effects to the jaguar on receive from the protection from adverse lands in the designation of critical Federal lands, or on projects for which modification or destruction as a result of habitat because of the Federal agencies’ a Federal nexus exists, since the species actions with a Federal nexus; the obligation to consult under section 7 of was listed in 1972. Since jaguars were educational benefits of mapping the Act on activities that may adversely listed, we have had no projects on essential habitat for recovery of the modify critical habitat. Consequently, privately owned lands that had a listed species; and any benefits that may we have not determined that the Federal nexus to trigger formal result from a designation due to State or benefits of excluding these areas consultation under section 7 of the Act. Federal laws that may apply to critical outweigh the benefits of including these Therefore, the Service does not habitat. In the case of the jaguar, the areas. Please see the Application of anticipate a decrease in authorized benefits of critical habitat include Section 4(b)(2) of the Act section for a access to lands for conservation and public awareness of jaguar presence and full discussion of the areas we have research or a decrease in observations the importance of habitat protection, determined are appropriate to exclude reported. Further, illegal activity is not and in cases where a Federal nexus from the final designation of critical expected to increase with the exists, increased habitat protection for habitat. designation of critical habitat, because the jaguar due to the protection from (67) Comment: The benefits of not designated critical habitat does not adverse modification or destruction of designating critical habitat outweigh the prevent legal activities from occurring critical habitat. See the Application of benefits of designating critical habitat within its boundaries, including law Section 4(b)(2) of the Act section of this because the designation of critical enforcement related to illegal activities final rule. habitat will result in denial of access to (border control issues). (65) Comment: The area on the edge lands for jaguar conservation and (68) Comment: The analysis of of Unit 3, to the north of the Santa Rita research, fewer observations reported, significance of the critical habitat Mountains near Houghton Road, should and an increase in illegal activities designation within the draft be excluded from critical habitat. This undermining recovery of threatened and environmental assessment is area is near an existing residential endangered species. inadequate, and the Service should development and planned for Our response: The designation of prepare a full environmental impact development. critical habitat does not affect land statement (EIS). We also received Our response: Designation of critical ownership or establish a refuge, several similar comments from the habitat has been done in accordance wilderness, reserve, preserve, or other members of the public. with statutory requirements. The area conservation area. Such designation Our response: We analyzed the on the edge of Unit 3 includes all the does not allow the government or public potential impacts of critical habitat PCEs identified as the physical or to access private lands. Such designation on the following resources biological features that provide for the designation does not require and resource management types: Land jaguar’s life-history processes and are implementation of restoration, recovery, use and management; fish, wildlife, and essential to the conservation of the or enhancement measures by non- plants (including endangered and species, including being characterized Federal landowners. threatened species); fire management; by minimal to no human population Designated critical habitat receives water resources (including water density, no major roads, or no stable protection under section 7 of the Act management projects and groundwater nighttime lighting over any 1-km2 (0.4- through the requirement that Federal pumping); livestock grazing; mi2) area. Development actions funded, agencies ensure, in consultation with construction and development authorized, or carried out by a Federal the Service, that any action they (including roads, bridges, dams, agency must enter into consultation authorize, fund, or carry out is not likely infrastructure, residential); tribal trust with the Service if the Federal action to result in the destruction or adverse resources; soils; recreation and hunting; may affect critical habitat. Please see our modification of critical habitat. Any of socioeconomics; environmental justice;

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mining and minerals extraction; and on October 30, 2013, which was after we critical habitat designation are largely National security. We found that the had published the proposed rule to limited to transactional costs. As a designation of critical habitat for the designate critical habitat for the jaguar. result, the incremental impact, jaguar would not have direct impacts on Consequently, when we published the economic or from other relevant factors, the environment as designation is not jaguar critical habitat rule, we followed of the designation on the mine is expected to impose land use restrictions the regulations that were current at the expected to be minimal. or prohibit land use activities. Our time. Section 4(b)(b)(2) of the Act states that environmental assessment found that (70) Comment: The draft economic the Secretary may exclude a specific the impacts of the proposed critical analysis does not consider economic area from critical habitat if the benefits habitat designation would be minor and impacts resulting from employment- of excluding the area outweigh the not rise to a significant level. An EIS is related uses of Federal land, such as conservation benefits of including it, required only if we find that the mining and cattle grazing. providing the exclusion does not result proposed action is expected to have a Our response: The draft economic in the extinction of the species. In the significant impact on the human analysis addresses impacts to mining case of the Rosemont Mine, we have not environment. The completed studies, operations in Chapter 5 and to livestock found any disproportionate impacts, evaluations, and public outreach grazing in Chapter 3 (grazing on Federal economic or other, on the Rosemont conducted by the Service have not lands) and Chapter 9 (grazing on State Mine due to the critical habitat identified impacts resulting from the and private lands). We assume that designation because the area is proposed designation of critical habitat economic activities occurring on occupied, a section 7 consultation was that are clearly significant. Based on our Federal lands will have a Federal nexus just completed providing approval for analysis and comments received from for section 7 consultation through the the mine project, and conservation the public, we prepared a final EA and Federal land manager. For activities measures are primarily captured in the made a Finding of No Significant Impact such as livestock grazing that occur on baseline. Therefore, the Secretary did (FONSI), negating the need for State or private lands, we consider the not find it to be reasonable or preparation of an EIS. We have potential for projects to involve Federal appropriate for the Service to enter into determined our environmental permits or funding, such as funding the discretionary exclusion analysis assessment is consistent with the spirit from NRCS. In these cases, we forecast about whether to exclude the mine from and intent of NEPA. The final section 7 consultations. We also the final designation. environmental assessment, FONSI, and consider the potential for indirect (72) Comment: The designation could final economic analysis provide our effects, such as the withdrawal of NRCS adversely affect operations at Fort rationale for determining that critical applications resulting from the stigma of Huachuca. Fort Huachuca is important habitat designation would not have a critical habitat designation. to the local economy, it contributes significant effect on the human (71) Comment: The designation of approximately $2.4 billion annually to environment. Those documents are critical habitat could have substantial the state economy, and it is the primary available for public review (see economic impacts on local economies employer in the area. ADDRESSES section). and employment by threatening Federal Our response: Fort Huachuca’s 2013 (69) Comment: A complete economic approval of the Rosemont Mine. INRMP includes benefits for jaguars and analysis should accompany any Our response: In October 2013, the their habitat that were not included in proposed Federal action, which would Service completed a biological opinion their previous INRMP. Based on our allow stakeholders the opportunity to and conference opinion with the U.S. review of Fort Huachuca’s 2013 INRMP, review, analyze, and comment on the Forest Service for the Rosemont Mine. and in accordance with section economic consequences of this critical The biological opinion concluded that 4(a)(3)(B)(i) of the Act, we have habitat designation. the Rosemont Mine would not determined that the portion of Unit 3 Our response: The Service published constitute jeopardy to the jaguar. A and Subunit 4c within this installation, our proposed rule to designate critical conference opinion was also completed identified as meeting the definition of habitat for the jaguar August 20, 2012. to address the impacts of the Rosemont critical habitat, is subject to the INRMP, At that time our current regulations at Mine to the then-proposed critical and that conservation efforts identified 50 CFR 424.19 stated: ‘‘The Secretary habitat designation for jaguar, which in this INRMP will provide a benefit to shall identify any significant activities concluded that the mining operation is the jaguar. Therefore, lands within this that would either affect an area not likely to destroy or adversely modify installation are exempt from critical considered for designation as critical jaguar critical habitat. habitat designation under section habitat or be likely to be affected by the The final economic analysis has been 4(a)(3)(B) of the Act. Further, as designation, and shall, after proposing revised based on the biological and described in section 8.1 of the draft designation of such an area, consider conference opinion. The Rosemont economic analysis, the Department of the probable economic and other Mine is located in a unit of critical Defense (DOD) has already incorporated impacts of the designation upon habitat that is occupied by the jaguar. the species into its management proposed or ongoing activities.’’ The Since the jaguar is currently a listed planning. As a result, the Service and Service interprets ‘after proposing’ to species, conservation efforts are already DOD do not anticipate that jaguar mean after publication of the proposed undertaken to avoid jeopardy to the critical habitat designation will change critical habitat rule. The President’s species in this area and, therefore, the the outcome of future section 7 Feburary 28, 2012, memorandum economic impacts are predominantly consultations associated with operations directed the Service to take prompt captured in the baseline. Through our at Fort Huachuca. Furthermore, because steps to revise our regulations to evaluation of impacts of the critical conservation management for the jaguar provide that the economic analysis be habitat designation, we determined that is typically passive in nature (i.e., no completed and made available for most of the conservation efforts are not specific changes to operations at Fort public comment at the time of a result of the critical habitat Huachuca are anticipated to publication of a proposed rule to designation itself, but rather a result of accommodate jaguar conservation), the designate critical habitat. The Service the jaguar being a listed species, and, draft economic analysis does not finalized revisions to these regulations therefore, incremental impacts of the forecast any restrictions on Fort actions

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that would result in costs of (75) Comment: The draft economic (78) Comment: Areas in the United conservation efforts for the jaguar, even analysis underestimates impacts States will function primarily to support absent critical habitat designation. because it does not consider water use dispersing or transient jaguars, although (73) Comment: The draft economic and water allocation issues. The breeding could have occurred in the analysis underestimates impacts to designation will create water use past. livestock grazing. Costs that a rancher conflicts, resulting in negative impacts Our response: See our response to will incur for a single consultation to livestock producers. The designation comment number 11 in the Peer could exceed $20,000 to $25,000, and could result in substantial economic Reviewer Comments above. could include such expenses as hiring impacts by infringing on existing water (79) Comment: Designation of critical consultants, attending consultations, rights to provide water for jaguar habitat is not due to new data but due reviewing biological opinions, conservation. to litigation. participating in the NEPA process, filing Our response: As described in the Our response: See our response to appeals of other Federal agency findings Service’s incremental effects comment number 2 in the Peer Reviewer if necessary, modifying ranching memorandum, provided as Appendix C Comments above. (80) Comment: Fort Huachuca should operations, modifying water use, and to the draft economic analysis, possible be exempted from critical habitat implementing jaguar conservation project modifications to avoid jeopardy designation based on the Fort’s measures. to the species and adverse modification Integrated Natural Resources Our response: While the commenters or destruction of critical habitat include: Management Plan (INRMP) that was are correct that consultation efforts have using technology-based surveillance prepared under section 101 of the Sikes the potential to result, in some cases, in rather than fencing where possible; Act (16 U.S.C. 670a) and which significant costs, the economic analysis creating permeable highways by currently provides a benefit to the does not anticipate that many new including wildlife crossings appropriate to jaguars in the project design; re- jaguar. consultations would occur as a result of Our response: The Service has critical habitat alone; that is, most vegetating and restoring areas of large- scale habitat removal; modifying or exempted Fort Huachuca from critical consultations on jaguar are anticipated habitat designation based on their to occur regardless of critical habitat eliminating the presence of stable nighttime lighting; reducing the INRMP. See the Exemptions section of designation. As a result, the incremental this final rule for further information. costs of considering critical habitat in a footprint of large facilities to the maximum extent practicable; (81) Comment: The Chiricahua and jaguar consultation are low because minimizing the amount or extent of Dos Cabezas Mountains are essential consultation is already occurring to human presence, vehicles, or traffic in and therefore should be included in the address impacts to the species. a given area; providing conservation designation. Similarly, conservation efforts for jaguar measures to restore, enhance, and Our response: The critical habitat are not anticipated to exceed those that protect habitat within critical habitat designation includes those areas in the already would have been requested units; offsetting permanent habitat loss, United States that meet the definition of under the baseline (for the species). As modification, or fragmentation resulting critical habitat as defined in the Act. such, incremental costs associated with from agency actions with habitat that is Because habitat in the United States is undertaking these measures are not permanently protected, including at the edge of the species’ northern included in the economic analysis. funding to ensure the habitat is range, and is marginal compared to (74) Comment: The designation of managed permanently for the protection known habitat throughout the range, we jaguar critical habitat may result in of the species; and providing resources have determined that all of the primary increased livestock predation. These to assess the effects of the action on constituent elements discussed must be impacts are not evaluated in the draft jaguar habitat connectivity and function. present in each specific area to economic analysis. These conservation measures are constitute critical jaguar habitat in the Our response: The Service is aware of addressed as relevant for projects United States, including connectivity to one jaguar depredation event in the forecast in the draft economic analysis. Mexico (but that connectivity may be United States since 1961, which Based on these possible project provided either through a direct occurred in the Altar Valley area in modifications, the draft economic connection to the border or by other 2007 (McCain and Childs 2008, pp. 4– analysis does not expect that jaguar areas essential for the conservation of 5). The Service recognizes that cattle conservation will require changes to the species; see Areas Essential for the depredation may occur. However, the water allocation. Conservation of Jaguars, above). The jaguar is already present in the United Chiricahua and Dos Cabezas Mountains States and protected under the Act as a Comments From Federal Agencies either were not occupied at the time of listed species. The designation of (76) Comment: There is no habitat in listing or do not contain the PBF and critical habitat in the United States will the United States that is critical to the PCEs the Service has determined are not change the possibility of cattle recovery of the jaguar or its survival as needed for it to function for jaguars. depredation due to jaguars. The Service a species. (82) Comment: Valley bottoms should is not proposing to reintroduce or Our response: See our response to be included in the critical habitat supplement jaguar populations in the comment number 1 in the Peer Reviewer designation because it is clear that United States. Therefore, we do not Comments above. jaguars traverse the valley bottoms to anticipate that designating critical (77) Comment: Jaguar critical habitat reach more suitable habitat. Further, habitat for the jaguar will result in in the United States is not essential these areas potentially contain economic impacts through livestock because jaguars have persisted in the necessary water sources. depredation. We are aware, however, of Northern Recovery Unit for the last 50 Our response: We acknowledge that the concern that cattle depredations years with no evidence of breeding in jaguars will use valley bottoms (for may occur in the future, and we are the United States during that time. example, McCain and Childs 2008, p. 7), working with the Jaguar Recovery Team Our response: See our response to and other areas of habitat connectivity to develop strategies to avoid these comment number 4 in the Peer Reviewer to move between areas of higher quality types of conflicts. Comments above. habitat found in isolated mountain

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ranges in the United States and that management considerations would range and historical range with water sources within valleys may be continue to occur on a voluntary basis adequate, and sometimes superior, used by jaguars. However, as described on activities covered by a waiver. There resources is paramount for longitudinal in the proposed rule and this final rule, are other forms of border infrastructure, conservation action. The borderlands there is only one occurrence record of however, that do not fall under this area is often referred to as marginal a jaguar in a valley between mountain waiver (construction of towers, for habitat because the core breeding ranges. Therefore, the best available example); therefore, special population is much farther south, but scientific and commercial information management considerations apply to this area is perhaps growing more does not allow us to determine which these projects, and we consult with DHS critical for the species and represents a particular area within the valleys may to minimize the impacts to listed feasible opportunity for conservation be essential, and all of the valley habitat species and their critical habitat. and recovery. Climate change is an is not essential to the conservation of We also understand that human important factor in the recovery of the species. See Connectivity between activity (both legal and illegal) occurs jaguars in the borderlands and the expansive open spaces within the along the U.S.-Mexico border, including Service appropriately included it in the United States, above, in this final rule. within critical habitat. At times this discussion within the proposed rule. Also, see our response to comment activity can be intense, involving many Additionally, climate change effects on number 8 in the Peer Reviewer people, vehicles, lighting, and jaguars are uncertain, but the Service Comments above. equipment. However, this activity is should consider that some potential (83) Comment: The listing time period also transitory, in that activity hot spots impacts, such as increased periods of used by the Service to determine will develop in one area, then move to drought, underscore the importance of occupancy is not consistent with the another area for a variety of reasons (for building resource capacity and Act. example, increased law enforcement can connectivity. Our response: See our response to shift illegal border activity to another Our response: The Service recognizes comment number 42 in Comments from area). Therefore, because of the variable that climate change may be a factor in the States above. nature and unknown location of this the conservation of the jaguar. The (84) Comment: There will never be a activity, we are not able to predict its Service further recognizes the breeding population in the United effect on jaguar critical habitat. importance of maintaining connectivity States, thus there is no need for critical Additionally, because the impacts of between the United States and Mexico. habitat in the United States. these activities shift around the In our proposed rule and this final rule Our response: See our response to landscape and are not permanent in we identify connectivity between comment number 11 in Peer Reviewer nature, they do not necessarily entirely expansive open spaces in the United Comments above. preclude jaguars from using an area, States and Mexico as an essential (85) Comment: Jaguar prey species are once the activity diminishes and moves component of the physical or biological in decline and will not support jaguars. to another location. Therefore, we feature essential for the conservation of Our response: See our response to continue to use HII as the best available the jaguar in the United States. The comment number 20 in Peer Reviewer science reflecting human influence on ability for jaguars in the proposed Comments above. the landscape. Northwestern Recovery Unit to utilize (86) Comment: The Service neglects to (87) Comment: With Arizona alone physical and biological habitat features account for the fact that the DHS can growing by 1.5 million people from the in the borderlands region is ecologically waive all laws to expedite construction mid-1990s to mid-2000s, the Service important to the recovery of the species; of a border fence and to remove any should account for future population therefore, maintaining connectivity to obstructions to the detection of illegal growth in the southwest. Mexico is essential to the conservation aliens, 1,126 km (700 mi) of barrier Our response: We acknowledge that of the jaguar. fence is required to be built along the the human population has grown and (89) Comment: The maps provided by U.S.-Mexico border, lighting has been continues to grow throughout the the Service are insufficient in detail. added along the border that would southwestern United States. Should this Our response: The coordinates or plot impact jaguar critical habitat, and a growth occur within critical habitat to points or both from which the maps are constant flow of human traffic occurs the extent that the HII PCE may be generated are included in the through jaguar critical habitat. This is affected and a Federal nexus exists, the administrative record for this critical not consistent with the HII PCE. Service would consult on proposed habitat designation and are available at Additionally, the Service only actions related to human population http://www.regulations.gov at Docket considered stationary human growth (e.g., roads, development, No. FWS–R2–ES–2012–0042 and at the population and did not account for transmission lines) with the action Arizona Ecological Services Fish and transient humans crossing the border. agency to minimize the effects of Wildlife Office (see FOR FURTHER Our response: We understand that increasing the HII within critical INFORMATION CONTACT). Enhanced color laws related to the expeditious habitat. We understand human maps and site-specific boundaries of the construction of border infrastructure in population growth may occur without critical habitat in both GIS and Google areas of high illegal entry may be consultation in areas where a Federal Earth format can be viewed and waived by the Secretary of DHS, and nexus does not exist; in these areas, downloaded from http://www.fws.gov/ have discussed this in the Special special management considerations to southwest/es/arizona.http. See our Management Considerations or minimize the effects of increasing the response to comment 43 in Comments Protections section of this final rule. As HII would occur on a voluntary basis. from States above for the Web site links also noted in this final rule, there are no (88) Comment: The Service should to all the GIS data layers that we used known plans to construct additional consider that as conservation in evaluating PCEs in this final rule. security fences in the designated critical uncertainties arise in the Mexican part (90) Comment: Has government-to- habitat, although should future national of the range and climate change alters government consultation with the security issues require additional natural resources, protecting critical Service occurred? measures, the Secretary of DHS may habitat in the United States and Our response: Yes. Please see the invoke the waiver, and special facilitating connectivity between current Government-to-Government

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Relationship with Tribes section of this Comments From Tribes United States that is critical to the final rule for a description of (94) Comment: The Tohono O’odham survival of the jaguar and that the area consultation between the Service and Nation should be excluded from critical is marginal for the jaguar in terms of the Tohono O’odham Nation. habitat designation based on section water, cover, and prey density. The (91) Comment: The BIA requested that 4(b)(2) of the Act. United States is not shown as a jaguar the Tohono O’odham Nation be Our response: We have determined, corridor on the map published by excluded from critical habitat pursuant to section 4(b)(2) of the Act, Rabinowitz and Zeller (2010). Biological studies and professional opinions designation based on section 4(b)(2) of that we will exclude approximately abound, and are cited by organizations the Act. The BIA references the jaguar 20,764 ha (51,308 ac) of Tohono opposing this designation, that credibly management plan that is under O’odham Nation land in Subunit 1a and show the jaguar prefers a wet tropical development by the Tohono O’odham approximately 10,829 ha (26,759 ac) of climate to breed and exist. Nation. Tohono O’odham Nation land in Subunit 1b, from the final designation of Our response: The Service agrees that Our response: We have determined, critical habitat. See the Exclusions habitat in the United States is on the pursuant to section 4(b)(2) of the Act, northern periphery of the jaguar’s range; Based on Other Relevant Impacts that we will exclude approximately however, the Service has identified section above for more detailed 20,764 ha (51,308 ac) of Tohono critical habitat for the jaguar in information. O’odham Nation land in Subunit 1a and (95) Comment: Fort Huachuca should accordance with the Act and approximately 10,829 ha (26,759 ac) of be exempted from critical habitat implementing regulations. See our Tohono O’odham Nation land in designation based on the Fort’s response to comment number 1 in the Subunit 1b, from the final designation of Integrated Natural Resources Peer Reviewer Comments above. (98) Comment: Any area that contains critical habitat. See the Exclusions Management Plan (INRMP) that was the PCEs does not automatically qualify Based on Other Relevant Impacts prepared under section 101 of the Sikes as critical habitat. It can hardly be said section above for more detailed Act (16 U.S.C. 670a) and which information. that these features are essential to the currently provides a benefit to the conservation of the species merely (92) Comment: Several points in the jaguar. because they can sustain temporary Our response: The Service has proposed rule indicate that adverse presence of the species. modification analysis would be required exempted Fort Huachuca from critical Our response: The Act does not state only for occupied habitat. Why would habitat designation based on their that critical habitat applies only to the analysis not be required for INRMP. See the Exemptions section of resident or breeding populations, or that unoccupied critical habitat? this final rule for further information. for an area to be occupied critical Our response: Adverse modification Public Comments habitat it must contain a female or analysis during section 7 consultation documented breeding. Rather, section General would be conducted for projects with a 3(5)(A)(i) of the Act defines occupancy Federal nexus that may adversely (96) Comment: Data indicate Arizona as the specific areas within the modify critical habitat in both occupied and New Mexico lack the habitat geographical area occupied by the and unoccupied critical habitat. necessary for jaguars. There is no species, at the time it is listed. Further, Sinaloan thornscrub in the United in the decision of Arizona Cattle (93) Comment: The draft economic States; therefore, the United States does Grower’s Assoc. v. Salazar, 2009 U.S. analysis should address impacts to not have the vegetation necessary for App. Lexis 29107 (June 4, 2010), the national security that could result if the jaguars to feed, breed, reproduce, and Ninth Circuit affirmed that the Service construction of border fences or related find shelter, which is why there is no has the authority to designate as infrastructure is affected by jaguar jaguar population in existence in the occupied all areas used by a listed conservation. Land located near the United States. species with sufficient regularity that border may be devalued due to national Our response: The Service members of the species are likely to be security impacts. Illegal immigration acknowledges that Sinaloan thornscrub present during any reasonable span of and drug trafficking may increase in the does not occur in the United States. time. Therefore, occupancy of an area vicinity of the proposed designation. However, we have determined that can be indicated by the presence of an Our response: Chapter 4 of the draft Madrean evergreen woodland and individual member of the species, and economic analysis discusses impacts to semidesert grassland provide the biotic we have determined that critical habitat border protection activities. As community component of the physical may have been occupied at the time of described in section 4.1 of the draft or biological feature utilized by jaguars listing based on this definition in economic analysis, CBP does not north of the U.S.-Mexico border. conjunction with observations of jaguars anticipate that activities planned within Therefore, these two biotic communities in those areas (as described in Table 1 the proposed designation will cause are included as a PCE within the of this final rule). permanent changes to the landscape or designation. Further, the Act does not (99) Comment: The proposed critical sever connectivity to Mexico and are, require a breeding or reproducing habitat in the United States will have therefore, unlikely to require any population of jaguars be present for the little to no effect on the jaguar’s survival changes to jaguar conservation measures purposes of designating critical habitat. and recovery. The listed species is the than those already planned under the (97) Comment: Habitat in the United entire jaguar taxon; critical habitat, listing of the species. CBP already States (including southeastern Arizona therefore, must be essential to implements baseline conservation and southwestern New Mexico) is at the conserving that species as a whole. measures according to best management northernmost extreme of the jaguar’s Other than a possible contribution to the practices for the jaguar in all critical range, and is peripheral, marginal, and genetic diversity of the species, there is habitat units. As a result, we do not not essential to the conservation of the no indication of any kind why the forecast any impacts to national security species, as demonstrated by Rabinowitz designation of critical habitat would as a result of critical habitat designation (1997), who has consistently maintained somehow be essential to the for jaguar. there is no area in the southwestern conservation of the species as a whole.

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Our response: Critical habitat in the in accordance with the Act and its in the United States. Critical habitat United States contributes to recovery implementing regulations. The Service receives protection under section 7 of across the jaguar’s entire range by has determined that designation of the Act through the requirement that providing the physical or biological critical habitat for the jaguar is prudent Federal agencies ensure, in consultation feature for jaguar critical habitat and the and determinable based on the best with the Service, that any action they associated PCEs. The Service recognizes available scientific data available. authorize, fund, or carry out is not likely that the designated critical habitat in the Section 4(a)(3)(A) of the Act, states that to result in the destruction or adverse United States is only a small portion of critical habitat shall be designated for modification of critical habitat. See our the jaguar’s range and we anticipate that endangered and threatened species to response to comment number 52 in recovery of the entire species will rely the maximum extent prudent and Comments from States above. primarily on actions that occur outside determinable. Therefore, we are (103) Comment: The Service should of the United States; activities that may required to designate critical habitat for consider the importance of connecting adversely or beneficially affect jaguars the jaguar to fulfill our legal and the Jalisco and Sonora populations to in the United States are less likely to statutory obligations. See our response support a stable metapopulation in the affect recovery than activities in core to comment number 1 in the Peer Northwestern Management Unit. areas of their range (Jaguar Recovery Reviewer Comments above. Increasing connectivity between Jalisco Team 2012, p. 38). However, the portion (101) Comment: The Service states and Sonora improves population growth of the range in the United States is that a goal of critical habitat is to rate, decreases the probability of located within a secondary area (as support a population of 50 to 100 extinction and increases genetic identified in the Recovery Outline) that jaguars in the United States by heterozygosity in Sonora, creates a provides a recovery function benefitting protecting and increasing connectivity stable Sonoran population, and supports the overall recovery unit (Jaguar between the United States and Mexico. a stable metapopulation. Creating a Recovery Team 2012, pp. 40, 42). For Our response: See our response to breeding population in the United example, specific areas within this comment number 4 in the Peer Review States could have detrimental effects on secondary area that provide the physical Comment section above. population growth and persistence in and biological features essential to (102) Comment: Corridors to the region, and conservation measures jaguar habitat can contribute to the unsuitable or marginal habitat can de- in Mexico rather than the United States species’ persistence and, therefore, stabilize jaguar populations (Desbiez et are needed to benefit jaguars in the overall conservation by providing areas al. 2012), particularly if the source Northwestern Management Unit. to support some individuals during population is itself unstable. Analyses Our response: We agree that jaguar dispersal movements, by providing presented by Carillo et al. (2007) conservation in Mexico and throughout small patches of habitat (perhaps in indicate that the Sonora population its range are necessary to recover the some cases with a few resident jaguars), appears to be decreasing, and some species, and we are collaborating with and as areas for cyclic expansion and jaguar experts consider the partners to conserve jaguars throughout contraction of the nearest core area and southwestern United States to consist of their range, including improving breeding population in the marginal habitat for jaguars (see Johnson dispersal opportunities between the Northwestern Recovery Unit (about 210 et al. 2011). Thus, linking jaguar Jalisco and Sonora populations. We km (130 mi) south of the U.S.-Mexico population in Mexico to the United disagree that designating critical habitat border. States may establish a detrimental will detrimentally affect jaguar Independent peer review cited in our source-sink relationship. The results of population growth and persistence in July 22, 1997, clarifying rule (62 FR our PVA analysis indicate that the the region (see our response to comment 39147, pp. 39153–39154) states that Service’s goal of establishing a breeding number 15 in Peer Reviewer Comments individuals dispersing into the United population of jaguars in the United and 52 in Comments from States above). States are important because they States may have negative consequences The purpose of the designation of occupy habitat that serves as a buffer to to the stability and persistence of jaguar critical habitat is not to establish a zones of regular reproduction and are populations in the Northwestern breeding population of jaguars in the potential colonizers of vacant range, and Management Unit. United States. The purpose of critical that, as such, areas supporting them are Our response: We disagree that habitat in the United States is to provide important to maintaining normal designating critical habitat will small patches of habitat (perhaps in demographics, as well as allowing for destabilize the nearest breeding some cases with a few resident jaguars) possible range expansion. As described population in Mexico. The purpose of to allow for the cyclical expansion and in the Recovery Outline for the Jaguar designating critical habitat in the United contraction of the nearest core area in (Jaguar Recovery Team 2012, pp. 40, States is not to create a self-sustaining, Mexico. Critical habitat is not being 42), the Northwestern Recovery Unit is breeding population north of the U.S.- designated to create a self-sustaining, essential for the conservation of the Mexico border, but to provide small breeding population north of the U.S.- species; therefore, consideration of the patches of habitat (perhaps in some Mexico border, but to allow individuals spatial and biological dynamics that cases with a few resident jaguars) to from the nearest breeding area in allow this unit to function and that allow for the cyclical expansion and Mexico areas within which they may benefit the overall unit is prudent. contraction of the nearest core area in persist during a portion of their life Providing connectivity from the United Mexico. Therefore, critical habitat in the cycle. States to Mexico is a key element to United States contributes to recovery by (104) Comment: The Service should maintaining those processes. providing protection of these areas work with Dr. Rabinowitz and other (100) Comment: There is no rational within the proposed Northwestern jaguar experts in Mexico, Central or prudent basis for designating critical Recovery Unit. Further, the jaguar has America, and South America to protect habitat in the United States. There is no been listed as an endangered species jaguar habitat, including corridors. area in the United States that is essential since 1972, and already receives Since the nearest breeding population is to the conservation of jaguars. protection under the Act. The 209 km (130 mi) south in Mexico and Our response: The Service has designation of critical habitat does not there are breeding populations identified critical habitat for the jaguar increase the number of jaguars present throughout Central and South America,

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science and logic dictate spending agency within jaguar critical habitat will population of jaguars is not the purpose resources and efforts where jaguars continue to be evaluated to determine of critical habitat designation. See our breed. their impacts on critical habitat. response to comment number 11 in Peer Our response: The Service is (108) Comment: The lack of breeding Reviewers Comments above. collaborating with partners (including populations or residency in the United (109) Comment: Some authors argue members of Dr. Rabinowitz’s States indicates there is no critical that suitable habitat for females does organization, Panthera) to conserve habitat. There are no areas in the United exist in southern Arizona and New jaguars and their habitat throughout the States that could be considered Mexico, but note that habitat range of the jaguar, particularly within ‘‘occupied.’’ The males detected in the preferences differ considerably between the proposed Northwestern Recovery United States have likely originated male and female jaguars (Boydston and Unit. We are currently working with the from the Sonora population, and their Lo´pez-Gonza´les 2005). The lack of Jaguar Recovery Team to complete a genetic resources are thus a female detections in the United States draft recovery plan for the jaguar, which consequence of the population genetics may be indicative of conditions over the we expect will be available in 2014. The and environmental conditions acting past 60 years that have resulted in an recovery plan will include guidance, upon the Sonora population. While the altered landscape whereby habitats criteria, and actions pertaining to Sonora population may be important for preferred by females (e.g., forested areas, recovering the species throughout its the conservation of the species, a small especially broad-leaf forests (Boydston entire range (although focusing on the population in the United States, if it was and Lo´pez-Gonza´les 2005)) no longer Northwestern Recovery Unit), including to exist, is not an important peripheral occur in the United States in sufficient information about habitat, corridor, and population in the context of the quantities to support female occupancy breeding area protection. conservation of the species. Based on and breeding. Moreover, because (105) Comment: The designation of the movement behavior of female females have not been detected recently critical habitat appears political instead jaguars, it is unlikely that female jaguars in the United States, habitat conditions of scientific, which violates the Act at would cross road barriers (some at the locations of female jaguar every level. including large highways with detections, used in building habitat Our response: Designation of critical presumably high traffic volumes) or models, have likely changed, a fact that habitat has been done in accordance other areas of human disturbance in the is not accounted for by the approach with statutory requirements. See our over 130 miles between the Sonora taken by the Service’s modeling effort to response to comment number 1 in the population and the areas of critical identify and map critical habitat. Peer Reviewer Comments above. habitat in the United States. Suitable Similarly, the development of PCEs for (106) Comment: Set-aside protection habitat for jaguars between the Sonora critical habitat is based on records that mechanisms, like critical habitat, may population and the United States is are likely to be mostly male jaguars. not be necessary to meet the jaguar’s fragmented and of marginal quality. A Consequently, the areas identified as habitat needs. general increase in human impacts critical habitat may be suitable for male Our response: See our response to across the landscape through time is jaguars, but fail either to benefit female comment number 1 in the Peer Reviewer correlated with a lack of female records jaguars or allow for the establishment of Comments above. in the United States, lending credence breeding territories. (107) Comment: Habitat fitting the to the possibility that conditions in Our response: We acknowledge that description of the physical or biological northern Mexico may act as a barrier to the majority of detections used to feature and associated PCEs of jaguar female dispersal to the United States. develop the habitat model for the jaguar critical habitat is widespread in Our response: As described in the in the Northwestern Recovery Unit may Arizona, and any actions that would proposed rule and this final rule, have been males. Standard camera- impact jaguars are already required to be barriers prohibiting the dispersal of trapping techniques appear to have a evaluated by provisions under the females to the United States are bias towards capturing male jaguars as Endangered Species Act and National unknown. Based on information about opposed to females (Harmsen et al. Environmental Policy Act (NEPA). large carnivores, male felids can move 2009, entire). Harmsen et al. (2009, pp. Our response: Since the jaguar is a long distances in the process of 615–616) captured 23 individual males federally listed species under the Act, dispersal (Logan et al. 1986 and Lo´pez during 100 days of camera trapping, but actions with a Federal nexus that may Gonza´lez 1999, as described in only captured 6 individual females impact jaguars are evaluated under the Boydston and Lo´pez Gonza´lez 2005, p. during this same time period. This is Act and potentially NEPA. However, 51), but when female dispersal does likely because male jaguars roam farther critical habitat does afford protection to occur, distances are much shorter and tend to use large pathways more the jaguar through section 7 (Logan and Sweanor 2011, as described than females, making it more likely they consultation under the Act through the in Boydston and Lo´pez Gonza´lez 2005, will be picked up using camera trap requirement that Federal agencies p. 51). Therefore, it may be possible that techniques (which often are located ensure, in consultation with the Service, barriers exist to female dispersal into along open pathways to facilitate that any action they authorize, fund, or the United States; however, as described capturing recognizable photos). carry out is not likely to result in the in the Recovery Outline for the Jaguar However, even when used off trail (such destruction or adverse modification of (Jaguar Recovery Team 2012, pp. 24, as along small streams, game trails, and critical habitat. Under the statutory 44), further research on gender- and age- landscape features), Harmsen (2006) provisions of the Act, we determine specific estimates of dispersal rates and found that camera trapping did not destruction or adverse modification on travel distances is needed within the reveal any habitat characteristics the basis of whether, with Northwestern Recovery Unit. The Act associated with higher capture rates of implementation of the proposed Federal does not state that critical habitat females (as cited in Harmsen et al. 2009, action, the affected critical habitat applies only to resident or breeding pp. 613, 618). would continue to serve its intended populations, or that for an area to be Even so, the Act does not state that conservation role for the species. occupied critical habitat it must contain critical habitat must apply to both males Therefore, actions that are funded, a female or documented breeding. and females of a species. Further, permitted, or carried out by a Federal Further, establishing a breeding establishing a breeding population of

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jaguars is not the purpose of critical last point, no adverse modification of Chupadera, Datil, Sawtooth, Luera, and habitat designation. See our response to critical habitat, is a major determining Summit Mountains in New Mexico. comment number 11 in Peer Reviewers factor in whether the Secretary would These areas represent a potentially vital Comments above. consider the exclusion of the mine area refugium for the northern jaguar (110) Comment: The United States is from critical habitat. Since the Service population, given the expected a peripheral area; therefore, the Service determined the proposed mining trajectory of increasing land use and should not designate critical habitat in operation would not destroy or climate change across the southwestern the United States. adversely modify critical habitat, no United States and northern Mexico. Our response: Please see our response conservation measures or reasonable or Our response: The additional Sky to comment number 1 in the Peer prudent alternatives were suggested. Islands and areas north of the Reviewer Comments above. Therefore, probable economic impacts designated critical habitat area may be (111) Comment: Habitat in the United forecast as the result of the designation usable by jaguars and may in fact States is marginal and not essential to of critical habitat are predominantly contribute to the recovery of the species, the conservation of the species, as limited to transactional costs. Since the but they are not considered occupied at demonstrated by Rabinowitz (2010). basis for an economic-based exclusion is the time of listing, and are not Our response: The Service agrees that to forego probable economic impacts, considered essential to the conservation habitat in the United States is on the and there are limited forecast economic of the species as unoccupied habitat. northern periphery of the jaguar’s range; impacts from critical habitat, the Consequently, these areas do not meet however, the Service has identified Secretary did not choose to enter into the definition of critical habitat as we critical habitat for the jaguar in the discretionary exclusion analysis have interpreted it because they were accordance with the Act and under section 4(b)(2) of the Act. As not occupied at the time of listing nor implementing regulations. See our stated previously, the costs of are they considered essential to response to comment number 1 in the developing the mine and any recovery. See our response to comment Peer Reviewer Comments above. conservation measures implemented or number 3 in Peer Reviewer Comments (112) Comment: The Service should recommended by the Service specific to above. exclude the Rosemont Mine. Excluding jaguar are primarily the result of the (115) Comment: The Service should the mine will not cause the species’ listing of the species, not critical habitat. designate additional areas of critical extinction. Rosemont Mine has incurred (113) Comment: Habitat Conservation habitat because the agency cannot be costs well in excess of $100 million in Plans (HCPs) should not be excluded sure of how much habitat is currently developing the project and should be from critical habitat, specifically the occupied by jaguars in the United excluded based on economic Pima County Draft Multi-Species HCP States, and lack of detection does not considerations. and Malpai Borderlands HCP should not indicate the species is absent. With few Our response: We have not excluded be excluded. exceptions, the relatively large number the Rosemont Mine from critical habitat. Our response: The Pima County draft of confirmed jaguar sightings on which See our response to comment number Multi-Species HCP and the Malpai the proposed rule was based were not 71 in the Comments from States above. Borderlands HCP lack management the result of any official effort to Additionally, the Service recognizes plans that address jaguar habitat. conduct a comprehensive survey of the the perceptional effects of the Consequently, we have not determined northern jaguar population in the designation of critical habitat in general, that the benefits of excluding these areas United States, but were instead and specifically, for the designation of outweigh the benefits of including these essentially collected accidentally. critical habitat for the jaguar. The costs areas. Considering the large and growing of developing the Rosemont Mine and (114) Comment: The Service should number of purely anecdotal sightings of the potential economic benefit of the include all of the ‘‘Sky Islands’’ within this extremely and notoriously elusive mine are not factors in considering the designation including the species, it seems extremely reasonable whether to exclude the mine area from Chiricahua, Dos Cabezas, Dragoon, to assume that, should anyone actually critical habitat. The Secretary has the Mule, Rincon, Santa Catalina, try to find jaguars in this region, far discretion to exclude specific areas from Galiuro,Winchester, Whitlock, Pinalen˜ o, more individual jaguars would be critical habitat based on the economic Santa Teresa, Animas, Pyramid, Alama discovered. impact or other relevant factors. The Hueco, Big Hatchet, Little Hatchet, Our response: The Service agrees that basis for excluding a particular area due Florida, West and East Potrillo, Cedar, the lack of detection does not indicate to a probable economic impact is to and Big Burro Mountains, and portions the species is absent, and we relieve the probable impact that may be of the Peloncillo Mountains north of the acknowledge this concept in our due solely to the designation of critical current boundaries of the Northwestern proposed rule and this final rule. The habitat. In this particular instance for Recovery Unit. These areas should be Service recognizes that many mobile jaguar critical habitat, we find no such included because they either have species are difficult to detect in the wild probable economic impact due solely to documented jaguar presence or they because of morphological features (such the designation of critical habitat. The contain the PCEs as defined by the as camouflaged appearance) or elusive Rosemont Mine area is occupied by the Service. The Service should also behavioral characteristics (such as jaguar and, consequently, any include areas north of the current nocturnal activity) (Peterson and Bayley conservation measures that have been proposed critical habitat in the 2004, pp. 173, 175). This situation implemented to date, or anticipated, for Mogollon Rim area (along with presents challenges in determining the jaguar are a result of the species’ adjoining spurs and canyons, including whether or not a particular area is listing, not the designated critical the Grand Canyon) in Arizona and to occupied because we cannot be sure habitat. Furthermore, a recently the north and east into the contiguous that a lack of detection indicates that the completed biological and conference lands of the Gila National Forest along species is absent (Peterson and Bayley opinion found the construction and with the Plains of San Augustin, the 2004, p. 173). See Occupied Area at the operation of the Rosemont Mine would Zuni Plateau, the El Malpais National Time of Listing, above, in this final rule. not jeopardize the jaguar nor adversely Monument and National Conservation Additionally, jaguars are currently modify designated critical habitat. This Area, and the San Mateo, Magdalena, being surveyed for and monitored in

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mountainous areas in the United States Comments above and comment number therefore, we determine that 1972 is the north of the U.S.-Mexico border and 42 in Comments from States. date the species was listed. south of Interstate 10, from the (118) Comment: The Santa Rita (122) Comment: Occupancy should be Baboquivari Mountains in Arizona to Mountains and Subunit 4b are not determined based on current records, the Peloncillo Mountains in New occupied. including up to the past 15 years. Mexico. Information gathered during Our response: The Santa Rita Our response: Determining occupancy this survey and monitoring project (up Mountains are within Unit 3. We by a species such as the jaguar can be through September 11, 2013) has been determined Unit 3 may have been difficult, given that they were added to incorporated into this final rule (see occupied at the time of listing and is the list many years ago, and, by nature, Table 1). currently occupied based on a record of are cryptic and difficult to detect. (116) Comment: The Service should a male shot in the Patagonia Mountains Therefore, we determine that the follow the jaguar habitat modeling (also within Unit 3) in 1965 and appropriate timeframe within which to efforts of Hatten et al. (2005) and multiple sightings of a male jaguar from consider areas occupied by the jaguar at Robinson (2006) as a basis for including October 2012 through September 11, the time of its listing is from 1962 (10 additional areas in these two States. 2013, in the Santa Rita Mountains (see years prior to listing, which is the Hatten et al. (2005) identified 21–30 Table 1 in the final rule). We did not average lifespan of a jaguar) to percent of Arizona (approximately designate Subunit 4b based on September 11, 2013. See our response to 62,000–88,600 km2 (23,938–34,209 occupancy; rather, this unit provides comment number 42 in the Comments mi2)) as potential jaguar habitat, and connectivity from Subunit 4a to Mexico from States above. (123) Comment: All records collected Robinson (2006) identified (by connecting it to Unit 3, which by and cited in McCain and Childs approximately half of New Mexico provides connectivity to Mexico). (2008) should be removed, as the use of (approximately 156,800 km2 (60,541 Connectivity to Mexico is an essential female scat as a scent lure at some point mi2)) as potential jaguar habitat. feature of jaguar habitat in the United during their study indicates that all of States. Our response: As discussed above, their data were invalid. during the Jaguar Recovery Team’s (119) Comment: The Patagonia Unit Our response: We disagree. We analysis and modeling effort, the team (Unit 3) is considered occupied based understand that some of the jaguar considered the modeling efforts of on only one observation of a jaguar; records used in our proposed rule may Hatten et al. (2005, entire) and Robinson therefore, it should not be considered be disputed due to the possibility that (2006, entire), and further refined the occupied. female scat was used as a scent lure in Hatten et al. (2005, entire) model such Our response: At the time we some areas. Therefore, we removed all that a similar model could be applied published the proposed rule (77 FR sightings that may have been influenced across the entire Northwestern Recovery 50214; August 20, 2012), we were aware by female scat, which we determined to Unit. The team provided this analysis of only one undisputed Class I jaguar be from October 3, 2008 (the date of and habitat model in their 2013 report record from Unit 3, which was a male Emil McCain’s request for jaguar scat entitled Jaguar Habitat Modeling and shot in the Patagonia Mountains in 1965 from the Phoenix Zoo), through March Database Update (Sanderson and Fisher (see Table 1 of this final rule). Since 2, 2009 (the date Macho B was captured 2013, entire). Therefore, we based then, a male jaguar has been and flown to the Phoenix Zoo). Because critical habitat boundaries on the documented numerous times in the we only have information of female scat physical and biological feature and Santa Rita Mountains (see Table 1 of as a scent lure potentially being used PCEs from the updated habitat modeling this final rule), which are also within from October 2008 through March 2009, report, in which the habitat features Unit 3. Therefore, we consider this unit it is speculative to assume that sightings preferred by the jaguar in the proposed occupied. outside of this timeframe were Northwestern Recovery Unit were (120) Comment: The use of female influenced by female scat as a scent lure described based on the best available scat as a scent lure renders all scientific because the best scientific and science and expert opinion of the Jaguar documentation of jaguars suspect. commercial data does not indicate this Recovery Team. Our response: We understand that to be the case. See Table 1 of this final (117) Comment: Congress and the some of the jaguar records used in our rule for all of the undisputed Class I Service’s regulations or intentions were proposed rule may be disputed due to jaguar records used to determine to guide designation of critical habitat to the possibility that female scat was used occupancy. lands that are actually occupied by the as a scent lure in some areas. Therefore, (124) Comment: Remove ‘‘verified listed species. Critical habitat should be we removed all sightings that may have tracks’’ from consideration, as they can based on current occupation, not been influenced by female scat, which be confused with mountain lion tracks. historical, and no areas are currently we determined to be from October 3, Our response: We do not consider it occupied or were occupied at the time 2008 (the date of Emil McCain’s request necessary to remove verified tracks from of listing. for jaguar scat from the Phoenix Zoo) consideration because the tracks that are Our response: The Service’s through March 2, 2009 (the date Macho included in our determination of designation of occupied critical habitat B was captured and flown to the occupied critical habitat were verified is in compliance with the Act. Under Phoenix Zoo). See Table 1 of this final by mountain lion hunters who have the second part of the Act’s definition rule for all of the undisputed Class I sufficient experience in distinguishing of critical habitat, we can designate jaguar records used to determine mountain lion tracks from jaguar tracks. critical habitat in areas outside the occupancy. (125) Comment: Data used by the geographical area occupied by the (121) Comment: The correct date of Service to designate critical habitat are species at the time it is listed upon a listing should be 1997 instead of 1972. insufficient, inaccurate, or unreliable determination that such areas are Our response: As discussed in the because the habitat models developed essential for the conservation of the final rule, our intention was to list the by Sanderson and Fisher (2011, pp. 1– species. In regards to areas occupied at species throughout its entire range at the 11; 2013, entire) used other than Class the time of listing, see our response to time it was added to the Endangered I jaguar records and disputed Class I comment number 9 in Peer Reviewers Species Conservation Act in 1972; records (including jaguar locations that

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may have been from ‘‘canned’’ hunts). Conservation of Jaguars, above). agency science and the soundness of Therefore, it is not possible to determine Further, because the PCEs are based on agency decisions consistent with the or model the PCEs essential for jaguars. recommendations from the Jaguar standards established for review of Our response: See our response to Recovery Team and information from agency rulemakings under the comment number 43 in the Comments the latest jaguar habitat model Administrative Procedure Act. Holland from States above. (Sanderson and Fisher 2013, entire), we (2008) suggests that the Act should be (126) Comment: The 130 jaguar have captured the areas in the United held to a similar information standard locations used in the Service’s August States that support the conservation of that was used in that case, either 20, 2012, proposed rule (77 FR 50214) the jaguar. through adoption by Federal courts, are of questionable legitimacy. (129) Comment: The unoccupied Congressional amendment to the Act, or Our response: See our response to units (specifically Subunit 4b) lack the Executive Order. The Service has no comment number 43 in the Comments essential physical and biological authority to adopt information from States above for an explanation of features for critical habitat. standards different than those the datasets used in our August 20, Our response: The Service recognizes referenced in the discussion above. 2012, proposed rule (77 FR 50214), July that three designated critical habitat These are the standards that we used in 1, 2013, revised proposed rule (78 FR Subunits (1b, 4b, and 4c) do not contain the designation of critical habitat for the 39237), and this final rule. all of the physical or biological features jaguar. (127) Comment: None of the critical essential to the jaguar. However, under (132) Comment: The questionnaires habitat units contain all the PCEs the second part of the definition of distributed by the Service to jaguar essential to the conservation of the critical habitat under the Act, we can experts for use in developing the jaguar, or they do not have the PCEs in designate critical habitat in areas recovery outline for the species and the the appropriate quantities to support outside the geographical area occupied application of the Delphi Method (a jaguars. by the species at the time it is listed structured communication technique Our response: All of the critical upon a determination that such areas using a systematic, interactive habitat units contain all of the PCEs in are essential for the conservation of the forecasting method which relies on a the appropriate quantities to support species. The Act does not require the panel of experts) are scientifically jaguars. The PCEs are based on the latest Service to identify PCEs for unoccupied invalid. jaguar habitat model produced by the areas. In areas lacking all PCEs Our response: The use of Jaguar Recovery Team (Sanderson and (specifically Subunits 1b, 4b, and 4c), questionnaires and the Delphi Method Fisher 2013, entire), which is the best these areas were designated because is not a scientifically invalid process. commercial and scientific data they are essential to the conservation of The Delphi Method can be a useful available. Further, all PCEs are found in the jaguar because they provide technique in solving complex natural all units of the final critical habitat continuity to Mexico and connect resource issues by synthesizing expert designation and jaguars have been Subunits within the United States that opinion (for example, see Hess and King documented in each unit (in some cases would otherwise not be connected to 2002, entire; Taylor and Ryder 2003, multiple times over multiple months Mexico (Subunits 1a and 4a). entire; Plummer and Armitage 2007, and years). Therefore, we conclude that (130) Comment: Additionally, the entire), particularly when data are all of the critical habitat units contain Service failed to meet Data Quality Act lacking, there is great uncertainty, and all of the PCEs in the appropriate (DQA) standards. The DQA attempts to the primary source of information is quantities to support jaguars. ensure that Federal agencies, such as the informed judgment (Hess and King (128) Comment: It is not necessary to Service, use and disseminate accurate 2002, p. 28). This is the case for jaguars have all of the PCEs in each critical information by requiring those agencies in the northwestern-most part of the habitat unit. The Service should to issue information guidelines ensuring species’ range. For this reason, we consider designating areas in which the quality, utility, objectivity, and determined that a modified Delphi only some of the PCEs are present. integrity of the information Method (in that we sent one round Our response: The Service recognizes disseminated. The information instead of multiple rounds of questions that each critical habitat unit does not disseminated by the Service in the to scientists with experience or need to contain all of the PCEs; proposed rule fails to meet DQA expertise in jaguar ecology (primarily in however, the Service considered the fact standards because it is both biased and the northwestern-most portion of the that this area is in the northern inaccurate. jaguar range) or large cat ecology) was periphery of the jaguar’s range. Our response: See our responses to appropriate to determine the habitat Designating critical habitat only in areas comment numbers 16 and 18 in Peer features relied on by jaguars in this area. with all PCEs provides the best habitat Reviewer Comments above. Please see the Recovery Outline for the available and, therefore, critical habitat (131) Comment: The Service must Jaguar for a description of this process for the jaguar in the United States. adopt ‘‘regulatory Daubert’’ by informal (Jaguar Recovery Team 2012, pp. 15– Because habitat in the United States is rulemaking to prevent further 16). at the edge of the species’ northern subordination of science to political (133) Comment: ‘‘Data’’ resulting from range, and is marginal compared to policy (Holland 2008). a compilation of animals either lured known habitat throughout the range, we Our response: The commenter’s here artificially by sexual scent baiting have determined that all of the primary reference to Daubert in Holland (2008, or trapped elsewhere and then released, constituent elements discussed must be p. 301) refers to the Daubert v. Merrell do not support any scientific conclusion present in each specific area to Dow Pharmaceuticals, Inc. case that was of authentic habitat and run afoul of the constitute critical jaguar habitat in the decided by the Supreme Court. In ethics requirements of biological science United States, including connectivity to Daubert v. Merrell Dow Pharmaceuticals and of the Service. Mexico (but that connectivity may be Inc., the U.S. Supreme Court Our response: The Service used the provided either through a direct empowered federal judges to reject best available science to determine connection to the border or by other irrelevant or unreliable scientific critical habitat for the jaguar. We areas essential for the conservation of evidence. Daubert provides a suitable understand that some of the jaguar the species; see Areas Essential for the framework for reviewing the quality of records may be disputed due to the

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possibility that female scat was used as Recovery Team comprises jaguar necessary PCE associated with low a scent lure in some areas, or that some experts, large-cat experts, and human influence, and thus should not individuals may have been released for stakeholders from the United States and be included in the proposed designation ‘‘canned’’ hunts. Therefore, we removed Mexico; therefore, we consider that the of critical habitat for jaguar. all sightings that may have been work produced by the team is the best Our response: We understand there influenced by female scat, which we available scientific and commercial may be discrepancies due to the determined to be from October 3, 2008 data, and that following the team’s mapping scale of HII (1 km2 (0.4 mi2)), (the date of Emil McCain’s request for recommendations is the best avenue to and have accounted for this in the jaguar scat from the Phoenix Zoo), conservation of the species and by textual exclusion of paved or developed through March 2, 2009 (the date Macho extension designating critical habitat. areas that may have been included in B was captured and flown to the Therefore, we have incorporated the the critical habitat boundary because of Phoenix Zoo), and we did not use team’s recommendation for HII in the this scale. However, overall HII is the records that may have been from northern portion of the proposed best available science consistently and ‘‘canned’’ hunts (Johnson et al. 2011, p. Northwestern Recovery Unit as a PCE objectively reflecting human influence 9). See Table 1 of this final rule for all for jaguar critical habitat. on the landscape, and therefore we of the undisputed Class I jaguar records (136) Comment: In developing the continue to use it as the data source for used to determine occupancy. PCE of human influence, the Service the human influence PCE. The critical (134) Comment: The Service has given assumes that human influence has not habitat designation consists entirely of insufficient consideration of changed over the time period of jaguar rural lands, in variously low levels of competition for hunting territories or of records used in the analysis. Clearly development and population density. availability of prey species that would human population density, the location All the units are in counties with occur in the critical habitat areas if and traffic density of major roads, and population densities lower than their jaguars were to actually inhabit the the extent of stable nighttime lighting statewide average, with the exception of proposed critical habitat. Any increase (three examples of human influence on Pima County, which includes the city of in predator population would which this PCE is based), have changed Tucson. necessarily create an imbalance in that over the last century. By using the HII (138) Comment: If the Service relationship (e.g., an increase in GIS layer, the Service could grossly designates critical habitat, a de facto predator population without an increase miscalculate the habitat characteristics wilderness will be created and people in prey population due to expansion of associated with jaguar locations from and activities will be excluded from jaguar population). the early to mid-20th century, including critical habitat. Our response: The designation of overestimating the degree of human Our response: Designated critical critical habitat does not increase the influence that jaguars prefer. The habitat does not create a wilderness number of jaguars present in the United Service should use historical records to area, reserve, or otherwise protected States. Designated critical habitat estimate human influence associated area. Humans and legal activities are not receives protection under section 7 of with jaguar locations throughout the excluded from designated critical the Act through the requirement that 20th century. Without a proper habitat. Legal activities that have a Federal agencies ensure, in consultation correction for temporal variation in HII, Federal nexus (in that they occur on with the Service, that any action they the GIS approach taken by the Service Federal lands, require a Federal permit, authorize, fund, or carry out is not likely to develop and map PCEs is or receive Federal funds) will be to result in the destruction or adverse fundamentally flawed and evaluated on a case-by-case basis with modification of critical habitat. As inappropriate. respect to section 7 (consultation with discussed in the proposed rule and this Our response: The Service recognizes the Service) of the Act to ensure they do final rule, the purpose of designating the temporal variation in human not destroy or adversely modify critical habitat in the United States is to influence over the time period of jaguar designated critical habitat. provide areas for transient jaguars (with records used in the analysis. However, (139) Comment: Human influence possibly a few residents) to support the as stated previously, the Act requires appears to be above the defined nearest breeding area to the south in the Service to use the best scientific and threshold within the proposed rule in Mexico, allowing this population to commercial data available. Data the northern Santa Rita Mountains and expand and contract, and, ultimately, pertaining to the variation of human should not be included in the proposed recover. It is our intent that the influence from 1962 to present is designation of critical habitat for the designation of critical habitat will lacking. jaguar. The GIS layer identified in the protect the functional integrity of the (137) Comment: The Service does not jaguar habitat model entitled ‘‘Human features essential for jaguar life-history account for the high level of current and Footprint,’’ available from requirements for this purpose into the historic human activity within the Socioeconomic Data and Applications future. northern Santa Rita Mountains. As a Center, does not fit the description (135) Comment: The range of HII result of mining operations in the provided in the proposed rule as it is included in the Service’s August 20, Greaterville, Rosemont, and Helvetia not a relative index normalized by 2012, proposed rule is too restrictive areas, the areas surrounding the biome and its scores range from 0 to 64. and should be increased. The primary proposed Rosemont Project have been When brought into a GIS, the Human constituent elements of jaguar critical subject to relatively high levels of Footprint layer (which fits the habitat should include areas with an HII human activity for over one and a half description provided in the proposed of up to 30, if not more. centuries. Given the close proximity of rule) clearly demonstrates that human Our response: The range of HII the northern Santa Rita Mountains to influence is high across a large area included in this final rule (less than 20) the second largest metropolitan area in proposed as critical habitat, including is appropriate. To the greatest extent Arizona and the area’s proximity to all of the northern Santa Rita Mountains possible, we have based jaguar critical State Highway 83, the area currently and the entirety of the Rosemont Project habitat, including the PCE for HII, on receives heavy human use. In particular, located within the proposed information compiled and produced by the areas within and surrounding the designation, as well as Subunit 4b. the Jaguar Recovery Team. The Jaguar Rosemont Project do not contain the Thus, according to the thresholds set

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forth by the proposed rule, the northern developed areas that may have been climate change has the potential to Santa Rita Mountains and the areas included in the critical habitat boundary adversely affect the jaguar within the within and surrounding the Rosemont because of this scale. next 50 to 100 years (Jaguar Recovery Project should not be included in the We understand that additional human Team 2012, p. 32). However, the degree proposed designation as they do not impacts from future development on to which climate change will affect include the necessary PCEs. private or State lands could occur. jaguar habitat in the United States is Our response: In our August 20, 2012, However, critical habitat does afford uncertain. Further, we do not know proposed rule (77 FR 50214), we some protection to the jaguar through whether the changes that have already incorrectly identified the Human section 7 consultation under the Act occurred have affected jaguar Footprint (which is measured on a scale through the requirement that Federal populations or distribution, nor can we of 0–100) available through agencies ensure, in consultation with predict how the species will adapt to or Socioeconomic Data and Applications the Service, that any action they be affected by the type and degree of Center as the GIS layer used to evaluate authorize, fund, or carry out is not likely climate changes forecast. Consequently, human influence. We did not use the to result in the destruction or adverse because the specific impacts of climate Human Footprint data, but rather the modification of critical habitat. Under change on jaguar habitats remains Human Influence Index (which is the statutory provisions of the Act, we uncertain at this time, we did not measured on a scale of 0–64). The determine destruction or adverse recommend that any areas be designated Human Influence Index is the data layer modification on the basis of whether, as critical habitat specifically to account used in both jaguar habitat models with implementation of the proposed for the negative effects of climate developed by Sanderson and Fisher Federal action, the affected critical change. (2011, p. 7; 2013, p. 6) and used to habitat would continue to serve its (142) Comment: It is inappropriate for designate critical habitat for the jaguar. intended conservation role for the the Service to address climate change We have corrected this final rule to species. Therefore, actions that are within the critical habitat designation reflect the appropriate data layer. funded, permitted, or carried out by a area for the jaguar because of the lack The Service utilized the Human Federal agency within jaguar critical of data or accurate down-scaled climate Influence Index GIS layer, which is habitat will continue to be evaluated to modeling. Climate change information based on eight input layers (human determine their impacts on critical from the IPCC is flawed; therefore, the population density, railroads, major habitat. Service should not consider it. roads, navigable rivers, coastlines, stable (141) Comment: Climate change is a Our response: See our response to nighttime lighting, urban polygons, and factor affecting jaguar adaptation and comment number 59 in Comments from land cover) to describe a relative index conservation, and the Service should States above. of human influence on the land. This include lands at higher elevations and (143) Comment: The Service received GIS layer is available from the latitudes in the critical habitat multiple comments regarding climate Socioeconomic Data and Applications designation. The Service should change. Some thought there was not Center hosted by the Center for consider that climate change will force sufficient information on climate change International Earth Science Information species, such as jaguars, to migrate for the Service to determine impacts to Network at Columbia University north, and designating critical habitat the jaguar. Others thought that there is (http://sedac.ciesin.columbia.edu/data/ for the jaguar in the United States is more than enough information on collection/wildareas-v2/sets/browse). necessary. impacts from climate change, which the Please see our response to comment Our response: The Service considered Service did not adequately consider. number 43 for a comprehensive list of numerous scientific information sources Our response: As required by section all data sources we used in our analysis. as cited in our proposed rule and this 4(b)(1)(A) of the Act, we use the best (140) Comment: Because final rule. The Service agrees that the scientific and commercial data available approximately 35 percent of the areas best available scientific information to designate critical habitat. We proposed as critical habitat are non- shows unequivocally that the Earth’s reviewed all available information federal lands, many of the areas climate is currently in a period of pertaining to climate change and the currently associated with high human unusually rapid change and the impacts jaguar, but climate change data specific influence could experience additional of that change are already occurring to jaguars or similar species is scarce. human impacts from future (National Fish, Wildlife, and Plants The Service recognizes that the best development. Critical habitat affords no 2012, p. 9). The Service recognizes that available scientific information shows protection to actions on private or state some species are shifting their unequivocally that the Earth’s climate is lands that do not require federal actions, geographic ranges, often moving currently in a period of unusually rapid and thus does little to alleviate this poleward or upwards in elevation change and the impacts of that change problem. Because of the importance (National Fish, Wildlife, and Plants are already occurring (National Fish, placed on the PCE of low human 2012, p. 10). Range shifts are not always Wildlife, and Plants 2012, p. 9). influence by the proposed rule, areas negative: Habitat loss in one area may be However, because the specific impacts currently associated with high human offset by an increase elsewhere such of climate change on jaguar habitats influence should not be included in the that if a species is able to disperse, it remain uncertain at this time, we did proposed designation. may face little long-term risk. However, not recommend any areas be designated Our response: We have not included it is clear that shifting distributions can as critical habitat specifically to account areas within critical habitat with high lead to a number of new challenges for the negative effects of climate human influence. In the proposed rule (National Fish, Wildlife, and Plants change. Please see our response to and this final rule we have identified an 2012, p. 26). The synergistic comment number 33 in Peer Reviewer HII of less than 20 as an essential PCE implications of climate change and Comments above. of critical habitat. We understand there habitat fragmentation are the most (144) Comment: The Service should may be discrepancies in some cases due threatening facet of climate change for not consider climate change because it to the mapping scale of HII (1 km2 (0.4 biodiversity (Hannah and Lovejoy 2005, is not certain to occur, or may not occur mi2)), and we have accounted for this in p. 4). The Service acknowledges in the to the severity that is predicted by the textual exclusion of paved or proposed rule and this final rule that experts.

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Our response: Please see our response physical or biological features where jaguar records in the United States, to comment number 59 in Comments ‘‘additional’’ special management is incorrectly calculate percentages based from States above. ‘‘needed’’. In Center for Biological on these records, and improperly round (145) Comment: Clarify if highways Diversity v. Norton, 240 F. Supp. 2d their results to create the false illusion and the City of Sierra Vista were 1090 (D. Ariz. Jan. 13, 2013), the court of an extinction crisis in the United excluded from critical habitat stated that the fact that habitat is already States. designation. under some sort of conservation Our response: We disagree. We have Our response: Yes, these areas are not management indicates that such habitat reviewed McCain and Childs (2008) and included in the critical habitat is critical. Therefore, special did not find there to be misstatements designation. When determining critical management considerations or and miscalculations in the report. habitat boundaries within this final rule, protection of the habitat features Additionally, McCain and Childs (2008) we made every effort to avoid including comprising jaguar critical habitat may is a peer-reviewed article published in developed areas such as lands covered be necessary. a reputable journal (Journal of by buildings, pavement, roads, cities, (147) Comment: Special management Mammalogy). Therefore, we continue to and other structures because such lands of jaguar critical habitat is not required utilize information in this article as lack physical or biological features for because of the cooperative management some of the best available science. jaguars. The scale of the maps we efforts and achievements of the Jaguar (150) Comment: The recovery outline prepared under the parameters for Conservation Team. Additionally, the for the jaguar states that water for publication within the Code of Federal Arizona Game and Fish Department and jaguars must be made available within Regulations may not reflect the New Mexico Department of Game and 10 km (6.2 mi) year round for ‘‘high exclusion of such developed lands. Any Fish, with assistance from the Service quality’’ jaguar habitat to exist in the such lands inadvertently left inside and other cooperators, have already American Southwest and within 20 km critical habitat boundaries shown on the carefully crafted a Memorandum of (12.4 mi) by use of this rule everywhere maps of this final rule have been Understanding and Conservation else in the area proposed as critical excluded by text in the rule and are not Framework to maintain the jaguar’s core habitat for jaguar. This water designated as critical habitat. Therefore, commitments in several areas of requirements for jaguars described in a Federal action involving these lands conservation; therefore, no special the proposed rule raise water resources will not trigger section 7 consultation management is required. issues that require active cooperation with respect to critical habitat and the Our response: We appreciate and between the Service and local requirement of no adverse modification acknowledge the work conducted by the governmental entities to resolve in unless the specific action would affect Jaguar Conservation Team and the concert with the development of critical the physical or biological features in the States since 1997. However, as stated in habitat for the jaguar under section adjacent critical habitat. our response to comment number 60 in 2(c)(2) of the Act. The Service has (146) Comment: The Service did not Comments from States above and refused, and is continuing to refuse, to adequately analyze whether or not comment number 146 in Public resolve water resource issues associated critical habitat areas would require Comments above, special management with the designation of critical habitat special management of the physical and considerations or protection of the for jaguar. biological feature and PCEs. Areas that habitat features comprising jaguar Our response: We recognize our are managed in a way that maintains the critical habitat may be necessary. responsibilities under section 2(c)(2) of physical or biological features essential (148) Comment: Special management the Act to cooperate with State and local to the species do not meet the statutory along the border could be waived to agencies to resolve water resource issues definition of critical habitat and, address national security issues. in concert with conservation of therefore, are not eligible to be Our response: We understand that endangered species, such as the jaguar. designated as critical habitat. The laws related to the expeditious We look forward to working with the proposed rule does not contain these construction of border infrastructure in water resource agencies to resolve any findings. Instead, the proposed rule areas of high illegal entry may be such issues. However, this cooperation contains broad generalizations regarding waived by the Secretary of DHS, and we is, for the most part, independent of our threats to the species and pronounces have discussed this issue in the Special requirement under section 4(a)(3)(A) of that special management is needed to Management Considerations or the Act to designate critical habitat for address the threats without assessing Protections section of this final rule. As the jaguar. Impacts to water whether existing protections are also noted in this final rule, we know of management and resource activities are adequate. no plans to construct additional security not expected to be controversial Our response: The Act does not fences in the designated critical habitat, because, as discussed in the analysis of require that the Service evaluate the although should future national security impacts on water resources, the inadequacy of existing regulatory issues require additional measures, the constraints on current water mechanisms for critical habitat Secretary of DHS may invoke the management activities are expected to designation. The Act requires the waiver, and special management be limited (Mangi Environmental Group Service to analyze this factor to considerations would continue to occur 2013). determine whether a species is on a voluntary basis on activities (151) Comment: Executive Order endangered or threatened. Under the covered by a waiver. Other forms of 13563 of January 18, 2011 (Improving Act critical habitat is defined as the border infrastructure, however, do not Regulation and Regulatory Review), geographical area occupied by the fall under this waiver (construction of explicitly states that our ‘‘regulatory species at the time of listing that towers, for example); therefore, special system must protect public health, contains those physical or biological management considerations apply to welfare, safety, and our environment features that: are essential to the these projects, and we consult with DHS while promoting economic growth, conservation of the species and which to minimize the impacts to listed innovation, competitiveness, and job ‘‘may’’ require ‘‘special management’’ species and their critical habitat. creation.’’ Consistent with this mandate, considerations or protection. It does not (149) Comment: McCain and Childs Executive Order 13563 requires agencies state that critical habitat contain those (2008) misstate the total number of to tailor ‘‘regulations to impose the least

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burden on society, consistent with matters. We have determined that the United States was illegal shooting (see obtaining regulatory objectives.’’ It also benefits of excluding the Tohono listing rule for a detailed discussion); requires agencies to ‘‘identify and O’odham Nation outweigh the benefits however, this is no longer accurate, as consider regulatory approaches that of inclusion. In regards to Fort the most recent known shooting of a reduce burdens and maintain flexibility Huachuca, the Service has exempted jaguar in Arizona was in 1986 (Brown and freedom of choice’’ while selecting Fort Huachuca from critical habitat and Lopez Gonza´lez 2001, p. 7). Please ‘‘those approaches that maximize net designation based on their INRMP. See see the 1997 clarifying rule (62 FR benefits.’’ To the extent permitted by the Exemptions and Exclusions sections 39147; July 22, 1997) and the Recovery law, our regulatory system must respect of this final rule for additional Outline for the Jaguar (Jaguar Recovery these requirements. information. Team 2012, entire) for more information Our response: We have followed, and (153) Comment: The jaguar is already about threats to jaguars. will continue to follow, the directives in protected in the United States by both (155) Comment: The designation of Executive Order 13563. As part of the Federal and State laws. private lands as critical habitat will process to designate critical habitat, we Our response: The jaguar does already affect private property rights. have completed an economic analysis receive some protection under the Act Specifically, designated critical habitat on the potential incremental impacts of as a Federally listed species. However, will limit the use and enjoyment of the the designation. Critical habitat only the Service has determined that property, impact ongoing maintenance affects Federal actions through a designation of critical habitat for the and improvement, limit or modify requirement to consult on those actions jaguar is prudent and determinable ranching practices, and curtail other that may affect critical habitat to ensure based on the best available scientific legal uses of the property. Designating they do not adversely modify critical data available. Section 4(a)(3)(A) of the critical habitat for the jaguar will result habitat. Act states that critical habitat shall be in regulatory takings of an individual’s (152) Comment: Lands within the designated for endangered and livelihood and, ultimately, his or her critical habitat areas already have land threatened species to the maximum property. protection due to Federal or Tribal extent prudent and determinable. Our response: As stated in our ownership or local land management Therefore, we are required to designate proposed rule, the Service has followed plans. In contrast, we also received critical habitat for the jaguar to fulfill Executive Order 12630 (‘‘Government comments stating that the lands within our legal and statutory obligations. See Actions and Interference with critical habitat areas are not protected our response to comment number 1 in Constitutionally Protected Private adequately for jaguar conservation. the Peer Reviewer Comments above. Property Rights’’). The designation of Our response: We recognize that some Further, critical habitat does afford jaguar critical habitat is not anticipated lands within the designation are already protection to the jaguar through section to have significant takings implications being managed for conservation 7 consultation under the Act through for private property rights. As discussed purposes that provide some benefits to the requirement that Federal agencies in the Critical Habitat section of this the jaguar. Section 4(b)(2) of the Act ensure, in consultation with the Service, final rule, the designation of critical states the Secretary may exclude an area that any action they authorize, fund, or habitat affects only Federal actions. from critical habitat if she determines carry out is not likely to result in the Critical habitat designation does not that the benefits of such exclusion destruction or adverse modification of affect landowner actions that do not outweigh the benefits of specifying such critical habitat. Under the statutory require Federal funding or permits, nor area as part of the critical habitat, unless provisions of the Act, we determine does it preclude development of habitat she determines, based on the best destruction or adverse modification on conservation programs or issuance of scientific data available, that the failure the basis of whether, with incidental take permits to permit actions to designate such area as critical habitat implementation of the proposed Federal that do require Federal funding or will result in the extinction of the action, the affected critical habitat permits to go forward. Due to current species. In making that determination, would continue to serve its intended public knowledge of the species’ the Secretary has broad discretion conservation role for the species. protections and the prohibition against regarding which factor(s) to use and Therefore, actions that are funded, take of the species both within and how much weight to give to any factor. permitted, or carried out by a Federal outside of the proposed areas, we do not In the proposed rule we acknowledge agency within jaguar critical habitat will anticipate that property values would be that some areas within the proposed continue to be evaluated to determine affected by the critical habitat designation are included in their impacts on critical habitat. designation. Our economic analysis for management plans or other large-scale (154) Comment: The primary threat to proposed critical habitat designation habitat conservation plans including the jaguars is through hunting and other found only limited incremental impacts Forest Service, National Park Service, activities that ‘‘take’’ individuals, not of the designation and extremely small Fish and Wildlife Service refuge, Bureau habitat fragmentation. impacts on activities on private lands. of Land Management, Malpai Habitat Our response: As discussed in the (156) Comment: It was inappropriate Conservation Plan, Pima County’s Draft Special Management Considerations or to use roads as a natural boundary to Multi-Species HCP, State Wildlife Protections section of this final rule, designate jaguar critical habitat. Action Plans, and Jaguar Conservation there are threats to the physical or Our response: We did not use roads Agreements between the Arizona Game biological feature essential to the as a natural boundary to designate and Fish Department and New Mexico conservation of jaguar habitat that may critical habitat. Instead, critical habitat Department of Game and Fish. However, require special management. Jaguar units are defined by the PCEs around these plans do not specifically address habitat and the features essential to their which they are based, one of which jaguar habitat. conservation are threatened by the includes roads as part of the human In the proposed rule we noted that we direct and indirect effects of increasing influence on the landscape (the Human were considering exempting Fort human influence into remote, rugged Influence Index), but the use of roads in Huachuca and excluding the Tohono areas, as well as projects and activities the definition of critical habitat units is O’odham Nation. We have reviewed the that sever connectivity to Mexico. In the only to give context to the location of comments from the public on these past, the primary threat to jaguars in the the unit, not as the official unit

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description. See the maps for the official than those from the closest breeding Our response: We do not anticipate boundaries themselves. population in Mexico; rather, jaguars in that the designation of critical habitat (157) Comment: The Service should the United States are likely dispersing for the jaguar will prevent the acknowledge that new jaguar from the nearest breeding population in implementation of solutions that observations within the United States Mexico, and the conservation role or address national security. Further, could lead to revisions in the value of jaguar critical habitat is to environmental laws and regulations designation of critical habitat. provide areas to support these related to the expeditious construction Our response: We acknowledge that individuals during transient movements of border infrastructure in areas of high the Act authorizes the Service to make by providing patches of habitat (perhaps illegal entry may be waived by the revisions to designated critical habitat. in some cases with a few resident Secretary of DHS. We will continue to If in the future the best available jaguars), and as areas for cyclic comply with directives related to border information at that time indicates expansion and contraction of the nearest security and work with the Federal revision of critical habitat is core area and breeding population in the agencies involved in border security appropriate, and if resources are Northwestern Recovery Unit. through existing processes, including available we may revise this critical (160) Comment: The critical habitat section 7 consultation. If the habitat designation. designation and the direction outlined consideration of environmental laws (158) Comment: The Service in the Recovery Outline relies on and regulations is waived in order to incorrectly stated that jaguars in the connectivity to Mexico for the recovery address national security, we will United States and northwestern Mexico of jaguars, but this connectivity may be continue to work with the Federal represent the northernmost extent of the impacted by current and potential agencies to incorporate measures into jaguar’s range, with populations future border security efforts, primarily infrastructure design and construction persisting in distinct ecological efforts to secure the international border that will avoid or minimize effects of conditions demonstrated by xeric with Mexico through the use of various these actions on jaguar habitat (extremely dry) habitat that occurs types of fencing, towers, lighting, and connectivity. In regards to the nowhere else in the species’ range roads. The Service incorrectly presumes designation of critical habitat not being (Sanderson et al. 2002, entire). that border security infrastructure will prudent, see our response to comment Sanderson et al. (2002, p. 64) does not continue. number 1 in the Peer Reviewer briefly mention the persistence of the Comments above. populations in arid regions in Sonora, Our response: We acknowledge that (162) Comment: Existing agreements, but also identifies areas in Venezuela there may be some potential impacts such as the Memorandum of and Brazil as xeric habitat that jaguars related to border security infrastructure currently inhabit (Sanderson et al. 2002, and maintaining habitat connectivity for Understanding (MOU) between the Table 2). The populations in Venezuela jaguars between the United States and Coronado National Forest (CNF) and and Brazil have shorter and more Mexico. However, as indicated in the Customs and Border Protection (CBP), numerous corridors to connect proposed rule and this final rule, there are adequate to resolve environmental populations in this area, thus facilitating are critical habitat areas that are not issues and reduce impacts to national gene flow. This contradicts the Service’s impacted by existing border security, and there is no need for the assertion that jaguars in the United infrastructure and which continue to designation of critical habitat for the States are important sources of genetic provide habitat connectivity to Mexico. jaguar. resources, and, therefore, connectivity These areas are typically very steep and Our response: Based on the best to Mexico is essential to the rugged and not conducive to the available scientific data available, the conservation of the jaguar. construction of fences or roads. We do Service has determined that designation Our response: We have modified this not anticipate that additional fencing or of critical habitat for the jaguar is language in this final rule. See the roads will be constructed in designated prudent and determinable. See our Jaguar Recovery Planning in Relation to critical habitat due to the prohibitive response to comment number 1 in the Critical Habitat section above in this cost and engineering constraints. If such Peer Reviewer Comments above. final rule. projects are proposed, the designation of (163) Comment: The Service should (159) Comment: The Service provided critical habitat will provide a regulatory not exclude mining claims from critical no evidence that population genetic layer of evaluation that will allow us to habitat. The Service should forbid resilience or persistence will be work with Federal agencies and mining within critical habitat. All PCEs improved for jaguars by designating landowners to resolve issues related to (and particularly connectivity to critical habitat in the United States. No border security, but also ensure that the Mexico) will be impacted by mining, empirical evidence was presented in the elements of jaguar critical habitat are causing further habitat fragmentation. proposed designation that jaguars maintained and functioning to the Our response: We are not excluding observed in the United States represent extent that the law allows, and that will mining claims from critical habitat. a genotype different from the closest facilitate cross-border movements by Under section 4(b)(2) of the Act, we may breeding population of jaguars 209 km jaguars. exclude an area from designated critical (130 miles) to the South in Mexico. (161) Comment: Critical habitat habitat based on economic impacts, Our response: As described in this designation along the U.S.-Mexico impacts on national security, or any final rule, jaguars in the United States border is in conflict with national other relevant impacts. See our response and northwestern Mexico represent the security and continued border security to comment number 64 above in northernmost extent of the jaguar’s efforts and is not prudent. It appears Comments from States for discussion on current range, representing a population that the Service wants to stop the Border exclusions, and see our response to persisting in one of only four distinct Patrol from protecting our borders, comment number 71 in Public xeric (extremely dry) habitats that occur restrict or completely halt road Comments for discussion on excluding within the species’ range (Sanderson et widening and construction of roadways, the Rosemont Mine. Rather, all projects al. 2002, Appendix 1). We did not powerlines, pipelines, etc., and restrict with a Federal nexus proposed within determine that jaguars in the United or completely halt all mineral extraction jaguar critical habitat in the United States represented a different genotype and mining. States will be evaluated on a case-by-

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case basis with respect to section 7 of of critical habitat does not change the tree cover. In the latest version of the the Act. status of the species, nor does it imply model (version 13), Sanderson and The conservation value of the that we are proposing to introduce Fisher (2013, p. 20) analyzed the tree Rosemont Mine area is important to the jaguars into these areas or that critical cover preferred by jaguars in the Jalisco jaguar for maintaining connectivity with habitat is being designated with the Core Area (the southernmost part of the the other critical habitat units and with expectation that a jaguar population will Northwestern Recovery Unit) separately Mexico. Regarding the Hermosa project, eventually reside in these areas. As from tree cover in all other areas (note although it is too early to begin a section discussed in the proposed rule and this that p. 15 of this report incorrectly states 7 consultation because the project is final rule, the purpose of designating that the Sinaloa Secondary Area is still in the early planning stages, the critical habitat in the United States is to included with the Jalisco Core Area in economic impacts are expected to be provide areas for transient jaguars (with this analysis) to reflect the major habitat much the same as for Rosemont Mine. possibly a few residents) to support the shift from the dry tropical forest of The Hermosa project is in the same nearest breeding area to the south, Jalisco, Mexico, to the thornscrub occupied unit and, therefore, allowing this population to expand and vegetation of Sonora, Mexico. The incremental costs are expected to be contract, and, ultimately, recover. It is results of these analyses indicate that low. The conservation value of this area our intent that the designation of critical jaguars in the southernmost part of the for the jaguar may be even greater than habitat will protect the functional Northwestern Recovery Unit (the Jalisco for the Rosemont area because the integrity of the features essential for Core Area) seem to inhabit a wider Hermosa project is only 9 miles north of jaguar life-history requirements for this range of tree cover values (greater than the U.S.-Mexico border, meaning that purpose into the future. 1 to 100 percent), whereas jaguars this area is very important for In terms of cattle depredation due to throughout the rest of the Northwestern maintaining connectivity to Mexico. jaguars, we understand this may occur, Recovery Unit (including the United Unlike more permanent habitat and are aware of one recent (2007) States) appear to inhabit a narrower alterations such as building jaguar depredation event in the United range of tree cover values (greater than construction and asphalt paving, mines States in the Altar Valley area (McCain 1 to 50 percent) (Sanderson and Fisher, are temporary habitat disturbances and and Childs 2008, pp. 4–5). The p. 20). their effects can be mitigated following designation of critical habitat does not (167) Comment: The designation their economic lifespan. The economic alter or increase this possibility. We are should include biotic communities life of Rosemont Mine is forecast to be aware, however, of the concern that other than Madrean evergreen woodland 21 years, after which time conservation cattle depredations may occur in the and semidesert grassland. measures such as restoration of surface future, and we are working with the Our response: To define the physical springs and revegetation of the mine Jaguar Recovery Team to develop and biological features required for reclamation area would take place. The strategies to avoid these types of jaguar habitat in the United States, we Rosemont Mine area of critical habitat conflicts. We will include these are relying on information provided by can be an important tool for promoting strategies and actions in the draft the Jaguar Recovery Team, which we conservation of the jaguar and will Recovery Plan for the Jaguar. consider the best available science. This continue to have conservation value for In addition, critical habitat receives information was provided in two habitat the species post-reclamation. protection under section 7 of the Act modeling reports, Sanderson and Fisher (164) Comment: The essential element through the requirement that Federal (2011, pp. 1–11) and Sanderson and of water within 20 km (12.4 mi) of each agencies ensure, in consultation with Fisher (2013, entire). Additionally (and other is not met without relying on the Service, that any action they as also described in our response to livestock water tanks created on ranch authorize, fund, or carry out is not likely comment number 43 in Comments from lands. to result in the destruction or adverse States above), the Service analyzed a Our response: We acknowledge that modification of critical habitat. The subset of recent, highly accurate jaguar in some cases water sources may be designation of critical habitat does not locations from Mexico and the United stock tanks, which may be used by any affect land ownership or establish a States to determine if filtering the number of wildlife, including jaguars. refuge, wilderness, reserve, preserve, or observations in this way would Many stock tanks, however, are not other conservation area. Such influence the frequency that these included in the USGS NHD data layer, designation does not allow the observations occurred across the range and other sources of water are available government or public to access private of habitat variables. across the landscape, as well. We also lands. Such designation does not As described in our response to understand that the availability of water require implementation of restoration, comment number 43 in Comments from across the landscape during the year is recovery, or enhancement measures by States above, the results of our variable, based on a variety of climatic non-Federal landowners. See the additional analysis indicate that the factors and ranch management Critical Habitat section of this final rule overall pattern in frequency of jaguar practices. Even with the variability, and for further information on critical observations using these highly accurate the fact some water sources may be habitat designation. locations relative to the habitat variables provided by stock tanks, the best (166) Comment: The Service should is similar to the patterns observed using available scientific data provided by the increase the range of canopy cover used the entire data set used for version 13 USGS NHD data layer indicates that to delineate critical habitat (which was of the habitat model (Sanderson and there is sufficient water available for 3–40 percent in the proposed rule). Fisher 2013, entire). Specifically related jaguars within the final critical habitat Our response: In the revised rule and to tree cover and biotic communities, 95 designation. this final rule the Service increased the percent of these highly accurate (165) Comment: Jaguars and livestock range of canopy cover to greater than 1 locations are found in greater than 1 to ranching are not compatible. to 50 percent tree cover. Sanderson and 50 percent tree cover (for all jaguar Our response: The jaguar is already Fisher (2011, p. 7; 2013, pp. 5–6) also observations except those in the present in the United States (see Table added a digital layer to capture canopy southernmost part of the Northwestern 1 in this final rule) and protected under cover (called land cover in the reports), Recovery Unit), and, within the United the Act as a listed species. Designation as represented by a digital layer called States, 95 percent (of the 44 locations

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total within the United States) are vegetation characteristics in portions of model developed by Sanderson and within Madrean evergreen woodland the Southwest over time. Fisher (2011, pp. 5–11, 2013 p. 6). In the (43 percent) and semidesert grassland Our response: We investigated Turner latest version of the habitat model (52 percent). Therefore, we determine et al. (2003), and, while informative, a (Sanderson and Fisher 2013, entire), that a tree cover of greater than 1 to 50 method for consistently and objectively jaguar habitat was partly defined by an percent, and biotic communities determining and mapping the temporal HII of less than 20 in the northernmost described as Madrean evergreen vegetation changes across the entirety of part of the Northwestern Recovery Unit. woodland and semidesert grassland, southern Arizona and southwestern Additionally (and as also described in comprise the vegetation PCE of the New Mexico is not provided. our response to comment number 43 in physical or biological feature for jaguar Additionally, see our response to Comments from States above), the critical habitat. comment number 43 in Comments from Service analyzed a subset of recent, (168) Comment: The Service should States above. highly accurate jaguar locations from include higher elevation areas as critical (171) Comment: Habitat conditions Mexico and the United States to habitat. associated with jaguar locations may be determine if filtering the observations in Our response: As described in this inaccurate because we excluded 30 this way would influence the frequency final rule, we did not include areas percent of the 333 occurrences to find that these observations occurred across higher than 2,000 m (6,562 ft) in that 70 percent were in areas of 3 to 60 the range of habitat variables. elevation because information provided percent tree cover. (174) Comment: Future roads and by the Jaguar Recovery Team, which we Our response: See our response to transmission lines could cause habitat consider the best available science, comment number 43 in Comments from fragmentation. indicates that areas above 2,000 m States above. Our response: The Service recognizes (6,562 ft) do not provide jaguar habitat, (172) Comment: The Service should that an increase in road density and as only 3.3 percent (15 of 453) of the expand the categories of ruggedness human settlements tends to fragment observations utilized in the most recent considered as critical habitat to include habitat and isolate populations of jaguar habitat modeling effort occur more level and extremely rugged areas. jaguars and other wildlife (Noss et al. above this elevation (Sanderson and Specifically, Sanderson and Fisher 1996 and Carroll et al. 2001, as cited by Fisher 2013, pp. 19, 29; note that p. 19 (2011) graphically depict approximately Menke and Hayes 2003, p. 12). incorrectly states 20 observations above 112 occurrence records in areas of However, in our economic analysis, no 2,000 m (6,562 ft) instead of 15, and ‘‘level,’’ ‘‘nearly level,’’ and ‘‘slightly major roads or transmission lines were Table 1.3 incorrectly states 452 jaguar rugged’’ terrain, which is more than half identified within jaguar critical habitat. observations total instead of 453). of the approximately 208 occurrences in Further, future road and transmission Consequently, our revised proposed rule ‘‘intermediately,’’ ‘‘moderately,’’ and lines with a Federal nexus proposed and this final rule include an upper- ‘‘highly’’ rugged terrain. within jaguar critical habitat in the elevation limit of 2,000 m (6,562 ft) to Our response: We determine that the United States will be evaluated on a define jaguar critical habitat. range of terrain ruggedness categories case-by-case basis with respect to (169) Comment: Habitat conditions included in the latest habitat model section 7 of the Act. associated with jaguar locations may be (Sanderson and Fisher 2013, entire) (175) Comment: Critical habitat units inaccurate because the jaguar may have accurately reflects the best, and, that are to provide continuous habitat been chased to that location during a therefore, critical, jaguar habitat in the within the United States and subunits hunting event, and, therefore, the United States. See our response to that are to provide connectivity to location may not represent the habitat in comment numbers 43 and 63 in Mexico are crossed by roads with high which it was residing. Comments from States above. traffic volumes and do not meet the Our response: The Service has used (173) Comment: The Service should Service’s PCEs. the best scientific and commercial data exclude areas within 6.5 km (5 miles) of Our response: The Service recognizes available as required by the Act. As a well-used road rather than 4.5 km (2.8 that jaguar critical habitat contains described above, we determine that the miles) as discussed in the proposed roads; however, the presence of roads range of tree cover included in the latest rule. does not preclude an area from meeting habitat model (Sanderson and Fisher Our response: The Service did not use PCE 7, pertaining to human influence. 2013, entire) is not unreliable, and that an exclusion area of 6.5 km (5 miles) or PCE 7 is characterized by minimal to no the biotic communities of Madrean 4.5 km (2.8 miles) around well-used human population density, no major evergreen woodland and semidesert roads in the proposed rule, and we are roads, or no stable nighttime lighting grassland provide the best, and, not using such parameters in this final over any 1 km2 (0.4 mi2) area. The PCE therefore, essential, jaguar habitat rule. In the proposed rule we evaluated does not stipulate the complete absence within the United States. See our the best available scientific data, of roads; rather the PCE stipulates no response to comment number 43 in including Zarza et al. (2007, pp. 107, major roads over the specified area (see Comments from States above. 108), which reported that towns and http://sedac.ciesin.columbia.edu/data/ (170) Comment: Habitat conditions roads had an impact on the spatial set/wildareas-v2-human-influence- associated with jaguar locations may be distribution of jaguars in the Yucatan index-geographic/maps). inaccurate because we did not account peninsula, where jaguars used areas (176) Comment: Jaguars avoid human for the temporal variation in habitat located more than 6.5 km (4 mi) from disturbance but male jaguars readily conditions across the timeframe of human settlements and 4.5 km (2.8 mi) cross roadways and areas of human detections, and that we instead assume from roads. However, we did not use activity. Areas of human disturbance that current habitat characteristics of this data to develop our PCE for human and roads do not prevent jaguars from jaguar locations (such as canopy cover) disturbance. The Service identified a using these areas. are exactly the same as the PCE characterized by minimal to no Our response: In our proposed rule, characteristics present at the time of human population density, no major the Service recognizes that male jaguars detection, whereas they likely are not. roads, or no stable nighttime lighting have been documented near roads, but The Service should use Turner et al. over any 1 km2 (0.4 mi2) area. This is the data do not indicate that this is (2003) as a reference for changes in based on the HII used in the habitat where the majority of jaguar sightings

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occur. Studies have also shown that are located in areas where the HII is less covered by buildings, pavement, and jaguars selectively use large areas of than 20, which is the range of HII that other structures because such lands lack relatively intact habitat away from the Jaguar Recovery Team determined to the physical or biological feature certain forms of human influence. The provide the best jaguar habitat in the necessary for jaguars. The scale of the Act requires us to determine critical northernmost portion of the proposed maps we prepared under the parameters habitat based on the physical and Northwestern Recovery Unit. Therefore, for publication within the Code of biological features essential to the based on this information, we identify Federal Regulations may not reflect the jaguar; we determined that the most areas in which the HII calculated over exclusion of such developed lands. Any recent habitat model (Sanderson and 1-square km (0.4-square mi) is 20 or less such lands inadvertently left inside Fisher 2013, entire), which uses the as an essential component of the critical habitat boundaries shown on the human influence index, provides the physical or biological feature essential maps of this final rule have been best available scientific data to for the conservation of the jaguar in the excluded by text in the rule and are not determine these features. United States. These areas are designated as critical habitat. (177) Comment: The Service should characterized by minimal to no human (180) Comment: The interests of consider the impacts of smaller roads on population density, no major roads, or national security and economic stability wildlife, which have been well no stable nighttime lighting over any 1- outweigh benefits of critical habitat documented, in regards to how small square km (0.4-square mi) area. We designation. roads could impact jaguar critical consider that the human influence PCE, Our response: The Service has habitat. In addition to negative impacts as determined by the Human Influence conducted an analysis of impacts to on wildlife, primitive roads damage Index, adequately captures the impact of national security and economics. The soils, vegetation, air quality, water roads (see http:// results of this analysis indicate that quality, and archeological artifacts, and sedac.ciesin.columbia.edu/data/set/ designation of critical habitat will not introduce noxious, nonnative species wildareas-v2-human-influence-index- affect national security or economics. A into forests where they often out- geographic/maps). copy of the final economic analysis with compete native species. The (178) Comment: Since jaguar recovery supporting documents may be obtained environmental effects of roads, road in the United States is contingent upon by contacting the Arizona Ecological density, and off-road recreational recovery in Mexico, it is important to Services Fish and Wildlife Office (see activity are not individual, but rather ensure that any United States Federal ADDRESSES) or by downloading from the cumulative and synergistic because activities do not jeopardize the jaguar, Internet at http://www.regulations.gov. seemingly small, individual impacts adversely modify its habitat, or destroy See the Application of Section 4(b)(2) of may result in large-scale changes in the its habitat in Mexico. To the extent that the Act section of this final rule. reproductive success and survival of the Mexican Government has identified (181) Comment: The Service should organisms, thereby altering the ecology jaguar habitat that is critical to the exclude Cochise County because the of an area. species, the United States should Cochise County Comprehensive Plan Our response: While the Service did incorporate that designation by (amended in 2011) already provides not specifically consider impacts of reference in its critical habitat habitat conservation for the jaguar smaller roads, the Service used the designation, as well as any eventual making critical habitat unnecessary. human influence index (HII), which is recovery plan for the species. And Our response: Critical habitat does not characterized by minimal to no human where an agency action could result in include developed areas such as lands population density, no major roads, or jeopardy or potentially adversely covered by buildings, pavement, and no stable nighttime lighting over any 1- modify habitat in Mexico, that agency other structures because such lands lack square-km (0.4-square-mi) area. This is must consult with the Service. the physical or biological feature based on the HII used in the habitat Our response: We do agree that necessary for jaguars. The scale of the model developed by Sanderson and conservation of the jaguar and its habitat maps we prepared under the parameters Fisher (2011, pp. 5–11, 2013 p. 6). In the in Mexico is vital to its recovery. for publication within the Code of latest version of the habitat model Therefore, we will continue to work Federal Regulations may not reflect the (Sanderson and Fisher 2013, entire), with our partners in Mexico toward exclusion of such developed lands. Any jaguar habitat was partly defined by an conservation of the species there. Our such lands inadvertently left inside HII of less than 20 in the northernmost regulations for critical habitat critical habitat boundaries shown on the part of the Northwestern Recovery Unit. designation (50 CFR 424.12(h)) maps of this final rule have been Additionally (and as also described in specifically preclude designation of excluded by text in the rule and are not our response to comment number 43 in lands outside of the U.S. jurisdiction. designated as critical habitat. Comments from States above), the Therefore, we did not designate any (182) Comment: The Service should Service analyzed a subset of recent, areas in Mexico as critical habitat. In exclude the residential subdivision highly accurate jaguar locations from addition, our section 7 consultation located east of State Highway 83 in Mexico and the United States to implementing regulations (50 CFR Subunit 4b (formerly within Subunit 4b, determine if filtering the observations in 402.01) limit the definition of an action now within Unit 3). Excluding these this way would influence the frequency to all activities or programs of any kind areas will not cause the species’ that these observations occurred across authorized, funded, or carried out, in extinction. the range of habitat variables. whole or in part, by Federal agencies in Our response: Critical habitat does not The results of our additional analysis the United States or upon the high seas. include developed areas such as lands indicate that the overall pattern in Therefore, we do not consult on Federal covered by buildings, pavement, and frequency of jaguar observations using actions outside of these areas. other structures because such lands lack these highly accurate locations relative the physical or biological feature to the habitat variables is similar to the Exclusions and Exemptions necessary for jaguars. The scale of the patterns observed using the entire data (179) Comment: The Service should maps we prepared under the parameters set used for the updated habitat model exclude the City of Sierra Vista. for publication within the Code of (Sanderson and Fisher 2013, entire). Our response: Critical habitat does not Federal Regulations may not reflect the Specifically related to HII, 97 percent include developed areas such as lands exclusion of such developed lands. Any

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such lands inadvertently left inside anticipate that designation of critical the context and the intensity of the critical habitat boundaries shown on the habitat would result in consultations proposed action (40 CFR 1508.27). maps of this final rule have been that would not otherwise take place for Context refers to the setting of the excluded by text in the rule and are not jeopardy analysis in all designated proposed action and potential impacts designated as critical habitat. critical habitat areas. of that action. The context of a (185) Comment: The draft significance determination may be NEPA environmental assessment is inadequate society as a whole (human, national), (183) Comment: The Service should because it fails to consider reasonable the affected region, the affected complete a full environmental impact alternatives submitted by the public and interests, or the locality. Intensity refers analysis because of the degree to which provide reasons for eliminating these to the severity of the impacts. Under the action may establish a precedent for recommendations from further study. regulations of the Council of future actions with significant effects or Our response: Although section 102 Environmental Quality (CEQ), which is represents a decision in principle about (C)(iii) of NEPA requires us to consider responsible for ensuring compliance a future consideration. alternatives to the proposed action, we with NEPA, intensity is determined by Our response: The designation of are not required to consider every considering 10 criteria (40 CFR critical habitat by the Service for the possible alternative. Rather, we consider 1508.27(b)). See chapter 4 of the draft conservation of endangered species is a reasonable range of alternatives, which environmental assessment for a list of not a precedent-setting action with include those considered to be practical these 10 criteria. Based on the draft significant effects. The agency has and feasible from a technical environmental assessment, the designated critical habitat for numerous standpoint. The environmental designation of critical habitat for the other species. assessment evaluates the environmental jaguar will not have significant impacts (184) Comment: The Service should effects of three alternatives. These on the human environment. complete a full environmental impact alternatives include the no action (188) Comment: The draft analysis because the Service re-defines alternative (no designation of critical environmental assessment is inadequate the time of listing as a 50-plus-year time habitat), designation of critical habitat because it fails to accurately classify period, which is arbitrary and in all areas that meet the definition of recreational use of most critical habitat. capricious. critical habitat, and designation of Our response: In the environmental Our response: The time of listing (for critical habitat in all areas where the assessment we recognize that the purpose of determining whether it benefits of exclusion do not outweigh recreational areas in the proposed can be properly considered critical the benefits of inclusion. We are critical habitat exist on tribal lands habitat) has no relevance in evaluating required to consider the ‘‘no action’’ (Tohono O’odham Nation); Federal and impacts to the human environment. In alternative, and the two action State-owned lands, including Coronado the context of an environmental alternatives are the only feasible National Forest, BLM lands, Buenos assessment, the evaluation of the alternatives that we consider under Aires National Wildlife Refuge (NWR), impacts of critical habitat designation NEPA while still meeting our Coronado National Memorial, and focuses on outcomes of the potential requirements under the Endangered Arizona State lands. Further, we increase in section 7 consultations Species Act. Therefore, the range of identify several types of recreational resulting from the designation, since the alternatives we considered in the activities that take place in or near designation does not itself produce or environmental assessment is adequate proposed critical habitat areas for the authorize direct physical impacts. For under the procedural requirements of jaguar, such as hiking, hunting, boating, the jaguar, the Service’s classification of NEPA and the Council on swimming, birding, wildlife viewing, whether a particular area was occupied Environmental Quality’s Regulations for photography, sight-seeing, pleasure- at the time of listing or not (for the Implementing the Procedural Provisions driving, angling, camping, horseback purpose of determining whether it can of NEPA (40 CFR 1500–1518). riding, and off-highway vehicle use. be properly considered critical habitat) (186) Comment: The draft Level of use and type of activity vary by has no relevance to determining section environmental assessment is inadequate site characteristics, landownership, 7 consultation outcomes and the because it fails to meet the NEPA management policy, and accessibility. impacts of critical habitat designation. standard of balanced multiple use The National Visitor Use Monitoring Given the secretive and transient nature management. program provides estimates of the of the jaguar, Federal land managers Our response: There is not a balanced volume and characteristics of recreation currently take steps to protect the jaguar multiple use management standard visitation to the National Forest System. even without critical habitat in areas under NEPA. A National Forest Visit is defined as the that are considered by the Service to be (187) Comment: The draft entry of one person upon a national both occupied and unoccupied at the environmental assessment is inadequate forest to participate in recreational time of listing. In determining whether because it fails to analyze impacts on activities for an unspecified period of there is a possibility that a project or the human environment. time. The most recent annual visitation action would jeopardize the species, the Our response: The draft data estimates 2,793 annual visits to the Service considers what impact may environmental assessment does analyze Coronado National Forest (IEc 2013, p. occur to actual members of the species. impacts to the human environment and 14). In a section 7 context, it does not matter is adequate. The primary purpose of The activity most likely to be whether the area in question was preparing an environmental assessment impacted by the designation of critical occupied at the time of listing or under NEPA is to determine whether a habitat is OHV use. OHV use is whether it was occupied at a later time; proposed action would have significant authorized on certain roads that pass the key question is whether the impacts on the human environment. If near proposed critical habitat in geographical area is occupied at the significant impacts may result from a Coronado National Forest, especially in time the section 7 consultation is proposed action, then an environmental units 2, 3, and 5. All of the Coronado conducted. Therefore, because of impact statement is required. Whether a National Forest recreational areas are current Federal land management proposed action exceeds a threshold of within or adjacent to units 2, 3, and 5. practices, the Service does not significance is determined by analyzing Most of the proposed habitat segments

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receive relatively low-level recreational restrictions within the proposed Mine biological opinion has been use because of their remoteness and/or designation of critical habitat. completed, and the Service determined difficult terrain. Many of these roads are Our response: In the context of an that the mine would not result in used primarily to access dispersed environmental assessment, the destruction or adverse modification of camping (IEc 2013, p. 14). evaluation of the impacts of critical jaguar critical habitat. On the single NWR within proposed habitat designation focuses on outcomes (191) Comment: The Service should critical habitat (the Buenos Aires NWR, of the potential increase in section 7 complete a full environmental impact in Pima County, Arizona), popular consultations resulting from the statement to be in compliance with the recreational activities include camping, designation, since the designation does 10th Circuit decision. picnicking, mountain biking, horseback not itself produce or authorize direct Our response: The U.S. Court of riding, hiking, and backpacking. physical impacts. A separate analysis Appeals for the Tenth Circuit stipulates Motorized vehicles are restricted to was conducted by Industrial Economics we undertake a NEPA analysis for roadways. Hunting is permitted on Incorporated (IEc 2013) to assess the critical habitat designation and notify approximately 90 percent of the refuge potential economic impacts associated the public of the availability of the draft and is subject to both Refuge and with designation of critical habitat for environmental assessment for a Arizona State Hunting Regulations. the jaguar. Where appropriate, proposal when it is finished. The Recreational uses in the NWR will likely information from the draft economic Service has complied with this increase with population growth in analysis has been incorporated into the requirement. See our response to southern Arizona and in light of the environmental assessment. comment 67 in Comments from the stated goal of the 2003 Comprehensive (190) Comment: The draft States under NEPA. (192) Comment: The draft Conservation Plan (CCP) to provide safe, environmental assessment is inadequate environmental assessment is inadequate accessible, high-quality wildlife- because it fails to evaluate the level of because it fails to evaluate safety to our dependent recreational opportunities. controversy if the Rosemont Mine is constructed. The Service should children, people, livestock, and pets. On BLM land, Coronado National complete a full environmental impact Our response: The environmental Forest, Fort Huachuca, and Buenos statement because of the controversial assessment does evaluate safety. Aires NWR, there could potentially be nature of the proposed action. Foreseeable activities with potential minor adverse impacts from critical Our response: The environmental risks to public health and safety include habitat designation on some recreational assessment evaluates impacts from the mining operations and activities related opportunities and activities within designation of critical habitat, not the to fire management, particularly in the designated critical habitat (e.g., OHV impacts of the mine. The impacts from wildlife-urban interface (WUI) areas and use) from the limitations and the designation of critical habitat for the areas where vegetation fuel loading has restrictions imposed on recreational jaguar are not likely to be highly created conditions for catastrophic fire. activities to preserve PCEs. However, controversial because the quality of the There would be no or negligible impacts other recreational activities and environment would not be significantly to public health or safety from the opportunities would be enhanced, and modified from current conditions. This proposed designation of critical habitat. could benefit from critical habitat analysis was based on past Impacts of wildland fire on public designation (e.g., birdwatching, wildlife consultations, past impacts of jaguar health and safety were determined to be viewing, day hiking), because of conservation on activities within the minor, as wildland fire suppression and increased habitat conservation. jaguar recovery area, and the likely wildland fire management within WUI Because modifications to the PCEs of future impacts from jaguar conservation. areas would not be significantly critical habitat are closely tied to Past section 7 consultations within impeded by the designation of critical adverse effects to the species, current designated critical habitat would likely habitat. The designation would not activities and activities that would be re-initiated. New activities could create or lead to additional mining trigger consultation for critical habitat result in section 7 consultations. New operations, or the deposition of are largely the same. Both the adverse consultations in unoccupied jaguar pollutants to the air or water. Border and beneficial effects of critical habitat territories could be triggered. A number enforcement activities would still be designation on recreation-related of activities, including wildland fire, conducted within proposed critical activities are expected to be minor fire management, and recreation could habitat, pursuant to section 102 of the because recreational use of most critical have jaguar conservation-related Illegal Immigration Reform and habitat areas is light and (1) new constraints or limitations imposed on Immigrant Responsibility Act, under consultations based solely on the them, although such measures would which the Secretary of the DHS is presence of designated critical habitat likely be the same as those under authorized to waive laws where the are unlikely, because land managers are jeopardy consultations for the species. Secretary of DHS deems it necessary to already consulting on jaguar throughout Impacts to water management and ensure the expeditious construction of the proposed critical habitat areas; and resource activities are not expected to be border infrastructure in areas of high (2) the likelihood that reasonable and controversial because, as discussed in illegal entry. prudent alternatives developed under the analysis of impacts on water (193) Comment: The draft the jeopardy standard would be changed resources, the constraints on current environmental assessment is inadequate substantially with the addition of water management activities are because it fails to evaluate tribal critical habitat designation and expected to be limited. customs and cultures, and economy. application of the adverse modification The Service understands that, given Our response: This critical habitat standard is small. Additional the prior history of designation, some designation is not likely to affect sites, information is provided in the final level of controversy may result, objects, or structures of historical, environmental assessment section 3.11. especially if the outcome of the scientific, or cultural significance. The (189) Comment: The draft Service’s consultation on the Rosemont proposed designation would not result environmental assessment is inadequate Copper Mine leads to significant delays, in any ground-disturbing activities that because it fails to evaluate significant re-evaluation, or termination of the have the potential to affect archeological economic impacts due to water project. However, the Rosemont Copper or other cultural resources. There are

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several National Register of Historic survival and recovery through (200) Comment: The Service should Places listed historical sites within, or maintenance of PCEs. Potential impacts complete a full environmental impact within close range of, critical habitat to environmental resources, both statement because the proposed action units, but they are human-built beneficial and adverse, would be minor is related to other actions, which structures, which the proposed or moderate in all cases. Analyses of cumulatively could produce significant designation specifically avoids. impacts of critical habitat designation impacts. Potential conservation measures or on sensitive resources within areas Our response: There would not be any project modifications to protect critical proposed as jaguar critical habitat were significant cumulative impacts because, habitat PCEs would not modify or pose conducted and discussed in Chapter 3 as described above in Chapter 3 of the risk of harm to any historic properties of the draft environmental assessment, environmental assessment, cumulative listed in or eligible for the NRHP. and it was concluded that designation of impacts would be limited to section 7 (194) Comment: The Service should critical habitat would have both adverse consultation outcomes and subsequent complete a full environmental impact or beneficial impacts on those resources. effects on other species, the effects of statement because the action None of the specific resource or activity designated critical habitat for other significantly affects the quality of the analyses found that the adverse impacts species, and the effects of land human environment. of critical habitat designation would be management plans. Our response: Under the Council on significant. The CEQ regulations define Environmental Quality (CEQ) (197) Comment: The Service should cumulative effects as ‘‘the impact on the regulations, 40 CFR 1508.27, the complete a full environmental impact environment which results from the determination of ‘‘significant’’ impacts, statement because the degree of impacts incremental impact of the proposed for the purpose of determining whether on health and safety are significant if action when added to other past, a more detailed environmental impact Fort Huachuca is not exempted and if present, and reasonably foreseeable statement must be prepared, requires border security is compromised. future actions regardless of what agency consideration of both context and Our response: The Service has (Federal or non-Federal) or person intensity. Potential impacts on exempted Fort Huachuca from critical undertakes such other actions’’ (40 CFR environmental resources, both habitat designation based on their 1508.7). In the environmental beneficial and adverse, would be minor. INRMP. See the Exemptions section of assessment, we identify four other listed Impacts of critical habitat designation this final rule for further information. species with critical habitat that on natural resources within the areas to Also, see our response to comment overlaps with jaguar proposed critical be designated as jaguar habitat were number 72 in Comments from States. habitat. In the context of critical habitat, analyzed and discussed in Chapter 3 of (198) Comment: The Service should cumulative impacts could be created if the draft environmental assessment. complete a full environmental impact critical habitat designations for multiple Applying the analysis of impacts to the statement because impacts on the species affect the same natural and significance criteria defined in CEQ unique characteristics of the area are human resources. Actions that could regulations, the Service concludes that significant if recreation is inhibited or have cumulative impacts would the adverse impacts of critical habitat completely curtailed in portions of the include: (1) Section 7 consultation designation would not be significant. proposed jaguar habitat. outcomes and subsequent effects on (195) Comment: The Service should Our response: There are no designated other species; (2) the effects of complete a full environmental impact Wild and Scenic River segments within designated critical habitat for other statement because the economic impacts the critical habitat designation. There species; and (3) the effects of land on the local, state, and national are designated Wilderness Areas within management plans. economies. the units; activities proposed by the All of these units are already being Our response: Indirect socioeconomic Federal land managers in these areas included in consultations on activities impacts faced by project proponents, would only be those specifically that may adversely impact jaguar, so land managers, and landowners could intended to improve the health of these there would be no new consultations. include time delays, regulatory ecosystems, and thus they would be However, while some of these areas may uncertainty, and stigma. However, the anticipated to help recover or sustain have undergone some section 7 environmental assessment concludes the PCEs along these segments. consultation for the jaguar, the fact they that these are considered indirect, Therefore, any adverse impacts to are now being designated as critical incremental impacts of the designation. critical habitat would be negligible at habitat may require reevaluation of See Chapter 3, Section 3.10 for a most. effects to PCEs for ongoing or not yet complete description of (199) Comment: The Service should completed Federal actions, which then socioeconomics. complete a full environmental impact may require reinitiating consultation. (196) Comment: The Service should statement because the proposed This critical habitat designation will complete a full environmental impact designation would impose unique, likely contribute minor cumulative statement because adverse impacts of unknown, and uncertain risks to current impacts, given the number and nature of the proposed designation outweigh water users. additional project modifications benefits. Our response: The impacts do not anticipated. Our response: The primary purpose of pose any uncertain, unique, or unknown (201) Comment: The Service should preparing an environmental assessment risks. Past section 7 consultations complete a full environmental impact under NEPA is to determine whether a within proposed designated critical statement because the proposed action proposed action would have significant habitat would likely be reinitiated. New might adversely affect an endangered or impacts on the human environment. activities in unoccupied areas would threatened species or its habitat, as The purpose of the proposed action is result in section 7 consultations. determined to be critical under the Act, to designate critical habitat for the Conservation constraints or limitations because fuel loads would build and jaguar, listed as endangered under the related to proposed designated critical catastrophic fire potential would Act. Critical habitat designation would habitat would be similar to those increase. have long-term, beneficial, imposed from species-related Our response: The designation of conservation-related impacts on jaguar constraints. critical habitat for the jaguar will not

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result in fuel loads buildup. Fuel- not quantifying additional conservation guidance of OMB and in compliance management activities, either measures that could be requested to with Executive Order 12866 ‘‘Regulatory mechanical treatments or prescribed avoid adverse modification during Planning and Review,’’ the draft burns, reduce the risks posed by heavy major construction projects. economic analysis measures changes in fuels loads. They intend to restore the Our response: As described in section economic efficiency in order to forest ecosystem by reducing the risk of 5.2 of the draft economic analysis, the understand how society, as a whole, catastrophic wildland fire, lessening types of conservation measures that will be affected by a regulatory action. post-fire damage, and limiting the could be requested for major However, recognizing that distributive spread of invasive species and diseases. construction projects that may adversely impacts may disproportionately affect These activities would help maintain modify or destroy jaguar critical habitat some areas, the draft economic analysis the jaguar PCE for greater than 1 to 50 include: creation of permeable also considers impacts on small entities; percent canopy cover. Fuel-management highways; re-vegetation and restoration impacts on energy supply, distribution, and prescribed burning that are of habitat; modification or elimination and use; and regional economic discountable, insignificant, or wholly of nighttime lighting; reduction of impacts. Substantial changes to the beneficial to the PCEs do not require project footprint; minimization of regional economies are not expected for formal consultation; however, the action human presence, vehicles, and traffic; most industries within proposed critical agency would need to confirm their and permanent protection of offsite habitat for the jaguar. Where potential finding of no adverse impact to jaguar habitat. The only two large-scale exists for regional economic impacts— critical habitat with the Service through construction projects, the Rosemont for example, if proposed mining informal consultation (Service 1998a). Mine and the Hermosa Project, are operations do not proceed to production The primary impact of the additional addressed in Chapter 5. The final because of critical habitat designation— formal or informal consultations would economic analysis has been revised these impacts are estimated. In addition, be increased administrative costs to the based on the conclusions of the recent the draft economic analysis provides Service and action agencies. biological opinion for the Rosemont information on the geographic Mine. At the low end, the final distribution of impacts by unit in order Economics economic analysis estimates costs to allow the Secretary to evaluate (202) Comment: The proposed rule associated with implementation of potential exclusions from critical habitat and the draft economic analysis lack the requested conservation measures. The designation. actions that Federal land managers final economic analysis also considers a (206) Comment: The jaguar is not already implement to protect jaguars in second scenario in which Rosemont present within Arizona, and, as such, all the United States. Mine chooses not to proceed to economic impacts should be attributed Our response: The U.S. Bureau of production. Section 5.5.1 of the draft to the designation of critical habitat and Land Management (BLM), U.S. Forest economic analysis describes potential not the listing of the species. The draft Service (USFS), U.S. National Park impacts of this scenario in terms of lost economic analysis incorrectly Service (NPS), and Service land economic revenue, tax revenue, and characterizes costs that should be managers in proposed critical habitat employment. These impacts represent attributed to the designation of critical areas already consider potential impacts the high-end effects of foregone mine habitat as costs that would occur in the to jaguar when conducting activities production. baseline due to the species’ listing. within proposed critical habitat areas. (204) Comment: The draft economic Our response: Due to the transient Chapter 3 of the draft economic analysis analysis does not consider costs of nature of the jaguar, land managers may evaluates potential economic impacts to third-party litigation related to the not implement conservation measures Federal lands management, mining finalization of the revised proposed based solely on whether the species activity is discussed in Chapter 5 of the rule. The costs of litigation incurred by occupies an area. Therefore, to assign analysis, border activities are discussed small ranchers may be as much as costs to the baseline or incremental in Chapter 4, and DOD lands are $250,000 per case. scenarios in the draft economic analysis, addressed in Chapter 8. In support of Our response: The Service does not we contacted land managers within the these statements, since 1995 we have consider the costs of litigation proposed designation, including the participated in 20 formal consultations surrounding the critical habitat rule Bureau of Land Management (BLM), on including the jaguar in Federal land itself when considering the economic U.S. Forest Service (USFS), and U.S. management activities, only 4 of which impacts of the rule. The extent to which Customs and Border Protection (CBP), resulted in formal consultation on this litigation specifically regarding critical regarding possible changes to their species. While Federal land managers habitat may add to the costs of the management approaches following the have varying levels of conservation for designation is uncertain. While the designation of critical habitat. Where the jaguar, all take some conservation critical habitat designation may land managers already consider both the actions for their lands based on the stimulate additional legal actions, data jaguar and its habitat, we assumed that Federal Land Policy and Management do not exist to reliably estimate impacts. incremental conservation measures Act of 1976, which states that ‘‘. . . the That is, estimating the number, scope, were unlikely. For example, section public lands be managed in a manner and timing of potential legal challenges 3.2.2 of the draft economic analysis that will protect the quality of scientific, would require significant speculation. discusses that BLM already considers scenic, historical, ecological, (205) Comment: The economic the potential presence of the jaguar in environmental, air and atmospheric, impacts of critical habitat designation all proposed critical units and subunits water resource, and archeological will fall disproportionately on areas that fall within its jurisdiction. Where values; that . . . will preserve and already under economic stress. land managers may implement different protect certain public lands in their Specifically, the areas of concern conservation measures following the natural condition; (and) that will include the City of Douglas, Arizona; designation of critical habitat, we provide food and habitat for fish and and Gila, Navajo, Greenlee, and Graham consider the costs of those conservation wildlife . . .’’ Counties in Arizona. measures to be incremental. (203) Comment: The draft economic Our response: As described in Section (207) Comment: The draft economic analysis ignores real economic costs by 2.2 of the draft economic analysis, at the analysis fails to disclose that Federal

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and State agencies have already spent designation, and impacts resulting from industry-commissioned reports that may over $1.2 billion on the jaguar. programmatic consultation on grazing reflect potential bias. The draft Our response: The draft economic operations on BLM lands is needed. economic analysis does not incorporate analysis focuses on estimating future Our response: In developing the previous studies of the economic impact impacts of the designation of critical economic analysis, we contacted of the Rosemont Mine, such as those habitat, and does not retrospectively regional land managers at relevant prepared by Dr. Thomas Michael Power quantify baseline costs of jaguar Federal agencies, including BLM, in 2010 and 2012. conservation efforts. However, the draft regarding the agencies’ current approach Our response: The draft economic economic analysis does provide to jaguar conservation. Given the analysis would estimate regional information on conservation efforts that transient nature of the jaguar, BLM economic impacts of changes to the have been implemented in the past or consults with the Service throughout mining industry by using peer- are likely to be implemented in the the range of the jaguar in proposed reviewed, third-party studies if any future, absent the designation of critical critical habitat areas under its were available. However, such studies habitat. The draft economic analysis jurisdiction, including areas that may be do not exist. At the time the draft does quantify future baseline impacts, unoccupied. BLM indicated that economic analysis was prepared, the which are forecast to be approximately consultations expected for the best available data on the regional $1.6 million over the next 20 years. foreseeable future are likely to relate to economic contributions of the Rosemont (208) Comment: The draft economic grazing activities. BLM did not Mine and the Hermosa Project came analysis does not describe what steps implement any substantial changes to from reports commissioned by the Federal land managers already take to conservation management as a result of mining industry. Chapter 5 of the draft protect the jaguar. the agency’s most recent programmatic economic analysis acknowledges this Our response: Conservation efforts consultation on livestock grazing affiliation. The final economic analysis that may benefit the jaguar and its activities, which included consideration has been revised to incorporate the habitat and are likely to be implemented of the jaguar. As a result, the agency information provided via public in the baseline are described separately does not anticipate future management comment. for each economic activity. Specifically, changes following the critical habitat (214) Comment: The draft economic the second section of each activity- designation. Clarifying text has been analysis incorrectly uses measures of specific chapter in the draft economic added to section 3.2.2 to address these gross economic activity as an indication analysis (e.g., section 3.2, section 4.2, questions. of economic value of the Rosemont etc.) discusses the types of projects that (211) Comment: The draft economic Mine and the Hermosa Project. These may have a Federal nexus for analysis should address impacts to measures do not account for the costs consultation and provides information hunting, fishing, and other recreational associated with mining operations or on conservation efforts that have been activities. the probability that production will be implemented in the past or are likely to Our response: The draft economic displaced to other mine locations. be implemented in the future, absent the analysis addresses potential impacts to Alternative numbers from the same designation of critical habitat. recreational activities in Chapter 3 as studies cited in the draft economic (209) Comment: The draft economic part of the discussion of potential analysis that may provide a more analysis understates the incremental impacts to Federal land management. reasonable estimate of the economic costs of consultation for the Coronado We do not forecast substantial changes value of the mines should be used. National Forest because the consultation to recreational management. Our response: Chapter 5 of the draft forecast does not include travel Recreational activities that do not occur economic analysis used measures of the management planning. These costs are on Federal lands are unlikely to have a increase in economic activity, as instead misattributed to the CBP. Federal nexus for section 7 consultation estimated by existing economic Our response: As described in and, therefore, would not be affected by assessments conducted for the Chapter 4–2 of the draft economic the designation of critical habitat. Rosemont Mine and the Hermosa analysis, best management practices for (212) Comment: Clarification as to Project, to describe the upper bound on CBP include designing access roads to whether use of roads and hiking trails possible economic losses. However, the minimize animal collisions and will be affected by the designation of commenter is correct that these values fragmentation of threatened and critical habitat for the jaguar is needed. likely overstate the true economic endangered populations. We expect that The discussion of potential conservation impact of the loss of production. As a CBP operations will continue to adopt measures, including road closures and result, the final economic analysis has these best management practices limitations to public access, on page 4– been revised to include the numbers following the designation of critical 1 of the draft economic analysis suggests suggested by this commenter, along habitat. Additionally, as presented in that CBP jaguar conservation efforts with text describing potential caveats to section 3.4.1 of the draft economic could affect hiking. these measures. The commenter is also analysis, we use the jaguar consultation Our response: The discussion cited in correct that the true regional economic history for the Coronado National Forest this comment refers specifically to CBP impact would account for the to forecast nine formal and nine roads. The potential for impacts to opportunity cost of producing at informal consultations over the next 20 recreational activities is discussed in substitute mine locations. However, years. We assume that any travel Chapter 3 of the draft economic information on the location of such management planning undertaken by analysis. As discussed in section 3.4 of substitute sites is not available, and as the Coronado National Forest will be the draft economic analysis, the a result, the draft economic analysis is included in this consultation forecast. economic analysis does not anticipate not able to account for these costs. The (210) Comment: Additional impacts to Federal land management final economic analysis has been clarification of impacts to activities on activities beyond administrative costs of revised to clarify and expand the BLM lands is needed. Specifically, consultation. As a result, impacts to discussion of potential impacts, as well clarification of BLM’s approach to hiking are not anticipated. as limitations of the analysis. consideration of the jaguar, ‘‘major’’ (213) Comment: The analysis of (215) Comment: The draft economic projects that could be affected by the impacts to the mining industry relies on analysis does not estimate impacts

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associated with changes in the price of critical habitat on manganese lighting design, as well as recommended copper, silver, and manganese that may production at Wildcat Silver’s Hermosa changes to the project footprint during result if mining projects are delayed or Project. The United States currently the planning stage. halted. imports 100 percent of its manganese. To be conservative, the draft Our response: Substantial uncertainty Our response: Sections 5.4.2 and 5.5.2 economic analysis includes incremental exists regarding impacts of the of the draft economic analysis forecast administrative costs for development designation of critical habitat on large economic impacts of the designation of and maintenance of mining claims, mining projects that could sever critical habitat on the Hermosa Project. although most small claims are not connectivity to Mexico. For this reason, This analysis utilizes and reports the expected to require consultation. Chapter 5 considers two scenarios. At estimated net present value of the Additional text has been added to the the low end, we estimate costs Hermosa Project, accounting for costs of final economic analysis to clarify that associated with the conservation production and tax responsibilities, as small mining claims typically do not measures requested in the recent summarized in the Hermosa Project require consultation. biological opinion for the Rosemont Preliminary Economic Assessment. This (219) Comment: The draft economic Mine. At the high end, we assume that assessment incorporates potential future analysis of mining impacts does not the Rosemont Mine and Hermosa revenues associated with all production provide useful information because it Project will not proceed to production at the Hermosa Project, including notes that the probability that due to the high cost of conservation manganese production. incremental conservation measures will measures requested to avoid adverse (218) Comment: The draft economic be requested ranges from zero to 100 modification of critical habitat. analysis fails to incorporate the best percent. Although these scenarios result in available information on the extent of Our response: The final economic incremental economic impacts, costs mining and mineral resources within analysis has been revised based on the would be incurred primarily at the local the proposed designation. Specifically, conclusions of the recent biological or State levels. Although global mineral the proposed designation spans an area opinion for the Rosemont Mine. At the prices are not anticipated to be affected with many established mining districts low end, the final economic analysis by changes to production at these two and includes many patented and estimates costs associated with mines, the potential impact of changes unpatented mining claims within the implementation of requested to anticipated production at these mines Patagonia Mountains. The draft conservation measures. Because of is acknowledged in the final economic economic analysis did not contact BLM concerns expressed previously by the analysis. or USFS for information on planned mining companies, the final economic (216) Comment: The draft economic mining projects. The Service should analysis also considers a second analysis fails to consider the economic review the information on the Coronado scenario in which the mine chooses not and national security impacts of critical National Forest’s schedule of proposed to proceed to production. The final habitat designation on the maintenance actions and source information for economic analysis notes that, based on and development of existing mining online databases of mining claims, the outcome of the section 7 claims on Federal lands, or those held mineral surveys, and land records. The consultation for the Rosemont Mine, the by individuals and small entities. draft economic analysis underestimates second scenario is considered less likely Our response: To inform the analysis impacts to mining operations by not to occur. However, at the time the draft of economic impacts to mining including such actions in the analysis. economic analysis was prepared, the operations, the Service and USFS Our response: To inform the analysis relative likelihood of the two scenarios provided information on the historical of mineral extraction activities in the could not be predicted, and the Service rate of consultation on mining activities draft economic analysis, we spoke with presented a range of plausible impacts as well as the number of mining claims BLM and USFS managers about the as the best available information. over the past year. Communication with frequency and type of consultations (220) Comment: The draft economic USFS indicated that small mining associated with mining activities. analysis treats tax revenues as pure claims typically do not require section Section 5.3 of the draft economic benefits to local, state, and Federal 7 consultation. However, Service analysis describes the historical rate of governments. The analysis does not records indicate that consultation has consultation with USFS since the listing account for the related increase in occasionally occurred for mineral of the species. The historical demand for public services that could exploration, resulting in informal consultation rate for the jaguar does not result from new mining activity. consultation. Past conservation include any consultations with BLM on Our response: The commenter is measures associated with these mining activity, and communication correct that the net regional economic activities have included changes to with BLM did not identify any planned impacts would account for increases in lighting design, as well as recommended mining projects. As a result, we use the public expenditures resulting from changes to the project footprint during historical rate of consultation on USFS increases in mineral production due to the planning stage. lands to forecast future impacts, as well increased demand for public services. To be conservative, the draft as evaluating impacts separately for the However, information on the potential economic analysis includes incremental two large mining construction projects magnitude of such an increase in administrative costs for development known to be planned within critical demand for public services is not and maintenance of mining claims, habitat. available. The final economic analysis although most small claims are not Communication with USFS indicated has been revised to clarify and expand expected to require consultation. that small mining claims typically do the discussion of potential regional Additional text has been added to the not require section 7 consultation. economic impacts, as well as limitations final economic analysis to clarify that However, Service records indicate that of the analysis. small mining claims typically do not consultation has occasionally occurred (221) Comment: The draft economic require consultation. for mineral exploration, resulting in analysis presents regional economic (217) Comment: The draft economic informal consultation. Past conservation impacts associated with mining activity analysis does not address the potential measures associated with these as comparable to economic efficiency economic impacts of the designation of activities have included changes to losses associated with increased

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consultation. The regional economic economic analysis describes cost when quantifying costs associated with impacts are a separate measure of impacts associated with the potential the proposed designation. economic activity and cannot be added loss of mineral production at the Our response: The final economic to economic efficiency losses. Rosemont Mine, and potential economic analysis has been revised based on the Our response: Section 2.2 of the draft benefits are addressed separately in conclusions of the recent biological economic analysis describes the Chapter 11. The final economic analysis opinion for the Rosemont Mine. At the distinction between efficiency effects has been revised to clarify that the loss low end, the final economic analysis and distributional effects. It is correct of potential employment and revenues estimates costs associated with that the draft economic analysis associated with Rosemont Mine are not implementation of requested reported in Chapter 5, as part of a net of potential benefits. conservation measures. The final scenario describing upper bound (224) Comment: The draft economic economic analysis also considers a impacts related to mining activities, analysis fails to include any costs second scenario in which Rosemont regional economic impacts as potential associated with conservation measures Mine chooses not to proceed to impacts of the rule. However, these for mining activities, despite describing production. Section 5.5.1 of the draft were reported separately from efficiency the potential for such costs to occur. economic analysis describes potential effects. Clarifying text has been added to Instead, the draft economic analysis impacts of this scenario in terms of lost the final economic analysis. forecasts only a small amount of economic revenue, tax revenue, and (222) Comment: The draft economic incremental administrative costs. The employment, using the values estimated analysis does not consider the value of information on the cost of conservation in the analysis conducted by the L. alternative land uses at the Rosemont measures is available in the preliminary William Seidman Research Institute. Mine site that could affect the cost to economic assessment for the Hermosa These impacts represent the high-end society should mining not proceed. Project. effects of foregone mine production. Our response: It is correct that a more Our response: The final economic (227) Comment: The draft economic precise measure of potential economic analysis has been revised to incorporate analysis suggests that the designation of impacts to the area that is being available quantitative information on critical habitat will result in economic considered for Rosemont Mine would the Hermosa Project, wherever possible. benefits by limiting mining activity. consider that, should the area not be However, while the Preliminary However, the draft economic analysis mined, the area could be used for other Economic Assessment for the Hermosa ignores the benefits that mining purposes, such as recreation, which Project includes information on the projects, such as the Rosemont Mine, would offset to some degree regional breakdown of capital and operating may provide to local, state, and national impacts of not mining the area. costs, it does not provide information economies. However, because of uncertainty of specific to jaguar conservation efforts. Our response: Section 5.5.1 of the alternative future uses, the draft The cost estimates in the Preliminary draft economic analysis describes the economic analysis is not able to account Economic Assessment are not provided potential economic impacts of a for these opportunity costs. As such, the to a level of detail that would allow scenario in which the Rosemont Mine is reported potential societal costs of not such estimation. For these reasons, the not able to proceed to production. To mining may be less than is reported in draft economic analysis is not able to estimate these costs, the draft economic the upper bound scenario. The final fully quantify costs of implementing analysis assumes that economic benefits economic analysis has been revised to conservation measures that may be of the mine, including economic clarify and expand the discussion of undertaken for the jaguar and its habitat revenue, tax revenue, and employment, potential regional economic impacts, as at the Rosemont Mine or the Hermosa would be foregone. Section 5.5.2 of the well as limitations of the analysis. Project using these data. draft economic analysis provides a (223) Comment: The draft economic (225) Comment: The draft economic similar description of foregone analysis concludes that the benefits of analysis refers to potential impacts to economic benefits for the Hermosa the Rosemont Mine dominate any large mining projects as being Project. In these sections, the draft potential costs, resulting in a large cost ‘‘unquantified’’ in the conclusions for economic analysis acknowledges that to the region and the state if the mine the analysis, despite providing mining projects may provide benefits to does not proceed. The draft economic quantified estimates for these impacts local, state, and national economies, and analysis does not document the analysis elsewhere in the analysis. that these benefits may be lost if the that led to that conclusion. Our response: The text of the final designation of critical habitat hinders Our response: The draft economic economic analysis has been revised to production. analysis provides an estimate of clarify that potential impacts to mining (228) Comment: The designation of potential future costs of critical habitat projects are quantified but not added to critical habitat will lead to a decrease in designation. It does not conclude that other impact estimates due to the high the value of privately owned land. The costs exceed benefits, nor does the level of uncertainty surrounding impact designation would place restrictions on analysis attempt to weigh costs against estimates. The final economic analysis the landowner’s ability to subdivide the benefits at all. Instead, the draft has also been revised to incorporate land. Additionally, entering into a economic analysis provides information discussion of these impacts into the conservation easement would decrease on the likely magnitude of costs and the report’s conclusions. the value of the land. types of ancillary benefits that may (226) Comment: The draft economic Our response: Section 2.3.2 of the occur to inform the evaluation of the analysis underestimates costs to mining draft economic analysis discusses that designation by the Secretary of the operations by ignoring economic public attitudes about the limits or Department of the Interior. As discussed impacts of conservation measures. In restrictions that critical habitat may in Chapter 2, the Service believes that particular, the draft economic analysis impose can cause real economic effects the direct benefits of the proposed rule ignores the expected economic to property owners, regardless of are best expressed in biological terms contribution of the Rosemont Mine, as whether such limits are actually that can be weighed against the estimated in the analysis by the L. imposed (stigma effects). As the public expected cost impacts of the William Seidman Research Institute becomes aware of the true regulatory rulemaking. Chapter 5 of the draft cited in the draft economic analysis, burden imposed by critical habitat, the

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impact of the designation on property BLM, or the Bureau of Reclamation, and the Service. As a result, impacts to markets may decrease. Thus, to the consult with the Service. small ranchers are not expected. extent that stigma impacts occur in the Our response: The text of the final (235) Comment: The Service should future, impacts are expected to be economic analysis has been revised to include a reference for a statement in temporary. clarify that NRCS, and not individual the draft economic analysis that (229) Comment: The draft economic landowners, would consult with the describes the review process for range analysis underestimates the number of Service. Individual landowners may, in improvement projects carried out by the consultations relating to grazing that some cases, participate in section 7 Arizona State Land Department (ASLD). will occur over the analytic timeframe. consultation as third parties. The draft economic analysis states that Every Federal grazing permittee within (232) Comment: The draft economic this review is conducted by the Arizona the proposed designation will be subject analysis should consider economic Game and Fish Department (AGFD). to reinitiated consultation and will have impacts related to precluding, delaying, Our response: As cited in the draft to consult twice within the 20-year or requiring mitigation for the economic analysis, the statement analytic timeframe, based on typical construction of the previously proposed references personal communication timeframes for permit renewals. The Sierrita natural gas pipeline, which is with the Arizona State Land Department draft economic analysis should consider expected to cross jaguar critical habitat. (ASLD) regarding typical project review. costs to individuals and local ranchers, Our response: As described in section (236) Comment: The draft economic in addition to overall impacts. In 9.1 of the draft economic analysis, the analysis should quantify direct and particular, the draft economic analysis installation of natural gas pipelines may indirect economic benefits of the should consider costs associated with occur in proposed critical habitat areas. designation of critical habitat. In consultations for new construction or In addition, as described in chapter 3 of particular, the analysis should note the maintenance of range improvements on the draft economic analysis, BLM potential for educational, recreational, Federal grazing allotments. consulted on a pipeline project in 2006. and eco-tourism benefits. Our response: As discussed in Section We use historic rates of consultation to Our response: The primary purpose of 3.4 of the draft economic analysis, based forecast future costs associated with critical habitat designation is to support on communication with BLM and USFS both miscellaneous activities and the conservation of the jaguar. Rather staff and the agencies’ consultation projects on BLM lands. In this manner, than rely on economic measures, the history, we assume that both BLM and we incorporate the possibility that a Service believes that the direct benefits USFS will reinitiate programmatic future consultation on the Sierrita of the proposed rule are best expressed consultations on livestock grazing natural gas pipeline may occur. in biological terms that can be weighed activities. These programmatic Currently, sufficient information on the against the expected cost impacts of the consultations will cover all Federal project scope and location is not rulemaking. As described in Chapter 11 grazing permittees collectively. The available to forecast potential of the draft economic analysis, agencies do not anticipate undertaking conservation measures for this pipeline. quantification and monetization of this individual consultations with, or on A brief discussion of this potential conservation benefit requires behalf of, permittees. project has been added to the final information on the incremental change (230) Comment: The designation of economic analysis. in the probability of conservation critical habitat may affect the (233) Comment: The draft economic resulting from the designation. Such relationship between the Natural analysis should address the impacts of information is not available, and as a Resources Conservation Service (NRCS) multiple species management, result, monetization of the primary and ranchers. In particular, the especially with regard to reductions in benefit of critical habitat designation is designation of critical habitat may lead cattle grazing on USFS lands. Such not possible. However, Chapter 11 of the to a reduction in NRCS participation livestock reductions may be attributed draft economic analysis provides a within the proposed designation, and to the conservation of numerous listed qualitative description of the potential could therefore result in regional species, including the jaguar. categories of direct and ancillary economic and environmental impacts. Our response: Past actions related to benefits that may result from the Our response: Section 9.4.1 of the consultations on grazing activities designation. The benefits described in draft economic analysis addresses the related to other species have affected Chapter 11 include those mentioned in public concern that ranchers and grazing opportunities in some areas. public comments, such as use values farmers could withdraw participation in However, as discussed in Chapter 3 of (e.g., wildlife viewing or eco-tourism), Federal programs, such as those the draft economic analysis, no changes non-use values (e.g., existence value), implemented by NRCS, in order to to grazing on Federal lands are expected aesthetic benefits, educational benefits, avoid a potential Federal nexus for as a result of the designation of critical and property value benefits. This consultation generated by receipt of habitat for the jaguar in either the chapter also identifies the critical Federal funding. However, as described baseline or incremental scenario. habitat units where such benefits are in the draft economic analysis, the (234) Comment: The Service should likely to occur. designation of critical habitat for other include additional information on species in the region has not led to such impacts to small businesses, such as Required Determinations withdrawals, in the experience of NRCS. information on the percentage of In our August 20, 2012, proposed rule As a result, the draft economic analysis farmers and ranchers in Arizona and (77 FR 50214), we indicated that we does not forecast economic impacts New Mexico that are considered small would defer our determination of associated with withdrawals from businesses and that are owned by compliance with several statutes and Federal conservation programs due to women, and the impact the designation executive orders until the information the designation of critical habitat. would have on these businesses. concerning potential economic impacts (231) Comment: One paragraph in the Our response: As described in section of the designation and potential effects draft economic analysis implies that A.1.2 of Appendix A, small entities are on landowners and stakeholders became private landowners consult directly generally not directly involved in the available in the draft economic analysis. with the Service. It should be clarified consultation process between NRCS or We have now made use of the draft that Federal agencies, such as NRCS, U.S. Department of Agriculture (USDA) economic analysis data to make these

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determinations. In this document, we flexibility analysis that describes the agencies are required to evaluate the affirm the information in our proposed effects of the rule on small entities potential impacts of rulemaking only on rule concerning Executive Orders (small businesses, small organizations, those entities directly regulated by the (E.O.s) 12866 and 13563 (Regulatory and small government jurisdictions). rulemaking; therefore, they are not Planning and Review), E.O. 13132 However, no regulatory flexibility required to evaluate the potential (Federalism), E.O. 12988 (Civil Justice analysis is required if the head of an impacts to those entities not directly Reform), E.O. 13211 (Energy, Supply, agency certifies the rule will not have a regulated. The designation of critical Distribution, and Use), the Unfunded significant economic impact on a habitat for an endangered or threatened Mandates Reform Act (2 U.S.C. 1501 et substantial number of small entities. species has a regulatory effect only seq.), and the Paperwork Reduction Act The SBREFA amended the RFA to where a Federal action agency is of 1995 (44 U.S.C. 3501 et seq.). require Federal agencies to provide a involved in a particular action that may However, based on the draft economic certification statement of the factual affect the designated critical habitat. analysis data and draft environmental basis for certifying that the rule will not Under these circumstances, only the assessment, we are amending our have a significant economic impact on Federal action agency is directly required determinations concerning the a substantial number of small entities. regulated by the designation, and, Regulatory Flexibility Act (5 U.S.C. 601 In this final rule, we are certifying that therefore, consistent with the Service’s et seq.), the National Environmental the critical habitat designation for jaguar current interpretation of RFA and recent Policy Act (42 U.S.C. 4321 et seq.), and will not have a significant economic case law, the Service may limit its E.O. 12630 (Takings). In addition, we impact on a substantial number of small evaluation of the potential impacts to are amending our required entities. The following discussion those identified for Federal action determinations concerning the explains our rationale. agencies. Under this interpretation, President’s memorandum of April 29, According to the Small Business there is no requirement under the RFA 1994, ‘‘Government-to-Government Administration, small entities include to evaluate the potential impacts to Relations with Native American Tribal small organizations, such as entities not directly regulated, such as Governments’’ (59 FR 22951). independent nonprofit organizations; small businesses. However, Executive small governmental jurisdictions, Orders 12866 and 13563 direct Federal Regulatory Planning and Review including school boards and city and agencies to assess costs and benefits of (Executive Orders 12866 and 13563) town governments that serve fewer than available regulatory alternatives in Executive Order 12866 provides that 50,000 residents; as well as small quantitative (to the extent feasible) and the Office of Information and Regulatory businesses (13 CFR 121.201). Small qualitative terms. Consequently, it is the Affairs (OIRA) will review all significant businesses include manufacturing and current practice of the Service to assess rules. The Office of Information and mining concerns with fewer than 500 to the extent practicable these potential Regulatory Affairs has determined that employees, wholesale trade entities impacts if sufficient data are available, this rule is significant because it will with fewer than 100 employees, retail whether or not this analysis is believed raise novel legal or policy issues. and service businesses with less than $5 by the Service to be strictly required by Executive Order 13563 reaffirms the million in annual sales, general and the RFA. In other words, while the principles of E.O. 12866 while calling heavy construction businesses with less effects analysis required under the RFA for improvements in the nation’s than $27.5 million in annual business, is limited to entities directly regulated regulatory system to promote special trade contractors doing less than by the rulemaking, the effects analysis predictability, to reduce uncertainty, $11.5 million in annual business, and under the Act, consistent with the EO and to use the best, most innovative, agricultural businesses with annual regulatory analysis requirements, can and least burdensome tools for sales less than $750,000. To determine take into consideration impacts to both achieving regulatory ends. The if potential economic impacts on these directly and indirectly impacted executive order directs agencies to small entities are significant, we entities, where practicable and consider regulatory approaches that consider the types of activities that reasonable. reduce burdens and maintain flexibility might trigger regulatory impacts under In conclusion, we believe that, based and freedom of choice for the public this rule, as well as the types of project on our interpretation of directly where these approaches are relevant, modifications that may result. In regulated entities under the RFA and feasible, and consistent with regulatory general, the term ‘‘significant economic relevant case law, this designation of objectives. E.O. 13563 emphasizes impact’’ is meant to apply to a typical critical habitat will only directly further that regulations must be based small business firm’s business regulate Federal agencies, which are not on the best available science and that operations. by definition small business entities. the rulemaking process must allow for Importantly, the incremental impacts And as such, we certify that, if public participation and an open of a rule must be both significant and promulgated, this designation of critical exchange of ideas. We have developed substantial to prevent certification of the habitat would not have a significant this rule in a manner consistent with rule under the RFA and to require the economic impact on a substantial these requirements. preparation of an initial regulatory number of small business entities. flexibility analysis. If a substantial Therefore, an initial regulatory Regulatory Flexibility Act (5 U.S.C. 601 number of small entities are affected by flexibility analysis is not required. et seq.) the proposed critical habitat However, though not necessarily Under the Regulatory Flexibility Act designation, but the per-entity economic required by the RFA, in our final (RFA; 5 U.S.C. 601 et seq.), as amended impact is not significant, the Service economic analysis for this rule we by the Small Business Regulatory may certify. Likewise, if the per-entity considered and evaluated the potential Enforcement Fairness Act (SBREFA) of economic impact is likely to be effects to third parties that may be 1996 (5 U.S.C 801 et seq.), whenever an significant, but the number of affected involved with consultations with agency must publish a notice of entities is not substantial, the Service Federal action agencies related to this rulemaking for any proposed or final may also certify. action. rule, it must prepare and make available The Service’s current understanding Designation of critical habitat only for public comment a regulatory of recent case law is that Federal affects activities authorized, funded, or

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carried out by Federal agencies. Some Consultations to avoid the destruction economic analysis of the critical habitat kinds of activities are unlikely to have or adverse modification of critical designation for a more detailed any Federal involvement and so will not habitat would be incorporated into the discussion of potential economic be affected by critical habitat existing consultation process. impacts. designation. In areas where the species In the final economic analysis, we is present, Federal agencies already are evaluated the potential economic effects Mining on small entities resulting from required to consult with us under Chapter 5 of the final economic implementation of conservation actions section 7 of the Act on activities they analysis describes potential impacts authorize, fund, or carry out that may related to the designation of critical arising from three known formal affect the jaguar. Federal agencies also habitat for the jaguar. The designation of consultations on mining: the Rosemont must consult with us if their activities critical habitat for the jaguar is unlikely Mine, the Hermosa Project, and the may affect critical habitat. Designation to directly affect any small entities. The of critical habitat, therefore, could result costs associated with the designation are Coronado National Forest Land and in an additional economic impact on likely to be limited to the incremental Resource Management Plan. According small entities due to the requirement to impacts associated with administrative to the Small Business Administration, to reinitiate consultation for ongoing costs of section 7 consultations. Small be considered a small entity in this Federal activities (see Determinations of entities may participate in section 7 industry, companies must employ fewer Adverse Effects and Application of the consultation as a third party (the than 500 people (13 CFR 121.201). The ‘‘Adverse Modification’’ Standard primary consulting parties being the Coronado National Forest is a Federal section, above). Service and the Federal action agency). entity and is not considered small. In our final economic analysis of the It is therefore possible that the small As of 2011, Augusta Resource critical habitat designation, we entities may spend additional time Corporation, which is the parent evaluated the potential economic effects considering critical habitat due to the company of Rosemont Mine, employed on small business entities resulting from need for a section 7 consultation for the a total of 56 people throughout Canada conservation actions related to the jaguar. We do not expect critical habitat and the United States. Rosemont Mine listing of the jaguar and the designation designation to result in impacts to small anticipates employing up to 494 people of critical habitat. The analysis is based entities for the following activities: directly at the Rosemont Mine. It is on the estimated impacts associated forest management, border protection, therefore unlikely that, following with the rulemaking as described in and military activities (as they do not construction of the Rosemont Mine, Chapters 2 through 10 and Appendix A involve third parties, only Federal and Augusta Resource Corporation will of the analysis and evaluates the State agencies); and development, employ fewer than 500 people. potential for economic impacts related recreation, and utility construction (as to: (1) Federal land management; (2) we do not forecast any impacts to these It is uncertain whether Wildcat Silver border protection activities; (3) mining; activities). Additionally, Chapter 10 of will employ more than 500 workers (4) transportation activities; (5) the final economic analysis details the during the operation of the Hermosa development; (6) military activities; (7) potential incremental impacts of critical Project. Therefore, we conservatively livestock grazing and other activities; habitat designation on tribes with lands assume that Wildcat Silver is a small and (8) Tohono O’odham Nation overlapping the designation. Tribes are entity. The cost of consultation for activities. generally not subject to review under Wildcat Silver is approximately $875. To determine if the designation of the RFA/SBREFA. For example, in its Although Wildcat Silver is considered critical habitat for the jaguar would guidance on preparing analyses in to be an exploration stage enterprise and affect a substantial number of small compliance with the RFA/SBREFA, the has yet to generate revenue from its entities, we considered the number of Environmental Protection Agency states operations, this cost is unlikely to be a small entities affected within particular that, for the purposes of the RFA, States significant burden on the company, as types of economic activities, such as and tribal governments are not its assets exceeded $60 million and it mining, transportation construction, considered small governments but had more than $3 million in cash and development, and agriculture and rather as independent sovereigns. cash equivalents as of September 30, grazing. In order to determine whether Estimated incremental costs that may 2012. it is appropriate for our agency to certify be borne by small entities consist of that this rule would not have a administrative impacts of section 7 Additionally, in Chapter 5 of the final significant economic impact on a consultation related to mining, economic analysis, we discuss the substantial number of small entities, we transportation construction, and potential for jaguar critical habitat to considered each industry or category agriculture and grazing. These potential affect other mineral mining operations. individually. In estimating the numbers impacts are described in greater detail While incremental project modification of small entities potentially affected, we below. It is uncertain whether any third impacts are not forecast for these also considered whether their activities parties involved with mining or activities over 20 years, administrative have any Federal involvement. Critical transportation would be considered costs related to 2.5 forecasted informal habitat designation will not affect small entities when fully operational; consultations on mining exploration activities that do not have any Federal however, assuming that they would may involve small entities as third-party involvement; designation of critical qualify as small entities, the cost of project proponents. It is uncertain habitat only affects activities conducted, consultation represents less than 1 whether third parties involved in these funded, permitted, or authorized by percent of each company’s annual mining consultations will be small; Federal agencies. Because the jaguar is revenues. Potential impacts to however, we conservatively assume that already listed as an endangered species agriculture and grazing related to each forecast consultation on mining under the Act, in areas where the jaguar foregone Natural Resources will involve a small entity. The cost of is present, Federal agencies are required Conservation Service (NRCS) funding consultation is approximately $875. to consult with us under section 7 of the are not quantified; however, we do not This cost likely represents less than one Act on activities they fund, permit, or expect small entities to bear a direct percent of annual revenues for mining implement that may affect the species. burden. Please refer to the final companies.

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Transportation Construction this amounts to less than one the possibility exists for administrative In the final economic analysis, we consultation per year. The per-entity impacts to occur in association with two forecast consultations on these impact, ranging from approximately formal and three informal forecast activities, as discussed in Chapter 6. $875 to $7,875, represents less than one consultations on agriculture and grazing These consultations will likely not percent of annual revenues. projects that may involve small entities within the study area. However, small involve third parties, as transportation Agriculture and Grazing consultations typically require only entities are likely not directly involved administrative effort on the part of State In the final economic analysis, we in the consultation process between departments of transportation and the forecast consultations on these NRCS or U.S. Department of Agriculture Service. However, we conservatively activities, as discussed in Chapter 9. In with the Service. assume that all consultations will this analysis, we discuss potential Table 5 presents the results of the involve a small third party. We forecast impacts related to foregone NRCS final economic analysis. It provides the two formal consultations and seven funding, but do not quantify these relevant small entity thresholds by technical assistance consultations on impacts. While up to six separate small North American Industry Classification such projects that may involve small entities could be affected based on past System (NAICS) code, the total number entities within the study area. Assuming rates of NRCS funding near critical of entities and small entities, and the that all transportation potential impacts habitat, we do not expect these entities estimated incremental impacts as a are borne by nine small private entities, to bear a direct burden. Additionally, percentage of annual revenues.

TABLE 5—SUMMARY OF POTENTIAL IMPACTS ON SMALL ENTITIES

Number of affected Impacts as Small entity size Total Number of small Incremental eco- Industry 1 percent of Activity (NAICS codes) standard number of small entities nomic impacts to annual (millions of dollars) entities entities (percent of small businesses 2 3 total small revenues entities)

Transportation ...... Highway, Street 33.5 ...... 120 110 9 (7%) $875 to $7,875 4 ... 0.09 and Bridge Con- struction (237310). Other Heavy and 33.5 ...... 30 28 Civil Engineering Construction (237990). Agriculture and Beef Cattle Ranch- 0.75 ...... 80 74 0 (0%) $0 per entity 5 ...... 0 Grazing. ing and Farming (112111). Cotton Farming 0.75 ...... 3 1 (115111). Mining ...... Iron Ore Mining 500 employees ..... 0 0 4 (13%) $875 to $3,500 6 (212210). Gold Ore Mining 500 employees ..... 6 6 (212221). Silver Ore Mining 500 employees ..... 1 1 (212222). Lead Ore and Zinc 500 employees ..... 6 6 Ore Mining (212231). Copper Ore and 500 employees ..... 33 8 Nickel Ore Min- ing (212234). Uranium-Radium- 500 employees ..... 0 0 Vanadium Ore Mining (212291). All Other Metal Ore 500 employees ..... 0 0 Mining (212299). Support Activities 7 ...... 9 8 for Metal Mining (213114). Support Activities 7 ...... 3 3 for Nonmetallic Minerals, except fuels (213115). Notes: 1. To estimate the number of affected small entities, this analysis assumes one small entity per forecast section 7 consultation. For agriculture and grazing, this assumes one small entity per NRCS funding instance. 2. For these activities, we conservatively estimate that all administrative costs of consultation will be incurred by a small entity in a single year. Therefore, we use the total, undiscounted third party incremental costs of a formal consultation.

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3. Annual revenues are estimated using Risk Management Association (RMA), Annual Statement Studies: Financial Ratio Benchmarks 2012 to 2013, 2012. For each NAICS code, RMA provides the net sales and the number of entities falling within several sales categories: $0 to $1 million, $1 to 3 million, $3 to $5 million, $5 to 10 million, or $10 to $25 million. Based on the number of entities and total net sales falling within each sales category, we developed an estimate of the weighted average net sales (revenues) per small entity: for transportation-related firms, annual revenues were estimated to be approximately $8.6 million; for companies involved in agriculture and grazing, revenues are estimated at $430,000 annually; for mining firms, annual revenue information was not available, but due to the highly capitalized nature of the mining industry, mining firms are assumed to have high annual revenues such that per-entity impacts of $2,625 resulting from the designation of critical habitat are likely to be insignificant. 4. We are uncertain in what year consultations and technical assistance requests on transportation activities will occur over the next 20 years. For the purposes of this analysis, we assume affected small entities will participate in approximately nine consultations or technical assistance requests over 20 years, or less than one consultation per year. However, if we assume that a single small entity participates in multiple formal consultations in a single year, the administrative costs of such activity are still likely to be less than one percent of annual tax revenues (e.g., nine consultations × $875/$9,000,000 = 0.09 percent of annual revenues). 5. Potential impacts related to NRCS funding are not quantified. 6. We are uncertain in what year consultations on mining will occur over the next 20 years. For the purposes of this analysis, we assume affected small entities will participate in approximately 4 consultations over 20 years, one of which will be associated with the Hermosa Project and will involve Wildcat Silver Corporation. However, if we assume that a single small entity participates in multiple consultations in a single year, the administrative costs of such activity are still likely to be less than one percent of annual revenues. Although data on annual revenues for mining companies were unavailable, due to the highly capitalized nature of the mining industry, companies involved in mining operations are likely to produce revenues large enough that the cost of undertaking three consultations in a single year would likely be less than one percent of annual revenues (e.g., four consultations × $875 = $3,500. $3,500 represents one percent of annual revenues of $350,000. Mining companies are likely to produce revenues of greater than $350,000 annually). Source: Dialog search of File 516, Dun and Bradstreet, ‘‘Duns Market Identifiers,’’ on January 3, 2013.

In summary, we considered whether Unfunded Mandates Reform Act (2 upon the private sector, except (i) a this designation would result in a U.S.C. 1501 et seq.) condition of Federal assistance or (ii) a significant economic effect on a In accordance with the Unfunded duty arising from participation in a substantial number of small entities. Mandates Reform Act (2 U.S.C. 1501 et voluntary Federal program.’’ Based on the above reasoning and seq.), we make the following findings: The designation of critical habitat currently available information, we (1) This rule will not produce a does not impose a legally binding duty concluded that this rule would not Federal mandate. In general, a Federal on non-Federal Government entities or result in a significant economic impact mandate is a provision in legislation, private parties. Under the Act, the only on a substantial number of small statute, or regulation that would impose regulatory effect is that Federal agencies entities. Therefore, we are certifying that an enforceable duty upon State, local, or must ensure that their actions do not the designation of critical habitat for tribal governments, or the private sector, destroy or adversely modify critical jaguar will not have a significant and includes both ‘‘Federal habitat under section 7. While non- Federal entities that receive Federal economic impact on a substantial intergovernmental mandates’’ and funding, assistance, or permits, or that number of small entities, and a ‘‘Federal private sector mandates.’’ otherwise require approval or regulatory flexibility analysis is not These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental authorization from a Federal agency for required. mandate’’ includes a regulation that an action, may be indirectly impacted Energy Supply, Distribution, or Use— ‘‘would impose an enforceable duty by the designation of critical habitat, the Executive Order 13211 upon State, local, or tribal governments’’ legally binding duty to avoid with two exceptions. It excludes ‘‘a destruction or adverse modification of Executive Order 13211 (Actions condition of Federal assistance.’’ It also critical habitat rests squarely on the Concerning Regulations That excludes ‘‘a duty arising from Federal agency. Furthermore, to the Significantly Affect Energy Supply, participation in a voluntary Federal extent that non-Federal entities are Distribution, or Use) requires agencies program,’’ unless the regulation ‘‘relates indirectly impacted because they to prepare Statements of Energy Effects to a then-existing Federal program receive Federal assistance or participate when undertaking certain actions. OMB under which $500,000,000 or more is in a voluntary Federal aid program, the has provided guidance for provided annually to State, local, and Unfunded Mandates Reform Act would implementing this Executive Order that tribal governments under entitlement not apply, nor would critical habitat outlines nine outcomes that may authority,’’ if the provision would shift the costs of the large entitlement constitute ‘‘a significant adverse effect’’ ‘‘increase the stringency of conditions of programs listed above onto State when compared to not taking the assistance’’ or ‘‘place caps upon, or governments. regulatory action under consideration. otherwise decrease, the Federal (2) We do not believe that this rule Government’s responsibility to provide will significantly or uniquely affect The economic analysis finds that funding,’’ and the State, local, or tribal small governments because it would not none of these criteria are relevant to this governments ‘‘lack authority’’ to adjust produce a Federal mandate of $100 analysis. Thus, based on information in accordingly. At the time of enactment, million or greater in any year; that is, it the economic analysis, energy-related these entitlement programs were: is not a ‘‘significant regulatory action’’ impacts associated with jaguar Medicaid; Aid to Families with under the Unfunded Mandates Reform conservation activities within critical Dependent Children work programs; Act. The final economic analysis habitat are not expected. As such, the Child Nutrition; Food Stamps; Social concludes incremental impacts may designation of critical habitat is not Services Block Grants; Vocational occur due to (1) the administrative costs expected to significantly affect energy Rehabilitation State Grants; Foster Care, of conducting section 7 consultation; supplies, distribution, or use. Therefore, Adoption Assistance, and Independent and (2) implementation of any this action is not a significant energy Living; Family Support Welfare conservation efforts requested by the action, and no Statement of Energy Services; and Child Support Service through section 7 consultation Effects is required. Enforcement. ‘‘Federal private sector to avoid potential destruction or adverse mandate’’ includes a regulation that modification of critical habitat; ‘‘would impose an enforceable duty however, these are not expected to

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significantly affect small governments. anyone else. As a result, the rule does organizations. An agency may not Incremental impacts stemming from not have substantial direct effects either conduct or sponsor, and a person is not various species conservation and on the States, or on the relationship required to respond to, a collection of development control activities are between the national government and information unless it displays a expected to be borne by the Federal the States, or on the distribution of currently valid OMB control number. Government, State agencies, with some powers and responsibilities among the National Environmental Policy Act (42 effects to mining and transportation, various levels of government. The U.S.C. 4321 et seq.) which are not considered small designation may have some benefit to governments. By definition, Federal these governments because the areas It is our position that, outside the agencies are not considered small that contain the features essential to the jurisdiction of the U.S. Court of Appeals entities, although the activities they conservation of the species are more for the Tenth Circuit, we do not need to fund or permit may be proposed or clearly defined, and the physical or prepare environmental analyses carried out by small entities. biological features of the habitat pursuant to the National Environmental Consequently, we do not believe that necessary to the conservation of the Policy Act (NEPA; 42 U.S.C. 4321 et the critical habitat designation will species are specifically identified. This seq.) in connection with designating significantly or uniquely affect small information does not alter where and critical habitat under the Act. We government entities. As such, a Small what federally sponsored activities may published a notice outlining our reasons Government Agency Plan is not occur. However, it may assist these local for this determination in the Federal required. governments in long-range planning Register on October 25, 1983 (48 FR (because these local governments no 49244). This position was upheld by the Takings—Executive Order 12630 longer have to wait for case-by-case U.S. Court of Appeals for the Ninth In accordance with Executive Order section 7 consultations to occur). Circuit (Douglas County v. Babbitt, 48 12630 (Government Actions and Where State and local governments F.3d 1495 (9th Cir. 1995), cert. denied Interference with Constitutionally require approval or authorization from a 516 U.S. 1042 (1996)). However, when Protected Private Property Rights), we Federal agency for actions that may the range of the species includes States have analyzed the potential takings affect critical habitat, consultation within the Tenth Circuit, such as that of implications of designating critical under section 7(a)(2) would be required. the jaguar, under the Tenth Circuit habitat for jaguar in a takings While non-Federal entities that receive ruling in Catron County Board of implications assessment. The economic Federal funding, assistance, or permits, Commissioners v. U.S. Fish and Wildlife analysis found that no significant or that otherwise require approval or Service, 75 F.3d 1429 (10th Cir. 1996), economic impacts are likely to result authorization from a Federal agency for we undertake a NEPA analysis for from the designation of critical habitat an action, may be indirectly impacted critical habitat designation and notify for the jaguar. Based on information by the designation of critical habitat, the the public of the availability of the draft contained in the economic analysis and legally binding duty to avoid environmental assessment for a described within this document, it is destruction or adverse modification of proposal when it is finished. not likely that economic impacts to a critical habitat rests squarely on the We performed the NEPA analysis, and property owner would be of a sufficient Federal agency. a draft of the environmental assessment magnitude to support a takings action. was available for public comment in the Therefore, the takings implications Civil Justice Reform—Executive Order Federal Register on July 1, 2013 (78 FR assessment concludes that this 12988 39237). We also accepted public designation of critical habitat for the In accordance with Executive Order comments on the draft environmental jaguar does not pose significant takings 12988 (Civil Justice Reform), the Office assessment and made revisions in implications for lands within or affected of the Solicitor has determined that the response to many of those comments by the designation. rule does not unduly burden the judicial (see Summary of Comments and system and that it meets the applicable Recommendations above). The final Federalism—Executive Order 13132 standards set forth in sections 3(a) and environmental assessment has been In accordance with E.O. 13132 3(b)(2) of the Order. We are designating completed and is available for review (Federalism), this final rule does not critical habitat in accordance with the with the publication of this final rule. have significant Federalism effects. A provisions of the Act. To assist the You may obtain a copy of the final Federalism assessment is not required. public in understanding the habitat environmental assessment online at In keeping with Department of the needs of the species, the rule identifies http://www.regulations.gov, by mail Interior and Department of Commerce the elements of physical or biological from the Arizona Ecological Services policy, we requested information from, features essential to the conservation of Fish and Wildlife Office (see and coordinated development of this the jaguar. The designated areas of ADDRESSES), or by visiting our Web site critical habitat designation with, critical habitat are presented on maps, at http://www.fws.gov/southwest/es/ appropriate State resource agencies in and the rule provides several options for arizona/Jaguar.htm. New Mexico and Arizona. We received the interested public to obtain more We analyzed the potential impacts of comments from the New Mexico detailed location information, if desired. critical habitat designation on the Department of Game and Fish and the following resources and resource Arizona Game and Fish Department and Paperwork Reduction Act of 1995 (44 management types: Land use and have addressed them in the Summary of U.S.C. 3501 et seq.) management; fish, wildlife, and plants Comments and Recommendations This rule does not contain any new (including endangered and threatened section of the rule. From a federalism collections of information that require species); fire management; water perspective, the designation of critical approval by OMB under the Paperwork resources (including water management habitat directly affects only the Reduction Act of 1995 (44 U.S.C. 3501 projects and groundwater pumping); responsibilities of Federal agencies. The et seq.). This rule will not impose livestock grazing; construction and Act imposes no other duties with recordkeeping or reporting requirements development (including roads, bridges, respect to critical habitat, either for on State or local governments, dams, infrastructure, residential); tribal States and local governments, or for individuals, businesses, or trust resources; soils; recreation and

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hunting; socioeconomics; Order 13175 (Consultation and Tohono O’odham Nation staff to discuss environmental justice; mining and Coordination With Indian Tribal the proposed designation. On August minerals extraction; and National Governments), and the Department of 30, 2013, we notified all tribes security. We found that the designation the Interior’s manual at 512 DM 2, we potentially affected by our revised of critical habitat for the jaguar would readily acknowledge our responsibility proposal to designate jaguar critical not have direct impacts on the to communicate meaningfully with habitat via email that we reopened the environment as designation is not recognized Federal Tribes on a comment period on the revised expected to impose land use restrictions government-to-government basis. In proposed rule, draft economic analysis, or prohibit land use activities. However, accordance with Secretarial Order 3206 and draft environmental assessment, the designation of critical habitat could: of June 5, 1997 (American Indian Tribal then followed up by sending a letter to (1) Increase the number of additional Rights, Federal-Tribal Trust each tribal leader on September 3, 2013. section 7 consultations for proposed Responsibilities, and the Endangered In addition, the Tohono O’odham projects within designated critical Species Act), we readily acknowledge Nation has a representative on the habitat; (2) trigger new consultations in our responsibilities to work directly Jaguar Recovery Team and so the tribe unoccupied areas; (3) increase the with tribes in developing programs for has been aware that the Service was number of reinitiated section 7 healthy ecosystems, to acknowledge that working on a critical habitat proposal. consultations for ongoing projects tribal lands are not subject to the same We considered these tribal areas for within designated critical habitat; (4) controls as Federal public lands, to exclusion from the final critical habitat maintain the jaguar’s PCEs; (5) increase remain sensitive to Indian culture, and designation to the extent consistent with the likelihood of greater expenditures of to make information available to tribes. the requirements of section 4(b)(2) of the time and Federal funds to develop Using the criteria found in the Criteria Act, and subsequently, excluded all measures to prevent both adverse effects Used To Identify Critical Habitat tribal lands from this final designation. to the species and adverse modification section, we have determined that there References Cited to critical habitat; and (6) indirectly are tribal lands that were occupied by increase the likelihood of greater jaguar at the time of listing that contain A complete list of all references cited expenditure of non-Federal funds by the features essential for the is available on the Internet at http:// project proponents to complete section conservation of the species, as well as www.regulations.gov and upon request 7 consultations and to develop tribal lands unoccupied by the species from the Arizona Ecological Services reasonable and prudent alternatives (to at the time of listing that are essential Fish and Wildlife Office (see FOR avoid adverse modification or for the conservation of the jaguar in the FURTHER INFORMATION CONTACT). destruction of critical habitat by Federal United States. Potentially affected Authors agencies) that maintain critical habitat. Tribes include: The Ak Chin Such an increase might occur where Community, Gila River Indian The primary authors of this there is a Federal nexus to actions Community, Hope Tribe, Pascua Yaqui rulemaking are the staff members of the within areas with no known jaguar Tribe, Salt River Pima Maricopa Indian Arizona Ecological Services Fish and territories, or from the addition of Tribe, San Carlos Apache Tribe, Tohono Wildlife Office. adverse modification analyses to O’odham Tribe, and White Mountain jeopardy consultations in known jaguar Apache Tribe. The Tohono O’odham List of Subjects in 50 CFR Part 17 habitat. Nation is the only tribe with tribal lands The primary purpose of preparing an Endangered and threatened species, within designated critical habitat. We environmental assessment under NEPA Exports, Imports, Reporting and is to determine whether a proposed have conducted government-to- recordkeeping requirements, action would have significant impacts government consultation with these Transportation. tribes throughout the public comment on the human environment. If Regulation Promulgation significant impacts may result from a period and during development of the proposed action, then an environmental final designation of jaguar critical Accordingly, we amend part 17, impact statement is required (40 CFR habitat. subchapter B of chapter I, title 50 of the 1502.3). Whether a proposed action On May 16, 2012, we sent a letter to Code of Federal Regulations, as set forth exceeds a threshold of significance is the Tohono O’odham Nation (the one below: determined by analyzing the context Tribe that owns and manages land PART 17—[AMENDED] and the intensity of the proposed action within the proposed designation) and Bureau of Indian Affairs notifying them (40 CFR 1508.27). Our environmental ■ 1. The authority citation for part 17 assessment found that the impacts of the of our intent to propose critical habitat continues to read as follows: proposed critical habitat designation for the jaguar and describing the would be minor and not rise to a exclusion process under section 4(b)(2) Authority: 16 U.S.C. 1361–1407; 1531– significant level, so preparation of an of the Act. On August 24, 2012, we 1544; 4201–4245; unless otherwise noted. environmental impact statement is not notified all tribes potentially affected by ■ 2. Amend § 17.11(h) by revising the required. our proposal to designate jaguar critical entry for ‘‘Jaguar (Panthera onca)’’ habitat via email, then followed up by under ‘‘Mammals’’ in the List of Government-to-Government sending a letter to each tribal leader on Endangered and Threatened Wildlife to Relationship With Tribes September 28, 2012. We engaged in read as follows: In accordance with the President’s conversations with the Tohono memorandum of April 29, 1994 O’odham Nation about the proposal to § 17.11 Endangered and threatened (Government-to-Government Relations the extent possible without disclosing wildlife. With Native American Tribal pre-decisional information. On * * * * * Governments; 59 FR 22951), Executive September 27, 2012, we met with (h) * * *

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Species Vertebrate population Historic range where endangered or Status When Critical Special Common name Scientific name threatened listed habitat rules

MAMMALS

******* Jaguar ...... Panthera onca ...... U.S.A. (AZ, CA, LA, Entire ...... E 5, 622 17.95(a) NA NM, TX) Mexico, Central and South America.

*******

■ 3. In § 17.95, amend paragraph (a) by (ii) Contain adequate levels of native (vi) Are below 2,000 m (6,562 feet) in adding an entry for ‘‘Jaguar (Panthera prey species, including deer and elevation; and onca)’’, in the same order that the javelina, as well as medium-sized prey (vii) Are characterized by minimal to species appears in the table at such as coatis, skunks, raccoons, or no human population density, no major § 17.11(h), to read as follows: jackrabbits; roads, or no stable nighttime lighting 2 2 (iii) Include surface water sources over any 1-km (0.4-mi ) area. § 17.95 Critical habitat—fish and wildlife. (3) Critical habitat does not include * * * * * available within 20 km (12.4 mi) of each other; manmade structures (such as buildings, (a) Mammals. aqueducts, runways, roads, and other * * * * * (iv) Contain greater than 1 to 50 paved areas) and the land on which they Jaguar (Panthera onca) percent canopy cover within Madrean are located existing within the legal (1) Critical habitat units are depicted evergreen woodland, generally boundaries on April 4, 2014. for Pima, Santa Cruz, and Cochise recognized by a mixture of oak (Quercus (4) Critical habitat map units. Data Counties, Arizona, and Hidalgo County, spp.), juniper (Juniperus spp.), and pine layers defining map units were created New Mexico, on the maps below. (Pinus spp.) trees on the landscape, or using hydrography data, vegetation (2) Within these areas, the primary semidesert grassland vegetation biomes, tree cover, terrain ruggedness, constituent elements of the physical or communities, usually characterized by elevation, Human Influence Index, and biological feature essential to the Pleuraphis mutica (tobosagrass) or undisputed Class I jaguar records from conservation of jaguar consists of Bouteloua eriopoda (black grama) along 1962 to September 11, 2013, and were expansive open spaces in the with other grasses; then mapped using Universal southwestern United States of at least (v) Are characterized by Transverse Mercator (UTM) coordinates. 100 km2 (32 to 38.6 mi2) in size which: intermediately, moderately, or highly (5) Note: Index map follows: (i) Provide connectivity to Mexico; rugged terrain; BILLING CODE 4310–55–P

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(6) Units 1, 2, 3, and 4: Baboquivari, Counties, Arizona. Map of Units 1, 2, 3, Atascosa, Patagonia, and Whetstone and 4 follows: Units, Pima, Santa Cruz, and Cochise

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(7) Units 5 and 6: Peloncillo and San and Hidalgo County, New Mexico. Map Luis Units, Cochise County, Arizona, of Units 5 and 6 follows:

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* * * * * Dated: January 29, 2014. Rachel Jacobson, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2014–03485 Filed 3–4–14; 8:45 am] BILLING CODE 4310–55–C

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