Tuesday, August 9, 2005

Part III

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Listing Roswell springsnail, Koster’s springsnail, Noel’s amphipod, and Pecos assiminea as Endangered With Critical Habitat; Final Rule

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09AUR2.SGM 09AUR2 46304 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

DEPARTMENT OF THE INTERIOR SUPPLEMENTARY INFORMATION: in coastal brackish waters or along tropical and temperate seacoasts Background Fish and Wildlife Service worldwide (Taylor 1987). Inland species It is our intent to discuss only those of the genus Assiminea are known from 50 CFR Part 17 topics directly relevant to this final around the world, and in North America listing determination. For more RIN 1018–AI15 they occur in California (Death Valley information on the four invertebrates, National Monument), Utah, New Endangered and Threatened Wildlife refer to the February 12, 2002, proposed Mexico, Texas (Pecos and Reeves and Plants; Listing Roswell rule (67 FR 6459). However, some of Counties), and Mexico (Bolso´n de springsnail, Koster’s springsnail, this information is discussed in our Cuatro Cı´enegas). Noel’s amphipod, and Pecos analyses below, such as the summary of The Roswell springsnail and Koster’s assiminea as Endangered With Critical factors affecting the species. springsnail are aquatic species. These Habitat Springsnails snails have lifespans of 9 to 15 months and reproduce several times during the AGENCY: Fish and Wildlife Service, The Permian Basin of the spring through fall breeding season Interior. southwestern United States contains (Taylor 1987; Pennak 1989; Brown one of the largest carbonate (limestone) ACTION: Final rule. 1991). Snails of the family Hydrobiidae deposits in the world (New Mexico are sexually dimorphic (there are SUMMARY: We, the U.S. Fish and Department of Game and Fish (NMDGF) characteristic differences between males Wildlife Service (Service), list the 1998). Within the Permian Basin of the and females), with females being Roswell springsnail (Pyrgulopsis Southwestern United States lies the characteristically larger and longer-lived roswellensis), Koster’s springsnail Roswell Basin. Located in southeastern than males. As with other snails in the (Juturnia kosteri), and Noel’s amphipod New Mexico, this Basin has a surface family, the Roswell springsnail and (Gammarus desperatus) as endangered area of around 31,080 square kilometers Koster’s springsnail are completely and the Pecos assiminea (Assiminea (km) (12,000 square miles [mi]) and aquatic but can survive in seepage areas, pecos) as endangered with critical generally begins north of Roswell, New as long as flows are perennial and habitat under the Endangered Species Mexico, and runs to the southeast of within the species’ physiological Act of 1973, as amended (Act). These Carlsbad, New Mexico. The Roswell tolerance limit. These two snails occupy four invertebrates occur at sinkholes, Basin contains a deep artesian aquifer spring heads and runs with variable springs, and associated spring runs and and a shallow surficial aquifer. The water temperatures (10 to 20 ° Celsius wetland habitats. They are found at one action of water on soluble rocks (e.g., [C] (50 to 68 ° Fahrenheit [F])) and slow- site in Chaves County, New Mexico, and limestone and dolomite) has formed to-moderate water velocities over Pecos assiminea is also found at one site abundant ‘‘karst’’ features such as compact substrate ranging from deep in Pecos County, Texas, and one site in sinkholes, caverns, springs, and organic silts to gypsum sands and gravel Reeves County, Texas. underground streams (White et al. and compact substrate (NMDGF 1998). These three snails and one amphipod 1995). These hydrogeological formations Conversely, the Pecos assiminea seldom have an exceedingly limited create unique settings harboring diverse occurs immersed in water, but prefers a distribution, low mobility, and assemblages of flora and fauna. The humid microhabitat created by wet mud fragmented habitat. They are imperiled isolated limestone and gypsum springs, or beneath vegetation mats, typically by introduced species, surface and seeps, and wetlands located in and within a few centimeters (cm) (inches groundwater contamination, oil and gas around Roswell, New Mexico, and (in)) of running water. extraction activities within the Pecos and Reeves Counties, Texas, Gastropods (snails) are a class of supporting aquifer and watershed, local provide the last known habitats in the mollusks with a body divided into a foot and regional groundwater depletion, world for several endemic species of and visceral mass and a head that severe drought, and direct loss of their fish, plants, mollusks, and crustaceans. usually bears eyes and tentacles. Like habitat (e.g., through burning or These species include the Roswell most gastropods, the Roswell removing marsh vegetation, or flooding springsnail and Koster’s springsnail of springsnail, Koster’s springsnail, and of habitat). This final rule will the freshwater snail family Hydrobiidae, Pecos assiminea feed on algae, bacteria, implement the Federal protection and Pecos assiminea of the snail family and decaying organic material (NMDGF recovery provisions of the Act for these Assimineidae, and Noel’s amphipod 1988). They will also incidentally ingest invertebrate species. We are also (Gammaridae). These species are small invertebrates while grazing on designating critical habitat for the Pecos distributed in isolated, geographically algae and detritus (dead or partially assiminea in Texas. separate populations, and likely evolved decayed plant materials or animals). from parent species that once enjoyed a These snails are fairly small; Koster’s DATES: This final rule is effective wide distribution during wetter, cooler springsnail is the largest of the three September 8, 2005. climates of the Pleistocene. Such snails, and is about 4 to 4.5 millimeters ADDRESSES: Supporting documentation divergence has been well-documented (mm) (0.16 to 0.18 in) long with a pale for this rulemaking is available for for aquatic and terrestrial tan shell that is narrowly conical with public inspection, by appointment, macroinvertebrate groups within arid up to 41⁄4 to 53⁄4 whorls or twists. The during normal business hours at the ecosystems of western North America Roswell springsnail is 3 to 3.5 mm (0.12 U.S. Fish and Wildlife Service, New (e.g., Taylor 1987; Metcalf and Smartt to 0.14 in) long with a narrowly conical Mexico Ecological Services Field Office, 1997; Bowman 1981; Cole 1985). tan shell with up to 5 whorls. Pecos 2105 Osuna Road NE., Albuquerque, North American snails of the family assiminea is the smallest of the three, New Mexico 87113. Hydrobiidae inhabit a great diversity of with a shell length of 1.55 to 1.87 mm FOR FURTHER INFORMATION CONTACT: aquatic systems from surface to cave (0.06 to 0.07 in) and a thin, nearly Susan MacMullin, Field Supervisor, habitats, small springs to large rivers, transparent chestnut-brown shell that is New Mexico Ecological Services Field and high energy riffles to slack water regularly conical with up to 41⁄2 strongly Office (telephone, 505–761–4706; pools (Wu et al. 1997). Snails of the incised (shouldered) whorls and a broad facsimile, 505–346–2542). family Assimineidae are typically found oval opening. Although their shells are

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46305

similar, the Roswell springsnail is during extensive surveys conducted mm (0.33 to 0.58 in) long (Cole 1981, distinguished from Koster’s springsnail between 1998 and 2001 (Warrick 2005). 1985). by a dark, amber operculum (a lid The species formerly occurred in several Gammarids commonly inhabit which closes the shell opening when other springs in the Roswell area, but shallow, cool, well-oxygenated waters of the animal is retracted) with white these habitats have since dried up due streams, ponds, ditches, sloughs, and spiral streaks, while that of Koster’s to groundwater pumping and no longer springs (Holsinger 1976; Pennak 1989). springsnail is nearly colorless. The contain the species (Cole 1981; Taylor Because they are light-sensitive, these genus Assiminea can be determined 1983, 1987; NMDGF 2005b). Pleistocene bottom-dwelling amphipods are active from other snail genera by an almost fossils of Koster’s springsnail are known mostly at night and feed on algae, complete lack of tentacles, leaving the from North Spring River and South submergent vegetation, and decaying eyes within the tips of short eye stalks Spring Creek in Chaves County (Taylor organic matter (Holsinger 1976; Pennak (Taylor 1987). 1987). Monthly monitoring and 1989). Young amphipods depend on Taylor (1987) first described the ecological studies of Koster’s springsnail microbial foods, such as algae and Roswell springsnail from a ‘‘seepage’’ initiated at BLNWR in 1995 indicate the bacteria, associated with aquatic plants along the west side of an impoundment species is most abundant in the deep (Covich and Thorp 1991). Most in Area 7 at Bitter Lake National organic substrates of Bitter Creek amphipods complete their life cycle in Wildlife Refuge (BLNWR, Refuge), (NMDGF 1998, 2005b). It also occurs at one year and breed from February to Chaves County, New Mexico. Since the Sago Springs Complex, but in lower October, depending on water then, Mehlhop (1992, 1993) has numbers. The species has not been temperature (Pennak 1978). Amphipods documented the species on the BLNWR found in recent times along the western form breeding pairs that remain and in March 1995 also found it in a boundary of Area 3 in BLNWR (NMDGF attached for 1 to 7 days at or near the spring on private land (i.e., North 2005b). Koster’s springsnail has recently substrate while continuing to feed and Spring) east of Roswell (NMDGF 1998). been extirpated at North Spring east of swim (Bousfield 1989). They can In 2004, the Roswell springsnail was Roswell (NMDGF 2005b). produce from 15 to 50 offspring, determined to have been extirpated Pecos assiminea is presently known forming a ‘‘brood.’’ Most amphipods from this private land through habitat from two sites at BLNWR, Chaves produce one brood but some species alteration (NMDGF 2005b). Monitoring County, New Mexico, from a large produce a series of broods during the efforts at BLNWR (1995 to 1998) led to population at Diamond Y Spring and its breeding season (Pennak 1978). the discovery of Roswell springsnail associated drainage (Diamond Y Springs Noel’s amphipod is one of three populations in Bitter Creek, the Sago Complex), Pecos County, Texas, and at species of endemic amphipods of the Springs Complex, and a drainage canal East Sandia Spring, Reeves County, Pecos River Basin occurring from along the west shoreline of Area 6. The Texas. It was thought that Pecos Roswell, New Mexico, south to Fort Roswell springsnail is currently known assiminea occurred sporadically Stockton, Texas, known collectively as only from BLNWR with the core throughout the Bolso´n de Cuatro the Gammarus-pecos complex (Cole population in the Sago Springs Complex Cı´negas, Coahuila, Mexico (Taylor 1985). Noel’s amphipod is currently and Bitter Creek. The Sago Springs 1987); however, recent investigations known from the following sites at complex is approximately 0.3 km long indicate that the population in Mexico BLNWR: Sago Springs Complex, Bitter (1,000 linear feet), half of which is might be a different species (Hershler Creek, along the western boundary of subterranean with flow in the upper 2005). Investigations are currently Area 6, Area 7 spring-ditch, and Hunter reaches restricted to sinkholes. Bitter underway to determine whether the Marsh. It is also found in a spring just Creek is six times longer than the Sago animals found in the vicinity of outside the BLNWR boundary on Springs Complex and has a total length Coahuila, Mexico, are Pecos assiminea private property owned by the City of of 1.8 km (1.1 miles). Monthly (Hershler 2005). Roswell (G. Warrick 2005). Noel’s monitoring and ecological studies of the Monitoring and ecological studies of amphipod was first described by Cole Roswell springsnail initiated at BLNWR Pecos assiminea initiated at BLNWR in (1981) from a 1967 collection of in June 1995 are ongoing (NMDGF 1995 showed the snail to be typically amphipods taken from North Spring, 2005b, 2005c). absent from substrate samples. east of Roswell. Based on morphological Roswell springsnail formerly occurred Populations of Pecos assiminea occur similarities, specimens collected from in several other springs in the Roswell sporadically along Bitter Creek, and a Lander Springbrook near Roswell were area, but these habitats have dried up dense population was confirmed on also identified as Noel’s amphipod (Cole apparently due to groundwater pumping moist vegetation and on muddy surfaces 1981). The amphipod was extirpated and no longer contain the species (Cole within 1 cm (0.39 in) of water in 1999 from Lander Springbrook between 1951 1981; Taylor 1983, 1987). As noted, the in an emergent marsh plant community and 1960, and the North Spring Roswell springsnail historically around the perimeter of a sinkhole population was lost between 1978 and occurred on private land at North within the Sago Springs Complex 1988. The extirpations were attributed Spring, but could not be found during (NMDGF 1999). to regional groundwater depletions and surveys in 2004 (NMDGF 2005b). habitat alterations (spring Noel’s amphipod Pleistocene fossils of the Roswell channelization) respectively (Cole 1981, springsnail are known from Berrendo Noel’s amphipod, in the family 1985). Creek and the Pecos River in Chaves Gammaridae, is a small freshwater County (Taylor 1987). No populations crustacean. Inland amphipods are Previous Federal Actions are currently known from these areas. sometimes referred to as freshwater On November 22, 1985, we received Taylor (1987) first reported Koster’s shrimp. Noel’s amphipod is brown- a petition from Mr. Harold F. Olson, springsnail from Sago Spring at green in color with elongate, kidney- Director of the NMDGF, to add 11 BLNWR. Another population was shaped eyes, and flanked with red species of New Mexican mollusks to the documented in 1995 at North Spring on bands along the thoracic and abdominal Federal list of endangered and private land east of Roswell and a segments, often with a red dorsal stripe. threatened wildlife. Roswell springsnail second population was found at Males are slightly larger than females, (Pyrgulopsis roswellensis, formerly BLNWR on the west side of Area 3 and individuals range from 8.5 to 14.8 Fontelicella roswellensis (Hershler

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46306 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

1994)), Koster’s springsnail (Juturnia Summary of Comments and are stable on the BLNWR. There is no kosteri, formerly Durangonella kosteri Recommendations evidence that these species are at risk. Our Response: All four invertebrates and Tryonia kosteri (Hershler et al. In the notices announcing the public are classified as Endangered by the 2002)), and Pecos assiminea were comment periods, we requested that all NMDGF under the Wildlife among the 11 species. We determined interested parties submit comments on Conservation Act of 1974 (i.e., State that the petition presented substantial the proposed listings and critical habitat Endangered Species Act) (19 NMAC information that the requested action designation, as well as on the associated 33.6.8). As such, the NMDGF supports may be warranted and published a draft economic analysis and draft the listing and critical habitat positive 90-day petition finding in the environmental assessment, and we also designation for these species. They Federal Register on August 20, 1986 (51 requested information pertaining to any report that recent (1992 to present) FR 29671). A subsequent 12-month actions that affect the four invertebrates; population and habitat monitoring on finding published in the Federal their current status, ecology, BLNWR has documented the Register on July 1, 1987 (52 FR 24485), distribution, and threats; and persistence of these species; however, concluded that the petitioned action management or conservation efforts in they still face significant threats (Lang was warranted but precluded by other place. We requested this information in 2002, NMDGF 2005a). Our current higher priority listing actions. order to make a final listing understanding of the threats to the four determination based on the best On August 29, 2001, the Service invertebrates and their habitat are fully scientific and commercial data currently described under the ‘‘Summary of announced a settlement agreement in available. We also solicited four response to litigation by the Center for Factors Affecting the Species’’ section independent experts who are familiar below. Biological Diversity, the Southern with these species to peer review the Appalachian Biodiversity Project, and (3) Comment: Oil and gas proposed listing and critical habitat development activities in the vicinity of the California Native Plant Society. designation. Two of the peer reviewers BLNWR pose no threat to the four Terms of the agreement required that we submitted substantial comments, but invertebrates because the New Mexico submit to the Federal Register, on or by did not support or oppose the proposal. Oil Conservation Division regulations February 6, 2002, a 12-month finding During the public comment periods, we for installation of oil and gas wells and accompanying proposed listing rule also received 967 written comments provide protections to limit impacts. and proposed critical habitat (952 written comments were identical, Our Response: The New Mexico designation for the four invertebrates in the form of automatically generated Interstate Stream Commission (NMISC) addressed in this final rule. This emails), and 7 speakers gave verbal and NMDGF submitted information that agreement was entered by the court on comments at the public hearing. Of is consistent with the proposed rule, October 2, 2001 (Center for Biological those oral comments, one supported the which indicated oil and gas, residential, Diversity, et al. v. Norton, Civ. No. 01– proposal, two were opposed to the or industrial development on the private 2063 (JR) (D.D.C.)). A proposed rule to proposal, and four provided additional lands immediately west of BLNWR may list the four invertebrates as endangered information. Of the written comments, constitute a threat to spring water with critical habitat was published in 956 supported the proposal, 8 were quality (Balleau et al. 1999; McCord et the Federal Register on February 12, opposed, and 3 were neutral but al. 2005; NMDGF 2005a) (see ‘‘Summary 2002 (67 FR 6459). On May 31, 2002, we provided information. All substantive of Factors Affecting the Species’’ section reopened the public comment period for information provided during the public below). The NMDGF also presented an 90 days (67 FR 6459). In addition, we comment periods, written and verbal, overview of oil and gas production and either has been incorporated directly potential risk to the four invertebrates published newspaper notices inviting into this final determination or is (NMDGF 2005a). They note that, public comment and announcing the addressed below. Similar comments are although there are no known cases of public hearing in the following grouped together by issue. groundwater contamination by leaking newspapers in New Mexico: the oil or gas wells in the source-water Issue 1: Biological Concerns Carlsbad Current-Argus, the Artesia capture zone for the Middle Area of Daily Press, the Roswell Daily Record, (1) Comment: It is unlikely that BLNWR (discussed further under and the Albuquerque Journal. On June Melanoides tuberculata, a fully aquatic ‘‘Water Quality’’ section below), 18, 2002, we held a public hearing in animal, competes with Pecos assiminea, groundwater contamination from Carlsbad, New Mexico, to solicit a semi-terrestrial species. On the other petroleum products has been comments on the proposed rule. hand, the presence of introduced documented north of Roswell (NMDGF On May 4, 2005, we announced the Melanoides tuberculata could pose a 2005a). availability of the draft economic serious threat to aquatic species such as There is a history of oil and gas analysis and draft environmental Koster’s springsnail, Roswell industry operations on and adjacent to assessment for the proposal to designate springsnail, or Noel’s amphipod. BLNWR, which have resulted in the Our Response: The commenter is spillage of oil and brine onto the critical habitat for the four invertebrates correct. It is unlikely that Melanoides BLNWR. For example, annual reports (70 FR 23083). Section 4(b)(2) of the Act would be a competitor with Pecos from 1994 to 1998 document four oil requires that we consider economic assiminea and it is very likely that it and gas related accidents on and impacts, impacts to national security, may be a serious threat to Koster’s immediately adjacent to BLNWR and other relevant impacts prior to springsnail, Roswell springsnail, and (NMDGF 2002; NMISC 2002). In May making a final decision on what areas to Noel’s amphipod. We have a more 1993, a private corporation began designate as critical habitat. We complete discussion of the threat of drilling a well on adjacent Bureau of solicited data and comments from the introduced species under the section, Land Management (BLM) lands when public on these draft documents, as well ‘‘Summary of Factors Affecting the they hit a water flow with a high as on all aspects of our proposal, so that Species’’ below. chloride content (6,000 parts per we could consider these in this final (2) Comment: The NMDGF concluded million). The salt water was eventually determination. in 1999 that all four invertebrate species contained, but serves as an example of

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46307

potential issues from oil and gas (5) Comment: Much of the literature is (TNC) lands at the Diamond Y Spring development (Service 2002). overly general in nature and is not site- and East Sandia Springs preserves Additionally, in 1996, about 70 to 80 or species-specific. Including such (Service 2005). This non-native species barrels of oil spilled within a berm on citations leaves readers to conclude that is currently being controlled where an adjacent oil well located on BLM a particular author made a statement or possible by BLNWR and TNC staff. lands (Service 2002). In 1997, an presented data that specifically applies Control and removal of non-native additional 11 barrels of crude oil leaked to the threats you believe exist for these vegetation was identified as a factor into the BLNWR boundary (Service invertebrates. responsible for extirpation of localized 2002). In 1998, BLNWR personnel Our Response: In determining and populations of Pecos assiminea in documented probable violations of New evaluating threats to the four Mexico and New Mexico (Taylor 1987). Mexico Oil Conservation Division invertebrates, we used the best scientific However, it is possible that removal and regulations (e.g., a substandard pit for and commercial data available. This control of saltcedar will improve habitat drilling cuttings, fire hazards, lack of included articles published in peer- and hydrologic conditions at springs spillage notification) (Service 2002; reviewed journals, data collected by and seeps (Service 2005). See also NMISC 2002). In 2000, there was an NMDGF, and comments received on the ‘‘Factor C’’ under the ‘‘Summary of additional oil spill on adjacent BLM proposed rule, draft economic analysis, Factors Affecting the Species’’ section lands (NMISC 2002). and environmental assessment. You are below. Development of another 91 natural correct that some of our citations are not (8) Comment: Have laboratory toxicity gas and oil wells has been anticipated specific to these species or the tests been conducted to determine the on lands managed by the BLM within geographic area. Nevertheless, the four invertebrates’ sensitivity to low the source-water capture zone (NMDGF citations offer evidence that certain oxygen, sediments, or contaminants? 2005a). Contamination of groundwater threats are real for the species because Our Response: To our knowledge, from underground leaks has the similar examples have been laboratory tests have not been potential to occur in the future, but documented elsewhere. conducted specifically on these species (6) Comment: The allegation that fire existing drilling and casing regulations to determine their sensitivity to low caused significant decreases in by the State of New Mexico’s Oil oxygen, sediments, or contaminants. invertebrate populations implies that (9) Comment: Equating the Conservation Division and requirements quantitative sampling was conducted. springsnails with Higgin’s eye mussel is of the BLM for oil and gas drilling and The Service and NMDGF rarely conduct inappropriate. Clearly, clams and operation in cave and karst areas (BLM quantitative sampling, and the case may mussels are very different creatures than 1997) are likely to substantially reduce be overstated in your proposal. springsnails. this probability. The NMDGF indicates Our Response: Extensive quantitative Our Response: The commenter is that a more likely pathway for pre- and post-fire monitoring was correct that mussels that live in the petroleum-product contamination of conducted by the NMDGF (NMDGF substrate and filter water to obtain groundwater is from leaking storage and 2005c). Immediately following the nutrition are very different from transport facilities from the well site Sandhill fire, Lang (2001) documented a springsnails that crawl on the substrate downstream to processing facilities decrease in species richness of localized and scrape periphyton (various forms of (NMDGF 2005a). These may include populations of aquatic algae and diatoms) off the substrate. leaking pipelines, overflowing storage macroinvertebrates. For example, in Unfortunately, very little research has tanks, leaking valves, and other sources. 1996 densities of Noel’s amphipod at been done specifically on the effects of These data indicate that oil and gas Dragonfly Spring were estimated at contaminants on springsnails and production and distribution continue to 11,625 per square meter (m2). Out of 74 mussels are one of the most closely threaten the four invertebrates. post-fire monitoring collections related groups available for comparison. (4) Comment: Contamination threats conducted from March 2000 to August However, this reference has been to the four invertebrates are not limited 2004, only four Noel’s amphipod were removed from this final rule. to oil and gas development, but also found (NMDGF 2005c). (10) Comment: The relevance of South include fire effects. Immediate and (7) Comment: Does non-native Spring River is not apparent in your short-term adverse effects have been vegetation such as saltcedar (Tamarix discussion of Noel’s amphipod. The demonstrated from the March 2000 sp.) threaten the invertebrates? Will South Spring River has been dry for Sandhill Fire (NMISC 2002). New Mexico’s ability to eradicate or many years. Our Response: NMDGF recently manage saltcedar be restricted if these Our Response: The discussion of reviewed the effects of fire on the species are listed? Noel’s amphipod and the dry South invertebrates (NMDGF 2005a). We agree Our Response: Saltcedar management Spring River was included to document with their assessment and summarize or eradication activities would be that this previously known population much of the information below. We subject to section 7 consultation has likely been extirpated. recognize that populations of these four requirements if a proposed project has (11) Comment: Are crayfish known invertebrates have the potential to be the potential to affect the four predators of springsnails? eliminated or habitat may be rendered invertebrate species or designated Our Response: Crayfish are known to unsuitable if fire results in complete critical habitat. However, the consume aquatic macrophytes and algae combustion of vegetation and litter, high environmental assessment found that that springsnails rely on for grazing and soil temperatures, significant amounts some activities may be considered to be egg laying (Service 2004b). In addition, of ash flow, large changes in water of benefit to the four invertebrate crayfish have been cited as a threat and chemistry (e.g., dissolved oxygen), or species (Service 2005). Examples of are known to directly prey upon aquatic extensive vegetation removal resulting such beneficial actions could include invertebrates such as springsnails (e.g., in soil and litter drying. As such, we removal and control of non-native Three Forks springsnail (Pyrgulopsis have also revised the ‘‘Summary of vegetation, restoration of wetlands, and trivialis)) (Arizona Game and Fish Factors Affecting the Species’’ section removal of non-native species. Department 2003; Service 2004b). below to include a more detailed Non-native saltcedar is present on Nevertheless, we have not observed any analysis on the threat of wildfire. BLNWR and The Nature Conservancy crayfish within habitat occupied by

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46308 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

these four invertebrates, with the areas would require a new or revised with these invertebrates will be exception of Diamond Y Springs proposal and subsequent final rule. evaluated in the development of a Complex where an undescribed native Should critical habitat be considered in recovery plan, but this management is crayfish occurs. See also ‘‘Factor C’’ the future for the Noel’s amphipod, we currently conducted as appropriate. For under the ‘‘Summary of Factors will consider this area in any such example, removal of non-native fishes Affecting the Species’’ section below. determination. from Diamond Y Springs Complex using (12) Comment: Effects to these species (15) Comment: The ongoing drought antimycin, netting, and trapping was from prolonged drought, nutrient appears to be more of a threat to these conducted in the past for conservation enrichment, and sedimentation are all species than groundwater pumping. of Leon Springs pupfish (Service 2005a). unsubstantiated. Our Response: We agree. Please refer For further information and analysis Our Response: There is no doubt that to the ‘‘Summary of Factors Affecting concerning exotic species, please refer prolonged drought leading to spring the Species’’ for further discussion of to the ‘‘Factor C’’ under the ‘‘Summary diminishment or drying would have a this issue. of Factors Affecting the Species’’ negative impact on the invertebrates. (16) Comment: The proposed rule section. Little research has been done lacks documentation of groundwater or specifically on springsnails to document surface contamination threats to the four Issue 2: Procedural and Legal their response to elevated nutrients, invertebrates. Compliance contaminants, or sedimentation. Our Response: Based upon public (19) Comment: In the proposed rule However, based on biological principles comments and information received, we for the four invertebrate species, and effects observed in other related have updated our analysis to include restrictions are proposed on invertebrates, we can draw reasonable our current understanding of the threats groundwater pumping within the Pecos conclusions about what we would from groundwater or surface Basin, which would have serious effects expect to happen to these species. contamination to the four invertebrates. on the water supply and use of water by (13) Comment: Have surveys for these Please see the ‘‘Summary of Factors the citizens of New Mexico. species been conducted at Bottomless Affecting the Species’’ section. Our Response: We disagree, the Lakes State Park? (17) Comment: The Pleistocene Era proposed rule did not propose Our Response: Surveys were was mentioned several times in the restrictions on groundwater pumping. conducted on Bottomless Lakes State proposed rule. Does the Service intend Consistent with our Interagency Park during the 1990s by the NMDGF to recover these species to levels that Cooperative Policy for Endangered and during the 1980s by D.W. Taylor. were present during this historic era? Species Act Section 9 Prohibitions, Perennial sinks west-northwest of Lea Our Response: No, section 4 of the published in the Federal Register on Lake and its outflow to the south, which Act and its implementing regulations July 1, 1994 (59 FR 34272), we eventually flows to the BLM Overflow (50 CFR part 424) set forth the identified in the proposed rule those Wetlands, were also surveyed for these procedures for adding species to the List activities that we believe would or invertebrates (Lang 2005). Although of Endangered and Threatened Wildlife would not constitute a violation of the potentially suitable habitat for the four and Plants. A species may be prohibitions identified in section 9 of invertebrates is available at Bottomless determined to be endangered or the Act. The final Federal listing of Lakes State Park, these surveys failed to threatened due to one or more of the these four invertebrates under the Act document their occurrence (New five factors described in section 4(a)(1) requires that Federal agencies consult Mexico Energy Minerals and Natural of the Act. As detailed below in our with the Service on activities involving Resources Department 2000; NMDGF analysis, we examine the listing factors Federal funding, a Federal permit, 2005b). and their application to the four Federal authorization,or other Federal (14) Comment: A new population of invertebrates. The discussion of these actions. Consultation (under section 7 of Noel’s amphipod has been recently species in relation to the Pleistocene Era the Act) is required when activities have discovered on BLNWR. was presented as evidence of an the potential to affect the four Our Response: The commenter is apparent historical decline in the invertebrates or designated critical correct. Noel’s amphipod currently numbers, range, and distribution. We habitat. The consultation will analyze persists on BLNWR at the Sago Spring did not intend to suggest that the four and determine to what degree the wetland complex (including Sinkhole invertebrates need to be restored to species are impacted by the proposed No. 31), Bitter Creek, and along the Pleistocene Era levels to be considered action. Section 7 of the Act prohibits western boundary of Area 6, in the west recovered. actions funded, authorized, or carried ditch along Area 7, and along the (18) Comment: Is there a plan to out by Federal agencies from northwest fenceline of Hunter Marsh control introduced or exotic snails or jeopardizing the continued existence of (NMDGF 2005c). A new population was other species that may prey upon or a listed species or destroying or discovered in 2004 in a spring belonging compete with the four invertebrates? adversely modifying the listed species’ to the City of Roswell that borders Our Response: BLNWR is managed for critical habitat. This final Federal listing BLNWR. This population is included in wildlife conservation, which includes does not restrict groundwater pumping the listing portion of this final rule, but restoration and maintenance of or any other actions. is not within the designation of critical biological integrity, diversity, and The environmental assessment found habitat. The critical habitat designation environmental health. Major land that spring flows within the proposed does not include these private lands management activities on BLNWR critical habitat on BLNWR are already because section 4(b)(4) of the Act and include water level management in protected by existing water rights the Administrative Procedure Act (5 impoundments to provide habitat for afforded by the New Mexico Office of U.S.C. 551 et seq.) requires that areas waterfowl, shorebirds, and other groups the State Engineer’s administration of designated as critical habitat must first of species, habitat restoration, the Roswell Basin. In 1967, water rights be proposed as such. Thus, we cannot prescribed burning, control of saltcedar, were adjudicated in the Roswell Basin, make additions in this final rule to and management of noxious weeds wells were metered, and pumping rates include areas that were not included in (Service 2005a). Management or administered by the Office of the State the proposed rule. Designation of such removal of exotic species that compete Engineer (OSE). Currently, any

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46309

proposed change in use of water and stakeholders to coordinate activities on the Pecos River water rights (underground or surface depletion) in and cooperate with each other in acquisition program. We do not the Roswell Basin will undergo analysis conservation efforts. The plan will set anticipate that the listing of these by OSE to determine if there would be recovery priorities and describe site- species or the designation of critical impairment to existing water rights specific management actions necessary habitat will alter the ability of the (McCord et al. 2005). The OSE will not to achieve conservation and survival of NMISC to meet Pecos River Compact allow such change if it impairs the the four invertebrates. See also response delivery obligations. The amount of Federal water right in any respect to comment 22 below for related water being pumped from the Roswell (NMISC 2005). Thus the spring flows on information about the five factors Basin should not change; however, the BLNWR should be protected from any described in section 4(a)(1) of the Act. use of water will change. For example, changes in groundwater pumping near Also note the discussion on section 7 instead of being applied to fields, the the refuge in the future. consultation requirements in our water may be delivered to the Pecos In Texas, Pecos assiminea currently response to comment 19 above. River directly to meet Compact delivery has no State or other regulatory (22) Comment: Why does the Service obligations. protection. Some protection for the want to list these four invertebrates (25) Comment: Will oil and gas habitat of this species is provided with when they are already within protected exploration be further restricted in areas the ownership of the springs by TNC areas? designated as critical habitat? (Karges 2003). Groundwater pumping Our Response: We have analyzed the Our Response: No, the Service does that could affect spring flows is subject threats to these species based upon the not anticipate that the designation of to limited regulation in Texas. State five factors described in section 4(a)(1) critical habitat will restrict oil and gas agencies do not control groundwater of the Act. Although these species occur exploration. Section 7 consultation, pumping, and Texas courts have held on areas that are currently managed for when required, would analyze any that, with few exceptions, landowners conservation purposes, we have impacts to the species and their have the right to take all the water that determined based on our analysis of the designated critical habitat. The can be captured under their land (rule threats discussed below in the section environmental assessment found that oil of capture), regardless of impacts to ‘‘Summary of Factors Affecting the and gas projects with Federal neighbors or natural resources. As noted Species,’’ that these four invertebrate involvement in the BLNWR and the in the economic analysis, within Texas species are in danger of extinction surrounding area are already subject to further hydrological studies are throughout all or a significant portion of stipulations for protecting groundwater necessary to determine the impact of their respective ranges. Our analysis (Service 2005). The Oil Conservation groundwater pumping on surface and determined that these species are Division of the New Mexico Energy, groundwater levels at Units 3 and 4. The threatened by activities such as oil and Minerals, and Natural Resources TNC has stated that additional research gas production and development, Department regulates oil and gas well on the delineation of watersheds is groundwater pumping, and introduction drilling and casing in part to prevent crucial to the sustainable, long-term of non-native species that are beyond contamination of groundwater (19 conservation of the springs. If the boundaries and/or the management NMAC 15.3). hydrological studies determine a link protected areas where the species are BLNWR is excluded from the between the various aquifers, we would found. Thus, the four invertebrates meet designation of critical habitat for the work with private landowners on a the definition of endangered species. four invertebrate species, and critical volunteer basis to minimize impacts to (23) Comment: If these species are habitat would not result in additional the Pecos assiminea from groundwater listed, is there a possible effect to the section 7 consultations on federally withdrawals. U.S. Bureau of Reclamation with respect supported oil and gas projects. Oil and (20) Comment: The groundwater to delivery of irrigation water? gas well development in the vicinity of depletion analysis fails to rely upon the Our Response: Federal listing will Diamond Y Springs Complex and East best available science, does not utilize require the Bureau of Reclamation Sandia Spring occurs on private lands an accurate and reliable model, and (Reclamation) to consult with us on with no Federal involvement. Therefore, mischaracterizes effects of groundwater activities that have the potential to section 7 consultations on the effects to pumping. adversely affect the four invertebrates or designated critical habitat would likely Our Response: Based upon new designated critical habitat. None of not occur for these projects. For this information we received during the Reclamation’s current projects will be reason, we do not believe there would comment periods, we revised our affected by the listing of the be any additional restrictions to oil and analysis from the proposed rule to invertebrates and we are not aware of gas exploration activities. reflect our current understanding any future projects that may be affected regarding the threat of groundwater by the listing. Delivery of irrigation Issue 3: National Environmental Policy depletion on the four invertebrates and water occurs via the Pecos River and we Act (NEPA) Compliance and Economic their habitat in New Mexico. Please do not anticipate that listing these Analysis refer to the ‘‘Summary of Factors species will affect that activity. (26) Comment: What has regulation or Affecting Species’’ section. (24) Comment: Will the listing of policy of Federal actions cost State and (21) Comment: The status of these these species impede the ability of the County governments before listing and species will not improve if they are State of New Mexico to meet Pecos critical habitat designation? listed. Compact River obligations? Our Response: Since the proposed Our Response: Federal listing in and Our Response: No, the NMISC has listing of the four invertebrates species, of itself does not improve the status of been actively acquiring and leasing there have been specific conservation the species. Listing these species water rights to meet the State’s delivery actions implemented that have taken authorizes the development of a obligations to Texas as specified in the into account the protection of the recovery plan. The recovery plan will Pecos River Compact and pursuant to an species. An estimated $366,000 to likely identify both State and Federal Amended Decree entered by the U.S. $494,000 in costs have been incurred by efforts for conservation of these species Supreme Court. For example, between Federal and State agencies for the four and establish a framework for agencies 1991 and 1999, $27.8 million was spent invertebrates (Service 2005b). These

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46310 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

costs are related to developing the New then the analysis would recognize the economic analysis considers past Mexico State recovery plan and have potential for a positive economic impact impacts associated with species included monitoring the four and attempt to quantify the effect (e.g., conservation efforts that have been invertebrates’ habitat, consultant fees, impacts that would be associated with incurred since the proposed listing and staff time devoted to developing the an increase in tourism spending by critical habitat determination in 2002. plan, administrative costs related to past wildlife viewers). In this particular The impact of these efforts is considered conferences under section 7 of the Act, instance, however, the economic relevant to understanding the potential and associated monitoring of analysis did not identify estimates or impact of the listing and critical habitat invertebrate habitat. We did not find measures of positive economic impacts determination. Further, due to the that County governments have incurred that could offset some of the negative difficulty in making a distinction any costs related to the conservation of economic impacts analyzed earlier in between listing and critical habitat these species. this analysis. effects within critical habitat (27) Comment: Does the Service have While the Act requires the Service to boundaries, this analysis considers all an estimate of the costs required to specifically consider the economic future conservation-related impacts to recover the four invertebrates? impact of a designation, it does not be coextensive with the designation. Our Response: The costs of actions to require the Service to explicitly The consideration of co-extensive recover the four invertebrates will be consider any broader social benefits (or costs was mandated by the 10th Circuit estimated during the development of a costs) that may be associated with the Court of Appeals ruling in the New recovery plan. designation. In fact, the Service believes Mexico Cattle Growers Association case (28) Comment: The economic analysis that this is by Congressional design, (248 F.3d at 1285), which directed us to should consider benefits of the critical because the Act explicitly states that it consider all impacts, ‘‘regardless of habitat designation. is the Federal government’s policy to whether those impacts are attributable Our Response: In the context of a conserve all threatened and endangered co-extensively to other causes.’’ As critical habitat designation, the primary species and the ecosystems upon which explained in the economic analysis, due purpose of the rulemaking (i.e., the they depend. While section 4(b)(2) of to possible overlapping regulatory direct benefit) is to designate areas that the Act gives the Secretary discretion to schemes and other reasons, there are have the features on which the species exclude certain areas from the final also some elements of the analysis depend and that are in need of special designation, she is authorized to do so which may overstate some costs. management. only if an exclusion does not result in Conversely, the 9th Circuit has The designation of critical habitat the extinction of the species. Thus, the recently ruled (‘‘Gifford Pinchot,’’ 378 may result in two distinct categories of Service believes that explicit F.3d at 1071) that the Service’s benefits to society: (1) Use benefits; and consideration of broader social values regulations defining ‘‘adverse (2) non-use benefits. Use benefits are for the species and its habitat, beyond modification’’ of critical habitat are simply the social benefits that accrue economic impacts, is not necessary as invalid because they define adverse from the physical use of a resource. Congress has already clarified the modification as affecting both survival Visiting critical habitat to see importance our society places on and recovery of a species. The Court endangered species in their natural conserving all threatened and directed us to consider that adverse habitat would be a primary example. endangered species and their natural modification should be focused on Non-use benefits, in contrast, represent habitats upon which they depend. In impacts to recovery. While we have not welfare gains from ‘‘just knowing’’ that terms of carrying out its responsibilities yet proposed a new definition for public a particular listed species’’ natural under section 4(b)(2) then, the Service review and comment, changing the habitat is being specially managed for need only consider whether the adverse modification definition to the survival and recovery of that economic impacts (both positive and respond to the Court’s direction may species. Both use and non-use benefits negative) are significant enough to merit result in additional costs associated may occur unaccompanied by any exclusion of any particular area without with critical habitat definitions market transactions. causing the species to go extinct. (depending upon the outcome of the A primary reason for conducting an (29) Comment: The economic analysis rulemaking). economic analysis is to provide overstates costs by including past costs As described in section 1.2 of the information regarding the economic that occurred before the species was economic analysis, coextensive effects impacts associated with a proposed listed, costs that would result from the may also include impacts associated critical habitat designation. Section listing alone, and costs that derive from with overlapping protective measures of 4(b)(2) of the Act requires the Secretary conservation efforts for other listed other Federal, State, and local laws that to designate critical habitat based on the species. Similarly, the economic aid habitat conservation in the areas best scientific data available after taking analysis includes costs of consultation proposed for designation, including into consideration the economic impact, with the Environmental Protection protections for other listed species. impact to national security, and any Agency (EPA) regarding Concentrated These measures may be in part other relevant impact, of specifying any Animal Feeding Operations (CAFOs), precipitated by the consideration of the particular area as critical habitat. which should be primarily associated presence of the species and impending Economic impacts can be both positive with other listed species, and the listing critical habitat determination. Because and negative and by definition, are of the four invertebrates, and not critical the quantified habitat conservation observable through market transactions. habitat designation. efforts, regardless of their primary Where data are available, the Our Response: This analysis identifies impetus, afford protection to the four economic analysis attempts to recognize those economic activities believed to invertebrates, they likely contribute to and measure the net economic impact of most likely threaten the four the efficacy of the critical habitat the proposed designation. For example, invertebrates and their habitat and, determination efforts. The impacts of if the fencing of a species’ habitat to where possible, quantifies the economic these actions are therefore considered restrict motor vehicles results in an impact to avoid, mitigate, or compensate relevant for understanding the full effect increase in the number of individuals for such threats within the boundaries of the proposed critical habitat visiting the site for wildlife viewing, of the critical habitat determination. The determination. Enforcement actions

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46311

taken in response to violations of the draft economic analysis, however, only appropriate. Other than minor Act, however, are not included. includes the costs to the industry of clarifications and incorporation of (30) Comment: The economic analysis modifying projects to incorporate additional information on the species’ inappropriately includes costs of delays conservation measures for the species. biology, this final rule differs from the in proposed drilling operations Our Response: As the commenter proposal by: associated with industry appeals on notes, the potential for cost savings (1) The exclusion of critical habitat on applications for drilling permits. The oil associated with implementing BLNWR because special management and gas industry, however, is appealing environmentally protective considerations are currently provided to environmental protections associated technologies, such as closed-loop the four invertebrates through current with their permits and burdening systems, is acknowledged in the draft BLNWR management; and themselves. This should not be included economic analysis on page 4–7. (2) Changes to the primary constituent as a cost of the critical habitat However, the level of benefit these elements of critical habitat for the Pecos designation. modifications may generate is unclear. assiminea. Our Response: Industry appeals Additionally, application of closed-loop regarding drilling applications are a systems is not ubiquitous. As the Summary of Factors Affecting the result of the implementation of industry indicates, it is not always the Species environmental regulations, including most beneficial operations alternative. Section 4 of the Act and the Act, that recommend additional The draft economic analysis therefore implementing regulations (50 CFR 424) species and habitat conservation efforts includes the full cost of this set forth the procedures for adding be undertaken with the drilling activity. modification to oil and gas operations as species to the Federal lists. A species The economic impacts of these delays a high-end estimate of the impact of may be determined to be threatened or are therefore considered relevant in conservation efforts. endangered due to one or more of the understanding the impact of (33) Comment: The NMDGF’s 2004 five factors described in section 4(a)(1) conservation efforts for the four Biennial Review of threatened and of the Act. These factors and their invertebrates. endangered species in the State application to the Roswell springsnail, (31) Comment: It is unclear from the indicated that off-refuge land use Koster’s springsnail, Pecos assiminea, economic analysis what additional practices within areas of the Roswell and Noel’s amphipod are as follows. protections from oil and gas activities Artesian Basin (RAB), such as regional may be provided by the Service for the groundwater pumping for agriculture, A. The present or threatened four invertebrates as the economic municipal water supplies, and the oil destruction, modification, or analysis includes costs associated with and gas industries, threaten the curtailment of its habitat or range. the listing and with protections for other invertebrate species. In contrast, a Several biological traits of a species, but no additional costs recent report prepared by the New population have been identified as associated specifically with the critical Mexico Office of the State Engineer putting a species at risk of extinction habitat designation. (OSE) provides the most recent (McKinney 1997; O’Grady 2004). Some Our Response: This analysis identifies information regarding the hydrology of of these characteristics include having a the types of modifications to economic the RAB. The report concludes that localized range, limited mobility, and activities that may be undertaken to ‘‘* * * an extended, extreme drought, fragmented habitat (McKinney 1997; avoid, mitigate, or compensate for and not groundwater depletion through O’Grady 2004). The four invertebrates threats to the species and habitat. The human activity, would potentially have all of these characteristics. Having draft economic analysis acknowledges threaten the future supply of water for a small, localized range means that any the difficulty in distinguishing between the proposed critical habitat located perturbation, either natural (e.g., listing and critical habitat effects and within the BLNWR.’’ drought) or anthropogenic (e.g., water therefore considers all future Our Response: Paragraph 77 and contamination) can eliminate many or conservation-related impacts to be section 4.2.2 of the draft economic all of the existing populations. Having a coextensive with the critical habitat analysis state that no hydrologic models high number of individuals at a site designation. Further, the relative level currently exist to determine the impact provides no protection against to which multiple considerations, of groundwater pumping of the RAB on extinction. Noel (1954) noted that the including that of other species, the springs at the BLNWR. The revised amphipod in Lander Spring was the contribute to the undertaking of a economic analysis acknowledges recent most abundant animal present. It was conservation effort is unclear. The information resulting from the OSE extirpated from that site when the impacts quantified in the analysis are report. As the draft economic analysis spring dried up (Cole 1985). The range assumed to be in some part precipitated does not quantify impacts of critical reduction trend in these snail species by the critical habitat designation for the habitat designation to groundwater (e.g., by extirpation of once widely four invertebrates. Absent information pumping; however, the quantitative distributed but localized populations) is on the specific increment by which results of this analysis are unchanged as supported by the Pleistocene fossil critical habitat designation contributes a result of this comment. record in conjunction with re-inventory to the undertaking of these efforts, the of known site occurrences in which no total impact of the effort is quantified, Summary of Changes From the individuals were detected (Noel 1954; and not a fraction solely due to critical Proposed Rule Taylor 1987; Mehlhop 1992, 1993; habitat designation. Based upon our review of the public NMDGF 1999). Fossil records indicate (32) Comment: The draft economic comments, the economic analysis, that at least one or more of these snail analysis relies on information provided environmental assessment, issues species were historically found at by impacted industries to quantify the addressed at the public hearing, and any Berrendo Creek, North Spring, and costs to those industries. These costs are new relevant information that may have South Spring Rivers, and along the inflated. For example, environmentally become available since the publication Pecos River (NMDGF 1999). This protective project modifications such as of the proposal, we reevaluated our evidence suggests an apparent historical closed-loop systems can result in cost proposed listing and critical habitat decline in the numbers, range, and savings to the oil and gas industry. The designation and made changes as distribution of these species.

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46312 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

Limited mobility restricts the ability estimated to have produced 9,000 genus have gone extinct (Hershler 1994). of the invertebrates to find and disperse gallons/minute (20 cfs) (Fiedler and Nye In addition, loss can not be measured to other suitable habitats or to move out 1933, Jones and Balleau 1996). As a simply by the number of artesian of habitat that becomes unsuitable. result of extensive groundwater springs that are now not flowing. Many Consequently, their range remains pumping, the artesian head in the basin of these springs were large enough to restricted and they are unable to avoid declined (Fiedler and Nye 1933). The form rivers that flowed for several miles contaminants or other unfavorable amount of decline depended on location and creeks such as Bitter Creek, while changes to their habitat. Fragmented within the basin and ranged from 32 to still flowing, are reduced in length. (unconnected) habitat restricts gene 204 feet (9.7 to 62.2 meters) from Most likely there was suitable habitat flow among populations and limits the original levels by 1927, and led to a available for the invertebrates ability of the invertebrates to recolonize decrease in area within the basin that throughout the length of the streams. habitats that have been disturbed but had artesian flow (Fiedler and Nye Groundwater pumping in the Roswell then recover. For example, three springs 1933). Groundwater depletion Basin increased through the 1950s, once contributed to Berrendo Creek in continued until the mid-1970s, when it when approximately 450,000 acre feet/ the Roswell Basin. If the population of reached its maximum (McCord et al. year were extracted (McCord et al. springsnails in one of the springs was 2005). 2005). Rates remained fairly stable eliminated because of a toxic spill, after By 1926, South Spring was dry (Jones through 1966 (McCord et al. 2005). In the habitat had recovered, the spring and Balleau 1996). Berrendo Spring still 1967, water rights were adjudicated in could have been colonized naturally by produced 8.3 cfs, about 12 percent of the Roswell Basin, wells were metered, dispersal of animals from the other the original 1880s flow (Jones and and pumping rates administered by the springs. In the currently fragmented Balleau 1996). Today, Berrendo Well Office of the State Engineer (OSE). habitats, dispersal is highly unlikely produces less than 1 cfs (McCord et al. Currently, any proposed change in use and if a population is extirpated the 2005). Lander Spring went dry in the of water (underground or surface habitat probably will not be recolonized, late 1950s or early 1960s (Cole 1981), depletion) in the Roswell Basin will further restricting the range. extirpating the population of Noel’s undergo analysis by OSE to determine if In addition to the characteristics amphipod, which in the early 1950s had there would be impairment to existing listed above that may put species at been described by Noel (1954) as the water rights (McCord et al. 2005). The greater risk of extinction, habitat loss, most abundant animal in the spring. OSE will not allow such change if it introduced species, and habitat Discharge at North Spring is unknown. impairs the Federal water right in any degradation can also lead to extinction Jones and Balleau (1996) list its flow as respect (NMISC 2005). Thus the spring (Meffe et al. 1994; Frankham et al. 0 in 1926, but Cole (1981) described 3 flows on BLNWR should be protected 2002). Each of these topics is discussed small separate brooks that entered a from any changes in groundwater in detail. Curtailment of range and pond on a private golf course in 1967. pumping near the Refuge in the future. habitat of the four invertebrates has Surveys in 1995 at the site indicated There was a drought in the 1950s that occurred primarily through the loss of that Roswell springsnail and Koster’s most likely affected the recharge of the suitable spring habitat. These species springsnail were still present at the groundwater in the Roswell Basin. In were most likely much more widely location (Noel’s amphipod once spite of controls on pumping initiated in distributed throughout the Pecos River occupied the site). Surveys in 2004 1968 and increased precipitation near Basin during the wetter climatic period found none of the species, most likely Roswell in the 1960s and 1970s, artesian of the Pleistocene. As the climate due to habitat modification from pond groundwater levels continued to decline became warmer and drier, the enlargement (NMDGF 2005a). Surface until 1975 (McCord et al. 2005). Thus, invertebrates were restricted to the flow at BLNWR was also diminished by it appears that there was a lag between remaining free-flowing springs. Fossil artesian pumping. Springs adjacent to the time of the drought and recovery in records indicate that two of the snail Salt Creek no longer flow, and surface the artesian groundwater. Since 1999, species were found at Berrendo Creek flow from the Middle Area of BLNWR New Mexico has been in a drought and along the Pecos River (Taylor 1987). (sum of flow in upper Bitter Creek and (Piechota et al. 2004). The current In addition, in the late 1800s, flow at Middle Area springs) was 15 cfs (0.4 drought may also affect groundwater North Spring, South Spring, and cms) in 1937 and 5 cfs (0.14 cms) in recharge but there may be a lag before Berrendo Creek was 85 cubic feet per 1995 (Jones and Balleau 1996). Aerial the effect of the current drought is seen. second (cfs) (2.4 cubic meters per photos which show a larger, meandering However, through the drought of the second [cms], 60 cfs (1.7 cms), and 66 channel for Bitter Creek are also 1950s, when pumping was at a (1.9 cms) cfs, respectively (Fiedler and evidence that discharge from Bitter maximum, several of the springs on Nye 1933). These systems each provided Creek was once greater. BLNWR continued to flow (McCord et abundant habitat for the invertebrates. Groundwater pumping in the Roswell al. 2005). Groundwater pumping is Lander Spring, a tributary spring of Basin led to the drying of several currently about 100,000 acre feet/year South Spring, harbored Noel’s springs, many of which are known to less than it was during the drought of amphipod (Noel 1954). The historic have harbored one or more of the four the 1950s and artesian groundwater connection of these spring systems to invertebrates. It is not possible to levels have recovered to the levels they the Pecos River most likely facilitated determine the extent of the loss of were at in 1950s (McCord et al. 2005). dispersal of the invertebrates throughout invertebrate populations because many Consequently, we expect that there is the basin downstream of this area. springs went dry long before these some added margin of protection for the In the 1880s, irrigated agriculture in species were described or surveys could springs through this current drought. the Roswell and Artesia Basins was be conducted. Members of the family However, the length or severity of the limited to a few small farms (Fielder Hydrobiidae (including Pyrgulopsis) are current drought cycle is not known and and Nye 1933). By the end of 1905, 485 susceptible to extirpation or extinction the Southwest may be entering a period artesian wells had been drilled and by because they often occur in isolated of prolonged drought (MaCabe et al. 1927, 1,424 wells were pumping water desert springs (Hershler 1989; Hershler 2004). Droughts of the twentieth century (Fiedler and Nye 1933). One well, and Pratt 1990; Hershler 1994; Lydeard were eclipsed in severity by droughts in drilled for the Oasis Cotton Company, is et al. 2004). At least three species in this the last 2000 years, with some

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46313

characterized by longer duration Rustler aquifers located west of the and the age of the waters issuing from (multidecadal) and greater spatial extent spring outlets. One significant factor the spring system, it is anticipated that (Woodhouse and Overpeck 1998; that influences flows at the spring is the any substantial pumping in the regional Piechota et al. 2004). Certainly, without large groundwater withdrawals for flow system will cause a decline in the groundwater pumping or with pumping agricultural irrigation of farms to the spring flow in the San Solomon Springs at reduced volume there would be a southwest in the Belding-Fort Stockton system (including Phantom Lake, San greater margin of safety for the springs. areas. Although TNC of Texas owns and Solomon, Giffin, and East Sandia But the evidence suggests that the manages the property surrounding the springs) (Texas Water Development springs at BLNWR will flow in spite of Diamond Y Springs Complex, it has no Board 2005). relatively intense drought (i.e., control over groundwater use that comparable to the drought of the 1950s) affects spring flow. Introduced Species (McCord et al. 2005). It is unknown how East and West Sandia Springs are at One threat not thoroughly explored in the springs in Texas would respond to the base of the Davis Mountains just east our proposed listing is that of extended drought and the current level of Balmorhea, Texas, and are part of the introduced species. Introduced species of groundwater pumping. San Solomon-Balmorhea Spring are one of the primary threats Drought could affect the springs Complex, the largest remaining desert contributing to species’ extinction through decreased flow. The springs do spring system in Texas where the Pecos (Pimentel et al. 2000; Frankham et al. not have to dry out completely to have assiminea is found. The springs are 2002) and are one of the most serious an adverse effect on populations. included in a 97-hectare (ha) (240-acre threats to native aquatic species Droughts impact both surface and (ac)) preserve owned and managed by (Williams et al. 1989; Lodge et al. 2000), groundwater resources and can lead to TNC (Karges 2003). East Sandia Spring especially in the Southwest (Miller et al. diminished water quality and disturbed discharges at an elevation of 977 meters 1989; Minckley and Douglas 1991). It is riparian habitats (Woodhouse and (3,224 feet) from alluvial sand and estimated that approximately 50,000 Overpeck 1998; MacRae et al. 2001). gravel (Schuster 1997). Brune (1981) non-native species have been Decreased flow could lead to a decrease noted that flows from Sandia Springs introduced into the United States in habitat availability, increased water were declining. East Sandia may be very (Pimentel et al. 2000). While some of temperatures, lower dissolved oxygen susceptible to over pumping in the area these introductions have been levels, and an increase in salinity of the local aquifer that supports the beneficial, many have caused dramatic (MacRae et al. 2001). Any of these spring. Measured discharges in 1995 declines in populations of native plants factors, alone or in combination, could and 1996 ranged from 0.45 to 4.07 cfs and animals (Pimentel et al. 2000). lead either to the reduction or (0.013 to 0.11 cms) (Schuster 1997). The Because the distribution of the four extirpation of a population. small outflow channel from East Sandia invertebrates is so limited, and their The primary threat to Pecos assiminea Spring has not been significantly habitat so restricted, introduction of a in Texas is the potential failure of spring modified and water flows into an non-native species into their habitat flow due to excessive groundwater irrigation system approximately 100 to could be devastating. Several non-native pumping and/or drought, which would 200 meters (328 to 656 feet) after species have been very successful in result in total habitat loss for the surfacing. West Sandia Spring also invading spring ecosystems in the species. Diamond Y Spring is the last occurs on the TNC preserve, but it Southwest. For that reason, we discuss major spring still flowing in Pecos ceased flowing in the past 10 years several invasive terrestrial and aquatic County, Texas (Service 2005c). Pumping (Schuster 1997). of the regional aquifer system for Phantom Lake Spring , another spring animal species that are present in the agricultural production of crops has near the Sandia Springs, has invertebrates’ habitat or are not yet resulted in the drying of most other experienced a longterm, consistent present but have caused problems in springs in this region (Brune 1981). decline in flow. Discharge data have other similar habitats in the Southwest Other springs that have already failed been recorded from the spring six to and would pose a threat to the four include Comanche Springs, which was eight times per year since the 1940s by invertebrates if they were introduced. once a large spring in Fort Stockton, the U.S. Geological Survey (Schuster Several invasive terrestrial plant Texas, about 12.9 km (8 mi) from 1997). The record shows a steady species that may affect the invertebrates Diamond Y. Comanche Springs flowed decline of flows, from greater than 10 are present at BLNWR: saltcedar at more than 142 cfs (4.0 cms) (Brune cfs (0.28 cms) in the 1940s to 0 cfs in (Tamarix ramossisima), common reed 1981) and undoubtedly provided habitat 2000. The exact causes for the decline (Phragmites australis), and Russian for rare species of fishes and in flow from Phantom Lake Spring are thistle (tumbleweeds) (Salsola spp.). In invertebrates, including springsnails. unknown. Some of the obvious reasons addition, one non-native, terrestrial The spring ceased flowing by 1962 are groundwater pumping of the snail species (Rumina decollata) will be (Brune 1981) except for brief periods supporting aquifer and decreased discussed. These plants present unique (Small and Ozuna 1993). Leon Springs, recharge of the aquifer from drought challenges and threats to the habitat the located upstream of Diamond Y in the (Sharp et al. 1999; Sharp et al. 2003). four invertebrates occupy. Eradication Leon Creek watershed, was measured at The Texas Water Development Board of saltcedar is an ongoing management 18 cfs (0.5 cms) in the 1930s and was (2005) concluded that because of the effort at BLNWR and on TNC property also known to contain rare fish, but uncertainties of the regional flow at Diamond Y Spring and East Sandia ceased flowing in the 1950s following system, it is difficult to assess why Springs preserves (Service 2005). The significant irrigation pumping (Brune spring flow in Phantom Lake Spring has species is removed mechanically by 1981). There have been no continuous declined. Ashworth et al. (1997) noted hand (young sprouts), with heavy records of spring flow discharge at the improper placement of new wells equipment for large trees, by cutting and Diamond Y Spring by which to could have a detrimental effect on the burning, or by spraying with herbicides. determine any trends in spring flow. springs. The Texas Water Development Control and removal of non-native Studies by Veni (1991) and Boghici Board (2005) agreed with this vegetation has previously been (1997) indicate that the spring flow at conclusion. Because of the regional identified as a factor responsible for Diamond Y Spring may come from the scale of the base flow, slow travel time, extirpation of localized populations of

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46314 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

Pecos assiminea in Mexico and New material from outside the spring occupied by the four invertebrates, these Mexico (Taylor 1987). ecosystem is necessary and desirable, it examples demonstrate that groundwater Saltcedar is seen as a threat to the is not desirable to overload the system contamination can easily occur and spring habitats primarily through the with so much organic material that it have long-lasting effects. amount of water it consumes and from cannot be processed. In such situations, Sediments and fish from Hunter the chemical composition of the leaves dissolved oxygen can drop to Marsh, located on BLNWR, which it drops on the ground and into the dangerously low levels as the material received municipal wastewater from the springs. Invertebrates in small spring decomposes. Primary productivity City of Roswell, have elevated ecosystems depend on food from two (growth of algae and native aquatic concentrations of polychlorinated sources: that which grows in or on the plants like watercress) would be greatly biphenyl (PCB), polycyclic aromatic substrate (aquatic plants, algae, and reduced or prevented because of hydrocarbons (PAHs), selenium, copper, periphyton) and that which falls or is shading. Control of introduced lead, zinc, and mercury (MacRae et al. blown into the system (primarily terrestrial plant species is an on-going 2001; Lusk 2005). Fish collected from leaves). Leaves from non-native plants management activity at BLNWR that Hunter Marsh and Hunter Oxbow that fall into the water are often less will have to be conducted carefully to contained PCB concentrations as high as suitable food sources for invertebrates have the least impact on the four 5 parts per million (ppm) (MacRae et al. because of either their resins or their invertebrates and their habitat. 2001; Lusk 2005). A diet that contains physical structure (Bailey et al. 2001). more than 0.1 ppm total PCBs can have Saltcedar leaves add salt to the soil Water Quality adverse effects on wildlife (MacRae et through its leaf litter (the leaves contain These four species depend upon al. 2001). PAHs were found at salt glands) (DiTomosoa 1998). Because water for their survival. Therefore, water concentrations as high as 7 ppm in saltcedar grows along the edge of water contamination is one of the most serious sediment and fish, which exceeds courses, it is possible that this could threats to these species. In order to criteria known to cause adverse effects affect the soil chemistry of areas assess the potential for water quality to aquatic organisms (MacRae et al. inhabited by Pecos assiminea. However, contamination, a study was completed 2001). Values of PCBs in sediment no research has been conducted in September 1999 to determine the collected from Hunter Marsh are at specifically on the effect of saltcedar on sources of water for the springs at levels associated with approximately 30 Pecos assiminea. BLNWR. This study (Balleau et al. 1999) percent mortality to invertebrates The concentration of common reed at reported that the source of water that (amphipods) (MacDonald et al. 2000; BLNWR has been increasing over the will reach the BLNWR springs over time Ingersoll et al. 2000; Lusk 2005). last few years and was seen to increase periods ranging from 10 to 500 years Urban development on the west side significantly in Bitter Creek after the includes a broad area beginning west of of BLNWR poses a risk to ground and Sandhill fire in 2000 (NMDGF 2005b, Roswell near Eightmile Draw, extending surface water quality from sewage 2005c). It is unknown if the common to the northeast to Salt Creek, and contamination (i.e., septic discharge). reed present at BLNWR is of native southeast to the BLNWR. Since this area The largest source of groundwater origin or if it is introduced. Common delineates the groundwater source area contamination in New Mexico is from reed grows in dense patches and of surface water on the BLNWR, it household septic tanks and leach fields reproduces primarily through an likewise represents pathways for (NM Water Quality Control Commission underwater rhizome (an elongated, contaminants to enter the species’ 2002). Common pollutants associated horizontal stem). Dense stands of the habitat. This broad area sits within a with septic tank contamination include plant choke the channel, slowing water portion of the Roswell Basin and total dissolved solids, iron, manganese, velocity and creating more pool-like contains a mosaic of Federal, State, and sulfides, nitrate, organic chemicals, and habitat. Pool-like habitat is less suitable private lands with multiple land uses, microbiological contaminants such as for the Roswell and Koster’s including expanding urban bacteria viruses and parasites (NM springsnails, which prefer flowing development. Water Quality Control Commission water. In addition, the dense stands of Contamination of groundwater 2002). Septic leachate is known to have the plant can completely shade the sources from industry and commercial contaminated groundwater resources in water, inhibiting algal growth, one of operations in and around Roswell is New Mexico (McQuillan et al. 1989); the food items for the springsnails. well documented. For example, however, specific events have not been Russian thistle (tumbleweed) is perchloroethylene (PCE) was discovered documented near BLNWR. Sinkholes another introduced plant species that in the McGaffey and Main groundwater west of BLNWR have been used for can create problems within the spring plume in Roswell in 1994 unregulated domestic refuse dumping. ecosystem. Russian thistle is not a (Environmental Protection Agency Refuse in the sinkholes has included riparian species like saltcedar and (EPA) 2001a, 2001b). It is suspected that domestic contaminants such as common reed; however, it often ends up a dry cleaning facility that operated pesticides, herbicides, and waste oil in the springs because wind blows the from 1956 to 1963 is the source of the (Lang 2002). The extent of groundwater tumbleweeds into the spring channels. PCE. The New Mexico Environment contaminants generated from residences Noel (1954) noted that she had to pull Department subsequently detected PCE and illegal dumps near the BLNWR is Russian thistle out of Lander Spring so in 13 of 16 groundwater wells in a 1995 unknown. that she could take samples. In 2005, investigation (EPA 2001a, 2001b). Wastewater from concentrated animal BLNWR conducted an emergency Intra- Trichloroethylene was detected in areas (e.g., dairies, feed lots, chicken Service section 7 consultation for the alluvial and artesian aquifers on the farms), septic tanks, and agricultural removal of tumbleweeds from the Area south side of Roswell, at the former site uses is a known contributor of nitrates 6 spring ditch. Wind had blown the of the Walker Air Force Base, beginning to surface and underground water tumbleweeds into the channel to a in 1991 (U.S. Army Corps of Engineers, sources (Boyer and Pasquarell 1995). depth of 0.9 to 1.2 meters (3–4 feet), http://www.spa.usace.army.mil/ec/ Nitrate levels in the underground completely shading the water and over- walker-rab/projectinfo.html). Although aquifer near Roswell are known to be loading the small channel with organic there is no indication that either of these high. A significant source of the nitrates material. While some amount of organic contaminants will enter springs comes from surrounding dairy farms

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46315

(Sarah McGrath, New Mexico State aquifer would be extremely difficult with previous drilling within feet of Ground Water Bureau, pers. comm. should it become contaminated by oil, surface waters. Oil and gas pipelines 2001). The effects of nitrates on aquatic chemicals, or organics such as nitrates. cross the spring outflow channels and species are not entirely known because In most cases contamination of an marshes where the species occurs, several outcomes may result from high- underground aquifer by agricultural, creating a constant potential for level nitrate contamination in aquatic industrial, or domestic sources is treated contamination from pollutants from systems. One outcome includes at the source. When a contamination leaks or spills. These activities pose a increased growth of algae resulting from site is discovered, techniques are used threat to the habitat of the Pecos increased nutrients in the aquatic to address the source of the assiminea by creating the potential for system. Too much algae in an aquatic contamination. Rarely do remediation pollutants to enter underground aquifers environment could result in periods of efforts pump water from the aquifer and that contribute to spring flow or by low dissolved oxygen and in extreme treat it before sending it back. This is point sources from spills and leaks of cases this could be lethal to the snails largely because these techniques are petroleum products on the surface. and the amphipod. At least two dairy very costly and difficult to apply (Sarah As an example of this threat, in 1992 farms are currently required to do McGrath, New Mexico State Ground approximately 10,600 barrels of crude remediation for their contribution of Water Bureau, pers. comm. 2001). oil were released from a 6-in (15.2 cm) nitrates to water pollution, both surface Because these invertebrate species are pipeline that traverses Leon Creek above and underground (Sarah McGrath, New sensitive to contaminants, efforts to its confluence with Diamond Y Draw. Mexico State Ground Water Bureau, clean up pollution source sites after the The oil was from a ruptured pipeline at pers. comm. 2001). aquifer has been contaminated may not a point several hundred feet away from be sufficient to protect these species and the Leon Creek channel. The site itself Oil and Gas Operations the aquatic habitat on which they is about 1 mile (1.6 km) overland from Oil drilling occurs throughout the depend. Diamond Y Spring. The distance that Roswell Basin. This activity and Operations associated with oil and gas surface runoff of oil residues must travel associated actions can threaten the drilling such as exploration, storage, is about 2 miles (3.2) down Leon Creek water quality of the aquifer on which transfer, and refining are also potential to reach Diamond Y Draw. The pipeline these species depend. For example, oil threats to these species (Jercinovic 1982, was operated at the time of the spill by and other contaminants from drilling 1984; Longmire 1983; Quarles 1983; the Texas-New Mexico Pipeline activities throughout the basin could Boyer 1986; Green and Trett 1989; Company, but ownership has since been enter the aquifer supplying the springs Service 1997). Such extractive processes transferred to several other companies. inhabited by all four species when the and industry operations are known to Texas Railroad Commission has been limestone layers are pierced by drilling contaminate ground and surface waters responsible for overseeing cleanup of activities. (Jercinovic 1982, 1984; Longmire 1983; the spill site. Remediation of the site There are 196 natural gas and oil Quarles 1983; Boyer 1986; Richard initially involved aboveground land wells in the 12-township area 1988a, 1988b; Rail 1989; Richard and farming of contaminated soil and rock encompassing the source-water capture Boehm 1989a, 1989b; Jones and Balleau strata to allow microbial degradation. In zone for the Middle Area of BLNWR 1996). Moreover, large volumes of water recent years, remediation efforts have that are potential sources of (about 12 billion gallons (39,000 acre focused on vacuuming oil residues from contamination (New Mexico Petroleum feet) in 1985) are produced concurrently the surface of groundwater exposed by Research Center 2002). Of these, 17 oil with oil and gas extraction, especially in trenches dug at the spill site. To date, and gas leases are currently within the southeastern New Mexico (Boyer 1986). no impacts on the rare fauna of habitat protection zone, which For example, in southeastern New Diamond Y Springs Complex have been encompasses 12,585 ac (5,093 ha) of Mexico, the average water-to-oil ratio observed, but no specific monitoring of Federal mineral estate within the water produced in 1985 was 4.5 to 1 (Boyer the effects of the spill was undertaken resource area for BLNWR (Service 1986). This water may be injected into (Service 2005b). 2005a). A total of 20 natural gas wells the ground in some areas to recover B. Overutilization for commercial, currently exist on these leases. BLM has more oil, but can also be disposed of in recreational, scientific, or educational estimated a maximum potential permitted surface pits (Boyer 1986). purposes. Roswell springsnail, Koster’s development of 66 additional wells This groundwater depletion and ground springsnail, Pecos assiminea, and Noel’s within the habitat protection zone, and surface water contamination can amphipod may occasionally be according to well spacing requirements adversely impact aquatic mollusks collected as specimens for scientific established by the New Mexico Oil (Eisler 1987, Green and Trett 1989) and study, but these uses probably have a Conservation Division. 48 (Service threaten Roswell springsnail, Koster’s negligible effect on total population 2005a). There were 200 (59 on State, 33 springsnail, Pecos assiminea, and Noel’s numbers. These species are currently on Private, and 108 on Federal lands) amphipod populations at BLNWR not known to be of commercial value, ‘‘intentions to drill’’ (pursuit of required (Service 1997). and overutilization has not been permits has been initiated by an Oil and gas activities also threaten the documented. However, as their rarity applicant) filed for oil or natural gas on Pecos assiminea because of the potential becomes known, they may become more Federal lands in Chavez County, from groundwater or surface water attractive to collectors. Although 2002 through the last update in June contamination from pollutants (Veni scientific collecting is not presently 2004 (Go-Tech 2005). 1991). The Diamond Y Springs Complex identified as a threat, unregulated There are numerous examples in is within an active oil and gas extraction collecting by private and institutional which oil and gas operations have field. At this time there are still many collectors could pose a threat to these employed regulatory standards within active wells and pipelines located locally restricted populations. We are the karst lands of the Permian Basin in within a hundred meters of surface aware of overcollection being a potential New Mexico and other states, but these waters. In addition, a natural gas threat with other snails (e.g., armored measures failed to protect groundwater refinery is located within 0.8 km (0.5 snail (Pyrgulopsis (Marstonia) pachyta) resources and aquifer drawdown mi) upstream of Diamond Y Spring. (65 FR 10033, February 25, 2000); (NMISC 2002). To remediate (clean) the There are also old brine pits associated Bruneau hot springsnail (P.

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46316 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

bruneauensis) (58 FR 5938, January 25, Carolina and spread westward (Selander result, the non-native species can have 1993); and Socorro springsnail (P. and Kaufman 1973). It was reported in a major impact on native populations neomexicana) and Alamosa springsnail Arizona in 1952 and California in 1966 (Minckley and Douglas 1991; Meffe et (Tryonia alamosae) (56 FR 49646, but was well-established by the time it al. 1994). One species of non-native September 30, 1991)), due to their rarity, was discovered (Selander and Kaufman fish, common carp (Cyprinus carpio), is restricted distribution, and generally 1973). It is common in Texas (Selander known to co-occur with the three well known locations. Due to the small and Kaufman 1973) and has been aquatic invertebrates at BLNWR. Native number of localities for the snails and reported from the Roswell area in New to Asia, common carp was introduced the amphipod, these species are Mexico (Lang 2005b). It inhabits gardens into the United States in 1831, has vulnerable to unrestricted collection, and agricultural areas but has also become widely distributed (Sublette et vandalism, or other disturbance. There invaded riparian and other native al. 1990), and is present at BLNWR in is no documentation of collection as a habitats (Selander and Kaufman 1973). habitats occupied by the invertebrates. significant threat to any of the species. It is used in California as a biological Through spawning and feeding behavior Therefore, we believe that collection of control agent against the brown garden it uproots vegetation and increases the animals is a minor but present snail (Helix aspera) (Cowie 2001). It will turbidity (Sublette et al. 1990). It is an threat. consume native snails (Cowie 2001) as omnivore feeding on aquatic C. Disease or predation. Springsnails well as vegetation (Dundee 1984). For invertebrates, fish eggs, algae, plants, and amphipods are a food source for these reasons, Rumnia is a potential and organic matter (Sublette et al. 1990). other aquatic animals. Juvenile threat to Pecos assiminea. Because of its non-discriminatory diet springsnails appear vulnerable to a Non-native aquatic species such as and habitat disturbance, it could have variety of predators. Damselflies crayfish, fish, and aquatic snails are also an impact on the three aquatic (Zygoptera) and dragonflies (Anisoptera) a potential threat to the four invertebrate species. were observed feeding upon snails in invertebrates. There is only one species Mosquitofish (Gambusia affinis) is the wild (Mladenka 1992). Damselflies of crayfish native to New Mexico, but its also present in some of the spring and dragonflies are native to and distribution does not overlap with that systems at BLNWR, but it is not known abundant at BLNWR and most likely of the four invertebrates (Hobbs 1991). if it is native to the area or not. The prey upon both the springsnails and Crayfish are typically opportunistic species is native to portions of New Noel’s amphipod. generalists (they will eat anything and Mexico but it has also been widely Springsnails are vulnerable to everything) (Hobbs 1991). Predation on introduced to control mosquitoes predation by fish (Kennedy 1977; invertebrates is well-documented (Sublette et al. 1990). However, it has Winemiller and Anderson 1997). (Hobbs 1991; Lodge et al. 1994; negatively affected or extirpated many Mladenka (1992) observed guppies Charlebois and Lamberti 1996; Strayer species of fish and invertebrates (e.g., feeding on springsnails in the 1999). However, because they also feed through predation) (Meffe et al. 1994). It laboratory. The non-native fish present on organic debris and vegetation and is not known if mosquitofish are at BLNWR (carp and mosquitofish) most reduce algal biomass (Charlebois and affecting the three species of aquatic likely also prey upon the springsnails Lamberti 1996), they could potentially invertebrates. and Noel’s amphipod when they occur compete with Roswell springsnail, Non-native mollusks have affected the in the same habitats. The extent to Koster’s springsnail, and Noel’s distribution and abundance of native which predation from non-native fish amphipod for food resources. Currently mollusks in the United States. Of affects population size of the three non-native crayfish are not present at particular concern for three of the aquatic invertebrates is not known. BLNWR or the sites in Texas. Diamond invertebrates (Noel’s amphipod, Roswell Predation pressure on Pecos assiminea Y Springs Complex does have an springsnail, and Koster’s springsnail) is also unknown. However, if the land undescribed native crayfish which we are Melanoides tuberculata (red-rim snail Rumina becomes established at do not believe to be a concern for Pecos melania) and Potamopyrgus BLNWR, the potential exists for it to assiminea. However, crayfish have antipodarum (New Zealand mudsnail). predate on Pecos assiminea. created major problems in aquatic Both of these snails are excellent Infestation by trematodes (a flatworm systems in Arizona, and there is no colonizers that reach tremendous or fluke, phylum Platyhelminthes) was physiological reason why some species population sizes and have been found in noted by Taylor (1987) in populations of of crayfish could not survive in the isolated springs in the West. Melanoides Koster’s springsnail at Sago Spring, habitats that now support the four has caused the decline and local BLNWR. Digenetic trematodes invertebrates. Eradication of crayfish extirpation of native snail species, and (trematodes in the order Digenera) are once they are established is extremely it is considered a threat to endemic parasitic and have the most complicated difficult (Hyatt 2004). Diamond Y aquatic snails that occupy springs and life histories in the animal kingdom Springs Complex has an undescribed streams in the Bonneville Basin of Utah involving two to four intermediate native crayfish which we do not believe (Rader et al. 2003). It is easily (vertebrate and/or invertebrate) hosts to be a concern for Pecos assiminea. transported on gear or aquatic plants, (Hickman et al. 1974). The first larval Non-native fish have had a major and because it reproduces asexually stage of the trematode nearly always impact on native aquatic fauna in the (individuals can develop from uses a mollusk (snail or bivalve) as the Southwest (Minckley and Douglas 1991; unfertilized eggs), a single individual is first intermediate host (Hickman et al. Desert Fishes Team 2003). Communities capable of founding a new population. 1974). Larval trematode parasites reduce of animals evolved together and It has become established in isolated or completely inhibit snail reproduction developed adaptations to deal with desert spring ecosystems such as Ash through castration (Minchella et al. competition and predation from other Meadows, Nevada, and Cuatro Cinegas, 1985). The effect of the trematodes on members of the community (Meffe et al. Mexico, and within the last 10 years, the springsnail population is not 1994). When a non-native species is Melanoides has become established in known. introduced into this community the Diamond Y Springs Complex (Echelle The terrestrial land snail (Rumina native members often do not have 2001; McDermott 2000). It has become decollate) was introduced to the United defenses against predation or they may the most abundant snail in the upper States in the early 1800s in South be less successful competitors. As a watercourse of the Diamond Y Springs

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46317

Complex (Echelle 2001). In many limited habitat of the four invertebrates, sufficient connection to waters of the locations, this exotic snail is so and are unlikely to prevent further United States for the Corps to assert numerous that it essentially is the declines of the species. jurisdiction under the authority of the substrate in the small stream channel. Clean Water Act. For example, the Federal The effect Melanoides is having on Corps frequently cites the SWANCC native snails is not known; however, Clean Water Act. Pursuant to section decision as their reason for not taking because it is aquatic it probably has less 404 of the Clean Water Act (CWA) (33 jurisdiction over waterbodies that do effect on Pecos assiminea than on the U.S.C. 1344), the U.S. Army Corps of not meet the definition of waters of the other endemic aquatic snails present in Engineers (Corps) regulates the United States. For these reasons, we the spring. discharge of dredged or fill material into conclude that regulation of wetlands Potampyrgus is also a potential threat all Waters of the United States, filling by the Corps under Section 404 to the endemic aquatic snails at BLNWR including wetlands. In general, the term of the CWA is inadequate to protect the and the spring systems in Texas. It was ‘‘’wetland’’’ refers to areas meeting the Roswell springsnail, Koster’s discovered in the Snake River, Idaho, in Corps criteria of having hydric soils, springsnail, Pecos assiminea, and Noel’s the mid-1980s and has quickly spread to hydrology (either a defined minimum amphipod from further decline. every Western state except New Mexico duration of continuous inundation or Revisions to the Roswell Approved (Montana State University http:// saturation of soil during the growing Resource Management Plan made by www.esg.montana.edu/aim/mollusca/ season), and a plant community that is BLM in 1997 prompted a formal section nzms/status.html, accessed on June 16, predominantly hydrophytic vegetation 7 consultation with the Service 2005). Like Melanoides, Potamopyrgus (plants specifically adapted for growing regarding the endangered Pecos has an operculum (a lid to close off the in a wetland environment). The spring gambusia (Gambusia nobilis), which shell opening), can withstand periods of complexes occupied by these four resides on BLNWR. The BLM drying up to 8 days (thereby facilitating invertebrates qualify as wetlands. designated an area for protection of transport) and can reproduce either Any discharge of dredged or fill habitat for Pecos gambusia from sexually or asexually. Thus, new material into waters of the United potential groundwater contamination by populations can be established with States, including wetlands, requires a oil and gas well drilling operations transport of a single individual. In permit from the Corps. These include (BLM 2002). This area, referred to as the addition, Potampyrgus is tiny (3 mm in individual permits which would be Habitat Protection Zone (HPZ), includes height [0.12 in]), is easily overlooked on issued following a review of an a portion of the source-water capture gear or shoes, and can be transported individual application, and general area for the springs in the northern part unknowingly by people visiting various permits that authorize a category or of the Middle Tract of BLNWR, where recreational sites. Considering its categories of activities in a specific Pecos gambusia co-occurs with the four current rate of expansion, and the geographical location or nationwide (33 invertebrate species. The HPZ includes availability of suitable habitat, it is CFR parts 320–330). General and special 12,585 ac (5,093 ha) of the Federal highly likely that Potampyrgus will permit conditions may vary among mineral estate and 9,945 ac (4,025 ha) of soon be discovered in New Mexico. individual Corps Districts and the the Federal surface estate that are within Potampyrgus tolerates a wide range of various general permits. However, the the water source area for the BLNWR. habitats, including brackish water. use of any individual or general permit The HPZ was established in October of Densities are usually highest in systems requires compliance with the Act. 2002 and special requirements for oil with high primary productivity, While the CWA provides a means for and gas well development managed to constant temperatures, and constant the Corps to regulate the discharge of protect the ground and surface water flow (typical of spring systems). It has dredged or fill material into waters and resources (BLM 2002). For example, reached densities exceeding 500,000 m2 wetlands of the United States, it does stipulations for oil and gas wells in the (Richards et al. 2001) to the detriment not provide complete protection. Many HPZ include storage of drilling muds in of native invertebrates. Not only can it applicants are required to provide steel tanks and use of cement to seal the dominate the invertebrate assemblage compensation for wetlands losses (i.e., entire length of the well casing. These (97 percent of invertebrate biomass), it no net loss) and many smaller impact requirements reduce the probability of can also eat nearly all of the algae and projects remain largely unmitigated contamination from oil and gas diatoms growing on the substrate, unless specifically required by other development but do not reduce the altering ecosystem function at the base environmental laws such as the Act. likelihood of groundwater of the food web (food is no longer Moreover, we are not aware of any contamination attributable to oil and gas available for native animals) (Hall et al. Corps permits that have been issued for storage or transportation activities (e.g. 2003). If Potampyrgus is introduced into the spring complexes where these leaking pipelines, storage tanks, or other the spring systems harboring the species occur or historically occurred, equipment failures). Therefore, the HPZ proposed invertebrates, control would indicating that there is little protection does not eliminate the threat of oil and most likely be impossible because the provided to these species through the gas activities on these species, nor does snails are so small and because any CWA. it address the other threats identified chemical treatment would also affect the Recent court cases limit the Corps’ under Factor A (e.g., drought, septic native species. The impact could be ability to utilize the CWA to regulate the tank leaching, etc). devastating. discharge of fill or dredged material into D. The inadequacy of existing the aquatic environment within the State regulatory mechanisms. One primary current range of the Roswell springsnail, Existing New Mexico State regulatory cause of decline of the Roswell Koster’s springsnail, Pecos assiminea, mechanisms are inadequate to protect springsnail, Koster’s springsnail, Pecos and Noel’s amphipod (Solid Waste the Roswell springsnail, Koster’s assiminea, and Noel’s amphipod is the Agency of Northern Cook County v. U.S. springsnail, Pecos assiminea, and Noel’s loss, degradation, and fragmentation of Army Corps of Engineers, 531 U.S. 159 amphipod. All four species are listed as habitat due to human activities. Federal (2001) (SWANCC)). There may be New Mexico State endangered species, and State laws have been insufficient to instances where seasonal wetlands used Group 1, which are those species prevent past and ongoing losses of the by California tiger salamander lack ‘‘whose prospects of survival or

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46318 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

recruitment within the State are in artificial and secure refugium to protect invertebrates does not have to dry out jeopardy.’’ This designation provides against catastrophic loss in the wild completely to have an effect on the protection of the New Mexico (NMDGF 2005b). As noted above, the populations. Lower spring flows may Wildlife Conservation Act, but only State’s recovery plan does not ensure cause a decrease in habitat availability, prohibits direct take of these species, any long-term protection for these increased water temperatures, lower except under issuance of a scientific species because there are no mandatory dissolved oxygen levels, and an increase collecting permit. New Mexico State elements to ensure proposed projects do in salinity (MacRae et al. 2001). Any of statutes do not address habitat not adversely affect these species or these factors, alone or in combination, protection, indirect effects, or other their habitat. could lead either to the reduction or threats to these species. New Mexico The Oil Conservation Division of the extirpation of a population. State status as an endangered species New Mexico Energy, Minerals, and Additionally, the primary threat to only conveys protection from collection Natural Resources Department regulates Pecos assiminea in Texas is the or intentional harm. However, there is oil and gas well drilling and casing in potential failure of spring flow due to no formal consultation process to part to prevent contamination of excessive groundwater pumping and/or address the habitat requirements of the groundwater (19 NMAC 15.3). Although drought, which would result in total species or how a proposed action may there are no known instances of habitat loss for the species. affect the needs of the species. Because groundwater contamination by leaking In Texas, Pecos assiminea currently most of the threats to these species are oil or gas wells in the source-water has no State or other regulatory from effects to habitat, protecting capture zone for the Middle Unit of protection. Some protection for the individuals will not ensure their long- BLNWR, there is a well documented habitat of this species is provided with term protection. history of oil and gas industry the ownership of the springs by TNC NMDGF recognizes the importance of operations on and adjacent to BLNWR, (Karges 2003). However, this land Roswell springsnail, Koster’s which have resulted in the spillage of ownership provides no protection from springsnail, Pecos assiminea, and Noel’s oil and brine onto the BLNWR (Service one of the main threats to this species— amphipod conservation at the local 1994b, 1996, 1997a, 1998b). Therefore, the loss of necessary groundwater levels population level and has the authority we find that these regulations provide to ensure adequate spring flows. to consider and recommend actions to some protection to the four Groundwater pumping that could affect mitigate potential adverse effects to invertebrates, but do not eliminate the spring flows is subject to limited these species during its review of threat of oil spills through accidents or regulation in Texas. State agencies do development proposals. As noted, equipment malfunctions. not control groundwater pumping, and NMDGF’s primary regulatory venue is The environmental assessment found Texas courts have held that, with few under the New Mexico Wildlife that spring flows within the proposed exceptions, landowners have the right to Conservation Act. There are no statutory critical habitat on BLNWR are already take all the water that can be captured requirements under NMDGF’s protected by existing water rights under their land (rule of capture), jurisdiction that serve as an effective afforded by the New Mexico Office of regardless of impacts to neighbors or regulatory mechanism for reducing or the State Engineer’s administration of natural resources. Individual eliminating the threats (see Factors A the Roswell Basin. In 1967, water rights groundwater conservation districts have and C above) that may adversely affect were adjudicated in the Roswell Basin, varying amounts of authority and Roswell springsnail, Koster’s wells were metered, and pumping rates capacity to limit pumping. Diamond Y springsnail, Pecos assiminea and their administered by the Office of the State Spring is within the jurisdiction of the habitat. Engineer (OSE). Currently, any Middle Pecos Groundwater Still, New Mexico State statutes proposed change in use of water Conservation District, but generally require the NMDGF to develop a (underground or surface depletion) in groundwater districts will not limit recovery plan that will restore and the Roswell Basin will undergo analysis groundwater use to allow for maintain species’ habitat. A recovery by OSE to determine if there would be conservation of surface water flows and conservation plan for the four impairment to existing water rights (Booth and Richard-Crow 2004; Caroom invertebrates was finalized by the State (McCord et al. 2005). The OSE will not and Maxwell 2004). Thus, we find no of New Mexico in January 2005 allow such change if it impairs the existing regulatory mechanisms in place (NMDGF 2005b). The plan provides Federal water right in any respect to protect the Pecos assiminea. details about the natural history of the (NMISC 2005). Thus the spring flows on Members of the four invertebrate invertebrates, a historical perspective of BLNWR should be protected from any species that co-exist in springs with the habitat and population trends, and changes in groundwater pumping near federally endangered Pecos gambusia habitat assessment. The goal of the plan the refuge in the future. This provides (Gambusia nobilis) at BLNWR and is to ensure that the invertebrates occur a regulatory benefit to the four Diamond Y Spring and the federally in sufficient numbers within invertebrates. endangered Leon Springs pupfish at populations and in a sufficient number However, we believe that there was a Diamond Y Spring may receive of discrete and independent lag between the time of the drought and incidental habitat protection from the populations, that downlisting and recovery in the artesian groundwater in Act. However, possible habitat eventual delisting under the Wildlife this area. Because New Mexico has been protection provided by the federally Conservation Act is warranted (NMDGF in a drought since 1999, there may be listed Pecos gambusia and the Leon 2005b). The plan outlines three a lag time before the effect of the current Springs pupfish offers only partial parameters to meet the goal: (1) drought is observed. We believe that the protection for the Roswell springsnail, Maintenance or expansion of the springs on BLNWR will flow in spite of Koster’s springsnail, Pecos assiminea, existing distribution and abundance of relatively intense drought (McCord et al. and Noel’s amphipod because the the invertebrates at BLNWR; (2) 2005). However, it is not known how federally listed fish are not found in all repatriation of the invertebrates to the springs in Texas would respond to the springs the snails or amphipod restored suitable habitat at two or more extended drought and the current level inhabit. For example, Pecos assiminea sites within their known historic range; of groundwater pumping. Moreover, the does not normally occur directly within and (3) establishment and stocking of an habitat occupied by the four submerged habitats. It is most

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46319

commonly found in moist soil or formed, water temperature fluctuations controlled burns with appropriate vegetation along the periphery of and maximum temperatures increased, conservation measures do not adversely standing water. As a result, this habitat while dissolved oxygen levels decreased affect the Koster’s springsnail, Pecos may not be afforded protection under (Lang 2002). The pre-fire dominant assiminea, or Roswell springsnail current management actions or vegetation of submerged aquatic plants (Service 2004). On the other hand, consultations which address and mixed native grasses within the prescribed burns to remove Russian conservation for listed fish species in burned area has also been replaced by thistle may have indirectly affected the same area. the invasive common reed (NMDGF Noel’s amphipod through the release of Federal water-rights for the BLNWR 2005b, 2005c). Following the fire, a common reeds, which can reduce water were secured in 1996 (Service 2005b). dramatic reduction in Noel’s amphipod flow and result in decreased dissolved This acquisition should ensure was observed, and Koster’s springsnail oxygen levels (Service 2005c). Surveys minimum surface water discharge of occurs at lower densities than were conducted immediately post-fire Bitter Creek. However, if this water is observed prior to the fire (Lang 2002, indicate that Noel’s amphipod is still contaminated, the Federal water right NMDGF 2005c). found throughout the burned area, with alone does not provide adequate Currently, dense stands of common little to no direct effects (Service 2005c). protection for these species. reed are found throughout most reaches Still, the Service is continuing to E. Other natural or manmade factors of Bitter Creek, including in habitat monitor post-fire effects from these affecting its continued existence. occupied by the four invertebrates activities to determine if Noel’s BLNWR was established in 1937 as (NMDGF 2005c) (see also ‘‘Factor C’’ amphipod has been adversely affected. wintering and breeding grounds for section above). Prior to the Sandhill Fire, particularly during the winter migratory birds. At the time the four Fire, common reed occurred only months, will allow ash, sediment, salts, invertebrates were unknown to science. sporadically along Bitter Creek (NMDGF and nutrients to more readily enter the Consequently, management was 2005c). These dense stands of common aquatic habitat via precipitation and directed primarily at creating dikes so reed have increased the fuel load and wind. Ash consists of carbon, soots, and that ponds could be created and their threat of wildfire on BLNWR. Standing other organic compounds that, upon water levels controlled for the benefit of dead canes of common reed and entering the water column, provide a waterfowl. Some of the ponds created associated litter often constitute twice as food source for bacteria and algae. With would seasonally flood springs that much biomass as living shoots (Uchytil the addition of associated nutrients, and flowed into these ponds naturally. 1992). This abundant dead fuel carries water temperature increases from the Because the Roswell springsnail and fire well, allowing stands to burn even loss of streamside vegetation, Noel’s amphipod, in particular, prefer when the current year’s shoots are green populations of bacteria and algae will flowing over pooled water, this had a (Uchytil 1992). Because of the increase expand, causing oxygen depletions. As negative impact on the habitat available in common reed on BLNWR within a result, some invertebrates may perish to them. In 2003, a dike rehabilitation habitat occupied by the four in these situations, where they cannot project was begun on BLNWR. Two invertebrates, we now find that wildfire escape the oxygen deficit. Additionally, dikes running the length of Areas 6 and is a threat to the four invertebrates. denuded areas will allow erosion and 7 were constructed. This isolated the Removal of vegetative cover by sedimentation of the streamside habitat. spring systems from the main body of burning in habitats occupied by Pecos Sedimentation could have the direct the impoundments, allowing the areas assiminea may be an important factor in effect on the Roswell springsnail, which to be flooded in the winter without decline or loss of populations (Taylor is typically found on rocks. inundating the springs occupied by the 1987). Alternatively, Pecos assiminea invertebrates. In addition, potential has been found to persist in areas Finding habitat for the invertebrates was created following fires (Lang 2000). Pecos We have carefully assessed the best in a new ditch designed to carry water assiminea was also discovered at scientific and commercial information to Area 7. Current management of Dragonfly Spring following burning of available regarding the past, present, BLNWR recognizes and includes the habitat there during the Sandhill Fire and future threats faced by these species invertebrates in its maintenance and (NMDGF 2005a). Season of burning, in determining that these species are in operations, and is no longer a threat to intensity of the fire, and frequency of danger of extinction throughout all or a the invertebrates. fire are likely important determinants of significant portion of their respective effects on population persistence and ranges. The habitat and range of Roswell Fire abundance of Pecos assiminea (NMDGF springsnail, Koster’s springsnail, Pecos BLNWR is characterized by sinkhole/ 1998). Pecos assiminea is potentially assiminea, and Noel’s amphipod are karst terrain. This terrain poses safety more vulnerable to fires than the threatened with destruction, threats to fire crews and suppression springsnails because they reside at or modification, and curtailment. Existing equipment. As a result, fire suppression near the surface of the water. However, regulatory mechanisms do not provide efforts are largely restricted to it is thought that Pecos assiminea may adequate protection for these species, established roads. This severely limits survive fire or other vegetation and other natural and manmade factors management ability to quickly suppress reduction if sufficient litter and ground affect their continued existence. fires that threaten fragile aquatic cover remain to sustain appropriate soil Because each of these four species has habitats on the BLNWR. On March 5, moisture and humidity at a microhabitat a very limited range, their populations 2000, the Sandhill fire burned 405 ha scale (NMDGF 2005a; Service 2004). are disjunct and isolated from each (1,000 ac) of the western portion of the Controlled burns have been other, and potential habitat areas are BLNWR, including portions of Bitter implemented on BLNWR to burn grass, isolated and separated by large areas of Creek. The fire burned through sedge, cattail, and non-native vegetation unsuitable habitat, these invertebrates Dragonfly Spring, eliminated vegetation (e.g., Russian thistle) in an attempt to are particularly vulnerable to localized shading the spring, and generated a reduce the risk of large uncontrolled extinction should their habitat be substantial amount of ash in the spring wildfires or to remove excessive degraded or destroyed. Because their system (Lang 2000, NMDGF 2005b, amounts of Russian thistle from a spring mobility is limited, populations will 2005c). Subsequently, dense algal mats run (Service 2004). We have found that have little opportunity to leave

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46320 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

degraded habitat areas in search of the Act can protect species with and for review of comments and information suitable habitat. As a result, one without critical habitat designation, to ensure the rule has addressed all the contamination event, or a short period critical habitat designation may be pertinent issues before making decisions of drawdown in the aquatic habitat redundant to the other consultation on listing and critical habitat proposals, where they are found could result in the requirements of section 7.’’ due to the risks associated with loss of an entire population, of which Currently, only 445 species, or 36 noncompliance with judicially imposed there are few. Because of the limited percent, of the 1,244 listed species in deadlines. This in turn fosters a second distribution of these endemic species, the United States under the jurisdiction round of litigation in which those who any impact from increasing threats (e.g., of the Service have designated critical will suffer adverse impacts from these loss of springflow, contaminants, habitat. We address the habitat needs of decisions challenge them. The cycle of nonnative species) is likely to result in all 1,244 listed species through litigation appears endless, is very their extinction because the magnitude conservation mechanisms such as expensive, and in the final analysis of threat is high. These species occur in listing, section 7 consultations, the provides little additional protection to an arid region plagued by drought and Section 4 recovery planning process, the listed species. ongoing aquifer withdrawals (e.g., in section 9 protective prohibitions of The costs resulting from the Texas), making the loss of springflows unauthorized take, section 6 funding to designation include legal costs, the cost an imminent threat in the foreseeable the States, and the section 10 incidental of preparation and publication of the future. We also found that their habitat take permit process. The Service designation, the analysis of the faces a constant threat from water believes that it is these measures that economic effects and the cost of quality contamination. Therefore, we may make the difference between requesting and responding to public have determined that the Roswell extinction and survival for many comment, and in some cases the costs springsnail, Koster’s springsnail, Pecos species. of compliance with the NEPA; all are assiminea, and Noel’s amphipod meet We note, however, that a recent 9th part of the cost of critical habitat the definition of an endangered species Circuit judicial opinion, Gifford Pinchot designation. These costs result in pursuant to section 3 of the Act. A Task Force v. United States Fish and minimal benefits to the species that are threatened species designation as Wildlife Service, has invalidated the not already afforded by the protections defined in section 3 of the Act would Service’s regulation defining destruction of the Act enumerated earlier, and they not accurately reflect the population or adverse modification of critical directly reduce the funds available for status, restricted distribution, habitat. We are currently reviewing the direct and tangible conservation actions. vulnerability, and imminent threats. As decision to determine what effect it may Section 3(5)(A) of the Act defines such, we are listing these four have on the outcome of consultations critical habitat as the specific areas within the geographical area occupied invertebrate species as endangered pursuant to section 7 of the Act. by the species on which are found those under the Act. Procedural and Resource Difficulties in physical and biological features (I) Designating Critical Habitat Critical Habitat essential to the conservation of the We have been inundated with species and (II) which may require Designation of Critical Habitat Provides lawsuits regarding critical habitat special management considerations or Little Additional Protection to Species designation, and we face a growing protection and that the designation of In 30 years of implementing the Act, number of lawsuits challenging critical critical habitat for a given species is the Service has found that the habitat determinations once they are prudent and determinable. designation of statutory critical habitat made. These lawsuits have subjected the ‘‘Conservation’’ means the use of all provides little additional protection to Service to an ever-increasing series of methods and procedures that are most listed species, while consuming court orders and court-approved necessary to bring an endangered or a significant amounts of conservation settlement agreements, compliance with threatened species to the point at which resources. The Service’s present system which now consumes nearly the entire listing under the Act is no longer for designating critical habitat is driven listing program budget. This leaves the necessary. Because we proposed critical by litigation rather than biology, limits Service with little ability to prioritize its habitat for the four invertebrates, we our ability to fully evaluate the science activities to direct scarce listing already determined that critical habitat involved, consumes enormous agency resources to the listing program actions pursuant to the Act and implementing resources, and imposes huge social and with the most biologically urgent regulations was both prudent and economic costs. The Service believes species conservation needs. determinable (67 FR 6459). that additional agency discretion would The consequence of the critical Section 3(5)(c) of the Act states that allow our focus to return to those habitat litigation activity is that limited not all areas that can be occupied by a actions that provide the greatest benefit listing funds are used to defend active species should be designated as critical to the species most in need of lawsuits and to comply with the habitat unless the Secretary determines protection. growing number of adverse court orders. that all such areas are essential to the As a result, the Service’s own proposals conservation of the species. Our Role of Critical Habitat in Actual to undertake conservation actions based regulations (50 CFR 424.12(e)) also state Practice of Administering and on biological priorities are significantly that ‘‘The Secretary shall designate as Implementing the Act delayed. critical habitat areas outside the While attention to and protection of The accelerated schedules of court geographical area presently occupied by habitat is paramount to successful ordered designations have left the the species only when a designation conservation actions, we have Service with almost no ability to limited to its present range would be consistently found that, in most provide for meaningful additional inadequate to ensure the conservation of circumstances, the designation of public participation beyond those the species.’’ critical habitat is of little additional minimally required by the Areas within the geographical area value for most listed species, yet it Administrative Procedure Act (APA), occupied by the species that do not consumes large amounts of conservation the Act, and the Service’s implementing contain the features essential for the resources. Sidle (1987) stated, ‘‘Because regulations, or to take additional time conservation of the species are not, by

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46321

definition, critical habitat. Similarly, restoration, fire prevention/ assessments. In the absence of within the geographical area occupied management, or oil and gas published data, unpublished materials by the species, if the features essential development activities. and expert opinion or personal for the conservation of the species will Similarly, actions on private lands knowledge are used. not require special management that have the potential to result in take Areas that support populations, but considerations or protection, the area is of any of the four invertebrate species are outside the critical habitat not, by definition, critical habitat. To would be subject to section 10 of the designation, are still important to the determine whether the essential features Act, which requires development of a species. Because of that they will within an area may require special Habitat Conservation Plan as part of an continue to be subject to conservation management, we first determine if the application to the Service for an actions implemented under section essential features located there generally incidental take permit. These incidental 7(a)(1) of the Act and to the regulatory require special management to address take permits are issued pursuant to protections afforded by the section applicable threats. If those features do section 10(a)(1)(B) of the Act. Critical 7(a)(2) jeopardy standard, as determined not require special management, or if habitat has possible effects on activities on the basis of the best available they do in general but not for the conducted by non-Federal entities only information at the time of the action. particular area in question because of if they are conducting activities on Federally funded or permitted projects the existence of an adequate Federal lands or that involves Federal affecting listed species outside their management plan or for some other funding, a Federal permit, or other designated critical habitat areas may reason, then the essential features Federal action (e.g., grazing permits). still result in jeopardy findings in some within the area do not require special Regulations at 50 CFR 424.02(j) define cases. Similarly, critical habitat management. special management considerations or designations made on the basis of the Further, section 4(b)(2) of the Act protection to mean any methods or best available information at the time of states that critical habitat shall be procedures useful in protecting the designation will not control the designated, and revised, on the basis of physical and biological features of the direction and substance of future the best available scientific data after environment for the conservation of recovery plans, habitat conservation taking into consideration the economic listed species. When we designate plans, or other species conservation impact, impact on national security, and critical habitat, we may not have the planning efforts if new information any other relevant impact of specifying information necessary to identify all available to these planning efforts calls a particular area as critical habitat. An areas that are essential for the for different approaches. area may be excluded from critical conservation of the species. In our critical habitat designation we habitat if it is determined that the Nevertheless, we are required to use the provisions outlined in section benefits of exclusion outweigh the designate those areas we consider to be 3(5)(A) of the Act to evaluate those benefits of specifying a particular area essential, using the best information specific areas defined by the features as critical habitat, unless the failure to available to us. Accordingly, we do not essential to the conservation of the designate such area as critical habitat designate critical habitat in areas species that may require special will result in the extinction of the outside the geographical area occupied management considerations or species. by the species unless the best available protections. On the basis of our The designation of critical habitat scientific and commercial data evaluation, we have determined that does not affect land ownership or demonstrate that unoccupied areas are BLNWR does not require special establish a refuge, wilderness, reserve, essential for the conservation needs of management considerations or preserve, or other conservation area. It the species. protections, and have excluded this area does not allow government or public The Service’s Policy on Information from the designation of critical habitat access to private lands. Under section 7 Standards Under the Act, published in for these four invertebrates pursuant to of the Act, Federal agencies must the Federal Register on July 1, 1994 (59 section 3(5)(A) of the Act as discussed consult with the Service on activities FR 34271), and Section 515 of the below (see ‘‘Exclusions Under Section they undertake, fund, or permit that Treasury and General Government 3(5)(A) of the Act’’ section below). may affect critical habitat and lead to its Appropriations Act for Fiscal Year 2001 Because the Roswell springsnail, destruction or adverse modification. (Pub. L. 106–554; H.R. 5658) and the Koster’s springsnail, and Noel’s However, the Act prohibits associated Information Quality amphipod are only found within or unauthorized take of listed species and Guidelines issued by the Service, adjacent to the BLNWR, we are not requires consultation for activities that provide criteria, establish procedures, designating critical habitat for these may affect them, including habitat and provide guidance to ensure that three species. The critical habitat alterations, regardless of whether decisions we make represent the best discussion below only concerns habitat critical habitat has been designated. scientific and commercial data for the Pecos assiminea. When a Federal nexus exists, we work available. They require our biologists, to with the appropriate Federal agency, the extent consistent with the Act and Primary Constituent Elements and in some cases the applicant to the with the use of the best scientific and In accordance with section 3(5)(A)(i) consultation, to ensure that the project commercial data available, to use of the Act and regulations at 50 CFR can be completed without jeopardizing primary and original sources of 424.12, in determining which areas to the species or adversely modifying information as the basis for propose as critical habitat, we consider critical habitat. We intend to continue recommendations to designate critical those physical and biological features working with our Federal partners to habitat. When determining which areas (primary constituent elements) that are provide technical assistance, are critical habitat, information may be essential to the conservation of the coordination, and, in some instances, obtained from the listing package, species and that may require special section 7 consultation. We do not recovery plans, articles in peer-reviewed management considerations or anticipate that the listing of these journals, conservation plans developed protection. These features include but species or the designation of critical by States and counties or other entities are not limited to: space for individual habitat for the Pecos assiminea will that develop HCPs, scientific status and population growth and for normal preclude projects such as riparian surveys and studies, and biological behavior; food, water, air, light,

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46322 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

minerals or other nutritional or conservation of the Pecos assiminea unless such plan will not promote the physiological requirements; cover or because the species cannot withstand conservation of the species and the shelter; sites for germination or seed permanent drying (loss of surface flow) species is therefore exempt from having dispersal; and habitats that are protected of springs or spring complexes. When a plan developed for it. Recovery plans from disturbance or are representative of water quality conditions degrade (e.g., describe actions considered necessary the historical, geographical, and water temperatures are too high, and for conservation of the species, establish ecological distributions of a species. dissolved oxygen concentrations are too criteria for downlisting or delisting This critical habitat designation does low), Pecos assiminea will likely be them, and estimate time and cost for not include lands on BLNWR, New injured or die. implementing the recovery measures Mexico (see Exclusions Under Section needed. A final recovery plan formalizes Reproduction and Rearing of Offspring 3(5)(A)’’ and ‘‘Summary of Changes to the recovery strategy for a species, but Proposed Rule’’ sections). We Little is known about the reproductive is not a regulatory document (i.e., determined the primary constituent requirements for the Pecos assiminea. recovery plans are advisory documents elements for the Pecos assiminea (the The native wetland plant community because there are no specific only species which occurs off of was included in this designation protections, prohibitions, or BLNWR) from data and studies on its because the Pecos assiminea is found requirements afforded to a species based general habitat and life history within the moist environment directly solely on a recovery plan). Critical requirements including, but not limited adjacent to the aquatic habitat. habitat contributes to the overall to: Taylor 1987; and NMDGF 1996, Substrates found in these margin areas recovery strategy for listed species, but 1998, 1999, 2005b, and 2005c. A provide for temperatures within the does not by itself achieve recovery plan description of the essential environment environmental tolerance for this species, goals. as it relates to the specific primary and the habitat for reproduction that the We do not currently have a recovery constituent elements required of the Pecos assiminea requires. plan for Pecos assiminea. Nevertheless, Pecos assiminea is described below. Food we have reviewed the recovery plan Space for Individual and Population developed by the State of New Mexico The Pecos assiminea has a file-like Growth and Normal Behavior (NMDGF 2005b). In designating critical radula (a ribbon of teeth) situated The Pecos assiminea requires habitat for the Pecos assiminea, we also behind the mouth that is used to graze reviewed information within our files saturated, moist soil at stream or spring or scrape food from the foraging surface. run margins. Spring complexes that and recommendations contained in Saturated soils and wetland vegetation State wildlife resource reports (Balleau contain flowing water create saturated adjacent to spring complexes contribute soils that provide the specific habitat et al. 1999; NMDGF 2005a, 2005b, 1999, to the necessary components to support 1998, Boghici 1997; Jones and Balleau needed for population growth, the algae, detritus, and bacteria on sheltering, and normal behavior of the 1996; and Cole 1985). We also reviewed which this species forages. the available literature pertaining to species. This snail typically occurs near The discussion above describes the habitat requirements, historic localities, the soil surface or beneath leaf litter or physical and biological features and current localities for this species. vegetation in these areas (NMDGF essential to the Pecos assiminea and 2005b). Consequently, wetland plant presents our rationale as to why the We are not aware of any reliable species are required to provide the leaf features identified below were selected. information that is currently available to litter, shade, and appropriate The primary constituent elements us that was not considered in this microhabitat. Plant species such as described below include the essential designation process. This final American three-square (Scirpus features of spring complexes that determination constitutes our best americanus), spike rush (Eleocharis develop, maintain, and regenerate the assessment of areas needed for the spp), inland saltgrass (Distichlis spicata) habitat components required for the conservation of the species. Much and rushes (Juncus spp.) provide the Pecos assiminea to forage, reproduce, remains to be learned about this species; appropriate cover and shelter required and shelter. The specific biological and should credible new information Pecos assiminea (NMDGF 2005b). physical features, otherwise referred to become available which contradicts this designation, we will reevaluate our Water as the primary constituent elements, essential to the conservation of the analysis and, if appropriate, propose to The Pecos assiminea is found in wet Pecos assiminea are: modify this critical habitat designation, mud or beneath mats of vegetation, (1) Permanent, flowing, unpolluted, depending on available funding and usually within a few centimeters fresh to moderately saline water; staffing. We must make this (inches) of flowing water. The moist soil (2) Moist or saturated soil at stream or determination on the basis of the environment provides foraging and spring run margins with native information available at this time, and sheltering habitat, as well as habitat vegetation growing in or adapted to we may not delay our decision until structure necessary for reproduction and aquatic or very wet environment, such more information about the species and successful recruitment of offspring. as salt grass or sedges; and its habitat are available (Southwest These areas provide the algae, bacteria, (3) Stable water levels with natural Center for Biological Diversity v. and decaying organic matter on which diurnal and seasonal variation. Babbitt, 215 F.3d 58 (D.C. Cir. 2000)). this species depends as a food resource. The designated critical habitat The Pecos assiminea is rarely found Criteria for Defining Critical Habitat constitutes our best assessment of the immersed in water or in standing water. Restoring an endangered or specific areas that contain the primary Therefore, impoundment of threatened species to the point where it constituent elements for Pecos springbrooks or streams is seen as is recovered is a primary goal of our assiminea and that may require special detrimental to the survival of the Endangered Species Program. To help management or protection. The species. It also does not appear to guide the recovery effort, we are designated areas are within the persist in areas with fluctuating water required to prepare and implement geographical area occupied by Pecos levels or in wetlands that freeze (Lang recovery plans for all of the listed assiminea populations and currently 2000). However, water is essential to the species native to the United States have one or more constituent elements

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46323

(see description of primary constituent physical and biological features BLNWR is placed on the protection and elements, above). essential to the conservation of the enhancement of habitat for endangered species for inclusion in the designation species and Federal candidate species, Critical Habitat Designation pursuant to section 3(5)(A) of the Act. maintenance and improvement of We designate two units as critical We then evaluate lands defined by those wintering crane and waterfowl habitat, habitat for the Pecos assiminea (see the features to assess whether they may and monitoring and maintenance of ‘‘Regulation Promulgation’’ section of require special management natural ecosystem values. this final rule for exact boundary considerations or protection. As The BLNWR sits at a juncture descriptions). These critical habitat discussed in the five factor analysis between the Roswell Artesian units include primary constituent above, the Pecos assiminea is imperiled Groundwater Basin and the Pecos River. elements that provide for the by a multitude of threats such as oil and These two systems and their physiological, behavioral, and gas operations, introduced species, interactions account for the diversity of ecological requirements essential for the groundwater contamination and water resources on the Refuge, conservation of Pecos assiminea. The depletion, drought, risk of wildfire, and including sinkholes, springs, wetlands, designation includes one complex at inadequate regulatory mechanisms. oxbow lakes, and riverine habitats. The Diamond Y Spring and a segment of the Below we first provide some general BLNWR has a federally reserved water drainage and East Sandia Spring. background information on the BLNWR right that essentially protects Critical habitat units are designated in and the Comprehensive Conservation groundwater levels of the Roswell Basin portions of Pecos and Reeves Counties, Plan (CCP), followed by an analysis in the Refuge vicinity. The Refuge has Texas. Detailed digital files of each unit pursuant to section 3(5)(A) of the Act of undergone adjudication of its federally can be obtained by contacting the New the current management provisions on reserved water rights by the State of Mexico Ecological Services Field Office BLNWR, and an analysis of why we New Mexico (order signed May 1997). (see ADDRESSES section). believe special management is not The BLNWR is currently in negotiations A general description of land required. Pursuant to section 3(5)(A)(i) with the New Mexico Interstate Stream ownership in both areas follows: of the Act, we consider the areas that we Commission, a State agency responsible 1. Diamond Y Springs Complex, Pecos are excluding on the BLNWR to be for administering New Mexico’s water County, Texas. This area comprises a within the geographical range occupied resources, to quantify these reserved major population of Pecos assiminea. by the four invertebrate species. As rights (Service 2005). The designation includes the Diamond noted in the environmental assessment, The National Wildlife Refuge System Y Spring and approximately 6.8 km (4.2 one of the areas on the BLNWR, the Improvement Act of 1997 establishes a mi) of its outflow, ending at impoundment complex, contains an conservation mission for refuges, gives approximately 0.8 km (0.5 mi) area that could allow for future policy direction to the Secretary of the downstream of the State Highway 18 expansion of existing populations. Interior and refuge managers, and bridge crossing. Also included is While this area is not known to be contains other provisions such as the approximately 0.8 km (0.5 mi) of Leon currently occupied, we consider it to be requirement to integrate scientific Creek upstream of the confluence with within the geographical range occupied principals into the management of the Diamond Y Draw. All surrounding by the four invertebrate species because Refuges. According to Section 7(e)(1)(E) riparian vegetation and mesic soil it is in close proximity to known of the Refuge Improvement Act, all environments within the spring, occupied areas (i.e., ranging from lands of the Refuge System are to be outflow, and portion of Leon Creek are approximately 164 to 656 feet (50 to 200 managed in accordance with an also designated as these areas are m)), and it would be an area where approved CCP that will guide considered habitat for the Pecos section 7 consultations would occur management decisions and set forth assiminea. This designation is because of the potential presence of the strategies for achieving refuge purposes. approximately 153.8 ha (380 ac) of four invertebrate species and known In general, the purpose of the CCP is to aquatic and neighboring mesic habitat. proximity to occupied areas. provide long-range guidance for the This complex occurs entirely on private The BLNWR was established on management of National Wildlife lands. Private land in the immediate October 8, 1937, by Executive Order Refuges. The Refuge Improvement Act vicinity of the Diamond Y Springs 7724 ‘‘as a refuge and breeding ground requires all refuges to have a CCP and Complex is managed as a nature for migratory birds and other wildlife.’’ provides the following legislative preserve by TNC. The Refuge Recreation Act (16 U.S.C. mandates to guide the development of 2. East Sandia Spring, Reeves County, 460–1) identifies the refuge as being the CCP: (1) Wildlife has first priority in Texas. This spring contains a ‘‘suitable for incidental fish and the management of refuges; (2) wildlife- population of Pecos assiminea. The wildlife-oriented recreational dependent recreation including hunting, designation includes the springhead development, the protection of natural fishing, wildlife observation, wildlife itself, surrounding seeps, and all resources, and the conservation of photography, environmental education submergent vegetation and moist soil endangered species or threatened and environmental interpretation are habitat found at the margins of these species.’’ The Wilderness Act of 1964 the priority public uses of the refuge areas. These areas are considered habitat (Pub. L. 88–577) directs the Service to system, and shall be allowed when for the Pecos assiminea. This ‘‘maintain wilderness as a naturally compatible with the refuge purpose; and designation is approximately 6.7 ha functioning ecosystem’’ on portions of (3) other uses have lower priority in the (16.5 ac) of aquatic and neighboring the Refuge. While the BLNWR was refuge system and are only allowed if upland habitat. The site is private land originally established to save wetlands not in conflict with any of the priority managed as a nature preserve by TNC. vital to the perpetuation of migratory uses and determined appropriate and birds, the isolated gypsum springs, compatible with the refuge purpose. Exclusions Under Section 3(5)(A) of the seeps, and associated wetlands The CCP must also be revised if the Act protected by the Refuge have been Secretary determines that conditions As we undertake the process of recognized as providing the last known that affect the refuge or planning unit designating critical habitat for a species, habitats in the world for several unique have changed significantly. In other we first evaluate lands defined by those species. Management emphasis of the words, a CCP must be followed once it

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46324 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

is approved, and regularly updated in habitat require consultation under both the survival and recovery of a response to environmental changes or section 7 of the Act. listed species in the wild by reducing new scientific information. Once consultation under section 7 of the reproduction, numbers, or The BLNWR has a Final CCP that was the Act is triggered, the process may distribution of that species (50 CFR approved in September 1998. The CCP conclude informally when the Service 402.02). ‘‘Destruction or adverse serves as a management tool to be used concurs in writing that the proposed modification of designated critical by the Refuge staff and its partners in Federal action is not likely to adversely habitat’’ for this species would include the preservation and restoration of the affect the listed species or its critical habitat alterations that appreciably ecosystem’s natural resources. The plan habitat. However, if the Service diminish the value of critical habitat by is intended to guide management determines through informal significantly affecting any of those decisions over the next 5 to 10 years and consultation that adverse impacts are physical or biological features that were sets forth strategies for achieving Refuge likely to occur, then formal consultation the basis for determining the habitat to goals and objectives within that is initiated. Formal consultation be critical. We are currently reviewing timeframe. Key goals of the CCP related concludes with a biological opinion the regulatory definition of adverse to these four invertebrates include the issued by the Service on whether the modification in relation to the following: (1) To restore, enhance and proposed Federal action is likely to conservation of the species. protect the natural diversity on the jeopardize the continued existence of a If we issue a biological opinion BLNWR including threatened and listed species or result in destruction or concluding that a project is likely to endangered species by (a) appropriate adverse modification of critical habitat, result in the destruction or adverse management of habitat and wildlife with separate analyses being made modification of critical habitat, we also resources on refuge lands and (b) by under both the jeopardy and the adverse provide ‘‘reasonable and prudent strengthening existing and establishing modification standards. For critical alternatives’’ to the project, if any are new cooperative efforts with public and habitat, a biological opinion that identifiable. Reasonable and prudent private stakeholders and partners, and concludes in a determination of no alternatives are defined at 50 CFR (2) To restore and maintain selected destruction or adverse modification may 402.02 as alternative actions identified portions of a hydrological system that contain discretionary conservation during consultation that can be more closely mimics the natural recommendations to minimize adverse implemented in a manner consistent processes along the reach of the Pecos effects to primary constituent elements, with the intended purpose of the action, River adjacent to the BLNWR by: (a) but it would not contain any mandatory that are consistent with the scope of the restoration of the river channel, as well reasonable and prudent measures or Federal agency’s legal authority and as restoration of threatened, endangered, terms and conditions. Mandatory jurisdiction, that are economically and technologically feasible, and that the and special concern species; and (b) reasonable and prudent alternatives to Service’s Regional Director believes control of exotic species and manage the proposed Federal action would only would avoid the likelihood of trust responsibilities for maintenance of be issued when the biological opinion jeopardizing the continued existence of plant and animal communities and to results in a jeopardy or adverse listed species or resulting in the satisfy traditional recreational demands. modification conclusion. destruction or adverse modification of Specific objectives related to these goals The designation of critical habitat critical habitat. Reasonable and prudent include: (1) The restoration of does not imply that lands outside of alternatives can vary from slight project populations of aquatic species critical habitat do not play an important modifications to extensive redesign or designated as endangered, threatened, role in the conservation of these four invertebrate species. Federal activities relocation of the project. Costs or of special concern to a sustainable associated with implementing a level (aquatic species in these categories that may affect those unprotected areas (such as groundwater pumping, oil and reasonable and prudent alternative are include the four invertebrates), and (2) similarly variable. the monitoring of wildlife populations, gas activities, and livestock grazing, etc.) outside of critical habitat are still Activities on Federal lands that may including endemic snails. affect the four invertebrates or their subject to review under section 7 of the As explained in detail above, we habitat will require consultation Act if they may affect these species. The believe that BLNWR lands are already pursuant to section 7 of the Act. prohibitions of section 9 of the Act (e.g., managed for the conservation of wildlife Activities on State or private lands harm, harass, capture) also continue to and special management considerations requiring a permit from a Federal apply both inside and outside of or protections are not required. agency, such as a permit from the U.S. designated critical habitat. Therefore, these lands do not meet the Army Corps of Engineers, or some other definition of critical habitat, and we are Effect of Critical Habitat Designation Federal action, including funding, will not designating critical habitat for the continue to be subject to the section 7 Section 7 Consultation four invertebrate species within consultation process. Federal actions BLNWR. Section 7(a)(2) of the Act requires not affecting listed species or critical Critical habitat receives protection Federal agencies, including us, to insure habitat, and actions on non-Federal from destruction or adverse that their actions are not likely to lands that are not federally funded, modification through required jeopardize the continued existence of a authorized, or permitted, do not require consultation under section 7 of the Act. listed species or result in the section 7 consultations. The section 7 consultation process is destruction or adverse modification of Section 4(b)(8) of the Act requires us triggered when a Federal agency designated critical habitat. This to evaluate briefly and describe, in any determines that its proposed Federal requirement is met through section 7 proposed or final regulation that action (i.e., an action that it funds, consultation under the Act. Our designates critical habitat, those carries out, or authorizes) may affect a regulations define ‘‘jeopardize the activities involving a Federal action that listed species or its critical habitat. continued existence of’’ as to engage in may adversely modify such habitat or Thus, the principal benefit of any an action that reasonably would be that may be affected by such designated critical habitat is that expected, directly or indirectly, to designation. Activities that may destroy Federal activities that may affect critical reduce appreciably the likelihood of or adversely modify critical habitat

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46325

include those that alter the primary Development’s Small Cities Community framework for agencies to coordinate constituent elements to an extent that Development Block Grant and home their recovery efforts. The plan will set the value of critical habitat for both the loan programs. recovery priorities and estimate the survival and recovery of the Pecos costs of the tasks necessary to Available Conservation Measures assiminea is appreciably reduced. We accomplish the priorities. It also will note that such activities may also Conservation measures provided to describe the site-specific actions jeopardize the continued existence of species listed as endangered or necessary to achieve conservation and the species. Activities that, when threatened under the Act include survival of the species. carried out, funded, or authorized by a recognition, recovery actions, Listing also will require us to review Federal agency that may affect the Pecos requirements for Federal protection, and any actions that may affect the four assiminea and may require consultation prohibitions against certain practices. invertebrates for lands and activities under section 7 of the Act to determine Recognition through listing encourages under Federal jurisdiction, State plans if they adversely modify critical habitat and results in conservation actions by developed pursuant to section 6 of the include, but are not limited to: Federal, State, and private agencies, Act, scientific investigations of efforts to (1) Any activity that would groups, and individuals. The Act enhance the propagation or survival of significantly alter the source-water provides for possible land acquisition the animal pursuant to section capture zone, subterranean flows, or and cooperation with the States and 10(a)(1)(A) of the Act, and habitat water level of the supporting aquifers authorizes recovery plans for all listed conservation plans prepared for non- (groundwater pumping), including any species. The protection required of Federal lands and activities pursuant to activity that would significantly alter Federal agencies and the prohibitions section 10(a)(1)(B) of the Act. the water chemistry, water quality, or against certain activities involving listed Federal agencies with management physical parameters (e.g., temperature, animals are discussed in the ‘‘Effect of responsibility for the four invertebrates pH, contaminants), or wastewater or Critical Habitat Designation’’ section include the Service, in relation to the point-source discharge permits in the above. issuance of section 10(a)(1)(A) and (B) wetland habitats and systems that could Section 7(a) of the Act, as amended, permits for scientific research, habitat appreciably diminish the primary requires Federal agencies to evaluate conservation plans, BLNWR constituent elements where this species their actions with respect to any species management and maintenance, and occurs; that is proposed to be listed or is listed other programs. (2) Any activity that would introduce, as endangered or threatened, and with The Act and implementing spread, or augment non-native aquatic respect to its critical habitat, if any is regulations found at 50 CFR 17.21 set predators or competitors, or non-native being designated. Regulations forth a series of general prohibitions and species that negatively alter Pecos implementing this interagency exceptions that apply to all endangered assiminea habitat or primary constituent cooperation provision of the Act are wildlife. These prohibitions, in part, elements: this would include the codified at 50 CFR part 402. Federal make it illegal for any person subject to introduction of non-native species agencies are required to confer with us the jurisdiction of the United States to through contaminated sampling gear, informally on any action that is likely to take (includes harass, harm, pursue, bait-bucket introductions of non-native jeopardize the continued existence of a hunt, shoot, wound, kill, trap, or collect, fishes, or the release of aquarium proposed species, or result in or to attempt any of these), import or species (fish, aquatic snails, and aquatic destruction or adverse modification of export, ship in interstate commerce in plants) from uninformed members of the proposed critical habitat. If a species is the course of commercial activity, or sell public; or listed subsequently, section 7(a)(2) or offer for sale in interstate or foreign (3) Any activity that would requires Federal agencies to ensure that commerce any listed species. It also is detrimentally alter the habitat for Pecos activities they authorize, fund, or carry illegal to possess, sell, deliver, carry, assiminea. This would include water out are not likely to jeopardize the transport, or ship any such wildlife that diversion, drainage alteration projects, continued existence of such a species or has been taken illegally. Certain road construction, construction of to destroy or adversely modify its exceptions apply to agents of the U.S. public and private facilities, or ponding critical habitat. If a Federal agency Fish and Wildlife Service and State of spring runs. action may affect a listed species or its conservation agencies. Specific examples of Federal activities critical habitat, the responsible Federal Permits may be issued to carry out include, but are not limited to, EPA agency must enter into formal otherwise prohibited activities authorization of discharges under the consultation with us. Federal agency involving endangered wildlife species National Pollutant Discharge actions that may affect the four under certain circumstances. Elimination System and registration of invertebrates throughout their range and Regulations governing permits are at 50 pesticides; Federal Highway may require consultation with us CFR 17.22 and 17.23. Such permits are Administration approval or funding of include, but are not limited to, oil and available for scientific purposes, to road or highway infrastructure and gas development, irrigated agricultural enhance the propagation or survival of maintenance; BLM issuance of oil and and livestock activities, residential and the species, or for incidental take in the gas leases or permits; U.S. Army Corps commercial development, non-native course of otherwise lawful activities. of Engineers authorization of discharges vegetation control, fire suppression, Pursuant to the Interagency of dredged or fill material into waters of controlled burns, water control Cooperative Policy for Endangered the United States under section 404 of structures, and habitat enhancement Species Act Section 9 Prohibitions, the Clean Water Act; USDA-Natural projects. published in the Federal Register on Resources Conservation Service Listing the four invertebrates provides July 1, 1994 (59 FR 34272), we identify technical assistance and other programs; for the development and to the maximum extent practicable USDA-Rural Utilities Service implementation of a rangewide recovery those activities that would or would not infrastructure or development; Federal plan. This plan will bring together constitute a violation of section 9 of the Energy Regulatory Commission Federal, State, and local agency efforts Act. The intent of this policy is to permitting activities; and the for the conservation of these species. A increase public awareness as to the Department of Housing and Urban recovery plan will establish a effects of this listing on future and

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46326 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

ongoing activities within the species’ drainage water or aquifer water quality determination. We may exclude areas range. We believe, based on the best that supports the habitat occupied by from critical habitat upon a available information that the following these species; determination that the benefits of such actions will not result in a violation of (5) Septic tank placement and use exclusions outweigh the benefits of the provisions of section 9 of the Act, where the groundwater is connected to specifying such areas as critical habitat. provided these actions are carried out in sinkhole or other aquatic habitats We cannot exclude such areas from accordance with existing regulations occupied by these species; critical habitat when such exclusion and permit requirements: (6) Unauthorized discharges or will result in the extinction of the (1) Possession, delivery, or movement, dumping of toxic chemicals, silt, or species. including interstate transport that does other pollutants into, or other illegal A draft analysis of the economic not involve commercial activity, of alteration of the areas supporting effects of the proposed critical habitat specimens of these species that were Roswell springsnail, Koster’s designation was prepared and made legally acquired prior to the publication springsnail, Noel’s amphipod, and available for public review (70 FR in the Federal Register of the Federal Pecos assiminea that results in death or 23083; May 4, 2005). The economic List of Endangered and Threatened injury of the species or that results in analysis considers the economic Wildlife and Plants; degradation of their occupied habitat to impacts of conservation measures taken (2) Oil and gas exploration and an extent that individuals are killed or prior to and subsequent to the final drilling in areas where surface or injured or essential behaviors such as listing and designation of critical habitat groundwater is not connected to breeding, feeding, and sheltering are for the four invertebrates. Pre- habitats occupied by the Roswell impaired; and designation impacts are typically springsnail, Koster’s springsnail, Pecos (7) Destruction or alteration of the defined as all management efforts that assiminea, and Noel’s amphipod; and Roswell springsnail, Koster’s have occurred since the time of listing. (3) Any actions that may affect the springsnail, Noel’s amphipod, and The four invertebrates have not been Roswell springsnail, Koster’s Pecos assiminea occupied habitat listed, but were proposed for listing in springsnail, Noel’s amphipod, and through discharge of fill materials into February 2002 (67 FR 6459). Total post- Pecos assiminea that are authorized, occupied sites; draining, ditching, designation costs associated with funded, or carried out by a Federal tilling, channelization, drilling, proposed critical habitat Units 3 and 4 agency (e.g., prescribed burns, pumping, or other activities that for the Pecos assiminea on TNC lands in pesticide/herbicide application, interrupt surface or ground water flow Texas are estimated to be $707,000 over pipeline construction crossing suitable into or out of the spring complexes, and the next 20 years (Service 2005a). habitat, oil and gas development or occupied habitats of these species that Estimated costs include creating a results in killing or injuring these extraction activities), when the action is conservation plan to formally assess species by significantly impairing conducted in accordance with the conservation elements and future essential life-sustaining requirements consultation requirements for listed management actions within proposed such as breeding, feeding, and shelter. species pursuant to section 7 of the Act. critical habitat Units 3 and 4. If you have questions regarding Potential activities involving these Additionally, future costs to oil and gas whether specific activities will likely species that we believe will likely be activities within proposed Unit 3 are violate the provisions of section 9 of the considered a violation of section 9 anticipated to be related to continued Act, contact the New Mexico Ecological include, but are not limited to, the partnership projects between TNC and Services Field Office (see ADDRESSES following: regional oil and gas companies. section). For Pecos assiminea in Texas, (1) Unauthorized possession, Based upon these estimates, we contact the Austin Ecological Services collecting, trapping, capturing, killing, conclude in the final analysis, which Field Office, 10711 Burnet Road, Suite harassing, sale, delivery, or movement, reviewed and incorporated public 200, Austin, Texas 78758 (512/490– including interstate, and foreign comments, that no significant economic 0057). Requests for copies of the commerce, or harming, or attempting impacts (i.e., will not have annual effect regulations on listed wildlife and any of these actions, of the Roswell on the economy of $100 million or more inquiries about prohibitions and permits springsnail, Koster’s springsnail, Noel’s or affect the economy in a material way may be addressed to the U.S. Fish and amphipod, and Pecos assiminea. discussed further in the ‘‘Required Wildlife Service, Division of Research activities where these species Determinations’’ section below) are Endangered Species, P.O. Box 1306, are trapped or captured will require a expected from the designation of critical Albuquerque, New Mexico 87103 permit under section 10(a)(1)(A) of the habitat for Pecos assiminea. A copy of (telephone 505/248–6920; facsimile Act; the economic analysis is included in our (2) The use of chemical insecticides or 505/248–6788). supporting record and may be obtained herbicides that results in killing or Economic Analysis by contacting the New Mexico injuring these species; (3) Intentional release of exotic Section 4(b)(2) of the Act requires us Ecological Services Field Office (see species (including, but not limited to, to designate critical habitat on the basis ADDRESSES section) or from our Web site mosquitofish, crayfish, or non-native of the best scientific and commercial http://ifw2es.fws.gov/. snails) into habitat currently occupied data available and to consider the Required Determinations by the Roswell springsnail, Koster’s economic impact, impact to national springsnail, Noel’s amphipod, and security, and other relevant impacts of Regulatory Planning and Review Pecos assiminea; designating a particular area as critical In accordance with Executive Order (4) Within the 12,585 ac (5,093 ha) of habitat. We based this designation on 12866, this document is a significant the Federal mineral estate and 9,945 ac the best available scientific information. rule because it may raise novel legal and (4,025 ha) habitat protection zone in We utilized the economic analysis, and policy issues. However, based on our New Mexico (e.g., BLM 2002, Balleau et took into consideration comments and final economic analysis, it is not al. 1999), subsurface drilling or similar information submitted during the public anticipated that the designation of activities that contaminate or cause hearing and comment periods to make critical habitat for the four invertebrate significant degradation of surface this final listing and critical habitat species will result in an annual effect on

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46327

the economy of $100 million or more or independent nonprofit organizations modifications to oil and gas production affect the economy in a material way. and small governmental jurisdictions, in Texas and therefore no impacts to Due to the timeline for publication in including school boards and city and small businesses are quantified. This is the Federal Register, the Office of town governments that serve fewer than due to the fact that Unit 3 is owned and Management and Budget (OMB) has not 50,000 residents, as well as small managed by TNC. TNC manages this formally reviewed the final rule or businesses (13 CFR 121.201). Small area as a preserve for long term habitat accompanying economic analysis. businesses include manufacturing and conservation and protection of the Further, Executive Order 12866 mining concerns with fewer than 500 functional integrity of surface water directs Federal Agencies promulgating employees, wholesale trade entities systems to benefit rare aquatic species regulations to evaluate regulatory with fewer than 100 employees, retail and communities within the preserves. alternatives (Office of Management and and service businesses with less than $5 TNC does not own the mineral rights at Budget, Circular A–4, September 17, million in annual sales, general and Unit 3. However, the companies that 2003). Pursuant to Circular A–4, once it heavy construction businesses with less own or lease these rights have generally has been determined that the Federal than $27.5 million in annual business, worked voluntarily with TNC to protect regulatory action is appropriate, then special trade contractors doing less than these lands. The economic analysis the agency will need to consider $11.5 million in annual business, and finds that future costs to oil and gas alternative regulatory approaches. Since agricultural businesses with annual activities within Unit 3 are anticipated the determination of critical habitat is a sales less than $750,000. To determine to be related to continued partnership statutory requirement pursuant to the if potential economic impacts to these projects between TNC and regional oil Endangered Species Act of 1973, as small entities are significant, we and gas companies. There may also be amended (Act) (16 U.S.C. 1531 et seq.), considered the types of activities that a potential for costs associated with an we must then evaluate alternative might trigger regulatory impacts under incidental take permit and Habitat regulatory approaches, where feasible, this designation as well as types of Conservation Plan under section 10 of when promulgating a designation of project modifications that may result. In the Act. However, the economic critical habitat. general, the term significant economic analysis finds that the potential for that In developing our designations of impact is meant to apply to a typical occurrence is unknown. critical habitat, we consider economic small business firm’s business There has been one section 7 impacts, impacts to national security, operations. consultation on an oil and gas project and other relevant impacts pursuant to Activities anticipated to occur within with Federal involvement in the vicinity section 4(b)(2) of the Act. Based on the the next 20 years within or adjacent to of habitats occupied by the four discretion allowable under this critical habitat for the Pecos assiminea invertebrates. This was an informal provision, we may exclude any that potentially effect small businesses consultation in 2004 regarding proposed particular area from the designation of include: oil and gas production, abandonment of 58 miles of pipeline in critical habitat providing that the irrigated agricultural production, and Winkler, Ward, Reeves, and Pecos benefits of such exclusion outweighs the livestock operations. counties, Texas (Service 2004b). The benefits of specifying the area as critical With regard to livestock operations proposed project involved permitting by habitat and that such exclusion would the economic analysis finds that the Federal Energy Regulatory not result in the extinction of the confined animal feeding facilities do not Commission. It was determined that the species. As such, we believe that the occur in Pecos or Reeves Counties, proposed action would not have any evaluation of the inclusion or exclusion Texas, within 60 miles of the critical affect on any of the four invertebrate of particular areas, or combination habitat designation. As such, the species or any co-occurring, listed, thereof, in a designation constitutes our analysis does not anticipate impacts to aquatic taxa such as Leon Springs regulatory alternative analysis. small entities within the livestock pupfish. There were no conservation industry in these counties. recommendations made by the Service Regulatory Flexibility Act (5 U.S.C. 601 Agricultural production dependent on regarding protection of aquatic habitats et seq.) groundwater irrigation occurs within in this consultation. Based upon this Under the Regulatory Flexibility Act, Pecos and Reeves Counties, Texas. The and other information presented in the 5 U.S.C. 601 et seq., as amended by the analysis assumes that all farms draft economic analysis and draft Small Business Regulatory Enforcement operating within the regions are small environmental assessment, we do not Act, (SBREFA) 5 U.S.C. 802 (2), entities. Within Texas, further anticipate economic costs to small whenever an agency is required to hydrological studies are necessary to businesses in this industry. Therefore, publish a notice of rulemaking for any determine the impact of groundwater we have considered whether this rule proposed or final rule, it must prepare pumping on surface and groundwater would result in a significant economic and make available for public comment levels to designated critical habitat. As effect on a substantial number of small a regulatory flexibility analysis that a result, groundwater withdrawal entities. We have concluded that this describes the effect of the rule on small activities for agricultural production are final designation of critical habitat for entities (i.e., small businesses, small unlikely to change as a result of the the Pecos assiminea would not affect a organizations, and small government presence of the Pecos assiminea. Thus, substantial number of small entities. jurisdictions). However, no regulatory no impacts to small entities within the Therefore, we are certifying that the flexibility analysis is required if the irrigated agricultural industry are designation of critical habitat for the head of an agency certifies the rule will expected. Pecos assiminea will not have a not have a significant economic impact Oil and gas drilling occurs on private significant economic impact on a on a substantial number of small lands outside of critical habitat Unit 3 substantial number of small entities, entities. Our economic analysis of the (Diamond Y Springs Complex) in Texas. and a final regulatory flexibility analysis proposed designation provides the The economic analysis finds that while is not required. factual basis for our determination. oil and gas activities may present water According to the Small Business quality issues, they are not considered Executive Order 13211 Administration (SBA), small entities a threat to groundwater levels in the On May 18, 2001, the President issued include small organizations, such as region. The analysis does not forecast Executive Order (E.O.) 13211 on

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46328 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

regulations that significantly affect accordingly. (At the time of enactment, Federalism energy supply, distribution, and use. these entitlement programs were: In accordance with Executive Order E.O. 13211 requires agencies to prepare Medicaid; AFDC work programs; Child 13132, this rule does not have Statements of Energy Effects when Nutrition; Food Stamps; Social Services significant Federalism effects. A undertaking certain actions. This final Block Grants; Vocational Rehabilitation Federalism assessment is not required. rule is considered a significant State Grants; Foster Care, Adoption In keeping with Department of the regulatory action under E.O. 12866 due Assistance, and Independent Living; Interior policy, the Service requested to it potentially raising novel legal and Family Support Welfare Services; and information from, and coordinated policy issues, but the economic analysis Child Support Enforcement.) ‘‘Federal development of this critical habitat finds that the oil and gas industry is not private sector mandate’’ includes a designation with, appropriate State likely to experience ‘‘a significant regulation that ‘‘would impose an resource agencies in New Mexico and adverse effect’’ as a result of enforceable duty upon the private Texas. The impact of the designation on conservation efforts for the four sector, except (i) a condition of Federal State and local governments and their invertebrates. Appendix A of the draft assistance; or (ii) a duty arising from activities was fully considered in the economic analysis provides a detailed participation in a voluntary Federal economic analysis. As discussed above, discussion and analysis of this program.’’ the designation of critical habitat for the determination. Specifically, two criteria The designation of critical habitat Pecos assiminea would have little were determined to be relevant to this does not impose a legally binding duty incremental impact on State and local analysis: (1) Reductions in natural gas on non-Federal government entities or governments and their activities. In fact, production in excess of 25 million mcf private parties. Under the Act, the only the designation of critical habitat may per year, and (2) increases in the cost of regulatory effect is that Federal agencies have some benefit to the State and local energy production in excess of one must ensure that their actions do not resource agencies in that the areas percent. Impacts to ongoing oil and gas destroy or adversely modify critical essential to the conservation of this production in Pecos County, Texas, are habitat under section 7. While non- species are more clearly defined, and not forecast as it is unclear whether Federal entities who receive Federal the primary constituent elements of the these activities will require conservation funding, assistance, permits or habitat necessary to the conservation of efforts for the Pecos assiminea. As otherwise require approval or this species are specifically identified. described in Section 4.2.1 of the authorization from a Federal agency for Civil Justice Reform economic analysis and above, while oil an action may be indirectly impacted by and gas activities in this region may the designation of critical habitat, the In accordance with Executive Order affect groundwater quality, they are not legally binding duty to avoid 12988, the Office of the Solicitor has anticipated to affect groundwater levels. destruction or adverse modification of determined that the rule does not Unfunded Mandates Reform Act (2 critical habitat rests squarely on the unduly burden the judicial system and U.S.C. 1501 et seq.) Federal agency. Furthermore, to the that it meets the requirements of extent that non-Federal entities are sections 3(a) and 3(b)(2) of the Order. In accordance with the Unfunded We are designating critical habitat in Mandates Reform Act (2 U.S.C. 1501), indirectly impacted because they receive Federal assistance or participate accordance with the provisions of the the Service makes the following Act, as amended. This rule uses findings: in a voluntary Federal aid program, the Unfunded Mandates Reform Act would standard property descriptions and (a) This rule will not produce a identifies the primary constituent Federal mandate. In general, a Federal not apply; nor would critical habitat shift the costs of the large entitlement elements within the designated areas to mandate is a provision in legislation, assist the public in understanding the statute or regulation that would impose programs listed above on to State governments. habitat needs that are essential for the an enforceable duty upon State, local, or conservation of the Pecos assiminea. Tribal governments, or the private sector (b) We do not believe that this rule and includes both ‘‘Federal will significantly or uniquely affect Paperwork Reduction Act of 1995 (44 intergovernmental mandates’’ and small governments. This determination U.S.C. 3501 et seq.) ‘‘Federal private sector mandates.’’ is based on information from the This rule does not contain new or These terms are defined in 2 U.S.C. economic analysis conducted for this revised information collection for which 658(5)–(7). ‘‘Federal intergovernmental designation of critical habitat for the Office of Management and Budget mandate’’ includes a regulation that Pecos assiminea and the fact that critical approval is required under the ‘‘would impose an enforceable duty habitat is only being designated on TNC Paperwork Reduction Act. An agency upon State, local, or Tribal lands. As such, a Small Government may not conduct or sponsor, and a governments’’ with two exceptions. It Agency Plan is not required. person is not required to respond to, a excludes ‘‘a condition of Federal Takings collection of information unless it assistance.’’ It also excludes ‘‘a duty displays a currently valid OMB control arising from participation in a voluntary In accordance with Executive Order number. Federal program,’’ unless the regulation 12630 (‘‘Government Actions and ‘‘relates to a then-existing Federal Interference with Constitutionally National Environmental Policy Act program under which $500,000,000 or Protected Private Property Rights’’), we It is our position that, outside the more is provided annually to State, have analyzed the potential takings Tenth Circuit, we do not need to local, and Tribal governments under implications of proposing critical prepare environmental analyses as entitlement authority,’’ if the provision habitat for the Pecos assiminea in a defined by the NEPA in connection with would ‘‘increase the stringency of takings implications assessment. The designating critical habitat under the conditions of assistance’’ or ‘‘place caps takings implications assessment Act. We published a notice outlining upon, or otherwise decrease, the Federal concludes that the designation of our reasons for this determination in the Government’s responsibility to provide critical habitat for the Pecos assiminea Federal Register on October 25, 1983 funding’’ and the State, local, or Tribal does not pose significant takings (48 FR 49244). This assertion was governments ‘‘lack authority’’ to adjust implications. upheld in the courts of the Ninth Circuit

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46329

[(Douglas County v. Babbitt, 48 F.3d a species proposed for listing under the List of Subjects in 50 CFR Part 17 1495 (9th Cir. Ore. 1995), cert. denied Act, then meaningful government-to- Endangered and threatened species, 116 S. Ct. 698 (1996).] However, when government consultation will occur to Exports, Imports, Reporting and the range of the species includes States try to harmonize the Federal trust recordkeeping requirements, within the Tenth Circuit, such as that of responsibility to tribes and tribal Transportation. the four invertebrates, pursuant to the sovereignty with our statutory Tenth Circuit ruling in Catron County responsibilities under the Act. The Regulation Promulgation Board of Commissioners v. U.S. Fish Secretarial Order also requires us to I Accordingly, we amend part 17, and Wildlife Service, 75 F.3d 1429 (10th consult with tribes if the designation of subchapter B of chapter I, title 50 of the Cir. 1996), we undertake a NEPA an area as critical habitat might impact Code of Federal Regulations, as set forth analysis for critical habitat designation. tribal trust resources, tribally owned fee below: We completed an environmental lands, or the exercise of tribal rights. assessment and finding of no significant However, no known tribal activities PART 17—[AMENDED] impact on the designation of critical could cause either direct or incidental habitat for the Pecos assiminea. I 1. The authority citation for part 17 take of the four species in this final rule, continues to read as follows: Secretarial Order 3206: American and no tribal lands or tribal trust Indian Tribal Rights, Federal-Tribal resources are anticipated to be affected Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Trust Responsibilities, and the by the designation of critical habitat. 625, 100 Stat. 3500; unless otherwise noted. Endangered Species Act References Cited I 2. Amend § 17.11(h) as follows: The purpose of Secretarial Order 3206 I a. Add Pecos assiminea, Koster’s (Secretarial Order) is to ‘‘clarif(y) the A complete list of all references cited in this rulemaking is available upon springsnail, and Roswell springsnail in responsibilities of the component alphabetical order under ‘‘SNAILS;’’ and request from the New Mexico Ecological agencies, bureaus, and offices of the I b. Add Noel’s amphipod in Services Field Office (see ADDRESSES Department of the Interior and the alphabetical order under section). Department of Commerce, when actions ‘‘CRUSTACEANS,’’ to the List of taken under authority of the Act and Author Endangered and Threatened Wildlife to associated implementing regulations read as follows: affect, or may affect, Indian lands, tribal The primary authors of this rule are trust resources, or the exercise of the New Mexico Ecological Services § 17.11 Endangered and threatened wildlife. American Indian tribal rights.’’ If there Field Office staff (see ADDRESSES is potential that a tribal activity could section) (telephone 505/346–2525). * * * * * cause either direct or incidental take of (h) * * *

Species Vertebrate population where en- When Critical Special Historic Range dangered Status listed habitat rules Common name Scientific name or threat- ened

******* SNAILS

******* Pecos assiminea ...... Assiminea pecos ...... U.S.A. (NM, TX) ...... NA E 17.95(f) NA

******* Springsnail, Koster’s ... Juturnia kosteria ...... U.S.A. (NM) ...... NA E NA NA Springsnail, Roswell ... Pyrgulopsis U.S.A. (NM) ...... NA E NA NA roswellensis. CRUSTACEANS

******* Amphipod, Noel’s ...... Gammarus desperatus U.S.A. (NM) ...... NA E NA NA

*******

I 3. Amend § 17.95 (f) by adding critical 1. Within the areas designated below aquatic or very wet environment, such habitat for Pecos assiminea in the same as critical habitat, the primary as salt grass or sedges; and order as this species occurs in § 17.11(h). constituent elements for Pecos (iii) Stable water levels with natural assiminea include: diurnal and seasonal variation. § 17.95 Critical habitat—fish and wildlife. (i) Permanent, flowing, unpolluted, 2. Critical habitat is depicted for the * * * * * fresh to moderately saline water; Pecos assiminea in Pecos County, Texas, (f) Clams and snails. (ii) Moist or saturated soil at stream or at the Diamond Y Springs Complex. The * * * * * spring run margins with native designation includes the Diamond Y Pecos assiminea (Assiminea pecos) vegetation growing in or adapted to Spring, which is located at UTM 13– 698261 E, 3431372 N, and 6.8 km (4.2

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46330 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

mi) of its outflow, ending at UTM 13– 31.030835296062797; 31.006114116159939; 701832 E, 3436112 N, about 0.8 km (0.5 ¥102.896058768051944, ¥102.920933820519480, mi) downstream of the State Highway 31.030036256911551; 31.004649359449264; 18 bridge crossing. Also included is 0.8 ¥102.898010410716566, ¥102.921603523207537, km (0.5 mi) of Leon Creek upstream of 31.029070675153459; 31.004280181687651; the confluence with Diamond Y Draw. ¥102.898781252646117, ¥102.921961044126064, All surrounding riparian vegetation and 31.029130733495535; 31.003051041389284; mesic soil environments within the ¥102.899944293890798, ¥102.922105288280434, spring outflow and portion of Leon 31.028912200684612; 31.001485991578242; Creek are also designated as these areas ¥102.900716178554276, ¥102.923062919493049, are considered habitat for the Pecos 31.028924768711160; 31.000551488397821; assiminea. Critical habitat is also ¥102.901441262661692, ¥102.924338893382782, depicted for the Pecos assiminea in 31.028556604651808; 31.000192054013731; Reeves County, Texas, at the East ¥102.901948928625941, ¥102.925434072210962, Sandia Spring complex. East Sandia 31.028042412007075; 31.000542142822137; Spring is located at UTM 13–621366 E, ¥102.901688880906221, ¥102.925748330937964, 342929 N. Critical habitat includes the 31.027325744767865; 31.001307135185360; springhead itself, surrounding seeps, ¥102.901714918210303, ¥102.925543882342382, and all submergent vegetation and moist 31.026138774702297; 31.003108703491051; soil habitat found at the margins of ¥102.901732622700223, ¥102.924514657475115, these areas. These areas are considered 31.025331634924694; 31.004802011677008; habitat for the Pecos assiminea. ¥102.901817954640350, ¥102.923332386691257, (i) Pecos County, Texas, including the 31.023955646131167; 31.005922892971402; Diamond Y Springs Complex, located at ¥102.902125889274174, ¥102.922655466250575, longitude –102.923461 and latitude 31.022488286611136; 31.006624436236699; 30.999271, and approximately 6.8 km ¥102.902640803335373, ¥102.921313967399342, (4.2 mi) of the spring outflow ending at 31.021641737279424; 31.007457756682811; about 0.8 km (0.5 mi) downstream of the ¥102.903610272253857, ¥102.921298502243019, State Highway 18 bridge crossing 31.020185129479138; 31.008169949149053; (approximately longitude –102.885137 ¥102.903508335417825, ¥102.921890429628803, and latitude 31.041405). Also included 31.019803505987209; 31.008844431891216; is approximately 0.8 km (0.5 mi) of Leon ¥102.904231258688768, ¥102.922088249987723, Creek upstream of the confluence with 31.019530280313123; 31.009892533060658; Diamond Y Draw. All surrounding ¥102.905008267695379, ¥102.920305700167233, riparian vegetation and mesic soil 31.019305424852949; 31.010718735844538; environments within the spring, ¥102.905627160458280, ¥102.918990962464960, outflow, and portion of Leon Creek are 31.018745526192433; 31.010317563552466; also proposed for designation as these ¥102.905862223627835, ¥102.917661775715189, areas are considered habitat for the 31.018084401107885; 31.010581089582509; Pecos assiminea. Legal description ¥102.907438011441329, ¥102.915939472406691, (geographic projection, North American 31.016637604571564; 31.011170723093645; Datum 83): Longitude (decimal degrees), ¥102.908402165790250, ¥102.915640066348502, Latitude (decimal degrees): 31.015418349965021; 31.012258293740160; ¥102.905319869746634, ¥102.909312205831228, ¥102.915233503111892, 31.022089444891570; 31.014150714293240; 31.013201643466406; ¥102.887036917654868, ¥102.909665778900688, ¥102.914004171668253, 31.043947412173729; 31.013111534294385; 31.013941704157816; ¥102.884194716234887, ¥102.910342839052220, ¥102.912955733451284, 31.042760908977833; 31.012410065631975; 31.013972240169043; ¥102.885135806784476, ¥102.911174902560035, ¥102.912389969275623, 31.040116604685526; 31.012186062876218; 31.014628028040637; ¥102.886447071974004, ¥102.912113070098556, ¥102.912099833183859, 31.038190792077721; 31.012153756020012; 31.015288275173923; ¥102.886620885824385, ¥102.912844195573911, ¥102.912212159226485, 31.037813677269160; 31.011500644598044; 31.015195101507882; ¥102.890251036381329, ¥102.913370338091369, ¥102.910513768505638, 31.035783323856453; 31.010131773029197; 31.017209923999967; ¥102.892481680821120, ¥102.914161736135028, ¥102.908484529126227, 31.034679908957198; 31.009242148253836; 31.019219357013320; ¥102.893548121939546, ¥102.915610463748450, ¥102.906961764318297, 31.033842414359302; 31.008553125409257; 31.020762017382609; ¥102.893785401930572, ¥102.917106029547554, ¥102.906510334381181, 31.033086360646934; 31.008244810453860; 31.021229648922475; ¥102.893745950415067, ¥102.918875138268959, ¥102.906323124324715, 31.032373282069056; 31.008035883431738; 31.022224022537589; ¥102.894097678233564, ¥102.919664405186026, ¥102.905476410341578, 31.031429114358268; 31.007241180720893; 31.023112694758801; ¥102.895544792411911, ¥102.920460878479304, ¥102.904572468616138,

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46331

31.024095422710321; 31.036422464608236; for the Pecos assiminea. Legal ¥102.904098125726293, ¥102.892135869908444, description (geographic projection, 31.025607579972412; 31.037856459486278; North American Datum 83): Longitude ¥102.904512146691772, ¥102.890355694384951, (decimal degrees), Latitude (decimal 31.026849198511329; 31.038539777638526; degrees): –103.729296238487009, ¥102.904475741511831, ¥102.889015567482971, 30.990656960487129; 31.028510959127807; 31.039277771567470; –103.731179077171333, ¥102.903447935740203, ¥102.888427464446750, 30.989695620405591; 31.030109108839046; 31.040930483816535; –103.730160658036496, ¥102.901831302956197, ¥102.887036917654868, 30.991850361242875; 31.030890242225727; 31.043947412173729. –103.727182653076312, ¥102.900225068829968, (ii) Reeves County, Texas, at the East 30.992477028891606; 31.031196566903024; Sandia Spring complex. East Sandia –103.729159475230986, ¥102.897834397853146, Spring is located at longitude 30.988608062418542; 31.032060033587637; –103.728918, latitude 30.991012. The –103.731179077171333, ¥102.896823149655987, designation includes the springhead 30.989695620405591. 31.032898465556570; itself, surrounding seeps, and all 3. A map of the Diamond Y Springs ¥102.895449713462554, submergent vegetation and moist soil Complex and East Sandia Spring 31.035155846795476; habitat found at the margins of these Complex follows: ¥102.894484140543042, areas. These areas are considered habitat BILLING CODE 4310–55–P

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2 46332 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4725 E:\FR\FM\09AUR2.SGM 09AUR2 Er09au05.000 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules and Regulations 46333

Dated: August 1, 2005. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 05–15486 Filed 8–8–05; 8:45 am] BILLING CODE 4310–55–C

VerDate jul<14>2003 18:26 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\09AUR2.SGM 09AUR2