Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 665

231A to Morristown at Station DEPARTMENT OF THE INTERIOR springs and stream headwaters, have WMXK(FM)’s existing site at permanently or seasonally saturated coordinates North Latitude 36–13–40 Fish and Wildlife Service highly organic soils, and have a low and West Longitude 83–19–58; and probability of flooding or scouring 50 CFR Part 17 Channel 252A to Whitley City at Station (Hendrickson and Minckley 1984). WHAY(FM)’s existing site at North RIN 1018±AD11 Cienegas support diverse assemblages of Latitude 36–44–39 and West Longitude animals and plants, including many 84–28–37. Endangered and Threatened Wildlife species of limited distribution, such as and Plants; Determination of the three taxa addressed in this final This is a summary of the Endangered Status for Three Wetland rule (Hendrickson and Minckley 1984, Commission’s Memorandum Opinion Species Found in Southern Arizona Lowe 1985, Ohmart and Anderson 1982, and Order, MM Docket No. 93–28, and Northern Sonora, Mexico Minckley and Brown 1982). Although adopted December 13, 1996 and Spiranthes delitescens (Spiranthes), released December 20, 1996. The full AGENCY: Fish and Wildlife Service, Lilaeopsis schaffneriana spp. recurva text of this Commission decision is Interior. (Lilaeopsis), and the Sonora tiger available for inspection and copying ACTION: Final rule. salamander typically occupy different during normal business hours in microhabitats, they all occur or once SUMMARY: The Fish and Wildlife Service Commission’s Reference Center (Room occurred in cienegas. Lilaeopsis is also (Service) determines endangered status 239), 1919 M Street, NW., Washington, found along streams and rivers and for the Canelo Hills ladies-tresses occurs at mid-elevations, from 1,148– DC 20554. The complete text of this (Spiranthes delitescens), the Huachuca decision may also be purchased from 2,133 meters (m) (3,500–6,500 feet (ft)). water umbel (Lilaeopsis schaffneriana The Sonora tiger salamander occurs the Commission’s copy contractor, ssp. recurva), and the Sonora tiger International Transcription Services, mostly in cattle tanks and impounded salamander (Ambystoma tigrinum cienegas, but presumably was associated 2100 M Street, NW., Suite 140, stebbinsi) pursuant to the Endangered Washington, DC 20037, (202) 857–3800. primarily with natural cienegas and Species Act (Act) of 1973, as amended other wetlands prior to human List of Subjects in 47 CFR Part 73 (16 U.S.C. 1531 et seq.). These species settlement. occur in a limited number of wetland Cienegas, perennial streams, and Radio broadcasting. habitats in southern Arizona and rivers in the desert southwest are northern Sonora, Mexico. They are extremely rare. The Arizona Game and 47 CFR PART 73Ð[AMENDED] threatened by one or more of the Fish Department (AGFD)(1993) recently following—collecting, disease, estimated that riparian vegetation 1. The authority citation for Part 73 predation, competition with nonnative associated with perennial streams reads as follows: species, and degradation and comprises about 0.4 percent of the total Authority: Secs. 303, 48 Stat., as amended, destruction of habitat resulting from land area of Arizona, with present 1082; 47 U.S.C. 154, as amended. livestock overgrazing, water diversions, riparian areas being remnants of what dredging, and groundwater pumping. once existed. The State of Arizona § 73.202 [Amended] All three taxa also are threatened with (1990) estimated that up to 90 percent extirpations or extinction from naturally 2. Section 73.202(b), the Table of FM of the riparian habitat along Arizona’s occurring climatic and other Allotments, under Tennessee, is major desert watercourses has been lost, environmental events, such as degraded, or altered. Spiranthes, amended by removing Channel 290C3 at catastrophic floods and drought, a threat Lilaeopsis, and the Sonora tiger Colonial Heights and adding Channel that is exacerbated by habitat alteration salamander occupy small portions of 240C2; by removing Channel 231A at and small numbers of populations or these rare habitats. Tazewell and adding Channel 290A; individuals. This rule implements Spiranthes is a slender, erect, and by removing Channel 240A at Federal protection provided by the Act terrestrial orchid that, when in flower, Morristown and adding Channel 231A. for these three taxa. reaches approximately 50 centimeters 3. Section 73.202(b), the Table of FM EFFECTIVE DATE: February 5, 1997. (cm) (20 inches (in.)) tall. Five to 10, Allotments, under Kentucky, is ADDRESSES: The complete file for this linear-lanceolate, grass-like leaves, 18 amended by removing Channel 290A at rule is available for public inspection, cm (7.1 in.) long and 1.5 cm (0.6 in.) Whitley City and adding Channel 252A. by appointment, during normal business wide, grow basally on the stem. The fleshy, swollen roots are approximately Federal Communications Commission. hours at the U.S. Fish and Wildlife Service, 2321 West Royal Palm Road, 5 mm (0.2 in.) in diameter. The top of Douglas W. Webbink, Suite 103, Phoenix, Arizona 85021, the flower stalk contains up to 40 small Chief, Policy and Rules Division, Mass Media telephone (602/640–2720), or facsimile white flowers arranged in a spiral. This Bureau. (602/640–2730). species is presumed to be perennial, but [FR Doc. 97–171 Filed 1–3–97; 8:45 am] mature plants rarely flower in FOR FURTHER INFORMATION CONTACT: Jim BILLING CODE 6712±01±P consecutive years and, in some years, Rorabaugh or Angie Brooks (see have no visible above ground structures ADDRESSES section). (McClaran and Sundt 1992, Newman SUPPLEMENTARY INFORMATION: 1991). Martin first collected Spiranthes Background delitescens in 1968 at a site in Santa Cienegas in southern Arizona and Cruz County, Arizona (Sheviak 1990). northern Sonora, Mexico, are typically This specimen was initially identified mid-elevation wetland communities as Spiranthes graminea, a related often surrounded by relatively arid Mexican species. Sheviak (1990) found environments. These communities are that the Spiranthes specimens in usually associated with perennial Arizona, previously thought to be S. 666 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations graminea, displayed a distinct set of find in the dense herbaceous vegetation, Nine Lilaeopsis populations occur in morphological and cytological and yearly counts underestimate the the San Pedro River watershed in characteristics and named them S. population because dormant plants are Arizona and Sonora, on sites owned or delitescens. not counted. McClaran and Sundt managed by private landowners, Fort This species is known from five sites (1992) twice monitored marked Huachuca Military Reservation, the at about 1,525 m (5,000 ft.) elevation in individuals in a Spiranthes population Coronado National Forest, and the the San Pedro River watershed in Santa during 2–3 year periods. They Bureau of Land Management’s (BLM) Cruz and Cochise Counties, southern concluded that both monitored sites Tucson District. Two extirpated Arizona (Newman 1991). The total were stable between 1987 and 1989, populations in the upper San Pedro amount of occupied habitat is less than although Newman (1991) later reported watershed occurred at Zinn Pond in St. 81 hectares (ha) (200 acres (ac)). Four of that one monitored site was reduced to David and the San Pedro River near St. the populations are on private land less one nonflowering plant in 1991. Due to David. Cienega-like habitats were than 37 kilometers (km) (23 miles (mi)) the propensity of Spiranthes to enter probably common along the San Pedro north of the U.S./Mexico border; one and remain in a vegetation state and the River prior to 1900 (Hendrickson and additional small site containing four lack of new flowering plants at one Minckley 1984, Jackson et al. 1987), but individuals was discovered on public monitoring site, overall population these habitats are now largely gone. land in 1996 (Mima Falk, Coronado numbers are believed to be declining. Surveys conducted for wildlife habitat National Forest, pers. comm. 1996). This McClaran and Sundt (1992) also assessment have found several site is located near a previously known speculated that population numbers discontinuous clumps of Lilaeopsis population. Potential habitat in Sonora, may be declining. within the upper San Pedro River where Mexico, has been surveyed but no S. Lilaeopsis schaffneriana spp. recurva habitat was present in 1996 prior to delitescens populations have been is an herbaceous, semiaquatic perennial recent flooding (Mark Fredlake, Bureau found (Sheviak 1995, Newman 1991). plant with slender, erect leaves that of Land Management, pers. comm. The dominant vegetation associated grow from creeping rhizomes. The 1996). with Spiranthes includes grasses, sedges leaves are cylindrical, hollow with no The four Lilaeopsis populations in the (Carex spp.), rushes (Juncus spp.), spike pith, and have septa (thin partitions) at Santa Cruz watershed probably rush (Eleocharis spp.), cattails (Typha regular intervals. The yellow-green or represent very small remnants of larger spp.), and horsetails (Equisetum spp.) bright green leaves are generally 1–3 populations, which may have occurred (Cross 1991, Warren et al. 1991). millimeters (mm) (0.04–0.12 in.) in in the extensive riparian and aquatic Associated grass species include diameter and often 3–5 centimeters (cm) habitat formerly along the river. Before bluegrass (Poa pratensis), Johnson grass tall (1–2 in.), but can reach up to 20 cm 1890, the spatially intermittent, (sorghum halepense), Muhlenbergia (8 in.) tall under favorable conditions. perennial flows on the middle Santa asperifolia, and Muhlenbergia utilis Three to 10 very small flowers are borne Cruz River most likely provided a (Fishbein and Gori 1994). The on an umbel that is always shorter than considerable amount of habitat for surrounding vegetation is semidesert the leaves. The fruits are globose, 1.5– Lilaeopsis and other aquatic plants. The grassland or oak savannah. 2 mm (0.06–0.08 in.) in diameter, and middle section of the Santa Cruz River All Spiranthes populations occur usually slightly longer than wide mainstem is about a 130 km (80 mi) where scouring floods are very unlikely (Affolter 1985). The species reproduces reach that flowed perennially from the (Newman 1991). Soils supporting the sexually through flowering and Tubac area south to the U.S./Mexico populations are finely grained, highly asexually from rhizomes, the latter border and intermittently from Tubac organic, and seasonally or perennially probably being the primary reproductive north to the Tucson area (Davis 1986). saturated. Springs are the primary water mode. An additional dispersal Davis (1982) quotes from the July 1855, source, but a creek near one locality opportunity occurs as a result of the descriptive journal entry of Julius contributes near-surface groundwater dislodging of clumps of plants, which Froebel while camped on the Santa Cruz (McClaran and Sundt 1992). As with then may reroot in a different site along River near Tucson: ‘‘* * * rapid brook, most terrestrial orchids, successful aquatic systems. clear as crystal, and full of aquatic seedling establishment probably Lilaeopsis schaffneriana spp. recurva plants, fish, and tortoises of various depends on the successful formation of was first described by A.W. Hill based kinds, flowed through a small meadow endomycorrhizae (a symbiotic on the type specimen collected near covered with shrubs. * * *’’ This association between plant root tissue Tucson in 1881 (Hill 1926). Hill applied habitat and species assemblage no and fungi) (McClaran and Sundt 1992). the name Lilaeopsis recurva to the longer occurs in the Tucson area. In the The time needed for subterranean specimen, and the name prevailed until upper watershed of the middle Santa structures to produce above ground Affolter (1985) revised the genus. Cruz River, the species is now growth is unknown. Plants may remain Affolter applied the name L. represented only by a single population in a dormant, subterranean state or schaffneriana ssp. recurva to plants in two short reaches of Sonoita Creek. remain vegetative (nonflowering) for found east of the continental divide. A population at Monkey Spring in the more than one consecutive year. Plants Lilaeopsis has been documented from upper watershed of the middle Santa that flower one year can become 22 sites in Santa Cruz, Cochise, and Cruz River has been extirpated, dormant, vegetative, or reproductive the Pima counties, Arizona, and in adjacent although suitable habitat exists (Warren next year (McClaran and Sundt 1992, Sonora, Mexico, west of the continental et al. 1991). Newman 1991). The saprophytic/ divide (Saucedo 1990, Warren et al. Two Lilaeopsis populations occur in autotrophic state of orchid plants may 1989, Warren et al. 1991, Warren and the Rio Yaqui watershed. The species be determined by climatic fluctuations Reichenbacher 1991). The plant has was recently discovered at Presa and edaphic factors, such as pH, been extirpated from 6 of the 22 sites. Cuquiarichi, in the Sierra de los Ajos, temperature, and soil moisture (Sheviak The 16 extant sites occur in 4 major several miles east of Cananea, Sonora 1990). watersheds—San Pedro River, Santa (Tom Deecken, Coronado National Estimating Spiranthes population size Cruz River, Rio Yaqui, and Rio Sonora. Forest, pers. comm. 1994). The species and stability is difficult because All sites are between 1,148–2,133 m remains in small areas (generally less nonflowering plants are very hard to (3,500–6,500 ft) elevation. than 1 m 2 (10.8 ft 2) in Black Draw, Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 667

Cochise County, Arizona. Transplants Density of Lilaeopsis plants and size winter as larvae (Collins and Jones 1987; from Black Draw have been successfully of populations fluctuate in response to James Collins, Arizona State University, established in nearby wetlands and both flood cycles and site pers. comm. 1993). ponds. Recent renovation of House characteristics. Some sites, such as The Sonora tiger salamander was Pond on private land near Black Draw Black Draw, have a few sparsely discovered in 1949 at the J.F. Jones extirpated the Lilaeopsis population. A distributed clones, possibly due to the Ranch stock tank in Parker Canyon, San population in the Rio San Bernardino in dense shade of the even-aged overstory Rafael Valley, Arizona (Reed 1951). Sonora was also recently extirpated of trees and deeply entrenched channel. Based on color patterns of (Gori et al. 1990). One Lilaeopsis The Sonoita Creek population occupies metamorphosed animals, Lowe (1954) population occurs in the Rio Sonora 14.5 percent of a 500.5 m 2 (5,385 ft 2) described the Sonora tiger salamander watershed at Ojo de Agua, a cienega in patch of habitat (Gori et al. 1990). Some from southern Santa Cruz County, Sonora at the headwaters of the river populations are as small as 1–2 m 2 (11– Arizona, as the subspecies stebbinsi of (Saucedo 1990). 22 ft 2). The Scotia Canyon population, the broad-ranging tiger salamander Lilaeopsis has an opportunistic by contrast, has dense mats of leaves. (Ambystoma tigrinum). However, again strategy that ensures its survival in Scotia Canyon contains one of the larger based on color patterns, Gelhbach (1965, healthy riverine systems, cienegas, and Lilaeopsis populations, occupying about 1967) synonomized Ambystoma springs. In upper watersheds that 57 percent of the 1,450 m (4,756 ft) tigrinum stebbinsi and Ambystoma generally do not experience scouring perennial reach (Gori et al. 1990; Jim tigrinum tahense (from the Rocky floods, Lilaeopsis occurs in microsites Abbott, Coronado National Forest, in Mountains region) with Ambystoma where interspecific plant competition is litt. 1994). tigrinum nebulosum (from northern low. At these sites, Lilaeopsis occurs on While the extent of occupied habitat Arizona and New Mexico). wetted soils interspersed with other can be estimated, the number of Nevertheless, Ambystoma tigrinum plants at low density, along the individuals in each population is stebbinsi continued to be recognized in periphery of the wetted channel, or in impossible to determine because of the the scientific literature (Jones et al. small openings in the understory. The intermeshing nature of the creeping 1988). Jones et al. (1988) found that Lowe’s upper Santa Cruz River and associated rhizomes and the predominantly description of color patterns in springs in the San Rafael Valley, where asexual mode of reproduction. A Ambystoma tigrinum stebbinsi was only a population of Lilaeopsis occurs, is an population of Lilaeopsis may be accurate for recently metamorphosed example of a site that meets these composed of one or many individuals. Introduction of Lilaeopsis into ponds individuals. About 40 percent of conditions. The types of microsites on the San Bernardino National Wildlife metamorphosed adults exhibit a unique required by Lilaeopsis were generally Refuge (Refuge) appears to be successful reticulate pattern, while 60 percent are lost from the main stems of the San (Warren 1991). In 1991, Lilaeopsis was marked with light colored blotches, Pedro and Santa Cruz Rivers when transplanted from Black Draw into new spots, or bars on a dark background that channel entrenchment occurred in the ponds and other Refuge wetlands. is indistinguishable from Ambystoma late 1800’s. Habitat on the upper San Transplants placed in areas with low tigrinum mavortium, found in the Pedro River is recovering, and plant density expanded rapidly (Warren central United States and adjacent Lilaeopsis has recently recolonized 1991). In 1992, Lilaeopsis naturally portions of Mexico (Jones et al. 1995). small reaches of the main channel. colonized a pond created in 1991. Starch gel electrophoresis of 21 In stream and river habitats, However, as plant competition presumptive gene loci of Ambystoma Lilaeopsis can occur in backwaters, side increased around the perimeter of the tigrinum stebbinsi were compared with channels, and nearby springs. After a pond, the Lilaeopsis population gene loci of Ambystoma rosaceum (from flood, Lilaeopsis can rapidly expand its decreased. This response seems to Sonora), Ambystoma tigrinum population and occupy disturbed confirm observations (Kevin Cobble, mavortium, and Ambystoma tigrinum habitat until interspecific competition San Bernardino National Wildlife nebulosum (Jones et al. 1988). Based on exceeds its tolerance. This response was Refuge, pers. comm. 1994; and Peter this analysis, distinctive reticulate color recorded at Sonoita Creek in August Warren, Arizona Nature Conservancy, patterns, low heterozygosity, and 1988, when a scouring flood removed pers. comm. 1993) that other species apparent geographic isolation, about 95 percent of the Lilaeopsis such as Typha sp. will outcompete subspecific designation of Ambystoma population (Gori et al. 1990). One year Lilaeopsis. tigrinum stebbinsi was considered later, Lilaeopsis had recolonized the The Sonora tiger salamander is a large warranted by Collins and Jones (1987) stream and was again co-dominant with salamander with a dark venter and light and Jones et al. (1988). Further analysis watercress (Rorippa nasturtium- colored blotches, bars, or reticulation on of mitochondrial DNA reaffirmed aquaticum) (Warren et al. 1991). The a dark background. Snout/vent lengths subspecific designation (Collins et al. expansion and contraction of Lilaeopsis of metamorphosed individuals vary 1988). Color pattern and allozyme data populations appears to depend on the from approximately 6.7 to 12.5 cm (2.6– suggests that Ambystoma tigrinum presence of ‘‘refugia’’ where the species 4.9 in.) (Jones et al. 1988, Lowe 1954). stebbinsi is closely related to can escape the effects of scouring floods, Larval salamanders are aquatic with Ambystoma tigrinum mavortium; a watershed that has an unaltered plume-like gills and well-developed tail however, the Ambystoma tigrinum hydrograph, and a healthy riparian fins (Behler and King 1980). Larvae stebbinsi haplotype is derived from community that stabilizes the channel. hatched in the spring are large enough Ambystoma tigrinum nebulosum. The Two patches of Lilaeopsis on the San to metamorphose into terrestrial most likely explanation for these Pedro River were lost during a winter salamanders from late July to early observations is that Ambystoma flood in 1994 and had still not September, but only an estimated 17 to tigrinum stebbinsi arose from a recolonized that area as of May of 1995, 40 percent metamorphose annually. hybridization between Ambystoma demonstrating the dynamic and often Remaining larvae mature into tigrinum mavortium and Ambystoma precarious nature of occurrences within branchiates (aquatic and larval-like, but tigrinum nebulosum (Jones et al. 1995). a riparian system (Al Anderson, Grey sexually mature salamanders that The grassland community of the San Hawk Ranch, in litt. 1995). remain in the breeding pond) or over- Rafael Valley and adjacent montane 668 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations slopes, where all extant populations of salamander probably inhabited springs, but terrestrial salamanders may be Ambystoma tigrinum stebbinsi occur, cienegas, and possibly backwater pools present in the area. Of the 36 sites may represent a relict grassland and where permanent or nearly permanent where aquatic Sonora tiger salamanders therefore a refugium for grassland water allowed survival of mature were recorded since the mid or early species. Tiger salamanders in this area branchiates. 1980’s and no salamanders have been became isolated and, over time, A total of 79 aquatic sites in the San found at 4 tanks during the last 3 visits genetically distinct from ancestral Rafael Valley and adjacent slopes of the from 1993 to 1996. Salamanders were Ambystoma tigrinum mavortium and Huachuca and Patagonia mountains probably extirpated from these sites. Ambystoma tigrinum nebulosum (Jones have been surveyed for salamanders Salamanders also were found to be et al. 1995). (Collins and Jones 1987, Collins 1996, extirpated from the J.F. Jones Ranch Based on color patterns and James Collins, pers. comm. 1996). These Tank, the type locality (Collins and electrophoretic analysis, Ambystoma include most potential aquatic habitats Jones 1987). Salamanders have not been collected in Mexico at one site in on public lands. However, private lands found during the last three visits from Sonora and 17 sites in Chihuahua were in the center of the San Rafael Valley 1993 through 1996 at five other tanks. all Ambystoma rosaceum, not have not been surveyed intensively. Salamanders may be extirpated from Ambystoma tigrinum stebbinsi (Jones et Thirty sites in northeastern Sonora these sites. Another three sites where al. 1988). Reanalysis of reported and 26 sites in northwestern Chihuahua, salamanders were found from 1980 to Ambystoma tigrinum stebbinsi collected Mexico, were surveyed by Collins and 1983 have not been surveyed since that in Sonora (Hansen and Tremper 1979) Jones (1987). No Sonora tiger time. The status of populations at these and at Yepomera, Chihuahua (Van salamanders were found at these sites. tanks is unknown. At the remaining 23 Devender 1973) revealed that these Ambystoma rosaceum and Ambystoma tanks, salamanders have been found specimens were actually Ambystoma tigrinum velasci occur at localities in during 1 or more of the last 3 visits from tigrinum rosaceum (Jones et al. 1988). Sonora and Chihuahua to the south and 1993 through 1996. These populations Collins et al. (1988) list 18 sites for the east of the extant range of the Sonora are probably extant. Sonora tiger salamander. Additional tiger salamander (Collins 1979, Collins Populations of aquatic salamanders extensive survey work from 1993 and Jones 1987, Van Devender and include as many as several hundred through 1996 revealed another 18 sites, Lowe 1977). Ambystoma tigrinum individuals. However, 10 or more for a total of 36 (Collins 1996; James mavortium occurs at scattered localities salamanders in any 1 visit were found Collins, Arizona State University, pers. to the east in the San Pedro, Sulphur at only 16 of 32 occupied sites comm. 1996). Salamanders tentatively Springs, and San Simon valleys of examined by Collins from 1993 through identified as Sonora tiger salamanders Arizona (Collins and Jones 1987), but at 1996 (James Collins, pers. comm. 1996). also have been found at Portrero del least some of these populations were Large, reproducing populations of Alamo at the Los Fresnos cienega in the introduced by anglers and bait Sonora tiger salamanders were more headwaters of the San Pedro River, San collectors (Collins 1981, Lowe 1954, concentrated in the southeastern portion Rafael Valley, Sonora, Mexico (Sally Nickerson and Mays 1969). of the San Rafael Valley in the 1990’s as Stefferud, U.S. Fish and Wildlife Populations are dynamic. In compared to the 1980’s. Sampling Service, pers. comm. 1993) and at the particular, drought and disease during 1993–1996 revealed few lower Peterson Ranch Tank in Scotia periodically extirpate or greatly reduce populations and low numbers of Canyon, Cochise County, Arizona. No populations. Several tanks supporting salamanders in the northern portion of salamanders have been observed in aquatic populations went dry during the valley (Collins 1996). recent visits to Scotia Canyon (Service drought in 1994 and again in 1996. As A variety of factors threaten the files, Phoenix, AZ; James Collins, pers. tanks dry out, some larval and Sonora tiger salamander. Disease and comm. 1996); thus, this population may branchiate salamanders metamorphose predation by introduced nonnative be extirpated. A single terrestrial Sonora and leave the tanks; others desiccate fishes and bullfrogs (Rana catesbeiana) tiger salamander was found near Oak and die. Disease killed all aquatic are probably the most serious and Spring in Copper Canyon of the salamanders at least three sites in 1985 immediate threats, both of which have Huachuca Mountains (Jeff Howland, (Collins et al. 1988), and also was been implicated in the elimination of Arizona Game and Fish Department evident in aquatic populations at seven aquatic populations (Collins and Jones pers. comm. 1993). This individual tanks in 1995–1996 (James Collins, pers. 1987, Collins 1996). Tiger salamanders likely moved to this site from a comm. 1996). Tanks in which also are widely used in Arizona as population at the ‘‘Game and Fish salamanders have been eliminated may fishing bait, and this use poses Tank’’ located approximately 1 km (0.6 be recolonized through reproduction by additional threats. Other subspecies of mi) to the southwest. terrestrial metamorphs. Drying of tanks tiger salamander introduced into All sites where Sonora tiger also may eliminate nonnative predators habitats of the Sonora tiger salamander salamanders have been found are and create sites suitable for salamander for bait propagation or by anglers could, located in the Santa Cruz and San Pedro colonization. through interbreeding, genetically river drainages, including sites in the Because populations are dynamic, the swamp distinct Ambystoma tigrinum San Rafael Valley and adjacent portions number and location of extant aquatic stebbinsi populations (Collins and Jones of the Patagonia and Huachuca populations change over time, as 1987, Collins 1996). Collecting Sonora mountains in Santa Cruz and Cochise exhibited by the differences between tiger salamanders for bait could counties, Arizona. All confirmed survey results in 1985 and 1993–1996 extirpate or greatly reduce populations. historical and extant aquatic (Collins and Jones 1987; Collins 1996; Furthermore, moving of salamanders populations are found in cattle tanks or James Collins, pers. comm. 1996). among tanks by anglers or bait collectors impounded cienegas within 31 km (19 Determining whether a population is also could transmit disease. Additional mi) of Lochiel, Arizona. If the Los extant is problematic. If numbers are threats include habitat destruction, Fresnos population is the subspecies, low, salamanders may not be detected reduced fitness resulting from low stebbinsi, it is the only population during sampling. Also, aquatic genetic heterozygosity, and increased known to occur in a cienega. salamanders may have been recently probability of chance extirpation Historically, the Sonora tiger eliminated due to drought or disease, characteristic of small populations. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 669

Previous Federal Actions 1997, published on December 5, 1996 contacted regarding the hearings. Federal government action on (61 FR 64475). The guidance clarifies Approximately 790 people attended the Spiranthes delitescens, Lilaeopsis the order in which the Service will hearings, including approximately 90 schaffneriana ssp. recurva, and Sonora process rulemakings following two people at a July 13, 1995, hearing in tiger salamander began with their related events, the lifting on April 26, Patagonia, Arizona; and 700 at a inclusion in various Service notices of 1996, of the moratorium on final listings September 27, 1995, hearing in Sierra review for listing as endangered or imposed on April 10, 1995 (Public Law Vista, Arizona. Transcripts of these threatened species. The Sonora tiger 104–6), and the restoration of significant hearings are available for inspection (see salamander was included as a category funding for listing through passage of ADDRESSES). A total of 229 written comment letters 2 candidate in the first notice of review the omnibus budget reconciliation law on April 26, 1996, following severe were received—40 supported the of vertebrate wildlife (December 30, funding constraints imposed by a proposed listing, 164 opposed listing, 1982; 47 FR 58454), and in subsequent number of continuing resolutions and 25 others commented on notices published September 18, 1985 between November 1995 and April information in the proposed rule but (50 FR 37958) and January 6, 1989 (54 1996. The guidance calls for giving expressed neither support nor FR 554). Category 2 candidates were highest priority to handling emergency opposition, provided additional those species for which the Service had situations (Tier 1) and second highest information only, or were some evidence of vulnerability, but for priority (Tier 2) to resolving the listing nonsubstantive or irrelevant to the which there was insufficient scientific status of the outstanding proposed proposed listing. Oral comments were and commercial information to support listings. This final rule falls under Tier received from 51 parties at the a proposed rule to list them as 2. hearings—11 supported listing, 20 threatened or endangered. In notices of opposed listing, and 20 expressed review published November 21, 1991 Summary of Comments and neither support nor opposition, (56 FR 58804) and November 15, 1994 Recommendations provided additional information only, (59 FR 58982), the Sonora tiger In the April 3, 1995, proposed rule (60 or were nonsubstantive or irrelevant to salamander was included as a category FR 16836) and associated notifications, the listing. In total, oral or written 1 candidate. Category 1 includes those all interested parties were requested to comments were received from 4 Federal taxa for which the Service has sufficient submit factual reports or information and State agencies and officials, 14 local information to support proposed rules that might contribute to development of officials, and 262 private organizations, to list them as threatened or a final rule. The original comment companies, and individuals. All endangered. period closed June 2, 1995, then was comments, both oral and written, Lilaeopsis schaffneriana ssp. recurva, reopened from June 24, 1995, to July 24, received during the comment period are then under the name L. recurva, was 1995 (60 FR 32483), and again from addressed in the following summary. included as a category 2 candidate in September 11, 1995, to October 27, 1995 Comments of a similar nature are the November 28, 1983 (45 FR 82480) (60 FR 47340). Appropriate State grouped into a number of general issues. and September 27, 1985 (50 FR 39526) agencies and representatives, County The Service’s response to each comment plant notices. It was included as a and City governments, Federal agencies is discussed below. category 1 candidate in the February 21, and representatives, scientific Issue 1: Other processes, especially 1990 (55 FR 6184) and September 30, organizations, and other interested conservation agreements in lieu of 1993 (58 FR 51144) notices. Spiranthes parties were contacted and requested to listing, could be more effective at delitescens was included as a category comment. Newspaper/media notices protecting these species, and would 1 candidate in the September 30, 1993, inviting public comment were impose fewer regulations and plant notice. published in the following restrictions on land use as compared to On June 3, 1993, the Department of newspapers—Arizona Daily Star, Federal listing. Also, additional steps or the Interior, Washington, D.C., received Arizona Republic, Bisbee Daily Review, processes, particularly closer working three petitions, dated May 31, 1993, Eastern Arizona Courier, Environmental relationships among the Service, local from a coalition of conservation Network News, Green Valley News/Sun, governments, and landowners, should organizations (Suckling et al. 1993). The Nogales International, Sierra Vista be incorporated into the listing process. petitioners requested the listing of Herald-Dispatch, The Phoenix Gazette, Comment: Several commenters Spiranthes, Lilaeopsis, and the Sonora The Weekly Bulletin, Tombstone suggested preparing a conservation tiger salamander as endangered species Tumbleweed, and Tucson Citizen. The agreement among the Service, other pursuant to the Act. On December 14, inclusive dates of publications were Federal agencies, State agencies, local 1993, the Service published a notice of April 20 and 21, 1995, for the initial governments, and private landowners, three 90-day findings that the petitions comment period; and June 28 to July 4, in lieu of listing one or more of the three presented substantial information 1995, and September 15, 1995, to species. Environmental education is indicating that listing these three September 20, 1995, for the first and needed to raise local awareness of the species may be warranted, and second public hearings and reopening of plight of these species. A cooperative requested public comments and the comment period, respectively. research and conservation program biological data on the status of the In response to requests from the should be developed. Possible species (58 FR 65325). On April 3, 1995, public, the Service held two public components of the cooperative effort the Service published a proposal (60 FR hearings. Notices of hearing dates and could include conservation easements, 16836) to list Spiranthes, Lilaeopsis, locations were published in the Federal or landowners could apply for and the Sonora tiger salamander as Register on June 22, 1995 (60 FR 32483) membership in Oregon Stronghold, a endangered species, and again requested and September 12, 1995 (60 FR 47340). corporation dedicated to conservation public comments and biological data on Appropriate State agencies and practices on private land. their status. representatives, County and City Service Response: The Service The processing of this final listing governments, Federal agencies and considered conservation agreements in rule conforms with the Service’s Final representatives, scientific organizations, lieu of listing for all three species. Listing Priority Guidance for Fiscal Year and other interested parties were Discussions with the Coronado National 670 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Forest, Fort Huachuca, and AGFD on halt all ranching, farming, mining, decide if species should be listed. development of a conservation logging, surface water diversion, Listing should be decided by a vote of agreement for the Sonora tiger groundwater pumping, and urban the residents of Cochise County. salamander began in September 1995. development, without the due process Service Response: Section 4(a) of the Meetings were held November 28, 1995 of listing the species. This commenter Act clearly assigns the responsibility of and January 24, 1996, among believed this was an attempt by the making listing decisions to the landowners, Fort Huachuca, the Service to gain greater control over Secretaries of the Interior and Coronado National Forest, experts on activities on private lands. This Commerce, not to local governments or the salamander, and the Service to commenter also stated that the purpose a voting body. However, in making discuss development of the agreement. for the inclusion of the Sonora tiger those decisions, the Secretaries are The participants in the meetings and salamander in the cienega species required to take into account discussions, including the Service, listing package was to provide a means conservation actions (section 4(b)(1)(A)), generally agreed that a properly crafted for regulatory action on private lands for notify and invite comment from states, and promptly-implemented the two plants. counties, and others on the proposed conservation agreement could provide Service Response: Conservation rules (section 4(b)(5)), hold one public for the long-term viability of the species. agreements are voluntary plans for the hearing on the proposed rule, if In May 1996, the Service wrote all 13 conservation and recovery of species. requested (section 4(b)(5)(E)), and take private landowners within the range of They can preclude the need to list other steps to ensure that the concerns the salamander to solicit their species by removing threats. However, of local governments, citizens, and participation. Only two landowners any actions developed and implemented others are considered in the listing have agreed to participate, and only one are a result of discussion and decision. The Service appreciates the is known to have salamander concurrence of all parties to the concern of local governments and populations on their property. These agreement. If decisions were made to citizens of southeastern Arizona in populations are on lands proposed for halt or limit ranching, groundwater regard to this and other listings. The exchange to the Coronado National pumping, or other activities, these Service will work closely with residents Forest. The Service estimates that commitments would be made by the and officials in the management and approximately 31 percent of the range of property owners and managers where recovery of these species. the salamander are owned by these activities occur. If such Comment: One commenter stated that individuals not currently interested in commitments were unacceptable to one beaver reintroduction on the upper San participating in a conservation or more parties, they would have the Pedro River, proposed by AGFD and the agreement. Because a limited option not to sign the agreement and not BLM, would create pond and marsh conservation agreement would not implement such activities. The Service habitat for Lilaeopsis and make listing protect the species throughout its range, characterizes conservation agreements unnecessary. and because no conservation actions as positive opportunities for landowners Service Response: The potential have actually been developed or and managers to voluntarily take actions effects of beaver reintroduction on the implemented, these efforts are to conserve species being considered for upper San Pedro River have not been inadequate to preclude listing. However, listing and alleviate the need for listing fully analyzed as yet; however, it is the Service will continue to work with and any resulting regulatory possible that a successful reintroduction and encourages the participation of any requirements. could create pond and marsh habitats. interested parties in the conservation of The Service and other possible While a successful reintroduction may this species. agencies in conservation agreements provide increased habitat for Lilaeopsis, No interest in the development of a administer programs to fund and assist this action alone does not remove the conservation agreement for Spiranthes landowners in the implementation of complex threats necessitating listing was expressed by the owners of the conservation actions. The salamander is Lilaeopsis as endangered. Water issues species’ habitat. Some interest in the not known to occur with Lilaeopsis or on the San Pedro River are discussed development of a conservation Spiranthes, with the possible exceptions later in this rule. Additionally, agreement for Lilaeopsis was expressed; of Scotia Canyon and Los Fresnos. Lilaeopsis has not shown an ability to however, only a few sites would have However, the salamanders at these sites successfully compete with many aquatic been protected leaving the majority of have not been identified to subspecies. plant species. Lilaeopsis may be able to the populations unprotected. Because the salamander generally does opportunistically colonize such habitats Additionally, the complex nature of the not occur with the plants, regulatory early in their development; however, water issues involving Lilaeopsis made protection afforded the salamander other plant species may dominate the it difficult for the Service to assure the would have no effect on the plants. habitat at later stages in the absence of few interested parties that listing would Comment: Several commenters some mild disturbance holding the necessarily be precluded through a recommended that the Service comply system in an early seral stage. conservation plan. This lack of with a resolution adopted by the Comment: One commenter suggested assurance was unacceptable to one of National Association of Counties and planning efforts for the San Rafael the Federal agencies. Currently, Fort the Arizona County Supervisors Valley could be used to conserve these Huachuca is the only Federal entity Association in regard to implementation species. working on a conservation plan for of the Act. The ‘‘Resolution on Service Response: The Coronado Lilaeopsis. This plan would be part of Amending the Endangered Species Act’’ National Forest has produced a draft a larger land use plan. recommends increased participation of Lone Mountain Ecosystem Plan and Comment: One commenter stated that counties in species conservation, discussions are underway to develop the Service was trying to coerce private prelisting activities, listing and recovery ecosystem plans for other portions of landowners into compliance with the decisions; analysis of economic, social the San Rafael Valley. The Service has Act through the use of conservation and cultural impacts of listing; participated in these planning efforts agreements. This commenter also stated consultation with and compensation to and believes that they have a potential that the Service was, through the use of affected landowners; and other to contribute to recovery of the Sonora conservation agreements, attempting to provisions. Local governments should tiger salamander, Lilaeopsis, and Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 671 perhaps Spiranthes. However, these overstory in a riparian system is likely potential threat to Spiranthes from plans have yet to be finalized and to benefit Lilaeopsis. Therefore, the continued livestock grazing of cienega potential benefits of these planning removal of this system component could habitats. efforts have not yet been realized. Thus, result in the loss of Lilaeopsis from the Service Response: The Service does these efforts have not yet affected the riparian area once the soil fertility and not believe this potential benefit of status of the species. The Service will moisture levels drop and temperature critical habitat designation outweighs continue to work with landowners and extremes occur. In addition, riparian the threat of collection given the managers in the San Rafael Valley on ecosystems are extremely important to extreme rarity of this orchid. Due to this conservation actions. These actions are numerous other species. Removal of species’ cryptic nature, potential threats expected to contribute to recovery. large numbers of trees would damage or impacts to its habitat would be Comment: One commenter stated that other species’ habitat and would not be addressed within the consultation Spiranthes is and can be propagated in a viable conservation measure. process. As this is a plant species botanical gardens. Growing the species Comment: One commenter asked why provided with a different, and lesser in gardens should be pursued, rather the Service placed plants on the protection than an animal, pursuant to than Federal listing. It might be more Endangered Species list if the Act does section 9 of the Act, the Service would cost-effective to propagate the species not apply to plants on private lands. not address continued use of a cienega and introduce them into a beneficial Service Response: Under the Act as part of a livestock operation, except environment. Another commenter stated private landowners have essentially no through the consultation process, that Lilaeopsis could not be an responsibilities regarding conservation regardless of whether critical habitat endangered species since it could be or management of endangered plants were designated or not. Additionally, successfully transplanted. located on their property; however, the preliminary indications are that Service Response: The Service places Act provides for consultation by Federal Spiranthes may benefit from a priority on conservation of species in entities under section 7 of the Act if responsible land management plan the wild rather than pursuing their actions may affect a listed plant, involving light disturbance from horticultural programs for species. The regardless of whether that plant occurs grazing. cultivation of plants with subsequent on private or Federal lands. Therefore, Comment: Several commenters stated outplanting may be done for while a private landowner may not have that habitat and species protection and reintroduction purposes; however, that responsibility to protect, conserve, or recovery afforded through consultation type of activity alone does not provide manage for a listed plant, a Federal in accordance with section 7 of the Act for conservation or recovery of a action agency is responsible if an action would be inadequate without critical species, nor does it address the habitat it authorizes, funds, or carries out may habitat designation. modification or destruction threats to a affect a listed species or its critical Service Response: Section 7(a)(2) of species. The listing of a species is not habitat. the Act requires Federal agencies, in evaluated on cost-effectiveness, but on Issue 2: Critical habitat should be consultation with the Secretaries of the the best available scientific and proposed and designated for one or Interior and Commerce, to ensure that commercial data available. The ability more of the three species. The Service any action they authorize, fund, or carry to transplant a species has no bearing as did not comply with its own regulations out is not likely to jeopardize the to whether or not that species warrants when proposal of critical habitat was continued existence of any listed listing. found to be not determinable for the species or result in the destruction or Comment: One commenter stated that Sonora tiger salamander and Lilaeopsis. adverse modification of critical habitat. Arizona Department of Water Resources Critical habitat designation is necessary It is the opinion of the Service that the (1991) found that 50 percent of the to protect the habitat of these species. designation of critical habitat for these water available in the San Pedro basin Comment: Several commenters stated three species would not be beneficial is used by riparian vegetation. The that the Service failed to follow its own and therefore, not prudent. commenter stated that if the BLM would regulations by not proposing critical Issue 3: Economic, social, and cultural remove 60 percent of the trees in the habitat for all three species in the impacts of listing need to be evaluated basin, there would be ample water to proposed rule. Another commenter and considered in the listing process. supply the needs of these three species requested we reissue the proposed rule Comment: Several commenters and many others. with critical habitat proposed for all requested that the Service study the Service Response: Clearing of riparian three species, all areas known to be indirect and direct economic, social, vegetation would be counter to the occupied by the species, all historical and/or cultural effects of listing these purposes of the San Pedro River habitat, and all areas that could be three species. Concern was expressed Riparian National Conservation Area. In restored and reoccupied by the species. that listing of the species would affect the legislation establishing the Service Response: The Service’s use and value of private property, result Conservation Area, the BLM was position on critical habitat for these in increased taxes and reduced charged with conservation, protection, species is detailed in the ‘‘Critical investment in the local community, and and enhancement of the riparian area. Habitat’’ section of this final rule. adversely affect grazing permittees on To clear the riparian vegetation for Comment: One commenter stated that state and Federal lands. Some water salvage would counter a collecting is a relatively minor threat commenters stated that the results of Congressional mandate. As noted in compared to other factors that threaten this analysis should be weighed with Stromberg et al. (1996), Bock and Bock the survival and recovery of Spiranthes; threats, status, and other listing factors (1986), McQueen and Miller (1972), thus the benefits of critical habitat in determining whether these species Yavitt and Smith (1983), and Dawson outweigh the costs and critical habitat should be listed. (1993), trees in a riparian system should be proposed. Another Service Response: 50 CFR 424.11(b) provide for increased soil fertility and commenter was concerned that requires the Secretaries of the Interior increased soil moisture as a result of protection of Spiranthes and its habitat and Commerce to make decisions on hydraulic lift and serve to temper would be impossible without critical listing based on ‘‘the best available environmental extremes such as habitat designation. This commenter scientific and commercial information temperature. This function of the was concerned that there would be a regarding a species’ status, without 672 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations reference to possible economic or other salamander, this take could be loans, will be required to comply with impacts of such determination.’’ The permitted through the incidental take section 7 of the Act to ensure their Service has determined that the statement in a section 7 consultation for activities do not jeopardize the designation of critical habitat for these Federal actions, or through a section continued existence of these species. three species is not prudent. 10(a)(1)(B) permit for private actions. Consultations with Federal agencies, Comment: One commenter stated that The listing would not affect mining such as the Coronado National Forest, the listing and establishment of critical activities in Mexico. The Service is Fort Huachuca, and others, may result habitat would give the Federal unaware of any current or proposed in changes to proposed actions that are government control over water use copper mines or other mineral mines in at the discretion of the action agency. where the species occur. This the quartz/monzonite/porphyry/copper For instance, in accordance with section commenter also stated that the species deposit belt in Arizona or New Mexico 7, the Coronado National Forest has and their critical habitat would be given that may affect any of the three species. conferenced with the Service on a higher priority than humans in a These listings would not eliminate proposed reissuance of several grazing drought situation. mineral exploration and exploitation of permits within the range of the Sonora Service Response: Federal actions, the quartz/monzonite/porphyry/copper tiger salamander. The Service has such as groundwater use by Fort deposit belt. recommended that the Forest develop Huachuca or actions by the BLM that Comment: One commenter stated that and implement stock tank management may alter San Pedro River flows or the impact of this listing would plans for tanks supporting salamanders. hydrology, would be subject to the decimate the Babacomari Ranch’s These plans would include timing section 7 consultation process, which historical livestock operation along the maintenance activities to reduce effects may result in changes to proposed Babacomari River and would eliminate to salamanders, minimizing removal or actions to avoid jeopardizing the this viable agricultural enterprise. damage to bankline cover, adding brush continued existence of a listed species. Service Response: Involvement with and logs for cover, restricting access by (For further discussion, see the the Service regarding operation of this cattle to selected tanks or portions of ‘‘Available Conservation Measures’’ ranch would only occur within the tanks, public information, and section of this final rule.) Private actions context of the consultation process if a monitoring and periodic removal of would generally be exempt from the Federal action agency were to fund, nonnative predators. Similar outcomes regulatory provisions of the Act, unless authorize, or carry out an activity are expected from future formal section Federal funds or authorization are related to the operation of the ranch, or 7 consultations for all three species. needed, or if the action would result in if the ranch owners wished to work with Further discussion of water issues are the taking of a Sonora tiger salamander. the Service on voluntary conservation addressed in the following comments. In the latter case, a private party could actions. While the Service does not Comment: One commenter stated that seek a section 10(a)(1)(B) incidental take analyze economic effects of a listing a moratorium on the pumping of permit to legally take salamanders action, it is not anticipated that the groundwater would be financially incidental to otherwise lawful activities. listing of Spiranthes will have an devastating to families. The Service is not proposing or adverse effect on the ranching Service Response: As discussed designating critical habitat in this rule. operations. elsewhere, pumping of groundwater or Designation of critical habitat for these Comment: Commenters stated that the other actions by private individuals on three species was determined to be not Service intends to close Fort Huachuca private lands would not be affected by prudent (see ‘‘Critical Habitat’’ section). and undermine the local economy and this listing, with the possible exception Comment: One commenter stated that well-being of citizens with these of groundwater pumping that would the listing of these species would listings. The listings will result in a drain a stock tank occupied by Sonora eliminate mineral exploration and cessation of Federal highway funds and tiger salamanders and result in taking, exploitation in the unique and rare home mortgages in Sierra Vista. Another or other activities that might result in Cananea geologic trend. commenter stated that the proposed the taking of salamanders. The Service Service Response: The Service listing of these three species was an is unaware of any planned or ongoing assumes the commenter refers to attempt to halt growth, grazing, and groundwater pumping anywhere within mineralization, particularly copper multiple use of public and private the range of the Sonora tiger salamander deposits, in the quartz/monzonite/ lands. One commenter reported hearsay that would result in taking. If such an porphyry/copper deposit belt in that it was the intent of the Service to action were proposed, the proponent southeastern Arizona, southwestern control the water and lives of the people could seek authorization from the New Mexico, and adjacent portions of with this listing, which is an Service for an incidental take permit. If Mexico, including the copper deposits inappropriate purpose of the listing groundwater pumping involves a near Cananea, Sonora. As discussed process. Federal authorization, funding, or other elsewhere herein, if mining activities Service Response: The purpose of discretionary Federal action, that involved a discretionary Federal action, these listings is to extend the protection pumping would be subject to section 7 that action would be subject to section of the Act to the Sonora tiger consultation if the action may affect a 7 consultation. For instance, salamander, Lilaeopsis, and Spiranthes. listed species. consultation could result in This protection does not authorize the Comment: One commenter noted that modifications to mining plans of Service to close Fort Huachuca or assert the listing of these species will operation. Prospecting and mining of jurisdiction over water rights, and the complicate the issues surrounding the hardrock minerals, such as copper, on Service does not anticipate significant general adjudication. In particular, this Federal lands is governed by the Mining impacts to local economies or to the commenter believed it would add Act of 1872 (16 U.S.C. 21 et seq.). Under well-being of citizens. As described in another obstacle to reaching a this law, Federal agencies have limited ‘‘Available Conservation Measures’’ negotiated settlement of some water discretion over mining activities. Thus, herein, with the promulgation of this rights with Federal agencies. many activities would not be subject to rule, Federal agencies, including Fort Service Response: A general section 7 consultation. If mining might Huachuca and those that administer adjudication of water rights in the Gila result in the taking of a Sonora tiger Federal highway funds and Federal River system and its source is Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 673 underway, pursuant to Arizona Revised because an unknown percentage of perhaps 60 percent of lands within the Statutes 45–251 to 45–260. This plants are dormant and nonflowering range of the salamander have been adjudication includes the San Pedro plants are difficult to find. thoroughly surveyed. If we consider the River watershed. Major water rights Service Response: While the Service 23 sites where salamanders have been holders, particularly in the Sierra Vista believes that additional long-term found during one or more of the last subwatershed (in the river’s watershed studies are needed to more accurately three visits from 1993 through 1996 as from Fairbank to the international determine the stability of Spiranthes extant populations, and if breeding border), are attempting to negotiate a populations, data as a result of populations occur on unsurveyed lands settlement agreement. Listing of these monitoring suggest that the populations in a density similar to surveyed lands, three species would not directly affect may be declining based on the tendency then conceivably as many as 35 to 40 water rights. Uses of water may be of plants to remain in a nonflowering ‘‘extant’’ breeding populations could subject to section 7 consultation if such state, the low numbers of new flowering exist in Arizona. Regardless, a limited use involves a discretionary Federal plants, and the reduction to a single geographic range, very limited breeding action. Subsequent enforcement actions nonflowering individual at one site in habitat, and threats to the species in regard to take of Sonora tiger 1991 (McClaren and Sundt 1992, described herein warrant protection as salamanders could potentially also Newman 1991). The definitive answers an endangered species. result in the modification or cessation of on population biology that the The Service agrees that the taxonomy water use at specific sites, but the commenters believe necessary would of the tiger salamander population at salamander occurs almost exclusively involve destructive methodology in Los Fresnos in Sonora should be outside of the subwatershed. Although order to determine the exact number of clarified; however, presence of Sonora water rights are not directly affected by plants and percentages of absent tiger salamanders at this site is not these listings, the Service agrees that individuals. Such a destructive unexpected (the salamander locality at listing could be a factor in the issues methodology would be devastating to an Los Fresnos is within 1.3 mi (2.2 km) of surrounding the settlement negotiations. extremely rare species such as this one the international boundary and 2.2 mi The Service is involved in the and could result in the extirpation of (3.6 km) of three extant localities in negotiations and is likely to be a party some populations. Mark Fishbein Arizona). The recently discovered to any settlement agreement. (University of Arizona, in litt. 1996), a population at Fort Huachuca also is not Compliance with the Act in regard to researcher who has studied Spiranthes unexpected. It is approximately 1.4 mi water use may be addressed in the extensively, notes that the life history of (2.2 km) west of a salamander locality agreement, and thus could provide a this species provides difficulties in (presumed to be the Sonora tiger framework for addressing endangered censusing; however, years of salamander) in Scotia Canyon. Neither species issues to which all parties to the observation have enabled him to of these new populations constitute agreement would have input. Of the estimate the total number of individuals significant range extensions, or lead the three species listed, only Lilaeopsis is at somewhere below 5,000, and perhaps Service to believe that the range of the well-represented in the subwatershed. less than 2,000. salamander is much greater than Comment: One commenter stated that, Comment: Several commenters stated indicated in the proposed rule. Other as a result of this listing, the section 7 that surveys for the Sonora tiger potential habitats have been surveyed consultation process will add time and salamander have not been extensive outside of the known range in Arizona expense to any urbanization project. enough to adequately determine its and Sonora, but no Sonora tiger Service Response: If a Federal agency status. Many potential habitat sites on salamanders have been found (Collins is involved in urbanization, it would private lands have not been surveyed and Jones 1987). need to evaluate its actions and possible and the taxonomy of salamanders found The Service disagrees with the general effects on listed species. The Service is in adjacent portions of Sonora needs to statement that the salamander is required to deliver a biological opinion, be clarified. The recent discovery of a thriving in stock tanks. Many tanks which concludes consultation, to the population at Fort Huachuca suggests within the range of the salamander are action agency within 135 days of receipt the range of the species may be greater occupied by nonnative predatory fish of a request for consultation (50 CFR than originally thought. The salamander that eliminate salamander populations 402.14(e)). If the action agency is thriving in stock tanks. and prevent colonization by incorporates consultation into their Service Response: Additional survey salamanders. Bullfrogs, which also prey planning process and consultation is work conducted since the proposed rule on salamanders, are well-established in initiated early, project delays are was published further clarifies the the San Rafael Valley and have become unlikely. Some additional costs may status of the Sonora tiger salamander more widely distributed since 1985 accrue resulting from meetings with the (Collins 1996) and is summarized in (Collins 1996). Virtually no recruitment Service, preparation of documents, and ‘‘Background’’ and ‘‘Summary of Factors of salamanders was noted by Collins implementation of any reasonable and Affecting the Species.’’ As of late 1995, (1996) during his surveys in 1993–1994. prudent alternatives or measures in the Dr. James Collins (Arizona State Furthermore, disease killed all aquatic biological opinion. Private actions that University) and Tom Jones (Grand salamanders at 3 tanks in the 1980’s and do not require Federal funds, actions, or Canyon University) (pers. comm. 1995) recently killed salamanders at 7 tanks, authorization, such as a private estimated that roughly 75 percent of and less than 10 salamanders were individual building a house with private public lands within the range of the found during any 1 visit at 16 of 32 sites funds, are not subject to section 7. salamander had been surveyed. surveyed from 1993 through 1996 Issue 4: Information presented in the Additional extensive surveys occurred (James Collins, pers. comm. 1996). proposed rule was insufficient to in 1996. Surveys of private lands, most Comment: Commenters stated that support listing or was in error. of which are in the center of the San data are inadequate to determine the Comment: Several commenters stated Rafael Valley on the historic San Rafael status of any of the three species. The that the status and population trends of de la Zanja land grant and comprise information upon which the proposed Spiranthes cannot be determined about 31 percent of the range of the listing is based is subjective and because population size is unknown salamander, have been sporadic and premised by qualifiers such as ‘‘might and cannot be accurately determined incomplete. The Service estimates that be,’’ ‘‘may,’’ etc. One commenter stated 674 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations that presumptions rather than science Surveys for Spiranthes species in Comment: AGFD herpetologist Jeff were the basis for listing. The same Mexico have not located populations of Howland is cited in the proposed rule information could be interpreted that Spiranthes delitescens. While Sheviak as the source for the Sonora tiger the species are not endangered. (1990) noted that P.M. Catling had not salamander localities in Scotia and Service Response: All three species found Spiranthes delitescens in his Copper canyons. Mr. Howland has not are of very limited distribution and work in Mexico, Sheviak still believed identified the salamanders at these occupy very limited and sensitive that the species likely occurred in locales to subspecies; thus, these aquatic habitats. The reasons for their Mexico at that time. Recently, Charles localities are in question. limited distributions are not fully Sheviak (University of New York at Service Response: The Copper Canyon understood; however, the Service has Albany, in litt. 1995) stated that the locality is the same as ‘‘Game and Fish attempted to describe all known and species appears ‘‘ * * * to be very Tank,’’ which Collins (1996) identifies potential threats to the species in the restricted and critically rare.’’ Jones, et as a Sonora tiger salamander locality. proposed and final rules. Potential al. (1995), in a discussion on the Salamanders from Scotia Canyon have threats are described as possibly phylogenetic origins and taxonomy of not yet been identified to subspecies. affecting the species and are treated as the Sonora tiger salamander, also note This has been noted and corrected in uncertainties, with qualifiers such as the unique occurrences of Spiranthes this final rule. ‘‘may’’ and ‘‘might be.’’ Despite these and the Huachuca springsnail Comment: One commenter noted that uncertainties, sufficient surveys have (Pyrgulopsis thompsoni) within the San loss of Lilaeopsis habitat was the result been conducted to adequately assess the Rafael Valley. Sheviak (in litt. 1995) of natural rather than human-caused current status of the species and noted in reference to this publication processes. This commenter further whether they warrant listing. The that it ‘‘* * * suggests that this stated that the San Pedro River and Service makes listing determinations on restricted distribution is real and the cienega habitats have been altered by the basis of the best scientific and result of biogeographic processes that natural climatic change, the 1887 commercial data available as required have produced a suite of similarly earthquake, and cattle. The commenter under section 4(b)(1)(A) of the Act. restricted organisms.’’ stated that these changes were primarily the result of the geologic cycle and did Comment: One commenter stated that Comment: One commenter stated that not warrant listing Lilaeopsis as an the status of the species cannot be Lilaeopsis populations are increasing, endangered species. The commenter determined without further study and thus endangered status is not warranted. further stated that Lilaeopsis habitats survey in Mexico. Service Response: The size of were stable, but would now be subject Lilaeopsis populations fluctuate Service Response: Collins and Jones to lawsuits by radical environmentalists (1987) surveyed 30 sites in northeastern depending on flood cycles, refugia, and unknown decisions by judges. Sonora and 26 sites along the eastern habitat availability, and interspecific Service Response: The Service is slope of the Sierra Madre Occidental in competition. Since publication of the unaware of evidence supporting the northwestern Chihuahua without proposed rule, some populations of comment that natural geologic cycles locating Sonora tiger salamanders. Other Lilaeopsis have been found to be more are the cause behind the modification researchers have conducted casual extensive in their aquatic systems, i.e. and loss of cienega and riparian habitats surveys for salamanders in northern scattered throughout a canyon system or containing Lilaeopsis. The 1887 Sonora as well, without finding Sonora in upstream tributaries; however, only earthquake affected the distribution of tiger salamanders, with the exception of one new population has been found. cienega habitats and spring flow along the tiger salamander population of The other populations to which the the upper San Pedro River (Hendrickson unknown subspecies at Los Fresnos. commenter is referring are actually new and Minckley 1984), but whether The Service believes that if the areas of clumps of plants within a Lilaeopsis habitats increased or salamander occurs in Sonora, it larger, connected system already known decreased as a result of the earthquake probably has a limited distribution and to contain Lilaeopsis. Probably the most is unknown. Documented loss of occurs at very few sites. The species is extensive expansion of Lilaeopsis in a Lilaeopsis habitat has resulted from most likely to occur in tanks or cienegas system has been within the upper San habitat modification and destruction near the international boundary in the Pedro River. At the time of the proposed resulting from human-related activities; Sonoran portion of the San Rafael rule, the Service only knew of two however, there has been a synergistic Valley. springs along the San Pedro River effect of overuse of habitats coupled Three populations of Lilaeopsis are containing Lilaeopsis. Mark Fredlake with drought. The Service is unaware of known from Sonora (Warren, et al. (BLM, pers. comm. 1996) documented long-term research indicating that 1991); however, recent efforts have 43 scattered patches of plants in the Lilaeopsis habitats are stable. The failed to locate additional populations upper San Pedro River prior to the 1996 Service is unable to predict the extent of this subspecies. Mark Fishbein monsoon floods. Regardless of this (if any) that Lilaeopsis habitats will now (University of Arizona, in litt. 1995) has information, the Service has not seen a be subject to legal actions; however, we conducted extensive floristic surveys of reduction in threats to Lilaeopsis. Past believe that cooperative partnerships to the Sierra de los Ajos (site of one and present habitat modification and help conserve and restore riparian recently-discovered Lilaeopsis destruction are significant issues in the habitats will provide a positive basis for population reported herein) and Service decision to list Lilaeopsis as community interaction in the recovery believes the potential for additional new endangered. of Lilaeopsis. populations in that region to be low, Comment: Spiranthes is not Comment: One commenter requested although not all potential habitat for the endangered. It has existed for years on that the Service provide the species has been surveyed. Fishbein mostly Federal grazing lands that have mathematical equation used in also notes that threats to wetland been well-managed by permittees. determining whether or not a species is habitats in Mexico are similar to those Service Response: With the exception endangered. in Arizona and, therefore, Lilaeopsis is of four individual plants recently found Service Response: No equation, probably as rare and threatened there as on public lands, all of the known sites mathematical or otherwise, is used to it is in Arizona. for Spiranthes occur on private land. determine a species’ status. An Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 675 endangered species is one that is in basis for these decisions. These data sedimentation, water temperatures, and danger of extinction throughout all or a included published and unpublished channel characteristics; water significant portion of its range (50 CFR reports by qualified and reputable withdrawals; channelization; and 424.02(e)). Determination of whether a biologists, personal communications construction of levees and other flood or taxon meets the definition of an with researchers and biologists, and bankline structures. endangered species is based on the best comments from the public. For instance, In contrast, the riparian habitats of the scientific and commercial data available much of the status information on the San Pedro River are surprisingly after conducting a review of the species’ Sonora tiger salamander is based on unaltered, and provide conditions that status. Species are found to be papers by, and communications with, do not occur, or are very rare, on other threatened or endangered based on an Drs. James Collins and Thomas Jones. desert watercourses. Thus there is great analysis of the five listing factors Dr. Collins is chair of the Zoology biodiversity on this river and many rare evaluated in the section ‘‘Summary of Department at Arizona State University. species, such as Lilaeopsis, occur there. Factors Affecting the Species,’’ herein. Dr. Jones is a professor at Grand Canyon Comment: One commenter stated that Comment: One commenter found that University. there were no significant current threats the Service failed to prove these species The published and unpublished data to any of these species in the San Rafael are declining and also failed to establish supporting listing of Lilaeopsis and Valley with the exception of potential that they perform vital biological Spiranthes were the result of the work unmonitored and increased recreation services for their ecosystem, are of a number of experienced biologists that could cause habitat degradation. necessary to maintain a balance of recognized in their fields. Much of the Service Response: As discussed in the nature, or that they contribute to literature cited in the proposed and final ‘‘Summary of Factors Affecting the biological diversity needed for rule was published in peer reviewed Species’’ section, threats to the species legitimate scientific purposes. scientific journals. Peer reviewed in the San Rafael Valley are many. The Service Response: As described in the scientific journals provide a level of Service acknowledges that recreational previous response, the Act and its scrutiny that ensures publication of the activities, such as off-road vehicle use, implementing regulations require status best information available. fishing that would involve illegal use or review and analyses to determine if Issue 5: Threats to the three species transportation of bait fish or species meet the definition of a were not adequately described or salamanders, fire caused by threatened or endangered species. supported by the best available recreationists and subsequent watershed Documented declines are one line of information. In some cases, the erosion and degradation, wood cutting, evidence that may contribute to a discussions of threats or other and other activities are threats to the decision to list a species; other factors information presented in the proposed Sonora tiger salamander, Lilaeopsis, may be important. Documented declines rule were confusing, unclear, and and/or Spiranthes, in and near the San are not a requirement for listing. Neither contradictory to available information. Rafael Valley. However, these species do endangered species need not perform Comment: One commenter questioned face many other threats in the San vital biological functions for their the reference to a loss of 90 percent of Rafael Valley, as well. As discussed ecosystems or contribute to biological the riparian habitat in southern Arizona. herein, all three species are vulnerable diversity (section 4(a) and 4(b) of the This commenter stated that the loss to chance extinction owing to limited Act). figure was extrapolated from a study of numbers of populations and Comment: One commenter questioned cottonwood-willow habitat along the individuals, and climatic and other the historical reference to habitat Colorado River in the Yuma area and environmental variability. The Sonora qualities of the Santa Cruz River and does not represent an actual inventory tiger salamander is threatened by stated that the river is still a ‘‘rapid of historical riparian areas in the introduction of nonnative predators, brook, clear and crystal’’ now, following Arizona. Another commenter also stated disease, habitat degradation due to heavy rains. that this figure was inaccurate. heavy use by livestock at some tanks, Service Response: The Service Service Response: The proposed rule and a variety of other factors, all of searched historical references to provide stated ‘‘The State of Arizona (1990) which operate in the San Rafael Valley. answers to the specific questions and estimates that up to 90 percent of the Subdivision of ranches into ranchettes has fully incorporated that information riparian habitat along Arizona’s major or housing tracts is an additional threat into the rule; however, the Service is desert watercourses has been lost, to all three species within the San unaware of any instances where the degraded, or altered in historic times.’’ Rafael Valley. Subdivision could result reach of the Santa Cruz River near The Service believes this is an accurate in fragmentation of cienega habitats and Tucson presently meets the historical statement. The exact percentage of increased groundwater pumping. habitat description. riparian habitat lost, degraded, or Comment: One commenter stated that Comment: One commenter stated that altered cannot be determined, because discussions of threats to the Sonora tiger information provided in the notice was knowledge of predevelopment salamander described by the Service at not the result of scientific research nor conditions is often anecdotal or the Patagonia public hearing and in the did any of the persons referenced in the incomplete. However, numerous factors proposed rule differed. In particular, the notice have scientific training or have cumulatively resulted in habitat proposed rule indicated the salamander expertise. Another commenter stated loss and degradation throughout most of faced many more serious threats than that the Service either misrepresented the major desert watercourses in were indicated at the public hearing. the best scientific and commercial data Arizona, particularly the Colorado, Gila, Service Response: The Service’s available or ignored these data Salt, Santa Cruz, and Verde rivers. presentation at Patagonia on the altogether. These include—introduction of proposed listing was abbreviated to allot Service Response: The Service nonnative plants, such as salt cedar as much time as possible to hear public considered all known sources of (Tamarix spp.); carrizo (Phragmites comment. Rather than discuss all information in its decisions to list these australis), and watercress (Rorippa known or potential threats in detail, the species. As required in 50 CFR nasturtium-aquaticum); construction Service presented an overview of the 424.11(b), the best scientific and and operation of dams, which have status of the taxa based on information commercial data available formed the altered flow and flooding regimes, in the proposed rule. 676 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Comment: One commenter stated that and the Fort is in the planning stages. has been revised to include efforts by two of the three species are abundant Thus, the Service still considers erosion the City of Sierra Vista and Fort and not in peril in Mexico, and caused by development in the Huachuca to maintain flows in the San therefore listing is not warranted. watershed a threat to the habitat of Pedro River. The proposed rule did not Service Response: Neither Spiranthes Lilaeopsis in the San Pedro River. specifically mention groundwater nor the Sonora tiger salamander have Comment: One commenter stated that, pumping by the Town of Patagonia as a been confirmed from Mexico, although contrary to statements in the proposed threat to any of the three species. a population of tiger salamanders rule, stock tank maintenance is However, the Service acknowledges and suspected to be of the subspecies beneficial to the Sonora tiger appreciates efforts by the Town of stebbinsi was observed at Los Fresnos, salamander because it removes Patagonia to avoid possible adverse Sonora. Lilaeopsis schaffneriana ssp. nonnative fish. Concern also was effects to listed species and to maintain recurva is known from three sites in expressed that listing would result in flows in Sonoita Creek. Sonora; all of these sites face similar removal of grazing and cessation of Comment: One commenter stated that threats to those north of the stock tank maintenance. Another testimony by Dr. Thomas Maddox, international border, in the United commenter stated that habitat Department of Hydrology and Water States. conditions for these species, especially Resources, University of Arizona, Comment: One commenter stated that the salamander, have improved in the refutes information presented in the Lilaeopsis occurs in some areas without past 30 years because landowners have proposed rule in regard to the effects of perennial flows and with a regulated directly benefitted and increased the groundwater pumping on the San Pedro hydrograph, contrary to information extent of habitat through stock tank River. Another commenter noted that presented in the proposed rule. construction. Maddock and Vionnet (1991) found that Service Response: The Service is Service Response: Maintenance of the ‘‘the mean depletion rate of the regional unaware of any sites containing tanks is necessary not only to preserve aquifer in the Sierra Vista area from Lilaeopsis that do not have perennial their value for livestock but also to pumping is very small and that flows. benefit salamander populations. Tanks pumping from the regional aquifer is not Comment: One commenter believed would silt in and aquatic habitats would the major factor imperilling stream statements in the proposed rule be lost without periodic maintenance. flow.’’ This commenter also stated that suggesting development in the upper The Service acknowledges that the conservation measures for recharge San Pedro River Valley will result in maintenance also may help remove and reuse of sewage effluent increased erosion and other detrimental nonnative fish species that prey upon recommended in this study will not be hydrologic effects are inaccurate and the Sonora tiger salamander. Silt is implemented if the listing process is unsupported. typically removed from tanks when they Service Response: Development can are dry or nearly dry. Remaining fish finalized. One commenter stated that result in elevated runoff rates, such as might be dredged out of the tanks or groundwater pumping does not pose an from parking lots and roadways, and killed during silt removal. As described immediate threat to populations of increased erodibility of soils due to soil in the proposed rule, salamanders Lilaeopsis at Lewis Spring and south of disturbance, removal of vegetation, and present in the tanks would probably Boquillas Road. disturbance of natural drainageways. also be killed. The Service believes that Service Response: The point of the Increased runoff rates and erosion in the certain mitigating precautions are Service’s discussion in the proposed Sierra Vista subwatershed can lead to possible to reduce adverse effects to and final rules in regard to groundwater more frequent ‘‘flash’’ floods and salamander populations resulting from pumping in the Sierra Vista deposition and movement of sediment removal of silt or other maintenance subwatershed is that withdrawal of in the San Pedro River. This increased activities. These mitigation measures water from the aquifer in excess of hydrologic instability would be will be addressed through the section 7 recharge threatens the baseflow of the detrimental to Lilaeopsis, which does consultation process and in recovery upper San Pedro River and, in turn, not tolerate high levels of disturbance or planning. As discussed elsewhere in threatens Lilaeopsis habitat. Nothing in channel instability. Additionally, flash this final rule, the Service believes well- Dr. Maddox’s testimony nor in Maddock floods could scour existing Lilaeopsis managed livestock grazing is compatible and Vionnet (1991) refute this claim. On out of the system and could occur with with viable salamander populations. page 46 of Dr. Maddock’s testimony he frequency or intensity that would not Thus, listing will not result in removal states that if pumping continues ‘‘the allow for refugia sites for Lilaeopsis and of grazing or the need for well- cone of depression continues to expand. subsequent recolonization. maintained water sources, such as stock It actually turns the stream (the San The city of Sierra Vista has adopted tanks. Pedro River), which is in some cases a Surface Water Plan to address regional Comment: Several commenters stated perennial in the reaches, to management of surface runoff. The plan that the analysis of threats in the intermittent.’’ On pages 65 and 66 of the includes construction of flood proposed rule did not take into account testimony he states that if pumping detention/retention basins at 30 efforts by the City of Sierra Vista and the continues the San Pedro River may locations (ASL Hydrologic & town of Patagonia to maintain flows in become like reaches of the Santa Cruz Engineering Services (ASL) 1995). New the San Pedro River and Sonoita Creek, River that are now dry and devoid of construction also includes provisions respectively. Groundwater pumping by riparian vegetation due to groundwater for stormwater retention and increased Patagonia does not affect Sonoita Creek. pumping. He goes on to say on page 84 infiltration. Fort Huachuca also is One commenter stated that the Service of the testimony that during the period investigating stormwater recharge as a had been contemptuous and arrogant by of his study, groundwater pumping in part of their Mountain Front Recharge not documenting in the proposed rule the Palominas area had reversed the Project (Fort Huachuca 1995). However, the City of Sierra Vista’s efforts to flow of groundwater so that the development is occurring outside of the protect the riparian habitat of the San groundwater was flowing to the cone of Sierra Vista/Fort Huachuca areas Pedro River. depression there, rather than into the without these same controls, the city’s Service Response: The ‘‘Summary of San Pedro River, which directly reduced plan has not been fully implemented, Factors Affecting the Species section’’ river flows. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 677

Much of the pumping in the substantially reduce or preclude flow that would otherwise be Palominas area has been halted in recovery options. discharged to the floodplain aquifer recent years, and this condition may The Service does not believe that (ASL 1994). As of 1990, pumping in the have changed. However, it illustrates listing these three species will result in Palominas-Hereford area exceeded the potential that groundwater pumping the City of Sierra Vista, Fort Huachuca slightly that in the Sierra Vista-Fort has to affect flows in the San Pedro or others in the Sierra Vista Huachuca area (ASL 1994, Arizona River. The problem is not trivial. ASL subwatershed abandoning efforts to Department of Water Resources 1991). (1995) calculated that the cone of reduce water use and increase recharge. Pumping at Palominas-Hereford has depression in the Sierra Vista/Fort These efforts are probably driven by probably declined since then, while Huachuca area in 1995 was in excess of projected increased pumping costs as pumping at Sierra Vista-Fort Huachuca 36.6 m (120 ft) deep with drawdown groundwater elevations decline, the Gila has likely increased, but the former levels of more than 6.1 m (20 ft) River water rights adjudication, and would still be the major impact on the extending from north of Huachuca City other considerations. To the contrary, floodplain aquifer because it extracts and the Babacomari River to well south efforts by the City of Sierra Vista, Fort water primarily from that aquifer, of Highway 90, a distance of Huachuca, and other water users to whereas water pumped in the Sierra approximately 18 km (11 mi). Water and conserve water, develop effluent Vista-Fort Huachuca area comes from Environmental Systems Technology, recharge, enhance mountain front deeper aquifers. Inc. (1994) estimated that even if all recharge, etc., complement actions to Comment: One commenter stated that pumping stopped in the Sierra Vista/ recover Lilaeopsis and Spiranthes. the drying of stock tanks inhabited by Fort Huachuca area, the cone of Comment: Several commenters stated Sonora tiger salamanders is not a depression would continue to spread that, contrary to information presented serious threat because the larval toward the river as it flattened out and in the proposed rule, livestock grazing salamanders metamorphose and return river flows would continue to decline is not detrimental to Spiranthes. to breed when the tanks refill. through the year 2088. Populations in grazed areas are larger Service Response: If tanks dry out Groundwater modeling indicates that and healthier than at a site where slowly, some salamanders will effects to upper San Pedro River grazing has been excluded since 1969. metamorphose into terrestrial adults baseflows may not occur for 25 years or Grazing may have replaced fire as a and leave the tank. Young larval more (ASL 1995), thus the Service form of disturbance in cienegas. salamanders, perhaps less than 6 concurs that groundwater pumping in Removing or restricting grazing would months of age, and some branchiate the Sierra Vista/Fort Huachuca area be detrimental to Spiranthes. salamanders (mature aquatic forms), does not pose an immediate threat to Service Response: Discussions of particularly older branchiates, are Lilaeopsis. However, adverse effects are well-managed livestock grazing and incapable of metamorphosing into a likely to occur in the foreseeable future Spiranthes presented in the proposed terrestrial form and would be lost. The unless mitigating actions are rule did not indicate a detrimental percentage of aquatic salamanders lost implemented very soon. These measures effect. The Service stated that our when a tank dries out would depend on could include water conservation, preliminary conclusion is that well- the age structure of the population and effluent recharge, watershed managed livestock grazing does not the dryness of the season. If a tank dried improvements, stormwater recharge, harm Spiranthes populations. during May or June, which is the dry and others, many of which are in the Additionally, the Service acknowledges season in the San Rafael Valley, most or planning stages or are being that Spiranthes may favor some form of all salamanders hatched that spring implemented to some degree in the mild disturbance and would not would not be able to metamorphose. subwatershed. Modeling suggests that if recommend the removal of grazing as a Survival of salamanders during effluent recharge and other measures are component of responsible stewardship. metamorphosis or after they leave the implemented, flows may actually However, negative effects of overgrazing tank is unknown, but predation of increase in some reaches over the next remain a concern. The Service has tried larvae may be high as water levels 100 years (ASL 1995, Water and to differentiate responsible, well- decline (Webb and Roueche 1971). If Environmental Systems Technology, managed, livestock grazing from poor aquatic habitat in a tank is lost rapidly Inc. 1994). However, in the long term, livestock management and overgrazing. due to sedimentation after a storm or unless water withdrawals are brought Comment: One commenter stated that breaching of the impoundment, into balance with recharge, growing the following statement in the proposed salamanders would not be capable of cones of depression will eventually rule is incorrect; groundwater pumping metamorphosing into terrestrial forms capture effluent recharge and river in the Hereford-Palominas area has the and all aquatic salamanders would be flows, and Lilaeopsis habitat in the San largest impact on the aquifer of any lost. Terrestrial adults in the area may Pedro River will be lost. groundwater pumping in the upper San return to the tank when it refills, breed, Groundwater elevation has already Pedro River basin. and repopulate the tank with larvae and declined under portions of the Service Response: Wells in the branchiates. This has apparently Babocomari River (ASL 1995), thus Hereford-Palominas area are or were occurred at several sites, including Spiranthes occurring on that river may located in the floodplain of the San Campini Mesa North Tank, Huachuca also be threatened in the long-term, The Pedro River and draw water directly Tank, Parker Canyon Tank #1, and Inez Service is unaware of studies or from the shallow aquifer and, in some Tank; (Collins 1996, Collins et al. 1988). modeling that specifically addresses cases, from deeper regional aquifers. However, as noted in the ‘‘Summary of areas where the species occurs. Loss of Wells farther from the river, such as Factors Affecting the Species’’ section, if Lilaeopsis on the San Pedro River and those at Fort Huachuca, draw water a tank were dry for several years and Spiranthes on the Babocomari River from deep aquifers, and not directly isolated from other salamander would not, alone, likely result in the from the floodplain aquifer. Wells that populations, insufficient terrestrial extinction of these species. However, draw water from the floodplain aquifer salamanders may remain and loss of these populations and habitats are more likely to directly affect river immigration from other populations would significantly increase the flow, but wells elsewhere in the may be inadequate to recolonize a tank. likelihood of extinction and watershed may intercept groundwater In any case, drying of a tank and loss of 678 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations any salamanders may reduce the predation by a variety of birds and ecologists with recognition in their number of breeding individuals and mammals likely contributes to mortality fields, the Service sees no reason to further reduce genetic heterogeneity, of Sonora tiger salamanders. However, question their expertise because data on which is very low in this subspecies. population declines and extirpations of the effects of fire is inconclusive at this Further reduction of genetic diversity this subspecies have not been attributed time. increases the chance of local to bird and mammal predation; the most Comment: One commenter stated that extirpations, as described in ‘‘Summary apparent and direct causes are predation consumptive water use by sand and of Factors Affecting the Species’’ by nonnative fish and mortality due to gravel operations was inadequately section. The Service acknowledges, and disease (Collins and Jones 1987, Collins evaluated. The commenter stated that discussions herein have been modified, 1996). the Service has no substantive evidence to recognize that drying of tanks can Comment: The species are not that sand and gravel mining and control some nonnative predators, adversely affected by threats because processing could cause Spiranthes or particularly fish. they are capable of moving to other Lilaeopsis habitat or population losses Comment: One commenter locations. either upstream or downstream of a recommended not listing Spiranthes Service Response: All three species mining operation. The commenter because endangered status will increase have limited distributions and are found further added that the Service failed to the demand for specimens and result in only in rare wetland habitats with very provide information on how sand and increased collecting pressure. specific characteristics. For instance, gravel mining at the Babacomari Ranch Service Response: The Service aquatic populations of the Sonora tiger could affect at least one Spiranthes acknowledges that listing could salamander only occur in stock tanks population. potentially increase demand for and impounded cienegas in the San Service Response: Mining of sand and specimens; however, the Service Rafael Valley and adjacent areas where gravel within riparian systems can believes that the benefits of listing nonnative predators are rare or absent destabilize stream banks and channels, Spiranthes outweigh any additional and other subspecies of salamander are resulting in loss of riparian vegetation potential collecting pressures that absent. The salamander possesses and increased stream sediment loads. listing may create. limited mobility and may not be able to The Service has described herein the Comment: One commenter stated that move outside of its current range due to pumping of groundwater to process the three species have coexisted with competition and/or interbreeding with mined materials near the Babacomari cattle grazing for over 300 years, and other subspecies or for other reasons. River as a potential threat to one historical grazing intensity was much Spiranthes has an extremely limited Spiranthes site. This groundwater greater than it is today. As a result, distribution that may be the result of a pumping, combined with an expanding cattle grazing cannot be a threat. unique evolutionary history in the San cone of depression in the aquifer at Another commenter stated that studies Rafael Valley as discussed previously in Sierra Vista and Fort Huachuca, could have shown salamander populations this rule. There are few sites remaining dewater portions of the Babacomari decline when grazing is halted. that may be capable of supporting a River, and the Spiranthes population Service Response: The Service population, were the species able to located near the river could be lost with acknowledges that these species have colonize them. the elimination of surface water. coexisted with cattle grazing for up to The ability of Lilaeopsis to colonize Comment: One commenter stated that 300 years. At times in the past and in new areas within an aquatic system is the San Pedro River would not be certain areas, stocking levels were much dependent on the availability of habitat suitable habitat for the species because greater than today (Hadley and Sheridan and the existence of refugia within that it is a dynamic system, and thus would 1995). However, we disagree that this system. This has been discussed not provide habitat for successful long coexistence is evidence that cattle previously in this final rule. None of reestablishment. grazing has no adverse effects and does these three species are able to move to Service Response: The San Pedro not threaten these species. As discussed other locations when threats occur. The River is outside of the range of the in the ‘‘Summary of Factors Affecting species cannot move elsewhere because Sonora tiger salamander and Spiranthes. the Species,’’ the effects of improper there are few, if any, suitable habitats to The Service does not consider the San cattle grazing practices on these species which they can move with limited Pedro River as recovery habitat for are many, and depending on the species mobility. either of these species. While the San and the circumstances, may have Comment: One commenter stated that Pedro River is a dynamic system, varying impacts on the three species. it made no sense to reestablish Lilaeopsis has been able to remain The Service is unaware of any studies Lilaeopsis in the San Pedro River as that established within the system because that found salamander populations habitat is subject to scouring and of refugia sites that have not yet declined when grazing was halted. With flooding and would not be an undergone massive scouring or loss of the exception of the population at Fort appropriate habitat. perennial waters. An opportunistic Huachuca, the entire range of the Service Response: Various microsites species Lilaeopsis, has been able to salamander has been grazed by cattle for providing refugia for Lilaeopsis along recolonize some of the disturbed many years. the San Pedro River have enabled this habitats resulting from the dynamic Comment: One commenter suggested plant to reestablish itself within the nature of the system. The San Pedro that declining salamander populations main channel in areas providing River is an important recovery habitat may be attributable to predation by appropriate habitat. for Lilaeopsis. various birds and mammals rather than The experts referenced in the Issue 6: The three species should be factors indicated in the proposed rule. proposed rule are reputable biologists listed as threatened rather than Service Response: Predation by with an extensive knowledge of endangered. coyotes, bobcats (Webb and Roueche Spiranthes. The extent of their Comment: One commenter stated that 1971), badgers (Long 1964), raccoons, qualifications as fire ecologists is the three species should be listed as gulls, and wading birds (Degenhardt et unknown to the Service; however, as threatened rather than endangered al. 1996) has been documented for other these experts (McClaren, Sundt, Gori, because threats are localized and some subspecies of tiger salamander, and and Fishbein) are taxonomists and populations are secure. Another Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 679 commenter stated that the proposed rule including a 60-day period from April 3 should be held in all areas potentially should be withdrawn because there is to June 2, 1995; 30 days from June 24 affected. Hearing times and locations no biological evidence that the species to July 24, 1995; and 45 days from were inconvenient and not conducive to meet the statutory definition of September 11 to October 27, 1995; a public participation. endangered species. The best available total of 135 days. Service Response: In regard to public scientific information does not support The Service is required to hold at notification of public hearings, 50 CFR the contention that they are endangered least one public hearing if any person so 424(c)(3) and provisions of the APA throughout a significant portion of their requests within 45 days of publication require the Service to publish a notice range. of a proposed rule (50 CFR 424.16(c)(3)). in the Federal Register not less than 15 Service Response: An endangered The Service received two requests for a days before the hearing is held. Notices species is one that is in danger of public hearing within the 45 day request announcing a public hearing were extinction throughout all or a significant period. In response, a public hearing published in the Federal Register 21 portion its range (50 CFR 424.02(e)). A was held in Patagonia, the closest town days before the July 13, 1995, hearing in threatened species is likely to become with facilities for a hearing to the Patagonia (June 22, 1995) and 15 days an endangered species within the residents requesting the hearing and before the September 27, 1995, public foreseeable future throughout all or a only 36 highway miles from Sierra hearing in Sierra Vista (September 12, significant portion of its range (50 CFR Vista. Additional requests for a public 1995). The Service’s Listing Handbook, 424.02(m)). The three species listed here hearing in Sierra Vista were received which is internal agency guidance, are endangered because of widespread more than 45 days after publication of requires that notifications of public and serious threats that are thoroughly the proposed rule. The Service granted hearings be published in major and discussed in the ‘‘ Summary of Factors those requests and held a second public local newspapers within 20 days of the Affecting the Species’’ section of this hearing in Sierra Vista. hearing. This requirement was met; rule. In response to requests from the publication dates and newspapers Issue 7: The Service failed to follow public, and in accordance with the Act where notices were published are listed Federal or other regulations in regard to and its implementing regulations, the in ‘‘Summary of Comments and the listing of these species. Freedom of Information Act, and the Recommendations’’ section. Hearings Comment: The proposed rule is void APA, the Service provided copies of were held in the evenings during the because this final rule was not documents to several members of the week, when most people are not published within 12 months of receipt public and loaned the administrative working and can attend. The hearing of the listing petitions. record to the City of Sierra Vista for locations were in Patagonia and Sierra Service Response: The Service copying. Some requests for information Vista, which are major population published a proposed rule to list these were not promptly addressed because centers near the center of the species on April 3, 1995. In accordance they were contained within comment distribution of these species, and near with 50 CFR 424.17, the Service is letters on the proposed rule. In the homes of citizens requesting required to publish a final accordance with Service guidance on hearings. determination, withdrawal, or extension implementation of Public Law 104–06 Comment: Commenters stated that the within 1 year of the date of the proposed that halted work on final rules, Service, in violation of its own rule. In this case, the final rule was comment letters were filed and not read; regulations, failed to give notice to and published well over a year after the thus granting of some information consult with local authorities in the proposed rule; however, this was due in requests were delayed. However, the Republic of Mexico, on development of part to legislation preventing the Service Service did not deny any information the proposed rule and failed to notify from issuing final rules from April 10, requests, with the exception of Mexico of publication of the proposed 1995, to October 1, 1995; a near information withheld in accordance rule. cessation of listing actions from October with exemptions to disclosure under the Service Response: A letter notifying 1, 1995, to April 26, 1996, due to budget Freedom of Information Act. the Director General, Direccion General limitations. The Service disagrees that Comment: One commenter stated that de Vida Silvestre, Mexico City, Mexico this invalidates this final rule. people without proper biological of this final determination, along with a Comment: One commenter stated that training influenced the listing process, copy of the proposed rule (60 FR 16836) the Service did not provide adequate and thus the process is flawed. was sent to for review and comment. As time for the public to comment on the Service Response: The Service is of December 9, 1996, no comments were proposed rule. The Service violated the required to consider all comments and received from the Mexican government. Act and the Administrative Procedure information received regardless of the Comment: Listing of the three species Act (APA) by not providing the public extent of any biological training of the would constitute a violation of the with sufficient opportunity to comment. people submitting them. The Service National Environmental Policy Act of The Service also violated both Acts by recognizes that non-biologists may have 1969 (NEPA), because the Service did denying public access to materials upon valid comments or information that may not analyze the economic impacts of the which the proposed rule was based. One contribute to a final determination. action. Because the Service did not commenter stated that the first public However, the Service’s decision to list provide adequate notice and hearing was held in a small town these species were based only on the opportunity to the public to comment located in a different county, and far best scientific and commercial on the proposed rule, the Service must away from the major population area information available, in accordance complete an NEPA analysis to guard impacted by the proposed listing—a with 50 CFR 424.11(b). against an arbitrary and capricious transparent attempt to prevent public Comment: Several commenters stated decision. An environmental assessment awareness in the City of Sierra Vista. that the Service failed to comply with or impact statement should be Service Response: The Service is its own regulations governing public completed prior to listing. required to allow 60 days for public notification of hearings on the proposed Service Response: As discussed in the comment on proposed rules (50 CFR rule. Other commenters believed more ‘‘National Environmental Policy Act’’ 424.16(c)(2)). Three comment periods public hearings were necessary and that section in this rule, the Service has were provided on the proposed rule, public meetings on the proposed rule determined that neither environmental 680 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations assessments nor environmental impact Comment: One commenter believed date from at least 31,000 years ago statements need to be prepared for the Service violated Section 4(b)(1)(A) (Jones et al. 1995). Additional proposed or final listing actions. of the Act. This commenter stated that Ambystoma tigrinum fossils dating from Comment: The Act is expired and we misrepresented the known the late Pliocene, more than 2 million thus these species should not be listed. requirements of the salamander, years ago, have been found in the San Service Response: No laws or therefore, violating the Act. This Pedro River Valley, east of the regulations limit the duration of the commenter said our discussion of the Huachuca Mountains (Brattstrom 1955). Act’s provisions. Section 15(a) of the threats of rural and urban development, Hybridization is an important Act authorizes appropriations for road building, chaining, agriculture, evolutionary process from which new implementation only through fiscal year mining, and other watershed degrading taxa can arise (Harlan 1983, review in 1992, but Congress has appropriated activities to Lilaeopsis was speculation Jones et al. 1995). The Sonora tiger funds in each fiscal year since 1992 to and a violation of the Act. salamander likely resulted from a fund activities such as this final rule. Service Response: Habitat and other hybridization between the subspecies Comment: De facto division of species requirements of the Sonora tiger mavortium and nebulosum. The latter into separate populations at the salamander presented here and in the no longer occurs in southeastern international border is unsupported by proposed rule were based on the best Arizona; its range has shifted to the either biology or the Act, and runs scientific and commercial information north, an event that likely occurred counter to the 1984 Agreement of available. during climatic and vegetational shifts Cooperation of Wildlife between Mexico Comment: One commenter questioned during the Pleistocene (Jones et al. and the Service. whether persons conducting studies on 1995). The absence of this ancestral these species had landowner permission Service Response: The Service has not subspecies in southeastern Arizona is to access sites. This commenter also attempted to split species into separate further evidence that the Sonora tiger questioned whether landowners had populations with the international salamander originated long before been given information on what work boundary as a dividing line. Each historical times. Because stock tanks are was being done and the reasons behind species or subspecies is being listed a recent phenomenon, Sonora tiger the research. throughout its range. The term salamanders must have occupied other Service Response: Surveys and ‘‘population’’ is used in this rule only as habitats at one time. Throughout its studies on these species were conducted a term of convenience when referring to range, Ambystoma tigrinum breeds in by many individuals over many years. a particular part of a taxon’s range. various types of wetlands, including The Service used the results from those ponds, lakes, slow streams, and Comment: One commenter stated that studies, but the Service has no control the notice was irretrievably flawed on a backwaters (Bishop 1943). Habitats such over the conduct of independent as these were present in the San Rafael legal and technical basis by its use of an researchers, and thus we cannot answer obsolete address to which comments Valley during presettlement times in the this question definitively. Nearly all form of cienegas and streams. Although and requests for public hearings on the survey work for these species conducted proposed rule were to be sent. no Sonora tiger salamanders have been by Service personnel has focused on collected from cienegas or streams (with Additionally, this commenter stated that Federal lands. The few surveys comments and materials received were the possible exception of the specimen conducted by the Service on private from Los Fresnos, Sonora), these not available for public inspection at the lands were with the permission of the old address; therefore, the Service must, wetlands are the most likely landowner. presettlement breeding habitats of the by law, withdraw the proposed rule. Comment: One commenter stated that salamander. Service Response: Between the time the listing of these three species would the proposed rule was prepared and its violate State water law. There is no evidence that supports the publication, the Service moved its office Service Response: The listing of these commenter’s claim that Lilaeopsis and location within Phoenix, Arizona. The species does not restrict groundwater Spiranthes are recent introductions by proposed rule listed the old address and pumping or water diversions, or usurp humans into the San Rafael Valley. facsimile number and the correct water rights, or violate State water law. Lilaeopsis has been noted from sites telephone number. The Service received Issue 8: The Sonora tiger salamander within the Santa Cruz, San Pedro, Rio some comment letters mailed to the old is a hybrid organism and all three Yaqui, and Rio Sonora watersheds. address, indicating that the Post Office species are recent introductions to the Lilaeopsis was first described based on was forwarding the mail. A recorded San Rafael Valley, and as such should a specimen collected near Tucson in phone message at the old phone number not be considered for listing. 1881 (Hill 1926). There is no indication also informed callers of the new number Comment: The species are not native that this inconspicuous plant was in the event the old office was but were introduced within the last 300 introduced by humans. Spiranthes was contacted. The Service is unaware of years. One commenter stated the not discovered until 1968; however, any comment letters, requests for salamander was introduced into the San evidence suggests this species has a hearings, or requests to inspect records Rafael Valley earlier in this century and unique evolutionary history associated that were returned to the sender, or that there is no verifiable evidence that with the San Rafael Valley and may telephone callers that were not informed it ever occurred in any significance in have arose through hybridization of our new number. In Federal Register cienegas. Stock tanks are the natural between Spiranthes vernalis (a species notices announcing subsequent habitat of the salamander. One of the southern Great Plains) and either comment periods, from June 24 to July commenter stated that the Sonora tiger Spiranthes porrifolia (a California- 25, 1995, and September 12 to October salamander was introduced for use as Northern Cordilleran species) or 27, 1995, the correct address and phone fish bait. Spiranthes romanzoffiana (a species of numbers were published. The Service Service Response: All evidence high elevations in northern Arizona, the thus believes the public was provided suggests the species have occurred southern Rockies, and Pleistocene relict adequate opportunity to provide within their present ranges for much habitats in the Pinalenos (Sheviak 1990, comment on the proposed rule and longer than 300 years. Fossil Jones et al. 1995; Charles Sheviak, in inspect supporting information. Ambystoma found in the Canelo Hills litt. 1995)). Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 681

Issue 9: Experts on Lilaeopsis and the salamander; and is not expected to of the effects of groundwater pumping Sonora tiger salamander believe these affect any habitat critical to the survival on San Pedro River flows depends on species do not warrant listing. of the umbel for several decades; (2) development and implementation of the Comment: Several commenters stated Sierra Vista has determined that effluent recharge program as outlined in that experts on the Sonora tiger recharging the City’s sewage effluent ASL (1995) for at least 100 years. ASL salamander (Dr. James Collins) and can protect the San Pedro River from (1995) notes that questions remain Lilaeopsis (Dr. Peter Warren) do not adverse effects caused by groundwater before the feasibility of long-term believe these species should be listed. pumping to support expected growth of recharge can be assessed. Also, we are Mexico also disagrees with the proposed the City and Fort Huachuca for at least unaware of any long-term funding endangered status. This expert 100 years, and probably much longer; commitments to operate such a testimony should convince the Service (3) Sierra Vista is actively pursuing program. Finally, the cone of depression not to list these species, or the Service projects to recharge its sewage effluent under Sierra Vista/Fort Huachuca should publish a notice in the Federal and increase floodwater recharge. Fort continues to grow in all scenarios. The Register extending the listing process to Huachuca also is actively working to Service is concerned that as it grows, resolve differences among experts in recharge effluent and increase the cone will in time (perhaps more regard to the status of these species. floodwater recharge. Both the City and than 100 years) capture the effluent Service Response: The Service Fort Huachuca are making real efforts to recharge and then the river itself, unless discussed the listing of the salamander protect the San Pedro River riparian water recharge is balanced with use. with Dr. Collins in October, 1996, and habitat and the species that live there; With regard to item 4, and as discussed asked him to clarify his position. Dr. and (4) the growth and development of in the ‘‘Summary of Factors Affecting Collins has found that the status of the Sierra Vista, including Fort Huachuca, the Species’’ section growth and salamander has been stable from the does not pose any immediate threat to development at Sierra Vista and Fort mid 1980’s to the present, based on any critical habitat or endangered Huachuca, particularly groundwater numbers of occupied breeding sites. species currently under consideration, pumping, but other activities as well, However, he believed that continued and it is anticipated that action will be potentially threaten Lilaeopsis. In spread of nonnative predators, presence taken by both entities to eliminate any addition, activities at Fort Huachuca of a reoccurring, lethal disease, and such threat before it occurs.’’ could potentially affect Sonora tiger other factors warrant concern and that Service Response: Information in the salamander and Lilaeopsis populations some conservation measures are needed. ‘‘Summary of Factors Affecting the on the Fort. As of this writing, the The Service has discussed the Species Section’’ has been revised based Service is in informal conferencing with statements attributed to Dr. Warren with on new information in regard to the Fort Huachuca with regard to him. Dr. Warren has worked towards effects of groundwater pumping in and implementation of their Master Plan and developing and implementing near Sierra Vista, and efforts by Sierra possible effects to Lilaeopsis and the conservation measures in order to Vista and Fort Huachuca to conserve salamander. The Service’s opinion on provide for the recovery of Lilaeopsis or water, recharge effluent, and implement the Master Plan will be based on the possibly preclude its listing. As a staff other measures to reduce the potential effects of current and planned activities member of The Nature Conservancy effects of their activities on the San at Fort Huachuca on Lilaeopsis, the (TNC), neither Dr. Warren nor TNC has Pedro River and habitat of Lilaeopsis. salamander, and other listed species. taken an official stand in support or The Service has determined that opposition to the listing of Lilaeopsis designation of critical habitat for these Summary of Factors Affecting the (Peter Warren, Arizona Nature three species is not prudent. For Species Conservancy, pers. comm. 1996). discussion relating to critical habitat After a thorough review and The Mexican government has not (Item 1), see the ‘‘Critical Habitat’’ consideration of all information taken or expressed an official position section of this rule. The Service concurs available, the Service has determined regarding listings of these three species. with item 3, but cannot concur with that Spiranthes delitescens, Lilaeopsis As stated previously, the Service has not portions of items 2 and 4. In regard to schaffneriana spp. recurva, and the received comments from Mexico. item 2, ASL (1995) found that if effluent Sonora tiger salamander should be Mexico considers the tiger salamander, is recharged adjacent to the San Pedro classified as endangered species. Ambystoma tigrinum, a species of River or at the Sierra Vista wastewater Procedures found at section 4(a)(1) of special protection. treatment plan, flows would be the Act and regulations implementing Issue 10: Current actions of the City maintained or increased on the San the listing provisions of the Act (50 CFR of Sierra Vista and Fort Huachuca do Pedro River from Lewis Springs to Part 424) were followed. A species may not affect the species, and planned Charleston Bridge (downslope and be determined to be an endangered or actions are not expected to affect the downstream of the recharge areas, threatened species due to one or more salamander or Spiranthes. Habitat of respectively) for at least 100 years. of the five factors described in section Lilaeopsis would not be affected for However, in all scenarios modeled by 4(a)(1). These factors and their several decades. ASL, river flow declined between application to Spiranthes delitescens Comment: The Director of Public Palominas and Lewis Spring. Sheviak (Canelo Hills ladies’-tresses), Works for the City of Sierra Vista Furthermore, the model assumed that Lilaeopsis schaffneriana spp. recurva requested that the following information water demands outside of Sierra Vista (A.W. Hill) Affolter (Huachuca water be included in the Federal Register to are held at 1995 levels, which is highly umbel), and the Sonora tiger salamander correct the proposed rule—‘‘(1) unlikely. With increasing water (Ambystoma tigrinum stebbinsi) are as Groundwater use by Sierra Vista and demands throughout the subwatershed, follows: Fort Huachuca currently is not river flows between Palominas and endangering any habitat critical to the Lewis Spring will decline more than A. The Present or Threatened survival of the umbel, lily, salamander, indicated by ASL’s results, and flows Destruction, Modification, or or any other listed or proposed species; between Lewis Spring and Charleston Curtailment of its Habitat or Range is not expected to ever affect any habitat Bridge also may decline under any Human activities have affected critical to the survival of the lily or the recharge scenario. Effective mitigation southwestern riparian systems over a 682 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations period of several thousand years. From became highly localized (Hadley and 1995, Water and Environmental Systems prehistoric times, settlements in Sheridan 1995). Although these events Technology, Inc. 1994). southern Arizona centered on oasis-like took place nearly a century ago, the Such measures are being developed cienegas, streams, and rivers. Prior to ecosystem has not yet fully recovered and implemented, including the early 1800’s, indigenous peoples and, in some areas, may never recover. development of a Surface Water Plan and missionaries used southern Arizona Wetland degradation and loss and Effluent Recharge Plan, and cienegas and riparian areas mostly for continues today. Human activities such adoption of water conservation subsistence purposes, including wood- as groundwater overdrafts, surface water measures by the City of Sierra Vista; and cutting, agriculture (including livestock diversions, impoundments, implementation of water conservation grazing), and food and fiber harvesting. channelization, improper livestock measures, enhancement of mountain In the early 1800’s, fur trappers nearly grazing, agriculture, mining, road front recharge, effluent recharge, and eliminated beaver from southern building, nonnative species other actions by Fort Huachuca (ASL Arizona streams and rivers (Davis 1986), introductions, urbanization, wood 1995, Fort Huachuca 1995). However, significantly changing stream cutting, and recreation all contribute to these measures may not be adequate to morphology. In addition, human-caused riparian and cienega habitat loss and balance use with recharge, halt the fire and trails may have significantly degradation in southern Arizona. The eventual interception of the river by altered riparian systems (Bahre 1991, local and regional effects of these cones of depression, and ultimately, Dobyns 1981). Hadley and Sheridan activities are expected to increase with maintain baseflow throughout the upper (1995) suggest that use of fire by native the increasing human population. Each San Pedro River (Water and Americans may have helped maintain threat is discussed in more detail below. Environmental Systems Technology, grassland communities in the San Rafael The largest area currently available for Inc. 1994, ASL 1995). If baseflow in the Valley, a practice which undoubtedly recovery of Lilaeopsis is the San Pedro river decreases, a desertification of the affected riparian and cienega habitats, as River along the perennial reach from riparian flora will occur (Stromberg et well. Hereford to about 4 miles north of al. 1996). If the groundwater drops below the elevation of the channel bed, European settlement of southern Charleston. Whether or not the species Arizona and northern Sonora probably the wetland plant (herb) association can recover there depends largely on did not begin to significantly affect where Lilaeopsis is found will be the future perennial surface flows in the natural communities until the late first plant association to be lost (Arizona river and a natural, unregulated 1600’s or early 1700’s when cattle were Department of Water Resources 1994, hydrograph. Perennial flow in the upper introduced (Hadley and Sheridan 1995). Stromberg et al. 1996). San Pedro River is derived from However, resistance by Apaches and Fort Huachuca also relies on a well precipitation runoff and interflow other tribes discouraged settlement until and springs in Garden Canyon (Arizona through the unsaturated soil horizon, the early to mid-1800’s, after which Department of Water Resources 1991). and baseflow in the form of human populations and associated These diversions and pumping could groundwater flow from deep regional livestock production and agriculture dewater the stream and damage or increased significantly. By the late aquifers and a shallower floodplain destroy the Lilaeopsis population in the 1800’s, many southern Arizona aquifer (Arizona Department of Water canyon, particularly during below- watersheds were in poor condition due Resources 1991, Arizona Department of average rainfall periods. The City of to uncontrolled livestock grazing, Water Resources 1994, ASL 1994, Sierra Vista is exploring means for mining, hay harvesting, timber Jackson et al. 1987, Vionnet and implementing conservation and habitat harvesting, and other management Maddock 1992). restoration actions for Lilaeopsis and practices, such as fire suppression Groundwater pumping has increased other rare plants. (Martin 1975, Bahre 1991, Humphrey dramatically since the early 1960’s (ASL Perennial flows in certain reaches of 1958, Hadley and Sheridan 1995). 1994). Annual water use exceeds the Santa Cruz River remained Watershed degradation caused by supplies by approximately 11,200 acre- perennial until groundwater pumping these management practices led to feet and has resulted in cones of caused the water table to drop below the widespread erosion and channel depression in the aquifer at areas with streambed. In 1908, the water table near entrenchment when above-average significant groundwater pumping. These Tucson was above the streambed, but precipitation and flooding occurred in areas include Sierra Vista and Fort from 1940–1969, the water table was the late 1800’s (Bahre 1991, Bryan 1925, Huachuca, Huachuca City, and the 6.0–21.0 m (20–70 feet) below the Dobyns 1981, Hastings and Turner 1980, Hereford-Palominas areas (Water and streambed (De la Torre 1970). Recovery Hendrickson and Minckley 1984, Martin Environmental Systems Technology, of perennial flow in the Santa Cruz 1975, Sheridan 1986, Webb and Inc. 1994). Although the relationships River and of Lilaeopsis near Tucson is Betancourt 1992). These events between groundwater pumping and unlikely, given the importance of contributed to long-term or permanent river flow are complicated, continued groundwater for the metropolitan area. degradation and loss of cienega and unmitigated groundwater withdrawal Groundwater pumping in Mexico riparian habitat throughout southern threatens to reduce or eliminate threatens populations of Lilaeopsis on Arizona and northern Mexico. Physical baseflows in the San Pedro River both sides of the border. South of the evidence of losses and changes in (Arizona Department of Water San Bernardino National Wildlife cienegas and other riparian areas can be Resources 1991, ASL 1995, Water and Refuge, groundwater is being pumped to found in the black organic soils of cut Environmental Systems Technology, irrigate farmlands in Mexico, and this banks in the San Rafael Valley Inc. 1994). A reduction in baseflow as pumping threatens to dry up the springs (Hendrickson and Minckley 1984), San a result of groundwater pumping in the and streams that support several listed Pedro River (Hereford 1992), Black Sierra Vista-Fort Huachuca area could endangered fish and a population of Draw (Sue Rutman, Organ Pipe National occur within 25 years, but such effects Lilaeopsis. The large copper mine at Monument, pers. comm. 1992), and could be reduced by water conservation, Cananea, Sonora, pumps groundwater elsewhere. Between the 1860’s and mid- watershed management, effluent for processing and support services. 1890’s, the lush grasslands and cienegas recharge or other measures to reduce Although little is known about how of San Rafael Valley disappeared or water use or increase recharge (ASL groundwater pumping near Cananea Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 683 may affect the spring at Ojo de Agua de diversity, causing a decline in but these were abandoned when the Cananea, it is likely that overdrafts watershed condition. Poor livestock Service acquired the area as a refuge. would decrease springflow or dewater grazing management is widely believed The fields are returning to natural the spring, extirpating the Lilaeopsis to be one of the most significant factors vegetation. The San Rafael Valley, population. The spring at Ojo de Agua contributing to regional channel which contains portions of the de Cananea is also the main source of entrenchment in the late 1800’s. headwaters of the Santa Cruz and San municipal water for the town of Livestock management in Mexico has Pedro rivers, is well-managed, and Cananea. This water diversion, severely degraded riparian areas along currently undeveloped, with few particularly if increased, may adversely Black Draw and its watershed. The watershed-disturbing activities. affect Lilaeopsis. In the past, large degraded habitat most likely contributed However, there is potential for contaminant spills from the mine have to the severity of a destructive scouring commercial development in the San occurred, resulting in fish kills for many flood on San Bernardino Creek in 1988, Rafael Valley and resulting watershed miles of the San Pedro River in Mexico which extirpated two patches of effects. and the United States. The effects of Lilaeopsis. Overgrazing is occurring Riparian areas and cienegas offer such spills on Lilaeopsis are unknown, immediately adjacent to the San oasis-like living and recreational but could be detrimental. Bernardino National Wildlife Refuge opportunities for residents of southern Reaches of many southern Arizona and has destabilized the channel of Arizona and northern Sonora. Riparian rivers and streams have been Black Draw. A headcut moving areas and cienegas such as Sonoita channelized for flood control purposes, upstream threatens to undermine the Creek, the San Pedro River, Canelo Hills which disrupts natural channel riparian area recovery that has occurred cienega, and the perennial creeks of the dynamics and promotes the loss of since the refuge was acquired. The Huachuca Mountains receive substantial riparian plant communities. refuge is implementing management to recreational visitation, and this is Channelization modifies the natural avoid the destructive effects of expected to increase with an increasing hydrograph above and below the downstream grazing. southern Arizona population. While channelized reach, which may Sand and gravel mining along the San well-managed recreational activity is Pedro, Babacomari, and Santa Cruz adversely affect Lilaeopsis and unlikely to extirpate Spiranthes or rivers in the United States has occurred Spiranthes. Channelization will Lilaeopsis populations, severe impacts and probably will continue, although no continue to contribute to riparian in unmanaged areas can compact soils, mining occurs within the San Pedro habitat decline. Additional destabilize stream banks, and decrease Riparian National Conservation Area. channelization will accelerate the loss riparian plant density, including Sand and gravel operations remove and/or degradation of Spiranthes and densities of Spiranthes and Lilaeopsis. Lilaeopsis habitat. Dredging extirpated riparian vegetation and destabilize the Stream headcutting threatens the Lilaeopsis at House Pond, near the system, which could cause Spiranthes Lilaeopsis and presumed Sonora tiger extant population in Black Draw or Lilaeopsis population and habitat salamander populations at Los Fresnos (Warren et al. 1991). The Lilaeopsis losses upstream or downstream from the population at Zinn Pond in St. David mining. These mines also pump cienega in Sonora. Erosion is occurring near the San Pedro River was probably groundwater for processing purposes, in Arroyo Los Fresnos downstream from lost when the pond was dredged and and could locally affect groundwater the cienega and the headcut is moving deepened. This population was last reserves and perennial stream baseflow. upstream. The causes of this erosion are documented in 1953 (Warren et al. Since 1983, groundwater has been used uncertain, but are presumably livestock 1991). to wash sand and gravel mined near the grazing and roads in this sparsely Livestock grazing potentially affects Babacomari River, 0.8 km (0.5 mi) west populated region. If the causes of this Lilaeopsis at the ecosystem, community, of Highway 90 (Arizona Department of erosion are left unchecked and population, and individual levels. Cattle Water Resources 1991). This activity headcutting continues, it is likely that generally do not eat Lilaeopsis because could affect at least one Spiranthes the cienega habitat will be lost within the leaves are too close to the ground, population. the foreseeable future. The loss of Los but they can trample plants. Lilaeopsis Rural and urban development, road Fresnos cienega may extirpate the is capable of rapidly expanding in building and maintenance, agriculture, Lilaeopsis and tiger salamander disturbed sites and could recover mining, and other land disturbances populations. If the salamanders at the quickly from light trampling by that degrade watersheds can adversely Los Fresnos cienega are Sonora tiger extending undisturbed rhizomes affect Lilaeopsis. These activities are salamanders, this would represent the (Warren et al. 1991). Light trampling common in the middle Santa Cruz basin only known natural cienega habitat also may keep other plant density low, but much less prevalent in the San occupied by an aquatic population of providing favorable Lilaeopsis Pedro basin. For these reasons, this species. microsites. Well-managed livestock conservation and recovery of the middle All confirmed Sonora tiger grazing and Lilaeopsis are compatible. Santa Cruz River is unlikely but still salamander populations have been The fact that Lilaeopsis and its habitat possible in the upper San Pedro found in stock tanks or impounded occur in the upper Santa Cruz and San watershed, given region-wide planning cienegas constructed to collect runoff Pedro river systems in the San Rafael decisions favorable to good watershed for livestock. Many tanks probably date Valley attests to the good land management. Increased development in from the 1920’s and 1930’s when stewardship of past and current the upper San Pedro Valley, including government subsidies were available to landowners. the expansion of existing cities and offset construction costs (Brown 1985); Poor livestock grazing management increased rural building, will likely however, some tanks were constructed can destabilize stream channels and increase erosion and have other as early as the 1820’s and as late as the disturb cienega soils, creating detrimental watershed effects. 1960’s (Hadley and Sheridan 1995). conditions unfavorable to Lilaeopsis, Watershed-level disturbances are few These stock tanks, to some degree, have which requires stable stream channels in the upper Santa Cruz and Black Draw created and replaced permanent or and cienegas. Such management can drainages. Irrigated farm fields were semipermanent Sonora tiger salamander also change riparian structure and present in the Black Draw watershed, water sources. 684 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Although the tanks provide suitable collecting is likely to occur but is not been found during the last three aquatic habitats, current management expected to pose no threat to the visits. The effect of native fishes on and the dynamic nature of these species. salamander populations is unknown artificial impoundments compromise Although no specific cases of illegal (Collins et al. 1988), some native species their ability to support salamander commercial Spiranthes delitescens have a potential to prey on Sonora tiger populations in the long term. The tanks collecting have been documented, salamanders. No native fish are known collect silt from upstream drainages and commercial dealers, hobbyists, and to occur with aquatic populations of must be cleaned out periodically, other collectors are widely known to salamanders. typically with heavy equipment. This significantly threaten natural orchid Bullfrogs occur with Sonora tiger maintenance is done when stock tanks populations. The commercial value of salamanders at 16 of 23 sites at which are dry or nearly dry, at an average an orchid already threatened by illegal salamanders have been found during interval of about 15 years (Laura Dupee, commercial collection may increase one or more of the last three visits from Coronado National Forest, pers. comm. after it is listed as threatened or 1993 through 1996. Adult bullfrogs are 1993). As the tanks dry out, a proportion endangered. To limit the possible known to prey on salamanders; of aquatic salamanders typically adverse effects of illegal collecting, no however, bullfrog tadpoles do not eat metamorphose and migrate from the specific Spiranthes population locations viable salamander eggs or hatchlings pond. However, if water is present are discussed in this rule, nor will (Collins 1996; James Collins, pers. during maintenance, eggs, branchiate, critical habitat be designated. No comm. 1996). Bullfrogs were found to be and larval salamanders may be present recreational or educational uses for more widely distributed in the San and would be lost as a result of the Spiranthes currently are known. The Rafael Valley in the 1990’s as compared excavation of remaining aquatic habitat. small amount of legitimate scientific to 1985 (Collins 1996). The effect of Aquatic salamanders also may occur in collecting that has occurred was predation by bullfrogs on salamander the mud of dry or nearly dry tanks and regulated by the Arizona Native Plant populations is unknown; however, would be affected. Any terrestrial Law (A.R.S. Chapter 7, Article 1). increased mortality attributable to metamorphs at the tank or in areas Collecting of Ambystoma in the San bullfrog predation may reduce disturbed would be lost during Rafael Valley of Arizona is prohibited population viability. maintenance activities. by Arizona Game and Fish Commission Virtually no recruitment was noted in Flooding and drought pose additional Order 41. Collins and Jones (1987) recent surveys, as evidenced by a lack threats to stock tank populations of reported an illegal Ambystoma of surviving larvae in tanks where eggs Sonora tiger salamanders. The tanks are collection from the San Rafael Valley were known to have been deposited simple earthen impoundments without and suspected that bait collectors and (Collins 1996). Lack of recruitment water control structures. Flooding could anglers often move salamanders among appeared to be a result of predation by erode and breach downstream berms or stock tanks. The extent of this activity overwintering branchiate and larval deposit silt, resulting in a loss of aquatic and its threat to populations is salamanders. This predation may occur habitat. Long-term drought could dry up unknown. However, all Sonora tiger due to a lack of structural complexity, stock tanks, as witnessed in 1994 and salamanders populations are relatively such as emergent and shoreline 1996. Fires in watersheds above the small (Collins and Jones 1987, Collins vegetation, logs, and rocks, that would tanks may lead to increased erosion and 1996). Collecting may significantly provide cover and protection from sedimentation following storms and reduce recruitment, the size of predation (Collins 1996). Lack of exacerbate the effects of flooding. branchiate or larval populations, and shoreline and emergent vegetation is at Sonora tiger salamanders have genetic diversity within a tank. This least partially due to trampling and persisted in stock tanks despite periodic may increase the likelihood of foraging by cattle. maintenance, flooding, and drought. If extirpations. A disease characterized by sloughing the tanks refill soon after drought or of skin and hemorrhaging killed all C. Disease or Predation other events that result in loss of aquatic branchiate salamanders at Huachuca habitat, they could presumably be Neither the Lilaeopsis nor Spiranthes Tank, Parker Canyon Tank #1, and Inez recolonized through terrestrial are known to be threatened by disease Tank in 1985 (Collins et al. 1988) and metamorph reproduction. However, if a or predation. has been detected at seven tanks in tank was dry for several years and Sonora tiger salamanders populations 1995–1996 (James Collins, pers. comm. isolated from other salamander are eliminated by nonnative fish 1996). The disease may be caused by a localities, insufficient terrestrial predation, particularly sunfish and combination of a virus and Aeromonas salamanders may remain and catfish (Collins and Jones 1987, Collins (a bacteria) infections (James Collins, immigration from other populations 1996). In laboratory studies, bullhead, pers. comm. 1996). Parker Canyon Tank may be inadequate to recolonize the mosquito fish, and sunfish ate Sonora #1 and Inez Tank were recolonized by stock tank. Potential grazing practice tiger salamander eggs, hatchlings, and 1987, and salamanders were found once changes also threaten aquatic Sonora small larvae (Collins 1996). Introduced again at Huachuca Tank in 1994. These tiger salamander populations. Stock nonnative fish are well-established in tanks were presumably recolonized by tanks could be abandoned or replaced the San Rafael Valley and have been reproducing terrestrial metamorphs that by other watering facilities, such as implicated in apparent Sonora tiger survived the disease or that moved to troughs supplied by windmills or salamander extirpations from five stock these tanks from adjacent populations. pipelines. Troughs do not provide tanks, including the type locality At the seven tanks where the disease habitat for Sonora tiger salamanders. (Collins et al. 1988, Collins 1996). was found in 1995–1996, the effects on Nonnative fish are known to occur at the populations will not be known until B. Overutilization for Commercial, only one of 23 sites where salamanders the disease runs its course. If the disease Recreational, Scientific, or Educational have been found during one or more of recurs with enough frequency, Purposes the last three visits from 1993 through populations could be lost due to lack of No commercial, recreational, or 1996. However, nonnative fish occur at recruitment of juveniles into the adult educational uses of Lilaeopsis are 7 of 10 sites where the salamander is cohort. The disease also has the known. A limited amount of scientific thought to be extirpated or where it has potential to reduce genetic variability, Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 685 which is already very low in this taxon Management Act of 1976 (16 U.S.C. require ecosystem-level management (Jones et al. 1995). Low genetic 1600 et seq.) direct the Bureau of Land that in some cases is beyond Forest variability increases the chances of Management and the U.S. Forest Service Service control. population extirpation (Shafer 1990). respectively, to prepare programmatic- In accordance with Army Regulation Bullfrogs, wading birds, waterfowl, and level management plans that will guide 200–3, Fort Huachuca is preparing an other animals that move among tanks long-term resource management Integrated Natural Resources may facilitate spread of the disease. decisions. The goals of the Coronado Management Plan that will require National Forest Plan (Plan) include a preparation of Endangered Species D. The Inadequacy of Existing commitment to maintain viable Management Plans (ESMPs) for all listed Regulatory Mechanisms populations of all native wildlife, fish, and proposed species and critical Federal and state laws and regulations and plant species within the Forest’s habitat (Sheridan Stone, Fort Huachuca, can protect these three species and their jurisdiction through improved habitat pers. comm. 1996). The ESMPs are habitat to some extent. However, management (Coronado National Forest expected to provide management Federal and state agency discretion 1986a). The Plan provides a list of rare recommendations for conservation of allowed under the authority of these plants and animals found on the Forest, Sonora tiger salamander and Lilaeopsis laws still permits adverse effects to but gives only a very general description populations and habitat at Fort listed and rare species. Adding of programmatic-level management Huachuca. An ESMP is being prepared Lilaeopsis, Spiranthes, and the Sonora guidelines and expected effort for the Fort Huachuca Sonora tiger tiger salamander to the endangered (Coronado National Forest 1986a). The salamander population. Although species list will help to reduce adverse Coronado National Forest is committed salamanders are known from only a affects to these species. to multiple use and, where the demands single site at Fort Huachuca, the ESMP Lilaeopsis and Spiranthes are not of various interest groups conflict, the is expected to have recommendations classified as rare, threatened, or Forest must make decisions that that could be extended to other endangered species by the Mexican represent compromises among these populations. government; nor do their habitats interests (Coronado National Forest The National Environmental Policy receive special protection in Mexico. 1986b) which could result in adverse Act of 1969 (NEPA) (42 U.S.C. 4321– However, Ambystoma tigrinum, effects to listed species. 4370a) requires Federal agencies to including the Sonora tiger salamander, The Plan’s endangered species consider the environmental impacts of is a species of special protection. This program includes participation in their actions. NEPA requires Federal designation affords certain protections reaching recovery plan objectives for agencies to describe a proposed action, to the species and its habitat (Secretario listed species, habitat coordination and consider alternatives, identify and de Desarrollo Urbano y Ecologia 1994). surveys for listed species, and habitat disclose potential environmental On July 1, 1975, all species in the improvement (Coronado National Forest impacts of each alternative, and involve Orchid family (including Spiranthes 1986b). After acknowledging budget the public in the decision-making delitescens) were included in Appendix constraints, the Plan states that studies process. It does not require Federal II of the Convention on International of endangered plants will occur at agencies to select the alternative having Trade in Endangered Species of Wild approximately the 1980 funding level. the least significant environmental Fauna and Flora (CITES). CITES is an Three populations of Lilaeopsis and impacts. A Federal action agency may international treaty established to four individual Spiranthes are known to decide to choose an action that will prevent international trade that may be occur on the Coronado National Forest. adversely affect listed or candidate detrimental to the survival of plants and The Forest also manages the habitat of species provided these effects were animals. A CITES export permit must be 17 of the 23 aquatic sites at which known and identified in a NEPA issued by the exporting country before Sonora tiger salamanders have been document. an Appendix II species may be shipped. observed during one or more of the last All three species addressed in this CITES permits may not be issued if the three visits during 1993 through 1996. rule inhabit wetlands that are afforded export will be detrimental to the Twenty-six of the 36 aquatic sites at varying protection under section 404 of survival of the species or if the which salamanders have been found are the Federal Water Pollution Control Act specimens were not legally acquired. on Coronado National Forest land, of 1948 (33 U.S.C. 1251–1376), as However, CITES does not regulate take underscoring the importance of Forest amended; and Federal Executive Orders or domestic trade. CITES provides no Service management. However, these 11988 (Floodplain Management) and protection to Lilaeopsis or the Sonora numbers are somewhat misleading in 11990 (Protection of Wetlands). tiger salamander. that salamander surveys have focused Cumulatively, these Federal regulations The Lacey Act (16 U.S.C 3371 et seq.), on National Forest lands. Other aquatic are not sufficient to halt population as amended in 1982, provides limited sites likely occur on private lands, extirpation and habitat losses for the protection for these three species. Under which to date have not been intensively three species addressed in this rule. the Lacey Act it is prohibited to import, surveyed. Nevertheless, the Coronado The Arizona Native Plant Law (A.R.S. export, sell, receive, acquire, purchase, National Forest is the most important Chapter 7, Article 1) protects Spiranthes or engage in the interstate or foreign land manager of aquatic sites known to delitescens and Lilaeopsis schaffneriana commerce of any species taken, be occupied by Sonora tiger ssp. recurva as highly safeguarded possessed, or sold in violation of any salamanders. The Forest considers the species. A permit from the Arizona law, treaty, or regulation of the United salamander a sensitive species and a Department of Agriculture (ADA) must States, any Tribal law, or any law or management indicator species, which be obtained to legally collect these regulation of any state. Interstate receive special consideration in land species on public or private lands in transport of protected species occurs management decisions (Coronado Arizona. Permits may be issued for despite the Lacey Act because National Forest 1986a). The ability of scientific and educational purposes enforcement is difficult. the Forest Service to manage the three only. It is unlawful to destroy, dig up, The Federal Land Policy and species addressed here is limited mutilate, collect, cut, harvest, or take Management Act of 1976 (FLPMA) (43 because many of the populations do not any living, ‘‘highly safeguarded,’’ native U.S.C. 1701 et seq.) and National Forest occur on Forest Service lands and/or plant from private, State, or Federal 686 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations land without a permit. However, private bullfrogs, which might reduce or of particular concern for Sonora tiger landowners and Federal and State extirpate populations. salamander populations inhabiting agencies may clear land and destroy Transport and introduction of stock tanks that could wash out during habitat after giving the ADA sufficient salamanders poses an additional threat. a storm or dry out during drought. notice to allow plant salvage. Despite Ambystoma tigrinum mavortium is Furthermore, Sonora tiger salamander the protections of the Arizona Native common in stock tanks and ponds to the genetic heterozygosity is among the Plant Law, legal and illegal damage and east of the San Rafael Valley. Bait lowest reported for any salamander destruction of plants and habitat occur. dealers and anglers probably introduced (Jones et al. 1988, Jones et al. 1995). Collecting Ambystoma in the San many of these populations (Collins Low heterozygosity indicates low Rafael Valley is prohibited under 1981, Collins and Jones 1987). If genetic variation, which increases Arizona Game and Fish Commission Ambystoma tigrinum mavortium is demographic variability and the chance Order 41, except under special permit. introduced into Sonora tiger salamander of local extirpations (Shafer 1990). Nevertheless, some illegal collecting localities, populations could be lost due The ability of Sonora tiger occurs (Collins and Jones 1987). The to genetic swamping by interbreeding of salamanders to move between species is considered a species of the two subspecies. populations is unknown, but arid special concern by the State of Arizona Two populations of Lilaeopsis have grassland, savanna, or pine-oak (Arizona Game and Fish Department been lost from unknown causes. Despite woodland separate all populations and 1996); however, this designation affords the presence of apparently suitable movement through these relatively dry the species and its habitat no legal conditions, the species has not been landscapes is probably limited. protection. Transport and stocking of observed at Monkey Spring near Sonoita Movement would be most likely during live bullfrogs and fishing with live bait Creek since 1965. Lilaeopsis was storms or where wet drainages are collected in 1958 in deep water along fish or Ambystoma within the range of available as movement corridors. The the San Pedro River by Highway 80 near this salamander in Arizona is prohibited distance between aquatic populations of St. David, but no longer exists there, nor by Arizona Game and Fish Commission Sonora tiger salamander is frequently is there now suitable habitat (Warren et Order 41 and R12–4–316, respectively. more than 1.6 km (1.0 mi), and much al. 1990). However, bullfrogs and nonnative fish greater distances separate several sites. Aggressive nonnative plants disrupt For instance, Game and Fish Tank is are present at numerous extant and native riparian plant communities. historical Sonora tiger salamander 10.1 km (6.3 mi) from the nearest Nonnative Johnson grass (Sorghum adjacent aquatic population. Thus, even localities (Collins and Jones 1987, halepense) is invading one Spiranthes if these salamanders are capable of Collins 1996), suggesting continued site (Dave Gori, Arizona Nature moving relatively long distances, some illegal introductions. Furthermore, Conservancy, in litt. 1993). This tall populations may be effectively abandonment, modification, or grass forms a dense monoculture, geographically isolated. Small, isolated breaching of stock tanks is allowed on displacing less competitive native populations have an increased private and public lands. Such actions plants. If Johnson grass continues to probability of extirpation (Wilcox and could eliminate Sonora tiger salamander spread, the Spiranthes population may Murphy 1985). Disease, predation by populations. be lost (Dave Gori, in litt. 1993). nonnative predators, and drying of tanks State of Arizona Executive Order Bermuda grass (Cynodon dactylon) also during drought further increase the Number 89–16 (Streams and Riparian displaces native riparian plants, chance of extirpation. Once populations Resources), signed on June 10, 1989, including cottonwoods and willows that are extirpated, natural recolonization of directs state agencies to evaluate their stabilize stream channels. Bermuda these isolated habitats may not occur actions and implement changes, as grass forms a thick sod in which many (Frankel and Soule 1981). appropriate, to allow for riparian native plants are unable to establish. In The Service has carefully assessed the resources restoration. Implementation of certain microsites, Bermuda grass may best scientific and commercial this regulation may ameliorate adverse directly compete with Lilaeopsis or information available regarding the past, effects of some state actions on the Spiranthes. There are no known present, and future threats faced by species addressed in this rule. effective methods for eliminating these taxa in determining to make this E. Other Natural or Manmade Factors Bermuda grass or Johnson grass from rule final. Based on this evaluation, the Affecting Its Continued Existence natural plant communities on a long preferred action is to list Spiranthes term basis. Watercress (Rorippa delitescens, Lilaeopsis schaffneriana Arizona anglers and commercial bait nasturtium-aquaticum) is another spp. recurva, and the Sonora tiger dealers often introduce larval tiger nonnative plant now abundant along salamander as endangered. These salamanders into ponds and tanks for perennial streams in Arizona. It is species are endangered because of future bait collecting (Collins et al. successful in disturbed areas and can widespread and serious threats that may 1988, Lowe 1954). Collins and Jones form dense monocultures that can out- lead to extinction in the foreseeable (1987) reported that tiger salamanders compete Lilaeopsis populations. future. As a result, listing as threatened were illegally collected from the San Limited numbers of populations species would not fully address the Rafael Valley and transported to at least render each of the three taxa addressed extent and nature of threats to these two tanks in the northern Patagonia in this rule vulnerable to extinction as species. The Service believes Mountains. Bait dealers or others a result of naturally occurring chance designation of critical habitat is not moving Sonora tiger salamanders to new events that are often exacerbated by prudent for all three species. The localities could establish new habitat disturbance. For instance, the rationale for these decisions are populations. Collins and Jones (1987) restriction of these three species to a discussed in the following section. suggest that transport and introduction relatively small area in southeastern of salamanders within the San Rafael Arizona and adjacent Sonora increases Critical Habitat Valley may have greatly influenced their the chance that a single environmental Critical habitat is defined in section 3 present distribution. Moving could also catastrophe, such as a severe tropical of the Act as—(I) the specific areas transmit disease and cause storm or drought could eliminate within the geographic area occupied by unintentional introductions of fish or populations or cause extinction. This is a species, at the time it is listed in Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 687 accordance with the Act, on which are more vulnerable and increase on the Coronado National Forest. found those physical or biological enforcement problems. All involved Lilaeopsis and the Sonora tiger features (I) essential to the conservation parties and principal landowners are salamander also occur on Fort of the species and (II) that may require aware of the location and importance of Huachuca, managed by the Department special management considerations or protecting this species’ habitat. Habitat of the Army. In addition, Lilaeopsis protection and; (ii) specific areas protection will be addressed through the occurs on Service lands at San outside the geographic area occupied by recovery process and through the Bernardino National Wildlife Refuge a species at the time it is listed, upon section 7 provisions of the Act. and at the BLM’s San Pedro Riparian a determination that such areas are Therefore, it is not prudent to designate National Conservation Area. essential for the conservation of the critical habitat for Spiranthes Examples of Federal actions that may species. ‘‘Conservation,’’ means the use delitescens. affect the three species addressed in this of all methods and procedures needed Protection of the habitat of these rule include managing recreation, road to bring the species to the point at species will be addressed through the construction, livestock grazing, granting which listing under the Act is no longer recovery process and the section 7 rights-of-ways, stock tank development necessary. consultation process. The Service and maintenance, and military activities Section 4(a)(3) of the Act, as believes that Federal involvement in the on Fort Huachuca. These and other amended, and implementing regulations areas where these species occur can be Federal actions would require formal (50 CFR 242.12) require that, to the identified without the designation of section 7 consultation if the action maximum extent prudent and critical habitat. Therefore, the Service agency determines that the proposed determinable, the Secretary designate finds that designation of critical habitat action may affect listed species. critical habitat at the time a species is for these three species is not prudent. Development on private or State lands determined to be endangered or requiring permits from Federal agencies, Available Conservation Measures threatened. The Service finds that such as 404 permits from the U.S. Army designation of critical habitat is not Conservation measures provided to Corps of Engineers, would also be prudent for Lilaeopsis schaffneriana species listed as endangered or subject to the section 7 consultation ssp. recurva, Spiranthes delitescens, and threatened under the Endangered process. Federal actions not affecting Ambystoma tigrinum stebbinsi. Service Species Act include recognition, the species, as well as Actions that are regulations (50 CFR 424.12(a)(1)) state recovery actions, requirements for not federally funded or permitted, that designation of critical habitat is not Federal protection, and prohibitions would not require section 7 prudent when one or both of the against certain practices. Recognition consultation. following situations exist—(1) the through listing encourages and results Pursuant to 50 CFR 402.10(a), the species is threatened by taking or other in conservation actions by Federal, Coronado National Forest conferred human activity, and identification of State, and private agencies, groups, and with the Service on the effects of critical habitat can be expected to individuals. The Act provides for issuance of grazing permits in the increase the degree of such threat, or (2) possible land acquisition and Duquesne, Campini, and San Rafael such designation would not be cooperation with the states and requires allotments within the range of the beneficial to the species. that recovery actions be carried out for Sonora tiger salamander. The Service Lilaeopsis schaffneriana ssp. recurva all listed species. The protection determined that issuance of the permits and Sonora tiger salamander would not required of Federal agencies and the would not likely jeopardize the benefit from the designation of critical prohibitions against certain activities continued existence of the salamander habitat. The Service determines that any involving listed species are discussed, provided that stock tank maintenance potential benefits beyond those afforded in part, below. and management plans were promptly by listing, when weighed against the Section 7(a) of the Act, as amended, developed and implemented for the negative impacts of disclosing their site- requires Federal agencies to evaluate allotments. These plans would ensure specific location, does not yield an their actions with respect to any species the maintenance of quality aquatic overall benefit and is therefore not that is proposed or listed as endangered habitat for the Sonora tiger salamander. prudent. The overall habitat protection or threatened and with respect to its The Act and its implementing and conservation of these two species critical habitat, if any is being regulations found at 50 CFR 17.61, would be best implemented by the designated. Regulations implementing 17.62, and 17.63 set forth a series of recovery process and section 7 this interagency cooperation provision general trade prohibitions and provisions of the Act (see ‘‘Available of the Act are codified at 50 CFR Part exceptions that apply to all endangered Conservation Measures’’ section). 402. Section 7(a)(4) requires Federal plants. All trade prohibitions of section As discussed under Factor B in the agencies to confer with the Service on 9(a)(2) of the Act, implemented by 50 ‘‘Summary of Factors Affecting the any action that is likely to jeopardize CFR 17.61, apply. These prohibitions, in Species,’’ Spiranthes is threatened by the continued existence of a species part, make it illegal for any person collecting. If it is listed, collecting of proposed for listing or result in subject to the jurisdiction of the United Spiranthes would be prohibited under destruction or adverse modification of States to import or export, transport in the Act in cases of (1) removal and proposed critical habitat. If a species is interstate or foreign commerce in the reduction to possession from lands listed subsequently, section 7(a)(2) course of a commercial activity, sell or under Federal jurisdiction, or malicious requires Federal agencies to ensure that offer for sale listed species in interstate damage or destruction on such lands; activities they authorize, fund, or carry or foreign commerce, or to remove and and (2) removal, cutting, digging up, or out are not likely to jeopardize the reduce to possession listed species from damaging or destroying Spiranthes in continued existence of the species or areas under Federal jurisdiction. In knowing violation of any State law or destroy or adversely modify its critical addition, for plants listed as regulation, including State criminal habitat. If a Federal action may affect a endangered, the Act prohibits the trespass law. Such provisions are listed species or its critical habitat, the malicious damage or destruction on difficult to enforce, and publication of responsible Federal agency must enter areas under Federal jurisdiction and the critical habitat descriptions and maps into formal consultation with the removal, cutting, digging up, or would make Spiranthes delitescens Service. All three taxa in this rule occur damaging or destroying endangered 688 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations plants in knowing violation of any state (1) Otherwise lawful activities on transmit diseases to Sonora tiger law or regulation, including state private lands undertaken by the salamanders; criminal trespass law. Certain landowner since plants are not (6) Discharges or dumping of toxic exceptions apply to agents of the protected from taking by the private chemicals, silt, or other pollutants into Service and state conservation agencies. landowner of the habitat by the Act; or waters supporting the species; and The Act and 50 CFR 17.62 and 17.63 (2) federally-approved projects, such (7) Pesticide applications at or near also provide for the issuance of permits as issuance of livestock grazing permits, occupied aquatic sites in violation of to carry out otherwise prohibited road construction, and dredge and fill label restrictions. activities involving endangered species activities, when such activity is Questions as to whether specific under certain circumstances. Such conducted in accordance with section 7 activities would constitute a violation of permits are available for scientific of the Act. section 9 should be addressed to the purposes and to enhance the Actions that would not result in Service’s Arizona Ecological Services propagation or survival of the species. It violation of section 9 for Sonora tiger Field Office (see ADDRESSES section). is anticipated that few trade permits salamander would include— Requests for copies of the regulations on would ever be sought or issued for (1) Recreational activities in the range listed plants and wildlife and inquiries Lilaeopsis or Spiranthes because these of the Sonora tiger salamander that do about prohibitions and permits may be species are not common in cultivation not result in physical damage to stock addressed to U.S. Fish and Wildlife or in the wild. tanks, vegetation at stock tanks, stock Service, Branch of Endangered Species/ The Act and implementing fences, and riparian habitats between Permits, P.O. Box 1306, Albuquerque, regulations found at 50 CFR 17.21 set occupied stock tanks; and that do not New Mexico 87103 (telephone 505/248– forth a series of general prohibitions and involve relocation of salamanders or 6920; facsimile 505/248–6922). nonnative aquatic vertebrates; exceptions that apply to all endangered National Environmental Policy Act wildlife. The prohibitions, codified at (2) Well-managed livestock grazing of 50 CFR 17.21, in part, make it illegal for uplands, including running of cattle, The Fish and Wildlife Service has any person subject to the jurisdiction of and development, operation and determined that Environmental the United States to take (includes maintenance of range improvements; or Assessments and Environmental Impact harass, harm, pursue, hunt, shoot, (3) Federally-approved projects, such Statements, as defined under the wound, kill, trap, or collect; or to as issuance of livestock grazing permits, authority of the National Environmental attempt any such conduct), import or road construction, and dredge and fill Policy Act of 1969, need not be export, ship in interstate or foreign activities, when such activity is prepared in connection with regulations commerce in the course of commercial conducted in accordance with section 7 adopted pursuant to Section 4(a) of the activity, or sell or offer for sale in or section 10 of the Act. Endangered Species Act of 1973, as interstate or foreign commerce any The Service has determined that the amended. A notice outlining the listed species. It also is illegal to following activities could potentially Service’s reasons for this determination possess, sell, deliver, carry, transport, or result in a section 9 violation. As was published in the Federal Register ship any such wildlife that has been section 9 is somewhat limited in the on October 25, 1983 (48 FR 49244). protection provided to plants, the taken illegally. Certain exceptions apply Required Determinations to agents of the Service and state possible actions that could result in a conservation agencies. section 9 violation for Lilaeopsis or The Service has examined this Spiranthes could include— Permits may be issued to carry out regulation under the Paperwork (1) Malicious destruction or removal otherwise prohibited activities Reduction Act of 1995 and found it to on lands under Federal jurisdiction; contain no information collection involving endangered wildlife species (2) Criminal trespass onto private under certain circumstances. requirements. This rulemaking was not lands and then removal of plants from subject to review by the Office of Regulations governing permits are those lands; or codified at 50 CFR 17.22 and 17.23. Management and Budget under (3) Removal of plants without Executive Order 12866. Such permits are available for scientific appropriate State permits. purposes, to enhance the propagation or Some of the possible actions that References Cited survival of the species, and/or for could result in a section 9 violation for A complete list of all references cited incidental take in connection with Sonora tiger salamander include: herein is available upon request from otherwise lawful activities. (1) Unauthorized handling, collecting, the Field Supervisor, Arizona Ecological It is the policy of the Service (59 FR or harming of Sonora tiger salamanders; Services Field Office (see ADDRESSES 34272) to identify to the maximum (2) Destroying or altering berms or section). extent practicable at the time an animal draining of aquatic sites occupied by the species is listed those activities that salamander and diverting flows Authors would or would not constitute a upstream of breeding sites; The primary authors of this rule are violation of section 9 of the Act. The (3) Livestock grazing or watering at Angie Brooks and Jim Rorabaugh, intent of this policy is to increase public sites occupied by the salamander when Arizona Ecological Services Field Office awareness of the effect of a listing on such activity results in trampling of (see ADDRESSES section). proposed and ongoing activities with a salamanders; species’ range. The Service believes (4) Actions that result in the List of Subjects in 50 CFR Part 17 that, based on the best available destruction or removal of aquatic or Endangered and threatened species, information, the following are examples emergent vegetation, or shoreline Exports, Imports, Reporting and of actions that will not result in a vegetation at aquatic sites occupied by recordkeeping requirements, violation of section 9. the species; Transportation. Actions that would not result in a (5) Stocking of fish, bullfrogs other violation of section 9 for either subspecies of Ambystoma tigrinum, or Regulation Promulgation Lilaeopsis or Spiranthes would other organisms within the range of the Accordingly, part 17, subchapter B of include— Sonora tiger salamander that prey on or chapter I, title 50 of the Code of Federal Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 689

Regulations, is amended as set forth Authority: 16 U.S.C. 1361–1407; 16 U.S.C. of Endangered and Threatened Wildlife below: 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– to read as follows: 625, 100 Stat. 3500; unless otherwise noted. PART 17Ð[AMENDED] § 17.11 Endangered and threatened 2. Section 17.11(h) is amended by wildlife. 1. The authority citation for Part 17 adding the following in alphabetical * * * * * continues to read as follows: order, under ‘‘Amphibians,’’ to the List (h) * * *

SPECIES Vertebrate popu- When Critical Special Common Historic range lation where endan- Status listed habitat rules name Scientific name gered or threatened

******* Amphibians.

******* Salamander, Ambystoma tigrinum stebbinsi ...... U.S.A. (AZ), Entire ...... E ...... 600 NA ...... NA Sonora Mexico. tiger.

*******

3. Section 17.12(h) is amended by and ‘‘Unbelliferae’’ to the List of § 17.12 Endangered and threatened plants. adding the following two species, in Endangered and Threatened Plants: * * * * * alphabetical order under ‘‘Orchidaceae’’ (h) * * *

Species Historic range Status When Critical Special Scientific name Common name listed habitat rules

******* OrchidaceaeÐOrchid Family:

******* Spiranthes delitescens ...... Canelo Hills ladies'- U.S.A. (AZ), E ...... 600 NA ...... NA tresses. Mexico.

******* UmbelliferaeÐParsley Family:

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

*******

Dated: December 24, 1996. DEPARTMENT OF COMMERCE SUMMARY: NMFS reduces the Jay L. Gerst, commercial trip limit in the hook-and- Acting Director, Fish and Wildlife Service. National Oceanic and Atmospheric line fishery for king mackerel in the Administration [FR Doc. 97–130 Filed 1–3–97; 8:45 am] Florida west coast sub-zone to 50 king mackerel per day in or from the BILLING CODE 4310±55±P 50 CFR Part 622 exclusive economic zone (EEZ). This trip limit reduction is necessary to [Docket No. 950725189±6245±04; I.D. protect the overfished Gulf king 123096B] mackerel resource. Fisheries of the Caribbean, Gulf of EFFECTIVE DATE: The 50–fish commercial Mexico, and South Atlantic; Coastal trip limit is effective 12:01 a.m., local Migratory Pelagic Resources of the time, January 1, 1997, and remains in Gulf of Mexico and South Atlantic; Trip effect through June 30, 1997. Limit Reduction. FOR FURTHER INFORMATION CONTACT: Mark F. Godcharles, 813–570–5305. AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and SUPPLEMENTARY INFORMATION: The Atmospheric Administration (NOAA), fishery for coastal migratory pelagic fish Commerce. (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the ACTION: Trip limit reduction. Gulf of Mexico only, bluefish) is