Vol. 78 Wednesday, No. 176 September 11, 2013

Part VI

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and ; Designation of Critical Habitat for Golden Gladecress and Neches River Rose-Mallow; Final Rule

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DEPARTMENT OF THE INTERIOR Ecological Services Field Office (see have completed the final economic ADDRESSES). Persons who use a analysis (FEA) concurrently with this Fish and Wildlife Service telecommunications device for the deaf final determination. (TDD) may call the Federal Information Peer review and public comment. We 50 CFR Part 17 Relay Service (FIRS) at 800–877–8339. sought comments from independent specialists to ensure that our [Docket No. FWS–R2–ES–2013–0027, SUPPLEMENTARY INFORMATION: 4500030113] designation is based on scientifically Executive Summary sound data and analyses. We obtained RIN 1018–AZ49 Why we need to publish a rule. On opinions from four knowledgeable September 11, 2012 (77 FR 55968), we individuals with scientific expertise to Endangered and Threatened Wildlife published a proposed rule to designate review our technical assumptions, and Plants; Designation of Critical critical habitat for texana analysis, and whether or not we had Habitat for Texas Golden Gladecress (Texas golden gladecress) and used the best available information. and Neches River Rose-Mallow dasycalyx (Neches River rose-mallow). These peer reviewers generally AGENCY: Fish and Wildlife Service, In this rule, we are finalizing our concurred with our methods and Interior. designation for critical habitat under the conclusions and provided additional ACTION: Final rule. Act (Act). The Act information, clarifications, and requires that a final rule be published in suggestions to improve this final rule. SUMMARY: We, the U.S. Fish and order to designate critical habitat for Information we received from peer Wildlife Service (Service), designate endangered and threatened wildlife to review is incorporated in this final critical habitat for two Texas plants, provide protections under the Act. revised designation. We also considered Leavenworthia texana (Texas golden Elsewhere in today’s Federal Register, all comments and information received gladecress) and Hibiscus dasycalyx we are finalizing determination of from the public during the comment (Neches River rose-mallow), under the listing Leavenworthia texana (Texas period. golden gladecress) as an endangered Endangered Species Act of 1973. Previous Federal Actions Critical habitat for the Texas golden species and Hibiscus dasycalyx (Neches gladecress is located in Sabine and San River rose-mallow) as a threatened All previous Federal actions are Augustine Counties, Texas, and for the species under the Act. The final listing described in the final rule to list the Neches River rose-mallow in determination rule and supporting Texas golden gladecress as an Nacogdoches, Houston, Trinity, documents will publish under Docket endangered species and Neches River Cherokee, and Harrison Counties, Texas. No. FWS–R2–ES–2012–0064, and can rose-mallow as a threatened species The effect of this regulation is to also be found at the above locations. under the Act published elsewhere in designate critical habitat for these two The critical habitat areas we are today’s Federal Register. designating in this rule constitute our East Texas plants under the Endangered Background Species Act. current best assessment of the areas that meet the definition of critical habitat for This document contains final rules to DATES: This rule becomes effective on the Texas golden gladecress and the designate critical habitat for the Texas October 11, 2013. Neches River rose-mallow. Here we are golden gladecress and Neches River ADDRESSES: This final rule and other designating: rose-mallow. The document is supplementary information are available • Approximately 1,353 ac (547 ha) of structured to address the taxa separately on the Internet at http:// critical habitat for the Texas golden under each of the sectional headings www.regulations.gov (Docket No. FWS– gladecress in Sabine and San Augustine that follow. R2–ES–2013–0027) and also at http:// Counties; and Summary of Comments and www.fws.gov/southwest/es/ • Approximately 166.5 ac (67.4 ha) of _ Recommendations ElectronicLibrary/ElectronicLibrary critical habitat for the Neches River Main.cfm. These documents are also rose-mallow in Cherokee, Houston, We requested written comments from available for public inspection, by Trinity, Harrison, and Nacogdoches the public on the proposed designation appointment, during normal business Counties, Texas. of critical habitat for the Texas golden hours, at the U.S. Fish and Wildlife This rule consists of: A final rule for gladecress and Neches River rose- Service, Texas Coastal Ecological designation of critical habitat for the mallow during two comment periods. Services Field Office, 6300 Ocean Drive, Texas golden gladecress and the Neches The first comment period associated USFWS Unit 5837, Corpus Christi, TX River rose-mallow. The Texas golden with the publication of the proposed 78412–5837; telephone 361–994–9005; gladecress and the Neches River rose- rule (77 FR 55968) opened on facsimile 361–994–8262. mallow have been listed under the Act. September 11, 2012, and closed on The coordinates or plot points or both This rule designates critical habitat November 13, 2012. We also requested from which the critical habitat maps are necessary for the conservation of the comments on the proposed critical generated are included in the species. habitat designation and associated draft administrative record for this We have prepared an economic economic analysis during a comment rulemaking and are available at http:// analysis of the designation of critical period that opened April 16, 2013, and www.fws.gov/southwest/es/ habitat. In order to consider economic closed on May 16, 2013 (78 FR 22506). ElectronicLibrary/ElectronicLibrary_ impacts, we have prepared an analysis We received requests for a public Main.cfm, at http://www.regulations.gov of the economic impacts of the critical hearing, and one was held on May 1, at Docket No. FWS–R2–ES–2013–0027, habitat designations and related factors. 2013. We also contacted appropriate and at the Texas Coastal Ecological We announced the availability of the Federal, State, and local agencies; Services Field Office, Corpus Christi draft economic analysis (DEA) in the scientific organizations; and other (see FOR FURTHER INFORMATION CONTACT). Federal Register on April 16, 2013 (78 interested parties and invited them to FOR FURTHER INFORMATION CONTACT: FR 22506), allowing the public to comment on the proposed rule and draft Edith Erfling, Field Supervisor, U.S. provide comments on our analysis. We economic analysis during these Fish and Wildlife Service, Texas Coastal have incorporated the comments and comment periods.

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During the first comment period, we that critical habitat designation for the habitats, rare plants, and the Act listing received 15 comment letters directly Texas golden gladecress would be an process and implications, particularly as addressing the proposed critical habitat improvement to conservation efforts for it applies to plants. In addition to these designation. During the second this species and an associated landowners, 24 other individuals were comment period, we received 22 endangered . The peer reviewers invited to the workshop, including two comment letters addressing the pointed out additional information, San Augustine County commissioners, proposed critical habitat designation or clarifications, and suggestions for future the Mayor of San Augustine, the the draft economic analysis. During the research that would inform future Chairman of the local Soil and Water May 1, 2013, public hearing, five surveys to refine the geographic range, Conservation District, NRCS, Texas individuals or organizations made and help with management and Forest Service, a private forestry comments on the designation of critical recovery efforts. Peer reviewer services company, and a mining habitat for the Texas golden gladecress comments are addressed in the company. Of the 28 invitees, 17 and Neches River rose-mallow. All following summary and incorporated attended the workshop and field tour. substantive information provided into the final rule as appropriate. As additional outreach to Neches during comment periods has either been Peer Reviewer Comments River rose-mallow landowners, land incorporated directly into this final managers, and agencies that work with determination or addressed below. (1) Comment: Additional outreach to them, TPWD organized a workshop and Comments received were grouped by private landowners with potential two-day field trip in August, 2012. The submitter’s affiliation, whether peer critical habitat is recommended, prior to workshop also furnished an opportunity reviewer, State (agencies or officials), or the determination. It is essential to make to explain the listing process and its public, relating to the proposed critical each landowner aware of the issues, applicability for plants. A pre-field trip habitat designation for Texas golden regardless of their interest. workshop allowed information to be Our response: With regard to gladecress and Neches River rose- presented to 45 attendees that included landowners, prior to publication of the mallow. All are addressed in the the Texas Land Conservancy (owner of proposed rule, in September 2011, we following summary and incorporated the Neches River rose-mallow Lovelady into the final rule as appropriate. sent letters to 107 entities, including Federal and State elected officials; site) and TXDOT (owner of the right-of- Peer Review representatives of Texas Parks and way (ROW) sites along state highway (SH) 204 and 94). In accordance with our peer review Wildlife Department (TPWD), Texas policy published on July 1, 1994 (59 FR Commission on Environmental Quality, On September 11, 2012, we sent 34270), we solicited expert opinions Texas Department of Transportation letters to 164 entities notifying them of from six knowledgeable individuals (TXDOT), Texas General Land Office, the proposed rule publication in the with scientific expertise that included Texas Forest Service, Texas Department Federal Register, including Federal and familiarity with the species, the of Agriculture, Natural Resources State elected officials; local elected geographic region in which the species Conservation Service (NRCS), U.S. officials (including county judges occurs, and conservation biology Army Corps of Engineers, U.S. Forest within the range of the species); principles and characteristics of their Service, universities, conservation representatives of TPWD, Texas habitats, including the unique geology; organizations and other non- Commission on Environmental Quality, as well as land uses common to the governmental organizations; and TXDOT, Texas General Land Office, region that may bear on the threats to representatives of timber and forestry Texas Forest Service, Texas Department both species. We received responses industries and forestry services, of Agriculture, NRCS, U.S. Army Corps from four of the peer reviewers. informing them of our need to gather of Engineers, U.S. Forest Service, We reviewed all comments received and analyze the best available universities, conservation organizations from the peer reviewers for substantive information for our use in developing a and other non-governmental issues and new information regarding proposed rule to list and designate organizations; and representatives of listing of the Texas golden gladecress critical habitat for both species. From timber and forestry industries and and Neches River rose-mallow. The peer that point on, we added landowner forestry services. reviewers generally agreed with contacts that were given to us to our On April 16, 2013, the day of Federal portions of our assessment, including notification list. For some sites, land Register publication of the notice of the threats analysis, and most of our ownership was clarified in file records availability of the draft economic conclusions, although they pointed out or through communications with analysis and reopening of the proposal areas where additional research would representatives of other organizations. to list the plants and designate critical refine our understanding of the two Furthermore, for the Texas golden habitat, we emailed letters to 157 people species’ habitat requirements and range. gladecress, we partnered with TPWD in including representatives of agriculture, Two peer reviewers agreed with our March 2012 to host a Weches Glades timber, oil and gas, and mining conclusions that habitat loss and workshop and field tour in San industries; local elected officials from degradation associated with human Augustine, to which we invited four the counties in question; agency staff activities (including energy exploration private landowners (two with Texas that work with landowners, and those and production, quarrying, and pine golden gladecress and two with landowners for whom we had email tree plantings in close proximity to Lesquerella pallida (white bladderpod), addresses. Within 2 days of publication glades) as well as the overgrowth of both an associated endangered plant, in the Federal Register, we also sent 208 species’ habitats by invading woody and populations on their property). As letters by mail to state and local elected weedy native and nonnative plants, preparation for the field tour, officials (including all county judges were adversely affecting the Texas permission to access sites was obtained and commissioners); industry golden gladecress and the Neches River from these four landowners. The representatives; academics; rose-mallow. One peer reviewer also purpose of the workshop and field tour conservation organizations; State, agreed that the Neches River rose- was to acquaint landowners, and agency Federal, and local agencies: And all mallow has insufficient regulatory representatives that work with private individual landowners who had been protections. One peer reviewer believed landowners, with the glade and outcrop identified through the past 2 years since

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our initial information solicitation in time of listing, which contain the Management Plan for National Forests September 2011. physical or biological features essential and Grasslands in Texas. This provides (2) Comment: Two peer reviewers to the conservation of the species and some level of species and habitat commented on the critical habitat maps which may require special management protection; however, their plan is not as they appear in the proposed rule. considerations or protection. Based on specific. Section 7(a)(2) of the Act Specifically for the Neches River rose- this requirement the Service designated requires Federal agencies to ensure that mallow’s critical habitat unit 1 it seems critical habitat for the species based on activities they authorize, fund, or carry that the map does not depict critical the presence of the features essential to out (i.e., projects with a Federal nexus) habitat within the State highway right- its conservation and its tight association are not likely to jeopardize the of-way (SH ROW); however, Table 8 with the Weches Formation and continued existence of the species or specifically states that 1.1 ac (0.45 ha) associated soils (Singhurst 2011a, pers. destroy or adversely modify its critical of critical habitat is present within the comm.). To determine the boundaries of habitat. If a person wishes to develop SH ROW. There might be confusion critical habitat units we used a private land with no Federal nexus, in between landowners and other geographic information system (GIS) to accordance with State law, then the interested parties about whether or not overlay the appropriate soil maps over potential destruction, damage, or their property is within critical habitat the occupied areas. The perimeter of movement of endangered or threatened because of the map resolution and Texas golden gladecress critical habitat plants does not violate the Act. detail. was mapped by following the borders of (5) Comment: In the case of the Texas Our Response: In the case of the rose- the appropriate U.S. Department of golden gladecress, the Service needs a mallow’s critical habitat unit 1, the Agriculture soil layers (see ‘‘Mapping better understanding of the variability of designated critical habitat includes both Texas Golden Gladecress Critical the Weches Formation across the SH ROW and private land. For both Habitat’’ section of this final rule). numerous counties which the formation species, the intended use of the critical Section 7 of the Act requires Federal underlies when determining what may habitat unit maps is to identify the agencies, in consultation with the constitute the physical or biological general areas where the Texas golden Service, to ensure that any action features for the species and where these gladecress’ or the Neches River rose- authorized, funded, or carried out by a features are currently found. The mallow’s critical habitat is designated. Federal agency (thereby constituting a Service should look at variations in Although we have tried to include Federal nexus) is not likely to result in calcium availability and long-term pH landmarks, such as labeled roads, to the destruction or adverse modification changes across the formation in order to help readers find the location of the of critical habitat. If there is not a identify more potential sites at which to critical habitat units, the scale of the Federal nexus for a given action, then survey for the Texas golden gladecress. maps is such that the level of detail and critical habitat designation, including Our response: We recognize that resolution may not help in identifying on private lands, does not restrict any variability of Weches outcrops does individual land ownership. The actions that destroy or adversely modify exist across the Weches Formation coordinates or plot points or both on critical habitat. We have determined throughout the numerous counties which each map is based are available that quarrying of glauconite in Texas under which it is found. We agree that to the public at the Service’s internet does not require Federal permits or have a better characterization of the geology site, at http://www.fws.gov/southwest/ any other Federal nexus, therefore and soils underlying known Texas es/ElectronicLibrary/ElectronicLibrary_ section 7 consultation is not expected golden gladecress populations could Main.cfm, http://www.regulations.gov at for quarrying activities. If a person provide useful information. However, Docket No. FWS–R2–ES–2013–0027 and wishes to develop private land, with no there are likely other factors at the field office responsible for this Federal nexus, and in accordance with characterizing individual outcrop sites designation. State law, then destroying or adversely that support the Texas golden gladecress (3) Comment: One peer reviewer modifying critical habitat does not that may also be important. Further, the thought that critical habitat designation violate the Act. The Service can and Service must use the best scientific and for the Texas golden gladecress was a will provide technical assistance to commercial data available at the time of good idea ‘‘if it allows the exclusion of mining (quarrying) companies to critical habitat determination. some Weches outcrops that are minimize and avoid impacts to the Determining the chemical components unsuitable . . . and is done on a fine Texas golden gladecress critical habitat of the geological formations beneath scale . . . of blocks, say one mile in if such assistance is requested. known glade sites is not a feasible diameter’’. This reviewer believed this (4) Comment: In the case of the accomplishment within the timeframe approach would ensure that economic Neches River rose-mallow, a peer we have to publish our final activity based on mining is not reviewer agreed that there is not a determination. This research would be adversely impacted. He indicated his mechanism for protection other than addressed in recovery planning. For opinion that Weches mining could be perhaps existing wetland regulations purposes of this final rule designating done in such a way as to allow both under the U.S. Army Corps of critical habitat, we used the more activities to continue. Engineers. general Weches Formation outcrops Our response: Although it is unclear Our Response: Section 7 consultation descriptions, and we more specifically if the peer reviewer’s comment about for U.S. Army Corps of Engineers-issued relied on the geologic and soils the size of critical habitat blocks (one permits is one avenue regulating information available from one known mile in diameter) has any scientific impacts to the Neches River rose- Texas golden gladecress population site, basis, we are interpreting him to mean mallow. Additionally, four of the 11 as well as from one white bladderpod that relatively small areas of critical extant populations of Neches River rose- site. Please see the ‘‘Criteria Used To habitat could be included or excluded mallow are found on the Davy Crockett Identify Critical Habitat for Texas from designation to allow for quarrying NF where the U.S. Forest Service Golden Gladecress’’ and ‘‘Mapping outside of the designated critical considers the Neches River rose-mallow Texas Golden Gladecress Critical habitat. We are required to designate as a Regional Forester’s Sensitive Habitat’’ sections for the Texas golden critical habitat for geographical areas Species and its habitat is managed gladecress in this final rule for more that are occupied by the species at the under A Revised Land and Resource information.

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(6) Comment: Clarification on downslope within the ROW where critical habitat for the Texas golden exclusions of critical habitat within SH suitable soils still exist. The ROW gladecress and Neches River rose- ROWs was requested by a peer reviewer immediately adjacent to the road, mallow are addressed below. and the State. There is a contradiction containing the fill material lacks the (9) Comment: One state commenter within the proposed rule regarding primary constituent elements for these and two public commenters noted that critical habitat in SH ROWs for the species. The unfilled portions of the the Neches River rose-mallow has not Neches River rose-mallow versus the ROWs, where the plants are able to been seen at some sites for over a Texas golden gladecress. The proposed persist, do retain the primary decade. Of the 11 sites considered to be rule states that, for Neches River rose- constituent elements that support the currently occupied by the Neches River mallow, ROW would be excluded for life-history processes of the species, rose-mallow, three have not been the area designated as critical habitat, while the built-up, paved and filled observed in more than 10 years. The but ROW is not considered excluded portions of the roadway do not. Based Camp Olympia site has not been from critical habitat units for the Texas on this information, the Service relocated since 1978 despite surveys in golden gladecress. For Neches River includes the fill area along roadways as 1992 and 1993 (Warnock 1995, p. 6). In rose-mallow critical habitat unit 1, the developed areas that are not included in fact the site was listed as extirpated or map in the proposed rule does not seem critical habitat designation because historical by Warnock (1995). The to show critical habitat within the SH these areas do not meet the definition of Champion site was last observed in ROW; however, Table 8 specifically critical habitat for either species. 2001. The site has apparently been states that 1.1 ac (0.45 ha) of critical (8) Comment: There are ongoing logged. This site should be revisited habitat is present within the SH ROW. service improvements, including before considering it currently Our Response: Language in the installation of communication, electric occupied. Additionally, one commenter proposed rule indicating that Neches power, water and sewer lines, taking pointed out that the Harrison County River rose-mallow’s critical habitat place in rural areas, some of which population has not been relocated since excluded SH ROW was an error and has occur in highway ROWs and have 1980, perhaps owing to its imprecise been corrected in this determination. potential to occur in Texas golden location (ca. 5 miles (mi) (8.05 Extant populations of both Neches River gladecress critical habitat (Walker 2012, kilometers (km) south of Hallsville) and rose-mallow and Texas golden pers. comm.). suggested that it seems difficult to know gladecress occur in SH ROWs, so the Our Response: We acknowledge that with any certainty that this site is ROWs at these sites would be the installation of new service lines currently occupied. Using aerial considered occupied habitat. (e.g., communication, water, domestic photography to delineate a 20-ac (8.1- (7) Comment: A peer reviewer gas, and power lines) could potentially ha) site based on a previous suggested that the Service consider occur in more rural areas and these interpretation of a vague location does excluding the ‘‘filled’’ portions of the activities typically occur in road ROWs, not lead to a precise location on which TXDOT ROWs within the critical such as where the Texas golden to base critical habitat. The Service habitat units. In low areas such as gladecress occurs. There are two known cannot assume that the habitat has floodplains, valleys, etc., TXDOT Texas golden gladecress sites that remained intact when the location of the constructs the paved surface of the road extend into road ROWs as well as three occupied site is unverifiable. on large amounts of ‘‘fill’’ (Adams Neches River rose-mallow sites. Our Response: We consider the three 2013a, pers. comm.). Fill consists of clay Section 7 of the Act requires Federal sites referenced by the commenter soil, which is not suitable habitat for the agencies, in consultation with the (Harrison County, Champion, and Camp either plant. This fill material is often Service, to ensure that any action Olympia) to be occupied by the Neches brought to a site to elevate the road bed. authorized, funded, or carried out by a River rose-mallow for the purposes of These areas are then revegetated to Federal agency (thereby constituting a critical habitat. Two voucher specimens reduce erosion. The size of a fill area is Federal nexus) is not likely to result in were collected from Camp Olympia in dependent on the existing slope and the destruction or adverse modification 1977 by E. Marsh and in 1978 by E. width of the roadway or bridge (Adams of critical habitat. If there is not a Marsh and C. McLeod; both were 2013a, pers. comm.). This reviewer has Federal nexus for a given action, then identified as the Neches River rose- never witnessed the Neches River rose- critical habitat designation, including mallow (TXNDD 2012, pp. 58–59), mallow or the white bladderbod (habitat on private lands, does not restrict any confirming the species occurrence at associate of the Texas golden gladecress) actions that destroy or adversely modify this site. The location information from growing on the front slope (i.e., the area critical habitat. If a person wishes to these plant specimens collected in 1977 immediately adjacent to the road) of a develop private land, with no Federal was used by Warnock (1995) to relocate TXDOT ROW. nexus, and in accordance with State the population. In Warnock’s status Our Response: Portions of both law, then destroying or adversely report, he described the location of the species critical habitat are within modifying critical habitat does not site, ‘‘beyond the end of Farm-to-Market TXDOT ROWs. Two Texas golden violate the Act. The Service can and Road 3188, 200 feet from the water’s gladecress and three Neches River rose- will provide technical assistance to edge along Lake Livingston’’ and mallow sites extend into ROWs minimize and avoid impacts to the provided the latitude and longitude of managed by TXDOT. The Service agrees Texas golden gladecress critical habitat the site as well (1995, p. 6). Attempts that neither species grows on fill if such assistance is requested. were made on foot in 1992 and by canoe material or immediately adjacent to the in 1993 to relocate this population road edge. Given the Texas golden Comments From States (Warnock 1995, p. 6), but without gladecress’ specialized habitat Section 4(i) of the Act states, ‘‘the success. However, there are several requirements, and the Neches River Secretary shall submit to the State reasons why the plants may not have rose-mallow requirement of hydric agency a written justification for his been located. Dense vegetation along the alluvial soils, it is unlikely that either failure to adopt regulations consistent shoreline could have made the plant would survive on, or spread onto, areas with the agency’s comments or from that distance not easily consisting of fill material used by the petition.’’ Comments received from the discernible. Also, the nature of the TXDOT. Both species grow farther State regarding the proposal to designate Neches River rose-mallow habitat,

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especially at sites with fluctuating water the Harrison County Site has been essential for the conservation of the levels (like oxbows, sloughs, sand bars altered to the point that the species has Neches River rose-mallow, regardless of of river systems), is such that the zone been eliminated from this site. occupancy data. Including these units in in which the plants are located could Regarding delineation of critical the designation of critical habitat for the shift or the plants perhaps be killed habitat at these sites, we used satellite Neches River rose-mallow aligns with back when conditions are too wet or too imagery from Google Earth to compare the conservation strategy for this dry, but the plants may then re-establish available habitat images from 1995 and species. from seed when conditions are suitable 2011 to look for habitat alteration that (10) Comment: One state commenter, (Warnock 1995, p. 6). would make these sites unsuitable for in addition to two public commenters, The Champion Site was first observed the Neches River rose-mallow. It did not expressed their belief that these species in 1996 with several hundred plants, appear that Neches River rose-mallow have not been fully studied. They and revisited in 1997, 1998, and 2001. habitat had been altered to the point indicated that there are significant In 1997, cuttings from plants and seeds that the areas would not contain the concerns with the quality of data and were collected and given to Mercer physical or biological features essential analysis the Service used for its Arboretum. The plants that were to the conservation of the species (see determination. They believe that the observed in 1998 did not have the ‘‘Final Critical Habitat Designation’’ proposal is based largely on reproductive structures present but were for the Neches River Rose-mallow inconclusive reports and vast identified as likely Neches River rose- section of this final rule for more speculation about operations thought to mallow. In 2001, researchers found 300– information). affect habitats, existing regulatory 400 plants. Logging at this site has The Act requires that we use the best mechanisms, conservation efforts, occurred in the recent past but there is scientific and commercial information species populations, and potential not information to show that the Neches available regardless of the age of the threats that fail to provide any sound River rose-mallow is no longer present information. The criteria for critical scientific foundation on which to justify at this site. The seed bank viability of habitat were evaluated using the best the listing and critical habitat this species is still not clearly scientific and commercial data available designation of these species. understood, but there is potential that including plant surveys that occurred, Our Response: It is often the case that even if above-ground plant parts were in some cases, more than 20 years ago. biological information may be lacking removed, the seed bank may still be Some areas have not been revisited; for rare species; however, we considered intact. Further, since this species however, absence of evidence does not the best available scientific and requires open habitat, the removal of equate to evidence that the plant has commercial information and canopy species could benefit the Neches been extirpated from an area. For incorporated it into our final rule. We River rose-mallow by providing more example, SH 230 ROW had not been sought comments from independent suitable habitat. seen since 2002, and the site was peer reviewers to ensure that our For the Harrison Site, we used the considered extirpated. However, during designation is based on scientifically best scientific and commercial data this comment period we received sound data, assumptions, and analysis. available at the time the proposed rule information that the Neches River rose- We did not receive information that the was published. A voucher specimen mallow was observed in 2012 by a science we used was unsound. We was collected in 1980 and was graduate student from SFASU solicited information from the general confirmed in 2011 by TPWD and (Melinchuk 2012, p. 3). This is an public, non-governmental conservation Stephen F. Austin State University example of the potential that this organizations, State and Federal (SFASU) researchers as Hibiscus species may go undetected for a period agencies that are familiar with the dasycalyx. Because we received new of time due to the biology of the species. species and their habitats in East Texas, information from a commenter that this We also relied on the existence of academic institutions, and groups and critical habitat unit was in part an voucher specimens to help confirm the individuals that might have information operating lignite mine, known as South species presence at these sites in the that would contribute to an update of Hallsville No. 1 (Texas Mining and past. It is often the case that biological our knowledge of the Texas golden Reclamation Association 2013, p. 3), we information may be lacking for rare gladecress and the Neches River rose- made inquiries with the Railroad species; however, we reviewed all mallow, as well as the activities and Commission of Texas (RRC) about available information and incorporated natural processes that might be locations and status of mines in it into our final rule. We used the best contributing to the decline of either Harrison County. The RRC confirmed scientific and commercial data available species. that only two mines were in operational in assessing occupancy, recognizing the We used information garnered from status in Harrison County, one of which limitations of some of the information. this solicitation in addition to included the South Hallsville mine We acknowledge that additional surveys information in the files of the Service, (referred to by the commenter) but that and continued monitoring of existing TPWD, the Texas Natural Diversity this mine was located northeast of the plots would be valuable and should be Database’s (TXNDD’s) Elements of critical habitat Unit 2. The RRC considered as a recovery action for these Occurrence records for both species, provided new information that the species. The best scientific and published journal articles, newspaper critical habitat unit was a sedimentation commercial data available suggest the and magazine articles, status reports pond of a reclaimed (nonfunctional) site is still occupied by the Neches River contracted by the Service and TPWD, lignite mine; inactive since the late rose-mallow and contain at least one of reports from site visits, and telephone 1990’s. Because the site is a the identified physical and biological and electronic mail conversations with sedimentation pond, and not an area features essential to the conservation of knowledgeable individuals. We also that is being actively excavated for the species. used satellite and aerial imagery to extraction of lignite, the wetland edge The extent to which the occupancy of ascertain changes in land cover and associated with the pond may still this unit is in question, we have land use at historical population sites support the Neches River rose-mallow. alternatively designated Units 2, 9, and and to determine whether the presence The best available scientific and 11 under section 3(5)(A)(ii) of the Act of primary constituent elements for each commercial data does not indicate that because we consider them to be species were still in place. Additionally,

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we used the results of population critical habitat rests squarely on the (14) Comment: One state comment monitoring from site visits to look at Federal agency. questioned the selection of the discount abundance, and if enough information As discussed in the draft economic rate. The comment noted that the Office was available, to get an idea of trends in analysis, the designation of critical of Management and Budget’s regulatory the populations. In October 2011, we habitat for the Texas golden gladecress impact analysis primer includes also made field trips to known sites is likely to result in relatively minor guidance on the use of a lower discount where we were granted access, to verify administrative impacts, with minimal rate (1 percent to 3 percent) when land uses and contribute to the veracity project modifications likely to result intergenerational effects are of concern. of our threats analysis. In March of from the designation of critical habitat. Our response: The discount rates of 2012, we helped to organize and carry All incremental costs are administrative three and seven percent used in the out a workshop and field tour of Texas in nature and result from the economic analysis are in accordance golden gladecress sites for the purposes consideration of adverse modification in with the Office of Management and of assisting landowners and agricultural section 7 consultation under the Act. Budget’s guidance on the conduct of agencies with becoming familiar with Only those projects with a federal nexus regulatory impact analysis. The use of a the species and its habitat. We also would require section 7 consultations lower discount rate, such as one revisited accessible Texas golden with the Service and then it is the percent, may be applicable when gladecress sites. In August 2012, we responsibility of the federal action intergenerational benefits or costs are attended a Neches River rose-mallow agency to consult with the Service, not expected to accrue from regulation. workshop and field tour conducted by the private individual or company. With a 20-year timeframe, we do not TPWD and revisited Neches River rose- Further, all units are occupied by the consider this analysis to be capturing mallow population sites. We used the plant and will require consultation intergenerational impacts. In the best scientific and commercial regardless of the designation of critical intergenerational discounting literature, information available in assessing habitat. In addition, project a minimum time horizon for population status, recognizing the modifications necessary to avoid considering intergenerational effects is limitations of some of the information. adverse modification of critical habitat generally 50 years. However, in (11) Comment: The critical habitat are indistinguishable from those response to a request received in this designations will have a negative impact necessary to avoid jeopardizing the comment, we performed a sensitivity on agricultural-based economies in rural species (see the Service’s reasoning in analysis using the one percent discount counties in their district, including the economic analysis, Appendix B). rate. The total present value cost (12) Comment: One state commenter raising of cattle and forage, poultry, employing a one percent discount rate noted that he was unable to replicate the timber, and row crops. is $690,000, approximately 13 percent results presented in Exhibit 4–3 using greater than the total, present value cost Our response: As discussed in section the formulae presented in Exhibit 2–4. determined using a three percent 4.7 of the draft economic analysis, for Our response: The results of the discount rate and 35 percent greater activities such as agriculture, analysis follow from the formulae than the cost determined using a seven husbandry, and forestry, a Federal presented. The cost estimates in the percent discount rate. nexus may result from technical draft economic analysis exhibits are (15) Comment: Benefits should have assistance to private landowners from presented as rounded numbers (rounded been quantified in the economic the U.S. Department of Agriculture’s to two significant digits) but were analysis to allow for a direct comparison NRCS. In such instances, consultation calculated based on unrounded between monetized costs and benefits. regarding potential effects of the numbers. Further, the unavailability of existing activities on critical habitat would (13) Comment: One state comment on studies specific to the species occur. Following discussions with the the draft economic analysis inquired considered in the analysis should not NRCS, it was determined that the why the annualized values are identical preclude the estimation and involvement of the NRCS in projects for both the 3 percent and 7 percent quantification of benefits. within the critical habitat designation discount rate calculations. Our response: As described in within the timeframe of the study is Our response: The annualized value Chapter 5 of the draft economic unlikely. For this reason, consultation is effectively illustrates the economic analysis, monetization of benefits not expected to occur, and the draft impact as a stream of payments in requires information on how the economic analysis does not anticipate equivalent annual payments over a set incremental conservation efforts critical habitat designation to affect period of time. If the costs of an activity described in the report affect the these activities. are expected to be incurred equivalently recovery probability of either the Texas As stated in the proposed rule, the over the 20-year period of the analysis, golden gladecress or Neches River rose- designation of critical habitat does not the annualized value under any rate will mallow and findings regarding the impose a legally binding duty on non- be the annual cost of the activity. For public’s willingness-to-pay for the Federal Government entities or private those critical habitat units where the incremental change in recovery for these parties. Under the Act, the only undiscounted calculated costs over the species, or similar species. No such regulatory effect is that Federal agencies 20-year period are equal in each year, studies currently exist and such primary must ensure that their actions do not the annualized values are identical for research is outside the scope of the destroy or adversely modify critical both the 3 percent and 7 percent analysis. habitat under section 7. While non- discount rate. Additionally, if the (16) Comment: One state comment Federal entities that receive Federal undiscounted annual costs are suggested that while the study area is funding, assistance, or permits, or that equivalent but occur in some pattern defined in the draft economic analysis otherwise require approval or over the 20-year period (i.e., they are to be ‘‘all lands proposed for critical authorization from a Federal agency for incurred every other year), the habitat designation,’’ the monetization an action, may be indirectly impacted difference in annualized values between of economic impact should be across the by the designation of critical habitat, the discount rates will be very minor. In entire range of the species. legally binding duty to avoid these cases, with rounding applied, the Our response: Because the draft destruction or adverse modification of values are identical in the results table. economic analysis quantifies the

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incremental impact of critical habitat population had been extirpated since (20) Comment: One commenter designation, the geographic scope of the 1978. The site has only been visited by questioned the validity of including the analysis is limited to the area over a species expert twice since 1978. introduced Neches River rose-mallow which the critical habitat rule may affect Although the site was surveyed by critical habitat unit at the Mill Creek projects or activities. Klips in 1992 and Warnock in 1993 Gardens, in Nacogdoches County. (17) Comment: Specifically with without success, leading Warnock Although the site may be the only regard to transportation and utility (1995, p. 6) to list the site as extirpated remaining pure site for the Neches River projects, there are trickle-down costs. or historical, there is reason to believe rose-mallow, seedlings and seeds have Conducting section 7 consultations adds that the plants may still be there (See been used for other reintroduction sites. costs to projects and these costs may get Our Response to Comment 9). In Also, this site is along an emergency passed along to consumers. addition to site conditions that can spillway of a dam where the soil is Our Response: Section 4.2 of the draft change with fluctuations in water level, much different than any of the natural economic analysis evaluates impacts on resulting in shifting of the plants’ populations. Another commenter transportation activities, and detailed location, Warnock’s 1993 site survey indicated that the four natural discussions with TXDOT informed the was conducted from the water (canoe), populations of Neches River rose- quantitative and qualitative assessment not from the land, and the presence of mallow need protection, but does not of these impacts. Based on expected the Neches River rose-mallow may have believe the remaining seven sites of the activities and consultations, the been hidden from view by dense Neches River rose-mallow should be incremental effect of designating critical vegetation at the water’s edge. The site designated as critical habitat. The Mill habitat on transportation projects was could have been overgrown, the plant Creek site is in the emergency spillway found to be modest. Over the 20-year may not have been in bloom at the time of an 8-acre lake, and the site bears little period of the study, we project of the survey, and environmental factors resemblance to any natural site, incremental costs for transportation could have hindered the production of specifically the soil. The only activities to be $66,000 for the Texas flowers at the time of the survey. management since 1995 has been golden gladecress critical habitat and Although the landowner referred to annual mowing or an occasional burn. $15,000 for the Neches River rose- changes in habitat conditions at the Our response: For the purpose of mallow habitat. For utility projects, an Camp Olympia site due to hurricanes designating critical habitat for the overall undiscounted cost to the three and drought, using Google Earth Neches River rose-mallow, we included pertinent electric cooperatives of satellite imagery to compare available all currently occupied populations sites, $25,300 over the 20-year timeframe of habitat from 1995 and 2011 we could as required by section 3(5)(A)(i) of the the study was calculated and the not ascertain habitat alteration that Act. We defined occupied areas as sites analysis did not anticipate these costs to would make sites unsuitable for the where Neches River rose-mallow had influence the utility rates charged to Neches River rose-mallow. been documented based on the most customers (for further discussion see Consequently, the best scientific and recent field surveys that were available Our Response to Comment 24 below). commercial data available is still the to us as of 2011, including recent Public Comments 1978 record from the TXNDD and we reports and survey information from the considered this site to be occupied. Davy Crockett NF, TPWD, TXDOT, and (18) Comment: One commenter The extent to which the occupancy of observations by species experts requested clarification regarding lack of this unit is in question, we have (Warnock 1995, p. 6; Miller 2011, pers. access being granted to their site. The alternatively designated Units 2, 9, and comm.; TXNDD 2012a, entire). Based on Camp Olympia landowner stated that 11 under section 3(5)(A)(ii) of the Act this information we determined that they have been at the site since the because we consider them to be there are 11 currently occupied areas for 1970’s and access has never been essential for the conservation of the the Neches River rose-mallow in requested nor denied. This landowner Neches River rose-mallow, regardless of Trinity, Houston, Cherokee, has also searched his property for occupancy data. Including these units in Nacogdoches, and Harrison Counties in Neches River rose-mallow and not the designation of critical habitat for the East Texas. Although two of these areas found it. Two major hurricanes and a Neches River rose-mallow aligns with have not been verified since the 1980s severe drought have caused major the conservation strategy for this and mid-1990s, the best scientific and habitat alterations including a loss of species. commercial data available did not show trees and plants. The commenter (19) Comment: As it currently is these sites to have been modified such believes this unit should not be drawn, the area being proposed for that they no longer had the physical or considered for critical habitat or the critical habitat unit 4 (SH 204 ROW or biological features essential for the species for listing. Mud Creek) is only a small portion of Neches River rose-mallow, therefore we Our Response: We stated in the a historically much larger piece of considered them presently occupied. proposed rule that we considered the Neches River rose-mallow habitat. The Populations that were successfully Camp Olympia site to be an extant site has dwindled over time due to introduced were included with the population (i.e., occupied). We based mowing and herbicide practices by natural populations because the this on the best scientific and private landowners. introduced sites are considered to have commercial information available at the Our response: The area not designated at least one of the primary constituent time of listing, which was the as critical habitat does not have an open elements required by the species and documented presence of the Neches canopy providing partial to full sun because the species is still present at the River rose-mallow at this site based on exposure. The Neches River rose- site. The primary constituent elements voucher specimens collected in 1977 mallow is typically found in an open of the Mill Creek Gardens site include and in 1978. The best scientific and canopy (Warnock 1995, pp. 11, 13), but its location within Mill Creek (part of commercial information available plants also grow in partial sun (as is the the Angelina River basin), open-canopy indicates that the species is likely to case at SH 204 ROW). However, habitat with full sun, and the presence persist because the habitat has not been sunlight is needed for blooming as the at the site of alluvial, hydric soils. altered such that it would no longer blooming period may only last 1 day (21) Comment: Many comments were support the species or that the (Snow and Spira 1993, p. 160). received expressing concern about the

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negative impact the critical habitat expansion and genetic exchange. Since electric cooperatives. This constitutes a designations (particularly the rose- Neches River rose-mallow is so water- Federal nexus triggering consultation mallow critical habitat unit 4) may have dependent, hydrological changes can under the Act on these projects that may on the Lake Columbia water supply have significant impacts on the species. affect listed species and critical habitats. project in Cherokee County and the Regarding the SH 204 ROW site (unit For each 4-year workplan set forth by future water supply of the region. Most 4) in particular, the best scientific and the three cooperatives serving the areas prominently, it was proposed that the commercial data available suggests that in which critical habitat is proposed, we costs incurred by the Angelina and the construction of the Lake Columbia anticipated an informal section 7 Neches River Authority (ANRA) and reservoir project will divert downstream consultation will occur. For the Neches local communities as a result of the water, thereby potentially dewatering River rose-mallow, we assume that the critical habitat designation were either the Neches River rose-mallow costs of these consultations are related not considered or were estimated to be population site. Project details are still to the presence of the plant and the far lower than ANRA projects for itself. being worked out by involved agencies, critical habitat designation will generate Our Response: As documented in therefore, we do not know the amount only limited administrative effort. For section 4.5 of the draft economic of water that is projected to remain the Texas golden gladecress, we assume analysis, water management activities flowing to this site or if future water that the plant will not be present and were evaluated for the Neches River management practices or decisions will therefore the incremental costs rose-mallow. Critical habitat unit 4, allow for seasonal flooding of the site. associated with critical habitat are both: located downstream from the proposed Please reference the ‘‘Hydrological (1) Administrative costs and (2) costs reservoir, is considered to be occupied Change’’ section of this rule for more associated with project modifications for the purposes of critical habitat. information on this project and proposed during the consultation. As Thus, a consultation with the Army projected hydrological changes to this described in section 4.6 of the draft Corps of Engineers is expected to take and other sites. economic analysis, based on our place regardless of critical habitat (23) Comment: The Service did not conversations with RUS, we expect the designation. In addition, the Service completely ascertain, or was unwilling utility projects will be able to avoid anticipates that critical habitat to admit to, the total economic impact impacts to critical habitat relatively designation will not generate any to rural East Texas counties and the easily. Project modifications include requests for project modifications above State of Texas in general. Water is a modifying clearing and maintenance and beyond what would already be critical issue, and the commenter techniques, and adjusting new pole recommended due to the presence of the expressed their belief that the placement to avoid digging into glade species. As such, the costs associated designations could seriously restrict substrate. Because the costs associated with critical habitat for this unit are construction of critical water resource with these project modifications are those incremental administrative costs projects and possible transport of water anticipated to be very minor, they were of considering critical habitat during the through pipelines. not quantified in the analysis. Overall, consultation. Angelina and Neches Our Response: The only water supply we calculated an undiscounted cost to River Authority is anticipated to incur project brought to the Service’s attention the three electric cooperatives of $2,080 in costs for the additional was the proposed Lake Columbia project $25,300 over the 20-year timeframe of consideration of critical habitat as a (Industrial Economics 2013, pp. 4–11), the study, or approximately $1,265 per third party participant during the formal which is a water supply reservoir. The year. We do not expect these costs to consultation process between the Service addressed this project in our influence the utility rates charged to Service and Army Corps of Engineers. proposed rule, final rule, and economic customers. The Army Corps of Engineers does not analysis. As we stated in the proposed In conclusion, while three small anticipate any other future section 7 rule, the designation of critical habitat electric cooperatives are anticipated to consultations for the Neches River rose- does not impose a legally binding duty incur costs as a result of the designation mallow within the timeframe of this on non-Federal Government entities or of critical habitat for Texas golden analysis (Industrial Economics 2013, pp. private parties. Under the Act, the only gladecress and Neches River rose- 4–11). regulatory effect is that Federal agencies mallow, the costs are not expected to (22) Comment: The threat to the SH must ensure that their actions do not result in significant impacts to these 204 ROW site (unit 4) by ‘‘water destroy or adversely modify critical entities (Industrial Economics 2013, p. management strategies’’ is speculative. habitat under section 7. While non- A–2). See Attachment A and pages 4–11 There are no scientific data that Federal entities that receive Federal through 4–13 of the draft economic demonstrate the level of hydrological funding, assistance, or permits, or that analysis for a detailed description of our change that would impact the Neches otherwise require approval or analysis. River rose-mallow, therefore the Service authorization from a Federal agency for (25) Comment: Several commenters is speculating about this threat. an action, may be indirectly impacted expressed the need to include impacts Our Response: Some degree of by the designation of critical habitat, the of critical habitat designation on natural hydrologic change has been seen at most legally binding duty to avoid gas exploration and development in the of the Neches River rose-mallow sites, destruction or adverse modification of economic analysis, concerns about with the exception of some private land critical habitat rests squarely on the additional consultation and permitting sites for which information is lacking. Federal agency. requirements for future projects that The Neches River rose-mallow likely (24) Comment: Two electric require a Federal permit or otherwise requires high precipitation and flowing cooperatives operating in East Texas have a federal nexus causing delays in water or flood events to disperse seed expressed concern about the designation operations. Other comments thought the (Warnock 1995, p. 20; Scott 1997, p. 8; of critical habitat increasing costs for the Service’s draft economic analysis of the Reeves 2008, p. 3), and although the utility, which would result in higher critical habitat designation failed to Neches River rose-mallow is adapted to electricity rates for local users. identify oil and gas development as an persist during dry portions of the year, Our Response: The U.S. Department economic activity that may be affected a complete lack of water can diminish of Agriculture’s Rural Utility Service by the designation of critical habitat for seed production, and affect range may fund project work undertaken by the Texas golden gladecress.

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Our Response: The Service does pipeline activity. We have added this distribution, and use of energy.’’ identify natural gas exploration, information to section 4.7 of the final (Industrial Economics 2013, p. A–3). For production, and distribution (pipelines) economic analysis. the Neches River rose-mallow and the as current and ongoing threats to the The Texas Railroad Commission has Texas golden gladecress, minimal remaining populations of Texas golden detailed information on all existing modifications to future energy-related gladecress. Texas golden gladecress sites pipelines, but the agency has no way to economic activities are anticipated to could be directly impacted by site predict future routes for new pipelines result from the designation of critical clearing or indirectly impacted by or wells; they are limited to location habitat (Industrial Economics 2013, p. altering the hydrology. As stated in the data found within permit applications A–4). proposed rule, the Simpson Farms (Nunley 2011, pers. comm.). In summary, oil and gas production Texas golden gladecress population, Further, the draft economic analysis and distribution do pose a threat to the located 6 mi (9.7 km) east of the city of identifies the baseline protection Texas golden gladecress as we identified Nacogdoches, was eliminated by a afforded through listing under the Act in the proposed rule and this final rule. natural gas pipeline that was installed for the Texas golden gladecress and the Specifically, the Chapel Hill population sometime between August 2010 and Neches River rose-mallow and their may still be affected by future pipeline October 2011. The population was habitats. This existing regulatory construction. The draft economic estimated to be approximately 200 ft2 baseline provides the context for the analysis does not evaluate the threats to (18 m2) in size, and the loss of plants evaluation of economic impacts a species, it evaluates the incremental at this site represented a loss of expected to result from critical habitat cost associated with additional approximately 65 percent of all the designation. The draft economic conservation measures required due to known plants. analysis does not evaluate the threats to the designation of critical habitat. The entire known distribution of a species, it evaluates the incremental (26) Comment: One commenter noted Texas golden gladecress is underlain by cost associated with additional the existence of lignite mining activities the Haynesville Shale formation (also conservation measures required due to in the vicinity of the critical habitat known as the Haynesville-Bossier), the designation of critical habitat. The designation, particularly the proximity recently recognized as a major natural draft economic analysis determined that of critical habitat unit 2 for the Neches gas source for the United States. By the designation of critical habitat for the River rose-mallow to a sedimentation September 2011, as many as 1,500 wells Texas golden gladecress is likely to pond constructed by the Sabine Mining had been drilled on the Haynesville result in relatively minor administrative Company. Other commenters noted that Shale with many more anticipated, impacts. In addition, minimal project in the economic analysis there was not along with perhaps another 10 years of modifications are likely to result from any discussion of lignite coal mining in active drilling on this formation the designation of critical habitat. These this region of Texas. The Sabine Mining (Murphy 2011, pp. 2–3). Exploration minor impacts are attributed primarily Company alone produces more than and production of natural gas and oil is to very few projects with a Federal four million tons of coal per year, and anticipated to continue in this area for nexus being envisioned within the there are several other coal mines in east at least the next decade. critical habitat designation for the plant. Texas, contributing a combined total Section 4.7 and Exhibit 3.1 of the final The primary activities expected to result state production of some 40 million tons economic analysis suggested that a in section 7 consultations and trigger per year. According to the Office of Federal nexus arises for interstate oil project modifications are routine Management and Budget a ‘‘significant pipelines because of oversight by transportation projects and utility- adverse effect’’ may occur if the Federal Energy Regulatory Commission. related activities. To the extent that regulatory action under consideration However, subsequent research future economic activity is uncertain, results in reductions of coal production determined that management of this analysis may have failed to identify of more than five million tons per year. interstate oil pipelines is not within the projects or land use alterations that may An additional concern was expressed scope of Federal Energy Regulatory occur within habitat. However, given that mining operations, including those Commission’s operations. Therefore, for the stated conditions, project for glauconite and other materials that oil exploration and development on modifications due to critical habitat counties buy for road maintenance, will private land in Texas, no Federal nexus designation are unlikely for Neches be affected and that all increased costs necessitating consideration of critical River rose-mallow and minimal in cases will get passed along to counties as the habitat exists. For this reason, we where they do occur for Texas golden purchasers, and ultimately to the tax assume that the designation of critical gladecress. payers. habitat will have negligible impact on No small entities are likely to be Our response: Currently, there are no oil exploration and development. The significantly affected by the designation active mines in the vicinity of the information regarding oil pipelines in of critical habitat. In addition, we do not critical habitat; a sediment pond in Unit the final economic analysis has been anticipate measurable impacts to the 2 is associated with a mine that has corrected to reflect this change. supply, distribution, or use of energy been in reclamation since the 1990s. The Federal nexus for natural gas (Industrial Economic 2013, p. ES–5). However, a lignite belt is noted to exist activities is through Federal Energy Pursuant to Executive Order No. 13211, throughout East Texas, including in the Regulatory Commission, the agency ‘‘Actions Concerning Regulations that counties in which the critical habitat is responsible for permitting interstate Significantly Affect Energy Supply, designated. Because mines on private natural gas pipelines. According to Distribution, or Use,’’ issued May 18, land are managed by the Railroad Federal Energy Regulatory Commission 2001, Federal agencies must prepare Commission in Texas, for a Federal data, as of February 2013, there were no and submit a ‘‘Statement of Energy nexus to occur with lignite mining pending major interstate pipeline Effects’’ for all ‘‘significant energy activities, the critical habitat projects in East Texas. Furthermore, the actions.’’ The purpose of this designation would need to overlay white bladderpod, a federally-listed requirement is to ensure that all Federal Federal mineral rights. The Bureau of species since 1987 and co-located with agencies ‘‘appropriately weigh and Land Management confirmed that no the Texas golden gladecress, has no consider the effects of the Federal Federal mineral rights overlap the consultation history for natural gas Government’s regulations on the supply, critical habitat area. This information

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has been included in section 4.7 of the designation on land values outside of modifications that may result in project economic analysis. urban growth areas, limiting its delays are expected to occur due to the Additionally, our final economic applicability to this particular presence of the plant regardless of analysis on April 16, 2013 (78 FR designation. whether critical habitat is designated. 22506–22510) identified and analyzed (28) Comment: Commenters expressed Project modifications due to critical the potential economic impacts of concerns that critical habitat habitat for the Texas golden gladecress designating critical habitat for the Texas designations added to the regulatory are generally expected to generate only golden gladecress and the Neches River burden on businesses and private minor additional costs associated with rose-mallow. The economic analysis landowners in the area at issue, and project implementation. The addressed the requirements of Executive such designations, if made without a consultation process and Order 13211, Actions Concerning proper basis, would contravene the implementation of associated Regulations That Significantly Affect President’s Executive Order 13563, recommendations are not expected to Energy Supply, Distribution, or Use, which directs Federal agencies to generate substantial project delays or May 18, 2001; as well as Executive identify and use the best, most result in cancellation of projects. Orders 12866 (as amended by 13563), innovative, and least burdensome tools (29) Comment: The Service 13211, and 12630, the Regulatory for achieving regulatory ends. They incorrectly assumed the generally Flexibility Act (RFA), as amended by indicated that it would be an described site location in Harrison the Small Business Regulatory inappropriate use of Service’s discretion County where the Neches River rose- Enforcement Fairness Act (SBREFA), to place regulatory burdens on mallow was collected in 1980 had not and the Unfunded Mandates Reform Act development in the areas in question, been disturbed. Significant disturbance (UMRA). The economic analysis when the agency has demonstrated has taken place in that area. The Sabine determined that no small entities are neither that the proposed listings and Mining Company began development of likely to be significantly affected by the designations are justified nor that such the South Hallsville No. 1 Mine, a large designation of critical habitat. In listings and designations would be the lignite coal mine, in 1984, and has been addition, we do not anticipate least burdensome tool for achieving the operating continuously since then. The measurable impacts to the supply, Service’s goals. Commenters believe second largest proposed critical habitat distribution, or use of energy. See projects with a Federal nexus could be site matches the footprint of a Appendix A of the Final draft economic delayed or cancelled in East Texas sedimentation pond on one of the state’s analysis for further information. counties due to critical habitat major coal mines. The shoreline of a (27) Comment: The listing and critical designation. They indicated the belief large sedimentation pond constructed habitat will cause undue economic that any benefits associated with the by the mining company in the early harm by limiting development proposed designations were outweighed 1990’s is the exact boundary of the opportunities in that region, threaten by the potential for negative economic proposed critical habitat unit 2 for the local jobs, and be too costly. impacts. Neches River rose-mallow. Our Response: As discussed in the Our response: Executive Order 13563 Our response: In regard to the location Executive Summary of the draft requires agencies to tailor regulations to of the Harrison County site see Our economic analysis, impacts of the impose the least burden on society, Response to Comment 9. New critical habitat designation are expected consistent with obtaining regulatory information provided by the commenter to be relatively minor and mostly objectives. The Service may exclude any confirms that the Harrison County administrative in nature. The area from critical habitat if we critical habitat unit overlays a administrative costs and project determine that the benefits of such sedimentation pond of an old lignite modifications resulting from critical exclusion outweigh the benefits of (type of coal) mine that is no longer habitat designation are not expected to specifying such areas as part of critical active (Lang 2013, pers. comm.). The affect the type or intensity of economic habitat unless we determine that the pond’s edge still provides at least one of activities occurring in the region. As failure to designate such area as critical the primary constituent elements such, we do not predict impacts to local habitat will result in the of needed by the Neches River rose- jobs. See Our Response to Comments 11 the species concerned. The Executive mallow. Consequently, we consider this and 17 in the Comments from States Order directs agencies to consider site to meet the definition of critical section, as well as Comments 21 and 23 regulatory approaches that reduce habitat for the Neches River rose- above in Public comments. burdens and maintain flexibility and mallow. As documented in section 4.3 of the freedom of choice for the public where (30) Comment: The draft economic analysis, we do not forecast any these approaches are relevant, feasible, analysis did not monetize the costs of restrictions on development or other and consistent with regulatory all the project modifications that were major land use regulations as a result of objectives. The Executive Order 13563 recognized to be necessary. the critical habitat designation that emphasizes further that regulations Our response: Executive Order 12866 might influence private property values. must be based on the best available specifies that quantification of costs In section 2.3.2, the report does note science and that the rulemaking process should be performed to the extent that public attitudes about limits or must allow for public participation and feasible. As discussed in sections 4.2 restrictions that critical habitat may an open exchange of ideas. We have and 4.6 of the draft economic analysis, impose can cause real economic effects developed this rule in a manner we do not quantify the potential impacts to property owners, regardless of consistent with these requirements. of the designation in two instances. The whether such limits are actually For projects occurring within the cost of altering vegetation clearing imposed. As the public becomes aware critical habitat designation for the techniques at the base of utility poles of the true regulatory effects imposed by Neches River rose-mallow, it is unlikely was expected to be minor and is critical habitat, the impact of the that critical habitat designation will therefore described qualitatively. In designation of property markets may generate project delays or cancellations. addition, the draft economic analysis decrease. Furthermore, the study cited As discussed in section 4.1 of the draft describes the potential costs to driver in this comment did not identify economic analysis, any consultations or safety associated with a narrower statistically significant effects of the recommendations for project roadway shoulder. These costs would be

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net of the savings associated with costs and fail to reflect the true real- that the costs of the rule are limited to constructing a narrower shoulder. world costs associated with project administrative costs. Absent information on the extent to delays caused by section 7 consultation. (35) Comment: The draft economic which the reduced roadway shoulder Another comment notes that the analysis should include the impacts the size may increase accident or injury, we administrative consultation costs critical habitat designation would have describe this cost qualitatively. presented in Exhibit 2–3 represent old on private landowners. (31) Comment: The draft economic data. Our Response: When prudent and analysis did not provide a complete or Our response: The administrative determinable, the Act requires the accurate picture of the economic impact costs assigned in the study were Service to designate any habitat, which that would be caused by the proposed developed from data from the Federal is considered to be critical habitat listing. Government Schedule Rates, Office of concurrently with making a Our response: As described in section Personnel Management, and a review of determination that a species is an 2.1 of the draft economic analysis, the consultation records from several endangered or threatened species. analysis is focused on the incremental Service field offices across the country. Critical habitat is defined in section 3 of economics impacts of the designation of While the estimates of time spent in the Act: the specific areas within the critical habitat for the Texas golden section 7 consultations were derived geographic area occupied by the species, gladecress and the Neches River rose- from interviews with agencies and at the time it is listed in accordance mallow. This report does not attempt to review of consultation records in 2002, with the Act, on which are found those capture the economic impacts of the the cost of time spent is based on physical or biological features (a) listings of the two species. The Service current data describing the Federal essential for the conservation of the is required to use the best scientific and government’s 2012 hourly pay rates, species and (b) which may require commercial data available in adjusting for overhead and benefits. As special management considerations or determining the threatened or such, we consider these administrative protection. The 11 occupied sites endangered status of a species. For costs a reasonable approximation of the contain either one or more physical or critical habitat designation, the Service administrative costs of consultation. As biological feature essential to the is required to use the best scientific and stated in the response to the comment Neches River rose-mallow which may require special management commercial data available, after taking on time delays, we do not anticipate this into consideration the probable considerations or protection, as do the rule will generate measurable time economic impacts and other impacts of four occupied Texas golden gladecress delays. the designation on proposed or ongoing sites. A final designation of critical (34) Comment: One commenter stated activities. The Service evaluated the habitat is based on the best scientific that the draft economic analysis’ probable incremental economic impact and commercial data available, after of the designation of critical habitat reliance solely on administrative costs taking into consideration the probable through its economic analysis. The cost to quantify impact does not present a economic impacts and other impacts of of listing the species are in the baseline comprehensive appraisal of the the designation on proposed or ongoing and therefore not presented. economic impact of the proposed activities. (32) Comment: One comment designation. As discussed in section 2.3.2 of the suggested that potential incremental Our response: The draft economic draft economic analysis, private effects identified in ‘‘Appendix B: The analysis presents the probable landowners may be affected by critical Incremental Effect Memorandum for the incremental economic impact of the habitat if they are party to a consultation draft economic analysis for the designation of critical habitat for each and experience administrative impacts proposed rule to Designate Critical species. Use of an incremental analysis or bear costs of project modifications. Habitat for Texas golden gladecress and is the only logical way to implement the Activities taking place on private land Neches River rose-mallow’’ of the draft Act. To understand the difference that that do not involve a Federal nexus are economic analysis associated with designation of an area as critical habitat unlikely to be directly affected by activities that may affect the primary makes, one must compare the critical habitat; however, section 2.3.2 of constituent elements (PCEs) for the hypothetical world with the designation the draft economic analysis additionally Neches River rose-mallow without to the hypothetical world without the recognizes the potential for private affecting the plant were not quantified designation. For this reason, the Service landowners to be indirectly affected by in the analysis. compares the protections provided by critical habitat designation, for example Our response: As described in the designation to the protections in the case that the designation Appendix B, the purpose of the without the designation. This generates uncertainty about restrictions incremental effects memorandum is to methodology is consistent with the on future land use or triggers changes in provide information to serve as a basis general guidance given by the Office of state or local management of activities. for conducting an economic analysis of Management and Budget to executive As presented in section 4.3 of the draft the proposed critical habitat. While it branch agencies as to how to conduct economic analysis, however, we expect serves as the basis, subsequent cost-benefit analyses. costs to private landowners in this case discussions with the Service and other Section 2.3.2 of the final economic will be limited to the administrative Federal agencies directly informs the analysis describes that the economic costs associated with technical analysis. Through such discussions, we analysis considers multiple categories of assistance for land management by did not identify an instance of the potential impacts, including Partners for Fish and Wildlife. It is situation outlined in this comment for administrative costs and costs of project important to note that this technical the Neches River rose-mallow. For this modifications, which may be assistance is offered to willing reason, these example incremental implemented to avoid adverse landowners but is not required. effects were not quantified in the modification of critical habitat. For (36) Comment: One commenter noted analysis. projects for which critical habitat that if the private landowner does not (33) Comment: One comment stated designation is not expected to result in have restrictions on the plants on their that the estimated costs of consultation project modifications, or otherwise property, then there are no measures likely underestimate administrative affect economic activities, we anticipate that would prevent the landowner from

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destroying or further endangering a specific areas within the geographical (41) Comment: One commenter species. area occupied by the species, at the time indicated concern that designation of Our response: The commenter is it is listed, on which are found the critical habitat will impose restrictions correct. The Act does not prohibit physical or biological features that are upon people’s freedom of access to destroying or adversely modifying essential to the conservation of the Federal lands (the Davy Crockett NF critical habitat unless such activities species and which may require special specifically). involve an endangered species on management considerations or Our response: Neither listing nor Federal land, there is a Federal nexus, protection; and (2) specific areas outside designation of critical habitat for the or if the action occurs in violation of the geographical area occupied by the Neches River rose-mallow of any area State laws. If a person wishes to develop species at the time it is listed, upon a on the Davy Crockett NF will restrict private land, with no Federal determination that such areas are public access of this land. The jurisdiction involved, in accordance essential for the conservation of the designation of critical habitat does not with State law, then the potential species. See the ‘‘Areas Occupied at the affect land ownership or establish a destruction or adverse modification of Time of Listing’’ and ‘‘Areas refuge, wilderness, reserve, preserve, or critical habitat does not violate the Act. Unoccupied at the Time of Listing’’ other conservation area. Such Critical habitat receives protection sections for both species in this final designation does not allow the under section 7 of the Act through rule for further information. government or public to access private requiring Federal agencies to consult (39) Comment: One comment lands. with the Service to ensure that action expressed concern that the economic they carry out, fund, or authorize does Summary of Changes From Proposed analysis was incomplete because Rule not result in the destruction or adverse citations for discussions did not list the modification of critical habitat. If there names of all the Service staff and only Our analysis or conclusions did not is no Federal nexus, the critical habitat one state agency. This comment also result in any substantial changes to the designation of private lands itself does noted that the document did not final rule from what was proposed. not restrict any actions that destroy or provide a list of those individuals Critical Habitat adversely modify critical habitat. consulted for information. (37) Comment: Several comments Our response: As described in section Background were made addressing potential adverse 4.1, we contacted multiple Federal impacts on property values due to the Critical habitat is defined in section 3 agencies and applicable state agencies critical habitat designation. of the Act as: Our response: As documented in that may permit, fund, or carry out (1) The specific areas within the section 4.3 of the draft economic activities within the proposed critical geographical area occupied by the analysis, we do not forecast any habitat designation. In response to species, at the time it is listed in restrictions on development or other public comments, we contacted accordance with the Act, on which are major land use regulations as a result of additional agencies in order to confirm found those physical or biological the critical habitat designation that the status of a potential activity over the features might influence private property values. timeframe of the study. The final (a) Essential to the conservation of the In section 2.3.2 of the draft economic economic analysis will include these species, and analysis, the report does note that additional individuals. All individuals (b) Which may require special public attitudes about limits or contacted are referenced by footnote in management considerations or restrictions that critical habitat may the economic analysis. protection; and impose can cause real economic effects (40) Comment: In response to the (2) Specific areas outside the to property owners, regardless of September publication of the proposed geographical area occupied by the whether such limits are actually rule, multiple commenters requested an species at the time it is listed, upon a imposed. As the public becomes aware extended comment period. determination that such areas are of the true regulatory effects imposed by Our Response: We consider the essential for the conservation of the critical habitat, the impact of the comment periods described in the species. designation of property markets may ‘‘Summary of Comments and Conservation, as defined under decrease. Furthermore, the study cited Recommendations’’ of this final rule to section 3 of the Act, means to use and in this comment did not identify have provided the public a sufficient the use of all methods and procedures statistically significant effects of the opportunity for submitting both written that are necessary to bring an designation on land values outside of and oral public comments. In addition, endangered or threatened species to the urban growth areas, limiting its the Act requires the Service to publish point at which the measures provided applicability to this particular a final rule within 1 year from the date pursuant to the Act are no longer designation. we propose to list a species. This 1-year necessary. Such methods and (38) Comment: One commenter timeframe can only be extended if there procedures include, but are not limited questioned the benchmarks for is substantial disagreement regarding to, all activities associated with designating species with critical habitat the sufficiency or accuracy of the scientific resources management such as and how these areas are determined. available data relevant to the research, census, law enforcement, Our response: Under the Act, any determination or revision concerned, habitat acquisition and maintenance, species that is determined to be an but only for 6 months and only for propagation, live trapping, and endangered or threatened species purposes of soliciting additional data. transplantation, and, in the requires critical habitat to be designated, Based on the comments received and extraordinary case where population to the maximum extent prudent and data evaluated there is not substantial pressures within a given ecosystem determinable, using the best scientific disagreement regarding the sufficiency cannot be otherwise relieved, may and commercial data available and or accuracy of the data. We also include regulated taking. primary and original sources of reopened the comment period for the Critical habitat receives protection information. Critical habitat is defined draft economic analysis and for the under section 7 of the Act through the in section 3 of the Act as: (1) The proposed rule. requirement that Federal agencies

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ensure, in consultation with the Service, essential to the conservation of the or threatened species, and (3) section 9 that any action they authorize, fund, or species and may be included in the of the Act’s prohibitions on taking any carry out is not likely to result in the critical habitat designation. We individual of the species, including destruction or adverse modification of designate critical habitat in areas taking caused by actions that affect critical habitat. The designation of outside the geographical area occupied habitat. Federally funded or permitted critical habitat does not affect land by a species only when a designation projects affecting listed species outside ownership or establish a refuge, limited to its range would be inadequate their designated critical habitat areas wilderness, reserve, preserve, or other to ensure the conservation of the may still result in jeopardy findings in conservation area. Such designation species. some cases. These protections and does not allow the government or public Section 4 of the Act requires that we conservation tools will continue to to access private lands. Such designate critical habitat on the basis of contribute to recovery of this species. designation does not require the best scientific and commercial data Similarly, critical habitat designations implementation of restoration, recovery, available. Further, our Policy on made on the basis of the best available or enhancement measures by non- Information Standards Under the information at the time of designation Federal landowners. Where a landowner Endangered Species Act (published in will not control the direction and requests Federal agency funding or the Federal Register on July 1, 1994 (59 substance of future recovery plans, authorization for an action that may FR 34271)), the Information Quality Act habitat conservation plans (HCPs), or affect a listed species or critical habitat, (section 515 of the Treasury and General other species conservation planning the consultation requirements of section Government Appropriations Act for efforts if new information available at 7(a)(2) of the Act would apply, but even Fiscal Year 2001 (Pub. L. 106–554; H.R. the time of these planning efforts calls in the event of a destruction or adverse 5658)), and our associated Information for a different outcome. modification finding, the obligation of Quality Guidelines provide criteria, the Federal action agency and the establish procedures, and provide Physical or Biological Features for the landowner is not to restore or recover guidance to ensure that our decisions Texas Golden Gladecress the species, but to implement are based on the best scientific data In accordance with section 3(5)(A)(i) reasonable and prudent alternatives to available. They require our biologists, to and 4(b)(1)(A) of the Act and regulations avoid destruction or adverse the extent consistent with the Act and at 50 CFR 424.12, in determining which modification of critical habitat. with the use of the best scientific data Under the first prong of the Act’s available, to use primary and original areas within the geographical area definition of critical habitat, areas sources of information as the basis for occupied by the species at the time of within the geographical area occupied recommendations to designate critical listing to designate as critical habitat, by the species at the time it was listed habitat. we consider the physical or biological are included in a critical habitat When we are determining which areas features essential to the conservation of designation if they contain physical or should be designated as critical habitat, the species and which may require biological features (1) which are our primary source of information is special management considerations or essential to the conservation of the generally the information developed protection. These include, but are not species and (2) which may require during the listing process for the limited to: special management considerations or species. Additional information sources (1) Space for individual and protection. For these areas, critical may include the recovery plan for the population growth and for normal habitat designations identify, to the species, articles in peer-reviewed behavior; journals, conservation plans developed extent known using the best scientific (2) Food, water, air, light, minerals, or by States and counties, scientific status and commercial data available, those other nutritional or physiological surveys and studies, biological physical or biological features that are requirements; essential to the conservation of the assessments, other unpublished species (such as space, food, cover, and materials, or experts’ opinions or (3) Cover or shelter; protected habitat). In identifying those personal knowledge. (4) Sites for breeding, reproduction, or physical or biological features within an Habitat is dynamic, and species may rearing (or development) of offspring; area, we focus on the principal move from one area to another over and time. We recognize that critical habitat biological or physical constituent (5) Habitats that are protected from elements (primary constituent elements designated at a particular point in time may not include all of the habitat areas disturbance or are representative of the such as roost sites, nesting grounds, historical, geographical, and ecological seasonal wetlands, water quality, tide, that we may later determine are distributions of a species. soil type) that are essential to the necessary for the recovery of the conservation of the species. Primary species. For these reasons, a critical We derive the specific physical or constituent elements are those specific habitat designation does not signal that biological features essential for Texas elements of the physical or biological habitat outside the designated area is golden gladecress from studies of this features that provide for a species’ life- unimportant or may not be needed for species’ habitat, ecology, and life history history processes and are essential to recovery of the species. Areas that are as described in the Critical Habitat the conservation of the species. important to the conservation of the section of the proposed rule to designate Under the second prong of the Act’s species, both inside and outside the critical habitat published in the Federal definition of critical habitat, we can critical habitat designation, will Register on September 11, 2012 (77 FR designate critical habitat in areas continue to be subject to: (1) 55968), and in the information outside the geographical area occupied Conservation actions implemented presented below. Additional by the species at the time it is listed, under section 7(a)(1) of the Act, (2) information can be found in the final upon a determination that such areas regulatory protections afforded by the listing rule published today elsewhere are essential for the conservation of the requirement in section 7(a)(2) of the Act in the Federal Register. We have species. For example, an area currently for Federal agencies to insure their determined that Texas golden gladecress occupied by the species but that was not actions are not likely to jeopardize the requires the following physical or occupied at the time of listing may be continued existence of any endangered biological features:

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Space for Individual and Population golden gladecress at this site has not The best available scientific and Growth and for Normal Behavior been verified since 1988 because the site commercial information regarding gene Based on all documented occurrence is on private property to which access flow between Texas golden gladecress records, the Texas golden gladecress is has been denied. Historically, populations is that seed dispersal may endemic to glade habitats in northern populations in the closest proximity to be limited. Seeds appear to fall to the San Augustine and northwest Sabine each other were part of the Caney Creek ground near the parent plant (Singhurst Counties, Texas, where it is a habitat Glade Complex that contained five of 2011c, pers. comm., p. 4) and probably specialist, occurring only on outcrops of the eight known sites. This entire stay in place unless water movement, the Weches Geologic Formation (Mahler complex was located within an area that such as flooding, carries them to other 1987, p. 240; George and Nixon 1990, p. did not exceed 1 mi (1.6 km) from the suitable habitats. The Weches outcrops 120; Poole et al. 2007, pp. 286–287). most northern to most southern plant occur in a scattered fashion across the The gladecress grows only in glades on occurrences, and extended less than landscape with habitat that is unsuitable shallow, calcium-rich soils that are wet 0.32 miles (0.53 km) from east to west. for Texas golden gladecress lying in winter and spring. These occur on The Chapel Hill and Geneva sites were between outcrops. specific to Texas golden ironstone (glauconite or green-stone) outliers to the Caney Creek Complex, gladecress have not been identified. outcrops (Poole et al. 2007, p. 286). The located 4.5 mi (7.24 km) and 11.4 mi Native bees in the Families Andrenidae Texas golden gladecress occurs in open, (18.3 km), respectively, to the southeast. and (sweat bees), including sunny, herbaceous-dominated plant Multiple glades in close proximity to the species (sweat bee), communities in Weches glades; in some one another, as exemplified by the Caney Creek Glade Complex, may have were observed carrying from cases in areas that also support another Leavenworthia crassa (fleshyfruit federally listed plant, the white facilitated cross fertilization between populations, enhancing genetic gladecress) and L. stylosa (cedar bladderpod (Lesquerella pallida) gladecress) in northern (Lloyd (Bridges 1988, pp. II–7, II–35, and II–35 diversity, and perhaps providing space for population expansion. 1965, pp. 106–115). Although supplement). Unlike the white representatives of these bee families are bladderpod, which can grow throughout Potential exists for other areas within the range of the Texas golden gladecress found across eastern Texas (Warriner the glade, the gladecress is restricted to 2012b, pers. comm.), there is no the outcrop rock faces within the glades to support glade complexes. Singhurst (2012b, pers. comm.), using aerial documentation of them visiting Texas where it occurs (Nemec 1996, p. 8). The golden gladecress. Busch and Urban photography and maps of geology and Texas golden gladecress shows a tight (2011, p. 18) indicated the efficacy of soils, has identified clusters of potential association with the Weches Formation these pollinators has not been studied in glade sites in additional areas within the and associated soils (Singhurst, 2011a, Leavenworthia. Texas golden gladecress Weches Formation within 1 mi (1.6 km) pers. comm., p. 3). The known Texas is believed to be self-compatible and to the north and south of SH 21 as it golden gladecress occurrences are all may not rely solely on pollinators for traverses San Augustine County, as well found on shallow, gravelly soils or fertilization (see Biology section). Based as into Sabine County. We are also almost bare bedrock overlying Trawick, on this information, close proximity of aware that areas adjacent to the Chapel Bub, or Nacogdoches soils. glade outcrops to one another may help Hill and Geneva sites have a high The Weches Glades form a small to facilitate cross pollination and seed patch system of habitats, endemic to the likelihood of suitable habitat. dispersal. outcrops of marine sediment and Due to loss, degradation, and Therefore, based on the information glauconitic clays that occur primarily in fragmentation of habitat, optimal glade above, we identify glauconite exposures Nacogdoches, San Augustine, and size or density of glade complexes (outcrops) of the Weches Geologic Sabine Counties (Nature Serve 2009, p. needed to support long-term survival of Formation, found within Weches glades, 6). Surface exposures of the Weches Texas golden gladecress is not well as an essential physical feature for the Formation are usually on slopes (due to understood, but monitoring of the extant species’ continued existence. Although erosion) and typically are small; 16.4– sites between 1999–2009 showed that these individual exposures can be small 65.6 ft (5–20 m) in width, and generally the Texas golden gladecress could in size and scattered throughout a glade not exceeding 328 ft (100 m) in length persist on small, disjunct sites where it or glades, ideally the glades will occur (George and Nixon 1990, p. 118). The is able to grow and reproduce, at least in multiples (a complex). average width of the Weches outcrop in the short term. Based on the best region varies from 2–5 mi (3.2–8 km) available scientific and commercial Food, Water, Air, Light, Minerals, or (Sellards et al. 1932 in Diggs et al. 2006, information, a better model of a healthy Other Nutritional or Physiological p. 56) and encompasses the route of SH population and habitat site may be Requirements 21. All known Texas golden gladecress found by looking at the historic Caney The geology and soils of Texas golden populations occur, or formerly occurred, Creek Glade Site 6, which supported the gladecress sites are unique in East within 1 mi (1.6 km) of SH 21. Of these largest population ever documented. Texas, and the species shows a tight populations, three sites where plants This former site was contained within association with the Weches Formation have been confirmed as recently as 2012 an area of approximately 10 ac (4 ha) and associated soils (Singhurst, 2011a, remain: Caney Creek Glades Site 1 in and supported thousands of plants until pers. comm.). The Weches Formation is San Augustine County, just east of the the mid–1990’s, when it was destroyed characterized by the mineral glauconite town of San Augustine; the Chapel Hill by mining excavation. This glade and contains glauconitic clays, Site in San Augustine County, adjacent complex consisted of long, sheeted calcareous marls, rich marine fossil to County Road 151; and adjacent to SH openings that presented a patchwork deposits, and mudstone (George and 21 south of the town of Geneva, Sabine appearance of soil, rock, and glades Nixon 1990, pp. 117–118). In some County. A fourth site, Caney Creek (Singhurst 2012d, pers. comm.). This areas, leaching of the soluble Glades Site 7, is also considered extant site likely represented ideal special ingredients in the glauconite has because there is no evidence that the conditions for this species because it concentrated iron in ironstone (iron- habitat has been destroyed, however, supported a healthy and robust bearing limonite). The Weches the existence and size of the Texas population. Formation affects the local topography

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and vegetation, with cap hills and precipitation that falls directly onto the succulent plants. Quarterman (1986 in escarpments where the erosion-resistant ledges and possibly on down-slope George and Nixon 1990, p. 124) found ironstone layers occur, and more rolling movement of water percolating through that the thinner soils in Tennessee topography where ironstone is not the sediment atop the clay layer. George glades were dominated in spring by present (Diggs et al. 2006, p. 56). (1987, pp. 2–4) observed that the Leavenworthia spp., Minuartia patula The Weches outcrops create limited Weches outcrops were waterlogged in (Pitcher’s sandwort), and Sedum areas of relatively thin alkaline soils in the spring due to the clay stratum, with pulchellum (stonecrop), and that a region of mostly sandy soils (USFWS water percolating until it hit the clay, Sporobolus vaginiflorus (poverty 1992, pp. 3–4) resulting in natural glade then moving laterally and exiting on the dropseed) would be the dominant grass communities on the shallow, seasonally hillsides where the outcrops are. At the on these soils in summer. Singhurst saturated, but frequently dry soils Chapel Hill site, Texas golden observed similar species composition (Bezanson 2000 in Diggs et al. 2006, p. gladecress was found on and around a shifts at Texas golden gladecress sites 56). Soils associated with Weches glades few spots where the glauconite was (Singhurst 2012e, pers. comm.; are shallow, rocky, and basic in pH exposed rather than in the dense cover Singhurst 2012h, pers. comm.). Even (alkaline), inhibiting the presence of of the herbaceous matrix (Carr 2005, p. with this seasonal shift, there are a woody species (Nature Serve 2009, p. 6). 2). The glauconite exposures at this site number of characteristic herbaceous Soils underlying known Texas golden were wet from seeps or due to species that occur in association with gladecress sites appear to be inclusions percolating water moving laterally on Texas golden gladecress (Table 1) in the Nacogdoches, Trawick, or Bub top of the bedrock. (Bridges 1988, p. II–35; TNC 2003, p. 4; soils series (U.S. Department of All known Texas golden gladecress Carr 2006, p. 4). Carr (2006, p. 2) found Agriculture 2009, entire). George (1987, populations have been found on open, that Texas golden gladecress at the p. 18) found that the soil profile of three sunny exposures on Weches outcrops. Chapel Hill site shared the rocky Weches outcrops had a surface layer of Baskin and Baskin (1988, p. 837) outcrop ledges with a sparse covering of sandy loam or sandy clay loam with indicated that a high light requirement Eleocharis sp. (spike sedge), impermeable glauconite clay at a depth was common among the endemic plants Clinopodium arkansanum (Ozark of about 19.7 inches (50 cm). of rock outcrop plant communities in savory), and an unidentified moss. He Measurements of soil pH ranged from the unglaciated eastern United States. described the 40–50 Texas golden 7.6 to 8.1 (George 1987, p. 18). Weches This obligate need for high light is gladecress plants as ‘‘growing on or soils contain exceptionally high levels supported by field observations showing among clumps of moss on these soggy, of calcium (2,500–6,000 parts per that these eastern outcrop endemics, unshaded glauconite exposures.’’ million (ppm)) from fossilized shells, as similar to Texas golden gladecress: well as high levels of potassium (170– Grow on well-lighted portion of the TABLE 1—CHARACTERISTIC FLORA OF 250 ppm) and magnesium (250–400 outcrops but not in adjacent shaded WECHES OUTCROPS IN TEXAS ppm). The basic pH at these sites results forests; photosynthesize best in full sun, from dissolution of the calcareous with a reduction in the presence of Scientific name Common name component of the rich marine fossil heavy shading; and compete poorly fauna of the Weches Formation (George with plants that shade them (Baskin and Primary Characteristic Herbs 1987, p. 47). These conditions produce Baskin 1988, p. 837). a harsh, variable environment that Texas golden gladecress apparently Sedum pulchellum * .. stonecrop. becomes saturated and seepy in cool persists on its specialized habitat, at Clinopodium Ozark savory. moist months and during rainy seasons, least in part, due to a lack of arkansanum *. but that dries out, becoming parched competition from taller or more Minuartia patula * ...... Pitcher’s sandwort. and hard, during hot summer months vigorous plants. Rollins (1963, p. 17) Minuartia Drummond sandwort. found that, while Leavenworthia drummondii *. (USFWS 1992, pp. 3–4). Leavenworthia Valerianella radiata * beaked cornsalad. species are dormant by early summer, alabamica and L. crassa grew normally Isoetes butleri ...... Butler’s quillwort. helping them to survive the dry period and produced seed in a portion of an Allium drummondii * .. Drummond wild-gar- as seed; this dormancy is likely one of experimental plot where weeds were lic. the major evolutionary adaptations in removed, plants from both species died Portulaca oleracea * .. common purslane. this genus enabling its species to endure in the portion of the plot where Poa Phemeranthus sunbright. the extreme droughty conditions of late annua (annual bluegrass) was allowed parviflorus *. summer (Quarterman 1950, p. 5). unrestricted growth. Lloyd (1965, pp. Eleocharis occulata * limestone spikerush. Texas golden gladecress is dependent 86–87) observed that plants of these two on late fall-winter precipitation levels species competed poorly with the Some Other Potential Species that keep the glade sediments saturated invading weed flora in abandoned Erigeron sp...... fleabane. and leave pooled water on the small agricultural fields. Lesquerella pallida .... white bladderpod. outcrop ledges. Based on observations of The Weches outcrops and Desmanthus Illinois bundleflower. Texas golden gladecress population surrounding glade sites show large illinoensis. sites over a 10-year period within the seasonal variation in species dominance Euphorbia dentate ..... toothed spurge. Weches outcrops and glade complexes, as a result of the shift from saturated Croton doveweed. Texas golden gladecress appeared to be soils in winter-spring to hard, dry soil monanthogynus. highly restricted to wet microhabitats in summer (George and Nixon 1990, pp. Dalea purpurea ...... prairie clover. and ‘‘even within suitable sites, the 120–124). Singhurst (2012d, pers. Houstonia spp...... Bluetts. species seems limited to only seasonal comm.) described the Chapel Hill site as Nassella leucotricha .. Texas wintergrass. Boutelous sideoats grama. seep runs and vernal pools within the having bare spots on the tops of the curtipendula. site’’ (Singhurst 2011a, pers. comm., p. glade with seasonal pools of water Eleocharis compressa flat-stemmed 3). The species’ apparent requirement (similar to vernal pools). At this site the spikerush. for direct contact with seeps and Texas golden gladecress would bloom, Sporobolus poverty dropseed. shallow puddles on exposed ledges of seed, dry out, and die back to be vaginiflorus*. outcrop implies reliance on replaced in summer by drier, more Thelesperma filifolium slender greenthread.

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TABLE 1—CHARACTERISTIC FLORA OF elevations above its habitat site in order Creek Glade Site 7 is located WECHES OUTCROPS IN TEXAS— to catch rainfall and allow its slow approximately 0.75 mi (1.2 km) Continued percolation down to the plant’s location. southeast of Caney Creek Glade Site 1. For those Texas golden gladecress Combined, these sites represent the Scientific name Common name plants growing in what appear to be best habitat for the species throughout micro-depressions that occur on fairly the geographic range. The loss of any of Arnoglossum groovestem Indian level spots in more gently sloping the known populations would reduce plantagineum. plantain. ground, the water supply may be more the potential to recover or conserve the Plantago virginica ...... Virginia plantain. due to direct rainfall and dew species, thereby increasing the Schizachyrium little bluestem. collection. The species appears to be likelihood of extinction for the species scoparium. dependent on its seedbank for its Polytaenia nuttallii ..... Nuttall’s prairie pars- across its range. Mapping of potential ley. continued existence, so habitat should glade sites by TPWD (Singhurst 2012b, Onosmodium softhair marbleseed. not be subjected to activities that would pers. comm.) shows that there is bejariense. remove the seedbank. Therefore, based suitable habitat near the four extant Liatris mucronata ...... narrowleaf on the information above, we identify as populations that could provide sites for gayfeather. essential physical features needed for population expansion, thereby Draba cuneifolia ...... wedgeleaf draba. Texas golden gladecress’ successful increasing the species’ resiliency. These Paronychia virginica .. Whitlow wort. reproduction outcrops with intact areas are representative of habitat across Camassia scilloides .. wild hyacinth. hydrology and for which the surface Zigadenus nuttallii ..... Nuttall’s death cama. the species range and provide the features (sufficient sediment or slope at potential for populations to spread, Algae elevations above its habitat site) and thereby enhancing recovery gladecress seedbed are undisturbed. opportunities. Therefore, we do not Nostoc spp. believe that unoccupied areas outside of Cyanobacteria. Habitats Protected From Disturbance or Representative of the Historical, the geographic range are needed. Frequent Woody Species Geographic, and Ecological The long-term effects of climate Distributions of the Species change on the species are less clear with .. eastern redcedar. regard to whether any additional areas Pinus taeda ...... loblolly pine. Texas golden gladecress has a restricted geographic distribution. Its outside of those discussed above are Liquidambar sweetgum. needed for the species’ future. See the styraciflua. historic range did not extend further Cornus drummondii ... roughleaf dogwood. than approximately 12 miles (19 km) Factor A discussion of ‘‘Climate Sideroxylon gum bumelia. from the most southeastern to the most Change’’ in the listing determination for lanuginosum. northwestern documented locations and the Texas golden gladecress for a Sophora affinis ...... Texas sophora. all documented occurrences were summary of projected climate changes Quercus muhlengergii Chinquapin oak. located within a 3.1 mile-wide band (5 in Texas and how these changes may Opuntia sp ...... prickly pear cactus. km-wide) around SH 21. The gladecress affect the species. The information Rhus glabra ...... smooth sumac. currently available on the effects of Rhamnus lanceolata sanceleaf buckthorn. is also an endemic species, highly restricted to a specific habitat type that global climate change and increasing * Strong association with Texas golden occurs in a scattered or patchy fashion temperatures does not make sufficiently gladecress sites. across the landscape, with large areas of precise estimates of the location and Therefore, based on the information unsuitable habitat interspersed. The severity of the effects. Nor are we above, we identify as essential physical extant populations exhibit a high degree currently aware of any climate change features for Texas golden gladecress the of isolation, being separated from each information specific to the habitat of following: Open, sunny exposures of other by distances of 4.5 mi (7.2 km) Texas golden gladecress that would Weches outcrops within Weches glade and 7 mi (11.3 km), respectively, indicate what areas may become plant communities that are between the northern (Caney Creek important to the species in the future. characterized by the species listed in Glade Site 1), central (Chapel Hill), and We do not believe the species can easily Table 6, with relatively thin, rocky soils southern (Geneva) populations. All adapt and colonize new habitats due to that are classified within Nacogdoches, three populations are small in terms of its habitat specificity. Therefore, based Trawick, or Bub soils mapping units as areal extent and number of individual on the best available scientific and identified by the Natural Resources plants. Given their geographic isolation commercial information, we are not Conservation Service soil survey maps. and small size, all of the sites are identifying areas outside of those There must be bare, exposed bedrock on important for the conservation of the currently occupied as areas that may be top-level surfaces or rocky ledges with species. suitable due to the effects of climate very shallow depressions where In addition, we have determined that change. Texas golden gladecress likely persists rainwater can pool or seepage can Primary Constituent Elements for Texas at the Caney Creek Glade Site 7, even collect. Golden Gladecress though the species’ presence has not Sites for Breeding, Reproduction, or been reconfirmed since 1988 due to lack Under the Act and its implementing Rearing (or Development) of Offspring of access onto this private property. regulations, we are required to identify In order to undergo successful Although the species’ presence has not the physical or biological features reproduction, Texas golden gladecress been verified since 1988, the glade at essential to the conservation of Texas requires sufficient moisture in late fall this population site was described as golden gladecress in areas occupied at to germinate, and in winter-spring to being intact in 1996 by a forestry the time of listing, focusing on the support growth, flowering, and fruit consultant. This individual features’ primary constituent elements. production. At sites where the Texas subsequently revisited the site in 2000 Primary constituent elements are those golden gladecress depends on seeps to and noted that invasive plants were specific elements of the physical or provide its water, there must be encroaching into the glade (Walker biological features that provide for a sufficient sediment or slope at 2012, pers comm., p. 4). The Caney species’ life-history processes and are

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essential to the conservation of the determination for the Texas golden critical habitat. We reviewed available species. gladecress for more information on information pertaining to the habitat Based on our current knowledge of these threats. requirements of this species. In the physical or biological features and The features essential to the accordance with the Act and its habitat characteristics required to conservation of Texas golden gladecress implementing regulation at 50 CFR sustain the species’ life-history may require special management 424.12(e), we considered whether processes, we determine that the considerations or protection to reduce designating additional areas—outside primary constituent elements specific to the following threats: those currently occupied as well as Texas golden gladecress are: • Actions that remove the soils and those occupied at the time of listing— (1) Exposed outcrops of the Weches alter the surface geology of the glades; are necessary to ensure the conservation Formation. Within the outcrop sites, • Building or paving over the glades; of the species. We are not designating there must be bare, exposed bedrock on • Construction or excavation upslope any areas outside the geographical area top-level surfaces or rocky ledges with that alters water movement (sheet flow occupied by the species because small depressions where rainwater or or seepage) downslope to Texas golden occupied areas are sufficient for the seepage can collect. The openings gladecress sites; conservation of the species. should support Weches Glade native • Planting trees adjacent to the edges When determining critical habitat herbaceous plant communities. of an outcrop resulting in shading of the boundaries within this final rule, we (2) Thin layers of rocky, alkaline soils, glade and accumulations of leaf litter made every effort to avoid including underlain by glauconite clay and tree debris; developed areas such as lands covered (greenstone, ironstone, bluestone), that • Encroachment by nonnative and by buildings, pavement, and other are found only on the Weches native invading trees, shrubs, and vines structures because such lands lack Formation. Appropriate soils are in the that shade the glade; physical or biological features for Texas series classifications Nacogdoches clay • The use and timing of application golden gladecress and the Neches River loam, Trawick gravelly clay loam, or of certain herbicides that can harm rose-mallow. The scale of the maps we Bub clay loam, ranging in slope 1–15 Texas golden gladecress mature plants prepared under the parameters for percent. and seedlings; and publication within the Code of Federal (3) The outcrop ledges should occur • Fence placement such that livestock Regulations may not reflect the within the glade such that Texas golden are likely to be directed through exclusion of such developed lands. Any gladecress plants remain unshaded for a gladecress sites where habitat and such lands inadvertently left inside significant portion of the day and trees plants may be trampled. critical habitat boundaries shown on the should be far enough away from the Management activities that could maps of this final rule have been outcrop(s) that leaves do not accumulate ameliorate these threats include (but are excluded by text in the rule and are not within the Texas golden gladecress not limited to): designated as critical habitat. Therefore, habitat. The habitat should be relatively • Avoiding Weches glades when a Federal action involving these lands clear of nonnative and native invasive planning the location of quarries, well will not trigger section 7 consultation plants, especially woody species, or pads, roads, other facilities or with respect to critical habitat and the with only a minimal level of invasion. structures, or pipeline routes, through requirement of no adverse modification With this designation of critical glade complexes; unless the specific action would affect habitat, we intend to identify the • Avoiding above-ground the physical or biological features in the physical or biological features essential construction or excavations in locations adjacent critical habitat. to the conservation of the species, that would interfere with natural water To guide what would be considered through the identification of the movement to Texas golden gladecress needed for the conservation of the features’ primary constituent elements habitat sites; species, we relied upon sufficient to support the life-history • Locating suitable habitat and recommendations in a conservation processes of the species. determining the presence or absence of plan for the San Augustine Glades the species and identifying areas with developed by The Nature Conservancy Special Management Considerations or glade complexes and protecting or of Texas (TNC 2003, p. 8). This served Protections for Texas Golden Gladecress restoring as many complexes as as a basis for the number of populations When designating critical habitat, we possible; considered necessary for the assess whether the specific areas within • Extending outreach to all conservation of Texas golden gladecress. the geographical area occupied by the landowners, including private and This plan came from The Nature species at the time of listing contain State, to raise awareness of the plant Conservancy’s structured conservation features that are essential to the and its specialized habitat; planning process that relied on a conservation of the species and which • Providing technical or financial science team with expertise in the may require special management assistance to landowners to help in the habitats and flora of East Texas. The considerations or protection. design and implementation of plan was developed with input from Texas golden gladecress may require management actions that protect the representative experts from academia, special management considerations or plant and its habitat; botanical institutions, and Federal and protection to reduce the following • Avoiding pine tree plantings near State agencies. We consider this plan threats: quarrying or other excavations, glades; and the best available scientific information including pipeline installations; • Brush removal, to maintain an to determine what is essential for the building over the top of occupied intact native glade vegetation conservation of the Texas golden glades; construction or excavation community. gladecress. upslope that alters water movement This conservation plan concluded (sheet flow or seepage) downslope to Criteria Used To Identify Critical that at least eight viable (self-sustaining, Texas golden gladecress sites; pine tree Habitat for Texas Golden Gladecress ecologically functioning) populations of plantings near glades; and invasive As required by section 4(b)(2) of the Texas golden gladecress, containing an (native and nonnative) plants. Refer to Act, we used the best scientific and average of 500 individuals each, at least the five-factor analysis in the listing commercial data available to designate one out of every five years, was the

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target conservation goal for the species gladecress, we defined the geographic the four critical units by using the edge (TNC 2003, pp. 8, 12). We currently area currently occupied by the species. of the soil type layer. know of three extant populations that Generally, we define occupied areas as When determining critical habitat have been monitored as recently as those where recent surveys in 2012 boundaries, we made every effort to 2012, and a fourth population site that confirmed the species was present avoid including developed areas such as we consider to still be in existence (Singhurst 2012f, pers. comm.). For one lands covered by buildings, pavement, because the habitat has not been area, occupancy by the species has not filled areas adjacent to paved roads, destroyed, within the areas occupied by been confirmed since 1988 (TXNDD unpaved roads, and other structures the species (see ‘‘Mapping Texas Golden 2012b, entire); however, there have been because such lands lack physical or Gladecress Critical Habitat’’ section no recent surveys due to lack of access biological features for Texas golden below for how we mapped the occupied to the properties. For the purposes of gladecress. The scale of the maps we areas). We used information provided designation of critical habitat, we are prepared under the parameters for by a TPWD botanist to evaluate whether considering this area to be currently publication within the Code of Federal the four areas might be sufficient to occupied because the species was Regulations may not reflect the support eight viable populations of the known from this area in the past and the exclusion of such developed lands. Any species (Singhurst 2012a, pers. comm.; habitat conditions that support the such lands inadvertently left inside Singhurst 2012b, pers. comm.). The species appear intact (based on aerial critical habitat boundaries shown on the maps provided by this species expert imagery), except for the growth of some maps of this final rule have been identified potential glades within these woody vegetation in some areas. In excluded by text in the final rule and areas by using: soil map units; a time total, we found four areas currently are not designated as critical habitat. series of aerial photographs that occupied by the Texas golden gladecress Therefore, a Federal action involving depicted changes in land cover; and at the time it is listed. these lands would not trigger section 7 personal experience and expertise with Areas Unoccupied at the Time of Listing consultation with respect to critical the species, the habitat, and this area of habitat and the requirement of no East Texas (Singhurst 2012b, pers. We considered whether there were adverse modification unless the specific comm.). These sites occur in discrete any specific areas outside the areas across the entire historic range of geographic area found to be occupied by action would affect the physical or the species and include sites that the Texas golden gladecress that are biological features in the adjacent represent the different landscape essential for the conservation of the critical habitat. settings (open, rocky, grazed pasture on species as required by section 3(5)(A)(ii) The critical habitat designation is seasonally seepy Weches outcrops at of the Act. We evaluated whether there defined by the map or maps, as Caney Creek Glade Site 1; on very small, was sufficient area for the conservation modified by any accompanying scattered exposures of glauconite within of the species within the occupied areas regulatory text, presented at the end of a more dense cover of herbaceous determined above. As a result of that this document in the rule portion. We species at the Chapel Hill site; and in an evaluation, we concluded that the include more detailed information on open, grazed glade at the Geneva site) habitat within the four occupied areas is the boundaries of the critical habitat and soil types (Nacogdoches, Trawick, sufficient for attaining the goal of eight designation in the preamble of this and Bub soil series) that have been viable populations throughout the document. We will make the historically documented at Texas golden geographic range of the species. coordinates or plot points or both on gladecress occurrences. Therefore, additional areas as critical which each map is based available to Based on this analysis and our site habitat outside of the currently the public on http:// visits, we determined that the occupied occupied geographic areas would not be www.regulations.gov at Docket No. areas contain suitable habitat (with essential for the conservation of the FWS–R2–ES–2013–0027, on our special management) to expand current species and we have not identified any Internet sites http://www.fws.gov/ populations and support additional areas that were unoccupied at the time southwest/es/ElectronicLibrary/ populations of Texas golden gladecress of listing. ElectronicLibrary_Main.cfm, and at the to meet the conservation goals for the Mapping Texas Golden Gladecress field office responsible for the species. We judge there to be suitable Critical Habitat designation (see FOR FURTHER sites within the occupied areas that can INFORMATION CONTACT above). be used for natural expansion of existing To determine the boundaries of We are designating as critical habitat populations or possible future critical habitat units around the species lands that we have determined are augmentation if needed and advised areas occupied by the species, we used occupied at the time of listing and during future recovery planning and a geographic information system (GIS) contain sufficient physical or biological implementation. The habitat in the four to overlay the appropriate soil maps features to support life-history processes occupied areas is sufficient for attaining over the occupied areas. The Texas essential for the conservation of the the goal of eight viable populations golden gladecress is restricted to the Texas golden gladecress. throughout the geographic range of the Weches Formation, being found on only species. Therefore, additional areas as three soil map units: Nacogdoches clay Four units were designated based on critical habitat outside of the currently loam 1–5 percent slope (NeE); Trawick sufficient elements of physical or occupied geographic areas would not be gravelly clay loam 5–15 percent slope biological features being present to essential for the conservation of the (TuD); and Bub clay loam 2–5 percent support Texas golden gladecress life species, and we have not identified any slope (BuB). We drew the boundaries processes. Some units contained all of additional areas. around contiguous segments of these the identified elements of physical or soil mapping units from the online San biological features and supported Areas Occupied by the Texas Golden Augustine and Sabine County’s soils multiple life processes. Some units Gladecress survey (http:// contained only some elements of the As required by section 3(5)(A)(i) of WebSoilSurvey.nrcs.usda.gov/app/ physical or biological features necessary the Act, for the purpose of designating WebSoilSurvey.aspx) encompassing the to support the Texas golden gladecress critical habitat for Texas golden occupied areas to form the boundary of particular use of that habitat.

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Final Critical Habitat Designation for gladecress. The critical habitat areas Chapel Hill; (3) Southeast Caney Creek Texas Golden Gladecress described below constitute our best Glades; and (4) Northwest Caney Creek assessment at this time of areas that Glades. The approximate area of each We are designating four units as meet the definition of critical habitat. critical habitat unit is shown in Table 2. critical habitat for Texas golden Those four units are: (1) Geneva; (2)

TABLE 2—DESIGNATED CRITICAL HABITAT UNITS FOR TEXAS GOLDEN GLADECRESS

Total size of Private State all units Critical habitat unit ac ac ac (ha) (ha) (ha)

1. Geneva ...... 381 (154) 7(3) 388 (157) 2. Chapel Hill ...... 147 (59) 3 (1)* 150 (61) 3. Southeast Caney Creek Glades ...... 37 (15) 3 (1) 40 (16) 4. Northwest Caney Creek Glades ...... 767 (310) 8 (4) 775 (314)

TOTAL ...... 1,332 (539) 21 (9) 1,353 (548) *County owned. Note: Area sizes may not sum due to rounding.

We present brief descriptions of all establish tree plantations, potential land within this unit is privately owned, units, and the reasons why they meet agricultural herbicide use to control with the other 1 percent being county the definition of critical habitat for woody plants, and destruction of the ROW under the management of TXDOT. Texas golden gladecress, below. features by excavation, pipeline This unit is located 0.8 mi (1.2 km) construction, or buildings. south from SH 21 near San Augustine, Unit 1: Geneva Texas, along the north side of FM 3483. Unit 2: Chapel Hill Unit 1 consists of 388 ac (157 ha) of This unit is located across Sunrise Road private and State land located in Unit 2 consists of 150 ac (61 ha) of from a glauconite quarry. The presence northwest Sabine County, Texas. The privately owned land, with one county of the Texas golden gladecress plants at unit is located 1.5 mi (2.3 km) south of road ROW, in northwestern San this site was last confirmed in the late Geneva, Texas, and 4.8 mi (7.7 km) Augustine County, Texas. This unit is 1980’s. The glade at this population site north of Milam, Texas, and is bisected located 1.0 mi (1.6 km) south of SH 21, was described as being intact in 1996 by by SH 21. This unit is occupied at the due west of the San Augustine-Sabine a forestry consultant, who subsequently time of listing and contains some of the County line, and lies alongside County revisited the site in 2000 and noted that physical or biological features essential Road (CR) 151. This unit is linear in invasive plants were encroaching into to the conservation of the species, shape, running from southeast to the glade (Walker 2012, pers comm., p. including open, sunny areas of Weches northwest. Aside from CR 151, all other 4). Based on these records from the site, outcrops (glauconite exposures); some land in Unit 2 is privately owned. and the lack of alteration to the native Weches glade plant species Current land cover appears to be substrate as assessed from remote characteristic of Texas golden gladecress approximately 70 percent woody cover; imagery, we determined that the site sites (see Table 1); and Nacogdoches much of the forest being rows of pine still contains all the physical or and Trawick soils. Approximately 2 trees. This unit was occupied at the time biological features; therefore, we percent (7.3 ac (3 ha)) of the land is of listing by a population that grows on consider the unit occupied at the time State-owned and managed TXDOT a privately owned, unfenced tract of of listing. ROW, and the Geneva Site Texas golden land that measures approximately 0.25 The features essential to the gladecress population occurs, in part, ac (0.1 ha) in size. The geology and soils conservation of the species in this unit within this ROW. The remaining 98 primary constituent elements occur may require special management percent of the land is privately owned. throughout the unit, and aerial considerations or protection to address The area directly adjacent to the ROW photography indicates that at least two threats of woody plant invasion into the Texas golden gladecress population has other small, scattered, open glades (as natural prairie and glade habitat, and been cleared of woody vegetation within identified by TPWD) occur within the pipeline construction. the recent past but is not fenced, so critical habitat unit. Unit 4: Northwest Caney Creek Glades future land use is unknown. The The features essential to the geology and soils (primary constituent conservation of the species in this unit Unit 4 consists of 775.3 ac (313.7 ha) element 1 and 2) occur throughout the may require special management that extends in a diagonal line from unit and aerial photography indicates considerations or protection to address northeast to southwest, to the north and that at least three other small, scattered threats of woody plant invasion into south of SH 21 just east of the City of open glades (as identified by TPWD) open glades throughout the unit, San Augustine, San Augustine County, occur within the critical habitat unit. conversion of pasture to pine Texas. The unit is approximately 0.7 mi The physical or biological features plantations, pipeline construction, and (1.1 km) wide. This unit is occupied at essential to the conservation of the herbicide application. the time of listing. The geology and soils species in this unit may require special primary constituent elements occur management considerations or Unit 3: Southeast Caney Creek Glades throughout the unit and aerial protection to address threats of woody Unit 3 consists of 39.9 ac (16.2 ha) photography indicates that at least five plant invasion into open glades, just southeast of the City of San other small, scattered, open glades (as possible changes in land use, including Augustine, San Augustine County, identified by TPWD) occur within the planting of loblolly or long-leaf pine to Texas. Approximately 99 percent of the critical habitat unit. Approximately 1

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percent (7.8 ac) of the land is State- 14). Water levels at each site are drought; however, the species may not owned and managed ROW by the variable, depending on proximity to be able to thrive in an environment with TXDOT. The remaining 99 percent is water, amount of rainfall, and a higher frequency and intensity of privately owned. Approximately 75–80 floodwaters. Habitat elevations range droughts. Periods of drought may percent of the southern portion of Unit from 170 to 265 ft (51–80 m) above sea increase the susceptibility of sites to soil 4 is forested. Historically, this unit was level (Warnock 1995, p. 13). compaction from hogs and cattle, occupied by four of the eight known Warnock (1995) noted that seed invasion from nonnative species, and occurrences of Texas golden gladecress; dispersal is likely by water and Scott herbivory. Optimal habitat conditions however, three of the four have been (1997, p. 5) also stated that seed for Neches River rose-mallow include lost to glauconite quarrying activities. dispersal appears to be entirely water intermittent or perennial wetlands that The features essential to the dependent. While water-mediated seed can be variable throughout the year, conservation of the species in this unit dispersal of the Neches River rose- often becoming surficially dry during may require special management mallow is highly likely, it is not known the summer and wet during the winter considerations or protection to address that flowing water is required for or might be exposed to water year- threats of glauconite mining, woody downstream dispersal of Neches River round. plant invasion into the natural prairie rose-mallow seeds. Rivers of East Texas Regarding the Neches River rose- and glade habitat, and pipeline tend to overflow onto banks and mallows’ light requirements, an open construction. floodplains (Diggs et al. 2006, p. 78), canopy is typical within Neches River especially during the rainy season, rose-mallow habitat (Warnock 1995, pp. Physical or Biological Features Neches thereby providing an avenue for seed 11, 13), but plants also grow in partial River Rose-Mallow dispersal. Research has not been done to sun (as is the case at SH 204 ROW). We derive the specific physical or identify methods of seed dispersal Sunlight is needed for blooming as the biological features essential for Neches upstream; however, avian species may blooming period may only last 1 day River Rose-mallow from studies of this facilitate this process. (Snow and Spira 1993, p. 160). species’ habitat, ecology, and life history Based on the best scientific and The growth of woody and weedy as described in the Critical Habitat commercial data, we identify vegetation was historically maintained section of the proposed rule to designate intermittent and perennial, open waters by natural fires that would occur every critical habitat published in the Federal in the Neches, Sabine, Angelina River 1 to 3 years in East Texas (Landers et al. Register on September 11, 2012, (77 FR basins and Mud and Tantabogue Creeks, 1990, p. 136; Landers 1991, p. 73) 55968), and in the information with areas of seasonal or permanent thereby controlling the overgrowth of presented below. Additional inundation with native woody longleaf and loblolly pine, as well as information can be found in the final vegetation, as an essential physical or nonnative species. Humans later used listing rule published in today’s Federal biological feature for the species. fire to suppress overgrowth; however, in Register. We have determined that the more recent past, human’s active fire Food, Water, Air, Light, Minerals, or Neches River rose-mallow requires the suppression has allowed native species Other Nutritional or Physiological following physical or biological including sweetgum, oaks, Carya sp. Requirements features: (hickories), Diospyros virginiana The Neches River rose-mallow is (common persimmon), and Magnolia Space for Individual and Population typically found in open, flat areas of Growth and for Normal Behavior grandiflora (southern magnolia) to wetlands with hydric, alluvial soils of invade the natural pine forests Neches River rose-mallow is endemic the Inceptisol or Entisol orders (Gould (Daubenmire 1990, p. 341; Gilliam and to open habitats in wetlands of the 1975, p. 10; Warnock 1995, pp. 11, 13; Platt 1999, p. 22) and this woody Pineywoods of East Texas (Gould 1975, Diggs et al. 2006, pp. 46, 79) that are overgrowth has reduced the open p. 1; Correll and Johnston 1979, p. 1). frequently associated with flooded clay canopy needed by the Neches River The Neches River rose-mallow is found loams. Although the soils are generally rose-mallow. Lack of fire increases the within seasonally flooded river water-saturated, they can often be opportunity for nonnative species, such floodplains as described by Diggs et al. surficially dry. Intermittent wetlands are as Triadica sebifera (Chinese tallow), to (2006), where the natural bottomlands inundated during the winter months but invade these sites and this invasion has occupy flat, broad portions of the become dry during the summer months become one of the most significant floodplains of major rivers and are (Warnock 1995, p. 11). Rivers of East threats to the Neches River rose-mallow. seasonally inundated. Associated flood- Texas tend to overflow onto banks and Lack of fire has provided increased tolerant species in this habitat include floodplains (Diggs et al. 2006, p. 78), opportunities for this species to invade of Quercus sp. (oak), Liquidambar especially during the rainy season, all Neches River rose-mallow sites. styraciflua (sweetgum), Ulmus thereby dispersing seed. Precipitation in Therefore, based on the information americana (American elm), Nyssa Texas increases from the west to the above, we identify hydric alluvial soils biflora (swamp tupelo), and Acer east, making East Texas an area with of seasonally or permanently inundated rubrum (red maple) (Diggs et al. 2006, comparatively higher annual wetlands and native woody or p. 103). Habitat is characterized as precipitation, generally ranging from 35 associated herbaceous vegetation, sloughs, oxbows, terraces, and sand to 50 in (89–127 cm) (Gould 1975, p. largely with an open canopy providing bars, and habitat found along 10). partial to full sun exposure with low depressional or low-lying areas of the Many wetland species, including the levels or no nonnative species to be a Neches, Sabine, and Angelina River Neches River rose-mallow, are adapted physical or biological feature for the floodplains and Mud and Tantabogue to highly variable rates of water flow, Neches River rose-mallow. Creek basins (Warnock 1995, p. 11). including seasonal high and low flows, Sites include both intermittent and and occasional floods and droughts. Sites for Breeding, Reproduction, or perennial wetlands with plants located Normal habitat conditions include a Rearing (or Development) of Offspring within 3.2 ft (1.0 m) of standing water, cyclical pattern of wet winters and dry The Neches River rose-mallow likely depending on current drought and summers so the Neches River rose- has similar seed buoyancy and seed precipitation levels (Warnock 1995, p. mallow may have some tolerance of dispersal mechanisms to Hibiscus

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moscheutos whose seeds can remain Bumblebees nest in small cavities, often Natural Areas Preservation Association. buoyant for several hours (Warnock underground in abandoned rodent The Neches River rose-mallow plants in 1995, p. 20; Scott 1997, p. 8; Reeves nests, grass (Black et al. 2009, p. 12), or this site, referred to as Lovelady, are 2008, p. 3) and for which seed dispersal in open, grassy habitat (Warriner 2012a, part of the population that included the appears to be entirely water dependent pers. comm.). Other aboveground- Neches River rose-mallow plants in the (Scott 1997, p. 5). Given this nesting bees that may potentially SH 230 ROW. In the past, several information and that Neches River rose- pollinate the Neches River rose-mallow subpopulations existed along multiple mallow prefers depressional or may include carpenter, mason, and leaf portions of the SH 204 ROW, however palustrine areas, seed dispersal into cutter bees that nest in dead snags or several of these subpopulations were sloped areas with higher elevations, like twigs or standing dead wood (Warriner not found in 2011 even though recent uplands, is not anticipated. Downstream 2012a, pers. comm.). Maximum foraging drought conditions have allowed or adjacent portions of streams or creeks distances of solitary and social bee surveyors to count Neches River rose- of occupied Neches River rose-mallow species are 492 to 1,968 ft (150 to 600 mallow plants in parts of sites that were sites may provide connectivity and new m) (Gathmann and Tscharntke 2002, p. not accessible in the past because the opportunities for reproduction. Long- 762) and 263 to 5,413 ft (80 to 1,650 m) sites were too wet. distance seed dispersal ranges and (Walther-Hellwig and Frankl 2000, p. The Davy Crockett NF, Houston upstream dispersal methods are 244), respectively. The scentless plant County, Texas, contains four extant sites unknown, but may be facilitated by bug is a member of the Rhopalidae of the Neches River rose-mallow; three avian species. Therefore, we identify family found specifically in association introduced and one natural. The one flowing water as the likely agent for with various members of the natural population is found in seed dispersal to adjacent or family. This species is known to deposit Compartment 55 located west of the downstream habitat as a physical or eggs on both the vegetative and Neches River. This site is considered the biological feature for the Neches River reproductive parts of mallow plants most robust of all known extant rose-mallow. (Spencer 1988, p. 421). Holes have been populations (Poole 2011c, p. 3) and is The Neches River rose-mallow is a eaten in floral parts of Neches River almost entirely unaltered from its perennial that dies back to the ground rose-mallow plants suggesting that the originally observed state as a seasonally every year and resprouts from the base; scentless plant bug may be a wet, flatwood pond, with vegetation however, still maintaining aboveground as well as a consumer of the Neches being distinctly zoned (TXNDD 2012a, stems. Longevity of the species is River rose-mallow. Although we have p. 29). unknown, but it may be long-lived. some anecdotal information on the The remaining Neches River rose- Cross-pollination occurs (Blanchard species’ potential habitat as well as mallow sites are primarily on private 1976, p. 38) within the Neches River other Hibiscus species needs for land, although in several places they rose-mallow populations and the pollination, we do not have specific extend onto SH ROW. These include the species has high reproductive potential information for the Neches River rose- (1) Mill Creek Gardens (also known as (fecundity). The number of flowers and mallow. Therefore, the physical or Hayter Blueberry Farm), Nacogdoches fruits per plant were documented biological features for the Neches River during the TPWD’s annual monitoring rose-mallow were not based on the County; (2) Harrison County site in of the Neches River rose-mallow along current pollinator information. Harrison County; (3) Camp Olympia, SH ROWs. The species produced an Trinity County; (4) Champion, Trinity average of 50 fruits per plant, but seed Habitats Protected From Disturbance or County. Portions of Lovelady (adjacent viability and survivorship are not Representative of the Historical, to SH 230 ROW), Houston County, and known (Poole 2012a, pers. comm.). Geographic, and Ecological Boggy Slough (also part of SH 94 ROW), Potential pollinators of the Neches Distributions of the Species Trinity County, are also on private land. River rose-mallow may include, but are The natural geographic range of the The Mill Creek Gardens population was not limited to, the common bumblebee Neches River rose-mallow is within introduced by the Stephen F. Austin (Bombus pensylvanicus), Hibiscus bee Trinity, Houston, Harrison, and State University Mast Arboretum who (Ptilothrix bombiformis), moths, and the Cherokee Counties, Texas. In addition, planted 96 Neches River rose-mallow scentless plant bug Niesthrea populations of Neches River rose- plants at this site (Scott 1997, pp. 6–7). louisianica (Klips 1995, p. 1471; mallow have been introduced within The Boggy Slough site consists of Warnock 1995, p. 20; Warriner 2011, their natural geographic range on several scattered Neches River rose- pers. comm.). Both H. laevis and H. Federal lands in Houston County and on mallow subpopulations that are located moscheutos are pollinated by common private land in Nacogdoches County. In in close proximity to one another. The bumblebees and the Hibiscus bee (Snow total, there are 12 occurrences of Neches Boggy Slough subpopulations and the and Spira 1993, p. 160; Klips 1999, p. River rose-mallow; however, 11 of these SH 94 ROW population are separated by 270). The solitary Hibiscus bee prefers are within the known geographic range no more than 1.0 km (3,280 ft) and these gently sloping or flat areas with sandy of the species, and, as of October 2011, two sites likely constitute a single, or sandy-loam soils for nesting areas are considered occupied by the Neches larger population, sharing pollinators, (Vaughan et al. 2007, pp. 25–26; Black River rose-mallow. and exchanging genetic material et al. 2009, p. 12), and female bees will Several Neches River rose-mallow (NatureServe 2004, p. 6; Poole 2011c, p. excavate nest cavities in elevated, hard populations are found along SH ROWs, 2). One property was purchased in 2004 packed dirt roadways or levees near including SH 94 in Trinity County, SH by The Texas Land Conservancy (The stands of Hibiscus (in this case H. 204 in Cherokee County, and SH 230 in Texas Land Conservancy 2011), this site palustris) and standing water (Rust Houston County. These populations are is referred to as Lovelady. The site at 1980, p. 427). separated from one another and are Harrison County, Camp Olympia, and Members of the genus Bombus (family considered distinct. Adjacent lands to Champion were not observed in 2011; Apidae) are social bees, predominantly the SH 230 ROW were purchased by the however, using aerial imagery and the found in temperate zones, nesting Texas Land Conservancy in 2004 (The best scientific and commercial data underground (Evans et al. 2008, p. 6) in Texas Land Conservancy 2011), an available we determined that these sites sandy soils (Cane 1991, p. 407). organization previously known as the contain the physical or biological

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features essential to the Neches River habitat characteristics required to native woody species and nonnatives rose-mallow. sustain the species’ life-history (including, but not limited to mowing, East Texas is subtropical with a wide processes, we determine that the brush-hogging, or other hand-clearing range of extremes in weather (Diggs et primary constituent elements specific to techniques) and completion of these al. 2006, p. 65). The native vegetation of the Neches River rose-mallow are: techniques only during the appropriate this region evolved with, and is adapted (1) Intermittent or perennial wetlands life stages of the Neches River rose- to, recurrent temperature extremes within the Neches, Sabine, and mallow to maintain open habitat; (Diggs et al. 2006, p. 67). The Angelina River floodplains or Mud and • Coordination with the Angelina and Pineywoods region of East Texas is Tantabogue Creek basins that contain: Neches River Authority and vulnerable to even small climatic shifts (a) Hydric alluvial soils and the consultation with the U.S. Army Corps because it is ‘‘balanced’’ on the eastern potential for flowing water when found of Engineers on the proposed edge of a dramatic precipitation in depressional sloughs, oxbows, construction of Lake Columbia gradient. Temperature increases that are terraces, side channels, or sand bars; Reservoir in Cherokee County to projected in climate change scenarios (b) Native woody or associated maintain hydrology at the downstream will likely be associated with increases herbaceous vegetation, largely with an Neches River rose-mallow site; in transpiration and more frequent open canopy providing partial to full • Consultation between the Service summer droughts. Decreased rainfall sun exposure with low levels or no and the U.S. Army Corps of Engineers may result in an eastward shift in the nonnative species. for any filling or draining of Federal forest boundary and replacement of the With this designation of critical jurisdictional wetlands to ensure Pineywoods forest with scrubland habitat, we intend to identify the maintenance of hydrology; and (Diggs et al. 2006, p. 80). There may also physical or biological features essential • Clearing or burning on the Davy be a northerly shift of southerly species to the conservation of the species, Crockett NF for control of Chinese based on climate models that predict through the identification of the tallow and to maintain an adequate increasing temperatures and, therefore, features’ primary constituent elements level of openness in habitat. increasing evapotranspiration and sufficient to support the life-history Criteria Used To Identify Critical decreasing regional precipitation and processes of the species. Habitat for Neches River Rose-Mallow soil moisture (Diggs et al. 2006 p. 73). In October 2011, the Service observed Special Management Considerations or As required by section 4(b)(2) of the that all known Neches River rose- Protection for Neches River Rose- Act, we use the best scientific data mallow sites were impacted by extreme Mallow available to designate critical habitat. drought conditions. When designating critical habitat, we We reviewed all available information Predictions of climate change are assess whether the specific areas within pertaining to the habitat requirements of variable, and effects from climate the geographic area occupied by the the species. In accordance with the Act change on the Neches River rose-mallow species at the time of listing contain and its implementing regulation at 50 are not fully understood. The features that are essential to the CFR 424.12(e), we also considered information currently available on the conservation of the species and which whether designating additional areas— effects of global climate change and may require special management outside those currently occupied as well increasing temperatures does not make considerations or protection. as those occupied at the time of listing— sufficiently precise estimates of the Threats to those features that define are necessary to ensure the conservation location and severity of the effects the primary constituent elements for the of the species. We are not designating specific to East Texas. Further, we are Neches River rose-mallow include: (1) any areas outside the geographic area not currently aware of any climate Alteration of naturalized flow regimes currently occupied by the species change information specific to the through projects that require because we found that the currently habitat of the Neches River rose-mallow channelization; (2) water diversions or occupied areas are sufficient for the that would indicate what areas may hydrologic change to streams and rivers; conservation of the species. become important to this species in the (3) encroachment from native woody Areas Occupied by the Neches River future. Therefore, we are not identifying riparian species and nonnative species; Rose-Mallow any areas outside of those currently (4) detrimental roadside management occupied as areas that may be suitable practices including inappropriate For the purpose of designating critical for Neches River rose-mallow due to the frequency and timing of mowing during habitat for the Neches River rose- effects of climate change. the species’ blooming period; (5) mallow, we defined the geographic area herbivory and, (6) trampling from hog currently occupied by the species as Primary Constituent Elements for and cattle; and (7) drought. required by section 3(5)(A)(i) of the Act. Neches River Rose-Mallow Special management considerations Generally, we define occupied areas Under the Act and its implementing or protection are required within critical based on the most recent field surveys regulations, we are required to identify habitat areas to address these threats. available in 2011 and recent reports and the physical or biological features Special management activities that survey information from the Davy essential to the conservation of Neches could ameliorate these threats include, Crockett NF, TPWD, TXDOT, and River rose-mallow in areas occupied at but are not limited to: observations by species experts (Miller the time of listing, focusing on the • Construction of cattle exclusion 2011, pers. comm.; TXNDD 2012a, features’ primary constituent elements. fencing to remedy herbivory at Lovelady entire). Currently occupied areas for the Primary constituent elements are those to maintain plant survival and suitable Neches River rose-mallow are found in specific elements of the physical or habitat; Trinity, Houston, Cherokee, biological features that provide for a • Restoration of the cattle stock pond Nacogdoches, and Harrison Counties in species’ life-history processes and are back to a natural flatwoods pond at East Texas. essential to the conservation of the Lovelady to restore the sites hydrology; In total, we found 11 areas currently species. • Coordination with TXDOT to occupied by the Neches River rose- Based on our current knowledge of establish and continue effective mallow. Two of these areas have not the physical or biological features and management along ROWs for control of been verified since the late 1970s and

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mid-1990s. However, the best available sufficient for attaining the goal of 10 slope where the species was not scientific and commercial data does not viable populations throughout the anticipated to occur due to lack of indicate that these sites have been geographic range of the species. hydric soils and where seeds were not modified such that they no longer have likely to be dispersed due to a lack of Areas Unoccupied by the Neches River the physical or biological features flowing water (i.e., the uplands). Rose-Mallow essential for the Neches River rose- National Wetland Inventory (NWI) maps mallow, so we consider them still We considered whether there were were used to determine habitat types occupied. Four of the critical habitat any specific areas outside the within palustrine systems. All areas, units currently occupied are geographic area found to be occupied by when mapped with this layer in GIS, introduction sites, three of which are the rose-mallow that are essential for the were associated with emergent, forested, located on Davy Crockett NF conservation of the species, as required or scrub-shrub, with one area having an compartments and one is located at Mill by section 3(5)(A)(ii) of the Act. We first undetermined bottom (open water). All Creek Gardens. The remaining five units evaluated whether there was sufficient critical habitat units are seasonally, support existing populations of Neches area for the conservation of the species permanently, or semi-permanently River rose-mallow and the plants were within the occupied areas determined flooded, which is consistent with our observed at each of these nine areas in above. observations and available data. Due to 2011 (Creech 2011b, pers. comm.; Miller We acknowledge there is some the high variation of alluvial and hydric 2011, pers. comm.; TXNDD 2012a, contradicting evidence regarding soils of Neches River rose-mallow entire). occupancy status for 3 of the 11 Units habitat, specific soil types were not To guide what would be considered designated as critical habitat for the mapped during this analysis but are still needed for the conservation of the Neches River rose-mallow. We maintain a general wetland indicator. species, we relied upon Pavlik’s 1996 Units 2, 9, and 11 are occupied by the species based on the presence of To determine the boundaries of (pp. 127–155) Minimum Viable critical habitat units around the areas Population analysis tool, using the best essential features and the absence of noticeable habitat disturbances since the occupied by the species, we focused scientific and commercial data on the primarily on available canopy openness. species’ life history and reproductive last verifiable record of the species in each area. However, we alternatively We used topographic and NWI maps for characteristics and input from a species confirmation of suitable habitat, then expert (Poole 2012a, pers. comm.). designate Units 2, 9, and 11 under section 3(5)(A)(ii) of the Act because we used aerial imagery available through Based on this analysis, we concluded Google Earth to determine dense cover that at least 10 viable populations of the consider them to be essential for the in the habitat. We drew boundaries rose-mallow, containing an average of conservation of the Neches River rose- around the open areas that delineate the about 1,400 individuals each, was the mallow, regardless of occupancy data. outer boundary of our critical habitat conservation goal for the species. Including these units in the designation We considered whether the 11 of critical habitat for the Neches River units. Critical habitat boundaries did occupied areas contained sufficient rose-mallow aligns with the not expand into heavily forested areas habitat to meet these conservation goals. conservation strategy for this species. because those areas are generally too Each area currently has one population, Based on the Minimum Viable shady for the Neches River rose-mallow so the occupied areas are sufficient for Population analysis and our site visits to and were therefore not included. the ten populations needed. However, the Neches River rose-mallow sites in When determining critical habitat the overall estimates of the number of 2011, we determined that the occupied boundaries, we made every effort to individuals in each population are low, areas contain suitable habitat (with avoid including developed areas with the largest population estimated to future special management) to support covered by manmade structures contain 750 individuals at compartment larger populations of Neches River rose- including: Buildings; bridges; 55 in October 2010 (Allen and Duty mallow to meet the conservation goals aqueducts; runways; roads; well pads; 2010, p. 4). All of the known for the species. The habitat in the 11 metering stations; other paved areas; populations currently have much fewer occupied areas is sufficient for attaining unpaved roads; and the filled areas individuals than the conservation goals. the goal of 10 viable populations immediately adjacent to pavement. Considering the size and amount of throughout the geographic range of the These structures lack the physical or suitable habitat in the areas occupied by species. Therefore, identifying biological features essential to the the species (see ‘‘Mapping Neches River additional areas as critical habitat Neches River rose-mallow. The scale of Rose-mallow Critical Habitat’’ section outside of the currently occupied the maps we prepared under the below for how we mapped the occupied geographic areas would not be essential parameters for publication within the areas), we found that the 11 areas for the conservation of the species, and Code of Federal Regulations may not contain suitable habitat (with special we have not identified any additional reflect the exclusion of such developed management) to support increased areas. lands, as is the case with Unit 4, where population sizes to meet the the Neches River rose-mallow is known conservation goals for the species. Mapping Neches River Rose-Mallow to occur in habitat beneath the SH 204 Based on this analysis and our site Critical Habitat ROW overpass in areas that receive visits, we determined that the occupied Once we determined the occupied some sun. Any such lands inadvertently areas contain suitable habitat (with areas, we next delineated the primary left inside critical habitat boundaries future special management) to support constituent elements. We estimated the shown on the maps of this final rule larger populations of Neches River rose- area of habitat based on several key have been excluded by text in the final mallow to meet the conservation goals features determined through our 2011 rule and are not designated as critical for the species. We judge there to be field surveys and in past reports on habitat. Therefore, a Federal action suitable sites within the occupied areas habitat requirements. Since the Neches involving these lands would not trigger that can be used for natural expansion River rose-mallow prefers depressional section 7 consultation with respect to of the populations during future or palustrine areas, we used topographic critical habitat and the requirement of recovery planning and implementation. maps to identify habitat within uplands no adverse modification unless the The habitat in the 11 occupied areas is or habitat that exhibited changes in specific action would affect the physical

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or biological features in the adjacent We are designating as critical habitat Final Critical Habitat Designation for critical habitat. lands that we have determined are Neches River Rose-mallow The critical habitat designation is occupied at the time of listing and We are designating 11 units as critical defined by the map or maps, as contain sufficient physical or biological habitat for Neches River rose mallow. modified by any accompanying features essential in supporting life- The critical habitat areas described regulatory text, presented at the end of history processes essential in the below constitute our best assessment at this document in the rule portion. We conservation of the Neches River rose- this time of areas that meet the include more detailed information on mallow that may require special definition of critical habitat. Those 11 the boundaries of the critical habitat management. units are (1) SH 94 ROW, Trinity designation in the preamble of this Eleven units were designated based County; (2) Harrison County; (3) document. We will make the on sufficient elements of physical or Lovelady, Houston County; (4) SH 204 coordinates or plot points or both on biological features being present to ROW, Cherokee County; (5) Davy which each map is based available to support the Neches River rose-mallow Crockett NF, Compartment 55, Houston the public on http:// life processes. Some units contained all County; (6) Davy Crockett NF, www.regulations.gov at Docket No. of the identified elements of physical or Compartment 11, Houston County; (7) Davy Crockett NF, Compartment 20, FWS–R2–ES–2013–0027, on our biological features and supported Houston County; (8) Davy Crockett NF, Internet sites http://www.fws.gov/ multiple life processes. Some units Compartment 16, Houston County; (9) southwest/es/ElectronicLibrary/ contained only some elements of the _ Champion, Trinity County; (10) Mill ElectronicLibrary Main.cfm, and at the physical or biological features necessary Creek Gardens, Nacogdoches County; field office responsible for the to support the Neches River rose- and (11) Camp Olympia, Trinity County. designation (see FOR FURTHER mallow particular use of that habitat. The approximate area of each critical INFORMATION CONTACT above). habitat unit is shown in Table 3.

TABLE 3—CRITICAL HABITAT UNITS FOR THE NECHES RIVER ROSE-MALLOW

Private State Federal Critical habitat unit ac ac ac Size of Unit ac (ha) (ha) (ha) (ha)

1. SH 94 ROW/Boggy Slough ...... 2.3 (0.9) 1.1 (0.5) 0 3.4 (1.4) 2. Harrison County ...... 20.8 (8.4) 0 0 20.8 (8.4) 3. Lovelady/(Near SH 230 ROW) ...... 6.3 (2.5) 0 0 6.3 (2.5) 4. SH 204 ROW ...... 0 8.7 (3.5) 0 8.7 (3.5) 5. Davy Crockett NF, Compartment 55 ...... 0 0 3.8 (1.5) 3.8 (1.5) 6. Davy Crockett NF, Compartment 11 ...... 0 0 7.3 (3.0) 7.3 (3.0) 7. Davy Crockett NF, Compartment 20 ...... 0 0 3.4 (1.4) 3.4 (1.4) 8. Davy Crockett NF, Compartment 16 ...... 0 0 32.8 (13.3) 32.8 (13.3) 9. Champion ...... 2.9 (1.2) 0 0 2.9 (1.2) 10. Mill Creek Gardens (emergency spillway) ...... 95.3 (38. 6) 0 0 95.3 (38. 6) 11. Camp Olympia ...... 0.2 (0.1) 0 0 0.2 (0.1)

Total Acreages for All Critical Habitat Units: ...... 166.5 (67.0) Note: Area sizes may not sum due to rounding.

We present brief descriptions of all parallels the ditch for about 0.8 mi (1.3 Unit 2: Harrison County units, and reasons why they meet the km) until vegetation becomes thick and definition of critical habitat for the the canopy cover increases. SH 94 ROW Unit 2 is found at a location between Neches River rose-mallow, below. was first observed in 1955 with only 0.2–0.4 mi (0.3–0.6 km) north of Farm to Market Road 2625 in Harrison Unit 1: SH 94 ROW herbarium specimens collected, and in 1968, over 100 plants were counted County. The unit was occupied at the Unit 1 consists of 3.4 ac (1.4 ha) on (TXNDD 2012a, pp. 1–11). A total of 128 time of listing and contains the physical both the 94 ROW and on private land plants were counted in October 2011. or biological features essential to the conservation of the species. A specimen in Trinity County. The unit was Unit 1 is optimal habitat for the Neches of the Neches River rose-mallow was occupied at the time of listing and River rose-mallow as indicated by the contains the physical or biological first collected from the site in 1980 by abundance of individual plants features essential to the conservation of Elray Nixon from SFASU and was observed in fall 2011 despite drought the species: a wetland with hydric originally thought to be H. laevis; conditions. alluvial soils with the potential for however, the specimen was recently flowing water and in some places, an The features essential to the reexamined and confirmed as the open canopy with partial to full sun conservation of the species in Unit 1 Neches River rose-mallow (TXNDD exposure. The unit parallels SH 94 for may require special management 2012a, p. 12). Warnock (1995) provided 0.1 mi (0.2 km) to the north, beginning considerations or protection to address only generic coordinates for the location about 0.06 mi (0.09 km) from the now the threats of: hydrologic changes on the of this site, but, using aerial abandoned rest stop. From the private lands, management of nonnative photography, we were able to determine easternmost boundary, Unit 1 then species and native woody vegetation, the location of this unit. Unit 2 is extends onto private lands (about 0.06 and appropriate timing and frequency of composed of 8.4 ha (20.8 ac) of mi (0.09 km)) where it ends, abutting a mowing and maintenance along the occupied habitat entirely on private drainage ditch and levee. The unit ROW. land. The physical or biological features

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essential to the conservation of the purchased the property in 2004 wetland, and appropriate timing and species include the large wetland or specifically for the conservation of the frequency of mowing and maintenance pond on hydric alluvial soils and open Neches River rose-mallow. This unit along the ROW. canopy. extends northward onto private lands Unit 5: Davy Crockett NF, Compartment The features essential to the where a known population of the 55 conservation of the species in Unit 2 Neches River rose-mallow was re- may require special management verified during a 2004 TXDOT survey. Unit 5 is the only unit that contains considerations or protection to address Essential biological features within Unit a natural population of the Neches River the threats of management of nonnative 3 include a depressional creek bed rose-mallow on Federal lands within the species and native woody vegetation, within Tantabogue Creek basin; Davy Crockett NF. The unit was and maintenance of natural hydrology inundation from overflow of the creek occupied at the time of listing and of the wetland. from the northwest or from rain events contains the physical or biological As noted above, there is contradicting that may allow ponding in low-lying features essential to the conservation of evidence regarding the occupancy of areas; open habitat with native woody the species. Occupied habitat of Unit 5 Unit 2. However, Unit 2 contains the vegetation; and frequently inundated includes 3.8 ac (1.5 ha). An open physical or biological features essential alluvial soils. flatwood or forested (Cowardin et al. to the conservation of the Neches River The features essential to the 1979, p. 20) pond is surrounded by rose-mallow and these features support conservation of the species in Unit 3 pine-oak forest. Unit 5 is 0.09 mi (0.14 life-history characteristics of the species may require special management km) in diameter and includes a (such as palustrine wetland habitat and considerations or protection to address palustrine flatwood pond and the native woody vegetation with an open the following threats: Management of surrounding open habitat. Essential canopy). The presence of these traits nonnative species and native woody habitat features of Unit 5 include its and the absence of noticeable habitat vegetation; maintenance of natural location within the Neches River basin, disturbances makes it likely that this hydrology of habitat and adjacent areas, adjacent to a flatwood pond where unit remains occupied, despite the last including rebuilding the stock pond to water could be exchanged, surrounding verified record of this species being mimic natural flow regimes; native woody vegetation, and associated from the late 1980’s, and therefore it construction of a cattle-exclusion fence alluvial soils. meets the definition of critical habitat to restrict grazing; and long-term The features essential to the under section 3(5)(A)(i) of the Act maintenance of Tantabogue Creek flows conservation of the species in Unit 5 because it is within the geographical by obtaining a conservation easement or may require special management area occupied by the species at the time agreement. considerations or protection to address of listing. However, we alternatively Unit 4: SH 204 ROW the threats of management of nonnative designate Unit 2 under section species and native woody vegetation, 3(5)(A)(ii) of the Act because we Unit 4 in Cherokee County contains maintenance and repair of habitat from consider the unit to be essential for the 8.7 ac (3.5 ha) of occupied habitat along hog damage, maintenance of natural conservation of the Neches River rose- SH 204 ROW and within the Mud Creek hydrology of the wetland, and mallow, regardless of occupancy data. basin. The unit was occupied at the time controlled use of herbicides. Including this unit in the designation of of listing and contains the physical or critical habitat for the Neches River biological features essential to the Unit 6: Davy Crockett NF, Compartment rose-mallow aligns with the conservation of the species. Unit 4 11 conservation strategy for this species. extends about 0.3 mi (0.5 km) from east Unit 6 includes 7.3 ac (3.0 ha) of We have determined that the species to west and about 0.01 mi (0.02 km) occupied habitat on Compartment 11 on requires a minimum of 10 populations from SH 204, on both the north and Federal land in the Davy Crockett NF and that the occupied areas contain south sides of the highway, up to the within Houston County. The unit was suitable habitat (with future special private fence. Unit 4 also includes a 0.1 occupied at the time of listing and management) to support larger mi (0.2 km) section of the Mud Creek contains the physical or biological populations of Neches River rose- basin where Neches River rose-mallow features essential to the conservation of mallow to meet the conservation goals could expand or where seeds could be the species. The SFASU introduced 200 for the species. The habitat in the 11 dispersed. This site was first observed plants into a seasonally flooded and units is sufficient for attaining the goal in 1992 with a single plant and since low-lying wetland. Unit 6 is 0.2 mi (0.3 of 10 viable populations throughout the that time, a maximum number of 75 km) in diameter, and essential habitat geographic range of the species. Thus, plants have been counted (in 1997). features include a partially open, for the purposes of this rulemaking, we Since 2003, the Neches River rose- depressional pond surrounded by native determine that Unit 2 meets the mallow has been observed underneath vegetation. definition of critical habitat under most of the overpass (TXNDD 2012a, pp. The features essential to the section 3(5)(A)(i) or, alternatively, under 20–28), in areas that did receive some conservation of the species in Unit 6 section 3(5)(A)(ii) of the Act. level of sun (not completely shaded). may require special management Essential biological features of Unit 4 considerations or protection to address Unit 3: Lovelady include its location within the Mud the threats of management of nonnative Unit 3 in Houston County, found Creek basin, open habitat with full sun, species and native woody vegetation, northwest of Farm to Market 230, and association with alluvial, hydric maintenance of natural hydrology of the extends 0.3 mi (0.5 km) north and soils. wetland, maintenance and repair of contains 6.3 ac (2.5 ha) of private land. The features essential to the habitat from hog damage, and controlled The unit was occupied at the time of conservation of the species in Unit 4 use of herbicides. listing and contains the physical or may require special management biological features essential to the considerations or protection to address Unit 7: Davy Crockett NF, Compartment conservation of the species. The the threats of management of nonnative 20 majority of land in Unit 3 belongs to the species and native woody vegetation, Unit 7 includes 3.4 ac (1.4 ha) of Texas Land Conservancy, who maintenance of natural hydrology of the Federal land in Compartment 20 of the

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Davy Crockett NF, Houston County. The The features essential to the soil is much different than at any of the unit was occupied at the time of listing conservation of the species in Unit 9 natural population sites. However, and contains the physical or biological may require special management vegetation around the site is well features essential to the conservation of considerations or protection to address adapted to full and partial water the species. The SFASU introduced the threats of management of nonnative inundation (TXNDD 2012a, p. 50), both 200–250 plants in 2000, and the site was species and native woody vegetation, of which are essential habitat features. occupied at the time of listing. Essential maintenance of natural hydrology of the The unit contains 95.3 ac (38. 6 ha) of habitat features in this unit include the entire site, and habitat conversion to occupied habitat. hydric alluvial soils, native woody planted pine and other hardwoods. The features essential to the vegetation, natural flows and hydrology As noted above, there is contradicting conservation of the species in Unit 10 of the draining pond, and an open evidence regarding the occupancy of may require special management canopy of the perennial wetland where Unit 9. However, Unit 9 contains the considerations or protection to address the Neches River rose-mallow is located. physical or biological features essential the threats of management of nonnative The features essential to the to the conservation of the Neches River species and native woody vegetation, conservation of the species in Unit 7 rose-mallow and these features support maintaining natural hydrology of the may require special management life-history characteristics of the species entire site, maintenance and repair of considerations or protection to address (such as palustrine wetland habitat with habitat from hog damage, and the threats of management of nonnative an open canopy). The presence of these maintaining the natural hydrology of the species and native woody vegetation, traits and the absence of noticeable adjacent pond. habitat disturbances makes it likely that maintenance of natural hydrology of the Unit 11: Camp Olympia wetland, maintenance and repair of this unit remains occupied, despite the last verified record of this species in Unit 11 is located on private property habitat from hog damage, and controlled in Trinity County. The unit contains 0.2 use of herbicides. 2001, and therefore it meets the definition of critical habitat under ac (0.1 ha) of palustrine wetland habitat Unit 8: Davy Crockett NF, Compartment section 3(5)(A)(i) of the Act because it north of Lake Livingston. The 16 is within the geographical area occupied documented presence of the Neches by the species at the time of listing. River rose-mallow at this site is based Unit 8 encompasses 32.8 ac (13.3 ha) on voucher specimens collected in 1977 of occupied Federal habitat in the Davy However, we alternatively designate Unit 9 under section 3(5)(A)(ii) of the and in 1978. The site has only been Crocket NF, Houston County. The Act because we consider the unit to be visited by a species expert twice since SFASU introduced 450 plants at this essential for the conservation of the 1978. Although site was surveyed by site in 2000, but only 43 stem clusters Neches River rose-mallow, regardless of Klips in 1992 and Warnock in 1993 were observed in 2011. The unit was occupancy data. Including this unit in without success, leading Warnock occupied at the time of listing and the designation of critical habitat for the (1995, p. 6) to list the site as extirpated contains the physical or biological Neches River rose-mallow aligns with or historical, there is reason to believe features essential to the conservation of the conservation strategy for this that the plants may still be there. In the species. Essential habitat and species. We have determined that the addition to site conditions that can biological features include a partially species requires a minimum of 10 change with fluctuations in water level; open depressional wetland within the populations and that the occupied areas resulting in shifting of the plants’ Neches River floodplain, native riparian contain suitable habitat (with future location, Warnock’s 1993 site survey plant associates, and alluvial soils. special management) to support larger was conducted from the water (canoe), The features essential to the populations of Neches River rose- not from the land, and the presence of conservation of the species in Unit 8 mallow to meet the conservation goals the Neches River rose-mallow may have may require special management for the species. The habitat in the 11 been hidden from view by dense considerations or protection to address units is sufficient for attaining the goal vegetation at the water’s edge. The site the threats of management of nonnative of 10 viable populations throughout the could have been overgrown, the plant species and native woody vegetation, geographic range of the species. Thus, may not have been in bloom at the time maintenance of natural hydrology of the for the purposes of this rulemaking, we of the survey, and environmental factors wetland, restriction of wetland determine that Unit 9 meets the could have hindered the production of conversion to beaver dams, and definition of critical habitat under flowers at the time of the survey. controlled use of herbicides. section 3(5)(A)(i) or, alternatively, under Warnock (1995, p. 6) suggested that the Unit 9: Champion section 3(5)(A)(ii) of the Act. Neches River rose-mallow was highly dependent on the water levels of Lake The Champion site, Trinity County, is Unit 10: Mill Creek Gardens Livingston; therefore, complete located on private land approximately Unit 10 is an introduced site at Mill inundation of the site may cause 0.7 mi (1.1 km) south-southeast of the Creek Gardens, Nacogdoches County. extirpation of this population. The unit Houston County line, about 0.8 mi (1.2 Stephen F. Austin State University Mass was occupied at the time of listing and km) north of the confluence of White Arboretum purchased the land and contains the physical or biological Rock Creek and Cedar Creek (TXNDD created the gardens in 1995 as part of a features essential to the conservation of 2012a, p. 55). The unit was occupied at conservation agreement. The unit was the species including the potential for the time of listing and contains the occupied at the time of listing and flowing water and an open canopy physical or biological features essential contains the physical or biological providing full to partial sun exposure. to the conservation of the species. Two features essential to the conservation of The features essential to the small polygons are being designated as the species. Plants grown from cuttings conservation of the species in Unit 11 occupied critical habitat, both by SFASU were introduced within may require special management encompassing 1.2 ha (2.9 ac). Essential research plots in an area that overflows considerations or protection to address habitat features on the unit include from an adjacent pond. According to a the threats of management of nonnative palustrine wetlands with an open commenter, this site is along an species and native woody vegetation to canopy. emergency spillway of a dam where the maintain openness, and hydrological

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changes through potential site alteration regulatory definition of ‘‘destruction or (1) Can be implemented in a manner or construction projects. adverse modification’’ (50 CFR 402.02) consistent with the intended purpose of As noted above, there is contradicting (see Gifford Pinchot Task Force v. U.S. the action, evidence regarding the occupancy of Fish and Wildlife Service, 378 F. 3d (2) Can be implemented consistent Unit 11. However, Unit 11 contains the 1059 (9th Cir. 2004) and Sierra Club v. with the scope of the Federal agency’s physical or biological features essential U.S. Fish and Wildlife Service et al., 245 legal authority and jurisdiction, to the conservation of the Neches River F.3d 434, 442 (5th Cir. 2001)), and we (3) Are economically and rose-mallow and these features support do not rely on this regulatory definition technologically feasible, and life-history characteristics of the species when analyzing whether an action is (4) Would, in the Director’s opinion, (such as palustrine wetland habitat with likely to destroy or adversely modify avoid the likelihood of jeopardizing the an open canopy). The presence of these critical habitat. Under the statutory continued existence of the listed species traits and the absence of noticeable provisions of the Act, we determine and/or avoid the likelihood of habitat disturbances makes it likely that destruction or adverse modification on destroying or adversely modifying this unit remains occupied, despite the the basis of whether, with critical habitat. last verified record of this species in implementation of the proposed Federal Reasonable and prudent alternatives 1978, and therefore it meets the action, the affected critical habitat can vary from slight project definition of critical habitat under would continue to serve its intended modifications to extensive redesign or section 3(5)(A)(i) of the Act because it conservation role for the species. relocation of the project. Costs is within the geographical area occupied If a Federal action may affect a listed associated with implementing a by the species at the time of listing. species or its critical habitat, the reasonable and prudent alternative are However, we alternatively designate responsible Federal agency (action similarly variable. Unit 11 under section 3(5)(A)(ii) of the agency) must enter into consultation Regulations at 50 CFR 402.16 require Act because we consider the unit to be with us. Examples of actions that are Federal agencies to reinitiate essential for the conservation of the subject to the section 7 consultation consultation on previously reviewed Neches River rose-mallow, regardless of process are actions on State, tribal, actions in instances where we have occupancy data. Including this unit in local, or private lands that require a listed a new species or subsequently the designation of critical habitat for the Federal permit (such as a permit from designated critical habitat that may be Neches River rose-mallow aligns with the U.S. Army Corps of Engineers under affected and the Federal agency has the conservation strategy for this section 404 of the Clean Water Act (33 retained discretionary involvement or species. We have determined that the U.S.C. 1251 et seq.) or a permit from the control over the action (or the agency’s species requires a minimum of 10 Service under section 10 of the Act) or discretionary involvement or control is populations and that the occupied areas that involve some other Federal action authorized by law). Consequently, contain suitable habitat (with future (such as funding from the Federal Federal agencies sometimes may need to special management) to support larger Highway Administration, Federal request reinitiation of consultation with populations of Neches River rose- Aviation Administration, or the Federal us on actions for which formal mallow to meet the conservation goals Emergency Management Agency). consultation has been completed, if for the species. The habitat in the 11 Federal actions not affecting listed those actions with discretionary units is sufficient for attaining the goal species or critical habitat, and actions involvement or control may affect of 10 viable populations throughout the on State, tribal, local, or private lands subsequently listed species or geographic range of the species. Thus, that are not federally funded or designated critical habitat. for the purposes of this rulemaking, we authorized, do not require section 7 determine that Unit 11 meets the consultation. Application of the ‘‘Adverse definition of critical habitat under As a result of section 7 consultation, Modification’’ Standard section 3(5)(A)(i) or, alternatively, under we document compliance with the The key factor related to the adverse section 3(5)(A)(ii) of the Act. requirements of section 7(a)(2) through modification determination is whether, Effects of Critical Habitat Designation our issuance of: with implementation of the proposed for the Texas Golden Gladecress and (1) A concurrence letter for Federal Federal action, the affected critical the Neches River Rose-Mallow actions that may affect, but are not habitat would continue to serve its likely to adversely affect, listed species intended conservation role for the Section 7 Consultation or critical habitat; or species. Activities that may destroy or Section 7(a)(2) of the Act requires (2) A biological opinion for Federal adversely modify critical habitat are Federal agencies, including the Service, actions that may affect, or are likely to those that alter the physical or to ensure that any action they fund, adversely affect, listed species or critical biological features to an extent that authorize, or carry out is not likely to habitat. appreciably reduces the conservation jeopardize the continued existence of When we issue a biological opinion value of critical habitat for Texas golden any endangered species or threatened concluding that a project is likely to gladecress and Neches River rose- species or result in the destruction or jeopardize the continued existence of a mallow. As discussed above, the role of adverse modification of designated listed species and/or destroy or critical habitat is to support life-history critical habitat of such species. In adversely modify critical habitat, we needs of the species and provide for the addition, section 7(a)(4) of the Act provide reasonable and prudent conservation of the species. requires Federal agencies to confer with alternatives to the project, if any are Section 4(b)(8) of the Act requires us the Service on any agency action that is identifiable, that would avoid the to briefly evaluate and describe, in any likely to jeopardize the continued likelihood of jeopardy and/or proposed or final regulation that existence of any species listed under the destruction or adverse modification of designates critical habitat, activities Act or result in the destruction or critical habitat. We define ‘‘reasonable involving a Federal action that may adverse modification of critical habitat. and prudent alternatives’’ (at 50 CFR destroy or adversely modify such Decisions by the 5th and 9th Circuit 402.02) as alternative actions identified habitat, or that may be affected by such Courts of Appeals have invalidated our during consultation that: designation.

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Texas Golden Gladecress causes trampling of habitat and damage would not result in the extinction of the Activities that may affect critical to plants, and herbivory by cattle. These species. activities could adversely affect the habitat, when carried out, funded, or Exclusions Based on Economic Impacts authorized by a Federal agency, should primary constituent elements that are required by the species. Under section 4(b)(2) of the Act, we result in consultation for the Texas consider the economic impacts of golden gladecress. These activities Exemptions specifying any particular area as critical include, but are not limited to the Application of Section 4(a)(3) of the Act habitat. In order to consider economic following. impacts, we prepared a draft economic Section 4(a)(3)(B)(i) of the Act (16 Actions that would disturb or alter the analysis of the proposed critical habitat U.S.C. 1533(a)(3)(B)(i)) provides that: natural vegetation community or the designation and related factors ‘‘The Secretary shall not designate as underlying geology supporting the (Industrial Economics 2013a). The draft critical habitat any lands or other species to the extent that the critical analysis, dated April 16, 2013, (78 FR geographic areas owned or controlled by habitat would be adversely modified, 22506) was made available for public the Department of Defense, or and would also result in the decline of review from April 16, 2013, through designated for its use, that are subject to most, or even all, of the plants due to May 16, 2013. Following the close of the an integrated natural resources the small areal extent of their comment period, a final analysis (dated management plan [INRMP] prepared populations. Such activities could June 27, 2013) of the potential economic under section 101 of the Sikes Act (16 include, but are not limited to, removal effects of the designation was developed U.S.C. 670a), if the Secretary determines of plant cover, soil, and underlying taking into consideration the public in writing that such plan provides a geology; construction of buildings or comments and any new information benefit to the species for which critical new roads or road improvements atop or (Industrial Economics 2013b). directly upslope of population sites; habitat is designated.’’ There are no The intent of the final economic application of herbicides that kill above Department of Defense lands with a analysis (FEA) is to quantify the ground plants or seedlings; plantings of completed INRMP within the critical economic impacts of all potential pine trees in close proximity to small habitat designation. conservation efforts for Texas golden glade habitats that results in shading Application of Section 4(b)(2) of the Act gladecress and the Neches River rose- and accumulation of leaf litter; and land mallow; some of these costs will likely use practices that directly or indirectly Exclusions be incurred regardless of whether we encourage overgrowth by nonnative and Section 4(b)(2) of the Act states that designate critical habitat (baseline). The native woody species. These activities the Secretary shall designate and make economic impact of the final critical could adversely affect the primary revisions to critical habitat on the basis habitat designation is analyzed by constituent elements, and in some cases of the best available scientific data after comparing scenarios both ‘‘with critical where the primary constituent elements taking into consideration the economic habitat’’ and ‘‘without critical habitat.’’ directly underlie the populations and impact, national security impact, and The ‘‘without critical habitat’’ scenario their immediate surroundings, also any other relevant impact of specifying represents the baseline for the analysis, likely constitute jeopardy to the species. any particular area as critical habitat. considering protections already in place The Secretary may exclude an area from for the species (e.g., under the Federal Neches River Rose-Mallow critical habitat if he determines that the listing and other Federal, State, and Activities that may affect critical benefits of such exclusion outweigh the local regulations). The baseline, habitat, when carried out, funded, or benefits of specifying such area as part therefore, represents the costs incurred authorized by a Federal agency, should of the critical habitat, unless he regardless of whether critical habitat is result in consultation for the Neches determines, based on the best scientific designated. The ‘‘with critical habitat’’ River rose-mallow. These activities data available, that the failure to scenario describes the incremental include, but are not limited to the designate such area as critical habitat impacts associated specifically with the following. will result in the extinction of the designation of critical habitat for the Actions that would by themselves, or species. In making that determination, species. The incremental conservation in conjunction with other land the statute on its face, as well as the efforts and associated impacts are those activities, disturb or alter the vegetation legislative history, are clear that the not expected to occur absent the community, underlying substrate, and Secretary has broad discretion regarding designation of critical habitat for the hydrology to the extent that Neches which factor(s) to use and how much species. In other words, the incremental River rose-mallow’s critical habitat weight to give to any factor. costs are those attributable solely to the would be adversely modified, usually Under section 4(b)(2) of the Act, we designation of critical habitat above and resulting in the decline or loss of the may exclude an area from designated beyond the baseline costs; these are the plants themselves. Such activities could critical habitat based on economic costs we consider in the final include, but are not limited to, impacts, impacts on national security, designation of critical habitat. The channelization projects that alter natural or any other relevant impacts. In analysis looks retrospectively at flow regimes, changes to site hydrology considering whether to exclude a baseline impacts incurred since the due to water diversions from streams particular area from the designation, we species was listed, and forecasts both and rivers, allowing nonnative and identify the benefits of including the baseline and incremental impacts likely native woody riparian species to area in the designation, identify the to occur with the designation of critical encroach into occupied sites, grazing benefits of excluding the area from the habitat. during times of drought stress, designation, and evaluate whether the The FEA also addresses how potential detrimental roadside management benefits of exclusion outweigh the economic impacts are likely to be practices including inappropriate benefits of inclusion. If the analysis distributed, including an assessment of frequency and timing of mowing (during indicates that the benefits of exclusion any local or regional impacts of habitat blooming), herbicide applications in outweigh the benefits of inclusion, the conservation and the potential effects of close proximity to plants, lack of Secretary may exercise her discretion to conservation activities on government management of feral hog population that exclude the area only if such exclusion agencies, private businesses, and

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individuals. The FEA measures lost ElectronicLibrary/ElectronicLibrary_ for improvements in the nation’s economic efficiency associated with Main.cfm. regulatory system to promote residential and commercial predictability, to reduce uncertainty, Exclusions Based on National Security development and public projects and and to use the best, most innovative, Impacts activities, such as economic impacts on and least burdensome tools for water management and transportation Under section 4(b)(2) of the Act, we achieving regulatory ends. The projects, Federal lands, small entities, consider whether there are lands owned executive order directs agencies to and the energy industry. Decision- or managed by the Department of consider regulatory approaches that makers can use this information to Defense where a national security reduce burdens and maintain flexibility assess whether the effects of the impact might exist. and freedom of choice for the public designation might unduly burden a In preparing this final rule, we have where these approaches are relevant, particular group or economic sector. determined that the lands within the feasible, and consistent with regulatory Finally, the FEA considers those costs designation of critical habitat for the objectives. E.O. 13563 emphasizes that may occur in the 20 years following Texas golden gladecress and the Neches further that regulations must be based the designation of critical habitat, which River rose-mallow are not owned or on the best available science and that was determined to be the appropriate managed by the Department of Defense the rulemaking process must allow for period for analysis because limited or Department of Homeland Security, public participation and an open planning information was available for and, therefore, we anticipate no impact exchange of ideas. We have developed most activities to forecast activity levels on national security. Consequently, the this rule in a manner consistent with for projects beyond a 20-year timeframe. Secretary is not exerting her discretion these requirements. to exclude any areas from this final The final economic analysis designation based on impacts on Regulatory Flexibility Act (5 U.S.C. 601 quantifies economic impacts of Texas national security. et seq.) golden gladecress and the Neches River Under the Regulatory Flexibility Act rose-mallow conservation efforts Exclusions Based on Other Relevant (RFA; 5 U.S.C. 601 et seq.) as amended associated with the following categories Impacts by the Small Business Regulatory of activity: (1) Transportation (minor Under section 4(b)(2) of the Act, we Enforcement Fairness Act (SBREFA) of road widening and maintenance) and consider any other relevant impacts, in 1996 (5 U.S.C. 801 et seq.), whenever an energy infrastructure projects, (2) land addition to economic impacts and agency must publish a notice of management, and (3) water impacts on national security. We rulemaking for any proposed or final management. The total present value consider a number of factors, including rule, it must prepare and make available impacts anticipated to result from the whether the landowners have developed for public comment a regulatory designation of all areas designated as any HCPs or other management plans flexibility analysis that describes the Texas golden gladecress and Neches for the area, or whether there are effects of the rule on small entities River rose-mallow critical habitat are conservation partnerships that would be (small businesses, small organizations, approximately $32,000 for Neches River encouraged by designation of, or and small government jurisdictions). rose-mallow and $478,000 for Texas exclusion from, critical habitat. In However, no regulatory flexibility golden gladecress over 20 years, addition, we look at any tribal issues, analysis is required if the head of the assuming a 7 percent discount rate. For and consider the government-to- agency certifies the rule will not have a the Neches River rose-mallow, all government relationship of the United significant economic impact on a incremental costs are likely limited to States with tribal entities. We also substantial number of small entities. the additional administrative cost of consider any social impacts that might The SBREFA amended the RFA to considering adverse modification during occur because of the designation. require Federal agencies to provide a section 7 consultations. For the Texas In preparing this final rule, we have certification statement of the factual golden gladecress, incremental costs are determined that there are currently no basis for certifying that the rule will not associated with consultations that HCPs or other management plans for the have a significant economic impact on consider adverse modification, as well Texas golden gladecress or the Neches a substantial number of small entities. as expected project modifications and River rose-mallow, and the final In this final rule, we are certifying that project costs. Please refer to the final designation does not include any tribal the critical habitat designation for Texas economic analysis for a comprehensive lands or trust resources. We anticipate golden gladecress or the Neches River discussion of the potential impacts. no impact on tribal lands, partnerships, rose-mallow will not have a significant Our economic analysis did not or HCPs from this critical habitat economic impact on a substantial identify any disproportionate costs that designation. Accordingly, the Secretary number of small entities. The following are likely to result from the designation. is not exercising her discretion to discussion explains our rationale. Consequently, the Secretary is not exclude any areas from this final According to the Small Business exerting her discretion to exclude any designation based on other relevant Administration, small entities include areas from this designation of critical impacts. small organizations, such as habitat for the Texas golden gladecress Required Determinations independent nonprofit organizations; and the Neches River rose-mallow based small governmental jurisdictions, on economic impacts. Regulatory Planning and Review including school boards and city and A copy of the final economic analysis (Executive Orders 12866 and 13563) town governments that serve fewer than with supporting documents may be Executive Order 12866 provides that 50,000 residents; as well as small obtained by contacting the Texas the Office of Information and Regulatory businesses. Small businesses include Coastal Ecological Services Field Office Affairs (OIRA) will review all significant manufacturing and mining concerns (see ADDRESSES) or by downloading rules. The Office of Information and with fewer than 500 employees, from the Internet at http:// Regulatory Affairs has determined that wholesale trade entities with fewer than www.regulations.gov (Docket No. FWS– this rule is not significant. 100 employees, retail and service R2–ES–2013–0027) and also at http:// Executive Order 13563 reaffirms the businesses with less than $5 million in www.fws.gov/southwest/es/ principles of E.O. 12866, while calling annual sales, general and heavy

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construction businesses with less than preparation of an initial regulatory Therefore, a regulatory flexibility $27.5 million in annual business, flexibility analysis. If a substantial analysis is not required. However, special trade contractors doing less than number of small entities are affected by though not necessarily required by the $11.5 million in annual business, and the critical habitat designation, but the RFA, in our final economic analysis for agricultural businesses with annual per-entity economic impact is not this rule we considered and evaluated sales less than $750,000. To determine significant, the Service may certify. the potential effects to third parties that if potential economic impacts on these Likewise, if the per-entity economic may be involved with consultations small entities are significant, we impact is likely to be significant, but the with Federal action agencies related to consider the types of activities that number of affected entities is not this action. might trigger regulatory impacts under substantial, the Service may also certify. Designation of critical habitat only this rule, as well as the types of project The Service’s current understanding affects activities authorized, funded, or modifications that may result. In of recent case law is that Federal carried out by Federal agencies. Some general, the term ‘‘significant economic agencies are only required to evaluate kinds of activities are unlikely to have impact’’ is meant to apply to a typical the potential impacts of rulemaking on any Federal involvement and so will not small business firm’s business those entities directly regulated by the be affected by critical habitat operations. rulemaking; therefore, they are not designation. In areas where the species To determine if the rule could required to evaluate the potential is present, Federal agencies already are significantly affect a substantial number impacts to those entities not directly required to consult with us under of small entities, we consider the regulated. The designation of critical section 7 of the Act on activities they number of small entities affected within habitat for an endangered or threatened authorize, fund, or carry out that may particular types of economic activities. species only has a regulatory effect affect the Texas golden gladecress or the We apply the ‘‘substantial number’’ test where a Federal action agency is Neches River rose-mallow. Federal individually to each industry to involved in a particular action that may agencies also must consult with us if determine if certification is appropriate. affect the designated critical habitat. their activities may affect critical However, the SBREFA does not Under these circumstances, only the habitat. Designation of critical habitat, explicitly define ‘‘substantial number’’ Federal action agency is directly therefore, could result in an additional or ‘‘significant economic impact.’’ regulated by the designation, and, economic impact on small entities due Consequently, to assess whether a therefore, consistent with the Service’s to the requirement to reinitiate ‘‘substantial number’’ of small entities is current interpretation of RFA and recent consultation for ongoing Federal affected by this designation, this case law, the Service may limit its activities (see Application of the analysis considers the relative number evaluation of the potential impacts to ‘‘Adverse Modification Standard’’ of small entities likely to be impacted in those identified for Federal action section). an area. In some circumstances, agencies. Under this interpretation, In our final economic analysis of the especially with critical habitat there is no requirement under the RFA critical habitat designation, we designations of limited extent, we may to evaluate the potential impacts to evaluated the potential economic effects aggregate across all industries and entities not directly regulated, such as on small business entities resulting from consider whether the total number of small businesses. However, Executive conservation actions related to the small entities affected is substantial. In Orders 12866 and 13563 direct Federal listing of the Texas golden gladecress or estimating the number of small entities agencies to assess costs and benefits of the Neches River rose-mallow and the potentially affected, we also consider available regulatory alternatives in designation of critical habitat. The whether their activities have any quantitative (to the extent feasible) and analysis is based on the estimated Federal involvement. qualitative terms. Consequently, it is the impacts associated with the rulemaking Designation of critical habitat only current practice of the Service to assess as described in Chapters 4 through 5 affects activities authorized, funded, or to the extent practicable these potential and Appendix A of the analysis and carried out by Federal agencies. Some impacts if sufficient data are available, evaluates the potential for economic kinds of activities are unlikely to have whether or not this analysis is believed impacts related to: (1) Routine any Federal involvement and so will not by the Service to be strictly required by transportation projects, utility related be affected by critical habitat the RFA. In other words, while the activities, and oil and gas development, designation. In areas where the species effects analysis required under the RFA including interstate natural gas is present, Federal agencies already are is limited to entities directly regulated pipelines; (2) land management; and (3) required to consult with us under by the rulemaking, the effects analysis water management. section 7 of the Act on activities they under the Act, consistent with the EO To determine if the designation of authorize, fund, or carry out that may regulatory analysis requirements, can critical habitat for the Texas golden affect the Texas golden gladecress or the take into consideration impacts to both gladecress or the Neches River rose- Neches River rose-mallow. Federal directly and indirectly impacted mallow would affect a substantial agencies also must consult with us if entities, where practicable and number of small entities, we considered their activities may affect critical reasonable. the number of small entities affected habitat. Designation of critical habitat, In conclusion, we believe that, based within the categories of economic therefore, could result in an additional on our interpretation of directly activities listed above. In order to economic impact on small entities due regulated entities under the RFA and determine whether it was appropriate to the requirement to reinitiate relevant case law, this designation of for our agency to certify that this final consultation for ongoing Federal critical habitat will only directly rule would not have a significant activities (see ‘‘Application of the regulate Federal agencies, which are not economic impact on a substantial ‘Adverse Modification Standard’ ’’ by definition small business entities. number of small entities, we considered section). And as such, we certify that, if each industry or category individually. Importantly, the incremental impacts promulgated, this designation of critical In estimating the numbers of small of a rule must be both significant and habitat would not have a significant entities potentially affected, we also substantial to prevent certification of the economic impact on a substantial considered whether their activities have rule under the RFA and to require the number of small business entities. any Federal involvement. Critical

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habitat designation will not affect consultations were projected for this to prepare Statements of Energy Effects activities that do not have any Federal species; three formal and 20 informal, when undertaking certain actions. involvement; designation of critical over the next 20 years. As is the case Office of Management and Budget has habitat affects only activities conducted, with the Neches River rose-mallow, the provided guidance for implementing funded, permitted, or authorized by Service, Rural Utilities Services, U.S. this Executive Order that outlines nine Federal agencies. In areas where the Department of Transportation, and outcomes that may constitute ‘‘a Texas golden gladecress or the Neches TXDOT are not small entities. For five significant adverse effect’’ when River rose-mallow is present, Federal of the consultations, two electric compared to not taking the regulatory agencies already are required to consult cooperatives serve as third party action under consideration. with us under section 7 of the Act on participants. As concluded above for the The economic analysis finds that activities they fund, permit, or Neches River rose-mallow, the costs none of these criteria are relevant to this implement that may affect the species. anticipated to be incurred by these analysis. Thus, based on information in Critical habitat designation means that entities are de minimis (less than $1,000 the economic analysis, energy-related consultations to avoid the destruction or annually) and would not be projected to impacts associated with Texas golden adverse modification of critical habitat result in significant impacts. gladecress or the Neches River rose- will be incorporated into the existing We assumed that these consultations mallow conservation activities within consultation process. would have an equal probability of critical habitat are not expected. As To ensure broad consideration of occurring at any time during the 20-year such, the designation of critical habitat impacts on small entities, the Service’s timeframe and considered these is not expected to significantly affect economic analysis assessed potential estimates to be conservative because we energy supplies, distribution, or use. economic effects on small entities assumed that all projects could occur Therefore, this action is not a significant resulting from implementation of independently; that is, we assumed energy action, and no Statement of conservation actions related to the separate consultations for each project. Energy Effects is required. designation of critical habitat for the Based on the consultation history, most Unfunded Mandates Reform Act (2 Texas golden gladecress and the Neches consultations are unlikely to involve a U.S.C. 1501 et seq.) River rose-mallow. For the Neches River third party. Electric cooperatives may be rose-mallow, no incremental considered independently owned and In accordance with the Unfunded conservation measures to avoid adverse operated establishments that are not Mandates Reform Act (2 U.S.C. 1501 et modification of critical habitat over and dominant in their field, thus falling seq.), we make the following findings: above those recommended to avoid under protection of the RFA. As (1) This rule will not produce a jeopardy to the species were foreseen, calculated in this analysis, however, the Federal mandate. In general, a Federal and as such the economic analysis costs to these entities are de minimis mandate is a provision in legislation, forecast was for few incremental and would not be expected to have statute, or regulation that would impose economic impacts as a result of the significant impact. In conclusion, while an enforceable duty upon State, local, or designation of critical habitat for this two small electric cooperatives are tribal governments, or the private sector, species. Incremental impacts forecast anticipated to incur costs as a result of and includes both ‘‘Federal were solely related to administrative the designation of critical habitat for intergovernmental mandates’’ and costs for adverse modification analyses Texas golden gladecress and Neches ‘‘Federal private sector mandates.’’ in section 7 consultations. The final River rose-mallow, the costs are not These terms are defined in 2 U.S.C. economic analysis projected that 16 expected to result in significant impacts 658(5)–(7). ‘‘Federal intergovernmental such consultations would occur. The to these entities. Consequently, no small mandate’’ includes a regulation that Service and the Federal action agencies entities are anticipated to incur costs as ‘‘would impose an enforceable duty (U.S. Department of Transportation, a result of the designation of critical upon State, local, or tribal governments’’ U.S. Forest Service, Rural Utilities habitat for Texas golden gladecress and with two exceptions. It excludes ‘‘a Services and the U.S. Army Corps of Neches River rose-mallow. condition of Federal assistance.’’ It also Engineers) are not small entities. The In summary, we considered whether excludes ‘‘a duty arising from TXDOT, the third party participant in this designation would result in a participation in a voluntary Federal four of these consultations, is not a significant economic effect on a program,’’ unless the regulation ‘‘relates small entity. For ten of these substantial number of small entities. to a then-existing Federal program consultations, the third party Based on the above reasoning and under which $500,000,000 or more is participant is an electric cooperative. currently available information, we provided annually to State, local, and Electric cooperatives may be considered concluded that this rule would not tribal governments under entitlement independently owned and operated result in a significant economic impact authority,’’ if the provision would establishments that are not dominant in on a substantial number of small ‘‘increase the stringency of conditions of their field, thus falling under protection entities. Therefore, we are certifying that assistance’’ or ‘‘place caps upon, or of the RFA. As calculated in this the designation of critical habitat for otherwise decrease, the Federal analysis, however, the costs to these Texas golden gladecress or the Neches Government’s responsibility to provide entities are de minimis and would not River rose-mallow will not have a funding,’’ and the State, local, or tribal be expected to have significant impact. significant economic impact on a governments ‘‘lack authority’’ to adjust For the Texas golden gladecress, the substantial number of small entities, accordingly. At the time of enactment, incremental costs of this designation and a regulatory flexibility analysis is these entitlement programs were: included the administrative costs of not required. Medicaid; Aid to Families with considering adverse modification during Dependent Children work programs; section 7 consultations, the costs of any Energy Supply, Distribution, or Use— Child Nutrition; Food Stamps; Social recommended project modifications, Executive Order 13211 Services Block Grants; Vocational and the costs of new land management Executive Order 13211 (Actions Rehabilitation State Grants; Foster Care, projects occurring as a result of the Concerning Regulations That Adoption Assistance, and Independent critical habitat designation. Significantly Affect Energy Supply, Living; Family Support Welfare Approximately 23 section 7 Distribution, or Use) requires agencies Services; and Child Support

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Enforcement. ‘‘Federal private sector Takings—Executive Order 12630 government and the States, or on the mandate’’ includes a regulation that In accordance with Executive Order distribution of powers and ‘‘would impose an enforceable duty 12630 (Government Actions and responsibilities among the various upon the private sector, except (i) a Interference with Constitutionally levels of government. The designation condition of Federal assistance or (ii) a Protected Private Property Rights), we may have some benefit to these duty arising from participation in a have analyzed the potential takings governments because the areas that voluntary Federal program.’’ implications of designating critical contain the features essential to the habitat for the Texas golden gladecress conservation of the species are more The designation of critical habitat clearly defined, and the physical or does not impose a legally binding duty and the Neches River rose-mallow in a takings implications assessment. biological features of the habitat on non-Federal Government entities or necessary to the conservation of the Executive Order 12630, ‘‘Governmental private parties. Under the Act, the only species are specifically identified. This Actions and Interference with regulatory effect is that Federal agencies information does not alter where and Constitutionally Protected Property must ensure that their actions do not what federally sponsored activities may Rights,’’ issued March 15, 1988, requires destroy or adversely modify critical occur. However, it may assist these local agencies to adhere to certain principals habitat under section 7. While non- governments in long-range planning in rulemakings that have takings Federal entities that receive Federal (because these local governments no implications and provide certain funding, assistance, or permits, or that longer have to wait for case-by-case information to Office of Management otherwise require approval or section 7 consultations to occur). and Budget for any actions with authorization from a Federal agency for Where State and local governments identified takings implications. Section an action, may be indirectly impacted require approval or authorization from a 2(a) of the Executive Order defines by the designation of critical habitat, the Federal agency for actions that may takings implications to include any affect critical habitat, consultation legally binding duty to avoid ‘‘regulations that propose or implement destruction or adverse modification of under section 7(a)(2) would be required. licensing, permitting, or other While non-Federal entities that receive critical habitat rests squarely on the requirements or limitations on private Federal agency. Furthermore, to the Federal funding, assistance, or permits, property use, or that require dedications or that otherwise require approval or extent that non-Federal entities are or exactions from owners of private indirectly impacted because they authorization from a Federal agency for property.’’ Our economic analysis found an action, may be indirectly impacted receive Federal assistance or participate that the incremental effects of the by the designation of critical habitat, the in a voluntary Federal aid program, the critical habitat designations are largely legally binding duty to avoid Unfunded Mandates Reform Act would limited to additional administrative destruction or adverse modification of not apply, nor would critical habitat costs. Activities taking place on private critical habitat rests squarely on the shift the costs of the large entitlement property are not likely to be affected. Federal agency. programs listed above onto State The takings implications assessment governments. concludes that this designation of Civil Justice Reform—Executive Order 12988 (2) We do not believe that this rule critical habitat for the Texas golden will significantly or uniquely affect gladecress and the Neches River rose- In accordance with Executive Order small governments. As stated in the mallow does not pose significant takings 12988 (Civil Justice Reform), the Office proposed rule, the designation of critical implications for lands within or affected of the Solicitor has determined that the habitat does not impose a legally by the designation. rule does not unduly burden the judicial system and that it meets the applicable binding duty on non-Federal Federalism—Executive Order 13132 Government entities or private parties. standards set forth in sections 3(a) and In accordance with Executive Order Under the Act, the only regulatory effect 3(b)(2) of the Order. We are designating 13132 (Federalism), this final rule does is that Federal agencies must ensure that critical habitat in accordance with the not have significant Federalism effects. provisions of the Act. To assist the their actions do not destroy or adversely A federalism summary impact statement modify critical habitat under section 7. public in understanding the habitat is not required. In keeping with needs of the species, the rule identifies While non-Federal entities that receive Department of the Interior and Federal funding, assistance, or permits, the elements of physical or biological Department of Commerce policy, we features essential to the conservation of or that otherwise require approval or requested information from, and the Texas golden gladecress and Neches authorization from a Federal agency for coordinated development of, this final River rose-mallow. The designated areas an action, may be indirectly impacted critical habitat designation with of critical habitat are presented on by the designation of critical habitat, the appropriate State resource agencies in maps, and the rule provides several legally binding duty to avoid Texas. We received comments from options for the interested public to destruction or adverse modification of TPWD, Governor’s Office, and TXDOT obtain more detailed location critical habitat rests squarely on the and have addressed them in the information, if desired. Federal agency. Therefore, this rule does Summary of Comments and not place an enforceable duty upon Recommendations section of the rule. Paperwork Reduction Act of 1995 (44 State, local, or Tribal governments, or From a federalism perspective, the U.S.C. 3501 et seq.) the private sector. The majority of lands designation of critical habitat directly This rule does not contain any new designated for critical habitat are owned affects only the responsibilities of collections of information that require by private landowners, although the Federal agencies. The Act imposes no approval by Office of Management and Federal Government and the State of other duties with respect to critical Budget under the Paperwork Reduction Texas own small portions. None of these habitat, either for States and local Act of 1995 (44 U.S.C. 3501 et seq.). government entities fit the definition of governments, or for anyone else. As a This rule will not impose recordkeeping small governmental jurisdiction. result, the rule does not have substantial or reporting requirements on State or Therefore, a Small Government Agency direct effects either on the States, or on local governments, individuals, Plan is not required. the relationship between the national businesses, or organizations. An agency

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may not conduct or sponsor, and a References Cited (greenstone, ironstone, bluestone), that person is not required to respond to, a A complete list of references cited in are found only on the Weches collection of information unless it this rulemaking is available on the Formation. Appropriate soils are in the displays a currently valid Office of Internet at http://www.regulations.gov at series classifications Nacogdoches clay Management and Budget control Docket No. FWS–R2–ES–2012–0064 and loam, Trawick gravelly clay loam, or number. Docket No. FWS–R2–ES–2013–0027 and Bub clay loam, ranging in slope from 1– upon request from the Corpus Christi 15 percent. National Environmental Policy Act (42 (iii) The outcrop ledges should occur Ecological Services Field Office (see FOR U.S.C. 4321 et seq.) within the glade such that Texas golden FURTHER INFORMATION CONTACT). gladecress plants remain unshaded for a It is our position that, outside the Authors significant portion of the day, and trees jurisdiction of the U.S. Court of Appeals The primary authors of this package should be far enough away from the for the Tenth Circuit, we do not need to outcrop(s) that leaves do not accumulate prepare environmental analyses are the staff members of the Corpus Christi Ecological Services Field Office. within the gladecress habitat. The pursuant to the National Environmental habitat should be relatively clear of Policy Act (NEPA; 42 U.S.C. 4321 et List of Subjects in 50 CFR Part 17 nonnative and native invasive plants, seq.) in connection with designating Endangered and threatened species, especially woody species, or with only critical habitat under the Act. We Exports, Imports, Reporting and a minimal level of invasion. published a notice outlining our reasons recordkeeping requirements, (3) Critical habitat does not include for this determination in the Federal Transportation. manmade structures (such as buildings, Register on October 25, 1983 (48 FR bridges, aqueducts, runways, well pads, 49244). This position was upheld by the Regulation Promulgation metering stations, roads and the filled U.S. Court of Appeals for the Ninth Accordingly, we are amending part areas immediately adjacent to Circuit (Douglas County v. Babbitt, 48 17, subchapter B of chapter I, title 50 of pavement, and other paved areas) and F.3d 1495 (9th Cir. 1995), cert. denied the Code of Federal Regulations, as set the land on which they are located 516 U.S. 1042 (1996)). forth below: existing within the legal boundaries on October 11, 2013. Government-to-Government PART 17—[AMENDED] (4) Critical habitat map units. Soil Relationship With Tribes Survey Geographic Dataset (SSURGO) ■ 1. The authority citation for part 17 was used as a base map layer. The In accordance with the President’s continues to read as follows: memorandum of April 29, 1994 SSURGO is an updated digital version (Government-to-Government Relations Authority: 16 U.S.C. 1361–1407; 1531– of the Natural Resources Conservation with Native American Tribal 1544; and 4201–4245, unless otherwise Service county soil surveys. The noted. Governments; 59 FR 22951), Executive SSURGO uses recent digital orthophotos ■ Order 13175 (Consultation and 2. In § 17.96, amend paragraph (a) by and fieldwork to update the original Coordination With Indian Tribal adding an entry for ‘‘Leavenworthia printed surveys. Data layers defining Governments), and the Department of texana (Texas golden gladecress)’’ in map units were created using the Texas golden gladecress’ restriction to the the Interior’s manual at 512 DM 2, we alphabetical order under the family Weches Formation and its tight readily acknowledge our responsibility and an entry for ‘‘Hibiscus association with the three soil map to communicate meaningfully with dasycalyx (Neches River rose-mallow)’’ units: Nacogdoches clay loam 1–5 recognized Federal Tribes on a in alphabetical order under the family percent slope, Trawick gravelly clay government-to-government basis. In Malvaceae, to read as follows: loam 5–15 percent slope, or Bub clay accordance with Secretarial Order 3206 § 17.96 Critical habitat—plants. loam 2–5 percent slope. In San of June 5, 1997 (American Indian Tribal * * * * * Augustine and Sabine Counties, these Rights, Federal-Tribal Trust (a) Flowering plants. soil types are restricted to the Weches Responsibilities, and the Endangered * * * * * Formation. Locations of all known Species Act), we readily acknowledge gladecress populations, as well as our responsibilities to work directly Family Brassicaceae: Leavenworthia texana (Texas golden gladecress) potential glade sites, were overlaid on with tribes in developing programs for the three afore-named soil mapping healthy ecosystems, to acknowledge that (1) Critical habitat units are depicted for San Augustine and Sabine Counties, units from the San Augustine and tribal lands are not subject to the same Sabine County’s soils survey. Potential controls as Federal public lands, to Texas, on the maps below. (2) Within these areas, the primary glade sites were identified using soil remain sensitive to Indian culture, and constituent elements of the physical or map units and a time series of aerial to make information available to tribes. biological features essential to the photographs that depicted changes in We determined that there are no tribal conservation of Leavenworthia texana land cover. The maps in this entry, as lands occupied by the Texas golden consist of the three primary constituent modified by any accompanying gladecress and the Neches River rose- elements identified for the species: regulatory text, establish the boundaries mallow at the time of listing that (i) Exposed outcrops of the Weches of the critical habitat designation. The contain the physical or biological Formation within Weches prairies. coordinates or plot points or both on features essential to conservation of the Within the outcrop sites, there must be which each map is based are available species, and no tribal lands unoccupied bare, exposed bedrock on top-level to the public at the Service’s internet by the Texas golden gladecress and the surfaces or rocky ledges with small site, at http://www.fws.gov/southwest/ Neches River rose-mallow that are depressions where rainwater or seepage es/ElectronicLibrary/ essential for the conservation of the can collect. The openings should ElectronicLibrary_Main.cfm, at http:// species. Therefore, we are not support Weches Glade native www.regulations.gov at Docket No. designating critical habitat for the Texas herbaceous plant communities. FWS–R2–ES–2013–0027, and at the golden gladecress and the Neches River (ii) Thin layers of rocky, alkaline field office responsible for this rose-mallow on tribal lands. soils, underlain by glauconite clay designation. You may obtain field office

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location information by contacting one addresses of which are listed at 50 CFR (5) Index map follows: of the Service regional offices, the 2.2. BILLING CODE 4310–55–P

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(6) Unit 1: Geneva Unit, Sabine County, Texas. Map of Unit 1 follows:

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(7) Unit 2: Chapel Hill, San Augustine County. Map of Unit 2 follows:

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(8) Unit 3: Southeast Caney Creek Glades, San Augustine County, Texas. Map of Units 3 and 4 follows:

(9) Unit 4: Northwest Caney Creek (1) Critical habitat units are depicted intermittent or perennial wetlands Glades, San Augustine County, Texas. for Cherokee, Harrison, Houston, within the Neches, Sabine, and Map of Unit 4 is depicted in paragraph Nacogdoches, and Trinity Counties, Angelina River floodplains or Mud and (8) of this entry. Texas, on the maps below. Tantabogue Creek basins that contain: * * * * * (2) Within these areas, the primary (i) Hydric alluvial soils and the constituent element of the physical or Family Malvaceae: Hibiscus dasycalyx potential for flowing water when found biological features essential to the in depressional sloughs, oxbows, (Neches River rose-mallow) conservation of Hibiscus dasycalyx is

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terraces, side channels, or sand bars; (4) Critical habitat map units. Data coordinates or plot points or both on and layers defining map units were created which each map is based are available (ii) Native woody or associated on a base of Strategic Mapping Program to the public at the Service’s internet herbaceous vegetation, largely with an (StratMap) digital orthophoto quarter- site, at http://www.fws.gov/southwest/ open canopy providing partial to full quadrangles (DOQQs), with layers for es/ElectronicLibrary/ElectronicLibrary_ sun exposure with few to no nonnative boundaries and roads. The Service’s Main.cfm, at http://www.regulations.gov species. National Wetlands Inventory maps for at Docket No. FWS–R2–ES–2013–0027, (3) Critical habitat does not include the appropriate USGS quads were also and at the field office responsible for manmade structures (such as buildings; bridges; aqueducts; runways; roads; well downloaded as layers. Critical habitat this designation. You may obtain field pads; metering stations; other paved units were mapped using Geographic office location information by areas; unpaved roads; and the filled Coordinate System (GCS), North contacting one of the Service regional areas immediately adjacent to American, 1983. The maps in this entry, offices, the addresses of which are listed pavement) and the land on which they as modified by any accompanying at 50 CFR 2.2. are located existing within the legal regulatory text, establish the boundaries (5) Index map follows: boundaries on October 11, 2013. of the critical habitat designation. The

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(6) Unit 1: State Highway 94 right-of- way, Trinity County, Texas. Map of Unit 1 follows:

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(7) Unit 2: Harrison site, Harrison County, Texas. Map of Unit 2 follows:

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(8) Unit 3: Lovelady, Houston County, Texas. Map of Unit 3 follows:

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(9) Unit 4: State Highway 204 right-of- way, Cherokee County, Texas. Map of Unit 4 follows:

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(10) Unit 5: Davy Crockett National Forest, Compartment 55, Houston County, Texas. Map of Unit 5 follows:

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(11) Unit 6: Davy Crockett National Forest, Compartment 11, Houston County, Texas. Map of Unit 6 follows:

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(12) Unit 7: Davy Crockett National Forest, Compartment 20, Houston County, Texas. Map of Unit 7 follows:

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(13) Unit 8: Davy Crockett National Forest, Compartment 16, Houston County, Texas. Map of Unit 8 follows:

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(14) Unit 9: Champion site, Trinity County, Texas. Map of Unit 9 follows:

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(15) Unit 10: Mill Creek Gardens, Nacogdoches County, Texas. Map of Unit 10 follows:

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(16) Unit 11: Camp Olympia, Trinity County, Texas. Map of Unit 11 follows:

* * * * * Dated: September 5, 2013. Michael Bean, Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–22083 Filed 9–10–13; 8:45 am] BILLING CODE 4310–55–C

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