2015-08277. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Zuni Bluehead Sucker

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule; reopening of comment period.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the January 25, 2013, proposed designation of critical habitat for the Zuni bluehead sucker (Catostomus discobolus yarrowi) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the draft economic analysis, draft environmental assessment, and amended required determinations of the proposed designation. In addition, we are proposing revisions to the proposed critical habitat boundaries that would decrease our total proposed critical habitat designation for the Zuni bluehead sucker from approximately 475.3 kilometers (291.3 miles) to approximately 228.4 kilometers (141.9 miles). We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the revisions to the proposed critical habitat designation described in this document, the associated draft economic analysis and draft environmental assessment, and the amended required determinations section. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

DATES:

We will consider comments received or postmarked on or before May 14, 2015. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.

ADDRESSES:

Document availability: You may obtain copies of the proposed rule, the draft economic analysis, and the draft environmental assessment on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0002 or by mail from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Written comments: You may submit written comments by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the critical habitat proposal, draft economic analysis, and draft environmental assessment by searching for Docket No. FWS-R2-ES-2013-0002, which is the docket for this rulemaking.

(2) By hard copy: Submit comments on the critical habitat proposal, draft economic analysis, and draft environmental assessment by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2013-0002; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg Pike MS: BPHC, Falls Church, VA 22041-3803.

We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section, below, for more information).

FOR FURTHER INFORMATION CONTACT:

Wally “J” Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE., Albuquerque, NM 87113; by telephone [phone]; or by facsimile 505-346-2542. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We are reopening the comment period for our proposed critical habitat designation for the Zuni bluehead sucker that was published in the Federal Register on January 25, 2013 (78 FR 5351). We are specifically seeking comments on the revisions to the proposed critical habitat designation described in this document, and on the draft economic analysis and the draft environmental assessment, which are now available, for the critical habitat designation; see ADDRESSES for information on how to submit your comments. We will consider information and recommendations from all interested parties. We are also particularly interested in comments concerning:

(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.) including whether there are threats to the subspecies from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent.

(2) Specific information on:

(a) The amount and distribution of Zuni bluehead sucker habitat;

(b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the subspecies, should be included in the designation and why;

(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

(d) What areas not occupied at the time of listing are essential for the conservation of the subspecies and why.

(3) Land use designations and current or planned activities in the subject areas and their probable impacts on proposed critical habitat.

(4) Information on the projected and reasonably likely impacts of climate change on the Zuni bluehead sucker and proposed critical habitat.

(5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, we seek information on any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.

(6) Information on the extent to which the description of economic impacts in the draft economic analysis is complete and accurate and the description of the environmental impacts in the draft environmental assessment is complete and accurate.

(7) Whether any areas we are proposing for critical habitat designation, and specifically proposed critical habitat on Tribal lands owned by the Navajo Nation and Zuni Pueblo, should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.

(8) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

(9) Information about the habitat conditions within the proposed critical habitat designation for the Zuni bluehead sucker, especially the quality and quantities of the primary constituent elements (PCEs), particularly within the Rio Nutria above the Tampico Draw confluence, Rio Pescado, and Cebolla Creek.

If you submitted comments or information on the proposed critical habitat rule (78 FR 5351; January 25, 2013) during the initial comment period from January 25, 2013, to March 26, 2013, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final rule. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments and other relevant information, we may, during the development of our final determination on the proposed critical habitat designation, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

You may submit your comments and materials concerning the proposed critical habitat designation, draft economic analysis, or draft environmental assessment by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov,, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, the draft economic analysis, and the draft environmental assessment, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0002, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule, the draft economic analysis, and the draft environmental assessment on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0002, or by mail from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the Zuni bluehead sucker in this document. For more information on previous Federal actions concerning the designation of critical habitat, refer to the proposed critical habitat rule, published in the Federal Register on January 25, 2013 (78 FR 5351). For more information on the Zuni bluehead sucker or its habitat, refer to the final listing rule, published in the Federal Register on July 24, 2014 (79 FR 43132) and the proposed critical habitat rule, published on January 25, 2013 (78 FR 5351), or contact the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

On January 25, 2013, we concurrently published a proposed rule to list as endangered and a proposed rule to designate critical habitat for the Zuni bluehead sucker (78 FR 5369 and 78 FR 5351, respectively). We proposed to designate approximately 475.3 kilometers (km) (291.3 miles (mi)) in three units in McKinley, Cibola, and San Juan Counties, New Mexico, and Apache County, Arizona as critical habitat. That proposal had a 60-day comment period, ending March 26, 2013.

After the publication of the proposed rules, we found there was substantial scientific disagreement regarding the taxonomic status of some populations that we considered Zuni bluehead sucker in the proposed listing rule. On January 9, 2014, we published in the Federal Register a document that reopened the comment period for the proposed listing rule and extended the final determination for the Zuni bluehead sucker by 6 months due to substantial disagreement regarding the Zuni bluehead sucker's taxonomic status in some locations (79 FR 1615). That comment period closed on February 10, 2014. Based on information received during the comment period, we revised the Zuni bluehead sucker's range in the final listing rule. An error was reported in the genetic data evaluated for the proposed listing rule (Schwemm and Dowling 2008, entire); the correct information led to the determination that the bluehead suckers in the Lower San Juan River watershed (proposed critical habitat Unit 3; San Juan River Unit) were bluehead suckers (Catostomus discobolus), not Zuni bluehead suckers (Catostomus discobolus yarrowi). Thus, the San Juan River Unit populations were no longer included in the final listing rule. We published in the Federal Register a final listing determination for the Zuni bluehead sucker on July 24, 2014 (79 FR 43132).

Critical Habitat

Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Changes From Previously Proposed Critical Habitat

In this document, we are proposing revisions to the critical habitat designation for the Zuni bluehead that we proposed on January 25, 2013 (78 FR 5351). These revisions are based on information we received during the comment period. The best available information identifies that Zuni bluehead sucker does not occur in proposed Unit 3 (San Juan River Unit), and a portion of proposed Unit 1 (Zuni River Unit) does not meet the definition of critical habitat. We are not proposing any revisions to proposed Unit 2 (Kinlichee Creek Unit). As a result of the removal of proposed Unit 3 and a portion of Unit 1 from our proposed critical habitat designation, the total amount of proposed critical habitat for the Zuni bluehead sucker is decreased from approximately 475.3 kilometers (km) (291.3 miles (mi)) to approximately 228.4 km (141.9 mi).

Based on new information regarding the proposed Zuni River Unit (Unit 1), we are removing the Rio Pescado above Pescado Dam from the proposed critical habitat within the Zuni River Mainstem (Subunit 1b). We originally proposed 107.8 km (67.0 mi) along the Zuni River, Rio Pescado, and Cebolla Creek as critical habitat for the Zuni bluehead sucker in Subunit 1b. Although we considered the entire subunit to be unoccupied, we stated in the proposed designation that this subunit is essential for the conservation of the Zuni bluehead sucker because it provides for connection between populations and also provides space for the growth and expansion of the subspecies in this portion of its historical range. However, the presence of primary constituent elements in this unit had not been investigated in any detail at the time of the proposed critical habitat designation. Based upon further investigation, this area of the Rio Pescado (above Pescado Dam) is a dry wash with no running water present except during periods of rain; this reach likely never had perennial flow. As a result, stream habitat (pools, runs, riffles) and substrate (gravel, cobble) are absent, and the area does not meet the habitat needs for any life stage, nor does it provide connectivity to any population of Zuni bluehead sucker, nor do we expect that it ever was habitat for the subspecies in the past. Therefore, we are removing this portion of Subunit 1b from our proposed critical habitat designation because suitable habitat is absent and is unlikely to develop, and the segment is not essential to the conservation of the subspecies. The removal of critical habitat above Pescado Dam in Subunit 1b will reduce the total proposed critical habitat designation for Unit 1 from 182 km (113.1 mi) to 131.8 km (81.9 mi).

In addition to these revisions to proposed Unit 1, we are removing the entire San Juan River Unit (proposed Unit 3) from our proposed critical habitat designation; this area includes 196.8 km (118.2 mi) of Navajo Nation lands. We originally proposed two subunits within the San Juan River Unit. The proposed Subunit 3a (Canyon de Chelly) included 187.9 km (112.7 mi) along Tsaile Creek, Wheatfields Creek, Whiskey Creek, Coyote Wash, Crystal Creek, and Sonsela Creek in Apache County, Arizona, and San Juan County, New Mexico. In the proposed critical habitat designation, we stated that the Zuni bluehead sucker occupies all stream reaches in this subunit, and the subunit contains all of the primary constituent elements of the physical or biological features essential to the conservation of the subspecies. The proposed Subunit 3b (Little Whiskey Creek) included 8.9 km (5.5 mi) along Little Whiskey Creek in San Juan County, New Mexico. We identified this area as unoccupied in the proposed critical habitat designation, but we concluded that the area was essential to the conservation of the subspecies.

Since the proposed critical habitat designation, we concluded in the final listing determination (79 FR 43132, July 24, 2014) that the bluehead suckers in the Lower San Juan River watershed should not be recognized as part of the Zuni bluehead sucker subspecies. Rather, the best scientific and commercial information available, including peer review comments we received during the comment period for the 6-month extension (79 FR 1615, January 9, 2014), indicates that these populations in the proposed San Juan River Unit (Unit 3) are bluehead suckers rather than Zuni bluehead suckers. Therefore, while the originally proposed Unit 3 may be important for bluehead suckers, the originally proposed Unit 3 can no longer be considered essential for the conservation of the Zuni bluehead sucker. Therefore, we are removing the San Juan River Unit from proposed critical habitat.

Revised Proposed Unit Descriptions for the Zuni Bluehead Sucker

Table 1, below, shows the occupancy, land ownership, and approximate areas of the revised proposed critical habitat units for the Zuni bluehead sucker. Following the table, we present a revised description of Subunit 1b.

Table 1—Revised Proposed Critical Habitat Units for Zuni Bluehead Sucker

[Area estimates reflect all land within critical habitat unit boundaries]

Stream segment	Occupied at the time of listing	Land ownership	Length of unit in kilometers (miles)
Unit 1-Zuni River Unit
Subunit 1a—Zuni River Headwaters
Agua Remora	Yes	Forest Service	6.6 (4.1)
		Private	2.4 (1.5)
Rio Nutria	Yes	Zuni Pueblo	38.9 (24.2)
		Forest Service	4.1 (2.6)
		State of New Mexico	1.8 (1.1)
		Private	14.2 (8.8)
Tampico Draw	Yes	Forest Service	2.3 (1.4)
		Private	3.7 (2.3)
Tampico Spring	Yes	Private	0.2 (0.1)
Total			74.2 (46.1)
Subunit 1b—Zuni River Mainstem
Zuni River	No	Zuni Pueblo	7.4 (4.6)
Rio Pescado	No	Zuni Pueblo	18.3 (11.4)
Cebolla Creek	No	Zuni Pueblo	3.7 (2.3)
		State of New Mexico	0.4 (0.2)
		Forest Service	6.4 (4.0)
		Private	21.4 (13.3)
Total			57.6 (35.8)
Unit 2—Kinlichee Creek Unit
Subunit 2a—Kinlichee Creek
Black Soil Wash	Yes	Navajo Nation	21.6 (13.4)
Kinlichee Creek	Yes	Navajo Nation	47.1 (29.3)
Scattered Willow Wash	Yes	Navajo Nation	18.2 (11.3)
Total			86.9 (54.0)
Subunit 2b—Red Clay Wash
Red Clay Wash	No	Navajo Nation	9.6 (6.0)
Total			9.6 (6.0)
Note: Area sizes may not sum due to rounding.

Unit 1: Zuni River Unit

Subunit 1b: Zuni River Mainstem: Subunit 1b consists of 57.6 km (35.8 mi) of potential Zuni bluehead sucker habitat along the Zuni River, Rio Pescado (below Pescado Dam), and Cebolla Creek in McKinley and Cibola Counties, New Mexico. Land within this subunit is primarily owned by Zuni Pueblo and private landowners, with a small amount of Forest Service and State land. The Zuni bluehead sucker historically occupied these streams but has not been found in the Zuni River or Rio Pescado since the mid-1990s (NMDGF 2004, p. 5), and has been extirpated from Cebolla Creek since at least 1979 (Hanson 1980, pp. 29, 34). We consider this unit unoccupied. When wetted, the Zuni River and Rio Pescado (below Pescado Dam) could provide important connections between occupied reaches in Subunit 1a and potential future populations in Cebolla Creek, which has been identified as containing suitable habitat in the past and could provide for significant population expansion. Therefore, this subunit is essential for the conservation of the Zuni bluehead sucker because it provides for connection between populations and also provides for the growth and expansion of the subspecies in this portion of its historical range.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if the Secretary determines the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided that such exclusion will not result in the extinction of the species.

When considering the benefits of inclusion of an area, we consider among other factors, the additional regulatory benefits that an area would receive through the analysis under section 7 of the Act addressing the destruction or adverse modification of critical habitat as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of identifying areas containing essential features that aid in the recovery of the listed species, and any ancillary benefits triggered by existing local, State or Federal laws as a result of the critical habitat designation.

When considering the benefits of excluding a particular area, we consider, among other things, whether exclusion of a specific area is likely to incentivize or result in the conservation of the species and its habitat; the continuation, strengthening, or encouragement of partnerships; or implementation of a conservation or management plan for the species and its habitat. However, we are considering exclusion of the proposed critical habitat areas owned by the Navajo Nation and Zuni Pueblo to the extent consistent with the requirements of section 4(b)(2) of the Act. Areas owned by the Zuni Pueblo that we are considering for exclusion from the final critical habitat designation include 38.9 km (24.2 mi) in Subunit 1a and 29.4 km (18.3 mi) in Subunit 1b. In addition, the Navajo Nation owns all of the proposed critical habitat in Subunit 2a (86.9 km (54 mi)) and Subunit 2b (9.6 km (6.0 mi)). For the reasons described below, the Service is also considering all of these Navajo Nation lands for exclusion under section 4(b)(2) of the Act.

In July 2012, we sent notification letters to the Tribes describing the exclusion process under section 4(b)(2) of the Act, and we have engaged in conversations with both Tribes about the proposed designation to the extent possible without disclosing predecisional information. In March 2013, we attended a coordination meeting with the Navajo Nation to discuss the proposed designation, and the Navajo Nation provided additional information regarding their land management practices and the potential for developing a fisheries management plan for sport and native fisheries on their lands. Since the meeting, we have received information from the Navajo Nation that they are in the process of amending the Navajo Nation Fisheries Management Plan to ensure that native fishes are the priority in stream fisheries management. We are also working with the Zuni Pueblo to develop a management plan for their lands. The Navajo Nation provided for review a draft management plan that specifically addresses the Zuni bluehead sucker, and we anticipate a final draft will be developed. Although we have not yet received a draft management plan from the Zuni Pueblo, we are working with the Pueblo to assist in the preparation of these documents to provide for the benefit of the subspecies and its habitat.

In addition to these management plans under development by the Tribes, the Service also is considering exclusion of these Tribal lands based on the working relationship we have established with the Tribes. We are aware that designation of critical habitat on tribal lands is generally viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. To this end, we have received public comments indicating that Tribes prefer to work with us on a government-to-government basis. Therefore, we are considering exclusion of these Tribal lands in proposed Units 1 and 2 to maintain our working relationships with the Tribes.

In the case of the Zuni bluehead sucker, the benefits of designating critical habitat include increasing public awareness of the presence of the Zuni bluehead sucker and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the Zuni bluehead sucker due to protection from destruction or adverse modification of critical habitat.

A final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. We will take into account public comments and carefully weigh the benefits of exclusion versus inclusion of these areas.

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a 4(b)(2) economic exclusion analysis.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Zuni bluehead sucker (IEc 2014, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result in probable incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. The screening analysis filters out particular areas of critical habitat that are already subject to such protections and assesses whether units are unoccupied by the species and may require additional management or conservation efforts as a result of the critical habitat designation for the species. This screening analysis combined with the information contained in our IEM are what we consider our draft economic analysis of the proposed critical habitat designation for the Zuni bluehead sucker and is summarized in the narrative below.

Executive Orders 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the Executive Orders' regulatory analysis requirements, our effects analysis under the Act, may take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. We assess to the extent practicable, the probable impacts, if sufficient data are available, to both directly and indirectly impacted entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Zuni bluehead sucker, first we identified, in the IEM dated June 21, 2013, probable incremental impacts associated with the following categories of activity: (1) Federal lands management (Forest Service, U.S. Bureau of Reclamation); (2) roadway and bridge construction; (3) agriculture; (4) grazing; (5) groundwater pumping; (6) in-stream dams and diversions; (7) storage and distribution of chemical pollutants; (8) dredging; (9) commercial or residential development; (10) timber harvest; and (11) recreation (including sport fishing and sport-fish stocking, off highway vehicle activity). We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Zuni bluehead sucker is present, Federal agencies are already required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the subspecies. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process that will also consider jeopardy to the listed subspecies.

In our IEM, we attempted to clarify the distinction between the effects that result from the subspecies being listed and those attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the Zuni bluehead sucker critical habitat. Because the designation of critical habitat for Zuni bluehead sucker was proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical and biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the Zuni bluehead sucker would also likely adversely affect the essential physical and biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this subspecies. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

The proposed critical habitat designation for the Zuni bluehead sucker totals approximately 228.4 km (141.9 mi), of which approximately 70 percent (161.1 km (100.1 mi)) is currently occupied by the subspecies. In these areas, any actions that may affect the subspecies or its habitat would also affect designated critical habitat and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the Zuni bluehead sucker. Therefore, only administrative costs are expected in approximately 70 percent of the proposed critical habitat designation. While this additional analysis will require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.

The remaining 67.3 km (41.8 mi) (30 percent of the total proposed critical habitat designation) are currently unoccupied by the subspecies but are essential for the conservation of the subspecies. In these unoccupied areas, any conservation efforts or associated probable impacts would be considered incremental effects attributed to the critical habitat designation. Within the 67.3 km (41.8 mi) of unoccupied critical habitat, few actions are expected to occur that would result in section 7 consultations or associated project modifications. In particular, Subunit 2b (9.6 km (6.0 mi)) occurs entirely on Navajo Nation lands, and based on the results of the coordination efforts with the Navajo Nation (see IEM), we do not anticipate that any projects will result in section 7 consultation within the proposed critical habitat areas on these lands. Subunit 1b (57.6 km (35.8 mi)) includes U.S. Forest Service (USFS), private, State, and Zuni Pueblo lands. Communications with affected entities indicate that critical habitat designation is likely only to result in more than just a few consultations in this unit, with minor conservation efforts that would likely result in relatively low probable economic impacts. While current projects are not planned in proposed critical habitat areas on Tribal lands, impacts to future Tribal planning efforts could be affected by proposed critical habitat designation. These future costs are unknown but expected to be relatively small given the projections by effected entities; they are unlikely to exceed $100 million in any single year and therefore would not be significant.

The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies and, in some cases, third parties, most frequently State agencies or municipalities. Activities we expect will be subject to consultations that may involve private entities as third parties are residential and commercial development that may occur on Tribal or private lands. However, based on coordination efforts with Tribal partners and State and local agencies, the cost to private entities within these sectors is expected to be relatively minor (administrative costs of less than $10,000 per consultation effort) and therefore would not be significant.

The probable incremental economic impacts of the Zuni bluehead sucker critical habitat designation are expected to be limited to additional administrative effort as well as minor costs of conservation efforts resulting from a small number of future section 7 consultations. This is due to two factors: (1) A large portion of proposed critical habitat stream reaches are considered to be occupied by the subspecies (70 percent), and incremental impacts of critical habitat designation, other than administrative costs, are unlikely; and (2) in proposed areas that are not occupied by Zuni bluehead sucker (30 percent), few actions are anticipated that will result in section 7 consultation or associated project modifications. At approximately $10,000 or less per consultation, in order to reach the threshold of $100 million of incremental administrative impacts in a single year, critical habitat designation would have to result in more than 11,000 consultations in a single year. Thus, the annual administrative burden is unlikely to reach $100 million. While current development or other projects are not planned in proposed critical habitat areas on Tribal lands, future Tribal planning efforts could be affected by proposed critical habitat designation, but future probable incremental economic impacts are not likely to exceed $100 million in any single year. Additionally, as described above, our consideration of exclusions on Tribal lands in proposed Units 1 and 2 may result in the probable economic impact being less than anticipated.

As we stated earlier, we are soliciting data and comments from the public on our consideration of economic impacts, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

Draft Environmental Assessment

The purpose of the draft environmental assessment, prepared pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), is to identify and disclose the environmental consequences resulting from the proposed action of designation of critical habitat for the Zuni bluehead sucker. In the draft environmental assessment, three alternatives are evaluated: Alternative A, the no action alternative; Alternative B, the proposed rule without exclusion or exemption areas; and Alternative C, the proposed rule with exclusion or exemption areas. The no action alternative is required by NEPA for comparison to the other alternatives analyzed in the draft environmental assessment. The no action alternative is equivalent to no designation of critical habitat for the Zuni bluehead sucker. Under Alternative B, critical habitat would be designated, as proposed, with no exclusions. Under Alternative C, critical habitat would be designated; however, Tribal lands on the Navajo Nation and Zuni Pueblo would be excluded from critical habitat designation. Our preliminary determination is that designation of critical habitat for the Zuni bluehead sucker will not have direct significant impacts on the human environment. However, we will further evaluate this issue as we complete our final environmental assessment.

As we stated earlier, we are soliciting data and comments from the public on the draft environmental assessment, as well as all aspects of the proposed rule. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the comment period on the environmental consequences resulting from our designation of critical habitat.

Required Determinations—Amended

In our January 25, 2013, proposed rule (78 FR 5351), we indicated that we would defer our determination of compliance with several statutes and executive orders until we had evaluated the probable effects on landowners and stakeholders and the resulting probable economic impacts of the designation. Following our evaluation of the probable incremental economic impacts resulting from the designation of critical habitat for the Zuni bluehead sucker, we have amended or affirmed our determinations below. Specifically, we affirm the information in our proposed rule concerning Executive Orders (E.O.s) 12866 and 13563 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, or Use), and the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). However, based primarily on our evaluation of the probable incremental economic impacts of the proposed designation of critical habitat for the Zuni bluehead sucker, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's Memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Based on our evaluation of the probable economic impacts of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself and, therefore, are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule will significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Therefore, a Small Government Agency Plan is not required.

National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et. seq.)

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA in conjunction with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1966)). However, when the range of the species includes States within the Tenth Circuit, such as that of Zuni bluehead sucker, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a NEPA analysis for critical habitat designation. In accordance with the Tenth Circuit, we have completed a draft environmental assessment to identify and disclose the environmental consequences resulting from the proposed designation of critical habitat. Our preliminary determination is that the designation of critical habitat for the Zuni bluehead sucker would not have direct significant impacts on the human environment. However, we will further evaluate this issue as we complete our final environmental assessment.

Government-To-Government Relationship With Tribes

In July 2012, we sent notification letters in to both the Navajo Nation and Zuni Pueblo describing the exclusion process under section 4(b)(2) of the Act, and we have engaged in conversations with both Tribes about the proposed designation to the extent possible without disclosing predecisional information. We coordinated with the Navajo Nation in May, October, and November 2012, to organize Zuni bluehead surveys on Navajo lands. We sent out notification letters in January and February 2013 notifying the Tribes that the proposed rule had published in the Federal Register to allow for the maximum time to submit comments. Following those letters, we scheduled a meeting with the Navajo Nation in March 2013, to discuss the proposed rule, and the Navajo Nation provided additional information regarding their land management practices and expressed their interest in developing a fisheries management plan for sport and native fisheries. In addition to the letters sent to Zuni Pueblo, a few telephone inquiries were initiated to see if the Pueblo would like to meet to discuss the proposed rule. At this time, no meeting has been scheduled. However, we are working with Zuni Pueblo to develop a management plan for their lands. In addition, we sent coordination letters on April 12, 2013, to both the Navajo Nation and Zuni Pueblo seeking information for our economic analysis. We will continue to communicate with all affected Tribes.

Authors

The primary authors of this document are the staff members of the New Mexico Ecological Services Field Office, Southwest Region, U.S. Fish and Wildlife Service.

List of Subjects in 50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Reporting and recordkeeping requirements
• Transportation

Proposed Regulation Promulgation

Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended on January 25, 2013 (78 FR 5351), as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

2. Amend § 17.95(e) by revising paragraphs (5), (6), and (7), and by removing paragraph (8), under the entry for “Zuni Bluehead Sucker ( Catostomus discobolus yarrowi)” as proposed to be amended on January 25, 2013 (78 FR 5351), to read as follows:

§ 17.95

Critical habitat—fish and wildlife.

* * * * *

(e) Fishes.

* * * * *

Zuni Bluehead Sucker (Catostomus discobolus yarrowi)

* * * * *

(5) Note: Index map of critical habitat units for the Zuni bluehead sucker follows:

(6) Unit 1: Zuni River Unit, McKinley and Cibola Counties, New Mexico. Map of Unit 1 follows:

(7) Unit 2: Kinlichee Creek Unit, Apache County, Arizona, and McKinley County, New Mexico. Map of Unit 2 follows:

* * * * *

Dated: March 23, 2015.

Michael Bean,

Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.