[Federal Register Volume 70, Number 152 (Tuesday, August 9, 2005)]
[Rules and Regulations]
[Pages 46304-46333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15486]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Listing Roswell
springsnail, Koster's springsnail, Noel's amphipod, and Pecos assiminea
as Endangered With Critical Habitat; Final Rule
Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI15
Endangered and Threatened Wildlife and Plants; Listing Roswell
springsnail, Koster's springsnail, Noel's amphipod, and Pecos assiminea
as Endangered With Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), list the
Roswell springsnail (Pyrgulopsis roswellensis), Koster's springsnail
(Juturnia kosteri), and Noel's amphipod (Gammarus desperatus) as
endangered and the Pecos assiminea (Assiminea pecos) as endangered with
critical habitat under the Endangered Species Act of 1973, as amended
(Act). These four invertebrates occur at sinkholes, springs, and
associated spring runs and wetland habitats. They are found at one site
in Chaves County, New Mexico, and Pecos assiminea is also found at one
site in Pecos County, Texas, and one site in Reeves County, Texas.
These three snails and one amphipod have an exceedingly limited
distribution, low mobility, and fragmented habitat. They are imperiled
by introduced species, surface and groundwater contamination, oil and
gas extraction activities within the supporting aquifer and watershed,
local and regional groundwater depletion, severe drought, and direct
loss of their habitat (e.g., through burning or removing marsh
vegetation, or flooding of habitat). This final rule will implement the
Federal protection and recovery provisions of the Act for these
invertebrate species. We are also designating critical habitat for the
Pecos assiminea in Texas.
DATES: This final rule is effective September 8, 2005.
ADDRESSES: Supporting documentation for this rulemaking is available
for public inspection, by appointment, during normal business hours at
the U.S. Fish and Wildlife Service, New Mexico Ecological Services
Field Office, 2105 Osuna Road NE., Albuquerque, New Mexico 87113.
FOR FURTHER INFORMATION CONTACT: Susan MacMullin, Field Supervisor, New
Mexico Ecological Services Field Office (telephone, 505-761-4706;
facsimile, 505-346-2542).
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
this final listing determination. For more information on the four
invertebrates, refer to the February 12, 2002, proposed rule (67 FR
6459). However, some of this information is discussed in our analyses
below, such as the summary of factors affecting the species.
Springsnails
The Permian Basin of the southwestern United States contains one of
the largest carbonate (limestone) deposits in the world (New Mexico
Department of Game and Fish (NMDGF) 1998). Within the Permian Basin of
the Southwestern United States lies the Roswell Basin. Located in
southeastern New Mexico, this Basin has a surface area of around 31,080
square kilometers (km) (12,000 square miles [mi]) and generally begins
north of Roswell, New Mexico, and runs to the southeast of Carlsbad,
New Mexico. The Roswell Basin contains a deep artesian aquifer and a
shallow surficial aquifer. The action of water on soluble rocks (e.g.,
limestone and dolomite) has formed abundant ``karst'' features such as
sinkholes, caverns, springs, and underground streams (White et al.
1995). These hydrogeological formations create unique settings
harboring diverse assemblages of flora and fauna. The isolated
limestone and gypsum springs, seeps, and wetlands located in and around
Roswell, New Mexico, and Pecos and Reeves Counties, Texas, provide the
last known habitats in the world for several endemic species of fish,
plants, mollusks, and crustaceans. These species include the Roswell
springsnail and Koster's springsnail of the freshwater snail family
Hydrobiidae, Pecos assiminea of the snail family Assimineidae, and
Noel's amphipod (Gammaridae). These species are distributed in
isolated, geographically separate populations, and likely evolved from
parent species that once enjoyed a wide distribution during wetter,
cooler climates of the Pleistocene. Such divergence has been well-
documented for aquatic and terrestrial macroinvertebrate groups within
arid ecosystems of western North America (e.g., Taylor 1987; Metcalf
and Smartt 1997; Bowman 1981; Cole 1985).
North American snails of the family Hydrobiidae inhabit a great
diversity of aquatic systems from surface to cave habitats, small
springs to large rivers, and high energy riffles to slack water pools
(Wu et al. 1997). Snails of the family Assimineidae are typically found
in coastal brackish waters or along tropical and temperate seacoasts
worldwide (Taylor 1987). Inland species of the genus Assiminea are
known from around the world, and in North America they occur in
California (Death Valley National Monument), Utah, New Mexico, Texas
(Pecos and Reeves Counties), and Mexico (Bols[oacute]n de Cuatro
C[iacute]enegas).
The Roswell springsnail and Koster's springsnail are aquatic
species. These snails have lifespans of 9 to 15 months and reproduce
several times during the spring through fall breeding season (Taylor
1987; Pennak 1989; Brown 1991). Snails of the family Hydrobiidae are
sexually dimorphic (there are characteristic differences between males
and females), with females being characteristically larger and longer-
lived than males. As with other snails in the family, the Roswell
springsnail and Koster's springsnail are completely aquatic but can
survive in seepage areas, as long as flows are perennial and within the
species' physiological tolerance limit. These two snails occupy spring
heads and runs with variable water temperatures (10 to 20 [deg] Celsius
[C] (50 to 68 [deg] Fahrenheit [F])) and slow-to-moderate water
velocities over compact substrate ranging from deep organic silts to
gypsum sands and gravel and compact substrate (NMDGF 1998). Conversely,
the Pecos assiminea seldom occurs immersed in water, but prefers a
humid microhabitat created by wet mud or beneath vegetation mats,
typically within a few centimeters (cm) (inches (in)) of running water.
Gastropods (snails) are a class of mollusks with a body divided
into a foot and visceral mass and a head that usually bears eyes and
tentacles. Like most gastropods, the Roswell springsnail, Koster's
springsnail, and Pecos assiminea feed on algae, bacteria, and decaying
organic material (NMDGF 1988). They will also incidentally ingest small
invertebrates while grazing on algae and detritus (dead or partially
decayed plant materials or animals).
These snails are fairly small; Koster's springsnail is the largest
of the three snails, and is about 4 to 4.5 millimeters (mm) (0.16 to
0.18 in) long with a pale tan shell that is narrowly conical with up to
4\1/4\ to 5\3/4\ whorls or twists. The Roswell springsnail is 3 to 3.5
mm (0.12 to 0.14 in) long with a narrowly conical tan shell with up to
5 whorls. Pecos assiminea is the smallest of the three, with a shell
length of 1.55 to 1.87 mm (0.06 to 0.07 in) and a thin, nearly
transparent chestnut-brown shell that is regularly conical with up to
4\1/2\ strongly incised (shouldered) whorls and a broad oval opening.
Although their shells are
[[Page 46305]]
similar, the Roswell springsnail is distinguished from Koster's
springsnail by a dark, amber operculum (a lid which closes the shell
opening when the animal is retracted) with white spiral streaks, while
that of Koster's springsnail is nearly colorless. The genus Assiminea
can be determined from other snail genera by an almost complete lack of
tentacles, leaving the eyes within the tips of short eye stalks (Taylor
1987).
Taylor (1987) first described the Roswell springsnail from a
``seepage'' along the west side of an impoundment in Area 7 at Bitter
Lake National Wildlife Refuge (BLNWR, Refuge), Chaves County, New
Mexico. Since then, Mehlhop (1992, 1993) has documented the species on
the BLNWR and in March 1995 also found it in a spring on private land
(i.e., North Spring) east of Roswell (NMDGF 1998). In 2004, the Roswell
springsnail was determined to have been extirpated from this private
land through habitat alteration (NMDGF 2005b). Monitoring efforts at
BLNWR (1995 to 1998) led to the discovery of Roswell springsnail
populations in Bitter Creek, the Sago Springs Complex, and a drainage
canal along the west shoreline of Area 6. The Roswell springsnail is
currently known only from BLNWR with the core population in the Sago
Springs Complex and Bitter Creek. The Sago Springs complex is
approximately 0.3 km long (1,000 linear feet), half of which is
subterranean with flow in the upper reaches restricted to sinkholes.
Bitter Creek is six times longer than the Sago Springs Complex and has
a total length of 1.8 km (1.1 miles). Monthly monitoring and ecological
studies of the Roswell springsnail initiated at BLNWR in June 1995 are
ongoing (NMDGF 2005b, 2005c).
Roswell springsnail formerly occurred in several other springs in
the Roswell area, but these habitats have dried up apparently due to
groundwater pumping and no longer contain the species (Cole 1981;
Taylor 1983, 1987). As noted, the Roswell springsnail historically
occurred on private land at North Spring, but could not be found during
surveys in 2004 (NMDGF 2005b). Pleistocene fossils of the Roswell
springsnail are known from Berrendo Creek and the Pecos River in Chaves
County (Taylor 1987). No populations are currently known from these
areas.
Taylor (1987) first reported Koster's springsnail from Sago Spring
at BLNWR. Another population was documented in 1995 at North Spring on
private land east of Roswell and a second population was found at BLNWR
on the west side of Area 3 during extensive surveys conducted between
1998 and 2001 (Warrick 2005). The species formerly occurred in several
other springs in the Roswell area, but these habitats have since dried
up due to groundwater pumping and no longer contain the species (Cole
1981; Taylor 1983, 1987; NMDGF 2005b). Pleistocene fossils of Koster's
springsnail are known from North Spring River and South Spring Creek in
Chaves County (Taylor 1987). Monthly monitoring and ecological studies
of Koster's springsnail initiated at BLNWR in 1995 indicate the species
is most abundant in the deep organic substrates of Bitter Creek (NMDGF
1998, 2005b). It also occurs at the Sago Springs Complex, but in lower
numbers. The species has not been found in recent times along the
western boundary of Area 3 in BLNWR (NMDGF 2005b). Koster's springsnail
has recently been extirpated at North Spring east of Roswell (NMDGF
2005b).
Pecos assiminea is presently known from two sites at BLNWR, Chaves
County, New Mexico, from a large population at Diamond Y Spring and its
associated drainage (Diamond Y Springs Complex), Pecos County, Texas,
and at East Sandia Spring, Reeves County, Texas. It was thought that
Pecos assiminea occurred sporadically throughout the Bolson de Cuatro
Cinegas, Coahuila, Mexico (Taylor 1987); however, recent investigations
indicate that the population in Mexico might be a different species
(Hershler 2005). Investigations are currently underway to determine
whether the animals found in the vicinity of Coahuila, Mexico, are
Pecos assiminea (Hershler 2005).
Monitoring and ecological studies of Pecos assiminea initiated at
BLNWR in 1995 showed the snail to be typically absent from substrate
samples. Populations of Pecos assiminea occur sporadically along Bitter
Creek, and a dense population was confirmed on moist vegetation and on
muddy surfaces within 1 cm (0.39 in) of water in 1999 in an emergent
marsh plant community around the perimeter of a sinkhole within the
Sago Springs Complex (NMDGF 1999).
Noel's amphipod
Noel's amphipod, in the family Gammaridae, is a small freshwater
crustacean. Inland amphipods are sometimes referred to as freshwater
shrimp. Noel's amphipod is brown-green in color with elongate, kidney-
shaped eyes, and flanked with red bands along the thoracic and
abdominal segments, often with a red dorsal stripe. Males are slightly
larger than females, and individuals range from 8.5 to 14.8 mm (0.33 to
0.58 in) long (Cole 1981, 1985).
Gammarids commonly inhabit shallow, cool, well-oxygenated waters of
streams, ponds, ditches, sloughs, and springs (Holsinger 1976; Pennak
1989). Because they are light-sensitive, these bottom-dwelling
amphipods are active mostly at night and feed on algae, submergent
vegetation, and decaying organic matter (Holsinger 1976; Pennak 1989).
Young amphipods depend on microbial foods, such as algae and bacteria,
associated with aquatic plants (Covich and Thorp 1991). Most amphipods
complete their life cycle in one year and breed from February to
October, depending on water temperature (Pennak 1978). Amphipods form
breeding pairs that remain attached for 1 to 7 days at or near the
substrate while continuing to feed and swim (Bousfield 1989). They can
produce from 15 to 50 offspring, forming a ``brood.'' Most amphipods
produce one brood but some species produce a series of broods during
the breeding season (Pennak 1978).
Noel's amphipod is one of three species of endemic amphipods of the
Pecos River Basin occurring from Roswell, New Mexico, south to Fort
Stockton, Texas, known collectively as the Gammarus-pecos complex (Cole
1985). Noel's amphipod is currently known from the following sites at
BLNWR: Sago Springs Complex, Bitter Creek, along the western boundary
of Area 6, Area 7 spring-ditch, and Hunter Marsh. It is also found in a
spring just outside the BLNWR boundary on private property owned by the
City of Roswell (G. Warrick 2005). Noel's amphipod was first described
by Cole (1981) from a 1967 collection of amphipods taken from North
Spring, east of Roswell. Based on morphological similarities, specimens
collected from Lander Springbrook near Roswell were also identified as
Noel's amphipod (Cole 1981). The amphipod was extirpated from Lander
Springbrook between 1951 and 1960, and the North Spring population was
lost between 1978 and 1988. The extirpations were attributed to
regional groundwater depletions and habitat alterations (spring
channelization) respectively (Cole 1981, 1985).
Previous Federal Actions
On November 22, 1985, we received a petition from Mr. Harold F.
Olson, Director of the NMDGF, to add 11 species of New Mexican mollusks
to the Federal list of endangered and threatened wildlife. Roswell
springsnail (Pyrgulopsis roswellensis, formerly Fontelicella
roswellensis (Hershler
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1994)), Koster's springsnail (Juturnia kosteri, formerly Durangonella
kosteri and Tryonia kosteri (Hershler et al. 2002)), and Pecos
assiminea were among the 11 species. We determined that the petition
presented substantial information that the requested action may be
warranted and published a positive 90-day petition finding in the
Federal Register on August 20, 1986 (51 FR 29671). A subsequent 12-
month finding published in the Federal Register on July 1, 1987 (52 FR
24485), concluded that the petitioned action was warranted but
precluded by other higher priority listing actions.
On August 29, 2001, the Service announced a settlement agreement in
response to litigation by the Center for Biological Diversity, the
Southern Appalachian Biodiversity Project, and the California Native
Plant Society. Terms of the agreement required that we submit to the
Federal Register, on or by February 6, 2002, a 12-month finding and
accompanying proposed listing rule and proposed critical habitat
designation for the four invertebrates addressed in this final rule.
This agreement was entered by the court on October 2, 2001 (Center for
Biological Diversity, et al. v. Norton, Civ. No. 01-2063 (JR)
(D.D.C.)). A proposed rule to list the four invertebrates as endangered
with critical habitat was published in the Federal Register on February
12, 2002 (67 FR 6459). On May 31, 2002, we reopened the public comment
period for 90 days (67 FR 6459). In addition, we published newspaper
notices inviting public comment and announcing the public hearing in
the following newspapers in New Mexico: the Carlsbad Current-Argus, the
Artesia Daily Press, the Roswell Daily Record, and the Albuquerque
Journal. On June 18, 2002, we held a public hearing in Carlsbad, New
Mexico, to solicit comments on the proposed rule.
On May 4, 2005, we announced the availability of the draft economic
analysis and draft environmental assessment for the proposal to
designate critical habitat for the four invertebrates (70 FR 23083).
Section 4(b)(2) of the Act requires that we consider economic impacts,
impacts to national security, and other relevant impacts prior to
making a final decision on what areas to designate as critical habitat.
We solicited data and comments from the public on these draft
documents, as well as on all aspects of our proposal, so that we could
consider these in this final determination.
Summary of Comments and Recommendations
In the notices announcing the public comment periods, we requested
that all interested parties submit comments on the proposed listings
and critical habitat designation, as well as on the associated draft
economic analysis and draft environmental assessment, and we also
requested information pertaining to any actions that affect the four
invertebrates; their current status, ecology, distribution, and
threats; and management or conservation efforts in place. We requested
this information in order to make a final listing determination based
on the best scientific and commercial data currently available. We also
solicited four independent experts who are familiar with these species
to peer review the proposed listing and critical habitat designation.
Two of the peer reviewers submitted substantial comments, but did not
support or oppose the proposal. During the public comment periods, we
also received 967 written comments (952 written comments were
identical, in the form of automatically generated emails), and 7
speakers gave verbal comments at the public hearing. Of those oral
comments, one supported the proposal, two were opposed to the proposal,
and four provided additional information. Of the written comments, 956
supported the proposal, 8 were opposed, and 3 were neutral but provided
information. All substantive information provided during the public
comment periods, written and verbal, either has been incorporated
directly into this final determination or is addressed below. Similar
comments are grouped together by issue.
Issue 1: Biological Concerns
(1) Comment: It is unlikely that Melanoides tuberculata, a fully
aquatic animal, competes with Pecos assiminea, a semi-terrestrial
species. On the other hand, the presence of introduced Melanoides
tuberculata could pose a serious threat to aquatic species such as
Koster's springsnail, Roswell springsnail, or Noel's amphipod.
Our Response: The commenter is correct. It is unlikely that
Melanoides would be a competitor with Pecos assiminea and it is very
likely that it may be a serious threat to Koster's springsnail, Roswell
springsnail, and Noel's amphipod. We have a more complete discussion of
the threat of introduced species under the section, ``Summary of
Factors Affecting the Species'' below.
(2) Comment: The NMDGF concluded in 1999 that all four invertebrate
species are stable on the BLNWR. There is no evidence that these
species are at risk.
Our Response: All four invertebrates are classified as Endangered
by the NMDGF under the Wildlife Conservation Act of 1974 (i.e., State
Endangered Species Act) (19 NMAC 33.6.8). As such, the NMDGF supports
the listing and critical habitat designation for these species. They
report that recent (1992 to present) population and habitat monitoring
on BLNWR has documented the persistence of these species; however, they
still face significant threats (Lang 2002, NMDGF 2005a). Our current
understanding of the threats to the four invertebrates and their
habitat are fully described under the ``Summary of Factors Affecting
the Species'' section below.
(3) Comment: Oil and gas development activities in the vicinity of
BLNWR pose no threat to the four invertebrates because the New Mexico
Oil Conservation Division regulations for installation of oil and gas
wells provide protections to limit impacts.
Our Response: The New Mexico Interstate Stream Commission (NMISC)
and NMDGF submitted information that is consistent with the proposed
rule, which indicated oil and gas, residential, or industrial
development on the private lands immediately west of BLNWR may
constitute a threat to spring water quality (Balleau et al. 1999;
McCord et al. 2005; NMDGF 2005a) (see ``Summary of Factors Affecting
the Species'' section below). The NMDGF also presented an overview of
oil and gas production and potential risk to the four invertebrates
(NMDGF 2005a). They note that, although there are no known cases of
groundwater contamination by leaking oil or gas wells in the source-
water capture zone for the Middle Area of BLNWR (discussed further
under ``Water Quality'' section below), groundwater contamination from
petroleum products has been documented north of Roswell (NMDGF 2005a).
There is a history of oil and gas industry operations on and
adjacent to BLNWR, which have resulted in the spillage of oil and brine
onto the BLNWR. For example, annual reports from 1994 to 1998 document
four oil and gas related accidents on and immediately adjacent to BLNWR
(NMDGF 2002; NMISC 2002). In May 1993, a private corporation began
drilling a well on adjacent Bureau of Land Management (BLM) lands when
they hit a water flow with a high chloride content (6,000 parts per
million). The salt water was eventually contained, but serves as an
example of
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potential issues from oil and gas development (Service 2002).
Additionally, in 1996, about 70 to 80 barrels of oil spilled within a
berm on an adjacent oil well located on BLM lands (Service 2002). In
1997, an additional 11 barrels of crude oil leaked into the BLNWR
boundary (Service 2002). In 1998, BLNWR personnel documented probable
violations of New Mexico Oil Conservation Division regulations (e.g., a
substandard pit for drilling cuttings, fire hazards, lack of spillage
notification) (Service 2002; NMISC 2002). In 2000, there was an
additional oil spill on adjacent BLM lands (NMISC 2002).
Development of another 91 natural gas and oil wells has been
anticipated on lands managed by the BLM within the source-water capture
zone (NMDGF 2005a). Contamination of groundwater from underground leaks
has the potential to occur in the future, but existing drilling and
casing regulations by the State of New Mexico's Oil Conservation
Division and requirements of the BLM for oil and gas drilling and
operation in cave and karst areas (BLM 1997) are likely to
substantially reduce this probability. The NMDGF indicates that a more
likely pathway for petroleum-product contamination of groundwater is
from leaking storage and transport facilities from the well site
downstream to processing facilities (NMDGF 2005a). These may include
leaking pipelines, overflowing storage tanks, leaking valves, and other
sources. These data indicate that oil and gas production and
distribution continue to threaten the four invertebrates.
(4) Comment: Contamination threats to the four invertebrates are
not limited to oil and gas development, but also include fire effects.
Immediate and short-term adverse effects have been demonstrated from
the March 2000 Sandhill Fire (NMISC 2002).
Our Response: NMDGF recently reviewed the effects of fire on the
invertebrates (NMDGF 2005a). We agree with their assessment and
summarize much of the information below. We recognize that populations
of these four invertebrates have the potential to be eliminated or
habitat may be rendered unsuitable if fire results in complete
combustion of vegetation and litter, high soil temperatures,
significant amounts of ash flow, large changes in water chemistry
(e.g., dissolved oxygen), or extensive vegetation removal resulting in
soil and litter drying. As such, we have also revised the ``Summary of
Factors Affecting the Species'' section below to include a more
detailed analysis on the threat of wildfire.
(5) Comment: Much of the literature is overly general in nature and
is not site-or species-specific. Including such citations leaves
readers to conclude that a particular author made a statement or
presented data that specifically applies to the threats you believe
exist for these invertebrates.
Our Response: In determining and evaluating threats to the four
invertebrates, we used the best scientific and commercial data
available. This included articles published in peer-reviewed journals,
data collected by NMDGF, and comments received on the proposed rule,
draft economic analysis, and environmental assessment. You are correct
that some of our citations are not specific to these species or the
geographic area. Nevertheless, the citations offer evidence that
certain threats are real for the species because similar examples have
been documented elsewhere.
(6) Comment: The allegation that fire caused significant decreases
in invertebrate populations implies that quantitative sampling was
conducted. The Service and NMDGF rarely conduct quantitative sampling,
and the case may be overstated in your proposal.
Our Response: Extensive quantitative pre- and post-fire monitoring
was conducted by the NMDGF (NMDGF 2005c). Immediately following the
Sandhill fire, Lang (2001) documented a decrease in species richness of
localized populations of aquatic macroinvertebrates. For example, in
1996 densities of Noel's amphipod at Dragonfly Spring were estimated at
11,625 per square meter (m\2\). Out of 74 post-fire monitoring
collections conducted from March 2000 to August 2004, only four Noel's
amphipod were found (NMDGF 2005c).
(7) Comment: Does non-native vegetation such as saltcedar (Tamarix
sp.) threaten the invertebrates? Will New Mexico's ability to eradicate
or manage saltcedar be restricted if these species are listed?
Our Response: Saltcedar management or eradication activities would
be subject to section 7 consultation requirements if a proposed project
has the potential to affect the four invertebrate species or designated
critical habitat. However, the environmental assessment found that some
activities may be considered to be of benefit to the four invertebrate
species (Service 2005). Examples of such beneficial actions could
include removal and control of non-native vegetation, restoration of
wetlands, and removal of non-native species.
Non-native saltcedar is present on BLNWR and The Nature Conservancy
(TNC) lands at the Diamond Y Spring and East Sandia Springs preserves
(Service 2005). This non-native species is currently being controlled
where possible by BLNWR and TNC staff. Control and removal of non-
native vegetation was identified as a factor responsible for
extirpation of localized populations of Pecos assiminea in Mexico and
New Mexico (Taylor 1987). However, it is possible that removal and
control of saltcedar will improve habitat and hydrologic conditions at
springs and seeps (Service 2005). See also ``Factor C'' under the
``Summary of Factors Affecting the Species'' section below.
(8) Comment: Have laboratory toxicity tests been conducted to
determine the four invertebrates' sensitivity to low oxygen, sediments,
or contaminants?
Our Response: To our knowledge, laboratory tests have not been
conducted specifically on these species to determine their sensitivity
to low oxygen, sediments, or contaminants.
(9) Comment: Equating the springsnails with Higgin's eye mussel is
inappropriate. Clearly, clams and mussels are very different creatures
than springsnails.
Our Response: The commenter is correct that mussels that live in
the substrate and filter water to obtain nutrition are very different
from springsnails that crawl on the substrate and scrape periphyton
(various forms of algae and diatoms) off the substrate. Unfortunately,
very little research has been done specifically on the effects of
contaminants on springsnails and mussels are one of the most closely
related groups available for comparison. However, this reference has
been removed from this final rule.
(10) Comment: The relevance of South Spring River is not apparent
in your discussion of Noel's amphipod. The South Spring River has been
dry for many years.
Our Response: The discussion of Noel's amphipod and the dry South
Spring River was included to document that this previously known
population has likely been extirpated.
(11) Comment: Are crayfish known predators of springsnails?
Our Response: Crayfish are known to consume aquatic macrophytes and
algae that springsnails rely on for grazing and egg laying (Service
2004b). In addition, crayfish have been cited as a threat and are known
to directly prey upon aquatic invertebrates such as springsnails (e.g.,
Three Forks springsnail (Pyrgulopsis trivialis)) (Arizona Game and Fish
Department 2003; Service 2004b). Nevertheless, we have not observed any
crayfish within habitat occupied by
[[Page 46308]]
these four invertebrates, with the exception of Diamond Y Springs
Complex where an undescribed native crayfish occurs. See also ``Factor
C'' under the ``Summary of Factors Affecting the Species'' section
below.
(12) Comment: Effects to these species from prolonged drought,
nutrient enrichment, and sedimentation are all unsubstantiated.
Our Response: There is no doubt that prolonged drought leading to
spring diminishment or drying would have a negative impact on the
invertebrates. Little research has been done specifically on
springsnails to document their response to elevated nutrients,
contaminants, or sedimentation. However, based on biological principles
and effects observed in other related invertebrates, we can draw
reasonable conclusions about what we would expect to happen to these
species.
(13) Comment: Have surveys for these species been conducted at
Bottomless Lakes State Park?
Our Response: Surveys were conducted on Bottomless Lakes State Park
during the 1990s by the NMDGF and during the 1980s by D.W. Taylor.
Perennial sinks west-northwest of Lea Lake and its outflow to the
south, which eventually flows to the BLM Overflow Wetlands, were also
surveyed for these invertebrates (Lang 2005). Although potentially
suitable habitat for the four invertebrates is available at Bottomless
Lakes State Park, these surveys failed to document their occurrence
(New Mexico Energy Minerals and Natural Resources Department 2000;
NMDGF 2005b).
(14) Comment: A new population of Noel's amphipod has been recently
discovered on BLNWR.
Our Response: The commenter is correct. Noel's amphipod currently
persists on BLNWR at the Sago Spring wetland complex (including
Sinkhole No. 31), Bitter Creek, and along the western boundary of Area
6, in the west ditch along Area 7, and along the northwest fenceline of
Hunter Marsh (NMDGF 2005c). A new population was discovered in 2004 in
a spring belonging to the City of Roswell that borders BLNWR. This
population is included in the listing portion of this final rule, but
is not within the designation of critical habitat. The critical habitat
designation does not include these private lands because section
4(b)(4) of the Act and the Administrative Procedure Act (5 U.S.C. 551
et seq.) requires that areas designated as critical habitat must first
be proposed as such. Thus, we cannot make additions in this final rule
to include areas that were not included in the proposed rule.
Designation of such areas would require a new or revised proposal and
subsequent final rule. Should critical habitat be considered in the
future for the Noel's amphipod, we will consider this area in any such
determination.
(15) Comment: The ongoing drought appears to be more of a threat to
these species than groundwater pumping.
Our Response: We agree. Please refer to the ``Summary of Factors
Affecting the Species'' for further discussion of this issue.
(16) Comment: The proposed rule lacks documentation of groundwater
or surface contamination threats to the four invertebrates.
Our Response: Based upon public comments and information received,
we have updated our analysis to include our current understanding of
the threats from groundwater or surface contamination to the four
invertebrates. Please see the ``Summary of Factors Affecting the
Species'' section.
(17) Comment: The Pleistocene Era was mentioned several times in
the proposed rule. Does the Service intend to recover these species to
levels that were present during this historic era?
Our Response: No, section 4 of the Act and its implementing
regulations (50 CFR part 424) set forth the procedures for adding
species to the List of Endangered and Threatened Wildlife and Plants. A
species may be determined to be endangered or threatened due to one or
more of the five factors described in section 4(a)(1) of the Act. As
detailed below in our analysis, we examine the listing factors and
their application to the four invertebrates. The discussion of these
species in relation to the Pleistocene Era was presented as evidence of
an apparent historical decline in the numbers, range, and distribution.
We did not intend to suggest that the four invertebrates need to be
restored to Pleistocene Era levels to be considered recovered.
(18) Comment: Is there a plan to control introduced or exotic
snails or other species that may prey upon or compete with the four
invertebrates?
Our Response: BLNWR is managed for wildlife conservation, which
includes restoration and maintenance of biological integrity,
diversity, and environmental health. Major land management activities
on BLNWR include water level management in impoundments to provide
habitat for waterfowl, shorebirds, and other groups of species, habitat
restoration, prescribed burning, control of saltcedar, and management
of noxious weeds (Service 2005a). Management or removal of exotic
species that compete with these invertebrates will be evaluated in the
development of a recovery plan, but this management is currently
conducted as appropriate. For example, removal of non-native fishes
from Diamond Y Springs Complex using antimycin, netting, and trapping
was conducted in the past for conservation of Leon Springs pupfish
(Service 2005a). For further information and analysis concerning exotic
species, please refer to the ``Factor C'' under the ``Summary of
Factors Affecting the Species'' section.
Issue 2: Procedural and Legal Compliance
(19) Comment: In the proposed rule for the four invertebrate
species, restrictions are proposed on groundwater pumping within the
Pecos Basin, which would have serious effects on the water supply and
use of water by the citizens of New Mexico.
Our Response: We disagree, the proposed rule did not propose
restrictions on groundwater pumping. Consistent with our Interagency
Cooperative Policy for Endangered Species Act Section 9 Prohibitions,
published in the Federal Register on July 1, 1994 (59 FR 34272), we
identified in the proposed rule those activities that we believe would
or would not constitute a violation of the prohibitions identified in
section 9 of the Act. The final Federal listing of these four
invertebrates under the Act requires that Federal agencies consult with
the Service on activities involving Federal funding, a Federal permit,
Federal authorization,or other Federal actions. Consultation (under
section 7 of the Act) is required when activities have the potential to
affect the four invertebrates or designated critical habitat. The
consultation will analyze and determine to what degree the species are
impacted by the proposed action. Section 7 of the Act prohibits actions
funded, authorized, or carried out by Federal agencies from
jeopardizing the continued existence of a listed species or destroying
or adversely modifying the listed species' critical habitat. This final
Federal listing does not restrict groundwater pumping or any other
actions.
The environmental assessment found that spring flows within the
proposed critical habitat on BLNWR are already protected by existing
water rights afforded by the New Mexico Office of the State Engineer's
administration of the Roswell Basin. In 1967, water rights were
adjudicated in the Roswell Basin, wells were metered, and pumping rates
administered by the Office of the State Engineer (OSE). Currently, any
[[Page 46309]]
proposed change in use of water (underground or surface depletion) in
the Roswell Basin will undergo analysis by OSE to determine if there
would be impairment to existing water rights (McCord et al. 2005). The
OSE will not allow such change if it impairs the Federal water right in
any respect (NMISC 2005). Thus the spring flows on BLNWR should be
protected from any changes in groundwater pumping near the refuge in
the future.
In Texas, Pecos assiminea currently has no State or other
regulatory protection. Some protection for the habitat of this species
is provided with the ownership of the springs by TNC (Karges 2003).
Groundwater pumping that could affect spring flows is subject to
limited regulation in Texas. State agencies do not control groundwater
pumping, and Texas courts have held that, with few exceptions,
landowners have the right to take all the water that can be captured
under their land (rule of capture), regardless of impacts to neighbors
or natural resources. As noted in the economic analysis, within Texas
further hydrological studies are necessary to determine the impact of
groundwater pumping on surface and groundwater levels at Units 3 and 4.
The TNC has stated that additional research on the delineation of
watersheds is crucial to the sustainable, long-term conservation of the
springs. If hydrological studies determine a link between the various
aquifers, we would work with private landowners on a volunteer basis to
minimize impacts to the Pecos assiminea from groundwater withdrawals.
(20) Comment: The groundwater depletion analysis fails to rely upon
the best available science, does not utilize an accurate and reliable
model, and mischaracterizes effects of groundwater pumping.
Our Response: Based upon new information we received during the
comment periods, we revised our analysis from the proposed rule to
reflect our current understanding regarding the threat of groundwater
depletion on the four invertebrates and their habitat in New Mexico.
Please refer to the ``Summary of Factors Affecting Species'' section.
(21) Comment: The status of these species will not improve if they
are listed.
Our Response: Federal listing in and of itself does not improve the
status of the species. Listing these species authorizes the development
of a recovery plan. The recovery plan will likely identify both State
and Federal efforts for conservation of these species and establish a
framework for agencies and stakeholders to coordinate activities and
cooperate with each other in conservation efforts. The plan will set
recovery priorities and describe site-specific management actions
necessary to achieve conservation and survival of the four
invertebrates. See also response to comment 22 below for related
information about the five factors described in section 4(a)(1) of the
Act. Also note the discussion on section 7 consultation requirements in
our response to comment 19 above.
(22) Comment: Why does the Service want to list these four
invertebrates when they are already within protected areas?
Our Response: We have analyzed the threats to these species based
upon the five factors described in section 4(a)(1) of the Act. Although
these species occur on areas that are currently managed for
conservation purposes, we have determined based on our analysis of the
threats discussed below in the section ``Summary of Factors Affecting
the Species,'' that these four invertebrate species are in danger of
extinction throughout all or a significant portion of their respective
ranges. Our analysis determined that these species are threatened by
activities such as oil and gas production and development, groundwater
pumping, and introduction of non-native species that are beyond the
boundaries and/or the management protected areas where the species are
found. Thus, the four invertebrates meet the definition of endangered
species.
(23) Comment: If these species are listed, is there a possible
effect to the U.S. Bureau of Reclamation with respect to delivery of
irrigation water?
Our Response: Federal listing will require the Bureau of
Reclamation (Reclamation) to consult with us on activities that have
the potential to adversely affect the four invertebrates or designated
critical habitat. None of Reclamation's current projects will be
affected by the listing of the invertebrates and we are not aware of
any future projects that may be affected by the listing. Delivery of
irrigation water occurs via the Pecos River and we do not anticipate
that listing these species will affect that activity.
(24) Comment: Will the listing of these species impede the ability
of the State of New Mexico to meet Pecos Compact River obligations?
Our Response: No, the NMISC has been actively acquiring and leasing
water rights to meet the State's delivery obligations to Texas as
specified in the Pecos River Compact and pursuant to an Amended Decree
entered by the U.S. Supreme Court. For example, between 1991 and 1999,
$27.8 million was spent on the Pecos River water rights acquisition
program. We do not anticipate that the listing of these species or the
designation of critical habitat will alter the ability of the NMISC to
meet Pecos River Compact delivery obligations. The amount of water
being pumped from the Roswell Basin should not change; however, the use
of water will change. For example, instead of being applied to fields,
the water may be delivered to the Pecos River directly to meet Compact
delivery obligations.
(25) Comment: Will oil and gas exploration be further restricted in
areas designated as critical habitat?
Our Response: No, the Service does not anticipate that the
designation of critical habitat will restrict oil and gas exploration.
Section 7 consultation, when required, would analyze any impacts to the
species and their designated critical habitat. The environmental
assessment found that oil and gas projects with Federal involvement in
the BLNWR and the surrounding area are already subject to stipulations
for protecting groundwater (Service 2005). The Oil Conservation
Division of the New Mexico Energy, Minerals, and Natural Resources
Department regulates oil and gas well drilling and casing in part to
prevent contamination of groundwater (19 NMAC 15.3).
BLNWR is excluded from the designation of critical habitat for the
four invertebrate species, and critical habitat would not result in
additional section 7 consultations on federally supported oil and gas
projects. Oil and gas well development in the vicinity of Diamond Y
Springs Complex and East Sandia Spring occurs on private lands with no
Federal involvement. Therefore, section 7 consultations on the effects
to designated critical habitat would likely not occur for these
projects. For this reason, we do not believe there would be any
additional restrictions to oil and gas exploration activities.
Issue 3: National Environmental Policy Act (NEPA) Compliance and
Economic Analysis
(26) Comment: What has regulation or policy of Federal actions cost
State and County governments before listing and critical habitat
designation?
Our Response: Since the proposed listing of the four invertebrates
species, there have been specific conservation actions implemented that
have taken into account the protection of the species. An estimated
$366,000 to $494,000 in costs have been incurred by Federal and State
agencies for the four invertebrates (Service 2005b). These
[[Page 46310]]
costs are related to developing the New Mexico State recovery plan and
have included monitoring the four invertebrates' habitat, consultant
fees, staff time devoted to developing the plan, administrative costs
related to past conferences under section 7 of the Act, and associated
monitoring of invertebrate habitat. We did not find that County
governments have incurred any costs related to the conservation of
these species.
(27) Comment: Does the Service have an estimate of the costs
required to recover the four invertebrates?
Our Response: The costs of actions to recover the four
invertebrates will be estimated during the development of a recovery
plan.
(28) Comment: The economic analysis should consider benefits of the
critical habitat designation.
Our Response: In the context of a critical habitat designation, the
primary purpose of the rulemaking (i.e., the direct benefit) is to
designate areas that have the features on which the species depend and
that are in need of special management.
The designation of critical habitat may result in two distinct
categories of benefits to society: (1) Use benefits; and (2) non-use
benefits. Use benefits are simply the social benefits that accrue from
the physical use of a resource. Visiting critical habitat to see
endangered species in their natural habitat would be a primary example.
Non-use benefits, in contrast, represent welfare gains from ``just
knowing'' that a particular listed species'' natural habitat is being
specially managed for the survival and recovery of that species. Both
use and non-use benefits may occur unaccompanied by any market
transactions.
A primary reason for conducting an economic analysis is to provide
information regarding the economic impacts associated with a proposed
critical habitat designation. Section 4(b)(2) of the Act requires the
Secretary to designate critical habitat based on the best scientific
data available after taking into consideration the economic impact,
impact to national security, and any other relevant impact, of
specifying any particular area as critical habitat. Economic impacts
can be both positive and negative and by definition, are observable
through market transactions.
Where data are available, the economic analysis attempts to
recognize and measure the net economic impact of the proposed
designation. For example, if the fencing of a species' habitat to
restrict motor vehicles results in an increase in the number of
individuals visiting the site for wildlife viewing, then the analysis
would recognize the potential for a positive economic impact and
attempt to quantify the effect (e.g., impacts that would be associated
with an increase in tourism spending by wildlife viewers). In this
particular instance, however, the economic analysis did not identify
estimates or measures of positive economic impacts that could offset
some of the negative economic impacts analyzed earlier in this
analysis.
While the Act requires the Service to specifically consider the
economic impact of a designation, it does not require the Service to
explicitly consider any broader social benefits (or costs) that may be
associated with the designation. In fact, the Service believes that
this is by Congressional design, because the Act explicitly states that
it is the Federal government's policy to conserve all threatened and
endangered species and the ecosystems upon which they depend. While
section 4(b)(2) of the Act gives the Secretary discretion to exclude
certain areas from the final designation, she is authorized to do so
only if an exclusion does not result in the extinction of the species.
Thus, the Service believes that explicit consideration of broader
social values for the species and its habitat, beyond economic impacts,
is not necessary as Congress has already clarified the importance our
society places on conserving all threatened and endangered species and
their natural habitats upon which they depend. In terms of carrying out
its responsibilities under section 4(b)(2) then, the Service need only
consider whether the economic impacts (both positive and negative) are
significant enough to merit exclusion of any particular area without
causing the species to go extinct.
(29) Comment: The economic analysis overstates costs by including
past costs that occurred before the species was listed, costs that
would result from the listing alone, and costs that derive from
conservation efforts for other listed species. Similarly, the economic
analysis includes costs of consultation with the Environmental
Protection Agency (EPA) regarding Concentrated Animal Feeding
Operations (CAFOs), which should be primarily associated with other
listed species, and the listing of the four invertebrates, and not
critical habitat designation.
Our Response: This analysis identifies those economic activities
believed to most likely threaten the four invertebrates and their
habitat and, where possible, quantifies the economic impact to avoid,
mitigate, or compensate for such threats within the boundaries of the
critical habitat determination. The economic analysis considers past
impacts associated with species conservation efforts that have been
incurred since the proposed listing and critical habitat determination
in 2002. The impact of these efforts is considered relevant to
understanding the potential impact of the listing and critical habitat
determination. Further, due to the difficulty in making a distinction
between listing and critical habitat effects within critical habitat
boundaries, this analysis considers all future conservation-related
impacts to be coextensive with the designation.
The consideration of co-extensive costs was mandated by the 10th
Circuit Court of Appeals ruling in the New Mexico Cattle Growers
Association case (248 F.3d at 1285), which directed us to consider all
impacts, ``regardless of whether those impacts are attributable co-
extensively to other causes.'' As explained in the economic analysis,
due to possible overlapping regulatory schemes and other reasons, there
are also some elements of the analysis which may overstate some costs.
Conversely, the 9th Circuit has recently ruled (``Gifford
Pinchot,'' 378 F.3d at 1071) that the Service's regulations defining
``adverse modification'' of critical habitat are invalid because they
define adverse modification as affecting both survival and recovery of
a species. The Court directed us to consider that adverse modification
should be focused on impacts to recovery. While we have not yet
proposed a new definition for public review and comment, changing the
adverse modification definition to respond to the Court's direction may
result in additional costs associated with critical habitat definitions
(depending upon the outcome of the rulemaking).
As described in section 1.2 of the economic analysis, coextensive
effects may also include impacts associated with overlapping protective
measures of other Federal, State, and local laws that aid habitat
conservation in the areas proposed for designation, including
protections for other listed species. These measures may be in part
precipitated by the consideration of the presence of the species and
impending critical habitat determination. Because the quantified
habitat conservation efforts, regardless of their primary impetus,
afford protection to the four invertebrates, they likely contribute to
the efficacy of the critical habitat determination efforts. The impacts
of these actions are therefore considered relevant for understanding
the full effect of the proposed critical habitat determination.
Enforcement actions
[[Page 46311]]
taken in response to violations of the Act, however, are not included.
(30) Comment: The economic analysis inappropriately includes costs
of delays in proposed drilling operations associated with industry
appeals on applications for drilling permits. The oil and gas industry,
however, is appealing environmental protections associated with their
permits and burdening themselves. This should not be included as a cost
of the critical habitat designation.
Our Response: Industry appeals regarding drilling applications are
a result of the implementation of environmental regulations, including
the Act, that recommend additional species and habitat conservation
efforts be undertaken with the drilling activity. The economic impacts
of these delays are therefore considered relevant in understanding the
impact of conservation efforts for the four invertebrates.
(31) Comment: It is unclear from the economic analysis what
additional protections from oil and gas activities may be provided by
the Service for the four invertebrates as the economic analysis
includes costs associated with the listing and with protections for
other species, but no additional costs associated specifically with the
critical habitat designation.
Our Response: This analysis identifies the types of modifications
to economic activities that may be undertaken to avoid, mitigate, or
compensate for threats to the species and habitat. The draft economic
analysis acknowledges the difficulty in distinguishing between listing
and critical habitat effects and therefore considers all future
conservation-related impacts to be coextensive with the critical
habitat designation. Further, the relative level to which multiple
considerations, including that of other species, contribute to the
undertaking of a conservation effort is unclear. The impacts quantified
in the analysis are assumed to be in some part precipitated by the
critical habitat designation for the four invertebrates. Absent
information on the specific increment by which critical habitat
designation contributes to the undertaking of these efforts, the total
impact of the effort is quantified, and not a fraction solely due to
critical habitat designation.
(32) Comment: The draft economic analysis relies on information
provided by impacted industries to quantify the costs to those
industries. These costs are inflated. For example, environmentally
protective project modifications such as closed-loop systems can result
in cost savings to the oil and gas industry. The draft economic
analysis, however, only includes the costs to the industry of modifying
projects to incorporate conservation measures for the species.
Our Response: As the commenter notes, the potential for cost
savings associated with implementing environmentally protective
technologies, such as closed-loop systems, is acknowledged in the draft
economic analysis on page 4-7. However, the level of benefit these
modifications may generate is unclear. Additionally, application of
closed-loop systems is not ubiquitous. As the industry indicates, it is
not always the most beneficial operations alternative. The draft
economic analysis therefore includes the full cost of this modification
to oil and gas operations as a high-end estimate of the impact of
conservation efforts.
(33) Comment: The NMDGF's 2004 Biennial Review of threatened and
endangered species in the State indicated that off-refuge land use
practices within areas of the Roswell Artesian Basin (RAB), such as
regional groundwater pumping for agriculture, municipal water supplies,
and the oil and gas industries, threaten the invertebrate species. In
contrast, a recent report prepared by the New Mexico Office of the
State Engineer (OSE) provides the most recent information regarding the
hydrology of the RAB. The report concludes that ``* * * an extended,
extreme drought, and not groundwater depletion through human activity,
would potentially threaten the future supply of water for the proposed
critical habitat located within the BLNWR.''
Our Response: Paragraph 77 and section 4.2.2 of the draft economic
analysis state that no hydrologic models currently exist to determine
the impact of groundwater pumping of the RAB on the springs at the
BLNWR. The revised economic analysis acknowledges recent information
resulting from the OSE report. As the draft economic analysis does not
quantify impacts of critical habitat designation to groundwater
pumping; however, the quantitative results of this analysis are
unchanged as a result of this comment.
Summary of Changes From the Proposed Rule
Based upon our review of the public comments, the economic
analysis, environmental assessment, issues addressed at the public
hearing, and any new relevant information that may have become
available since the publication of the proposal, we reevaluated our
proposed listing and critical habitat designation and made changes as
appropriate. Other than minor clarifications and incorporation of
additional information on the species' biology, this final rule differs
from the proposal by:
(1) The exclusion of critical habitat on BLNWR because special
management considerations are currently provided to the four
invertebrates through current BLNWR management; and
(2) Changes to the primary constituent elements of critical habitat
for the Pecos assiminea.
Summary of Factors Affecting the Species
Section 4 of the Act and implementing regulations (50 CFR 424) set
forth the procedures for adding species to the Federal lists. A species
may be determined to be threatened or endangered due to one or more of
the five factors described in section 4(a)(1) of the Act. These factors
and their application to the Roswell springsnail, Koster's springsnail,
Pecos assiminea, and Noel's amphipod are as follows.
A. The present or threatened destruction, modification, or
curtailment of its habitat or range.
Several biological traits of a population have been identified as
putting a species at risk of extinction (McKinney 1997; O'Grady 2004).
Some of these characteristics include having a localized range, limited
mobility, and fragmented habitat (McKinney 1997; O'Grady 2004). The
four invertebrates have all of these characteristics. Having a small,
localized range means that any perturbation, either natural (e.g.,
drought) or anthropogenic (e.g., water contamination) can eliminate
many or all of the existing populations. Having a high number of
individuals at a site provides no protection against extinction. Noel
(1954) noted that the amphipod in Lander Spring was the most abundant
animal present. It was extirpated from that site when the spring dried
up (Cole 1985). The range reduction trend in these snail species (e.g.,
by extirpation of once widely distributed but localized populations) is
supported by the Pleistocene fossil record in conjunction with re-
inventory of known site occurrences in which no individuals were
detected (Noel 1954; Taylor 1987; Mehlhop 1992, 1993; NMDGF 1999).
Fossil records indicate that at least one or more of these snail
species were historically found at Berrendo Creek, North Spring, and
South Spring Rivers, and along the Pecos River (NMDGF 1999). This
evidence suggests an apparent historical decline in the numbers, range,
and distribution of these species.
[[Page 46312]]
Limited mobility restricts the ability of the invertebrates to find
and disperse to other suitable habitats or to move out of habitat that
becomes unsuitable. Consequently, their range remains restricted and
they are unable to avoid contaminants or other unfavorable changes to
their habitat. Fragmented (unconnected) habitat restricts gene flow
among populations and limits the ability of the invertebrates to
recolonize habitats that have been disturbed but then recover. For
example, three springs once contributed to Berrendo Creek in the
Roswell Basin. If the population of springsnails in one of the springs
was eliminated because of a toxic spill, after the habitat had
recovered, the spring could have been colonized naturally by dispersal
of animals from the other springs. In the currently fragmented
habitats, dispersal is highly unlikely and if a population is
extirpated the habitat probably will not be recolonized, further
restricting the range.
In addition to the characteristics listed above that may put
species at greater risk of extinction, habitat loss, introduced
species, and habitat degradation can also lead to extinction (Meffe et
al. 1994; Frankham et al. 2002). Each of these topics is discussed in
detail. Curtailment of range and habitat of the four invertebrates has
occurred primarily through the loss of suitable spring habitat. These
species were most likely much more widely distributed throughout the
Pecos River Basin during the wetter climatic period of the Pleistocene.
As the climate became warmer and drier, the invertebrates were
restricted to the remaining free-flowing springs. Fossil records
indicate that two of the snail species were found at Berrendo Creek and
along the Pecos River (Taylor 1987).
In addition, in the late 1800s, flow at North Spring, South Spring,
and Berrendo Creek was 85 cubic feet per second (cfs) (2.4 cubic meters
per second [cms], 60 cfs (1.7 cms), and 66 (1.9 cms) cfs, respectively
(Fiedler and Nye 1933). These systems each provided abundant habitat
for the invertebrates. Lander Spring, a tributary spring of South
Spring, harbored Noel's amphipod (Noel 1954). The historic connection
of these spring systems to the Pecos River most likely facilitated
dispersal of the invertebrates throughout the basin downstream of this
area.
In the 1880s, irrigated agriculture in the Roswell and Artesia
Basins was limited to a few small farms (Fielder and Nye 1933). By the
end of 1905, 485 artesian wells had been drilled and by 1927, 1,424
wells were pumping water (Fiedler and Nye 1933). One well, drilled for
the Oasis Cotton Company, is estimated to have produced 9,000 gallons/
minute (20 cfs) (Fiedler and Nye 1933, Jones and Balleau 1996). As a
result of extensive groundwater pumping, the artesian head in the basin
declined (Fiedler and Nye 1933). The amount of decline depended on
location within the basin and ranged from 32 to 204 feet (9.7 to 62.2
meters) from original levels by 1927, and led to a decrease in area
within the basin that had artesian flow (Fiedler and Nye 1933).
Groundwater depletion continued until the mid-1970s, when it reached
its maximum (McCord et al. 2005).
By 1926, South Spring was dry (Jones and Balleau 1996). Berrendo
Spring still produced 8.3 cfs, about 12 percent of the original 1880s
flow (Jones and Balleau 1996). Today, Berrendo Well produces less than
1 cfs (McCord et al. 2005). Lander Spring went dry in the late 1950s or
early 1960s (Cole 1981), extirpating the population of Noel's amphipod,
which in the early 1950s had been described by Noel (1954) as the most
abundant animal in the spring. Discharge at North Spring is unknown.
Jones and Balleau (1996) list its flow as 0 in 1926, but Cole (1981)
described 3 small separate brooks that entered a pond on a private golf
course in 1967. Surveys in 1995 at the site indicated that Roswell
springsnail and Koster's springsnail were still present at the location
(Noel's amphipod once occupied the site). Surveys in 2004 found none of
the species, most likely due to habitat modification from pond
enlargement (NMDGF 2005a). Surface flow at BLNWR was also diminished by
artesian pumping. Springs adjacent to Salt Creek no longer flow, and
surface flow from the Middle Area of BLNWR (sum of flow in upper Bitter
Creek and Middle Area springs) was 15 cfs (0.4 cms) in 1937 and 5 cfs
(0.14 cms) in 1995 (Jones and Balleau 1996). Aerial photos which show a
larger, meandering channel for Bitter Creek are also evidence that
discharge from Bitter Creek was once greater.
Groundwater pumping in the Roswell Basin led to the drying of
several springs, many of which are known to have harbored one or more
of the four invertebrates. It is not possible to determine the extent
of the loss of invertebrate populations because many springs went dry
long before these species were described or surveys could be conducted.
Members of the family Hydrobiidae (including Pyrgulopsis) are
susceptible to extirpation or extinction because they often occur in
isolated desert springs (Hershler 1989; Hershler and Pratt 1990;
Hershler 1994; Lydeard et al. 2004). At least three species in this
genus have gone extinct (Hershler 1994). In addition, loss can not be
measured simply by the number of artesian springs that are now not
flowing. Many of these springs were large enough to form rivers that
flowed for several miles and creeks such as Bitter Creek, while still
flowing, are reduced in length. Most likely there was suitable habitat
available for the invertebrates throughout the length of the streams.
Groundwater pumping in the Roswell Basin increased through the
1950s, when approximately 450,000 acre feet/year were extracted (McCord
et al. 2005). Rates remained fairly stable through 1966 (McCord et al.
2005). In 1967, water rights were adjudicated in the Roswell Basin,
wells were metered, and pumping rates administered by the Office of the
State Engineer (OSE). Currently, any proposed change in use of water
(underground or surface depletion) in the Roswell Basin will undergo
analysis by OSE to determine if there would be impairment to existing
water rights (McCord et al. 2005). The OSE will not allow such change
if it impairs the Federal water right in any respect (NMISC 2005). Thus
the spring flows on BLNWR should be protected from any changes in
groundwater pumping near the Refuge in the future.
There was a drought in the 1950s that most likely affected the
recharge of the groundwater in the Roswell Basin. In spite of controls
on pumping initiated in 1968 and increased precipitation near Roswell
in the 1960s and 1970s, artesian groundwater levels continued to
decline until 1975 (McCord et al. 2005). Thus, it appears that there
was a lag between the time of the drought and recovery in the artesian
groundwater. Since 1999, New Mexico has been in a drought (Piechota et
al. 2004). The current drought may also affect groundwater recharge but
there may be a lag before the effect of the current drought is seen.
However, through the drought of the 1950s, when pumping was at a
maximum, several of the springs on BLNWR continued to flow (McCord et
al. 2005). Groundwater pumping is currently about 100,000 acre feet/
year less than it was during the drought of the 1950s and artesian
groundwater levels have recovered to the levels they were at in 1950s
(McCord et al. 2005). Consequently, we expect that there is some added
margin of protection for the springs through this current drought.
However, the length or severity of the current drought cycle is not
known and the Southwest may be entering a period of prolonged drought
(MaCabe et al. 2004). Droughts of the twentieth century were eclipsed
in severity by droughts in the last 2000 years, with some
[[Page 46313]]
characterized by longer duration (multidecadal) and greater spatial
extent (Woodhouse and Overpeck 1998; Piechota et al. 2004). Certainly,
without groundwater pumping or with pumping at reduced volume there
would be a greater margin of safety for the springs. But the evidence
suggests that the springs at BLNWR will flow in spite of relatively
intense drought (i.e., comparable to the drought of the 1950s) (McCord
et al. 2005). It is unknown how the springs in Texas would respond to
extended drought and the current level of groundwater pumping.
Drought could affect the springs through decreased flow. The
springs do not have to dry out completely to have an adverse effect on
populations. Droughts impact both surface and groundwater resources and
can lead to diminished water quality and disturbed riparian habitats
(Woodhouse and Overpeck 1998; MacRae et al. 2001). Decreased flow could
lead to a decrease in habitat availability, increased water
temperatures, lower dissolved oxygen levels, and an increase in
salinity (MacRae et al. 2001). Any of these factors, alone or in
combination, could lead either to the reduction or extirpation of a
population.
The primary threat to Pecos assiminea in Texas is the potential
failure of spring flow due to excessive groundwater pumping and/or
drought, which would result in total habitat loss for the species.
Diamond Y Spring is the last major spring still flowing in Pecos
County, Texas (Service 2005c). Pumping of the regional aquifer system
for agricultural production of crops has resulted in the drying of most
other springs in this region (Brune 1981). Other springs that have
already failed include Comanche Springs, which was once a large spring
in Fort Stockton, Texas, about 12.9 km (8 mi) from Diamond Y. Comanche
Springs flowed at more than 142 cfs (4.0 cms) (Brune 1981) and
undoubtedly provided habitat for rare species of fishes and
invertebrates, including springsnails. The spring ceased flowing by
1962 (Brune 1981) except for brief periods (Small and Ozuna 1993). Leon
Springs, located upstream of Diamond Y in the Leon Creek watershed, was
measured at 18 cfs (0.5 cms) in the 1930s and was also known to contain
rare fish, but ceased flowing in the 1950s following significant
irrigation pumping (Brune 1981). There have been no continuous records
of spring flow discharge at Diamond Y Spring by which to determine any
trends in spring flow.
Studies by Veni (1991) and Boghici (1997) indicate that the spring
flow at Diamond Y Spring may come from the Rustler aquifers located
west of the spring outlets. One significant factor that influences
flows at the spring is the large groundwater withdrawals for
agricultural irrigation of farms to the southwest in the Belding-Fort
Stockton areas. Although TNC of Texas owns and manages the property
surrounding the Diamond Y Springs Complex, it has no control over
groundwater use that affects spring flow.
East and West Sandia Springs are at the base of the Davis Mountains
just east of Balmorhea, Texas, and are part of the San Solomon-
Balmorhea Spring Complex, the largest remaining desert spring system in
Texas where the Pecos assiminea is found. The springs are included in a
97-hectare (ha) (240-acre (ac)) preserve owned and managed by TNC
(Karges 2003). East Sandia Spring discharges at an elevation of 977
meters (3,224 feet) from alluvial sand and gravel (Schuster 1997).
Brune (1981) noted that flows from Sandia Springs were declining. East
Sandia may be very susceptible to over pumping in the area of the local
aquifer that supports the spring. Measured discharges in 1995 and 1996
ranged from 0.45 to 4.07 cfs (0.013 to 0.11 cms) (Schuster 1997). The
small outflow channel from East Sandia Spring has not been
significantly modified and water flows into an irrigation system
approximately 100 to 200 meters (328 to 656 feet) after surfacing. West
Sandia Spring also occurs on the TNC preserve, but it ceased flowing in
the past 10 years (Schuster 1997).
Phantom Lake Spring , another spring near the Sandia Springs, has
experienced a longterm, consistent decline in flow. Discharge data have
been recorded from the spring six to eight times per year since the
1940s by the U.S. Geological Survey (Schuster 1997). The record shows a
steady decline of flows, from greater than 10 cfs (0.28 cms) in the
1940s to 0 cfs in 2000. The exact causes for the decline in flow from
Phantom Lake Spring are unknown. Some of the obvious reasons are
groundwater pumping of the supporting aquifer and decreased recharge of
the aquifer from drought (Sharp et al. 1999; Sharp et al. 2003). The
Texas Water Development Board (2005) concluded that because of the
uncertainties of the regional flow system, it is difficult to assess
why spring flow in Phantom Lake Spring has declined. Ashworth et al.
(1997) noted the improper placement of new wells could have a
detrimental effect on the springs. The Texas Water Development Board
(2005) agreed with this conclusion. Because of the regional scale of
the base flow, slow travel time, and the age of the waters issuing from
the spring system, it is anticipated that any substantial pumping in
the regional flow system will cause a decline in the spring flow in the
San Solomon Springs system (including Phantom Lake, San Solomon,
Giffin, and East Sandia springs) (Texas Water Development Board 2005).
Introduced Species
One threat not thoroughly explored in our proposed listing is that
of introduced species. Introduced species are one of the primary
threats contributing to species' extinction (Pimentel et al. 2000;
Frankham et al. 2002) and are one of the most serious threats to native
aquatic species (Williams et al. 1989; Lodge et al. 2000), especially
in the Southwest (Miller et al. 1989; Minckley and Douglas 1991). It is
estimated that approximately 50,000 non-native species have been
introduced into the United States (Pimentel et al. 2000). While some of
these introductions have been beneficial, many have caused dramatic
declines in populations of native plants and animals (Pimentel et al.
2000). Because the distribution of the four invertebrates is so
limited, and their habitat so restricted, introduction of a non-native
species into their habitat could be devastating. Several non-native
species have been very successful in invading spring ecosystems in the
Southwest. For that reason, we discuss several invasive terrestrial and
aquatic animal species that are present in the invertebrates' habitat
or are not yet present but have caused problems in other similar
habitats in the Southwest and would pose a threat to the four
invertebrates if they were introduced.
Several invasive terrestrial plant species that may affect the
invertebrates are present at BLNWR: saltcedar (Tamarix ramossisima),
common reed (Phragmites australis), and Russian thistle (tumbleweeds)
(Salsola spp.). In addition, one non-native, terrestrial snail species
(Rumina decollata) will be discussed. These plants present unique
challenges and threats to the habitat the four invertebrates occupy.
Eradication of saltcedar is an ongoing management effort at BLNWR and
on TNC property at Diamond Y Spring and East Sandia Springs preserves
(Service 2005). The species is removed mechanically by hand (young
sprouts), with heavy equipment for large trees, by cutting and burning,
or by spraying with herbicides. Control and removal of non-native
vegetation has previously been identified as a factor responsible for
extirpation of localized populations of
[[Page 46314]]
Pecos assiminea in Mexico and New Mexico (Taylor 1987).
Saltcedar is seen as a threat to the spring habitats primarily
through the amount of water it consumes and from the chemical
composition of the leaves it drops on the ground and into the springs.
Invertebrates in small spring ecosystems depend on food from two
sources: that which grows in or on the substrate (aquatic plants,
algae, and periphyton) and that which falls or is blown into the system
(primarily leaves). Leaves from non-native plants that fall into the
water are often less suitable food sources for invertebrates because of
either their resins or their physical structure (Bailey et al. 2001).
Saltcedar leaves add salt to the soil through its leaf litter (the
leaves contain salt glands) (DiTomosoa 1998). Because saltcedar grows
along the edge of water courses, it is possible that this could affect
the soil chemistry of areas inhabited by Pecos assiminea. However, no
research has been conducted specifically on the effect of saltcedar on
Pecos assiminea.
The concentration of common reed at BLNWR has been increasing over
the last few years and was seen to increase significantly in Bitter
Creek after the Sandhill fire in 2000 (NMDGF 2005b, 2005c). It is
unknown if the common reed present at BLNWR is of native origin or if
it is introduced. Common reed grows in dense patches and reproduces
primarily through an underwater rhizome (an elongated, horizontal
stem). Dense stands of the plant choke the channel, slowing water
velocity and creating more pool-like habitat. Pool-like habitat is less
suitable for the Roswell and Koster's springsnails, which prefer
flowing water. In addition, the dense stands of the plant can
completely shade the water, inhibiting algal growth, one of the food
items for the springsnails.
Russian thistle (tumbleweed) is another introduced plant species
that can create problems within the spring ecosystem. Russian thistle
is not a riparian species like saltcedar and common reed; however, it
often ends up in the springs because wind blows the tumbleweeds into
the spring channels. Noel (1954) noted that she had to pull Russian
thistle out of Lander Spring so that she could take samples. In 2005,
BLNWR conducted an emergency Intra-Service section 7 consultation for
the removal of tumbleweeds from the Area 6 spring ditch. Wind had blown
the tumbleweeds into the channel to a depth of 0.9 to 1.2 meters (3-4
feet), completely shading the water and over-loading the small channel
with organic material. While some amount of organic material from
outside the spring ecosystem is necessary and desirable, it is not
desirable to overload the system with so much organic material that it
cannot be processed. In such situations, dissolved oxygen can drop to
dangerously low levels as the material decomposes. Primary productivity
(growth of algae and native aquatic plants like watercress) would be
greatly reduced or prevented because of shading. Control of introduced
terrestrial plant species is an on-going management activity at BLNWR
that will have to be conducted carefully to have the least impact on
the four invertebrates and their habitat.
Water Quality
These four species depend upon water for their survival. Therefore,
water contamination is one of the most serious threats to these
species. In order to assess the potential for water quality
contamination, a study was completed in September 1999 to determine the
sources of water for the springs at BLNWR. This study (Balleau et al.
1999) reported that the source of water that will reach the BLNWR
springs over time periods ranging from 10 to 500 years includes a broad
area beginning west of Roswell near Eightmile Draw, extending to the
northeast to Salt Creek, and southeast to the BLNWR. Since this area
delineates the groundwater source area of surface water on the BLNWR,
it likewise represents pathways for contaminants to enter the species'
habitat. This broad area sits within a portion of the Roswell Basin and
contains a mosaic of Federal, State, and private lands with multiple
land uses, including expanding urban development.
Contamination of groundwater sources from industry and commercial
operations in and around Roswell is well documented. For example,
perchloroethylene (PCE) was discovered in the McGaffey and Main
groundwater plume in Roswell in 1994 (Environmental Protection Agency
(EPA) 2001a, 2001b). It is suspected that a dry cleaning facility that
operated from 1956 to 1963 is the source of the PCE. The New Mexico
Environment Department subsequently detected PCE in 13 of 16
groundwater wells in a 1995 investigation (EPA 2001a, 2001b).
Trichloroethylene was detected in alluvial and artesian aquifers on the
south side of Roswell, at the former site of the Walker Air Force Base,
beginning in 1991 (U.S. Army Corps of Engineers, http://www.spa.usace.army.mil/ec/walker-rab/projectinfo.html). Although there
is no indication that either of these contaminants will enter springs
occupied by the four invertebrates, these examples demonstrate that
groundwater contamination can easily occur and have long-lasting
effects.
Sediments and fish from Hunter Marsh, located on BLNWR, which
received municipal wastewater from the City of Roswell, have elevated
concentrations of polychlorinated biphenyl (PCB), polycyclic aromatic
hydrocarbons (PAHs), selenium, copper, lead, zinc, and mercury (MacRae
et al. 2001; Lusk 2005). Fish collected from Hunter Marsh and Hunter
Oxbow contained PCB concentrations as high as 5 parts per million (ppm)
(MacRae et al. 2001; Lusk 2005). A diet that contains more than 0.1 ppm
total PCBs can have adverse effects on wildlife (MacRae et al. 2001).
PAHs were found at concentrations as high as 7 ppm in sediment and
fish, which exceeds criteria known to cause adverse effects to aquatic
organisms (MacRae et al. 2001). Values of PCBs in sediment collected
from Hunter Marsh are at levels associated with approximately 30
percent mortality to invertebrates (amphipods) (MacDonald et al. 2000;
Ingersoll et al. 2000; Lusk 2005).
Urban development on the west side of BLNWR poses a risk to ground
and surface water quality from sewage contamination (i.e., septic
discharge). The largest source of groundwater contamination in New
Mexico is from household septic tanks and leach fields (NM Water
Quality Control Commission 2002). Common pollutants associated with
septic tank contamination include total dissolved solids, iron,
manganese, sulfides, nitrate, organic chemicals, and microbiological
contaminants such as bacteria viruses and parasites (NM Water Quality
Control Commission 2002). Septic leachate is known to have contaminated
groundwater resources in New Mexico (McQuillan et al. 1989); however,
specific events have not been documented near BLNWR. Sinkholes west of
BLNWR have been used for unregulated domestic refuse dumping. Refuse in
the sinkholes has included domestic contaminants such as pesticides,
herbicides, and waste oil (Lang 2002). The extent of groundwater
contaminants generated from residences and illegal dumps near the BLNWR
is unknown.
Wastewater from concentrated animal areas (e.g., dairies, feed
lots, chicken farms), septic tanks, and agricultural uses is a known
contributor of nitrates to surface and underground water sources (Boyer
and Pasquarell 1995). Nitrate levels in the underground aquifer near
Roswell are known to be high. A significant source of the nitrates
comes from surrounding dairy farms
[[Page 46315]]
(Sarah McGrath, New Mexico State Ground Water Bureau, pers. comm.
2001). The effects of nitrates on aquatic species are not entirely
known because several outcomes may result from high-level nitrate
contamination in aquatic systems. One outcome includes increased growth
of algae resulting from increased nutrients in the aquatic system. Too
much algae in an aquatic environment could result in periods of low
dissolved oxygen and in extreme cases this could be lethal to the
snails and the amphipod. At least two dairy farms are currently
required to do remediation for their contribution of nitrates to water
pollution, both surface and underground (Sarah McGrath, New Mexico
State Ground Water Bureau, pers. comm. 2001).
Oil and Gas Operations
Oil drilling occurs throughout the Roswell Basin. This activity and
associated actions can threaten the water quality of the aquifer on
which these species depend. For example, oil and other contaminants
from drilling activities throughout the basin could enter the aquifer
supplying the springs inhabited by all four species when the limestone
layers are pierced by drilling activities.
There are 196 natural gas and oil wells in the 12-township area
encompassing the source-water capture zone for the Middle Area of BLNWR
that are potential sources of contamination (New Mexico Petroleum
Research Center 2002). Of these, 17 oil and gas leases are currently
within the habitat protection zone, which encompasses 12,585 ac (5,093
ha) of Federal mineral estate within the water resource area for BLNWR
(Service 2005a). A total of 20 natural gas wells currently exist on
these leases. BLM has estimated a maximum potential development of 66
additional wells within the habitat protection zone, according to well
spacing requirements established by the New Mexico Oil Conservation
Division. 48 (Service 2005a). There were 200 (59 on State, 33 on
Private, and 108 on Federal lands) ``intentions to drill'' (pursuit of
required permits has been initiated by an applicant) filed for oil or
natural gas on Federal lands in Chavez County, from 2002 through the
last update in June 2004 (Go-Tech 2005).
There are numerous examples in which oil and gas operations have
employed regulatory standards within the karst lands of the Permian
Basin in New Mexico and other states, but these measures failed to
protect groundwater resources and aquifer drawdown (NMISC 2002). To
remediate (clean) the aquifer would be extremely difficult should it
become contaminated by oil, chemicals, or organics such as nitrates. In
most cases contamination of an underground aquifer by agricultural,
industrial, or domestic sources is treated at the source. When a
contamination site is discovered, techniques are used to address the
source of the contamination. Rarely do remediation efforts pump water
from the aquifer and treat it before sending it back. This is largely
because these techniques are very costly and difficult to apply (Sarah
McGrath, New Mexico State Ground Water Bureau, pers. comm. 2001).
Because these invertebrate species are sensitive to contaminants,
efforts to clean up pollution source sites after the aquifer has been
contaminated may not be sufficient to protect these species and the
aquatic habitat on which they depend.
Operations associated with oil and gas drilling such as
exploration, storage, transfer, and refining are also potential threats
to these species (Jercinovic 1982, 1984; Longmire 1983; Quarles 1983;
Boyer 1986; Green and Trett 1989; Service 1997). Such extractive
processes and industry operations are known to contaminate ground and
surface waters (Jercinovic 1982, 1984; Longmire 1983; Quarles 1983;
Boyer 1986; Richard 1988a, 1988b; Rail 1989; Richard and Boehm 1989a,
1989b; Jones and Balleau 1996). Moreover, large volumes of water (about
12 billion gallons (39,000 acre feet) in 1985) are produced
concurrently with oil and gas extraction, especially in southeastern
New Mexico (Boyer 1986). For example, in southeastern New Mexico, the
average water-to-oil ratio produced in 1985 was 4.5 to 1 (Boyer 1986).
This water may be injected into the ground in some areas to recover
more oil, but can also be disposed of in permitted surface pits (Boyer
1986). This groundwater depletion and ground and surface water
contamination can adversely impact aquatic mollusks (Eisler 1987, Green
and Trett 1989) and threaten Roswell springsnail, Koster's springsnail,
Pecos assiminea, and Noel's amphipod populations at BLNWR (Service
1997).
Oil and gas activities also threaten the Pecos assiminea because of
the potential groundwater or surface water contamination from
pollutants (Veni 1991). The Diamond Y Springs Complex is within an
active oil and gas extraction field. At this time there are still many
active wells and pipelines located within a hundred meters of surface
waters. In addition, a natural gas refinery is located within 0.8 km
(0.5 mi) upstream of Diamond Y Spring. There are also old brine pits
associated with previous drilling within feet of surface waters. Oil
and gas pipelines cross the spring outflow channels and marshes where
the species occurs, creating a constant potential for contamination
from pollutants from leaks or spills. These activities pose a threat to
the habitat of the Pecos assiminea by creating the potential for
pollutants to enter underground aquifers that contribute to spring flow
or by point sources from spills and leaks of petroleum products on the
surface.
As an example of this threat, in 1992 approximately 10,600 barrels
of crude oil were released from a 6-in (15.2 cm) pipeline that
traverses Leon Creek above its confluence with Diamond Y Draw. The oil
was from a ruptured pipeline at a point several hundred feet away from
the Leon Creek channel. The site itself is about 1 mile (1.6 km)
overland from Diamond Y Spring. The distance that surface runoff of oil
residues must travel is about 2 miles (3.2) down Leon Creek to reach
Diamond Y Draw. The pipeline was operated at the time of the spill by
the Texas-New Mexico Pipeline Company, but ownership has since been
transferred to several other companies. Texas Railroad Commission has
been responsible for overseeing cleanup of the spill site. Remediation
of the site initially involved aboveground land farming of contaminated
soil and rock strata to allow microbial degradation. In recent years,
remediation efforts have focused on vacuuming oil residues from the
surface of groundwater exposed by trenches dug at the spill site. To
date, no impacts on the rare fauna of Diamond Y Springs Complex have
been observed, but no specific monitoring of the effects of the spill
was undertaken (Service 2005b).
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Roswell springsnail, Koster's springsnail, Pecos
assiminea, and Noel's amphipod may occasionally be collected as
specimens for scientific study, but these uses probably have a
negligible effect on total population numbers. These species are
currently not known to be of commercial value, and overutilization has
not been documented. However, as their rarity becomes known, they may
become more attractive to collectors. Although scientific collecting is
not presently identified as a threat, unregulated collecting by private
and institutional collectors could pose a threat to these locally
restricted populations. We are aware of overcollection being a
potential threat with other snails (e.g., armored snail (Pyrgulopsis
(Marstonia) pachyta) (65 FR 10033, February 25, 2000); Bruneau hot
springsnail (P.
[[Page 46316]]
bruneauensis) (58 FR 5938, January 25, 1993); and Socorro springsnail
(P. neomexicana) and Alamosa springsnail (Tryonia alamosae) (56 FR
49646, September 30, 1991)), due to their rarity, restricted
distribution, and generally well known locations. Due to the small
number of localities for the snails and the amphipod, these species are
vulnerable to unrestricted collection, vandalism, or other disturbance.
There is no documentation of collection as a significant threat to any
of the species. Therefore, we believe that collection of the animals is
a minor but present threat.
C. Disease or predation. Springsnails and amphipods are a food
source for other aquatic animals. Juvenile springsnails appear
vulnerable to a variety of predators. Damselflies (Zygoptera) and
dragonflies (Anisoptera) were observed feeding upon snails in the wild
(Mladenka 1992). Damselflies and dragonflies are native to and abundant
at BLNWR and most likely prey upon both the springsnails and Noel's
amphipod.
Springsnails are vulnerable to predation by fish (Kennedy 1977;
Winemiller and Anderson 1997). Mladenka (1992) observed guppies feeding
on springsnails in the laboratory. The non-native fish present at BLNWR
(carp and mosquitofish) most likely also prey upon the springsnails and
Noel's amphipod when they occur in the same habitats. The extent to
which predation from non-native fish affects population size of the
three aquatic invertebrates is not known. Predation pressure on Pecos
assiminea is also unknown. However, if the land snail Rumina becomes
established at BLNWR, the potential exists for it to predate on Pecos
assiminea.
Infestation by trematodes (a flatworm or fluke, phylum
Platyhelminthes) was noted by Taylor (1987) in populations of Koster's
springsnail at Sago Spring, BLNWR. Digenetic trematodes (trematodes in
the order Digenera) are parasitic and have the most complicated life
histories in the animal kingdom involving two to four intermediate
(vertebrate and/or invertebrate) hosts (Hickman et al. 1974). The first
larval stage of the trematode nearly always uses a mollusk (snail or
bivalve) as the first intermediate host (Hickman et al. 1974). Larval
trematode parasites reduce or completely inhibit snail reproduction
through castration (Minchella et al. 1985). The effect of the
trematodes on the springsnail population is not known.
The terrestrial land snail (Rumina decollate) was introduced to the
United States in the early 1800s in South Carolina and spread westward
(Selander and Kaufman 1973). It was reported in Arizona in 1952 and
California in 1966 but was well-established by the time it was
discovered (Selander and Kaufman 1973). It is common in Texas (Selander
and Kaufman 1973) and has been reported from the Roswell area in New
Mexico (Lang 2005b). It inhabits gardens and agricultural areas but has
also invaded riparian and other native habitats (Selander and Kaufman
1973). It is used in California as a biological control agent against
the brown garden snail (Helix aspera) (Cowie 2001). It will consume
native snails (Cowie 2001) as well as vegetation (Dundee 1984). For
these reasons, Rumnia is a potential threat to Pecos assiminea.
Non-native aquatic species such as crayfish, fish, and aquatic
snails are also a potential threat to the four invertebrates. There is
only one species of crayfish native to New Mexico, but its distribution
does not overlap with that of the four invertebrates (Hobbs 1991).
Crayfish are typically opportunistic generalists (they will eat
anything and everything) (Hobbs 1991). Predation on invertebrates is
well-documented (Hobbs 1991; Lodge et al. 1994; Charlebois and Lamberti
1996; Strayer 1999). However, because they also feed on organic debris
and vegetation and reduce algal biomass (Charlebois and Lamberti 1996),
they could potentially compete with Roswell springsnail, Koster's
springsnail, and Noel's amphipod for food resources. Currently non-
native crayfish are not present at BLNWR or the sites in Texas. Diamond
Y Springs Complex does have an undescribed native crayfish which we do
not believe to be a concern for Pecos assiminea. However, crayfish have
created major problems in aquatic systems in Arizona, and there is no
physiological reason why some species of crayfish could not survive in
the habitats that now support the four invertebrates. Eradication of
crayfish once they are established is extremely difficult (Hyatt 2004).
Diamond Y Springs Complex has an undescribed native crayfish which we
do not believe to be a concern for Pecos assiminea.
Non-native fish have had a major impact on native aquatic fauna in
the Southwest (Minckley and Douglas 1991; Desert Fishes Team 2003).
Communities of animals evolved together and developed adaptations to
deal with competition and predation from other members of the community
(Meffe et al. 1994). When a non-native species is introduced into this
community the native members often do not have defenses against
predation or they may be less successful competitors. As a result, the
non-native species can have a major impact on native populations
(Minckley and Douglas 1991; Meffe et al. 1994). One species of non-
native fish, common carp (Cyprinus carpio), is known to co-occur with
the three aquatic invertebrates at BLNWR. Native to Asia, common carp
was introduced into the United States in 1831, has become widely
distributed (Sublette et al. 1990), and is present at BLNWR in habitats
occupied by the invertebrates. Through spawning and feeding behavior it
uproots vegetation and increases turbidity (Sublette et al. 1990). It
is an omnivore feeding on aquatic invertebrates, fish eggs, algae,
plants, and organic matter (Sublette et al. 1990). Because of its non-
discriminatory diet and habitat disturbance, it could have an impact on
the three aquatic invertebrate species.
Mosquitofish (Gambusia affinis) is also present in some of the
spring systems at BLNWR, but it is not known if it is native to the
area or not. The species is native to portions of New Mexico but it has
also been widely introduced to control mosquitoes (Sublette et al.
1990). However, it has negatively affected or extirpated many species
of fish and invertebrates (e.g., through predation) (Meffe et al.
1994). It is not known if mosquitofish are affecting the three species
of aquatic invertebrates.
Non-native mollusks have affected the distribution and abundance of
native mollusks in the United States. Of particular concern for three
of the invertebrates (Noel's amphipod, Roswell springsnail, and
Koster's springsnail) are Melanoides tuberculata (red-rim melania) and
Potamopyrgus antipodarum (New Zealand mudsnail). Both of these snails
are excellent colonizers that reach tremendous population sizes and
have been found in isolated springs in the West. Melanoides has caused
the decline and local extirpation of native snail species, and it is
considered a threat to endemic aquatic snails that occupy springs and
streams in the Bonneville Basin of Utah (Rader et al. 2003). It is
easily transported on gear or aquatic plants, and because it reproduces
asexually (individuals can develop from unfertilized eggs), a single
individual is capable of founding a new population. It has become
established in isolated desert spring ecosystems such as Ash Meadows,
Nevada, and Cuatro Cinegas, Mexico, and within the last 10 years,
Melanoides has become established in Diamond Y Springs Complex (Echelle
2001; McDermott 2000). It has become the most abundant snail in the
upper watercourse of the Diamond Y Springs
[[Page 46317]]
Complex (Echelle 2001). In many locations, this exotic snail is so
numerous that it essentially is the substrate in the small stream
channel. The effect Melanoides is having on native snails is not known;
however, because it is aquatic it probably has less effect on Pecos
assiminea than on the other endemic aquatic snails present in the
spring.
Potampyrgus is also a potential threat to the endemic aquatic
snails at BLNWR and the spring systems in Texas. It was discovered in
the Snake River, Idaho, in the mid-1980s and has quickly spread to
every Western state except New Mexico (Montana State University http://www.esg.montana.edu/aim/mollusca/nzms/status.html, accessed on June 16,
2005). Like Melanoides, Potamopyrgus has an operculum (a lid to close
off the shell opening), can withstand periods of drying up to 8 days
(thereby facilitating transport) and can reproduce either sexually or
asexually. Thus, new populations can be established with transport of a
single individual. In addition, Potampyrgus is tiny (3 mm in height
[0.12 in]), is easily overlooked on gear or shoes, and can be
transported unknowingly by people visiting various recreational sites.
Considering its current rate of expansion, and the availability of
suitable habitat, it is highly likely that Potampyrgus will soon be
discovered in New Mexico.
Potampyrgus tolerates a wide range of habitats, including brackish
water. Densities are usually highest in systems with high primary
productivity, constant temperatures, and constant flow (typical of
spring systems). It has reached densities exceeding 500,000
m2 (Richards et al. 2001) to the detriment of native
invertebrates. Not only can it dominate the invertebrate assemblage (97
percent of invertebrate biomass), it can also eat nearly all of the
algae and diatoms growing on the substrate, altering ecosystem function
at the base of the food web (food is no longer available for native
animals) (Hall et al. 2003). If Potampyrgus is introduced into the
spring systems harboring the proposed invertebrates, control would most
likely be impossible because the snails are so small and because any
chemical treatment would also affect the native species. The impact
could be devastating.
D. The inadequacy of existing regulatory mechanisms. One primary
cause of decline of the Roswell springsnail, Koster's springsnail,
Pecos assiminea, and Noel's amphipod is the loss, degradation, and
fragmentation of habitat due to human activities. Federal and State
laws have been insufficient to prevent past and ongoing losses of the
limited habitat of the four invertebrates, and are unlikely to prevent
further declines of the species.
Federal
Clean Water Act. Pursuant to section 404 of the Clean Water Act
(CWA) (33 U.S.C. 1344), the U.S. Army Corps of Engineers (Corps)
regulates the discharge of dredged or fill material into all Waters of
the United States, including wetlands. In general, the term
``'wetland''' refers to areas meeting the Corps criteria of having
hydric soils, hydrology (either a defined minimum duration of
continuous inundation or saturation of soil during the growing season),
and a plant community that is predominantly hydrophytic vegetation
(plants specifically adapted for growing in a wetland environment). The
spring complexes occupied by these four invertebrates qualify as
wetlands.
Any discharge of dredged or fill material into waters of the United
States, including wetlands, requires a permit from the Corps. These
include individual permits which would be issued following a review of
an individual application, and general permits that authorize a
category or categories of activities in a specific geographical
location or nationwide (33 CFR parts 320-330). General and special
permit conditions may vary among individual Corps Districts and the
various general permits. However, the use of any individual or general
permit requires compliance with the Act.
While the CWA provides a means for the Corps to regulate the
discharge of dredged or fill material into waters and wetlands of the
United States, it does not provide complete protection. Many applicants
are required to provide compensation for wetlands losses (i.e., no net
loss) and many smaller impact projects remain largely unmitigated
unless specifically required by other environmental laws such as the
Act. Moreover, we are not aware of any Corps permits that have been
issued for the spring complexes where these species occur or
historically occurred, indicating that there is little protection
provided to these species through the CWA.
Recent court cases limit the Corps' ability to utilize the CWA to
regulate the discharge of fill or dredged material into the aquatic
environment within the current range of the Roswell springsnail,
Koster's springsnail, Pecos assiminea, and Noel's amphipod (Solid Waste
Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531
U.S. 159 (2001) (SWANCC)). There may be instances where seasonal
wetlands used by California tiger salamander lack sufficient connection
to waters of the United States for the Corps to assert jurisdiction
under the authority of the Clean Water Act. For example, the Corps
frequently cites the SWANCC decision as their reason for not taking
jurisdiction over waterbodies that do not meet the definition of waters
of the United States. For these reasons, we conclude that regulation of
wetlands filling by the Corps under Section 404 of the CWA is
inadequate to protect the Roswell springsnail, Koster's springsnail,
Pecos assiminea, and Noel's amphipod from further decline.
Revisions to the Roswell Approved Resource Management Plan made by
BLM in 1997 prompted a formal section 7 consultation with the Service
regarding the endangered Pecos gambusia (Gambusia nobilis), which
resides on BLNWR. The BLM designated an area for protection of habitat
for Pecos gambusia from potential groundwater contamination by oil and
gas well drilling operations (BLM 2002). This area, referred to as the
Habitat Protection Zone (HPZ), includes a portion of the source-water
capture area for the springs in the northern part of the Middle Tract
of BLNWR, where Pecos gambusia co-occurs with the four invertebrate
species. The HPZ includes 12,585 ac (5,093 ha) of the Federal mineral
estate and 9,945 ac (4,025 ha) of the Federal surface estate that are
within the water source area for the BLNWR. The HPZ was established in
October of 2002 and special requirements for oil and gas well
development managed to protect the ground and surface water resources
(BLM 2002). For example, stipulations for oil and gas wells in the HPZ
include storage of drilling muds in steel tanks and use of cement to
seal the entire length of the well casing. These requirements reduce
the probability of contamination from oil and gas development but do
not reduce the likelihood of groundwater contamination attributable to
oil and gas storage or transportation activities (e.g. leaking
pipelines, storage tanks, or other equipment failures). Therefore, the
HPZ does not eliminate the threat of oil and gas activities on these
species, nor does it address the other threats identified under Factor
A (e.g., drought, septic tank leaching, etc).
State
Existing New Mexico State regulatory mechanisms are inadequate to
protect the Roswell springsnail, Koster's springsnail, Pecos assiminea,
and Noel's amphipod. All four species are listed as New Mexico State
endangered species, Group 1, which are those species ``whose prospects
of survival or
[[Page 46318]]
recruitment within the State are in jeopardy.'' This designation
provides the protection of the New Mexico Wildlife Conservation Act,
but only prohibits direct take of these species, except under issuance
of a scientific collecting permit. New Mexico State statutes do not
address habitat protection, indirect effects, or other threats to these
species. New Mexico State status as an endangered species only conveys
protection from collection or intentional harm. However, there is no
formal consultation process to address the habitat requirements of the
species or how a proposed action may affect the needs of the species.
Because most of the threats to these species are from effects to
habitat, protecting individuals will not ensure their long-term
protection.
NMDGF recognizes the importance of Roswell springsnail, Koster's
springsnail, Pecos assiminea, and Noel's amphipod conservation at the
local population level and has the authority to consider and recommend
actions to mitigate potential adverse effects to these species during
its review of development proposals. As noted, NMDGF's primary
regulatory venue is under the New Mexico Wildlife Conservation Act.
There are no statutory requirements under NMDGF's jurisdiction that
serve as an effective regulatory mechanism for reducing or eliminating
the threats (see Factors A and C above) that may adversely affect
Roswell springsnail, Koster's springsnail, Pecos assiminea and their
habitat.
Still, New Mexico State statutes require the NMDGF to develop a
recovery plan that will restore and maintain species' habitat. A
recovery and conservation plan for the four invertebrates was finalized
by the State of New Mexico in January 2005 (NMDGF 2005b). The plan
provides details about the natural history of the invertebrates, a
historical perspective of habitat and population trends, and habitat
assessment. The goal of the plan is to ensure that the invertebrates
occur in sufficient numbers within populations and in a sufficient
number of discrete and independent populations, that downlisting and
eventual delisting under the Wildlife Conservation Act is warranted
(NMDGF 2005b). The plan outlines three parameters to meet the goal: (1)
Maintenance or expansion of the existing distribution and abundance of
the invertebrates at BLNWR; (2) repatriation of the invertebrates to
restored suitable habitat at two or more sites within their known
historic range; and (3) establishment and stocking of an artificial and
secure refugium to protect against catastrophic loss in the wild (NMDGF
2005b). As noted above, the State's recovery plan does not ensure any
long-term protection for these species because there are no mandatory
elements to ensure proposed projects do not adversely affect these
species or their habitat.
The Oil Conservation Division of the New Mexico Energy, Minerals,
and Natural Resources Department regulates oil and gas well drilling
and casing in part to prevent contamination of groundwater (19 NMAC
15.3). Although there are no known instances of groundwater
contamination by leaking oil or gas wells in the source-water capture
zone for the Middle Unit of BLNWR, there is a well documented history
of oil and gas industry operations on and adjacent to BLNWR, which have
resulted in the spillage of oil and brine onto the BLNWR (Service
1994b, 1996, 1997a, 1998b). Therefore, we find that these regulations
provide some protection to the four invertebrates, but do not eliminate
the threat of oil spills through accidents or equipment malfunctions.
The environmental assessment found that spring flows within the
proposed critical habitat on BLNWR are already protected by existing
water rights afforded by the New Mexico Office of the State Engineer's
administration of the Roswell Basin. In 1967, water rights were
adjudicated in the Roswell Basin, wells were metered, and pumping rates
administered by the Office of the State Engineer (OSE). Currently, any
proposed change in use of water (underground or surface depletion) in
the Roswell Basin will undergo analysis by OSE to determine if there
would be impairment to existing water rights (McCord et al. 2005). The
OSE will not allow such change if it impairs the Federal water right in
any respect (NMISC 2005). Thus the spring flows on BLNWR should be
protected from any changes in groundwater pumping near the refuge in
the future. This provides a regulatory benefit to the four
invertebrates.
However, we believe that there was a lag between the time of the
drought and recovery in the artesian groundwater in this area. Because
New Mexico has been in a drought since 1999, there may be a lag time
before the effect of the current drought is observed. We believe that
the springs on BLNWR will flow in spite of relatively intense drought
(McCord et al. 2005). However, it is not known how the springs in Texas
would respond to extended drought and the current level of groundwater
pumping. Moreover, the habitat occupied by the four invertebrates does
not have to dry out completely to have an effect on populations. Lower
spring flows may cause a decrease in habitat availability, increased
water temperatures, lower dissolved oxygen levels, and an increase in
salinity (MacRae et al. 2001). Any of these factors, alone or in
combination, could lead either to the reduction or extirpation of a
population. Additionally, the primary threat to Pecos assiminea in
Texas is the potential failure of spring flow due to excessive
groundwater pumping and/or drought, which would result in total habitat
loss for the species.
In Texas, Pecos assiminea currently has no State or other
regulatory protection. Some protection for the habitat of this species
is provided with the ownership of the springs by TNC (Karges 2003).
However, this land ownership provides no protection from one of the
main threats to this species--the loss of necessary groundwater levels
to ensure adequate spring flows. Groundwater pumping that could affect
spring flows is subject to limited regulation in Texas. State agencies
do not control groundwater pumping, and Texas courts have held that,
with few exceptions, landowners have the right to take all the water
that can be captured under their land (rule of capture), regardless of
impacts to neighbors or natural resources. Individual groundwater
conservation districts have varying amounts of authority and capacity
to limit pumping. Diamond Y Spring is within the jurisdiction of the
Middle Pecos Groundwater Conservation District, but generally
groundwater districts will not limit groundwater use to allow for
conservation of surface water flows (Booth and Richard-Crow 2004;
Caroom and Maxwell 2004). Thus, we find no existing regulatory
mechanisms in place to protect the Pecos assiminea.
Members of the four invertebrate species that co-exist in springs
with the federally endangered Pecos gambusia (Gambusia nobilis) at
BLNWR and Diamond Y Spring and the federally endangered Leon Springs
pupfish at Diamond Y Spring may receive incidental habitat protection
from the Act. However, possible habitat protection provided by the
federally listed Pecos gambusia and the Leon Springs pupfish offers
only partial protection for the Roswell springsnail, Koster's
springsnail, Pecos assiminea, and Noel's amphipod because the federally
listed fish are not found in all the springs the snails or amphipod
inhabit. For example, Pecos assiminea does not normally occur directly
within submerged habitats. It is most
[[Page 46319]]
commonly found in moist soil or vegetation along the periphery of
standing water. As a result, this habitat may not be afforded
protection under current management actions or consultations which
address conservation for listed fish species in the same area.
Federal water-rights for the BLNWR were secured in 1996 (Service
2005b). This acquisition should ensure minimum surface water discharge
of Bitter Creek. However, if this water is contaminated, the Federal
water right alone does not provide adequate protection for these
species.
E. Other natural or manmade factors affecting its continued
existence. BLNWR was established in 1937 as wintering and breeding
grounds for migratory birds. At the time the four invertebrates were
unknown to science. Consequently, management was directed primarily at
creating dikes so that ponds could be created and their water levels
controlled for the benefit of waterfowl. Some of the ponds created
would seasonally flood springs that flowed into these ponds naturally.
Because the Roswell springsnail and Noel's amphipod, in particular,
prefer flowing over pooled water, this had a negative impact on the
habitat available to them. In 2003, a dike rehabilitation project was
begun on BLNWR. Two dikes running the length of Areas 6 and 7 were
constructed. This isolated the spring systems from the main body of the
impoundments, allowing the areas to be flooded in the winter without
inundating the springs occupied by the invertebrates. In addition,
potential habitat for the invertebrates was created in a new ditch
designed to carry water to Area 7. Current management of BLNWR
recognizes and includes the invertebrates in its maintenance and
operations, and is no longer a threat to the invertebrates.
Fire
BLNWR is characterized by sinkhole/karst terrain. This terrain
poses safety threats to fire crews and suppression equipment. As a
result, fire suppression efforts are largely restricted to established
roads. This severely limits management ability to quickly suppress
fires that threaten fragile aquatic habitats on the BLNWR. On March 5,
2000, the Sandhill fire burned 405 ha (1,000 ac) of the western portion
of the BLNWR, including portions of Bitter Creek. The fire burned
through Dragonfly Spring, eliminated vegetation shading the spring, and
generated a substantial amount of ash in the spring system (Lang 2000,
NMDGF 2005b, 2005c). Subsequently, dense algal mats formed, water
temperature fluctuations and maximum temperatures increased, while
dissolved oxygen levels decreased (Lang 2002). The pre-fire dominant
vegetation of submerged aquatic plants and mixed native grasses within
the burned area has also been replaced by the invasive common reed
(NMDGF 2005b, 2005c). Following the fire, a dramatic reduction in
Noel's amphipod was observed, and Koster's springsnail occurs at lower
densities than were observed prior to the fire (Lang 2002, NMDGF
2005c).
Currently, dense stands of common reed are found throughout most
reaches of Bitter Creek, including in habitat occupied by the four
invertebrates (NMDGF 2005c) (see also ``Factor C'' section above).
Prior to the Sandhill Fire, common reed occurred only sporadically
along Bitter Creek (NMDGF 2005c). These dense stands of common reed
have increased the fuel load and threat of wildfire on BLNWR. Standing
dead canes of common reed and associated litter often constitute twice
as much biomass as living shoots (Uchytil 1992). This abundant dead
fuel carries fire well, allowing stands to burn even when the current
year's shoots are green (Uchytil 1992). Because of the increase in
common reed on BLNWR within habitat occupied by the four invertebrates,
we now find that wildfire is a threat to the four invertebrates.
Removal of vegetative cover by burning in habitats occupied by
Pecos assiminea may be an important factor in decline or loss of
populations (Taylor 1987). Alternatively, Pecos assiminea has been
found to persist in areas following fires (Lang 2000). Pecos assiminea
was also discovered at Dragonfly Spring following burning of habitat
there during the Sandhill Fire (NMDGF 2005a). Season of burning,
intensity of the fire, and frequency of fire are likely important
determinants of effects on population persistence and abundance of
Pecos assiminea (NMDGF 1998). Pecos assiminea is potentially more
vulnerable to fires than the springsnails because they reside at or
near the surface of the water. However, it is thought that Pecos
assiminea may survive fire or other vegetation reduction if sufficient
litter and ground cover remain to sustain appropriate soil moisture and
humidity at a microhabitat scale (NMDGF 2005a; Service 2004).
Controlled burns have been implemented on BLNWR to burn grass,
sedge, cattail, and non-native vegetation (e.g., Russian thistle) in an
attempt to reduce the risk of large uncontrolled wildfires or to remove
excessive amounts of Russian thistle from a spring run (Service 2004).
We have found that controlled burns with appropriate conservation
measures do not adversely affect the Koster's springsnail, Pecos
assiminea, or Roswell springsnail (Service 2004). On the other hand,
prescribed burns to remove Russian thistle may have indirectly affected
Noel's amphipod through the release of common reeds, which can reduce
water flow and result in decreased dissolved oxygen levels (Service
2005c). Surveys conducted immediately post-fire indicate that Noel's
amphipod is still found throughout the burned area, with little to no
direct effects (Service 2005c). Still, the Service is continuing to
monitor post-fire effects from these activities to determine if Noel's
amphipod has been adversely affected.
Fire, particularly during the winter months, will allow ash,
sediment, salts, and nutrients to more readily enter the aquatic
habitat via precipitation and wind. Ash consists of carbon, soots, and
other organic compounds that, upon entering the water column, provide a
food source for bacteria and algae. With the addition of associated
nutrients, and water temperature increases from the loss of streamside
vegetation, populations of bacteria and algae will expand, causing
oxygen depletions. As a result, some invertebrates may perish in these
situations, where they cannot escape the oxygen deficit. Additionally,
denuded areas will allow erosion and sedimentation of the streamside
habitat. Sedimentation could have the direct effect on the Roswell
springsnail, which is typically found on rocks.
Finding
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by these species in determining that these species are in danger
of extinction throughout all or a significant portion of their
respective ranges. The habitat and range of Roswell springsnail,
Koster's springsnail, Pecos assiminea, and Noel's amphipod are
threatened with destruction, modification, and curtailment. Existing
regulatory mechanisms do not provide adequate protection for these
species, and other natural and manmade factors affect their continued
existence. Because each of these four species has a very limited range,
their populations are disjunct and isolated from each other, and
potential habitat areas are isolated and separated by large areas of
unsuitable habitat, these invertebrates are particularly vulnerable to
localized extinction should their habitat be degraded or destroyed.
Because their mobility is limited, populations will have little
opportunity to leave
[[Page 46320]]
degraded habitat areas in search of suitable habitat. As a result, one
contamination event, or a short period of drawdown in the aquatic
habitat where they are found could result in the loss of an entire
population, of which there are few. Because of the limited distribution
of these endemic species, any impact from increasing threats (e.g.,
loss of springflow, contaminants, nonnative species) is likely to
result in their extinction because the magnitude of threat is high.
These species occur in an arid region plagued by drought and ongoing
aquifer withdrawals (e.g., in Texas), making the loss of springflows an
imminent threat in the foreseeable future. We also found that their
habitat faces a constant threat from water quality contamination.
Therefore, we have determined that the Roswell springsnail, Koster's
springsnail, Pecos assiminea, and Noel's amphipod meet the definition
of an endangered species pursuant to section 3 of the Act. A threatened
species designation as defined in section 3 of the Act would not
accurately reflect the population status, restricted distribution,
vulnerability, and imminent threats. As such, we are listing these four
invertebrate species as endangered under the Act.
Critical Habitat
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of conservation resources. The Service's present system for designating
critical habitat is driven by litigation rather than biology, limits
our ability to fully evaluate the science involved, consumes enormous
agency resources, and imposes huge social and economic costs. The
Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.''
Currently, only 445 species, or 36 percent, of the 1,244 listed
species in the United States under the jurisdiction of the Service have
designated critical habitat. We address the habitat needs of all 1,244
listed species through conservation mechanisms such as listing, section
7 consultations, the Section 4 recovery planning process, the section 9
protective prohibitions of unauthorized take, section 6 funding to the
States, and the section 10 incidental take permit process. The Service
believes that it is these measures that may make the difference between
extinction and survival for many species.
We note, however, that a recent 9th Circuit judicial opinion,
Gifford Pinchot Task Force v. United States Fish and Wildlife Service,
has invalidated the Service's regulation defining destruction or
adverse modification of critical habitat. We are currently reviewing
the decision to determine what effect it may have on the outcome of
consultations pursuant to section 7 of the Act.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits regarding critical habitat
designation, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits and to comply
with the growing number of adverse court orders. As a result, the
Service's own proposals to undertake conservation actions based on
biological priorities are significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for meaningful additional
public participation beyond those minimally required by the
Administrative Procedure Act (APA), the Act, and the Service's
implementing regulations, or to take additional time for review of
comments and information to ensure the rule has addressed all the
pertinent issues before making decisions on listing and critical
habitat proposals, due to the risks associated with noncompliance with
judicially imposed deadlines. This in turn fosters a second round of
litigation in which those who will suffer adverse impacts from these
decisions challenge them. The cycle of litigation appears endless, is
very expensive, and in the final analysis provides little additional
protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
NEPA; all are part of the cost of critical habitat designation. These
costs result in minimal benefits to the species that are not already
afforded by the protections of the Act enumerated earlier, and they
directly reduce the funds available for direct and tangible
conservation actions.
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographical area occupied by the species on which are
found those physical and biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection and that the designation of
critical habitat for a given species is prudent and determinable.
``Conservation'' means the use of all methods and procedures that are
necessary to bring an endangered or a threatened species to the point
at which listing under the Act is no longer necessary. Because we
proposed critical habitat for the four invertebrates, we already
determined that critical habitat pursuant to the Act and implementing
regulations was both prudent and determinable (67 FR 6459).
Section 3(5)(c) of the Act states that not all areas that can be
occupied by a species should be designated as critical habitat unless
the Secretary determines that all such areas are essential to the
conservation of the species. Our regulations (50 CFR 424.12(e)) also
state that ``The Secretary shall designate as critical habitat areas
outside the geographical area presently occupied by the species only
when a designation limited to its present range would be inadequate to
ensure the conservation of the species.''
Areas within the geographical area occupied by the species that do
not contain the features essential for the conservation of the species
are not, by
[[Page 46321]]
definition, critical habitat. Similarly, within the geographical area
occupied by the species, if the features essential for the conservation
of the species will not require special management considerations or
protection, the area is not, by definition, critical habitat. To
determine whether the essential features within an area may require
special management, we first determine if the essential features
located there generally require special management to address
applicable threats. If those features do not require special
management, or if they do in general but not for the particular area in
question because of the existence of an adequate management plan or for
some other reason, then the essential features within the area do not
require special management.
Further, section 4(b)(2) of the Act states that critical habitat
shall be designated, and revised, on the basis of the best available
scientific data after taking into consideration the economic impact,
impact on national security, and any other relevant impact of
specifying a particular area as critical habitat. An area may be
excluded from critical habitat if it is determined that the benefits of
exclusion outweigh the benefits of specifying a particular area as
critical habitat, unless the failure to designate such area as critical
habitat will result in the extinction of the species.
The designation of critical habitat does not affect land ownership
or establish a refuge, wilderness, reserve, preserve, or other
conservation area. It does not allow government or public access to
private lands. Under section 7 of the Act, Federal agencies must
consult with the Service on activities they undertake, fund, or permit
that may affect critical habitat and lead to its destruction or adverse
modification. However, the Act prohibits unauthorized take of listed
species and requires consultation for activities that may affect them,
including habitat alterations, regardless of whether critical habitat
has been designated.
When a Federal nexus exists, we work with the appropriate Federal
agency, and in some cases the applicant to the consultation, to ensure
that the project can be completed without jeopardizing the species or
adversely modifying critical habitat. We intend to continue working
with our Federal partners to provide technical assistance,
coordination, and, in some instances, section 7 consultation. We do not
anticipate that the listing of these species or the designation of
critical habitat for the Pecos assiminea will preclude projects such as
riparian restoration, fire prevention/management, or oil and gas
development activities.
Similarly, actions on private lands that have the potential to
result in take of any of the four invertebrate species would be subject
to section 10 of the Act, which requires development of a Habitat
Conservation Plan as part of an application to the Service for an
incidental take permit. These incidental take permits are issued
pursuant to section 10(a)(1)(B) of the Act. Critical habitat has
possible effects on activities conducted by non-Federal entities only
if they are conducting activities on Federal lands or that involves
Federal funding, a Federal permit, or other Federal action (e.g.,
grazing permits).
Regulations at 50 CFR 424.02(j) define special management
considerations or protection to mean any methods or procedures useful
in protecting the physical and biological features of the environment
for the conservation of listed species. When we designate critical
habitat, we may not have the information necessary to identify all
areas that are essential for the conservation of the species.
Nevertheless, we are required to designate those areas we consider to
be essential, using the best information available to us. Accordingly,
we do not designate critical habitat in areas outside the geographical
area occupied by the species unless the best available scientific and
commercial data demonstrate that unoccupied areas are essential for the
conservation needs of the species.
The Service's Policy on Information Standards Under the Act,
published in the Federal Register on July 1, 1994 (59 FR 34271), and
Section 515 of the Treasury and General Government Appropriations Act
for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated
Information Quality Guidelines issued by the Service, provide criteria,
establish procedures, and provide guidance to ensure that decisions we
make represent the best scientific and commercial data available. They
require our biologists, to the extent consistent with the Act and with
the use of the best scientific and commercial data available, to use
primary and original sources of information as the basis for
recommendations to designate critical habitat. When determining which
areas are critical habitat, information may be obtained from the
listing package, recovery plans, articles in peer-reviewed journals,
conservation plans developed by States and counties or other entities
that develop HCPs, scientific status surveys and studies, and
biological assessments. In the absence of published data, unpublished
materials and expert opinion or personal knowledge are used.
Areas that support populations, but are outside the critical
habitat designation, are still important to the species. Because of
that they will continue to be subject to conservation actions
implemented under section 7(a)(1) of the Act and to the regulatory
protections afforded by the section 7(a)(2) jeopardy standard, as
determined on the basis of the best available information at the time
of the action. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans, or other species
conservation planning efforts if new information available to these
planning efforts calls for different approaches.
In our critical habitat designation we use the provisions outlined
in section 3(5)(A) of the Act to evaluate those specific areas defined
by the features essential to the conservation of the species that may
require special management considerations or protections. On the basis
of our evaluation, we have determined that BLNWR does not require
special management considerations or protections, and have excluded
this area from the designation of critical habitat for these four
invertebrates pursuant to section 3(5)(A) of the Act as discussed below
(see ``Exclusions Under Section 3(5)(A) of the Act'' section below).
Because the Roswell springsnail, Koster's springsnail, and Noel's
amphipod are only found within or adjacent to the BLNWR, we are not
designating critical habitat for these three species. The critical
habitat discussion below only concerns habitat for the Pecos assiminea.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features (primary
constituent elements) that are essential to the conservation of the
species and that may require special management considerations or
protection. These features include but are not limited to: space for
individual and population growth and for normal behavior; food, water,
air, light,
[[Page 46322]]
minerals or other nutritional or physiological requirements; cover or
shelter; sites for germination or seed dispersal; and habitats that are
protected from disturbance or are representative of the historical,
geographical, and ecological distributions of a species.
This critical habitat designation does not include lands on BLNWR,
New Mexico (see Exclusions Under Section 3(5)(A)'' and ``Summary of
Changes to Proposed Rule'' sections). We determined the primary
constituent elements for the Pecos assiminea (the only species which
occurs off of BLNWR) from data and studies on its general habitat and
life history requirements including, but not limited to: Taylor 1987;
and NMDGF 1996, 1998, 1999, 2005b, and 2005c. A description of the
essential environment as it relates to the specific primary constituent
elements required of the Pecos assiminea is described below.
Space for Individual and Population Growth and Normal Behavior
The Pecos assiminea requires saturated, moist soil at stream or
spring run margins. Spring complexes that contain flowing water create
saturated soils that provide the specific habitat needed for population
growth, sheltering, and normal behavior of the species. This snail
typically occurs near the soil surface or beneath leaf litter or
vegetation in these areas (NMDGF 2005b). Consequently, wetland plant
species are required to provide the leaf litter, shade, and appropriate
microhabitat. Plant species such as American three-square (Scirpus
americanus), spike rush (Eleocharis spp), inland saltgrass (Distichlis
spicata) and rushes (Juncus spp.) provide the appropriate cover and
shelter required Pecos assiminea (NMDGF 2005b).
Water
The Pecos assiminea is found in wet mud or beneath mats of
vegetation, usually within a few centimeters (inches) of flowing water.
The moist soil environment provides foraging and sheltering habitat, as
well as habitat structure necessary for reproduction and successful
recruitment of offspring. These areas provide the algae, bacteria, and
decaying organic matter on which this species depends as a food
resource. The Pecos assiminea is rarely found immersed in water or in
standing water. Therefore, impoundment of springbrooks or streams is
seen as detrimental to the survival of the species. It also does not
appear to persist in areas with fluctuating water levels or in wetlands
that freeze (Lang 2000). However, water is essential to the
conservation of the Pecos assiminea because the species cannot
withstand permanent drying (loss of surface flow) of springs or spring
complexes. When water quality conditions degrade (e.g., water
temperatures are too high, and dissolved oxygen concentrations are too
low), Pecos assiminea will likely be injured or die.
Reproduction and Rearing of Offspring
Little is known about the reproductive requirements for the Pecos
assiminea. The native wetland plant community was included in this
designation because the Pecos assiminea is found within the moist
environment directly adjacent to the aquatic habitat. Substrates found
in these margin areas provide for temperatures within the environmental
tolerance for this species, and the habitat for reproduction that the
Pecos assiminea requires.
Food
The Pecos assiminea has a file-like radula (a ribbon of teeth)
situated behind the mouth that is used to graze or scrape food from the
foraging surface. Saturated soils and wetland vegetation adjacent to
spring complexes contribute to the necessary components to support the
algae, detritus, and bacteria on which this species forages.
The discussion above describes the physical and biological features
essential to the Pecos assiminea and presents our rationale as to why
the features identified below were selected. The primary constituent
elements described below include the essential features of spring
complexes that develop, maintain, and regenerate the habitat components
required for the Pecos assiminea to forage, reproduce, and shelter. The
specific biological and physical features, otherwise referred to as the
primary constituent elements, essential to the conservation of the
Pecos assiminea are:
(1) Permanent, flowing, unpolluted, fresh to moderately saline
water;
(2) Moist or saturated soil at stream or spring run margins with
native vegetation growing in or adapted to aquatic or very wet
environment, such as salt grass or sedges; and
(3) Stable water levels with natural diurnal and seasonal
variation.
Criteria for Defining Critical Habitat
Restoring an endangered or threatened species to the point where it
is recovered is a primary goal of our Endangered Species Program. To
help guide the recovery effort, we are required to prepare and
implement recovery plans for all of the listed species native to the
United States unless such plan will not promote the conservation of the
species and the species is therefore exempt from having a plan
developed for it. Recovery plans describe actions considered necessary
for conservation of the species, establish criteria for downlisting or
delisting them, and estimate time and cost for implementing the
recovery measures needed. A final recovery plan formalizes the recovery
strategy for a species, but is not a regulatory document (i.e.,
recovery plans are advisory documents because there are no specific
protections, prohibitions, or requirements afforded to a species based
solely on a recovery plan). Critical habitat contributes to the overall
recovery strategy for listed species, but does not by itself achieve
recovery plan goals.
We do not currently have a recovery plan for Pecos assiminea.
Nevertheless, we have reviewed the recovery plan developed by the State
of New Mexico (NMDGF 2005b). In designating critical habitat for the
Pecos assiminea, we also reviewed information within our files and
recommendations contained in State wildlife resource reports (Balleau
et al. 1999; NMDGF 2005a, 2005b, 1999, 1998, Boghici 1997; Jones and
Balleau 1996; and Cole 1985). We also reviewed the available literature
pertaining to habitat requirements, historic localities, and current
localities for this species.
We are not aware of any reliable information that is currently
available to us that was not considered in this designation process.
This final determination constitutes our best assessment of areas
needed for the conservation of the species. Much remains to be learned
about this species; should credible new information become available
which contradicts this designation, we will reevaluate our analysis
and, if appropriate, propose to modify this critical habitat
designation, depending on available funding and staffing. We must make
this determination on the basis of the information available at this
time, and we may not delay our decision until more information about
the species and its habitat are available (Southwest Center for
Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000)).
The designated critical habitat constitutes our best assessment of
the specific areas that contain the primary constituent elements for
Pecos assiminea and that may require special management or protection.
The designated areas are within the geographical area occupied by Pecos
assiminea populations and currently have one or more constituent
elements
[[Page 46323]]
(see description of primary constituent elements, above).
Critical Habitat Designation
We designate two units as critical habitat for the Pecos assiminea
(see the ``Regulation Promulgation'' section of this final rule for
exact boundary descriptions). These critical habitat units include
primary constituent elements that provide for the physiological,
behavioral, and ecological requirements essential for the conservation
of Pecos assiminea. The designation includes one complex at Diamond Y
Spring and a segment of the drainage and East Sandia Spring. Critical
habitat units are designated in portions of Pecos and Reeves Counties,
Texas. Detailed digital files of each unit can be obtained by
contacting the New Mexico Ecological Services Field Office (see
ADDRESSES section).
A general description of land ownership in both areas follows:
1. Diamond Y Springs Complex, Pecos County, Texas. This area
comprises a major population of Pecos assiminea. The designation
includes the Diamond Y Spring and approximately 6.8 km (4.2 mi) of its
outflow, ending at approximately 0.8 km (0.5 mi) downstream of the
State Highway 18 bridge crossing. Also included is approximately 0.8 km
(0.5 mi) of Leon Creek upstream of the confluence with Diamond Y Draw.
All surrounding riparian vegetation and mesic soil environments within
the spring, outflow, and portion of Leon Creek are also designated as
these areas are considered habitat for the Pecos assiminea. This
designation is approximately 153.8 ha (380 ac) of aquatic and
neighboring mesic habitat. This complex occurs entirely on private
lands. Private land in the immediate vicinity of the Diamond Y Springs
Complex is managed as a nature preserve by TNC.
2. East Sandia Spring, Reeves County, Texas. This spring contains a
population of Pecos assiminea. The designation includes the springhead
itself, surrounding seeps, and all submergent vegetation and moist soil
habitat found at the margins of these areas. These areas are considered
habitat for the Pecos assiminea. This designation is approximately 6.7
ha (16.5 ac) of aquatic and neighboring upland habitat. The site is
private land managed as a nature preserve by TNC.
Exclusions Under Section 3(5)(A) of the Act
As we undertake the process of designating critical habitat for a
species, we first evaluate lands defined by those physical and
biological features essential to the conservation of the species for
inclusion in the designation pursuant to section 3(5)(A) of the Act. We
then evaluate lands defined by those features to assess whether they
may require special management considerations or protection. As
discussed in the five factor analysis above, the Pecos assiminea is
imperiled by a multitude of threats such as oil and gas operations,
introduced species, groundwater contamination and depletion, drought,
risk of wildfire, and inadequate regulatory mechanisms.
Below we first provide some general background information on the
BLNWR and the Comprehensive Conservation Plan (CCP), followed by an
analysis pursuant to section 3(5)(A) of the Act of the current
management provisions on BLNWR, and an analysis of why we believe
special management is not required. Pursuant to section 3(5)(A)(i) of
the Act, we consider the areas that we are excluding on the BLNWR to be
within the geographical range occupied by the four invertebrate
species. As noted in the environmental assessment, one of the areas on
the BLNWR, the impoundment complex, contains an area that could allow
for future expansion of existing populations. While this area is not
known to be currently occupied, we consider it to be within the
geographical range occupied by the four invertebrate species because it
is in close proximity to known occupied areas (i.e., ranging from
approximately 164 to 656 feet (50 to 200 m)), and it would be an area
where section 7 consultations would occur because of the potential
presence of the four invertebrate species and known proximity to
occupied areas.
The BLNWR was established on October 8, 1937, by Executive Order
7724 ``as a refuge and breeding ground for migratory birds and other
wildlife.'' The Refuge Recreation Act (16 U.S.C. 460-1) identifies the
refuge as being ``suitable for incidental fish and wildlife-oriented
recreational development, the protection of natural resources, and the
conservation of endangered species or threatened species.'' The
Wilderness Act of 1964 (Pub. L. 88-577) directs the Service to
``maintain wilderness as a naturally functioning ecosystem'' on
portions of the Refuge. While the BLNWR was originally established to
save wetlands vital to the perpetuation of migratory birds, the
isolated gypsum springs, seeps, and associated wetlands protected by
the Refuge have been recognized as providing the last known habitats in
the world for several unique species. Management emphasis of the BLNWR
is placed on the protection and enhancement of habitat for endangered
species and Federal candidate species, maintenance and improvement of
wintering crane and waterfowl habitat, and monitoring and maintenance
of natural ecosystem values.
The BLNWR sits at a juncture between the Roswell Artesian
Groundwater Basin and the Pecos River. These two systems and their
interactions account for the diversity of water resources on the
Refuge, including sinkholes, springs, wetlands, oxbow lakes, and
riverine habitats. The BLNWR has a federally reserved water right that
essentially protects groundwater levels of the Roswell Basin in the
Refuge vicinity. The Refuge has undergone adjudication of its federally
reserved water rights by the State of New Mexico (order signed May
1997). The BLNWR is currently in negotiations with the New Mexico
Interstate Stream Commission, a State agency responsible for
administering New Mexico's water resources, to quantify these reserved
rights (Service 2005).
The National Wildlife Refuge System Improvement Act of 1997
establishes a conservation mission for refuges, gives policy direction
to the Secretary of the Interior and refuge managers, and contains
other provisions such as the requirement to integrate scientific
principals into the management of the Refuges. According to Section
7(e)(1)(E) of the Refuge Improvement Act, all lands of the Refuge
System are to be managed in accordance with an approved CCP that will
guide management decisions and set forth strategies for achieving
refuge purposes. In general, the purpose of the CCP is to provide long-
range guidance for the management of National Wildlife Refuges. The
Refuge Improvement Act requires all refuges to have a CCP and provides
the following legislative mandates to guide the development of the CCP:
(1) Wildlife has first priority in the management of refuges; (2)
wildlife-dependent recreation including hunting, fishing, wildlife
observation, wildlife photography, environmental education and
environmental interpretation are the priority public uses of the refuge
system, and shall be allowed when compatible with the refuge purpose;
and (3) other uses have lower priority in the refuge system and are
only allowed if not in conflict with any of the priority uses and
determined appropriate and compatible with the refuge purpose.
The CCP must also be revised if the Secretary determines that
conditions that affect the refuge or planning unit have changed
significantly. In other words, a CCP must be followed once it
[[Page 46324]]
is approved, and regularly updated in response to environmental changes
or new scientific information.
The BLNWR has a Final CCP that was approved in September 1998. The
CCP serves as a management tool to be used by the Refuge staff and its
partners in the preservation and restoration of the ecosystem's natural
resources. The plan is intended to guide management decisions over the
next 5 to 10 years and sets forth strategies for achieving Refuge goals
and objectives within that timeframe. Key goals of the CCP related to
these four invertebrates include the following: (1) To restore, enhance
and protect the natural diversity on the BLNWR including threatened and
endangered species by (a) appropriate management of habitat and
wildlife resources on refuge lands and (b) by strengthening existing
and establishing new cooperative efforts with public and private
stakeholders and partners, and (2) To restore and maintain selected
portions of a hydrological system that more closely mimics the natural
processes along the reach of the Pecos River adjacent to the BLNWR by:
(a) restoration of the river channel, as well as restoration of
threatened, endangered, and special concern species; and (b) control of
exotic species and manage trust responsibilities for maintenance of
plant and animal communities and to satisfy traditional recreational
demands. Specific objectives related to these goals include: (1) The
restoration of populations of aquatic species designated as endangered,
threatened, or of special concern to a sustainable level (aquatic
species in these categories include the four invertebrates), and (2)
the monitoring of wildlife populations, including endemic snails.
As explained in detail above, we believe that BLNWR lands are
already managed for the conservation of wildlife and special management
considerations or protections are not required. Therefore, these lands
do not meet the definition of critical habitat, and we are not
designating critical habitat for the four invertebrate species within
BLNWR.
Critical habitat receives protection from destruction or adverse
modification through required consultation under section 7 of the Act.
The section 7 consultation process is triggered when a Federal agency
determines that its proposed Federal action (i.e., an action that it
funds, carries out, or authorizes) may affect a listed species or its
critical habitat. Thus, the principal benefit of any designated
critical habitat is that Federal activities that may affect critical
habitat require consultation under section 7 of the Act.
Once consultation under section 7 of the Act is triggered, the
process may conclude informally when the Service concurs in writing
that the proposed Federal action is not likely to adversely affect the
listed species or its critical habitat. However, if the Service
determines through informal consultation that adverse impacts are
likely to occur, then formal consultation is initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to jeopardize the
continued existence of a listed species or result in destruction or
adverse modification of critical habitat, with separate analyses being
made under both the jeopardy and the adverse modification standards.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to primary constituent elements, but it would not contain any mandatory
reasonable and prudent measures or terms and conditions. Mandatory
reasonable and prudent alternatives to the proposed Federal action
would only be issued when the biological opinion results in a jeopardy
or adverse modification conclusion.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of these four invertebrate species. Federal activities
that may affect those unprotected areas (such as groundwater pumping,
oil and gas activities, and livestock grazing, etc.) outside of
critical habitat are still subject to review under section 7 of the Act
if they may affect these species. The prohibitions of section 9 of the
Act (e.g., harm, harass, capture) also continue to apply both inside
and outside of designated critical habitat.
Effect of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including us,
to insure that their actions are not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. This requirement is met
through section 7 consultation under the Act. Our regulations define
``jeopardize the continued existence of'' as to engage in an action
that reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or
distribution of that species (50 CFR 402.02). ``Destruction or adverse
modification of designated critical habitat'' for this species would
include habitat alterations that appreciably diminish the value of
critical habitat by significantly affecting any of those physical or
biological features that were the basis for determining the habitat to
be critical. We are currently reviewing the regulatory definition of
adverse modification in relation to the conservation of the species.
If we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide ``reasonable and prudent alternatives'' to the
project, if any are identifiable. Reasonable and prudent alternatives
are defined at 50 CFR 402.02 as alternative actions identified during
consultation that can be implemented in a manner consistent with the
intended purpose of the action, that are consistent with the scope of
the Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that the Service's
Regional Director believes would avoid the likelihood of jeopardizing
the continued existence of listed species or resulting in the
destruction or adverse modification of critical habitat. Reasonable and
prudent alternatives can vary from slight project modifications to
extensive redesign or relocation of the project. Costs associated with
implementing a reasonable and prudent alternative are similarly
variable.
Activities on Federal lands that may affect the four invertebrates
or their habitat will require consultation pursuant to section 7 of the
Act. Activities on State or private lands requiring a permit from a
Federal agency, such as a permit from the U.S. Army Corps of Engineers,
or some other Federal action, including funding, will continue to be
subject to the section 7 consultation process. Federal actions not
affecting listed species or critical habitat, and actions on non-
Federal lands that are not federally funded, authorized, or permitted,
do not require section 7 consultations.
Section 4(b)(8) of the Act requires us to evaluate briefly and
describe, in any proposed or final regulation that designates critical
habitat, those activities involving a Federal action that may adversely
modify such habitat or that may be affected by such designation.
Activities that may destroy or adversely modify critical habitat
[[Page 46325]]
include those that alter the primary constituent elements to an extent
that the value of critical habitat for both the survival and recovery
of the Pecos assiminea is appreciably reduced. We note that such
activities may also jeopardize the continued existence of the species.
Activities that, when carried out, funded, or authorized by a Federal
agency that may affect the Pecos assiminea and may require consultation
under section 7 of the Act to determine if they adversely modify
critical habitat include, but are not limited to:
(1) Any activity that would significantly alter the source-water
capture zone, subterranean flows, or water level of the supporting
aquifers (groundwater pumping), including any activity that would
significantly alter the water chemistry, water quality, or physical
parameters (e.g., temperature, pH, contaminants), or wastewater or
point-source discharge permits in the wetland habitats and systems that
could appreciably diminish the primary constituent elements where this
species occurs;
(2) Any activity that would introduce, spread, or augment non-
native aquatic predators or competitors, or non-native species that
negatively alter Pecos assiminea habitat or primary constituent
elements: this would include the introduction of non-native species
through contaminated sampling gear, bait-bucket introductions of non-
native fishes, or the release of aquarium species (fish, aquatic
snails, and aquatic plants) from uninformed members of the public; or
(3) Any activity that would detrimentally alter the habitat for
Pecos assiminea. This would include water diversion, drainage
alteration projects, road construction, construction of public and
private facilities, or ponding of spring runs.
Specific examples of Federal activities include, but are not
limited to, EPA authorization of discharges under the National
Pollutant Discharge Elimination System and registration of pesticides;
Federal Highway Administration approval or funding of road or highway
infrastructure and maintenance; BLM issuance of oil and gas leases or
permits; U.S. Army Corps of Engineers authorization of discharges of
dredged or fill material into waters of the United States under section
404 of the Clean Water Act; USDA-Natural Resources Conservation Service
technical assistance and other programs; USDA-Rural Utilities Service
infrastructure or development; Federal Energy Regulatory Commission
permitting activities; and the Department of Housing and Urban
Development's Small Cities Community Development Block Grant and home
loan programs.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and authorizes recovery plans for all
listed species. The protection required of Federal agencies and the
prohibitions against certain activities involving listed animals are
discussed in the ``Effect of Critical Habitat Designation'' section
above.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed to
be listed or is listed as endangered or threatened, and with respect to
its critical habitat, if any is being designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Federal agencies are required to confer
with us informally on any action that is likely to jeopardize the
continued existence of a proposed species, or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or to
destroy or adversely modify its critical habitat. If a Federal agency
action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with us.
Federal agency actions that may affect the four invertebrates
throughout their range and may require consultation with us include,
but are not limited to, oil and gas development, irrigated agricultural
and livestock activities, residential and commercial development, non-
native vegetation control, fire suppression, controlled burns, water
control structures, and habitat enhancement projects.
Listing the four invertebrates provides for the development and
implementation of a rangewide recovery plan. This plan will bring
together Federal, State, and local agency efforts for the conservation
of these species. A recovery plan will establish a framework for
agencies to coordinate their recovery efforts. The plan will set
recovery priorities and estimate the costs of the tasks necessary to
accomplish the priorities. It also will describe the site-specific
actions necessary to achieve conservation and survival of the species.
Listing also will require us to review any actions that may affect
the four invertebrates for lands and activities under Federal
jurisdiction, State plans developed pursuant to section 6 of the Act,
scientific investigations of efforts to enhance the propagation or
survival of the animal pursuant to section 10(a)(1)(A) of the Act, and
habitat conservation plans prepared for non-Federal lands and
activities pursuant to section 10(a)(1)(B) of the Act.
Federal agencies with management responsibility for the four
invertebrates include the Service, in relation to the issuance of
section 10(a)(1)(A) and (B) permits for scientific research, habitat
conservation plans, BLNWR management and maintenance, and other
programs.
The Act and implementing regulations found at 50 CFR 17.21 set
forth a series of general prohibitions and exceptions that apply to all
endangered wildlife. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or
collect, or to attempt any of these), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species. It
also is illegal to possess, sell, deliver, carry, transport, or ship
any such wildlife that has been taken illegally. Certain exceptions
apply to agents of the U.S. Fish and Wildlife Service and State
conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, or for incidental take in the
course of otherwise lawful activities.
Pursuant to the Interagency Cooperative Policy for Endangered
Species Act Section 9 Prohibitions, published in the Federal Register
on July 1, 1994 (59 FR 34272), we identify to the maximum extent
practicable those activities that would or would not constitute a
violation of section 9 of the Act. The intent of this policy is to
increase public awareness as to the effects of this listing on future
and
[[Page 46326]]
ongoing activities within the species' range. We believe, based on the
best available information that the following actions will not result
in a violation of the provisions of section 9 of the Act, provided
these actions are carried out in accordance with existing regulations
and permit requirements:
(1) Possession, delivery, or movement, including interstate
transport that does not involve commercial activity, of specimens of
these species that were legally acquired prior to the publication in
the Federal Register of the Federal List of Endangered and Threatened
Wildlife and Plants;
(2) Oil and gas exploration and drilling in areas where surface or
groundwater is not connected to habitats occupied by the Roswell
springsnail, Koster's springsnail, Pecos assiminea, and Noel's
amphipod; and
(3) Any actions that may affect the Roswell springsnail, Koster's
springsnail, Noel's amphipod, and Pecos assiminea that are authorized,
funded, or carried out by a Federal agency (e.g., prescribed burns,
pesticide/herbicide application, pipeline construction crossing
suitable habitat, oil and gas development or extraction activities),
when the action is conducted in accordance with the consultation
requirements for listed species pursuant to section 7 of the Act.
Potential activities involving these species that we believe will
likely be considered a violation of section 9 include, but are not
limited to, the following:
(1) Unauthorized possession, collecting, trapping, capturing,
killing, harassing, sale, delivery, or movement, including interstate,
and foreign commerce, or harming, or attempting any of these actions,
of the Roswell springsnail, Koster's springsnail, Noel's amphipod, and
Pecos assiminea. Research activities where these species are trapped or
captured will require a permit under section 10(a)(1)(A) of the Act;
(2) The use of chemical insecticides or herbicides that results in
killing or injuring these species;
(3) Intentional release of exotic species (including, but not
limited to, mosquitofish, crayfish, or non-native snails) into habitat
currently occupied by the Roswell springsnail, Koster's springsnail,
Noel's amphipod, and Pecos assiminea;
(4) Within the 12,585 ac (5,093 ha) of the Federal mineral estate
and 9,945 ac (4,025 ha) habitat protection zone in New Mexico (e.g.,
BLM 2002, Balleau et al. 1999), subsurface drilling or similar
activities that contaminate or cause significant degradation of surface
drainage water or aquifer water quality that supports the habitat
occupied by these species;
(5) Septic tank placement and use where the groundwater is
connected to sinkhole or other aquatic habitats occupied by these
species;
(6) Unauthorized discharges or dumping of toxic chemicals, silt, or
other pollutants into, or other illegal alteration of the areas
supporting Roswell springsnail, Koster's springsnail, Noel's amphipod,
and Pecos assiminea that results in death or injury of the species or
that results in degradation of their occupied habitat to an extent that
individuals are killed or injured or essential behaviors such as
breeding, feeding, and sheltering are impaired; and
(7) Destruction or alteration of the Roswell springsnail, Koster's
springsnail, Noel's amphipod, and Pecos assiminea occupied habitat
through discharge of fill materials into occupied sites; draining,
ditching, tilling, channelization, drilling, pumping, or other
activities that interrupt surface or ground water flow into or out of
the spring complexes, and occupied habitats of these species that
results in killing or injuring these species by significantly impairing
essential life-sustaining requirements such as breeding, feeding, and
shelter.
If you have questions regarding whether specific activities will
likely violate the provisions of section 9 of the Act, contact the New
Mexico Ecological Services Field Office (see ADDRESSES section). For
Pecos assiminea in Texas, contact the Austin Ecological Services Field
Office, 10711 Burnet Road, Suite 200, Austin, Texas 78758 (512/490-
0057). Requests for copies of the regulations on listed wildlife and
inquiries about prohibitions and permits may be addressed to the U.S.
Fish and Wildlife Service, Division of Endangered Species, P.O. Box
1306, Albuquerque, New Mexico 87103 (telephone 505/248-6920; facsimile
505/248-6788).
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial data
available and to consider the economic impact, impact to national
security, and other relevant impacts of designating a particular area
as critical habitat. We based this designation on the best available
scientific information. We utilized the economic analysis, and took
into consideration comments and information submitted during the public
hearing and comment periods to make this final listing and critical
habitat determination. We may exclude areas from critical habitat upon
a determination that the benefits of such exclusions outweigh the
benefits of specifying such areas as critical habitat. We cannot
exclude such areas from critical habitat when such exclusion will
result in the extinction of the species.
A draft analysis of the economic effects of the proposed critical
habitat designation was prepared and made available for public review
(70 FR 23083; May 4, 2005). The economic analysis considers the
economic impacts of conservation measures taken prior to and subsequent
to the final listing and designation of critical habitat for the four
invertebrates. Pre-designation impacts are typically defined as all
management efforts that have occurred since the time of listing. The
four invertebrates have not been listed, but were proposed for listing
in February 2002 (67 FR 6459). Total post-designation costs associated
with proposed critical habitat Units 3 and 4 for the Pecos assiminea on
TNC lands in Texas are estimated to be $707,000 over the next 20 years
(Service 2005a). Estimated costs include creating a conservation plan
to formally assess conservation elements and future management actions
within proposed critical habitat Units 3 and 4. Additionally, future
costs to oil and gas activities within proposed Unit 3 are anticipated
to be related to continued partnership projects between TNC and
regional oil and gas companies.
Based upon these estimates, we conclude in the final analysis,
which reviewed and incorporated public comments, that no significant
economic impacts (i.e., will not have annual effect on the economy of
$100 million or more or affect the economy in a material way discussed
further in the ``Required Determinations'' section below) are expected
from the designation of critical habitat for Pecos assiminea. A copy of
the economic analysis is included in our supporting record and may be
obtained by contacting the New Mexico Ecological Services Field Office
(see ADDRESSES section) or from our Web site http://ifw2es.fws.gov/.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise novel legal and policy issues.
However, based on our final economic analysis, it is not anticipated
that the designation of critical habitat for the four invertebrate
species will result in an annual effect on
[[Page 46327]]
the economy of $100 million or more or affect the economy in a material
way. Due to the timeline for publication in the Federal Register, the
Office of Management and Budget (OMB) has not formally reviewed the
final rule or accompanying economic analysis.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, then the agency will need to consider
alternative regulatory approaches. Since the determination of critical
habitat is a statutory requirement pursuant to the Endangered Species
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then
evaluate alternative regulatory approaches, where feasible, when
promulgating a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweighs the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Act, (SBREFA) 5
U.S.C. 802 (2), 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 effect 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
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Our economic analysis
of the proposed designation provides the factual basis for our
determination.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as 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.
Activities anticipated to occur within the next 20 years within or
adjacent to critical habitat for the Pecos assiminea that potentially
effect small businesses include: oil and gas production, irrigated
agricultural production, and livestock operations.
With regard to livestock operations the economic analysis finds
that confined animal feeding facilities do not occur in Pecos or Reeves
Counties, Texas, within 60 miles of the critical habitat designation.
As such, the analysis does not anticipate impacts to small entities
within the livestock industry in these counties.
Agricultural production dependent on groundwater irrigation occurs
within Pecos and Reeves Counties, Texas. The analysis assumes that all
farms operating within the regions are small entities. Within Texas,
further hydrological studies are necessary to determine the impact of
groundwater pumping on surface and groundwater levels to designated
critical habitat. As a result, groundwater withdrawal activities for
agricultural production are unlikely to change as a result of the
presence of the Pecos assiminea. Thus, no impacts to small entities
within the irrigated agricultural industry are expected.
Oil and gas drilling occurs on private lands outside of critical
habitat Unit 3 (Diamond Y Springs Complex) in Texas. The economic
analysis finds that while oil and gas activities may present water
quality issues, they are not considered a threat to groundwater levels
in the region. The analysis does not forecast modifications to oil and
gas production in Texas and therefore no impacts to small businesses
are quantified. This is due to the fact that Unit 3 is owned and
managed by TNC. TNC manages this area as a preserve for long term
habitat conservation and protection of the functional integrity of
surface water systems to benefit rare aquatic species and communities
within the preserves. TNC does not own the mineral rights at Unit 3.
However, the companies that own or lease these rights have generally
worked voluntarily with TNC to protect these lands. The economic
analysis finds that future costs to oil and gas activities within Unit
3 are anticipated to be related to continued partnership projects
between TNC and regional oil and gas companies. There may also be a
potential for costs associated with an incidental take permit and
Habitat Conservation Plan under section 10 of the Act. However, the
economic analysis finds that the potential for that occurrence is
unknown.
There has been one section 7 consultation on an oil and gas project
with Federal involvement in the vicinity of habitats occupied by the
four invertebrates. This was an informal consultation in 2004 regarding
proposed abandonment of 58 miles of pipeline in Winkler, Ward, Reeves,
and Pecos counties, Texas (Service 2004b). The proposed project
involved permitting by the Federal Energy Regulatory Commission. It was
determined that the proposed action would not have any affect on any of
the four invertebrate species or any co-occurring, listed, aquatic taxa
such as Leon Springs pupfish. There were no conservation
recommendations made by the Service regarding protection of aquatic
habitats in this consultation. Based upon this and other information
presented in the draft economic analysis and draft environmental
assessment, we do not anticipate economic costs to small businesses in
this industry. Therefore, we have considered whether this rule would
result in a significant economic effect on a substantial number of
small entities. We have concluded that this final designation of
critical habitat for the Pecos assiminea would not affect a substantial
number of small entities. Therefore, we are certifying that the
designation of critical habitat for the Pecos assiminea will not have a
significant economic impact on a substantial number of small entities,
and a final regulatory flexibility analysis is not required.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on
[[Page 46328]]
regulations that significantly affect energy supply, distribution, and
use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This final rule is considered
a significant regulatory action under E.O. 12866 due to it potentially
raising novel legal and policy issues, but the economic analysis finds
that the oil and gas industry is not likely to experience ``a
significant adverse effect'' as a result of conservation efforts for
the four invertebrates. Appendix A of the draft economic analysis
provides a detailed discussion and analysis of this determination.
Specifically, two criteria were determined to be relevant to this
analysis: (1) Reductions in natural gas production in excess of 25
million mcf per year, and (2) increases in the cost of energy
production in excess of one percent. Impacts to ongoing oil and gas
production in Pecos County, Texas, are not forecast as it is unclear
whether these activities will require conservation efforts for the
Pecos assiminea. As described in Section 4.2.1 of the economic analysis
and above, while oil and gas activities in this region may affect
groundwater quality, they are not anticipated to affect groundwater
levels.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) 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; AFDC 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 who receive Federal
funding, assistance, permits or 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
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. This determination is based on information
from the economic analysis conducted for this designation of critical
habitat for the Pecos assiminea and the fact that critical habitat is
only being designated on TNC lands. As such, a Small Government Agency
Plan is not required.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for the Pecos assiminea in a takings
implications assessment. The takings implications assessment concludes
that the designation of critical habitat for the Pecos assiminea does
not pose significant takings implications.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior policy, the
Service requested information from, and coordinated development of this
critical habitat designation with, appropriate State resource agencies
in New Mexico and Texas. The impact of the designation on State and
local governments and their activities was fully considered in the
economic analysis. As discussed above, the designation of critical
habitat for the Pecos assiminea would have little incremental impact on
State and local governments and their activities. In fact, the
designation of critical habitat may have some benefit to the State and
local resource agencies in that the areas essential to the conservation
of this species are more clearly defined, and the primary constituent
elements of the habitat necessary to the conservation of this species
are specifically identified.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We are designating critical habitat in accordance
with the provisions of the Act, as amended. This rule uses standard
property descriptions and identifies the primary constituent elements
within the designated areas to assist the public in understanding the
habitat needs that are essential for the conservation of the Pecos
assiminea.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain new or revised information collection
for which Office of Management and Budget approval is required under
the Paperwork Reduction Act. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
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 assertion was upheld in the courts
of the Ninth Circuit
[[Page 46329]]
[(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996).] However, when the range of the species
includes States within the Tenth Circuit, such as that of the four
invertebrates, pursuant to 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 undertake a NEPA analysis for critical habitat
designation. We completed an environmental assessment and finding of no
significant impact on the designation of critical habitat for the Pecos
assiminea.
Secretarial Order 3206: American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act
The purpose of Secretarial Order 3206 (Secretarial Order) is to
``clarif(y) the responsibilities of the component agencies, bureaus,
and offices of the Department of the Interior and the Department of
Commerce, when actions taken under authority of the Act and associated
implementing regulations affect, or may affect, Indian lands, tribal
trust resources, or the exercise of American Indian tribal rights.'' If
there is potential that a tribal activity could cause either direct or
incidental take of a species proposed for listing under the Act, then
meaningful government-to-government consultation will occur to try to
harmonize the Federal trust responsibility to tribes and tribal
sovereignty with our statutory responsibilities under the Act. The
Secretarial Order also requires us to consult with tribes if the
designation of an area as critical habitat might impact tribal trust
resources, tribally owned fee lands, or the exercise of tribal rights.
However, no known tribal activities could cause either direct or
incidental take of the four species in this final rule, and no tribal
lands or tribal trust resources are anticipated to be affected by the
designation of critical habitat.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the New Mexico Ecological Services Field
Office (see ADDRESSES section).
Author
The primary authors of this rule are the New Mexico Ecological
Services Field Office staff (see ADDRESSES section) (telephone 505/346-
2525).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11(h) as follows:
0
a. Add Pecos assiminea, Koster's springsnail, and Roswell springsnail
in alphabetical order under ``SNAILS;'' and
0
b. Add Noel's amphipod in alphabetical order under ``CRUSTACEANS,'' to
the List of Endangered and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------------ population where When Critical Special
Historic Range endangered or Status listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Snails
* * * * * * *
Pecos assiminea.................... Assiminea pecos....... U.S.A. (NM, TX)...... NA E 17.95(f) NA
* * * * * * *
Springsnail, Koster's.............. Juturnia kosteria..... U.S.A. (NM).......... NA E NA NA
Springsnail, Roswell............... Pyrgulopsis U.S.A. (NM).......... NA E NA NA
roswellensis.
Crustaceans
* * * * * * *
Amphipod, Noel's................... Gammarus desperatus... U.S.A. (NM).......... NA E NA NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95 (f) by adding critical habitat for Pecos assiminea
in the same order as this species occurs in Sec. 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and snails.
* * * * *
Pecos assiminea (Assiminea pecos)
1. Within the areas designated below as critical habitat, the
primary constituent elements for Pecos assiminea include:
(i) Permanent, flowing, unpolluted, fresh to moderately saline
water;
(ii) Moist or saturated soil at stream or spring run margins with
native vegetation growing in or adapted to aquatic or very wet
environment, such as salt grass or sedges; and
(iii) Stable water levels with natural diurnal and seasonal
variation.
2. Critical habitat is depicted for the Pecos assiminea in Pecos
County, Texas, at the Diamond Y Springs Complex. The designation
includes the Diamond Y Spring, which is located at UTM 13- 698261 E,
3431372 N, and 6.8 km (4.2
[[Page 46330]]
mi) of its outflow, ending at UTM 13- 701832 E, 3436112 N, about 0.8 km
(0.5 mi) downstream of the State Highway 18 bridge crossing. Also
included is 0.8 km (0.5 mi) of Leon Creek upstream of the confluence
with Diamond Y Draw. All surrounding riparian vegetation and mesic soil
environments within the spring outflow and portion of Leon Creek are
also designated as these areas are considered habitat for the Pecos
assiminea. Critical habitat is also depicted for the Pecos assiminea in
Reeves County, Texas, at the East Sandia Spring complex. East Sandia
Spring is located at UTM 13-621366 E, 342929 N. Critical habitat
includes the springhead itself, surrounding seeps, and all submergent
vegetation and moist soil habitat found at the margins of these areas.
These areas are considered habitat for the Pecos assiminea.
(i) Pecos County, Texas, including the Diamond Y Springs Complex,
located at longitude -102.923461 and latitude 30.999271, and
approximately 6.8 km (4.2 mi) of the spring outflow ending at about 0.8
km (0.5 mi) downstream of the State Highway 18 bridge crossing
(approximately longitude -102.885137 and latitude 31.041405). Also
included is approximately 0.8 km (0.5 mi) of Leon Creek upstream of the
confluence with Diamond Y Draw. All surrounding riparian vegetation and
mesic soil environments within the spring, outflow, and portion of Leon
Creek are also proposed for designation as these areas are considered
habitat for the Pecos assiminea. Legal description (geographic
projection, North American Datum 83): Longitude (decimal degrees),
Latitude (decimal degrees):
-102.905319869746634, 31.022089444891570; -102.887036917654868,
31.043947412173729; -102.884194716234887, 31.042760908977833; -
102.885135806784476, 31.040116604685526; -102.886447071974004,
31.038190792077721; -102.886620885824385, 31.037813677269160; -
102.890251036381329, 31.035783323856453; -102.892481680821120,
31.034679908957198; -102.893548121939546, 31.033842414359302; -
102.893785401930572, 31.033086360646934; -102.893745950415067,
31.032373282069056; -102.894097678233564, 31.031429114358268; -
102.895544792411911, 31.030835296062797; -102.896058768051944,
31.030036256911551; -102.898010410716566, 31.029070675153459; -
102.898781252646117, 31.029130733495535; -102.899944293890798,
31.028912200684612; -102.900716178554276, 31.028924768711160; -
102.901441262661692, 31.028556604651808; -102.901948928625941,
31.028042412007075; -102.901688880906221, 31.027325744767865; -
102.901714918210303, 31.026138774702297; -102.901732622700223,
31.025331634924694; -102.901817954640350, 31.023955646131167; -
102.902125889274174, 31.022488286611136; -102.902640803335373,
31.021641737279424; -102.903610272253857, 31.020185129479138; -
102.903508335417825, 31.019803505987209; -102.904231258688768,
31.019530280313123; -102.905008267695379, 31.019305424852949; -
102.905627160458280, 31.018745526192433; -102.905862223627835,
31.018084401107885; -102.907438011441329, 31.016637604571564; -
102.908402165790250, 31.015418349965021; -102.909312205831228,
31.014150714293240; -102.909665778900688, 31.013111534294385; -
102.910342839052220, 31.012410065631975; -102.911174902560035,
31.012186062876218; -102.912113070098556, 31.012153756020012; -
102.912844195573911, 31.011500644598044; -102.913370338091369,
31.010131773029197; -102.914161736135028, 31.009242148253836; -
102.915610463748450, 31.008553125409257; -102.917106029547554,
31.008244810453860; -102.918875138268959, 31.008035883431738; -
102.919664405186026, 31.007241180720893; -102.920460878479304,
31.006114116159939; -102.920933820519480, 31.004649359449264; -
102.921603523207537, 31.004280181687651; -102.921961044126064,
31.003051041389284; -102.922105288280434, 31.001485991578242; -
102.923062919493049, 31.000551488397821; -102.924338893382782,
31.000192054013731; -102.925434072210962, 31.000542142822137; -
102.925748330937964, 31.001307135185360; -102.925543882342382,
31.003108703491051; -102.924514657475115, 31.004802011677008; -
102.923332386691257, 31.005922892971402; -102.922655466250575,
31.006624436236699; -102.921313967399342, 31.007457756682811; -
102.921298502243019, 31.008169949149053; -102.921890429628803,
31.008844431891216; -102.922088249987723, 31.009892533060658; -
102.920305700167233, 31.010718735844538; -102.918990962464960,
31.010317563552466; -102.917661775715189, 31.010581089582509; -
102.915939472406691, 31.011170723093645; -102.915640066348502,
31.012258293740160; -102.915233503111892, 31.013201643466406; -
102.914004171668253, 31.013941704157816; -102.912955733451284,
31.013972240169043; -102.912389969275623, 31.014628028040637; -
102.912099833183859, 31.015288275173923; -102.912212159226485,
31.015195101507882; -102.910513768505638, 31.017209923999967; -
102.908484529126227, 31.019219357013320; -102.906961764318297,
31.020762017382609; -102.906510334381181, 31.021229648922475; -
102.906323124324715, 31.022224022537589; -102.905476410341578,
31.023112694758801; -102.904572468616138,
[[Page 46331]]
31.024095422710321; -102.904098125726293, 31.025607579972412; -
102.904512146691772, 31.026849198511329; -102.904475741511831,
31.028510959127807; -102.903447935740203, 31.030109108839046; -
102.901831302956197, 31.030890242225727; -102.900225068829968,
31.031196566903024; -102.897834397853146, 31.032060033587637; -
102.896823149655987, 31.032898465556570; -102.895449713462554,
31.035155846795476; -102.894484140543042, 31.036422464608236; -
102.892135869908444, 31.037856459486278; -102.890355694384951,
31.038539777638526; -102.889015567482971, 31.039277771567470; -
102.888427464446750, 31.040930483816535; -102.887036917654868,
31.043947412173729.
(ii) Reeves County, Texas, at the East Sandia Spring complex. East
Sandia Spring is located at longitude -103.728918, latitude 30.991012.
The designation includes the springhead itself, surrounding seeps, and
all submergent vegetation and moist soil habitat found at the margins
of these areas. These areas are considered habitat for the Pecos
assiminea. Legal description (geographic projection, North American
Datum 83): Longitude (decimal degrees), Latitude (decimal degrees): -
103.729296238487009, 30.990656960487129; -103.731179077171333,
30.989695620405591; -103.730160658036496, 30.991850361242875; -
103.727182653076312, 30.992477028891606; -103.729159475230986,
30.988608062418542; -103.731179077171333, 30.989695620405591.
3. A map of the Diamond Y Springs Complex and East Sandia Spring
Complex follows:
BILLING CODE 4310-55-P
[[Page 46332]]
[GRAPHIC] [TIFF OMITTED] TR09AU05.000
[[Page 46333]]
Dated: August 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-15486 Filed 8-8-05; 8:45 am]
BILLING CODE 4310-55-C