Endangered and Threatened Wildlife and Plants; Proposed Revision of Critical Habitat for the Comal Springs Dryopid Beetle, Comal Springs Riffle Beetle, and Peck's Cave Amphipod, 64272-64300 [2012-25578]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 77, Number 203 (Friday, October 19, 2012)]
[Proposed Rules]
[Pages 64272-64300]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25578]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0082; 4500030114]
RIN 1018-AY20


Endangered and Threatened Wildlife and Plants; Proposed Revision 
of Critical Habitat for the Comal Springs Dryopid Beetle, Comal Springs 
Riffle Beetle, and Peck's Cave Amphipod

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise designation of critical habitat for the Comal Springs dryopid 
beetle (Stygoparnus comalensis), Comal Springs riffle beetle 
(Heterelmis comalensis), and Peck's cave amphipod (Stygobromus pecki), 
under the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 169 acres (68 hectares) are being proposed for revised 
critical habitat. The proposed revision of critical habitat is located 
in Comal and Hays Counties, Texas.

DATES: We will accept comments received or postmarked on or before 
December 18, 2012. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date. We must receive requests 
for public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by December 3, 2012.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-2-ES-2012-0082, which 
is the docket number for this rulemaking. You may submit a comment by 
clicking on ``Comment Now!.''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments

[[Page 64273]]

Processing, Attn: FWS-R2-ES-2012-008,; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service, 4401 N. Fairfax 
Drive, MS 2042-PDM, Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested section below for more information).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at (https://www.fws.gov/southwest/es/austintexas/), www.regulations.gov at Docket No. FWS-R2-ES-2012-
0082, and at the Austin Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we may develop for this critical habitat designation 
will also be available at the Fish and Wildlife Service Web site and 
field office set out above, and may also be included in the preamble 
and/or at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office, 
10711 Burnet Road, Suite 200, Austin, TX 78758; telephone at 512-490-
0057 extension 248; or by facsimile at 512-490-0974. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, 
any species that is determined to be threatened or endangered requires 
critical habitat to be designated, to the maximum extent prudent and 
determinable. Designations and revisions of critical habitat can only 
be completed by issuing a rule. This is a proposed rule to revise 
critical habitat for the Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod. With this rule, we are 
proposing to revise critical habitat for the three endangered 
invertebrates as follows:
     Comal Springs dryopid beetle: 39.4 acres (ac) (15.56 
hectares (ha)) of surface and 139 ac (56 ha) of subsurface critical 
habitat. The original designation was surface critical habitat of 39.5 
ac (16.0 ha) without subsurface;
     Comal Springs riffle beetle: 54 ac (22 ha) of surface 
critical habitat only. The original designation was surface critical 
habitat of 30.3 ac (12.3 ha) ; and
     Peck's cave amphipod: 38.4 ac (15.16 ha) surface and 138 
ac (56 ha) of subsurface critical habitat. The original designation was 
surface critical habitat of 38.5 ac (15.6 ha) without subsurface.
     Areas that meet the definition of critical habitat for the 
Comal Springs dryopid beetle, Comal Springs riffle beetle, and Peck's 
cave amphipod species that are covered by the Edwards Aquifer Recovery 
Implementation Program Habitat Conservation Plan are being considered 
for exclusion from the final critical habitat designation.
    The proposed critical habitat revision is located in Comal and Hays 
Counties, Texas.
    The basis for our action. Previously, we designated critical 
habitat for these three invertebrates on July 17, 2007 (72 FR 39248). 
However, on January 14, 2009, the Center for Biological Diversity, 
Citizens Alliance for Smart Expansion, and Aquifer Guardians in Urban 
Areas (CBD, et al. v. Kempthorne, No. 1:09-cv-00031-LY (W.D. Tex.)) 
filed suit in Federal Court (Western District of Texas) alleging that 
the Service failed to use the best available science in the critical 
habitat designation. On December 18, 2009, the parties filed a 
settlement agreement where we agreed to submit a revised proposed 
critical habitat determination for publication in the Federal Register 
by October 17, 2012, and a final revised determination by October 13, 
2013. This proposed rule is published in accordance with that 
agreement.
    We are preparing an economic analysis. To ensure that we consider 
the economic impacts, we are preparing a new economic analysis of the 
proposed designation. We will publish an announcement and seek public 
comments on the draft economic analysis when it is completed.
    We will seek peer review. We are seeking comments from independent 
specialists to ensure that our critical habitat designation is based on 
scientifically sound data, assumptions, and analyses. We have invited 
these peer reviewers to comment on our specific assumptions in this 
revision of the critical habitat designations. Because we will consider 
all comments and information received during the comment period, our 
final determinations may differ from this proposal.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned government agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.) including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of the three invertebrates' 
habitats;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Comal Springs dryopid beetle, Comal Springs 
riffle beetle, Peck's cave amphipod, or their proposed critical habitat 
revision.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, any impacts on small entities or families, 
and the benefits of including or excluding areas that exhibit these 
impacts.
    (6) Any data documenting the extent of subsurface areas used by any 
of the species for breeding, feeding, or sheltering.
    (7) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act, in particular for those areas that may 
benefit from the proposed Edwards Aquifer Recovery Implementation

[[Page 64274]]

Program Habitat Conservation Plan (HCP). Copies of the draft HCP are 
available from the Austin Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).
    (8) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. You may request 
at the top of your document that we withhold personal information such 
as your street address, phone number, or email address from public 
review; however, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Austin Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    The final rule to list Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod as endangered species was 
published in the Federal Register on December 18, 1997 (62 FR 66295). 
Critical habitat was not designated at the time of listing due to the 
determination by the Service that designation for the three 
invertebrate species would not provide benefits to the species beyond 
listing and any evaluation of activities required under section 7 of 
the Act. The lack of designated critical habitat for these species was 
subsequently challenged by the Center for Biological Diversity in the 
U.S. District Court for the District of Columbia. As part of a 
stipulated settlement agreement between the plaintiff and the Service, 
the Service subsequently proposed critical habitat on July 17, 2006 (71 
FR 40588), and designated critical habitat for the species on July 17, 
2007 (72 FR 39248).
    On August 28, 2007, the Center for Biological Diversity, Citizens 
Alliance for Smart Expansion, and Aquifer Guardians in Urban Areas 
provided us with a 60-day notice of intent to sue on the final critical 
habitat rule. On January 14, 2009, the plaintiffs filed suit in Federal 
Court (Western District of Texas) alleging that the Service failed to 
use the best available science. On December 18, 2009, the parties filed 
a settlement agreement where we agreed to submit a revised proposed 
critical habitat determination for publication in the Federal Register 
by October 17, 2012, and a final revised determination by October 13, 
2013. This proposed rule is published in accordance with that 
agreement.

Background

    For more information on these species, refer to the final rule 
listing the Comal Springs dryopid beetle, Comal Springs riffle beetle, 
and Peck's cave amphipod that published in the Federal Register on 
December 18, 1997 (62 FR 66295) and the San Marcos & Comal Springs & 
Associated Aquatic Ecosystems (Revised) Recovery Plan (Service 1996), 
available online at https://ecos.fws.gov/docs/recovery_plan/960214.pdf.

Species Information

    The Comal Springs dryopid beetle, Comal Springs riffle beetle, and 
Peck's cave amphipod are all freshwater invertebrates (Gibson et al. 
2008, p. 74). The Comal Springs dryopid beetle has been found in two 
spring systems (Comal Springs and Fern Bank Springs) that are located 
in Comal and Hays Counties, Texas, respectively (Barr and Spangler 
1993, pp. 3, 41). The Comal Springs dryopid beetle is a subterranean 
insect with vestigial (poorly developed, nonfunctional) eyes (Barr and 
Spangler 1992, pp. 40-41). The Comal Springs dryopid beetle larvae are 
thought to inhabit moist areas associated with roots, debris, and soil 
lining the ceiling of subterranean cavities and spring orifices (Barr 
and Spangler 1992, p. 41; Gibson, R. 2012d, pers. comm.).
    The Comal Springs riffle beetle is an aquatic insect that is 
primarily surface-dwelling associated with Comal Springs in Comal 
County and San Marcos Springs in Hays County (Gibson et al. 2008, pp. 
74, 76).
    The Peck's cave amphipod is an eyeless, subterranean (below ground) 
arthropod that has been found in Comal Springs and Hueco Springs (also 
spelled Waco Springs), both located in Comal County (Barr 1993, pp. 3, 
37, 52). The Peck's cave amphipod is likely an omnivore capable of 
consuming detritus and microorganisms from decaying roots near spring 
outlets as well as acting as a scavenger or predator inside the aquifer 
(Gibson, R. 2005, pers. comm.).
    Potential food sources for all three invertebrate species include 
detritus (decomposed materials), leaf litter, and decaying roots. Roots 
not only provide a food source to these invertebrates, but penetrate 
underground into water pools where they can also serve as habitat for 
the amphipod and dryopid beetle. These invertebrate species are 
typically found on roots where they feed on fungus and bacteria (Gibson 
et al. 2008, p. 77, Gibson, R. 2012d pers. comm.).

Habitat Information

    The four spring systems--Comal, San Marcos, Hueco, and Fern Bank--
where these three invertebrate species occur are produced by discharge 
of aquifer water along the Balcones Fault Zone at the edge of the 
Edwards Plateau in central Texas (Gibson et al. 2008, p. 74). These 
spring systems vary in size. Comal Springs and San Marcos Springs are 
the two largest spring systems in Texas with respective mean annual 
flows of 284 and 170 cubic feet per second (8 and 5 cubic meters per 
second) (Fahlquist and Slattery 1997, p. 1; Slattery and Fahlquist 
1997, p. 1). Fern Bank Springs and Hueco Springs have considerably 
smaller flows, and each consists of one main spring with several 
satellite springs or seep areas.
    The source of water flows for Comal Springs and San Marcos Springs 
is the San Antonio segment of the Edwards Aquifer (Lindgren et al. 
2004, pp. 4-6; Lindgren et al. 2009, p. 2). This aquifer is 
characterized by highly varied, below ground spaces that have been 
hollowed out within limestone bedrock through dissolution by rainwater. 
Hueco Springs is recharged from the local watershed basin and possibly 
by the San Antonio segment of the Edwards Aquifer (Guyton and 
Associates 1979, p. 2). The source of water for Fern Bank Springs has 
not been determined, but it is speculated it could be drainage from the 
nearby Edwards Aquifer Recharge Zone, water lost from the Blanco River, 
or a combination of these possible sources (Veni, G. 2006, pers. 
comm.).
    The four spring systems proposed for critical habitat revision are 
characterized by high water quality and relatively constant water 
flows. Although flows from San Marcos Springs can vary according to 
fluctuations in the source aquifer, records indicate that this spring 
system has never ceased flowing since 1894 (Puente 1976, p. 27). Comal 
Springs has a flow record nearly comparable; however, Comal Springs 
ceased flowing from June 13 to November 3, 1956, during a severe 
drought in conjunction with water being pumped from the aquifer (U.S. 
Army Corps of Engineers

[[Page 64275]]

1965, p. 59). Unlike the Comal and San Marcos Springs, the Hueco 
Springs has gone dry a number of times in the past during drought 
periods (Puente 1976, p. 27; Guyton and Associates 1979, p. 46). 
Although flow records are unavailable for Fern Bank Springs, the spring 
system may be perennial (Barr 1993, p. 39).
    Each of the four spring systems and related subterranean aquifers 
typically provide adequate resources to sustain life cycle functions 
for resident populations of the Comal Springs dryopid beetle, Comal 
springs riffle beetle, and the Peck's cave amphipod except during 
extreme drought periods or from excessive groundwater pumping.

New Genetic Information Since the 2007 Final Critical Habitat Rule

    A recent analysis of known Peck's cave amphipod populations 
examined genetic variation to assess population structure within the 
species (Nice and Ethridge 2011, p. 2). This study estimated the degree 
to which the sampling localities of this species were differentiated or 
isolated from each other. Nice and Ethridge (2011, pp. 7-8) found that 
genetic sequences showed high levels of differentiation within and 
among Peck's cave amphipod localities. They also found sequences from 
two distinct haplotypes (a genetic segment or group of genes inherited 
from a single parent) with deep divergence (Nice and Ethridge 2011, pp. 
7-8). The two haplotypes were not geographically separated and often 
co-occurred in similar proportions. This observation suggests that what 
appears to be a single species of Peck's cave amphipod might instead be 
two similar-looking species living together that do not interbreed. 
Another explanation could be that a common ancestor separated some time 
ago causing divergence that resulted in two core subterranean 
populations isolated by hydrogeology. Then over time, these populations 
reconnected at Comal Springs via a downstream dispersal mechanism while 
dispersal upstream into the aquifer (mixing of core populations) might 
be hindered. For example, predation and competition with the 
established community and hydrogeological features such as underground 
waterfalls, tight interstitial spaces, and high flow conduits might 
allow immature individuals to pass downstream but block upstream 
dispersal (Gibson 2012a, pers. comm.). Despite this new information, a 
formal, peer-reviewed description of the two possible species has not 
been published. Therefore, we do not recognize a separation of the 
Peck's cave amphipod into two species because this split has not been 
recognized by the scientific community.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are the 
specific elements of physical or biological features that provide for a 
species' life-history processes and are essential to the conservation 
of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria,

[[Page 64276]]

establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. 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 (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or
    (2) Such designation of critical habitat would not be beneficial to 
the species.
    There is currently no imminent threat of take attributed to 
collection or vandalism for any of these species, and identification 
and mapping of critical habitat is not expected to initiate any such 
threat. In the absence of finding that the designation of critical 
habitat would increase threats to a species, if there are any benefits 
to a critical habitat designation, then a prudent finding is warranted. 
Here, the potential benefits of designation include: (1) Triggering 
consultation under section 7 of the Act, in new areas for actions in 
which there may be a Federal nexus where it would not otherwise occur 
because, for example, it is or has become unoccupied or the occupancy 
is in question; (2) focusing conservation activities on the most 
essential features and areas; (3) providing educational benefits to 
State or county governments or private entities; and (4) preventing 
people from causing inadvertent harm to the species. Therefore, because 
we have determined that the designation of critical habitat will not 
likely increase the degree of threat to the species and may provide 
some measure of benefit, we find that designation of critical habitat 
is prudent for the Comal Springs dryopid beetle, Comal Springs riffle 
beetle, and Peck's cave amphipod, and reaffirmed our previous 
determination concerning the prudency of designating critical habitat 
for these species.

Critical Habitat Determinability

    Having reaffirmed that designation is prudent, under section 
4(a)(3) of the Act we then evaluate whether critical habitat for the 
eight species is determinable. Our regulations at 50 CFR 424.12(a)(2) 
state that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat. When 
critical habitat is not determinable, the Act allows the Service an 
additional year to publish a critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where these species 
are located. This and other information represent the best scientific 
data available and led us to conclude that the designation of critical 
habitat is determinable for the Comal Springs dryopid beetle, Comal 
Springs riffle beetle, and Peck's cave amphipod.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. 
These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographic, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Comal Springs dryopid beetle, Comal Springs riffle beetle, and 
Peck's cave amphipod from studies of this species' habitat, ecology, 
and life history as described below. Additional information can be 
found in the final listing rule published in the Federal Register on 
December 18, 1997 (62 FR 66295), the previous critical habitat 
designation (72 FR 39248, July 17, 2007), the Revised Recovery Plan 
(Service 1996), and the draft Edwards Aquifer Recovery Implementation 
Program Habitat Conservation Plan (HCP). We have determined that the 
following physical or biological features are essential for the Comal 
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave 
amphipod:

[[Page 64277]]

Space for Individual and Population Growth and for Normal Behavior
    Very little is known regarding the space needed by the three 
invertebrate species for individual and population growth and for 
normal behavior. The Peck's cave amphipod and Comal Springs dryopid 
beetle are most commonly found in subterranean areas where plant roots 
are inundated or otherwise influenced by aquifer water. Gibson et al. 
(2008) found Peck's cave amphipod in gravel, rocks, and organic debris 
(leaves, roots, wood) immediately inside of or adjacent to springs, 
seeps, and upwellings of Comal Springs and their impoundment, Landa 
Lake. They were not observed in nearby surface habitats. Gibson et al. 
(2008, p. 76) collected Peck's cave amphipods in drift nets (a net that 
floats freely on surface water) which were placed over spring openings 
at Hueco and Comal springs. At Panther Canyon Well, specimens were 
collected in a baited bottle trap, which is located about 360 feet (ft) 
(110 meters (m)) from Comal Spring Run No. 1 (Gibson et al. 2008, p. 
76; R. Gibson 2012b, pers. comm.). Gibson et al. (2008, p. 77), also 
found Comal Springs riffle beetles in drift nets at Comal Springs that 
were placed in or over spring openings. Therefore, based on the 
information above, we identify springs, associated streams, and 
underground spaces immediately inside of or adjacent to springs, seeps, 
and upwellings to be a primary component of the physical or biological 
features essential to the conservation of the Comal Springs dryopid 
beetle, Comal Springs riffle beetle, and Peck's cave amphipod.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Food--Although specific food requirements of the three invertebrate 
species are unknown, potential food sources for all three invertebrate 
species include detritus (decomposed plant materials), leaf litter, and 
decaying roots. It is possible that the Comal Springs dryopid beetle, 
Comal Springs riffle beetle, and Peck's cave amphipod all feed on 
microorganisms such as bacteria and fungi associated with decaying 
riparian vegetation. Both beetle species likely are detritivores 
(detritus-feeding animals) that consume detrital materials from spring-
influenced riparian (associated with rivers, creeks, or other water 
bodies) zones (Brown 1987, p. 262; Gibson et al. 2008, p. 77). Riparian 
vegetation is likely important for these species as they are typically 
found on roots where they feed on fungus and bacteria (Gibson et al. 
2008, p. 77, Gibson 2012c, pers. comm.). Larvae of the Comal Springs 
dryopid beetle are also presumed to feed on bacteria and fungi 
associated with roots, debris, and soil lining the ceilings of 
subterranean cavities (Barr and Spangler 1992, p. 41). Available 
evidence suggests Peck's cave amphipod is likely an omnivore (consumes 
everything available including both animal and plant matter). It can 
feed as a scavenger or predator within the aquifer and as a detrivore 
where plant roots are exposed providing a medium for microbial growth 
as well as a food source to potential prey (Gibson 2012a, pers. comm.). 
Among other things, trees and shrubs in riparian areas adjacent to the 
spring system provide plant growth necessary to maintain food sources 
such as decaying material for these invertebrates. Roots from trees and 
shrubs in proximity to spring outlets are most likely to penetrate 
underground down to the water pools where these roots can serve as 
habitat for the amphipod and dryopid beetle.
    Therefore, based on the information above, we identify sources of 
detritus (decomposed materials), leaf litter, and decaying roots of 
riparian vegetation to be primary components of the physical or 
biological features essential to the conservation of the Comal Springs 
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod.
    Water--The Comal Springs dryopid beetle, Comal Springs riffle 
beetle, and Peck's cave amphipod are all spring-adapted, aquatic 
species dependent on high-quality, unpolluted groundwater that has low 
levels of salinity and turbidity. The two beetle species are generally 
associated with water that has adequate levels of dissolved oxygen for 
respiration (Brown 1987, p. 260; Arsuffi 1993, p. 18). High-quality 
discharge water from springs and adjacent subterranean areas help 
sustain habitat components essential to these three aquatic 
invertebrate species.
    The temperature of spring water emerging from the Edwards Aquifer 
at Comal Springs and San Marcos Springs ordinarily occurs within a 
narrow range of approximately 72 to 75 Fahrenheit degrees ([deg]F) (22 
to 24 Celsius degrees ([deg]C)) (Fahlquist and Slattery 1997, pp. 3-4; 
Groeger et al. 1997, pp. 282-283). Hueco Springs and Fern Bank Springs 
have temperature records of 68 to 71 [deg]F (20 to 22 [deg]C) (George 
1952, p. 52; Brune 1975, p. 94; Texas Water Development Board 2006, p. 
1). The three listed invertebrate species complete their life-cycle 
functions within these relatively narrow temperature ranges.
    Each of these four spring systems typically provide adequate 
resources to sustain life-cycle functions for resident populations of 
the Comal Springs dryopid beetle, Comal Springs riffle beetle, or 
Peck's cave amphipod. However, a primary threat to the three 
invertebrate species is the potential failure of spring flow due to 
drought or groundwater pumping, which could result in loss of aquatic 
habitat for the species.
    Barr (1993, p. 55) found Comal Springs dryopid beetles in spring 
flows with low- and high-volume discharge and suggested that presence 
of the species was not necessarily dependent on high spring flow. 
However, Barr (1993, p. 61) noted that effects on both subterranean 
species (dryopid beetle and amphipod) from extended loss of spring flow 
and low aquifer levels could not be predicted since details of their 
life cycles are unknown.
    Riffle beetles are most commonly associated with flowing water that 
has shallow riffles or rapids (Brown 1987, p. 253). Riffle beetles are 
restricted to waters with high dissolved oxygen due to their reliance 
on a plastron (thin sheet of air held by water-repellent hairs of some 
aquatic insects) that is held next to the surface of the body by a mass 
of water-repellent hairs. The mass of water-repellent hairs function as 
a physical gill by allowing oxygen to passively diffuse from water into 
the plastron in order to replace oxygen absorbed during respiration 
(Brown 1987, p. 260). However, slow-moving insects like riffle beetles 
are limited to habitats with high oxygen levels because oxygen will 
diffuse away from the beetle if concentrations are higher in the 
plastron than in the surrounding water (Resh et al. 2008, pp. 44-45).
    Bowles et al. (2003, p. 379) pointed out that the mechanism by 
which the Comal Springs riffle beetle survived the 1950s drought and 
the extent to which its population was negatively impacted are unknown. 
Bowles et al. (2003, p. 379) speculated that the riffle beetle may be 
able to retreat back into spring openings or burrow down to the 
hyporheos (groundwater zone) below the stream channel. In reference to 
the Comal Springs population of the riffle beetle, Bowles et al. (2003, 
p. 380) stated that ``Reductions in water levels in the Edwards Aquifer 
to the extent that spring-flows cease likely would have devastating 
effects on * * * [this] population of this species and could result in 
its extinction.''
    Therefore, based on the information above, we identify unpolluted, 
high-quality water with stable temperatures flowing through 
subterranean habitat

[[Page 64278]]

and exiting at spring openings to be primary components of the physical 
or biological features essential to the conservation of the Comal 
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave 
amphipod.
Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species
    These freshwater invertebrates rely on spring water that follows 
established hydrological flow paths within a limestone aquifer before 
emerging. Water inside limestone aquifers flows through fractures, 
pores, cave stream channels, and conduits (open channels) that have 
been hollowed out within the limestone by dissolution processes (White 
1988, pp. 119-148, 150-151). Alteration of subsurface water flows 
through destruction of geologic features (for example, excavation) or 
creation of impediments to flow (for example, concrete filling) in 
proximity to spring outlets could negatively alter the hydraulic 
connectivity necessary to sustain these species. Areas of subsurface 
habitat must remain intact to provide adequate space for feeding, 
breeding, and sheltering of the two subterranean species (amphipod and 
dryopid beetle). In addition, subsurface habitat must remain intact 
with sufficient hydraulic connectivity of flow paths and conduits to 
ensure that other constituent elements (water quality, water quantity, 
and food supply) for the proposed critical habitat remain adequate for 
all three listed invertebrates.
    Although Comal Springs riffle beetles occur in conjunction with a 
variety of bottom substrates that underlay these flow paths, Bowles et 
al. (2003, p. 372) found that these beetles mainly occurred in areas 
with gravel and cobble ranging between 0.3 to 5.0 in (inches) (8 to 128 
millimeters (mm)) and did not occur in areas dominated by silt, sand, 
and small gravel. Collection efforts in areas of high sedimentation 
generally do not yield riffle beetles (Bowles et al. 2003, p. 376; 
Gibson, 2012d, pers. comm.).
    Therefore, based on the information above, we identify spring water 
that follows established hydrological flow paths within a limestone 
aquifer to be a primary component of the physical or biological 
features essential to the conservation of the Comal Springs dryopid 
beetle, Comal Springs riffle beetle, and Peck's cave amphipod.
Primary Constituent Elements for the Comal Springs Dryopid Beetle, 
Comal Springs Riffle Beetle, and Peck's Cave Amphipod
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the three invertebrates in areas occupied at the time 
of listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be the elements of physical or 
biological features that provide for a species' life-history processes 
and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to the Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod are:
    (1) Springs, associated streams, and underground spaces immediately 
inside of or adjacent to springs, seeps, and upwellings that include:
    (a) High-quality water with no or minimal pollutant levels of 
soaps, detergents, heavy metals, pesticides, fertilizer nutrients, 
petroleum hydrocarbons, and semivolatile compounds such as industrial 
cleaning agents; and
    (b) Hydrologic regimes similar to the historical pattern of the 
specific sites must be present, with continuous surface flow from the 
spring sites and in the subterranean aquifer.
    (2) Spring system water temperatures that range from 68 to 
75[emsp14][deg]F (20 to 24 [deg]C).
    (3) Food supply that includes, but is not limited to, detritus 
(decomposed materials), leaf litter, living plant material, algae, 
fungi, bacteria, other microorganisms, and decaying roots.
    With this proposed designation of critical habitat, we intend to 
identify the physical or biological features essential to the 
conservation of the species, through the identification of the 
features' primary constituent elements sufficient to support the life-
history processes of the species. All units proposed to be revised as 
critical habitat designation are currently occupied by one or more of 
the three invertebrates and contain the primary constituent elements 
sufficient to support the life-history needs of the species.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographic area occupied by the species at the time of 
listing contain features, which are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    For the Comal Springs dryopid beetle, Comal Springs riffle beetle, 
and Peck's cave amphipod, threats to adequate water quantity and 
quality (PCEs 1 and 2) include alterations to the natural flow regimes 
affecting the aquifer recharge system and its associated springs, 
streams, and riparian areas. Threats to water quantity and quality 
include water withdrawals, impoundment, and diversions; hazardous 
material spills; stormwater drainage pollutants including soaps, 
detergents, pharmaceuticals, heavy metals, fertilizer nutrients, 
petroleum hydrocarbons, and semivolatile compounds such as industrial 
cleaning agents; pesticides and herbicides associated with pathogenic 
organisms or invasive species; invasive species altering the surface 
habitat; excavation and construction surrounding the springs and in the 
watershed; and climate change. All of these threats are known to be 
ongoing at various levels in and around the Edwards Aquifer ecosystem. 
Examples of management actions that would ameliorate these threats 
include: (1) Maintenance of sustainable groundwater use and subsurface 
flows; (2) use of adequate buffers for water quality protection; (3) 
selection of appropriate pesticides and herbicides; and (4) 
implementation of integrated pest management plans to manage existing 
invasive species as well as preventing the introduction of additional 
invasive species.
    Climate change could potentially affect water quantity and spring 
flow as well as the food supply (PCEs 1, 2, and 3) for the Comal 
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's Cave 
amphipod. According to the Intergovernmental Panel on Climate Change 
(IPCC; 2007, p. 1), ``warming of the climate system is unequivocal, as 
is now evident from observations of increases in global averages of air 
and ocean temperatures, widespread melting of snow and ice, and rising 
global average sea level.'' Localized projections suggest the 
southwestern United States may experience the greatest temperature 
increase of any area in the lower 48 States (IPCC 2007, p. 8), with 
warming increases in southwestern States greatest in the summer. The 
IPCC also predicts hot extremes, heat waves, and heavy precipitation 
will increase in frequency (IPCC 2007, p. 8).
    The degree to which climate change will affect habitats of the 
Comal Springs

[[Page 64279]]

dryopid beetle, Comal Springs riffle beetle, and Peck's Cave amphipod 
is uncertain. Climate change will be a particular challenge for 
biodiversity in general because the interaction of additional stressors 
associated with climate change and current stressors may push species 
beyond their ability to survive (Lovejoy 2005, pp. 325-326). The 
synergistic implications of climate change and habitat fragmentation 
are the most threatening facets of climate change for biodiversity 
(Hannah and Lovejoy 2005, p. 4). Current climate change predictions for 
terrestrial areas in the Northern Hemisphere indicate warmer air 
temperatures, more intense precipitation events, and increased summer 
continental drying (Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 
12422; Cayan et al. 2005, p. 6; IPCC 2007, p. 1181). Climate change may 
lead to increased frequency and duration of severe storms and droughts 
(McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015; Golladay 
et al. 2004, p. 504).
    An increased risk of drought could occur if evaporation exceeds 
precipitation levels in a particular region due to increased greenhouse 
gases in the atmosphere (CH2M HILL 2007, p. 18). The Edwards Aquifer is 
also predicted to experience additional stress from climate change that 
could lead to decreased recharge and low or ceased spring flows given 
increasing pumping demands (Lo[aacute]iciga et al. 2000, pp. 192-193). 
CH2M HILL (2007, pp. 22-23) identified possible effects of climate 
change on water resources within the Lower Colorado River Watershed 
(which contributes recharge to Barton Springs). Barton Springs is fed 
by the Barton Springs segment of the Edwards Aquifer, not far to the 
north of the area used by these invertebrates. A reduction of recharge 
to aquifers and a greater likelihood for more extreme droughts were 
identified as potential impacts to water resources (CH2M HILL 2007, p. 
23). The droughts of 2008-2009 and 2010-2011 were two of the worst 
short-term droughts in central Texas history, with the period from 
October 2010 through September 2011 being the driest 12-month period in 
Texas since rainfall records began (Lower Colorado River Authority 
(LCRA) 2011, p. 1). As a result, the effects of climate change could 
compound the threat of decreased water quantity due to drought.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time 
of listing--are necessary to ensure the conservation of the species. We 
are proposing to designate critical habitat in areas within the 
geographical area occupied by the species at the time of listing in 
1997.
    During our preparation for proposing critical habitat for these 
three endangered invertebrate species, we reviewed the best available 
scientific information including: (1) Historical and current occurrence 
records, (2) information pertaining to habitat features for these 
species, and (3) scientific information on the biology and ecology of 
each species. We have also reviewed a number of studies and surveys of 
the three listed invertebrates including: Holsinger (1967), Bosse et 
al. (1988), Barr and Spangler (1992), Arsuffi (1993), Barr (1993), Bio-
West (2001), Bio-West (2002a), Bio-West (2002b), Bio-West (2003), 
Bowles et al. (2003), Bio-West (2004), Fries et al. (2004), and Gibson 
et al. (2008).
    Based on this review, the proposed critical habitat areas described 
below constitute our best assessment at this time of areas that: (1) 
Are within the geographical range occupied by at least one of the three 
invertebrate species, and (2) contain features essential to the 
conservation of these species which may require special management 
considerations or protections. All areas proposed to be designated as 
critical habitat are occupied by at least one of the three 
invertebrates and contain sufficient primary constituent elements to 
support the life functions of the resident species. We defined the 
boundaries of each species based on the below criteria.
Comal Springs Dryopid Beetle
    We identified both surface and subsurface components of critical 
habitat for this species, which has been found in Comal Springs and 
Fern Bank Springs in Comal and Hays Counties, Texas. However, this 
species was recently collected from Panther Canyon Well, located about 
360 ft (110 m) away from the spring outlet of Spring Run No. 1 (Barr 
and Spangler 1992, p. 42; Gibson 2012e, pers. comm.). Collections made 
from 2003 to 2009 further extended the known range of the beetle within 
the Comal Springs system to all major spring runs, seeps along the 
western shoreline of Landa Lake (the impounded portion of the Comal 
Springs system), Landa Lake upwellings in the Spring Island area, and 
Panther Canyon Well (Bio-West, Inc. 2003, p. 34; Bio-West 2004, pp. 5-
6; Bio-West 2005, pp. 5-6; Bio-West 2006, p. 37; Bio-West to 2009, pp. 
40-43; R. Gibson 2012e, pers. comm.). This information indicates that 
the Comal Springs dryopid beetle can travel through the aquifer up to a 
distance of 360 ft (110 m); therefore, we used this distance from 
spring outlets to identify the subsurface area of critical habitat for 
this species.
    To determine surface critical habitat, we used an area consisting 
of a 50-ft (15-m) distance from spring outlets. We used this area 
because this distance has been found to contain food sources where 
plant roots interface with water flows of the spring systems. This 50-
ft (15-m) distance defines the lateral extent of surface critical 
habitat that contains elements necessary to provide for life functions 
of this species with respect to roots that can penetrate into the 
aquifer. The 50-ft (15-m) distance was calculated from evaluations of 
aerial photographs and is based on tree and shrub canopies occurring in 
proximity to spring outlets. Extent of canopy cover reflects the 
approximate distances where plant root systems interface with water 
flows of the two spring systems. Critical habitat unit boundaries were 
delineated by creating approximate areas for the units by screen-
digitizing polygons (map units) using ArcMap, version 10 (Environmental 
Systems Research Institute, Inc.) and 2011 aerial imagery.
Comal Springs Riffle Beetle
    For the Comal Springs riffle beetle, we only identified surface 
critical habitat because this species' habitat is primarily restricted 
to surface water, which is located in two impounded spring systems in 
Comal and Hays Counties, Texas. In Comal County, this aquatic beetle is 
found in various spring outlets of Comal Springs that occur within 
Landa Lake over a linear distance of approximately 0.9 mi (1.4 km). The 
species has also been found in outlets of San Marcos Springs in the 
upstream portion of Spring Lake in Hays County. However, populations of 
Comal Springs riffle beetles may exist elsewhere in Spring Lake 
(excluding a slough portion that lacks spring outlets), but sampling 
for riffle beetles at spring outlets within the lake has only been done 
on a limited basis. Excluding the slough portion that lacks spring 
outlets, the approximate linear distance of Spring Lake at its greatest 
length is 0.2 mi (0.3 km). Critical habitat unit boundaries for surface 
area were delineated using the same criteria as described above for the 
Comal Springs dryopid beetle.

[[Page 64280]]

Peck's Cave Amphipod
    We identified both surface and subsurface components of critical 
habitat for this species, which has been found in Comal Springs and 
Hueco Springs, both located in Comal County, Texas. The extent to which 
this subterranean species exists below ground away from spring outlets 
is unknown; however, other species within the genus Stygobromus are 
widely distributed in groundwater and cave systems (Holsinger 1972, p. 
65). Like the Comal Springs dryopid beetle, the Peck's cave amphipod 
has been collected from the bottom of Panther Canyon Well, which is 
located about 360 ft (110 m) away from the spring outlet of Spring Run 
No. 1 in the Comal Springs complex (Barr and Spangler 1992, p. 42; 
Gibson et al. 2008, p. 76). To determine surface critical habitat, we 
used a 50-ft (15-m) distance from the shoreline of both Comal Springs 
and Hueco Springs (including several satellite springs that are located 
between the main outlet of Hueco Springs and the Guadalupe River) to 
include amphipod food sources in the root-water interfaces around 
spring outlets. Critical habitat unit boundaries were delineated using 
the same criteria as described above for the other two invertebrate 
species.
    The definition of critical habitat under the Act includes areas 
outside the geographical area occupied by the species at the time of 
listing, if those areas are found to be essential to the conservation 
of the species. In the case of the Comal Springs dryopid beetle, Comal 
Springs riffle beetle, and Peck's cave amphipod, the geographical area 
occupied by the species at the time of listing encompasses the known 
historic range of these species. As such, we have not found any areas 
outside the geographical areas occupied by these species at the time of 
their listing to be essential to the conservation of these species and, 
therefore, we are not proposing to designate any unoccupied areas as 
critical habitat.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures on the surface that lack 
physical or biological features necessary for the Comal Springs dryopid 
beetle, Comal Springs riffle beetle and Peck's cave amphipod. 
Subterranean critical habitat for the Comal Springs dryopid beetle and 
Peck's cave amphipod may extend under such structures and remains part 
of the critical habitat. The scale of the maps we prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such developed lands. Any such lands 
inadvertently left inside critical habitat boundaries shown on the maps 
of this proposed rule have been excluded by text in the proposed rule 
and are not proposed for designation as critical habitat. Therefore, if 
the critical habitat is finalized as proposed, a Federal action 
involving these lands would not trigger section 7 consultation with 
respect to critical habitat and the requirement of no adverse 
modification unless the specific action would affect the physical or 
biological features in the adjacent critical habitat.
    We are proposing for designation of critical habitat lands that we 
have determined are occupied at the time of listing and contain 
sufficient elements of physical or biological features to support life-
history processes essential for the conservation of the species.
    Units were proposed for designation based on sufficient elements of 
physical or biological features being present to support Comal Springs 
dryopid beetle, Comal Springs riffle beetle, and Peck's cave amphipod 
life-history processes. All units contain all of the identified 
elements of physical or biological features and support multiple life-
history processes.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-2012-0082, on our Internet 
sites https://www.fws.gov/southwest/es/austintexas/, and at the field 
office responsible for the designation (see FOR FURTHER INFORMATION 
CONTACT above).

Summary of Changes From Previously Designated Critical Habitat

    The areas identified in this proposed rule constitute a proposed 
revision of the areas we designated as critical habitat for the Comal 
Springs dryopid beetle, Comal Springs riffle beetle, and Peck's cave 
amphipod on July 17, 2007 (72 FR 39248). The significant differences 
between the 2007 rule and this proposal are:
    (1) In the 2007 critical habitat rule for these species, we did not 
designate subsurface critical habitat. However, we are designating 
subsurface critical habitat for the Comal Springs dryopid beetle and 
the Peck's cave amphipod in this rule.
    (2) The amount of critical habitat is increasing in this proposed 
rule because (1) we are including subsurface habitat for the Comal 
Springs dryopid beetle and Peck's Cave amphipod, and (2) we are 
including the area 50 ft (15 m) from the shoreline for the Comal 
Springs riffle beetle.
    (3) The primary constituent elements have been consolidated from 
five in the original critical habitat rule to three to better 
incorporate and define subsurface attributes.

Proposed Critical Habitat Designation

    We are proposing four units as critical habitat for the three 
invertebrates. The critical habitat areas we describe below constitute 
our current best assessment of areas that meet the definition of 
critical habitat for the Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod. The four units we propose as 
critical habitat are: (1) Comal Springs, (2) Hueco Springs, (3) Fern 
Bank Springs, and (4) San Marcos Springs. Table 1 shows the occupied 
units, and Tables 2, 3, and 4 provide the approximate area of each 
proposed critical habitat unit for each species.

   Table 1--Occupancy of Comal Springs Dryopid Beetle, Comal Spring Riffle Beetle, and Peck's Cave Amphipod by
                                         Proposed Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
                                      Occupied at time of
               Unit                         listing?             Currently occupied?     Listed species in unit
----------------------------------------------------------------------------------------------------------------
1. Comal Springs.................  Yes......................  Yes.....................  Comal Springs dryopid
                                                                                         beetle, Comal Springs
                                                                                         riffle beetle, and
                                                                                         Pecks cave amphipod.
2. Hueco Springs.................  Yes......................  Yes.....................  Peck's cave amphipod.
3. Fern Bank Springs.............  Yes......................  Yes.....................  Comal Springs dryopid
                                                                                         beetle.

[[Page 64281]]

 
4. San Marcos Springs............  Yes......................  Yes.....................  Comal Springs riffle
                                                                                         beetle.
----------------------------------------------------------------------------------------------------------------


 Table 2--Proposed Critical Habitat Units for the Comal Springs Dryopid Beetle. Area Estimates Reflect All Land
                                     Within Critical Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
                                                                 Size of unit in acres    Size of unit in acres
 Critical habitat units for the Comal   Land ownership by type   (hectares) (subsurface    (hectares) (surface
        Springs Dryopid Beetle                                     critical habitat)        critical habitat)
----------------------------------------------------------------------------------------------------------------
1. Comal Springs.....................  State, City, Private...                 124 (50)                  38 (15)
2. Fern Bank Springs.................  Private................                   15 (6)               1.4 (0.56)
                                                               -------------------------------------------------
    Total............................  .......................                 139 (56)             39.4 (15.56)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


  Table 3--Proposed Critical Habitat Units for the Comal Springs Riffle
  Beetle. Area Estimates Reflect All Land Within Critical Habitat Unit
                               Boundaries
------------------------------------------------------------------------
  Critical habitat units for                      Size of unit in acres
   the comal springs riffle     Land ownership     (hectares) (surface
            beetle                  by type         critical habitat)
------------------------------------------------------------------------
1. Comal Springs.............  State, City,                      38 (15)
                                Private.
2. San Marcos Springs........  State...........                   16 (6)
                                                ------------------------
    Total....................  ................                  54 (22)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


  Table 4--Proposed Critical Habitat Units for the Peck's Cave Amphipod. Area Estimates Reflect All Land Within
                                        Critical Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
                                                                 Size of unit in acres    Size of unit in acres
Critical habitat units for the Peck's   Land ownership by type   (hectares) (subsurface    (hectares) (surface
            Cave amphipod                                          critical habitat)             habitat)
----------------------------------------------------------------------------------------------------------------
1. Comal Springs.....................  State, City, Private...                 124 (50)                  38 (15)
2. Hueco Springs.....................  Private................                   14 (6)               0.4 (0.16)
                                                               -------------------------------------------------
    Total............................  .......................                 138 (56)             38.4 (15.16)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Comal Springs dryopid 
beetle, Comal Springs riffle beetle, and Peck's cave amphipod, below.

Unit 1: Comal Springs Unit

    The purpose of this unit is to independently support a population 
of Comal Springs dryopid beetle, Comal Springs riffle beetle, and 
Peck's cave amphipod in a functioning spring system with associated 
streams and underground spaces immediately inside of or adjacent to 
springs, seeps, and upwellings that provide suitable water quality, 
supply, and detritus (decomposed plant material).
    Unit 1 contains Comal Springs and consists of 124 ac (50 ha) of 
subsurface critical habitat for the Comal Springs dryopid beetle and 
the Peck's cave amphipod (Table 2 and 4). Unit 1 also contains 38 ac 
(15 ha) of surface habitat for these two species along with the Comal 
Springs riffle beetle (Table 3). This unit was occupied at the time of 
listing and is still occupied by the Comal Springs dryopid beetle, 
Comal Springs riffle beetle, and Peck's cave amphipod (Table 1).
    The Comal Springs Unit is owned by the State, City of New 
Braunfels, and private landowners in southern Comal County, Texas. A 
large portion of the unit is operated as a city park (Landa Park) with 
private residences and landscaped yards along the edge of the lower 
part of the unit. The surface water and bottom of Landa Lake are State-
owned. The City of New Braunfels owns approximately 40 percent of the 
land surface adjacent to the lake, and private landowners own 
approximately 60 percent. This nearly L-shaped lake is surrounded by 
the City of New Braunfels. The spring system primarily occurs as a 
series of spring outlets that lie along the west shore of Landa Lake 
and within the lake itself. Practically all of the spring outlets and 
spring runs associated with Comal Springs occur within the upper part 
of the lake above the confluence of Spring Run No. 1 to the lake. The 
unit is also occupied by the federally listed fountain darter 
(Etheostoma fonticola).
    This unit contains all of the essential physical and biological 
features for these species. The physical or biological features in this 
unit require special management or protection because of the potential 
for depletion of spring flow from water withdrawals, hazardous 
materials spills from a variety of sources

[[Page 64282]]

in the watershed, pesticide use throughout the watershed, excavation 
and construction surrounding the springs and in the watershed, 
stormwater pollutants in the watershed, and invasive species impacts on 
the surface habitat.

Unit 2: Hueco Springs

    The purpose of this unit is to independently support a population 
of Peck's cave amphipod in a functioning spring system with associated 
streams and underground spaces immediately inside of or adjacent to 
springs, seeps, and upwellings that provide suitable water quality, 
supply, and detritus (decomposed plant material).
    Unit 2 contains Hueco Springs and consists of 14 ac (6 ha) of 
surface and 0.4 ac (0.16 ha) of subsurface critical habitat for the 
Peck's cave amphipod (Table 4). This unit was occupied at the time of 
listing and is still occupied by the Peck's cave amphipod (Table 1).
    The Hueco Springs Unit is on private land in Hays County, Texas. 
The property is primarily undeveloped. The spring system has a main 
outlet that is located approximately 0.1 mi (0.2 km) south of the 
junction of Elm Creek with the Guadalupe River in Comal County. The 
main outlet itself lies approximately 500 ft (152 m) from the west bank 
of the Guadalupe River. Several satellite springs lie further south 
between the main outlet and the river. The main outlet of Hueco Springs 
is located on undeveloped land, but the associated satellite springs 
occur within a privately owned campground for recreational vehicles. 
There is an access road to a field for parking, but no facilities or 
utilities.
    This unit contains all of the essential physical and biological 
features for this species. The physical or biological features in this 
unit require special management because of the potential for depletion 
of spring flow from water withdrawals, pesticide use throughout the 
watershed, and excavation and construction surrounding the springs and 
in the watershed.

Unit 3: Fern Bank Springs

    The purpose of this unit is to independently support a population 
of Comal Springs dryopid beetle in a functioning spring system with 
associated streams and underground spaces immediately inside of or 
adjacent to springs, seeps, and upwellings that provide suitable water 
quality, supply, and detritus (decomposed plant material).
    Unit 3 contains Fern Bank Springs and consists of 15 ac (6 ha) of 
surface and 1.4 ac (0.56 ha) subsurface critical habitat for the Comal 
Springs dryopid beetle (Table 2). This unit was occupied at the time of 
listing and is still occupied by the Comal Springs dryopid beetle 
(Table 1),
    The Fern Bank Springs Unit is on private land in Hays County, 
Texas, approximately 0.2 mi (0.4 km) east of the junction of Sycamore 
Creek with the Blanco River. The property and surrounding area are 
primarily undeveloped. However, there is one rural residential home 
with property overlooking the springs which is a small portion of this 
unit. The spring system consists of a main outlet and a number of seep 
springs that occur at the base of a high bluff overlooking the Blanco 
River.
    This unit contains all of the essential physical and biological 
features for this species. The physical or biological features in this 
unit require special management because of the potential for depletion 
of spring flow from water withdrawals, pesticide use throughout the 
watershed, and excavation and construction surrounding the springs and 
in the watershed.

Unit 4: San Marcos Springs

    The purpose of this unit is to independently support a population 
of Comal Springs riffle beetle in a functioning spring system with 
associated streams that provide suitable water quality, supply, and 
detritus (decomposed plant material).
    Unit 4 contains San Marcos Springs and consists of 16 ac (6 ha) of 
surface critical habitat for the Comal Springs riffle beetle (Table 3). 
This unit was occupied at the time of listing and is still occupied by 
the Comal Springs riffle beetle (Table 1).
    This unit is located on State lands in the City of San Marcos, Hays 
County, Texas. In addition to the Comal Springs riffle beetle, the San 
Marcos Springs system provides habitat for five other federally listed 
species: (1) The endangered fountain darter, (2) the endangered San 
Marcos gambusia (Gambusia georgei), (3) the threatened San Marcos 
salamander (Eurycea nana), (4) the endangered Texas blind salamander 
(Typhlomolge rathbuni), and (5) the endangered Texas wild-rice (Zizania 
texana). Critical habitat has been designated for the fountain darter, 
San Marcos gambusia, San Marcos salamander, and Texas wild-rice within 
San Marcos Springs and portions of the San Marcos River that lie 
downstream from Spring Lake.
    This unit contains all of the essential physical and biological 
features for this species. The physical or biological features in this 
unit require special management or protection because of the potential 
for depletion of spring flow from water withdrawals, hazardous 
materials spills from a variety of sources in the watershed, pesticide 
use throughout the watershed, excavation and construction surrounding 
the springs and in the watershed, stormwater pollutants in the 
watershed, and invasive species impacts on the surface habitat.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal

[[Page 64283]]

Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local, or 
private lands that are not federally funded or authorized, do not 
require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying 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.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the Comal Springs dryopid 
beetle, Comal Springs riffle beetle, and Peck's cave amphipod. As 
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the three invertebrates. These activities include, but 
are not limited to:
    (1) Actions that would change the existing flow regimes and would 
thereby significantly and detrimentally alter the primary constituent 
elements necessary for conservation of these species. Such activities 
could include, but are not limited to, water withdrawal, impoundment, 
and water diversions. These activities could eliminate or reduce the 
habitat necessary for the growth and reproduction of these species.
    (2) Actions that would introduce, spread, or augment nonnative 
species could destroy or adversely modify the critical habitat of any 
listed invertebrate species. Such actions could include, but are not 
limited to, stocking or otherwise transporting nonnative species into 
critical habitat for any purpose.
    (3) Actions that would alter current habitat conditions. Such 
actions include, but are not limited to, the release of chemical or 
biological pollutants into the surface water or connected groundwater 
at a point source or by dispersed release (nonpoint source). These 
activities could alter water conditions to a point that extend beyond 
the tolerances of the Comal Springs dryopid beetle, Comal Springs 
riffle beetle, or Peck's cave amphipod, and result in direct or 
cumulative adverse effects to these individuals and their life cycles 
or eliminate or reduce the habitat necessary for the growth, 
reproduction, and survival of these invertebrate species.
    (4) Actions that would physically remove or alter the habitat used 
by the three invertebrates. These activities could lead to increased 
sedimentation and degradation in water quality to levels that are 
beyond the tolerances of the Comal Springs dryopid beetle, Comal 
Springs riffle beetle, or Peck's cave amphipod. Such activities could 
include, but are not limited to, channelization, impoundment, road and 
bridge construction, deprivation of substrate source, destruction and 
alteration of riparian vegetation, and excessive sedimentation from 
road construction, vegetation removal, recreational facility 
development, and other watershed disturbances.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i)

[[Page 64284]]

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary 
shall not designate as critical habitat any lands or other geographic 
areas owned or controlled by the Department of Defense, or designated 
for its use, that are subject to an integrated natural resources 
management plan prepared under section 101 of the Sikes Act (16 U.S.C. 
670a), if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the proposed critical habitat designation.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. The proposed critical habitat areas include Federal, State, 
tribal, and private lands, some of which are used for mining and 
recreation (such as hiking, camping, horseback riding, and hunting). 
Other land uses that may be affected will be identified as we develop 
the draft economic analysis for the proposed designation.
    Key findings in the economic analysis for the 2007 final rule 
designating critical habitat predicted for the next 20 years are 
impacts primarily associated with water use changes including 
reductions in water withdrawals, and subsequently, increased water 
costs. Other costs included conservation efforts and a restoration 
project specific to San Marcus and Comal Springs. The majority of the 
economic impacts quantified in this analysis were a result of the 
presence of eight endangered species including the three Comal Springs 
invertebrates. Because all the species reside in the same habitat, 
separating future impacts of these three invertebrates from the other 
listed species in the aquifer was not possible.
    During the development of a final designation, we will consider 
economic impacts, public comments, and other new information, and areas 
may be excluded from the final critical habitat designation under 
section 4(b)(2) of the Act and our implementing regulations at 50 CFR 
424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for the Comal Springs dryopid beetle, Comal Springs riffle 
beetle, and Peck's cave amphipod are not owned or managed by the 
Department of Defense, and, therefore, we anticipate no impact on 
national security. Consequently, the Secretary is not intending to 
exercise his discretion to exclude any areas from the final designation 
based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
Land and Resource Management Plans, Conservation Plans, or Agreements 
Based on Conservation Partnerships
    We consider a current land management or conservation plan (HCPs as 
well as other types) to provide adequate management or protection if it 
meets the following criteria:
    (1) The plan is complete and provides the same or better level of 
protection from adverse modification or destruction than that provided 
through a consultation under section 7 of the Act;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    We believe that the Edwards Aquifer Recovery Implementation Program 
(EARIP) Habitat Conservation Plan may fulfill the above criteria, and 
will consider the exclusion of the lands covered by this plan that 
provide for the conservation of the Comal Springs dryopid beetle, Comal 
Springs riffle beetle, and Peck's cave amphipod. The EARIP HCP is 
intended to resolve the longstanding conflict between the federal 
mandate to protect threatened and endangered species associated with 
the Edwards Aquifer and the region's dependence on the same aquifer as 
its primary water resource. Through the EARIP HCP, the Edwards Aquifer 
Authority, San Antonio Water System, City of New Braunfels, City of San 
Marcos, and Texas State University will be implementing actions to 
minimize and mitigate the effects of pumping, to conserve the Aquifer-
dependent spring ecosystems, and contribute to the recovery of the 
covered species. The Notice of Availability for the Draft Environmental 
Impact Statement and Draft EARIP Habitat Conservation Plan was 
published in the Federal Register on July 20, 2012, and the public 
comment period remains open until October 18, 2012. Once the public 
comment period is closed and any

[[Page 64285]]

substantive comments are addressed, the Service will make a decision on 
the issuance of an Incidental Take Permit under section 10 of the Act. 
We are requesting comments on the benefit to the Comal Springs dryopid 
beetle, Comal Springs riffle beetle, and Peck's cave amphipod from the 
EARIP HCP.
    In preparing this proposal, we have also determined that the 
proposed designation does not include any tribal lands or trust 
resources. Accordingly, the Secretary does not intend to exercise his 
discretion to exclude any areas from the final designation based on 
other relevant impacts. We are not considering any areas for exclusion 
at this time from the final designation under section 4(b)(2) of the 
Act based on partnerships, management, or protection afforded by 
cooperative management efforts. In this proposed rule, we are seeking 
input from the public on the benefit to the Comal Springs dryopid 
beetle, Comal Springs riffle beetle, and Peck's cave amphipod from the 
EARIP HCP. Please see the ADDRESSES section, above, of this proposed 
revised rule for instructions on how to submit comments.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We have invited these peer reviewers 
to comment during this public comment period.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as 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 forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider 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.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are only required to evaluate the potential 
incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself, and not the potential impacts to indirectly 
affected entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried by the Agency is not 
likely to adversely modify critical habitat. Therefore, only Federal 
action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Under these circumstances, it is our 
position that only Federal action agencies will be directly regulated 
by this designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the proposed critical habitat 
rule will not have a significant economic impact on a substantial 
number of small entities.
    We acknowledge, however, that in some cases, third-party proponents 
of

[[Page 64286]]

the action subject to permitting or funding may participate in a 
section 7 consultation, and thus may be indirectly affected. We believe 
it is good policy to assess these impacts if we have sufficient data 
before us to complete the necessary analysis, whether or not this 
analysis is strictly required by the RFA. While this regulation does 
not directly regulate these entities, in our draft economic analysis we 
will conduct a brief evaluation of the potential number of third 
parties participating in consultations on an annual basis in order to 
ensure a more complete examination of the incremental effects of this 
proposed rule in the context of the RFA.
    The economic analysis of the previous proposed designation for the 
Comal Springs dryopid beetle, Comal Springs riffle beetle, and Peck's 
cave amphipod examined the potential for conservation efforts for the 
three species to affect small entities. This analysis was based on the 
estimated impacts associated with the proposed critical habitat 
designation and evaluated the potential for economic impacts related to 
water use for agricultural activities, construction or development, and 
aquatic restoration. Aquatic restoration activities were not 
anticipated to affect small entities, as these activities will be 
carried out by a Federal agency (U.S. Army Corps of Engineers). The 
economic analysis for the previous proposed rule for these species 
determined that the proposed rule was not likely to affect a 
substantial number of small entities (72 FR 39263, July 17, 2007), and 
we believe that the effects of this proposed rule will not change the 
previous determination.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies, which are not by definition small business entities. And as 
such, we certify that, if promulgated, this designation of critical 
habitat would not have a significant economic impact on a substantial 
number of small business entities. Therefore, an initial regulatory 
flexibility analysis is not required. However, though not necessarily 
required by the RFA, in our draft economic analysis for this proposal 
we will consider and evaluate the potential effects to third parties 
that may be involved with consultations with Federal action agencies 
related to this action.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. We do not expect the designation of this proposed 
critical habitat to significantly affect energy supplies, distribution, 
or use because there are no pipelines, distribution facilities, power 
grid stations, or other significant energy facilities within the 
boundaries of proposed critical habitat. Therefore, this action is not 
a significant energy action, and no Statement of Energy Effects is 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment as 
warranted.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because the economic analysis for the previous 
proposed rule for these species determined that the proposed rule was 
not likely to affect a substantial number of small governments (72 FR 
39263, July 17, 2007). Therefore, a Small Government Agency Plan is not 
required. However, we will further evaluate this issue as we conduct 
our updated economic analysis, and review and revise this assessment if 
appropriate.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for the Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod in a takings implications 
assessment. Critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to permit actions that do require Federal 
funding or permits to go forward. The takings implications

[[Page 64287]]

assessment concludes that this designation of critical habitat for the 
Comal Springs dryopid beetle, Comal Springs riffle beetle, and Peck's 
cave amphipod does not pose significant takings implications for lands 
within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism summary impact statement is not required. In keeping with 
Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Texas. The designation of critical habitat in areas 
currently occupied by the Comal Springs dryopid beetle, Comal Springs 
riffle beetle, and Peck's cave amphipod may impose nominal additional 
regulatory restrictions to those currently in place and, therefore, may 
have a little incremental impact on State and local governments and 
their activities. The designation may have some benefit to these 
governments because the areas that contain the physical or biological 
features essential to the conservation of the species are more clearly 
defined, and the elements of the features necessary to the conservation 
of the species are specifically identified. This information does not 
alter where and what federally sponsored activities may occur. However, 
it may assist local governments in long-range planning (rather than 
having them wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
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 have proposed designating 
critical habitat in accordance with the provisions of the Act. This 
proposed rule uses standard property descriptions and identifies the 
elements of physical or biological features essential to the 
conservation of the Comal Springs dryopid beetle, Comal Springs riffle 
beetle, and Peck's cave amphipod within the designated areas to assist 
the public in understanding the habitat needs of the species.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. 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 (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) 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 position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no tribal 
lands that were occupied by the Comal Springs dryopid beetle, Comal 
Springs riffle beetle, and Peck's cave amphipod at the time of listing 
that contain the features essential for conservation of the species, 
and no tribal lands unoccupied by the Comal Springs dryopid beetle, 
Comal Springs riffle beetle, and Peck's cave amphipod that are 
essential for the conservation of the species. Therefore, we are not 
proposing to designate critical habitat for the Comal Springs dryopid 
beetle, Comal Springs riffle beetle, and Peck's cave amphipod on tribal 
lands.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at https://www.regulations.gov and upon request from the 
Austin Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this package are the staff members of the 
Austin Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and

[[Page 64288]]

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

    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.

    2. Amend Sec.  17.95 by:
    a. In paragraph (h), revising the critical habitat entry for 
``Peck's cave amphipod (Stygobromus pecki)''; and
    b. In paragraph (i), revising the critical habitat entries for 
``Comal Springs dryopid beetle (Stygoparnus comalensis)'' and ``Comal 
Springs riffle beetle (Heterelmis comalensis)'', to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (h) Crustaceans.
* * * * *

Peck's Cave Amphipod (Stygobromus pecki)

    (1) Critical habitat units are depicted for this species in Comal 
County, Texas, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of Peck's 
cave amphipod consist of three components:
    (i) Springs, associated streams, and underground spaces immediately 
inside of or adjacent to springs, seeps, and upwellings that include:
    (A) High-quality water with no harmful levels of pollutants such as 
soaps, detergents, heavy metals, pesticides, fertilizer nutrients, 
petroleum hydrocarbons, and semivolatile compounds such as industrial 
cleaning agents; and
    (B) Hydrologic regimes similar to the historical pattern of the 
specific sites, with continuous surface flow from the spring sites and 
in the subterranean aquifer;
    (ii) Spring system water temperatures that range from approximately 
68 to 75[emsp14][deg]F (20 to 24 [deg]C); and
    (iii) Food supply that includes, but is not limited to, detritus 
(decomposed materials), leaf litter, living plant material, algae, 
fungi, bacteria, other microorganisms, and decaying roots.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing on the surface within the legal 
boundaries on [DATE 30 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL 
RULE].
    (4) Critical habitat map units. Data layers defining map units were 
created using geographic information systems (GIS), which included 
species locations, roads, property boundaries, 2011 aerial photography, 
and USGS 7.5' quadrangles. Points were placed in the GIS. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's internet site, (https://www.fws.gov/southwest/es/austintexas/), https://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, and at the field office responsible for this critical 
habitat designation. You may obtain field office location information 
by contacting one of the Service regional offices, the addresses of 
which are listed at 50 CFR 2.2.
    (5) Note: An index map of the critical habitat units for the Peck's 
cave amphipod, a map of the Comal Springs unit, and a map of the Hueco 
Springs unit follow:
BILLING CODE 4310-55-P

[[Page 64289]]

[GRAPHIC] [TIFF OMITTED] TP19OC12.000


[[Page 64290]]


    (6) Unit 1: Comal Springs Unit, Comal County, Texas. Map of the 
Comal Springs Unit follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.001


[[Page 64291]]


    (7) Unit 2: Hueco Springs Unit, Comal County, Texas. Map of the 
Hueco Springs Unit follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.002

    (i) Insects.
* * * * *
Comal Springs Dryopid Beetle (Stygoparnus comalensis)
    (1) Critical habitat units are depicted for this species in Comal 
and Hays Counties, Texas, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the Comal Springs dryopid 
beetle consist of these components:
    (i) Springs, associated streams, and underground spaces immediately 
inside of or adjacent to springs, seeps, and upwellings that include:
    (A) High-quality water with no harmful levels of pollutants such as 
soaps, detergents, heavy metals, pesticides, fertilizer nutrients, 
petroleum hydrocarbons, and

[[Page 64292]]

semivolatile compounds such as industrial cleaning agents; and
    (B) Hydrologic regimes similar to the historical pattern of the 
specific sites, with continuous surface flow from the spring sites and 
in the subterranean aquifer;
    (ii) Spring system water temperatures that range from approximately 
68 to 75 [deg]F (20 to 24 [deg]C); and
    (iii) Food supply that includes, but is not limited to, detritus 
(decomposed materials), leaf litter, living plant material, algae, 
fungi, bacteria, other microorganisms, and decaying roots.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing on the surface within the legal 
boundaries on [DATE 30 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL 
RULE].
    (4) Critical habitat map units. Data layers defining map units were 
created using geographic information systems (GIS), which included 
species locations, roads, property boundaries, 2011 aerial photography, 
and USGS 7.5' quadrangles. Points were placed in the GIS. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's Internet site, (https://www.fws.gov/southwest/es/ austintexas/), https://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, and at the field office responsible for this critical 
habitat designation. You may obtain field office location information 
by contacting one of the Service regional offices, the addresses of 
which are listed at 50 CFR 2.2.
    (5) Note: An index map of the critical habitat units for the Comal 
Springs dryopid beetle, a map of the Comal Springs unit, and a map of 
the Fern Bank Springs unit follow:

[[Page 64293]]

[GRAPHIC] [TIFF OMITTED] TP19OC12.003


[[Page 64294]]


    (6) Unit 1: Comal Springs Unit, Comal County, Texas. Map of the 
Comal Springs Unit follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.004


[[Page 64295]]


    (7) Unit 3: Fern Bank Springs Unit, Hays County, Texas. Map of the 
Fern Bank Springs Unit follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.005

Comal Springs Riffle Beetle (Heterelmis comalensis)
    (1) Critical habitat units are depicted for this species in Comal 
and Hays Counties, Texas, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the Comal Springs dryopid 
beetle consist of these components:
    (i) Springs, associated streams, and underground spaces immediately 
inside of or adjacent to springs, seeps, and upwellings that include:
    (A) High-quality water with no harmful levels of pollutants such as 
soaps, detergents, heavy metals, pesticides, fertilizer nutrients, 
petroleum hydrocarbons, and semivolatile compounds such as industrial 
cleaning agents; and
    (B) Hydrologic regimes similar to the historical pattern of the 
specific sites, with continuous surface flow from the

[[Page 64296]]

spring sites and in the subterranean aquifer;
    (ii) Spring system water temperatures that range from approximately 
68 to 75[emsp14][deg]F (20 to 24 [deg]C); and
    (iii) Food supply that includes, but is not limited to, detritus 
(decomposed materials), leaf litter, living plant material, algae, 
fungi, bacteria, other microorganisms, and decaying roots.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing on the surface within the legal 
boundaries on [ DATE 30 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL 
RULE].
    (4) Critical habitat map units. Data layers defining map units were 
created using geographic information systems (GIS), which included 
species locations, roads, property boundaries, 2011 aerial photography, 
and USGS 7.5' quadrangles. Points were placed on the GIS. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's Internet site, (https://www.fws.gov/southwest/es/ austintexas/), https://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0082, and at the field office responsible for this critical 
habitat designation. You may obtain field office location information 
by contacting one of the Service regional offices, the addresses of 
which are listed at 50 CFR 2.2.
    (5) Note: An index map of critical habitat units for the Comal 
Springs riffle beetle, a map of the Comal Springs unit, and a map of 
the San Marcos Springs unit follow:

[[Page 64297]]

[GRAPHIC] [TIFF OMITTED] TP19OC12.006


[[Page 64298]]


    (6) Unit 1: Comal Springs Unit, Comal County, Texas. Map of Comal 
Springs Unit, follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.007


[[Page 64299]]


    (7) Unit 4: San Marcos Springs Unit, Hays County, Texas. Map of San 
Marcos Springs Unit, follows:
[GRAPHIC] [TIFF OMITTED] TP19OC12.008


[[Page 64300]]


* * * * *

    Dated: October 5, 2012.
Eileen Sobeck,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-25578 Filed 10-18-12; 8:45 a.m.]
BILLING CODE 4310-55-P