Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Jaguar, 12571-12654 [2014-03485]
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Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Jaguar; Final Rule
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DEPARTMENT OF THE INTERIOR
Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). Any additional
Fish and Wildlife Service
tools or supporting information that we
developed 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 at https://
www.regulations.gov.
50 CFR Part 17
[Docket No. FWS–R2–ES–2012–0042;
4500030114]
RIN 1018–AX13
FOR FURTHER INFORMATION CONTACT:
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for Jaguar
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), designate
critical habitat for the jaguar (Panthera
onca) under the Endangered Species
Act, as amended. In total, approximately
309,263 hectares (764,207 acres) in
Pima, Santa Cruz, and Cochise Counties,
Arizona, and Hidalgo County, New
Mexico, fall within the boundaries of
the critical habitat designation. This
designation fulfills our obligations
under a settlement agreement. The effect
of this regulation is to designate critical
habitat for jaguar under the Endangered
Species Act.
DATES: This rule is effective on April 4,
2014.
ADDRESSES: This final rule is available
on the Internet at https://www.fws.gov/
southwest/es/arizona/Jaguar.htm, and at
https://www.regulations.gov. Comments
and materials received, as well as some
supporting documentation we used in
preparing this final rule, including the
final economic analysis and final
environmental assessment, are available
for public inspection at https://
www.regulations.gov. Some supporting
documentation is also available at
https://www.fws.gov/southwest/es/
arizona/Jaguar.htm. All of the
comments, materials, and
documentation that we considered in
this rulemaking are available by
appointment, during normal business
hours at: U.S. Fish and Wildlife Service,
Arizona Ecological Services Fish and
Wildlife Office, 2321 West Royal Palm
Drive, Suite 103, Phoenix, AZ 85021;
telephone 602–242–0210. If you use a
telecommunications device for the deaf
(TDD), call the Federal Information
Relay Service (FIRS) at 800–877–8339.
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.regulations.gov at Docket No.
FWS–R2–ES–2012–0042, and at the
Arizona Ecological Services Fish and
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SUMMARY:
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Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona
Ecological Services Fish and Wildlife
Office, 2321 West Royal Palm Drive,
Suite 103, Phoenix, AZ 85021;
telephone 602–242–0210. 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. This
is a final rule to designate critical
habitat for the jaguar. Under the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.) (Act),
any species that is determined to be an
endangered or threatened species
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.
We, the U.S. Fish and Wildlife
Service (Service), listed the jaguar as an
endangered species on March 30, 1972
(37 FR 6476), in accordance with the
Endangered Species Conservation Act of
1969, a precursor to the Endangered
Species Act of 1973, as amended (Act;
16 U.S.C. 1531 et seq.). On August 20,
2012, we published in the Federal
Register a proposed critical habitat
designation for jaguar (77 FR 50213).
Section 4(b)(2) of the Act states that the
Secretary shall designate 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 critical habitat areas we are
designating in this rule constitute our
current best assessment of the areas that
meet the definition of critical habitat for
the jaguar. Here we are designating
approximately 309,263 hectares (ha)
(764,207 acres (ac)) in Pima, Santa Cruz,
and Cochise Counties, Arizona, and
Hidalgo County, New Mexico, in six
critical habitat units.
• Unit 1, Baboquivari Unit,
approximately 25,549 ha (63,134 ac)
Baboquivari, Saucito, Quinlan, and
Coyote Mountains in Pima County,
Arizona.
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• Unit 2, Atascosa Unit,
approximately 58,624 ha (144,865 ac) in
the Tumacacori, Atascosa, and Pajarito
Mountains, in Pima and Santa Cruz
Counties, Arizona.
• Unit 3, Patagonia Unit,
approximately 142,248 ha (351,501 ac)
in the Santa Rita, Patagonia, Empire,
and Huachuca Mountains, and
Grosvenor and Canelo Hills, in Pima,
Santa Cruz, and Cochise Counties,
Arizona.
• Unit 4, Whetstone Unit,
approximately 38,149 ha (94,269 ac) in
the Whetstone Mountains, including
connections to the Empire, Santa Rita
and Huachuca Mountains, in Pima,
Santa Cruz, and Cochise Counties,
Arizona.
• Unit 5, Peloncillo Unit,
approximately 41,571 ha (102,724 ac) in
the Peloncillo Mountains, in Cochise
County, Arizona, and Hidalgo County,
New Mexico.
• Unit 6, San Luis Unit,
approximately 3,122 ha (7,714 ac) in the
San Luis Mountains, Hidalgo County,
New Mexico.
This rule consists of: A final rule for
designation of critical habitat for the
jaguar. The jaguar is already listed
under the Act. This rule designates
critical habitat essential for the
conservation of the species.
We have prepared an economic
analysis and environmental assessment
of the designation of critical habitat. In
order to consider economic impacts, we
have prepared an analysis of the
economic impacts of the critical habitat
designation and related factors. We have
also completed an environmental
assessment to evaluate whether there
would be any significant environmental
impacts as a result of the critical habitat
designation. We announced the
availability of both the draft economic
analysis and draft environmental
assessment in the Federal Register on
July 1, 2013 (78 FR 39237), allowing the
public to provide comments on our
analyses. We have incorporated the
comments and have completed the final
economic analysis and final
environmental assessment with this
final determination.
Peer review and public comment. We
sought comments from seven
independent specialists to ensure that
our designation is based on
scientifically sound data and analyses.
We obtained opinions from six
knowledgeable individuals with
scientific expertise to review our
technical assumptions, analysis, and
whether or not we had used the best
available information. Most of the peer
reviewers (five of the six) generally
concurred with our methods and
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conclusions and provided additional
information, clarifications, and
suggestions to improve this final rule.
One peer reviewer was against critical
habitat designation for the jaguar,
stating that there is no habitat in the
United States at this time that is critical
to the survival of the jaguar as a species.
Information we received from peer
review is incorporated in this final
revised designation. We also considered
all comments and information received
from the public during the comment
period.
Previous Federal Actions
On August 20, 2012, we published in
the Federal Register a proposed rule to
designate critical habitat for the jaguar
(77 FR 50214). In that proposed rule, we
proposed to designate approximately
339,220 ha (838,232 ac) as critical
habitat in six units located in Pima,
Santa Cruz, and Cochise Counties,
Arizona, and Hidalgo County, New
Mexico. The comment period opened
August 20, 2012, and closed October 19,
2012.
On March 12, 2013, we received a
report from the Jaguar Recovery Team
(described later in this document)
entitled Jaguar Habitat Modeling and
Database Update (Sanderson and Fisher
2013, entire) that included a revised
habitat model for the jaguar in the
proposed Northwestern Recovery Unit.
This report recommended defining
habitat patches of less than 100 square
kilometers (km2) (38.6 square miles
(mi2)) in size as unsuitable for jaguars;
therefore, we incorporated this
information into the physical and
biological feature for the jaguar, which
formerly described areas of less than 84
km2 (32.4 mi2) as unsuitable.
Additionally, the report recommended
slight changes to some of the habitat
features we used to describe the primary
constituent elements (PCEs) comprising
jaguar critical habitat (see Summary of
Changes from Proposed Rule, above).
The revised physical and biological
feature and PCEs resulted in changes to
the boundaries of our original proposed
critical habitat.
On July 1, 2013 (78 FR 39237), we
announced the revisions described
above to our proposed designation of
critical habitat for the jaguar, which
now included approximately 347,277 ha
(858,137 ac) as critical habitat in six
units located in Pima, Santa Cruz, and
Cochise Counties, Arizona, and Hidalgo
County, New Mexico. We also
announced the availability of a draft
economic analysis and draft
environmental assessment of the revised
proposed designation of critical habitat
for jaguar and an amended required
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determinations section of the proposal.
Additionally, we announced the
reopening of the comment period. The
comment period opened July 1, 2013,
and closed August 9, 2013.
On August 15, 2013, the U.S. District
Court for the District of Columbia
granted the Service’s motion to extend
the deadline for publishing a final
critical habitat designation for the jaguar
to December 16, 2013. This rescheduled
final rulemaking date allowed us to
reopen the public comment period
again, for which we had received
multiple requests. On August 29, 2013
(78 FR 53390), we announced the
reopening of the comment period for an
additional 15 days. The comment period
opened August 29, 2013, and closed
September 13, 2013.
All previous Federal actions are
described in the proposal and revised
proposal to designate critical habitat for
the jaguar under the Act published in
the Federal Register (77 FR 50214;
August 20, 2012 and 78 FR 39237; July
1, 2013, respectively) and the final rule
clarifying the status of the jaguar in the
United States (62 FR 39147; July 22,
1997).
Background
Below we provide a general
discussion of jaguar habitat
requirements. Additional background
information on the jaguar, beyond what
is provided below, can be found in the
proposed jaguar critical habitat
designation published in the Federal
Register on August 20, 2012 (77 FR
50214), the revisions to our proposed
designation of critical habitat for the
jaguar published in the Federal Register
on July 1, 2013 (78 FR 39237), and this
final rule clarifying the status of the
jaguar in the United States (62 FR
39147; July 22, 1997).
Jaguar Habitat Requirements in the
United States and U.S.-Mexico
Borderlands Area
Most of the information regarding
jaguar habitat requirements comes from
Central and South America; little, if any,
is available for the northwestern-most
portion of its range, including the
United States. Jaguar habitat available in
the U.S.-Mexico borderlands area is
quite different from habitat in Central
and South America, where jaguars show
a high affinity for lowland wet
communities, including swampy
savannas or tropical rain forests toward
and at middle latitudes. Swank and Teer
(1989, p. 14) state that jaguars prefer a
warm, tropical climate, usually
associated with water, and are rarely
found in extensive arid areas.
Rabinowitz (1999, p. 97) affirms that the
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most robust jaguar populations have
been associated with tropical climates
in areas of low elevation with dense
cover and year-round water sources.
´
´
Brown and Lopez Gonzalez (2001, p. 43)
further state that, in South and Central
America, jaguars usually avoid open
country like grasslands or desertscrub,
instead preferring the closed vegetative
structure of nearly every tropical forest
type.
However, jaguars have been
documented in arid areas of
northwestern Mexico and the
southwestern United States, including
thornscrub, desertscrub, lowland desert,
mesquite grassland, Madrean oak
woodland, and pine-oak woodland
´
communities (Brown and Lopez
´
Gonzalez 2001, pp. 43–50; Boydston
´
´
and Lopez Gonzalez 2005, p. 54;
McCain and Childs 2008, p. 7; RosasRosas and Bender 2012, p. 88). The
more open, dry habitat of the
southwestern United States has been
characterized as marginal habitat for
jaguars in terms of water, cover, and
prey densities (Rabinowitz 1999, p. 97).
However, McCain and Childs (2008, p.
7) documented two male jaguars (and
possibly a third) using an extensive area
including habitats of the Sonoran
lowland desert, Sonoran desertscrub,
mesquite grassland, Madrean oak
woodland, and pine-oak woodland in
mountain ranges in southern Arizona.
Additionally, another male jaguar has
been documented utilizing Madrean
evergreen woodland habitat in southern
Arizona from 2011 through 2013 (see
Table 1 in the ‘‘Class I Records’’ section,
below). Therefore, while habitat in the
United States can be considered
marginal when compared to other areas
throughout the species’ range, it appears
that a few, possibly resident jaguars are
able to use the more open, arid habitat
found in the southwestern United
States.
Jaguar Recovery Planning in Relation to
Critical Habitat
Information currently available for
northern jaguars is scant; therefore, we
convened a binational Jaguar Recovery
Team team in 2010 to synthesize
information on the jaguar, focusing on a
unit comprising jaguars in the
northernmost portion of their range, the
proposed Northwestern Recovery Unit.
The team comprises members from the
United States and Mexico, and is
composed of two subgroups: A technical
subgroup and an implementation
subgroup. Both subgroups have nearly
equal representation from the United
States and Mexico. The technical
subgroup consists of feline ecologists,
conservation biologists, and other
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experts, who advise the Jaguar Recovery
Team and the Service on appropriate
short- and long-term actions necessary
to recover the jaguar. The
implementation subgroup consists of
members who advise the technical
subgroup and the Service on ways to
achieve timely recovery with minimal
social and economic impacts or costs.
Specifically, the implementation
subgroup consists of landowners and
land and wildlife managers from
Federal, state, tribal, and private
entities. The Jaguar Recovery Team has
two co-leaders, one from the United
States and one from Mexico; both are
members of the technical subgroup,
though they serve as co-leaders for the
entire Jaguar Recovery Team.
In April 2012, the Jaguar Recovery
Team produced the Recovery Outline
for the Jaguar. The Recovery Outline
serves as an interim guidance document
to direct recovery efforts, including
recovery planning, for the jaguar until a
full recovery plan is developed and
approved (a draft recovery plan for the
jaguar is expected to be completed in
spring 2014). It includes a preliminary
strategy for recovery of the species, and
recommends high-priority actions to
stabilize and recover the species. The
Recovery Outline delineates two
recovery units for the species, the
Northwestern Recovery Unit
(encompassing the United States and
northwestern Mexico) and the Pan
American Recovery Unit (encompassing
the rest of the range). The recovery units
are further divided into core or
secondary areas. Lands within the
United States are a part of the
Borderlands Secondary Area within the
proposed Northwestern Recovery Unit
(Sanderson and Fisher 2013, p. 10; note
that this map updates the map of the
Northwestern Recovery Unit shown on
p. 58 of the Recovery Outline for the
Jaguar).
The Borderlands Secondary Area
within the proposed Northwestern
Recovery Unit for the jaguar (Jaguar
Recovery Team 2012, p. 58; Sanderson
and Fisher 2013, p. 10) is only a small
portion of the jaguar’s range. Because
such a small portion occurs in the
United States, researchers anticipate
that recovery of the entire species will
rely primarily on actions that occur
outside of the United States; activities
that may adversely or beneficially affect
jaguars in the United States are less
likely to affect recovery than activities
in core areas of their range (Jaguar
Recovery Team 2012, p. 38). However,
the portion of the United States is
located within a secondary area that
provides a recovery function benefitting
the overall recovery unit (Jaguar
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Recovery Team 2012, pp. 40, 42). For
example, specific areas within this
secondary area that provide the physical
and biological features essential to
jaguar habitat can contribute to the
species’ persistence and, therefore,
overall conservation. These areas
support some individuals during
dispersal movements, provide small
patches of habitat (perhaps in some
cases with a few resident jaguars), and
provide areas for cyclic expansion and
contraction of the nearest core area and
breeding population in the
Northwestern Recovery Unit (about 210
km (130 mi) south of the U.S.-Mexico
border in Sonora near the towns of
´
Huasabas, Sahuaripa (Brown and Lopez
´
Gonzalez 2001, pp. 108–109), and
Nacori Chico (Rosas-Rosas and Bender
2012, pp. 88–89)).
Independent peer review cited in our
July 22, 1997, clarifying rule (62 FR
39147, pp. 39153–39154) states that
individuals dispersing into the United
States are important because they
occupy habitat that serves as a buffer to
zones of regular reproduction and are
potential colonizers of vacant range, and
that, as such, areas supporting them are
important to maintaining normal
demographics, as well as allowing for
possible range expansion. As described
in the Recovery Outline for the Jaguar
(Jaguar Recovery Team 2012, pp. 40,
42), the Northwestern Recovery Unit is
essential for the conservation of the
species; therefore, consideration of the
spatial and biological dynamics that
allow this unit to function and that
benefit the overall unit is prudent.
Providing connectivity from the United
States to Mexico is a key element to
maintaining those processes.
Additionally, as thoroughly discussed
in the Recovery Outline for the Jaguar
(Jaguar Recovery Team 2012, pp. 19–20)
and Johnson et al. (2011, pp. 30–31),
populations at the edge of a species’
range play a role in maintaining the
total genetic diversity of a species; in
some cases, these peripheral
populations persist the longest as
fragmentation and habitat loss impact
the total range (Channell and Lomolino
2000, pp. 84–85). The United States and
northwestern Mexico represent the
northernmost extent of the jaguar’s
current range, with populations
persisting in one of only four distinct
xeric (extremely dry) habitats that occur
within the species’ range (Sanderson et
al. 2002, Appendix 1). Peripheral
populations such as these are an
important genetic resource in that they
may be beneficial to the protection of
evolutionary processes and the
environmental systems that are likely to
generate future evolutionary diversity
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(Lesica and Allendorf 1995, entire). This
may be particularly important
considering the potential threats of
global climate change (see ‘‘Climate
Change,’’ below). The ability for jaguars
in the proposed Northwestern Recovery
Unit to utilize physical and biological
habitat features in the borderlands
region is ecologically important to the
recovery of the species; therefore,
maintaining connectivity to Mexico is
essential to the conservation of the
jaguar.
Through an iterative process
incorporating new information and
expert opinion (as described in the
Jaguar Habitat Modeling and Database
Update report produced by Sanderson
and Fisher (2013, entire)), the Jaguar
Recovery Team developed and refined
the habitat requirements for jaguars in
the proposed Northwestern Recovery
Unit. For the portion of this recovery
unit encompassing the United States,
the habitat features providing jaguar
habitat include areas of at least 100 km2
(38.6 mi2) in size (the minimum area
necessary to support one jaguar) in
which can be found: (1) Tree cover from
greater than 1 to 50 percent; (2)
intermediately, moderately, or highly
rugged terrain; (3) water within 10 km
(6.2 mi); (4) an elevation of less than
2,000 meters (m) (6,562 feet (ft)); (5)
Sierra Madre Occidental pine-oak
forests; and (6) a Human Influence
Index (HII) of less than 20 (habitat
factors, habitat types, and masks as
described in Sanderson and Fisher
2013, pp. 33–34, 38, and 41). Therefore,
we are basing our definition of jaguar
habitat in the United States on these
features (see Physical or Biological
Features, below).
Summary of Changes From Proposed
Rule
In developing the final jaguar critical
habitat designation, we reviewed public
comments received on the proposed
rule (77 FR 50214; August 20, 2012), the
revision to the proposed rule, the draft
economic analysis, and the draft
environmental assessment (78 FR
39237; July 1, 2013 and 78 FR 53390;
August 29, 2013).
On August 20, 2012, we published in
the Federal Register a proposed rule to
designate critical habitat for the jaguar
(77 FR 50214). We based the physical
and biological feature and PCEs on a
preliminary habitat modeling report we
received from the Jaguar Recovery Team
in 2011 entitled Jaguar Habitat Modeling
and Database (Sanderson and Fisher
2011, pp. 1–11), in which the habitat
features preferred by the jaguar in the
proposed Northwestern Recovery Unit
were described based on the best
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available science and expert opinion of
the Jaguar Recovery Team at that time.
In our revised proposed rule we
modified the critical habitat boundaries
based on new information received.
Since August 20, 2012, the Jaguar
Recovery Team continued to revise and
refine the habitat features preferred by
the jaguar through an iterative process
based on additional information and
expert opinion, resulting in an updated
habitat modeling report entitled Jaguar
Habitat Modeling and Database Update
(Sanderson and Fisher 2013, entire) that
we received on March 12, 2013.
Changes to habitat features preferred by
jaguars in the proposed Northwestern
Recovery Unit included: (1) Defining
habitat patches of less than 100 km2
(38.6 mi2) in size as too small to support
a jaguar (the physical and biological
feature formerly described areas of less
than 84 km2 (32.4 mi2) as too small); (2)
a canopy cover from greater than 1 to 50
percent as suitable in the northern part
of the proposed Northwestern Recovery
Unit (PCE 4 formerly included a range
of 3 to 40 percent canopy cover); (3)
delineating areas 2,000 m (6,562 ft) and
higher as unsuitable (previously there
was no PCE related to an upperelevation limit); and (4) slightly
diminishing (from up to or equal to 20
to less than 20) the level of the HII
tolerated by jaguars in the northern part
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of the proposed Northwestern Recovery
Unit (formerly PCE 6, now PCE 7).
When combined and analyzed with a
geographic information system (GIS),
these changes added some new areas
containing all of the PCEs, while other
areas no longer contained all of the
PCEs and, therefore, were removed (see
Primary Constituent Elements for
Jaguar, below, for further information).
An increase in area was usually due to
the increased range in canopy cover
(from greater than 1 to 50 percent,
instead of 3 to 40 percent), while a
decrease in area was usually due to the
upper elevation limit of 2,000 m (6,562
ft).
In addition to the changes described
above, multiple photos of a jaguar in the
Santa Rita Mountains taken since our
August 20, 2012 (77 FR 50214),
proposed designation provided
additional information about the
occupancy status of Unit 3 (Patagonia
Unit) of jaguar critical habitat, which
formerly contained only one jaguar
record in the Patagonia Mountains from
1965 (see Table 1 in the ‘‘Class I
Records’’ section, below). While our
understanding of the habitat features
did not change drastically between 2012
and 2013, the combination of a slightly
different physical and biological feature
and several PCEs (as described above)
and the recent jaguar sightings resulted
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in the changes noted in our July 1, 2013
(78 FR 39237), proposed rule.
In this final rule we are making the
following changes. We are excluding
and exempting areas from the final
designation pursuant to sections 4(b)(2)
and 4(a)(3) of the Act, respectively. We
are excluding lands owned and
managed by the Tohono O’odham
Nation, and we are exempting lands
owned and managed by Fort Huachuca.
Figure 1 displays the excluded and
exempted areas in relation to the final
critical habitat designation. The
exclusion of Tohono O’odham Nation
lands in Unit 1 resulted in the
appearance of five disconnected areas of
land in Subunit 1a and of two
disconnected areas of land in Subunit
1b. Figure 2 is a magnified view of Unit
1 displaying the excluded areas in
relation to critical habitat for Unit 1.
These areas that appear disconnected
are not in fact disjunct, as there is
continued jaguar habitat within the
excluded areas that provides continuity
and connectivity among the areas that
appear disconnected. The exemption of
Fort Huachuca did not result in the
appearance of any disconnected areas.
(See the Final Critical Habitat
Designation section, below, for
additional information).
BILLING CODE 4310–55–P
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Critical Habitat
Background
Critical habitat is defined in section 3
of the Act as:
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(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
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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 nonFederal 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 part 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
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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 or 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 those specific
elements of the physical or biological
features that provide for a species’ lifehistory processes and are essential to
the conservation of the species.
Under the second part 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,
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,
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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 insure their
actions are not likely to jeopardize the
continued existence of any endangered
or threatened species, and (3) section 9
of the Act’s prohibitions on taking any
individual of the species, including
taking caused by actions that affect
habitat. 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.
In the following sections we will
define the regulatory terms in the
definition of critical habitat, as they
apply to the jaguar, and then explain
how the critical habitat boundaries were
developed based on the application of
these terms.
Occupied Area at the Time of Listing
Determining jaguar occupancy at the
time of listing is particularly difficult.
Jaguars were added to the list many
years ago, and, by nature, are cryptic
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and difficult to detect, so assuming an
area is occupied or unoccupied must be
based on limited information that can be
interpreted in several ways. Based on
our analysis, we are including areas as
occupied that contain an undisputed
Class I record at some time between
1962 to the present (September 11,
2013). However, we acknowledge the
uncertainty and lack of concrete
information (undisputed Class I records,
described below) during the period we
are defining as occupied at the time of
listing. Therefore, we have further
evaluated these areas and have also
determined these areas to be essential to
the conservation of the jaguar. Our
rationale for this approach is explained
in the following sections.
Class I Records
Reports of jaguar sightings are sorted
into multiple ‘‘classes’’ based on the
degree of certainty that a jaguar was
sighted. We are only considering
undisputed Class I reports as valid
records of jaguar locations. Class I
reports are those for which some sort of
physical evidence is provided for
verification (such as a skin, skull, or
photograph); they are considered
‘‘verified’’ or ‘‘highly probable’’ as
evidence for a jaguar occurrence. Class
II records have detailed information of
the observation provided but do not
include any physical evidence of a
jaguar. Class II observations are
considered ‘‘probable’’ or ‘‘possible’’ as
12579
evidence for a jaguar occurrence. This
classification protocol was developed by
adapting criteria published by Tewes
and Everett (1986, entire), based on
work in Texas with jaguarundis and
ocelots (Leopardus pardalis). The
Arizona-New Mexico Jaguar
Conservation Team (for a description
and history of this team, see Johnson et
al. 2011, pp. 37–40) reviewed and
endorsed the protocol in 1998 for use in
evaluating jaguar occurrence reports for
Arizona and New Mexico. Therefore, we
are using the same criteria to evaluate
jaguar occurrence reports in the United
States, and consider undisputed Class I
records as the best available
information. Table 1 summarizes these
records, below.
TABLE 1—UNDISPUTED CLASS I * JAGUAR RECORDS FOR ARIZONA AND NEW MEXICO USED FOR PURPOSES OF
DETERMINING OCCUPANCY OF JAGUAR CRITICAL HABITAT, 1962–SEPTEMBER 11, 2013
Sex
2013: 9/11, 8/1, 6/17,
5/31, 5/29, 5/17, 5/
11, 4/27, 1/16.
University of Arizona
Trail camera photographs.
University of Arizona
Santa Rita Mountains.
Trail camera photographs.
2012: 9/23 ...................
AGFD .......................
Male (same as 2011
male based on
pelage comparison).
Male (same as 2011
male based on
pelage comparison).
Male (same as 2011
male based on
pelage comparison).
Santa Rita Mountains.
2012: 12/31, 11/11,
11/10, 10/25.
Santa Rita Mountains.
Trail camera photograph.
2011: 11/19 .................
D Fenn .....................
Male (5th unique AZNM jaguar since
1996).
Whetstone Mountains.
Treed by hunting
dogs; photos and
video.
Madrean evergreen
woodland.
2008: 8/2 .....................
J Childs and E
McCain.
Male (Macho B) .......
Atascosa Mountains
Trail camera photograph.
Madrean evergreen
woodland.
2008: 7/29 ...................
J Childs and E
McCain.
Unknown or Male
(Macho B).
Tumacacori Mountains.
J Childs and E
McCain.
Male (Macho B) .......
Coyote Mountains,
Baboquivari Mountains.
Trail camera photograph (photo too
fuzzy to identify
jaguar).
Trail camera photographs, video,
tracks.
Semidesert grassland.
2007: 7/25, 5/7, 4/25,
4/22, 4/21, 4/3, 3/27,
3/26, 3/25, 3/7, 2/22,
2/12, 2/9, 1/25, 1/22,
1/19, 1/10, 1/1.
2007: 2/22 ...................
emcdonald on DSK67QTVN1PROD with RULES2
Collector
J Childs and E
McCain.
Male (Macho B) .......
Baboquivari Mountains.
500-lb calf depredation.
Madrean evergreen
woodland.
2006: 12/29, 12/3, 11/
20, 10/18, 10/15, 9/
26, 6/9, 5/31, 5/27,
5/23, 5/21, 5/14, 5/
13, 5/12, 5/10, 5/6,
5/5, 5/4, 5/2, 4/30, 4/
28, 4/27, 4/23, 4/18,
4/3, 3/30, 3/27, 3/26.
2006: 2/20 ...................
J Childs and E
McCain.
Male (Macho B) .......
Coyote Mountains,
Baboquivari Mountains, Atascosa
Mountains.
Trail camera photographs, video,
tracks.
Madrean evergreen
woodland,
semidesert grassland, Sonoran
desertscrub.
W Glenn ...................
Male (4th unique AZNM jaguar since
1996).
South of Animas
Mountains on
north end of San
Luis Mountains.
Photographs .............
Madrean evergreen
woodland.
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Frm 00009
Location
Circumstance/documentation
Date
Sfmt 4700
E:\FR\FM\05MRR2.SGM
Biotic community
Madrean evergreen
woodland,
semidesert grassland.
Madrean evergreen
woodland,
semidesert grassland.
Semidesert grassland.
Madrean evergreen
woodland,
semidesert grassland.
05MRR2
Information source
USFWS Flickr site:
https://bit.ly/
TapYhK.
USFWS Flickr site:
https://bit.ly/
TapYhK.
USFWS: https://www.
fws.gov/southwest/
es/arizona/Documents/Species
Docs/Jaguar/fNRjaguar-pics_Dec_
2012B.docx.pdf.
AGFD: https://
www.azgfd.gov/w_
c/jaguar/documents/Web%20
Release%20jag
%20reports%20
2012.02.24.pdf.
J Childs and E
McCain, BJDP
unpubl. data.
J Childs and E
McCain, BJDP
unpubl. data.
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7.
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7.
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7.
AGFD unpubl. data;
Childs and Childs
2008, p. 95.
12580
Federal Register / Vol. 79, No. 43 / Wednesday, March 5, 2014 / Rules and Regulations
TABLE 1—UNDISPUTED CLASS I * JAGUAR RECORDS FOR ARIZONA AND NEW MEXICO USED FOR PURPOSES OF
DETERMINING OCCUPANCY OF JAGUAR CRITICAL HABITAT, 1962–SEPTEMBER 11, 2013—Continued
Date
Collector
Sex
Location
Circumstance/documentation
Biotic community
Information source
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7.
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7.
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7.
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7; and McCain and
Childs 2008, p. 5
for a description of
why this individual
could be Macho A
or possibly another
unique jaguar.
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7.
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7.
J Childs and E
McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp. 3,
7.
´
Brown and Lopez
´
Gonzalez 2001, p.
7, McCain and
Childs 2008, p. 2.
Glenn 1996; Brown
´
and Lopez
´
Gonzalez 2001, p.
6.
AGFD unpubl. data;
NMDGF unpubl.
data.
´
Brown and Lopez
´
Gonzalez 2001, p.
7.
´
Brown and Lopez
´
Gonzalez 2001, p.
7.
J Childs and E
McCain.
Male (Macho B) .......
Tumacacori Mountains, Atascosa
Mountains.
Trail camera photographs and tracks.
Madrean evergreen
woodland,
semidesert grassland.
2005: 9/26, 7/11 .........
J Childs and E
McCain.
Unknown ..................
Atascosa Mountains
Tracks ......................
Madrean evergreen
woodland.
2004: 12/31, 12/29,
12/27, 12/19, 12/17,
12/12, 11/28, 11/8,
10/27, 9/26, 8/31.
J Childs and E
McCain.
Male (Macho B) .......
Atascosa Mountains
Trail camera photographs and track.
Madrean evergreen
woodland,
semidesert grassland.
2004: 12/7, 9/12, 6/24
J Childs and E
McCain.
Unknown (possibly
Macho A or possible 6th unique
AZ-NM jaguar
since 1996).
Atascosa Mountains
Trail camera photographs and track.
Madrean evergreen
woodland.
2004: 9/25 ...................
J Childs and E
McCain.
Male (Macho A) .......
Atascosa Mountains
Trail camera photograph.
Madrean evergreen
woodland.
2003: 8/7 .....................
J Childs and E
McCain.
Male (Macho A) .......
Atascosa Mountains
Trail camera photograph.
Madrean evergreen
woodland.
2001: 12/9 ...................
J Childs and E
McCain.
Male (Macho A; 3rd
unique jaguar
since 1996).
Atascosa Mountains
Trail camera photograph.
Madrean evergreen
woodland.
1996: 8/31 ...................
J Childs ....................
Male (Macho B; 2nd
unique AZ-NM jaguar since 1996).
Baboquivari Mountains.
Treed while lion
hunting; photographs.
Madrean evergreen
woodland.
1996: 3/7 .....................
W Glenn ...................
Male (1st unique AZNM jaguar since
1996).
Peloncillo Mountains
Bayed while lion
hunting with dogs;
photographs.
Madrean evergreen
woodland.
1995: 4/19 ...................
B Starrett ..................
Unknown ..................
Peloncillo Mountains
Photograph of track
Madrean evergreen
woodland.
1986: 12 ......................
J Klump ....................
Male .........................
Dos Cabezas Mountains.
R Farley and T Cartier.
Male .........................
Santa Cruz River .....
Bayed and killed
while lion hunting
with dogs.
Killed by boys duck
hunting with shotguns.
Madrean evergreen
woodland.
1971: 11/16 .................
1965: 11/16 .................
emcdonald on DSK67QTVN1PROD with RULES2
2005: 12/17, 12/12,
11/18, 11/17, 11/16,
11/6, 11/5, 11/4, 7/
29, 7/28, 7/26, 7/3,
6/8, 6/3, 1/12, 1/2.
L McGee ..................
Male .........................
Patagonia Mountains
Shot while deer hunting.
Madrean evergreen
woodland,
semidesert grassland.
Madrean evergreen
woodland.
´
Brown and Lopez
´
Gonzalez 2001, p.
7.
* Physical evidence (e.g., skin, skull, photograph, track) was reviewed and accepted by the Arizona Game and Fish Department (AGFD), New Mexico Department
of Game and Fish (NMDGF), or other credible person(s). (BJDP=Borderlands Jaguar Detection Project).
There are several disputed Class I
jaguar records from 1962 forward that
we are not considering in our analysis.
One of these is a female shot on
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September 28, 1963, in the White
Mountains of east-central Arizona, and
another is a male trapped on January 16,
1964, near the Black River in east-
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´
central Arizona (Brown and Lopez
´
Gonzalez 2001, p. 7). As described in
Johnson et al. (2011, p. 9), as well as
from information provided during the
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public comment period on our August
20, 2012, proposed critical habitat
designation (77 FR 50214), the validity
of these locations is questionable
because of the suspicion that these
animals were released for ‘‘canned
hunts’’ (hunts involving release of
captive animals). Therefore, we are not
including them as undisputed Class I
records. The other exceptions are any
records of the jaguar known as Macho
B dating from October 3, 2008, until his
final capture on March 2, 2009. We have
determined that it is within this
timeframe that female jaguar scat may
have been used as scent lure at some
trail camera locations within the
Coronado National Forest that may have
affected his behavior; therefore, we are
not including these observations as
undisputed Class I records.
emcdonald on DSK67QTVN1PROD with RULES2
Time of Listing
While the jaguar was not explicitly
listed in the United States until July 22,
1997 (62 FR 39147), we are using the
date the jaguar was listed throughout its
range as endangered in accordance with
the Endangered Species Conservation
Act, which is March 30, 1972 (37 FR
6476). Our rationale for using this date
is based on our July 25, 1979,
publication (44 FR 43705) in which we
asserted that it was always the intent of
the Service that all populations of seven
species, including the jaguar, deserved
to be listed as endangered, whether they
occurred in the United States or in
foreign countries. Therefore, our
intention was to consider the jaguar
endangered throughout its entire range
when it was listed as endangered in
1972, rather than only outside of the
United States.
Occupancy at the Time of Listing
We are including areas in which
reports of jaguar exist during the 10
years prior to its listing as occupied at
the time of listing, meaning we are
considering records back to 1962. Our
rationale for including these records is
based on expert opinion regarding the
average lifespan of the jaguar, the
consensus being 10 years. Therefore, we
assume that areas that would have been
considered occupied at the time of
listing would have included sightings
10 years prior to its listing, as
presumably these areas were still
inhabited by jaguars when the species
was listed in 1972.
For this same reason, we are
including areas as occupied at the time
of listing in which reports of jaguar exist
during the 10 years after listing,
meaning we are considering records up
to 1982. If jaguars were present in an
area within 10 years after the time of
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listing (1972), presumably these areas
would have been inhabited by jaguars
when the species was listed in 1972.
Additionally, we are including areas
as occupied in which reports of jaguars
exist from 1982 to the present. Our
reasoning for including areas in which
sightings have occurred after 1982 is
that it is likely those areas were
occupied at the time of the original
listing, but jaguars had not been
detected because of their rarity, the
difficulty in detecting them, and a lack
of surveys for the species, as described
below.
Reduced Jaguar Numbers
By the time the jaguar was listed in
1972, the species was rare within the
United States, making those individuals
that may have been present more
difficult to detect. The gradual decline
of the jaguar in the southwestern United
States was concurrent with predator
control measures associated with the
settlement of land and the development
of the cattle industry (Brown 1983, p.
460). For example, from 1900 to 1949,
53 jaguars were recorded as killed in the
Southwest, whereas only 4 were
recorded as killed between 1950 and
1979 (Brown 1983, p. 460). When a
species is rare on the landscape,
individuals are difficult to detect
because they are sparsely distributed
over a large area (McDonald 2004, p.
11).
Jaguars, in particular, are territorial
and require expansive open spaces for
each individual, meaning large areas
may be occupied by just a few
individuals, thus reducing the
likelihood of detecting them. As
evidence, only six, possibly seven,
individual jaguars have been detected in
the United States since 1982 (five,
possibly six, individuals since 1996, as
well as the jaguar shot in the Dos
Cabezas Mountains in 1986; see Table 1,
above), including two that have been
documented utilizing two distinct
mountain ranges, one of which
encompassed approximately 1,359 km2
(525 mi2) (McCain and Childs 2008,
entire) (see ‘‘Space for Individual and
Population Growth and for Normal
Behavior’’ section, below). Therefore,
we believe that undisputed Class I
records within mountain ranges from
1982 to the present indicate that these
mountain ranges were likely occupied
by transient jaguars from Mexico at the
time the species was listed, but
individuals remained undetected due to
the jaguar’s ability to move long
distances within and between mountain
ranges.
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12581
Jaguar Detection Difficulty
In addition to lowered detection
probabilities (the probability of
detecting a jaguar when present)
resulting from the rarity of animals,
many mobile species are difficult to
detect in the wild because of
morphological features (such as
camouflaged appearance) or elusive
behavioral characteristics (such as
nocturnal activity) (Peterson and Bayley
2004, pp. 173, 175), as is the case for the
jaguar. This fact presents challenges in
determining whether or not a particular
area is occupied because we cannot be
sure that a lack of detection indicates
that the species is absent (Peterson and
Bayley 2004, p. 173).
For example, the Sonoran desert
tortoise is difficult to monitor in the
wild because of its slow movement and
camouflaged appearance, especially in
the smaller hatchling and juvenile age
classes. In addition, the habitat in which
Sonoran desert tortoise population
densities are the highest is complex,
meaning it often contains many large
boulders, somewhat dense vegetation,
and challenging topographic relief.
These factors can significantly hamper a
surveyor’s ability to detect them in the
field (Zylstra et al. 2010, p. 1311).
Sampling Method Difficulty
Jaguars are difficult to detect due to
their rarity, cryptic appearance, elusive
behavior, and habitat complexity.
Compounding the problem of low
detection rates is that not all individuals
can be detected using any one particular
sampling method or even using multiple
methods. Pollock et al. (2004, p. 43)
present the example of the dugong (sea
cow) off the coast of Australia. Using
one method of detection—aerial
surveys—some dugongs may be
underwater and invisible to the
observers searching for them from
aircraft, or the observer may miss
detecting them due to his or her
uncertain perception process. Similarly,
terrestrial salamanders in North
Carolina and Tennessee most often
occur below the surface of the ground,
making detection particularly difficult,
especially when using standard
sampling protocols that only sample the
surface population (Pollock et al. 2004,
p. 53). Attempting to detect rare species
by using multiple sampling methods or
surveying multiple times can increase
detections or increase confidence that
non-detections are true absences;
however, this is often prohibitively
time-consuming and expensive and may
not always be feasible because of the
sensitivity of the species.
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Jaguars, specifically, are secretive and
nocturnal in nature (Seymour 1989, p. 2;
62 FR 39147, p. 39153; McCain and
Childs 2008, p. 5) and, in the United
States and northern Mexico, inhabit
rugged, remote areas that are logistically
difficult to survey. Even in studies
designed to detect jaguars using both
camera traps and track surveys in
northern Mexico, neither method was
completely effective in identifying
individuals due to logistical problems
related to rugged topography, hard soils,
absence of roads, and harsh weather
conditions (Rosas-Rosas and Bender
2012, pp. 95–96). In the United States
specifically, most of the recent
occurrences of jaguars (after 1996)
would not have been known but for a
substantial amount of time and effort
being invested by the Borderlands
Jaguar Detection Project (BJDP) (Johnson
et al. 2011, p. 40). From 1997 to 2010,
the BJDP maintained 45–50 remotecamera stations across three counties in
Arizona, conducted track and scat
(feces) surveys opportunistically, and
followed up on credible sighting reports
from other individuals, resulting in 105
jaguar locations representing two adult
male jaguars and possibly a third of
unknown sex (Johnson et al. 2011, p.
40). From the time the jaguar was listed
in 1972 until 1997, no effort was made
to detect jaguars in the United States, so
we cannot be sure that a lack of
detection indicates the species was
absent.
Summary
Based on the above information, we
determine that areas in which jaguars
have been documented from 1962 to the
present may have been occupied at the
time of the original listing (March 30,
1972; 37 FR 6476) because: (1) Jaguars
were rare on the landscape and
distributed over large, rugged areas,
meaning they were difficult to detect;
(2) jaguars are cryptic and nocturnal by
nature, making them difficult to detect;
and (3) no survey effort was made to
detect them in 1972, meaning we cannot
be sure that a lack of detection indicates
the species was absent. Therefore, based
on the best available information related
to jaguar rarity, biology, and survey
effort, we determine that areas
containing undisputed Class I records
from 1962 to the present (September 11,
2013) may have been occupied by
jaguars at the time of listing.
Occupancy Uncertainty
To the extent that uncertainty exists
regarding our analysis of these data, we
acknowledge there is an alternative
explanation as to whether or not these
areas were occupied at the time the
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jaguar was listed in 1972 (37 FR 6476).
The lack of jaguar sightings at that time,
as well as some expert opinions cited in
our July 22, 1997, clarifying rule (62 FR
39147) (for example, Swank and Teer
1989), suggest that jaguars in the United
States had declined to such an extent by
that point as to be effectively
eliminated. Therefore, an argument
could be made that no areas in the
United States were occupied by the
species at the time it was listed, or that
only areas containing undisputed Class
I records from between 1962 and 1982
were occupied.
For this reason, we also analyzed
whether or not these areas are essential
to the conservation of the species.
Through our analysis, we determine that
they are essential to the conservation of
the species for the following reasons: (1)
They have demonstrated recent (since
1996) occupancy by jaguars; (2) they
contain features that comprise jaguar
habitat; and (3) they contribute to the
species’ persistence in the United States
by allowing the normal demographic
function and possible range expansion
of the Northwestern Recovery Unit,
which is essential to the conservation of
the species (as discussed in the Jaguar
Recovery Planning in Relation to
Critical Habitat section, above).
Physical or Biological Features
In accordance with sections 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 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, geographical, and ecological
distributions of a species.
We derive the specific physical or
biological features essential for the
jaguar from studies of this species’
habitat, ecology, and life history as
described in the Critical Habitat section
of the proposed rule to designate critical
habitat published in the Federal
Register on August 20, 2012 (77 FR
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50214), in the proposed revision of
critical habitat published in the Federal
Register on July 1, 2013 (78 FR 39237),
and in the information presented below.
Additional information can be found in
the final clarifying rule published in the
Federal Register on July 22, 1997 (62 FR
39147), the Recovery Outline for the
Jaguar (Jaguar Recovery Team 2012,
entire), the Digital Mapping in Support
of Recovery Planning for the Northern
Jaguar report (Sanderson and Fisher
2011, pp. 1–11), and the Jaguar Habitat
Modeling and Update report (Sanderson
and Fisher 2013, entire). We used the
best scientific information available on
habitat in the United States essential to
the conservation of the jaguar as
gathered by the Jaguar Recovery Team
through the team’s recovery planning
effort. A complete list of information
sources is available in our Literature
Cited located on https://
www.regulations.gov at Docket No.
FWS–R2–ES–2012–0042 and at the field
office responsible for the designation
(see FOR FURTHER INFORMATION CONTACT
above).
To define the physical and biological
features required for jaguar habitat in
the United States, we reviewed available
information and supporting data that
pertains to the habitat requirements of
the jaguar, focusing on studies
conducted in Mexico as close to the
U.S.-Mexico border as available. Many
of these studies have been compiled and
summarized by the Jaguar Recovery
Team in the Recovery Outline for the
Jaguar (Jaguar Recovery Team 2012,
entire), the 2011 Digital Mapping in
Support of Recovery Planning for the
Northern Jaguar preliminary report
(Sanderson and Fisher 2011, pp. 1–11)
and the 2013 Jaguar Habitat Modeling
and Update report (Sanderson and
Fisher 2013, entire), which we regard as
the best available scientific information
for the jaguar and its habitat needs in
the northern portion of its range. To
define the physical and biological
features and associated PCEs required
for jaguar habitat in the United States,
we relied primarily on information
compiled in the Jaguar Habitat Modeling
and Database Update report (Sanderson
and Fisher 2013, entire). In two cases
we substituted data layers for which
more detailed, higher-resolution data
were available for the United States (see
‘‘Cover or Shelter’’ and ‘‘Habitats that
are Protected from Disturbance or are
Representative of the Historical,
Geographical, and Ecological
Distributions of a Species’’ sections,
below). For a complete list of data
sources, see our response to comment
number 63 in our Summary of
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Comments and Recommendations
section.
We have determined that the jaguar
requires the following physical or
biological feature as further described
below: Expansive open spaces in the
southwestern United States with
adequate connectivity to Mexico that
contain a sufficient native prey base and
available surface water, have suitable
vegetative cover and rugged topography
to provide sites for resting, are below
2,000 m (6,562 feet (ft)), and have
minimal human impact.
Space for Individual and Population
Growth and for Normal Behavior
Expansive open spaces—Jaguars
require a significant amount of space for
individual and population growth and
for normal behavior. Jaguars have
relatively large home ranges and,
´
´
according to Brown and Lopez Gonzalez
(2001, p. 60), their home ranges are
highly variable and depend on
topography, available prey, and
population dynamics. Home ranges
need to provide reliable surface water,
available prey, and sites in rugged
terrain for resting that are removed from
the impacts of human activity and
influence (Jaguar Recovery Team 2012,
pp. 15–16). The availability of these
habitat characteristics can fluctuate
within a year (dry versus wet seasons)
and between years (drought years versus
wet years).
Specific home ranges for jaguars
depend on the sex of the individual,
season, and vegetation type. The home
ranges of borderland jaguars are
presumably as large or larger than the
home ranges of tropical jaguars (Brown
´
´
and Lopez Gonzalez 2001, p. 60;
McCain and Childs 2008, pp. 6–7), as
jaguars in this area are at the northern
limit of their range and the arid
environment contains resources and
environmental conditions that are more
variable than those in the tropics (Hass
2002, as cited in McCain and Childs
2008, p. 6). Therefore, jaguars require
more space in arid areas to obtain
essential resources such as food, water,
and cover (discussed below).
Only one limited home range study
using standard radio-telemetry
techniques and two home range studies
using camera traps have been conducted
for jaguars in northwestern Mexico.
Telemetry data from one adult female
tracked for 4 months during the dry
season in Sonora indicated a home
´
range size of 100 km2 (38.6 mi2) (Lopez
´
Gonzalez 2011, pers. comm.).
Additionally, a male in Sonora was
documented through camera traps using
an average home range of 84 km2 (32
´
´
mi2) (Lopez Gonzalez 2011, pers.
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comm.). No home range studies using
standard radio-telemetry techniques
have been conducted for jaguars in the
southwestern United States, although
McCain and Childs (2008, p. 5), using
camera traps, reported one jaguar in
southeastern Arizona as having a
minimum observed ‘‘range’’ of 1,359
km2 (525 mi2) encompassing two
distinct mountain ranges. This study,
however, was not designed to determine
home range size. Therefore, we are
relying on minimum home-range
estimates for male and female jaguars
´
´
from Sonora, Mexico (Lopez Gonzalez
2011, pers. comm.), as well as the expert
opinion of the technical subgroup of the
Jaguar Recovery Team, which came to
the consensus that areas less than 100
km2 (38.6 mi2) were too small to support
a jaguar (Sanderson and Fisher 2013, p.
30) for the minimum amount of
adequate habitat required by jaguars in
the United States.
Therefore, based on the information
above, we identify expansive open
spaces in the United States of at least
100 km2 (38.6 mi2) in size as an
essential component of the physical or
biological feature essential for the
conservation of the jaguar in the United
States.
Connectivity between expansive open
spaces in the United States and
Mexico—As discussed in the Jaguar
Recovery Planning in Relation to
Critical Habitat section, above,
connectivity between the United States
and Mexico is essential for the
conservation of jaguars. Therefore, we
identify connectivity between expansive
open spaces in the United States and
Mexico as an essential component of the
physical or biological feature essential
for the conservation of the jaguar in the
United States.
Connectivity between expansive open
spaces within the United States—We
know that connectivity between
expansive open areas of habitat for the
jaguar in the United States is necessary
if viable habitat for the jaguar is to be
maintained. This is particularly true in
the mountainous areas of Arizona and
New Mexico, where isolated mountain
ranges providing the physical and
biological feature of jaguar habitat are
separated by valley bottoms that may
not possess the feature described in this
final rule. However, we also know that,
based on home range sizes and research
and monitoring, jaguars will use valley
bottoms (for example, McCain and
Childs 2008, p. 7) and other areas of
habitat connectivity to move among
areas of higher quality habitat found in
isolated mountain ranges. We
acknowledge that jaguars use connective
areas to move between mountain ranges
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12583
in the United States; however, as they
are mainly using them for passage,
jaguars do not linger in these areas. As
a result, there is only one occurrence
record of a jaguar in these areas. With
only one record, we are unable to
describe the features of these areas
because of a lack of information.
Therefore, while we acknowledge that
habitat connectivity within the United
States is important, the best available
scientific and commercial information
does not allow us to determine that any
particular area within the valleys is
essential, and all of the valley habitat is
not essential to the conservation of the
species. Therefore we are not
designating any areas within the valleys
between the montane habitat as critical
habitat.
Food, Water, Air, Light, Minerals, or
Other Nutritional or Physiological
Requirements
Food—Jaguar and large-cat experts
believe that high-quality habitat for
jaguars in the northwestern portion of
their range should include a high
abundance of native prey, particularly
large prey like white-tailed deer and
collared peccary (javelina), as well as an
adequate number of medium-sized prey
(Jaguar Recovery Team 2012, pp. 15–
16). However, the Jaguar Recovery Team
(2012, pp. 15–16) did not quantify ‘‘high
abundance’’ or ‘‘adequate number’’ of
each type of prey, making it difficult to
state the density of prey required to
sustain a resident jaguar in this portion
of its range.
Jaguars usually catch and kill their
prey by stalking or ambush and biting
through the nape as do most Felidae
(members of the cat family) (Seymour
1989, p. 5). Like other large cats, jaguars
rely on a combination of cover, surprise,
acceleration, and body weight to capture
their prey (Schaller 1972 and Hopcraft
et al. 2005, as cited by Cavalcanti 2008,
p. 47). Jaguars are considered
opportunistic feeders, and their diet
varies according to prey density and
ease of prey capture (sources as cited in
Seymour 1989, p. 4). Jaguars equally use
medium- and large-size prey, with a
trend toward use of larger prey as
distance increases from the equator
´
´
(Lopez Gonzalez and Miller 2002, p.
218).
In northeastern Sonora, where the
northernmost breeding population of
jaguars occurs, Rosas-Rosas (2006, pp.
24–25) found that large prey greater
than 10 kilograms (kg) (22 pounds (lb))
accounted for more than 80 percent of
the total biomass consumed.
Specifically, cattle accounted for more
than half of the total biomass consumed
(57 percent), followed by white-tailed
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deer (23 percent), and collared peccary
(5.12 percent). Medium-sized prey (1–10
kg; 2–22 lb), including lagomorphs
(rabbit family) and coatis (Nasua
nasua), accounted for less than 20
percent of biomass. Small prey, less
than 1 kg (2 lb), were not found in scats
(Rosas-Rosas 2006, p. 24). At the
Chamela-Cuixmala Biosphere Reserve in
Jalisco, Mexico (which is closed to
livestock grazing), deer and javelina
were the two most preferred prey
species for jaguars, with jaguars
consuming the equivalent of 85 deer per
´
individual per year (Brown and Lopez
´
Gonzalez 2001, p. 51). No estimates of
the number of javelina consumed were
provided, although in combination with
deer, armadillo, and coati, these four
prey items provided 98 percent of the
biomass taken by jaguars (Brown and
´
´
Lopez Gonzalez 2001, p. 50). Most
jaguar experts believe that collared
peccary and deer are mainstays in the
diet of jaguars in the United States and
Mexico borderlands (62 FR 39147),
although other available prey, including
coatis, skunk (Mephitis spp., Spilogale
gracilis), raccoon (Procyon lotor),
jackrabbit (Lepus spp.), domestic
livestock, and horses are taken as well
´
´
(Brown and Lopez Gonzalez 2001, p. 51;
Hatten et al. 2005, p. 1024; Rosas-Rosas
2006, p. 24).
Therefore, based on the information
above, we identify areas containing
adequate numbers of native prey,
including deer, javelina, and mediumsized prey items (such as coatis, skunks,
raccoons, or jackrabbits) as an essential
component of the physical and
biological feature essential for the
conservation of the jaguar in the United
States.
Water—Several studies have
demonstrated that jaguars require
surface water within a reasonable
distance year-round. This requirement
likely stems from increased prey
abundance at or near water sources
(Cavalcanti 2008, p. 68; Rosas-Rosas et
al. 2010, pp. 107–108), particularly in
arid environments, although it is
conceivable that jaguars require a
nearby water source for drinking, as
well. Seymour (1989, p. 4) found that
jaguars are most commonly found in
areas with a water supply, although the
distance to this water supply is not
defined. In northeastern Sonora,
Mexico, Rosas-Rosas et al. (2010, p. 107)
found that sites of jaguar cattle kills
were positively associated with
proximity to permanent water sources.
They also found that these sites were
positively associated with proximity to
roads, but concluded that the effect of
roads likely represented a response to
major drainages, as roads generally
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followed major drainages within their
study area.
In the United States, Hatten et al.
(2005, p. 1026) analyzed distance to
water as a feature of jaguar habitat using
jaguar records from Arizona dating from
1900 to 2002, from which they selected
the most reliable records (those with
physical evidence or from a reliable
witness) and most spatially accurate
records (those with spatial errors of less
than 8 km (5 mi)) to create a habitat
suitability model. Of the 57 records they
considered, 25 records were deemed
reliable and accurate enough to include
in the model. Using a digital GIS layer
that included perennial and intermittent
water sources (streams, rivers, lakes,
and springs), Hatten et al. (2005, p.
1029) found that when perennial and
intermittent water sources were
combined, 100 percent of the 25 jaguar
records used for their model were
within 10 km (6.2 mi) of a water source.
This distance from water (10 km; 6.2 mi)
was then incorporated into a jaguar
habitat modeling exercise in New
Mexico (Menke and Hayes 2003, pp. 15–
16), as well.
In the jaguar habitat models
developed by Sanderson and Fisher
(2011, pp. 10–11; 2013, pp. 33–34) for
the proposed Northwestern Recovery
Unit, 10 km (6.2 mi) was also
determined to be the maximum distance
from water that could still provide
jaguar habitat. In addition, this distance
was further acknowledged by the
technical subgroup of the Jaguar
Recovery Team as the maximum
distance an area could be from a yearround water source to constitute highquality jaguar habitat (Jaguar Recovery
Team 2012, pp. 15–16).
Therefore, based on the information
above, we identify sources of surface
water within at least 20 km (12.4 mi) of
each other such that a jaguar would be
within 10 km (6.2 mi) of a water source
at any given time (i.e., if it were halfway
between these water sources) as an
essential component of the physical or
biological feature essential for the
conservation of the jaguar in the United
States.
Cover or Shelter
Vegetative Cover—Jaguars require
vegetative cover allowing them to stalk
and ambush prey, as well as providing
areas in which to den and rest (Jaguar
Recovery Team 2012, pp. 15–16).
Jaguars are known from a variety of
vegetation communities (Seymour 1989,
p. 2), sometimes called biotic
communities or vegetation biomes
(Brown 1994, p. 9). Jaguars have been
documented in arid areas in
northwestern Mexico and the
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southwestern United States, including
thornscrub, desertscrub, lowland desert,
mesquite grassland, Madrean oak
woodland, and pine-oak woodland
´
communities (Brown and Lopez
´
Gonzalez 2001, pp. 43–50; Boydston
´
´
and Lopez Gonzalez 2005, p. 54;
McCain and Childs 2008, p. 7; RosasRosas et al. 2010, p. 103). As most of the
information pertaining to jaguar habitat
in the U.S.-Mexico borderlands relies on
descriptions of biotic communities from
Brown and Lowe (1980, map) and
Brown (1994, entire, including
appendices), for purposes of this
document we are using these same
sources and descriptions, as well.
´
According to Brown and Lopez
´
Gonzalez (2001, p. 46), the most
important biotic community for jaguars
in the southwestern borderlands
(Arizona, New Mexico, Sonora,
Chihuahua) is Sinaloan thornscrub (as
described in Brown 1994, pp. 100–105),
with 80 percent of the jaguars killed in
the state of Sonora documented in this
´
vegetation biome (Brown and Lopez
´
Gonzalez 2001, p. 48). This biotic
community, however, is absent in the
United States (Brown and Lowe 1980,
´
´
map; Brown and Lopez Gonzalez 2001,
p. 49). Madrean evergreen woodland is
also important for borderlands jaguars;
nearly 30 percent of jaguars killed in the
borderlands region were documented in
this biotic community (Brown and
´
´
Lopez Gonzalez 2001, p. 45). Brown and
´
´
Lopez Gonzalez (2000, p. 538) indicate
jaguars in Arizona and New Mexico
predominantly use montane
environments, probably because of more
amiable temperatures and prey
availability. A smaller, but still notable,
number of jaguars were killed in
chaparral and shrub-invaded semidesert
´
´
grasslands (Brown and Lopez Gonzalez
2001, p. 48). In Arizona, approximately
15 percent of the jaguars taken within
the State between the years 1900 and
2000 were in semidesert grasslands
´
´
(Brown and Lopez Gonzalez 2001, p.
49).
The more recent sightings (2001–
2007), as described in McCain and
Childs (2008, pp. 3, 7), document
jaguars in these same biotic
communities (note that the Madrean
evergreen woodland and semidesert
grassland biotic communities
encompass mesquite grassland,
Madrean oak woodland, and pine-oak
woodland habitats), and the most recent
sightings of a jaguar in Arizona (2011–
2013) were in Madrean evergreen
woodland, as well (see Table 1 in the
‘‘Class I Records’’ section, above).
Several modeling studies
incorporating vegetation characteristics
have attempted to refine the general
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understanding of habitats that have been
or might be used by jaguars in the
United States. To characterize
vegetation biomes, Hatten et al. (2005,
entire) used a digital vegetation layer
based on Brown and Lowe (1980, map)
and Brown (1994, entire). They found
that 100 percent of the 25 jaguar records
used for their model were observed in
four vegetation biomes, including: (1)
Scrub grasslands of southeastern
Arizona (56 percent); (2) Madrean
evergreen forest (20 percent); (3) Rocky
Mountain montane conifer forest (12
percent); and (4) Great Basin conifer
woodland (12 percent).
In addition, two studies (Menke and
Hayes 2003, entire; Robinson et al.
2006, entire) attempted to evaluate
potential jaguar habitat in New Mexico
using methods similar to those
described in Hatten et al. (2005, pp.
1025–1028). However, due to the small
number of reliable and spatially
accurate records within New Mexico,
neither model was able to determine
patterns of habitat use (and associated
vegetation communities) for jaguars in
New Mexico, instead relying on
literature and expert opinion for
elements to include in the models.
These vegetation communities included
Madrean evergreen woodland, which
Menke and Hayes (2003, p. 13)
considered the most similar to habitats
used by the closest breeding
populations of jaguars in Mexico, as
well as grasslands (semidesert, Plains
and Great Basin, and subalpine), interior
chaparral, conifer forests and
woodlands (Great Basin, Petran
montane, and Petran subalpine), and
desertscrub (Chihuahuan, Arizona
upland Sonoran, and Great Basin).
Using the methodology described in
Hatten et al. (2005, pp. 1025–1028), but
with some modifications, Sanderson
and Fisher (2011, pp. 1–11; and 2013,
entire) created jaguar habitat models for
the proposed Northwestern Recovery
Unit. In the latest version of the model
(version 13), Sanderson and Fisher
(2013, p. 13) used a data set of 453
jaguar observations (note that Table 1.3
incorrectly states 452 instead of 453) for
which the description of the location
was sufficient to place it with certainty
within 10 km (6.2 mi) of its actual
location, and for which a date to the
nearest century was available
(Sanderson and Fisher 2013, pp. 3–5
and Appendix 2). Sanderson and Fisher
(2013, p. 6) substituted a digital layer
describing ecoregions (World Wildlife
Fund Ecoregions) for the digital biotic
community layer based on Brown and
Lowe (1980, map) and Brown (1994,
entire), however. The reason for this
was because the latter two references do
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not cover the entire Northwestern
Recovery Unit for the jaguar; therefore,
an appropriate substitution was
required for modeling purposes. Within
this ecoregion’s digital layer, the
category given the highest relative
weight (0.2) within the United States is
called Sierra Madre Occidental pine-oak
forests, representing the best jaguar
habitat within the borderlands region
(Sanderson and Fisher 2013, p. 34). This
category most closely resembles the
Madrean evergreen woodland biotic
community. There is no equivalent
category for semidesert grassland in the
ecoregions digital layer; instead,
Sonoran desert and Chihuahuan desert
cover all grassland and desert biotic
communities. These two desert
categories are given a very low relative
weight (0.01), representing poorer
quality jaguar habitat within the
borderlands region (Sanderson and
Fisher 2013, p. 34).
Sanderson and Fisher (2011, p. 7;
2013, pp. 5–6) also added a digital layer
to capture canopy cover (called land
cover in the reports), as represented by
a digital layer called tree cover. In the
latest version of the model (version 13),
Sanderson and Fisher (2013, p. 20)
analyzed the tree cover preferred by
jaguars in the Jalisco Core Area (the
southernmost part of the Northwestern
Recovery Unit) separately from tree
cover in all other areas (note that p. 15
of this report incorrectly states that the
Sinaloa Secondary Area is included
with the Jalisco Core Area in this
analysis) to reflect the major habitat
shift from the dry tropical forest of
Jalisco, Mexico, to the thornscrub
vegetation of Sonora, Mexico. The
results of these analyses indicate that
jaguars in the southernmost part of the
Northwestern Recovery Unit (the Jalisco
Core Area) seem to inhabit a wider
range of tree cover values (greater than
1 to 100 percent), whereas jaguars
throughout the rest of the Northwestern
Recovery Unit (including the United
States) appear to inhabit a narrower
range of tree cover values (greater than
1 to 50 percent) (Sanderson and Fisher,
p. 20).
Therefore, based on the information
above, we identify Madrean evergreen
woodlands and semidesert grasslands
containing greater than 1 to 50 percent
tree cover (or canopy cover) as an
essential component of the physical or
biological feature essential for the
conservation of the jaguar in the United
States. Though slightly different than
the habitat characteristics included in
the latest habitat model produced by the
Jaguar Recovery Team, Madrean
evergreen woodland and semidesert
grassland as described by Brown and
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Lowe (1980, map) and Brown (1994,
entire, including appendices) are
included instead of Sierra Madre
Occidental pine-oak, Sonoran desert,
and Chihuahuan desert vegetation
communities described by the World
Wildlife Fund Ecoregion data layer
because of the higher resolution of these
data and more accurate representation
of the vegetation communities in the
United States and borderlands region
and their importance to jaguars within
this area (as described above; see also
Table 1 in the ‘‘Class I Reports’’ section,
above). We directly incorporate the tree
cover recommendation within the
northern part of the Northwestern
Recovery Unit (greater than 1 to 50
percent; Sanderson and Fisher 2013, p.
33) as part of this essential physical or
biological feature component.
Rugged Topography—Rugged
topography (including canyons, ridges,
and some rocky hills to provide sites for
resting) is acknowledged as an
important component of jaguar habitat
in the northwestern-most portion of its
range (Jaguar Recovery Team 2012, pp.
15–16). The most recent Sanderson and
Fisher (2013, p. 17) habitat model for
the Northwestern Recovery Unit for the
jaguar determined that jaguars in this
area were most frequently found in
intermediately, moderately, and highly
rugged terrain. Additionally, one study
in the U.S.-Mexico borderlands area
´
´
(Boydston and Lopez Gonzalez 2005,
entire) and one in northeastern Mexico
(Ortega-Huerta and Medley 1999, entire)
incorporate slope as a factor in
describing jaguar habitat. Although
slope can provide some understanding
of topography (steep slopes generally
indicate a more rugged landscape), it is
less descriptive in terms of quantifying
terrain heterogeneity (diversity) (Hatten
et al. 2005, pp. 1026–1027).
Nonetheless, in these studies, jaguar
distribution was found to be on steeper
slopes than those slopes that were
available for the study areas in general
(Ortega-Huerta and Medley 1999, p. 261;
´
´
Boydston and Lopez Gonzalez 2005, p.
54), indicating jaguars were found in
more rugged areas in these studies.
Two modeling exercises incorporating
ruggedness have been conducted to
determine existing jaguar habitat in the
southwestern United States, one in
Arizona and another in New Mexico. To
examine the relationship between
jaguars and landscape roughness in
Arizona, Hatten et al. (2005, p. 1026)
calculated a terrain ruggedness index
(TRI; Riley et al. 1999, as cited in Hatten
et al. 2005, p. 1026) measuring the slope
in all directions of each 1-km2 (0.4-mi2)
cell (pixel) in their model. They divided
the TRI data into seven classes
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according to relative roughness: level,
nearly level, slightly rugged,
intermediately rugged, moderately
rugged, highly rugged, and extremely
rugged. With respect to topography,
they found that 92 percent of the 25
jaguar records used in their model (see
‘‘Water’’ in the ‘‘Food, Water, Air, Light,
Minerals, or Other Nutritional or
Physiological Requirements’’ section,
above) occurred in intermediately
rugged to extremely rugged terrain (the
remaining 8 percent were in nearly level
terrain).
Menke and Hayes (2003, entire)
attempted to evaluate potential jaguar
habitat in New Mexico using methods
similar to those described in Hatten et
al. (2005, pp. 1025–1028). While
patterns of habitat use for jaguars could
not be determined (due to the small
number of reliable and spatially
accurate records within New Mexico, of
which there were seven), all sighting
locations occurred in areas that were
assigned a highly rugged value, and
terrain ruggedness was the single
variable that appeared to have a high
degree of correlation with locations of
jaguar observations in New Mexico.
In addition, through the most recent
habitat modeling efforts for the jaguar in
the Northwestern Recovery Unit,
Sanderson and Fisher (2013, pp. 33–34)
determined that intermediately,
moderately, or highly rugged terrain
represented the best habitat available for
jaguars in the northwestern-most part of
their range.
Therefore, based on this information,
we identify areas of intermediately,
moderately, or highly rugged terrain as
an essential component of the physical
or biological feature essential for the
conservation of the jaguar in the United
States.
Elevation—Elevation is a component
of jaguar habitat in the northwesternmost portion of its range (Sanderson and
Fisher 2013, pp. 5, 6, Appendix 2).
Based on a visual analysis of the
frequency of jaguar observations at
different elevations within the
northwestern-most portion of the
species’ range, the technical subgroup of
the Jaguar Recovery Team determined
that areas above 2,000 m (6,562 ft) did
not provide jaguar habitat, as only 3.3
percent (15 of 453) of the observations
utilized in the most recent jaguar habitat
modeling effort occurred above this
elevation (Sanderson and Fisher 2013,
pp. 19, 29; note that p. 19 incorrectly
states 20 observations above 2,000 m
(6,562 ft) instead of 15, and Table 1.3 on
p. 13 incorrectly states 452 jaguar
observations total instead of 453). In the
most recent habitat model for the jaguar
in the proposed Northwestern Recovery
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Unit, Sanderson and Fisher (2013, pp.
19, 29) incorporated this upperelevation limit and excluded areas
above 2,000 m (6,562 ft). Therefore,
based on this information, we identify
areas of less than 2,000 m (6,562 ft) in
elevation as an essential component of
the physical or biological feature
essential for the conservation of the
jaguar in the United States.
Sites for Breeding, Reproduction, or
Rearing (or Development) of Offspring
As demonstrated in Table 1, above,
from 1962 to the present all undisputed
Class I jaguar observations for which the
sex of the animal could be determined
have been male individuals. Few
records of females exist within the
´
United States (see Brown and Lopez
´
Gonzalez 2001, pp. 6–9 for records from
1900–2000), and even fewer records of
jaguar breeding events in the United
States have been documented. The most
recent known breeding event is from
over 100 years ago in 1910 of a female
jaguar with one cub at the head of
Chevlon Canyon in the Sitgreaves
National Forest in Arizona (Brown and
´
´
Lopez Gonzalez 2001, p. 9). Further, as
described in the Jaguar Recovery
Planning in Relation to Critical Habitat
section, above, the recovery function
and value of critical habitat within the
United States is to contribute to the
species’ persistence and, therefore,
overall conservation by providing areas
to support some individuals during
dispersal movements, by providing
small patches of habitat (perhaps in
some cases with a few resident jaguars),
and as areas for cyclic expansion and
contraction of the nearest core area and
breeding population in the
Northwestern Recovery Unit (Jaguar
Recovery Team 2012, pp. 40, 42). Since
the last known breeding event in the
United States was in 1910, the breeding
habitat for jaguars in the United States
is not clearly understood. Further, while
some assessment of breeding habitat has
been conducted in Mexico, this habitat
is different than the habitat in the
United States. Therefore we are not able
to identify any additional habitat
features needed for purposes of
reproduction, beyond those habitat
features already identified.
Habitats That Are Protected From
Disturbance or Are Representative of the
Historical, Geographical, and Ecological
Distributions of a Species
Human populations can impact
jaguars directly by killing individuals
through hunting, poaching, or
depredation control, as well as
indirectly through disturbance of
normal biological activities, loss of
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habitat, and habitat fragmentation.
Rangewide, illegal killing of jaguars is
one of the two most significant threats
to the jaguar (Nowell and Jackson 1996,
´˜
p. 121; Nunez et al. 2002, p. 100; Taber
´
et al. 2002, p. 630; Chavez and Ceballos
2006, p. 10), and, according to the July
22, 1997, clarifying rule (62 FR 39147),
the primary threat to jaguars in the
United States was illegal shooting (see
listing rule for a detailed discussion).
This, however, is no longer accurate, as
the most recent known shooting of a
jaguar in Arizona was in 1986 (Brown
´
´
and Lopez Gonzalez 2001, p. 7). Jaguars
are protected by Federal law through the
Act and by State law in Arizona and
New Mexico. Four of the individual
jaguars most recently documented
(since 1996) in Arizona and New
Mexico have been documented by lion
hunters, who took photographs of the
jaguars and then reported them to the
Arizona Game and Fish Department and
the Service. While illegal killing of
jaguars continues to be a major threat to
jaguars south of the U.S.-Mexico
international border, it does not appear
to be a significant threat within the
United States.
In terms of human influence and
impact on jaguars other than by direct
killing, human populations have both
direct and indirect impacts on jaguar
survival and mortality. For example, an
increase in road density and human
settlements tends to fragment habitat
and isolate populations of jaguars and
other wildlife. For carnivores in general,
the impacts of high road density have
been well documented and thoroughly
reviewed (Noss et al. 1996 and Carroll
et al. 2001, as cited by Menke and Hayes
2003, p. 12). Roads may have direct
impacts to carnivores and carnivore
habitats, including roadkill,
disturbance, habitat fragmentation,
changes in prey numbers or
distribution, and increased access for
legal or illegal harvest (Menke and
Hayes 2003, p. 12; Colchero et al. 2010,
entire). Studies have also shown that
jaguars selectively use large areas of
relatively intact habitat away from
certain forms of human influence. Zarza
et al. (2007, pp. 107, 108) report that
towns and roads had an impact on the
spatial distribution of jaguars in the
Yucatan peninsula, where jaguars used
areas located more than 6.5 km (4 mi)
from human settlements and 4.5 km (2.8
mi) from roads. In the State of Mexico,
Mexico, Monroy-Vilchis et al. (2008, p.
535) report that one male jaguar
occurred with greater frequency in areas
relatively distant from roads and human
populations. In some areas of western
Mexico, however, jaguars (both sexes)
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have frequently been recorded near
´˜
human settlements and roads (Nunez
2011, pers. comm.). In Marismas
Nacionales, Nayarit, a jaguar den was
recently located very close to an
agricultural field, apparently 1 km (0.6
´˜
mi) from a small town (Nunez 2011,
pers. comm.). Jaguar presence is affected
in different ways by various human
activities; however, direct persecution
likely has the most significant impact.
Because jaguars are secretive animals
and generally tend to avoid highly
disturbed areas (Quigley and Crawshaw
1992, entire; Hatten et al. 2005, p. 1025),
human density was a factor considered
in jaguar habitat modeling exercises for
Arizona (Hatten et al. 2005, p. 1025) and
New Mexico (Menke and Hayes 2003,
pp. 9–13; Robinson et al. 2006, pp. 10,
15, 18–20), and the habitat models
developed by Sanderson and Fisher
(2011, pp. 5–11 and 2013, entire) for the
northwestern Mexico and the U.S.Mexico borderlands area. Hatten et al.
(2005, p. 1025) excluded areas within
city boundaries, higher density rural
areas visible on satellite imagery, and
agricultural areas from their Arizona
habitat model, as recommended by
jaguar experts. All of the jaguar
locations used in their model fell
outside of these areas, indicating jaguars
are not found in highly developed or
disturbed areas (Figure 6, p. 1031).
Menke and Hayes (2003, pp. 9–13)
attempted to evaluate potential jaguar
habitat in New Mexico using methods
similar to those described in Hatten et
al. (2005, p. 1025). Because of a lack of
comparable digital data for New Mexico,
they instead created a data layer of road
density per km2 and classified it into
habitat suitability categories. However,
due to the small number of reliable and
spatially accurate jaguar occurrence
records within New Mexico (a total of
seven), patterns of habitat use for
jaguars could not be determined from
their model, and they did not
summarize the road density categories
in which jaguars were found within the
State. In the habitat model for New
Mexico developed by Robinson et al.
(2006), areas with continuous row crop
agriculture, human residential
development in excess of 1 house per 4
ha (10 ac), or industrial areas were not
considered jaguar habitat, and were
therefore excluded from their model.
Similarly to Menke and Hayes (2003,
entire), patterns of habitat use for
jaguars could not be determined from
their model, and they did not
summarize the human footprint
categories in which jaguars were found
within the State.
The habitat models developed by
Sanderson and Fisher (2011, pp. 5–11
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and 2013, pp. 33–42) include a Human
Influence Index (HII) criterion
developed by the Wildlife Conservation
Society (WCS) and Center for
International Earth Science Information
Network (CIESIN) at the Socioeconomic
Data and Applications Center (SEDAC)
at Columbia University (SEDAC 2012, p.
1). Using procedures developed by
Sanderson (2002, as described in
SEDAC 2012, pp. 1–2), WCS and CIESIN
combined scores for eight input layers
(human population density per km2,
railroads, major roads, navigable rivers,
coastlines, stable nighttime lighting,
urban polygons, and land cover) to
calculate a composite HII for 1-km2 (0.4mi2) grid cells (pixels) worldwide.
These values could range from 0 to 64,
with 0 representing no human influence
and 64 representing the maximum
human influence possible using all 8
measures of human presence.
In the most recent version of the
habitat model (version 13), Sanderson
and Fisher (2013, pp. 20, 34) analyzed
the HII preferred by jaguars in the
Jalisco Core Area (the southernmost part
of the Northwestern Recovery Unit)
separately from the HII in all other areas
(note that p. 15 of this report incorrectly
states that the Sinaloa Secondary Area
is included with the Jalisco Core Area
in this analysis) to recognize that jaguars
may respond more tolerantly to human
influence in the south than they do in
the north. The results of these analyses
indicate that jaguars in the
southernmost part of the Northwestern
Recovery Unit (the Jalisco Core Area)
seem to inhabit a wider range of HII
values (less than 30), whereas jaguars
throughout the rest of the Northwestern
Recovery Unit (including the United
States) appear to inhabit a narrower
range of HII values (less than 20)
(Sanderson and Fisher 2013, pp. 20, 34).
Therefore, based on this information,
we identify areas in which the HII
calculated over 1 km2 (0.4 mi2) is less
than 20 as an essential component of the
physical or biological feature essential
for the conservation of the jaguar in the
United States. These areas are
characterized by minimal to no human
population density, no major roads, or
no stable nighttime lighting over any 1km2 (0.4-mi2) area.
features that provide for a species’ lifehistory 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
jaguars are:
Expansive open spaces in the
southwestern United States of at least
100 km2 (38.6 mi2) in size which:
(1) Provide connectivity to Mexico;
(2) Contain adequate levels of native
prey species, including deer and
javelina, as well as medium-sized prey
such as coatis, skunks, raccoons, or
jackrabbits;
(3) Include surface water sources
available within 20 km (12.4 mi) of each
other;
(4) Contain from greater than 1 to 50
percent canopy cover within Madrean
evergreen woodland, generally
recognized by a mixture of oak (Quercus
spp.), juniper (Juniperus spp.), and pine
(Pinus spp.) trees on the landscape, or
semidesert grassland vegetation
communities, usually characterized by
Pleuraphis mutica (tobosagrass) or
Bouteloua eriopoda (black grama) along
with other grasses;
(5) Are characterized by
intermediately, moderately, or highly
rugged terrain;
(6) Are below 2,000 m (6,562 feet) in
elevation; and
(7) Are characterized by minimal to
no human population density, no major
roads, or no stable nighttime lighting
over any 1-km2 (0.4-mi2) area.
Because habitat in the United States is
at the edge of the species’ northern
range, and is marginal compared to
known habitat throughout the range, we
have determined that all of the primary
constituent elements discussed must be
present in each specific area to
constitute critical jaguar habitat in the
United States, including connectivity to
Mexico (but that connectivity may be
provided either through a direct
connection to the border or by other
areas essential for the conservation of
the species; see Areas Essential for the
Conservation of Jaguars, below).
Primary Constituent Elements for Jaguar
Under the Act and its implementing
regulations, we are required to identify
the physical or biological features
essential to the conservation of jaguar in
areas occupied at the time of listing,
focusing on the features’ primary
constituent elements. Primary
constituent elements are those specific
elements of the physical or biological
Special Management Considerations or
Protections
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When designating critical habitat, we
assess whether the specific areas within
the geographical area occupied by the
species at the time of listing contain
features that are essential to the
conservation of the species and which
may require special management
considerations or protection.
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Jaguar habitat and the features
essential to their conservation are
threatened by the direct and indirect
effects of increasing human influence
into remote, rugged areas, as well as
projects and activities that sever
connectivity to Mexico. These may
include, but are not limited to:
Significant increases in border-related
activities, both legal and illegal;
construction of roadways, power lines,
or pipelines; construction or expansion
of human developments; mineral
extraction and mining operations;
military activities in remote locations;
and human disturbance related to
increased activities in or access to
remote areas.
Jaguars in the United States are
understood to be individuals dispersing
north from Mexico (perhaps in some
cases becoming resident in the United
States), where the closest breeding
population occurs about 210 km (130
mi) south of the U.S.-Mexico border in
Sonora near the towns of Huasabas,
´
´
Sahuaripa (Brown and Lopez Gonzalez
2001, pp. 108–109), and Nacori Chico
(Rosas-Rosas and Bender 2012, pp. 88–
89). Therefore, impeding jaguar
movement from Mexico to the United
States would adversely affect the
Northwestern Recovery Unit’s ability to
cyclically expand and contract as jaguar
populations in that unit recover.
Continuing threats from construction
of border infrastructure (such as
pedestrian fences and roads), as well as
illegal activities and resultant law
enforcement response (such as
increased human presence, vehicles,
and lighting), may limit movement of
jaguars at the U.S.-Mexico border
(Service 2007, pp. 23–27; 2008, pp. 73–
75). The border from the Tohono
O’odham Nation, Arizona, to
southwestern New Mexico has a mix of
pedestrian fence (not permeable to
jaguars), vehicle fence (fence designed
to prevent vehicle but not pedestrian
entry; it is generally permeable enough
to allow for the passage of jaguars),
legacy (older) pedestrian and vehicle
fence, and unfenced segments
(primarily in rugged, mountainous
areas). Fences designed to prevent the
passage of humans across the border
also prevent passage of jaguars.
However, there is little to no
impermeable fence in areas designated
as critical habitat, and we do not
anticipate the construction of
impermeable fence in such areas.
Additionally, fences may cause an
increase in illegal traffic and subsequent
law enforcement activities in areas
where no fence exists (such as rugged,
mountainous areas). This activity may
limit jaguar movement across the border
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and result in general disturbance to
jaguars and degradation of their habitat.
While current levels of law
enforcement activity do not pose a
significant threat, a substantial increase
in activity levels could be of concern.
We note that some level of law
enforcement activity can be beneficial,
as it decreases illegal traffic. Significant
increases in illegal crossborder activities
in the designated critical habitat areas
could pose a threat to the jaguar, and,
therefore, border security actions
provide a beneficial decrease in
crossborder violations and their
impacts. In summary, special
management considerations or
protection of the physical or biological
feature essential to the conservation of
jaguar habitat may be needed to
alleviate the effects of border-related
activities, allowing for some level of
permeability so that jaguars may pass
through the U.S.-Mexico border.
Under section 102 of the Illegal
Immigration Reform and Immigrant
Responsibility Act, the Secretary of the
Department of Homeland Security
(DHS) is authorized to waive laws
where the Secretary of DHS deems it
necessary to ensure the expeditious
construction of border infrastructure in
areas of high illegal entry. As noted
above, we know of no plans to construct
additional security fences in the
designated critical habitat. However, if
future national security issues require
additional measures and the Secretary
of DHS invokes the waiver, review
through the section 7 consultation
process would not be conducted. If DHS
chooses to consult with the Service on
activities covered by a waiver, special
management considerations would
continue to occur on a voluntary basis.
Construction of roadways, power
lines, or pipelines (all of which usually
include maintenance roads),
construction or expansion of human
developments, mineral extraction and
mining operations, and military
operations on the ground can have the
effect of altering habitat characteristics
and increasing human presence in
otherwise remote locations. Activities
that can permanently alter vegetation
characteristics, displace native wildlife,
affect sources of water, and/or alter
terrain ruggedness, such as construction
and mining, may render an area
unsuitable for jaguars. In addition, these
activities, as well as military operations
on the ground in remote areas, bring an
increase in human disturbance into
jaguar habitat, potentially fragmenting it
further. As described in the ‘‘Habitats
Protected from Disturbance or
Representative of the Historical,
Geographic, and Ecological
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Distributions of the Species’’ section,
above, studies have also shown that
jaguars selectively use large areas of
relatively intact habitat away from
human influence (Zarza et al. 2007, pp.
107, 108). Modeling exercises both in
the United States (Menke and Hayes
2003, entire; Hatten et al. 2005, entire;
Robinson et al. 2006, entire) and in
northwestern Mexico and the U.S.Mexico borderlands area (Sanderson
and Fisher 2011, pp. 1–11 and 2013,
entire) incorporate low levels of human
influence when mapping potential
jaguar habitat in the United States.
Special management considerations of
the physical and biological feature
essential to the conservation of the
jaguar may be needed to alleviate the
effects on jaguar habitat of new road
construction or construction or
expansion of power line and pipeline
projects; human developments; mining
operations; and ground-based military
activities. Future projects should avoid
(to the maximum extent possible) areas
identified as meeting the definition of
critical habitat for jaguars, and if
unavoidable, should be constructed or
carried out to minimize habitat effects.
Areas Essential for the Conservation of
Jaguars
As described in the ‘‘Occupied Area
at the Time of Listing’’ section, above,
we acknowledge that the lack of jaguar
sightings at the time the species was
listed as endangered in 1972 (37 FR
6476), as well as some expert opinions
cited in our July 22, 1997, clarifying rule
(62 FR 39147) (for example, Swank and
Teer 1989), suggest that jaguars in the
United States had declined to such an
extent by that point as to be effectively
eliminated. Only two undisputed Class
I records (Table 1 in the ‘‘Class I
Records,’’ above) exist for jaguars
between 1962 and 1982, both of which
were males killed by hunters. To the
extent that areas described above may
not have been occupied at the time of
listing, we determine that they are
essential to the conservation of the
species for the following reasons: (1)
They have demonstrated recent (since
1996) occupancy by jaguars; (2) they
contain features that comprise suitable
jaguar habitat; and (3) they contribute to
the species’ persistence in the United
States by allowing the normal
demographic function and possible
range expansion of the proposed
Northwestern Recovery Unit, which is
essential to the conservation of the
species (as discussed in the Jaguar
Recovery Planning in Relation to
Critical Habitat section, above).
Therefore, we include them in the
critical habitat designation.
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Additionally, as discussed in the
Jaguar Recovery Planning in Relation to
Critical Habitat and ‘‘Space for
Individual and Population Growth and
for Normal Behavior’’ sections, above,
connectivity to Mexico is essential for
the conservation of jaguars. Jaguars in
the United States are understood to be
individuals dispersing from the nearest
core population in Mexico, which
includes areas in central Sonora,
southwestern Chihuahua, and
northeastern Sinaloa (Jaguar Recovery
Team 2012, p. 21). The closest known
breeding population occurs about 210
km (130 mi) south of the U.S.-Mexico
border in Sonora near the towns of
´
Huasabas, Sahuaripa (Brown and Lopez
´
Gonzalez 2001, pp. 108–109), and
Nacori Chico (Rosas-Rosas and Bender
2012, pp. 88–89). In several of our
Federal Register documents pertaining
to the jaguar, including the notice in
which we determined that designating
critical habitat was prudent (75 FR
1741, p. 1743), we discussed the need
to develop and maintain travel corridors
for jaguars between the United States
and Mexico to enable a few, possibly
resident individuals to persist north of
the international border. Therefore, we
conclude that maintaining travel
corridors to Mexico is essential for the
conservation of jaguars in the
Northwestern Recovery Unit, and,
therefore, for the species as a whole.
As we discussed under ‘‘Space for
Individual and Population Growth and
for Normal Behavior,’’ above, describing
these areas of connectivity within the
United States is difficult because of a
lack of information about the features
these areas encompass. However, in
some areas there may be a level of
connectivity to Mexico that could be
provided because these areas contain
some, but not all, of the PCEs described
above. In the 2011 jaguar habitat model
developed for northwestern Mexico and
the U.S.-Mexico borderlands area,
Sanderson and Fisher (2011, p. 11)
described how low human influence is
perhaps the most important feature
defining jaguar habitat, as jaguars most
often avoid areas with too much human
pressure. Furthermore, their model
described a level of uncertainty
regarding jaguar use of areas with
moderate tree cover and intermediate to
high ruggedness, as jaguars could
potentially be found in areas meeting
only one of these habitat qualities.
Therefore, we have determined the most
likely areas providing connectivity from
occupied areas in the United States to
Mexico are those in which the human
influence is low, and either or both
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moderate tree cover or intermediately to
highly rugged terrain is present.
Consequently, we are further defining
areas essential for the conservation of
jaguars as those areas without a Class I
observation that: (1) Connect an area
that may have been occupied that is
isolated within the United States to
Mexico, either through a direct
connection to the international border
or through another area that may have
been occupied; and (2) contain low
human influence and impact, and either
vegetative cover or rugged terrain. Based
on these criteria, we identified three
subunits outside of areas that may have
been occupied that are also essential for
the conservation of jaguars in the United
States because they provide
connectivity to Mexico. They include
the southern extent of the Baboquivari
Mountains, an east-west connection area
between the Santa Rita and Empire
Mountains and northwestern extent of
the Whetstone Mountains, and a northsouth connection area between the
southern extent of the Whetstone
Mountains and the Huachuca
Mountains (including the Mustang
Mountains).
Climate Change
The degree to which climate change
will affect jaguar habitat in the United
States is uncertain, but it has the
potential to adversely affect the jaguar
within the next 50 to 100 years (Jaguar
Recovery Team 2012, p. 32). Climate
change will be a particular challenge for
biodiversity 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 facet 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;
Intergovernmental Panel on Climate
Change (IPCC) 2007, p. 1181). Climate
change may lead to increased frequency
and duration of severe storms and
droughts (Golladay et al. 2004, p. 504;
McLaughlin et al. 2002, p. 6074; Cook
et al. 2004, p. 1015).
The current prognosis for climate
change impacts in the American
Southwest includes fewer frost days;
warmer temperatures; greater water
demand by plants, animals, and people;
and an increased frequency of extreme
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12589
weather events, such as heat waves,
droughts, and floods (Weiss and
Overpeck 2005, p. 2074; Archer and
Predick 2008, p. 24). How climate
change will affect summer precipitation
is less certain, because precipitation
predictions are based on continentalscale general circulation models that do
not yet account for land use and land
cover effects or regional phenomena,
such as those that control monsoonal
rainfall in the Southwest (Weiss and
Overpeck 2005, p. 2075; Archer and
Predick 2008, pp. 23–24). Some models
predict dramatic changes in
Southwestern vegetation communities
as a result of climate change (Weiss and
Overpeck 2005, p. 2074; Archer and
Predick 2008, p. 24), especially as
wildfires carried by nonnative plants
(e.g., buffelgrass) potentially become
more frequent, promoting the presence
of exotic species over native ones (Weiss
and Overpeck 2005, p. 2075).
The impact of future drought, which
may be long-term and severe (Seager et
al. 2007, pp. 1183–1184; Archer and
Predick 2008, entire), may affect jaguar
habitat in the U.S.-Mexico borderlands
area, but the information currently
available on the effects of global climate
change and increasing temperatures
does not make sufficiently precise
estimates of the location and magnitude
of the effects. We do not know whether
the changes that have already occurred
have affected jaguar populations or
distribution, nor can we predict how the
species will adapt to or be affected by
the type and degree of climate changes
forecast. We are not currently aware of
any climate change information specific
to the habitat of the jaguar that would
indicate what areas may become
important to the species in the future.
Therefore, we are unable to determine
what additional areas, if any, may be
appropriate to include in the final
critical habitat designation for this
species specifically to address the
effects of climate change.
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 reviewed available information and
supporting data that pertains to the
habitat requirements of the jaguar. Much
of this information is compiled in the
Recovery Outline for the Jaguar (Jaguar
Recovery Team 2012, entire), Digital
Mapping in Support of Recovery
Planning for the Northern Jaguar report
(Sanderson and Fisher 2011, pp. 1–11),
and Jaguar Habitat Modeling and
Database Update report (Sanderson and
Fisher 2013, entire), which we regard as
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the best available information for the
jaguar and its habitat needs in the
northern portion of its range. A
complete list of information sources is
available in our Literature Cited located
on https://www.regulations.gov at Docket
No. FWS–R2–ES–2012–0042 and at the
field office responsible for the
designation (see FOR FURTHER
INFORMATION CONTACT above).
In accordance with the Act and our
implementing regulations at 50 CFR
424.12(b), we review available
information pertaining to the habitat
requirements of the species and identify
occupied areas at the time of listing that
contain the features essential to the
conservation of the species. If, after
identifying occupied areas, a
determination is made that those areas
are inadequate to ensure conservation of
the species, in accordance with the Act
and our implementing regulations at 50
CFR 424.12(e), we then consider
whether designating additional areas—
outside those currently occupied—are
essential for the conservation of the
species. We are designating critical
habitat in areas within the geographical
area occupied by the species at the time
of listing in 1972. While we understand
there may be alternative explanations as
to whether or not areas were occupied
at the time the jaguar was listed, we are
required to make an administrative
decision regarding occupancy status for
purposes of delineating critical habitat
units and applying the policy as
described in the Act. Based on our
analyses as discussed under the Areas
Essential for the Conservation of
Jaguars, above, it is our determination
that the lands described were occupied
at the time of listing, and thus are
described in the unit descriptions,
below, as being occupied. However,
these same areas are also considered
essential, based on our analysis, above.
We also are designating specific areas
without a Class I observation outside the
geographical area that may have been
occupied by the species at the time of
listing. These subunits provide
connectivity between subunits that may
have been occupied and Mexico because
we have determined that such areas are
essential for the conservation of the
species.
As discussed above, we are defining
the areas that may be occupied by
jaguars to include rugged mountain
ranges in southeastern Arizona and
extreme southwestern New Mexico: (1)
In which an undisputed Class I record
has been documented (see Table 1 in the
‘‘Class I Records’’ section, above)
between 1962 and the present
(September 11, 2013), and (2) that
currently contain the physical or
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biological feature described above (see
below for the steps we followed to
delineate critical habitat boundaries).
Therefore, occupied areas may include
the Baboquivari, Quinlan, Coyote,
Pajarito, Atascosa, Tumacacori,
Patagonia, Canelo Hills, Huachuca,
Grosvenor Hills, Santa Rita, Empire,
Whetstone, and Peloncillo Mountains of
Arizona, and the Peloncillo and San
Luis Mountains of New Mexico.
All undisputed Class I records of
jaguars documented in the United States
since 1962 have been within the
aforementioned mountain ranges, with
the following two exceptions. We are
not including the Dos Cabezas
Mountains in Arizona (one male jaguar
killed in 1986) as critical habitat
because, while this mountain range
contains some of the primary
constituent elements of the physical or
biological feature required for critical
habitat, by itself it is not of an adequate
size (100 km2 (38.6 mi2)) to meet the
expansive open spaces requirement.
Additionally, the 1971 record of a male
jaguar killed by hunters was along the
Santa Cruz River, not within a mountain
range. As described above under ‘‘Space
for Individual and Population Growth
and for Normal Behavior,’’ this is the
only record found in a valley bottom
since the species was listed, and likely
represents a jaguar moving between
areas of higher quality habitat found in
the surrounding isolated mountain
ranges. Therefore, because we are
unable to describe or delineate the
features of areas connecting mountain
ranges in the United States due to a lack
of information, this record does not fall
within or near the physical or biological
feature described above.
We are also designating specific areas
without a Class I observation outside the
geographical area that may have been
occupied by the species at the time of
listing. These areas provide connectivity
to Mexico, or to another area that may
have been occupied that provides
connectivity to Mexico (see Areas
Essential for the Conservation of
Jaguars, above), because such areas are
essential for the conservation of the
species.
We delineated (mapped) critical
habitat boundaries using the following
steps:
(1) We mapped areas containing PCEs
3, 4, 5, and 7 as determined from GIS
data on water availability, vegetation
community, tree cover, ruggedness, and
human influence (for a list of data
sources, see our response to comment
63 in the Summary of Comments and
Recommendations section). We did not
use data describing distribution of
native prey to map areas because
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comprehensive, consistent data
regarding prey distribution across
Arizona and New Mexico is lacking.
Therefore, we relied on the best
information that is readily available
from the Arizona Game and Fish
Department (Hunt Arizona 2012
Edition, available at: https://
www.azgfd.gov/regs/
HuntArizona2012.pdf) and the New
Mexico Department of Game and Fish
(Harvest Information, available at:
https://www.wildlife.state.nm.us/
recreation/hunting/).
Using this information, we
determined that white-tailed deer and
javelina (the preferred prey of the jaguar
in the northwesternmost part of its
range) have been present in each critical
habitat unit (described in Final Critical
Habitat Designation, below) in Arizona
for at least 50 years, and have been
successfully hunted in each hunt unit
overlapping jaguar critical habitat for
the same period of time (Game
Management Units 30A, 34A, 34B, 35A,
35B, 36A, 36B, and 36C). Historical
harvest information from New Mexico is
not as readily available; however, based
on the most recent harvest information,
white-tailed deer and javelina are
available in Unit 5 of jaguar critical
habitat (Game Management Unit 27),
and are likely available in Unit 6 (both
described in Final Critical Habitat
Designation, below) of jaguar critical
habitat (Game Management Unit 26; we
can determine that javelina have been
successfully harvested in this Game
Management Unit, but this particular
unit lumps all deer together, so we are
unable to distinguish hunt success
between mule deer and white-tailed
deer). Therefore, while we were unable
to map prey distribution within Arizona
and New Mexico, we believe adequate
levels of prey are available, and have
been available for at least 50 years in
Arizona.
Areas (also called polygons) that were
adjacent to each other (for example,
touching at corners) were merged into
one polygon. We then selected polygons
containing at least one undisputed Class
I record of a jaguar from 1962 through
September 11, 2013 (Table 1 in the
‘‘Class I Records’’ section, above). We
also selected polygons that fell partially
or entirely within 1 km (0.4 mi) of these
polygons because most of the GIS
datasets we used were of a 1-km2 (0.4mi2) resolution (pixel size), and,
therefore, we determined that this was
the distance within which some
mapping error may have occurred. If the
area within the selected polygons did
not meet the minimum size criterion of
100 km2 (38.6 mi2) when added
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together, we removed those polygons
from further consideration.
We placed a 1-km (0.4-mi) buffer
around the remaining polygons to
account for mapping error, but did not
apply this buffer to areas in which the
vegetation community was other than
Madrean evergreen woodland or
semidesert grassland, or areas in which
the HII was 20 or more (see ‘‘Habitats
Protected from Disturbance or
Representative of the Historical,
Geographic, and Ecological
Distributions of the Species,’’ above).
The vegetation community data we used
were not mapped at a 1-km2 (0.4-mi2)
resolution, and, therefore, we
determined the 1-km (0.4-mi) buffer did
not apply to this dataset. Our rationale
for ensuring only areas in which the HII
was less than 20 (as described in the
‘‘Habitats Protected from Disturbance or
Representative of the Historical,
Geographic, and Ecological
Distributions of the Species’’ section,
above) were included in the designation
was based on Sanderson and Fisher
(2011, p. 11), in which they described
low human influence as being essential
to the jaguar; we, therefore, did not
include any areas in which this PCE was
absent because of its importance in
describing jaguar habitat. We also
removed areas above 2,000 m (6,562 ft)
(PCE 6). Small areas of 1 km2 (0.4 mi2)
or less (our tolerance buffer as described
above) that were excluded within the
polygons were then included, as these
areas were of a size in which a mapping
error could have occurred. For the same
reason, we also removed small areas of
1 km2 (0.4 mi2) or less (our tolerance
buffer as described above) around the
edges of the polygons if, due to the steps
described above, they were
disconnected or connected only by
corners.
(2) If a polygon described in step 1,
above, was not connected to Mexico, we
selected and added areas containing low
human influence and impact and either
or both vegetative cover or rugged
terrain to connect these areas directly to
Mexico or to another occupied area
connected directly to Mexico.
Therefore, we are designating six
units based on sufficient elements of the
essential physical or biological feature
being present to support jaguar lifehistory processes. The occupied
mountain ranges within the units
contain all of the identified elements of
the physical or biological feature
necessary for jaguars. The unoccupied
areas denoted as Subunits 1b, 4b, and 4c
are essential for the conservation of the
species, as they provide the jaguar
connectivity with Mexico within the
Northwestern Recovery Unit.
When determining critical habitat
boundaries within this final rule, we
made every effort to avoid including
developed areas such as lands covered
by buildings, pavement, and other
structures because such lands lack the
physical or biological feature necessary
for jaguars. 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 final rule have been
excluded by text in the rule and are not
designated as critical habitat. Therefore,
a Federal action involving these lands
will 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 feature in the
adjacent critical habitat.
Based on our analyses of areas as both
occupied and unoccupied (but essential
for the conservation of the species), we
are designating critical habitat lands
that we have determined may have been
occupied at the time of listing and
contain sufficient elements of the
physical or biological feature to support
life-history processes essential for the
conservation of the species and lands
outside of the geographical area that
may have been occupied at the time of
listing that we have determined are also
essential. In our analysis we also
evaluated the areas we consider
occupied at the time of listing and
determined that these same areas are
also essential for the conservation of
jaguars in the Northwestern Recovery
Unit and, therefore, for the species as a
whole (see Areas Essential for the
Conservation of Jaguars, above).
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–2012–0042, and at the
field office responsible for the
designation (see FOR FURTHER
INFORMATION CONTACT above).
Final Critical Habitat Designation
We are designating 6 units as critical
habitat for the jaguar. The critical
habitat areas described below constitute
our best assessment at this time of areas
that meet the definition of critical
habitat. Those 6 units are: (1)
Baboquivari Unit divided into subunits
(1a) Baboquivari-Coyote Subunit,
including the Northern Baboquivari,
Saucito, Quinlan, and Coyote
Mountains, and (1b) the Southern
Baboquivari Subunit; (2) Atascosa Unit,
including the Pajarito, Atascosa, and
Tumacacori Mountains; (3) Patagonia
Unit, including the Patagonia, Santa
Rita, Empire, and Huachuca Mountains,
and the Canelo and Grosvenor Hills; (4)
Whetstone Unit, divided into subunits
(4a) Whetstone Subunit, (4b) WhetstoneSanta Rita Subunit, and (4c) WhetstoneHuachuca Subunit; (5) Peloncillo Unit,
including the Peloncillo Mountains both
in Arizona and New Mexico; and (6)
San Luis Unit, including the northern
extent of the San Luis Mountains at the
New Mexico-Mexico border. Table 2
lists both the unoccupied units and
those that may have been occupied at
the time of listing.
TABLE 2—OCCUPANCY OF JAGUAR BY DESIGNATED CRITICAL HABITAT UNITS
Occupied at
time of listing
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Unit
1—Baboquivari Unit:
1a—Baboquivari-Coyote Subunit:
Coyote Mountains
Quinlan Mountains
Saucito Mountains
Northern Baboquivari Mountains
1b—Southern Baboquivari Subunit:
Southern Baboquivari Mountains Connection
2—Atascosa Unit:
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Yes.
Yes.
Yes.
Yes.
No.
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TABLE 2—OCCUPANCY OF JAGUAR BY DESIGNATED CRITICAL HABITAT UNITS—Continued
Occupied at
time of listing
Unit
Tumacacori Mountains
Atascosa Mountains
Pajarito Mountains
3—Patagonia Unit:
Empire Mountains
Santa Rita Mountains
Grosvenor Hills
Patagonia Mountains
Canelo Hills
Huachuca Mountains
4—Whetstone Unit:
4a—Whetstone Subunit:
Whetstone Mountains
4b—Whetstone-Santa Rita Subunit:
Whetstone-Santa Rita Mountains Connection
4c—Whetstone-Huachuca Subunit:
Whetstone-Huachuca Mountains Connection
5—Peloncillo Unit:
Peloncillo Mountains (Arizona and New Mexico)
6—San Luis Unit:
San Luis Mountains (New Mexico)
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
Yes.
No.
No.
Yes.
Yes.
The approximate area of each critical
habitat unit is shown in Table 3.
TABLE 3—DESIGNATED CRITICAL HABITAT UNITS FOR JAGUAR
Federal
State
Tribal
Private
Total
Unit or subunit
Ha
1a—Baboquivari-Coyote Subunit
1b—Southern
Baboquivari
Subunit ......................................
2—Atascosa Unit .........................
3—Patagonia Unit ........................
4a—Whetstone Subunit ...............
4b—Whetstone-Santa
Rita
Subunit ......................................
4c—Whetstone-Huachuca
Subunit ......................................
5—Peloncillo Unit .........................
6—San Luis Unit ..........................
Grand Total ...........................
Ac
Ha
Ac
Ha
Ac
Ha
Ac
Ha
Ac
4,396
10,862
9,239
22,831
0
0
3,290
8,130
16,925
41,823
624
53,807
101,354
16,066
1,543
132,961
250,452
39,699
6,157
2,296
11,847
5,445
15,213
5,672
29,274
13,455
0
0
0
0
0
0
0
0
1,843
2,522
29,046
3,774
4,555
6,231
71,775
9,325
8,624
58,625
142,248
25,284
21,312
144,865
351,501
62,479
532
1,313
4,612
11,396
0
0
0
0
5,143
12,710
1,350
28,393
0
3,336
70,160
0
2,981
7,861
0
7,366
19,426
0
0
0
0
0
0
0
3,391
5,317
3,122
8,379
13,138
7,714
7,722
41,571
3,122
19,081
102,724
7,714
206,522
510,326
50,437
124,633
0
0
52,304
129,247
309,263
764,207
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 jaguar,
below.
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Unit 1: Baboquivari Unit
Subunit 1a—Baboquivari-Coyote
Subunit: Subunit 1a consists of 16,925
ha (41,823 ac) in the northern
Baboquivari, Saucito, Quinlan, and
Coyote Mountains in Pima County,
Arizona. The main, larger section of this
subunit is generally bounded by the
eastern boundary of the Tohono
O’odham Nation to the west and north,
the western side of the Altar Valley to
the east, and up to and including Leyvas
Canyon and Three Peaks to the south.
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There are four small areas of land that
are disconnected from the main section
of this subunit. One is a privately
owned area within the boundaries of the
Tohono O’odham Nation approximately
4 km (2.5 mi) west of the main, largest
section and approximately 22.7 km
(14.1 mi) south of State Highway 86.
The second largest area is almost
directly north of the main, largest
section and is primarily Federally and
State owned, with a small amount of
private land included within the
boundary. Between this area and the
main, largest section is a small piece of
State land included within the
boundary. The last area is north and
slightly west of the main section, and is
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a privately owned area within the
boundaries of the Tohono O’odham
Nation. Land ownership within the
entire unit includes approximately
4,396 ha (10,862 ac) of Federal lands;
9,239 ha (22,831 ac) of Arizona State
lands; and 3,290 ha (8,130 ac) of private
lands. The Federal land is administered
by the Service and Bureau of Land
Management. We consider the
Baboquivari-Coyote Subunit occupied at
the time of listing (37 FR 6476; March
30, 1972) (see ‘‘Occupied Area at the
Time of Listing’’ section, above), and it
may be currently occupied, based on
jaguar photos from 1996 and from 2001–
2008 (see Table 1 in the ‘‘Class I
Records’’ section, above). It contains all
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elements of the physical or biological
feature essential to the conservation of
the jaguar, except for connectivity to
Mexico.
The primary land uses within Subunit
1a include ranching, grazing, borderrelated activities, Federal land
management activities, and recreational
activities throughout the year,
including, but not limited to, hiking,
birding, horseback riding, and hunting.
Activities that may require special
management may include, for example,
habitat clearing, the construction of
facilities, expansion of linear projects
that may fragment jaguar habitat, some
fuels-management activities, and some
prescribed fire.
Subunit 1b—Southern Baboquivari
Subunit: Subunit 1b consists of 8,624 ha
(21,312 ac) in the southern Baboquivari
Mountains in Pima County, Arizona.
This subunit is generally bounded by
the eastern boundary of the Tohono
O’odham Nation to the west, up to but
not including Leyvas and Bear Canyons
to the north, the western side of the
Altar Valley to the east, and the U.S.Mexico border to the south. There is one
small, privately owned area within the
boundaries of the Tohono O’odham
Nation that is disconnected from the
main section of this subunit. It is
located approximately 1.2 km (0.75 mi)
west of the main, largest section and
approximately 10 km (6.2 mi) north of
the U.S.-Mexico border. Land
ownership within the unit includes
approximately 624 ha (1,543 ac) of
Federal lands; 6,157 ha (15,213 ac) of
Arizona State lands; and 1,843 ha (4,555
ac) of private lands. The Federal land is
administered by the Service and Bureau
of Land Management. The Southern
Baboquivari Subunit provides
connectivity to Mexico and was not
occupied at the time of listing, but is
essential to the conservation of the
jaguar because it contributes to the
species’ persistence by providing
connectivity to occupied areas.
The primary land uses within Subunit
1b include ranching, grazing, borderrelated activities, Federal land
management activities, and recreational
activities throughout the year,
including, but not limited to, hiking,
birding, horseback riding, and hunting.
Unit 2: Atascosa Unit
Unit 2 consists of 58,625 ha (144,865
ac) in the Pajarito, Atascosa, and
Tumacacori Mountains in Pima and
Santa Cruz Counties, Arizona. Unit 2 is
generally bounded by the eastern side of
San Luis Mountains (Arizona) to the
west, roughly 4 km (2.5 mi) south of
Arivaca Road to the north, Interstate 19
to the east, and the U.S.-Mexico border
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to the south. Land ownership within the
unit includes approximately 53,807 ha
(132,961 ac) of Federal lands; 2,296 ha
(5,672 ac) of Arizona State lands; and
2,522 ha (6,231 ac) of private lands. The
Federal land is administered by the
Coronado National Forest and Bureau of
Land Management. We consider the
Atascosa Unit occupied at the time of
listing (37 FR 6476; March 30, 1972)
(see ‘‘Occupied Area at the Time of
Listing’’ section, above), and it may be
currently occupied based on multiple
photos of two, or possibly three, jaguars
from 2001–2008 (see Table 1 in the
‘‘Class I Records’’ section, above). It
contains all elements of the physical or
biological feature essential to the
conservation of the jaguar.
The primary land uses within Unit 2
include Federal land management
activities, border-related activities,
grazing, and recreational activities
throughout the year, including, but not
limited to, hiking, camping, birding,
horseback riding, picnicking,
sightseeing, and hunting. Activities that
may require special management may
include, for example, habitat clearing,
the construction of facilities, expansion
of linear projects that may fragment
jaguar habitat, some fuels-management
activities, and some prescribed fire.
Unit 3: Patagonia Unit
Unit 3 consists of 142,248 ha (351,501
ac) in the Patagonia, Santa Rita, Empire,
and Huachuca Mountains, as well as the
Canelo and Grosvenor Hills, in Pima,
Santa Cruz, and Cochise Counties,
Arizona. Unit 3 is generally bounded by
a line running roughly 3 km (1.9 mi)
east of Interstate 19 to the west; a line
running roughly 6 km (3.7 mi) south of
Interstate 10 to the north; Cienega Creek
and Highways 83, 90, and 92 to the east,
including the eastern slopes of the
Empire Mountains; and the U.S.-Mexico
border to the south. Land ownership
within the unit includes approximately
101,354 ha (250,452 ac) of Federal
lands; 11,847 ha (29,274 ac) of Arizona
State lands; and 29,046 ha (71,775 ac) of
private lands. The Federal land is
administered by the Coronado National
Forest, Bureau of Land Management,
and National Park Service. We consider
the Patagonia Unit occupied at the time
of listing (37 FR 6476; March 30, 1972)
based on the 1965 record from the
Patagonia Mountains (see ‘‘Occupied
Area at the Time of Listing’’ section,
above) and currently occupied based on
photos taken from October 2012,
through September 11, 2013, of a male
jaguar in the Santa Rita Mountains (see
Table 1 in the ‘‘Class I Records’’ section,
above). The mountain ranges within this
unit contain all elements of the physical
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12593
or biological feature essential to the
conservation of the jaguar.
The primary land uses within Unit 3
include Federal land management
activities, border-related activities,
grazing, and recreational activities
throughout the year, including, but not
limited to, hiking, camping, birding,
horseback riding, picnicking,
sightseeing, and hunting. Activities that
may require special management may
include, for example, habitat clearing,
the construction of facilities, expansion
of linear projects that may fragment
jaguar habitat, some fuels-management
activities, and some prescribed fire.
Unit 4: Whetstone Unit
Subunit 4a—Whetstone Subunit:
Subunit 4a consists of 25,284 ha (62,479
ac) in the Whetstone Mountains,
including connections to the Santa Rita
and Huachuca Mountains, in Pima,
Santa Cruz, and Cochise Counties,
Arizona. Subunit 4a is generally
bounded by a line running roughly 4 km
(2.5 mi) east of Cienega Creek to the
west, a line running roughly 6 km (3.7
mi) south of Interstate 10 to the north,
Highway 90 to the east, and Highway 82
to the south. Land ownership within the
subunit includes approximately 16,066
ha (39,699 ac) of Federal lands; 5,445 ha
(13,455 ac) of Arizona State lands; and
3,774 ha (9,325 ac) of private lands. The
Federal land is administered by the
Coronado National Forest and Bureau of
Land Management. We consider the
Whetstone Subunit 4a occupied at the
time of listing (37 FR 6476; March 30,
1972) (see ‘‘Occupied Area at the Time
of Listing’’ section, above), and, based
on photographs taken in 2011, it may be
currently occupied (see Table 1 in the
‘‘Class I Records’’ section, above). The
mountain range within this subunit
contains all elements of the physical or
biological feature essential to the
conservation of the jaguar, except for
connectivity to Mexico.
The primary land uses within Subunit
4a include Federal land management
activities, grazing, and recreational
activities throughout the year,
including, but not limited to, hiking,
camping, birding, horseback riding,
picnicking, sightseeing, and hunting.
Activities that may require special
management may include, for example,
habitat clearing, the construction of
facilities, expansion of linear projects
that may fragment jaguar habitat, some
fuels-management activities, and some
prescribed fire.
Subunit 4b—Whetstone-Santa Rita
Subunit: Subunit 4b consists of 5,143 ha
(12,710 ac) between the Empire
Mountains and northern extent of the
Whetstone Mountains in Pima County,
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Arizona. Subunit 4b is generally
bounded by (but does not include): The
eastern slopes of the Empire Mountains
to the west, a line running roughly 6 km
(3.7 mi) south of Interstate 10 to the
north, the western slopes of the
Whetstone Mountains to the east, and
Stevenson Canyon to the south. Land
ownership within the subunit includes
approximately 532 ha (1,313 ac) of
Federal lands and 4,612 ha (11,396 ac)
of Arizona State lands. The WhetstoneSanta Rita Subunit provides
connectivity from the Whetstone
Mountains to Mexico and was not
occupied at the time of listing, but is
essential to the conservation of the
jaguar because it contributes to the
species’ persistence by providing
connectivity to occupied areas.
The primary land uses within Subunit
4b include grazing and recreational
activities throughout the year,
including, but not limited to, hiking,
camping, birding, horseback riding,
picnicking, sightseeing, and hunting.
Subunit 4c—Whetstone-Huachuca
Subunit: Subunit 4c consists of 7,722 ha
(19,081 ac) between the Huachuca
Mountains and southern extent of the
Whetstone Mountains in Santa Cruz and
Cochise Counties, Arizona. Subunit 4c
is generally bounded by Highway 83,
Elgin-Canelo Road, and Upper Elgin
Road to the west; Highway 82 to the
north; a line running roughly 4 km (2.5
mi) west of Highway 90 to the east; and
up to but not including the Huachuca
Mountains to the south. Land
ownership within the subunit includes
approximately 1,350 ha (3,336 ac) of
Federal lands; 2,981 ha (7,366 ac) of
Arizona State lands; and 3,391 ha (8,379
ac) of private lands. The Federal land is
administered by the Coronado National
Forest and Bureau of Land Management.
The Whetstone-Huachuca Subunit
provides connectivity from the
Whetstone Mountains to Mexico and
was not occupied at the time of listing,
but is essential to the conservation of
the jaguar because it contributes to the
species’ persistence by providing
connectivity to occupied areas.
The primary land uses within Subunit
4c include Federal forest management
activities, grazing, and recreational
activities throughout the year,
including, but not limited to, hiking,
camping, birding, horseback riding,
picnicking, sightseeing, and hunting.
Unit 5: Peloncillo Unit
Unit 5 consists of 41,571 ha (102,724
ac) in the Peloncillo Mountains in
Cochise County, Arizona, and Hidalgo
County, New Mexico. Unit 5 is generally
bounded by the eastern side of the San
Bernardino Valley to the west, Skeleton
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Canyon Road and the northern
boundary of the Coronado National
Forest to the north, the western side of
the Animas Valley to the east, and the
U.S.-Mexico border on the south. Land
ownership within the unit includes
approximately 28,393 ha (70,160 ac) of
Federal lands; 7,861 ha (19,426 ac) of
Arizona State lands; and 5,317 ha
(13,138 ac) of private lands. The Federal
land is administered by the Coronado
National Forest and Bureau of Land
Management. We consider the
Peloncillo Unit occupied at the time of
listing (37 FR 6476; March 30, 1972)
(see ‘‘Occupied Area at the Time of
Listing’’ section, above), and it may be
currently occupied based on a track
documented in 1995 and photographs
taken in 1996 (see Table 1 in the ‘‘Class
I Records’’ section, above). It contains
all elements of the physical or biological
feature essential to the conservation of
the jaguar.
The primary land uses within Unit 5
include Federal land management
activities, border-related activities,
grazing, and recreational activities
throughout the year, including, but not
limited to, hiking, camping, birding,
horseback riding, picnicking,
sightseeing, and hunting. Activities that
may require special management may
include, for example, habitat clearing,
the construction of facilities, expansion
of linear projects that may fragment
jaguar habitat, some fuels-management
activities, and some prescribed fire.
Unit 6: San Luis Unit
Unit 6 consists of 3,122 ha (7,714 ac)
in the northern extent of the San Luis
Mountains in Hidalgo County, New
Mexico. Unit 6 is generally bounded by
the eastern side of the Animas Valley to
the west, a line running roughly 1.5 km
(0.9 mi) south of Highway 79 to the
north, an elevation line at
approximately 1,600 m (5,249 ft) on the
east side of the San Luis Mountains, and
the U.S.-Mexico border to the south.
Land within the unit is entirely
privately owned. We consider the San
Luis Unit occupied at the time of listing
(37 FR 6476; March 30, 1972) (see
‘‘Occupied Area at the Time of Listing’’
section, above), and it may be currently
occupied based on photographs taken in
2006 (see Table 1 in the ‘‘Class I
Records’’ section, above). Unit 6
contains almost all elements of the
physical or biological feature essential
to the conservation of the jaguar except
for expansive open space of at least 100
km2 (38.6 mi2). This unit is included
because, while by itself it does not
provide at least 100 km2 (38.6 mi2) of
jaguar habitat in the United States,
additional habitat can be found
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immediately adjacent south of the U.S.Mexico border, and, therefore, this area
represents a small portion of a much
larger area of habitat.
The primary land uses within Unit 6
include border-related activities,
grazing, and some recreational activities
throughout the year, including, but not
limited to, hiking, horseback riding, and
hunting. Activities that may require
special management may include, for
example, habitat clearing, the
construction of facilities, expansion of
linear projects that may fragment jaguar
habitat, some fuels-management
activities, and some prescribed fire.
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
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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
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
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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.
Determinations of Adverse Effects and
Application of the ‘‘Adverse
Modification’’ Standard
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.
Section 7(a)(2) of the Act requires
Federal agencies to ensure their actions
do not jeopardize the continued
existence of listed species or destroy or
adversely modify critical habitat. The
key factor involved in the destruction/
adverse modification determination for
a proposed Federal agency action is
whether the affected critical habitat
would continue to serve its intended
conservation role for the species with
implementation of the proposed action
after taking into account any anticipated
cumulative effects (Service 2004, in litt.
entire). 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 jaguar.
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.
In general, there are five possible
outcomes in terms of how proposed
Federal actions may affect the PCEs or
physical or biological feature of jaguar
critical habitat: (1) No effect; (2) wholly
beneficial effects (e.g., improve habitat
condition); (3) both short-term adverse
effects and long-term beneficial effects;
(4) insignificant or discountable adverse
effects; or (5) wholly adverse effects.
Actions with no effect on the PCEs
and physical or biological feature of
jaguar critical habitat do not require
section 7 consultation, although such
actions may still have adverse or
beneficial effects on the species itself
that require consultation. Examples of
these actions may include grazing,
ranching operations, routine border
security activities, or limited
recreational activity, which we
anticipate would not result in adverse
effects or adverse modification to jaguar
critical habitat, but may still require
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section 7 review for effects to the
species itself.
Actions with effects to the PCEs or
physical and biological feature of jaguar
critical habitat that are discountable,
insignificant, or wholly beneficial are
considered not likely to adversely affect
critical habitat and do not require
formal consultation if the Service
concurs in writing with that Federal
action agency determination. Examples
of these actions may include some fuelsmanagement activities, prescribed fire,
or closing and re-vegetating roads.
Actions with adverse effects to the
PCEs or physical or biological feature in
the short term, but that result over the
long term in an improvement in the
function of the habitat to the jaguar
would likely not constitute adverse
modification of critical habitat either,
although due to the adverse effects,
these actions may require formal
consultation. We anticipate that actions
consistent with the stated goals or
recovery actions of the Recovery Outline
for the Jaguar (Jaguar Recovery Team
2012, entire) or the future recovery plan
for the species, once completed, would
fall into this category.
Actions that are likely to adversely
affect the PCEs or physical or biological
feature of jaguar critical habitat require
formal consultation and the preparation
of a biological opinion by the Service.
The biological opinion sets forth the
basis for our section 7(a)(2)
determination as to whether the
proposed Federal action is likely to
destroy or adversely modify jaguar
critical habitat. Some activities may
adversely affect the PCEs, but not result
in adverse modification of critical
habitat. Activities that may destroy or
adversely modify critical habitat are
those that alter the essential physical or
biological feature of the critical habitat
to an extent that appreciably reduces the
conservation value of the critical habitat
for the listed species.
As discussed above, the conservation
role or value of jaguar critical habitat is
to provide areas to support some
individuals during transient movements
by providing patches of habitat (perhaps
in some cases with a few resident
jaguars), and as areas for cyclic
expansion and contraction of the nearest
core area and breeding population in the
Northwestern Recovery Unit. Therefore,
actions that could destroy or adversely
modify jaguar critical habitat include
those that would permanently sever
connectivity to Mexico or within a
critical habitat unit such that movement
of jaguars between habitat in the United
States and Mexico is eliminated. In
general, such activities could include
building impermeable fences (such as
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pedestrian fences discussed in Special
Management Considerations or
Protection, above) in areas of vegetated
rugged terrain or major road
construction projects (such as new
highways or significant widening of
existing highways). Activities that may
adversely affect the PCEs (such as
permanently displacing native prey
species, increasing the distance to water
to more than 10 km (6.2 mi), removing
tree cover, altering rugged terrain, or
appreciably increasing human presence
on the landscape), but may not destroy
or adversely modify critical habitat
could include habitat clearing, the
construction of facilities, or expansion
of linear projects that may fragment
jaguar habitat and reduce the amount of
habitat available but that do not
permanently sever essential movement
between the United States and Mexico
or within a given critical habitat unit.
At this time, we do not anticipate
activities such as grazing, ranching
operations, or limited recreational
activity would have adverse effects to
jaguar critical habitat, nor do we
anticipate activities consistent with the
stated goals or recovery actions of the
Recovery Outline for the Jaguar (Jaguar
Recovery Team 2012, entire) or the
future recovery plan for the species
would constitute adverse modification.
We also do not anticipate further
impermeable fencing being built in
areas with rugged terrain, as
technological solutions (such as video
surveillance) for Homeland Security
purposes are more likely to be applied
in these areas. We also are unaware of
any plans to expand highways through
jaguar critical habitat. We are aware of
two large-scale mining operations. One
is the Rosemont Mine that has been
evaluated within jaguar revised
proposed critical habitat (this
consultation was completed prior to this
final rule designating critical habitat).
We have evaluated this project through
the section 7 consultation process, and
our determination is that it does not
constitute destruction or adverse
modification of jaguar critical habitat.
The other is the Hermosa Mine, but this
project is only in the planning phase
and the Service has not received mine
development plans. Consequently,
section 7 consultation has not been
initiated.
We are aware of two large-scale
mining operations. One is the Rosemont
Mine that has been evaluated within
jaguar revised proposed critical habitat
(this consultation was completed prior
to this final rule designating critical
habitat). We have evaluated this project
through the section 7 consultation
process, and our determination is that it
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does not constitute destruction or
adverse modification of jaguar critical
habitat. The other is the Hermosa Mine
but this is only in the planning phase
and the Service has not received mine
development plans. Consequently,
section 7 consultation has not been
initiated.
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)
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 geographical 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.’’
We consult with the military on the
development and implementation of
INRMPs for installations with listed
species. We analyzed INRMPs
developed by military installations
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located within the range of the critical
habitat designation for the jaguar to
determine if they meet the criteria for
exemption from critical habitat under
section 4(a)(3) of the Act. The following
areas are Department of Defense lands
with completed, Service-approved
INRMPs within the final critical habitat
designation.
Approved INRMPs
Fort Huachuca—Unit 3 and Subunit 4c,
Arizona
Fort Huachuca is located in Cochise
County, in southeast Arizona, about 24
km (15 mi) north of the border with
Mexico. Fort Huachuca is home to the
U.S. Army Intelligence Center and the
U.S. Army Network Enterprise
Technology Command (NETCOM)/9th
Army Signal Command. There are
approximately of 6,421 ha (15,867 ac) of
critical habitat on Fort Huachuca.
Approximately 6,117 ha (15,115 ac) are
in Unit 3, and approximately 304 ha
(752 ac) are in Subunit 4c.
Habitat features essential to jaguar
conservation exist on Fort Huachuca.
Nearly 95 percent of the activities on
Fort Huachuca are military intelligence
and communications systems testing
and training. Other activities on the
installation include field-training
exercises, aviation activities, live-fire
qualification and training, vehicle
maneuver training, and administrative
and support activities. Fort Huachuca’s
military mission is not heavily landbased. Generally, direct and repeated
impacts have been restricted to
localized areas. Fort Huachuca has an
approved INRMP, completed in 2002
and updated in 2013 to specifically
address the jaguar. Appendix 7 was
added to focus on specific benefits of
the INRMP to federally listed species,
including the jaguar. Appendix 7
outlines how INRMP management
actions provide conservation benefits
for the jaguar. These actions include:
ecosystem and hunting management
intended to ensure adequate jaguar prey;
water resource protection measures; fire
management activities that maintain
canopy cover; prohibition of recreation
at night; briefings on threatened and
endangered species; and a cooperative
relationship with the University of
Arizona’s Wild Cat Research and
Conservation Center. The U.S. Army is
committed to working closely with the
Service and Arizona Game and Fish
Department to continually refine the
existing INRMP as part of the Sikes
Act’s INRMP review process. Based on
our review of the INRMP for this
military installation, and in accordance
with section 4(a)(3)(B)(i) of the Act, we
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have determined that the portion of Unit
3 and Subunit 4c within this
installation, identified as meeting the
definition of critical habitat, is subject to
the INRMP, and that conservation
efforts identified in this INRMP will
provide a benefit to the jaguar.
Therefore, lands within this installation
are exempt from critical habitat
designation under section 4(a)(3)(B) of
the Act.
Fort Huachuca’s 2013 INRMP
includes benefits for jaguars and their
habitat that were not included in their
previous INRMP. The INRMP protects
the PCEs, through:
(1) Providing connectivity to Mexico
a. Providing connectivity to Mexico
through lands owned by the Fort by
maintaining wildlife-permeable fencing
around the perimeter of the Fort;
b. Minimal training and testing
occurring in the rugged areas of the
Huachuca Mountains because the vast
majority of training and testing can
effectively be conducted elsewhere
(access to the mountains is limited by
rugged topography and single lane, fourwheel drive dirt roads);
c. Maintaining large open areas in the
mountains on the Fort by avoiding
construction activities in those areas;
d. Developing partnerships to protect
land and natural resources beyond the
installation and across administrative
boundaries;
i. Obtaining conservation easements
on private lands from private
landowners within the Sierra Vista
subwatershed (an area of approximately
6,475 km2 (2,500 mi2) in size containing
the Fort, City of Sierra Vista, Huachuca
City, and most of the San Pedro
Riparian National Conservation Area) to
reduce the potential for incompatible
land use by buffering agricultural and
undeveloped areas under airspace and
to manage the regional water table
adjacent to the San Pedro Riparian
National Conservation Area through the
Army Compatible Use Buffer Program.
(2) Containing adequate levels of
native prey
a. Employing an ecosystem
management approach benefiting all
native species, including jaguars and
their prey;
b. Coordinating with the Arizona
Game and Fish Department to limit the
number of deer and javelina hunting
permits issued within the Fort’s
boundaries to ensure adequate prey are
available for the top predators known to
occur on the installation.
(3) Including surface water sources
within 20 km (12.4 mi) of one another:
Managing pond and spring habitat on
the installation for threatened and
endangered species, especially where
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habitat has been degraded or lost or
where potential exists for improving
habitat.
(4) Containing greater than 1 percent
to 50 percent canopy cover
a. Coordinating on prescribed fire and
fuel management activities in the
Huachuca Mountains with the U.S.
Forest Service, State Parks, State Lands,
The Nature Conservancy, San Pedro
National Conservation Area, Audubon
Research Ranch, and private ranchers,
and as specified in the Fort’s Integrated
Wildland Fire Management Plan such
that natural fire regimes will eventually
be restored;
b. Managing invasive species to
protect natural resources and critical
habitat for threatened and endangered
species.
(5) Characterized by intermediately,
moderately, or highly rugged terrain:
No activities occurring or planned to
occur in the mountains affecting or
altering the terrain.
(6) Characterized by minimal to no
human population
a. Controlling human activity and
road/infrastructure development in
potential jaguar habitat (no major roads
occur within the installation);
b. Closing all canyons within the
Huachuca Mountains to recreational use
between sunset and sunrise (the most
active time for jaguars);
c. Minimizing impacts from field
training activities by conducting these
activities outside of mountainous areas,
except for a minimal amount of
equipment testing along roadsides;
d. Providing environmental awareness
training to Special Forces units that
occasionally request conducting
patrolling training in the mountains to
minimize their impact on jaguars and
jaguar habitat;
e. Maintaining dark skies in
mountainous areas within the
installation;
f. Minimizing impacts from low-level
helicopter and Unmanned Aerial
Systems flights (the predominant types
of flights conducted over the Fort) by
avoiding them over the Huachuca
Mountains at altitudes below 152 m
(500 ft) above ground level, except for
life, health and safety purposes.
(7) Providing additional ongoing
activities benefiting the jaguar
a. Cooperating with the University of
Arizona’s Wild Cat Research and
Conservation Center to permit surveying
and monitoring for the jaguar on the
installation;
b. Providing threatened and
endangered species awareness training
to troops [in safety briefings];
c. Completing game species
management plans (including hunting);
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d. Installing and maintaining allweather signs along the single-lane dirt
roads within Huachuca and Garden
Canyons, and their tributary canyons
with trails, that inform visitors that the
Canyon is home to sensitive species and
require visitors to stay on trails and be
as quiet and unobtrusive as possible;
e. Ensuring that no seeding/planting
of nonnative grasses or other plants will
occur on the installation that may alter
fire frequencies in the wildland areas;
f. Employing an adaptive management
framework providing natural resources
management at the ecosystem level.
Implementation of these activities on
the Fort is currently conducted in a
manner that minimizes impacts to
jaguars and their habitat. This military
installation has an approved INRMP
that provides a benefit to the jaguar, and
Fort Huachuca has committed to work
closely with the Service and the State
wildlife agency to continually refine
their existing INRMP as part of the Sikes
Act’s INRMP review process.
Based on the above considerations,
and in accordance with section
4(a)(3)(B)(i) of the Act, we have
determined that conservation efforts
identified in the 2013 INRMP for Fort
Huachuca provide a benefit to the jaguar
and its habitat. Therefore, lands subject
to the INRMP for Fort Huachuca, which
includes the lands leased from the
Department of Defense by other parties,
are exempt from critical habitat
designation under section 4(a)(3) of the
Act, and we are not including
approximately 6,117 ha (15,115 ac) of
Unit 3 and approximately 304 ha (752
ac) in Subunit 4c for a total of 6,421 ha
(15,867 ac) in this final critical habitat
designation because of this exemption.
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 she determines that the
benefits of such exclusion outweigh the
benefits of specifying such area as part
of the critical habitat, unless she
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
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which factor(s) to use and how much
weight to give to any factor.
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 her discretion to
exclude the area only if such exclusion
would not result in the extinction of the
species.
When identifying the benefits of
inclusion for an area, we consider the
additional regulatory benefits that area
would receive from the protection from
adverse modification or destruction as a
result of actions with a Federal nexus;
the educational benefits of mapping
essential habitat for recovery of the
listed species; and any benefits that may
result from a designation due to State or
Federal laws that may apply to critical
habitat.
The principal benefit of including an
area in a critical habitat designation is
the requirement for Federal agencies to
ensure actions they fund, authorize, or
carry out are not likely to result in the
destruction or adverse modification of
any designated critical habitat, the
regulatory standard of section 7(a)(2) of
the Act under which consultation is
completed. Federal agencies must also
consult with us on actions that may
affect a listed species to ensure their
proposed actions are not likely to
jeopardize the continued existence of
such species. The analysis of effects to
critical habitat is a separate step and
different standard from that of the
effects to the species. Therefore, the
difference in outcomes of these two
analyses represents the regulatory
benefit of critical habitat.
The two regulatory standards are
different and, significantly, the factors
that are reviewed under each standard
are different as well. The jeopardy
analysis investigates the action’s impact
to survival and recovery of the species
with a focus on how the action affects
attributes such as numbers, distribution,
and reproduction of the species. On the
other hand, the adverse-modification
analysis investigates the action’s effects
to the designated habitat’s contribution
to recovery with a focus on the
conservation role the habitat plays for
the listed species. This difference in the
two consultation standards and focus of
review, in some instances, will lead to
different conclusions. Thus, critical
habitat designations may provide greater
benefits to the recovery of a species than
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would listing alone because it will
provide another and alternative focus on
factors affecting listed species.
Nonetheless, for many species (in at
least some locations) the outcome of
these analyses in terms of any required
habitat protections will be similar
because effects to habitat will often also
result in effects to the species.
When identifying the benefits of
exclusion, we consider, among other
things, whether exclusion of a specific
area due to the continuation,
strengthening, or encouragement of
partnerships, or implementation of a
management plan that provides equal to
or more conservation than a critical
habitat designation would provide.
In the case of the jaguar, the benefits
of critical habitat include public
awareness of jaguar presence and the
importance of habitat protection, and in
cases where a Federal nexus exists,
increased habitat protection for the
jaguar due to the protection from
adverse modification or destruction of
critical habitat. In practice, a Federal
nexus exists primarily on Federal lands
or for projects undertaken, permitted, or
funded by Federal agencies. Since
jaguars were listed in 1972, we have had
no projects on privately owned lands
that had a Federal nexus to trigger
formal consultation under section 7 of
the Act. On Federal lands, we have been
consulting with Federal agencies on
their effects to jaguar since jaguars were
listed.
When we evaluate the existence of a
conservation plan when considering the
benefits of exclusion, we consider a
variety of factors, including but not
limited to, whether the plan is finalized;
how it provides for the conservation of
the essential physical or biological
features; whether there is a reasonable
expectation that the conservation
management strategies and actions
contained in a management plan will be
implemented into the future; whether
the conservation strategies in the plan
are likely to be effective; and whether
the plan contains a monitoring program
or adaptive management to ensure that
the conservation measures are effective
and can be adapted in the future in
response to new information.
After identifying the benefits of
inclusion and the benefits of exclusion,
we carefully weigh the two sides to
evaluate whether the benefits of
exclusion outweigh those of inclusion.
If our analysis indicates that the benefits
of exclusion outweigh the benefits of
inclusion, we then determine whether
exclusion would result in extinction. If
exclusion of an area from critical habitat
will result in extinction, we will not
exclude it from the designation.
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Based on the information provided by
entities seeking exclusion, as well as
any additional public comments we
received, we evaluated whether certain
lands in the proposed critical habitat
were appropriate for exclusion from this
final designation pursuant to section
4(b)(2) of the Act. We are excluding
approximately 20,764 ha (51,308 ac) of
Tohono O’odham Nation land in
Subunit 1a and approximately 10,829 ha
(26,759 ac) of Tohono O’odham Nation
land in Subunit 1b from the final
designation of critical habitat (see
Exclusions Based on Other Relevant
Impacts below).
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 prepared a draft economic
analysis of the proposed critical habitat
designation and related factors (78 FR
39237; July 1, 2013). The draft economic
analysis, dated May 2013, was made
available for public review from July 11,
2013, through August 9, 2013 (78 FR
39237; July 1, 2013), and again from
August 29, 2013, through September 13,
2013 (78 FR 53390; August 29, 2013).
Following the close of the comment
period, a final analysis (dated January
15, 2014) of the potential economic
effects of the designation was developed
taking into consideration the public
comments and any new information (IEc
2014).
The intent of the final economic
analysis is to quantify the economic
impacts of all potential conservation
efforts for the jaguar; some of these costs
will likely be incurred regardless of
whether we designate critical habitat.
The economic impact of the final
critical habitat designation is analyzed
by comparing scenarios both ‘‘with
critical habitat’’ and ‘‘without critical
habitat.’’ The ‘‘without critical habitat’’
scenario represents the baseline for the
analysis, considering protections
already in place for the species (e.g.,
under the Federal listing and other
Federal, State, and local regulations).
The baseline, therefore, represents the
costs incurred regardless of whether
critical habitat is designated. The ‘‘with
critical habitat’’ scenario describes the
incremental impacts associated
specifically with the designation of
critical habitat for the species. The
incremental conservation efforts and
associated impacts are those not
expected to occur absent the designation
of critical habitat for the species. In
other words, the incremental costs are
those attributable solely to the
designation of critical habitat above and
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beyond the baseline costs; these are the
costs we consider in the final
designation of critical habitat. The
analysis looks retrospectively at
baseline impacts incurred since the
species was listed, and forecasts both
baseline and incremental impacts likely
to occur with the designation of critical
habitat. For a further description of the
methodology of the analysis, see
Chapter 2, Framework for the Analysis
of the economic analysis.
The final economic analysis also
addresses how potential economic
impacts are likely to be distributed,
including an assessment of any local or
regional impacts of habitat conservation
and the potential effects of conservation
activities on government agencies,
private businesses, and individuals. The
final economic analysis evaluates
potential lost economic efficiency
associated with residential and
commercial development and public
projects and activities, such as
economic impacts on water
management and transportation
projects, Federal lands, small entities,
and the energy industry. Decisionmakers can use this information to
assess whether the effects of the
designation might unduly burden a
particular group or economic sector.
Finally, the final economic analysis
considers those costs that may occur in
the 20 years following the designation of
critical habitat, which was determined
to be the appropriate period for analysis
because limited planning information
was available for most activities to
forecast activity levels for projects
beyond a 20-year timeframe.
The final economic analysis
quantifies economic impacts of jaguar
conservation efforts associated with the
following categories of activity: (1)
Federal land management; (2) border
protection activities; (3) mining; (4)
transportation activities; (5) private
residential or commercial development;
(6) military activities; (7) livestock
grazing and other activities; (8) Tohono
O’odham Nation activities; and (9) other
limited activities. Given the secretive
and transient nature of the jaguar, which
makes it difficult to determine whether
a particular area is used by jaguars,
Federal land managers already take
steps to protect the jaguar even without
critical habitat by consulting under
section 7 jeopardy standards. We do not
anticipate recommending incremental
conservation measures to avoid adverse
modification of critical habitat over and
above those recommended to avoid
jeopardy of the species, except in cases
where an activity could create a
situation in which a unit of critical
habitat could become inaccessible to
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jaguars. Major construction projects
(such as new highways, significant
widening of existing highways, or
construction of large facilities or mines)
could sever connectivity within these
critical habitat units and subunits and
could constitute adverse modification.
Estimated baseline costs range from $2.8
million to $3.9 million in the first 20
years, with a seven and three percent
discount rate, respectively. The total
potential incremental economic impacts
for all of the categories in areas
proposed as revised critical habitat over
the next 20 years range from $4.2
million to $5.6 million ($370,000 to
$370,000 annualized), assuming a seven
and three percent discount rate,
respectively. The analysis estimates
future potential administrative impacts
based on the historical rate of
consultations on the jaguar in areas
proposed for critical habitat, as
discussed in Chapter 2 of the final
economic analysis. A brief summary of
the estimated impacts within each
category is provided below. Please refer
to the final economic analysis for a
comprehensive discussion of the
potential impacts.
Since the jaguar is currently a listed
species under the Act, baseline efforts
are likely already undertaken to protect
the jaguar. In addition, efforts to protect
other endangered and threatened
species in the area, and the
implementation of general conservation
measures by land managers likely also
provide protection for jaguars.
Depending on the discount rate applied,
we estimate that these baseline costs
will range from $2.8 million and $3.9
million in the first 20 years, with a
seven and three percent discount rate,
respectively. On an annualized basis,
baseline impacts are likely to range from
$240,000 to $250,000 depending on the
discount rate assumption. Additionally,
many baseline measures that benefit the
jaguar, such as maintenance of habitat
and open space, conservation measures
for other species, monitoring, and more
are not quantified in this analysis due
to a lack of cost data on these actions.
Federal Land Management—The U.S.
Bureau of Land Management (BLM),
U.S. Forest Service (USFS), U.S.
National Park Service (NPS), and
Service land managers in proposed
critical habitat areas state that they
already consider potential impacts to
jaguar when conducting activities
within these areas. As such, quantified
costs are limited to administrative costs
of consultation. Using a seven percent
discount rate, baseline costs are
$200,000, or $18,000 annualized (2013
dollars), and incremental costs are
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$180,000, or $16,000 annualized (2013
dollars).
Border Protection—U.S. Customs and
Border Protection (CBP) reports that the
agency already considers potential
impacts of its operations on jaguar in all
critical habitat units. Under section 102
of the Illegal Immigration Reform and
Immigrant Responsibility Act, the
Secretary of the Department of
Homeland Security (DHS) is authorized
to waive laws where the Secretary of
DHS deems it necessary to ensure the
expeditious construction of border
infrastructure in areas of high illegal
entry. However, the CBP does not
always waive compliance with the ESA
and does engage in section 7
consultation with the Service.
The CBP does not currently anticipate
that planned activities in critical habitat
areas will cause permanent changes to
landscape or sever connectivity to
Mexico. Furthermore, the CBP does not
anticipate that jaguar critical habitat
will change the outcome of future
section 7 consultations regarding jaguar
and its habitat associated with border
operations in critical habitat areas. As
such, quantified incremental costs are
limited to administrative costs of
consultation. Incremental costs, which
are estimated to include the additional
administrative costs of considering
critical habitat in consultation, are
anticipated to be $17,000, or $1,500
annualized. While specific future
conservation efforts are unknown, we
utilize available data on past
conservation efforts to estimate that CBP
will spend approximately $48,000 per
year on jaguar monitoring efforts, as
well as $312,000 per consultation on
other actions. Using the past
consultation as a guide to the number of
future actions, we anticipated that in
total, using a seven percent discount
rate, baseline costs will be $770,000
over 20 years, or $68,000 annualized
(2013 dollars), related to approximately
two formal consultations over the next
20 years. Incremental costs, which are
estimated to include the additional
administrative costs of considering
critical habitat in consultation, are
anticipated to be $17,000, or $1,500
annualized (2013 dollars).
Mining—Incremental project
modifications beyond what would have
been recommended under the baseline
to avoid jeopardy are generally unlikely,
unless a project is likely to permanently
alter habitat or sever connectivity to
Mexico. The Service and a number of
land managers agree that few changes to
recommendations resulting from
consultations in response to critical
habitat designation are expected
because mining activity generally occurs
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in Unit 3, which is considered occupied
by the jaguar. However, to the extent
that additional conservation efforts are
undertaken for critical habitat, estimates
of incremental impacts would be
understated in the econcomic analysis.
Overall, baseline costs are estimated
at $1.2 million ($110,000 on an
annualized basis), of which $66,000
($5,800 on an annualized basis) are
administrative impacts. Most of these
costs are likely to occur as a result of
baseline conservation measures
implemented for the protection of the
jaguar, such as road-kill monitoring and
the minimization of nighttime lighting;
however, we are unable to fully quantify
those costs. Although they are included
in the baseline estimates where
possible, some of these baseline
conservation measures are intended to
benefit multiple species, and therefore
only a portion of these costs may be
attributed to conservation of the jaguar.
There are two large-scale mining
projects proposed in critical habitat Unit
3, the Rosemont Copper Project and the
Hermosa Project, as well as smallerscale mineral exploration projects.
Forecast incremental economic impacts
associated with mining operations
include costs of addressing adverse
modification of critical habitat in the
context of a section 7 consultation, as
well as costs of implementing associated
conservation measures. The incremental
analysis forecasts $3.9 million ($340,000
on an annualized basis) in present-value
impacts associated with all of the
aforementioned mining activities, of
which $22,000 ($1,900 annually) are
administrative costs.
In October 2013, the Service
completed a biological opinion and
conference opinion with the U.S. Forest
Service providing Federal approval of
the Rosemont Mine. The biological
opinion concluded that the Rosemont
Mine would not constitute jeopardy to
the jaguar. A conference opinion was
also completed to address the impacts of
the Rosemont Mine to the thenproposed critical habitat designation for
jaguar, which concluded that the mining
operation is not likely to destroy or
adversely modify jaguar critical habitat.
The Rosemont Mine is located in a
unit of critical habitat that is occupied
by the jaguar. Since the jaguar is
currently a listed species, conservation
efforts are already undertaken to avoid
jeopardy to the species in this area and,
therefore, the economic impacts are
predominantly captured in the baseline.
Through our evaluation of impacts of
the critical habitat designation, we
determined that most of the
conservation efforts are not a result of
the critical habitat designation itself, but
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rather a result of the jaguar being a
listed species, and, therefore,
incremental impacts of the critical
habitat designation are largely limited to
transactional costs. As a result, the
incremental impact, economic or from
other relevant factors, of the designation
on the mine is expected to be minimal.
Forecast conservation measures are
primarily associated with conservation
efforts in the biological opinion issued
for the Rosemont Mine in October 2013,
which includes multiple species in
addition to the jaguar. We note that
costs associated with incremental
project modifications for the Rosemont
Mine are included, to the extent that
cost information was available. In
addition, incremental costs may be
associated with conservation measures
such as restoration of surface springs
and revegetation, but information on the
incremental costs of these measures was
not available. The conference opinion
notes that some of these efforts,
including the management of
conservation lands, will be undertaken
to benefit multiple species, in addition
to the jaguar. Therefore, these costs may
overstate the incremental impacts of
jaguar critical habitat designation alone.
Transportation—Arizona Department
of Transportation (ADOT) already
considers potential impacts of its
projects on jaguar in the three Arizona
counties where critical habitat for the
jaguar is proposed. No major roads
intersect the proposed critical habitat
area in New Mexico. While the
construction of new roads has the
potential to sever connectivity of jaguar
habitat, no such projects are planned in
critical habitat areas in the foreseeable
future. We estimate that approximately
two formal consultations and seven
technical assistance efforts will occur
related to minor transportation projects
over the next 20 years in the critical
habitat areas. Incremental costs are
estimated to be $5,900, or $520
annualized (2013 dollars). Baseline
costs are estimated at $390,000, or
$34,000 annualized (2013 dollars),
discounted at seven percent.
Private Residential or Commercial
Development—The vast majority of the
129,246 acres of privately owned lands
designated as jaguar critical habitat are
rural and fall outside of any major urban
areas. County planners state that these
areas are unlikely to be developed in the
foreseeable future, with the exception of
areas around Patagonia, Santa Cruz
County, Arizona, (population as of 2010
was 3,213 U.S. Census Bureau) in Unit
3 and on the eastern border of Unit 2.
However, even if these areas are
developed, there are unlikely to be any
Federal permits or Federal funding for
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development activities in the privately
owned areas designated as jaguar
critical habitat. While local ranchers do
take advantage of Natural Resources
Conservation Service (NRCS) programs,
these programs are not expected to play
a role in development activities. As
such, future consultations related to
residential and commercial
development activities are not currently
anticipated in the critical habitat areas.
No incremental impacts of critical
habitat designation on residential or
commercial development are forecast.
Military—While the jaguar has not
recently been documented at Fort
Huachuca in Unit 3 and Subunit 4c, the
Department of Defense (DOD) is aware
that the species can be present and has
incorporated the species into its
management planning. Both baseline
and incremental costs are limited to the
administrative costs of consultation.
Using a seven percent discount rate,
baseline costs are estimated to be
$10,000, or $900 annualized over the
next 20 years (2013 dollars), and
incremental costs are $20,000, or $1,700
annualized (2013 dollars).
Grazing—In general, most private and
State lands in the designated critical
habitat areas for the jaguar are currently
used for agricultural production, most
commonly for livestock grazing. These
activities do not typically require
Federal permitting or funding for
operation. However, many ranchers
receive some funding from NRCS, often
for conducting range improvements or
conservation activities. While
consultations on NRCS activities are
rare, several public commenters as well
as NRCS have noted that some ranchers
may withdraw applications for NRCS
funding following jaguar critical habitat
in order to avoid any potential
obligations related to consultations
between NRCS and the Service. Total
administrative baseline impacts to
grazing and agriculture are $14,000, or
$1,200 annualized over the next 20
years (2013 dollars). Incremental costs,
including administrative costs of
consultation, are $24,000, or $2,100
annualized over the next 20 years (2013
dollars).
Tribal Activities—Due to the trust
relationship between the United States
and Native Americans, a significant
number of Tribal activities involve
Federal funding or oversight that serve
as a nexus for section 7 consultation.
Therefore, where critical habitat is
designated on Tribal lands, many
projects will have a Federal nexus for
section 7 consultation. Communication
with the Tohono O’odham Nation did
not identify any specific, planned
projects that may result in section 7
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consultation. We are also not aware of
any previous section 7 consultations
regarding activities on Tohono O’odham
Nation lands. However, given the
likelihood of a Federal nexus and the
proposal to designate unoccupied
critical habitat on Tohono O’odham
lands, the Tohono O’odham Nation
could have incurred incremental
administrative impacts as a result of the
designation. Costs associated with one
fully incremental formal consultation
considering adverse modification of
critical habitat are expected to be
$20,000, of which $3,500 could be
incurred by the Tohono O’odham
Nation. However, the Secretary has used
her discretion to exclude the Tohono
O’odham Nation based on our ongoing
and effective working partnership with
the Tohono O’odham Nation to promote
the conservation of listed species,
including the jaguar and its habitat.
Other Activities—Limited other
activities occur within the critical
habitat area. We use historical rates of
consultation for activities not described
above to determine future rates of
consultation for other activities.
Agencies involved in these
consultations have included: the
Federal Energy Regulatory Commission
(FERC), U.S. Department of Energy, the
Corps, Arizona Department of
Environmental Quality, the Arizona
Department of Water Resources, the U.S.
Environmental Protection Agency, the
U.S. Department of Agriculture (USDA),
the Federal Communications
12601
Commission, the Animal and Plant
Health Inspection Service, the Federal
Aviation Administration, the Federal
Emergency Management Agency, and
other Federal and non-Federal agencies.
In particular, the proposed Sierrita
natural gas pipeline may cross the
designated areas and would have a
Federal nexus through the Federal
Energy Regulatory Commission (FERC).
Due to limited additional conservation
efforts resulting from consultation, we
estimate only administrative costs of
consultation. Baseline impacts are
$180,000, or $16,000 annualized over
the next 20 years (2013 dollars), and
incremental impacts are $82,000, or
$7,300 annualized over the next 20
years (2013 dollars).
TABLE 5—SUMMARY OF FORECAST INCREMENTAL IMPACTS BY ACTIVITY, 2013 TO 2032
[Seven percent discount rate]
Activity
Present value
Annualized
Percent of total
impacts
Federal lands management .....................
Border protection .....................................
Mining ......................................................
$180,000
$17,000
$3,900,000
$16,000
$1,500
$340,000
4.4
0.4
92
Transportation ..........................................
$5,900
$520
0.1
Development ............................................
Military ......................................................
Grazing ....................................................
$0
$20,000
$24,000
$0
$1,700
$2,100
0
5.50
0.5
Other ........................................................
Tribal ........................................................
$82,000
Unquantified
$7,300
Unquantified
.06
0
Total: .................................................
$420,000,000
$3,700,000
Potential additional impacts
If mining companies choose not to proceed to production due to the designation of critical habitat, economic activity that would have been associated
with the mines would not occur.
If mining plans move forward, incremental changes to planned road improvements could occur that themselves could result in conservation efforts for jaguar that are not captured in
this analysis.
It is possible that some ranchers may
withdraw applications for NRCS funding following jaguar critical habitat in
order to avoid any potential obligations
to consult with the Service.
Administrative or project modification
costs associated with future projects
on Tohono O’odham Nation lands.
Negative economic impacts on the Nation’s ability to manage its lands independent of Federal oversight.
100
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Note: Totals may not sum due to rounding.
Our economic analysis did not
identify any disproportionate costs that
are likely to result from the designation.
Consequently, the Secretary is not
exerting her discretion to exclude any
areas from this designation of critical
habitat for the jaguar based on economic
impacts.
A copy of the final economic analysis
with supporting documents may be
obtained by contacting the Arizona
Ecological Services Fish and Wildlife
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Office (see ADDRESSES) or by
downloading from the Internet at
https://www.regulations.gov.
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
final rule, we have exempted from the
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designation of critical habitat those
Department of Defense lands with
completed INRMPs determined to
provide a benefit to the jaguar. Fort
Huachuca lands, as discussed above in
Application of Section 4(a)(3) of the Act
was exempted from designation. There
are Department of Defense lands on
which the U.S. Customs and Border
Protection (CBP) operates along the
U.S.-Mexico border. However, we
anticipate no impact on national
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security. Consequently, the Secretary is
not exercising her discretion to exclude
any areas from this final designation
based on impacts on national security.
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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-togovernment relationship of the United
States with tribal entities. We also
consider any social impacts that might
occur because of the designation.
In preparing this final rule, we have
determined that there are currently no
HCPs or other management plans that
address jaguar habitat needs.
Accordingly, the Secretary is not
exercising her discretion to exclude any
areas from this final designation based
on HCPs or other private management
plans for jaguars. However, below we
evaluate impacts to conservation
partnerships and consider the
government-to-government relationship
of the United States with tribal entities.
Tohono O’odham Nation
The Tohono O’odham Nation is
located in southern Arizona on lands in
Pima, Pinal, and Maricopa Counties.
The Tohono O’odham Nation
encompasses 1,133,120 ha (2,800,000
ac) of land and is divided into 11
districts. The Tohono O’odham Nation’s
eastern boundary is located
approximately 24 km (15 mi) west of the
city of Tucson, and the administrative
center is in the town of Sells,
approximately 88 km (55 mi) southwest
of Tucson. The revised proposed critical
habitat designation within the Tohono
O’odham Nation boundaries included
approximately 20,764 ha (51,308 ac) in
Subunit 1a and approximately 10,829 ha
(26,759 ac) in Subunit 1b, totaling
31,593 ha (78,067 ac) of Madrean
evergreen woodland and semidesert
grassland.
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; and the relevant provision
of the Departmental Manual of the
Department of the Interior (512 DM 2),
we coordinate with federally recognized
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Tribes on a government-to-government
basis. Further, Secretarial Order 3206,
‘‘American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities,
and the Endangered Species Act’’ (1997)
states that (1) critical habitat shall not be
designated in areas that may impact
tribal trust resources, may impact
tribally owned fee lands, or are used to
exercise tribal rights unless it is
determined essential to conserve a listed
species; and (2) in designating critical
habitat, the Service shall evaluate and
document the extent to which the
conservation needs of the listed species
can be achieved by limiting the
designation to other lands.
We have conducted government-togovernment consultation with the
Tohono O’odham Nation regarding the
designation of critical habitat for the
jaguar and continued to do so
throughout the public comment period
and during development of this final
designation of critical habitat for the
jaguar. We sent notification letters on
May 16, 2012, September 28, 2012, and
September 3, 2013, to the Tribe
describing the exclusion process under
section 4(b)(2) of the Act and engaged in
conversations with the Tribe about the
proposal to the extent possible without
disclosing predecisional information.
We continue to work with the Tohono
O’odham Nation and the BIA on
wildlife and plant-related projects,
including recovery efforts for Sonoran
pronghorn and jaguar, as well as surveys
and monitoring for Pima pineapple
cactus, jaguar, ocelot, lesser long-nosed
bat, and cactus ferruginous pygmy owls.
We have established and maintain a
cooperative working relationship with
the Tohono O’odham Nation and the
BIA when they request review of
environmental assessments, seek
technical advice, and conduct
consultations for Tohono O’odham
Nation projects. Surveys for any listed
species are conducted by the BIA or
Tohono O’odham Nation personnel
prior to implementation of projects. In
April of 2003, the Tohono O’odham
Nation and the Service signed a
Statement of Relationship, which
indicates the Tohono O’odham Nation,
through its Natural Resources
Department, will work in close
collaboration with the Service to
provide effective protections for listed
species.
As a sovereign entity, the Tohono
O’odham Nation seeks to continue to
protect and manage their resources
according to their traditional and
cultural practices. The Tohono O’odham
Nation requests that their land be
excluded from the designation of critical
habitat for the jaguar due to their
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sovereign status and their right to
manage their own resources. They are
concerned that critical habitat
designation on their land would limit
the Nation’s right to self-determination
and self-governance. The Tohono
O’odham Nation recognizes that their
land contains jaguar habitat, and they
consider the jaguar to be culturally
significant.
(1) Benefits of Inclusion
As discussed above under
Application of Section 4(b)(2) of the Act,
Federal agencies, in consultation with
the Service, must ensure that their
actions are not likely to jeopardize the
continued existence of any listed
species or result in the destruction or
adverse modification of any designated
critical habitat of such species. The
difference in the outcomes of the
jeopardy analysis and the adverse
modification analysis represents the
regulatory benefit and costs of critical
habitat. Approximately two-thirds of the
areas proposed as critical habitat that
occur within the Tohono O’odham
Nation are considered occupied by the
jaguar and, therefore, if a Federal action
or permitting occurs, there is a Federal
nexus that would result in consultation
under section 7 of the Act on these
lands whether or not the area is
designated as critical habitat. Our
section 7 consultation history across the
jaguar’s range shows that since listing in
1972, no formal consultations have
occurred for actions conducted on tribal
lands that resulted in adverse effects to
jaguars. No formal jaguar consultations
have been conducted with the BIA, a
likely source of Federal funding for
Native American Tribes. Additionally,
no informal consultations with agencies
implementing actions on tribal lands
have been conducted, although we have
provided technical assistance on some
projects to the Tohono O’odham Nation.
Because of how the Tohono O’odham
Nation has chosen to manage and
conserve its lands and the lack of past
section 7 consultation history, we do
not anticipate that Tribal actions would
considerably change in the future, and
we do not anticipate a noticeable
increase in section 7.
The draft environmental analysis
found that the effects of critical habitat
designation on tribal resources are
expected to be negligible because (1)
new consultations based solely on the
presence of designated critical habitat
are unlikely, because land managers are
already consulting on jaguar throughout
the proposed critical habitat areas; and
(2) tribal-related activities that currently
occur or are anticipated to occur are not
likely to require reasonable and prudent
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alternatives developed to avoid adverse
modification.
Were we to designate critical habitat
on Tohono O’odham Nation lands, our
section 7 consultation history indicates
that there would be few regulatory
benefits to the jaguar. As described
above, no formal jaguar-related section 7
consultations have occurred on Tribal
lands. Further, the Tohono O’odham
Nation and the BIA request review of
environmental assessments, seek
technical advice, and conduct
consultations for Tohono O’odham
Nation projects. The BIA or Tohono
O’odham Nation personnel also conduct
surveys for any listed species prior to
implementation of projects. In addition,
the Tohono O’odham Nation already
manages their lands for the benefit of
the jaguar and its habitat, adopting
voluntary conservation measures on the
western side of Unit 1 to ensure habitat
protection measures are implemented.
For these reasons, it would be highly
unlikely that any consultation would
result in a determination of adverse
modification.
In addition, during coordination with
the Tohono O’odham Nation, the Nation
indicated that they are not considering
any actions that would destroy or
adversely modify jaguar critical habitat,
they are participating on the Jaguar
Recovery Team, and they are
implementing a jaguar survey and
monitoring project to detect jaguars on
Tohono O’odham Nation lands on the
west side of the Baboquivari and Coyote
Mountains (within Subunits 1a and 1b).
Therefore, the Service also does not
anticipate that the Tohono O’odham
Nation actions would be likely to result
in adverse impacts to the jaguar
requiring formal section 7 consultations.
For these reasons, the beneficial effect of
a critical habitat designation on these
lands is minimal.
The principal benefit of any
designated critical habitat is that
activities in and affecting such habitat
require consultation under section 7 of
the Act. Such consultation would
ensure that adequate protection is
provided to avoid destruction or adverse
modification of critical habitat.
However, because no formal
consultations have been conducted on
tribal lands or with the BIA, and no
informal consultations with agencies
implementing actions on tribal lands
have been conducted; and because
Tohono O’odham Nation has chosen to
manage and conserve its lands,
coordinates with the Service prior to
projects, implements jaguar surveys
prior to project implementation, and
does not foresee any actions that would
destroy or adversely modify jaguar
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critical habitat, the benefits of a critical
habitat designation are minimized.
(2) Benefits of Exclusion
Benefits of excluding these tribal
lands from designated critical habitat
include our deference to tribes to
develop and implement tribal
conservation and natural resource
management plans for their lands and
resources, which includes the jaguar,
and the preservation of our cooperative
partnership with the Tohono O’odham
Nation. The Service and Tohono
O’odham Nation have established and
maintain a cooperative conservation
partnership for the jaguar, as well as
several other listed species that occur on
the Nation’s lands. Partnership and
cooperation have developed through the
Jaguar Recovery Team, to which the
tribe has appointed a representative. In
addition, the Nation is developing a
jaguar management plan. While the
Service cannot consider draft
management plans for exclusions, this
plan demonstrates the Nations
cooperative conservation partnership
with the Service and their commitment
to jaguar conservation. In addition, the
Nation has been working with the
Service to develop a memorandum of
agreement to conduct a jaguar survey
and monitoring study as identified in
the 2012 Jaguar Recovery Outline.
Further, the Nation’s survey and
monitoring plan is consistent with an
approved study plan currently under
contract with the Service to detect
jaguars in the Northwestern Recovery
Unit over a 3-year period.
The Tohono O’odham Nation
conducts environmental reviews of any
project occurring on their lands, which
includes surveying for threatened and
endangered species (such as the Pima
pineapple cactus) and culturallysensitive species (such as the cactus
ferruginous pygmy-owl). They are
currently implementing a Tribal
Wildlife Grant to establish baseline data
on the occupancy and distribution of
flora and fauna in the Baboquivari,
Quinlan, and Coyote Mountains with
the tribal boundary. They are also
confirming known populations and
identifying previously unknown
populations of rare, threatened, or
endangered species such as the
Chiricahua leopard frog, Kearney’s blue
star, and Mexican spotted owl. Further,
they are identifying species areas of
unique biological importance for future
monitoring, protection, and
management efforts. They are
establishing a model for future
inventory protocols on the remainder of
the tribal lands and are providing for the
capability to continue such studies.
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The Tohono O’odham Nation assists
the Service in monitoring lesser longnosed bats at a maternity roost on tribal
lands, which is only one of three known
maternity roosts. By adopting voluntary
conservation measures, the Nation
ensures that habitat protection measures
are implemented. Further, the Nation is
committed to working with the Service
to ensure their management meets the
Service’s requirements of both the
jaguar and its habitat. These efforts by
the Nation demonstrate their past and
ongoing cooperation with the Service,
and their commitment to continue
cooperation with the Service in the
future. Further demonstration of the
Nations commitment to cooperate with
the Service is expressed in their
Statement of Relationship (April 2013)
to develop and promote communication
and understanding to preserve tribal
sovereignty and accomplish
conservation of natural resources on the
Nation’s lands.
The benefit of exclusion is the
continuance and strengthening of our
ongoing and effective working
partnership with the Tohono O’odham
Nation to promote the conservation of
listed species, including the jaguar and
its habitat. We consider that
conservation benefits, as described
above, are being provided to the jaguar
and its habitat through our cooperative
working relationship with the Tohono
O’odham Nation.
We have established a working
relationship with the Tohono O’odham
Nation through informal and formal
meetings that offered information
sharing and technical advice and
assistance about the jaguar and
recommended conservation measures
for the species and its habitat. These
proactive actions were conducted in
accordance with Secretarial Order 3206,
American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the
Endangered Species Act (June 5, 1997);
the relevant provision of the
Departmental Manual of the Department
of the Interior (512 DM 2); and
Secretarial Order 3317, Department of
Interior Policy on Consultation with
Indian Tribes (December 1, 2011).
During our communication with the
Tohono O’odham Nation, we recognized
and endorsed their fundamental right to
provide for tribal resource management
activities, including those relating to
jaguar habitat.
The designation of critical habitat on
these tribal lands would be expected to
adversely impact our working
relationship with the Tohono O’odham
Nation. During our discussions with the
Tohono O’odham Nation and through a
letter received during our first public
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comment period, we were informed that
the designation of critical habitat on
tribal land would be viewed as an
intrusion on their sovereign ability to
manage natural resources in accordance
with their own policies, customs, and
laws. The perceived future restrictions
(whether realized or not) of a critical
habitat designation could have a
damaging effect to coordination efforts,
possibly preventing actions that might
maintain, improve, or restore habitat for
the jaguar and other species. To this
end, the Tohono O’odham Nation would
prefer to work with us on a governmentto-government basis. For these reasons,
we believe that our working relationship
with the Tohono O’odham Nation
would be better maintained and more
effective if they are excluded from the
designation of critical habitat for the
jaguar. The benefits of excluding this
area from critical habitat will include
the continued cooperation and
development of data-sharing and
management plans for this and other
listed species. If this area is designated
as critical habitat, the government-togovernment relationship we have with
the Tohono O’odham Nation will be
damaged and this situation will affect
the Service’s opportunities to assist the
Tohono O’odham Nation with technical
reviews, voluntary consultations, and
data sharing. We view such
opportunities as a substantial benefit
since we have developed a cooperative
working relationship with the Tohono
O’odham Nation for the mutual benefit
of jaguar conservation and other
endangered and threatened species.
In addition, there are other listed
species and habitat on the Tohono
O’odham Nation for which conservation
efforts of the tribe are important. We
believe that the tribe is willing to work
cooperatively with us and others to
benefit other listed species, but only if
they view the relationship as mutually
beneficial. Consequently, the
development of future voluntary
management actions for other listed
species may be compromised if these
tribal lands are designated as critical
habitat for the jaguar. Thus, a benefit of
excluding these lands would be future
conservation efforts that would benefit
other listed species.
(3) Benefits of Exclusion Outweigh the
Benefits of Inclusion
The benefits of including the Tohono
O’odham Nation in critical habitat are
limited to the incremental benefits
gained through the regulatory
requirement to consult under section 7
and consideration of the need to avoid
adverse modification of critical habitat,
and educational awareness. However, as
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discussed above, these benefits are
minimal because they are provided for
through other mechanisms, such as the
Nation’s commitment to jaguar
conservation and the maintenance of
effective collaboration and cooperation
to promote the conservation of the
jaguar and its habitat.
Alternatively, the benefits of
excluding these areas from critical
habitat for the jaguar are more
significant and include the continued
development and implementation of
special management measures and
coordination with the Service for the
jaguar and other listed species on the
Tohono O’odham Nation lands. As
discussed above, the Service has
established a cooperative conservation
partnership with the Nation.
Maintaining this relationship is
important to the continued conservation
of the jaguar, as well as several other
listed species, that occur on the Nation’s
lands. Exclusion from critical habitat
designation will allow the Tohono
O’odham Nation to manage their natural
resources to benefit the jaguar, without
the perception of Federal Government
intrusion because of the designation of
critical habitat on their land. This
philosophy is also consistent with our
published policies on Native American
natural resource management. The
exclusion of this area will likely also
provide additional benefits to the
species that would not otherwise be
available to encourage and maintain
cooperative working relationships.
Therefore, we find that the benefits of
excluding this area from critical habitat
designation outweigh the benefits of
including this area. Furthermore,
conservation of other species and their
habitat provides conservation benefits
for the environment as a whole, which
is a benefit for the jaguar.
(4) Exclusion Will Not Result in
Extinction
As noted above, the Secretary, under
section 4(b)(2) of the Act, may exclude
areas from the critical habitat
designation unless it is determined,
based on the best scientific and
commercial data available, that the
failure to designate such area as critical
habitat will result in the extinction of
the species concerned. Jaguars range
from the southern United States to
South America (Swank and Teer 1989,
p. 14). Consequently, we have
determined that exclusion of the
Tohono O’odham Nation from the
critical habitat designation will not
result in the extinction of the jaguar.
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Summary of Comments and
Recommendations
We requested written comments from
the public on the proposed designation
of critical habitat for the jaguar during
three comment periods. The first
comment period associated with the
publication of the proposed rule opened
on August 20, 2012, and closed on
October 19, 2012 (August 20, 2012, 77
FR 50214). The second comment period
associated with the proposed revision of
critical habitat designation, as well as
the associated draft economic analysis
and draft environmental assessment,
opened July 1, 2013, and closed on
August 9, 2013, (July 1, 2013; 78 FR
39237). A third comment period from
August 29, 2013, through September 13,
2013 (August 29, 2013, 78 FR 53390),
was provided to the public for
additional review and comment on the
proposed revision of critical habitat
designation, as well as the associated
draft economic analysis and draft
environmental assessment. We received
several requests for a public hearing,
which we held on July 30, 2013. We
also contacted appropriate Federal,
State, and local agencies; scientific
organizations; and other interested
parties and invited them to comment on
the proposed rule and draft economic
analysis and draft environmental
assessment during these comment
periods.
We received approximately 33,000
comment letters on this action through
the end of the final comment period. All
substantive information provided
during comment periods has either been
incorporated directly into this final
designation or addressed below.
Comments received were grouped into
general issues specifically relating to the
critical habitat designation for the jaguar
and are addressed in the following
summary and incorporated into the final
rule as appropriate.
Peer Review
In accordance with our peer review
policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions
from seven knowledgeable individuals
with scientific expertise that included
familiarity with the species, the
geographic region in which the species
occurs, and conservation biology
principles. We received responses from
six of the seven peer reviewers.
We reviewed all comments received
from the peer reviewers for substantive
issues and new information regarding
critical habitat for the jaguar. Most of
the peer reviewers (five of the six)
generally concurred with our methods
and conclusions and provided
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additional information, clarifications,
and suggestions to improve this final
rule. One peer reviewer was against
critical habitat designation for the
jaguar, stating that there is no habitat in
the United States at this time that is
critical to the survival of the jaguar as
a species. Peer reviewer comments are
addressed in the following summary
and incorporated into the final rule as
appropriate.
Peer Reviewer Comments
(1) Comment: There is no habitat in
the United States that is critical to the
recovery of the jaguar or its survival as
a species.
Our response: The Service has
identified critical habitat for the jaguar
in accordance with the Act and its
implementing regulations. Section
4(a)(3)(A) of the Act states that critical
habitat shall be designated for
endangered and threatened species to
the maximum extent prudent and
determinable. Designation of critical
habitat is not prudent when one or both
of the following situations exist (50 CFR
424.12(a)(1)): identification of critical
habitat can be expected to increase the
degree of a threat or such designation
would not be beneficial to the species.
On March 30, 2009, the United States
District Court for the District of Arizona
(Court) issued an opinion in Center for
Biological Diversity v. Kempthorne, CV
07–372–TUC JMR (Lead) and Defenders
of Wildlife v. Hall, CV08–335 TUC JMR
(Consolidated) (D. Ariz., Mar. 30, 2009),
that set aside the Service’s previous not
prudent determination and required the
Service issue a new determination on
whether designation is prudent, stating
that Service regulations at https://
www.federalregister.gov/select-citation/
2010/01/13/50-CFR-424.12 (b) require
that the Service shall focus on the
principal biological constituent
elements within the defined area that
are essential to the conservation of the
species. The court did not order the
Service to designate critical habitat,
rather the court ordered the Service to
reevaluate whether designation of
critical habitat for the jaguar is prudent.
Thus, in responding to the Court’s
order, we reevaluated our previous ‘‘not
prudent’’ finding regarding critical
habitat designation for the jaguar.
Following a review of the best available
information, including the ongoing
conservation programs for the jaguar,
and information and analysis that
became available subsequent to the July
12, 2006, not prudent finding, we
determined that the designation of
critical habitat for the jaguar would be
beneficial to the species. We also
determined that designation of critical
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habitat would not be expected to
increase the degree of threat to the
species. As such, we no longer find that
designation of critical habitat for the
jaguar is not prudent under our
regulations, and, conversely, determine
that designation is prudent. Therefore,
we are required to designate critical
habitat for the jaguar to fulfill our legal
and statutory obligations. Based on the
best scientific data available, the Service
has determined that designation of
critical habitat for the jaguar is prudent
and determinable.
The first part of section 3(5)(A) of the
Act defines critical habitat as areas
within the geographical area occupied
by the species, at the time it is listed,
on which are found those physical or
biological features that are essential to
the conservation of the species. Under
the second part 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. As discussed in the Background
section of the January 13, 2010, Notice
of Determination (75 FR 1741), jaguars
have been found in the United States in
the past and may occur in the United
States now or in the future. As such,
physical and biological features that can
be used by jaguars occur in the United
States. We have determined that there
are geographical areas in the United
States that may have been occupied by
the species at the time it was listed. The
Service has determined that data are
sufficient to determine the physical or
biological feature and associated PCEs
for jaguar critical habitat. We have
determined that the essential physical
or biological feature and the associated
PCEs essential for jaguar conservation
are present in the United States. Critical
habitat in the United States contributes
to recovery the jaguar’s persistence and
recovery across the species’ entire range
by providing small patches of habitat
(perhaps in some cases with a few
resident jaguars), and as areas for cyclic
expansion and contraction of the nearest
core area and breeding population in the
proposed Northwestern Recovery Unit.
Section 4(b)(2) of the Act states that
the Secretary shall designate critical
habitat, and make revisions thereto,
under subsection (a)(3) on the basis of
the best scientific data available and
after taking into consideration the
economic impact, and any other
relevant impact, of specifying any
particular area as critical habitat. It is
often the case that biological
information may be lacking for rare
species; however, the Service has used
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the best available scientific data as
required by the Act. We recognize that
information currently available for
northern jaguars is scant; therefore, we
convened a binational Jaguar Recovery
Team in 2010 to synthesize information
on the jaguar, focusing on a area
comprising jaguars in the northernmost
portion of their range, the proposed
Northwestern Recovery Unit. The Jaguar
Recovery Team comprises members
from the United States and Mexico, and
is composed of two subgroups: a
technical subgroup and an
implementation subgroup. We have
based jaguar critical habitat on
information compiled and produced by
the Jaguar Recovery Team, to the
greatest extent possible. As described in
the proposed rule and this final rule, to
the greatest extent possible, we based
critical habitat boundaries on the
physical and biological feature and
PCEs from the latest jaguar habitat
model produced by the Jaguar Recovery
Team (Sanderson and Fisher 2013,
entire), which we consider the best
commercial and scientific data
available. The Jaguar Recovery Team
comprises jaguar experts, large-cat
experts, and stakeholders from the
United States and Mexico; therefore, we
consider that the work produced by the
team is the best available scientific and
commercial data and, subsequently, the
best information to use in determining
the physical or biological feature and
associated PCEs of jaguar critical
habitat. Using this information, we have
determined that the physical or
biological feature of jaguar critical
habitat and the associated PCEs are
present in the United States, and that
these areas were occupied at the time of
listing.
(2) Comment: Designation of critical
habitat is not due to new data, but due
to litigation. The Service’s previous
1997 and 2006 not prudent
determinations for designating critical
habitat for the jaguar were valid
decisions, but the 2010 prudent
determination to designate critical
habitat for the jaguar is not valid. The
court did not order the Service to
designate critical habitat, but rather to
determine if the physical and biological
features upon which jaguars depend
could be found in the United States and,
if so, were essential to the conservation
of the species.
Our response: The Service has
identified critical habitat for the jaguar
in accordance with the Act and its
implementing regulations. See our
response to comment number 1 in the
Peer Reviewer Comments above.
(3) Comment: The Service received
multiple comments related to the
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inclusion of areas north of the proposed
critical habitat. Some thought areas
north of the proposed critical habitat
along the Mogollon Rim in Arizona, and
to the north and east into the Gila
highlands in New Mexico are where the
best biophysical potential for jaguar
recovery in the United States exists.
Others thought jaguars would use
habitat north of the proposed critical
habitat, but thought the use and
importance of these areas were lower
given their distance from breeding
populations.
Our response: Areas north of
designated critical habitat may be usable
by jaguars and may in fact contribute to
the recovery of the species. However,
these areas do not meet the definition of
critical habitat under the Act because
they were neither occupied at the time
of listing nor are they considered
essential to the conservation of the
species. See Areas Essential for the
Conservation of Jaguars, above.
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. However, we
have determined that the critical habitat
areas that we are designating in the
United States are sufficient for the
conservation of jaguars. We do not agree
that areas in the United States outside
of the proposed Northwestern Recovery
Unit must be designated as critical
habitat to recover the species, as the
boundaries of the recovery unit were
determined by the Jaguar Recovery
Team. All designated areas contain all
of the physical and biological features
upon which jaguars in the United States
depend, including connectivity to
Mexico, which is a key component
aiding the recovery of the species, or the
designated areas are considered
essential to the conservation of the
jaguar.
(4) Comment: The Service should
include designation of additional areas
to support a viable, self-sustaining
population of jaguars within the United
States (of 50 to 100 individuals) in order
to recover the species within the United
States.
Our response: Creating a viable, selfsustaining population (of perhaps 50 to
100 jaguars) in the United States is not
a recovery goal for the jaguar (Jaguar
Recovery Team 2012, pp. 38–42).
Recovery of the jaguar does not require
that areas in the United States contain
females, documented breeding, or a self-
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sustaining population. As discussed in
the proposed rule and this final rule, the
purpose of designating critical habitat in
the United States is to provide areas for
transient jaguars (with possibly a few
residents) to support the nearest
breeding area to the south in Mexico,
allowing this population to expand and
contract, and, ultimately, recover. It is
our intent that the designation of critical
habitat will protect the functional
integrity of the features essential for
jaguar life-history requirements for this
purpose into the future.
(5) Comment: The Service should
expand critical habitat to represent all
ecoregions and biotic communities from
which jaguars in the United States have
been extirpated, including portions of
California, Texas, and possibly
Louisiana.
Our response: Designating all the
ecoregions and biotic communities in
the United States from which jaguars
have been extirpated as critical habitat
does not meet the definition of critical
habitat under the Act because they were
neither occupied at the time of listing
nor are they considered essential to the
conservation of the species. To meet the
requirements of the Act, the Service
determined areas that were occupied by
jaguars at the time of listing that
contained the physical and biological
features essential to the conservation of
the jaguar and unoccupied areas that
were essential to the conservation of the
jaguar. Additionally, to the greatest
extent possible, we based critical habitat
unit boundaries on the physical and
biological feature and PCEs from the
latest jaguar habitat model produced by
the Jaguar Recovery Team (Sanderson
and Fisher 2013, entire), which is the
best commercial and scientific data
available. In areas where the critical
habitat units did not provide
connectivity to Mexico (PCE 1), we
identified additional areas to provide
this connectivity under the second part
of the definition of critical habitat. See
Criteria Used To Identify Critical
Habitat, above. Further, section 3(5)(C)
of the Act states that, except in those
circumstances determined by the
Secretary, critical habitat shall not
include the entire geographical area
which can be occupied by the
threatened or endangered species.
(6) Comment: The lack of detection of
jaguars does not indicate the species is
absent.
Our response: The Service agrees that
the lack of detection does not indicate
the species is absent, and we
acknowledge this in our proposed rule
and this final rule. The Service
recognizes that many mobile species are
difficult to detect in the wild because of
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morphological features (such as
camouflaged appearance) or elusive
behavioral characteristics (such as
nocturnal activity) (Peterson and Bayley
2004, pp. 173, 175). This situation
presents challenges in determining
whether or not a particular area is
occupied because we cannot be sure
that a lack of detection indicates that the
species is absent (Peterson and Bayley
2004, p. 173). However, the Service
used the best available data pertaining
to jaguar occurrences. See Occupied
Area at the Time of Listing, above, in
this final rule.
(7) Comment: The Service should
follow the jaguar habitat modeling
efforts of Hatten et al. (2005) and
Robinson (2006) as a basis for including
additional areas in these two states.
Hatten et al. (2005) identified 21–30
percent of Arizona (approximately
62,000–88,600 km2 (23,938–34,209
mi2)) as potential jaguar habitat and
Robinson (2006) identified
approximately half of New Mexico
(approximately 156,800 km2 (60,541
mi2)) as potential jaguar habitat.
Our response: Designating all areas of
potential habitat in the United States as
critical habitat does not meet the
definition of critical habitat under the
Act because they were neither occupied
at the time of listing nor are they
considered essential the conservation of
the species. We recognize that the area
of potential habitat is larger than what
we have designated as critical habitat,
but as required under the Act, we have
designated those areas within the
geographical area occupied by the
species, at the time it is listed, on which
are found those physical or biological
features that are essential to the
conservation of the species; or 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. We also 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.
In the Jaguar Recovery Team’s
analysis and modeling effort, the team
considered the modeling efforts of
Hatten et al. (2005, entire) and Robinson
(2006, entire) and further refined the
Hatten et al. (2005) model such that a
similar model could be applied across
the entire Northwestern Recovery Unit.
The Jaguar Recovery Team provided this
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analysis and habitat model in their 2013
report entitled Jaguar Habitat Modeling
and Database Update (Sanderson and
Fisher 2013, entire). We based critical
habitat boundaries on the physical or
biological feature and PCEs from the
updated habitat modeling report, in
which the habitat features preferred by
the jaguar in the proposed Northwestern
Recovery Unit were described based on
the best available science and expert
opinion of the Jaguar Recovery Team.
(8) Comment: The Service should
expand critical habitat to ensure habitat
connectivity. The Service should
include linkages between all of the
critical habitat units.
Our response: We recognize that
connecting critical habitat units in the
United States is important to achieve
connectivity between the United States
and Mexico. We have identified
connectivity between expansive open
spaces in the United States and Mexico
as an essential component of the
physical or biological feature essential
for the conservation of the jaguar in the
United States, and we understand that
connectivity between expansive open
areas of habitat for the jaguar in the
United States is necessary if viable
habitat for the jaguar is to be
maintained. We acknowledge that,
based on home range sizes and research
and monitoring, jaguars will use valley
bottoms (for example, McCain and
Childs 2008, p. 7) and other areas of
habitat connectivity to move among
areas of higher quality habitat found in
isolated mountain ranges in the United
States. Therefore, in areas where critical
habitat was designated based on the first
part of the definition of critical habitat
(areas within the geographical area
occupied by the species, at the time it
is listed, on which are found those
physical or biological features that are
essential to the conservation of the
species) in which connectivity to
Mexico (PCE 1) was not provided
through a direct connection to Mexico,
we identified areas under the second
part of critical habitat (defined in the
Act as the 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) to provide this connectivity.
We did this by selecting and adding
subunits containing low human
influence and impact, and either or both
vegetative cover or rugged terrain. See
Connectivity between expansive open
spaces in the United States and Mexico,
above, in this final rule.
In response to the need to include
linkages between all of the critical
habitat units within the United States,
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we determined that no additional areas
within the United States must be
designated to connect critical habitat
units together. As described in the final
rule, there is only one occurrence record
of a jaguar in a valley between mountain
ranges. With only one record, we are
unable to describe the features of these
areas because of a lack of information.
Therefore, while we acknowledge that
habitat connectivity within the United
States is important, the best available
scientific and commercial information
does not allow us to determine that any
particular area within the valleys is
essential, and all of the valley habitat is
not essential to the conservation of the
species. Therefore, we are not
designating any areas within the valleys
between the montane habitat as critical
habitat. See Connectivity between
expansive open spaces within the
United States, above, in this final rule.
(9) Comment: The Service should
include all Class II observations and
suspect Class I observations. The
Service should include all historic
records. The Service is dismissing the
current and former U.S. jaguar range.
The Service appears to be trying to
introduce balance in the treatment of
false negative and positive biases in
time. However, the more value-neutral
approach would be to use both Class I
and Class II records.
Our response: The Service considers
undisputed Class I records as the best
available scientific data to determine
occupancy. To meet the requirements of
section 3(5)(A)(i) of the Act and its
implementing regulations, we are
required to define the specific areas
within the geographical area occupied
by the species at the time it is listed.
Determining jaguar occupancy at the
time of listing is particularly difficult
because jaguars were added to the list
many years ago, the species was rare
within the United States, and jaguars
are, by nature, cryptic and difficult to
detect, so defining an area as occupied
or unoccupied must be done based on
limited information. Class I records are
those for which some sort of physical
evidence is provided for verification
(such as a skin, skull, or photograph);
they are considered ‘‘verified’’ or
‘‘highly probable’’ as evidence for a
jaguar occurrence. We determined that
undisputed Class I observations from
1962 through September 11, 2013,
provided the best scientific and
commercial data available, as these are
the most reliable and verifiable records
for jaguars. Suspect (validity of these
locations is questionable) Class I
observations, Class II observations, and
other historical records represent
observations that may have been
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influenced in some way or that may not,
in fact, be a sighting of a jaguar. For
these reasons, we determined that
undisputed Class I jaguar records are the
most reliable; therefore, we used these
records to determine critical habitat
occupancy. See Occupied Area at the
Time of Listing, above, in this final rule.
(10) Comment: It is possible that
jaguars were not present at the time of
listing; however, the absence of jaguars
was most certainly the result of human
killing of jaguars, and jaguars almost
certainly occupied and reproduced in
southern Arizona in the late 19th and
early 20th century, shortly prior to
listing.
Our response: Jaguars were present at
the time of listing as well as historically
in the United States. Based on the best
available information related to jaguar
rarity, biology, and survey effort, we
determine that areas containing
undisputed Class I records from 1962 to
the present (September 11, 2013) may
have been occupied by jaguars at the
time of listing. Our rationale for
including these records is based on
expert opinion regarding the average
lifespan of the jaguar, the consensus
being 10 years. It is likely that areas in
which jaguar sightings have occurred
after 1982 were occupied at the time of
the original listing, but jaguars had not
been detected because of their rarity, the
difficulty in detecting them, and a lack
of surveys for the species.
To the extent that uncertainty exists
regarding our analysis of these
occurrence data, we acknowledge there
is an alternative explanation as to
whether or not these areas were
occupied at the time the jaguar was
listed in 1972 (37 FR 6476). The lack of
jaguar sightings at that time, as well as
some expert opinions cited in our July
22, 1997, clarifying rule (62 FR 39147)
(for example, Swank and Teer 1989),
suggest that jaguars in the United States
had declined to such an extent by that
point as to be effectively eliminated.
Therefore, an argument could be made
that no areas in the United States were
occupied by the species at the time it
was listed, or that only areas containing
undisputed Class I records from
between 1962 and 1982 were occupied.
For this reason we also analyzed
whether or not critical habitat areas are
essential to the conservation of the
species. Through our analysis, we
determined that they are essential to the
conservation of the species because: (1)
They have demonstrated recent (since
1996) occupancy by jaguars; (2) they
contain features that comprise jaguar
habitat; and (3) they contribute to the
species’ persistence in the United States
by allowing the normal demographic
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function and possible range expansion
of the Northwestern Recovery Unit,
which is essential to the conservation of
the species (as discussed in the Jaguar
Recovery Planning in Relation to
Critical Habitat section). Therefore,
whether or not they were occupied at
the time of listing, we are designating
them as critical habitat.
(11) Comment: The Service’s
description of occupancy is not
consistent with the Act; no data from
1962 onward indicate any breeding or
resident populations of jaguars within
the United States, as originally stated in
the 1972 rule.
Our response: The Act does not
require an area to have a resident
population, documented breeding, or
females in order to be considered
occupied. Rather, section 3(5)(A) of the
Act defines the first part of critical
habitat as the specific areas within the
geographical area occupied by the
species, at the time it is listed, on which
are found those physical or biological
features essential to the conservation of
the species. The Service has determined
that physical and biological features that
are essential to the conservation of the
jaguar occur in the United States.
Further, in Arizona Cattle Grower’s
Assoc. v. Salazar, 2009 U.S. App. Lexis
29107 (June 4, 2010), the Ninth Circuit
affirmed that the Service has the
authority to designate as occupied all
areas used by a listed species with
sufficient regularity that members of the
species are likely to be present during
any reasonable span of time. Therefore,
occupancy of an area can be indicated
by the presence of an individual
member of the species, and we have
determined that areas may have been
occupied at the time of listing based on
this definition in conjunction with
observations of jaguars in those areas (as
described in Table 1 of this final rule).
Further, the purpose of critical habitat
for the jaguar in the United States is to
contribute to the species’ persistence
and, therefore, overall conservation by
providing areas to support some
individuals during dispersal
movements, by providing small patches
of habitat (perhaps in some cases with
a few resident jaguars), and as areas for
cyclic expansion and contraction of the
nearest core area and breeding
population in the Northwestern
Recovery Unit. Through our analysis,
we determined there are areas within
the United States containing the
physical or biological feature and
associated PCEs of jaguar critical habitat
to support this function, including
adequate food, water, shelter, and space.
Therefore, we are designating these
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areas of critical habitat for the purposes
stated above.
(12) Comment: Jaguars do not remain
in the United States, nor are they found
in abundance in the United States,
because areas in the United States
provide suboptimal conditions in terms
of food and reproduction.
Our response: The purpose of critical
habitat for the jaguar in the United
States is to contribute to the species’
persistence and, therefore, overall
conservation by providing areas to
support some individuals during
dispersal movements, by providing
small patches of habitat (perhaps in
some cases with a few resident jaguars),
and as areas for cyclic expansion and
contraction of the nearest core area and
breeding population in the
Northwestern Recovery Unit. Through
our analysis, we determined there are
areas within the United States
containing the physical or biological
feature and associated PCEs of jaguar
critical habitat to support this function,
including adequate food, water, shelter,
and space. Therefore, we are designating
these areas of critical habitat for the
purposes stated above.
(13) Comment: The central goal
statement offered by the proposed rule
is to bring an endangered or threatened
species to the point at which the
measures provided pursuant to the Act
are no longer necessary. The totality of
what is necessary in terms of space,
quality, or numbers needed to attain
viability is not specified anywhere in
the proposed rule. The closest
approximation is statements to the effect
that some amount (not specified) of
essential habitat is needed to achieve
recovery goals for jaguars in the United
States, with the remaining focus on
defining essential jaguar habitat, which
is not a recovery goal.
Our response: The designation of
critical habitat is only one component of
recovery for a species. The recovery
plan is the appropriate instrument to
define recovery goals. The Service is in
the process of developing a recovery
plan.
(14) Comment: The Service assumes
that optimal habitat for jaguars in the
United States would be the high
mountains or rugged areas, because this
is where the most sightings have been
reported. However, jaguar prey prefers
lowland areas and are only relegated to
more rugged regions when the lowland
areas have been taken over or destroyed.
Our response: Biological information
is often lacking for rare species,
particularly with a cryptic species like
the jaguar that is difficult to detect.
However, the Act requires the Service to
make determinations based on the best
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scientific and commercial data
available. The Jaguar Recovery Team
produced a habitat model based on the
best information available, which
indicates that habitat for jaguars in the
United States is in rugged, mountainous
areas. Therefore, we have utilized this
information to inform this designation.
(15) Comment: Areas in the United
States will function primarily to support
dispersing or transient jaguars, although
breeding could have occurred in the
past.
Our response: The Service agrees that
critical habitat in the United States will
function primarily to support dispersing
or transient jaguars. Jaguars may have
bred in the United States in the past (see
´
´
Table 1 in Brown and Lopez Gonzalez
2001, pp. 6–9), but breeding has not
been documented recently. As described
in the proposed rule and this final rule,
the recovery function and value of
critical habitat for the jaguar within the
United States is to contribute to the
species’ persistence and, therefore,
overall conservation by providing areas
to support some individuals during
dispersal movements, by providing
small patches of habitat (perhaps in
some cases with a few resident jaguars),
and as areas for cyclic expansion and
contraction of the nearest core area and
breeding population in the
Northwestern Recovery Unit.
(16) Comment: The Service received
several comments related to the use of
the best available scientific data. Some
noted that the Service has used the best
available literature and data, and
acknowledged that there is a lack of data
on jaguar habitat in this region;
however, additional data would not
result in a significantly different or
better map of critical habitat.
Conversely, others asserted that the
Service did not use the best available
scientific data and data is lacking to
justify the designation of critical habitat.
Others also asserted that the proposed
rule continually uses assumptions and
speculation as fact.
Our response: In accordance with
section 4 of the Act, we are required to
designate critical habitat on the basis of
the best scientific data available.
Further, our Policy on Information
Standards under the 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 (www.fws.gov/
informationquality/), provide criteria
and guidance, and establish procedures
to ensure that our decisions are based
on the best scientific data available.
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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.
Primary or original information
sources are those that are closest to the
subject being studied, as opposed to
those that cite, comment on, or build
upon primary sources. The Act and our
regulations do not require us to use only
peer-reviewed literature, but instead
they require us to use the ‘‘best
scientific and commercial data
available’’ in a critical habitat
designation. We use information from
many different sources, including
articles in peer-reviewed journals,
scientific status surveys and studies
completed by qualified individuals,
Master’s thesis research that has been
reviewed but not published in a journal,
other unpublished governmental and
nongovernmental reports, reports
prepared by industry, personal
communication about management or
other relevant topics, conservation plans
developed by States and counties,
biological assessments, other
unpublished materials, experts’
opinions or personal knowledge, and
other sources. We have relied on
published articles, unpublished
research, habitat modeling reports,
digital data publicly available on the
Internet, and the expert opinion of the
Jaguar Recovery Team to designate
critical habitat for the jaguar.
Also, in accordance with our peer
review policy published on July 1, 1994
(59 FR 34270), we solicited peer review
from knowledgeable individuals with
scientific expertise that included
familiarity with the species, the
geographic region in which the species
occurs, and conservation biology
principles. Additionally, we requested
comments or information from other
concerned governmental agencies,
Native American Tribes, the scientific
community, industry, and any other
interested parties concerning the
proposed rule. Comments and
information we received helped inform
this final rule. Further, information
provided in comments on the proposed
designations and the draft
environmental and economic analyses
were evaluated and taken into
consideration in the development of
these final designations, as appropriate.
Information currently available for
northern jaguars is scant; therefore, we
convened a binational Jaguar Recovery
Team in 2010 to synthesize information
on the jaguar, focusing on an area
comprising jaguars in the northernmost
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portion of their range, the proposed
Northwestern Recovery Unit. The Jaguar
Recovery Team comprises members
from the United States and Mexico, and
is composed of two subgroups: A
technical subgroup and an
implementation subgroup. The
technical subgroup consists of feline
ecologists, conservation biologists, and
other experts, who advise the Jaguar
Recovery Team and the Service on
appropriate short- and long-term actions
necessary to recover the jaguar. The
implementation subgroup consists of
landowners and land and wildlife
managers from Federal, State, tribal, and
private entities, who advise the
technical subgroup and the Service on
ways to achieve timely recovery with
minimal social and economic impacts or
costs.
As stated above and in the proposed
rule, we have based jaguar critical
habitat on information compiled and
produced by the Jaguar Recovery Team,
to the greatest extent possible. We
consider that the work produced by the
Jaguar Recovery Team is the best
available scientific and commercial
data, and that following the team’s
recommendations is the best avenue for
achieving conservation of the species
and, by extension, designating critical
habitat. We acknowledge that the
scientific information regarding the
jaguar has limitations and that some of
our citations are not specific to these
species or geographic area.
Nevertheless, the citations offer
evidence in basic biological responses
for similar species, and we would
expect a similar response with the
jaguar. Consequently, the Service has
used the best available scientific
information to support our decision.
(17) Comment: The Service’s process
of designating critical habitat is logical,
consistent, and reasonable, and the data
used were carefully evaluated and based
on sound ecological principles. The use
of the model to identify areas with
features important to the jaguar habitat
allows areas to be evaluated that have
not been surveyed, but have high
potential to provide habitat for jaguars.
Relying solely on surveys or anecdotes
will almost always yield a flawed
product because surveys never cover all
areas of potential interest, are imperfect
for elusive animals that are challenging
to detect, and, for species whose
populations are thought to be
suppressed, there are almost certainly
areas on the landscape that can function
as habitat, but that are unoccupied
because of reduced population levels.
Our response: We agree. In our
proposed rule and this final rule, we
used the best available scientific
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information to support our decision.
Data reviewed by the Secretary may
include, but are not limited to scientific
or commercial publications,
administrative reports, maps or other
graphic materials, information received
from experts on the subject, and
comments from interested parties. We
have based jaguar critical habitat on
information compiled and produced by
the Jaguar Recovery Team, to the
greatest extent possible. We consider the
work produced by the Jaguar Recovery
Team as the best available scientific and
commercial data, and that following the
team’s recommendations is the best
avenue for achieving conservation of the
species and, by extension, designating
critical habitat. The PCEs are based on
the latest jaguar habitat model produced
by the Jaguar Recovery Team
(Sanderson and Fisher 2013, entire),
which is the best commercial and
scientific data available. Consequently,
the Service has used the best available
scientific information to support our
decision.
(18) Comment: The Service should
have considered the population viability
analysis (PVA) model in their decision
process. The population viability and,
related, minimum viable populations,
received only passing reference in the
proposed rule and with no articulated
justification. The PVA concept is central
to the notion of recovery in that it
informs population targets, which in
turn inform habitat targets (the focus of
this decision process).
Our response: During the
development of the Recovery Outline
and as a part of the recovery planning
process, the Jaguar Recovery Team
worked with the Wildlife Conservation
Society to create a jaguar habitat model
(Sanderson and Fisher 2011, pp. 1–11;
2013, entire), and the Conservation
Breeding Specialist Group of the
Species Survival Commission/
International Union for Conservation of
Nature to conduct a PVA and
population habitat viability analysis
(PHVA) for the jaguar. We anticipated
that these analyses would assist us in
determining those recovery actions that
would be most effective for achieving a
viable jaguar population for the
Northwestern Recovery Unit (not the
United States), as well as provide
information relevant to determining
critical habitat for the jaguar. However,
the PHVA analysis and PVA themselves,
while informative for recovery-planning
purposes, did not contribute to the
determination of critical habitat. Critical
habitat for the jaguar focuses on the
physical or biological features available
in the United States that are essential to
the conservation of the species; it is not
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based on an overall number of jaguars,
nor is it required to be, whereas the PVA
and PHVA are used to determine a
minimum viable population. The
purpose of critical habitat for the jaguar
is to provide areas to support some
individuals during dispersal
movements, by providing small patches
of habitat (perhaps in some cases with
a few resident jaguars), and as areas for
cyclic expansion and contraction of the
nearest core area and breeding
population in the Northwestern
Recovery Unit, which contributes to the
overall recovery of the jaguar. Therefore,
the Service relied on habitat features as
described in the preliminary report
entitled Digital Mapping in Support of
Recovery Planning for the Northern
Jaguar (Sanderson and Fisher 2011, pp.
1–11) for our August 20, 2012, proposed
rule (77 FR 50214), and a later report
entitled Jaguar Habitat Modeling and
Database Update (Sanderson and Fisher
2013, entire) for our July 1, 2013,
revised proposed rule (78 FR 39237) and
this final rule. Please see the Criteria
Used to Identify Critical Habitat section
of the final rule and our response to
comment number 1 in Peer Reviewer
Comments above for further information
about how we incorporated these
reports into our determination.
(19) Comment: The Service should
consider mountain lion (puma)
literature where the data and research
on jaguars is scant. Mountain lions, like
jaguars, have an exceptionally large
range that spans many degrees of
latitude and longitude with different
habitat types and are hypercarnivorous
felid ambush predators that exhibit
substantial diversity of diet and specific
habitat relations, depending on the
environment. The Service has the
inherent authority and ability to use the
best available science regarding
connectivity for other similar species,
such as the mountain lion, to make a
reasoned judgment about the most likely
areas that would facilitate connectivity
for the jaguar. Consideration of
mountain lions also argues against
giving credence to Rabinowitz (1999)
and Swank and Teer (1989).
Our response: The Service recognizes
the overlap in the ecology of mountain
lions and jaguars; however, we have
based jaguar critical habitat on
information compiled and produced by
the Jaguar Recovery Team to the greatest
extent possible. The Jaguar Recovery
Team comprises jaguar experts, large-cat
experts (knowledgeable about mountain
lions), and stakeholders from the United
States and Mexico; therefore, we
consider that the work produced by the
team is the best available scientific and
commercial data, and that following the
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team’s recommendations is the best
avenue to designating critical habitat
and conservation of the species.
(20) Comment: We received multiple
comments concerning the
characterization of prey abundance.
Some noted that the Service should
include actual estimates of prey density
in the analysis so as to meet the best
available data standard and to be
consistent with treatment of other
habitat factors. Others stated that it is
impossible to characterize prey
abundance in any temporally and
spatially meaningful way. Rather, the
relative permanent physical and
ecological features that are important to
jaguars and their prey (e.g., vegetation
structure and composition, proximity to
water, topography) are more useful for
characterizing habitat.
Our response: We have relied on the
best available scientific information on
prey that is readily available from the
Arizona Game and Fish Department
(Hunt Arizona 2012 Edition, available
at: https://www.azgfd.gov/regs/
HuntArizona2012.pdf) and the New
Mexico Department of Game and Fish
(Harvest Information, available at:
https://www.wildlife.state.nm.us/
recreation/hunting/). Using this
information, we have determined that
white-tailed deer and javelina (the
preferred prey of the jaguar in the
northwestern-most part of its range)
have been present in each critical
habitat unit for at least 50 years in
Arizona, and have been successfully
hunted in each hunt unit overlapping
jaguar critical habitat for the same
period of time (Game Management Units
30A, 34A, 34B, 35A, 35B, 36A, 36B, and
36C). This information indicates that
adequate levels of prey are currently
available in critical habitat units in
Arizona, and have been available for at
least 50 years in these units.
Historical harvest information from
New Mexico is not as readily available.
However, based on the most recent
harvest information, white-tailed deer
and javelina are available in Unit 5 of
jaguar critical habitat (Game
Management Unit 27). White-tailed and
mule deer and javelina are likely
available in Unit 6 of jaguar critical
habitat (Game Management Unit 26). We
can determine that javelina have been
successfully harvested in this Unit 6
(Game Management Unit 26), but this
particular Game Management Unit
lumps all deer together, so we are
unable to distinguish hunt success
between mule deer and white-tailed
deer. This information indicates that
adequate levels of prey are currently
available in critical habitat units located
in New Mexico.
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(21) Comment: There has been no
detailed prey occurrence or density
study cited for the areas under
consideration despite recognition that
adequate prey is a major factor in
assessing critical habitat.
Our response: See our response to
comment number 20 in Peer Reviewer
Comments above.
(22) Comment: The Service should
consider that jaguar observations would
likely be biased towards areas where
there was more human activity together
with greater visibility, specifically:
nearer water sources, in less rugged
areas, in areas with less forest or shrub
cover, in areas with better access, and in
areas with more human residences. This
is not intrinsically problematic, but this
precautionary bias should be recognized
and explained.
Our response: We acknowledge that
certain types of bias could be evident in
jaguar observations due to their cryptic,
nocturnal, and predatory nature.
However, based on section 4(b)(1)(A) of
the Act, the Secretary is required to
make determinations on the basis of the
best scientific and commercial data
available.
(23) Comment: The Service should
understand that just because under-use
of habitat near human facilities has been
demonstrated, it does not mean that
individual animals will not use areas
near people as a result of or in the
process of losing their fear. As long as
jaguars are not harassed or killed at a
high rate around human facilities, there
is a high likelihood that jaguars could
heavily use otherwise suitable habitats
near people, in areas where the HII is
greater than 20.
Our response: We recognize that male
jaguars have been documented near
roads, but the data do not indicate that
this is where the majority of jaguar
sightings occur. Further, based on
section 4(b)(1)(A) of the Act, the
Secretary is required to make
determinations on the basis of the best
scientific and commercial data
available. We have determined that the
best scientific data available is that
which has been compiled and produced
by the Jaguar Recovery Team. Therefore,
while we acknowledge that some
jaguars may be able to use areas of a
higher HII, for the purposes of critical
habitat we are using the range of values
recommended by the Jaguar Recovery
Team in the northern portion of the
proposed Northwestern Recovery Unit.
(24) Comment: The Service received
multiple comments regarding the use of
different habitat models for designating
critical habitat corridors. Some
recommended using specific models
such as Beier et al. (2006) and
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Rabinowitz and Zeller (2010). Others
recommended using Pima County
Wildlife Connectivity Assessment and
Arizona’s Wildlife Linkages
Assessment. One recommended using a
thesis by M. Rudy. Others
recommended using features on the
landscape such as rivers, streams,
draws, washes, and wetlands. Others
recommended using mountain lion data
or other corridor data regarding corridor
width.
Our response: In response to the
various models recommended, we
understand there are different
approaches to modeling jaguar habitat
than the method we used, each
involving different methodologies,
assumptions, and data layers. However,
we believe that the information
collected by the Jaguar Recovery Team
and the latest habitat model the team
produced (Sanderson and Fisher 2013,
entire) is the best available scientific
data, and is appropriate to inform
critical habitat for the jaguar. Their
methodology closely follows another
jaguar habitat mapping effort conducted
by Hatten et al. (2005, entire), and
essentially involves determining the
habitat features most relied upon by
jaguars in the northwestern-most part of
the species’ range by overlaying spatial
data layers representing these habitat
features with observations of jaguars
within this range (see the Criteria Used
to Identify Critical Habitat section of the
final rule for more detailed
information). Additionally, by following
the Sanderson and Fisher (2013)
methodology, final critical habitat works
alongside and supports the recoveryplanning process in that the information
used for both processes is compatible.
(25) Comment: The Service should
connect critical habitat units in the
United States because sufficient
connectivity between critical habitat
units within the United States is
needed.
Our response: See our response to
comment number 8 in Peer Review
Comments above.
(26) Comment: The Service should
connect critical habitat units in the
United States because connectivity is
needed to facilitate dispersal events,
adaptation to changing environmental
conditions, and genetic exchange.
Our response: As described in the
final rule, the purpose of critical habitat
is to provide areas to support some
individuals during dispersal
movements, by providing small patches
of habitat (perhaps in some cases with
a few resident jaguars), and as areas for
cyclic expansion and contraction of the
nearest core area and breeding
population in Mexico. We have
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determined that the designated areas are
adequate for these purposes.
(27) Comment: The Service should
connect critical habitat units in the
United States because connectivity is
needed to mitigate for border-related
activities that may sever connectivity to
Mexico.
Our response: All projects with a
Federal nexus proposed within jaguar
critical habitat in the United States will
be evaluated on a case-by-case basis
with respect to section 7 of the Act to
ensure they do not destroy or adversely
modify designated areas. Please see our
response to comment number 8 Peer
Review Comments above regarding
connectivity of critical habitat.
(28) Comment: The Service should
connect critical habitat units in the
United States because connectivity is
needed to support 50 to 100 jaguars in
Arizona and New Mexico.
Our response: Please see our response
to comment number 4 Peer Review
Comments above.
(29) Comment: The Service has not
explained the placement of Subunits 4b
and 4c. In particular, the placement of
4b is not supported by the best scientific
data, and the Service has not justified
including this subunit and does not
provide empirical data (data acquired by
means of observation or
experimentation).
Our response: Subunits 4b and 4c do
not contain all of the PCEs, nor are they
required to, as these subunits are
considered unoccupied. Section 3 of the
Act requires that the Service designate
critical habitat in 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. Subunits 4b and 4c contain a
combination of low human influence
and either or both canopy cover and
ruggedness such that they represent
areas through which a jaguar may travel
between the United States and Mexico.
These critical habitat subunits provide
connectivity between critical habitat
units within the United States, and they
provide connectivity between the
United States and Mexico.
(30) Comment: The Service should
include the least-cost corridor modeled
by Rosemont Mine to replace Subunit
4b, as well as the elimination of Subunit
4b altogether because Subunit 4c
provides a more direct route to Mexico
from Subunit 4a.
Our response: In determining the
most likely areas that would connect
Subunit 4a to Mexico (by connecting to
Unit 3), we again relied on data
provided by the Jaguar Recovery Team,
which we consider the best available
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scientific data. These subunits contain a
combination of low human influence
and either or both canopy cover and
ruggedness such that they represent
areas through which a jaguar may travel
between Subunit 4a and Mexico. Either
Subunit 4b or 4c may be used by a
jaguar based on these habitat
characteristics; therefore, we have no
reason not to include these areas as
critical habitat, regardless of which one
provides a more direct connection to
Mexico, as both subunits provide
connectivity to Mexico through Unit 3.
(31) Comment: Future human impacts
within Subunit 4c will render that
subunit nonviable.
Our response: We understand that
additional human impacts from future
development on private or State lands
could occur. However, critical habitat
does afford protection to the jaguar
through section 7 consultation under
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. 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. Therefore, actions that are
funded, permitted, or carried out by a
Federal agency within jaguar critical
habitat will continue to be evaluated to
determine their impacts on critical
habitat.
(32) Comment: The single observation
of a jaguar along the Santa Cruz River
contains considerable information of
relevance to identifying corridors,
especially if framed in terms of prior
knowledge of jaguar ecology elsewhere.
Our response: Please see our response
to comment number 8 Peer Review
Comments above regarding connectivity
of critical habitat.
(33) Comment: The Service should
consider that numerous scientific
publications (some cited by the
proposed rule) make the case for
foreseeable warming and drying of the
regions in question; which is to say that
the hypotheses (models of the world)
tacitly adopted by the proposed rule are
not defensible in light of the best
available scientific information.
Additional numerous publications
describe not only projected geospatial
patterns of warming and drying based
on regional general circulation models,
but also projected geospatial changes in
vegetation and plant species
distributions for biomes and species that
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contribute directly to the proposed
rule’s definition of essential jaguar
habitat. It is plausible that portions of
the United States could become crucial
to persistence of jaguars due to climate
change.
Our response: The Service considered
numerous scientific information sources
as cited in our proposed rule and this
final rule. The Service recognizes that
some species are shifting their
geographic ranges, often moving
poleward or upwards in elevation
(National Fish, Wildlife, and Plants
2012, p. 10). Range shifts are not always
negative: habitat loss in one area may be
offset by an increase elsewhere such
that if a species is able to disperse, it
may face little long-term risk. However,
it is clear that shifting distributions can
lead to a number of new challenges
(National Fish, Wildlife, and Plants
2012, p. 26). Changes in climate can
have a variety of direct and indirect
ecological impacts on species, and can
exacerbate the effects of other threats.
Climate-associated environmental
changes to the landscape, such as
decreased stream flows, increased water
temperatures, reduced snowpack, and
increased fire frequency, can affect
species and their habitats. The
vulnerability of a species to climate
change impacts is a function of the
species’ sensitivity to those changes, its
exposure to those changes, and its
capacity to adapt to those changes. The
Service acknowledges in the proposed
rule and this final rule that climate
change has the potential to adversely
affect the jaguar within the next 50 to
100 years (Jaguar Recovery Team 2012,
p. 32). However, the degree to which
climate change will affect jaguar habitat
in the United States is uncertain.
Further, we do not know whether the
changes that have already occurred have
affected jaguar populations or
distribution, nor can we predict how the
species will adapt to or be affected by
the type and degree of climate changes
forecast. Consequently, because the
specific impacts of climate change on
jaguar habitats remains uncertain at this
time, we did not recommend any areas
be designated as critical habitat
specifically to account for the negative
effects of climate change.
(34) Comment: Clarify the exclusion
of manmade features, specifically if a
road runs through a wilderness area,
would this entire area be excluded from
critical habitat or just the road?
Our response: A road through a
wilderness area would be excluded from
critical habitat because it does not
contain the physical or biological
features essential to the jaguar’s
conservation. Critical habitat does not
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include manmade structures (such as
buildings, aqueducts, runways, roads,
and other paved areas), and the land on
which they are located, existing within
the legal boundaries on the effective
date of this rule. However, the presence
of a road does not exclude an area of
100 km2 that contains all the PCEs from
being designated as critical habitat.
Areas in which the HII calculated over
1 km2 (0.4 mi2) is 20 or less are
considered an essential component of
the physical or biological feature
essential for the conservation of the
jaguar in the United States.
(35) Comment: Clarify what expansive
open space is.
Our response: Expansive open spaces
in the southwestern United States is
defined as areas of at least 100 km2 (32
to 38.6 mi2) in size which: (1) Provide
connectivity to Mexico; (2) contain
adequate levels of native prey species,
including deer and javelina, as well as
medium-sized prey such as coatis,
skunks, raccoons, or jackrabbits; (3)
include surface water sources available
within 20 km (12.4 mi) of each other; (4)
contain from greater than 1 to 50
percent canopy cover within Madrean
evergreen woodland, generally
recognized by a mixture of oak (Quercus
spp.), juniper (Juniperus spp.), and pine
(Pinus spp.) trees on the landscape, or
semidesert grassland vegetation
communities, usually characterized by
Pleuraphis mutica (tobosagrass) or
Bouteloua eriopoda (black grama) along
with other grasses; (5) are characterized
by intermediately, moderately, or highly
rugged terrain; (6) are below 2,000 m
(6,562 feet) in elevation; and (7) are
characterized by minimal to no human
population density, no major roads, or
no stable nighttime lighting over any 1km2 (0.4-mi2) area.
(36) Comment: Clarify habitat-related
terminology (i.e., habitat, suitable
habitat, high-quality habitat, essential
habitat, and critical habitat), especially
the relations of one term to another, and
maintain its use throughout.
Our response: The terms suitable
habitat, high-quality habitat, and
essential habitat are not used in the final
rule. Critical habitat is defined within
the proposed rule and this final rule.
Comments From States
(37) Comment: There is no habitat in
the United States that is critical to the
recovery of the jaguar or its survival as
a species.
Our response: See our response to
comment number 1 in Peer Reviewer
Comments above.
(38) Comment: Jaguar critical habitat
in the United States is not essential
because jaguars have persisted in the
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Northern Recovery Unit for the last 50
years with no evidence of breeding in
the United States during that time.
Our response: Evidence of breeding is
not required for an area to be designated
as critical habitat. See our response to
comment number 11 in Peer Reviewer
Comments above.
(39) Comment: Designation of critical
habitat is not due to new data but due
to litigation. The Service’s previous
1997 and 2006 not-prudent
determinations for designating critical
habitat for the jaguar were valid
decisions, but the 2010 prudent
determination to designate critical
habitat for the jaguar is not valid. The
court did not order the Service to
designate critical habitat, but rather to
determine if the physical and biological
features upon which jaguars depend
could be found in the United States and,
if so, were essential to the conservation
of the species.
Our response: The Service has
identified critical habitat for the jaguar
in accordance with the Act and its
implementing regulations. The Service
has determined that designation of
critical habitat for the jaguar is prudent
and determinable based on the best
scientific data available. Section
4(a)(3)(A) of the Act states that critical
habitat shall be designated for
endangered and threatened species to
the maximum extent prudent and
determinable. Therefore, we are
required to designate critical habitat for
the jaguar to fulfill our legal and
statutory obligations. See our responses
to comment numbers 1 and 2 in Peer
Review Comments above.
(40) Comment: There are no physical
or biological features to support jaguars,
and, therefore, there is no jaguar habitat
in New Mexico.
Our response: We have determined
that the physical or biological feature for
jaguar critical habitat and the associated
PCEs are present in the United States,
including New Mexico. To the greatest
extent possible, we have based jaguar
critical habitat on information compiled
and produced by the Jaguar Recovery
Team. The Jaguar Recovery Team
comprises jaguar experts, large-cat
experts, and stakeholders from the
United States and Mexico; therefore, we
consider that the work produced by the
team is the best available scientific and
commercial data, and that following the
team’s recommendations is the best
avenue to designating critical habitat
and conservation of the species.
(41) Comment: Habitat in New Mexico
and Arizona is marginal for the jaguar;
therefore, it is not essential.
Our response: Section 3(5)(A) of the
Act defines critical habitat as the
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specific areas within the geographical
area occupied by the species, at the time
it is listed on which are found those
physical or biological features essential
to the conservation of the species. As
described in the final rule, the recovery
function and value of critical habitat for
the jaguar within the United States is to
contribute to the species’ persistence
and, therefore, overall conservation by
providing areas to support some
individuals during dispersal
movements, by providing small patches
of habitat (perhaps in some cases with
a few resident jaguars), and as areas for
cyclic expansion and contraction of the
nearest core area and breeding
population in the Northwestern
Recovery Unit. The Northwestern
Recovery Unit is essential for the
conservation of the species; therefore,
areas within New Mexico containing the
physical and biological feature and
associated PCEs are essential to the
jaguar.
(42) Comment: The Service did not
use the correct listing time period to
determine occupancy. The commenter
is concerned that the Service used data
from 1982 to the present.
Our response: The Service’s
designation of occupied critical habitat
is in compliance with the Act.
Determining jaguar occupancy at the
time of listing is particularly difficult
given that: (1) Jaguars were rare on the
landscape in the United States at the
time of listing, making those individuals
that may have been present more
difficult to detect; (2) jaguars require
expansive open spaces for each
individual, thus reducing the likelihood
of detecting them; (3) jaguars are highly
mobile and inhabit rugged, remote
areas, thus we cannot be sure that a lack
of detection indicates that the species is
absent; and (4) no effort was made to
detect jaguars in the United States from
1972 to 1997. As discussed in the
proposed rule and this final rule, our
intention was to list the species
throughout its entire range at the time
it was added to the Endangered Species
Conservation Act in 1972; therefore, we
determine that 1972 is the date the
species was listed. We are including
areas in which reports of jaguar exist
during the 10 years prior to its listing as
occupied at the time of listing, meaning
we are considering records back to 1962.
Our rationale for including these
records is based on expert opinion
regarding the average lifespan of the
jaguar, the consensus being 10 years.
Therefore, we assume that areas that
would have been considered occupied
at the time of listing would have
included sightings 10 years prior to its
listing, as presumably these areas were
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still inhabited by jaguars when the
species was listed in 1972. Based on the
best available information related to
jaguar rarity, biology, and survey effort,
we determine that areas containing
undisputed Class I records from 1962
(10 years prior to listing, which is the
average lifespan of a jaguar) to the
present (September 11, 2013) may have
been occupied by jaguars at the time of
listing.
The second part of the Act’s
definition of critical habitat is defined
as specific areas outside the
geographical area occupied by the
species at the time it is listed, upon a
determination by the Secretary that such
areas are essential for the conservation
of the species. For these reasons, we
also analyzed whether or not critical
habitat areas are essential to the
conservation of the species. To the
extent that uncertainty exists regarding
our analysis of these data, we
acknowledge there is an alternative
explanation as to whether or not these
areas were occupied at the time the
jaguar was listed in 1972 (37 FR 6476,
March 30, 1972). The lack of jaguar
sightings at that time, as well as some
expert opinions cited in our July 22,
1997, clarifying rule (62 FR 39147) (for
example, Swank and Teer 1989), suggest
that jaguars in the United States had
declined to such an extent by that point
as to be effectively eliminated.
Therefore, an argument could be made
that no areas in the United States were
occupied by the species at the time it
was listed, or that only areas containing
undisputed Class I records from
between 1962 and 1982 were occupied.
For this reason, we also analyzed
whether or not these areas are essential
to the conservation of the species.
Through our analysis, we determine that
they are essential to the conservation of
the species for the following reasons: (1)
They have demonstrated recent (since
1996) occupancy by jaguars; (2) they
contain features that comprise jaguar
habitat; and (3) they contribute to the
species’ persistence in the United States
by allowing the normal demographic
function and possible range expansion
of the Northwestern Recovery Unit,
which is essential to the conservation of
the species (as discussed in the Jaguar
Recovery Planning in Relation to
Critical Habitat section, above).
Therefore, whether or not they were
occupied at the time of listing, we are
designating those areas as critical
habitat.
(43) Comment: The revised proposed
rule is based on highly inaccurate and
notoriously unreliable jaguar records
rather than the Class I records standard
that the Service established.
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Our response: In determining areas
that may be occupied by jaguars, we
used undisputed Class I records from
1962 through September 11, 2013. We
understand that some of the jaguar
records used in our proposed rule may
be disputed due to the possibility that
female scat was used as a scent lure in
some areas. Therefore, we removed all
sightings that may have been influenced
by female scat, which we determined to
be from October 3, 2008 (the date of
Emil McCain’s request for jaguar scat
from the Phoenix Zoo) through March 2,
2009 (the date Macho B was captured
and flown to the Phoenix Zoo). See
‘‘Class I Records’’ section above and
Table 1 above of this final rule for all
of the undisputed Class I jaguar records
used to determine occupancy.
In determining the physical and or
biological features essential to the jaguar
in the northwestern most part of its
range, we relied on information
compiled and produced by the Jaguar
Recovery Team, which we consider the
best available science. Our August 20,
2012 (77 FR 50214), proposed critical
habitat designation was based on a
preliminary report from the Jaguar
Recovery Team entitled Digital Mapping
in Support of Recovery Planning for the
Northern Jaguar (Sanderson and Fisher
2011, pp. 1–11), which described a
model for mapping jaguar habitat in the
northwestern-most part of the species
range. This 2011 report relied on 333
records of mapped jaguar observations
across habitat variables to determine a
categorization of the variables and
selection of categories to include in the
model.
These 333 records included cultural
evidence of jaguars (such as a jaguar
painting in a cave or a place name
including the word jaguar), sightings of
live animals or their sign, mortalities
(such as hunting events or jaguars killed
after a predation event), and
observations of possible jaguars (such as
a cat, spotted cat, or large quadruped
(four-footed animal)). This means that
these records included Class I
(observations with physical evidence for
verification, such as a skin, skull, or
photo), Class II (observations with
detailed information but no physical
evidence, such as a first-hand report
from a qualified individual), and Class
III (all other observations, such as
second- or third-hand reports of a
jaguar) sightings. We refined this model
further for proposed critical habitat in
the United States by analyzing the same
habitat variables, but we used only
undisputed Class I jaguar observations
in the United States from 1962 to mid2012 (which, at that time, was 130
observations). This resulted in slightly
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different ranges of habitat variables in
some cases (specifically for canopy
cover and the Human Influence Index)
for proposed critical habitat than the
range of habitat variables described in
the 2011 habitat modeling report
(Sanderson and Fisher 2011, pp. 1–11).
Since the publication of the proposed
rule, the Jaguar Recovery Team
continued to refine the jaguar habitat
model. By including jaguar observations
in addition to the 333 used in the
preliminary 2011 report (described in
Sanderson and Fisher 2013, pp. 3 and
7), developing a method to avoid
pseudo-replication (many locations of
the same animal in close proximity in
time and in space) from camera trap and
radiotelemetry studies (Sanderson and
Fisher 2013, p. 3), and applying criteria
and filters to the jaguar observation
database to further refine the habitat
variables included in the model
(Sanderson and Fisher 2013, pp. 3–5
and Appendix 2; note that this resulted
in splitting the proposed Northwestern
Recovery Unit into northern and
southern portions, each with a different
range selected for some habitat variables
(Sanderson and Fisher 2013, pp. 7 and
20)). This resulted in an updated habitat
model, which was included in a final
report we received in March 2013,
entitled Jaguar Habitat Modeling and
Database Update (Sanderson and Fisher
2013, entire).
In the updated jaguar habitat model,
Sanderson and Fisher (2013, pp. 3–5
and Appendix 2) utilized all jaguar
observations for which the description
of the location was sufficient to place it
with certainty within 10 km (6.2 mi) of
its actual location, and for which a date
to the nearest century was available.
This resulted in 453 observations (note
that the 452 included in Table 1.3 of
Sanderson and Fisher (2013, p. 13) is
incorrect) for inclusion in the updated
model including Class I, II, and III
sightings, but removed any sightings
recorded as cat, spotted cat, or large
quadruped (four-footed animal), as well
as locations that were described too
generally to accurately locate on a map
(e.g., southern Arizona). The reason for
selecting these observations to use in
the habitat model was because the
Jaguar Recovery Team came to the
consensus this was appropriate after
analyzing these jaguar observations
through three different evidence filters:
(1) Physical evidence only (photograph
or video, skull, hide, or carcass
measured; the equivalent of a very strict
interpretation of Class I records), (2)
physical and sign evidence (similar to
the previous, but also including tracks,
jaguar kills, and other physical
evidence; the equivalent of Class I
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records), and (3) all evidence types
(similar to the previous, but also
including first, second, and third-hand
reports of jaguars, cultural artifacts,
stories, and representations of jaguars,
and other types of evidence; the
equivalent of Class I, II, and III records;
see Table 1.4 of Sanderson and Fisher
(2013, p. 14) for a complete list of
evidence types). Using these filters,
Sanderson and Fisher (2013, pp. 3–5
and Appendix 2) analyzed the
frequency that these 453 jaguar
observations occurred across the range
of habitat variables used in the model.
Upon viewing this analysis, the Jaguar
Recovery Team determined that the
overall pattern of frequencies of these
observations relative to the habitat
variables were similar, meaning that
regardless of the type of evidence used
(physical evidence only, physical and
sign evidence, or all evidence), jaguar
observations in relation to the habitat
variables occurred with the same
frequency. The Jaguar Recovery Team
hypothesized that this is because jaguars
are habitat generalists, with jaguar
habitat generally defined as cover, prey,
and limited human persecution within
the proposed Northwestern Recovery
Unit. The Jaguar Recovery Team,
therefore, decided to use all types of
evidence, because that resulted in the
largest number of observations (453;
note that the 452 included in Table 1.3
of Sanderson and Fisher (2013, p. 13) is
incorrect) for inclusion in the updated
model.
To further analyze the frequency of
jaguar observations relative to habitat
variables, the Service analyzed a subset
of recent, highly accurate jaguar
locations from Mexico and the United
States to determine if filtering the
observations in this way would
influence the frequency that these
observations occurred across the range
of habitat variables. From the 453
observations used in the updated habitat
model (Sanderson and Fisher 2013,
entire), we selected records that met the
following criteria: (1) They were part of
a scientific study (and therefore utilized
Global Positioning System (GPS) or
radiotelemetry receivers); (2) they were
not disputed due to the possible use of
scent lure; and (3) they were from May
2000 forward (the time that public GPS
receivers became more accurate because
the intentional degradation of public
GPS signals implemented for national
security reasons was discontinued; see
https://www.gps.gov/systems/gps/
modernization/sa/for more
information). Additionally, the same
criteria to avoid pseudo-replication
(Sanderson and Fisher 2013, p. 3) were
applied to this subset of data. This
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resulted in 333 observations, 44 of
which are located in the United States
(note that the reason the number of
observations in the United States in this
dataset is less than the number of
observations used to determine critical
habitat in our proposed rule is because
of the methods the Jaguar Recovery
Team developed to avoid pseudoreplication from camera trap and
radiotelemetry studies; these methods
were not applied to the dataset we used
for our August 20, 2012, proposed rule).
We also separated jaguar records from
north to south in the same manner that
Sanderson and Fisher (2013, p. 20) did
for the tree cover and HII habitat
variables.
The results of our additional analysis
indicate that the overall pattern in
frequency of jaguar observations using
these highly accurate locations relative
to the habitat variables is similar to the
patterns observed using the entire data
set used for the updated habitat model
(Sanderson and Fisher 2013, entire). For
example, 95 percent of these highly
accurate locations are found in greater
than 1 to 50 percent tree cover (for all
jaguar observations except those in the
southernmost part of the proposed
Northwestern Recovery Unit); 97
percent correspond to a HII of less than
20 (for all jaguar observations except
those in the southernmost part of the
proposed Northwestern Recovery Unit);
99 percent are within 10 km (6.2 mi) of
water; 75 percent are in intermediately,
moderately, or highly rugged terrain;
and 98 percent are found at less than
2,000 m (6,562 ft) in elevation.
Therefore, for the reasons stated above,
we determine that the Sanderson and
Fisher (2013, entire) updated habitat
model is not unreliable because it
incorporates jaguar observations for
which there is no physical evidence,
and that the information from the Jaguar
Recovery Team is the best available
science regarding the habitat
characteristics that are essential to the
jaguar in the northwestern-most part of
its range.
In the revised proposed rule and this
final rule, we did not further refine the
updated habitat model by using only
Class I jaguar locations specific to the
United States like we did in our analysis
for the proposed rule, because we
determined that the ranges of habitat
variables selected by the Jaguar
Recovery Team in the northern part of
the proposed Northwestern Recovery
Unit adequately represent available
habitat for jaguars in the United States.
We used the same data layers and
ranges of habitat variables as used in the
updated jaguar habitat model
(Sanderson and Fisher 2013, entire) to
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determine the PCEs of jaguar critical
habitat in the United States. However,
in two cases we substituted data layers
for variables for which more detailed,
higher-resolution data were available for
the United States: (1) For water sources
we substituted the United States
Geological Services (USGS) National
Hydrography Dataset (NHD) (available
at https://nhd.usgs.gov/data.html) for
USGS HydroSHEDS, and (2) for
vegetation communities we substituted
Brown and Lowe (1980) Biotic
Communities of the Southwest
(available at https://azconservation.org/
downloads/biotic_communities_of_the_
southwest_gis_data) for World Wildlife
Fund Ecoregions (note that the World
Wildlife Fund Ecoregions habitat type
representing the Sky Islands region in
the Jaguar Recovery Team updated
model was Sierra Madre Occidental
pine-oak forests, for which we
substituted the classifications of
Madrean evergreen woodland and
semidesert grassland from Biotic
Communities of the Southwest to
represent the Sky Islands region). The
other data sources in the updated model
include: (1) MODerate-resolution
Imaging Spectroradiometer (MODIS)
Tree cover for canopy cover (continuous
field data) (available at https://
glcf.umd.edu/data/vcf/); (2) Advanced
Spaceborne Thermal Emission and
Reflection Radiometer (ASTER DEM) for
ruggedness and elevation (available at
https://wist.echo.nasa.gov); and (3)
Human Influence Index (HII) for human
influence (available at https://
sedac.ciesin.columbia.edu/wildareas/)
(to exclude cities, agricultural and
developed rural areas). Sanderson and
Fisher (2013, entire) did not use a data
layer for prey, nor did we. See our
response to comment number 20 in Peer
Reviewers Comments. See the Criteria
Used to Identify Critical Habitat section
of the final rule for more information. In
summary, we used only Class I
undisputed sightings to define the
occupied area, but after the sensitivity
analysis described above we determined
it was acceptable to use the habitat
analysis based on a larger category of
sightings.
(44) Comment: There is no long-term
presence, sustained use, or reproduction
of jaguars in the United States.
Our response: The Act does not
require a breeding or reproducing
population of jaguars, long-term
presence of jaguars, or sustained use by
jaguars for the purposes of designating
critical habitat. See our response to
comment number 11 in the Peer
Reviewer Comments above.
(45) Comment: The Service states in
the proposed rule that they designate
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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. The area
currently occupied by the jaguar outside
the United States is adequate for the
conservation of the jaguar.
Our response: See our response to
comment number 1 in Peer Reviewers
Comments above.
(46) Comment: The Service’s critical
habitat analysis and designation are
scientifically invalid and incomplete in
nature. Without an adequate,
quantitative, science-based
understanding of all components of
jaguar habitat requirements, critical
habitat cannot and should not be
designated. The data are insufficient to
understand jaguar habitat.
Our response: See our response to
comment number 16 in Peer Review
Comments above.
(47) Comment: The Service has
accurately described habitat, but it does
not mean these areas are essential.
Our response: The Service has
designated critical habitat in
compliance with the Act. Section
3(5)(A) states that the Service shall
designate geographic areas occupied by
the species at the time it was listed if
they contain physical or biological
features, which are essential to the
conservation of the species, and 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. In the proposed rule and this
final rule we have determined that areas
in the United States occupied by the
species at the time it was listed contain
the physical or biological feature for
jaguar critical habitat and the associated
PCEs are present. We identify
connectivity between expansive open
spaces in the United States and Mexico
as an essential component of the
physical or biological feature essential
for the conservation of the jaguar in the
United States. Providing connectivity
from the United States to Mexico is a
key element to maintaining those
processes. The ability for jaguars in the
proposed Northwestern Recovery Unit
to utilize physical and biological habitat
features in the borderlands region is
ecologically important to the recovery of
the species; therefore, maintaining
connectivity to Mexico is essential to
the conservation of the jaguar.
Consequently, we have also determined
that areas in the United States outside
the geographical area that may be
occupied by the species at the time it is
listed are essential to the conservation
of the jaguar by providing connectivity
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to Mexico (PCE 1) in areas containing
low human influence and impact, and
either or both vegetative cover or rugged
terrain. It is our intent that the
designation of critical habitat will
protect the functional integrity of the
features essential for jaguar life-history
requirements for this purpose into the
future.
(48) Comment: There are no PCEs in
Arizona.
Our response: The best available
scientific data indicates PCEs are
present in Arizona. To the greatest
extent possible, we have based jaguar
critical habitat on information compiled
and produced by the Jaguar Recovery
Team. The Jaguar Recovery Team
comprises jaguar experts, large-cat
experts, and stakeholders from the
United States and Mexico; therefore, we
consider that the work produced by the
team is the best available scientific and
commercial data, and that following the
team’s recommendations is the best
avenue to conservation of the species
and by extension designating critical
habitat. We have determined that the
essential physical or biological feature
for jaguar critical habitat and the
associated PCEs are present in the
United States, and that these areas
contribute to the species’ persistence
and, therefore, overall conservation by
providing areas to support some
individuals during dispersal
movements, by providing small patches
of habitat (perhaps in some cases with
a few resident jaguars), and as areas for
cyclic expansion and contraction of the
nearest core area and breeding
population in the Northwestern
Recovery Unit.
(49) Comment: The Arizona Game and
Fish Department’s Jaguar Conservation
Assessment is the best science.
Our response: The Arizona Game and
Fish Department’s Jaguar Conservation
Assessment provides valuable
information regarding the status of the
jaguar in Arizona, New Mexico, and
northern Mexico. The Service
considered and utilized this information
in this final rule. See Johnson et al.
(2011) as referenced in the final rule.
(50) Comment: The Service did not
use the best available science because
we utilized McCain and Childs (2008),
in which female scat was used as scent
lure.
Our response: The Service used the
best available science to determine
critical habitat for the jaguar. We
understand that some of the jaguar
records used in our proposed rule may
be disputed due to the possibility that
female scat was used as a scent lure in
some areas. Therefore, we removed all
sightings that may have been influenced
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by female scat, which we determined to
be from October 3, 2008 (the date of
Emil McCain’s request for jaguar scat
from the Phoenix Zoo) through March 2,
2009 (the date Macho B was captured
and flown to the Phoenix Zoo). See our
response to comment number 43 in
Comments from States above.
(51) Comment: The designation of
critical habitat is because the Service is
trying to avoid further litigation.
Our response: See our response to
comment numbers 1 and 2 in the Peer
Reviewer Comments above.
(52) Comment: The Service should
not designate critical habitat because a
PVA demonstrates that establishing a
population of jaguars in the United
States would destabilize populations in
Sonora.
Our response: We disagree that
designating critical habitat will
destabilize the nearest breeding
population in Mexico, and we disagree
that habitat in the United States is a
population sink. The purpose of
designating critical habitat in the United
States is not to create a self-sustaining,
breeding population north of the U.S.Mexico border, but to provide small
patches of habitat (perhaps in some
cases with a few resident jaguars) to
allow for the cyclical expansion and
contraction of the nearest core area in
Mexico. See our response to comment
number 18 in the Peer Reviewer
Comments above.
(53) Comment: Given the heavy
reliance that the Service places on the
results of PVA models such as those
presented by Miller (2013) to support
the designation of critical habitat, we
request that the data and complete
modeling information be provided to
the public such that the assumptions
and specifics of these analyses can be
properly and transparently analyzed.
Our response: The Service did not use
the PVA to designate critical habitat for
the jaguar. The Service originally
planned to use the PVA in designating
critical habitat for the jaguar; however,
we realized that the habitat models
(Sanderson and Fisher 2011, pp. 1–11;
2013, entire) created for the PHVA and
PVA processes were the components
that could best inform critical habitat for
the jaguar in the United States. During
the development of the Recovery
Outline and as a part of the recovery
planning process, the Jaguar Recovery
Team worked with the Wildlife
Conservation Society to create a jaguar
habitat model (Sanderson and Fisher
2011, pp. 1–11; 2013, entire), and the
Conservation Breeding Specialist Group
of the Species Survival Commission/
International Union for Conservation of
Nature to conduct a PVA and PHVA for
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the jaguar. We anticipated that these
analyses would assist us in determining
those recovery actions that would be
most effective for achieving a viable
jaguar population for the Northwestern
Recovery Unit (not the United States), as
well as provide information relevant to
determining critical habitat for the
jaguar. In both analyses, the focus was
on the habitat and jaguar population in
the Northwestern Recovery Unit.
However, the PHVA and PVA
themselves, while informative for
recovery-planning purposes, did not
contribute to the determination of
critical habitat.
Critical habitat for the jaguar focuses
on the physical or biological features
available in the United States that are
essential to the conservation of the
species; it is not based on an overall
number of jaguars, nor is it required to
be, whereas the PVA is used to
determine a minimum viable
population. The purpose of critical
habitat for the jaguar is to provide areas
to support some individuals during
dispersal movements, by providing
small patches of habitat (perhaps in
some cases with a few resident jaguars),
and as areas for cyclic expansion and
contraction of the nearest core area and
breeding population in the
Northwestern Recovery Unit, which
contributes to the overall recovery of the
jaguar. Therefore, the Service relied on
habitat features as described in the
preliminary report entitled Digital
Mapping in Support of Recovery
Planning for the Northern Jaguar
(Sanderson and Fisher 2011, pp. 1–11)
for our August 20, 2012, proposed rule
(77 FR 50214), and a later report entitled
Jaguar Habitat Modeling and Database
Update (Sanderson and Fisher 2013,
entire) for our July 1, 2013, revised
proposed rule (78 FR 39237) and this
final rule. Please see the Criteria Used
to Identify Critical Habitat section of the
final rule above and our response to
comment number 18 in the Peer
Reviewer Comments above for further
information about how we incorporated
these reports into our determination.
(54) Comment: The Service should
not use the PVA (Miller 2013) because
it relies on dubious data produced by
McCain and Childs and other
undisclosed data, the data has
undergone 13 iterations of analysis, it is
fatally flawed by substitution of
untested hypotheses for data, the
authors never cited any study of the
prey base of the jaguar, it does not
provide the necessary details to
replicate the results of Miller (2013), it
contradicts the treatment of parameter
assumptions by the Service, it lacks
sensitivity analyses to inform the
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consequences of model assumptions,
and natural and human-caused
catastrophes are not included. Miller
(2013) inappropriately interprets the
results of its reported PVA models, and
the Service has implicitly accepted the
assumptions of Miller (2013) that
dispersal costs and drought have no
effect on jaguar populations.
Our response: See our response to
comment number 53 in Comments from
States above.
(55) Comment: Jaguar habitat cannot
be determined without a full
understanding of the jaguar’s prey
requirements and the availability of
prey species within a habitat location to
meet those requirements.
Our response: See our response to
comment number 20 in the Peer
Reviewer Comments above.
(56) Comment: The Service did not
use data regarding the distribution of
native prey in designating critical
habitat. The Service has not presented
and has refused to consider any relevant
scientific data regarding the prey
component of habitat for the jaguar
within the proposed critical habitat
boundaries.
Our response: We have relied on the
best available scientific information that
is readily available from the Arizona
Game and Fish Department (Hunt
Arizona 2012 Edition, available at:
https://www.azgfd.gov/regs/
HuntArizona2012.pdf) and the New
Mexico Department of Game and Fish
(Harvest Information, available at:
https://www.wildlife.state.nm.us/
recreation/hunting/). The Service did
not receive additional data on prey
abundance sufficient to include in
critical habitat modeling efforts during
any of the three comment periods. See
our response to comment number 20 in
the Peer Reviewer Comments above.
(57) Comment: Without an adequate,
quantitative, science-based
understanding of year-round water
availability, critical habitat should not
be designated.
Our response: We have determined
that waters within 20 km (12.4 mi) of
each other are available within the
designated critical habitat. We consider
the best available information for water
sources in the United States as that
produced by the USGS through their
National Hydrography Dataset (NHD)
(see our response to comment number
43 for a Web site link to the GIS data
layer). For water sources, Sanderson and
Fisher (2013, p. 6) utilized USGS
HydroSHEDS in their updated model
because this data layer covers both the
United States and Mexico. In our
modeling analysis, we substituted the
USGS NHD because this data layer
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provides higher-resolution data within
the United States. The USGS NHD data
layer indicates that there are no areas
within critical habitat lacking waters
within 20 km (12.4 mi) of each other.
We understand that the availability of
water across the landscape during the
year is variable. Regardless, according to
the best available scientific data, it
appears that there is sufficient water
available for jaguars within the final
critical habitat designation.
(58) Comment: The Service fails to
account for ecological changes as the
result of climate change or climatebased factors that would eliminate
proposed habitat. If the predicted
climate change for the Southwest is
hotter and drier, then the designated
critical habitat would not have the
capability to support jaguars; therefore,
the Service should not designate critical
habitat.
Our response: The Service recognizes
that some models predict dramatic
changes in Southwestern vegetation
communities as a result of climate
change (Weiss and Overpeck 2005, p.
2074; Archer and Predick 2008, p. 24)
and the projections presented for the
Southwest predict warmer, drier, and
more drought-like conditions (Hoerling
and Eischeid 2007, p. 19; Seager et al.
2007, p. 1181). Further, the Service
acknowledges in the proposed rule and
this final rule that climate change has
the potential to adversely affect the
jaguar within the next 50 to 100 years
(Jaguar Recovery Team 2012, p. 32). The
Service recognizes in the proposed rule
and this final rule that the impact of
future drought, which may be long-term
and severe (Seager et al. 2007, pp. 1183–
1184; Archer and Predick 2008, entire),
may affect jaguar habitat in the U.S.Mexico borderlands area, but the
information currently available on the
effects of global climate change and
increasing temperatures does not make
sufficiently precise estimates of the
location and magnitude of the effects.
We do not know whether the changes
that have already occurred have affected
jaguar populations or distribution, nor
can we predict how the species will
adapt to or be affected by the type and
degree of climate changes forecast.
Consequently, because the specific
impacts of climate change on jaguar
habitats remains uncertain at this time,
we did not recommend any areas be
designated as critical habitat or not be
designated as critical habitat specifically
to account for the negative effects of
climate change.
(59) Comment: The Service should
not consider climate change models
because they cannot be downscaled to
the level of the jaguar critical habitat.
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Our response: The Service recognizes
that the current climate change models
are not downscaled to a local level.
Projections of climate change globally
and for broad regions through the 21st
century are based on the results of
modeling efforts using state-of-the-art
Atmosphere-Ocean General Circulation
Models and various greenhouse gas
emissions scenarios (Meehl et al. 2007,
p. 753; Randall et al. 2007, pp. 596–
599). As is the case with all models,
uncertainty is associated with the
projections due to assumptions used
and other features of the models.
However, despite differences in
assumptions and other parameters used
in climate change models, the overall
surface air temperature trajectory is one
of increased warming in comparison to
current conditions (Meehl et al. 2007, p.
762; Prinn et al. 2011, p. 527). Among
the IPCC’s projections for the 21st
century are the following: (1) Warmer
and more frequent hot days and nights
over most of the earth’s land areas are
virtually certain; (2) increased frequency
of warm spells and heat waves over
most land areas is very likely, and the
frequency of heavy precipitation events
will increase over most areas; and (3)
increases will likely occur in the
incidence of extreme high sea level
(excludes tsunamis), intense tropical
cyclone activity, and the area affected
by droughts in various regions of the
world (IPCC 2007b, p. 8).
Climate simulations of the Palmer
Drought Severity Index (a calculation of
the cumulative effects of precipitation
and temperature on surface moisture
balance) for the Southwest for the
periods of 2006 to 2030 and 2035 to
2060 show an increase in drought
severity with surface warming.
Additionally, drought still increases
even during wetter simulations because
of the effect of heat-related moisture loss
through evaporation and
evapotranspiration (Hoerling and
Eischeid 2007, p. 19). Annual mean
precipitation is likely to decrease in the
Southwest, as is the length of snow
season and snow depth (IPCC 2007b, p.
887). Most models project a widespread
decrease in snow depth in the Rocky
Mountains and earlier snowmelt (IPCC
2007b, p. 891). The Service will
continue to follow and assess the
science behind climate change and
update our summaries as new
information is published.
(60) Comment: There are no areas
requiring special management.
Our response: Section 3(5)(A)(i) of the
Act states that the physical and
biological features essential to the
conservation of the species ‘‘may’’
require special management
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considerations or protections. The Act
does not state that those features must
require such management or protection.
Nonetheless, special management
considerations of the physical and
biological feature essential to the
conservation of the jaguar may be
needed to alleviate the effects on jaguar
habitat of road, power line, and pipeline
projects; human developments; mining
operations; and ground-based military
activities. Future projects should avoid
(to the maximum extent possible) areas
identified as meeting the definition of
critical habitat for jaguars, and if
unavoidable, should be constructed or
carried out to minimize habitat effects.
(61) Comment: The designation of
jaguar critical habitat will limit game
management activities and recreational
activities, such as hunting, and
litigation will be used to impact game
activities.
Our response: 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 nonFederal landowners.
In our economic analysis we
considered all of the potential
additional conservation efforts or
restrictions that could occur as the
result of the addition of critical habitat.
We found the incremental effects of the
critical habitat designation to be
relatively minor, as additional measures
beyond those already in place are
unlikely. We found that the designation
of critical habitat for the jaguar would
not have direct impacts on the
environment as designation is not
expected to impose land use restrictions
or prohibit land use activities.
Further, the species is already present
in the United States. We are not
proposing to reintroduce or supplement
the existing jaguars in the United States.
The designation of critical habitat does
not translate into an increase of jaguars
in the United States. As discussed in the
proposed rule and this final rule, the
purpose of designating critical habitat in
the United States is to provide areas for
transient jaguars (with possibly a few
residents) to support the nearest
breeding area to the south in Mexico,
allowing this population to expand and
contract, and, ultimately, recover. It is
our intent that the designation of critical
habitat will protect the functional
integrity of the features essential for
jaguar life-history requirements for this
purpose into the future.
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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. Any of these or other
actions on Federal lands that may affect
the jaguar or its designated critical
habitat would be required to consult
with the Service to ensure those actions
are not adversely modifying its critical
habitat. However, consultation is
already required in occupied areas
because the jaguar is listed as an
endangered species. All projects with a
Federal nexus proposed within jaguar
critical habitat in the United States will
be evaluated on a case-by-case basis
with respect to section 7 of the Act.
(62) Comment: The Service should
provide maps delineating the PCEs.
Our response: 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.regulations.gov at Docket
No. FWS–R2–ES–2012–0042 and at the
Arizona Ecological Services Fish and
Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). Enhanced color
maps and site-specific boundaries of the
critical habitat in both GIS and Google
Earth format can be viewed and
downloaded from https://www.fws.gov/
southwest/es/arizona.
(63) Comment: The Service did not
provide the data or sources used in the
habitat model.
Our response: As stated in the
proposed rule and this final rule below
are the PCEs and data sources. PCE 1:
Provide connectivity to Mexico—If an
occupied area was not connected to
Mexico, we selected and added areas
containing low human influence and
impact (PCE 7) and either or both
vegetative cover (PCE 4) or rugged
terrain (PCE 5) to connect these areas
directly to Mexico or to another
occupied area providing connectivity to
Mexico. Below are the data sources and
Web site links to all the GIS data layers
that we used in evaluating PCEs in this
final rule.
PCE 2: Contain adequate levels of
native prey species, including deer and
javelina, as well as medium-sized prey
such as coatis, skunks, raccoons, or
jackrabbits—Comprehensive, consistent
data regarding prey distribution across
Arizona and New Mexico is lacking.
Therefore, we relied on the best
information that is readily available
from the Arizona Game and Fish
Department (Hunt Arizona 2012
Edition, available at: https://
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www.azgfd.gov/regs/
HuntArizona2012.pdf) and the New
Mexico Department of Game and Fish
(Harvest Information, available at:
https://www.wildlife.state.nm.us/
recreation/hunting/). Using this
information, we determined that whitetailed deer and javelina (the preferred
prey of the jaguar in the
northwesternmost part of its range) have
been present in each critical habitat unit
(described in Final Critical Habitat
Designation, above) for at least 50 years
in Arizona, and have been successfully
hunted in each hunt unit overlapping
jaguar critical habitat for the same
period of time (Game Management Units
30A, 34A, 34B, 35A, 35B, 36A, 36B, and
36C). Historical harvest information
from New Mexico is not as readily
available; however, based on the most
recent harvest information, white-tailed
deer and javelina are available in Unit
5 of jaguar critical habitat (Game
Management Unit 27), and are likely
available in Unit 6 (both described in
Final Critical Habitat Designation,
above) of jaguar critical habitat (Game
Management Unit 26; we can determine
that javelina have been successfully
harvested in this Game Management
Unit, but this particular unit lumps all
deer together, so we are unable to
distinguish hunt success between mule
deer and white-tailed deer). Therefore,
while we were unable to map prey
distribution within Arizona and New
Mexico, we believe adequate levels of
prey are available, and have been
available for at least 50 years in Arizona.
PCE 3: Include surface water sources
available within 20 km (12.4 mi) of each
other—For water sources we substituted
the USGS National Hydrography Dataset
(NHD) (available at https://nhd.usgs.gov/
data.html) for the HydroSHEDS data
layer used in the jaguar habitat model
developed by the Jaguar Recovery Team
(Sanderson and Fisher 2013, Table 1, p.
6).
PCE 4: Contain from greater than 1 to
50 percent canopy cover within
Madrean evergreen woodland, generally
recognized by a mixture of oak, juniper,
and pine trees on the landscape, or
semidesert grassland vegetation
communities, usually characterized by
Pleuraphis mutica (tobosagrass) or
Bouteloua eriopoda (black grama) along
with other grasses—For canopy cover
we used the same data layer as used in
the jaguar habitat model developed by
the Jaguar Recovery Team (Sanderson
and Fisher 2013, Table 1, p. 6), called
MODerate-resolution Imaging
Spectroradiometer (MODIS) Tree cover
(continuous field data; available at
https://glcf.umd.edu/data/vcf/). For
vegetation communities we substituted
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Brown and Lowe (1980) Biotic
Communities of the Southwest
(available at https://azconservation.org/
downloads/biotic_communities_of_the_
southwest_gis_data) for the World
Wildlife Fund Ecoregions data layer
used in the jaguar habitat model
developed by the Jaguar Recovery Team
(Sanderson and Fisher 2013, Table 1, p.
6).
PCE 5: Are characterized by
intermediately, moderately, or highly
rugged terrain—For terrain ruggedness
we used the same data layer as used in
the jaguar habitat model developed by
the Jaguar Recovery Team (Sanderson
and Fisher 2013, Table 1, p. 6), called
Advanced Spaceborne Thermal
Emission and Reflection Radiometer
Digital Elevation Model (ASTER DEM)
(available at https://lpdaac.usgs.gov/
products/) and followed the
methodology described in Hatten et al.
(2005, p. 1026).
PCE 6: Are below 2,000 m (6,562 feet)
in elevation—For elevation we used the
Advanced Spaceborne Thermal
Emission and Reflection Radiometer
Digital Elevation Model (ASTER DEM)
data layer (available at https://
lpdaac.usgs.gov/products/), which is a
standard digital layer used to describe
elevation.
PCE 7: Are characterized by minimal
to no human population density, no
major roads, or no stable nighttime
lighting over any 1 km2 (0.4 mi2) area—
For human influence (to exclude cities,
agricultural, and developed rural areas)
we used the same data layer as used in
the jaguar habitat model developed by
the Jaguar Recovery Team (Sanderson
and Fisher 2013, Table 1, p. 6), called
the HII (available at https://sedac.ciesin.
columbia.edu/wildareas/).
(64) Comment: Arizona and New
Mexico should be withdrawn or
excluded from critical habitat because
the distribution of the jaguar within the
United States represents less than 1
percent of the total occupied range and
the jaguar rarely (if ever) contained a
breeding population even in historical
times.
Our response: The Service is not
withdrawing Arizona or New Mexico
from critical habitat because the Service
is required under the Act to designate
critical habitat to the maximum extent
prudent and determinable. See our
response to comment 1 in the Peer
Reviewer Comments above.
Further, the Service is not excluding
Arizona or New Mexico from critical
habitat because 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
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economic impact, national security
impact, and any other relevant impact of
specifying any particular area as critical
habitat. Areas that were considered for
exclusion were locations where the
benefits of exclusion may outweigh the
benefits of inclusion as critical habitat
(see Exclusion section above). The
Secretary may exclude an area from
critical habitat if she determines that the
benefits of such exclusion outweigh the
benefits of specifying such area as part
of the critical habitat, unless she
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. When
identifying the benefits of inclusion for
an area, we consider the additional
regulatory benefits that area would
receive from the protection from adverse
modification or destruction as a result of
actions with a Federal nexus; the
educational benefits of mapping
essential habitat for recovery of the
listed species; and any benefits that may
result from a designation due to State or
Federal laws that may apply to critical
habitat. In the case of the jaguar, the
benefits of critical habitat include
public awareness of jaguar presence and
the importance of habitat protection,
and in cases where a Federal nexus
exists, increased habitat protection for
the jaguar due to the protection from
adverse modification or destruction of
critical habitat. See the Application of
Section 4(b)(2) of the Act section of this
final rule.
(65) Comment: The area on the edge
of Unit 3, to the north of the Santa Rita
Mountains near Houghton Road, should
be excluded from critical habitat. This
area is near an existing residential
development and planned for
development.
Our response: Designation of critical
habitat has been done in accordance
with statutory requirements. The area
on the edge of Unit 3 includes all the
PCEs identified as the physical or
biological features that provide for the
jaguar’s life-history processes and are
essential to the conservation of the
species, including being characterized
by minimal to no human population
density, no major roads, or no stable
nighttime lighting over any 1-km2 (0.4mi2) area. Development actions funded,
authorized, or carried out by a Federal
agency must enter into consultation
with the Service if the Federal action
may affect critical habitat. Please see our
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response to comment number 64 in the
Comments from States above for
additional information on exclusions
under the Act. In the case of the jaguar
where a Federal nexus exists, the
benefits of critical habitat include
increased habitat protection for the
jaguar due to the protection from
adverse modification or destruction of
critical habitat. See the Application of
Section 4(b)(2) of the Act for a full
discussion of the areas we have
determined are appropriate to exclude
from the final designation of critical
habitat.
(66) Comment: Federal lands should
be excluded from critical habitat
designation.
Our response: The Service is not
excluding Federal lands from critical
habitat designation. Please see our
responses to comment numbers 64 and
65 in the Comments from States above
for additional information on exclusions
under the Act. There is additional
benefit to including the federally owned
lands in the designation of critical
habitat because of the Federal agencies’
obligation to consult under section 7 of
the Act on activities that may adversely
modify critical habitat. Consequently,
we have not determined that the
benefits of excluding these areas
outweigh the benefits of including these
areas. Please see the Application of
Section 4(b)(2) of the Act section for a
full discussion of the areas we have
determined are appropriate to exclude
from the final designation of critical
habitat.
(67) Comment: The benefits of not
designating critical habitat outweigh the
benefits of designating critical habitat
because the designation of critical
habitat will result in denial of access to
lands for jaguar conservation and
research, fewer observations reported,
and an increase in illegal activities
undermining recovery of threatened and
endangered species.
Our response: 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 nonFederal landowners.
Designated 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. Any of
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these or other actions on Federal lands
that may affect the jaguar or its
designated critical habitat would be
required to consult with the Service to
ensure those actions are not adversely
modifying its critical habitat. However,
consultation is already required because
the jaguar is listed as endangered. All
projects with a Federal nexus proposed
within jaguar critical habitat in the
United States will be evaluated on a
case-by-case basis with respect to
section 7 of the Act. The designation of
critical habitat does not prohibit
humans and legal activities. Legal
activities that have a Federal nexus (in
that they occur on Federal lands, require
a Federal permit, or receive Federal
funds) will be evaluated on a case-bycase basis with respect to section 7
(consultation with the Service) of the
Act to ensure they do not destroy or
adversely modify designated critical
habitat.
We have been consulting with Federal
agencies on their effects to the jaguar on
Federal lands, or on projects for which
a Federal nexus exists, since the species
was listed in 1972. Since jaguars were
listed, we have had no projects on
privately owned lands that had a
Federal nexus to trigger formal
consultation under section 7 of the Act.
Therefore, the Service does not
anticipate a decrease in authorized
access to lands for conservation and
research or a decrease in observations
reported. Further, illegal activity is not
expected to increase with the
designation of critical habitat, because
designated critical habitat does not
prevent legal activities from occurring
within its boundaries, including law
enforcement related to illegal activities
(border control issues).
(68) Comment: The analysis of
significance of the critical habitat
designation within the draft
environmental assessment is
inadequate, and the Service should
prepare a full environmental impact
statement (EIS). We also received
several similar comments from the
members of the public.
Our response: We analyzed the
potential impacts of critical habitat
designation on the following resources
and resource management types: Land
use and management; fish, wildlife, and
plants (including endangered and
threatened species); fire management;
water resources (including water
management projects and groundwater
pumping); livestock grazing;
construction and development
(including roads, bridges, dams,
infrastructure, residential); tribal trust
resources; soils; recreation and hunting;
socioeconomics; environmental justice;
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mining and minerals extraction; and
National security. We found that the
designation of critical habitat for the
jaguar would not have direct impacts on
the environment as designation is not
expected to impose land use restrictions
or prohibit land use activities. Our
environmental assessment found that
the impacts of the proposed critical
habitat designation would be minor and
not rise to a significant level. An EIS is
required only if we find that the
proposed action is expected to have a
significant impact on the human
environment. The completed studies,
evaluations, and public outreach
conducted by the Service have not
identified impacts resulting from the
proposed designation of critical habitat
that are clearly significant. Based on our
analysis and comments received from
the public, we prepared a final EA and
made a Finding of No Significant Impact
(FONSI), negating the need for
preparation of an EIS. We have
determined our environmental
assessment is consistent with the spirit
and intent of NEPA. The final
environmental assessment, FONSI, and
final economic analysis provide our
rationale for determining that critical
habitat designation would not have a
significant effect on the human
environment. Those documents are
available for public review (see
ADDRESSES section).
(69) Comment: A complete economic
analysis should accompany any
proposed Federal action, which would
allow stakeholders the opportunity to
review, analyze, and comment on the
economic consequences of this critical
habitat designation.
Our response: The Service published
our proposed rule to designate critical
habitat for the jaguar August 20, 2012.
At that time our current regulations at
50 CFR 424.19 stated: ‘‘The Secretary
shall identify any significant activities
that would either affect an area
considered for designation as critical
habitat or be likely to be affected by the
designation, and shall, after proposing
designation of such an area, consider
the probable economic and other
impacts of the designation upon
proposed or ongoing activities.’’ The
Service interprets ‘after proposing’ to
mean after publication of the proposed
critical habitat rule. The President’s
Feburary 28, 2012, memorandum
directed the Service to take prompt
steps to revise our regulations to
provide that the economic analysis be
completed and made available for
public comment at the time of
publication of a proposed rule to
designate critical habitat. The Service
finalized revisions to these regulations
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on October 30, 2013, which was after we
had published the proposed rule to
designate critical habitat for the jaguar.
Consequently, when we published the
jaguar critical habitat rule, we followed
the regulations that were current at the
time.
(70) Comment: The draft economic
analysis does not consider economic
impacts resulting from employmentrelated uses of Federal land, such as
mining and cattle grazing.
Our response: The draft economic
analysis addresses impacts to mining
operations in Chapter 5 and to livestock
grazing in Chapter 3 (grazing on Federal
lands) and Chapter 9 (grazing on State
and private lands). We assume that
economic activities occurring on
Federal lands will have a Federal nexus
for section 7 consultation through the
Federal land manager. For activities
such as livestock grazing that occur on
State or private lands, we consider the
potential for projects to involve Federal
permits or funding, such as funding
from NRCS. In these cases, we forecast
section 7 consultations. We also
consider the potential for indirect
effects, such as the withdrawal of NRCS
applications resulting from the stigma of
critical habitat designation.
(71) Comment: The designation of
critical habitat could have substantial
economic impacts on local economies
and employment by threatening Federal
approval of the Rosemont Mine.
Our response: In October 2013, the
Service completed a biological opinion
and conference opinion with the U.S.
Forest Service for the Rosemont Mine.
The biological opinion concluded that
the Rosemont Mine would not
constitute jeopardy to the jaguar. A
conference opinion was also completed
to address the impacts of the Rosemont
Mine to the then-proposed critical
habitat designation for jaguar, which
concluded that the mining operation is
not likely to destroy or adversely modify
jaguar critical habitat.
The final economic analysis has been
revised based on the biological and
conference opinion. The Rosemont
Mine is located in a unit of critical
habitat that is occupied by the jaguar.
Since the jaguar is currently a listed
species, conservation efforts are already
undertaken to avoid jeopardy to the
species in this area and, therefore, the
economic impacts are predominantly
captured in the baseline. Through our
evaluation of impacts of the critical
habitat designation, we determined that
most of the conservation efforts are not
a result of the critical habitat
designation itself, but rather a result of
the jaguar being a listed species, and,
therefore, incremental impacts of the
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critical habitat designation are largely
limited to transactional costs. As a
result, the incremental impact,
economic or from other relevant factors,
of the designation on the mine is
expected to be minimal.
Section 4(b)(b)(2) of the Act states that
the Secretary may exclude a specific
area from critical habitat if the benefits
of excluding the area outweigh the
conservation benefits of including it,
providing the exclusion does not result
in the extinction of the species. In the
case of the Rosemont Mine, we have not
found any disproportionate impacts,
economic or other, on the Rosemont
Mine due to the critical habitat
designation because the area is
occupied, a section 7 consultation was
just completed providing approval for
the mine project, and conservation
measures are primarily captured in the
baseline. Therefore, the Secretary did
not find it to be reasonable or
appropriate for the Service to enter into
the discretionary exclusion analysis
about whether to exclude the mine from
the final designation.
(72) Comment: The designation could
adversely affect operations at Fort
Huachuca. Fort Huachuca is important
to the local economy, it contributes
approximately $2.4 billion annually to
the state economy, and it is the primary
employer in the area.
Our response: Fort Huachuca’s 2013
INRMP includes benefits for jaguars and
their habitat that were not included in
their previous INRMP. Based on our
review of Fort Huachuca’s 2013 INRMP,
and in accordance with section
4(a)(3)(B)(i) of the Act, we have
determined that the portion of Unit 3
and Subunit 4c within this installation,
identified as meeting the definition of
critical habitat, is subject to the INRMP,
and that conservation efforts identified
in this INRMP will provide a benefit to
the jaguar. Therefore, lands within this
installation are exempt from critical
habitat designation under section
4(a)(3)(B) of the Act. Further, as
described in section 8.1 of the draft
economic analysis, the Department of
Defense (DOD) has already incorporated
the species into its management
planning. As a result, the Service and
DOD do not anticipate that jaguar
critical habitat designation will change
the outcome of future section 7
consultations associated with operations
at Fort Huachuca. Furthermore, because
conservation management for the jaguar
is typically passive in nature (i.e., no
specific changes to operations at Fort
Huachuca are anticipated to
accommodate jaguar conservation), the
draft economic analysis does not
forecast any restrictions on Fort actions
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that would result in costs of
conservation efforts for the jaguar, even
absent critical habitat designation.
(73) Comment: The draft economic
analysis underestimates impacts to
livestock grazing. Costs that a rancher
will incur for a single consultation
could exceed $20,000 to $25,000, and
could include such expenses as hiring
consultants, attending consultations,
reviewing biological opinions,
participating in the NEPA process, filing
appeals of other Federal agency findings
if necessary, modifying ranching
operations, modifying water use, and
implementing jaguar conservation
measures.
Our response: While the commenters
are correct that consultation efforts have
the potential to result, in some cases, in
significant costs, the economic analysis
does not anticipate that many new
consultations would occur as a result of
critical habitat alone; that is, most
consultations on jaguar are anticipated
to occur regardless of critical habitat
designation. As a result, the incremental
costs of considering critical habitat in a
jaguar consultation are low because
consultation is already occurring to
address impacts to the species.
Similarly, conservation efforts for jaguar
are not anticipated to exceed those that
already would have been requested
under the baseline (for the species). As
such, incremental costs associated with
undertaking these measures are not
included in the economic analysis.
(74) Comment: The designation of
jaguar critical habitat may result in
increased livestock predation. These
impacts are not evaluated in the draft
economic analysis.
Our response: The Service is aware of
one jaguar depredation event in the
United States since 1961, which
occurred in the Altar Valley area in
2007 (McCain and Childs 2008, pp. 4–
5). The Service recognizes that cattle
depredation may occur. However, the
jaguar is already present in the United
States and protected under the Act as a
listed species. The designation of
critical habitat in the United States will
not change the possibility of cattle
depredation due to jaguars. The Service
is not proposing to reintroduce or
supplement jaguar populations in the
United States. Therefore, we do not
anticipate that designating critical
habitat for the jaguar will result in
economic impacts through livestock
depredation. We are aware, however, of
the concern that cattle depredations
may occur in the future, and we are
working with the Jaguar Recovery Team
to develop strategies to avoid these
types of conflicts.
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(75) Comment: The draft economic
analysis underestimates impacts
because it does not consider water use
and water allocation issues. The
designation will create water use
conflicts, resulting in negative impacts
to livestock producers. The designation
could result in substantial economic
impacts by infringing on existing water
rights to provide water for jaguar
conservation.
Our response: As described in the
Service’s incremental effects
memorandum, provided as Appendix C
to the draft economic analysis, possible
project modifications to avoid jeopardy
to the species and adverse modification
or destruction of critical habitat include:
using technology-based surveillance
rather than fencing where possible;
creating permeable highways by
including wildlife crossings appropriate
to jaguars in the project design; revegetating and restoring areas of largescale habitat removal; modifying or
eliminating the presence of stable
nighttime lighting; reducing the
footprint of large facilities to the
maximum extent practicable;
minimizing the amount or extent of
human presence, vehicles, or traffic in
a given area; providing conservation
measures to restore, enhance, and
protect habitat within critical habitat
units; offsetting permanent habitat loss,
modification, or fragmentation resulting
from agency actions with habitat that is
permanently protected, including
funding to ensure the habitat is
managed permanently for the protection
of the species; and providing resources
to assess the effects of the action on
jaguar habitat connectivity and function.
These conservation measures are
addressed as relevant for projects
forecast in the draft economic analysis.
Based on these possible project
modifications, the draft economic
analysis does not expect that jaguar
conservation will require changes to
water allocation.
Comments From Federal Agencies
(76) Comment: There is no habitat in
the United States that is critical to the
recovery of the jaguar or its survival as
a species.
Our response: See our response to
comment number 1 in the Peer Reviewer
Comments above.
(77) Comment: Jaguar critical habitat
in the United States is not essential
because jaguars have persisted in the
Northern Recovery Unit for the last 50
years with no evidence of breeding in
the United States during that time.
Our response: See our response to
comment number 4 in the Peer Reviewer
Comments above.
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(78) Comment: Areas in the United
States will function primarily to support
dispersing or transient jaguars, although
breeding could have occurred in the
past.
Our response: See our response to
comment number 11 in the Peer
Reviewer Comments above.
(79) Comment: Designation of critical
habitat is not due to new data but due
to litigation.
Our response: See our response to
comment number 2 in the Peer Reviewer
Comments above.
(80) Comment: Fort Huachuca should
be exempted from critical habitat
designation based on the Fort’s
Integrated Natural Resources
Management Plan (INRMP) that was
prepared under section 101 of the Sikes
Act (16 U.S.C. 670a) and which
currently provides a benefit to the
jaguar.
Our response: The Service has
exempted Fort Huachuca from critical
habitat designation based on their
INRMP. See the Exemptions section of
this final rule for further information.
(81) Comment: The Chiricahua and
Dos Cabezas Mountains are essential
and therefore should be included in the
designation.
Our response: The critical habitat
designation includes those areas in the
United States that meet the definition of
critical habitat as defined in the Act.
Because habitat in the United States is
at the edge of the species’ northern
range, and is marginal compared to
known habitat throughout the range, we
have determined that all of the primary
constituent elements discussed must be
present in each specific area to
constitute critical jaguar habitat in the
United States, including connectivity to
Mexico (but that connectivity may be
provided either through a direct
connection to the border or by other
areas essential for the conservation of
the species; see Areas Essential for the
Conservation of Jaguars, above). The
Chiricahua and Dos Cabezas Mountains
either were not occupied at the time of
listing or do not contain the PBF and
PCEs the Service has determined are
needed for it to function for jaguars.
(82) Comment: Valley bottoms should
be included in the critical habitat
designation because it is clear that
jaguars traverse the valley bottoms to
reach more suitable habitat. Further,
these areas potentially contain
necessary water sources.
Our response: We acknowledge that
jaguars will use valley bottoms (for
example, McCain and Childs 2008, p. 7),
and other areas of habitat connectivity
to move between areas of higher quality
habitat found in isolated mountain
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ranges in the United States and that
water sources within valleys may be
used by jaguars. However, as described
in the proposed rule and this final rule,
there is only one occurrence record of
a jaguar in a valley between mountain
ranges. Therefore, the best available
scientific and commercial information
does not allow us to determine which
particular area within the valleys may
be essential, and all of the valley habitat
is not essential to the conservation of
the species. See Connectivity between
expansive open spaces within the
United States, above, in this final rule.
Also, see our response to comment
number 8 in the Peer Reviewer
Comments above.
(83) Comment: The listing time period
used by the Service to determine
occupancy is not consistent with the
Act.
Our response: See our response to
comment number 42 in Comments from
the States above.
(84) Comment: There will never be a
breeding population in the United
States, thus there is no need for critical
habitat in the United States.
Our response: See our response to
comment number 11 in Peer Reviewer
Comments above.
(85) Comment: Jaguar prey species are
in decline and will not support jaguars.
Our response: See our response to
comment number 20 in Peer Reviewer
Comments above.
(86) Comment: The Service neglects to
account for the fact that the DHS can
waive all laws to expedite construction
of a border fence and to remove any
obstructions to the detection of illegal
aliens, 1,126 km (700 mi) of barrier
fence is required to be built along the
U.S.-Mexico border, lighting has been
added along the border that would
impact jaguar critical habitat, and a
constant flow of human traffic occurs
through jaguar critical habitat. This is
not consistent with the HII PCE.
Additionally, the Service only
considered stationary human
population and did not account for
transient humans crossing the border.
Our response: We understand that
laws related to the expeditious
construction of border infrastructure in
areas of high illegal entry may be
waived by the Secretary of DHS, and
have discussed this in the Special
Management Considerations or
Protections section of this final rule. As
also noted in this final rule, there are no
known plans to construct additional
security fences in the designated critical
habitat, although should future national
security issues require additional
measures, the Secretary of DHS may
invoke the waiver, and special
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management considerations would
continue to occur on a voluntary basis
on activities covered by a waiver. There
are other forms of border infrastructure,
however, that do not fall under this
waiver (construction of towers, for
example); therefore, special
management considerations apply to
these projects, and we consult with DHS
to minimize the impacts to listed
species and their critical habitat.
We also understand that human
activity (both legal and illegal) occurs
along the U.S.-Mexico border, including
within critical habitat. At times this
activity can be intense, involving many
people, vehicles, lighting, and
equipment. However, this activity is
also transitory, in that activity hot spots
will develop in one area, then move to
another area for a variety of reasons (for
example, increased law enforcement can
shift illegal border activity to another
area). Therefore, because of the variable
nature and unknown location of this
activity, we are not able to predict its
effect on jaguar critical habitat.
Additionally, because the impacts of
these activities shift around the
landscape and are not permanent in
nature, they do not necessarily entirely
preclude jaguars from using an area,
once the activity diminishes and moves
to another location. Therefore, we
continue to use HII as the best available
science reflecting human influence on
the landscape.
(87) Comment: With Arizona alone
growing by 1.5 million people from the
mid-1990s to mid-2000s, the Service
should account for future population
growth in the southwest.
Our response: We acknowledge that
the human population has grown and
continues to grow throughout the
southwestern United States. Should this
growth occur within critical habitat to
the extent that the HII PCE may be
affected and a Federal nexus exists, the
Service would consult on proposed
actions related to human population
growth (e.g., roads, development,
transmission lines) with the action
agency to minimize the effects of
increasing the HII within critical
habitat. We understand human
population growth may occur without
consultation in areas where a Federal
nexus does not exist; in these areas,
special management considerations to
minimize the effects of increasing the
HII would occur on a voluntary basis.
(88) Comment: The Service should
consider that as conservation
uncertainties arise in the Mexican part
of the range and climate change alters
natural resources, protecting critical
habitat in the United States and
facilitating connectivity between current
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range and historical range with
adequate, and sometimes superior,
resources is paramount for longitudinal
conservation action. The borderlands
area is often referred to as marginal
habitat because the core breeding
population is much farther south, but
this area is perhaps growing more
critical for the species and represents a
feasible opportunity for conservation
and recovery. Climate change is an
important factor in the recovery of
jaguars in the borderlands and the
Service appropriately included it in the
discussion within the proposed rule.
Additionally, climate change effects on
jaguars are uncertain, but the Service
should consider that some potential
impacts, such as increased periods of
drought, underscore the importance of
building resource capacity and
connectivity.
Our response: The Service recognizes
that climate change may be a factor in
the conservation of the jaguar. The
Service further recognizes the
importance of maintaining connectivity
between the United States and Mexico.
In our proposed rule and this final rule
we identify connectivity between
expansive open spaces in the United
States and Mexico as an essential
component of the physical or biological
feature essential for the conservation of
the jaguar in the United States. The
ability for jaguars in the proposed
Northwestern Recovery Unit to utilize
physical and biological habitat features
in the borderlands region is ecologically
important to the recovery of the species;
therefore, maintaining connectivity to
Mexico is essential to the conservation
of the jaguar.
(89) Comment: The maps provided by
the Service are insufficient in detail.
Our response: 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.regulations.gov at Docket
No. FWS–R2–ES–2012–0042 and at the
Arizona Ecological Services Fish and
Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). Enhanced color
maps and site-specific boundaries of the
critical habitat in both GIS and Google
Earth format can be viewed and
downloaded from https://www.fws.gov/
southwest/es/arizona.http. See our
response to comment 43 in Comments
from States above for the Web site links
to all the GIS data layers that we used
in evaluating PCEs in this final rule.
(90) Comment: Has government-togovernment consultation with the
Service occurred?
Our response: Yes. Please see the
Government-to-Government
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Relationship with Tribes section of this
final rule for a description of
consultation between the Service and
the Tohono O’odham Nation.
(91) Comment: The BIA requested that
the Tohono O’odham Nation be
excluded from critical habitat
designation based on section 4(b)(2) of
the Act. The BIA references the jaguar
management plan that is under
development by the Tohono O’odham
Nation.
Our response: We have determined,
pursuant to section 4(b)(2) of the Act,
that we will exclude approximately
20,764 ha (51,308 ac) of Tohono
O’odham Nation land in Subunit 1a and
approximately 10,829 ha (26,759 ac) of
Tohono O’odham Nation land in
Subunit 1b, from the final designation of
critical habitat. See the Exclusions
Based on Other Relevant Impacts
section above for more detailed
information.
(92) Comment: Several points in the
proposed rule indicate that adverse
modification analysis would be required
only for occupied habitat. Why would
the analysis not be required for
unoccupied critical habitat?
Our response: Adverse modification
analysis during section 7 consultation
would be conducted for projects with a
Federal nexus that may adversely
modify critical habitat in both occupied
and unoccupied critical habitat.
(93) Comment: The draft economic
analysis should address impacts to
national security that could result if the
construction of border fences or related
infrastructure is affected by jaguar
conservation. Land located near the
border may be devalued due to national
security impacts. Illegal immigration
and drug trafficking may increase in the
vicinity of the proposed designation.
Our response: Chapter 4 of the draft
economic analysis discusses impacts to
border protection activities. As
described in section 4.1 of the draft
economic analysis, CBP does not
anticipate that activities planned within
the proposed designation will cause
permanent changes to the landscape or
sever connectivity to Mexico and are,
therefore, unlikely to require any
changes to jaguar conservation measures
than those already planned under the
listing of the species. CBP already
implements baseline conservation
measures according to best management
practices for the jaguar in all critical
habitat units. As a result, we do not
forecast any impacts to national security
as a result of critical habitat designation
for jaguar.
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Comments From Tribes
(94) Comment: The Tohono O’odham
Nation should be excluded from critical
habitat designation based on section
4(b)(2) of the Act.
Our response: We have determined,
pursuant to section 4(b)(2) of the Act,
that we will exclude approximately
20,764 ha (51,308 ac) of Tohono
O’odham Nation land in Subunit 1a and
approximately 10,829 ha (26,759 ac) of
Tohono O’odham Nation land in
Subunit 1b, from the final designation of
critical habitat. See the Exclusions
Based on Other Relevant Impacts
section above for more detailed
information.
(95) Comment: Fort Huachuca should
be exempted from critical habitat
designation based on the Fort’s
Integrated Natural Resources
Management Plan (INRMP) that was
prepared under section 101 of the Sikes
Act (16 U.S.C. 670a) and which
currently provides a benefit to the
jaguar.
Our response: The Service has
exempted Fort Huachuca from critical
habitat designation based on their
INRMP. See the Exemptions section of
this final rule for further information.
Public Comments
General
(96) Comment: Data indicate Arizona
and New Mexico lack the habitat
necessary for jaguars. There is no
Sinaloan thornscrub in the United
States; therefore, the United States does
not have the vegetation necessary for
jaguars to feed, breed, reproduce, and
find shelter, which is why there is no
jaguar population in existence in the
United States.
Our response: The Service
acknowledges that Sinaloan thornscrub
does not occur in the United States.
However, we have determined that
Madrean evergreen woodland and
semidesert grassland provide the biotic
community component of the physical
or biological feature utilized by jaguars
north of the U.S.-Mexico border.
Therefore, these two biotic communities
are included as a PCE within the
designation. Further, the Act does not
require a breeding or reproducing
population of jaguars be present for the
purposes of designating critical habitat.
(97) Comment: Habitat in the United
States (including southeastern Arizona
and southwestern New Mexico) is at the
northernmost extreme of the jaguar’s
range, and is peripheral, marginal, and
not essential to the conservation of the
species, as demonstrated by Rabinowitz
(1997), who has consistently maintained
there is no area in the southwestern
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United States that is critical to the
survival of the jaguar and that the area
is marginal for the jaguar in terms of
water, cover, and prey density. The
United States is not shown as a jaguar
corridor on the map published by
Rabinowitz and Zeller (2010). Biological
studies and professional opinions
abound, and are cited by organizations
opposing this designation, that credibly
show the jaguar prefers a wet tropical
climate to breed and exist.
Our response: The Service agrees that
habitat in the United States is on the
northern periphery of the jaguar’s range;
however, the Service has identified
critical habitat for the jaguar in
accordance with the Act and
implementing regulations. See our
response to comment number 1 in the
Peer Reviewer Comments above.
(98) Comment: Any area that contains
the PCEs does not automatically qualify
as critical habitat. It can hardly be said
that these features are essential to the
conservation of the species merely
because they can sustain temporary
presence of the species.
Our response: The Act does not state
that critical habitat applies only to
resident or breeding populations, or that
for an area to be occupied critical
habitat it must contain a female or
documented breeding. Rather, section
3(5)(A)(i) of the Act defines occupancy
as the specific areas within the
geographical area occupied by the
species, at the time it is listed. Further,
in the decision of Arizona Cattle
Grower’s Assoc. v. Salazar, 2009 U.S.
App. Lexis 29107 (June 4, 2010), the
Ninth Circuit affirmed that the Service
has the authority to designate as
occupied all areas used by a listed
species with sufficient regularity that
members of the species are likely to be
present during any reasonable span of
time. Therefore, occupancy of an area
can be indicated by the presence of an
individual member of the species, and
we have determined that critical habitat
may have been occupied at the time of
listing based on this definition in
conjunction with observations of jaguars
in those areas (as described in Table 1
of this final rule).
(99) Comment: The proposed critical
habitat in the United States will have
little to no effect on the jaguar’s survival
and recovery. The listed species is the
entire jaguar taxon; critical habitat,
therefore, must be essential to
conserving that species as a whole.
Other than a possible contribution to the
genetic diversity of the species, there is
no indication of any kind why the
designation of critical habitat would
somehow be essential to the
conservation of the species as a whole.
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Our response: Critical habitat in the
United States contributes to recovery
across the jaguar’s entire range by
providing the physical or biological
feature for jaguar critical habitat and the
associated PCEs. The Service recognizes
that the designated critical habitat in the
United States is only a small portion of
the jaguar’s range and we anticipate that
recovery of the entire species will rely
primarily on actions that occur outside
of the United States; activities that may
adversely or beneficially affect jaguars
in the United States are less likely to
affect recovery than activities in core
areas of their range (Jaguar Recovery
Team 2012, p. 38). However, the portion
of the range in the United States is
located within a secondary area (as
identified in the Recovery Outline) that
provides a recovery function benefitting
the overall recovery unit (Jaguar
Recovery Team 2012, pp. 40, 42). For
example, specific areas within this
secondary area that provide the physical
and biological features essential to
jaguar habitat can contribute to the
species’ persistence and, therefore,
overall conservation by providing areas
to support some individuals during
dispersal movements, by providing
small patches of habitat (perhaps in
some cases with a few resident jaguars),
and as areas for cyclic expansion and
contraction of the nearest core area and
breeding population in the
Northwestern Recovery Unit (about 210
km (130 mi) south of the U.S.-Mexico
border.
Independent peer review cited in our
July 22, 1997, clarifying rule (62 FR
39147, pp. 39153–39154) states that
individuals dispersing into the United
States are important because they
occupy habitat that serves as a buffer to
zones of regular reproduction and are
potential colonizers of vacant range, and
that, as such, areas supporting them are
important to maintaining normal
demographics, as well as allowing for
possible range expansion. As described
in the Recovery Outline for the Jaguar
(Jaguar Recovery Team 2012, pp. 40,
42), the Northwestern Recovery Unit is
essential for the conservation of the
species; therefore, consideration of the
spatial and biological dynamics that
allow this unit to function and that
benefit the overall unit is prudent.
Providing connectivity from the United
States to Mexico is a key element to
maintaining those processes.
(100) Comment: There is no rational
or prudent basis for designating critical
habitat in the United States. There is no
area in the United States that is essential
to the conservation of jaguars.
Our response: The Service has
identified critical habitat for the jaguar
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in accordance with the Act and its
implementing regulations. The Service
has determined that designation of
critical habitat for the jaguar is prudent
and determinable based on the best
available scientific data available.
Section 4(a)(3)(A) of the Act, states that
critical habitat shall be designated for
endangered and threatened species to
the maximum extent prudent and
determinable. Therefore, we are
required to designate critical habitat for
the jaguar to fulfill our legal and
statutory obligations. See our response
to comment number 1 in the Peer
Reviewer Comments above.
(101) Comment: The Service states
that a goal of critical habitat is to
support a population of 50 to 100
jaguars in the United States by
protecting and increasing connectivity
between the United States and Mexico.
Our response: See our response to
comment number 4 in the Peer Review
Comment section above.
(102) Comment: Corridors to
unsuitable or marginal habitat can destabilize jaguar populations (Desbiez et
al. 2012), particularly if the source
population is itself unstable. Analyses
presented by Carillo et al. (2007)
indicate that the Sonora population
appears to be decreasing, and some
jaguar experts consider the
southwestern United States to consist of
marginal habitat for jaguars (see Johnson
et al. 2011). Thus, linking jaguar
population in Mexico to the United
States may establish a detrimental
source-sink relationship. The results of
our PVA analysis indicate that the
Service’s goal of establishing a breeding
population of jaguars in the United
States may have negative consequences
to the stability and persistence of jaguar
populations in the Northwestern
Management Unit.
Our response: We disagree that
designating critical habitat will
destabilize the nearest breeding
population in Mexico. The purpose of
designating critical habitat in the United
States is not to create a self-sustaining,
breeding population north of the U.S.Mexico border, but to provide small
patches of habitat (perhaps in some
cases with a few resident jaguars) to
allow for the cyclical expansion and
contraction of the nearest core area in
Mexico. Therefore, critical habitat in the
United States contributes to recovery by
providing protection of these areas
within the proposed Northwestern
Recovery Unit. Further, the jaguar has
been listed as an endangered species
since 1972, and already receives
protection under the Act. The
designation of critical habitat does not
increase the number of jaguars present
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in the United States. 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. See our
response to comment number 52 in
Comments from States above.
(103) Comment: The Service should
consider the importance of connecting
the Jalisco and Sonora populations to
support a stable metapopulation in the
Northwestern Management Unit.
Increasing connectivity between Jalisco
and Sonora improves population growth
rate, decreases the probability of
extinction and increases genetic
heterozygosity in Sonora, creates a
stable Sonoran population, and supports
a stable metapopulation. Creating a
breeding population in the United
States could have detrimental effects on
population growth and persistence in
the region, and conservation measures
in Mexico rather than the United States
are needed to benefit jaguars in the
Northwestern Management Unit.
Our response: We agree that jaguar
conservation in Mexico and throughout
its range are necessary to recover the
species, and we are collaborating with
partners to conserve jaguars throughout
their range, including improving
dispersal opportunities between the
Jalisco and Sonora populations. We
disagree that designating critical habitat
will detrimentally affect jaguar
population growth and persistence in
the region (see our response to comment
number 15 in Peer Reviewer Comments
and 52 in Comments from States above).
The purpose of the designation of
critical habitat is not to establish a
breeding population of jaguars in the
United States. The purpose of critical
habitat in the United States is to provide
small patches of habitat (perhaps in
some cases with a few resident jaguars)
to allow for the cyclical expansion and
contraction of the nearest core area in
Mexico. Critical habitat is not being
designated to create a self-sustaining,
breeding population north of the U.S.Mexico border, but to allow individuals
from the nearest breeding area in
Mexico areas within which they may
persist during a portion of their life
cycle.
(104) Comment: The Service should
work with Dr. Rabinowitz and other
jaguar experts in Mexico, Central
America, and South America to protect
jaguar habitat, including corridors.
Since the nearest breeding population is
209 km (130 mi) south in Mexico and
there are breeding populations
throughout Central and South America,
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science and logic dictate spending
resources and efforts where jaguars
breed.
Our response: The Service is
collaborating with partners (including
members of Dr. Rabinowitz’s
organization, Panthera) to conserve
jaguars and their habitat throughout the
range of the jaguar, particularly within
the proposed Northwestern Recovery
Unit. We are currently working with the
Jaguar Recovery Team to complete a
draft recovery plan for the jaguar, which
we expect will be available in 2014. The
recovery plan will include guidance,
criteria, and actions pertaining to
recovering the species throughout its
entire range (although focusing on the
Northwestern Recovery Unit), including
information about habitat, corridor, and
breeding area protection.
(105) Comment: The designation of
critical habitat appears political instead
of scientific, which violates the Act at
every level.
Our response: Designation of critical
habitat has been done in accordance
with statutory requirements. See our
response to comment number 1 in the
Peer Reviewer Comments above.
(106) Comment: Set-aside protection
mechanisms, like critical habitat, may
not be necessary to meet the jaguar’s
habitat needs.
Our response: See our response to
comment number 1 in the Peer Reviewer
Comments above.
(107) Comment: Habitat fitting the
description of the physical or biological
feature and associated PCEs of jaguar
critical habitat is widespread in
Arizona, and any actions that would
impact jaguars are already required to be
evaluated by provisions under the
Endangered Species Act and National
Environmental Policy Act (NEPA).
Our response: Since the jaguar is a
federally listed species under the Act,
actions with a Federal nexus that may
impact jaguars are evaluated under the
Act and potentially NEPA. However,
critical habitat does afford protection to
the jaguar through section 7
consultation under 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. 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.
Therefore, actions that are funded,
permitted, or carried out by a Federal
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agency within jaguar critical habitat will
continue to be evaluated to determine
their impacts on critical habitat.
(108) Comment: The lack of breeding
populations or residency in the United
States indicates there is no critical
habitat. There are no areas in the United
States that could be considered
‘‘occupied.’’ The males detected in the
United States have likely originated
from the Sonora population, and their
genetic resources are thus a
consequence of the population genetics
and environmental conditions acting
upon the Sonora population. While the
Sonora population may be important for
the conservation of the species, a small
population in the United States, if it was
to exist, is not an important peripheral
population in the context of the
conservation of the species. Based on
the movement behavior of female
jaguars, it is unlikely that female jaguars
would cross road barriers (some
including large highways with
presumably high traffic volumes) or
other areas of human disturbance in the
over 130 miles between the Sonora
population and the areas of critical
habitat in the United States. Suitable
habitat for jaguars between the Sonora
population and the United States is
fragmented and of marginal quality. A
general increase in human impacts
across the landscape through time is
correlated with a lack of female records
in the United States, lending credence
to the possibility that conditions in
northern Mexico may act as a barrier to
female dispersal to the United States.
Our response: As described in the
proposed rule and this final rule,
barriers prohibiting the dispersal of
females to the United States are
unknown. Based on information about
large carnivores, male felids can move
long distances in the process of
´
dispersal (Logan et al. 1986 and Lopez
´
Gonzalez 1999, as described in
´
´
Boydston and Lopez Gonzalez 2005, p.
51), but when female dispersal does
occur, distances are much shorter
(Logan and Sweanor 2011, as described
´
´
in Boydston and Lopez Gonzalez 2005,
p. 51). Therefore, it may be possible that
barriers exist to female dispersal into
the United States; however, as described
in the Recovery Outline for the Jaguar
(Jaguar Recovery Team 2012, pp. 24,
44), further research on gender- and agespecific estimates of dispersal rates and
travel distances is needed within the
Northwestern Recovery Unit. The Act
does not state that critical habitat
applies only to resident or breeding
populations, or that for an area to be
occupied critical habitat it must contain
a female or documented breeding.
Further, establishing a breeding
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12625
population of jaguars is not the purpose
of critical habitat designation. See our
response to comment number 11 in Peer
Reviewers Comments above.
(109) Comment: Some authors argue
that suitable habitat for females does
exist in southern Arizona and New
Mexico, but note that habitat
preferences differ considerably between
male and female jaguars (Boydston and
´
´
Lopez-Gonzales 2005). The lack of
female detections in the United States
may be indicative of conditions over the
past 60 years that have resulted in an
altered landscape whereby habitats
preferred by females (e.g., forested areas,
especially broad-leaf forests (Boydston
´
´
and Lopez-Gonzales 2005)) no longer
occur in the United States in sufficient
quantities to support female occupancy
and breeding. Moreover, because
females have not been detected recently
in the United States, habitat conditions
at the locations of female jaguar
detections, used in building habitat
models, have likely changed, a fact that
is not accounted for by the approach
taken by the Service’s modeling effort to
identify and map critical habitat.
Similarly, the development of PCEs for
critical habitat is based on records that
are likely to be mostly male jaguars.
Consequently, the areas identified as
critical habitat may be suitable for male
jaguars, but fail either to benefit female
jaguars or allow for the establishment of
breeding territories.
Our response: We acknowledge that
the majority of detections used to
develop the habitat model for the jaguar
in the Northwestern Recovery Unit may
have been males. Standard cameratrapping techniques appear to have a
bias towards capturing male jaguars as
opposed to females (Harmsen et al.
2009, entire). Harmsen et al. (2009, pp.
615–616) captured 23 individual males
during 100 days of camera trapping, but
only captured 6 individual females
during this same time period. This is
likely because male jaguars roam farther
and tend to use large pathways more
than females, making it more likely they
will be picked up using camera trap
techniques (which often are located
along open pathways to facilitate
capturing recognizable photos).
However, even when used off trail (such
as along small streams, game trails, and
landscape features), Harmsen (2006)
found that camera trapping did not
reveal any habitat characteristics
associated with higher capture rates of
females (as cited in Harmsen et al. 2009,
pp. 613, 618).
Even so, the Act does not state that
critical habitat must apply to both males
and females of a species. Further,
establishing a breeding population of
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jaguars is not the purpose of critical
habitat designation. See our response to
comment number 11 in Peer Reviewers
Comments above.
(110) Comment: The United States is
a peripheral area; therefore, the Service
should not designate critical habitat in
the United States.
Our response: Please see our response
to comment number 1 in the Peer
Reviewer Comments above.
(111) Comment: Habitat in the United
States is marginal and not essential to
the conservation of the species, as
demonstrated by Rabinowitz (2010).
Our response: The Service agrees that
habitat in the United States is on the
northern periphery of the jaguar’s range;
however, the Service has identified
critical habitat for the jaguar in
accordance with the Act and
implementing regulations. See our
response to comment number 1 in the
Peer Reviewer Comments above.
(112) Comment: The Service should
exclude the Rosemont Mine. Excluding
the mine will not cause the species’
extinction. Rosemont Mine has incurred
costs well in excess of $100 million in
developing the project and should be
excluded based on economic
considerations.
Our response: We have not excluded
the Rosemont Mine from critical habitat.
See our response to comment number
71 in the Comments from States above.
Additionally, the Service recognizes
the perceptional effects of the
designation of critical habitat in general,
and specifically, for the designation of
critical habitat for the jaguar. The costs
of developing the Rosemont Mine and
the potential economic benefit of the
mine are not factors in considering
whether to exclude the mine area from
critical habitat. The Secretary has the
discretion to exclude specific areas from
critical habitat based on the economic
impact or other relevant factors. The
basis for excluding a particular area due
to a probable economic impact is to
relieve the probable impact that may be
due solely to the designation of critical
habitat. In this particular instance for
jaguar critical habitat, we find no such
probable economic impact due solely to
the designation of critical habitat. The
Rosemont Mine area is occupied by the
jaguar and, consequently, any
conservation measures that have been
implemented to date, or anticipated, for
the jaguar are a result of the species’
listing, not the designated critical
habitat. Furthermore, a recently
completed biological and conference
opinion found the construction and
operation of the Rosemont Mine would
not jeopardize the jaguar nor adversely
modify designated critical habitat. This
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last point, no adverse modification of
critical habitat, is a major determining
factor in whether the Secretary would
consider the exclusion of the mine area
from critical habitat. Since the Service
determined the proposed mining
operation would not destroy or
adversely modify critical habitat, no
conservation measures or reasonable or
prudent alternatives were suggested.
Therefore, probable economic impacts
forecast as the result of the designation
of critical habitat are predominantly
limited to transactional costs. Since the
basis for an economic-based exclusion is
to forego probable economic impacts,
and there are limited forecast economic
impacts from critical habitat, the
Secretary did not choose to enter into
the discretionary exclusion analysis
under section 4(b)(2) of the Act. As
stated previously, the costs of
developing the mine and any
conservation measures implemented or
recommended by the Service specific to
jaguar are primarily the result of the
listing of the species, not critical habitat.
(113) Comment: Habitat Conservation
Plans (HCPs) should not be excluded
from critical habitat, specifically the
Pima County Draft Multi-Species HCP
and Malpai Borderlands HCP should not
be excluded.
Our response: The Pima County draft
Multi-Species HCP and the Malpai
Borderlands HCP lack management
plans that address jaguar habitat.
Consequently, we have not determined
that the benefits of excluding these areas
outweigh the benefits of including these
areas.
(114) Comment: The Service should
include all of the ‘‘Sky Islands’’ within
the designation including the
Chiricahua, Dos Cabezas, Dragoon,
Mule, Rincon, Santa Catalina,
˜
Galiuro,Winchester, Whitlock, Pinaleno,
Santa Teresa, Animas, Pyramid, Alama
Hueco, Big Hatchet, Little Hatchet,
Florida, West and East Potrillo, Cedar,
and Big Burro Mountains, and portions
of the Peloncillo Mountains north of the
current boundaries of the Northwestern
Recovery Unit. These areas should be
included because they either have
documented jaguar presence or they
contain the PCEs as defined by the
Service. The Service should also
include areas north of the current
proposed critical habitat in the
Mogollon Rim area (along with
adjoining spurs and canyons, including
the Grand Canyon) in Arizona and to
the north and east into the contiguous
lands of the Gila National Forest along
with the Plains of San Augustin, the
Zuni Plateau, the El Malpais National
Monument and National Conservation
Area, and the San Mateo, Magdalena,
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Chupadera, Datil, Sawtooth, Luera, and
Summit Mountains in New Mexico.
These areas represent a potentially vital
refugium for the northern jaguar
population, given the expected
trajectory of increasing land use and
climate change across the southwestern
United States and northern Mexico.
Our response: The additional Sky
Islands and areas north of the
designated critical habitat area may be
usable by jaguars and may in fact
contribute to the recovery of the species,
but they are not considered occupied at
the time of listing, and are not
considered essential to the conservation
of the species as unoccupied habitat.
Consequently, these areas do not meet
the definition of critical habitat as we
have interpreted it because they were
not occupied at the time of listing nor
are they considered essential to
recovery. See our response to comment
number 3 in Peer Reviewer Comments
above.
(115) Comment: The Service should
designate additional areas of critical
habitat because the agency cannot be
sure of how much habitat is currently
occupied by jaguars in the United
States, and lack of detection does not
indicate the species is absent. With few
exceptions, the relatively large number
of confirmed jaguar sightings on which
the proposed rule was based were not
the result of any official effort to
conduct a comprehensive survey of the
northern jaguar population in the
United States, but were instead
essentially collected accidentally.
Considering the large and growing
number of purely anecdotal sightings of
this extremely and notoriously elusive
species, it seems extremely reasonable
to assume that, should anyone actually
try to find jaguars in this region, far
more individual jaguars would be
discovered.
Our response: The Service agrees that
the lack of detection does not indicate
the species is absent, and we
acknowledge this concept in our
proposed rule and this final rule. The
Service recognizes that many mobile
species are difficult to detect in the wild
because of morphological features (such
as camouflaged appearance) or elusive
behavioral characteristics (such as
nocturnal activity) (Peterson and Bayley
2004, pp. 173, 175). This situation
presents challenges in determining
whether or not a particular area is
occupied because we cannot be sure
that a lack of detection indicates that the
species is absent (Peterson and Bayley
2004, p. 173). See Occupied Area at the
Time of Listing, above, in this final rule.
Additionally, jaguars are currently
being surveyed for and monitored in
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mountainous areas in the United States
north of the U.S.-Mexico border and
south of Interstate 10, from the
Baboquivari Mountains in Arizona to
the Peloncillo Mountains in New
Mexico. Information gathered during
this survey and monitoring project (up
through September 11, 2013) has been
incorporated into this final rule (see
Table 1).
(116) Comment: The Service should
follow the jaguar habitat modeling
efforts of Hatten et al. (2005) and
Robinson (2006) as a basis for including
additional areas in these two States.
Hatten et al. (2005) identified 21–30
percent of Arizona (approximately
62,000–88,600 km2 (23,938–34,209
mi2)) as potential jaguar habitat, and
Robinson (2006) identified
approximately half of New Mexico
(approximately 156,800 km2 (60,541
mi2)) as potential jaguar habitat.
Our response: As discussed above,
during the Jaguar Recovery Team’s
analysis and modeling effort, the team
considered the modeling efforts of
Hatten et al. (2005, entire) and Robinson
(2006, entire), and further refined the
Hatten et al. (2005, entire) model such
that a similar model could be applied
across the entire Northwestern Recovery
Unit. The team provided this analysis
and habitat model in their 2013 report
entitled Jaguar Habitat Modeling and
Database Update (Sanderson and Fisher
2013, entire). Therefore, we based
critical habitat boundaries on the
physical and biological feature and
PCEs from the updated habitat modeling
report, in which the habitat features
preferred by the jaguar in the proposed
Northwestern Recovery Unit were
described based on the best available
science and expert opinion of the Jaguar
Recovery Team.
(117) Comment: Congress and the
Service’s regulations or intentions were
to guide designation of critical habitat to
lands that are actually occupied by the
listed species. Critical habitat should be
based on current occupation, not
historical, and no areas are currently
occupied or were occupied at the time
of listing.
Our response: The Service’s
designation of occupied critical habitat
is in compliance with the Act. Under
the second part 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. In regards to areas occupied at
the time of listing, see our response to
comment number 9 in Peer Reviewers
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Comments above and comment number
42 in Comments from States.
(118) Comment: The Santa Rita
Mountains and Subunit 4b are not
occupied.
Our response: The Santa Rita
Mountains are within Unit 3. We
determined Unit 3 may have been
occupied at the time of listing and is
currently occupied based on a record of
a male shot in the Patagonia Mountains
(also within Unit 3) in 1965 and
multiple sightings of a male jaguar from
October 2012 through September 11,
2013, in the Santa Rita Mountains (see
Table 1 in the final rule). We did not
designate Subunit 4b based on
occupancy; rather, this unit provides
connectivity from Subunit 4a to Mexico
(by connecting it to Unit 3, which
provides connectivity to Mexico).
Connectivity to Mexico is an essential
feature of jaguar habitat in the United
States.
(119) Comment: The Patagonia Unit
(Unit 3) is considered occupied based
on only one observation of a jaguar;
therefore, it should not be considered
occupied.
Our response: At the time we
published the proposed rule (77 FR
50214; August 20, 2012), we were aware
of only one undisputed Class I jaguar
record from Unit 3, which was a male
shot in the Patagonia Mountains in 1965
(see Table 1 of this final rule). Since
then, a male jaguar has been
documented numerous times in the
Santa Rita Mountains (see Table 1 of
this final rule), which are also within
Unit 3. Therefore, we consider this unit
occupied.
(120) Comment: The use of female
scat as a scent lure renders all scientific
documentation of jaguars suspect.
Our response: We understand that
some of the jaguar records used in our
proposed rule may be disputed due to
the possibility that female scat was used
as a scent lure in some areas. Therefore,
we removed all sightings that may have
been influenced by female scat, which
we determined to be from October 3,
2008 (the date of Emil McCain’s request
for jaguar scat from the Phoenix Zoo)
through March 2, 2009 (the date Macho
B was captured and flown to the
Phoenix Zoo). See Table 1 of this final
rule for all of the undisputed Class I
jaguar records used to determine
occupancy.
(121) Comment: The correct date of
listing should be 1997 instead of 1972.
Our response: As discussed in the
final rule, our intention was to list the
species throughout its entire range at the
time it was added to the Endangered
Species Conservation Act in 1972;
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therefore, we determine that 1972 is the
date the species was listed.
(122) Comment: Occupancy should be
determined based on current records,
including up to the past 15 years.
Our response: Determining occupancy
by a species such as the jaguar can be
difficult, given that they were added to
the list many years ago, and, by nature,
are cryptic and difficult to detect.
Therefore, we determine that the
appropriate timeframe within which to
consider areas occupied by the jaguar at
the time of its listing is from 1962 (10
years prior to listing, which is the
average lifespan of a jaguar) to
September 11, 2013. See our response to
comment number 42 in the Comments
from States above.
(123) Comment: All records collected
by and cited in McCain and Childs
(2008) should be removed, as the use of
female scat as a scent lure at some point
during their study indicates that all of
their data were invalid.
Our response: We disagree. We
understand that some of the jaguar
records used in our proposed rule may
be disputed due to the possibility that
female scat was used as a scent lure in
some areas. Therefore, we removed all
sightings that may have been influenced
by female scat, which we determined to
be from October 3, 2008 (the date of
Emil McCain’s request for jaguar scat
from the Phoenix Zoo), through March
2, 2009 (the date Macho B was captured
and flown to the Phoenix Zoo). Because
we only have information of female scat
as a scent lure potentially being used
from October 2008 through March 2009,
it is speculative to assume that sightings
outside of this timeframe were
influenced by female scat as a scent lure
because the best scientific and
commercial data does not indicate this
to be the case. See Table 1 of this final
rule for all of the undisputed Class I
jaguar records used to determine
occupancy.
(124) Comment: Remove ‘‘verified
tracks’’ from consideration, as they can
be confused with mountain lion tracks.
Our response: We do not consider it
necessary to remove verified tracks from
consideration because the tracks that are
included in our determination of
occupied critical habitat were verified
by mountain lion hunters who have
sufficient experience in distinguishing
mountain lion tracks from jaguar tracks.
(125) Comment: Data used by the
Service to designate critical habitat are
insufficient, inaccurate, or unreliable
because the habitat models developed
by Sanderson and Fisher (2011, pp. 1–
11; 2013, entire) used other than Class
I jaguar records and disputed Class I
records (including jaguar locations that
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may have been from ‘‘canned’’ hunts).
Therefore, it is not possible to determine
or model the PCEs essential for jaguars.
Our response: See our response to
comment number 43 in the Comments
from States above.
(126) Comment: The 130 jaguar
locations used in the Service’s August
20, 2012, proposed rule (77 FR 50214)
are of questionable legitimacy.
Our response: See our response to
comment number 43 in the Comments
from States above for an explanation of
the datasets used in our August 20,
2012, proposed rule (77 FR 50214), July
1, 2013, revised proposed rule (78 FR
39237), and this final rule.
(127) Comment: None of the critical
habitat units contain all the PCEs
essential to the conservation of the
jaguar, or they do not have the PCEs in
the appropriate quantities to support
jaguars.
Our response: All of the critical
habitat units contain all of the PCEs in
the appropriate quantities to support
jaguars. The PCEs are based on the latest
jaguar habitat model produced by the
Jaguar Recovery Team (Sanderson and
Fisher 2013, entire), which is the best
commercial and scientific data
available. Further, all PCEs are found in
all units of the final critical habitat
designation and jaguars have been
documented in each unit (in some cases
multiple times over multiple months
and years). Therefore, we conclude that
all of the critical habitat units contain
all of the PCEs in the appropriate
quantities to support jaguars.
(128) Comment: It is not necessary to
have all of the PCEs in each critical
habitat unit. The Service should
consider designating areas in which
only some of the PCEs are present.
Our response: The Service recognizes
that each critical habitat unit does not
need to contain all of the PCEs;
however, the Service considered the fact
that this area is in the northern
periphery of the jaguar’s range.
Designating critical habitat only in areas
with all PCEs provides the best habitat
available and, therefore, critical habitat
for the jaguar in the United States.
Because habitat in the United States is
at the edge of the species’ northern
range, and is marginal compared to
known habitat throughout the range, we
have determined that all of the primary
constituent elements discussed must be
present in each specific area to
constitute critical jaguar habitat in the
United States, including connectivity to
Mexico (but that connectivity may be
provided either through a direct
connection to the border or by other
areas essential for the conservation of
the species; see Areas Essential for the
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Conservation of Jaguars, above).
Further, because the PCEs are based on
recommendations from the Jaguar
Recovery Team and information from
the latest jaguar habitat model
(Sanderson and Fisher 2013, entire), we
have captured the areas in the United
States that support the conservation of
the jaguar.
(129) Comment: The unoccupied
units (specifically Subunit 4b) lack the
essential physical and biological
features for critical habitat.
Our response: The Service recognizes
that three designated critical habitat
Subunits (1b, 4b, and 4c) do not contain
all of the physical or biological features
essential to the jaguar. However, under
the second part of the definition of
critical habitat under the Act, 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. The Act does not require the
Service to identify PCEs for unoccupied
areas. In areas lacking all PCEs
(specifically Subunits 1b, 4b, and 4c),
these areas were designated because
they are essential to the conservation of
the jaguar because they provide
continuity to Mexico and connect
Subunits within the United States that
would otherwise not be connected to
Mexico (Subunits 1a and 4a).
(130) Comment: Additionally, the
Service failed to meet Data Quality Act
(DQA) standards. The DQA attempts to
ensure that Federal agencies, such as the
Service, use and disseminate accurate
information by requiring those agencies
to issue information guidelines ensuring
the quality, utility, objectivity, and
integrity of the information
disseminated. The information
disseminated by the Service in the
proposed rule fails to meet DQA
standards because it is both biased and
inaccurate.
Our response: See our responses to
comment numbers 16 and 18 in Peer
Reviewer Comments above.
(131) Comment: The Service must
adopt ‘‘regulatory Daubert’’ by informal
rulemaking to prevent further
subordination of science to political
policy (Holland 2008).
Our response: The commenter’s
reference to Daubert in Holland (2008,
p. 301) refers to the Daubert v. Merrell
Dow Pharmaceuticals, Inc. case that was
decided by the Supreme Court. In
Daubert v. Merrell Dow Pharmaceuticals
Inc., the U.S. Supreme Court
empowered federal judges to reject
irrelevant or unreliable scientific
evidence. Daubert provides a suitable
framework for reviewing the quality of
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agency science and the soundness of
agency decisions consistent with the
standards established for review of
agency rulemakings under the
Administrative Procedure Act. Holland
(2008) suggests that the Act should be
held to a similar information standard
that was used in that case, either
through adoption by Federal courts,
Congressional amendment to the Act, or
Executive Order. The Service has no
authority to adopt information
standards different than those
referenced in the discussion above.
These are the standards that we used in
the designation of critical habitat for the
jaguar.
(132) Comment: The questionnaires
distributed by the Service to jaguar
experts for use in developing the
recovery outline for the species and the
application of the Delphi Method (a
structured communication technique
using a systematic, interactive
forecasting method which relies on a
panel of experts) are scientifically
invalid.
Our response: The use of
questionnaires and the Delphi Method
is not a scientifically invalid process.
The Delphi Method can be a useful
technique in solving complex natural
resource issues by synthesizing expert
opinion (for example, see Hess and King
2002, entire; Taylor and Ryder 2003,
entire; Plummer and Armitage 2007,
entire), particularly when data are
lacking, there is great uncertainty, and
the primary source of information is
informed judgment (Hess and King
2002, p. 28). This is the case for jaguars
in the northwestern-most part of the
species’ range. For this reason, we
determined that a modified Delphi
Method (in that we sent one round
instead of multiple rounds of questions
to scientists with experience or
expertise in jaguar ecology (primarily in
the northwestern-most portion of the
jaguar range) or large cat ecology) was
appropriate to determine the habitat
features relied on by jaguars in this area.
Please see the Recovery Outline for the
Jaguar for a description of this process
(Jaguar Recovery Team 2012, pp. 15–
16).
(133) Comment: ‘‘Data’’ resulting from
a compilation of animals either lured
here artificially by sexual scent baiting
or trapped elsewhere and then released,
do not support any scientific conclusion
of authentic habitat and run afoul of the
ethics requirements of biological science
and of the Service.
Our response: The Service used the
best available science to determine
critical habitat for the jaguar. We
understand that some of the jaguar
records may be disputed due to the
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possibility that female scat was used as
a scent lure in some areas, or that some
individuals may have been released for
‘‘canned’’ hunts. Therefore, we removed
all sightings that may have been
influenced by female scat, which we
determined to be from October 3, 2008
(the date of Emil McCain’s request for
jaguar scat from the Phoenix Zoo),
through March 2, 2009 (the date Macho
B was captured and flown to the
Phoenix Zoo), and we did not use
records that may have been from
‘‘canned’’ hunts (Johnson et al. 2011, p.
9). See Table 1 of this final rule for all
of the undisputed Class I jaguar records
used to determine occupancy.
(134) Comment: The Service has given
insufficient consideration of
competition for hunting territories or of
availability of prey species that would
occur in the critical habitat areas if
jaguars were to actually inhabit the
proposed critical habitat. Any increase
in predator population would
necessarily create an imbalance in that
relationship (e.g., an increase in
predator population without an increase
in prey population due to expansion of
jaguar population).
Our response: The designation of
critical habitat does not increase the
number of jaguars present in the United
States. Designated 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. As
discussed in the proposed rule and this
final rule, the purpose of designating
critical habitat in the United States is to
provide areas for transient jaguars (with
possibly a few residents) to support the
nearest breeding area to the south in
Mexico, allowing this population to
expand and contract, and, ultimately,
recover. It is our intent that the
designation of critical habitat will
protect the functional integrity of the
features essential for jaguar life-history
requirements for this purpose into the
future.
(135) Comment: The range of HII
included in the Service’s August 20,
2012, proposed rule is too restrictive
and should be increased. The primary
constituent elements of jaguar critical
habitat should include areas with an HII
of up to 30, if not more.
Our response: The range of HII
included in this final rule (less than 20)
is appropriate. To the greatest extent
possible, we have based jaguar critical
habitat, including the PCE for HII, on
information compiled and produced by
the Jaguar Recovery Team. The Jaguar
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Recovery Team comprises jaguar
experts, large-cat experts, and
stakeholders from the United States and
Mexico; therefore, we consider that the
work produced by the team is the best
available scientific and commercial
data, and that following the team’s
recommendations is the best avenue to
conservation of the species and by
extension designating critical habitat.
Therefore, we have incorporated the
team’s recommendation for HII in the
northern portion of the proposed
Northwestern Recovery Unit as a PCE
for jaguar critical habitat.
(136) Comment: In developing the
PCE of human influence, the Service
assumes that human influence has not
changed over the time period of jaguar
records used in the analysis. Clearly
human population density, the location
and traffic density of major roads, and
the extent of stable nighttime lighting
(three examples of human influence on
which this PCE is based), have changed
over the last century. By using the HII
GIS layer, the Service could grossly
miscalculate the habitat characteristics
associated with jaguar locations from
the early to mid-20th century, including
overestimating the degree of human
influence that jaguars prefer. The
Service should use historical records to
estimate human influence associated
with jaguar locations throughout the
20th century. Without a proper
correction for temporal variation in HII,
the GIS approach taken by the Service
to develop and map PCEs is
fundamentally flawed and
inappropriate.
Our response: The Service recognizes
the temporal variation in human
influence over the time period of jaguar
records used in the analysis. However,
as stated previously, the Act requires
the Service to use the best scientific and
commercial data available. Data
pertaining to the variation of human
influence from 1962 to present is
lacking.
(137) Comment: The Service does not
account for the high level of current and
historic human activity within the
northern Santa Rita Mountains. As a
result of mining operations in the
Greaterville, Rosemont, and Helvetia
areas, the areas surrounding the
proposed Rosemont Project have been
subject to relatively high levels of
human activity for over one and a half
centuries. Given the close proximity of
the northern Santa Rita Mountains to
the second largest metropolitan area in
Arizona and the area’s proximity to
State Highway 83, the area currently
receives heavy human use. In particular,
the areas within and surrounding the
Rosemont Project do not contain the
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necessary PCE associated with low
human influence, and thus should not
be included in the proposed designation
of critical habitat for jaguar.
Our response: We understand there
may be discrepancies due to the
mapping scale of HII (1 km2 (0.4 mi2)),
and have accounted for this in the
textual exclusion of paved or developed
areas that may have been included in
the critical habitat boundary because of
this scale. However, overall HII is the
best available science consistently and
objectively reflecting human influence
on the landscape, and therefore we
continue to use it as the data source for
the human influence PCE. The critical
habitat designation consists entirely of
rural lands, in variously low levels of
development and population density.
All the units are in counties with
population densities lower than their
statewide average, with the exception of
Pima County, which includes the city of
Tucson.
(138) Comment: If the Service
designates critical habitat, a de facto
wilderness will be created and people
and activities will be excluded from
critical habitat.
Our response: Designated critical
habitat does not create a wilderness
area, reserve, or otherwise protected
area. Humans and legal activities are not
excluded from designated critical
habitat. Legal activities that have a
Federal nexus (in that they occur on
Federal lands, require a Federal permit,
or receive Federal funds) will be
evaluated on a case-by-case basis with
respect to section 7 (consultation with
the Service) of the Act to ensure they do
not destroy or adversely modify
designated critical habitat.
(139) Comment: Human influence
appears to be above the defined
threshold within the proposed rule in
the northern Santa Rita Mountains and
should not be included in the proposed
designation of critical habitat for the
jaguar. The GIS layer identified in the
jaguar habitat model entitled ‘‘Human
Footprint,’’ available from
Socioeconomic Data and Applications
Center, does not fit the description
provided in the proposed rule as it is
not a relative index normalized by
biome and its scores range from 0 to 64.
When brought into a GIS, the Human
Footprint layer (which fits the
description provided in the proposed
rule) clearly demonstrates that human
influence is high across a large area
proposed as critical habitat, including
all of the northern Santa Rita Mountains
and the entirety of the Rosemont Project
located within the proposed
designation, as well as Subunit 4b.
Thus, according to the thresholds set
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forth by the proposed rule, the northern
Santa Rita Mountains and the areas
within and surrounding the Rosemont
Project should not be included in the
proposed designation as they do not
include the necessary PCEs.
Our response: In our August 20, 2012,
proposed rule (77 FR 50214), we
incorrectly identified the Human
Footprint (which is measured on a scale
of 0–100) available through
Socioeconomic Data and Applications
Center as the GIS layer used to evaluate
human influence. We did not use the
Human Footprint data, but rather the
Human Influence Index (which is
measured on a scale of 0–64). The
Human Influence Index is the data layer
used in both jaguar habitat models
developed by Sanderson and Fisher
(2011, p. 7; 2013, p. 6) and used to
designate critical habitat for the jaguar.
We have corrected this final rule to
reflect the appropriate data layer.
The Service utilized the Human
Influence Index GIS layer, which is
based on eight input layers (human
population density, railroads, major
roads, navigable rivers, coastlines, stable
nighttime lighting, urban polygons, and
land cover) to describe a relative index
of human influence on the land. This
GIS layer is available from the
Socioeconomic Data and Applications
Center hosted by the Center for
International Earth Science Information
Network at Columbia University
(https://sedac.ciesin.columbia.edu/data/
collection/wildareas-v2/sets/browse).
Please see our response to comment
number 43 for a comprehensive list of
all data sources we used in our analysis.
(140) Comment: Because
approximately 35 percent of the areas
proposed as critical habitat are nonfederal lands, many of the areas
currently associated with high human
influence could experience additional
human impacts from future
development. Critical habitat affords no
protection to actions on private or state
lands that do not require federal actions,
and thus does little to alleviate this
problem. Because of the importance
placed on the PCE of low human
influence by the proposed rule, areas
currently associated with high human
influence should not be included in the
proposed designation.
Our response: We have not included
areas within critical habitat with high
human influence. In the proposed rule
and this final rule we have identified an
HII of less than 20 as an essential PCE
of critical habitat. We understand there
may be discrepancies in some cases due
to the mapping scale of HII (1 km2 (0.4
mi2)), and we have accounted for this in
the textual exclusion of paved or
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developed areas that may have been
included in the critical habitat boundary
because of this scale.
We understand that additional human
impacts from future development on
private or State lands could occur.
However, critical habitat does afford
some protection to the jaguar through
section 7 consultation under 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. 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. Therefore, actions that are
funded, permitted, or carried out by a
Federal agency within jaguar critical
habitat will continue to be evaluated to
determine their impacts on critical
habitat.
(141) Comment: Climate change is a
factor affecting jaguar adaptation and
conservation, and the Service should
include lands at higher elevations and
latitudes in the critical habitat
designation. The Service should
consider that climate change will force
species, such as jaguars, to migrate
north, and designating critical habitat
for the jaguar in the United States is
necessary.
Our response: The Service considered
numerous scientific information sources
as cited in our proposed rule and this
final rule. The Service agrees that the
best available scientific information
shows unequivocally that the Earth’s
climate is currently in a period of
unusually rapid change and the impacts
of that change are already occurring
(National Fish, Wildlife, and Plants
2012, p. 9). The Service recognizes that
some species are shifting their
geographic ranges, often moving
poleward or upwards in elevation
(National Fish, Wildlife, and Plants
2012, p. 10). Range shifts are not always
negative: Habitat loss in one area may be
offset by an increase elsewhere such
that if a species is able to disperse, it
may face little long-term risk. However,
it is clear that shifting distributions can
lead to a number of new challenges
(National Fish, Wildlife, and Plants
2012, p. 26). The synergistic
implications of climate change and
habitat fragmentation are the most
threatening facet of climate change for
biodiversity (Hannah and Lovejoy 2005,
p. 4). The Service acknowledges in the
proposed rule and this final rule that
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climate change has the potential to
adversely affect the jaguar within the
next 50 to 100 years (Jaguar Recovery
Team 2012, p. 32). However, the degree
to which climate change will affect
jaguar habitat in the United States is
uncertain. Further, we do not know
whether the changes that have already
occurred have affected jaguar
populations or distribution, nor can we
predict how the species will adapt to or
be affected by the type and degree of
climate changes forecast. Consequently,
because the specific impacts of climate
change on jaguar habitats remains
uncertain at this time, we did not
recommend that any areas be designated
as critical habitat specifically to account
for the negative effects of climate
change.
(142) Comment: It is inappropriate for
the Service to address climate change
within the critical habitat designation
area for the jaguar because of the lack
of data or accurate down-scaled climate
modeling. Climate change information
from the IPCC is flawed; therefore, the
Service should not consider it.
Our response: See our response to
comment number 59 in Comments from
States above.
(143) Comment: The Service received
multiple comments regarding climate
change. Some thought there was not
sufficient information on climate change
for the Service to determine impacts to
the jaguar. Others thought that there is
more than enough information on
impacts from climate change, which the
Service did not adequately consider.
Our response: As required by section
4(b)(1)(A) of the Act, we use the best
scientific and commercial data available
to designate critical habitat. We
reviewed all available information
pertaining to climate change and the
jaguar, but climate change data specific
to jaguars or similar species is scarce.
The Service recognizes that the best
available scientific information shows
unequivocally that the Earth’s climate is
currently in a period of unusually rapid
change and the impacts of that change
are already occurring (National Fish,
Wildlife, and Plants 2012, p. 9).
However, because the specific impacts
of climate change on jaguar habitats
remain uncertain at this time, we did
not recommend any areas be designated
as critical habitat specifically to account
for the negative effects of climate
change. Please see our response to
comment number 33 in Peer Reviewer
Comments above.
(144) Comment: The Service should
not consider climate change because it
is not certain to occur, or may not occur
to the severity that is predicted by
experts.
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Our response: Please see our response
to comment number 59 in Comments
from States above.
(145) Comment: Clarify if highways
and the City of Sierra Vista were
excluded from critical habitat
designation.
Our response: Yes, these areas are not
included in the critical habitat
designation. When determining critical
habitat boundaries within this final rule,
we made every effort to avoid including
developed areas such as lands covered
by buildings, pavement, roads, cities,
and other structures because such lands
lack physical or biological features for
jaguars. 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 final rule have been
excluded by text in the rule and are not
designated as critical habitat. Therefore,
a Federal action involving these lands
will 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.
(146) Comment: The Service did not
adequately analyze whether or not
critical habitat areas would require
special management of the physical and
biological feature and PCEs. Areas that
are managed in a way that maintains the
physical or biological features essential
to the species do not meet the statutory
definition of critical habitat and,
therefore, are not eligible to be
designated as critical habitat. The
proposed rule does not contain these
findings. Instead, the proposed rule
contains broad generalizations regarding
threats to the species and pronounces
that special management is needed to
address the threats without assessing
whether existing protections are
adequate.
Our response: The Act does not
require that the Service evaluate the
inadequacy of existing regulatory
mechanisms for critical habitat
designation. The Act requires the
Service to analyze this factor to
determine whether a species is
endangered or threatened. Under the
Act critical habitat is defined as the
geographical area occupied by the
species at the time of listing that
contains those physical or biological
features that: are essential to the
conservation of the species and which
‘‘may’’ require ‘‘special management’’
considerations or protection. It does not
state that critical habitat contain those
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physical or biological features where
‘‘additional’’ special management is
‘‘needed’’. In Center for Biological
Diversity v. Norton, 240 F. Supp. 2d
1090 (D. Ariz. Jan. 13, 2013), the court
stated that the fact that habitat is already
under some sort of conservation
management indicates that such habitat
is critical. Therefore, special
management considerations or
protection of the habitat features
comprising jaguar critical habitat may
be necessary.
(147) Comment: Special management
of jaguar critical habitat is not required
because of the cooperative management
efforts and achievements of the Jaguar
Conservation Team. Additionally, the
Arizona Game and Fish Department and
New Mexico Department of Game and
Fish, with assistance from the Service
and other cooperators, have already
carefully crafted a Memorandum of
Understanding and Conservation
Framework to maintain the jaguar’s core
commitments in several areas of
conservation; therefore, no special
management is required.
Our response: We appreciate and
acknowledge the work conducted by the
Jaguar Conservation Team and the
States since 1997. However, as stated in
our response to comment number 60 in
Comments from States above and
comment number 146 in Public
Comments above, special management
considerations or protection of the
habitat features comprising jaguar
critical habitat may be necessary.
(148) Comment: Special management
along the border could be waived to
address national security issues.
Our response: We understand that
laws related to the expeditious
construction of border infrastructure in
areas of high illegal entry may be
waived by the Secretary of DHS, and we
have discussed this issue in the Special
Management Considerations or
Protections section of this final rule. As
also noted in this final rule, we know of
no plans to construct additional security
fences in the designated critical habitat,
although should future national security
issues require additional measures, the
Secretary of DHS may invoke the
waiver, and special management
considerations would continue to occur
on a voluntary basis on activities
covered by a waiver. Other forms of
border infrastructure, however, do not
fall under this waiver (construction of
towers, for example); therefore, special
management considerations apply to
these projects, and we consult with DHS
to minimize the impacts to listed
species and their critical habitat.
(149) Comment: McCain and Childs
(2008) misstate the total number of
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jaguar records in the United States,
incorrectly calculate percentages based
on these records, and improperly round
their results to create the false illusion
of an extinction crisis in the United
States.
Our response: We disagree. We have
reviewed McCain and Childs (2008) and
did not find there to be misstatements
and miscalculations in the report.
Additionally, McCain and Childs (2008)
is a peer-reviewed article published in
a reputable journal (Journal of
Mammalogy). Therefore, we continue to
utilize information in this article as
some of the best available science.
(150) Comment: The recovery outline
for the jaguar states that water for
jaguars must be made available within
10 km (6.2 mi) year round for ‘‘high
quality’’ jaguar habitat to exist in the
American Southwest and within 20 km
(12.4 mi) by use of this rule everywhere
else in the area proposed as critical
habitat for jaguar. This water
requirements for jaguars described in
the proposed rule raise water resources
issues that require active cooperation
between the Service and local
governmental entities to resolve in
concert with the development of critical
habitat for the jaguar under section
2(c)(2) of the Act. The Service has
refused, and is continuing to refuse, to
resolve water resource issues associated
with the designation of critical habitat
for jaguar.
Our response: We recognize our
responsibilities under section 2(c)(2) of
the Act to cooperate with State and local
agencies to resolve water resource issues
in concert with conservation of
endangered species, such as the jaguar.
We look forward to working with the
water resource agencies to resolve any
such issues. However, this cooperation
is, for the most part, independent of our
requirement under section 4(a)(3)(A) of
the Act to designate critical habitat for
the jaguar. Impacts to water
management and resource activities are
not expected to be controversial
because, as discussed in the analysis of
impacts on water resources, the
constraints on current water
management activities are expected to
be limited (Mangi Environmental Group
2013).
(151) Comment: Executive Order
13563 of January 18, 2011 (Improving
Regulation and Regulatory Review),
explicitly states that our ‘‘regulatory
system must protect public health,
welfare, safety, and our environment
while promoting economic growth,
innovation, competitiveness, and job
creation.’’ Consistent with this mandate,
Executive Order 13563 requires agencies
to tailor ‘‘regulations to impose the least
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burden on society, consistent with
obtaining regulatory objectives.’’ It also
requires agencies to ‘‘identify and
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice’’ while selecting
‘‘those approaches that maximize net
benefits.’’ To the extent permitted by
law, our regulatory system must respect
these requirements.
Our response: We have followed, and
will continue to follow, the directives in
Executive Order 13563. As part of the
process to designate critical habitat, we
have completed an economic analysis
on the potential incremental impacts of
the designation. Critical habitat only
affects Federal actions through a
requirement to consult on those actions
that may affect critical habitat to ensure
they do not adversely modify critical
habitat.
(152) Comment: Lands within the
critical habitat areas already have land
protection due to Federal or Tribal
ownership or local land management
plans. In contrast, we also received
comments stating that the lands within
critical habitat areas are not protected
adequately for jaguar conservation.
Our response: We recognize that some
lands within the designation are already
being managed for conservation
purposes that provide some benefits to
the jaguar. Section 4(b)(2) of the Act
states the Secretary may exclude an area
from critical habitat if she determines
that the benefits of such exclusion
outweigh the benefits of specifying such
area as part of the critical habitat, unless
she 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 Secretary has broad discretion
regarding which factor(s) to use and
how much weight to give to any factor.
In the proposed rule we acknowledge
that some areas within the proposed
designation are included in
management plans or other large-scale
habitat conservation plans including the
Forest Service, National Park Service,
Fish and Wildlife Service refuge, Bureau
of Land Management, Malpai Habitat
Conservation Plan, Pima County’s Draft
Multi-Species HCP, State Wildlife
Action Plans, and Jaguar Conservation
Agreements between the Arizona Game
and Fish Department and New Mexico
Department of Game and Fish. However,
these plans do not specifically address
jaguar habitat.
In the proposed rule we noted that we
were considering exempting Fort
Huachuca and excluding the Tohono
O’odham Nation. We have reviewed the
comments from the public on these
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matters. We have determined that the
benefits of excluding the Tohono
O’odham Nation outweigh the benefits
of inclusion. In regards to Fort
Huachuca, the Service has exempted
Fort Huachuca from critical habitat
designation based on their INRMP. See
the Exemptions and Exclusions sections
of this final rule for additional
information.
(153) Comment: The jaguar is already
protected in the United States by both
Federal and State laws.
Our response: The jaguar does already
receive some protection under the Act
as a Federally listed species. However,
the Service has determined that
designation of critical habitat for the
jaguar is prudent and determinable
based on the best available scientific
data available. Section 4(a)(3)(A) of the
Act states that critical habitat shall be
designated for endangered and
threatened species to the maximum
extent prudent and determinable.
Therefore, we are required to designate
critical habitat for the jaguar to fulfill
our legal and statutory obligations. See
our response to comment number 1 in
the Peer Reviewer Comments above.
Further, critical habitat does afford
protection to the jaguar through section
7 consultation under 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. 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.
Therefore, actions that are funded,
permitted, or carried out by a Federal
agency within jaguar critical habitat will
continue to be evaluated to determine
their impacts on critical habitat.
(154) Comment: The primary threat to
jaguars is through hunting and other
activities that ‘‘take’’ individuals, not
habitat fragmentation.
Our response: As discussed in the
Special Management Considerations or
Protections section of this final rule,
there are threats to the physical or
biological feature essential to the
conservation of jaguar habitat that may
require special management. Jaguar
habitat and the features essential to their
conservation are threatened by the
direct and indirect effects of increasing
human influence into remote, rugged
areas, as well as projects and activities
that sever connectivity to Mexico. In the
past, the primary threat to jaguars in the
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United States was illegal shooting (see
listing rule for a detailed discussion);
however, this is no longer accurate, as
the most recent known shooting of a
jaguar in Arizona was in 1986 (Brown
´
and Lopez Gonzalez 2001, p. 7). Please
see the 1997 clarifying rule (62 FR
39147; July 22, 1997) and the Recovery
Outline for the Jaguar (Jaguar Recovery
Team 2012, entire) for more information
about threats to jaguars.
(155) Comment: The designation of
private lands as critical habitat will
affect private property rights.
Specifically, designated critical habitat
will limit the use and enjoyment of the
property, impact ongoing maintenance
and improvement, limit or modify
ranching practices, and curtail other
legal uses of the property. Designating
critical habitat for the jaguar will result
in regulatory takings of an individual’s
livelihood and, ultimately, his or her
property.
Our response: As stated in our
proposed rule, the Service has followed
Executive Order 12630 (‘‘Government
Actions and Interference with
Constitutionally Protected Private
Property Rights’’). The designation of
jaguar critical habitat is not anticipated
to have significant takings implications
for private property rights. As discussed
in the Critical Habitat section of this
final rule, the designation of critical
habitat affects only Federal actions.
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. Due to current
public knowledge of the species’
protections and the prohibition against
take of the species both within and
outside of the proposed areas, we do not
anticipate that property values would be
affected by the critical habitat
designation. Our economic analysis for
proposed critical habitat designation
found only limited incremental impacts
of the designation and extremely small
impacts on activities on private lands.
(156) Comment: It was inappropriate
to use roads as a natural boundary to
designate jaguar critical habitat.
Our response: We did not use roads
as a natural boundary to designate
critical habitat. Instead, critical habitat
units are defined by the PCEs around
which they are based, one of which
includes roads as part of the human
influence on the landscape (the Human
Influence Index), but the use of roads in
the definition of critical habitat units is
only to give context to the location of
the unit, not as the official unit
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description. See the maps for the official
boundaries themselves.
(157) Comment: The Service should
acknowledge that new jaguar
observations within the United States
could lead to revisions in the
designation of critical habitat.
Our response: We acknowledge that
the Act authorizes the Service to make
revisions to designated critical habitat.
If in the future the best available
information at that time indicates
revision of critical habitat is
appropriate, and if resources are
available we may revise this critical
habitat designation.
(158) Comment: The Service
incorrectly stated that jaguars in the
United States and northwestern Mexico
represent the northernmost extent of the
jaguar’s range, with populations
persisting in distinct ecological
conditions demonstrated by xeric
(extremely dry) habitat that occurs
nowhere else in the species’ range
(Sanderson et al. 2002, entire).
Sanderson et al. (2002, p. 64) does
briefly mention the persistence of the
populations in arid regions in Sonora,
but also identifies areas in Venezuela
and Brazil as xeric habitat that jaguars
currently inhabit (Sanderson et al. 2002,
Table 2). The populations in Venezuela
and Brazil have shorter and more
numerous corridors to connect
populations in this area, thus facilitating
gene flow. This contradicts the Service’s
assertion that jaguars in the United
States are important sources of genetic
resources, and, therefore, connectivity
to Mexico is essential to the
conservation of the jaguar.
Our response: We have modified this
language in this final rule. See the
Jaguar Recovery Planning in Relation to
Critical Habitat section above in this
final rule.
(159) Comment: The Service provided
no evidence that population genetic
resilience or persistence will be
improved for jaguars by designating
critical habitat in the United States. No
empirical evidence was presented in the
proposed designation that jaguars
observed in the United States represent
a genotype different from the closest
breeding population of jaguars 209 km
(130 miles) to the South in Mexico.
Our response: As described in this
final rule, jaguars in the United States
and northwestern Mexico represent the
northernmost extent of the jaguar’s
current range, representing a population
persisting in one of only four distinct
xeric (extremely dry) habitats that occur
within the species’ range (Sanderson et
al. 2002, Appendix 1). We did not
determine that jaguars in the United
States represented a different genotype
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than those from the closest breeding
population in Mexico; rather, jaguars in
the United States are likely dispersing
from the nearest breeding population in
Mexico, and the conservation role or
value of jaguar critical habitat is to
provide areas to support these
individuals during transient movements
by providing patches of habitat (perhaps
in some cases with a few resident
jaguars), and as areas for cyclic
expansion and contraction of the nearest
core area and breeding population in the
Northwestern Recovery Unit.
(160) Comment: The critical habitat
designation and the direction outlined
in the Recovery Outline relies on
connectivity to Mexico for the recovery
of jaguars, but this connectivity may be
impacted by current and potential
future border security efforts, primarily
efforts to secure the international border
with Mexico through the use of various
types of fencing, towers, lighting, and
roads. The Service incorrectly presumes
that border security infrastructure will
not continue.
Our response: We acknowledge that
there may be some potential impacts
related to border security infrastructure
and maintaining habitat connectivity for
jaguars between the United States and
Mexico. However, as indicated in the
proposed rule and this final rule, there
are critical habitat areas that are not
impacted by existing border
infrastructure and which continue to
provide habitat connectivity to Mexico.
These areas are typically very steep and
rugged and not conducive to the
construction of fences or roads. We do
not anticipate that additional fencing or
roads will be constructed in designated
critical habitat due to the prohibitive
cost and engineering constraints. If such
projects are proposed, the designation of
critical habitat will provide a regulatory
layer of evaluation that will allow us to
work with Federal agencies and
landowners to resolve issues related to
border security, but also ensure that the
elements of jaguar critical habitat are
maintained and functioning to the
extent that the law allows, and that will
facilitate cross-border movements by
jaguars.
(161) Comment: Critical habitat
designation along the U.S.-Mexico
border is in conflict with national
security and continued border security
efforts and is not prudent. It appears
that the Service wants to stop the Border
Patrol from protecting our borders,
restrict or completely halt road
widening and construction of roadways,
powerlines, pipelines, etc., and restrict
or completely halt all mineral extraction
and mining.
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Our response: We do not anticipate
that the designation of critical habitat
for the jaguar will prevent the
implementation of solutions that
address national security. Further,
environmental laws and regulations
related to the expeditious construction
of border infrastructure in areas of high
illegal entry may be waived by the
Secretary of DHS. We will continue to
comply with directives related to border
security and work with the Federal
agencies involved in border security
through existing processes, including
section 7 consultation. If the
consideration of environmental laws
and regulations is waived in order to
address national security, we will
continue to work with the Federal
agencies to incorporate measures into
infrastructure design and construction
that will avoid or minimize effects of
these actions on jaguar habitat
connectivity. In regards to the
designation of critical habitat not being
prudent, see our response to comment
number 1 in the Peer Reviewer
Comments above.
(162) Comment: Existing agreements,
such as the Memorandum of
Understanding (MOU) between the
Coronado National Forest (CNF) and
Customs and Border Protection (CBP),
are adequate to resolve environmental
issues and reduce impacts to national
security, and there is no need for the
designation of critical habitat for the
jaguar.
Our response: Based on the best
available scientific data available, the
Service has determined that designation
of critical habitat for the jaguar is
prudent and determinable. See our
response to comment number 1 in the
Peer Reviewer Comments above.
(163) Comment: The Service should
not exclude mining claims from critical
habitat. The Service should forbid
mining within critical habitat. All PCEs
(and particularly connectivity to
Mexico) will be impacted by mining,
causing further habitat fragmentation.
Our response: We are not excluding
mining claims from critical habitat.
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. See our response
to comment number 64 above in
Comments from States for discussion on
exclusions, and see our response to
comment number 71 in Public
Comments for discussion on excluding
the Rosemont Mine. Rather, all projects
with a Federal nexus proposed within
jaguar critical habitat in the United
States will be evaluated on a case-by-
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case basis with respect to section 7 of
the Act.
The conservation value of the
Rosemont Mine area is important to the
jaguar for maintaining connectivity with
the other critical habitat units and with
Mexico. Regarding the Hermosa project,
although it is too early to begin a section
7 consultation because the project is
still in the early planning stages, the
economic impacts are expected to be
much the same as for Rosemont Mine.
The Hermosa project is in the same
occupied unit and, therefore,
incremental costs are expected to be
low. The conservation value of this area
for the jaguar may be even greater than
for the Rosemont area because the
Hermosa project is only 9 miles north of
the U.S.-Mexico border, meaning that
this area is very important for
maintaining connectivity to Mexico.
Unlike more permanent habitat
alterations such as building
construction and asphalt paving, mines
are temporary habitat disturbances and
their effects can be mitigated following
their economic lifespan. The economic
life of Rosemont Mine is forecast to be
21 years, after which time conservation
measures such as restoration of surface
springs and revegetation of the mine
reclamation area would take place. The
Rosemont Mine area of critical habitat
can be an important tool for promoting
conservation of the jaguar and will
continue to have conservation value for
the species post-reclamation.
(164) Comment: The essential element
of water within 20 km (12.4 mi) of each
other is not met without relying on
livestock water tanks created on ranch
lands.
Our response: We acknowledge that
in some cases water sources may be
stock tanks, which may be used by any
number of wildlife, including jaguars.
Many stock tanks, however, are not
included in the USGS NHD data layer,
and other sources of water are available
across the landscape, as well. We also
understand that the availability of water
across the landscape during the year is
variable, based on a variety of climatic
factors and ranch management
practices. Even with the variability, and
the fact some water sources may be
provided by stock tanks, the best
available scientific data provided by the
USGS NHD data layer indicates that
there is sufficient water available for
jaguars within the final critical habitat
designation.
(165) Comment: Jaguars and livestock
ranching are not compatible.
Our response: The jaguar is already
present in the United States (see Table
1 in this final rule) and protected under
the Act as a listed species. Designation
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of critical habitat does not change the
status of the species, nor does it imply
that we are proposing to introduce
jaguars into these areas or that critical
habitat is being designated with the
expectation that a jaguar population will
eventually reside in these areas. As
discussed in the proposed rule and this
final rule, the purpose of designating
critical habitat in the United States is to
provide areas for transient jaguars (with
possibly a few residents) to support the
nearest breeding area to the south,
allowing this population to expand and
contract, and, ultimately, recover. It is
our intent that the designation of critical
habitat will protect the functional
integrity of the features essential for
jaguar life-history requirements for this
purpose into the future.
In terms of cattle depredation due to
jaguars, we understand this may occur,
and are aware of one recent (2007)
jaguar depredation event in the United
States in the Altar Valley area (McCain
and Childs 2008, pp. 4–5). The
designation of critical habitat does not
alter or increase this possibility. We are
aware, however, of the concern that
cattle depredations may occur in the
future, and we are working with the
Jaguar Recovery Team to develop
strategies to avoid these types of
conflicts. We will include these
strategies and actions in the draft
Recovery Plan for the Jaguar.
In addition, 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. See the
Critical Habitat section of this final rule
for further information on critical
habitat designation.
(166) Comment: The Service should
increase the range of canopy cover used
to delineate critical habitat (which was
3–40 percent in the proposed rule).
Our response: In the revised rule and
this final rule the Service increased the
range of canopy cover to greater than 1
to 50 percent tree cover. Sanderson and
Fisher (2011, p. 7; 2013, pp. 5–6) also
added a digital layer to capture canopy
cover (called land cover in the reports),
as represented by a digital layer called
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tree cover. In the latest version of the
model (version 13), Sanderson and
Fisher (2013, p. 20) analyzed the tree
cover preferred by jaguars in the Jalisco
Core Area (the southernmost part of the
Northwestern Recovery Unit) separately
from tree cover in all other areas (note
that p. 15 of this report incorrectly states
that the Sinaloa Secondary Area is
included with the Jalisco Core Area in
this analysis) to reflect the major habitat
shift from the dry tropical forest of
Jalisco, Mexico, to the thornscrub
vegetation of Sonora, Mexico. The
results of these analyses indicate that
jaguars in the southernmost part of the
Northwestern Recovery Unit (the Jalisco
Core Area) seem to inhabit a wider
range of tree cover values (greater than
1 to 100 percent), whereas jaguars
throughout the rest of the Northwestern
Recovery Unit (including the United
States) appear to inhabit a narrower
range of tree cover values (greater than
1 to 50 percent) (Sanderson and Fisher,
p. 20).
(167) Comment: The designation
should include biotic communities
other than Madrean evergreen woodland
and semidesert grassland.
Our response: To define the physical
and biological features required for
jaguar habitat in the United States, we
are relying on information provided by
the Jaguar Recovery Team, which we
consider the best available science. This
information was provided in two habitat
modeling reports, Sanderson and Fisher
(2011, pp. 1–11) and Sanderson and
Fisher (2013, entire). Additionally (and
as also described in our response to
comment number 43 in Comments from
States above), the Service analyzed a
subset of recent, highly accurate jaguar
locations from Mexico and the United
States to determine if filtering the
observations in this way would
influence the frequency that these
observations occurred across the range
of habitat variables.
As described in our response to
comment number 43 in Comments from
States above, the results of our
additional analysis indicate that the
overall pattern in frequency of jaguar
observations using these highly accurate
locations relative to the habitat variables
is similar to the patterns observed using
the entire data set used for version 13
of the habitat model (Sanderson and
Fisher 2013, entire). Specifically related
to tree cover and biotic communities, 95
percent of these highly accurate
locations are found in greater than 1 to
50 percent tree cover (for all jaguar
observations except those in the
southernmost part of the Northwestern
Recovery Unit), and, within the United
States, 95 percent (of the 44 locations
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total within the United States) are
within Madrean evergreen woodland
(43 percent) and semidesert grassland
(52 percent). Therefore, we determine
that a tree cover of greater than 1 to 50
percent, and biotic communities
described as Madrean evergreen
woodland and semidesert grassland,
comprise the vegetation PCE of the
physical or biological feature for jaguar
critical habitat.
(168) Comment: The Service should
include higher elevation areas as critical
habitat.
Our response: As described in this
final rule, we did not include areas
higher than 2,000 m (6,562 ft) in
elevation because information provided
by the Jaguar Recovery Team, which we
consider the best available science,
indicates that areas above 2,000 m
(6,562 ft) do not provide jaguar habitat,
as only 3.3 percent (15 of 453) of the
observations utilized in the most recent
jaguar habitat modeling effort occur
above this elevation (Sanderson and
Fisher 2013, pp. 19, 29; note that p. 19
incorrectly states 20 observations above
2,000 m (6,562 ft) instead of 15, and
Table 1.3 incorrectly states 452 jaguar
observations total instead of 453).
Consequently, our revised proposed rule
and this final rule include an upperelevation limit of 2,000 m (6,562 ft) to
define jaguar critical habitat.
(169) Comment: Habitat conditions
associated with jaguar locations may be
inaccurate because the jaguar may have
been chased to that location during a
hunting event, and, therefore, the
location may not represent the habitat in
which it was residing.
Our response: The Service has used
the best scientific and commercial data
available as required by the Act. As
described above, we determine that the
range of tree cover included in the latest
habitat model (Sanderson and Fisher
2013, entire) is not unreliable, and that
the biotic communities of Madrean
evergreen woodland and semidesert
grassland provide the best, and,
therefore, essential, jaguar habitat
within the United States. See our
response to comment number 43 in
Comments from States above.
(170) Comment: Habitat conditions
associated with jaguar locations may be
inaccurate because we did not account
for the temporal variation in habitat
conditions across the timeframe of
detections, and that we instead assume
that current habitat characteristics of
jaguar locations (such as canopy cover)
are exactly the same as the
characteristics present at the time of
detection, whereas they likely are not.
The Service should use Turner et al.
(2003) as a reference for changes in
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vegetation characteristics in portions of
the Southwest over time.
Our response: We investigated Turner
et al. (2003), and, while informative, a
method for consistently and objectively
determining and mapping the temporal
vegetation changes across the entirety of
southern Arizona and southwestern
New Mexico is not provided.
Additionally, see our response to
comment number 43 in Comments from
States above.
(171) Comment: Habitat conditions
associated with jaguar locations may be
inaccurate because we excluded 30
percent of the 333 occurrences to find
that 70 percent were in areas of 3 to 60
percent tree cover.
Our response: See our response to
comment number 43 in Comments from
States above.
(172) Comment: The Service should
expand the categories of ruggedness
considered as critical habitat to include
more level and extremely rugged areas.
Specifically, Sanderson and Fisher
(2011) graphically depict approximately
112 occurrence records in areas of
‘‘level,’’ ‘‘nearly level,’’ and ‘‘slightly
rugged’’ terrain, which is more than half
of the approximately 208 occurrences in
‘‘intermediately,’’ ‘‘moderately,’’ and
‘‘highly’’ rugged terrain.
Our response: We determine that the
range of terrain ruggedness categories
included in the latest habitat model
(Sanderson and Fisher 2013, entire)
accurately reflects the best, and,
therefore, critical, jaguar habitat in the
United States. See our response to
comment numbers 43 and 63 in
Comments from States above.
(173) Comment: The Service should
exclude areas within 6.5 km (5 miles) of
a well-used road rather than 4.5 km (2.8
miles) as discussed in the proposed
rule.
Our response: The Service did not use
an exclusion area of 6.5 km (5 miles) or
4.5 km (2.8 miles) around well-used
roads in the proposed rule, and we are
not using such parameters in this final
rule. In the proposed rule we evaluated
the best available scientific data,
including Zarza et al. (2007, pp. 107,
108), which reported that towns and
roads had an impact on the spatial
distribution of jaguars in the Yucatan
peninsula, where jaguars used areas
located more than 6.5 km (4 mi) from
human settlements and 4.5 km (2.8 mi)
from roads. However, we did not use
this data to develop our PCE for human
disturbance. The Service identified a
PCE characterized by minimal to no
human population density, no major
roads, or no stable nighttime lighting
over any 1 km2 (0.4 mi2) area. This is
based on the HII used in the habitat
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model developed by Sanderson and
Fisher (2011, pp. 5–11, 2013 p. 6). In the
latest version of the habitat model
(Sanderson and Fisher 2013, entire),
jaguar habitat was partly defined by an
HII of less than 20 in the northernmost
part of the Northwestern Recovery Unit.
Additionally (and as also described in
our response to comment number 43 in
Comments from States above), the
Service analyzed a subset of recent,
highly accurate jaguar locations from
Mexico and the United States to
determine if filtering the observations in
this way would influence the frequency
that these observations occurred across
the range of habitat variables.
(174) Comment: Future roads and
transmission lines could cause habitat
fragmentation.
Our response: The Service recognizes
that an increase in road density and
human settlements tends to fragment
habitat and isolate populations of
jaguars and other wildlife (Noss et al.
1996 and Carroll et al. 2001, as cited by
Menke and Hayes 2003, p. 12).
However, in our economic analysis, no
major roads or transmission lines were
identified within jaguar critical habitat.
Further, future road and transmission
lines with a Federal nexus proposed
within jaguar critical habitat in the
United States will be evaluated on a
case-by-case basis with respect to
section 7 of the Act.
(175) Comment: Critical habitat units
that are to provide continuous habitat
within the United States and subunits
that are to provide connectivity to
Mexico are crossed by roads with high
traffic volumes and do not meet the
Service’s PCEs.
Our response: The Service recognizes
that jaguar critical habitat contains
roads; however, the presence of roads
does not preclude an area from meeting
PCE 7, pertaining to human influence.
PCE 7 is characterized by minimal to no
human population density, no major
roads, or no stable nighttime lighting
over any 1 km2 (0.4 mi2) area. The PCE
does not stipulate the complete absence
of roads; rather the PCE stipulates no
major roads over the specified area (see
https://sedac.ciesin.columbia.edu/data/
set/wildareas-v2-human-influenceindex-geographic/maps).
(176) Comment: Jaguars avoid human
disturbance but male jaguars readily
cross roadways and areas of human
activity. Areas of human disturbance
and roads do not prevent jaguars from
using these areas.
Our response: In our proposed rule,
the Service recognizes that male jaguars
have been documented near roads, but
the data do not indicate that this is
where the majority of jaguar sightings
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occur. Studies have also shown that
jaguars selectively use large areas of
relatively intact habitat away from
certain forms of human influence. The
Act requires us to determine critical
habitat based on the physical and
biological features essential to the
jaguar; we determined that the most
recent habitat model (Sanderson and
Fisher 2013, entire), which uses the
human influence index, provides the
best available scientific data to
determine these features.
(177) Comment: The Service should
consider the impacts of smaller roads on
wildlife, which have been well
documented, in regards to how small
roads could impact jaguar critical
habitat. In addition to negative impacts
on wildlife, primitive roads damage
soils, vegetation, air quality, water
quality, and archeological artifacts, and
introduce noxious, nonnative species
into forests where they often outcompete native species. The
environmental effects of roads, road
density, and off-road recreational
activity are not individual, but rather
cumulative and synergistic because
seemingly small, individual impacts
may result in large-scale changes in the
reproductive success and survival of
organisms, thereby altering the ecology
of an area.
Our response: While the Service did
not specifically consider impacts of
smaller roads, the Service used the
human influence index (HII), which is
characterized by minimal to no human
population density, no major roads, or
no stable nighttime lighting over any 1square-km (0.4-square-mi) area. This is
based on the HII used in the habitat
model developed by Sanderson and
Fisher (2011, pp. 5–11, 2013 p. 6). In the
latest version of the habitat model
(Sanderson and Fisher 2013, entire),
jaguar habitat was partly defined by an
HII of less than 20 in the northernmost
part of the Northwestern Recovery Unit.
Additionally (and as also described in
our response to comment number 43 in
Comments from States above), the
Service analyzed a subset of recent,
highly accurate jaguar locations from
Mexico and the United States to
determine if filtering the observations in
this way would influence the frequency
that these observations occurred across
the range of habitat variables.
The results of our additional analysis
indicate that the overall pattern in
frequency of jaguar observations using
these highly accurate locations relative
to the habitat variables is similar to the
patterns observed using the entire data
set used for the updated habitat model
(Sanderson and Fisher 2013, entire).
Specifically related to HII, 97 percent
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are located in areas where the HII is less
than 20, which is the range of HII that
the Jaguar Recovery Team determined to
provide the best jaguar habitat in the
northernmost portion of the proposed
Northwestern Recovery Unit. Therefore,
based on this information, we identify
areas in which the HII calculated over
1-square km (0.4-square mi) is 20 or less
as an essential component of the
physical or biological feature essential
for the conservation of the jaguar in the
United States. These areas are
characterized by minimal to no human
population density, no major roads, or
no stable nighttime lighting over any 1square km (0.4-square mi) area. We
consider that the human influence PCE,
as determined by the Human Influence
Index, adequately captures the impact of
roads (see https://
sedac.ciesin.columbia.edu/data/set/
wildareas-v2-human-influence-indexgeographic/maps).
(178) Comment: Since jaguar recovery
in the United States is contingent upon
recovery in Mexico, it is important to
ensure that any United States Federal
activities do not jeopardize the jaguar,
adversely modify its habitat, or destroy
its habitat in Mexico. To the extent that
the Mexican Government has identified
jaguar habitat that is critical to the
species, the United States should
incorporate that designation by
reference in its critical habitat
designation, as well as any eventual
recovery plan for the species. And
where an agency action could result in
jeopardy or potentially adversely
modify habitat in Mexico, that agency
must consult with the Service.
Our response: We do agree that
conservation of the jaguar and its habitat
in Mexico is vital to its recovery.
Therefore, we will continue to work
with our partners in Mexico toward
conservation of the species there. Our
regulations for critical habitat
designation (50 CFR 424.12(h))
specifically preclude designation of
lands outside of the U.S. jurisdiction.
Therefore, we did not designate any
areas in Mexico as critical habitat. In
addition, our section 7 consultation
implementing regulations (50 CFR
402.01) limit the definition of an action
to all activities or programs of any kind
authorized, funded, or carried out, in
whole or in part, by Federal agencies in
the United States or upon the high seas.
Therefore, we do not consult on Federal
actions outside of these areas.
Exclusions and Exemptions
(179) Comment: The Service should
exclude the City of Sierra Vista.
Our response: Critical habitat does not
include developed areas such as lands
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covered by buildings, pavement, and
other structures because such lands lack
the physical or biological feature
necessary for jaguars. 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 final rule have been
excluded by text in the rule and are not
designated as critical habitat.
(180) Comment: The interests of
national security and economic stability
outweigh benefits of critical habitat
designation.
Our response: The Service has
conducted an analysis of impacts to
national security and economics. The
results of this analysis indicate that
designation of critical habitat will not
affect national security or economics. A
copy of the final economic analysis with
supporting documents may be obtained
by contacting the Arizona Ecological
Services Fish and Wildlife Office (see
ADDRESSES) or by downloading from the
Internet at https://www.regulations.gov.
See the Application of Section 4(b)(2) of
the Act section of this final rule.
(181) Comment: The Service should
exclude Cochise County because the
Cochise County Comprehensive Plan
(amended in 2011) already provides
habitat conservation for the jaguar
making critical habitat unnecessary.
Our response: Critical habitat does not
include developed areas such as lands
covered by buildings, pavement, and
other structures because such lands lack
the physical or biological feature
necessary for jaguars. 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 final rule have been
excluded by text in the rule and are not
designated as critical habitat.
(182) Comment: The Service should
exclude the residential subdivision
located east of State Highway 83 in
Subunit 4b (formerly within Subunit 4b,
now within Unit 3). Excluding these
areas will not cause the species’
extinction.
Our response: Critical habitat does not
include developed areas such as lands
covered by buildings, pavement, and
other structures because such lands lack
the physical or biological feature
necessary for jaguars. 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
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such lands inadvertently left inside
critical habitat boundaries shown on the
maps of this final rule have been
excluded by text in the rule and are not
designated as critical habitat.
NEPA
(183) Comment: The Service should
complete a full environmental impact
analysis because of the degree to which
the action may establish a precedent for
future actions with significant effects or
represents a decision in principle about
a future consideration.
Our response: The designation of
critical habitat by the Service for the
conservation of endangered species is
not a precedent-setting action with
significant effects. The agency has
designated critical habitat for numerous
other species.
(184) Comment: The Service should
complete a full environmental impact
analysis because the Service re-defines
the time of listing as a 50-plus-year time
period, which is arbitrary and
capricious.
Our response: The time of listing (for
the purpose of determining whether it
can be properly considered critical
habitat) has no relevance in evaluating
impacts to the human environment. In
the context of an environmental
assessment, the evaluation of the
impacts of critical habitat designation
focuses on outcomes of the potential
increase in section 7 consultations
resulting from the designation, since the
designation does not itself produce or
authorize direct physical impacts. For
the jaguar, the Service’s classification of
whether a particular area was occupied
at the time of listing or not (for the
purpose of determining whether it can
be properly considered critical habitat)
has no relevance to determining section
7 consultation outcomes and the
impacts of critical habitat designation.
Given the secretive and transient nature
of the jaguar, Federal land managers
currently take steps to protect the jaguar
even without critical habitat in areas
that are considered by the Service to be
both occupied and unoccupied at the
time of listing. In determining whether
there is a possibility that a project or
action would jeopardize the species, the
Service considers what impact may
occur to actual members of the species.
In a section 7 context, it does not matter
whether the area in question was
occupied at the time of listing or
whether it was occupied at a later time;
the key question is whether the
geographical area is occupied at the
time the section 7 consultation is
conducted. Therefore, because of
current Federal land management
practices, the Service does not
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anticipate that designation of critical
habitat would result in consultations
that would not otherwise take place for
jeopardy analysis in all designated
critical habitat areas.
(185) Comment: The draft
environmental assessment is inadequate
because it fails to consider reasonable
alternatives submitted by the public and
provide reasons for eliminating these
recommendations from further study.
Our response: Although section 102
(C)(iii) of NEPA requires us to consider
alternatives to the proposed action, we
are not required to consider every
possible alternative. Rather, we consider
a reasonable range of alternatives, which
include those considered to be practical
and feasible from a technical
standpoint. The environmental
assessment evaluates the environmental
effects of three alternatives. These
alternatives include the no action
alternative (no designation of critical
habitat), designation of critical habitat
in all areas that meet the definition of
critical habitat, and designation of
critical habitat in all areas where the
benefits of exclusion do not outweigh
the benefits of inclusion. We are
required to consider the ‘‘no action’’
alternative, and the two action
alternatives are the only feasible
alternatives that we consider under
NEPA while still meeting our
requirements under the Endangered
Species Act. Therefore, the range of
alternatives we considered in the
environmental assessment is adequate
under the procedural requirements of
NEPA and the Council on
Environmental Quality’s Regulations for
Implementing the Procedural Provisions
of NEPA (40 CFR 1500–1518).
(186) Comment: The draft
environmental assessment is inadequate
because it fails to meet the NEPA
standard of balanced multiple use
management.
Our response: There is not a balanced
multiple use management standard
under NEPA.
(187) Comment: The draft
environmental assessment is inadequate
because it fails to analyze impacts on
the human environment.
Our response: The draft
environmental assessment does analyze
impacts to the human environment and
is adequate. The primary purpose of
preparing an environmental assessment
under NEPA is to determine whether a
proposed action would have significant
impacts on the human environment. If
significant impacts may result from a
proposed action, then an environmental
impact statement is required. Whether a
proposed action exceeds a threshold of
significance is determined by analyzing
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the context and the intensity of the
proposed action (40 CFR 1508.27).
Context refers to the setting of the
proposed action and potential impacts
of that action. The context of a
significance determination may be
society as a whole (human, national),
the affected region, the affected
interests, or the locality. Intensity refers
to the severity of the impacts. Under
regulations of the Council of
Environmental Quality (CEQ), which is
responsible for ensuring compliance
with NEPA, intensity is determined by
considering 10 criteria (40 CFR
1508.27(b)). See chapter 4 of the draft
environmental assessment for a list of
these 10 criteria. Based on the draft
environmental assessment, the
designation of critical habitat for the
jaguar will not have significant impacts
on the human environment.
(188) Comment: The draft
environmental assessment is inadequate
because it fails to accurately classify
recreational use of most critical habitat.
Our response: In the environmental
assessment we recognize that
recreational areas in the proposed
critical habitat exist on tribal lands
(Tohono O’odham Nation); Federal and
State-owned lands, including Coronado
National Forest, BLM lands, Buenos
Aires National Wildlife Refuge (NWR),
Coronado National Memorial, and
Arizona State lands. Further, we
identify several types of recreational
activities that take place in or near
proposed critical habitat areas for the
jaguar, such as hiking, hunting, boating,
swimming, birding, wildlife viewing,
photography, sight-seeing, pleasuredriving, angling, camping, horseback
riding, and off-highway vehicle use.
Level of use and type of activity vary by
site characteristics, landownership,
management policy, and accessibility.
The National Visitor Use Monitoring
program provides estimates of the
volume and characteristics of recreation
visitation to the National Forest System.
A National Forest Visit is defined as the
entry of one person upon a national
forest to participate in recreational
activities for an unspecified period of
time. The most recent annual visitation
data estimates 2,793 annual visits to the
Coronado National Forest (IEc 2013, p.
14).
The activity most likely to be
impacted by the designation of critical
habitat is OHV use. OHV use is
authorized on certain roads that pass
near proposed critical habitat in
Coronado National Forest, especially in
units 2, 3, and 5. All of the Coronado
National Forest recreational areas are
within or adjacent to units 2, 3, and 5.
Most of the proposed habitat segments
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receive relatively low-level recreational
use because of their remoteness and/or
difficult terrain. Many of these roads are
used primarily to access dispersed
camping (IEc 2013, p. 14).
On the single NWR within proposed
critical habitat (the Buenos Aires NWR,
in Pima County, Arizona), popular
recreational activities include camping,
picnicking, mountain biking, horseback
riding, hiking, and backpacking.
Motorized vehicles are restricted to
roadways. Hunting is permitted on
approximately 90 percent of the refuge
and is subject to both Refuge and
Arizona State Hunting Regulations.
Recreational uses in the NWR will likely
increase with population growth in
southern Arizona and in light of the
stated goal of the 2003 Comprehensive
Conservation Plan (CCP) to provide safe,
accessible, high-quality wildlifedependent recreational opportunities.
On BLM land, Coronado National
Forest, Fort Huachuca, and Buenos
Aires NWR, there could potentially be
minor adverse impacts from critical
habitat designation on some recreational
opportunities and activities within
designated critical habitat (e.g., OHV
use) from the limitations and
restrictions imposed on recreational
activities to preserve PCEs. However,
other recreational activities and
opportunities would be enhanced, and
could benefit from critical habitat
designation (e.g., birdwatching, wildlife
viewing, day hiking), because of
increased habitat conservation.
Because modifications to the PCEs of
critical habitat are closely tied to
adverse effects to the species, current
activities and activities that would
trigger consultation for critical habitat
are largely the same. Both the adverse
and beneficial effects of critical habitat
designation on recreation-related
activities are expected to be minor
because recreational use of most critical
habitat areas is light and (1) new
consultations based solely on the
presence of designated critical habitat
are unlikely, because land managers are
already consulting on jaguar throughout
the proposed critical habitat areas; and
(2) the likelihood that reasonable and
prudent alternatives developed under
the jeopardy standard would be changed
substantially with the addition of
critical habitat designation and
application of the adverse modification
standard is small. Additional
information is provided in the final
environmental assessment section 3.11.
(189) Comment: The draft
environmental assessment is inadequate
because it fails to evaluate significant
economic impacts due to water
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restrictions within the proposed
designation of critical habitat.
Our response: In the context of an
environmental assessment, the
evaluation of the impacts of critical
habitat designation focuses on outcomes
of the potential increase in section 7
consultations resulting from the
designation, since the designation does
not itself produce or authorize direct
physical impacts. A separate analysis
was conducted by Industrial Economics
Incorporated (IEc 2013) to assess the
potential economic impacts associated
with designation of critical habitat for
the jaguar. Where appropriate,
information from the draft economic
analysis has been incorporated into the
environmental assessment.
(190) Comment: The draft
environmental assessment is inadequate
because it fails to evaluate the level of
controversy if the Rosemont Mine is
constructed. The Service should
complete a full environmental impact
statement because of the controversial
nature of the proposed action.
Our response: The environmental
assessment evaluates impacts from the
designation of critical habitat, not the
impacts of the mine. The impacts from
the designation of critical habitat for the
jaguar are not likely to be highly
controversial because the quality of the
environment would not be significantly
modified from current conditions. This
analysis was based on past
consultations, past impacts of jaguar
conservation on activities within the
jaguar recovery area, and the likely
future impacts from jaguar conservation.
Past section 7 consultations within
designated critical habitat would likely
be re-initiated. New activities could
result in section 7 consultations. New
consultations in unoccupied jaguar
territories could be triggered. A number
of activities, including wildland fire,
fire management, and recreation could
have jaguar conservation-related
constraints or limitations imposed on
them, although such measures would
likely be the same as those under
jeopardy consultations for the species.
Impacts to water management and
resource activities are not expected to be
controversial because, as discussed in
the analysis of impacts on water
resources, the constraints on current
water management activities are
expected to be limited.
The Service understands that, given
the prior history of designation, some
level of controversy may result,
especially if the outcome of the
Service’s consultation on the Rosemont
Copper Mine leads to significant delays,
re-evaluation, or termination of the
project. However, the Rosemont Copper
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Mine biological opinion has been
completed, and the Service determined
that the mine would not result in
destruction or adverse modification of
jaguar critical habitat.
(191) Comment: The Service should
complete a full environmental impact
statement to be in compliance with the
10th Circuit decision.
Our response: The U.S. Court of
Appeals for the Tenth Circuit stipulates
we undertake a NEPA analysis for
critical habitat designation and notify
the public of the availability of the draft
environmental assessment for a
proposal when it is finished. The
Service has complied with this
requirement. See our response to
comment 67 in Comments from the
States under NEPA.
(192) Comment: The draft
environmental assessment is inadequate
because it fails to evaluate safety to our
children, people, livestock, and pets.
Our response: The environmental
assessment does evaluate safety.
Foreseeable activities with potential
risks to public health and safety include
mining operations and activities related
to fire management, particularly in the
wildlife-urban interface (WUI) areas and
areas where vegetation fuel loading has
created conditions for catastrophic fire.
There would be no or negligible impacts
to public health or safety from the
proposed designation of critical habitat.
Impacts of wildland fire on public
health and safety were determined to be
minor, as wildland fire suppression and
wildland fire management within WUI
areas would not be significantly
impeded by the designation of critical
habitat. The designation would not
create or lead to additional mining
operations, or the deposition of
pollutants to the air or water. Border
enforcement activities would still be
conducted within proposed critical
habitat, pursuant to section 102 of the
Illegal Immigration Reform and
Immigrant Responsibility Act, under
which the Secretary of the DHS is
authorized to waive laws where the
Secretary of DHS deems it necessary to
ensure the expeditious construction of
border infrastructure in areas of high
illegal entry.
(193) Comment: The draft
environmental assessment is inadequate
because it fails to evaluate tribal
customs and cultures, and economy.
Our response: This critical habitat
designation is not likely to affect sites,
objects, or structures of historical,
scientific, or cultural significance. The
proposed designation would not result
in any ground-disturbing activities that
have the potential to affect archeological
or other cultural resources. There are
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several National Register of Historic
Places listed historical sites within, or
within close range of, critical habitat
units, but they are human-built
structures, which the proposed
designation specifically avoids.
Potential conservation measures or
project modifications to protect critical
habitat PCEs would not modify or pose
risk of harm to any historic properties
listed in or eligible for the NRHP.
(194) Comment: The Service should
complete a full environmental impact
statement because the action
significantly affects the quality of the
human environment.
Our response: Under the Council on
Environmental Quality (CEQ)
regulations, 40 CFR 1508.27, the
determination of ‘‘significant’’ impacts,
for the purpose of determining whether
a more detailed environmental impact
statement must be prepared, requires
consideration of both context and
intensity. Potential impacts on
environmental resources, both
beneficial and adverse, would be minor.
Impacts of critical habitat designation
on natural resources within the areas to
be designated as jaguar habitat were
analyzed and discussed in Chapter 3 of
the draft environmental assessment.
Applying the analysis of impacts to the
significance criteria defined in CEQ
regulations, the Service concludes that
the adverse impacts of critical habitat
designation would not be significant.
(195) Comment: The Service should
complete a full environmental impact
statement because the economic impacts
on the local, state, and national
economies.
Our response: Indirect socioeconomic
impacts faced by project proponents,
land managers, and landowners could
include time delays, regulatory
uncertainty, and stigma. However, the
environmental assessment concludes
that these are considered indirect,
incremental impacts of the designation.
See Chapter 3, Section 3.10 for a
complete description of
socioeconomics.
(196) Comment: The Service should
complete a full environmental impact
statement because adverse impacts of
the proposed designation outweigh
benefits.
Our response: The primary purpose of
preparing an environmental assessment
under NEPA is to determine whether a
proposed action would have significant
impacts on the human environment.
The purpose of the proposed action is
to designate critical habitat for the
jaguar, listed as endangered under the
Act. Critical habitat designation would
have long-term, beneficial,
conservation-related impacts on jaguar
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survival and recovery through
maintenance of PCEs. Potential impacts
to environmental resources, both
beneficial and adverse, would be minor
or moderate in all cases. Analyses of
impacts of critical habitat designation
on sensitive resources within areas
proposed as jaguar critical habitat were
conducted and discussed in Chapter 3
of the draft environmental assessment,
and it was concluded that designation of
critical habitat would have both adverse
or beneficial impacts on those resources.
None of the specific resource or activity
analyses found that the adverse impacts
of critical habitat designation would be
significant.
(197) Comment: The Service should
complete a full environmental impact
statement because the degree of impacts
on health and safety are significant if
Fort Huachuca is not exempted and if
border security is compromised.
Our response: The Service has
exempted Fort Huachuca from critical
habitat designation based on their
INRMP. See the Exemptions section of
this final rule for further information.
Also, see our response to comment
number 72 in Comments from States.
(198) Comment: The Service should
complete a full environmental impact
statement because impacts on the
unique characteristics of the area are
significant if recreation is inhibited or
completely curtailed in portions of the
proposed jaguar habitat.
Our response: There are no designated
Wild and Scenic River segments within
the critical habitat designation. There
are designated Wilderness Areas within
the units; activities proposed by the
Federal land managers in these areas
would only be those specifically
intended to improve the health of these
ecosystems, and thus they would be
anticipated to help recover or sustain
the PCEs along these segments.
Therefore, any adverse impacts to
critical habitat would be negligible at
most.
(199) Comment: The Service should
complete a full environmental impact
statement because the proposed
designation would impose unique,
unknown, and uncertain risks to current
water users.
Our response: The impacts do not
pose any uncertain, unique, or unknown
risks. Past section 7 consultations
within proposed designated critical
habitat would likely be reinitiated. New
activities in unoccupied areas would
result in section 7 consultations.
Conservation constraints or limitations
related to proposed designated critical
habitat would be similar to those
imposed from species-related
constraints.
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(200) Comment: The Service should
complete a full environmental impact
statement because the proposed action
is related to other actions, which
cumulatively could produce significant
impacts.
Our response: There would not be any
significant cumulative impacts because,
as described above in Chapter 3 of the
environmental assessment, cumulative
impacts would be limited to section 7
consultation outcomes and subsequent
effects on other species, the effects of
designated critical habitat for other
species, and the effects of land
management plans.
The CEQ regulations define
cumulative effects as ‘‘the impact on the
environment which results from the
incremental impact of the proposed
action when added to other past,
present, and reasonably foreseeable
future actions regardless of what agency
(Federal or non-Federal) or person
undertakes such other actions’’ (40 CFR
1508.7). In the environmental
assessment, we identify four other listed
species with critical habitat that
overlaps with jaguar proposed critical
habitat. In the context of critical habitat,
cumulative impacts could be created if
critical habitat designations for multiple
species affect the same natural and
human resources. Actions that could
have cumulative impacts would
include: (1) Section 7 consultation
outcomes and subsequent effects on
other species; (2) the effects of
designated critical habitat for other
species; and (3) the effects of land
management plans.
All of these units are already being
included in consultations on activities
that may adversely impact jaguar, so
there would be no new consultations.
However, while some of these areas may
have undergone some section 7
consultation for the jaguar, the fact they
are now being designated as critical
habitat may require reevaluation of
effects to PCEs for ongoing or not yet
completed Federal actions, which then
may require reinitiating consultation.
This critical habitat designation will
likely contribute minor cumulative
impacts, given the number and nature of
additional project modifications
anticipated.
(201) Comment: The Service should
complete a full environmental impact
statement because the proposed action
might adversely affect an endangered or
threatened species or its habitat, as
determined to be critical under the Act,
because fuel loads would build and
catastrophic fire potential would
increase.
Our response: The designation of
critical habitat for the jaguar will not
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result in fuel loads buildup. Fuelmanagement activities, either
mechanical treatments or prescribed
burns, reduce the risks posed by heavy
fuels loads. They intend to restore the
forest ecosystem by reducing the risk of
catastrophic wildland fire, lessening
post-fire damage, and limiting the
spread of invasive species and diseases.
These activities would help maintain
the jaguar PCE for greater than 1 to 50
percent canopy cover. Fuel-management
and prescribed burning that are
discountable, insignificant, or wholly
beneficial to the PCEs do not require
formal consultation; however, the action
agency would need to confirm their
finding of no adverse impact to jaguar
critical habitat with the Service through
informal consultation (Service 1998a).
The primary impact of the additional
formal or informal consultations would
be increased administrative costs to the
Service and action agencies.
Economics
(202) Comment: The proposed rule
and the draft economic analysis lack the
actions that Federal land managers
already implement to protect jaguars in
the United States.
Our response: The U.S. Bureau of
Land Management (BLM), U.S. Forest
Service (USFS), U.S. National Park
Service (NPS), and Service land
managers in proposed critical habitat
areas already consider potential impacts
to jaguar when conducting activities
within proposed critical habitat areas.
Chapter 3 of the draft economic analysis
evaluates potential economic impacts to
Federal lands management, mining
activity is discussed in Chapter 5 of the
analysis, border activities are discussed
in Chapter 4, and DOD lands are
addressed in Chapter 8. In support of
these statements, since 1995 we have
participated in 20 formal consultations
on including the jaguar in Federal land
management activities, only 4 of which
resulted in formal consultation on this
species. While Federal land managers
have varying levels of conservation for
the jaguar, all take some conservation
actions for their lands based on the
Federal Land Policy and Management
Act of 1976, which states that ‘‘. . . the
public lands be managed in a manner
that will protect the quality of scientific,
scenic, historical, ecological,
environmental, air and atmospheric,
water resource, and archeological
values; that . . . will preserve and
protect certain public lands in their
natural condition; (and) that will
provide food and habitat for fish and
wildlife . . .’’
(203) Comment: The draft economic
analysis ignores real economic costs by
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not quantifying additional conservation
measures that could be requested to
avoid adverse modification during
major construction projects.
Our response: As described in section
5.2 of the draft economic analysis, the
types of conservation measures that
could be requested for major
construction projects that may adversely
modify or destroy jaguar critical habitat
include: creation of permeable
highways; re-vegetation and restoration
of habitat; modification or elimination
of nighttime lighting; reduction of
project footprint; minimization of
human presence, vehicles, and traffic;
and permanent protection of offsite
habitat. The only two large-scale
construction projects, the Rosemont
Mine and the Hermosa Project, are
addressed in Chapter 5. The final
economic analysis has been revised
based on the conclusions of the recent
biological opinion for the Rosemont
Mine. At the low end, the final
economic analysis estimates costs
associated with implementation of
requested conservation measures. The
final economic analysis also considers a
second scenario in which Rosemont
Mine chooses not to proceed to
production. Section 5.5.1 of the draft
economic analysis describes potential
impacts of this scenario in terms of lost
economic revenue, tax revenue, and
employment. These impacts represent
the high-end effects of foregone mine
production.
(204) Comment: The draft economic
analysis does not consider costs of
third-party litigation related to the
finalization of the revised proposed
rule. The costs of litigation incurred by
small ranchers may be as much as
$250,000 per case.
Our response: The Service does not
consider the costs of litigation
surrounding the critical habitat rule
itself when considering the economic
impacts of the rule. The extent to which
litigation specifically regarding critical
habitat may add to the costs of the
designation is uncertain. While the
critical habitat designation may
stimulate additional legal actions, data
do not exist to reliably estimate impacts.
That is, estimating the number, scope,
and timing of potential legal challenges
would require significant speculation.
(205) Comment: The economic
impacts of critical habitat designation
will fall disproportionately on areas
already under economic stress.
Specifically, the areas of concern
include the City of Douglas, Arizona;
and Gila, Navajo, Greenlee, and Graham
Counties in Arizona.
Our response: As described in Section
2.2 of the draft economic analysis, at the
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guidance of OMB and in compliance
with Executive Order 12866 ‘‘Regulatory
Planning and Review,’’ the draft
economic analysis measures changes in
economic efficiency in order to
understand how society, as a whole,
will be affected by a regulatory action.
However, recognizing that distributive
impacts may disproportionately affect
some areas, the draft economic analysis
also considers impacts on small entities;
impacts on energy supply, distribution,
and use; and regional economic
impacts. Substantial changes to the
regional economies are not expected for
most industries within proposed critical
habitat for the jaguar. Where potential
exists for regional economic impacts—
for example, if proposed mining
operations do not proceed to production
because of critical habitat designation—
these impacts are estimated. In addition,
the draft economic analysis provides
information on the geographic
distribution of impacts by unit in order
to allow the Secretary to evaluate
potential exclusions from critical habitat
designation.
(206) Comment: The jaguar is not
present within Arizona, and, as such, all
economic impacts should be attributed
to the designation of critical habitat and
not the listing of the species. The draft
economic analysis incorrectly
characterizes costs that should be
attributed to the designation of critical
habitat as costs that would occur in the
baseline due to the species’ listing.
Our response: Due to the transient
nature of the jaguar, land managers may
not implement conservation measures
based solely on whether the species
occupies an area. Therefore, to assign
costs to the baseline or incremental
scenarios in the draft economic analysis,
we contacted land managers within the
proposed designation, including the
Bureau of Land Management (BLM),
U.S. Forest Service (USFS), and U.S.
Customs and Border Protection (CBP),
regarding possible changes to their
management approaches following the
designation of critical habitat. Where
land managers already consider both the
jaguar and its habitat, we assumed that
incremental conservation measures
were unlikely. For example, section
3.2.2 of the draft economic analysis
discusses that BLM already considers
the potential presence of the jaguar in
all proposed critical units and subunits
that fall within its jurisdiction. Where
land managers may implement different
conservation measures following the
designation of critical habitat, we
consider the costs of those conservation
measures to be incremental.
(207) Comment: The draft economic
analysis fails to disclose that Federal
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and State agencies have already spent
over $1.2 billion on the jaguar.
Our response: The draft economic
analysis focuses on estimating future
impacts of the designation of critical
habitat, and does not retrospectively
quantify baseline costs of jaguar
conservation efforts. However, the draft
economic analysis does provide
information on conservation efforts that
have been implemented in the past or
are likely to be implemented in the
future, absent the designation of critical
habitat. The draft economic analysis
does quantify future baseline impacts,
which are forecast to be approximately
$1.6 million over the next 20 years.
(208) Comment: The draft economic
analysis does not describe what steps
Federal land managers already take to
protect the jaguar.
Our response: Conservation efforts
that may benefit the jaguar and its
habitat and are likely to be implemented
in the baseline are described separately
for each economic activity. Specifically,
the second section of each activityspecific chapter in the draft economic
analysis (e.g., section 3.2, section 4.2,
etc.) discusses the types of projects that
may have a Federal nexus for
consultation and provides information
on conservation efforts that have been
implemented in the past or are likely to
be implemented in the future, absent the
designation of critical habitat.
(209) Comment: The draft economic
analysis understates the incremental
costs of consultation for the Coronado
National Forest because the consultation
forecast does not include travel
management planning. These costs are
instead misattributed to the CBP.
Our response: As described in
Chapter 4–2 of the draft economic
analysis, best management practices for
CBP include designing access roads to
minimize animal collisions and
fragmentation of threatened and
endangered populations. We expect that
CBP operations will continue to adopt
these best management practices
following the designation of critical
habitat. Additionally, as presented in
section 3.4.1 of the draft economic
analysis, we use the jaguar consultation
history for the Coronado National Forest
to forecast nine formal and nine
informal consultations over the next 20
years. We assume that any travel
management planning undertaken by
the Coronado National Forest will be
included in this consultation forecast.
(210) Comment: Additional
clarification of impacts to activities on
BLM lands is needed. Specifically,
clarification of BLM’s approach to
consideration of the jaguar, ‘‘major’’
projects that could be affected by the
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designation, and impacts resulting from
programmatic consultation on grazing
operations on BLM lands is needed.
Our response: In developing the
economic analysis, we contacted
regional land managers at relevant
Federal agencies, including BLM,
regarding the agencies’ current approach
to jaguar conservation. Given the
transient nature of the jaguar, BLM
consults with the Service throughout
the range of the jaguar in proposed
critical habitat areas under its
jurisdiction, including areas that may be
unoccupied. BLM indicated that
consultations expected for the
foreseeable future are likely to relate to
grazing activities. BLM did not
implement any substantial changes to
conservation management as a result of
the agency’s most recent programmatic
consultation on livestock grazing
activities, which included consideration
of the jaguar. As a result, the agency
does not anticipate future management
changes following the critical habitat
designation. Clarifying text has been
added to section 3.2.2 to address these
questions.
(211) Comment: The draft economic
analysis should address impacts to
hunting, fishing, and other recreational
activities.
Our response: The draft economic
analysis addresses potential impacts to
recreational activities in Chapter 3 as
part of the discussion of potential
impacts to Federal land management.
We do not forecast substantial changes
to recreational management.
Recreational activities that do not occur
on Federal lands are unlikely to have a
Federal nexus for section 7 consultation
and, therefore, would not be affected by
the designation of critical habitat.
(212) Comment: Clarification as to
whether use of roads and hiking trails
will be affected by the designation of
critical habitat for the jaguar is needed.
The discussion of potential conservation
measures, including road closures and
limitations to public access, on page 4–
1 of the draft economic analysis suggests
that CBP jaguar conservation efforts
could affect hiking.
Our response: The discussion cited in
this comment refers specifically to CBP
roads. The potential for impacts to
recreational activities is discussed in
Chapter 3 of the draft economic
analysis. As discussed in section 3.4 of
the draft economic analysis, the
economic analysis does not anticipate
impacts to Federal land management
activities beyond administrative costs of
consultation. As a result, impacts to
hiking are not anticipated.
(213) Comment: The analysis of
impacts to the mining industry relies on
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industry-commissioned reports that may
reflect potential bias. The draft
economic analysis does not incorporate
previous studies of the economic impact
of the Rosemont Mine, such as those
prepared by Dr. Thomas Michael Power
in 2010 and 2012.
Our response: The draft economic
analysis would estimate regional
economic impacts of changes to the
mining industry by using peerreviewed, third-party studies if any
were available. However, such studies
do not exist. At the time the draft
economic analysis was prepared, the
best available data on the regional
economic contributions of the Rosemont
Mine and the Hermosa Project came
from reports commissioned by the
mining industry. Chapter 5 of the draft
economic analysis acknowledges this
affiliation. The final economic analysis
has been revised to incorporate the
information provided via public
comment.
(214) Comment: The draft economic
analysis incorrectly uses measures of
gross economic activity as an indication
of economic value of the Rosemont
Mine and the Hermosa Project. These
measures do not account for the costs
associated with mining operations or
the probability that production will be
displaced to other mine locations.
Alternative numbers from the same
studies cited in the draft economic
analysis that may provide a more
reasonable estimate of the economic
value of the mines should be used.
Our response: Chapter 5 of the draft
economic analysis used measures of the
increase in economic activity, as
estimated by existing economic
assessments conducted for the
Rosemont Mine and the Hermosa
Project, to describe the upper bound on
possible economic losses. However, the
commenter is correct that these values
likely overstate the true economic
impact of the loss of production. As a
result, the final economic analysis has
been revised to include the numbers
suggested by this commenter, along
with text describing potential caveats to
these measures. The commenter is also
correct that the true regional economic
impact would account for the
opportunity cost of producing at
substitute mine locations. However,
information on the location of such
substitute sites is not available, and as
a result, the draft economic analysis is
not able to account for these costs. The
final economic analysis has been
revised to clarify and expand the
discussion of potential impacts, as well
as limitations of the analysis.
(215) Comment: The draft economic
analysis does not estimate impacts
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associated with changes in the price of
copper, silver, and manganese that may
result if mining projects are delayed or
halted.
Our response: Substantial uncertainty
exists regarding impacts of the
designation of critical habitat on large
mining projects that could sever
connectivity to Mexico. For this reason,
Chapter 5 considers two scenarios. At
the low end, we estimate costs
associated with the conservation
measures requested in the recent
biological opinion for the Rosemont
Mine. At the high end, we assume that
the Rosemont Mine and Hermosa
Project will not proceed to production
due to the high cost of conservation
measures requested to avoid adverse
modification of critical habitat.
Although these scenarios result in
incremental economic impacts, costs
would be incurred primarily at the local
or State levels. Although global mineral
prices are not anticipated to be affected
by changes to production at these two
mines, the potential impact of changes
to anticipated production at these mines
is acknowledged in the final economic
analysis.
(216) Comment: The draft economic
analysis fails to consider the economic
and national security impacts of critical
habitat designation on the maintenance
and development of existing mining
claims on Federal lands, or those held
by individuals and small entities.
Our response: To inform the analysis
of economic impacts to mining
operations, the Service and USFS
provided information on the historical
rate of consultation on mining activities
as well as the number of mining claims
over the past year. Communication with
USFS indicated that small mining
claims typically do not require section
7 consultation. However, Service
records indicate that consultation has
occasionally occurred for mineral
exploration, resulting in informal
consultation. Past conservation
measures associated with these
activities have included changes to
lighting design, as well as recommended
changes to the project footprint during
the planning stage.
To be conservative, the draft
economic analysis includes incremental
administrative costs for development
and maintenance of mining claims,
although most small claims are not
expected to require consultation.
Additional text has been added to the
final economic analysis to clarify that
small mining claims typically do not
require consultation.
(217) Comment: The draft economic
analysis does not address the potential
economic impacts of the designation of
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critical habitat on manganese
production at Wildcat Silver’s Hermosa
Project. The United States currently
imports 100 percent of its manganese.
Our response: Sections 5.4.2 and 5.5.2
of the draft economic analysis forecast
economic impacts of the designation of
critical habitat on the Hermosa Project.
This analysis utilizes and reports the
estimated net present value of the
Hermosa Project, accounting for costs of
production and tax responsibilities, as
summarized in the Hermosa Project
Preliminary Economic Assessment. This
assessment incorporates potential future
revenues associated with all production
at the Hermosa Project, including
manganese production.
(218) Comment: The draft economic
analysis fails to incorporate the best
available information on the extent of
mining and mineral resources within
the proposed designation. Specifically,
the proposed designation spans an area
with many established mining districts
and includes many patented and
unpatented mining claims within the
Patagonia Mountains. The draft
economic analysis did not contact BLM
or USFS for information on planned
mining projects. The Service should
review the information on the Coronado
National Forest’s schedule of proposed
actions and source information for
online databases of mining claims,
mineral surveys, and land records. The
draft economic analysis underestimates
impacts to mining operations by not
including such actions in the analysis.
Our response: To inform the analysis
of mineral extraction activities in the
draft economic analysis, we spoke with
BLM and USFS managers about the
frequency and type of consultations
associated with mining activities.
Section 5.3 of the draft economic
analysis describes the historical rate of
consultation with USFS since the listing
of the species. The historical
consultation rate for the jaguar does not
include any consultations with BLM on
mining activity, and communication
with BLM did not identify any planned
mining projects. As a result, we use the
historical rate of consultation on USFS
lands to forecast future impacts, as well
as evaluating impacts separately for the
two large mining construction projects
known to be planned within critical
habitat.
Communication with USFS indicated
that small mining claims typically do
not require section 7 consultation.
However, Service records indicate that
consultation has occasionally occurred
for mineral exploration, resulting in
informal consultation. Past conservation
measures associated with these
activities have included changes to
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lighting design, as well as recommended
changes to the project footprint during
the planning stage.
To be conservative, the draft
economic analysis includes incremental
administrative costs for development
and maintenance of mining claims,
although most small claims are not
expected to require consultation.
Additional text has been added to the
final economic analysis to clarify that
small mining claims typically do not
require consultation.
(219) Comment: The draft economic
analysis of mining impacts does not
provide useful information because it
notes that the probability that
incremental conservation measures will
be requested ranges from zero to 100
percent.
Our response: The final economic
analysis has been revised based on the
conclusions of the recent biological
opinion for the Rosemont Mine. At the
low end, the final economic analysis
estimates costs associated with
implementation of requested
conservation measures. Because of
concerns expressed previously by the
mining companies, the final economic
analysis also considers a second
scenario in which the mine chooses not
to proceed to production. The final
economic analysis notes that, based on
the outcome of the section 7
consultation for the Rosemont Mine, the
second scenario is considered less likely
to occur. However, at the time the draft
economic analysis was prepared, the
relative likelihood of the two scenarios
could not be predicted, and the Service
presented a range of plausible impacts
as the best available information.
(220) Comment: The draft economic
analysis treats tax revenues as pure
benefits to local, state, and Federal
governments. The analysis does not
account for the related increase in
demand for public services that could
result from new mining activity.
Our response: The commenter is
correct that the net regional economic
impacts would account for increases in
public expenditures resulting from
increases in mineral production due to
increased demand for public services.
However, information on the potential
magnitude of such an increase in
demand for public services is not
available. The final economic analysis
has been revised to clarify and expand
the discussion of potential regional
economic impacts, as well as limitations
of the analysis.
(221) Comment: The draft economic
analysis presents regional economic
impacts associated with mining activity
as comparable to economic efficiency
losses associated with increased
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consultation. The regional economic
impacts are a separate measure of
economic activity and cannot be added
to economic efficiency losses.
Our response: Section 2.2 of the draft
economic analysis describes the
distinction between efficiency effects
and distributional effects. It is correct
that the draft economic analysis
reported in Chapter 5, as part of a
scenario describing upper bound
impacts related to mining activities,
regional economic impacts as potential
impacts of the rule. However, these
were reported separately from efficiency
effects. Clarifying text has been added to
the final economic analysis.
(222) Comment: The draft economic
analysis does not consider the value of
alternative land uses at the Rosemont
Mine site that could affect the cost to
society should mining not proceed.
Our response: It is correct that a more
precise measure of potential economic
impacts to the area that is being
considered for Rosemont Mine would
consider that, should the area not be
mined, the area could be used for other
purposes, such as recreation, which
would offset to some degree regional
impacts of not mining the area.
However, because of uncertainty of
alternative future uses, the draft
economic analysis is not able to account
for these opportunity costs. As such, the
reported potential societal costs of not
mining may be less than is reported in
the upper bound scenario. The final
economic analysis has been revised to
clarify and expand the discussion of
potential regional economic impacts, as
well as limitations of the analysis.
(223) Comment: The draft economic
analysis concludes that the benefits of
the Rosemont Mine dominate any
potential costs, resulting in a large cost
to the region and the state if the mine
does not proceed. The draft economic
analysis does not document the analysis
that led to that conclusion.
Our response: The draft economic
analysis provides an estimate of
potential future costs of critical habitat
designation. It does not conclude that
costs exceed benefits, nor does the
analysis attempt to weigh costs against
benefits at all. Instead, the draft
economic analysis provides information
on the likely magnitude of costs and the
types of ancillary benefits that may
occur to inform the evaluation of the
designation by the Secretary of the
Department of the Interior. As discussed
in Chapter 2, the Service believes that
the direct benefits of the proposed rule
are best expressed in biological terms
that can be weighed against the
expected cost impacts of the
rulemaking. Chapter 5 of the draft
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economic analysis describes cost
impacts associated with the potential
loss of mineral production at the
Rosemont Mine, and potential economic
benefits are addressed separately in
Chapter 11. The final economic analysis
has been revised to clarify that the loss
of potential employment and revenues
associated with Rosemont Mine are not
net of potential benefits.
(224) Comment: The draft economic
analysis fails to include any costs
associated with conservation measures
for mining activities, despite describing
the potential for such costs to occur.
Instead, the draft economic analysis
forecasts only a small amount of
incremental administrative costs. The
information on the cost of conservation
measures is available in the preliminary
economic assessment for the Hermosa
Project.
Our response: The final economic
analysis has been revised to incorporate
available quantitative information on
the Hermosa Project, wherever possible.
However, while the Preliminary
Economic Assessment for the Hermosa
Project includes information on the
breakdown of capital and operating
costs, it does not provide information
specific to jaguar conservation efforts.
The cost estimates in the Preliminary
Economic Assessment are not provided
to a level of detail that would allow
such estimation. For these reasons, the
draft economic analysis is not able to
fully quantify costs of implementing
conservation measures that may be
undertaken for the jaguar and its habitat
at the Rosemont Mine or the Hermosa
Project using these data.
(225) Comment: The draft economic
analysis refers to potential impacts to
large mining projects as being
‘‘unquantified’’ in the conclusions for
the analysis, despite providing
quantified estimates for these impacts
elsewhere in the analysis.
Our response: The text of the final
economic analysis has been revised to
clarify that potential impacts to mining
projects are quantified but not added to
other impact estimates due to the high
level of uncertainty surrounding impact
estimates. The final economic analysis
has also been revised to incorporate
discussion of these impacts into the
report’s conclusions.
(226) Comment: The draft economic
analysis underestimates costs to mining
operations by ignoring economic
impacts of conservation measures. In
particular, the draft economic analysis
ignores the expected economic
contribution of the Rosemont Mine, as
estimated in the analysis by the L.
William Seidman Research Institute
cited in the draft economic analysis,
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when quantifying costs associated with
the proposed designation.
Our response: The final economic
analysis has been revised based on the
conclusions of the recent biological
opinion for the Rosemont Mine. At the
low end, the final economic analysis
estimates costs associated with
implementation of requested
conservation measures. The final
economic analysis also considers a
second scenario in which Rosemont
Mine chooses not to proceed to
production. Section 5.5.1 of the draft
economic analysis describes potential
impacts of this scenario in terms of lost
economic revenue, tax revenue, and
employment, using the values estimated
in the analysis conducted by the L.
William Seidman Research Institute.
These impacts represent the high-end
effects of foregone mine production.
(227) Comment: The draft economic
analysis suggests that the designation of
critical habitat will result in economic
benefits by limiting mining activity.
However, the draft economic analysis
ignores the benefits that mining
projects, such as the Rosemont Mine,
may provide to local, state, and national
economies.
Our response: Section 5.5.1 of the
draft economic analysis describes the
potential economic impacts of a
scenario in which the Rosemont Mine is
not able to proceed to production. To
estimate these costs, the draft economic
analysis assumes that economic benefits
of the mine, including economic
revenue, tax revenue, and employment,
would be foregone. Section 5.5.2 of the
draft economic analysis provides a
similar description of foregone
economic benefits for the Hermosa
Project. In these sections, the draft
economic analysis acknowledges that
mining projects may provide benefits to
local, state, and national economies, and
that these benefits may be lost if the
designation of critical habitat hinders
production.
(228) Comment: The designation of
critical habitat will lead to a decrease in
the value of privately owned land. The
designation would place restrictions on
the landowner’s ability to subdivide the
land. Additionally, entering into a
conservation easement would decrease
the value of the land.
Our response: Section 2.3.2 of the
draft economic analysis discusses that
public attitudes about the limits or
restrictions that critical habitat may
impose can cause real economic effects
to property owners, regardless of
whether such limits are actually
imposed (stigma effects). As the public
becomes aware of the true regulatory
burden imposed by critical habitat, the
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impact of the designation on property
markets may decrease. Thus, to the
extent that stigma impacts occur in the
future, impacts are expected to be
temporary.
(229) Comment: The draft economic
analysis underestimates the number of
consultations relating to grazing that
will occur over the analytic timeframe.
Every Federal grazing permittee within
the proposed designation will be subject
to reinitiated consultation and will have
to consult twice within the 20-year
analytic timeframe, based on typical
timeframes for permit renewals. The
draft economic analysis should consider
costs to individuals and local ranchers,
in addition to overall impacts. In
particular, the draft economic analysis
should consider costs associated with
consultations for new construction or
maintenance of range improvements on
Federal grazing allotments.
Our response: As discussed in Section
3.4 of the draft economic analysis, based
on communication with BLM and USFS
staff and the agencies’ consultation
history, we assume that both BLM and
USFS will reinitiate programmatic
consultations on livestock grazing
activities. These programmatic
consultations will cover all Federal
grazing permittees collectively. The
agencies do not anticipate undertaking
individual consultations with, or on
behalf of, permittees.
(230) Comment: The designation of
critical habitat may affect the
relationship between the Natural
Resources Conservation Service (NRCS)
and ranchers. In particular, the
designation of critical habitat may lead
to a reduction in NRCS participation
within the proposed designation, and
could therefore result in regional
economic and environmental impacts.
Our response: Section 9.4.1 of the
draft economic analysis addresses the
public concern that ranchers and
farmers could withdraw participation in
Federal programs, such as those
implemented by NRCS, in order to
avoid a potential Federal nexus for
consultation generated by receipt of
Federal funding. However, as described
in the draft economic analysis, the
designation of critical habitat for other
species in the region has not led to such
withdrawals, in the experience of NRCS.
As a result, the draft economic analysis
does not forecast economic impacts
associated with withdrawals from
Federal conservation programs due to
the designation of critical habitat.
(231) Comment: One paragraph in the
draft economic analysis implies that
private landowners consult directly
with the Service. It should be clarified
that Federal agencies, such as NRCS,
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BLM, or the Bureau of Reclamation,
consult with the Service.
Our response: The text of the final
economic analysis has been revised to
clarify that NRCS, and not individual
landowners, would consult with the
Service. Individual landowners may, in
some cases, participate in section 7
consultation as third parties.
(232) Comment: The draft economic
analysis should consider economic
impacts related to precluding, delaying,
or requiring mitigation for the
construction of the previously proposed
Sierrita natural gas pipeline, which is
expected to cross jaguar critical habitat.
Our response: As described in section
9.1 of the draft economic analysis, the
installation of natural gas pipelines may
occur in proposed critical habitat areas.
In addition, as described in chapter 3 of
the draft economic analysis, BLM
consulted on a pipeline project in 2006.
We use historic rates of consultation to
forecast future costs associated with
both miscellaneous activities and
projects on BLM lands. In this manner,
we incorporate the possibility that a
future consultation on the Sierrita
natural gas pipeline may occur.
Currently, sufficient information on the
project scope and location is not
available to forecast potential
conservation measures for this pipeline.
A brief discussion of this potential
project has been added to the final
economic analysis.
(233) Comment: The draft economic
analysis should address the impacts of
multiple species management,
especially with regard to reductions in
cattle grazing on USFS lands. Such
livestock reductions may be attributed
to the conservation of numerous listed
species, including the jaguar.
Our response: Past actions related to
consultations on grazing activities
related to other species have affected
grazing opportunities in some areas.
However, as discussed in Chapter 3 of
the draft economic analysis, no changes
to grazing on Federal lands are expected
as a result of the designation of critical
habitat for the jaguar in either the
baseline or incremental scenario.
(234) Comment: The Service should
include additional information on
impacts to small businesses, such as
information on the percentage of
farmers and ranchers in Arizona and
New Mexico that are considered small
businesses and that are owned by
women, and the impact the designation
would have on these businesses.
Our response: As described in section
A.1.2 of Appendix A, small entities are
generally not directly involved in the
consultation process between NRCS or
U.S. Department of Agriculture (USDA)
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and the Service. As a result, impacts to
small ranchers are not expected.
(235) Comment: The Service should
include a reference for a statement in
the draft economic analysis that
describes the review process for range
improvement projects carried out by the
Arizona State Land Department (ASLD).
The draft economic analysis states that
this review is conducted by the Arizona
Game and Fish Department (AGFD).
Our response: As cited in the draft
economic analysis, the statement
references personal communication
with the Arizona State Land Department
(ASLD) regarding typical project review.
(236) Comment: The draft economic
analysis should quantify direct and
indirect economic benefits of the
designation of critical habitat. In
particular, the analysis should note the
potential for educational, recreational,
and eco-tourism benefits.
Our response: The primary purpose of
critical habitat designation is to support
the conservation of the jaguar. Rather
than rely on economic measures, the
Service believes that the direct benefits
of the proposed rule are best expressed
in biological terms that can be weighed
against the expected cost impacts of the
rulemaking. As described in Chapter 11
of the draft economic analysis,
quantification and monetization of this
conservation benefit requires
information on the incremental change
in the probability of conservation
resulting from the designation. Such
information is not available, and as a
result, monetization of the primary
benefit of critical habitat designation is
not possible. However, Chapter 11 of the
draft economic analysis provides a
qualitative description of the potential
categories of direct and ancillary
benefits that may result from the
designation. The benefits described in
Chapter 11 include those mentioned in
public comments, such as use values
(e.g., wildlife viewing or eco-tourism),
non-use values (e.g., existence value),
aesthetic benefits, educational benefits,
and property value benefits. This
chapter also identifies the critical
habitat units where such benefits are
likely to occur.
Required Determinations
In our August 20, 2012, proposed rule
(77 FR 50214), we indicated that we
would defer our determination of
compliance with several statutes and
executive orders until the information
concerning potential economic impacts
of the designation and potential effects
on landowners and stakeholders became
available in the draft economic analysis.
We have now made use of the draft
economic analysis data to make these
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determinations. In this document, we
affirm the information in our proposed
rule concerning Executive Orders
(E.O.s) 12866 and 13563 (Regulatory
Planning and Review), E.O. 13132
(Federalism), E.O. 12988 (Civil Justice
Reform), E.O. 13211 (Energy, Supply,
Distribution, and Use), the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), and the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
However, based on the draft economic
analysis data and draft environmental
assessment, we are amending our
required determinations concerning the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.), the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), and
E.O. 12630 (Takings). In addition, we
are amending our required
determinations concerning the
President’s memorandum of April 29,
1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951).
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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 significant because it will
raise novel legal or policy issues.
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
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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 an
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.
In this final rule, we are certifying that
the critical habitat designation for jaguar
will not have a significant economic
impact on a substantial number of small
entities. The following discussion
explains our rationale.
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; as well as small
businesses (13 CFR 121.201). Small
businesses include manufacturing and
mining concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service businesses with less than $5
million in annual sales, general and
heavy construction businesses with less
than $27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts on these
small entities are significant, we
consider the types of activities that
might trigger regulatory impacts under
this rule, as well as the 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.
The Service’s current understanding
of recent case law is that Federal
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agencies are required to evaluate the
potential impacts of rulemaking only on
those entities directly regulated by the
rulemaking; therefore, they are not
required to evaluate the potential
impacts to those entities not directly
regulated. The designation of critical
habitat for an endangered or threatened
species has a regulatory effect only
where a Federal action agency is
involved in a particular action that may
affect the designated critical habitat.
Under these circumstances, only the
Federal action agency is directly
regulated by the designation, and,
therefore, consistent with the Service’s
current interpretation of RFA and recent
case law, the Service may limit its
evaluation of the potential impacts to
those identified for Federal action
agencies. Under this interpretation,
there is no requirement under the RFA
to evaluate the potential impacts to
entities not directly regulated, such as
small businesses. However, Executive
Orders 12866 and 13563 direct Federal
agencies to assess costs and benefits of
available regulatory alternatives in
quantitative (to the extent feasible) and
qualitative terms. Consequently, it is the
current practice of the Service to assess
to the extent practicable these potential
impacts if sufficient data are available,
whether or not this analysis is believed
by the Service to be strictly required by
the RFA. In other words, while the
effects analysis required under the RFA
is limited to entities directly regulated
by the rulemaking, the effects analysis
under the Act, consistent with the EO
regulatory analysis requirements, can
take into consideration impacts to both
directly and indirectly impacted
entities, where practicable and
reasonable.
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 final
economic analysis for this rule we
considered and evaluated the potential
effects to third parties that may be
involved with consultations with
Federal action agencies related to this
action.
Designation of critical habitat only
affects activities authorized, funded, or
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carried out by Federal agencies. Some
kinds of activities are unlikely to have
any Federal involvement and so will not
be affected by critical habitat
designation. In areas where the species
is present, Federal agencies already are
required to consult with us under
section 7 of the Act on activities they
authorize, fund, or carry out that may
affect the jaguar. Federal agencies also
must consult with us if their activities
may affect critical habitat. Designation
of critical habitat, therefore, could result
in an additional economic impact on
small entities due to the requirement to
reinitiate consultation for ongoing
Federal activities (see Determinations of
Adverse Effects and Application of the
‘‘Adverse Modification’’ Standard
section, above).
In our final economic analysis of the
critical habitat designation, we
evaluated the potential economic effects
on small business entities resulting from
conservation actions related to the
listing of the jaguar and the designation
of critical habitat. The analysis is based
on the estimated impacts associated
with the rulemaking as described in
Chapters 2 through 10 and Appendix A
of the analysis and evaluates the
potential for economic impacts related
to: (1) Federal land management; (2)
border protection activities; (3) mining;
(4) transportation activities; (5)
development; (6) military activities; (7)
livestock grazing and other activities;
and (8) Tohono O’odham Nation
activities.
To determine if the designation of
critical habitat for the jaguar would
affect a substantial number of small
entities, we considered the number of
small entities affected within particular
types of economic activities, such as
mining, transportation construction,
development, and agriculture and
grazing. In order to determine whether
it is appropriate for our agency to certify
that this rule would not have a
significant economic impact on a
substantial number of small entities, we
considered each industry or category
individually. In estimating the numbers
of small entities potentially affected, we
also considered whether their activities
have any Federal involvement. Critical
habitat designation will not affect
activities that do not have any Federal
involvement; designation of critical
habitat only affects activities conducted,
funded, permitted, or authorized by
Federal agencies. Because the jaguar is
already listed as an endangered species
under the Act, in areas where the jaguar
is present, Federal agencies are required
to consult with us under section 7 of the
Act on activities they fund, permit, or
implement that may affect the species.
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Consultations to avoid the destruction
or adverse modification of critical
habitat would be incorporated into the
existing consultation process.
In the final economic analysis, we
evaluated the potential economic effects
on small entities resulting from
implementation of conservation actions
related to the designation of critical
habitat for the jaguar. The designation of
critical habitat for the jaguar is unlikely
to directly affect any small entities. The
costs associated with the designation are
likely to be limited to the incremental
impacts associated with administrative
costs of section 7 consultations. Small
entities may participate in section 7
consultation as a third party (the
primary consulting parties being the
Service and the Federal action agency).
It is therefore possible that the small
entities may spend additional time
considering critical habitat due to the
need for a section 7 consultation for the
jaguar. We do not expect critical habitat
designation to result in impacts to small
entities for the following activities:
forest management, border protection,
and military activities (as they do not
involve third parties, only Federal and
State agencies); and development,
recreation, and utility construction (as
we do not forecast any impacts to these
activities). Additionally, Chapter 10 of
the final economic analysis details the
potential incremental impacts of critical
habitat designation on tribes with lands
overlapping the designation. Tribes are
generally not subject to review under
the RFA/SBREFA. For example, in its
guidance on preparing analyses in
compliance with the RFA/SBREFA, the
Environmental Protection Agency states
that, for the purposes of the RFA, States
and tribal governments are not
considered small governments but
rather as independent sovereigns.
Estimated incremental costs that may
be borne by small entities consist of
administrative impacts of section 7
consultation related to mining,
transportation construction, and
agriculture and grazing. These potential
impacts are described in greater detail
below. It is uncertain whether any third
parties involved with mining or
transportation would be considered
small entities when fully operational;
however, assuming that they would
qualify as small entities, the cost of
consultation represents less than 1
percent of each company’s annual
revenues. Potential impacts to
agriculture and grazing related to
foregone Natural Resources
Conservation Service (NRCS) funding
are not quantified; however, we do not
expect small entities to bear a direct
burden. Please refer to the final
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economic analysis of the critical habitat
designation for a more detailed
discussion of potential economic
impacts.
Mining
Chapter 5 of the final economic
analysis describes potential impacts
arising from three known formal
consultations on mining: the Rosemont
Mine, the Hermosa Project, and the
Coronado National Forest Land and
Resource Management Plan. According
to the Small Business Administration, to
be considered a small entity in this
industry, companies must employ fewer
than 500 people (13 CFR 121.201). The
Coronado National Forest is a Federal
entity and is not considered small.
As of 2011, Augusta Resource
Corporation, which is the parent
company of Rosemont Mine, employed
a total of 56 people throughout Canada
and the United States. Rosemont Mine
anticipates employing up to 494 people
directly at the Rosemont Mine. It is
therefore unlikely that, following
construction of the Rosemont Mine,
Augusta Resource Corporation will
employ fewer than 500 people.
It is uncertain whether Wildcat Silver
will employ more than 500 workers
during the operation of the Hermosa
Project. Therefore, we conservatively
assume that Wildcat Silver is a small
entity. The cost of consultation for
Wildcat Silver is approximately $875.
Although Wildcat Silver is considered
to be an exploration stage enterprise and
has yet to generate revenue from its
operations, this cost is unlikely to be a
significant burden on the company, as
its assets exceeded $60 million and it
had more than $3 million in cash and
cash equivalents as of September 30,
2012.
Additionally, in Chapter 5 of the final
economic analysis, we discuss the
potential for jaguar critical habitat to
affect other mineral mining operations.
While incremental project modification
impacts are not forecast for these
activities over 20 years, administrative
costs related to 2.5 forecasted informal
consultations on mining exploration
may involve small entities as third-party
project proponents. It is uncertain
whether third parties involved in these
mining consultations will be small;
however, we conservatively assume that
each forecast consultation on mining
will involve a small entity. The cost of
consultation is approximately $875.
This cost likely represents less than one
percent of annual revenues for mining
companies.
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Transportation Construction
In the final economic analysis, we
forecast consultations on these
activities, as discussed in Chapter 6.
These consultations will likely not
involve third parties, as transportation
consultations typically require only
administrative effort on the part of State
departments of transportation and the
Service. However, we conservatively
assume that all consultations will
involve a small third party. We forecast
two formal consultations and seven
technical assistance consultations on
such projects that may involve small
entities within the study area. Assuming
that all transportation potential impacts
are borne by nine small private entities,
this amounts to less than one
consultation per year. The per-entity
impact, ranging from approximately
$875 to $7,875, represents less than one
percent of annual revenues.
Agriculture and Grazing
In the final economic analysis, we
forecast consultations on these
activities, as discussed in Chapter 9. In
this analysis, we discuss potential
impacts related to foregone NRCS
funding, but do not quantify these
impacts. While up to six separate small
entities could be affected based on past
rates of NRCS funding near critical
habitat, we do not expect these entities
to bear a direct burden. Additionally,
12647
the possibility exists for administrative
impacts to occur in association with two
formal and three informal forecast
consultations on agriculture and grazing
projects that may involve small entities
within the study area. However, small
entities are likely not directly involved
in the consultation process between
NRCS or U.S. Department of Agriculture
with the Service.
Table 5 presents the results of the
final economic analysis. It provides the
relevant small entity thresholds by
North American Industry Classification
System (NAICS) code, the total number
of entities and small entities, and the
estimated incremental impacts as a
percentage of annual revenues.
TABLE 5—SUMMARY OF POTENTIAL IMPACTS ON SMALL ENTITIES
Activity
Industry
(NAICS codes)
Small entity size
standard
(millions of dollars)
Transportation ........
Highway, Street
and Bridge Construction
(237310).
Other Heavy and
Civil Engineering
Construction
(237990).
Beef Cattle Ranching and Farming
(112111).
Cotton Farming
(115111).
Iron Ore Mining
(212210).
Gold Ore Mining
(212221).
Silver Ore Mining
(212222).
Lead Ore and Zinc
Ore Mining
(212231).
Copper Ore and
Nickel Ore Mining (212234).
Uranium-RadiumVanadium Ore
Mining (212291).
All Other Metal Ore
Mining (212299).
Support Activities
for Metal Mining
(213114).
Support Activities
for Nonmetallic
Minerals, except
fuels (213115).
33.5 .......................
120
110
33.5 .......................
30
0.75 .......................
80
74
0.75 .......................
3
500 employees .....
0
0
500 employees .....
6
1
6
33
0
0
9
8
7 ............................
3
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0
0
7 ............................
$0 per entity 5 ........
0
500 employees .....
0 (0%)
8
500 employees .....
0.09
6
500 employees .....
$875 to $7,875 4 ...
1
500 employees .....
9 (7%)
6
500 employees .....
Impacts as
percent of
annual
revenues 3
1
3
Mining ....................
Number of
small
entities
Incremental economic impacts to
small businesses 2
28
Agriculture and
Grazing.
Total
number of
entities
Number of
affected
small
entities 1
(percent of
total small
entities)
4 (13%)
$875 to $3,500 6
Notes:
1. To estimate the number of affected small entities, this analysis assumes one small entity per forecast section 7 consultation. For agriculture
and grazing, this assumes one small entity per NRCS funding instance.
2. For these activities, we conservatively estimate that all administrative costs of consultation will be incurred by a small entity in a single year.
Therefore, we use the total, undiscounted third party incremental costs of a formal consultation.
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Federal Register / Vol. 79, No. 43 / Wednesday, March 5, 2014 / Rules and Regulations
3. Annual revenues are estimated using Risk Management Association (RMA), Annual Statement Studies: Financial Ratio Benchmarks 2012 to
2013, 2012. For each NAICS code, RMA provides the net sales and the number of entities falling within several sales categories: $0 to $1 million, $1 to 3 million, $3 to $5 million, $5 to 10 million, or $10 to $25 million. Based on the number of entities and total net sales falling within each
sales category, we developed an estimate of the weighted average net sales (revenues) per small entity: for transportation-related firms, annual
revenues were estimated to be approximately $8.6 million; for companies involved in agriculture and grazing, revenues are estimated at
$430,000 annually; for mining firms, annual revenue information was not available, but due to the highly capitalized nature of the mining industry,
mining firms are assumed to have high annual revenues such that per-entity impacts of $2,625 resulting from the designation of critical habitat
are likely to be insignificant.
4. We are uncertain in what year consultations and technical assistance requests on transportation activities will occur over the next 20 years.
For the purposes of this analysis, we assume affected small entities will participate in approximately nine consultations or technical assistance
requests over 20 years, or less than one consultation per year. However, if we assume that a single small entity participates in multiple formal
consultations in a single year, the administrative costs of such activity are still likely to be less than one percent of annual tax revenues (e.g.,
nine consultations × $875/$9,000,000 = 0.09 percent of annual revenues).
5. Potential impacts related to NRCS funding are not quantified.
6. We are uncertain in what year consultations on mining will occur over the next 20 years. For the purposes of this analysis, we assume affected small entities will participate in approximately 4 consultations over 20 years, one of which will be associated with the Hermosa Project and
will involve Wildcat Silver Corporation. However, if we assume that a single small entity participates in multiple consultations in a single year, the
administrative costs of such activity are still likely to be less than one percent of annual revenues. Although data on annual revenues for mining
companies were unavailable, due to the highly capitalized nature of the mining industry, companies involved in mining operations are likely to
produce revenues large enough that the cost of undertaking three consultations in a single year would likely be less than one percent of annual
revenues (e.g., four consultations × $875 = $3,500. $3,500 represents one percent of annual revenues of $350,000. Mining companies are likely
to produce revenues of greater than $350,000 annually).
Source: Dialog search of File 516, Dun and Bradstreet, ‘‘Duns Market Identifiers,’’ on January 3, 2013.
In summary, we considered whether
this designation would result in a
significant economic effect on a
substantial number of small entities.
Based on the above reasoning and
currently available information, we
concluded that this rule would not
result in a significant economic impact
on a substantial number of small
entities. Therefore, we are certifying that
the designation of critical habitat for
jaguar will not have a significant
economic impact on a substantial
number of small entities, and a
regulatory flexibility analysis is not
required.
emcdonald on DSK67QTVN1PROD with RULES2
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. OMB
has provided guidance for
implementing this Executive Order that
outlines nine outcomes that may
constitute ‘‘a significant adverse effect’’
when compared to not taking the
regulatory action under consideration.
The economic analysis finds that
none of these criteria are relevant to this
analysis. Thus, based on information in
the economic analysis, energy-related
impacts associated with jaguar
conservation activities within critical
habitat are not expected. As such, the
designation of critical habitat is not
expected to significantly affect energy
supplies, distribution, or use. Therefore,
this action is not a significant energy
action, and no Statement of Energy
Effects is required.
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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
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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 nonFederal entities that receive Federal
funding, assistance, or permits, or that
otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply, nor would critical habitat
shift the costs of the large entitlement
programs listed above onto State
governments.
(2) We do not believe that this rule
will significantly or uniquely affect
small governments because it would not
produce a Federal mandate of $100
million or greater in any year; that is, it
is not a ‘‘significant regulatory action’’
under the Unfunded Mandates Reform
Act. The final economic analysis
concludes incremental impacts may
occur due to (1) the administrative costs
of conducting section 7 consultation;
and (2) implementation of any
conservation efforts requested by the
Service through section 7 consultation
to avoid potential destruction or adverse
modification of critical habitat;
however, these are not expected to
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significantly affect small governments.
Incremental impacts stemming from
various species conservation and
development control activities are
expected to be borne by the Federal
Government, State agencies, with some
effects to mining and transportation,
which are not considered small
governments. By definition, Federal
agencies are not considered small
entities, although the activities they
fund or permit may be proposed or
carried out by small entities.
Consequently, we do not believe that
the critical habitat designation will
significantly or uniquely affect small
government entities. As such, a Small
Government Agency Plan is not
required.
emcdonald on DSK67QTVN1PROD with RULES2
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 jaguar in a takings
implications assessment. The economic
analysis found that no significant
economic impacts are likely to result
from the designation of critical habitat
for the jaguar. Based on information
contained in the economic analysis and
described within this document, it is
not likely that economic impacts to a
property owner would be of a sufficient
magnitude to support a takings action.
Therefore, the takings implications
assessment concludes that this
designation of critical habitat for the
jaguar does not pose significant takings
implications for lands within or affected
by the designation.
Federalism—Executive Order 13132
In accordance with E.O. 13132
(Federalism), this final rule does not
have significant Federalism effects. A
Federalism assessment is not required.
In keeping with Department of the
Interior and Department of Commerce
policy, we requested information from,
and coordinated development of this
critical habitat designation with,
appropriate State resource agencies in
New Mexico and Arizona. We received
comments from the New Mexico
Department of Game and Fish and the
Arizona Game and Fish Department and
have addressed them in the Summary of
Comments and Recommendations
section of the rule. From a federalism
perspective, the designation of critical
habitat directly affects only the
responsibilities of Federal agencies. The
Act imposes no other duties with
respect to critical habitat, either for
States and local governments, or for
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anyone else. As a result, the rule does
not have substantial direct effects either
on the States, or on the relationship
between the national government and
the States, or on the distribution of
powers and responsibilities among the
various levels of government. The
designation may have some benefit to
these governments because the areas
that contain the features essential to the
conservation of the species are more
clearly defined, and the physical or
biological features of the habitat
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 these local
governments in long-range planning
(because these local governments no
longer have to 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 applicable
standards set forth in sections 3(a) and
3(b)(2) of the Order. We are designating
critical habitat in accordance with the
provisions of the Act. To assist the
public in understanding the habitat
needs of the species, the rule identifies
the elements of physical or biological
features essential to the conservation of
the jaguar. The designated areas of
critical habitat are presented on maps,
and the rule provides several options for
the interested public to obtain more
detailed location information, if desired.
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
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12649
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)). However, when
the range of the species includes States
within the Tenth Circuit, such as that of
the jaguar, under the Tenth Circuit
ruling in Catron County Board of
Commissioners v. U.S. Fish and Wildlife
Service, 75 F.3d 1429 (10th Cir. 1996),
we undertake a NEPA analysis for
critical habitat designation and notify
the public of the availability of the draft
environmental assessment for a
proposal when it is finished.
We performed the NEPA analysis, and
a draft of the environmental assessment
was available for public comment in the
Federal Register on July 1, 2013 (78 FR
39237). We also accepted public
comments on the draft environmental
assessment and made revisions in
response to many of those comments
(see Summary of Comments and
Recommendations above). The final
environmental assessment has been
completed and is available for review
with the publication of this final rule.
You may obtain a copy of the final
environmental assessment online at
https://www.regulations.gov, by mail
from the Arizona Ecological Services
Fish and Wildlife Office (see
ADDRESSES), or by visiting our Web site
at https://www.fws.gov/southwest/es/
arizona/Jaguar.htm.
We analyzed the potential impacts of
critical habitat designation on the
following resources and resource
management types: Land use and
management; fish, wildlife, and plants
(including endangered and threatened
species); fire management; water
resources (including water management
projects and groundwater pumping);
livestock grazing; construction and
development (including roads, bridges,
dams, infrastructure, residential); tribal
trust resources; soils; recreation and
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emcdonald on DSK67QTVN1PROD with RULES2
hunting; socioeconomics;
environmental justice; mining and
minerals extraction; and National
security. We found that the designation
of critical habitat for the jaguar would
not have direct impacts on the
environment as designation is not
expected to impose land use restrictions
or prohibit land use activities. However,
the designation of critical habitat could:
(1) Increase the number of additional
section 7 consultations for proposed
projects within designated critical
habitat; (2) trigger new consultations in
unoccupied areas; (3) increase the
number of reinitiated section 7
consultations for ongoing projects
within designated critical habitat; (4)
maintain the jaguar’s PCEs; (5) increase
the likelihood of greater expenditures of
time and Federal funds to develop
measures to prevent both adverse effects
to the species and adverse modification
to critical habitat; and (6) indirectly
increase the likelihood of greater
expenditure of non-Federal funds by
project proponents to complete section
7 consultations and to develop
reasonable and prudent alternatives (to
avoid adverse modification or
destruction of critical habitat by Federal
agencies) that maintain critical habitat.
Such an increase might occur where
there is a Federal nexus to actions
within areas with no known jaguar
territories, or from the addition of
adverse modification analyses to
jeopardy consultations in known jaguar
habitat.
The primary purpose of preparing an
environmental assessment under NEPA
is to determine whether a proposed
action would have significant impacts
on the human environment. If
significant impacts may result from a
proposed action, then an environmental
impact statement is required (40 CFR
1502.3). Whether a proposed action
exceeds a threshold of significance is
determined by analyzing the context
and the intensity of the proposed action
(40 CFR 1508.27). Our environmental
assessment found that the impacts of the
proposed critical habitat designation
would be minor and not rise to a
significant level, so preparation of an
environmental impact statement is not
required.
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
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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.
Using the criteria found in the Criteria
Used To Identify Critical Habitat
section, we have determined that there
are tribal lands that were occupied by
jaguar at the time of listing that contain
the features essential for the
conservation of the species, as well as
tribal lands unoccupied by the species
at the time of listing that are essential
for the conservation of the jaguar in the
United States. Potentially affected
Tribes include: The Ak Chin
Community, Gila River Indian
Community, Hope Tribe, Pascua Yaqui
Tribe, Salt River Pima Maricopa Indian
Tribe, San Carlos Apache Tribe, Tohono
O’odham Tribe, and White Mountain
Apache Tribe. The Tohono O’odham
Nation is the only tribe with tribal lands
within designated critical habitat. We
have conducted government-togovernment consultation with these
tribes throughout the public comment
period and during development of the
final designation of jaguar critical
habitat.
On May 16, 2012, we sent a letter to
the Tohono O’odham Nation (the one
Tribe that owns and manages land
within the proposed designation) and
Bureau of Indian Affairs notifying them
of our intent to propose critical habitat
for the jaguar and describing the
exclusion process under section 4(b)(2)
of the Act. On August 24, 2012, we
notified all tribes potentially affected by
our proposal to designate jaguar critical
habitat via email, then followed up by
sending a letter to each tribal leader on
September 28, 2012. We engaged in
conversations with the Tohono
O’odham Nation about the proposal to
the extent possible without disclosing
pre-decisional information. On
September 27, 2012, we met with
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Tohono O’odham Nation staff to discuss
the proposed designation. On August
30, 2013, we notified all tribes
potentially affected by our revised
proposal to designate jaguar critical
habitat via email that we reopened the
comment period on the revised
proposed rule, draft economic analysis,
and draft environmental assessment,
then followed up by sending a letter to
each tribal leader on September 3, 2013.
In addition, the Tohono O’odham
Nation has a representative on the
Jaguar Recovery Team and so the tribe
has been aware that the Service was
working on a critical habitat proposal.
We considered these tribal areas for
exclusion from the final critical habitat
designation to the extent consistent with
the requirements of section 4(b)(2) of the
Act, and subsequently, excluded all
tribal lands from this final designation.
References Cited
A complete list of all references cited
is available on the Internet at https://
www.regulations.gov and upon request
from the Arizona Ecological Services
Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this
rulemaking are the staff members of the
Arizona Ecological Services Fish and
Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth
below:
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 1531–
1544; 4201–4245; unless otherwise noted.
2. Amend § 17.11(h) by revising the
entry for ‘‘Jaguar (Panthera onca)’’
under ‘‘Mammals’’ in the List of
Endangered and Threatened Wildlife to
read as follows:
■
§ 17.11 Endangered and threatened
wildlife.
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*
*
(h) * * *
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Species
Vertebrate population
where endangered or
threatened
Historic range
Common name
Scientific name
Status
*
Entire ..........................
E
When
listed
Critical
habitat
Special
rules
MAMMALS
*
Jaguar ..........................
*
*
Panthera onca ............
*
*
3. In § 17.95, amend paragraph (a) by
adding an entry for ‘‘Jaguar (Panthera
onca)’’, in the same order that the
species appears in the table at
§ 17.11(h), to read as follows:
■
§ 17.95
Critical habitat—fish and wildlife.
*
*
*
*
(a) Mammals.
*
*
*
*
*
Jaguar (Panthera onca)
(1) Critical habitat units are depicted
for Pima, Santa Cruz, and Cochise
Counties, Arizona, and Hidalgo County,
New Mexico, on the maps below.
(2) Within these areas, the primary
constituent elements of the physical or
biological feature essential to the
conservation of jaguar consists of
expansive open spaces in the
southwestern United States of at least
100 km2 (32 to 38.6 mi2) in size which:
(i) Provide connectivity to Mexico;
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NM, TX) Mexico,
Central and South
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(ii) Contain adequate levels of native
prey species, including deer and
javelina, as well as medium-sized prey
such as coatis, skunks, raccoons, or
jackrabbits;
(iii) Include surface water sources
available within 20 km (12.4 mi) of each
other;
(iv) Contain greater than 1 to 50
percent canopy cover within Madrean
evergreen woodland, generally
recognized by a mixture of oak (Quercus
spp.), juniper (Juniperus spp.), and pine
(Pinus spp.) trees on the landscape, or
semidesert grassland vegetation
communities, usually characterized by
Pleuraphis mutica (tobosagrass) or
Bouteloua eriopoda (black grama) along
with other grasses;
(v) Are characterized by
intermediately, moderately, or highly
rugged terrain;
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17.95(a)
NA
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(vi) Are below 2,000 m (6,562 feet) in
elevation; and
(vii) Are characterized by minimal to
no human population density, no major
roads, or no stable nighttime lighting
over any 1-km2 (0.4-mi2) area.
(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 within the legal
boundaries on April 4, 2014.
(4) Critical habitat map units. Data
layers defining map units were created
using hydrography data, vegetation
biomes, tree cover, terrain ruggedness,
elevation, Human Influence Index, and
undisputed Class I jaguar records from
1962 to September 11, 2013, and were
then mapped using Universal
Transverse Mercator (UTM) coordinates.
(5) Note: Index map follows:
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(6) Units 1, 2, 3, and 4: Baboquivari,
Atascosa, Patagonia, and Whetstone
Units, Pima, Santa Cruz, and Cochise
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Counties, Arizona. Map of Units 1, 2, 3,
and 4 follows:
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(7) Units 5 and 6: Peloncillo and San
Luis Units, Cochise County, Arizona,
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and Hidalgo County, New Mexico. Map
of Units 5 and 6 follows:
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12654
*
*
*
Dated: January 29, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
*
[FR Doc. 2014–03485 Filed 3–4–14; 8:45 am]
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Federal Register / Vol. 79, No. 43 / Wednesday, March 5, 2014 / Rules and Regulations
Agencies
[Federal Register Volume 79, Number 43 (Wednesday, March 5, 2014)]
[Rules and Regulations]
[Pages 12571-12654]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03485]
[[Page 12571]]
Vol. 79
Wednesday,
No. 43
March 5, 2014
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Jaguar; Final Rule
Federal Register / Vol. 79 , No. 43 / Wednesday, March 5, 2014 /
Rules and Regulations
[[Page 12572]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2012-0042; 4500030114]
RIN 1018-AX13
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Jaguar
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the jaguar (Panthera onca) under the Endangered
Species Act, as amended. In total, approximately 309,263 hectares
(764,207 acres) in Pima, Santa Cruz, and Cochise Counties, Arizona, and
Hidalgo County, New Mexico, fall within the boundaries of the critical
habitat designation. This designation fulfills our obligations under a
settlement agreement. The effect of this regulation is to designate
critical habitat for jaguar under the Endangered Species Act.
DATES: This rule is effective on April 4, 2014.
ADDRESSES: This final rule is available on the Internet at https://www.fws.gov/southwest/es/arizona/Jaguar.htm, and at https://www.regulations.gov. Comments and materials received, as well as some
supporting documentation we used in preparing this final rule,
including the final economic analysis and final environmental
assessment, are available for public inspection at https://www.regulations.gov. Some supporting documentation is also available at
https://www.fws.gov/southwest/es/arizona/Jaguar.htm. All of the
comments, materials, and documentation that we considered in this
rulemaking are available by appointment, during normal business hours
at: U.S. Fish and Wildlife Service, Arizona Ecological Services Fish
and Wildlife Office, 2321 West Royal Palm Drive, Suite 103, Phoenix, AZ
85021; telephone 602-242-0210. If you use a telecommunications device
for the deaf (TDD), call the Federal Information Relay Service (FIRS)
at 800-877-8339.
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.regulations.gov at
Docket No. FWS-R2-ES-2012-0042, and at the Arizona Ecological Services
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Any
additional tools or supporting information that we developed 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 at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services Fish and
Wildlife Office, 2321 West Royal Palm Drive, Suite 103, Phoenix, AZ
85021; telephone 602-242-0210. 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. This is a final rule to designate
critical habitat for the jaguar. Under the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.) (Act), any species that is
determined to be an endangered or threatened species 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.
We, the U.S. Fish and Wildlife Service (Service), listed the jaguar
as an endangered species on March 30, 1972 (37 FR 6476), in accordance
with the Endangered Species Conservation Act of 1969, a precursor to
the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et
seq.). On August 20, 2012, we published in the Federal Register a
proposed critical habitat designation for jaguar (77 FR 50213). Section
4(b)(2) of the Act states that the Secretary shall designate 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 critical habitat areas we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for the jaguar. Here we are designating
approximately 309,263 hectares (ha) (764,207 acres (ac)) in Pima, Santa
Cruz, and Cochise Counties, Arizona, and Hidalgo County, New Mexico, in
six critical habitat units.
Unit 1, Baboquivari Unit, approximately 25,549 ha (63,134
ac) Baboquivari, Saucito, Quinlan, and Coyote Mountains in Pima County,
Arizona.
Unit 2, Atascosa Unit, approximately 58,624 ha (144,865
ac) in the Tumacacori, Atascosa, and Pajarito Mountains, in Pima and
Santa Cruz Counties, Arizona.
Unit 3, Patagonia Unit, approximately 142,248 ha (351,501
ac) in the Santa Rita, Patagonia, Empire, and Huachuca Mountains, and
Grosvenor and Canelo Hills, in Pima, Santa Cruz, and Cochise Counties,
Arizona.
Unit 4, Whetstone Unit, approximately 38,149 ha (94,269
ac) in the Whetstone Mountains, including connections to the Empire,
Santa Rita and Huachuca Mountains, in Pima, Santa Cruz, and Cochise
Counties, Arizona.
Unit 5, Peloncillo Unit, approximately 41,571 ha (102,724
ac) in the Peloncillo Mountains, in Cochise County, Arizona, and
Hidalgo County, New Mexico.
Unit 6, San Luis Unit, approximately 3,122 ha (7,714 ac)
in the San Luis Mountains, Hidalgo County, New Mexico.
This rule consists of: A final rule for designation of critical
habitat for the jaguar. The jaguar is already listed under the Act.
This rule designates critical habitat essential for the conservation of
the species.
We have prepared an economic analysis and environmental assessment
of the designation of critical habitat. In order to consider economic
impacts, we have prepared an analysis of the economic impacts of the
critical habitat designation and related factors. We have also
completed an environmental assessment to evaluate whether there would
be any significant environmental impacts as a result of the critical
habitat designation. We announced the availability of both the draft
economic analysis and draft environmental assessment in the Federal
Register on July 1, 2013 (78 FR 39237), allowing the public to provide
comments on our analyses. We have incorporated the comments and have
completed the final economic analysis and final environmental
assessment with this final determination.
Peer review and public comment. We sought comments from seven
independent specialists to ensure that our designation is based on
scientifically sound data and analyses. We obtained opinions from six
knowledgeable individuals with scientific expertise to review our
technical assumptions, analysis, and whether or not we had used the
best available information. Most of the peer reviewers (five of the
six) generally concurred with our methods and
[[Page 12573]]
conclusions and provided additional information, clarifications, and
suggestions to improve this final rule. One peer reviewer was against
critical habitat designation for the jaguar, stating that there is no
habitat in the United States at this time that is critical to the
survival of the jaguar as a species. Information we received from peer
review is incorporated in this final revised designation. We also
considered all comments and information received from the public during
the comment period.
Previous Federal Actions
On August 20, 2012, we published in the Federal Register a proposed
rule to designate critical habitat for the jaguar (77 FR 50214). In
that proposed rule, we proposed to designate approximately 339,220 ha
(838,232 ac) as critical habitat in six units located in Pima, Santa
Cruz, and Cochise Counties, Arizona, and Hidalgo County, New Mexico.
The comment period opened August 20, 2012, and closed October 19, 2012.
On March 12, 2013, we received a report from the Jaguar Recovery
Team (described later in this document) entitled Jaguar Habitat
Modeling and Database Update (Sanderson and Fisher 2013, entire) that
included a revised habitat model for the jaguar in the proposed
Northwestern Recovery Unit. This report recommended defining habitat
patches of less than 100 square kilometers (km\2\) (38.6 square miles
(mi\2\)) in size as unsuitable for jaguars; therefore, we incorporated
this information into the physical and biological feature for the
jaguar, which formerly described areas of less than 84 km\2\ (32.4
mi\2\) as unsuitable. Additionally, the report recommended slight
changes to some of the habitat features we used to describe the primary
constituent elements (PCEs) comprising jaguar critical habitat (see
Summary of Changes from Proposed Rule, above). The revised physical and
biological feature and PCEs resulted in changes to the boundaries of
our original proposed critical habitat.
On July 1, 2013 (78 FR 39237), we announced the revisions described
above to our proposed designation of critical habitat for the jaguar,
which now included approximately 347,277 ha (858,137 ac) as critical
habitat in six units located in Pima, Santa Cruz, and Cochise Counties,
Arizona, and Hidalgo County, New Mexico. We also announced the
availability of a draft economic analysis and draft environmental
assessment of the revised proposed designation of critical habitat for
jaguar and an amended required determinations section of the proposal.
Additionally, we announced the reopening of the comment period. The
comment period opened July 1, 2013, and closed August 9, 2013.
On August 15, 2013, the U.S. District Court for the District of
Columbia granted the Service's motion to extend the deadline for
publishing a final critical habitat designation for the jaguar to
December 16, 2013. This rescheduled final rulemaking date allowed us to
reopen the public comment period again, for which we had received
multiple requests. On August 29, 2013 (78 FR 53390), we announced the
reopening of the comment period for an additional 15 days. The comment
period opened August 29, 2013, and closed September 13, 2013.
All previous Federal actions are described in the proposal and
revised proposal to designate critical habitat for the jaguar under the
Act published in the Federal Register (77 FR 50214; August 20, 2012 and
78 FR 39237; July 1, 2013, respectively) and the final rule clarifying
the status of the jaguar in the United States (62 FR 39147; July 22,
1997).
Background
Below we provide a general discussion of jaguar habitat
requirements. Additional background information on the jaguar, beyond
what is provided below, can be found in the proposed jaguar critical
habitat designation published in the Federal Register on August 20,
2012 (77 FR 50214), the revisions to our proposed designation of
critical habitat for the jaguar published in the Federal Register on
July 1, 2013 (78 FR 39237), and this final rule clarifying the status
of the jaguar in the United States (62 FR 39147; July 22, 1997).
Jaguar Habitat Requirements in the United States and U.S.-Mexico
Borderlands Area
Most of the information regarding jaguar habitat requirements comes
from Central and South America; little, if any, is available for the
northwestern-most portion of its range, including the United States.
Jaguar habitat available in the U.S.-Mexico borderlands area is quite
different from habitat in Central and South America, where jaguars show
a high affinity for lowland wet communities, including swampy savannas
or tropical rain forests toward and at middle latitudes. Swank and Teer
(1989, p. 14) state that jaguars prefer a warm, tropical climate,
usually associated with water, and are rarely found in extensive arid
areas. Rabinowitz (1999, p. 97) affirms that the most robust jaguar
populations have been associated with tropical climates in areas of low
elevation with dense cover and year-round water sources. Brown and
L[oacute]pez Gonz[aacute]lez (2001, p. 43) further state that, in South
and Central America, jaguars usually avoid open country like grasslands
or desertscrub, instead preferring the closed vegetative structure of
nearly every tropical forest type.
However, jaguars have been documented in arid areas of northwestern
Mexico and the southwestern United States, including thornscrub,
desertscrub, lowland desert, mesquite grassland, Madrean oak woodland,
and pine-oak woodland communities (Brown and L[oacute]pez
Gonz[aacute]lez 2001, pp. 43-50; Boydston and L[oacute]pez
Gonz[aacute]lez 2005, p. 54; McCain and Childs 2008, p. 7; Rosas-Rosas
and Bender 2012, p. 88). The more open, dry habitat of the southwestern
United States has been characterized as marginal habitat for jaguars in
terms of water, cover, and prey densities (Rabinowitz 1999, p. 97).
However, McCain and Childs (2008, p. 7) documented two male jaguars
(and possibly a third) using an extensive area including habitats of
the Sonoran lowland desert, Sonoran desertscrub, mesquite grassland,
Madrean oak woodland, and pine-oak woodland in mountain ranges in
southern Arizona. Additionally, another male jaguar has been documented
utilizing Madrean evergreen woodland habitat in southern Arizona from
2011 through 2013 (see Table 1 in the ``Class I Records'' section,
below). Therefore, while habitat in the United States can be considered
marginal when compared to other areas throughout the species' range, it
appears that a few, possibly resident jaguars are able to use the more
open, arid habitat found in the southwestern United States.
Jaguar Recovery Planning in Relation to Critical Habitat
Information currently available for northern jaguars is scant;
therefore, we convened a binational Jaguar Recovery Team team in 2010
to synthesize information on the jaguar, focusing on a unit comprising
jaguars in the northernmost portion of their range, the proposed
Northwestern Recovery Unit. The team comprises members from the United
States and Mexico, and is composed of two subgroups: A technical
subgroup and an implementation subgroup. Both subgroups have nearly
equal representation from the United States and Mexico. The technical
subgroup consists of feline ecologists, conservation biologists, and
other
[[Page 12574]]
experts, who advise the Jaguar Recovery Team and the Service on
appropriate short- and long-term actions necessary to recover the
jaguar. The implementation subgroup consists of members who advise the
technical subgroup and the Service on ways to achieve timely recovery
with minimal social and economic impacts or costs. Specifically, the
implementation subgroup consists of landowners and land and wildlife
managers from Federal, state, tribal, and private entities. The Jaguar
Recovery Team has two co-leaders, one from the United States and one
from Mexico; both are members of the technical subgroup, though they
serve as co-leaders for the entire Jaguar Recovery Team.
In April 2012, the Jaguar Recovery Team produced the Recovery
Outline for the Jaguar. The Recovery Outline serves as an interim
guidance document to direct recovery efforts, including recovery
planning, for the jaguar until a full recovery plan is developed and
approved (a draft recovery plan for the jaguar is expected to be
completed in spring 2014). It includes a preliminary strategy for
recovery of the species, and recommends high-priority actions to
stabilize and recover the species. The Recovery Outline delineates two
recovery units for the species, the Northwestern Recovery Unit
(encompassing the United States and northwestern Mexico) and the Pan
American Recovery Unit (encompassing the rest of the range). The
recovery units are further divided into core or secondary areas. Lands
within the United States are a part of the Borderlands Secondary Area
within the proposed Northwestern Recovery Unit (Sanderson and Fisher
2013, p. 10; note that this map updates the map of the Northwestern
Recovery Unit shown on p. 58 of the Recovery Outline for the Jaguar).
The Borderlands Secondary Area within the proposed Northwestern
Recovery Unit for the jaguar (Jaguar Recovery Team 2012, p. 58;
Sanderson and Fisher 2013, p. 10) is only a small portion of the
jaguar's range. Because such a small portion occurs in the United
States, researchers anticipate that recovery of the entire species will
rely primarily on actions that occur outside of the United States;
activities that may adversely or beneficially affect jaguars in the
United States are less likely to affect recovery than activities in
core areas of their range (Jaguar Recovery Team 2012, p. 38). However,
the portion of the United States is located within a secondary area
that provides a recovery function benefitting the overall recovery unit
(Jaguar Recovery Team 2012, pp. 40, 42). For example, specific areas
within this secondary area that provide the physical and biological
features essential to jaguar habitat can contribute to the species'
persistence and, therefore, overall conservation. These areas support
some individuals during dispersal movements, provide small patches of
habitat (perhaps in some cases with a few resident jaguars), and
provide areas for cyclic expansion and contraction of the nearest core
area and breeding population in the Northwestern Recovery Unit (about
210 km (130 mi) south of the U.S.-Mexico border in Sonora near the
towns of Huasabas, Sahuaripa (Brown and L[oacute]pez Gonz[aacute]lez
2001, pp. 108-109), and Nacori Chico (Rosas-Rosas and Bender 2012, pp.
88-89)).
Independent peer review cited in our July 22, 1997, clarifying rule
(62 FR 39147, pp. 39153-39154) states that individuals dispersing into
the United States are important because they occupy habitat that serves
as a buffer to zones of regular reproduction and are potential
colonizers of vacant range, and that, as such, areas supporting them
are important to maintaining normal demographics, as well as allowing
for possible range expansion. As described in the Recovery Outline for
the Jaguar (Jaguar Recovery Team 2012, pp. 40, 42), the Northwestern
Recovery Unit is essential for the conservation of the species;
therefore, consideration of the spatial and biological dynamics that
allow this unit to function and that benefit the overall unit is
prudent. Providing connectivity from the United States to Mexico is a
key element to maintaining those processes.
Additionally, as thoroughly discussed in the Recovery Outline for
the Jaguar (Jaguar Recovery Team 2012, pp. 19-20) and Johnson et al.
(2011, pp. 30-31), populations at the edge of a species' range play a
role in maintaining the total genetic diversity of a species; in some
cases, these peripheral populations persist the longest as
fragmentation and habitat loss impact the total range (Channell and
Lomolino 2000, pp. 84-85). The United States and northwestern Mexico
represent the northernmost extent of the jaguar's current range, with
populations persisting in one of only four distinct xeric (extremely
dry) habitats that occur within the species' range (Sanderson et al.
2002, Appendix 1). Peripheral populations such as these are an
important genetic resource in that they may be beneficial to the
protection of evolutionary processes and the environmental systems that
are likely to generate future evolutionary diversity (Lesica and
Allendorf 1995, entire). This may be particularly important considering
the potential threats of global climate change (see ``Climate Change,''
below). The ability for jaguars in the proposed Northwestern Recovery
Unit to utilize physical and biological habitat features in the
borderlands region is ecologically important to the recovery of the
species; therefore, maintaining connectivity to Mexico is essential to
the conservation of the jaguar.
Through an iterative process incorporating new information and
expert opinion (as described in the Jaguar Habitat Modeling and
Database Update report produced by Sanderson and Fisher (2013,
entire)), the Jaguar Recovery Team developed and refined the habitat
requirements for jaguars in the proposed Northwestern Recovery Unit.
For the portion of this recovery unit encompassing the United States,
the habitat features providing jaguar habitat include areas of at least
100 km\2\ (38.6 mi\2\) in size (the minimum area necessary to support
one jaguar) in which can be found: (1) Tree cover from greater than 1
to 50 percent; (2) intermediately, moderately, or highly rugged
terrain; (3) water within 10 km (6.2 mi); (4) an elevation of less than
2,000 meters (m) (6,562 feet (ft)); (5) Sierra Madre Occidental pine-
oak forests; and (6) a Human Influence Index (HII) of less than 20
(habitat factors, habitat types, and masks as described in Sanderson
and Fisher 2013, pp. 33-34, 38, and 41). Therefore, we are basing our
definition of jaguar habitat in the United States on these features
(see Physical or Biological Features, below).
Summary of Changes From Proposed Rule
In developing the final jaguar critical habitat designation, we
reviewed public comments received on the proposed rule (77 FR 50214;
August 20, 2012), the revision to the proposed rule, the draft economic
analysis, and the draft environmental assessment (78 FR 39237; July 1,
2013 and 78 FR 53390; August 29, 2013).
On August 20, 2012, we published in the Federal Register a proposed
rule to designate critical habitat for the jaguar (77 FR 50214). We
based the physical and biological feature and PCEs on a preliminary
habitat modeling report we received from the Jaguar Recovery Team in
2011 entitled Jaguar Habitat Modeling and Database (Sanderson and
Fisher 2011, pp. 1-11), in which the habitat features preferred by the
jaguar in the proposed Northwestern Recovery Unit were described based
on the best
[[Page 12575]]
available science and expert opinion of the Jaguar Recovery Team at
that time.
In our revised proposed rule we modified the critical habitat
boundaries based on new information received. Since August 20, 2012,
the Jaguar Recovery Team continued to revise and refine the habitat
features preferred by the jaguar through an iterative process based on
additional information and expert opinion, resulting in an updated
habitat modeling report entitled Jaguar Habitat Modeling and Database
Update (Sanderson and Fisher 2013, entire) that we received on March
12, 2013. Changes to habitat features preferred by jaguars in the
proposed Northwestern Recovery Unit included: (1) Defining habitat
patches of less than 100 km\2\ (38.6 mi\2\) in size as too small to
support a jaguar (the physical and biological feature formerly
described areas of less than 84 km\2\ (32.4 mi\2\) as too small); (2) a
canopy cover from greater than 1 to 50 percent as suitable in the
northern part of the proposed Northwestern Recovery Unit (PCE 4
formerly included a range of 3 to 40 percent canopy cover); (3)
delineating areas 2,000 m (6,562 ft) and higher as unsuitable
(previously there was no PCE related to an upper-elevation limit); and
(4) slightly diminishing (from up to or equal to 20 to less than 20)
the level of the HII tolerated by jaguars in the northern part of the
proposed Northwestern Recovery Unit (formerly PCE 6, now PCE 7). When
combined and analyzed with a geographic information system (GIS), these
changes added some new areas containing all of the PCEs, while other
areas no longer contained all of the PCEs and, therefore, were removed
(see Primary Constituent Elements for Jaguar, below, for further
information). An increase in area was usually due to the increased
range in canopy cover (from greater than 1 to 50 percent, instead of 3
to 40 percent), while a decrease in area was usually due to the upper
elevation limit of 2,000 m (6,562 ft).
In addition to the changes described above, multiple photos of a
jaguar in the Santa Rita Mountains taken since our August 20, 2012 (77
FR 50214), proposed designation provided additional information about
the occupancy status of Unit 3 (Patagonia Unit) of jaguar critical
habitat, which formerly contained only one jaguar record in the
Patagonia Mountains from 1965 (see Table 1 in the ``Class I Records''
section, below). While our understanding of the habitat features did
not change drastically between 2012 and 2013, the combination of a
slightly different physical and biological feature and several PCEs (as
described above) and the recent jaguar sightings resulted in the
changes noted in our July 1, 2013 (78 FR 39237), proposed rule.
In this final rule we are making the following changes. We are
excluding and exempting areas from the final designation pursuant to
sections 4(b)(2) and 4(a)(3) of the Act, respectively. We are excluding
lands owned and managed by the Tohono O'odham Nation, and we are
exempting lands owned and managed by Fort Huachuca. Figure 1 displays
the excluded and exempted areas in relation to the final critical
habitat designation. The exclusion of Tohono O'odham Nation lands in
Unit 1 resulted in the appearance of five disconnected areas of land in
Subunit 1a and of two disconnected areas of land in Subunit 1b. Figure
2 is a magnified view of Unit 1 displaying the excluded areas in
relation to critical habitat for Unit 1. These areas that appear
disconnected are not in fact disjunct, as there is continued jaguar
habitat within the excluded areas that provides continuity and
connectivity among the areas that appear disconnected. The exemption of
Fort Huachuca did not result in the appearance of any disconnected
areas. (See the Final Critical Habitat Designation section, below, for
additional information).
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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
[[Page 12578]]
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 part 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 or 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 those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under the second part 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,
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 insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. 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.
In the following sections we will define the regulatory terms in
the definition of critical habitat, as they apply to the jaguar, and
then explain how the critical habitat boundaries were developed based
on the application of these terms.
Occupied Area at the Time of Listing
Determining jaguar occupancy at the time of listing is particularly
difficult. Jaguars were added to the list many years ago, and, by
nature, are cryptic
[[Page 12579]]
and difficult to detect, so assuming an area is occupied or unoccupied
must be based on limited information that can be interpreted in several
ways. Based on our analysis, we are including areas as occupied that
contain an undisputed Class I record at some time between 1962 to the
present (September 11, 2013). However, we acknowledge the uncertainty
and lack of concrete information (undisputed Class I records, described
below) during the period we are defining as occupied at the time of
listing. Therefore, we have further evaluated these areas and have also
determined these areas to be essential to the conservation of the
jaguar. Our rationale for this approach is explained in the following
sections.
Class I Records
Reports of jaguar sightings are sorted into multiple ``classes''
based on the degree of certainty that a jaguar was sighted. We are only
considering undisputed Class I reports as valid records of jaguar
locations. Class I reports are those for which some sort of physical
evidence is provided for verification (such as a skin, skull, or
photograph); they are considered ``verified'' or ``highly probable'' as
evidence for a jaguar occurrence. Class II records have detailed
information of the observation provided but do not include any physical
evidence of a jaguar. Class II observations are considered ``probable''
or ``possible'' as evidence for a jaguar occurrence. This
classification protocol was developed by adapting criteria published by
Tewes and Everett (1986, entire), based on work in Texas with
jaguarundis and ocelots (Leopardus pardalis). The Arizona-New Mexico
Jaguar Conservation Team (for a description and history of this team,
see Johnson et al. 2011, pp. 37-40) reviewed and endorsed the protocol
in 1998 for use in evaluating jaguar occurrence reports for Arizona and
New Mexico. Therefore, we are using the same criteria to evaluate
jaguar occurrence reports in the United States, and consider undisputed
Class I records as the best available information. Table 1 summarizes
these records, below.
TABLE 1--Undisputed Class I * Jaguar Records for Arizona and New Mexico Used for Purposes of Determining Occupancy of Jaguar Critical Habitat, 1962-
September 11, 2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
Circumstance/
Date Collector Sex Location documentation Biotic community Information source
--------------------------------------------------------------------------------------------------------------------------------------------------------
2013: 9/11, 8/1, 6/17, 5/31, 5/ University of Male (same as 2011 Santa Rita Trail camera Madrean evergreen USFWS Flickr site:
29, 5/17, 5/11, 4/27, 1/16. Arizona. male based on Mountains. photographs. woodland, https://bit.ly/
pelage semidesert TapYhK.
comparison). grassland.
2012: 12/31, 11/11, 11/10, 10/25 University of Male (same as 2011 Santa Rita Trail camera Madrean evergreen USFWS Flickr site:
Arizona. male based on Mountains. photographs. woodland, https://bit.ly/
pelage semidesert TapYhK.
comparison). grassland.
2012: 9/23...................... AGFD.............. Male (same as 2011 Santa Rita Trail camera Semidesert USFWS: https://
male based on Mountains. photograph. grassland. www.fws.gov/
pelage southwest/es/
comparison). arizona/Documents/
SpeciesDocs/
Jaguar/fNR-jaguar-
pics--Dec--2012B.
docx.pdf.
2011: 11/19..................... D Fenn............ Male (5th unique Whetstone Treed by hunting Madrean evergreen AGFD: https://
AZ-NM jaguar Mountains. dogs; photos and woodland. www.azgfd.gov/w--
since 1996). video. c/jaguar/
documents/
Web%20Release%20j
ag%20reports%2020
12.02.24.pdf.
2008: 8/2....................... J Childs and E Male (Macho B).... Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. photograph. woodland. McCain, BJDP
unpubl. data.
2008: 7/29...................... J Childs and E Unknown or Male Tumacacori Trail camera Semidesert J Childs and E
McCain. (Macho B). Mountains. photograph (photo grassland. McCain, BJDP
too fuzzy to unpubl. data.
identify jaguar).
2007: 7/25, 5/7, 4/25, 4/22, 4/ J Childs and E Male (Macho B).... Coyote Mountains, Trail camera Madrean evergreen J Childs and E
21, 4/3, 3/27, 3/26, 3/25, 3/7, McCain. Baboquivari photographs, woodland, McCain, BJDP
2/22, 2/12, 2/9, 1/25, 1/22, 1/ Mountains. video, tracks. semidesert unpubl. data; see
19, 1/10, 1/1. grassland. also McCain and
Childs 2008, pp.
3, 7.
2007: 2/22...................... J Childs and E Male (Macho B).... Baboquivari 500-lb calf Madrean evergreen J Childs and E
McCain. Mountains. depredation. woodland. McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
2006: 12/29, 12/3, 11/20, 10/18, J Childs and E Male (Macho B).... Coyote Mountains, Trail camera Madrean evergreen J Childs and E
10/15, 9/26, 6/9, 5/31, 5/27, 5/ McCain. Baboquivari photographs, woodland, McCain, BJDP
23, 5/21, 5/14, 5/13, 5/12, 5/ Mountains, video, tracks. semidesert unpubl. data; see
10, 5/6, 5/5, 5/4, 5/2, 4/30, 4/ Atascosa grassland, also McCain and
28, 4/27, 4/23, 4/18, 4/3, 3/ Mountains. Sonoran Childs 2008, pp.
30, 3/27, 3/26. desertscrub. 3, 7.
2006: 2/20...................... W Glenn........... Male (4th unique South of Animas Photographs....... Madrean evergreen AGFD unpubl. data;
AZ-NM jaguar Mountains on woodland. Childs and Childs
since 1996). north end of San 2008, p. 95.
Luis Mountains.
[[Page 12580]]
2005: 12/17, 12/12, 11/18, 11/ J Childs and E Male (Macho B).... Tumacacori Trail camera Madrean evergreen J Childs and E
17, 11/16, 11/6, 11/5, 11/4, 7/ McCain. Mountains, photographs and woodland, McCain, BJDP
29, 7/28, 7/26, 7/3, 6/8, 6/3, Atascosa tracks. semidesert unpubl. data; see
1/12, 1/2. Mountains. grassland. also McCain and
Childs 2008, pp.
3, 7.
2005: 9/26, 7/11................ J Childs and E Unknown........... Atascosa Mountains Tracks............ Madrean evergreen J Childs and E
McCain. woodland. McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
2004: 12/31, 12/29, 12/27, 12/ J Childs and E Male (Macho B).... Atascosa Mountains Trail camera Madrean evergreen J Childs and E
19, 12/17, 12/12, 11/28, 11/8, McCain. photographs and woodland, McCain, BJDP
10/27, 9/26, 8/31. track. semidesert unpubl. data; see
grassland. also McCain and
Childs 2008, pp.
3, 7.
2004: 12/7, 9/12, 6/24.......... J Childs and E Unknown (possibly Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. Macho A or photographs and woodland. McCain, BJDP
possible 6th track. unpubl. data; see
unique AZ-NM also McCain and
jaguar since Childs 2008, pp.
1996). 3, 7; and McCain
and Childs 2008,
p. 5 for a
description of
why this
individual could
be Macho A or
possibly another
unique jaguar.
2004: 9/25...................... J Childs and E Male (Macho A).... Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. photograph. woodland. McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
2003: 8/7....................... J Childs and E Male (Macho A).... Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. photograph. woodland. McCain, BJDP
unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
2001: 12/9...................... J Childs and E Male (Macho A; 3rd Atascosa Mountains Trail camera Madrean evergreen J Childs and E
McCain. unique jaguar photograph. woodland. McCain, BJDP
since 1996). unpubl. data; see
also McCain and
Childs 2008, pp.
3, 7.
1996: 8/31...................... J Childs.......... Male (Macho B; 2nd Baboquivari Treed while lion Madrean evergreen Brown and
unique AZ-NM Mountains. hunting; woodland. L[oacute]pez
jaguar since photographs. Gonz[aacute]lez
1996). 2001, p. 7,
McCain and Childs
2008, p. 2.
1996: 3/7....................... W Glenn........... Male (1st unique Peloncillo Bayed while lion Madrean evergreen Glenn 1996; Brown
AZ-NM jaguar Mountains. hunting with woodland. and L[oacute]pez
since 1996). dogs; photographs. Gonz[aacute]lez
2001, p. 6.
1995: 4/19...................... B Starrett........ Unknown........... Peloncillo Photograph of Madrean evergreen AGFD unpubl. data;
Mountains. track. woodland. NMDGF unpubl.
data.
1986: 12........................ J Klump........... Male.............. Dos Cabezas Bayed and killed Madrean evergreen Brown and
Mountains. while lion woodland. L[oacute]pez
hunting with dogs. Gonz[aacute]lez
2001, p. 7.
1971: 11/16..................... R Farley and T Male.............. Santa Cruz River.. Killed by boys Madrean evergreen Brown and
Cartier. duck hunting with woodland, L[oacute]pez
shotguns. semidesert Gonz[aacute]lez
grassland. 2001, p. 7.
1965: 11/16..................... L McGee........... Male.............. Patagonia Shot while deer Madrean evergreen Brown and
Mountains. hunting. woodland. L[oacute]pez
Gonz[aacute]lez
2001, p. 7.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Physical evidence (e.g., skin, skull, photograph, track) was reviewed and accepted by the Arizona Game and Fish Department (AGFD), New Mexico
Department of Game and Fish (NMDGF), or other credible person(s). (BJDP=Borderlands Jaguar Detection Project).
There are several disputed Class I jaguar records from 1962 forward
that we are not considering in our analysis. One of these is a female
shot on September 28, 1963, in the White Mountains of east-central
Arizona, and another is a male trapped on January 16, 1964, near the
Black River in east-central Arizona (Brown and L[oacute]pez
Gonz[aacute]lez 2001, p. 7). As described in Johnson et al. (2011, p.
9), as well as from information provided during the
[[Page 12581]]
public comment period on our August 20, 2012, proposed critical habitat
designation (77 FR 50214), the validity of these locations is
questionable because of the suspicion that these animals were released
for ``canned hunts'' (hunts involving release of captive animals).
Therefore, we are not including them as undisputed Class I records. The
other exceptions are any records of the jaguar known as Macho B dating
from October 3, 2008, until his final capture on March 2, 2009. We have
determined that it is within this timeframe that female jaguar scat may
have been used as scent lure at some trail camera locations within the
Coronado National Forest that may have affected his behavior;
therefore, we are not including these observations as undisputed Class
I records.
Time of Listing
While the jaguar was not explicitly listed in the United States
until July 22, 1997 (62 FR 39147), we are using the date the jaguar was
listed throughout its range as endangered in accordance with the
Endangered Species Conservation Act, which is March 30, 1972 (37 FR
6476). Our rationale for using this date is based on our July 25, 1979,
publication (44 FR 43705) in which we asserted that it was always the
intent of the Service that all populations of seven species, including
the jaguar, deserved to be listed as endangered, whether they occurred
in the United States or in foreign countries. Therefore, our intention
was to consider the jaguar endangered throughout its entire range when
it was listed as endangered in 1972, rather than only outside of the
United States.
Occupancy at the Time of Listing
We are including areas in which reports of jaguar exist during the
10 years prior to its listing as occupied at the time of listing,
meaning we are considering records back to 1962. Our rationale for
including these records is based on expert opinion regarding the
average lifespan of the jaguar, the consensus being 10 years.
Therefore, we assume that areas that would have been considered
occupied at the time of listing would have included sightings 10 years
prior to its listing, as presumably these areas were still inhabited by
jaguars when the species was listed in 1972.
For this same reason, we are including areas as occupied at the
time of listing in which reports of jaguar exist during the 10 years
after listing, meaning we are considering records up to 1982. If
jaguars were present in an area within 10 years after the time of
listing (1972), presumably these areas would have been inhabited by
jaguars when the species was listed in 1972.
Additionally, we are including areas as occupied in which reports
of jaguars exist from 1982 to the present. Our reasoning for including
areas in which sightings have occurred after 1982 is that it is likely
those areas were occupied at the time of the original listing, but
jaguars had not been detected because of their rarity, the difficulty
in detecting them, and a lack of surveys for the species, as described
below.
Reduced Jaguar Numbers
By the time the jaguar was listed in 1972, the species was rare
within the United States, making those individuals that may have been
present more difficult to detect. The gradual decline of the jaguar in
the southwestern United States was concurrent with predator control
measures associated with the settlement of land and the development of
the cattle industry (Brown 1983, p. 460). For example, from 1900 to
1949, 53 jaguars were recorded as killed in the Southwest, whereas only
4 were recorded as killed between 1950 and 1979 (Brown 1983, p. 460).
When a species is rare on the landscape, individuals are difficult to
detect because they are sparsely distributed over a large area
(McDonald 2004, p. 11).
Jaguars, in particular, are territorial and require expansive open
spaces for each individual, meaning large areas may be occupied by just
a few individuals, thus reducing the likelihood of detecting them. As
evidence, only six, possibly seven, individual jaguars have been
detected in the United States since 1982 (five, possibly six,
individuals since 1996, as well as the jaguar shot in the Dos Cabezas
Mountains in 1986; see Table 1, above), including two that have been
documented utilizing two distinct mountain ranges, one of which
encompassed approximately 1,359 km\2\ (525 mi\2\) (McCain and Childs
2008, entire) (see ``Space for Individual and Population Growth and for
Normal Behavior'' section, below). Therefore, we believe that
undisputed Class I records within mountain ranges from 1982 to the
present indicate that these mountain ranges were likely occupied by
transient jaguars from Mexico at the time the species was listed, but
individuals remained undetected due to the jaguar's ability to move
long distances within and between mountain ranges.
Jaguar Detection Difficulty
In addition to lowered detection probabilities (the probability of
detecting a jaguar when present) resulting from the rarity of animals,
many mobile species are difficult to detect in the wild because of
morphological features (such as camouflaged appearance) or elusive
behavioral characteristics (such as nocturnal activity) (Peterson and
Bayley 2004, pp. 173, 175), as is the case for the jaguar. This fact
presents challenges in determining whether or not a particular area is
occupied because we cannot be sure that a lack of detection indicates
that the species is absent (Peterson and Bayley 2004, p. 173).
For example, the Sonoran desert tortoise is difficult to monitor in
the wild because of its slow movement and camouflaged appearance,
especially in the smaller hatchling and juvenile age classes. In
addition, the habitat in which Sonoran desert tortoise population
densities are the highest is complex, meaning it often contains many
large boulders, somewhat dense vegetation, and challenging topographic
relief. These factors can significantly hamper a surveyor's ability to
detect them in the field (Zylstra et al. 2010, p. 1311).
Sampling Method Difficulty
Jaguars are difficult to detect due to their rarity, cryptic
appearance, elusive behavior, and habitat complexity. Compounding the
problem of low detection rates is that not all individuals can be
detected using any one particular sampling method or even using
multiple methods. Pollock et al. (2004, p. 43) present the example of
the dugong (sea cow) off the coast of Australia. Using one method of
detection--aerial surveys--some dugongs may be underwater and invisible
to the observers searching for them from aircraft, or the observer may
miss detecting them due to his or her uncertain perception process.
Similarly, terrestrial salamanders in North Carolina and Tennessee most
often occur below the surface of the ground, making detection
particularly difficult, especially when using standard sampling
protocols that only sample the surface population (Pollock et al. 2004,
p. 53). Attempting to detect rare species by using multiple sampling
methods or surveying multiple times can increase detections or increase
confidence that non-detections are true absences; however, this is
often prohibitively time-consuming and expensive and may not always be
feasible because of the sensitivity of the species.
[[Page 12582]]
Jaguars, specifically, are secretive and nocturnal in nature
(Seymour 1989, p. 2; 62 FR 39147, p. 39153; McCain and Childs 2008, p.
5) and, in the United States and northern Mexico, inhabit rugged,
remote areas that are logistically difficult to survey. Even in studies
designed to detect jaguars using both camera traps and track surveys in
northern Mexico, neither method was completely effective in identifying
individuals due to logistical problems related to rugged topography,
hard soils, absence of roads, and harsh weather conditions (Rosas-Rosas
and Bender 2012, pp. 95-96). In the United States specifically, most of
the recent occurrences of jaguars (after 1996) would not have been
known but for a substantial amount of time and effort being invested by
the Borderlands Jaguar Detection Project (BJDP) (Johnson et al. 2011,
p. 40). From 1997 to 2010, the BJDP maintained 45-50 remote-camera
stations across three counties in Arizona, conducted track and scat
(feces) surveys opportunistically, and followed up on credible sighting
reports from other individuals, resulting in 105 jaguar locations
representing two adult male jaguars and possibly a third of unknown sex
(Johnson et al. 2011, p. 40). From the time the jaguar was listed in
1972 until 1997, no effort was made to detect jaguars in the United
States, so we cannot be sure that a lack of detection indicates the
species was absent.
Summary
Based on the above information, we determine that areas in which
jaguars have been documented from 1962 to the present may have been
occupied at the time of the original listing (March 30, 1972; 37 FR
6476) because: (1) Jaguars were rare on the landscape and distributed
over large, rugged areas, meaning they were difficult to detect; (2)
jaguars are cryptic and nocturnal by nature, making them difficult to
detect; and (3) no survey effort was made to detect them in 1972,
meaning we cannot be sure that a lack of detection indicates the
species was absent. Therefore, based on the best available information
related to jaguar rarity, biology, and survey effort, we determine that
areas containing undisputed Class I records from 1962 to the present
(September 11, 2013) may have been occupied by jaguars at the time of
listing.
Occupancy Uncertainty
To the extent that uncertainty exists regarding our analysis of
these data, we acknowledge there is an alternative explanation as to
whether or not these areas were occupied at the time the jaguar was
listed in 1972 (37 FR 6476). The lack of jaguar sightings at that time,
as well as some expert opinions cited in our July 22, 1997, clarifying
rule (62 FR 39147) (for example, Swank and Teer 1989), suggest that
jaguars in the United States had declined to such an extent by that
point as to be effectively eliminated. Therefore, an argument could be
made that no areas in the United States were occupied by the species at
the time it was listed, or that only areas containing undisputed Class
I records from between 1962 and 1982 were occupied.
For this reason, we also analyzed whether or not these areas are
essential to the conservation of the species. Through our analysis, we
determine that they are essential to the conservation of the species
for the following reasons: (1) They have demonstrated recent (since
1996) occupancy by jaguars; (2) they contain features that comprise
jaguar habitat; and (3) they contribute to the species' persistence in
the United States by allowing the normal demographic function and
possible range expansion of the Northwestern Recovery Unit, which is
essential to the conservation of the species (as discussed in the
Jaguar Recovery Planning in Relation to Critical Habitat section,
above).
Physical or Biological Features
In accordance with sections 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 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, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the jaguar from studies of this species' habitat, ecology, and life
history as described in the Critical Habitat section of the proposed
rule to designate critical habitat published in the Federal Register on
August 20, 2012 (77 FR 50214), in the proposed revision of critical
habitat published in the Federal Register on July 1, 2013 (78 FR
39237), and in the information presented below. Additional information
can be found in the final clarifying rule published in the Federal
Register on July 22, 1997 (62 FR 39147), the Recovery Outline for the
Jaguar (Jaguar Recovery Team 2012, entire), the Digital Mapping in
Support of Recovery Planning for the Northern Jaguar report (Sanderson
and Fisher 2011, pp. 1-11), and the Jaguar Habitat Modeling and Update
report (Sanderson and Fisher 2013, entire). We used the best scientific
information available on habitat in the United States essential to the
conservation of the jaguar as gathered by the Jaguar Recovery Team
through the team's recovery planning effort. A complete list of
information sources is available in our Literature Cited located on
https://www.regulations.gov at Docket No. FWS-R2-ES-2012-0042 and at the
field office responsible for the designation (see FOR FURTHER
INFORMATION CONTACT above).
To define the physical and biological features required for jaguar
habitat in the United States, we reviewed available information and
supporting data that pertains to the habitat requirements of the
jaguar, focusing on studies conducted in Mexico as close to the U.S.-
Mexico border as available. Many of these studies have been compiled
and summarized by the Jaguar Recovery Team in the Recovery Outline for
the Jaguar (Jaguar Recovery Team 2012, entire), the 2011 Digital
Mapping in Support of Recovery Planning for the Northern Jaguar
preliminary report (Sanderson and Fisher 2011, pp. 1-11) and the 2013
Jaguar Habitat Modeling and Update report (Sanderson and Fisher 2013,
entire), which we regard as the best available scientific information
for the jaguar and its habitat needs in the northern portion of its
range. To define the physical and biological features and associated
PCEs required for jaguar habitat in the United States, we relied
primarily on information compiled in the Jaguar Habitat Modeling and
Database Update report (Sanderson and Fisher 2013, entire). In two
cases we substituted data layers for which more detailed, higher-
resolution data were available for the United States (see ``Cover or
Shelter'' and ``Habitats that are Protected from Disturbance or are
Representative of the Historical, Geographical, and Ecological
Distributions of a Species'' sections, below). For a complete list of
data sources, see our response to comment number 63 in our Summary of
[[Page 12583]]
Comments and Recommendations section.
We have determined that the jaguar requires the following physical
or biological feature as further described below: Expansive open spaces
in the southwestern United States with adequate connectivity to Mexico
that contain a sufficient native prey base and available surface water,
have suitable vegetative cover and rugged topography to provide sites
for resting, are below 2,000 m (6,562 feet (ft)), and have minimal
human impact.
Space for Individual and Population Growth and for Normal Behavior
Expansive open spaces--Jaguars require a significant amount of
space for individual and population growth and for normal behavior.
Jaguars have relatively large home ranges and, according to Brown and
L[oacute]pez Gonz[aacute]lez (2001, p. 60), their home ranges are
highly variable and depend on topography, available prey, and
population dynamics. Home ranges need to provide reliable surface
water, available prey, and sites in rugged terrain for resting that are
removed from the impacts of human activity and influence (Jaguar
Recovery Team 2012, pp. 15-16). The availability of these habitat
characteristics can fluctuate within a year (dry versus wet seasons)
and between years (drought years versus wet years).
Specific home ranges for jaguars depend on the sex of the
individual, season, and vegetation type. The home ranges of borderland
jaguars are presumably as large or larger than the home ranges of
tropical jaguars (Brown and L[oacute]pez Gonz[aacute]lez 2001, p. 60;
McCain and Childs 2008, pp. 6-7), as jaguars in this area are at the
northern limit of their range and the arid environment contains
resources and environmental conditions that are more variable than
those in the tropics (Hass 2002, as cited in McCain and Childs 2008, p.
6). Therefore, jaguars require more space in arid areas to obtain
essential resources such as food, water, and cover (discussed below).
Only one limited home range study using standard radio-telemetry
techniques and two home range studies using camera traps have been
conducted for jaguars in northwestern Mexico. Telemetry data from one
adult female tracked for 4 months during the dry season in Sonora
indicated a home range size of 100 km\2\ (38.6 mi\2\) (L[oacute]pez
Gonz[aacute]lez 2011, pers. comm.). Additionally, a male in Sonora was
documented through camera traps using an average home range of 84 km\2\
(32 mi\2\) (L[oacute]pez Gonz[aacute]lez 2011, pers. comm.). No home
range studies using standard radio-telemetry techniques have been
conducted for jaguars in the southwestern United States, although
McCain and Childs (2008, p. 5), using camera traps, reported one jaguar
in southeastern Arizona as having a minimum observed ``range'' of 1,359
km\2\ (525 mi\2\) encompassing two distinct mountain ranges. This
study, however, was not designed to determine home range size.
Therefore, we are relying on minimum home-range estimates for male and
female jaguars from Sonora, Mexico (L[oacute]pez Gonz[aacute]lez 2011,
pers. comm.), as well as the expert opinion of the technical subgroup
of the Jaguar Recovery Team, which came to the consensus that areas
less than 100 km\2\ (38.6 mi\2\) were too small to support a jaguar
(Sanderson and Fisher 2013, p. 30) for the minimum amount of adequate
habitat required by jaguars in the United States.
Therefore, based on the information above, we identify expansive
open spaces in the United States of at least 100 km\2\ (38.6 mi\2\) in
size as an essential component of the physical or biological feature
essential for the conservation of the jaguar in the United States.
Connectivity between expansive open spaces in the United States and
Mexico--As discussed in the Jaguar Recovery Planning in Relation to
Critical Habitat section, above, connectivity between the United States
and Mexico is essential for the conservation of jaguars. Therefore, we
identify connectivity between expansive open spaces in the United
States and Mexico as an essential component of the physical or
biological feature essential for the conservation of the jaguar in the
United States.
Connectivity between expansive open spaces within the United
States--We know that connectivity between expansive open areas of
habitat for the jaguar in the United States is necessary if viable
habitat for the jaguar is to be maintained. This is particularly true
in the mountainous areas of Arizona and New Mexico, where isolated
mountain ranges providing the physical and biological feature of jaguar
habitat are separated by valley bottoms that may not possess the
feature described in this final rule. However, we also know that, based
on home range sizes and research and monitoring, jaguars will use
valley bottoms (for example, McCain and Childs 2008, p. 7) and other
areas of habitat connectivity to move among areas of higher quality
habitat found in isolated mountain ranges. We acknowledge that jaguars
use connective areas to move between mountain ranges in the United
States; however, as they are mainly using them for passage, jaguars do
not linger in these areas. As a result, there is only one occurrence
record of a jaguar in these areas. With only one record, we are unable
to describe the features of these areas because of a lack of
information.
Therefore, while we acknowledge that habitat connectivity within
the United States is important, the best available scientific and
commercial information does not allow us to determine that any
particular area within the valleys is essential, and all of the valley
habitat is not essential to the conservation of the species. Therefore
we are not designating any areas within the valleys between the montane
habitat as critical habitat.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food--Jaguar and large-cat experts believe that high-quality
habitat for jaguars in the northwestern portion of their range should
include a high abundance of native prey, particularly large prey like
white-tailed deer and collared peccary (javelina), as well as an
adequate number of medium-sized prey (Jaguar Recovery Team 2012, pp.
15-16). However, the Jaguar Recovery Team (2012, pp. 15-16) did not
quantify ``high abundance'' or ``adequate number'' of each type of
prey, making it difficult to state the density of prey required to
sustain a resident jaguar in this portion of its range.
Jaguars usually catch and kill their prey by stalking or ambush and
biting through the nape as do most Felidae (members of the cat family)
(Seymour 1989, p. 5). Like other large cats, jaguars rely on a
combination of cover, surprise, acceleration, and body weight to
capture their prey (Schaller 1972 and Hopcraft et al. 2005, as cited by
Cavalcanti 2008, p. 47). Jaguars are considered opportunistic feeders,
and their diet varies according to prey density and ease of prey
capture (sources as cited in Seymour 1989, p. 4). Jaguars equally use
medium- and large-size prey, with a trend toward use of larger prey as
distance increases from the equator (L[oacute]pez Gonz[aacute]lez and
Miller 2002, p. 218).
In northeastern Sonora, where the northernmost breeding population
of jaguars occurs, Rosas-Rosas (2006, pp. 24-25) found that large prey
greater than 10 kilograms (kg) (22 pounds (lb)) accounted for more than
80 percent of the total biomass consumed. Specifically, cattle
accounted for more than half of the total biomass consumed (57
percent), followed by white-tailed
[[Page 12584]]
deer (23 percent), and collared peccary (5.12 percent). Medium-sized
prey (1-10 kg; 2-22 lb), including lagomorphs (rabbit family) and
coatis (Nasua nasua), accounted for less than 20 percent of biomass.
Small prey, less than 1 kg (2 lb), were not found in scats (Rosas-Rosas
2006, p. 24). At the Chamela-Cuixmala Biosphere Reserve in Jalisco,
Mexico (which is closed to livestock grazing), deer and javelina were
the two most preferred prey species for jaguars, with jaguars consuming
the equivalent of 85 deer per individual per year (Brown and
L[oacute]pez Gonz[aacute]lez 2001, p. 51). No estimates of the number
of javelina consumed were provided, although in combination with deer,
armadillo, and coati, these four prey items provided 98 percent of the
biomass taken by jaguars (Brown and L[oacute]pez Gonz[aacute]lez 2001,
p. 50). Most jaguar experts believe that collared peccary and deer are
mainstays in the diet of jaguars in the United States and Mexico
borderlands (62 FR 39147), although other available prey, including
coatis, skunk (Mephitis spp., Spilogale gracilis), raccoon (Procyon
lotor), jackrabbit (Lepus spp.), domestic livestock, and horses are
taken as well (Brown and L[oacute]pez Gonz[aacute]lez 2001, p. 51;
Hatten et al. 2005, p. 1024; Rosas-Rosas 2006, p. 24).
Therefore, based on the information above, we identify areas
containing adequate numbers of native prey, including deer, javelina,
and medium-sized prey items (such as coatis, skunks, raccoons, or
jackrabbits) as an essential component of the physical and biological
feature essential for the conservation of the jaguar in the United
States.
Water--Several studies have demonstrated that jaguars require
surface water within a reasonable distance year-round. This requirement
likely stems from increased prey abundance at or near water sources
(Cavalcanti 2008, p. 68; Rosas-Rosas et al. 2010, pp. 107-108),
particularly in arid environments, although it is conceivable that
jaguars require a nearby water source for drinking, as well. Seymour
(1989, p. 4) found that jaguars are most commonly found in areas with a
water supply, although the distance to this water supply is not
defined. In northeastern Sonora, Mexico, Rosas-Rosas et al. (2010, p.
107) found that sites of jaguar cattle kills were positively associated
with proximity to permanent water sources. They also found that these
sites were positively associated with proximity to roads, but concluded
that the effect of roads likely represented a response to major
drainages, as roads generally followed major drainages within their
study area.
In the United States, Hatten et al. (2005, p. 1026) analyzed
distance to water as a feature of jaguar habitat using jaguar records
from Arizona dating from 1900 to 2002, from which they selected the
most reliable records (those with physical evidence or from a reliable
witness) and most spatially accurate records (those with spatial errors
of less than 8 km (5 mi)) to create a habitat suitability model. Of the
57 records they considered, 25 records were deemed reliable and
accurate enough to include in the model. Using a digital GIS layer that
included perennial and intermittent water sources (streams, rivers,
lakes, and springs), Hatten et al. (2005, p. 1029) found that when
perennial and intermittent water sources were combined, 100 percent of
the 25 jaguar records used for their model were within 10 km (6.2 mi)
of a water source. This distance from water (10 km; 6.2 mi) was then
incorporated into a jaguar habitat modeling exercise in New Mexico
(Menke and Hayes 2003, pp. 15-16), as well.
In the jaguar habitat models developed by Sanderson and Fisher
(2011, pp. 10-11; 2013, pp. 33-34) for the proposed Northwestern
Recovery Unit, 10 km (6.2 mi) was also determined to be the maximum
distance from water that could still provide jaguar habitat. In
addition, this distance was further acknowledged by the technical
subgroup of the Jaguar Recovery Team as the maximum distance an area
could be from a year-round water source to constitute high-quality
jaguar habitat (Jaguar Recovery Team 2012, pp. 15-16).
Therefore, based on the information above, we identify sources of
surface water within at least 20 km (12.4 mi) of each other such that a
jaguar would be within 10 km (6.2 mi) of a water source at any given
time (i.e., if it were halfway between these water sources) as an
essential component of the physical or biological feature essential for
the conservation of the jaguar in the United States.
Cover or Shelter
Vegetative Cover--Jaguars require vegetative cover allowing them to
stalk and ambush prey, as well as providing areas in which to den and
rest (Jaguar Recovery Team 2012, pp. 15-16). Jaguars are known from a
variety of vegetation communities (Seymour 1989, p. 2), sometimes
called biotic communities or vegetation biomes (Brown 1994, p. 9).
Jaguars have been documented in arid areas in northwestern Mexico and
the southwestern United States, including thornscrub, desertscrub,
lowland desert, mesquite grassland, Madrean oak woodland, and pine-oak
woodland communities (Brown and L[oacute]pez Gonz[aacute]lez 2001, pp.
43-50; Boydston and L[oacute]pez Gonz[aacute]lez 2005, p. 54; McCain
and Childs 2008, p. 7; Rosas-Rosas et al. 2010, p. 103). As most of the
information pertaining to jaguar habitat in the U.S.-Mexico borderlands
relies on descriptions of biotic communities from Brown and Lowe (1980,
map) and Brown (1994, entire, including appendices), for purposes of
this document we are using these same sources and descriptions, as
well.
According to Brown and L[oacute]pez Gonz[aacute]lez (2001, p. 46),
the most important biotic community for jaguars in the southwestern
borderlands (Arizona, New Mexico, Sonora, Chihuahua) is Sinaloan
thornscrub (as described in Brown 1994, pp. 100-105), with 80 percent
of the jaguars killed in the state of Sonora documented in this
vegetation biome (Brown and L[oacute]pez Gonz[aacute]lez 2001, p. 48).
This biotic community, however, is absent in the United States (Brown
and Lowe 1980, map; Brown and L[oacute]pez Gonz[aacute]lez 2001, p.
49). Madrean evergreen woodland is also important for borderlands
jaguars; nearly 30 percent of jaguars killed in the borderlands region
were documented in this biotic community (Brown and L[oacute]pez
Gonz[aacute]lez 2001, p. 45). Brown and L[oacute]pez Gonz[aacute]lez
(2000, p. 538) indicate jaguars in Arizona and New Mexico predominantly
use montane environments, probably because of more amiable temperatures
and prey availability. A smaller, but still notable, number of jaguars
were killed in chaparral and shrub-invaded semidesert grasslands (Brown
and L[oacute]pez Gonz[aacute]lez 2001, p. 48). In Arizona,
approximately 15 percent of the jaguars taken within the State between
the years 1900 and 2000 were in semidesert grasslands (Brown and
L[oacute]pez Gonz[aacute]lez 2001, p. 49).
The more recent sightings (2001-2007), as described in McCain and
Childs (2008, pp. 3, 7), document jaguars in these same biotic
communities (note that the Madrean evergreen woodland and semidesert
grassland biotic communities encompass mesquite grassland, Madrean oak
woodland, and pine-oak woodland habitats), and the most recent
sightings of a jaguar in Arizona (2011-2013) were in Madrean evergreen
woodland, as well (see Table 1 in the ``Class I Records'' section,
above).
Several modeling studies incorporating vegetation characteristics
have attempted to refine the general
[[Page 12585]]
understanding of habitats that have been or might be used by jaguars in
the United States. To characterize vegetation biomes, Hatten et al.
(2005, entire) used a digital vegetation layer based on Brown and Lowe
(1980, map) and Brown (1994, entire). They found that 100 percent of
the 25 jaguar records used for their model were observed in four
vegetation biomes, including: (1) Scrub grasslands of southeastern
Arizona (56 percent); (2) Madrean evergreen forest (20 percent); (3)
Rocky Mountain montane conifer forest (12 percent); and (4) Great Basin
conifer woodland (12 percent).
In addition, two studies (Menke and Hayes 2003, entire; Robinson et
al. 2006, entire) attempted to evaluate potential jaguar habitat in New
Mexico using methods similar to those described in Hatten et al. (2005,
pp. 1025-1028). However, due to the small number of reliable and
spatially accurate records within New Mexico, neither model was able to
determine patterns of habitat use (and associated vegetation
communities) for jaguars in New Mexico, instead relying on literature
and expert opinion for elements to include in the models. These
vegetation communities included Madrean evergreen woodland, which Menke
and Hayes (2003, p. 13) considered the most similar to habitats used by
the closest breeding populations of jaguars in Mexico, as well as
grasslands (semidesert, Plains and Great Basin, and subalpine),
interior chaparral, conifer forests and woodlands (Great Basin, Petran
montane, and Petran subalpine), and desertscrub (Chihuahuan, Arizona
upland Sonoran, and Great Basin).
Using the methodology described in Hatten et al. (2005, pp. 1025-
1028), but with some modifications, Sanderson and Fisher (2011, pp. 1-
11; and 2013, entire) created jaguar habitat models for the proposed
Northwestern Recovery Unit. In the latest version of the model (version
13), Sanderson and Fisher (2013, p. 13) used a data set of 453 jaguar
observations (note that Table 1.3 incorrectly states 452 instead of
453) for which the description of the location was sufficient to place
it with certainty within 10 km (6.2 mi) of its actual location, and for
which a date to the nearest century was available (Sanderson and Fisher
2013, pp. 3-5 and Appendix 2). Sanderson and Fisher (2013, p. 6)
substituted a digital layer describing ecoregions (World Wildlife Fund
Ecoregions) for the digital biotic community layer based on Brown and
Lowe (1980, map) and Brown (1994, entire), however. The reason for this
was because the latter two references do not cover the entire
Northwestern Recovery Unit for the jaguar; therefore, an appropriate
substitution was required for modeling purposes. Within this
ecoregion's digital layer, the category given the highest relative
weight (0.2) within the United States is called Sierra Madre Occidental
pine-oak forests, representing the best jaguar habitat within the
borderlands region (Sanderson and Fisher 2013, p. 34). This category
most closely resembles the Madrean evergreen woodland biotic community.
There is no equivalent category for semidesert grassland in the
ecoregions digital layer; instead, Sonoran desert and Chihuahuan desert
cover all grassland and desert biotic communities. These two desert
categories are given a very low relative weight (0.01), representing
poorer quality jaguar habitat within the borderlands region (Sanderson
and Fisher 2013, p. 34).
Sanderson and Fisher (2011, p. 7; 2013, pp. 5-6) also added a
digital layer to capture canopy cover (called land cover in the
reports), as represented by a digital layer called tree cover. In the
latest version of the model (version 13), Sanderson and Fisher (2013,
p. 20) analyzed the tree cover preferred by jaguars in the Jalisco Core
Area (the southernmost part of the Northwestern Recovery Unit)
separately from tree cover in all other areas (note that p. 15 of this
report incorrectly states that the Sinaloa Secondary Area is included
with the Jalisco Core Area in this analysis) to reflect the major
habitat shift from the dry tropical forest of Jalisco, Mexico, to the
thornscrub vegetation of Sonora, Mexico. The results of these analyses
indicate that jaguars in the southernmost part of the Northwestern
Recovery Unit (the Jalisco Core Area) seem to inhabit a wider range of
tree cover values (greater than 1 to 100 percent), whereas jaguars
throughout the rest of the Northwestern Recovery Unit (including the
United States) appear to inhabit a narrower range of tree cover values
(greater than 1 to 50 percent) (Sanderson and Fisher, p. 20).
Therefore, based on the information above, we identify Madrean
evergreen woodlands and semidesert grasslands containing greater than 1
to 50 percent tree cover (or canopy cover) as an essential component of
the physical or biological feature essential for the conservation of
the jaguar in the United States. Though slightly different than the
habitat characteristics included in the latest habitat model produced
by the Jaguar Recovery Team, Madrean evergreen woodland and semidesert
grassland as described by Brown and Lowe (1980, map) and Brown (1994,
entire, including appendices) are included instead of Sierra Madre
Occidental pine-oak, Sonoran desert, and Chihuahuan desert vegetation
communities described by the World Wildlife Fund Ecoregion data layer
because of the higher resolution of these data and more accurate
representation of the vegetation communities in the United States and
borderlands region and their importance to jaguars within this area (as
described above; see also Table 1 in the ``Class I Reports'' section,
above). We directly incorporate the tree cover recommendation within
the northern part of the Northwestern Recovery Unit (greater than 1 to
50 percent; Sanderson and Fisher 2013, p. 33) as part of this essential
physical or biological feature component.
Rugged Topography--Rugged topography (including canyons, ridges,
and some rocky hills to provide sites for resting) is acknowledged as
an important component of jaguar habitat in the northwestern-most
portion of its range (Jaguar Recovery Team 2012, pp. 15-16). The most
recent Sanderson and Fisher (2013, p. 17) habitat model for the
Northwestern Recovery Unit for the jaguar determined that jaguars in
this area were most frequently found in intermediately, moderately, and
highly rugged terrain. Additionally, one study in the U.S.-Mexico
borderlands area (Boydston and L[oacute]pez Gonz[aacute]lez 2005,
entire) and one in northeastern Mexico (Ortega-Huerta and Medley 1999,
entire) incorporate slope as a factor in describing jaguar habitat.
Although slope can provide some understanding of topography (steep
slopes generally indicate a more rugged landscape), it is less
descriptive in terms of quantifying terrain heterogeneity (diversity)
(Hatten et al. 2005, pp. 1026-1027). Nonetheless, in these studies,
jaguar distribution was found to be on steeper slopes than those slopes
that were available for the study areas in general (Ortega-Huerta and
Medley 1999, p. 261; Boydston and L[oacute]pez Gonz[aacute]lez 2005, p.
54), indicating jaguars were found in more rugged areas in these
studies.
Two modeling exercises incorporating ruggedness have been conducted
to determine existing jaguar habitat in the southwestern United States,
one in Arizona and another in New Mexico. To examine the relationship
between jaguars and landscape roughness in Arizona, Hatten et al.
(2005, p. 1026) calculated a terrain ruggedness index (TRI; Riley et
al. 1999, as cited in Hatten et al. 2005, p. 1026) measuring the slope
in all directions of each 1-km\2\ (0.4-mi\2\) cell (pixel) in their
model. They divided the TRI data into seven classes
[[Page 12586]]
according to relative roughness: level, nearly level, slightly rugged,
intermediately rugged, moderately rugged, highly rugged, and extremely
rugged. With respect to topography, they found that 92 percent of the
25 jaguar records used in their model (see ``Water'' in the ``Food,
Water, Air, Light, Minerals, or Other Nutritional or Physiological
Requirements'' section, above) occurred in intermediately rugged to
extremely rugged terrain (the remaining 8 percent were in nearly level
terrain).
Menke and Hayes (2003, entire) attempted to evaluate potential
jaguar habitat in New Mexico using methods similar to those described
in Hatten et al. (2005, pp. 1025-1028). While patterns of habitat use
for jaguars could not be determined (due to the small number of
reliable and spatially accurate records within New Mexico, of which
there were seven), all sighting locations occurred in areas that were
assigned a highly rugged value, and terrain ruggedness was the single
variable that appeared to have a high degree of correlation with
locations of jaguar observations in New Mexico.
In addition, through the most recent habitat modeling efforts for
the jaguar in the Northwestern Recovery Unit, Sanderson and Fisher
(2013, pp. 33-34) determined that intermediately, moderately, or highly
rugged terrain represented the best habitat available for jaguars in
the northwestern-most part of their range.
Therefore, based on this information, we identify areas of
intermediately, moderately, or highly rugged terrain as an essential
component of the physical or biological feature essential for the
conservation of the jaguar in the United States.
Elevation--Elevation is a component of jaguar habitat in the
northwestern-most portion of its range (Sanderson and Fisher 2013, pp.
5, 6, Appendix 2). Based on a visual analysis of the frequency of
jaguar observations at different elevations within the northwestern-
most portion of the species' range, the technical subgroup of the
Jaguar Recovery Team determined that areas above 2,000 m (6,562 ft) did
not provide jaguar habitat, as only 3.3 percent (15 of 453) of the
observations utilized in the most recent jaguar habitat modeling effort
occurred above this elevation (Sanderson and Fisher 2013, pp. 19, 29;
note that p. 19 incorrectly states 20 observations above 2,000 m (6,562
ft) instead of 15, and Table 1.3 on p. 13 incorrectly states 452 jaguar
observations total instead of 453). In the most recent habitat model
for the jaguar in the proposed Northwestern Recovery Unit, Sanderson
and Fisher (2013, pp. 19, 29) incorporated this upper-elevation limit
and excluded areas above 2,000 m (6,562 ft). Therefore, based on this
information, we identify areas of less than 2,000 m (6,562 ft) in
elevation as an essential component of the physical or biological
feature essential for the conservation of the jaguar in the United
States.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
As demonstrated in Table 1, above, from 1962 to the present all
undisputed Class I jaguar observations for which the sex of the animal
could be determined have been male individuals. Few records of females
exist within the United States (see Brown and L[oacute]pez
Gonz[aacute]lez 2001, pp. 6-9 for records from 1900-2000), and even
fewer records of jaguar breeding events in the United States have been
documented. The most recent known breeding event is from over 100 years
ago in 1910 of a female jaguar with one cub at the head of Chevlon
Canyon in the Sitgreaves National Forest in Arizona (Brown and
L[oacute]pez Gonz[aacute]lez 2001, p. 9). Further, as described in the
Jaguar Recovery Planning in Relation to Critical Habitat section,
above, the recovery function and value of critical habitat within the
United States is to contribute to the species' persistence and,
therefore, overall conservation by providing areas to support some
individuals during dispersal movements, by providing small patches of
habitat (perhaps in some cases with a few resident jaguars), and as
areas for cyclic expansion and contraction of the nearest core area and
breeding population in the Northwestern Recovery Unit (Jaguar Recovery
Team 2012, pp. 40, 42). Since the last known breeding event in the
United States was in 1910, the breeding habitat for jaguars in the
United States is not clearly understood. Further, while some assessment
of breeding habitat has been conducted in Mexico, this habitat is
different than the habitat in the United States. Therefore we are not
able to identify any additional habitat features needed for purposes of
reproduction, beyond those habitat features already identified.
Habitats That Are Protected From Disturbance or Are Representative of
the Historical, Geographical, and Ecological Distributions of a Species
Human populations can impact jaguars directly by killing
individuals through hunting, poaching, or depredation control, as well
as indirectly through disturbance of normal biological activities, loss
of habitat, and habitat fragmentation. Rangewide, illegal killing of
jaguars is one of the two most significant threats to the jaguar
(Nowell and Jackson 1996, p. 121; N[uacute][ntilde]ez et al. 2002, p.
100; Taber et al. 2002, p. 630; Ch[aacute]vez and Ceballos 2006, p.
10), and, according to the July 22, 1997, clarifying rule (62 FR
39147), the primary threat to jaguars in the United States was illegal
shooting (see listing rule for a detailed discussion). This, however,
is no longer accurate, as the most recent known shooting of a jaguar in
Arizona was in 1986 (Brown and L[oacute]pez Gonz[aacute]lez 2001, p.
7). Jaguars are protected by Federal law through the Act and by State
law in Arizona and New Mexico. Four of the individual jaguars most
recently documented (since 1996) in Arizona and New Mexico have been
documented by lion hunters, who took photographs of the jaguars and
then reported them to the Arizona Game and Fish Department and the
Service. While illegal killing of jaguars continues to be a major
threat to jaguars south of the U.S.-Mexico international border, it
does not appear to be a significant threat within the United States.
In terms of human influence and impact on jaguars other than by
direct killing, human populations have both direct and indirect impacts
on jaguar survival and mortality. For example, an increase in road
density and human settlements tends to fragment habitat and isolate
populations of jaguars and other wildlife. For carnivores in general,
the impacts of high road density have been well documented and
thoroughly reviewed (Noss et al. 1996 and Carroll et al. 2001, as cited
by Menke and Hayes 2003, p. 12). Roads may have direct impacts to
carnivores and carnivore habitats, including roadkill, disturbance,
habitat fragmentation, changes in prey numbers or distribution, and
increased access for legal or illegal harvest (Menke and Hayes 2003, p.
12; Colchero et al. 2010, entire). Studies have also shown that jaguars
selectively use large areas of relatively intact habitat away from
certain forms of human influence. Zarza et al. (2007, pp. 107, 108)
report that towns and roads had an impact on the spatial distribution
of jaguars in the Yucatan peninsula, where jaguars used areas located
more than 6.5 km (4 mi) from human settlements and 4.5 km (2.8 mi) from
roads. In the State of Mexico, Mexico, Monroy-Vilchis et al. (2008, p.
535) report that one male jaguar occurred with greater frequency in
areas relatively distant from roads and human populations. In some
areas of western Mexico, however, jaguars (both sexes)
[[Page 12587]]
have frequently been recorded near human settlements and roads
(N[uacute][ntilde]ez 2011, pers. comm.). In Marismas Nacionales,
Nayarit, a jaguar den was recently located very close to an
agricultural field, apparently 1 km (0.6 mi) from a small town
(N[uacute][ntilde]ez 2011, pers. comm.). Jaguar presence is affected in
different ways by various human activities; however, direct persecution
likely has the most significant impact.
Because jaguars are secretive animals and generally tend to avoid
highly disturbed areas (Quigley and Crawshaw 1992, entire; Hatten et
al. 2005, p. 1025), human density was a factor considered in jaguar
habitat modeling exercises for Arizona (Hatten et al. 2005, p. 1025)
and New Mexico (Menke and Hayes 2003, pp. 9-13; Robinson et al. 2006,
pp. 10, 15, 18-20), and the habitat models developed by Sanderson and
Fisher (2011, pp. 5-11 and 2013, entire) for the northwestern Mexico
and the U.S.-Mexico borderlands area. Hatten et al. (2005, p. 1025)
excluded areas within city boundaries, higher density rural areas
visible on satellite imagery, and agricultural areas from their Arizona
habitat model, as recommended by jaguar experts. All of the jaguar
locations used in their model fell outside of these areas, indicating
jaguars are not found in highly developed or disturbed areas (Figure 6,
p. 1031).
Menke and Hayes (2003, pp. 9-13) attempted to evaluate potential
jaguar habitat in New Mexico using methods similar to those described
in Hatten et al. (2005, p. 1025). Because of a lack of comparable
digital data for New Mexico, they instead created a data layer of road
density per km\2\ and classified it into habitat suitability
categories. However, due to the small number of reliable and spatially
accurate jaguar occurrence records within New Mexico (a total of
seven), patterns of habitat use for jaguars could not be determined
from their model, and they did not summarize the road density
categories in which jaguars were found within the State. In the habitat
model for New Mexico developed by Robinson et al. (2006), areas with
continuous row crop agriculture, human residential development in
excess of 1 house per 4 ha (10 ac), or industrial areas were not
considered jaguar habitat, and were therefore excluded from their
model. Similarly to Menke and Hayes (2003, entire), patterns of habitat
use for jaguars could not be determined from their model, and they did
not summarize the human footprint categories in which jaguars were
found within the State.
The habitat models developed by Sanderson and Fisher (2011, pp. 5-
11 and 2013, pp. 33-42) include a Human Influence Index (HII) criterion
developed by the Wildlife Conservation Society (WCS) and Center for
International Earth Science Information Network (CIESIN) at the
Socioeconomic Data and Applications Center (SEDAC) at Columbia
University (SEDAC 2012, p. 1). Using procedures developed by Sanderson
(2002, as described in SEDAC 2012, pp. 1-2), WCS and CIESIN combined
scores for eight input layers (human population density per km\2\,
railroads, major roads, navigable rivers, coastlines, stable nighttime
lighting, urban polygons, and land cover) to calculate a composite HII
for 1-km\2\ (0.4-mi\2\) grid cells (pixels) worldwide. These values
could range from 0 to 64, with 0 representing no human influence and 64
representing the maximum human influence possible using all 8 measures
of human presence.
In the most recent version of the habitat model (version 13),
Sanderson and Fisher (2013, pp. 20, 34) analyzed the HII preferred by
jaguars in the Jalisco Core Area (the southernmost part of the
Northwestern Recovery Unit) separately from the HII in all other areas
(note that p. 15 of this report incorrectly states that the Sinaloa
Secondary Area is included with the Jalisco Core Area in this analysis)
to recognize that jaguars may respond more tolerantly to human
influence in the south than they do in the north. The results of these
analyses indicate that jaguars in the southernmost part of the
Northwestern Recovery Unit (the Jalisco Core Area) seem to inhabit a
wider range of HII values (less than 30), whereas jaguars throughout
the rest of the Northwestern Recovery Unit (including the United
States) appear to inhabit a narrower range of HII values (less than 20)
(Sanderson and Fisher 2013, pp. 20, 34).
Therefore, based on this information, we identify areas in which
the HII calculated over 1 km\2\ (0.4 mi\2\) is less than 20 as an
essential component of the physical or biological feature essential for
the conservation of the jaguar in the United States. These areas are
characterized by minimal to no human population density, no major
roads, or no stable nighttime lighting over any 1-km\2\ (0.4-mi\2\)
area.
Primary Constituent Elements for Jaguar
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of jaguar in areas occupied at the time of listing,
focusing on the features' primary constituent elements. Primary
constituent elements are those specific elements of the 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 jaguars are:
Expansive open spaces in the southwestern United States of at least
100 km\2\ (38.6 mi\2\) in size which:
(1) Provide connectivity to Mexico;
(2) Contain adequate levels of native prey species, including deer
and javelina, as well as medium-sized prey such as coatis, skunks,
raccoons, or jackrabbits;
(3) Include surface water sources available within 20 km (12.4 mi)
of each other;
(4) Contain from greater than 1 to 50 percent canopy cover within
Madrean evergreen woodland, generally recognized by a mixture of oak
(Quercus spp.), juniper (Juniperus spp.), and pine (Pinus spp.) trees
on the landscape, or semidesert grassland vegetation communities,
usually characterized by Pleuraphis mutica (tobosagrass) or Bouteloua
eriopoda (black grama) along with other grasses;
(5) Are characterized by intermediately, moderately, or highly
rugged terrain;
(6) Are below 2,000 m (6,562 feet) in elevation; and
(7) Are characterized by minimal to no human population density, no
major roads, or no stable nighttime lighting over any 1-km\2\ (0.4-
mi\2\) area.
Because habitat in the United States is at the edge of the species'
northern range, and is marginal compared to known habitat throughout
the range, we have determined that all of the primary constituent
elements discussed must be present in each specific area to constitute
critical jaguar habitat in the United States, including connectivity to
Mexico (but that connectivity may be provided either through a direct
connection to the border or by other areas essential for the
conservation of the species; see Areas Essential for the Conservation
of Jaguars, below).
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection.
[[Page 12588]]
Jaguar habitat and the features essential to their conservation are
threatened by the direct and indirect effects of increasing human
influence into remote, rugged areas, as well as projects and activities
that sever connectivity to Mexico. These may include, but are not
limited to: Significant increases in border-related activities, both
legal and illegal; construction of roadways, power lines, or pipelines;
construction or expansion of human developments; mineral extraction and
mining operations; military activities in remote locations; and human
disturbance related to increased activities in or access to remote
areas.
Jaguars in the United States are understood to be individuals
dispersing north from Mexico (perhaps in some cases becoming resident
in the United States), where the closest breeding population occurs
about 210 km (130 mi) south of the U.S.-Mexico border in Sonora near
the towns of Huasabas, Sahuaripa (Brown and L[oacute]pez
Gonz[aacute]lez 2001, pp. 108-109), and Nacori Chico (Rosas-Rosas and
Bender 2012, pp. 88-89). Therefore, impeding jaguar movement from
Mexico to the United States would adversely affect the Northwestern
Recovery Unit's ability to cyclically expand and contract as jaguar
populations in that unit recover.
Continuing threats from construction of border infrastructure (such
as pedestrian fences and roads), as well as illegal activities and
resultant law enforcement response (such as increased human presence,
vehicles, and lighting), may limit movement of jaguars at the U.S.-
Mexico border (Service 2007, pp. 23-27; 2008, pp. 73-75). The border
from the Tohono O'odham Nation, Arizona, to southwestern New Mexico has
a mix of pedestrian fence (not permeable to jaguars), vehicle fence
(fence designed to prevent vehicle but not pedestrian entry; it is
generally permeable enough to allow for the passage of jaguars), legacy
(older) pedestrian and vehicle fence, and unfenced segments (primarily
in rugged, mountainous areas). Fences designed to prevent the passage
of humans across the border also prevent passage of jaguars. However,
there is little to no impermeable fence in areas designated as critical
habitat, and we do not anticipate the construction of impermeable fence
in such areas. Additionally, fences may cause an increase in illegal
traffic and subsequent law enforcement activities in areas where no
fence exists (such as rugged, mountainous areas). This activity may
limit jaguar movement across the border and result in general
disturbance to jaguars and degradation of their habitat.
While current levels of law enforcement activity do not pose a
significant threat, a substantial increase in activity levels could be
of concern. We note that some level of law enforcement activity can be
beneficial, as it decreases illegal traffic. Significant increases in
illegal crossborder activities in the designated critical habitat areas
could pose a threat to the jaguar, and, therefore, border security
actions provide a beneficial decrease in crossborder violations and
their impacts. In summary, special management considerations or
protection of the physical or biological feature essential to the
conservation of jaguar habitat may be needed to alleviate the effects
of border-related activities, allowing for some level of permeability
so that jaguars may pass through the U.S.-Mexico border.
Under section 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act, the Secretary of the Department of Homeland
Security (DHS) is authorized to waive laws where the Secretary of DHS
deems it necessary to ensure the expeditious construction of border
infrastructure in areas of high illegal entry. As noted above, we know
of no plans to construct additional security fences in the designated
critical habitat. However, if future national security issues require
additional measures and the Secretary of DHS invokes the waiver, review
through the section 7 consultation process would not be conducted. If
DHS chooses to consult with the Service on activities covered by a
waiver, special management considerations would continue to occur on a
voluntary basis.
Construction of roadways, power lines, or pipelines (all of which
usually include maintenance roads), construction or expansion of human
developments, mineral extraction and mining operations, and military
operations on the ground can have the effect of altering habitat
characteristics and increasing human presence in otherwise remote
locations. Activities that can permanently alter vegetation
characteristics, displace native wildlife, affect sources of water,
and/or alter terrain ruggedness, such as construction and mining, may
render an area unsuitable for jaguars. In addition, these activities,
as well as military operations on the ground in remote areas, bring an
increase in human disturbance into jaguar habitat, potentially
fragmenting it further. As described in the ``Habitats Protected from
Disturbance or Representative of the Historical, Geographic, and
Ecological Distributions of the Species'' section, above, studies have
also shown that jaguars selectively use large areas of relatively
intact habitat away from human influence (Zarza et al. 2007, pp. 107,
108). Modeling exercises both in the United States (Menke and Hayes
2003, entire; Hatten et al. 2005, entire; Robinson et al. 2006, entire)
and in northwestern Mexico and the U.S.-Mexico borderlands area
(Sanderson and Fisher 2011, pp. 1-11 and 2013, entire) incorporate low
levels of human influence when mapping potential jaguar habitat in the
United States. Special management considerations of the physical and
biological feature essential to the conservation of the jaguar may be
needed to alleviate the effects on jaguar habitat of new road
construction or construction or expansion of power line and pipeline
projects; human developments; mining operations; and ground-based
military activities. Future projects should avoid (to the maximum
extent possible) areas identified as meeting the definition of critical
habitat for jaguars, and if unavoidable, should be constructed or
carried out to minimize habitat effects.
Areas Essential for the Conservation of Jaguars
As described in the ``Occupied Area at the Time of Listing''
section, above, we acknowledge that the lack of jaguar sightings at the
time the species was listed as endangered in 1972 (37 FR 6476), as well
as some expert opinions cited in our July 22, 1997, clarifying rule (62
FR 39147) (for example, Swank and Teer 1989), suggest that jaguars in
the United States had declined to such an extent by that point as to be
effectively eliminated. Only two undisputed Class I records (Table 1 in
the ``Class I Records,'' above) exist for jaguars between 1962 and
1982, both of which were males killed by hunters. To the extent that
areas described above may not have been occupied at the time of
listing, we determine that they are essential to the conservation of
the species for the following reasons: (1) They have demonstrated
recent (since 1996) occupancy by jaguars; (2) they contain features
that comprise suitable jaguar habitat; and (3) they contribute to the
species' persistence in the United States by allowing the normal
demographic function and possible range expansion of the proposed
Northwestern Recovery Unit, which is essential to the conservation of
the species (as discussed in the Jaguar Recovery Planning in Relation
to Critical Habitat section, above). Therefore, we include them in the
critical habitat designation.
[[Page 12589]]
Additionally, as discussed in the Jaguar Recovery Planning in
Relation to Critical Habitat and ``Space for Individual and Population
Growth and for Normal Behavior'' sections, above, connectivity to
Mexico is essential for the conservation of jaguars. Jaguars in the
United States are understood to be individuals dispersing from the
nearest core population in Mexico, which includes areas in central
Sonora, southwestern Chihuahua, and northeastern Sinaloa (Jaguar
Recovery Team 2012, p. 21). The closest known breeding population
occurs about 210 km (130 mi) south of the U.S.-Mexico border in Sonora
near the towns of Huasabas, Sahuaripa (Brown and L[oacute]pez
Gonz[aacute]lez 2001, pp. 108-109), and Nacori Chico (Rosas-Rosas and
Bender 2012, pp. 88-89). In several of our Federal Register documents
pertaining to the jaguar, including the notice in which we determined
that designating critical habitat was prudent (75 FR 1741, p. 1743), we
discussed the need to develop and maintain travel corridors for jaguars
between the United States and Mexico to enable a few, possibly resident
individuals to persist north of the international border. Therefore, we
conclude that maintaining travel corridors to Mexico is essential for
the conservation of jaguars in the Northwestern Recovery Unit, and,
therefore, for the species as a whole.
As we discussed under ``Space for Individual and Population Growth
and for Normal Behavior,'' above, describing these areas of
connectivity within the United States is difficult because of a lack of
information about the features these areas encompass. However, in some
areas there may be a level of connectivity to Mexico that could be
provided because these areas contain some, but not all, of the PCEs
described above. In the 2011 jaguar habitat model developed for
northwestern Mexico and the U.S.-Mexico borderlands area, Sanderson and
Fisher (2011, p. 11) described how low human influence is perhaps the
most important feature defining jaguar habitat, as jaguars most often
avoid areas with too much human pressure. Furthermore, their model
described a level of uncertainty regarding jaguar use of areas with
moderate tree cover and intermediate to high ruggedness, as jaguars
could potentially be found in areas meeting only one of these habitat
qualities. Therefore, we have determined the most likely areas
providing connectivity from occupied areas in the United States to
Mexico are those in which the human influence is low, and either or
both moderate tree cover or intermediately to highly rugged terrain is
present.
Consequently, we are further defining areas essential for the
conservation of jaguars as those areas without a Class I observation
that: (1) Connect an area that may have been occupied that is isolated
within the United States to Mexico, either through a direct connection
to the international border or through another area that may have been
occupied; and (2) contain low human influence and impact, and either
vegetative cover or rugged terrain. Based on these criteria, we
identified three subunits outside of areas that may have been occupied
that are also essential for the conservation of jaguars in the United
States because they provide connectivity to Mexico. They include the
southern extent of the Baboquivari Mountains, an east-west connection
area between the Santa Rita and Empire Mountains and northwestern
extent of the Whetstone Mountains, and a north-south connection area
between the southern extent of the Whetstone Mountains and the Huachuca
Mountains (including the Mustang Mountains).
Climate Change
The degree to which climate change will affect jaguar habitat in
the United States is uncertain, but it has the potential to adversely
affect the jaguar within the next 50 to 100 years (Jaguar Recovery Team
2012, p. 32). Climate change will be a particular challenge for
biodiversity 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 facet 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; Intergovernmental Panel on Climate Change (IPCC) 2007, p.
1181). Climate change may lead to increased frequency and duration of
severe storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et
al. 2002, p. 6074; Cook et al. 2004, p. 1015).
The current prognosis for climate change impacts in the American
Southwest includes fewer frost days; warmer temperatures; greater water
demand by plants, animals, and people; and an increased frequency of
extreme weather events, such as heat waves, droughts, and floods (Weiss
and Overpeck 2005, p. 2074; Archer and Predick 2008, p. 24). How
climate change will affect summer precipitation is less certain,
because precipitation predictions are based on continental-scale
general circulation models that do not yet account for land use and
land cover effects or regional phenomena, such as those that control
monsoonal rainfall in the Southwest (Weiss and Overpeck 2005, p. 2075;
Archer and Predick 2008, pp. 23-24). Some models predict dramatic
changes in Southwestern vegetation communities as a result of climate
change (Weiss and Overpeck 2005, p. 2074; Archer and Predick 2008, p.
24), especially as wildfires carried by nonnative plants (e.g.,
buffelgrass) potentially become more frequent, promoting the presence
of exotic species over native ones (Weiss and Overpeck 2005, p. 2075).
The impact of future drought, which may be long-term and severe
(Seager et al. 2007, pp. 1183-1184; Archer and Predick 2008, entire),
may affect jaguar habitat in the U.S.-Mexico borderlands area, but the
information currently available on the effects of global climate change
and increasing temperatures does not make sufficiently precise
estimates of the location and magnitude of the effects. We do not know
whether the changes that have already occurred have affected jaguar
populations or distribution, nor can we predict how the species will
adapt to or be affected by the type and degree of climate changes
forecast. We are not currently aware of any climate change information
specific to the habitat of the jaguar that would indicate what areas
may become important to the species in the future. Therefore, we are
unable to determine what additional areas, if any, may be appropriate
to include in the final critical habitat designation for this species
specifically to address the effects of climate change.
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 reviewed
available information and supporting data that pertains to the habitat
requirements of the jaguar. Much of this information is compiled in the
Recovery Outline for the Jaguar (Jaguar Recovery Team 2012, entire),
Digital Mapping in Support of Recovery Planning for the Northern Jaguar
report (Sanderson and Fisher 2011, pp. 1-11), and Jaguar Habitat
Modeling and Database Update report (Sanderson and Fisher 2013,
entire), which we regard as
[[Page 12590]]
the best available information for the jaguar and its habitat needs in
the northern portion of its range. A complete list of information
sources is available in our Literature Cited located on https://www.regulations.gov at Docket No. FWS-R2-ES-2012-0042 and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).
In accordance with the Act and our implementing regulations at 50
CFR 424.12(b), we review available information pertaining to the
habitat requirements of the species and identify occupied areas at the
time of listing that contain the features essential to the conservation
of the species. If, after identifying occupied areas, a determination
is made that those areas are inadequate to ensure conservation of the
species, in accordance with the Act and our implementing regulations at
50 CFR 424.12(e), we then consider whether designating additional
areas--outside those currently occupied--are essential for the
conservation of the species. We are designating critical habitat in
areas within the geographical area occupied by the species at the time
of listing in 1972. While we understand there may be alternative
explanations as to whether or not areas were occupied at the time the
jaguar was listed, we are required to make an administrative decision
regarding occupancy status for purposes of delineating critical habitat
units and applying the policy as described in the Act. Based on our
analyses as discussed under the Areas Essential for the Conservation of
Jaguars, above, it is our determination that the lands described were
occupied at the time of listing, and thus are described in the unit
descriptions, below, as being occupied. However, these same areas are
also considered essential, based on our analysis, above. We also are
designating specific areas without a Class I observation outside the
geographical area that may have been occupied by the species at the
time of listing. These subunits provide connectivity between subunits
that may have been occupied and Mexico because we have determined that
such areas are essential for the conservation of the species.
As discussed above, we are defining the areas that may be occupied
by jaguars to include rugged mountain ranges in southeastern Arizona
and extreme southwestern New Mexico: (1) In which an undisputed Class I
record has been documented (see Table 1 in the ``Class I Records''
section, above) between 1962 and the present (September 11, 2013), and
(2) that currently contain the physical or biological feature described
above (see below for the steps we followed to delineate critical
habitat boundaries). Therefore, occupied areas may include the
Baboquivari, Quinlan, Coyote, Pajarito, Atascosa, Tumacacori,
Patagonia, Canelo Hills, Huachuca, Grosvenor Hills, Santa Rita, Empire,
Whetstone, and Peloncillo Mountains of Arizona, and the Peloncillo and
San Luis Mountains of New Mexico.
All undisputed Class I records of jaguars documented in the United
States since 1962 have been within the aforementioned mountain ranges,
with the following two exceptions. We are not including the Dos Cabezas
Mountains in Arizona (one male jaguar killed in 1986) as critical
habitat because, while this mountain range contains some of the primary
constituent elements of the physical or biological feature required for
critical habitat, by itself it is not of an adequate size (100 km\2\
(38.6 mi\2\)) to meet the expansive open spaces requirement.
Additionally, the 1971 record of a male jaguar killed by hunters was
along the Santa Cruz River, not within a mountain range. As described
above under ``Space for Individual and Population Growth and for Normal
Behavior,'' this is the only record found in a valley bottom since the
species was listed, and likely represents a jaguar moving between areas
of higher quality habitat found in the surrounding isolated mountain
ranges. Therefore, because we are unable to describe or delineate the
features of areas connecting mountain ranges in the United States due
to a lack of information, this record does not fall within or near the
physical or biological feature described above.
We are also designating specific areas without a Class I
observation outside the geographical area that may have been occupied
by the species at the time of listing. These areas provide connectivity
to Mexico, or to another area that may have been occupied that provides
connectivity to Mexico (see Areas Essential for the Conservation of
Jaguars, above), because such areas are essential for the conservation
of the species.
We delineated (mapped) critical habitat boundaries using the
following steps:
(1) We mapped areas containing PCEs 3, 4, 5, and 7 as determined
from GIS data on water availability, vegetation community, tree cover,
ruggedness, and human influence (for a list of data sources, see our
response to comment 63 in the Summary of Comments and Recommendations
section). We did not use data describing distribution of native prey to
map areas because comprehensive, consistent data regarding prey
distribution across Arizona and New Mexico is lacking. Therefore, we
relied on the best information that is readily available from the
Arizona Game and Fish Department (Hunt Arizona 2012 Edition, available
at: https://www.azgfd.gov/regs/HuntArizona2012.pdf) and the New Mexico
Department of Game and Fish (Harvest Information, available at: https://www.wildlife.state.nm.us/recreation/hunting/).
Using this information, we determined that white-tailed deer and
javelina (the preferred prey of the jaguar in the northwesternmost part
of its range) have been present in each critical habitat unit
(described in Final Critical Habitat Designation, below) in Arizona for
at least 50 years, and have been successfully hunted in each hunt unit
overlapping jaguar critical habitat for the same period of time (Game
Management Units 30A, 34A, 34B, 35A, 35B, 36A, 36B, and 36C).
Historical harvest information from New Mexico is not as readily
available; however, based on the most recent harvest information,
white-tailed deer and javelina are available in Unit 5 of jaguar
critical habitat (Game Management Unit 27), and are likely available in
Unit 6 (both described in Final Critical Habitat Designation, below) of
jaguar critical habitat (Game Management Unit 26; we can determine that
javelina have been successfully harvested in this Game Management Unit,
but this particular unit lumps all deer together, so we are unable to
distinguish hunt success between mule deer and white-tailed deer).
Therefore, while we were unable to map prey distribution within Arizona
and New Mexico, we believe adequate levels of prey are available, and
have been available for at least 50 years in Arizona.
Areas (also called polygons) that were adjacent to each other (for
example, touching at corners) were merged into one polygon. We then
selected polygons containing at least one undisputed Class I record of
a jaguar from 1962 through September 11, 2013 (Table 1 in the ``Class I
Records'' section, above). We also selected polygons that fell
partially or entirely within 1 km (0.4 mi) of these polygons because
most of the GIS datasets we used were of a 1-km\2\ (0.4-mi\2\)
resolution (pixel size), and, therefore, we determined that this was
the distance within which some mapping error may have occurred. If the
area within the selected polygons did not meet the minimum size
criterion of 100 km\2\ (38.6 mi\2\) when added
[[Page 12591]]
together, we removed those polygons from further consideration.
We placed a 1-km (0.4-mi) buffer around the remaining polygons to
account for mapping error, but did not apply this buffer to areas in
which the vegetation community was other than Madrean evergreen
woodland or semidesert grassland, or areas in which the HII was 20 or
more (see ``Habitats Protected from Disturbance or Representative of
the Historical, Geographic, and Ecological Distributions of the
Species,'' above). The vegetation community data we used were not
mapped at a 1-km\2\ (0.4-mi\2\) resolution, and, therefore, we
determined the 1-km (0.4-mi) buffer did not apply to this dataset. Our
rationale for ensuring only areas in which the HII was less than 20 (as
described in the ``Habitats Protected from Disturbance or
Representative of the Historical, Geographic, and Ecological
Distributions of the Species'' section, above) were included in the
designation was based on Sanderson and Fisher (2011, p. 11), in which
they described low human influence as being essential to the jaguar;
we, therefore, did not include any areas in which this PCE was absent
because of its importance in describing jaguar habitat. We also removed
areas above 2,000 m (6,562 ft) (PCE 6). Small areas of 1 km\2\ (0.4
mi\2\) or less (our tolerance buffer as described above) that were
excluded within the polygons were then included, as these areas were of
a size in which a mapping error could have occurred. For the same
reason, we also removed small areas of 1 km\2\ (0.4 mi\2\) or less (our
tolerance buffer as described above) around the edges of the polygons
if, due to the steps described above, they were disconnected or
connected only by corners.
(2) If a polygon described in step 1, above, was not connected to
Mexico, we selected and added areas containing low human influence and
impact and either or both vegetative cover or rugged terrain to connect
these areas directly to Mexico or to another occupied area connected
directly to Mexico.
Therefore, we are designating six units based on sufficient
elements of the essential physical or biological feature being present
to support jaguar life-history processes. The occupied mountain ranges
within the units contain all of the identified elements of the physical
or biological feature necessary for jaguars. The unoccupied areas
denoted as Subunits 1b, 4b, and 4c are essential for the conservation
of the species, as they provide the jaguar connectivity with Mexico
within the Northwestern Recovery Unit.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack the physical or biological feature necessary for jaguars.
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 final rule have been
excluded by text in the rule and are not designated as critical
habitat. Therefore, a Federal action involving these lands will 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 feature in the adjacent critical
habitat.
Based on our analyses of areas as both occupied and unoccupied (but
essential for the conservation of the species), we are designating
critical habitat lands that we have determined may have been occupied
at the time of listing and contain sufficient elements of the physical
or biological feature to support life-history processes essential for
the conservation of the species and lands outside of the geographical
area that may have been occupied at the time of listing that we have
determined are also essential. In our analysis we also evaluated the
areas we consider occupied at the time of listing and determined that
these same areas are also essential for the conservation of jaguars in
the Northwestern Recovery Unit and, therefore, for the species as a
whole (see Areas Essential for the Conservation of Jaguars, above).
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-2012-0042, and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).
Final Critical Habitat Designation
We are designating 6 units as critical habitat for the jaguar. The
critical habitat areas described below constitute our best assessment
at this time of areas that meet the definition of critical habitat.
Those 6 units are: (1) Baboquivari Unit divided into subunits (1a)
Baboquivari-Coyote Subunit, including the Northern Baboquivari,
Saucito, Quinlan, and Coyote Mountains, and (1b) the Southern
Baboquivari Subunit; (2) Atascosa Unit, including the Pajarito,
Atascosa, and Tumacacori Mountains; (3) Patagonia Unit, including the
Patagonia, Santa Rita, Empire, and Huachuca Mountains, and the Canelo
and Grosvenor Hills; (4) Whetstone Unit, divided into subunits (4a)
Whetstone Subunit, (4b) Whetstone-Santa Rita Subunit, and (4c)
Whetstone-Huachuca Subunit; (5) Peloncillo Unit, including the
Peloncillo Mountains both in Arizona and New Mexico; and (6) San Luis
Unit, including the northern extent of the San Luis Mountains at the
New Mexico-Mexico border. Table 2 lists both the unoccupied units and
those that may have been occupied at the time of listing.
Table 2--Occupancy of Jaguar by Designated Critical Habitat Units
------------------------------------------------------------------------
Occupied at time of
Unit listing
------------------------------------------------------------------------
1--Baboquivari Unit:
1a--Baboquivari-Coyote Subunit:
Coyote Mountains Yes.
Quinlan Mountains Yes.
Saucito Mountains Yes.
Northern Baboquivari Mountains Yes.
1b--Southern Baboquivari Subunit:
Southern Baboquivari Mountains No.
Connection
2--Atascosa Unit:
[[Page 12592]]
Tumacacori Mountains Yes.
Atascosa Mountains Yes.
Pajarito Mountains Yes.
3--Patagonia Unit:
Empire Mountains Yes.
Santa Rita Mountains Yes.
Grosvenor Hills Yes.
Patagonia Mountains Yes.
Canelo Hills Yes.
Huachuca Mountains Yes.
4--Whetstone Unit:
4a--Whetstone Subunit:
Whetstone Mountains Yes.
4b--Whetstone-Santa Rita Subunit:
Whetstone-Santa Rita Mountains No.
Connection
4c--Whetstone-Huachuca Subunit:
Whetstone-Huachuca Mountains No.
Connection
5--Peloncillo Unit:
Peloncillo Mountains (Arizona and New Yes.
Mexico)
6--San Luis Unit:
San Luis Mountains (New Mexico) Yes.
------------------------------------------------------------------------
The approximate area of each critical habitat unit is shown in
Table 3.
Table 3--Designated Critical Habitat Units for Jaguar
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State Tribal Private Total
Unit or subunit ---------------------------------------------------------------------------------------------------
Ha Ac Ha Ac Ha Ac Ha Ac Ha Ac
--------------------------------------------------------------------------------------------------------------------------------------------------------
1a--Baboquivari-Coyote Subunit...................... 4,396 10,862 9,239 22,831 0 0 3,290 8,130 16,925 41,823
1b--Southern Baboquivari Subunit.................... 624 1,543 6,157 15,213 0 0 1,843 4,555 8,624 21,312
2--Atascosa Unit.................................... 53,807 132,961 2,296 5,672 0 0 2,522 6,231 58,625 144,865
3--Patagonia Unit................................... 101,354 250,452 11,847 29,274 0 0 29,046 71,775 142,248 351,501
4a--Whetstone Subunit............................... 16,066 39,699 5,445 13,455 0 0 3,774 9,325 25,284 62,479
4b--Whetstone-Santa Rita Subunit.................... 532 1,313 4,612 11,396 0 0 0 0 5,143 12,710
4c--Whetstone-Huachuca Subunit...................... 1,350 3,336 2,981 7,366 0 0 3,391 8,379 7,722 19,081
5--Peloncillo Unit.................................. 28,393 70,160 7,861 19,426 0 0 5,317 13,138 41,571 102,724
6--San Luis Unit.................................... 0 0 0 0 0 0 3,122 7,714 3,122 7,714
---------------------------------------------------------------------------------------------------
Grand Total..................................... 206,522 510,326 50,437 124,633 0 0 52,304 129,247 309,263 764,207
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 jaguar, below.
Unit 1: Baboquivari Unit
Subunit 1a--Baboquivari-Coyote Subunit: Subunit 1a consists of
16,925 ha (41,823 ac) in the northern Baboquivari, Saucito, Quinlan,
and Coyote Mountains in Pima County, Arizona. The main, larger section
of this subunit is generally bounded by the eastern boundary of the
Tohono O'odham Nation to the west and north, the western side of the
Altar Valley to the east, and up to and including Leyvas Canyon and
Three Peaks to the south. There are four small areas of land that are
disconnected from the main section of this subunit. One is a privately
owned area within the boundaries of the Tohono O'odham Nation
approximately 4 km (2.5 mi) west of the main, largest section and
approximately 22.7 km (14.1 mi) south of State Highway 86. The second
largest area is almost directly north of the main, largest section and
is primarily Federally and State owned, with a small amount of private
land included within the boundary. Between this area and the main,
largest section is a small piece of State land included within the
boundary. The last area is north and slightly west of the main section,
and is a privately owned area within the boundaries of the Tohono
O'odham Nation. Land ownership within the entire unit includes
approximately 4,396 ha (10,862 ac) of Federal lands; 9,239 ha (22,831
ac) of Arizona State lands; and 3,290 ha (8,130 ac) of private lands.
The Federal land is administered by the Service and Bureau of Land
Management. We consider the Baboquivari-Coyote Subunit occupied at the
time of listing (37 FR 6476; March 30, 1972) (see ``Occupied Area at
the Time of Listing'' section, above), and it may be currently
occupied, based on jaguar photos from 1996 and from 2001-2008 (see
Table 1 in the ``Class I Records'' section, above). It contains all
[[Page 12593]]
elements of the physical or biological feature essential to the
conservation of the jaguar, except for connectivity to Mexico.
The primary land uses within Subunit 1a include ranching, grazing,
border-related activities, Federal land management activities, and
recreational activities throughout the year, including, but not limited
to, hiking, birding, horseback riding, and hunting. Activities that may
require special management may include, for example, habitat clearing,
the construction of facilities, expansion of linear projects that may
fragment jaguar habitat, some fuels-management activities, and some
prescribed fire.
Subunit 1b--Southern Baboquivari Subunit: Subunit 1b consists of
8,624 ha (21,312 ac) in the southern Baboquivari Mountains in Pima
County, Arizona. This subunit is generally bounded by the eastern
boundary of the Tohono O'odham Nation to the west, up to but not
including Leyvas and Bear Canyons to the north, the western side of the
Altar Valley to the east, and the U.S.-Mexico border to the south.
There is one small, privately owned area within the boundaries of the
Tohono O'odham Nation that is disconnected from the main section of
this subunit. It is located approximately 1.2 km (0.75 mi) west of the
main, largest section and approximately 10 km (6.2 mi) north of the
U.S.-Mexico border. Land ownership within the unit includes
approximately 624 ha (1,543 ac) of Federal lands; 6,157 ha (15,213 ac)
of Arizona State lands; and 1,843 ha (4,555 ac) of private lands. The
Federal land is administered by the Service and Bureau of Land
Management. The Southern Baboquivari Subunit provides connectivity to
Mexico and was not occupied at the time of listing, but is essential to
the conservation of the jaguar because it contributes to the species'
persistence by providing connectivity to occupied areas.
The primary land uses within Subunit 1b include ranching, grazing,
border-related activities, Federal land management activities, and
recreational activities throughout the year, including, but not limited
to, hiking, birding, horseback riding, and hunting.
Unit 2: Atascosa Unit
Unit 2 consists of 58,625 ha (144,865 ac) in the Pajarito,
Atascosa, and Tumacacori Mountains in Pima and Santa Cruz Counties,
Arizona. Unit 2 is generally bounded by the eastern side of San Luis
Mountains (Arizona) to the west, roughly 4 km (2.5 mi) south of Arivaca
Road to the north, Interstate 19 to the east, and the U.S.-Mexico
border to the south. Land ownership within the unit includes
approximately 53,807 ha (132,961 ac) of Federal lands; 2,296 ha (5,672
ac) of Arizona State lands; and 2,522 ha (6,231 ac) of private lands.
The Federal land is administered by the Coronado National Forest and
Bureau of Land Management. We consider the Atascosa Unit occupied at
the time of listing (37 FR 6476; March 30, 1972) (see ``Occupied Area
at the Time of Listing'' section, above), and it may be currently
occupied based on multiple photos of two, or possibly three, jaguars
from 2001-2008 (see Table 1 in the ``Class I Records'' section, above).
It contains all elements of the physical or biological feature
essential to the conservation of the jaguar.
The primary land uses within Unit 2 include Federal land management
activities, border-related activities, grazing, and recreational
activities throughout the year, including, but not limited to, hiking,
camping, birding, horseback riding, picnicking, sightseeing, and
hunting. Activities that may require special management may include,
for example, habitat clearing, the construction of facilities,
expansion of linear projects that may fragment jaguar habitat, some
fuels-management activities, and some prescribed fire.
Unit 3: Patagonia Unit
Unit 3 consists of 142,248 ha (351,501 ac) in the Patagonia, Santa
Rita, Empire, and Huachuca Mountains, as well as the Canelo and
Grosvenor Hills, in Pima, Santa Cruz, and Cochise Counties, Arizona.
Unit 3 is generally bounded by a line running roughly 3 km (1.9 mi)
east of Interstate 19 to the west; a line running roughly 6 km (3.7 mi)
south of Interstate 10 to the north; Cienega Creek and Highways 83, 90,
and 92 to the east, including the eastern slopes of the Empire
Mountains; and the U.S.-Mexico border to the south. Land ownership
within the unit includes approximately 101,354 ha (250,452 ac) of
Federal lands; 11,847 ha (29,274 ac) of Arizona State lands; and 29,046
ha (71,775 ac) of private lands. The Federal land is administered by
the Coronado National Forest, Bureau of Land Management, and National
Park Service. We consider the Patagonia Unit occupied at the time of
listing (37 FR 6476; March 30, 1972) based on the 1965 record from the
Patagonia Mountains (see ``Occupied Area at the Time of Listing''
section, above) and currently occupied based on photos taken from
October 2012, through September 11, 2013, of a male jaguar in the Santa
Rita Mountains (see Table 1 in the ``Class I Records'' section, above).
The mountain ranges within this unit contain all elements of the
physical or biological feature essential to the conservation of the
jaguar.
The primary land uses within Unit 3 include Federal land management
activities, border-related activities, grazing, and recreational
activities throughout the year, including, but not limited to, hiking,
camping, birding, horseback riding, picnicking, sightseeing, and
hunting. Activities that may require special management may include,
for example, habitat clearing, the construction of facilities,
expansion of linear projects that may fragment jaguar habitat, some
fuels-management activities, and some prescribed fire.
Unit 4: Whetstone Unit
Subunit 4a--Whetstone Subunit: Subunit 4a consists of 25,284 ha
(62,479 ac) in the Whetstone Mountains, including connections to the
Santa Rita and Huachuca Mountains, in Pima, Santa Cruz, and Cochise
Counties, Arizona. Subunit 4a is generally bounded by a line running
roughly 4 km (2.5 mi) east of Cienega Creek to the west, a line running
roughly 6 km (3.7 mi) south of Interstate 10 to the north, Highway 90
to the east, and Highway 82 to the south. Land ownership within the
subunit includes approximately 16,066 ha (39,699 ac) of Federal lands;
5,445 ha (13,455 ac) of Arizona State lands; and 3,774 ha (9,325 ac) of
private lands. The Federal land is administered by the Coronado
National Forest and Bureau of Land Management. We consider the
Whetstone Subunit 4a occupied at the time of listing (37 FR 6476; March
30, 1972) (see ``Occupied Area at the Time of Listing'' section,
above), and, based on photographs taken in 2011, it may be currently
occupied (see Table 1 in the ``Class I Records'' section, above). The
mountain range within this subunit contains all elements of the
physical or biological feature essential to the conservation of the
jaguar, except for connectivity to Mexico.
The primary land uses within Subunit 4a include Federal land
management activities, grazing, and recreational activities throughout
the year, including, but not limited to, hiking, camping, birding,
horseback riding, picnicking, sightseeing, and hunting. Activities that
may require special management may include, for example, habitat
clearing, the construction of facilities, expansion of linear projects
that may fragment jaguar habitat, some fuels-management activities, and
some prescribed fire.
Subunit 4b--Whetstone-Santa Rita Subunit: Subunit 4b consists of
5,143 ha (12,710 ac) between the Empire Mountains and northern extent
of the Whetstone Mountains in Pima County,
[[Page 12594]]
Arizona. Subunit 4b is generally bounded by (but does not include): The
eastern slopes of the Empire Mountains to the west, a line running
roughly 6 km (3.7 mi) south of Interstate 10 to the north, the western
slopes of the Whetstone Mountains to the east, and Stevenson Canyon to
the south. Land ownership within the subunit includes approximately 532
ha (1,313 ac) of Federal lands and 4,612 ha (11,396 ac) of Arizona
State lands. The Whetstone-Santa Rita Subunit provides connectivity
from the Whetstone Mountains to Mexico and was not occupied at the time
of listing, but is essential to the conservation of the jaguar because
it contributes to the species' persistence by providing connectivity to
occupied areas.
The primary land uses within Subunit 4b include grazing and
recreational activities throughout the year, including, but not limited
to, hiking, camping, birding, horseback riding, picnicking,
sightseeing, and hunting.
Subunit 4c--Whetstone-Huachuca Subunit: Subunit 4c consists of
7,722 ha (19,081 ac) between the Huachuca Mountains and southern extent
of the Whetstone Mountains in Santa Cruz and Cochise Counties, Arizona.
Subunit 4c is generally bounded by Highway 83, Elgin-Canelo Road, and
Upper Elgin Road to the west; Highway 82 to the north; a line running
roughly 4 km (2.5 mi) west of Highway 90 to the east; and up to but not
including the Huachuca Mountains to the south. Land ownership within
the subunit includes approximately 1,350 ha (3,336 ac) of Federal
lands; 2,981 ha (7,366 ac) of Arizona State lands; and 3,391 ha (8,379
ac) of private lands. The Federal land is administered by the Coronado
National Forest and Bureau of Land Management. The Whetstone-Huachuca
Subunit provides connectivity from the Whetstone Mountains to Mexico
and was not occupied at the time of listing, but is essential to the
conservation of the jaguar because it contributes to the species'
persistence by providing connectivity to occupied areas.
The primary land uses within Subunit 4c include Federal forest
management activities, grazing, and recreational activities throughout
the year, including, but not limited to, hiking, camping, birding,
horseback riding, picnicking, sightseeing, and hunting.
Unit 5: Peloncillo Unit
Unit 5 consists of 41,571 ha (102,724 ac) in the Peloncillo
Mountains in Cochise County, Arizona, and Hidalgo County, New Mexico.
Unit 5 is generally bounded by the eastern side of the San Bernardino
Valley to the west, Skeleton Canyon Road and the northern boundary of
the Coronado National Forest to the north, the western side of the
Animas Valley to the east, and the U.S.-Mexico border on the south.
Land ownership within the unit includes approximately 28,393 ha (70,160
ac) of Federal lands; 7,861 ha (19,426 ac) of Arizona State lands; and
5,317 ha (13,138 ac) of private lands. The Federal land is administered
by the Coronado National Forest and Bureau of Land Management. We
consider the Peloncillo Unit occupied at the time of listing (37 FR
6476; March 30, 1972) (see ``Occupied Area at the Time of Listing''
section, above), and it may be currently occupied based on a track
documented in 1995 and photographs taken in 1996 (see Table 1 in the
``Class I Records'' section, above). It contains all elements of the
physical or biological feature essential to the conservation of the
jaguar.
The primary land uses within Unit 5 include Federal land management
activities, border-related activities, grazing, and recreational
activities throughout the year, including, but not limited to, hiking,
camping, birding, horseback riding, picnicking, sightseeing, and
hunting. Activities that may require special management may include,
for example, habitat clearing, the construction of facilities,
expansion of linear projects that may fragment jaguar habitat, some
fuels-management activities, and some prescribed fire.
Unit 6: San Luis Unit
Unit 6 consists of 3,122 ha (7,714 ac) in the northern extent of
the San Luis Mountains in Hidalgo County, New Mexico. Unit 6 is
generally bounded by the eastern side of the Animas Valley to the west,
a line running roughly 1.5 km (0.9 mi) south of Highway 79 to the
north, an elevation line at approximately 1,600 m (5,249 ft) on the
east side of the San Luis Mountains, and the U.S.-Mexico border to the
south. Land within the unit is entirely privately owned. We consider
the San Luis Unit occupied at the time of listing (37 FR 6476; March
30, 1972) (see ``Occupied Area at the Time of Listing'' section,
above), and it may be currently occupied based on photographs taken in
2006 (see Table 1 in the ``Class I Records'' section, above). Unit 6
contains almost all elements of the physical or biological feature
essential to the conservation of the jaguar except for expansive open
space of at least 100 km\2\ (38.6 mi\2\). This unit is included
because, while by itself it does not provide at least 100 km\2\ (38.6
mi\2\) of jaguar habitat in the United States, additional habitat can
be found immediately adjacent south of the U.S.-Mexico border, and,
therefore, this area represents a small portion of a much larger area
of habitat.
The primary land uses within Unit 6 include border-related
activities, grazing, and some recreational activities throughout the
year, including, but not limited to, hiking, horseback riding, and
hunting. Activities that may require special management may include,
for example, habitat clearing, the construction of facilities,
expansion of linear projects that may fragment jaguar habitat, some
fuels-management activities, and some prescribed fire.
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
[[Page 12595]]
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 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.
Determinations of Adverse Effects and Application of the ``Adverse
Modification'' Standard
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.
Section 7(a)(2) of the Act requires Federal agencies to ensure
their actions do not jeopardize the continued existence of listed
species or destroy or adversely modify critical habitat. The key factor
involved in the destruction/adverse modification determination for a
proposed Federal agency action is whether the affected critical habitat
would continue to serve its intended conservation role for the species
with implementation of the proposed action after taking into account
any anticipated cumulative effects (Service 2004, in litt. entire).
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
jaguar. 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.
In general, there are five possible outcomes in terms of how
proposed Federal actions may affect the PCEs or physical or biological
feature of jaguar critical habitat: (1) No effect; (2) wholly
beneficial effects (e.g., improve habitat condition); (3) both short-
term adverse effects and long-term beneficial effects; (4)
insignificant or discountable adverse effects; or (5) wholly adverse
effects.
Actions with no effect on the PCEs and physical or biological
feature of jaguar critical habitat do not require section 7
consultation, although such actions may still have adverse or
beneficial effects on the species itself that require consultation.
Examples of these actions may include grazing, ranching operations,
routine border security activities, or limited recreational activity,
which we anticipate would not result in adverse effects or adverse
modification to jaguar critical habitat, but may still require section
7 review for effects to the species itself.
Actions with effects to the PCEs or physical and biological feature
of jaguar critical habitat that are discountable, insignificant, or
wholly beneficial are considered not likely to adversely affect
critical habitat and do not require formal consultation if the Service
concurs in writing with that Federal action agency determination.
Examples of these actions may include some fuels-management activities,
prescribed fire, or closing and re-vegetating roads.
Actions with adverse effects to the PCEs or physical or biological
feature in the short term, but that result over the long term in an
improvement in the function of the habitat to the jaguar would likely
not constitute adverse modification of critical habitat either,
although due to the adverse effects, these actions may require formal
consultation. We anticipate that actions consistent with the stated
goals or recovery actions of the Recovery Outline for the Jaguar
(Jaguar Recovery Team 2012, entire) or the future recovery plan for the
species, once completed, would fall into this category.
Actions that are likely to adversely affect the PCEs or physical or
biological feature of jaguar critical habitat require formal
consultation and the preparation of a biological opinion by the
Service. The biological opinion sets forth the basis for our section
7(a)(2) determination as to whether the proposed Federal action is
likely to destroy or adversely modify jaguar critical habitat. Some
activities may adversely affect the PCEs, but not result in adverse
modification of critical habitat. Activities that may destroy or
adversely modify critical habitat are those that alter the essential
physical or biological feature of the critical habitat to an extent
that appreciably reduces the conservation value of the critical habitat
for the listed species.
As discussed above, the conservation role or value of jaguar
critical habitat is to provide areas to support some individuals during
transient movements by providing patches of habitat (perhaps in some
cases with a few resident jaguars), and as areas for cyclic expansion
and contraction of the nearest core area and breeding population in the
Northwestern Recovery Unit. Therefore, actions that could destroy or
adversely modify jaguar critical habitat include those that would
permanently sever connectivity to Mexico or within a critical habitat
unit such that movement of jaguars between habitat in the United States
and Mexico is eliminated. In general, such activities could include
building impermeable fences (such as
[[Page 12596]]
pedestrian fences discussed in Special Management Considerations or
Protection, above) in areas of vegetated rugged terrain or major road
construction projects (such as new highways or significant widening of
existing highways). Activities that may adversely affect the PCEs (such
as permanently displacing native prey species, increasing the distance
to water to more than 10 km (6.2 mi), removing tree cover, altering
rugged terrain, or appreciably increasing human presence on the
landscape), but may not destroy or adversely modify critical habitat
could include habitat clearing, the construction of facilities, or
expansion of linear projects that may fragment jaguar habitat and
reduce the amount of habitat available but that do not permanently
sever essential movement between the United States and Mexico or within
a given critical habitat unit.
At this time, we do not anticipate activities such as grazing,
ranching operations, or limited recreational activity would have
adverse effects to jaguar critical habitat, nor do we anticipate
activities consistent with the stated goals or recovery actions of the
Recovery Outline for the Jaguar (Jaguar Recovery Team 2012, entire) or
the future recovery plan for the species would constitute adverse
modification. We also do not anticipate further impermeable fencing
being built in areas with rugged terrain, as technological solutions
(such as video surveillance) for Homeland Security purposes are more
likely to be applied in these areas. We also are unaware of any plans
to expand highways through jaguar critical habitat. We are aware of two
large-scale mining operations. One is the Rosemont Mine that has been
evaluated within jaguar revised proposed critical habitat (this
consultation was completed prior to this final rule designating
critical habitat). We have evaluated this project through the section 7
consultation process, and our determination is that it does not
constitute destruction or adverse modification of jaguar critical
habitat. The other is the Hermosa Mine, but this project is only in the
planning phase and the Service has not received mine development plans.
Consequently, section 7 consultation has not been initiated.
We are aware of two large-scale mining operations. One is the
Rosemont Mine that has been evaluated within jaguar revised proposed
critical habitat (this consultation was completed prior to this final
rule designating critical habitat). We have evaluated this project
through the section 7 consultation process, and our determination is
that it does not constitute destruction or adverse modification of
jaguar critical habitat. The other is the Hermosa Mine but this is only
in the planning phase and the Service has not received mine development
plans. Consequently, section 7 consultation has not been initiated.
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) 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 geographical 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.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for the jaguar to determine if they meet
the criteria for exemption from critical habitat under section 4(a)(3)
of the Act. The following areas are Department of Defense lands with
completed, Service-approved INRMPs within the final critical habitat
designation.
Approved INRMPs
Fort Huachuca--Unit 3 and Subunit 4c, Arizona
Fort Huachuca is located in Cochise County, in southeast Arizona,
about 24 km (15 mi) north of the border with Mexico. Fort Huachuca is
home to the U.S. Army Intelligence Center and the U.S. Army Network
Enterprise Technology Command (NETCOM)/9th Army Signal Command. There
are approximately of 6,421 ha (15,867 ac) of critical habitat on Fort
Huachuca. Approximately 6,117 ha (15,115 ac) are in Unit 3, and
approximately 304 ha (752 ac) are in Subunit 4c.
Habitat features essential to jaguar conservation exist on Fort
Huachuca. Nearly 95 percent of the activities on Fort Huachuca are
military intelligence and communications systems testing and training.
Other activities on the installation include field-training exercises,
aviation activities, live-fire qualification and training, vehicle
maneuver training, and administrative and support activities. Fort
Huachuca's military mission is not heavily land-based. Generally,
direct and repeated impacts have been restricted to localized areas.
Fort Huachuca has an approved INRMP, completed in 2002 and updated in
2013 to specifically address the jaguar. Appendix 7 was added to focus
on specific benefits of the INRMP to federally listed species,
including the jaguar. Appendix 7 outlines how INRMP management actions
provide conservation benefits for the jaguar. These actions include:
ecosystem and hunting management intended to ensure adequate jaguar
prey; water resource protection measures; fire management activities
that maintain canopy cover; prohibition of recreation at night;
briefings on threatened and endangered species; and a cooperative
relationship with the University of Arizona's Wild Cat Research and
Conservation Center. The U.S. Army is committed to working closely with
the Service and Arizona Game and Fish Department to continually refine
the existing INRMP as part of the Sikes Act's INRMP review process.
Based on our review of the INRMP for this military installation, and in
accordance with section 4(a)(3)(B)(i) of the Act, we
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have determined that the portion of Unit 3 and Subunit 4c within this
installation, identified as meeting the definition of critical habitat,
is subject to the INRMP, and that conservation efforts identified in
this INRMP will provide a benefit to the jaguar. Therefore, lands
within this installation are exempt from critical habitat designation
under section 4(a)(3)(B) of the Act.
Fort Huachuca's 2013 INRMP includes benefits for jaguars and their
habitat that were not included in their previous INRMP. The INRMP
protects the PCEs, through:
(1) Providing connectivity to Mexico
a. Providing connectivity to Mexico through lands owned by the Fort
by maintaining wildlife-permeable fencing around the perimeter of the
Fort;
b. Minimal training and testing occurring in the rugged areas of
the Huachuca Mountains because the vast majority of training and
testing can effectively be conducted elsewhere (access to the mountains
is limited by rugged topography and single lane, four-wheel drive dirt
roads);
c. Maintaining large open areas in the mountains on the Fort by
avoiding construction activities in those areas;
d. Developing partnerships to protect land and natural resources
beyond the installation and across administrative boundaries;
i. Obtaining conservation easements on private lands from private
landowners within the Sierra Vista subwatershed (an area of
approximately 6,475 km\2\ (2,500 mi\2\) in size containing the Fort,
City of Sierra Vista, Huachuca City, and most of the San Pedro Riparian
National Conservation Area) to reduce the potential for incompatible
land use by buffering agricultural and undeveloped areas under airspace
and to manage the regional water table adjacent to the San Pedro
Riparian National Conservation Area through the Army Compatible Use
Buffer Program.
(2) Containing adequate levels of native prey
a. Employing an ecosystem management approach benefiting all native
species, including jaguars and their prey;
b. Coordinating with the Arizona Game and Fish Department to limit
the number of deer and javelina hunting permits issued within the
Fort's boundaries to ensure adequate prey are available for the top
predators known to occur on the installation.
(3) Including surface water sources within 20 km (12.4 mi) of one
another:
Managing pond and spring habitat on the installation for threatened
and endangered species, especially where habitat has been degraded or
lost or where potential exists for improving habitat.
(4) Containing greater than 1 percent to 50 percent canopy cover
a. Coordinating on prescribed fire and fuel management activities
in the Huachuca Mountains with the U.S. Forest Service, State Parks,
State Lands, The Nature Conservancy, San Pedro National Conservation
Area, Audubon Research Ranch, and private ranchers, and as specified in
the Fort's Integrated Wildland Fire Management Plan such that natural
fire regimes will eventually be restored;
b. Managing invasive species to protect natural resources and
critical habitat for threatened and endangered species.
(5) Characterized by intermediately, moderately, or highly rugged
terrain:
No activities occurring or planned to occur in the mountains
affecting or altering the terrain.
(6) Characterized by minimal to no human population
a. Controlling human activity and road/infrastructure development
in potential jaguar habitat (no major roads occur within the
installation);
b. Closing all canyons within the Huachuca Mountains to
recreational use between sunset and sunrise (the most active time for
jaguars);
c. Minimizing impacts from field training activities by conducting
these activities outside of mountainous areas, except for a minimal
amount of equipment testing along roadsides;
d. Providing environmental awareness training to Special Forces
units that occasionally request conducting patrolling training in the
mountains to minimize their impact on jaguars and jaguar habitat;
e. Maintaining dark skies in mountainous areas within the
installation;
f. Minimizing impacts from low-level helicopter and Unmanned Aerial
Systems flights (the predominant types of flights conducted over the
Fort) by avoiding them over the Huachuca Mountains at altitudes below
152 m (500 ft) above ground level, except for life, health and safety
purposes.
(7) Providing additional ongoing activities benefiting the jaguar
a. Cooperating with the University of Arizona's Wild Cat Research
and Conservation Center to permit surveying and monitoring for the
jaguar on the installation;
b. Providing threatened and endangered species awareness training
to troops [in safety briefings];
c. Completing game species management plans (including hunting);
d. Installing and maintaining all-weather signs along the single-
lane dirt roads within Huachuca and Garden Canyons, and their tributary
canyons with trails, that inform visitors that the Canyon is home to
sensitive species and require visitors to stay on trails and be as
quiet and unobtrusive as possible;
e. Ensuring that no seeding/planting of nonnative grasses or other
plants will occur on the installation that may alter fire frequencies
in the wildland areas;
f. Employing an adaptive management framework providing natural
resources management at the ecosystem level.
Implementation of these activities on the Fort is currently
conducted in a manner that minimizes impacts to jaguars and their
habitat. This military installation has an approved INRMP that provides
a benefit to the jaguar, and Fort Huachuca has committed to work
closely with the Service and the State wildlife agency to continually
refine their existing INRMP as part of the Sikes Act's INRMP review
process.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts
identified in the 2013 INRMP for Fort Huachuca provide a benefit to the
jaguar and its habitat. Therefore, lands subject to the INRMP for Fort
Huachuca, which includes the lands leased from the Department of
Defense by other parties, are exempt from critical habitat designation
under section 4(a)(3) of the Act, and we are not including
approximately 6,117 ha (15,115 ac) of Unit 3 and approximately 304 ha
(752 ac) in Subunit 4c for a total of 6,421 ha (15,867 ac) in this
final critical habitat designation because of this exemption.
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 she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she 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
[[Page 12598]]
which factor(s) to use and how much weight to give to any factor.
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 her discretion to exclude the area only if such exclusion
would not result in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
The principal benefit of including an area in a critical habitat
designation is the requirement for Federal agencies to ensure actions
they fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat,
the regulatory standard of section 7(a)(2) of the Act under which
consultation is completed. Federal agencies must also consult with us
on actions that may affect a listed species to ensure their proposed
actions are not likely to jeopardize the continued existence of such
species. The analysis of effects to critical habitat is a separate step
and different standard from that of the effects to the species.
Therefore, the difference in outcomes of these two analyses represents
the regulatory benefit of critical habitat.
The two regulatory standards are different and, significantly, the
factors that are reviewed under each standard are different as well.
The jeopardy analysis investigates the action's impact to survival and
recovery of the species with a focus on how the action affects
attributes such as numbers, distribution, and reproduction of the
species. On the other hand, the adverse-modification analysis
investigates the action's effects to the designated habitat's
contribution to recovery with a focus on the conservation role the
habitat plays for the listed species. This difference in the two
consultation standards and focus of review, in some instances, will
lead to different conclusions. Thus, critical habitat designations may
provide greater benefits to the recovery of a species than would
listing alone because it will provide another and alternative focus on
factors affecting listed species. Nonetheless, for many species (in at
least some locations) the outcome of these analyses in terms of any
required habitat protections will be similar because effects to habitat
will often also result in effects to the species.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area due to the
continuation, strengthening, or encouragement of partnerships, or
implementation of a management plan that provides equal to or more
conservation than a critical habitat designation would provide.
In the case of the jaguar, the benefits of critical habitat include
public awareness of jaguar presence and the importance of habitat
protection, and in cases where a Federal nexus exists, increased
habitat protection for the jaguar due to the protection from adverse
modification or destruction of critical habitat. In practice, a Federal
nexus exists primarily on Federal lands or for projects undertaken,
permitted, or funded by Federal agencies. Since jaguars were listed in
1972, we have had no projects on privately owned lands that had a
Federal nexus to trigger formal consultation under section 7 of the
Act. On Federal lands, we have been consulting with Federal agencies on
their effects to jaguar since jaguars were listed.
When we evaluate the existence of a conservation plan when
considering the benefits of exclusion, we consider a variety of
factors, including but not limited to, whether the plan is finalized;
how it provides for the conservation of the essential physical or
biological features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments we received, we evaluated
whether certain lands in the proposed critical habitat were appropriate
for exclusion from this final designation pursuant to section 4(b)(2)
of the Act. We are excluding approximately 20,764 ha (51,308 ac) of
Tohono O'odham Nation land in Subunit 1a and approximately 10,829 ha
(26,759 ac) of Tohono O'odham Nation land in Subunit 1b from the final
designation of critical habitat (see Exclusions Based on Other Relevant
Impacts below).
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 prepared a draft economic analysis of the
proposed critical habitat designation and related factors (78 FR 39237;
July 1, 2013). The draft economic analysis, dated May 2013, was made
available for public review from July 11, 2013, through August 9, 2013
(78 FR 39237; July 1, 2013), and again from August 29, 2013, through
September 13, 2013 (78 FR 53390; August 29, 2013). Following the close
of the comment period, a final analysis (dated January 15, 2014) of the
potential economic effects of the designation was developed taking into
consideration the public comments and any new information (IEc 2014).
The intent of the final economic analysis is to quantify the
economic impacts of all potential conservation efforts for the jaguar;
some of these costs will likely be incurred regardless of whether we
designate critical habitat. The economic impact of the final critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (e.g., under
the Federal listing and other Federal, State, and local regulations).
The baseline, therefore, represents the costs incurred regardless of
whether critical habitat is designated. The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts are those not expected to
occur absent the designation of critical habitat for the species. In
other words, the incremental costs are those attributable solely to the
designation of critical habitat above and
[[Page 12599]]
beyond the baseline costs; these are the costs we consider in the final
designation of critical habitat. The analysis looks retrospectively at
baseline impacts incurred since the species was listed, and forecasts
both baseline and incremental impacts likely to occur with the
designation of critical habitat. For a further description of the
methodology of the analysis, see Chapter 2, Framework for the Analysis
of the economic analysis.
The final economic analysis also addresses how potential economic
impacts are likely to be distributed, including an assessment of any
local or regional impacts of habitat conservation and the potential
effects of conservation activities on government agencies, private
businesses, and individuals. The final economic analysis evaluates
potential lost economic efficiency associated with residential and
commercial development and public projects and activities, such as
economic impacts on water management and transportation projects,
Federal lands, small entities, and the energy industry. Decision-makers
can use this information to assess whether the effects of the
designation might unduly burden a particular group or economic sector.
Finally, the final economic analysis considers those costs that may
occur in the 20 years following the designation of critical habitat,
which was determined to be the appropriate period for analysis because
limited planning information was available for most activities to
forecast activity levels for projects beyond a 20-year timeframe.
The final economic analysis quantifies economic impacts of jaguar
conservation efforts associated with the following categories of
activity: (1) Federal land management; (2) border protection
activities; (3) mining; (4) transportation activities; (5) private
residential or commercial development; (6) military activities; (7)
livestock grazing and other activities; (8) Tohono O'odham Nation
activities; and (9) other limited activities. Given the secretive and
transient nature of the jaguar, which makes it difficult to determine
whether a particular area is used by jaguars, Federal land managers
already take steps to protect the jaguar even without critical habitat
by consulting under section 7 jeopardy standards. We do not anticipate
recommending incremental conservation measures to avoid adverse
modification of critical habitat over and above those recommended to
avoid jeopardy of the species, except in cases where an activity could
create a situation in which a unit of critical habitat could become
inaccessible to jaguars. Major construction projects (such as new
highways, significant widening of existing highways, or construction of
large facilities or mines) could sever connectivity within these
critical habitat units and subunits and could constitute adverse
modification. Estimated baseline costs range from $2.8 million to $3.9
million in the first 20 years, with a seven and three percent discount
rate, respectively. The total potential incremental economic impacts
for all of the categories in areas proposed as revised critical habitat
over the next 20 years range from $4.2 million to $5.6 million
($370,000 to $370,000 annualized), assuming a seven and three percent
discount rate, respectively. The analysis estimates future potential
administrative impacts based on the historical rate of consultations on
the jaguar in areas proposed for critical habitat, as discussed in
Chapter 2 of the final economic analysis. A brief summary of the
estimated impacts within each category is provided below. Please refer
to the final economic analysis for a comprehensive discussion of the
potential impacts.
Since the jaguar is currently a listed species under the Act,
baseline efforts are likely already undertaken to protect the jaguar.
In addition, efforts to protect other endangered and threatened species
in the area, and the implementation of general conservation measures by
land managers likely also provide protection for jaguars. Depending on
the discount rate applied, we estimate that these baseline costs will
range from $2.8 million and $3.9 million in the first 20 years, with a
seven and three percent discount rate, respectively. On an annualized
basis, baseline impacts are likely to range from $240,000 to $250,000
depending on the discount rate assumption. Additionally, many baseline
measures that benefit the jaguar, such as maintenance of habitat and
open space, conservation measures for other species, monitoring, and
more are not quantified in this analysis due to a lack of cost data on
these actions.
Federal Land Management--The U.S. Bureau of Land Management (BLM),
U.S. Forest Service (USFS), U.S. National Park Service (NPS), and
Service land managers in proposed critical habitat areas state that
they already consider potential impacts to jaguar when conducting
activities within these areas. As such, quantified costs are limited to
administrative costs of consultation. Using a seven percent discount
rate, baseline costs are $200,000, or $18,000 annualized (2013
dollars), and incremental costs are $180,000, or $16,000 annualized
(2013 dollars).
Border Protection--U.S. Customs and Border Protection (CBP) reports
that the agency already considers potential impacts of its operations
on jaguar in all critical habitat units. Under section 102 of the
Illegal Immigration Reform and Immigrant Responsibility Act, the
Secretary of the Department of Homeland Security (DHS) is authorized to
waive laws where the Secretary of DHS deems it necessary to ensure the
expeditious construction of border infrastructure in areas of high
illegal entry. However, the CBP does not always waive compliance with
the ESA and does engage in section 7 consultation with the Service.
The CBP does not currently anticipate that planned activities in
critical habitat areas will cause permanent changes to landscape or
sever connectivity to Mexico. Furthermore, the CBP does not anticipate
that jaguar critical habitat will change the outcome of future section
7 consultations regarding jaguar and its habitat associated with border
operations in critical habitat areas. As such, quantified incremental
costs are limited to administrative costs of consultation. Incremental
costs, which are estimated to include the additional administrative
costs of considering critical habitat in consultation, are anticipated
to be $17,000, or $1,500 annualized. While specific future conservation
efforts are unknown, we utilize available data on past conservation
efforts to estimate that CBP will spend approximately $48,000 per year
on jaguar monitoring efforts, as well as $312,000 per consultation on
other actions. Using the past consultation as a guide to the number of
future actions, we anticipated that in total, using a seven percent
discount rate, baseline costs will be $770,000 over 20 years, or
$68,000 annualized (2013 dollars), related to approximately two formal
consultations over the next 20 years. Incremental costs, which are
estimated to include the additional administrative costs of considering
critical habitat in consultation, are anticipated to be $17,000, or
$1,500 annualized (2013 dollars).
Mining--Incremental project modifications beyond what would have
been recommended under the baseline to avoid jeopardy are generally
unlikely, unless a project is likely to permanently alter habitat or
sever connectivity to Mexico. The Service and a number of land managers
agree that few changes to recommendations resulting from consultations
in response to critical habitat designation are expected because mining
activity generally occurs
[[Page 12600]]
in Unit 3, which is considered occupied by the jaguar. However, to the
extent that additional conservation efforts are undertaken for critical
habitat, estimates of incremental impacts would be understated in the
econcomic analysis.
Overall, baseline costs are estimated at $1.2 million ($110,000 on
an annualized basis), of which $66,000 ($5,800 on an annualized basis)
are administrative impacts. Most of these costs are likely to occur as
a result of baseline conservation measures implemented for the
protection of the jaguar, such as road-kill monitoring and the
minimization of nighttime lighting; however, we are unable to fully
quantify those costs. Although they are included in the baseline
estimates where possible, some of these baseline conservation measures
are intended to benefit multiple species, and therefore only a portion
of these costs may be attributed to conservation of the jaguar.
There are two large-scale mining projects proposed in critical
habitat Unit 3, the Rosemont Copper Project and the Hermosa Project, as
well as smaller-scale mineral exploration projects. Forecast
incremental economic impacts associated with mining operations include
costs of addressing adverse modification of critical habitat in the
context of a section 7 consultation, as well as costs of implementing
associated conservation measures. The incremental analysis forecasts
$3.9 million ($340,000 on an annualized basis) in present-value impacts
associated with all of the aforementioned mining activities, of which
$22,000 ($1,900 annually) are administrative costs.
In October 2013, the Service completed a biological opinion and
conference opinion with the U.S. Forest Service providing Federal
approval of the Rosemont Mine. The biological opinion concluded that
the Rosemont Mine would not constitute jeopardy to the jaguar. A
conference opinion was also completed to address the impacts of the
Rosemont Mine to the then-proposed critical habitat designation for
jaguar, which concluded that the mining operation is not likely to
destroy or adversely modify jaguar critical habitat.
The Rosemont Mine is located in a unit of critical habitat that is
occupied by the jaguar. Since the jaguar is currently a listed species,
conservation efforts are already undertaken to avoid jeopardy to the
species in this area and, therefore, the economic impacts are
predominantly captured in the baseline. Through our evaluation of
impacts of the critical habitat designation, we determined that most of
the conservation efforts are not a result of the critical habitat
designation itself, but rather a result of the jaguar being a listed
species, and, therefore, incremental impacts of the critical habitat
designation are largely limited to transactional costs. As a result,
the incremental impact, economic or from other relevant factors, of the
designation on the mine is expected to be minimal.
Forecast conservation measures are primarily associated with
conservation efforts in the biological opinion issued for the Rosemont
Mine in October 2013, which includes multiple species in addition to
the jaguar. We note that costs associated with incremental project
modifications for the Rosemont Mine are included, to the extent that
cost information was available. In addition, incremental costs may be
associated with conservation measures such as restoration of surface
springs and revegetation, but information on the incremental costs of
these measures was not available. The conference opinion notes that
some of these efforts, including the management of conservation lands,
will be undertaken to benefit multiple species, in addition to the
jaguar. Therefore, these costs may overstate the incremental impacts of
jaguar critical habitat designation alone.
Transportation--Arizona Department of Transportation (ADOT) already
considers potential impacts of its projects on jaguar in the three
Arizona counties where critical habitat for the jaguar is proposed. No
major roads intersect the proposed critical habitat area in New Mexico.
While the construction of new roads has the potential to sever
connectivity of jaguar habitat, no such projects are planned in
critical habitat areas in the foreseeable future. We estimate that
approximately two formal consultations and seven technical assistance
efforts will occur related to minor transportation projects over the
next 20 years in the critical habitat areas. Incremental costs are
estimated to be $5,900, or $520 annualized (2013 dollars). Baseline
costs are estimated at $390,000, or $34,000 annualized (2013 dollars),
discounted at seven percent.
Private Residential or Commercial Development--The vast majority of
the 129,246 acres of privately owned lands designated as jaguar
critical habitat are rural and fall outside of any major urban areas.
County planners state that these areas are unlikely to be developed in
the foreseeable future, with the exception of areas around Patagonia,
Santa Cruz County, Arizona, (population as of 2010 was 3,213 U.S.
Census Bureau) in Unit 3 and on the eastern border of Unit 2. However,
even if these areas are developed, there are unlikely to be any Federal
permits or Federal funding for development activities in the privately
owned areas designated as jaguar critical habitat. While local ranchers
do take advantage of Natural Resources Conservation Service (NRCS)
programs, these programs are not expected to play a role in development
activities. As such, future consultations related to residential and
commercial development activities are not currently anticipated in the
critical habitat areas. No incremental impacts of critical habitat
designation on residential or commercial development are forecast.
Military--While the jaguar has not recently been documented at Fort
Huachuca in Unit 3 and Subunit 4c, the Department of Defense (DOD) is
aware that the species can be present and has incorporated the species
into its management planning. Both baseline and incremental costs are
limited to the administrative costs of consultation. Using a seven
percent discount rate, baseline costs are estimated to be $10,000, or
$900 annualized over the next 20 years (2013 dollars), and incremental
costs are $20,000, or $1,700 annualized (2013 dollars).
Grazing--In general, most private and State lands in the designated
critical habitat areas for the jaguar are currently used for
agricultural production, most commonly for livestock grazing. These
activities do not typically require Federal permitting or funding for
operation. However, many ranchers receive some funding from NRCS, often
for conducting range improvements or conservation activities. While
consultations on NRCS activities are rare, several public commenters as
well as NRCS have noted that some ranchers may withdraw applications
for NRCS funding following jaguar critical habitat in order to avoid
any potential obligations related to consultations between NRCS and the
Service. Total administrative baseline impacts to grazing and
agriculture are $14,000, or $1,200 annualized over the next 20 years
(2013 dollars). Incremental costs, including administrative costs of
consultation, are $24,000, or $2,100 annualized over the next 20 years
(2013 dollars).
Tribal Activities--Due to the trust relationship between the United
States and Native Americans, a significant number of Tribal activities
involve Federal funding or oversight that serve as a nexus for section
7 consultation. Therefore, where critical habitat is designated on
Tribal lands, many projects will have a Federal nexus for section 7
consultation. Communication with the Tohono O'odham Nation did not
identify any specific, planned projects that may result in section 7
[[Page 12601]]
consultation. We are also not aware of any previous section 7
consultations regarding activities on Tohono O'odham Nation lands.
However, given the likelihood of a Federal nexus and the proposal to
designate unoccupied critical habitat on Tohono O'odham lands, the
Tohono O'odham Nation could have incurred incremental administrative
impacts as a result of the designation. Costs associated with one fully
incremental formal consultation considering adverse modification of
critical habitat are expected to be $20,000, of which $3,500 could be
incurred by the Tohono O'odham Nation. However, the Secretary has used
her discretion to exclude the Tohono O'odham Nation based on our
ongoing and effective working partnership with the Tohono O'odham
Nation to promote the conservation of listed species, including the
jaguar and its habitat.
Other Activities--Limited other activities occur within the
critical habitat area. We use historical rates of consultation for
activities not described above to determine future rates of
consultation for other activities. Agencies involved in these
consultations have included: the Federal Energy Regulatory Commission
(FERC), U.S. Department of Energy, the Corps, Arizona Department of
Environmental Quality, the Arizona Department of Water Resources, the
U.S. Environmental Protection Agency, the U.S. Department of
Agriculture (USDA), the Federal Communications Commission, the Animal
and Plant Health Inspection Service, the Federal Aviation
Administration, the Federal Emergency Management Agency, and other
Federal and non-Federal agencies. In particular, the proposed Sierrita
natural gas pipeline may cross the designated areas and would have a
Federal nexus through the Federal Energy Regulatory Commission (FERC).
Due to limited additional conservation efforts resulting from
consultation, we estimate only administrative costs of consultation.
Baseline impacts are $180,000, or $16,000 annualized over the next 20
years (2013 dollars), and incremental impacts are $82,000, or $7,300
annualized over the next 20 years (2013 dollars).
Table 5--Summary of Forecast Incremental Impacts By Activity, 2013 to 2032
[Seven percent discount rate]
----------------------------------------------------------------------------------------------------------------
Percent of Potential additional
Activity Present value Annualized total impacts impacts
----------------------------------------------------------------------------------------------------------------
Federal lands management........... $180,000 $16,000 4.4 .....................
Border protection.................. $17,000 $1,500 0.4 .....................
Mining............................. $3,900,000 $340,000 92 If mining companies
choose not to
proceed to
production due to
the designation of
critical habitat,
economic activity
that would have been
associated with the
mines would not
occur.
Transportation..................... $5,900 $520 0.1 If mining plans move
forward, incremental
changes to planned
road improvements
could occur that
themselves could
result in
conservation efforts
for jaguar that are
not captured in this
analysis.
Development........................ $0 $0 0 .....................
Military........................... $20,000 $1,700 5.50 .....................
Grazing............................ $24,000 $2,100 0.5 It is possible that
some ranchers may
withdraw
applications for
NRCS funding
following jaguar
critical habitat in
order to avoid any
potential
obligations to
consult with the
Service.
Other.............................. $82,000 $7,300 .06 .....................
Tribal............................. Unquantified Unquantified 0 Administrative or
project modification
costs associated
with future projects
on Tohono O'odham
Nation lands.
................. ................. .............. Negative economic
impacts on the
Nation's ability to
manage its lands
independent of
Federal oversight.
----------------------------------------------------------------------------
Total:......................... $420,000,000 $3,700,000 100 .....................
----------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exerting her discretion to exclude any areas from this
designation of critical habitat for the jaguar based on economic
impacts.
A copy of the final economic analysis with supporting documents may
be obtained by contacting the Arizona Ecological Services Fish and
Wildlife Office (see ADDRESSES) or by downloading from the Internet at
https://www.regulations.gov.
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 final rule, we have
exempted from the designation of critical habitat those Department of
Defense lands with completed INRMPs determined to provide a benefit to
the jaguar. Fort Huachuca lands, as discussed above in Application of
Section 4(a)(3) of the Act was exempted from designation. There are
Department of Defense lands on which the U.S. Customs and Border
Protection (CBP) operates along the U.S.-Mexico border. However, we
anticipate no impact on national
[[Page 12602]]
security. Consequently, the Secretary is not exercising her discretion
to exclude any areas from this 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.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans that address jaguar habitat
needs. Accordingly, the Secretary is not exercising her discretion to
exclude any areas from this final designation based on HCPs or other
private management plans for jaguars. However, below we evaluate
impacts to conservation partnerships and consider the government-to-
government relationship of the United States with tribal entities.
Tohono O'odham Nation
The Tohono O'odham Nation is located in southern Arizona on lands
in Pima, Pinal, and Maricopa Counties. The Tohono O'odham Nation
encompasses 1,133,120 ha (2,800,000 ac) of land and is divided into 11
districts. The Tohono O'odham Nation's eastern boundary is located
approximately 24 km (15 mi) west of the city of Tucson, and the
administrative center is in the town of Sells, approximately 88 km (55
mi) southwest of Tucson. The revised proposed critical habitat
designation within the Tohono O'odham Nation boundaries included
approximately 20,764 ha (51,308 ac) in Subunit 1a and approximately
10,829 ha (26,759 ac) in Subunit 1b, totaling 31,593 ha (78,067 ac) of
Madrean evergreen woodland and semidesert grassland.
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; and the relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2), we coordinate with federally recognized Tribes on a
government-to-government basis. Further, Secretarial Order 3206,
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act'' (1997) states that (1) critical
habitat shall not be designated in areas that may impact tribal trust
resources, may impact tribally owned fee lands, or are used to exercise
tribal rights unless it is determined essential to conserve a listed
species; and (2) in designating critical habitat, the Service shall
evaluate and document the extent to which the conservation needs of the
listed species can be achieved by limiting the designation to other
lands.
We have conducted government-to-government consultation with the
Tohono O'odham Nation regarding the designation of critical habitat for
the jaguar and continued to do so throughout the public comment period
and during development of this final designation of critical habitat
for the jaguar. We sent notification letters on May 16, 2012, September
28, 2012, and September 3, 2013, to the Tribe describing the exclusion
process under section 4(b)(2) of the Act and engaged in conversations
with the Tribe about the proposal to the extent possible without
disclosing predecisional information.
We continue to work with the Tohono O'odham Nation and the BIA on
wildlife and plant-related projects, including recovery efforts for
Sonoran pronghorn and jaguar, as well as surveys and monitoring for
Pima pineapple cactus, jaguar, ocelot, lesser long-nosed bat, and
cactus ferruginous pygmy owls. We have established and maintain a
cooperative working relationship with the Tohono O'odham Nation and the
BIA when they request review of environmental assessments, seek
technical advice, and conduct consultations for Tohono O'odham Nation
projects. Surveys for any listed species are conducted by the BIA or
Tohono O'odham Nation personnel prior to implementation of projects. In
April of 2003, the Tohono O'odham Nation and the Service signed a
Statement of Relationship, which indicates the Tohono O'odham Nation,
through its Natural Resources Department, will work in close
collaboration with the Service to provide effective protections for
listed species.
As a sovereign entity, the Tohono O'odham Nation seeks to continue
to protect and manage their resources according to their traditional
and cultural practices. The Tohono O'odham Nation requests that their
land be excluded from the designation of critical habitat for the
jaguar due to their sovereign status and their right to manage their
own resources. They are concerned that critical habitat designation on
their land would limit the Nation's right to self-determination and
self-governance. The Tohono O'odham Nation recognizes that their land
contains jaguar habitat, and they consider the jaguar to be culturally
significant.
(1) Benefits of Inclusion
As discussed above under Application of Section 4(b)(2) of the Act,
Federal agencies, in consultation with the Service, must ensure that
their actions are not likely to jeopardize the continued existence of
any listed species or result in the destruction or adverse modification
of any designated critical habitat of such species. The difference in
the outcomes of the jeopardy analysis and the adverse modification
analysis represents the regulatory benefit and costs of critical
habitat. Approximately two-thirds of the areas proposed as critical
habitat that occur within the Tohono O'odham Nation are considered
occupied by the jaguar and, therefore, if a Federal action or
permitting occurs, there is a Federal nexus that would result in
consultation under section 7 of the Act on these lands whether or not
the area is designated as critical habitat. Our section 7 consultation
history across the jaguar's range shows that since listing in 1972, no
formal consultations have occurred for actions conducted on tribal
lands that resulted in adverse effects to jaguars. No formal jaguar
consultations have been conducted with the BIA, a likely source of
Federal funding for Native American Tribes. Additionally, no informal
consultations with agencies implementing actions on tribal lands have
been conducted, although we have provided technical assistance on some
projects to the Tohono O'odham Nation. Because of how the Tohono
O'odham Nation has chosen to manage and conserve its lands and the lack
of past section 7 consultation history, we do not anticipate that
Tribal actions would considerably change in the future, and we do not
anticipate a noticeable increase in section 7.
The draft environmental analysis found that the effects of critical
habitat designation on tribal resources are expected to be negligible
because (1) new consultations based solely on the presence of
designated critical habitat are unlikely, because land managers are
already consulting on jaguar throughout the proposed critical habitat
areas; and (2) tribal-related activities that currently occur or are
anticipated to occur are not likely to require reasonable and prudent
[[Page 12603]]
alternatives developed to avoid adverse modification.
Were we to designate critical habitat on Tohono O'odham Nation
lands, our section 7 consultation history indicates that there would be
few regulatory benefits to the jaguar. As described above, no formal
jaguar-related section 7 consultations have occurred on Tribal lands.
Further, the Tohono O'odham Nation and the BIA request review of
environmental assessments, seek technical advice, and conduct
consultations for Tohono O'odham Nation projects. The BIA or Tohono
O'odham Nation personnel also conduct surveys for any listed species
prior to implementation of projects. In addition, the Tohono O'odham
Nation already manages their lands for the benefit of the jaguar and
its habitat, adopting voluntary conservation measures on the western
side of Unit 1 to ensure habitat protection measures are implemented.
For these reasons, it would be highly unlikely that any consultation
would result in a determination of adverse modification.
In addition, during coordination with the Tohono O'odham Nation,
the Nation indicated that they are not considering any actions that
would destroy or adversely modify jaguar critical habitat, they are
participating on the Jaguar Recovery Team, and they are implementing a
jaguar survey and monitoring project to detect jaguars on Tohono
O'odham Nation lands on the west side of the Baboquivari and Coyote
Mountains (within Subunits 1a and 1b). Therefore, the Service also does
not anticipate that the Tohono O'odham Nation actions would be likely
to result in adverse impacts to the jaguar requiring formal section 7
consultations. For these reasons, the beneficial effect of a critical
habitat designation on these lands is minimal.
The principal benefit of any designated critical habitat is that
activities in and affecting such habitat require consultation under
section 7 of the Act. Such consultation would ensure that adequate
protection is provided to avoid destruction or adverse modification of
critical habitat. However, because no formal consultations have been
conducted on tribal lands or with the BIA, and no informal
consultations with agencies implementing actions on tribal lands have
been conducted; and because Tohono O'odham Nation has chosen to manage
and conserve its lands, coordinates with the Service prior to projects,
implements jaguar surveys prior to project implementation, and does not
foresee any actions that would destroy or adversely modify jaguar
critical habitat, the benefits of a critical habitat designation are
minimized.
(2) Benefits of Exclusion
Benefits of excluding these tribal lands from designated critical
habitat include our deference to tribes to develop and implement tribal
conservation and natural resource management plans for their lands and
resources, which includes the jaguar, and the preservation of our
cooperative partnership with the Tohono O'odham Nation. The Service and
Tohono O'odham Nation have established and maintain a cooperative
conservation partnership for the jaguar, as well as several other
listed species that occur on the Nation's lands. Partnership and
cooperation have developed through the Jaguar Recovery Team, to which
the tribe has appointed a representative. In addition, the Nation is
developing a jaguar management plan. While the Service cannot consider
draft management plans for exclusions, this plan demonstrates the
Nations cooperative conservation partnership with the Service and their
commitment to jaguar conservation. In addition, the Nation has been
working with the Service to develop a memorandum of agreement to
conduct a jaguar survey and monitoring study as identified in the 2012
Jaguar Recovery Outline. Further, the Nation's survey and monitoring
plan is consistent with an approved study plan currently under contract
with the Service to detect jaguars in the Northwestern Recovery Unit
over a 3-year period.
The Tohono O'odham Nation conducts environmental reviews of any
project occurring on their lands, which includes surveying for
threatened and endangered species (such as the Pima pineapple cactus)
and culturally-sensitive species (such as the cactus ferruginous pygmy-
owl). They are currently implementing a Tribal Wildlife Grant to
establish baseline data on the occupancy and distribution of flora and
fauna in the Baboquivari, Quinlan, and Coyote Mountains with the tribal
boundary. They are also confirming known populations and identifying
previously unknown populations of rare, threatened, or endangered
species such as the Chiricahua leopard frog, Kearney's blue star, and
Mexican spotted owl. Further, they are identifying species areas of
unique biological importance for future monitoring, protection, and
management efforts. They are establishing a model for future inventory
protocols on the remainder of the tribal lands and are providing for
the capability to continue such studies.
The Tohono O'odham Nation assists the Service in monitoring lesser
long-nosed bats at a maternity roost on tribal lands, which is only one
of three known maternity roosts. By adopting voluntary conservation
measures, the Nation ensures that habitat protection measures are
implemented. Further, the Nation is committed to working with the
Service to ensure their management meets the Service's requirements of
both the jaguar and its habitat. These efforts by the Nation
demonstrate their past and ongoing cooperation with the Service, and
their commitment to continue cooperation with the Service in the
future. Further demonstration of the Nations commitment to cooperate
with the Service is expressed in their Statement of Relationship (April
2013) to develop and promote communication and understanding to
preserve tribal sovereignty and accomplish conservation of natural
resources on the Nation's lands.
The benefit of exclusion is the continuance and strengthening of
our ongoing and effective working partnership with the Tohono O'odham
Nation to promote the conservation of listed species, including the
jaguar and its habitat. We consider that conservation benefits, as
described above, are being provided to the jaguar and its habitat
through our cooperative working relationship with the Tohono O'odham
Nation.
We have established a working relationship with the Tohono O'odham
Nation through informal and formal meetings that offered information
sharing and technical advice and assistance about the jaguar and
recommended conservation measures for the species and its habitat.
These proactive actions were conducted in accordance with Secretarial
Order 3206, American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act (June 5, 1997); the
relevant provision of the Departmental Manual of the Department of the
Interior (512 DM 2); and Secretarial Order 3317, Department of Interior
Policy on Consultation with Indian Tribes (December 1, 2011). During
our communication with the Tohono O'odham Nation, we recognized and
endorsed their fundamental right to provide for tribal resource
management activities, including those relating to jaguar habitat.
The designation of critical habitat on these tribal lands would be
expected to adversely impact our working relationship with the Tohono
O'odham Nation. During our discussions with the Tohono O'odham Nation
and through a letter received during our first public
[[Page 12604]]
comment period, we were informed that the designation of critical
habitat on tribal land would be viewed as an intrusion on their
sovereign ability to manage natural resources in accordance with their
own policies, customs, and laws. The perceived future restrictions
(whether realized or not) of a critical habitat designation could have
a damaging effect to coordination efforts, possibly preventing actions
that might maintain, improve, or restore habitat for the jaguar and
other species. To this end, the Tohono O'odham Nation would prefer to
work with us on a government-to-government basis. For these reasons, we
believe that our working relationship with the Tohono O'odham Nation
would be better maintained and more effective if they are excluded from
the designation of critical habitat for the jaguar. The benefits of
excluding this area from critical habitat will include the continued
cooperation and development of data-sharing and management plans for
this and other listed species. If this area is designated as critical
habitat, the government-to-government relationship we have with the
Tohono O'odham Nation will be damaged and this situation will affect
the Service's opportunities to assist the Tohono O'odham Nation with
technical reviews, voluntary consultations, and data sharing. We view
such opportunities as a substantial benefit since we have developed a
cooperative working relationship with the Tohono O'odham Nation for the
mutual benefit of jaguar conservation and other endangered and
threatened species.
In addition, there are other listed species and habitat on the
Tohono O'odham Nation for which conservation efforts of the tribe are
important. We believe that the tribe is willing to work cooperatively
with us and others to benefit other listed species, but only if they
view the relationship as mutually beneficial. Consequently, the
development of future voluntary management actions for other listed
species may be compromised if these tribal lands are designated as
critical habitat for the jaguar. Thus, a benefit of excluding these
lands would be future conservation efforts that would benefit other
listed species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
The benefits of including the Tohono O'odham Nation in critical
habitat are limited to the incremental benefits gained through the
regulatory requirement to consult under section 7 and consideration of
the need to avoid adverse modification of critical habitat, and
educational awareness. However, as discussed above, these benefits are
minimal because they are provided for through other mechanisms, such as
the Nation's commitment to jaguar conservation and the maintenance of
effective collaboration and cooperation to promote the conservation of
the jaguar and its habitat.
Alternatively, the benefits of excluding these areas from critical
habitat for the jaguar are more significant and include the continued
development and implementation of special management measures and
coordination with the Service for the jaguar and other listed species
on the Tohono O'odham Nation lands. As discussed above, the Service has
established a cooperative conservation partnership with the Nation.
Maintaining this relationship is important to the continued
conservation of the jaguar, as well as several other listed species,
that occur on the Nation's lands. Exclusion from critical habitat
designation will allow the Tohono O'odham Nation to manage their
natural resources to benefit the jaguar, without the perception of
Federal Government intrusion because of the designation of critical
habitat on their land. This philosophy is also consistent with our
published policies on Native American natural resource management. The
exclusion of this area will likely also provide additional benefits to
the species that would not otherwise be available to encourage and
maintain cooperative working relationships. Therefore, we find that the
benefits of excluding this area from critical habitat designation
outweigh the benefits of including this area. Furthermore, conservation
of other species and their habitat provides conservation benefits for
the environment as a whole, which is a benefit for the jaguar.
(4) Exclusion Will Not Result in Extinction
As noted above, the Secretary, under section 4(b)(2) of the Act,
may exclude areas from the critical habitat designation unless it is
determined, based on the best scientific and commercial data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species concerned. Jaguars range from the
southern United States to South America (Swank and Teer 1989, p. 14).
Consequently, we have determined that exclusion of the Tohono O'odham
Nation from the critical habitat designation will not result in the
extinction of the jaguar.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the jaguar during three comment
periods. The first comment period associated with the publication of
the proposed rule opened on August 20, 2012, and closed on October 19,
2012 (August 20, 2012, 77 FR 50214). The second comment period
associated with the proposed revision of critical habitat designation,
as well as the associated draft economic analysis and draft
environmental assessment, opened July 1, 2013, and closed on August 9,
2013, (July 1, 2013; 78 FR 39237). A third comment period from August
29, 2013, through September 13, 2013 (August 29, 2013, 78 FR 53390),
was provided to the public for additional review and comment on the
proposed revision of critical habitat designation, as well as the
associated draft economic analysis and draft environmental assessment.
We received several requests for a public hearing, which we held on
July 30, 2013. We also contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties and
invited them to comment on the proposed rule and draft economic
analysis and draft environmental assessment during these comment
periods.
We received approximately 33,000 comment letters on this action
through the end of the final comment period. All substantive
information provided during comment periods has either been
incorporated directly into this final designation or addressed below.
Comments received were grouped into general issues specifically
relating to the critical habitat designation for the jaguar and are
addressed in the following summary and incorporated into the final rule
as appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from seven knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from six of the
seven peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the jaguar. Most of the peer reviewers (five of the six) generally
concurred with our methods and conclusions and provided
[[Page 12605]]
additional information, clarifications, and suggestions to improve this
final rule. One peer reviewer was against critical habitat designation
for the jaguar, stating that there is no habitat in the United States
at this time that is critical to the survival of the jaguar as a
species. Peer reviewer comments are addressed in the following summary
and incorporated into the final rule as appropriate.
Peer Reviewer Comments
(1) Comment: There is no habitat in the United States that is
critical to the recovery of the jaguar or its survival as a species.
Our response: The Service has identified critical habitat for the
jaguar in accordance with the Act and its implementing regulations.
Section 4(a)(3)(A) of the Act states that critical habitat shall be
designated for endangered and threatened species to the maximum extent
prudent and determinable. Designation of critical habitat is not
prudent when one or both of the following situations exist (50 CFR
424.12(a)(1)): identification of critical habitat can be expected to
increase the degree of a threat or such designation would not be
beneficial to the species.
On March 30, 2009, the United States District Court for the
District of Arizona (Court) issued an opinion in Center for Biological
Diversity v. Kempthorne, CV 07-372-TUC JMR (Lead) and Defenders of
Wildlife v. Hall, CV08-335 TUC JMR (Consolidated) (D. Ariz., Mar. 30,
2009), that set aside the Service's previous not prudent determination
and required the Service issue a new determination on whether
designation is prudent, stating that Service regulations at https://www.federalregister.gov/select-citation/2010/01/13/50-CFR-424.12 (b)
require that the Service shall focus on the principal biological
constituent elements within the defined area that are essential to the
conservation of the species. The court did not order the Service to
designate critical habitat, rather the court ordered the Service to
reevaluate whether designation of critical habitat for the jaguar is
prudent. Thus, in responding to the Court's order, we reevaluated our
previous ``not prudent'' finding regarding critical habitat designation
for the jaguar. Following a review of the best available information,
including the ongoing conservation programs for the jaguar, and
information and analysis that became available subsequent to the July
12, 2006, not prudent finding, we determined that the designation of
critical habitat for the jaguar would be beneficial to the species. We
also determined that designation of critical habitat would not be
expected to increase the degree of threat to the species. As such, we
no longer find that designation of critical habitat for the jaguar is
not prudent under our regulations, and, conversely, determine that
designation is prudent. Therefore, we are required to designate
critical habitat for the jaguar to fulfill our legal and statutory
obligations. Based on the best scientific data available, the Service
has determined that designation of critical habitat for the jaguar is
prudent and determinable.
The first part of section 3(5)(A) of the Act defines critical
habitat as areas within the geographical area occupied by the species,
at the time it is listed, on which are found those physical or
biological features that are essential to the conservation of the
species. Under the second part 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. As discussed in the Background section of the January
13, 2010, Notice of Determination (75 FR 1741), jaguars have been found
in the United States in the past and may occur in the United States now
or in the future. As such, physical and biological features that can be
used by jaguars occur in the United States. We have determined that
there are geographical areas in the United States that may have been
occupied by the species at the time it was listed. The Service has
determined that data are sufficient to determine the physical or
biological feature and associated PCEs for jaguar critical habitat. We
have determined that the essential physical or biological feature and
the associated PCEs essential for jaguar conservation are present in
the United States. Critical habitat in the United States contributes to
recovery the jaguar's persistence and recovery across the species'
entire range by providing small patches of habitat (perhaps in some
cases with a few resident jaguars), and as areas for cyclic expansion
and contraction of the nearest core area and breeding population in the
proposed Northwestern Recovery Unit.
Section 4(b)(2) of the Act states that the Secretary shall
designate critical habitat, and make revisions thereto, under
subsection (a)(3) on the basis of the best scientific data available
and after taking into consideration the economic impact, and any other
relevant impact, of specifying any particular area as critical habitat.
It is often the case that biological information may be lacking for
rare species; however, the Service has used the best available
scientific data as required by the Act. We recognize that information
currently available for northern jaguars is scant; therefore, we
convened a binational Jaguar Recovery Team in 2010 to synthesize
information on the jaguar, focusing on a area comprising jaguars in the
northernmost portion of their range, the proposed Northwestern Recovery
Unit. The Jaguar Recovery Team comprises members from the United States
and Mexico, and is composed of two subgroups: a technical subgroup and
an implementation subgroup. We have based jaguar critical habitat on
information compiled and produced by the Jaguar Recovery Team, to the
greatest extent possible. As described in the proposed rule and this
final rule, to the greatest extent possible, we based critical habitat
boundaries on the physical and biological feature and PCEs from the
latest jaguar habitat model produced by the Jaguar Recovery Team
(Sanderson and Fisher 2013, entire), which we consider the best
commercial and scientific data available. The Jaguar Recovery Team
comprises jaguar experts, large-cat experts, and stakeholders from the
United States and Mexico; therefore, we consider that the work produced
by the team is the best available scientific and commercial data and,
subsequently, the best information to use in determining the physical
or biological feature and associated PCEs of jaguar critical habitat.
Using this information, we have determined that the physical or
biological feature of jaguar critical habitat and the associated PCEs
are present in the United States, and that these areas were occupied at
the time of listing.
(2) Comment: Designation of critical habitat is not due to new
data, but due to litigation. The Service's previous 1997 and 2006 not
prudent determinations for designating critical habitat for the jaguar
were valid decisions, but the 2010 prudent determination to designate
critical habitat for the jaguar is not valid. The court did not order
the Service to designate critical habitat, but rather to determine if
the physical and biological features upon which jaguars depend could be
found in the United States and, if so, were essential to the
conservation of the species.
Our response: The Service has identified critical habitat for the
jaguar in accordance with the Act and its implementing regulations. See
our response to comment number 1 in the Peer Reviewer Comments above.
(3) Comment: The Service received multiple comments related to the
[[Page 12606]]
inclusion of areas north of the proposed critical habitat. Some thought
areas north of the proposed critical habitat along the Mogollon Rim in
Arizona, and to the north and east into the Gila highlands in New
Mexico are where the best biophysical potential for jaguar recovery in
the United States exists. Others thought jaguars would use habitat
north of the proposed critical habitat, but thought the use and
importance of these areas were lower given their distance from breeding
populations.
Our response: Areas north of designated critical habitat may be
usable by jaguars and may in fact contribute to the recovery of the
species. However, these areas do not meet the definition of critical
habitat under the Act because they were neither occupied at the time of
listing nor are they considered essential to the conservation of the
species. See Areas Essential for the Conservation of Jaguars, above.
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. However, we have determined that the critical
habitat areas that we are designating in the United States are
sufficient for the conservation of jaguars. We do not agree that areas
in the United States outside of the proposed Northwestern Recovery Unit
must be designated as critical habitat to recover the species, as the
boundaries of the recovery unit were determined by the Jaguar Recovery
Team. All designated areas contain all of the physical and biological
features upon which jaguars in the United States depend, including
connectivity to Mexico, which is a key component aiding the recovery of
the species, or the designated areas are considered essential to the
conservation of the jaguar.
(4) Comment: The Service should include designation of additional
areas to support a viable, self-sustaining population of jaguars within
the United States (of 50 to 100 individuals) in order to recover the
species within the United States.
Our response: Creating a viable, self-sustaining population (of
perhaps 50 to 100 jaguars) in the United States is not a recovery goal
for the jaguar (Jaguar Recovery Team 2012, pp. 38-42). Recovery of the
jaguar does not require that areas in the United States contain
females, documented breeding, or a self-sustaining population. As
discussed in the proposed rule and this final rule, the purpose of
designating critical habitat in the United States is to provide areas
for transient jaguars (with possibly a few residents) to support the
nearest breeding area to the south in Mexico, allowing this population
to expand and contract, and, ultimately, recover. It is our intent that
the designation of critical habitat will protect the functional
integrity of the features essential for jaguar life-history
requirements for this purpose into the future.
(5) Comment: The Service should expand critical habitat to
represent all ecoregions and biotic communities from which jaguars in
the United States have been extirpated, including portions of
California, Texas, and possibly Louisiana.
Our response: Designating all the ecoregions and biotic communities
in the United States from which jaguars have been extirpated as
critical habitat does not meet the definition of critical habitat under
the Act because they were neither occupied at the time of listing nor
are they considered essential to the conservation of the species. To
meet the requirements of the Act, the Service determined areas that
were occupied by jaguars at the time of listing that contained the
physical and biological features essential to the conservation of the
jaguar and unoccupied areas that were essential to the conservation of
the jaguar. Additionally, to the greatest extent possible, we based
critical habitat unit boundaries on the physical and biological feature
and PCEs from the latest jaguar habitat model produced by the Jaguar
Recovery Team (Sanderson and Fisher 2013, entire), which is the best
commercial and scientific data available. In areas where the critical
habitat units did not provide connectivity to Mexico (PCE 1), we
identified additional areas to provide this connectivity under the
second part of the definition of critical habitat. See Criteria Used To
Identify Critical Habitat, above. Further, section 3(5)(C) of the Act
states that, except in those circumstances determined by the Secretary,
critical habitat shall not include the entire geographical area which
can be occupied by the threatened or endangered species.
(6) Comment: The lack of detection of jaguars does not indicate the
species is absent.
Our response: The Service agrees that the lack of detection does
not indicate the species is absent, and we acknowledge this in our
proposed rule and this final rule. The Service recognizes that many
mobile species are difficult to detect in the wild because of
morphological features (such as camouflaged appearance) or elusive
behavioral characteristics (such as nocturnal activity) (Peterson and
Bayley 2004, pp. 173, 175). This situation presents challenges in
determining whether or not a particular area is occupied because we
cannot be sure that a lack of detection indicates that the species is
absent (Peterson and Bayley 2004, p. 173). However, the Service used
the best available data pertaining to jaguar occurrences. See Occupied
Area at the Time of Listing, above, in this final rule.
(7) Comment: The Service should follow the jaguar habitat modeling
efforts of Hatten et al. (2005) and Robinson (2006) as a basis for
including additional areas in these two states. Hatten et al. (2005)
identified 21-30 percent of Arizona (approximately 62,000-88,600 km\2\
(23,938-34,209 mi\2\)) as potential jaguar habitat and Robinson (2006)
identified approximately half of New Mexico (approximately 156,800
km\2\ (60,541 mi\2\)) as potential jaguar habitat.
Our response: Designating all areas of potential habitat in the
United States as critical habitat does not meet the definition of
critical habitat under the Act because they were neither occupied at
the time of listing nor are they considered essential the conservation
of the species. We recognize that the area of potential habitat is
larger than what we have designated as critical habitat, but as
required under the Act, we have designated those areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features that are
essential to the conservation of the species; or 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. We also 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.
In the Jaguar Recovery Team's analysis and modeling effort, the
team considered the modeling efforts of Hatten et al. (2005, entire)
and Robinson (2006, entire) and further refined the Hatten et al.
(2005) model such that a similar model could be applied across the
entire Northwestern Recovery Unit. The Jaguar Recovery Team provided
this
[[Page 12607]]
analysis and habitat model in their 2013 report entitled Jaguar Habitat
Modeling and Database Update (Sanderson and Fisher 2013, entire). We
based critical habitat boundaries on the physical or biological feature
and PCEs from the updated habitat modeling report, in which the habitat
features preferred by the jaguar in the proposed Northwestern Recovery
Unit were described based on the best available science and expert
opinion of the Jaguar Recovery Team.
(8) Comment: The Service should expand critical habitat to ensure
habitat connectivity. The Service should include linkages between all
of the critical habitat units.
Our response: We recognize that connecting critical habitat units
in the United States is important to achieve connectivity between the
United States and Mexico. We have identified connectivity between
expansive open spaces in the United States and Mexico as an essential
component of the physical or biological feature essential for the
conservation of the jaguar in the United States, and we understand that
connectivity between expansive open areas of habitat for the jaguar in
the United States is necessary if viable habitat for the jaguar is to
be maintained. We acknowledge that, based on home range sizes and
research and monitoring, jaguars will use valley bottoms (for example,
McCain and Childs 2008, p. 7) and other areas of habitat connectivity
to move among areas of higher quality habitat found in isolated
mountain ranges in the United States. Therefore, in areas where
critical habitat was designated based on the first part of the
definition of critical habitat (areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features that are essential to the
conservation of the species) in which connectivity to Mexico (PCE 1)
was not provided through a direct connection to Mexico, we identified
areas under the second part of critical habitat (defined in the Act as
the 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) to provide this
connectivity. We did this by selecting and adding subunits containing
low human influence and impact, and either or both vegetative cover or
rugged terrain. See Connectivity between expansive open spaces in the
United States and Mexico, above, in this final rule.
In response to the need to include linkages between all of the
critical habitat units within the United States, we determined that no
additional areas within the United States must be designated to connect
critical habitat units together. As described in the final rule, there
is only one occurrence record of a jaguar in a valley between mountain
ranges. With only one record, we are unable to describe the features of
these areas because of a lack of information. Therefore, while we
acknowledge that habitat connectivity within the United States is
important, the best available scientific and commercial information
does not allow us to determine that any particular area within the
valleys is essential, and all of the valley habitat is not essential to
the conservation of the species. Therefore, we are not designating any
areas within the valleys between the montane habitat as critical
habitat. See Connectivity between expansive open spaces within the
United States, above, in this final rule.
(9) Comment: The Service should include all Class II observations
and suspect Class I observations. The Service should include all
historic records. The Service is dismissing the current and former U.S.
jaguar range. The Service appears to be trying to introduce balance in
the treatment of false negative and positive biases in time. However,
the more value-neutral approach would be to use both Class I and Class
II records.
Our response: The Service considers undisputed Class I records as
the best available scientific data to determine occupancy. To meet the
requirements of section 3(5)(A)(i) of the Act and its implementing
regulations, we are required to define the specific areas within the
geographical area occupied by the species at the time it is listed.
Determining jaguar occupancy at the time of listing is particularly
difficult because jaguars were added to the list many years ago, the
species was rare within the United States, and jaguars are, by nature,
cryptic and difficult to detect, so defining an area as occupied or
unoccupied must be done based on limited information. Class I records
are those for which some sort of physical evidence is provided for
verification (such as a skin, skull, or photograph); they are
considered ``verified'' or ``highly probable'' as evidence for a jaguar
occurrence. We determined that undisputed Class I observations from
1962 through September 11, 2013, provided the best scientific and
commercial data available, as these are the most reliable and
verifiable records for jaguars. Suspect (validity of these locations is
questionable) Class I observations, Class II observations, and other
historical records represent observations that may have been influenced
in some way or that may not, in fact, be a sighting of a jaguar. For
these reasons, we determined that undisputed Class I jaguar records are
the most reliable; therefore, we used these records to determine
critical habitat occupancy. See Occupied Area at the Time of Listing,
above, in this final rule.
(10) Comment: It is possible that jaguars were not present at the
time of listing; however, the absence of jaguars was most certainly the
result of human killing of jaguars, and jaguars almost certainly
occupied and reproduced in southern Arizona in the late 19th and early
20th century, shortly prior to listing.
Our response: Jaguars were present at the time of listing as well
as historically in the United States. Based on the best available
information related to jaguar rarity, biology, and survey effort, we
determine that areas containing undisputed Class I records from 1962 to
the present (September 11, 2013) may have been occupied by jaguars at
the time of listing. Our rationale for including these records is based
on expert opinion regarding the average lifespan of the jaguar, the
consensus being 10 years. It is likely that areas in which jaguar
sightings have occurred after 1982 were occupied at the time of the
original listing, but jaguars had not been detected because of their
rarity, the difficulty in detecting them, and a lack of surveys for the
species.
To the extent that uncertainty exists regarding our analysis of
these occurrence data, we acknowledge there is an alternative
explanation as to whether or not these areas were occupied at the time
the jaguar was listed in 1972 (37 FR 6476). The lack of jaguar
sightings at that time, as well as some expert opinions cited in our
July 22, 1997, clarifying rule (62 FR 39147) (for example, Swank and
Teer 1989), suggest that jaguars in the United States had declined to
such an extent by that point as to be effectively eliminated.
Therefore, an argument could be made that no areas in the United States
were occupied by the species at the time it was listed, or that only
areas containing undisputed Class I records from between 1962 and 1982
were occupied.
For this reason we also analyzed whether or not critical habitat
areas are essential to the conservation of the species. Through our
analysis, we determined that they are essential to the conservation of
the species because: (1) They have demonstrated recent (since 1996)
occupancy by jaguars; (2) they contain features that comprise jaguar
habitat; and (3) they contribute to the species' persistence in the
United States by allowing the normal demographic
[[Page 12608]]
function and possible range expansion of the Northwestern Recovery
Unit, which is essential to the conservation of the species (as
discussed in the Jaguar Recovery Planning in Relation to Critical
Habitat section). Therefore, whether or not they were occupied at the
time of listing, we are designating them as critical habitat.
(11) Comment: The Service's description of occupancy is not
consistent with the Act; no data from 1962 onward indicate any breeding
or resident populations of jaguars within the United States, as
originally stated in the 1972 rule.
Our response: The Act does not require an area to have a resident
population, documented breeding, or females in order to be considered
occupied. Rather, section 3(5)(A) of the Act defines the first part of
critical habitat as the specific areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features essential to the conservation of
the species. The Service has determined that physical and biological
features that are essential to the conservation of the jaguar occur in
the United States. Further, in Arizona Cattle Grower's Assoc. v.
Salazar, 2009 U.S. App. Lexis 29107 (June 4, 2010), the Ninth Circuit
affirmed that the Service has the authority to designate as occupied
all areas used by a listed species with sufficient regularity that
members of the species are likely to be present during any reasonable
span of time. Therefore, occupancy of an area can be indicated by the
presence of an individual member of the species, and we have determined
that areas may have been occupied at the time of listing based on this
definition in conjunction with observations of jaguars in those areas
(as described in Table 1 of this final rule).
Further, the purpose of critical habitat for the jaguar in the
United States is to contribute to the species' persistence and,
therefore, overall conservation by providing areas to support some
individuals during dispersal movements, by providing small patches of
habitat (perhaps in some cases with a few resident jaguars), and as
areas for cyclic expansion and contraction of the nearest core area and
breeding population in the Northwestern Recovery Unit. Through our
analysis, we determined there are areas within the United States
containing the physical or biological feature and associated PCEs of
jaguar critical habitat to support this function, including adequate
food, water, shelter, and space. Therefore, we are designating these
areas of critical habitat for the purposes stated above.
(12) Comment: Jaguars do not remain in the United States, nor are
they found in abundance in the United States, because areas in the
United States provide suboptimal conditions in terms of food and
reproduction.
Our response: The purpose of critical habitat for the jaguar in the
United States is to contribute to the species' persistence and,
therefore, overall conservation by providing areas to support some
individuals during dispersal movements, by providing small patches of
habitat (perhaps in some cases with a few resident jaguars), and as
areas for cyclic expansion and contraction of the nearest core area and
breeding population in the Northwestern Recovery Unit. Through our
analysis, we determined there are areas within the United States
containing the physical or biological feature and associated PCEs of
jaguar critical habitat to support this function, including adequate
food, water, shelter, and space. Therefore, we are designating these
areas of critical habitat for the purposes stated above.
(13) Comment: The central goal statement offered by the proposed
rule is to bring an endangered or threatened species to the point at
which the measures provided pursuant to the Act are no longer
necessary. The totality of what is necessary in terms of space,
quality, or numbers needed to attain viability is not specified
anywhere in the proposed rule. The closest approximation is statements
to the effect that some amount (not specified) of essential habitat is
needed to achieve recovery goals for jaguars in the United States, with
the remaining focus on defining essential jaguar habitat, which is not
a recovery goal.
Our response: The designation of critical habitat is only one
component of recovery for a species. The recovery plan is the
appropriate instrument to define recovery goals. The Service is in the
process of developing a recovery plan.
(14) Comment: The Service assumes that optimal habitat for jaguars
in the United States would be the high mountains or rugged areas,
because this is where the most sightings have been reported. However,
jaguar prey prefers lowland areas and are only relegated to more rugged
regions when the lowland areas have been taken over or destroyed.
Our response: Biological information is often lacking for rare
species, particularly with a cryptic species like the jaguar that is
difficult to detect. However, the Act requires the Service to make
determinations based on the best scientific and commercial data
available. The Jaguar Recovery Team produced a habitat model based on
the best information available, which indicates that habitat for
jaguars in the United States is in rugged, mountainous areas.
Therefore, we have utilized this information to inform this
designation.
(15) Comment: Areas in the United States will function primarily to
support dispersing or transient jaguars, although breeding could have
occurred in the past.
Our response: The Service agrees that critical habitat in the
United States will function primarily to support dispersing or
transient jaguars. Jaguars may have bred in the United States in the
past (see Table 1 in Brown and L[oacute]pez Gonz[aacute]lez 2001, pp.
6-9), but breeding has not been documented recently. As described in
the proposed rule and this final rule, the recovery function and value
of critical habitat for the jaguar within the United States is to
contribute to the species' persistence and, therefore, overall
conservation by providing areas to support some individuals during
dispersal movements, by providing small patches of habitat (perhaps in
some cases with a few resident jaguars), and as areas for cyclic
expansion and contraction of the nearest core area and breeding
population in the Northwestern Recovery Unit.
(16) Comment: The Service received several comments related to the
use of the best available scientific data. Some noted that the Service
has used the best available literature and data, and acknowledged that
there is a lack of data on jaguar habitat in this region; however,
additional data would not result in a significantly different or better
map of critical habitat. Conversely, others asserted that the Service
did not use the best available scientific data and data is lacking to
justify the designation of critical habitat. Others also asserted that
the proposed rule continually uses assumptions and speculation as fact.
Our response: In accordance with section 4 of the Act, we are
required to designate critical habitat on the basis of the best
scientific data available. Further, our Policy on Information Standards
under the 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
(www.fws.gov/informationquality/), provide criteria and guidance, and
establish procedures to ensure that our decisions are based on the best
scientific data available.
[[Page 12609]]
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.
Primary or original information sources are those that are closest
to the subject being studied, as opposed to those that cite, comment
on, or build upon primary sources. The Act and our regulations do not
require us to use only peer-reviewed literature, but instead they
require us to use the ``best scientific and commercial data available''
in a critical habitat designation. We use information from many
different sources, including articles in peer-reviewed journals,
scientific status surveys and studies completed by qualified
individuals, Master's thesis research that has been reviewed but not
published in a journal, other unpublished governmental and
nongovernmental reports, reports prepared by industry, personal
communication about management or other relevant topics, conservation
plans developed by States and counties, biological assessments, other
unpublished materials, experts' opinions or personal knowledge, and
other sources. We have relied on published articles, unpublished
research, habitat modeling reports, digital data publicly available on
the Internet, and the expert opinion of the Jaguar Recovery Team to
designate critical habitat for the jaguar.
Also, in accordance with our peer review policy published on July
1, 1994 (59 FR 34270), we solicited peer review from knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. Additionally, we requested comments or
information from other concerned governmental agencies, Native American
Tribes, the scientific community, industry, and any other interested
parties concerning the proposed rule. Comments and information we
received helped inform this final rule. Further, information provided
in comments on the proposed designations and the draft environmental
and economic analyses were evaluated and taken into consideration in
the development of these final designations, as appropriate.
Information currently available for northern jaguars is scant;
therefore, we convened a binational Jaguar Recovery Team in 2010 to
synthesize information on the jaguar, focusing on an area comprising
jaguars in the northernmost portion of their range, the proposed
Northwestern Recovery Unit. The Jaguar Recovery Team comprises members
from the United States and Mexico, and is composed of two subgroups: A
technical subgroup and an implementation subgroup. The technical
subgroup consists of feline ecologists, conservation biologists, and
other experts, who advise the Jaguar Recovery Team and the Service on
appropriate short- and long-term actions necessary to recover the
jaguar. The implementation subgroup consists of landowners and land and
wildlife managers from Federal, State, tribal, and private entities,
who advise the technical subgroup and the Service on ways to achieve
timely recovery with minimal social and economic impacts or costs.
As stated above and in the proposed rule, we have based jaguar
critical habitat on information compiled and produced by the Jaguar
Recovery Team, to the greatest extent possible. We consider that the
work produced by the Jaguar Recovery Team is the best available
scientific and commercial data, and that following the team's
recommendations is the best avenue for achieving conservation of the
species and, by extension, designating critical habitat. We acknowledge
that the scientific information regarding the jaguar has limitations
and that some of our citations are not specific to these species or
geographic area. Nevertheless, the citations offer evidence in basic
biological responses for similar species, and we would expect a similar
response with the jaguar. Consequently, the Service has used the best
available scientific information to support our decision.
(17) Comment: The Service's process of designating critical habitat
is logical, consistent, and reasonable, and the data used were
carefully evaluated and based on sound ecological principles. The use
of the model to identify areas with features important to the jaguar
habitat allows areas to be evaluated that have not been surveyed, but
have high potential to provide habitat for jaguars. Relying solely on
surveys or anecdotes will almost always yield a flawed product because
surveys never cover all areas of potential interest, are imperfect for
elusive animals that are challenging to detect, and, for species whose
populations are thought to be suppressed, there are almost certainly
areas on the landscape that can function as habitat, but that are
unoccupied because of reduced population levels.
Our response: We agree. In our proposed rule and this final rule,
we used the best available scientific information to support our
decision. Data reviewed by the Secretary may include, but are not
limited to scientific or commercial publications, administrative
reports, maps or other graphic materials, information received from
experts on the subject, and comments from interested parties. We have
based jaguar critical habitat on information compiled and produced by
the Jaguar Recovery Team, to the greatest extent possible. We consider
the work produced by the Jaguar Recovery Team as the best available
scientific and commercial data, and that following the team's
recommendations is the best avenue for achieving conservation of the
species and, by extension, designating critical habitat. The PCEs are
based on the latest jaguar habitat model produced by the Jaguar
Recovery Team (Sanderson and Fisher 2013, entire), which is the best
commercial and scientific data available. Consequently, the Service has
used the best available scientific information to support our decision.
(18) Comment: The Service should have considered the population
viability analysis (PVA) model in their decision process. The
population viability and, related, minimum viable populations, received
only passing reference in the proposed rule and with no articulated
justification. The PVA concept is central to the notion of recovery in
that it informs population targets, which in turn inform habitat
targets (the focus of this decision process).
Our response: During the development of the Recovery Outline and as
a part of the recovery planning process, the Jaguar Recovery Team
worked with the Wildlife Conservation Society to create a jaguar
habitat model (Sanderson and Fisher 2011, pp. 1-11; 2013, entire), and
the Conservation Breeding Specialist Group of the Species Survival
Commission/International Union for Conservation of Nature to conduct a
PVA and population habitat viability analysis (PHVA) for the jaguar. We
anticipated that these analyses would assist us in determining those
recovery actions that would be most effective for achieving a viable
jaguar population for the Northwestern Recovery Unit (not the United
States), as well as provide information relevant to determining
critical habitat for the jaguar. However, the PHVA analysis and PVA
themselves, while informative for recovery-planning purposes, did not
contribute to the determination of critical habitat. Critical habitat
for the jaguar focuses on the physical or biological features available
in the United States that are essential to the conservation of the
species; it is not
[[Page 12610]]
based on an overall number of jaguars, nor is it required to be,
whereas the PVA and PHVA are used to determine a minimum viable
population. The purpose of critical habitat for the jaguar is to
provide areas to support some individuals during dispersal movements,
by providing small patches of habitat (perhaps in some cases with a few
resident jaguars), and as areas for cyclic expansion and contraction of
the nearest core area and breeding population in the Northwestern
Recovery Unit, which contributes to the overall recovery of the jaguar.
Therefore, the Service relied on habitat features as described in the
preliminary report entitled Digital Mapping in Support of Recovery
Planning for the Northern Jaguar (Sanderson and Fisher 2011, pp. 1-11)
for our August 20, 2012, proposed rule (77 FR 50214), and a later
report entitled Jaguar Habitat Modeling and Database Update (Sanderson
and Fisher 2013, entire) for our July 1, 2013, revised proposed rule
(78 FR 39237) and this final rule. Please see the Criteria Used to
Identify Critical Habitat section of the final rule and our response to
comment number 1 in Peer Reviewer Comments above for further
information about how we incorporated these reports into our
determination.
(19) Comment: The Service should consider mountain lion (puma)
literature where the data and research on jaguars is scant. Mountain
lions, like jaguars, have an exceptionally large range that spans many
degrees of latitude and longitude with different habitat types and are
hypercarnivorous felid ambush predators that exhibit substantial
diversity of diet and specific habitat relations, depending on the
environment. The Service has the inherent authority and ability to use
the best available science regarding connectivity for other similar
species, such as the mountain lion, to make a reasoned judgment about
the most likely areas that would facilitate connectivity for the
jaguar. Consideration of mountain lions also argues against giving
credence to Rabinowitz (1999) and Swank and Teer (1989).
Our response: The Service recognizes the overlap in the ecology of
mountain lions and jaguars; however, we have based jaguar critical
habitat on information compiled and produced by the Jaguar Recovery
Team to the greatest extent possible. The Jaguar Recovery Team
comprises jaguar experts, large-cat experts (knowledgeable about
mountain lions), and stakeholders from the United States and Mexico;
therefore, we consider that the work produced by the team is the best
available scientific and commercial data, and that following the team's
recommendations is the best avenue to designating critical habitat and
conservation of the species.
(20) Comment: We received multiple comments concerning the
characterization of prey abundance. Some noted that the Service should
include actual estimates of prey density in the analysis so as to meet
the best available data standard and to be consistent with treatment of
other habitat factors. Others stated that it is impossible to
characterize prey abundance in any temporally and spatially meaningful
way. Rather, the relative permanent physical and ecological features
that are important to jaguars and their prey (e.g., vegetation
structure and composition, proximity to water, topography) are more
useful for characterizing habitat.
Our response: We have relied on the best available scientific
information on prey that is readily available from the Arizona Game and
Fish Department (Hunt Arizona 2012 Edition, available at: https://www.azgfd.gov/regs/HuntArizona2012.pdf) and the New Mexico Department
of Game and Fish (Harvest Information, available at: https://www.wildlife.state.nm.us/recreation/hunting/). Using this information,
we have determined that white-tailed deer and javelina (the preferred
prey of the jaguar in the northwestern-most part of its range) have
been present in each critical habitat unit for at least 50 years in
Arizona, and have been successfully hunted in each hunt unit
overlapping jaguar critical habitat for the same period of time (Game
Management Units 30A, 34A, 34B, 35A, 35B, 36A, 36B, and 36C). This
information indicates that adequate levels of prey are currently
available in critical habitat units in Arizona, and have been available
for at least 50 years in these units.
Historical harvest information from New Mexico is not as readily
available. However, based on the most recent harvest information,
white-tailed deer and javelina are available in Unit 5 of jaguar
critical habitat (Game Management Unit 27). White-tailed and mule deer
and javelina are likely available in Unit 6 of jaguar critical habitat
(Game Management Unit 26). We can determine that javelina have been
successfully harvested in this Unit 6 (Game Management Unit 26), but
this particular Game Management Unit lumps all deer together, so we are
unable to distinguish hunt success between mule deer and white-tailed
deer. This information indicates that adequate levels of prey are
currently available in critical habitat units located in New Mexico.
(21) Comment: There has been no detailed prey occurrence or density
study cited for the areas under consideration despite recognition that
adequate prey is a major factor in assessing critical habitat.
Our response: See our response to comment number 20 in Peer
Reviewer Comments above.
(22) Comment: The Service should consider that jaguar observations
would likely be biased towards areas where there was more human
activity together with greater visibility, specifically: nearer water
sources, in less rugged areas, in areas with less forest or shrub
cover, in areas with better access, and in areas with more human
residences. This is not intrinsically problematic, but this
precautionary bias should be recognized and explained.
Our response: We acknowledge that certain types of bias could be
evident in jaguar observations due to their cryptic, nocturnal, and
predatory nature. However, based on section 4(b)(1)(A) of the Act, the
Secretary is required to make determinations on the basis of the best
scientific and commercial data available.
(23) Comment: The Service should understand that just because
under-use of habitat near human facilities has been demonstrated, it
does not mean that individual animals will not use areas near people as
a result of or in the process of losing their fear. As long as jaguars
are not harassed or killed at a high rate around human facilities,
there is a high likelihood that jaguars could heavily use otherwise
suitable habitats near people, in areas where the HII is greater than
20.
Our response: We recognize that male jaguars have been documented
near roads, but the data do not indicate that this is where the
majority of jaguar sightings occur. Further, based on section
4(b)(1)(A) of the Act, the Secretary is required to make determinations
on the basis of the best scientific and commercial data available. We
have determined that the best scientific data available is that which
has been compiled and produced by the Jaguar Recovery Team. Therefore,
while we acknowledge that some jaguars may be able to use areas of a
higher HII, for the purposes of critical habitat we are using the range
of values recommended by the Jaguar Recovery Team in the northern
portion of the proposed Northwestern Recovery Unit.
(24) Comment: The Service received multiple comments regarding the
use of different habitat models for designating critical habitat
corridors. Some recommended using specific models such as Beier et al.
(2006) and
[[Page 12611]]
Rabinowitz and Zeller (2010). Others recommended using Pima County
Wildlife Connectivity Assessment and Arizona's Wildlife Linkages
Assessment. One recommended using a thesis by M. Rudy. Others
recommended using features on the landscape such as rivers, streams,
draws, washes, and wetlands. Others recommended using mountain lion
data or other corridor data regarding corridor width.
Our response: In response to the various models recommended, we
understand there are different approaches to modeling jaguar habitat
than the method we used, each involving different methodologies,
assumptions, and data layers. However, we believe that the information
collected by the Jaguar Recovery Team and the latest habitat model the
team produced (Sanderson and Fisher 2013, entire) is the best available
scientific data, and is appropriate to inform critical habitat for the
jaguar. Their methodology closely follows another jaguar habitat
mapping effort conducted by Hatten et al. (2005, entire), and
essentially involves determining the habitat features most relied upon
by jaguars in the northwestern-most part of the species' range by
overlaying spatial data layers representing these habitat features with
observations of jaguars within this range (see the Criteria Used to
Identify Critical Habitat section of the final rule for more detailed
information). Additionally, by following the Sanderson and Fisher
(2013) methodology, final critical habitat works alongside and supports
the recovery-planning process in that the information used for both
processes is compatible.
(25) Comment: The Service should connect critical habitat units in
the United States because sufficient connectivity between critical
habitat units within the United States is needed.
Our response: See our response to comment number 8 in Peer Review
Comments above.
(26) Comment: The Service should connect critical habitat units in
the United States because connectivity is needed to facilitate
dispersal events, adaptation to changing environmental conditions, and
genetic exchange.
Our response: As described in the final rule, the purpose of
critical habitat is to provide areas to support some individuals during
dispersal movements, by providing small patches of habitat (perhaps in
some cases with a few resident jaguars), and as areas for cyclic
expansion and contraction of the nearest core area and breeding
population in Mexico. We have determined that the designated areas are
adequate for these purposes.
(27) Comment: The Service should connect critical habitat units in
the United States because connectivity is needed to mitigate for
border-related activities that may sever connectivity to Mexico.
Our response: All projects with a Federal nexus proposed within
jaguar critical habitat in the United States will be evaluated on a
case-by-case basis with respect to section 7 of the Act to ensure they
do not destroy or adversely modify designated areas. Please see our
response to comment number 8 Peer Review Comments above regarding
connectivity of critical habitat.
(28) Comment: The Service should connect critical habitat units in
the United States because connectivity is needed to support 50 to 100
jaguars in Arizona and New Mexico.
Our response: Please see our response to comment number 4 Peer
Review Comments above.
(29) Comment: The Service has not explained the placement of
Subunits 4b and 4c. In particular, the placement of 4b is not supported
by the best scientific data, and the Service has not justified
including this subunit and does not provide empirical data (data
acquired by means of observation or experimentation).
Our response: Subunits 4b and 4c do not contain all of the PCEs,
nor are they required to, as these subunits are considered unoccupied.
Section 3 of the Act requires that the Service designate critical
habitat in 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. Subunits 4b and 4c
contain a combination of low human influence and either or both canopy
cover and ruggedness such that they represent areas through which a
jaguar may travel between the United States and Mexico. These critical
habitat subunits provide connectivity between critical habitat units
within the United States, and they provide connectivity between the
United States and Mexico.
(30) Comment: The Service should include the least-cost corridor
modeled by Rosemont Mine to replace Subunit 4b, as well as the
elimination of Subunit 4b altogether because Subunit 4c provides a more
direct route to Mexico from Subunit 4a.
Our response: In determining the most likely areas that would
connect Subunit 4a to Mexico (by connecting to Unit 3), we again relied
on data provided by the Jaguar Recovery Team, which we consider the
best available scientific data. These subunits contain a combination of
low human influence and either or both canopy cover and ruggedness such
that they represent areas through which a jaguar may travel between
Subunit 4a and Mexico. Either Subunit 4b or 4c may be used by a jaguar
based on these habitat characteristics; therefore, we have no reason
not to include these areas as critical habitat, regardless of which one
provides a more direct connection to Mexico, as both subunits provide
connectivity to Mexico through Unit 3.
(31) Comment: Future human impacts within Subunit 4c will render
that subunit nonviable.
Our response: We understand that additional human impacts from
future development on private or State lands could occur. However,
critical habitat does afford protection to the jaguar through section 7
consultation under 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. 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. Therefore,
actions that are funded, permitted, or carried out by a Federal agency
within jaguar critical habitat will continue to be evaluated to
determine their impacts on critical habitat.
(32) Comment: The single observation of a jaguar along the Santa
Cruz River contains considerable information of relevance to
identifying corridors, especially if framed in terms of prior knowledge
of jaguar ecology elsewhere.
Our response: Please see our response to comment number 8 Peer
Review Comments above regarding connectivity of critical habitat.
(33) Comment: The Service should consider that numerous scientific
publications (some cited by the proposed rule) make the case for
foreseeable warming and drying of the regions in question; which is to
say that the hypotheses (models of the world) tacitly adopted by the
proposed rule are not defensible in light of the best available
scientific information. Additional numerous publications describe not
only projected geospatial patterns of warming and drying based on
regional general circulation models, but also projected geospatial
changes in vegetation and plant species distributions for biomes and
species that
[[Page 12612]]
contribute directly to the proposed rule's definition of essential
jaguar habitat. It is plausible that portions of the United States
could become crucial to persistence of jaguars due to climate change.
Our response: The Service considered numerous scientific
information sources as cited in our proposed rule and this final rule.
The Service recognizes that some species are shifting their geographic
ranges, often moving poleward or upwards in elevation (National Fish,
Wildlife, and Plants 2012, p. 10). Range shifts are not always
negative: habitat loss in one area may be offset by an increase
elsewhere such that if a species is able to disperse, it may face
little long-term risk. However, it is clear that shifting distributions
can lead to a number of new challenges (National Fish, Wildlife, and
Plants 2012, p. 26). Changes in climate can have a variety of direct
and indirect ecological impacts on species, and can exacerbate the
effects of other threats. Climate-associated environmental changes to
the landscape, such as decreased stream flows, increased water
temperatures, reduced snowpack, and increased fire frequency, can
affect species and their habitats. The vulnerability of a species to
climate change impacts is a function of the species' sensitivity to
those changes, its exposure to those changes, and its capacity to adapt
to those changes. The Service acknowledges in the proposed rule and
this final rule that climate change has the potential to adversely
affect the jaguar within the next 50 to 100 years (Jaguar Recovery Team
2012, p. 32). However, the degree to which climate change will affect
jaguar habitat in the United States is uncertain. Further, we do not
know whether the changes that have already occurred have affected
jaguar populations or distribution, nor can we predict how the species
will adapt to or be affected by the type and degree of climate changes
forecast. Consequently, because the specific impacts of climate change
on jaguar habitats remains uncertain at this time, we did not recommend
any areas be designated as critical habitat specifically to account for
the negative effects of climate change.
(34) Comment: Clarify the exclusion of manmade features,
specifically if a road runs through a wilderness area, would this
entire area be excluded from critical habitat or just the road?
Our response: A road through a wilderness area would be excluded
from critical habitat because it does not contain the physical or
biological features essential to the jaguar's conservation. 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 within the legal boundaries on the
effective date of this rule. However, the presence of a road does not
exclude an area of 100 km\2\ that contains all the PCEs from being
designated as critical habitat. Areas in which the HII calculated over
1 km\2\ (0.4 mi\2\) is 20 or less are considered an essential component
of the physical or biological feature essential for the conservation of
the jaguar in the United States.
(35) Comment: Clarify what expansive open space is.
Our response: Expansive open spaces in the southwestern United
States is defined as areas of at least 100 km\2\ (32 to 38.6 mi\2\) in
size which: (1) Provide connectivity to Mexico; (2) contain adequate
levels of native prey species, including deer and javelina, as well as
medium-sized prey such as coatis, skunks, raccoons, or jackrabbits; (3)
include surface water sources available within 20 km (12.4 mi) of each
other; (4) contain from greater than 1 to 50 percent canopy cover
within Madrean evergreen woodland, generally recognized by a mixture of
oak (Quercus spp.), juniper (Juniperus spp.), and pine (Pinus spp.)
trees on the landscape, or semidesert grassland vegetation communities,
usually characterized by Pleuraphis mutica (tobosagrass) or Bouteloua
eriopoda (black grama) along with other grasses; (5) are characterized
by intermediately, moderately, or highly rugged terrain; (6) are below
2,000 m (6,562 feet) in elevation; and (7) are characterized by minimal
to no human population density, no major roads, or no stable nighttime
lighting over any 1-km\2\ (0.4-mi\2\) area.
(36) Comment: Clarify habitat-related terminology (i.e., habitat,
suitable habitat, high-quality habitat, essential habitat, and critical
habitat), especially the relations of one term to another, and maintain
its use throughout.
Our response: The terms suitable habitat, high-quality habitat, and
essential habitat are not used in the final rule. Critical habitat is
defined within the proposed rule and this final rule.
Comments From States
(37) Comment: There is no habitat in the United States that is
critical to the recovery of the jaguar or its survival as a species.
Our response: See our response to comment number 1 in Peer Reviewer
Comments above.
(38) Comment: Jaguar critical habitat in the United States is not
essential because jaguars have persisted in the Northern Recovery Unit
for the last 50 years with no evidence of breeding in the United States
during that time.
Our response: Evidence of breeding is not required for an area to
be designated as critical habitat. See our response to comment number
11 in Peer Reviewer Comments above.
(39) Comment: Designation of critical habitat is not due to new
data but due to litigation. The Service's previous 1997 and 2006 not-
prudent determinations for designating critical habitat for the jaguar
were valid decisions, but the 2010 prudent determination to designate
critical habitat for the jaguar is not valid. The court did not order
the Service to designate critical habitat, but rather to determine if
the physical and biological features upon which jaguars depend could be
found in the United States and, if so, were essential to the
conservation of the species.
Our response: The Service has identified critical habitat for the
jaguar in accordance with the Act and its implementing regulations. The
Service has determined that designation of critical habitat for the
jaguar is prudent and determinable based on the best scientific data
available. Section 4(a)(3)(A) of the Act states that critical habitat
shall be designated for endangered and threatened species to the
maximum extent prudent and determinable. Therefore, we are required to
designate critical habitat for the jaguar to fulfill our legal and
statutory obligations. See our responses to comment numbers 1 and 2 in
Peer Review Comments above.
(40) Comment: There are no physical or biological features to
support jaguars, and, therefore, there is no jaguar habitat in New
Mexico.
Our response: We have determined that the physical or biological
feature for jaguar critical habitat and the associated PCEs are present
in the United States, including New Mexico. To the greatest extent
possible, we have based jaguar critical habitat on information compiled
and produced by the Jaguar Recovery Team. The Jaguar Recovery Team
comprises jaguar experts, large-cat experts, and stakeholders from the
United States and Mexico; therefore, we consider that the work produced
by the team is the best available scientific and commercial data, and
that following the team's recommendations is the best avenue to
designating critical habitat and conservation of the species.
(41) Comment: Habitat in New Mexico and Arizona is marginal for the
jaguar; therefore, it is not essential.
Our response: Section 3(5)(A) of the Act defines critical habitat
as the
[[Page 12613]]
specific areas within the geographical area occupied by the species, at
the time it is listed on which are found those physical or biological
features essential to the conservation of the species. As described in
the final rule, the recovery function and value of critical habitat for
the jaguar within the United States is to contribute to the species'
persistence and, therefore, overall conservation by providing areas to
support some individuals during dispersal movements, by providing small
patches of habitat (perhaps in some cases with a few resident jaguars),
and as areas for cyclic expansion and contraction of the nearest core
area and breeding population in the Northwestern Recovery Unit. The
Northwestern Recovery Unit is essential for the conservation of the
species; therefore, areas within New Mexico containing the physical and
biological feature and associated PCEs are essential to the jaguar.
(42) Comment: The Service did not use the correct listing time
period to determine occupancy. The commenter is concerned that the
Service used data from 1982 to the present.
Our response: The Service's designation of occupied critical
habitat is in compliance with the Act. Determining jaguar occupancy at
the time of listing is particularly difficult given that: (1) Jaguars
were rare on the landscape in the United States at the time of listing,
making those individuals that may have been present more difficult to
detect; (2) jaguars require expansive open spaces for each individual,
thus reducing the likelihood of detecting them; (3) jaguars are highly
mobile and inhabit rugged, remote areas, thus we cannot be sure that a
lack of detection indicates that the species is absent; and (4) no
effort was made to detect jaguars in the United States from 1972 to
1997. As discussed in the proposed rule and this final rule, our
intention was to list the species throughout its entire range at the
time it was added to the Endangered Species Conservation Act in 1972;
therefore, we determine that 1972 is the date the species was listed.
We are including areas in which reports of jaguar exist during the 10
years prior to its listing as occupied at the time of listing, meaning
we are considering records back to 1962. Our rationale for including
these records is based on expert opinion regarding the average lifespan
of the jaguar, the consensus being 10 years. Therefore, we assume that
areas that would have been considered occupied at the time of listing
would have included sightings 10 years prior to its listing, as
presumably these areas were still inhabited by jaguars when the species
was listed in 1972. Based on the best available information related to
jaguar rarity, biology, and survey effort, we determine that areas
containing undisputed Class I records from 1962 (10 years prior to
listing, which is the average lifespan of a jaguar) to the present
(September 11, 2013) may have been occupied by jaguars at the time of
listing.
The second part of the Act's definition of critical habitat is
defined as specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination by the Secretary
that such areas are essential for the conservation of the species. For
these reasons, we also analyzed whether or not critical habitat areas
are essential to the conservation of the species. To the extent that
uncertainty exists regarding our analysis of these data, we acknowledge
there is an alternative explanation as to whether or not these areas
were occupied at the time the jaguar was listed in 1972 (37 FR 6476,
March 30, 1972). The lack of jaguar sightings at that time, as well as
some expert opinions cited in our July 22, 1997, clarifying rule (62 FR
39147) (for example, Swank and Teer 1989), suggest that jaguars in the
United States had declined to such an extent by that point as to be
effectively eliminated. Therefore, an argument could be made that no
areas in the United States were occupied by the species at the time it
was listed, or that only areas containing undisputed Class I records
from between 1962 and 1982 were occupied. For this reason, we also
analyzed whether or not these areas are essential to the conservation
of the species. Through our analysis, we determine that they are
essential to the conservation of the species for the following reasons:
(1) They have demonstrated recent (since 1996) occupancy by jaguars;
(2) they contain features that comprise jaguar habitat; and (3) they
contribute to the species' persistence in the United States by allowing
the normal demographic function and possible range expansion of the
Northwestern Recovery Unit, which is essential to the conservation of
the species (as discussed in the Jaguar Recovery Planning in Relation
to Critical Habitat section, above). Therefore, whether or not they
were occupied at the time of listing, we are designating those areas as
critical habitat.
(43) Comment: The revised proposed rule is based on highly
inaccurate and notoriously unreliable jaguar records rather than the
Class I records standard that the Service established.
Our response: In determining areas that may be occupied by jaguars,
we used undisputed Class I records from 1962 through September 11,
2013. We understand that some of the jaguar records used in our
proposed rule may be disputed due to the possibility that female scat
was used as a scent lure in some areas. Therefore, we removed all
sightings that may have been influenced by female scat, which we
determined to be from October 3, 2008 (the date of Emil McCain's
request for jaguar scat from the Phoenix Zoo) through March 2, 2009
(the date Macho B was captured and flown to the Phoenix Zoo). See
``Class I Records'' section above and Table 1 above of this final rule
for all of the undisputed Class I jaguar records used to determine
occupancy.
In determining the physical and or biological features essential to
the jaguar in the northwestern most part of its range, we relied on
information compiled and produced by the Jaguar Recovery Team, which we
consider the best available science. Our August 20, 2012 (77 FR 50214),
proposed critical habitat designation was based on a preliminary report
from the Jaguar Recovery Team entitled Digital Mapping in Support of
Recovery Planning for the Northern Jaguar (Sanderson and Fisher 2011,
pp. 1-11), which described a model for mapping jaguar habitat in the
northwestern-most part of the species range. This 2011 report relied on
333 records of mapped jaguar observations across habitat variables to
determine a categorization of the variables and selection of categories
to include in the model.
These 333 records included cultural evidence of jaguars (such as a
jaguar painting in a cave or a place name including the word jaguar),
sightings of live animals or their sign, mortalities (such as hunting
events or jaguars killed after a predation event), and observations of
possible jaguars (such as a cat, spotted cat, or large quadruped (four-
footed animal)). This means that these records included Class I
(observations with physical evidence for verification, such as a skin,
skull, or photo), Class II (observations with detailed information but
no physical evidence, such as a first-hand report from a qualified
individual), and Class III (all other observations, such as second- or
third-hand reports of a jaguar) sightings. We refined this model
further for proposed critical habitat in the United States by analyzing
the same habitat variables, but we used only undisputed Class I jaguar
observations in the United States from 1962 to mid-2012 (which, at that
time, was 130 observations). This resulted in slightly
[[Page 12614]]
different ranges of habitat variables in some cases (specifically for
canopy cover and the Human Influence Index) for proposed critical
habitat than the range of habitat variables described in the 2011
habitat modeling report (Sanderson and Fisher 2011, pp. 1-11).
Since the publication of the proposed rule, the Jaguar Recovery
Team continued to refine the jaguar habitat model. By including jaguar
observations in addition to the 333 used in the preliminary 2011 report
(described in Sanderson and Fisher 2013, pp. 3 and 7), developing a
method to avoid pseudo-replication (many locations of the same animal
in close proximity in time and in space) from camera trap and
radiotelemetry studies (Sanderson and Fisher 2013, p. 3), and applying
criteria and filters to the jaguar observation database to further
refine the habitat variables included in the model (Sanderson and
Fisher 2013, pp. 3-5 and Appendix 2; note that this resulted in
splitting the proposed Northwestern Recovery Unit into northern and
southern portions, each with a different range selected for some
habitat variables (Sanderson and Fisher 2013, pp. 7 and 20)). This
resulted in an updated habitat model, which was included in a final
report we received in March 2013, entitled Jaguar Habitat Modeling and
Database Update (Sanderson and Fisher 2013, entire).
In the updated jaguar habitat model, Sanderson and Fisher (2013,
pp. 3-5 and Appendix 2) utilized all jaguar observations for which the
description of the location was sufficient to place it with certainty
within 10 km (6.2 mi) of its actual location, and for which a date to
the nearest century was available. This resulted in 453 observations
(note that the 452 included in Table 1.3 of Sanderson and Fisher (2013,
p. 13) is incorrect) for inclusion in the updated model including Class
I, II, and III sightings, but removed any sightings recorded as cat,
spotted cat, or large quadruped (four-footed animal), as well as
locations that were described too generally to accurately locate on a
map (e.g., southern Arizona). The reason for selecting these
observations to use in the habitat model was because the Jaguar
Recovery Team came to the consensus this was appropriate after
analyzing these jaguar observations through three different evidence
filters: (1) Physical evidence only (photograph or video, skull, hide,
or carcass measured; the equivalent of a very strict interpretation of
Class I records), (2) physical and sign evidence (similar to the
previous, but also including tracks, jaguar kills, and other physical
evidence; the equivalent of Class I records), and (3) all evidence
types (similar to the previous, but also including first, second, and
third-hand reports of jaguars, cultural artifacts, stories, and
representations of jaguars, and other types of evidence; the equivalent
of Class I, II, and III records; see Table 1.4 of Sanderson and Fisher
(2013, p. 14) for a complete list of evidence types). Using these
filters, Sanderson and Fisher (2013, pp. 3-5 and Appendix 2) analyzed
the frequency that these 453 jaguar observations occurred across the
range of habitat variables used in the model.
Upon viewing this analysis, the Jaguar Recovery Team determined
that the overall pattern of frequencies of these observations relative
to the habitat variables were similar, meaning that regardless of the
type of evidence used (physical evidence only, physical and sign
evidence, or all evidence), jaguar observations in relation to the
habitat variables occurred with the same frequency. The Jaguar Recovery
Team hypothesized that this is because jaguars are habitat generalists,
with jaguar habitat generally defined as cover, prey, and limited human
persecution within the proposed Northwestern Recovery Unit. The Jaguar
Recovery Team, therefore, decided to use all types of evidence, because
that resulted in the largest number of observations (453; note that the
452 included in Table 1.3 of Sanderson and Fisher (2013, p. 13) is
incorrect) for inclusion in the updated model.
To further analyze the frequency of jaguar observations relative to
habitat variables, the Service analyzed a subset of recent, highly
accurate jaguar locations from Mexico and the United States to
determine if filtering the observations in this way would influence the
frequency that these observations occurred across the range of habitat
variables. From the 453 observations used in the updated habitat model
(Sanderson and Fisher 2013, entire), we selected records that met the
following criteria: (1) They were part of a scientific study (and
therefore utilized Global Positioning System (GPS) or radiotelemetry
receivers); (2) they were not disputed due to the possible use of scent
lure; and (3) they were from May 2000 forward (the time that public GPS
receivers became more accurate because the intentional degradation of
public GPS signals implemented for national security reasons was
discontinued; see https://www.gps.gov/systems/gps/modernization/sa/for
more information). Additionally, the same criteria to avoid pseudo-
replication (Sanderson and Fisher 2013, p. 3) were applied to this
subset of data. This resulted in 333 observations, 44 of which are
located in the United States (note that the reason the number of
observations in the United States in this dataset is less than the
number of observations used to determine critical habitat in our
proposed rule is because of the methods the Jaguar Recovery Team
developed to avoid pseudo-replication from camera trap and
radiotelemetry studies; these methods were not applied to the dataset
we used for our August 20, 2012, proposed rule). We also separated
jaguar records from north to south in the same manner that Sanderson
and Fisher (2013, p. 20) did for the tree cover and HII habitat
variables.
The results of our additional analysis indicate that the overall
pattern in frequency of jaguar observations using these highly accurate
locations relative to the habitat variables is similar to the patterns
observed using the entire data set used for the updated habitat model
(Sanderson and Fisher 2013, entire). For example, 95 percent of these
highly accurate locations are found in greater than 1 to 50 percent
tree cover (for all jaguar observations except those in the
southernmost part of the proposed Northwestern Recovery Unit); 97
percent correspond to a HII of less than 20 (for all jaguar
observations except those in the southernmost part of the proposed
Northwestern Recovery Unit); 99 percent are within 10 km (6.2 mi) of
water; 75 percent are in intermediately, moderately, or highly rugged
terrain; and 98 percent are found at less than 2,000 m (6,562 ft) in
elevation. Therefore, for the reasons stated above, we determine that
the Sanderson and Fisher (2013, entire) updated habitat model is not
unreliable because it incorporates jaguar observations for which there
is no physical evidence, and that the information from the Jaguar
Recovery Team is the best available science regarding the habitat
characteristics that are essential to the jaguar in the northwestern-
most part of its range.
In the revised proposed rule and this final rule, we did not
further refine the updated habitat model by using only Class I jaguar
locations specific to the United States like we did in our analysis for
the proposed rule, because we determined that the ranges of habitat
variables selected by the Jaguar Recovery Team in the northern part of
the proposed Northwestern Recovery Unit adequately represent available
habitat for jaguars in the United States. We used the same data layers
and ranges of habitat variables as used in the updated jaguar habitat
model (Sanderson and Fisher 2013, entire) to
[[Page 12615]]
determine the PCEs of jaguar critical habitat in the United States.
However, in two cases we substituted data layers for variables for
which more detailed, higher-resolution data were available for the
United States: (1) For water sources we substituted the United States
Geological Services (USGS) National Hydrography Dataset (NHD)
(available at https://nhd.usgs.gov/data.html) for USGS HydroSHEDS, and
(2) for vegetation communities we substituted Brown and Lowe (1980)
Biotic Communities of the Southwest (available at https://azconservation.org/downloads/biotic_communities_of_the_southwest_gis_data) for World Wildlife Fund Ecoregions (note that the World
Wildlife Fund Ecoregions habitat type representing the Sky Islands
region in the Jaguar Recovery Team updated model was Sierra Madre
Occidental pine-oak forests, for which we substituted the
classifications of Madrean evergreen woodland and semidesert grassland
from Biotic Communities of the Southwest to represent the Sky Islands
region). The other data sources in the updated model include: (1)
MODerate-resolution Imaging Spectroradiometer (MODIS) Tree cover for
canopy cover (continuous field data) (available at https://glcf.umd.edu/data/vcf/); (2) Advanced Spaceborne Thermal Emission and Reflection
Radiometer (ASTER DEM) for ruggedness and elevation (available at
https://wist.echo.nasa.gov); and (3) Human Influence Index (HII) for
human influence (available at https://sedac.ciesin.columbia.edu/wildareas/) (to exclude cities, agricultural and developed rural
areas). Sanderson and Fisher (2013, entire) did not use a data layer
for prey, nor did we. See our response to comment number 20 in Peer
Reviewers Comments. See the Criteria Used to Identify Critical Habitat
section of the final rule for more information. In summary, we used
only Class I undisputed sightings to define the occupied area, but
after the sensitivity analysis described above we determined it was
acceptable to use the habitat analysis based on a larger category of
sightings.
(44) Comment: There is no long-term presence, sustained use, or
reproduction of jaguars in the United States.
Our response: The Act does not require a breeding or reproducing
population of jaguars, long-term presence of jaguars, or sustained use
by jaguars for the purposes of designating critical habitat. See our
response to comment number 11 in the Peer Reviewer Comments above.
(45) Comment: The Service states in the proposed rule that they
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. The area
currently occupied by the jaguar outside the United States is adequate
for the conservation of the jaguar.
Our response: See our response to comment number 1 in Peer
Reviewers Comments above.
(46) Comment: The Service's critical habitat analysis and
designation are scientifically invalid and incomplete in nature.
Without an adequate, quantitative, science-based understanding of all
components of jaguar habitat requirements, critical habitat cannot and
should not be designated. The data are insufficient to understand
jaguar habitat.
Our response: See our response to comment number 16 in Peer Review
Comments above.
(47) Comment: The Service has accurately described habitat, but it
does not mean these areas are essential.
Our response: The Service has designated critical habitat in
compliance with the Act. Section 3(5)(A) states that the Service shall
designate geographic areas occupied by the species at the time it was
listed if they contain physical or biological features, which are
essential to the conservation of the species, and 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. In the proposed rule and this final rule we have
determined that areas in the United States occupied by the species at
the time it was listed contain the physical or biological feature for
jaguar critical habitat and the associated PCEs are present. We
identify connectivity between expansive open spaces in the United
States and Mexico as an essential component of the physical or
biological feature essential for the conservation of the jaguar in the
United States. Providing connectivity from the United States to Mexico
is a key element to maintaining those processes. The ability for
jaguars in the proposed Northwestern Recovery Unit to utilize physical
and biological habitat features in the borderlands region is
ecologically important to the recovery of the species; therefore,
maintaining connectivity to Mexico is essential to the conservation of
the jaguar. Consequently, we have also determined that areas in the
United States outside the geographical area that may be occupied by the
species at the time it is listed are essential to the conservation of
the jaguar by providing connectivity to Mexico (PCE 1) in areas
containing low human influence and impact, and either or both
vegetative cover or rugged terrain. It is our intent that the
designation of critical habitat will protect the functional integrity
of the features essential for jaguar life-history requirements for this
purpose into the future.
(48) Comment: There are no PCEs in Arizona.
Our response: The best available scientific data indicates PCEs are
present in Arizona. To the greatest extent possible, we have based
jaguar critical habitat on information compiled and produced by the
Jaguar Recovery Team. The Jaguar Recovery Team comprises jaguar
experts, large-cat experts, and stakeholders from the United States and
Mexico; therefore, we consider that the work produced by the team is
the best available scientific and commercial data, and that following
the team's recommendations is the best avenue to conservation of the
species and by extension designating critical habitat. We have
determined that the essential physical or biological feature for jaguar
critical habitat and the associated PCEs are present in the United
States, and that these areas contribute to the species' persistence
and, therefore, overall conservation by providing areas to support some
individuals during dispersal movements, by providing small patches of
habitat (perhaps in some cases with a few resident jaguars), and as
areas for cyclic expansion and contraction of the nearest core area and
breeding population in the Northwestern Recovery Unit.
(49) Comment: The Arizona Game and Fish Department's Jaguar
Conservation Assessment is the best science.
Our response: The Arizona Game and Fish Department's Jaguar
Conservation Assessment provides valuable information regarding the
status of the jaguar in Arizona, New Mexico, and northern Mexico. The
Service considered and utilized this information in this final rule.
See Johnson et al. (2011) as referenced in the final rule.
(50) Comment: The Service did not use the best available science
because we utilized McCain and Childs (2008), in which female scat was
used as scent lure.
Our response: The Service used the best available science to
determine critical habitat for the jaguar. We understand that some of
the jaguar records used in our proposed rule may be disputed due to the
possibility that female scat was used as a scent lure in some areas.
Therefore, we removed all sightings that may have been influenced
[[Page 12616]]
by female scat, which we determined to be from October 3, 2008 (the
date of Emil McCain's request for jaguar scat from the Phoenix Zoo)
through March 2, 2009 (the date Macho B was captured and flown to the
Phoenix Zoo). See our response to comment number 43 in Comments from
States above.
(51) Comment: The designation of critical habitat is because the
Service is trying to avoid further litigation.
Our response: See our response to comment numbers 1 and 2 in the
Peer Reviewer Comments above.
(52) Comment: The Service should not designate critical habitat
because a PVA demonstrates that establishing a population of jaguars in
the United States would destabilize populations in Sonora.
Our response: We disagree that designating critical habitat will
destabilize the nearest breeding population in Mexico, and we disagree
that habitat in the United States is a population sink. The purpose of
designating critical habitat in the United States is not to create a
self-sustaining, breeding population north of the U.S.-Mexico border,
but to provide small patches of habitat (perhaps in some cases with a
few resident jaguars) to allow for the cyclical expansion and
contraction of the nearest core area in Mexico. See our response to
comment number 18 in the Peer Reviewer Comments above.
(53) Comment: Given the heavy reliance that the Service places on
the results of PVA models such as those presented by Miller (2013) to
support the designation of critical habitat, we request that the data
and complete modeling information be provided to the public such that
the assumptions and specifics of these analyses can be properly and
transparently analyzed.
Our response: The Service did not use the PVA to designate critical
habitat for the jaguar. The Service originally planned to use the PVA
in designating critical habitat for the jaguar; however, we realized
that the habitat models (Sanderson and Fisher 2011, pp. 1-11; 2013,
entire) created for the PHVA and PVA processes were the components that
could best inform critical habitat for the jaguar in the United States.
During the development of the Recovery Outline and as a part of the
recovery planning process, the Jaguar Recovery Team worked with the
Wildlife Conservation Society to create a jaguar habitat model
(Sanderson and Fisher 2011, pp. 1-11; 2013, entire), and the
Conservation Breeding Specialist Group of the Species Survival
Commission/International Union for Conservation of Nature to conduct a
PVA and PHVA for the jaguar. We anticipated that these analyses would
assist us in determining those recovery actions that would be most
effective for achieving a viable jaguar population for the Northwestern
Recovery Unit (not the United States), as well as provide information
relevant to determining critical habitat for the jaguar. In both
analyses, the focus was on the habitat and jaguar population in the
Northwestern Recovery Unit. However, the PHVA and PVA themselves, while
informative for recovery-planning purposes, did not contribute to the
determination of critical habitat.
Critical habitat for the jaguar focuses on the physical or
biological features available in the United States that are essential
to the conservation of the species; it is not based on an overall
number of jaguars, nor is it required to be, whereas the PVA is used to
determine a minimum viable population. The purpose of critical habitat
for the jaguar is to provide areas to support some individuals during
dispersal movements, by providing small patches of habitat (perhaps in
some cases with a few resident jaguars), and as areas for cyclic
expansion and contraction of the nearest core area and breeding
population in the Northwestern Recovery Unit, which contributes to the
overall recovery of the jaguar. Therefore, the Service relied on
habitat features as described in the preliminary report entitled
Digital Mapping in Support of Recovery Planning for the Northern Jaguar
(Sanderson and Fisher 2011, pp. 1-11) for our August 20, 2012, proposed
rule (77 FR 50214), and a later report entitled Jaguar Habitat Modeling
and Database Update (Sanderson and Fisher 2013, entire) for our July 1,
2013, revised proposed rule (78 FR 39237) and this final rule. Please
see the Criteria Used to Identify Critical Habitat section of the final
rule above and our response to comment number 18 in the Peer Reviewer
Comments above for further information about how we incorporated these
reports into our determination.
(54) Comment: The Service should not use the PVA (Miller 2013)
because it relies on dubious data produced by McCain and Childs and
other undisclosed data, the data has undergone 13 iterations of
analysis, it is fatally flawed by substitution of untested hypotheses
for data, the authors never cited any study of the prey base of the
jaguar, it does not provide the necessary details to replicate the
results of Miller (2013), it contradicts the treatment of parameter
assumptions by the Service, it lacks sensitivity analyses to inform the
consequences of model assumptions, and natural and human-caused
catastrophes are not included. Miller (2013) inappropriately interprets
the results of its reported PVA models, and the Service has implicitly
accepted the assumptions of Miller (2013) that dispersal costs and
drought have no effect on jaguar populations.
Our response: See our response to comment number 53 in Comments
from States above.
(55) Comment: Jaguar habitat cannot be determined without a full
understanding of the jaguar's prey requirements and the availability of
prey species within a habitat location to meet those requirements.
Our response: See our response to comment number 20 in the Peer
Reviewer Comments above.
(56) Comment: The Service did not use data regarding the
distribution of native prey in designating critical habitat. The
Service has not presented and has refused to consider any relevant
scientific data regarding the prey component of habitat for the jaguar
within the proposed critical habitat boundaries.
Our response: We have relied on the best available scientific
information that is readily available from the Arizona Game and Fish
Department (Hunt Arizona 2012 Edition, available at: https://www.azgfd.gov/regs/HuntArizona2012.pdf) and the New Mexico Department
of Game and Fish (Harvest Information, available at: https://www.wildlife.state.nm.us/recreation/hunting/). The Service did not
receive additional data on prey abundance sufficient to include in
critical habitat modeling efforts during any of the three comment
periods. See our response to comment number 20 in the Peer Reviewer
Comments above.
(57) Comment: Without an adequate, quantitative, science-based
understanding of year-round water availability, critical habitat should
not be designated.
Our response: We have determined that waters within 20 km (12.4 mi)
of each other are available within the designated critical habitat. We
consider the best available information for water sources in the United
States as that produced by the USGS through their National Hydrography
Dataset (NHD) (see our response to comment number 43 for a Web site
link to the GIS data layer). For water sources, Sanderson and Fisher
(2013, p. 6) utilized USGS HydroSHEDS in their updated model because
this data layer covers both the United States and Mexico. In our
modeling analysis, we substituted the USGS NHD because this data layer
[[Page 12617]]
provides higher-resolution data within the United States. The USGS NHD
data layer indicates that there are no areas within critical habitat
lacking waters within 20 km (12.4 mi) of each other. We understand that
the availability of water across the landscape during the year is
variable. Regardless, according to the best available scientific data,
it appears that there is sufficient water available for jaguars within
the final critical habitat designation.
(58) Comment: The Service fails to account for ecological changes
as the result of climate change or climate-based factors that would
eliminate proposed habitat. If the predicted climate change for the
Southwest is hotter and drier, then the designated critical habitat
would not have the capability to support jaguars; therefore, the
Service should not designate critical habitat.
Our response: The Service recognizes that some models predict
dramatic changes in Southwestern vegetation communities as a result of
climate change (Weiss and Overpeck 2005, p. 2074; Archer and Predick
2008, p. 24) and the projections presented for the Southwest predict
warmer, drier, and more drought-like conditions (Hoerling and Eischeid
2007, p. 19; Seager et al. 2007, p. 1181). Further, the Service
acknowledges in the proposed rule and this final rule that climate
change has the potential to adversely affect the jaguar within the next
50 to 100 years (Jaguar Recovery Team 2012, p. 32). The Service
recognizes in the proposed rule and this final rule that the impact of
future drought, which may be long-term and severe (Seager et al. 2007,
pp. 1183-1184; Archer and Predick 2008, entire), may affect jaguar
habitat in the U.S.-Mexico borderlands area, but the information
currently available on the effects of global climate change and
increasing temperatures does not make sufficiently precise estimates of
the location and magnitude of the effects. We do not know whether the
changes that have already occurred have affected jaguar populations or
distribution, nor can we predict how the species will adapt to or be
affected by the type and degree of climate changes forecast.
Consequently, because the specific impacts of climate change on jaguar
habitats remains uncertain at this time, we did not recommend any areas
be designated as critical habitat or not be designated as critical
habitat specifically to account for the negative effects of climate
change.
(59) Comment: The Service should not consider climate change models
because they cannot be downscaled to the level of the jaguar critical
habitat.
Our response: The Service recognizes that the current climate
change models are not downscaled to a local level. Projections of
climate change globally and for broad regions through the 21st century
are based on the results of modeling efforts using state-of-the-art
Atmosphere-Ocean General Circulation Models and various greenhouse gas
emissions scenarios (Meehl et al. 2007, p. 753; Randall et al. 2007,
pp. 596-599). As is the case with all models, uncertainty is associated
with the projections due to assumptions used and other features of the
models. However, despite differences in assumptions and other
parameters used in climate change models, the overall surface air
temperature trajectory is one of increased warming in comparison to
current conditions (Meehl et al. 2007, p. 762; Prinn et al. 2011, p.
527). Among the IPCC's projections for the 21st century are the
following: (1) Warmer and more frequent hot days and nights over most
of the earth's land areas are virtually certain; (2) increased
frequency of warm spells and heat waves over most land areas is very
likely, and the frequency of heavy precipitation events will increase
over most areas; and (3) increases will likely occur in the incidence
of extreme high sea level (excludes tsunamis), intense tropical cyclone
activity, and the area affected by droughts in various regions of the
world (IPCC 2007b, p. 8).
Climate simulations of the Palmer Drought Severity Index (a
calculation of the cumulative effects of precipitation and temperature
on surface moisture balance) for the Southwest for the periods of 2006
to 2030 and 2035 to 2060 show an increase in drought severity with
surface warming. Additionally, drought still increases even during
wetter simulations because of the effect of heat-related moisture loss
through evaporation and evapotranspiration (Hoerling and Eischeid 2007,
p. 19). Annual mean precipitation is likely to decrease in the
Southwest, as is the length of snow season and snow depth (IPCC 2007b,
p. 887). Most models project a widespread decrease in snow depth in the
Rocky Mountains and earlier snowmelt (IPCC 2007b, p. 891). The Service
will continue to follow and assess the science behind climate change
and update our summaries as new information is published.
(60) Comment: There are no areas requiring special management.
Our response: Section 3(5)(A)(i) of the Act states that the
physical and biological features essential to the conservation of the
species ``may'' require special management considerations or
protections. The Act does not state that those features must require
such management or protection. Nonetheless, special management
considerations of the physical and biological feature essential to the
conservation of the jaguar may be needed to alleviate the effects on
jaguar habitat of road, power line, and pipeline projects; human
developments; mining operations; and ground-based military activities.
Future projects should avoid (to the maximum extent possible) areas
identified as meeting the definition of critical habitat for jaguars,
and if unavoidable, should be constructed or carried out to minimize
habitat effects.
(61) Comment: The designation of jaguar critical habitat will limit
game management activities and recreational activities, such as
hunting, and litigation will be used to impact game activities.
Our response: 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.
In our economic analysis we considered all of the potential
additional conservation efforts or restrictions that could occur as the
result of the addition of critical habitat. We found the incremental
effects of the critical habitat designation to be relatively minor, as
additional measures beyond those already in place are unlikely. We
found that the designation of critical habitat for the jaguar would not
have direct impacts on the environment as designation is not expected
to impose land use restrictions or prohibit land use activities.
Further, the species is already present in the United States. We
are not proposing to reintroduce or supplement the existing jaguars in
the United States. The designation of critical habitat does not
translate into an increase of jaguars in the United States. As
discussed in the proposed rule and this final rule, the purpose of
designating critical habitat in the United States is to provide areas
for transient jaguars (with possibly a few residents) to support the
nearest breeding area to the south in Mexico, allowing this population
to expand and contract, and, ultimately, recover. It is our intent that
the designation of critical habitat will protect the functional
integrity of the features essential for jaguar life-history
requirements for this purpose into the future.
[[Page 12618]]
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. Any of these or other actions on Federal lands that
may affect the jaguar or its designated critical habitat would be
required to consult with the Service to ensure those actions are not
adversely modifying its critical habitat. However, consultation is
already required in occupied areas because the jaguar is listed as an
endangered species. All projects with a Federal nexus proposed within
jaguar critical habitat in the United States will be evaluated on a
case-by-case basis with respect to section 7 of the Act.
(62) Comment: The Service should provide maps delineating the PCEs.
Our response: 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.regulations.gov at Docket No. FWS-R2-ES-2012-0042 and at the
Arizona Ecological Services Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). Enhanced color maps and site-specific boundaries
of the critical habitat in both GIS and Google Earth format can be
viewed and downloaded from https://www.fws.gov/southwest/es/arizona.
(63) Comment: The Service did not provide the data or sources used
in the habitat model.
Our response: As stated in the proposed rule and this final rule
below are the PCEs and data sources. PCE 1: Provide connectivity to
Mexico--If an occupied area was not connected to Mexico, we selected
and added areas containing low human influence and impact (PCE 7) and
either or both vegetative cover (PCE 4) or rugged terrain (PCE 5) to
connect these areas directly to Mexico or to another occupied area
providing connectivity to Mexico. Below are the data sources and Web
site links to all the GIS data layers that we used in evaluating PCEs
in this final rule.
PCE 2: Contain adequate levels of native prey species, including
deer and javelina, as well as medium-sized prey such as coatis, skunks,
raccoons, or jackrabbits--Comprehensive, consistent data regarding prey
distribution across Arizona and New Mexico is lacking. Therefore, we
relied on the best information that is readily available from the
Arizona Game and Fish Department (Hunt Arizona 2012 Edition, available
at: https://www.azgfd.gov/regs/HuntArizona2012.pdf) and the New Mexico
Department of Game and Fish (Harvest Information, available at: https://www.wildlife.state.nm.us/recreation/hunting/). Using this information,
we determined that white-tailed deer and javelina (the preferred prey
of the jaguar in the northwesternmost part of its range) have been
present in each critical habitat unit (described in Final Critical
Habitat Designation, above) for at least 50 years in Arizona, and have
been successfully hunted in each hunt unit overlapping jaguar critical
habitat for the same period of time (Game Management Units 30A, 34A,
34B, 35A, 35B, 36A, 36B, and 36C). Historical harvest information from
New Mexico is not as readily available; however, based on the most
recent harvest information, white-tailed deer and javelina are
available in Unit 5 of jaguar critical habitat (Game Management Unit
27), and are likely available in Unit 6 (both described in Final
Critical Habitat Designation, above) of jaguar critical habitat (Game
Management Unit 26; we can determine that javelina have been
successfully harvested in this Game Management Unit, but this
particular unit lumps all deer together, so we are unable to
distinguish hunt success between mule deer and white-tailed deer).
Therefore, while we were unable to map prey distribution within Arizona
and New Mexico, we believe adequate levels of prey are available, and
have been available for at least 50 years in Arizona.
PCE 3: Include surface water sources available within 20 km (12.4
mi) of each other--For water sources we substituted the USGS National
Hydrography Dataset (NHD) (available at https://nhd.usgs.gov/data.html)
for the HydroSHEDS data layer used in the jaguar habitat model
developed by the Jaguar Recovery Team (Sanderson and Fisher 2013, Table
1, p. 6).
PCE 4: Contain from greater than 1 to 50 percent canopy cover
within Madrean evergreen woodland, generally recognized by a mixture of
oak, juniper, and pine trees on the landscape, or semidesert grassland
vegetation communities, usually characterized by Pleuraphis mutica
(tobosagrass) or Bouteloua eriopoda (black grama) along with other
grasses--For canopy cover we used the same data layer as used in the
jaguar habitat model developed by the Jaguar Recovery Team (Sanderson
and Fisher 2013, Table 1, p. 6), called MODerate-resolution Imaging
Spectroradiometer (MODIS) Tree cover (continuous field data; available
at https://glcf.umd.edu/data/vcf/). For vegetation communities we
substituted Brown and Lowe (1980) Biotic Communities of the Southwest
(available at https://azconservation.org/downloads/biotic_communities_of_the_southwest_gis_data) for the World Wildlife Fund Ecoregions
data layer used in the jaguar habitat model developed by the Jaguar
Recovery Team (Sanderson and Fisher 2013, Table 1, p. 6).
PCE 5: Are characterized by intermediately, moderately, or highly
rugged terrain--For terrain ruggedness we used the same data layer as
used in the jaguar habitat model developed by the Jaguar Recovery Team
(Sanderson and Fisher 2013, Table 1, p. 6), called Advanced Spaceborne
Thermal Emission and Reflection Radiometer Digital Elevation Model
(ASTER DEM) (available at https://lpdaac.usgs.gov/products/) and
followed the methodology described in Hatten et al. (2005, p. 1026).
PCE 6: Are below 2,000 m (6,562 feet) in elevation--For elevation
we used the Advanced Spaceborne Thermal Emission and Reflection
Radiometer Digital Elevation Model (ASTER DEM) data layer (available at
https://lpdaac.usgs.gov/products/), which is a standard digital layer
used to describe elevation.
PCE 7: Are characterized by minimal to no human population density,
no major roads, or no stable nighttime lighting over any 1 km\2\ (0.4
mi\2\) area--For human influence (to exclude cities, agricultural, and
developed rural areas) we used the same data layer as used in the
jaguar habitat model developed by the Jaguar Recovery Team (Sanderson
and Fisher 2013, Table 1, p. 6), called the HII (available at https://sedac.ciesin.columbia.edu/wildareas/).
(64) Comment: Arizona and New Mexico should be withdrawn or
excluded from critical habitat because the distribution of the jaguar
within the United States represents less than 1 percent of the total
occupied range and the jaguar rarely (if ever) contained a breeding
population even in historical times.
Our response: The Service is not withdrawing Arizona or New Mexico
from critical habitat because the Service is required under the Act to
designate critical habitat to the maximum extent prudent and
determinable. See our response to comment 1 in the Peer Reviewer
Comments above.
Further, the Service is not excluding Arizona or New Mexico from
critical habitat because 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
[[Page 12619]]
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. Areas
that were considered for exclusion were locations where the benefits of
exclusion may outweigh the benefits of inclusion as critical habitat
(see Exclusion section above). The Secretary may exclude an area from
critical habitat if she determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat, unless she 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. When
identifying the benefits of inclusion for an area, we consider the
additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat. In the case of the jaguar, the benefits
of critical habitat include public awareness of jaguar presence and the
importance of habitat protection, and in cases where a Federal nexus
exists, increased habitat protection for the jaguar due to the
protection from adverse modification or destruction of critical
habitat. See the Application of Section 4(b)(2) of the Act section of
this final rule.
(65) Comment: The area on the edge of Unit 3, to the north of the
Santa Rita Mountains near Houghton Road, should be excluded from
critical habitat. This area is near an existing residential development
and planned for development.
Our response: Designation of critical habitat has been done in
accordance with statutory requirements. The area on the edge of Unit 3
includes all the PCEs identified as the physical or biological features
that provide for the jaguar's life-history processes and are essential
to the conservation of the species, including being characterized by
minimal to no human population density, no major roads, or no stable
nighttime lighting over any 1-km\2\ (0.4-mi\2\) area. Development
actions funded, authorized, or carried out by a Federal agency must
enter into consultation with the Service if the Federal action may
affect critical habitat. Please see our response to comment number 64
in the Comments from States above for additional information on
exclusions under the Act. In the case of the jaguar where a Federal
nexus exists, the benefits of critical habitat include increased
habitat protection for the jaguar due to the protection from adverse
modification or destruction of critical habitat. See the Application of
Section 4(b)(2) of the Act for a full discussion of the areas we have
determined are appropriate to exclude from the final designation of
critical habitat.
(66) Comment: Federal lands should be excluded from critical
habitat designation.
Our response: The Service is not excluding Federal lands from
critical habitat designation. Please see our responses to comment
numbers 64 and 65 in the Comments from States above for additional
information on exclusions under the Act. There is additional benefit to
including the federally owned lands in the designation of critical
habitat because of the Federal agencies' obligation to consult under
section 7 of the Act on activities that may adversely modify critical
habitat. Consequently, we have not determined that the benefits of
excluding these areas outweigh the benefits of including these areas.
Please see the Application of Section 4(b)(2) of the Act section for a
full discussion of the areas we have determined are appropriate to
exclude from the final designation of critical habitat.
(67) Comment: The benefits of not designating critical habitat
outweigh the benefits of designating critical habitat because the
designation of critical habitat will result in denial of access to
lands for jaguar conservation and research, fewer observations
reported, and an increase in illegal activities undermining recovery of
threatened and endangered species.
Our response: 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.
Designated 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. Any of these or other actions on
Federal lands that may affect the jaguar or its designated critical
habitat would be required to consult with the Service to ensure those
actions are not adversely modifying its critical habitat. However,
consultation is already required because the jaguar is listed as
endangered. All projects with a Federal nexus proposed within jaguar
critical habitat in the United States will be evaluated on a case-by-
case basis with respect to section 7 of the Act. The designation of
critical habitat does not prohibit humans and legal activities. Legal
activities that have a Federal nexus (in that they occur on Federal
lands, require a Federal permit, or receive Federal funds) will be
evaluated on a case-by-case basis with respect to section 7
(consultation with the Service) of the Act to ensure they do not
destroy or adversely modify designated critical habitat.
We have been consulting with Federal agencies on their effects to
the jaguar on Federal lands, or on projects for which a Federal nexus
exists, since the species was listed in 1972. Since jaguars were
listed, we have had no projects on privately owned lands that had a
Federal nexus to trigger formal consultation under section 7 of the
Act. Therefore, the Service does not anticipate a decrease in
authorized access to lands for conservation and research or a decrease
in observations reported. Further, illegal activity is not expected to
increase with the designation of critical habitat, because designated
critical habitat does not prevent legal activities from occurring
within its boundaries, including law enforcement related to illegal
activities (border control issues).
(68) Comment: The analysis of significance of the critical habitat
designation within the draft environmental assessment is inadequate,
and the Service should prepare a full environmental impact statement
(EIS). We also received several similar comments from the members of
the public.
Our response: We analyzed the potential impacts of critical habitat
designation on the following resources and resource management types:
Land use and management; fish, wildlife, and plants (including
endangered and threatened species); fire management; water resources
(including water management projects and groundwater pumping);
livestock grazing; construction and development (including roads,
bridges, dams, infrastructure, residential); tribal trust resources;
soils; recreation and hunting; socioeconomics; environmental justice;
[[Page 12620]]
mining and minerals extraction; and National security. We found that
the designation of critical habitat for the jaguar would not have
direct impacts on the environment as designation is not expected to
impose land use restrictions or prohibit land use activities. Our
environmental assessment found that the impacts of the proposed
critical habitat designation would be minor and not rise to a
significant level. An EIS is required only if we find that the proposed
action is expected to have a significant impact on the human
environment. The completed studies, evaluations, and public outreach
conducted by the Service have not identified impacts resulting from the
proposed designation of critical habitat that are clearly significant.
Based on our analysis and comments received from the public, we
prepared a final EA and made a Finding of No Significant Impact
(FONSI), negating the need for preparation of an EIS. We have
determined our environmental assessment is consistent with the spirit
and intent of NEPA. The final environmental assessment, FONSI, and
final economic analysis provide our rationale for determining that
critical habitat designation would not have a significant effect on the
human environment. Those documents are available for public review (see
ADDRESSES section).
(69) Comment: A complete economic analysis should accompany any
proposed Federal action, which would allow stakeholders the opportunity
to review, analyze, and comment on the economic consequences of this
critical habitat designation.
Our response: The Service published our proposed rule to designate
critical habitat for the jaguar August 20, 2012. At that time our
current regulations at 50 CFR 424.19 stated: ``The Secretary shall
identify any significant activities that would either affect an area
considered for designation as critical habitat or be likely to be
affected by the designation, and shall, after proposing designation of
such an area, consider the probable economic and other impacts of the
designation upon proposed or ongoing activities.'' The Service
interprets `after proposing' to mean after publication of the proposed
critical habitat rule. The President's Feburary 28, 2012, memorandum
directed the Service to take prompt steps to revise our regulations to
provide that the economic analysis be completed and made available for
public comment at the time of publication of a proposed rule to
designate critical habitat. The Service finalized revisions to these
regulations on October 30, 2013, which was after we had published the
proposed rule to designate critical habitat for the jaguar.
Consequently, when we published the jaguar critical habitat rule, we
followed the regulations that were current at the time.
(70) Comment: The draft economic analysis does not consider
economic impacts resulting from employment-related uses of Federal
land, such as mining and cattle grazing.
Our response: The draft economic analysis addresses impacts to
mining operations in Chapter 5 and to livestock grazing in Chapter 3
(grazing on Federal lands) and Chapter 9 (grazing on State and private
lands). We assume that economic activities occurring on Federal lands
will have a Federal nexus for section 7 consultation through the
Federal land manager. For activities such as livestock grazing that
occur on State or private lands, we consider the potential for projects
to involve Federal permits or funding, such as funding from NRCS. In
these cases, we forecast section 7 consultations. We also consider the
potential for indirect effects, such as the withdrawal of NRCS
applications resulting from the stigma of critical habitat designation.
(71) Comment: The designation of critical habitat could have
substantial economic impacts on local economies and employment by
threatening Federal approval of the Rosemont Mine.
Our response: In October 2013, the Service completed a biological
opinion and conference opinion with the U.S. Forest Service for the
Rosemont Mine. The biological opinion concluded that the Rosemont Mine
would not constitute jeopardy to the jaguar. A conference opinion was
also completed to address the impacts of the Rosemont Mine to the then-
proposed critical habitat designation for jaguar, which concluded that
the mining operation is not likely to destroy or adversely modify
jaguar critical habitat.
The final economic analysis has been revised based on the
biological and conference opinion. The Rosemont Mine is located in a
unit of critical habitat that is occupied by the jaguar. Since the
jaguar is currently a listed species, conservation efforts are already
undertaken to avoid jeopardy to the species in this area and,
therefore, the economic impacts are predominantly captured in the
baseline. Through our evaluation of impacts of the critical habitat
designation, we determined that most of the conservation efforts are
not a result of the critical habitat designation itself, but rather a
result of the jaguar being a listed species, and, therefore,
incremental impacts of the critical habitat designation are largely
limited to transactional costs. As a result, the incremental impact,
economic or from other relevant factors, of the designation on the mine
is expected to be minimal.
Section 4(b)(b)(2) of the Act states that the Secretary may exclude
a specific area from critical habitat if the benefits of excluding the
area outweigh the conservation benefits of including it, providing the
exclusion does not result in the extinction of the species. In the case
of the Rosemont Mine, we have not found any disproportionate impacts,
economic or other, on the Rosemont Mine due to the critical habitat
designation because the area is occupied, a section 7 consultation was
just completed providing approval for the mine project, and
conservation measures are primarily captured in the baseline.
Therefore, the Secretary did not find it to be reasonable or
appropriate for the Service to enter into the discretionary exclusion
analysis about whether to exclude the mine from the final designation.
(72) Comment: The designation could adversely affect operations at
Fort Huachuca. Fort Huachuca is important to the local economy, it
contributes approximately $2.4 billion annually to the state economy,
and it is the primary employer in the area.
Our response: Fort Huachuca's 2013 INRMP includes benefits for
jaguars and their habitat that were not included in their previous
INRMP. Based on our review of Fort Huachuca's 2013 INRMP, and in
accordance with section 4(a)(3)(B)(i) of the Act, we have determined
that the portion of Unit 3 and Subunit 4c within this installation,
identified as meeting the definition of critical habitat, is subject to
the INRMP, and that conservation efforts identified in this INRMP will
provide a benefit to the jaguar. Therefore, lands within this
installation are exempt from critical habitat designation under section
4(a)(3)(B) of the Act. Further, as described in section 8.1 of the
draft economic analysis, the Department of Defense (DOD) has already
incorporated the species into its management planning. As a result, the
Service and DOD do not anticipate that jaguar critical habitat
designation will change the outcome of future section 7 consultations
associated with operations at Fort Huachuca. Furthermore, because
conservation management for the jaguar is typically passive in nature
(i.e., no specific changes to operations at Fort Huachuca are
anticipated to accommodate jaguar conservation), the draft economic
analysis does not forecast any restrictions on Fort actions
[[Page 12621]]
that would result in costs of conservation efforts for the jaguar, even
absent critical habitat designation.
(73) Comment: The draft economic analysis underestimates impacts to
livestock grazing. Costs that a rancher will incur for a single
consultation could exceed $20,000 to $25,000, and could include such
expenses as hiring consultants, attending consultations, reviewing
biological opinions, participating in the NEPA process, filing appeals
of other Federal agency findings if necessary, modifying ranching
operations, modifying water use, and implementing jaguar conservation
measures.
Our response: While the commenters are correct that consultation
efforts have the potential to result, in some cases, in significant
costs, the economic analysis does not anticipate that many new
consultations would occur as a result of critical habitat alone; that
is, most consultations on jaguar are anticipated to occur regardless of
critical habitat designation. As a result, the incremental costs of
considering critical habitat in a jaguar consultation are low because
consultation is already occurring to address impacts to the species.
Similarly, conservation efforts for jaguar are not anticipated to
exceed those that already would have been requested under the baseline
(for the species). As such, incremental costs associated with
undertaking these measures are not included in the economic analysis.
(74) Comment: The designation of jaguar critical habitat may result
in increased livestock predation. These impacts are not evaluated in
the draft economic analysis.
Our response: The Service is aware of one jaguar depredation event
in the United States since 1961, which occurred in the Altar Valley
area in 2007 (McCain and Childs 2008, pp. 4-5). The Service recognizes
that cattle depredation may occur. However, the jaguar is already
present in the United States and protected under the Act as a listed
species. The designation of critical habitat in the United States will
not change the possibility of cattle depredation due to jaguars. The
Service is not proposing to reintroduce or supplement jaguar
populations in the United States. Therefore, we do not anticipate that
designating critical habitat for the jaguar will result in economic
impacts through livestock depredation. We are aware, however, of the
concern that cattle depredations may occur in the future, and we are
working with the Jaguar Recovery Team to develop strategies to avoid
these types of conflicts.
(75) Comment: The draft economic analysis underestimates impacts
because it does not consider water use and water allocation issues. The
designation will create water use conflicts, resulting in negative
impacts to livestock producers. The designation could result in
substantial economic impacts by infringing on existing water rights to
provide water for jaguar conservation.
Our response: As described in the Service's incremental effects
memorandum, provided as Appendix C to the draft economic analysis,
possible project modifications to avoid jeopardy to the species and
adverse modification or destruction of critical habitat include: using
technology-based surveillance rather than fencing where possible;
creating permeable highways by including wildlife crossings appropriate
to jaguars in the project design; re-vegetating and restoring areas of
large-scale habitat removal; modifying or eliminating the presence of
stable nighttime lighting; reducing the footprint of large facilities
to the maximum extent practicable; minimizing the amount or extent of
human presence, vehicles, or traffic in a given area; providing
conservation measures to restore, enhance, and protect habitat within
critical habitat units; offsetting permanent habitat loss,
modification, or fragmentation resulting from agency actions with
habitat that is permanently protected, including funding to ensure the
habitat is managed permanently for the protection of the species; and
providing resources to assess the effects of the action on jaguar
habitat connectivity and function. These conservation measures are
addressed as relevant for projects forecast in the draft economic
analysis. Based on these possible project modifications, the draft
economic analysis does not expect that jaguar conservation will require
changes to water allocation.
Comments From Federal Agencies
(76) Comment: There is no habitat in the United States that is
critical to the recovery of the jaguar or its survival as a species.
Our response: See our response to comment number 1 in the Peer
Reviewer Comments above.
(77) Comment: Jaguar critical habitat in the United States is not
essential because jaguars have persisted in the Northern Recovery Unit
for the last 50 years with no evidence of breeding in the United States
during that time.
Our response: See our response to comment number 4 in the Peer
Reviewer Comments above.
(78) Comment: Areas in the United States will function primarily to
support dispersing or transient jaguars, although breeding could have
occurred in the past.
Our response: See our response to comment number 11 in the Peer
Reviewer Comments above.
(79) Comment: Designation of critical habitat is not due to new
data but due to litigation.
Our response: See our response to comment number 2 in the Peer
Reviewer Comments above.
(80) Comment: Fort Huachuca should be exempted from critical
habitat designation based on the Fort's Integrated Natural Resources
Management Plan (INRMP) that was prepared under section 101 of the
Sikes Act (16 U.S.C. 670a) and which currently provides a benefit to
the jaguar.
Our response: The Service has exempted Fort Huachuca from critical
habitat designation based on their INRMP. See the Exemptions section of
this final rule for further information.
(81) Comment: The Chiricahua and Dos Cabezas Mountains are
essential and therefore should be included in the designation.
Our response: The critical habitat designation includes those areas
in the United States that meet the definition of critical habitat as
defined in the Act. Because habitat in the United States is at the edge
of the species' northern range, and is marginal compared to known
habitat throughout the range, we have determined that all of the
primary constituent elements discussed must be present in each specific
area to constitute critical jaguar habitat in the United States,
including connectivity to Mexico (but that connectivity may be provided
either through a direct connection to the border or by other areas
essential for the conservation of the species; see Areas Essential for
the Conservation of Jaguars, above). The Chiricahua and Dos Cabezas
Mountains either were not occupied at the time of listing or do not
contain the PBF and PCEs the Service has determined are needed for it
to function for jaguars.
(82) Comment: Valley bottoms should be included in the critical
habitat designation because it is clear that jaguars traverse the
valley bottoms to reach more suitable habitat. Further, these areas
potentially contain necessary water sources.
Our response: We acknowledge that jaguars will use valley bottoms
(for example, McCain and Childs 2008, p. 7), and other areas of habitat
connectivity to move between areas of higher quality habitat found in
isolated mountain
[[Page 12622]]
ranges in the United States and that water sources within valleys may
be used by jaguars. However, as described in the proposed rule and this
final rule, there is only one occurrence record of a jaguar in a valley
between mountain ranges. Therefore, the best available scientific and
commercial information does not allow us to determine which particular
area within the valleys may be essential, and all of the valley habitat
is not essential to the conservation of the species. See Connectivity
between expansive open spaces within the United States, above, in this
final rule. Also, see our response to comment number 8 in the Peer
Reviewer Comments above.
(83) Comment: The listing time period used by the Service to
determine occupancy is not consistent with the Act.
Our response: See our response to comment number 42 in Comments
from the States above.
(84) Comment: There will never be a breeding population in the
United States, thus there is no need for critical habitat in the United
States.
Our response: See our response to comment number 11 in Peer
Reviewer Comments above.
(85) Comment: Jaguar prey species are in decline and will not
support jaguars.
Our response: See our response to comment number 20 in Peer
Reviewer Comments above.
(86) Comment: The Service neglects to account for the fact that the
DHS can waive all laws to expedite construction of a border fence and
to remove any obstructions to the detection of illegal aliens, 1,126 km
(700 mi) of barrier fence is required to be built along the U.S.-Mexico
border, lighting has been added along the border that would impact
jaguar critical habitat, and a constant flow of human traffic occurs
through jaguar critical habitat. This is not consistent with the HII
PCE. Additionally, the Service only considered stationary human
population and did not account for transient humans crossing the
border.
Our response: We understand that laws related to the expeditious
construction of border infrastructure in areas of high illegal entry
may be waived by the Secretary of DHS, and have discussed this in the
Special Management Considerations or Protections section of this final
rule. As also noted in this final rule, there are no known plans to
construct additional security fences in the designated critical
habitat, although should future national security issues require
additional measures, the Secretary of DHS may invoke the waiver, and
special management considerations would continue to occur on a
voluntary basis on activities covered by a waiver. There are other
forms of border infrastructure, however, that do not fall under this
waiver (construction of towers, for example); therefore, special
management considerations apply to these projects, and we consult with
DHS to minimize the impacts to listed species and their critical
habitat.
We also understand that human activity (both legal and illegal)
occurs along the U.S.-Mexico border, including within critical habitat.
At times this activity can be intense, involving many people, vehicles,
lighting, and equipment. However, this activity is also transitory, in
that activity hot spots will develop in one area, then move to another
area for a variety of reasons (for example, increased law enforcement
can shift illegal border activity to another area). Therefore, because
of the variable nature and unknown location of this activity, we are
not able to predict its effect on jaguar critical habitat.
Additionally, because the impacts of these activities shift around the
landscape and are not permanent in nature, they do not necessarily
entirely preclude jaguars from using an area, once the activity
diminishes and moves to another location. Therefore, we continue to use
HII as the best available science reflecting human influence on the
landscape.
(87) Comment: With Arizona alone growing by 1.5 million people from
the mid-1990s to mid-2000s, the Service should account for future
population growth in the southwest.
Our response: We acknowledge that the human population has grown
and continues to grow throughout the southwestern United States. Should
this growth occur within critical habitat to the extent that the HII
PCE may be affected and a Federal nexus exists, the Service would
consult on proposed actions related to human population growth (e.g.,
roads, development, transmission lines) with the action agency to
minimize the effects of increasing the HII within critical habitat. We
understand human population growth may occur without consultation in
areas where a Federal nexus does not exist; in these areas, special
management considerations to minimize the effects of increasing the HII
would occur on a voluntary basis.
(88) Comment: The Service should consider that as conservation
uncertainties arise in the Mexican part of the range and climate change
alters natural resources, protecting critical habitat in the United
States and facilitating connectivity between current range and
historical range with adequate, and sometimes superior, resources is
paramount for longitudinal conservation action. The borderlands area is
often referred to as marginal habitat because the core breeding
population is much farther south, but this area is perhaps growing more
critical for the species and represents a feasible opportunity for
conservation and recovery. Climate change is an important factor in the
recovery of jaguars in the borderlands and the Service appropriately
included it in the discussion within the proposed rule. Additionally,
climate change effects on jaguars are uncertain, but the Service should
consider that some potential impacts, such as increased periods of
drought, underscore the importance of building resource capacity and
connectivity.
Our response: The Service recognizes that climate change may be a
factor in the conservation of the jaguar. The Service further
recognizes the importance of maintaining connectivity between the
United States and Mexico. In our proposed rule and this final rule we
identify connectivity between expansive open spaces in the United
States and Mexico as an essential component of the physical or
biological feature essential for the conservation of the jaguar in the
United States. The ability for jaguars in the proposed Northwestern
Recovery Unit to utilize physical and biological habitat features in
the borderlands region is ecologically important to the recovery of the
species; therefore, maintaining connectivity to Mexico is essential to
the conservation of the jaguar.
(89) Comment: The maps provided by the Service are insufficient in
detail.
Our response: 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.regulations.gov at Docket No. FWS-R2-ES-2012-0042 and at the
Arizona Ecological Services Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). Enhanced color maps and site-specific boundaries
of the critical habitat in both GIS and Google Earth format can be
viewed and downloaded from https://www.fws.gov/southwest/es/arizona.http. See our response to comment 43 in Comments from States
above for the Web site links to all the GIS data layers that we used in
evaluating PCEs in this final rule.
(90) Comment: Has government-to-government consultation with the
Service occurred?
Our response: Yes. Please see the Government-to-Government
[[Page 12623]]
Relationship with Tribes section of this final rule for a description
of consultation between the Service and the Tohono O'odham Nation.
(91) Comment: The BIA requested that the Tohono O'odham Nation be
excluded from critical habitat designation based on section 4(b)(2) of
the Act. The BIA references the jaguar management plan that is under
development by the Tohono O'odham Nation.
Our response: We have determined, pursuant to section 4(b)(2) of
the Act, that we will exclude approximately 20,764 ha (51,308 ac) of
Tohono O'odham Nation land in Subunit 1a and approximately 10,829 ha
(26,759 ac) of Tohono O'odham Nation land in Subunit 1b, from the final
designation of critical habitat. See the Exclusions Based on Other
Relevant Impacts section above for more detailed information.
(92) Comment: Several points in the proposed rule indicate that
adverse modification analysis would be required only for occupied
habitat. Why would the analysis not be required for unoccupied critical
habitat?
Our response: Adverse modification analysis during section 7
consultation would be conducted for projects with a Federal nexus that
may adversely modify critical habitat in both occupied and unoccupied
critical habitat.
(93) Comment: The draft economic analysis should address impacts to
national security that could result if the construction of border
fences or related infrastructure is affected by jaguar conservation.
Land located near the border may be devalued due to national security
impacts. Illegal immigration and drug trafficking may increase in the
vicinity of the proposed designation.
Our response: Chapter 4 of the draft economic analysis discusses
impacts to border protection activities. As described in section 4.1 of
the draft economic analysis, CBP does not anticipate that activities
planned within the proposed designation will cause permanent changes to
the landscape or sever connectivity to Mexico and are, therefore,
unlikely to require any changes to jaguar conservation measures than
those already planned under the listing of the species. CBP already
implements baseline conservation measures according to best management
practices for the jaguar in all critical habitat units. As a result, we
do not forecast any impacts to national security as a result of
critical habitat designation for jaguar.
Comments From Tribes
(94) Comment: The Tohono O'odham Nation should be excluded from
critical habitat designation based on section 4(b)(2) of the Act.
Our response: We have determined, pursuant to section 4(b)(2) of
the Act, that we will exclude approximately 20,764 ha (51,308 ac) of
Tohono O'odham Nation land in Subunit 1a and approximately 10,829 ha
(26,759 ac) of Tohono O'odham Nation land in Subunit 1b, from the final
designation of critical habitat. See the Exclusions Based on Other
Relevant Impacts section above for more detailed information.
(95) Comment: Fort Huachuca should be exempted from critical
habitat designation based on the Fort's Integrated Natural Resources
Management Plan (INRMP) that was prepared under section 101 of the
Sikes Act (16 U.S.C. 670a) and which currently provides a benefit to
the jaguar.
Our response: The Service has exempted Fort Huachuca from critical
habitat designation based on their INRMP. See the Exemptions section of
this final rule for further information.
Public Comments
General
(96) Comment: Data indicate Arizona and New Mexico lack the habitat
necessary for jaguars. There is no Sinaloan thornscrub in the United
States; therefore, the United States does not have the vegetation
necessary for jaguars to feed, breed, reproduce, and find shelter,
which is why there is no jaguar population in existence in the United
States.
Our response: The Service acknowledges that Sinaloan thornscrub
does not occur in the United States. However, we have determined that
Madrean evergreen woodland and semidesert grassland provide the biotic
community component of the physical or biological feature utilized by
jaguars north of the U.S.-Mexico border. Therefore, these two biotic
communities are included as a PCE within the designation. Further, the
Act does not require a breeding or reproducing population of jaguars be
present for the purposes of designating critical habitat.
(97) Comment: Habitat in the United States (including southeastern
Arizona and southwestern New Mexico) is at the northernmost extreme of
the jaguar's range, and is peripheral, marginal, and not essential to
the conservation of the species, as demonstrated by Rabinowitz (1997),
who has consistently maintained there is no area in the southwestern
United States that is critical to the survival of the jaguar and that
the area is marginal for the jaguar in terms of water, cover, and prey
density. The United States is not shown as a jaguar corridor on the map
published by Rabinowitz and Zeller (2010). Biological studies and
professional opinions abound, and are cited by organizations opposing
this designation, that credibly show the jaguar prefers a wet tropical
climate to breed and exist.
Our response: The Service agrees that habitat in the United States
is on the northern periphery of the jaguar's range; however, the
Service has identified critical habitat for the jaguar in accordance
with the Act and implementing regulations. See our response to comment
number 1 in the Peer Reviewer Comments above.
(98) Comment: Any area that contains the PCEs does not
automatically qualify as critical habitat. It can hardly be said that
these features are essential to the conservation of the species merely
because they can sustain temporary presence of the species.
Our response: The Act does not state that critical habitat applies
only to resident or breeding populations, or that for an area to be
occupied critical habitat it must contain a female or documented
breeding. Rather, section 3(5)(A)(i) of the Act defines occupancy as
the specific areas within the geographical area occupied by the
species, at the time it is listed. Further, in the decision of Arizona
Cattle Grower's Assoc. v. Salazar, 2009 U.S. App. Lexis 29107 (June 4,
2010), the Ninth Circuit affirmed that the Service has the authority to
designate as occupied all areas used by a listed species with
sufficient regularity that members of the species are likely to be
present during any reasonable span of time. Therefore, occupancy of an
area can be indicated by the presence of an individual member of the
species, and we have determined that critical habitat may have been
occupied at the time of listing based on this definition in conjunction
with observations of jaguars in those areas (as described in Table 1 of
this final rule).
(99) Comment: The proposed critical habitat in the United States
will have little to no effect on the jaguar's survival and recovery.
The listed species is the entire jaguar taxon; critical habitat,
therefore, must be essential to conserving that species as a whole.
Other than a possible contribution to the genetic diversity of the
species, there is no indication of any kind why the designation of
critical habitat would somehow be essential to the conservation of the
species as a whole.
[[Page 12624]]
Our response: Critical habitat in the United States contributes to
recovery across the jaguar's entire range by providing the physical or
biological feature for jaguar critical habitat and the associated PCEs.
The Service recognizes that the designated critical habitat in the
United States is only a small portion of the jaguar's range and we
anticipate that recovery of the entire species will rely primarily on
actions that occur outside of the United States; activities that may
adversely or beneficially affect jaguars in the United States are less
likely to affect recovery than activities in core areas of their range
(Jaguar Recovery Team 2012, p. 38). However, the portion of the range
in the United States is located within a secondary area (as identified
in the Recovery Outline) that provides a recovery function benefitting
the overall recovery unit (Jaguar Recovery Team 2012, pp. 40, 42). For
example, specific areas within this secondary area that provide the
physical and biological features essential to jaguar habitat can
contribute to the species' persistence and, therefore, overall
conservation by providing areas to support some individuals during
dispersal movements, by providing small patches of habitat (perhaps in
some cases with a few resident jaguars), and as areas for cyclic
expansion and contraction of the nearest core area and breeding
population in the Northwestern Recovery Unit (about 210 km (130 mi)
south of the U.S.-Mexico border.
Independent peer review cited in our July 22, 1997, clarifying rule
(62 FR 39147, pp. 39153-39154) states that individuals dispersing into
the United States are important because they occupy habitat that serves
as a buffer to zones of regular reproduction and are potential
colonizers of vacant range, and that, as such, areas supporting them
are important to maintaining normal demographics, as well as allowing
for possible range expansion. As described in the Recovery Outline for
the Jaguar (Jaguar Recovery Team 2012, pp. 40, 42), the Northwestern
Recovery Unit is essential for the conservation of the species;
therefore, consideration of the spatial and biological dynamics that
allow this unit to function and that benefit the overall unit is
prudent. Providing connectivity from the United States to Mexico is a
key element to maintaining those processes.
(100) Comment: There is no rational or prudent basis for
designating critical habitat in the United States. There is no area in
the United States that is essential to the conservation of jaguars.
Our response: The Service has identified critical habitat for the
jaguar in accordance with the Act and its implementing regulations. The
Service has determined that designation of critical habitat for the
jaguar is prudent and determinable based on the best available
scientific data available. Section 4(a)(3)(A) of the Act, states that
critical habitat shall be designated for endangered and threatened
species to the maximum extent prudent and determinable. Therefore, we
are required to designate critical habitat for the jaguar to fulfill
our legal and statutory obligations. See our response to comment number
1 in the Peer Reviewer Comments above.
(101) Comment: The Service states that a goal of critical habitat
is to support a population of 50 to 100 jaguars in the United States by
protecting and increasing connectivity between the United States and
Mexico.
Our response: See our response to comment number 4 in the Peer
Review Comment section above.
(102) Comment: Corridors to unsuitable or marginal habitat can de-
stabilize jaguar populations (Desbiez et al. 2012), particularly if the
source population is itself unstable. Analyses presented by Carillo et
al. (2007) indicate that the Sonora population appears to be
decreasing, and some jaguar experts consider the southwestern United
States to consist of marginal habitat for jaguars (see Johnson et al.
2011). Thus, linking jaguar population in Mexico to the United States
may establish a detrimental source-sink relationship. The results of
our PVA analysis indicate that the Service's goal of establishing a
breeding population of jaguars in the United States may have negative
consequences to the stability and persistence of jaguar populations in
the Northwestern Management Unit.
Our response: We disagree that designating critical habitat will
destabilize the nearest breeding population in Mexico. The purpose of
designating critical habitat in the United States is not to create a
self-sustaining, breeding population north of the U.S.-Mexico border,
but to provide small patches of habitat (perhaps in some cases with a
few resident jaguars) to allow for the cyclical expansion and
contraction of the nearest core area in Mexico. Therefore, critical
habitat in the United States contributes to recovery by providing
protection of these areas within the proposed Northwestern Recovery
Unit. Further, the jaguar has been listed as an endangered species
since 1972, and already receives protection under the Act. The
designation of critical habitat does not increase the number of jaguars
present in the United States. 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. See our
response to comment number 52 in Comments from States above.
(103) Comment: The Service should consider the importance of
connecting the Jalisco and Sonora populations to support a stable
metapopulation in the Northwestern Management Unit. Increasing
connectivity between Jalisco and Sonora improves population growth
rate, decreases the probability of extinction and increases genetic
heterozygosity in Sonora, creates a stable Sonoran population, and
supports a stable metapopulation. Creating a breeding population in the
United States could have detrimental effects on population growth and
persistence in the region, and conservation measures in Mexico rather
than the United States are needed to benefit jaguars in the
Northwestern Management Unit.
Our response: We agree that jaguar conservation in Mexico and
throughout its range are necessary to recover the species, and we are
collaborating with partners to conserve jaguars throughout their range,
including improving dispersal opportunities between the Jalisco and
Sonora populations. We disagree that designating critical habitat will
detrimentally affect jaguar population growth and persistence in the
region (see our response to comment number 15 in Peer Reviewer Comments
and 52 in Comments from States above). The purpose of the designation
of critical habitat is not to establish a breeding population of
jaguars in the United States. The purpose of critical habitat in the
United States is to provide small patches of habitat (perhaps in some
cases with a few resident jaguars) to allow for the cyclical expansion
and contraction of the nearest core area in Mexico. Critical habitat is
not being designated to create a self-sustaining, breeding population
north of the U.S.-Mexico border, but to allow individuals from the
nearest breeding area in Mexico areas within which they may persist
during a portion of their life cycle.
(104) Comment: The Service should work with Dr. Rabinowitz and
other jaguar experts in Mexico, Central America, and South America to
protect jaguar habitat, including corridors. Since the nearest breeding
population is 209 km (130 mi) south in Mexico and there are breeding
populations throughout Central and South America,
[[Page 12625]]
science and logic dictate spending resources and efforts where jaguars
breed.
Our response: The Service is collaborating with partners (including
members of Dr. Rabinowitz's organization, Panthera) to conserve jaguars
and their habitat throughout the range of the jaguar, particularly
within the proposed Northwestern Recovery Unit. We are currently
working with the Jaguar Recovery Team to complete a draft recovery plan
for the jaguar, which we expect will be available in 2014. The recovery
plan will include guidance, criteria, and actions pertaining to
recovering the species throughout its entire range (although focusing
on the Northwestern Recovery Unit), including information about
habitat, corridor, and breeding area protection.
(105) Comment: The designation of critical habitat appears
political instead of scientific, which violates the Act at every level.
Our response: Designation of critical habitat has been done in
accordance with statutory requirements. See our response to comment
number 1 in the Peer Reviewer Comments above.
(106) Comment: Set-aside protection mechanisms, like critical
habitat, may not be necessary to meet the jaguar's habitat needs.
Our response: See our response to comment number 1 in the Peer
Reviewer Comments above.
(107) Comment: Habitat fitting the description of the physical or
biological feature and associated PCEs of jaguar critical habitat is
widespread in Arizona, and any actions that would impact jaguars are
already required to be evaluated by provisions under the Endangered
Species Act and National Environmental Policy Act (NEPA).
Our response: Since the jaguar is a federally listed species under
the Act, actions with a Federal nexus that may impact jaguars are
evaluated under the Act and potentially NEPA. However, critical habitat
does afford protection to the jaguar through section 7 consultation
under 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. 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. Therefore, actions that are funded,
permitted, or carried out by a Federal agency within jaguar critical
habitat will continue to be evaluated to determine their impacts on
critical habitat.
(108) Comment: The lack of breeding populations or residency in the
United States indicates there is no critical habitat. There are no
areas in the United States that could be considered ``occupied.'' The
males detected in the United States have likely originated from the
Sonora population, and their genetic resources are thus a consequence
of the population genetics and environmental conditions acting upon the
Sonora population. While the Sonora population may be important for the
conservation of the species, a small population in the United States,
if it was to exist, is not an important peripheral population in the
context of the conservation of the species. Based on the movement
behavior of female jaguars, it is unlikely that female jaguars would
cross road barriers (some including large highways with presumably high
traffic volumes) or other areas of human disturbance in the over 130
miles between the Sonora population and the areas of critical habitat
in the United States. Suitable habitat for jaguars between the Sonora
population and the United States is fragmented and of marginal quality.
A general increase in human impacts across the landscape through time
is correlated with a lack of female records in the United States,
lending credence to the possibility that conditions in northern Mexico
may act as a barrier to female dispersal to the United States.
Our response: As described in the proposed rule and this final
rule, barriers prohibiting the dispersal of females to the United
States are unknown. Based on information about large carnivores, male
felids can move long distances in the process of dispersal (Logan et
al. 1986 and L[oacute]pez Gonz[aacute]lez 1999, as described in
Boydston and L[oacute]pez Gonz[aacute]lez 2005, p. 51), but when female
dispersal does occur, distances are much shorter (Logan and Sweanor
2011, as described in Boydston and L[oacute]pez Gonz[aacute]lez 2005,
p. 51). Therefore, it may be possible that barriers exist to female
dispersal into the United States; however, as described in the Recovery
Outline for the Jaguar (Jaguar Recovery Team 2012, pp. 24, 44), further
research on gender- and age-specific estimates of dispersal rates and
travel distances is needed within the Northwestern Recovery Unit. The
Act does not state that critical habitat applies only to resident or
breeding populations, or that for an area to be occupied critical
habitat it must contain a female or documented breeding. Further,
establishing a breeding population of jaguars is not the purpose of
critical habitat designation. See our response to comment number 11 in
Peer Reviewers Comments above.
(109) Comment: Some authors argue that suitable habitat for females
does exist in southern Arizona and New Mexico, but note that habitat
preferences differ considerably between male and female jaguars
(Boydston and L[oacute]pez-Gonz[aacute]les 2005). The lack of female
detections in the United States may be indicative of conditions over
the past 60 years that have resulted in an altered landscape whereby
habitats preferred by females (e.g., forested areas, especially broad-
leaf forests (Boydston and L[oacute]pez-Gonz[aacute]les 2005)) no
longer occur in the United States in sufficient quantities to support
female occupancy and breeding. Moreover, because females have not been
detected recently in the United States, habitat conditions at the
locations of female jaguar detections, used in building habitat models,
have likely changed, a fact that is not accounted for by the approach
taken by the Service's modeling effort to identify and map critical
habitat. Similarly, the development of PCEs for critical habitat is
based on records that are likely to be mostly male jaguars.
Consequently, the areas identified as critical habitat may be suitable
for male jaguars, but fail either to benefit female jaguars or allow
for the establishment of breeding territories.
Our response: We acknowledge that the majority of detections used
to develop the habitat model for the jaguar in the Northwestern
Recovery Unit may have been males. Standard camera-trapping techniques
appear to have a bias towards capturing male jaguars as opposed to
females (Harmsen et al. 2009, entire). Harmsen et al. (2009, pp. 615-
616) captured 23 individual males during 100 days of camera trapping,
but only captured 6 individual females during this same time period.
This is likely because male jaguars roam farther and tend to use large
pathways more than females, making it more likely they will be picked
up using camera trap techniques (which often are located along open
pathways to facilitate capturing recognizable photos). However, even
when used off trail (such as along small streams, game trails, and
landscape features), Harmsen (2006) found that camera trapping did not
reveal any habitat characteristics associated with higher capture rates
of females (as cited in Harmsen et al. 2009, pp. 613, 618).
Even so, the Act does not state that critical habitat must apply to
both males and females of a species. Further, establishing a breeding
population of
[[Page 12626]]
jaguars is not the purpose of critical habitat designation. See our
response to comment number 11 in Peer Reviewers Comments above.
(110) Comment: The United States is a peripheral area; therefore,
the Service should not designate critical habitat in the United States.
Our response: Please see our response to comment number 1 in the
Peer Reviewer Comments above.
(111) Comment: Habitat in the United States is marginal and not
essential to the conservation of the species, as demonstrated by
Rabinowitz (2010).
Our response: The Service agrees that habitat in the United States
is on the northern periphery of the jaguar's range; however, the
Service has identified critical habitat for the jaguar in accordance
with the Act and implementing regulations. See our response to comment
number 1 in the Peer Reviewer Comments above.
(112) Comment: The Service should exclude the Rosemont Mine.
Excluding the mine will not cause the species' extinction. Rosemont
Mine has incurred costs well in excess of $100 million in developing
the project and should be excluded based on economic considerations.
Our response: We have not excluded the Rosemont Mine from critical
habitat. See our response to comment number 71 in the Comments from
States above.
Additionally, the Service recognizes the perceptional effects of
the designation of critical habitat in general, and specifically, for
the designation of critical habitat for the jaguar. The costs of
developing the Rosemont Mine and the potential economic benefit of the
mine are not factors in considering whether to exclude the mine area
from critical habitat. The Secretary has the discretion to exclude
specific areas from critical habitat based on the economic impact or
other relevant factors. The basis for excluding a particular area due
to a probable economic impact is to relieve the probable impact that
may be due solely to the designation of critical habitat. In this
particular instance for jaguar critical habitat, we find no such
probable economic impact due solely to the designation of critical
habitat. The Rosemont Mine area is occupied by the jaguar and,
consequently, any conservation measures that have been implemented to
date, or anticipated, for the jaguar are a result of the species'
listing, not the designated critical habitat. Furthermore, a recently
completed biological and conference opinion found the construction and
operation of the Rosemont Mine would not jeopardize the jaguar nor
adversely modify designated critical habitat. This last point, no
adverse modification of critical habitat, is a major determining factor
in whether the Secretary would consider the exclusion of the mine area
from critical habitat. Since the Service determined the proposed mining
operation would not destroy or adversely modify critical habitat, no
conservation measures or reasonable or prudent alternatives were
suggested. Therefore, probable economic impacts forecast as the result
of the designation of critical habitat are predominantly limited to
transactional costs. Since the basis for an economic-based exclusion is
to forego probable economic impacts, and there are limited forecast
economic impacts from critical habitat, the Secretary did not choose to
enter into the discretionary exclusion analysis under section 4(b)(2)
of the Act. As stated previously, the costs of developing the mine and
any conservation measures implemented or recommended by the Service
specific to jaguar are primarily the result of the listing of the
species, not critical habitat.
(113) Comment: Habitat Conservation Plans (HCPs) should not be
excluded from critical habitat, specifically the Pima County Draft
Multi-Species HCP and Malpai Borderlands HCP should not be excluded.
Our response: The Pima County draft Multi-Species HCP and the
Malpai Borderlands HCP lack management plans that address jaguar
habitat. Consequently, we have not determined that the benefits of
excluding these areas outweigh the benefits of including these areas.
(114) Comment: The Service should include all of the ``Sky
Islands'' within the designation including the Chiricahua, Dos Cabezas,
Dragoon, Mule, Rincon, Santa Catalina, Galiuro,Winchester, Whitlock,
Pinale[ntilde]o, Santa Teresa, Animas, Pyramid, Alama Hueco, Big
Hatchet, Little Hatchet, Florida, West and East Potrillo, Cedar, and
Big Burro Mountains, and portions of the Peloncillo Mountains north of
the current boundaries of the Northwestern Recovery Unit. These areas
should be included because they either have documented jaguar presence
or they contain the PCEs as defined by the Service. The Service should
also include areas north of the current proposed critical habitat in
the Mogollon Rim area (along with adjoining spurs and canyons,
including the Grand Canyon) in Arizona and to the north and east into
the contiguous lands of the Gila National Forest along with the Plains
of San Augustin, the Zuni Plateau, the El Malpais National Monument and
National Conservation Area, and the San Mateo, Magdalena, Chupadera,
Datil, Sawtooth, Luera, and Summit Mountains in New Mexico. These areas
represent a potentially vital refugium for the northern jaguar
population, given the expected trajectory of increasing land use and
climate change across the southwestern United States and northern
Mexico.
Our response: The additional Sky Islands and areas north of the
designated critical habitat area may be usable by jaguars and may in
fact contribute to the recovery of the species, but they are not
considered occupied at the time of listing, and are not considered
essential to the conservation of the species as unoccupied habitat.
Consequently, these areas do not meet the definition of critical
habitat as we have interpreted it because they were not occupied at the
time of listing nor are they considered essential to recovery. See our
response to comment number 3 in Peer Reviewer Comments above.
(115) Comment: The Service should designate additional areas of
critical habitat because the agency cannot be sure of how much habitat
is currently occupied by jaguars in the United States, and lack of
detection does not indicate the species is absent. With few exceptions,
the relatively large number of confirmed jaguar sightings on which the
proposed rule was based were not the result of any official effort to
conduct a comprehensive survey of the northern jaguar population in the
United States, but were instead essentially collected accidentally.
Considering the large and growing number of purely anecdotal sightings
of this extremely and notoriously elusive species, it seems extremely
reasonable to assume that, should anyone actually try to find jaguars
in this region, far more individual jaguars would be discovered.
Our response: The Service agrees that the lack of detection does
not indicate the species is absent, and we acknowledge this concept in
our proposed rule and this final rule. The Service recognizes that many
mobile species are difficult to detect in the wild because of
morphological features (such as camouflaged appearance) or elusive
behavioral characteristics (such as nocturnal activity) (Peterson and
Bayley 2004, pp. 173, 175). This situation presents challenges in
determining whether or not a particular area is occupied because we
cannot be sure that a lack of detection indicates that the species is
absent (Peterson and Bayley 2004, p. 173). See Occupied Area at the
Time of Listing, above, in this final rule.
Additionally, jaguars are currently being surveyed for and
monitored in
[[Page 12627]]
mountainous areas in the United States north of the U.S.-Mexico border
and south of Interstate 10, from the Baboquivari Mountains in Arizona
to the Peloncillo Mountains in New Mexico. Information gathered during
this survey and monitoring project (up through September 11, 2013) has
been incorporated into this final rule (see Table 1).
(116) Comment: The Service should follow the jaguar habitat
modeling efforts of Hatten et al. (2005) and Robinson (2006) as a basis
for including additional areas in these two States. Hatten et al.
(2005) identified 21-30 percent of Arizona (approximately 62,000-88,600
km\2\ (23,938-34,209 mi\2\)) as potential jaguar habitat, and Robinson
(2006) identified approximately half of New Mexico (approximately
156,800 km\2\ (60,541 mi\2\)) as potential jaguar habitat.
Our response: As discussed above, during the Jaguar Recovery Team's
analysis and modeling effort, the team considered the modeling efforts
of Hatten et al. (2005, entire) and Robinson (2006, entire), and
further refined the Hatten et al. (2005, entire) model such that a
similar model could be applied across the entire Northwestern Recovery
Unit. The team provided this analysis and habitat model in their 2013
report entitled Jaguar Habitat Modeling and Database Update (Sanderson
and Fisher 2013, entire). Therefore, we based critical habitat
boundaries on the physical and biological feature and PCEs from the
updated habitat modeling report, in which the habitat features
preferred by the jaguar in the proposed Northwestern Recovery Unit were
described based on the best available science and expert opinion of the
Jaguar Recovery Team.
(117) Comment: Congress and the Service's regulations or intentions
were to guide designation of critical habitat to lands that are
actually occupied by the listed species. Critical habitat should be
based on current occupation, not historical, and no areas are currently
occupied or were occupied at the time of listing.
Our response: The Service's designation of occupied critical
habitat is in compliance with the Act. Under the second part 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. In regards to areas occupied at
the time of listing, see our response to comment number 9 in Peer
Reviewers Comments above and comment number 42 in Comments from States.
(118) Comment: The Santa Rita Mountains and Subunit 4b are not
occupied.
Our response: The Santa Rita Mountains are within Unit 3. We
determined Unit 3 may have been occupied at the time of listing and is
currently occupied based on a record of a male shot in the Patagonia
Mountains (also within Unit 3) in 1965 and multiple sightings of a male
jaguar from October 2012 through September 11, 2013, in the Santa Rita
Mountains (see Table 1 in the final rule). We did not designate Subunit
4b based on occupancy; rather, this unit provides connectivity from
Subunit 4a to Mexico (by connecting it to Unit 3, which provides
connectivity to Mexico). Connectivity to Mexico is an essential feature
of jaguar habitat in the United States.
(119) Comment: The Patagonia Unit (Unit 3) is considered occupied
based on only one observation of a jaguar; therefore, it should not be
considered occupied.
Our response: At the time we published the proposed rule (77 FR
50214; August 20, 2012), we were aware of only one undisputed Class I
jaguar record from Unit 3, which was a male shot in the Patagonia
Mountains in 1965 (see Table 1 of this final rule). Since then, a male
jaguar has been documented numerous times in the Santa Rita Mountains
(see Table 1 of this final rule), which are also within Unit 3.
Therefore, we consider this unit occupied.
(120) Comment: The use of female scat as a scent lure renders all
scientific documentation of jaguars suspect.
Our response: We understand that some of the jaguar records used in
our proposed rule may be disputed due to the possibility that female
scat was used as a scent lure in some areas. Therefore, we removed all
sightings that may have been influenced by female scat, which we
determined to be from October 3, 2008 (the date of Emil McCain's
request for jaguar scat from the Phoenix Zoo) through March 2, 2009
(the date Macho B was captured and flown to the Phoenix Zoo). See Table
1 of this final rule for all of the undisputed Class I jaguar records
used to determine occupancy.
(121) Comment: The correct date of listing should be 1997 instead
of 1972.
Our response: As discussed in the final rule, our intention was to
list the species throughout its entire range at the time it was added
to the Endangered Species Conservation Act in 1972; therefore, we
determine that 1972 is the date the species was listed.
(122) Comment: Occupancy should be determined based on current
records, including up to the past 15 years.
Our response: Determining occupancy by a species such as the jaguar
can be difficult, given that they were added to the list many years
ago, and, by nature, are cryptic and difficult to detect. Therefore, we
determine that the appropriate timeframe within which to consider areas
occupied by the jaguar at the time of its listing is from 1962 (10
years prior to listing, which is the average lifespan of a jaguar) to
September 11, 2013. See our response to comment number 42 in the
Comments from States above.
(123) Comment: All records collected by and cited in McCain and
Childs (2008) should be removed, as the use of female scat as a scent
lure at some point during their study indicates that all of their data
were invalid.
Our response: We disagree. We understand that some of the jaguar
records used in our proposed rule may be disputed due to the
possibility that female scat was used as a scent lure in some areas.
Therefore, we removed all sightings that may have been influenced by
female scat, which we determined to be from October 3, 2008 (the date
of Emil McCain's request for jaguar scat from the Phoenix Zoo), through
March 2, 2009 (the date Macho B was captured and flown to the Phoenix
Zoo). Because we only have information of female scat as a scent lure
potentially being used from October 2008 through March 2009, it is
speculative to assume that sightings outside of this timeframe were
influenced by female scat as a scent lure because the best scientific
and commercial data does not indicate this to be the case. See Table 1
of this final rule for all of the undisputed Class I jaguar records
used to determine occupancy.
(124) Comment: Remove ``verified tracks'' from consideration, as
they can be confused with mountain lion tracks.
Our response: We do not consider it necessary to remove verified
tracks from consideration because the tracks that are included in our
determination of occupied critical habitat were verified by mountain
lion hunters who have sufficient experience in distinguishing mountain
lion tracks from jaguar tracks.
(125) Comment: Data used by the Service to designate critical
habitat are insufficient, inaccurate, or unreliable because the habitat
models developed by Sanderson and Fisher (2011, pp. 1-11; 2013, entire)
used other than Class I jaguar records and disputed Class I records
(including jaguar locations that
[[Page 12628]]
may have been from ``canned'' hunts). Therefore, it is not possible to
determine or model the PCEs essential for jaguars.
Our response: See our response to comment number 43 in the Comments
from States above.
(126) Comment: The 130 jaguar locations used in the Service's
August 20, 2012, proposed rule (77 FR 50214) are of questionable
legitimacy.
Our response: See our response to comment number 43 in the Comments
from States above for an explanation of the datasets used in our August
20, 2012, proposed rule (77 FR 50214), July 1, 2013, revised proposed
rule (78 FR 39237), and this final rule.
(127) Comment: None of the critical habitat units contain all the
PCEs essential to the conservation of the jaguar, or they do not have
the PCEs in the appropriate quantities to support jaguars.
Our response: All of the critical habitat units contain all of the
PCEs in the appropriate quantities to support jaguars. The PCEs are
based on the latest jaguar habitat model produced by the Jaguar
Recovery Team (Sanderson and Fisher 2013, entire), which is the best
commercial and scientific data available. Further, all PCEs are found
in all units of the final critical habitat designation and jaguars have
been documented in each unit (in some cases multiple times over
multiple months and years). Therefore, we conclude that all of the
critical habitat units contain all of the PCEs in the appropriate
quantities to support jaguars.
(128) Comment: It is not necessary to have all of the PCEs in each
critical habitat unit. The Service should consider designating areas in
which only some of the PCEs are present.
Our response: The Service recognizes that each critical habitat
unit does not need to contain all of the PCEs; however, the Service
considered the fact that this area is in the northern periphery of the
jaguar's range. Designating critical habitat only in areas with all
PCEs provides the best habitat available and, therefore, critical
habitat for the jaguar in the United States. Because habitat in the
United States is at the edge of the species' northern range, and is
marginal compared to known habitat throughout the range, we have
determined that all of the primary constituent elements discussed must
be present in each specific area to constitute critical jaguar habitat
in the United States, including connectivity to Mexico (but that
connectivity may be provided either through a direct connection to the
border or by other areas essential for the conservation of the species;
see Areas Essential for the Conservation of Jaguars, above). Further,
because the PCEs are based on recommendations from the Jaguar Recovery
Team and information from the latest jaguar habitat model (Sanderson
and Fisher 2013, entire), we have captured the areas in the United
States that support the conservation of the jaguar.
(129) Comment: The unoccupied units (specifically Subunit 4b) lack
the essential physical and biological features for critical habitat.
Our response: The Service recognizes that three designated critical
habitat Subunits (1b, 4b, and 4c) do not contain all of the physical or
biological features essential to the jaguar. However, under the second
part of the definition of critical habitat under the Act, 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. The
Act does not require the Service to identify PCEs for unoccupied areas.
In areas lacking all PCEs (specifically Subunits 1b, 4b, and 4c), these
areas were designated because they are essential to the conservation of
the jaguar because they provide continuity to Mexico and connect
Subunits within the United States that would otherwise not be connected
to Mexico (Subunits 1a and 4a).
(130) Comment: Additionally, the Service failed to meet Data
Quality Act (DQA) standards. The DQA attempts to ensure that Federal
agencies, such as the Service, use and disseminate accurate information
by requiring those agencies to issue information guidelines ensuring
the quality, utility, objectivity, and integrity of the information
disseminated. The information disseminated by the Service in the
proposed rule fails to meet DQA standards because it is both biased and
inaccurate.
Our response: See our responses to comment numbers 16 and 18 in
Peer Reviewer Comments above.
(131) Comment: The Service must adopt ``regulatory Daubert'' by
informal rulemaking to prevent further subordination of science to
political policy (Holland 2008).
Our response: The commenter's reference to Daubert in Holland
(2008, p. 301) refers to the Daubert v. Merrell Dow Pharmaceuticals,
Inc. case that was decided by the Supreme Court. In Daubert v. Merrell
Dow Pharmaceuticals Inc., the U.S. Supreme Court empowered federal
judges to reject irrelevant or unreliable scientific evidence. Daubert
provides a suitable framework for reviewing the quality of agency
science and the soundness of agency decisions consistent with the
standards established for review of agency rulemakings under the
Administrative Procedure Act. Holland (2008) suggests that the Act
should be held to a similar information standard that was used in that
case, either through adoption by Federal courts, Congressional
amendment to the Act, or Executive Order. The Service has no authority
to adopt information standards different than those referenced in the
discussion above. These are the standards that we used in the
designation of critical habitat for the jaguar.
(132) Comment: The questionnaires distributed by the Service to
jaguar experts for use in developing the recovery outline for the
species and the application of the Delphi Method (a structured
communication technique using a systematic, interactive forecasting
method which relies on a panel of experts) are scientifically invalid.
Our response: The use of questionnaires and the Delphi Method is
not a scientifically invalid process. The Delphi Method can be a useful
technique in solving complex natural resource issues by synthesizing
expert opinion (for example, see Hess and King 2002, entire; Taylor and
Ryder 2003, entire; Plummer and Armitage 2007, entire), particularly
when data are lacking, there is great uncertainty, and the primary
source of information is informed judgment (Hess and King 2002, p. 28).
This is the case for jaguars in the northwestern-most part of the
species' range. For this reason, we determined that a modified Delphi
Method (in that we sent one round instead of multiple rounds of
questions to scientists with experience or expertise in jaguar ecology
(primarily in the northwestern-most portion of the jaguar range) or
large cat ecology) was appropriate to determine the habitat features
relied on by jaguars in this area. Please see the Recovery Outline for
the Jaguar for a description of this process (Jaguar Recovery Team
2012, pp. 15-16).
(133) Comment: ``Data'' resulting from a compilation of animals
either lured here artificially by sexual scent baiting or trapped
elsewhere and then released, do not support any scientific conclusion
of authentic habitat and run afoul of the ethics requirements of
biological science and of the Service.
Our response: The Service used the best available science to
determine critical habitat for the jaguar. We understand that some of
the jaguar records may be disputed due to the
[[Page 12629]]
possibility that female scat was used as a scent lure in some areas, or
that some individuals may have been released for ``canned'' hunts.
Therefore, we removed all sightings that may have been influenced by
female scat, which we determined to be from October 3, 2008 (the date
of Emil McCain's request for jaguar scat from the Phoenix Zoo), through
March 2, 2009 (the date Macho B was captured and flown to the Phoenix
Zoo), and we did not use records that may have been from ``canned''
hunts (Johnson et al. 2011, p. 9). See Table 1 of this final rule for
all of the undisputed Class I jaguar records used to determine
occupancy.
(134) Comment: The Service has given insufficient consideration of
competition for hunting territories or of availability of prey species
that would occur in the critical habitat areas if jaguars were to
actually inhabit the proposed critical habitat. Any increase in
predator population would necessarily create an imbalance in that
relationship (e.g., an increase in predator population without an
increase in prey population due to expansion of jaguar population).
Our response: The designation of critical habitat does not increase
the number of jaguars present in the United States. Designated 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. As discussed in the proposed rule and this final rule, the
purpose of designating critical habitat in the United States is to
provide areas for transient jaguars (with possibly a few residents) to
support the nearest breeding area to the south in Mexico, allowing this
population to expand and contract, and, ultimately, recover. It is our
intent that the designation of critical habitat will protect the
functional integrity of the features essential for jaguar life-history
requirements for this purpose into the future.
(135) Comment: The range of HII included in the Service's August
20, 2012, proposed rule is too restrictive and should be increased. The
primary constituent elements of jaguar critical habitat should include
areas with an HII of up to 30, if not more.
Our response: The range of HII included in this final rule (less
than 20) is appropriate. To the greatest extent possible, we have based
jaguar critical habitat, including the PCE for HII, on information
compiled and produced by the Jaguar Recovery Team. The Jaguar Recovery
Team comprises jaguar experts, large-cat experts, and stakeholders from
the United States and Mexico; therefore, we consider that the work
produced by the team is the best available scientific and commercial
data, and that following the team's recommendations is the best avenue
to conservation of the species and by extension designating critical
habitat. Therefore, we have incorporated the team's recommendation for
HII in the northern portion of the proposed Northwestern Recovery Unit
as a PCE for jaguar critical habitat.
(136) Comment: In developing the PCE of human influence, the
Service assumes that human influence has not changed over the time
period of jaguar records used in the analysis. Clearly human population
density, the location and traffic density of major roads, and the
extent of stable nighttime lighting (three examples of human influence
on which this PCE is based), have changed over the last century. By
using the HII GIS layer, the Service could grossly miscalculate the
habitat characteristics associated with jaguar locations from the early
to mid-20th century, including overestimating the degree of human
influence that jaguars prefer. The Service should use historical
records to estimate human influence associated with jaguar locations
throughout the 20th century. Without a proper correction for temporal
variation in HII, the GIS approach taken by the Service to develop and
map PCEs is fundamentally flawed and inappropriate.
Our response: The Service recognizes the temporal variation in
human influence over the time period of jaguar records used in the
analysis. However, as stated previously, the Act requires the Service
to use the best scientific and commercial data available. Data
pertaining to the variation of human influence from 1962 to present is
lacking.
(137) Comment: The Service does not account for the high level of
current and historic human activity within the northern Santa Rita
Mountains. As a result of mining operations in the Greaterville,
Rosemont, and Helvetia areas, the areas surrounding the proposed
Rosemont Project have been subject to relatively high levels of human
activity for over one and a half centuries. Given the close proximity
of the northern Santa Rita Mountains to the second largest metropolitan
area in Arizona and the area's proximity to State Highway 83, the area
currently receives heavy human use. In particular, the areas within and
surrounding the Rosemont Project do not contain the necessary PCE
associated with low human influence, and thus should not be included in
the proposed designation of critical habitat for jaguar.
Our response: We understand there may be discrepancies due to the
mapping scale of HII (1 km\2\ (0.4 mi\2\)), and have accounted for this
in the textual exclusion of paved or developed areas that may have been
included in the critical habitat boundary because of this scale.
However, overall HII is the best available science consistently and
objectively reflecting human influence on the landscape, and therefore
we continue to use it as the data source for the human influence PCE.
The critical habitat designation consists entirely of rural lands, in
variously low levels of development and population density. All the
units are in counties with population densities lower than their
statewide average, with the exception of Pima County, which includes
the city of Tucson.
(138) Comment: If the Service designates critical habitat, a de
facto wilderness will be created and people and activities will be
excluded from critical habitat.
Our response: Designated critical habitat does not create a
wilderness area, reserve, or otherwise protected area. Humans and legal
activities are not excluded from designated critical habitat. Legal
activities that have a Federal nexus (in that they occur on Federal
lands, require a Federal permit, or receive Federal funds) will be
evaluated on a case-by-case basis with respect to section 7
(consultation with the Service) of the Act to ensure they do not
destroy or adversely modify designated critical habitat.
(139) Comment: Human influence appears to be above the defined
threshold within the proposed rule in the northern Santa Rita Mountains
and should not be included in the proposed designation of critical
habitat for the jaguar. The GIS layer identified in the jaguar habitat
model entitled ``Human Footprint,'' available from Socioeconomic Data
and Applications Center, does not fit the description provided in the
proposed rule as it is not a relative index normalized by biome and its
scores range from 0 to 64. When brought into a GIS, the Human Footprint
layer (which fits the description provided in the proposed rule)
clearly demonstrates that human influence is high across a large area
proposed as critical habitat, including all of the northern Santa Rita
Mountains and the entirety of the Rosemont Project located within the
proposed designation, as well as Subunit 4b. Thus, according to the
thresholds set
[[Page 12630]]
forth by the proposed rule, the northern Santa Rita Mountains and the
areas within and surrounding the Rosemont Project should not be
included in the proposed designation as they do not include the
necessary PCEs.
Our response: In our August 20, 2012, proposed rule (77 FR 50214),
we incorrectly identified the Human Footprint (which is measured on a
scale of 0-100) available through Socioeconomic Data and Applications
Center as the GIS layer used to evaluate human influence. We did not
use the Human Footprint data, but rather the Human Influence Index
(which is measured on a scale of 0-64). The Human Influence Index is
the data layer used in both jaguar habitat models developed by
Sanderson and Fisher (2011, p. 7; 2013, p. 6) and used to designate
critical habitat for the jaguar. We have corrected this final rule to
reflect the appropriate data layer.
The Service utilized the Human Influence Index GIS layer, which is
based on eight input layers (human population density, railroads, major
roads, navigable rivers, coastlines, stable nighttime lighting, urban
polygons, and land cover) to describe a relative index of human
influence on the land. This GIS layer is available from the
Socioeconomic Data and Applications Center hosted by the Center for
International Earth Science Information Network at Columbia University
(https://sedac.ciesin.columbia.edu/data/collection/wildareas-v2/sets/browse). Please see our response to comment number 43 for a
comprehensive list of all data sources we used in our analysis.
(140) Comment: Because approximately 35 percent of the areas
proposed as critical habitat are non-federal lands, many of the areas
currently associated with high human influence could experience
additional human impacts from future development. Critical habitat
affords no protection to actions on private or state lands that do not
require federal actions, and thus does little to alleviate this
problem. Because of the importance placed on the PCE of low human
influence by the proposed rule, areas currently associated with high
human influence should not be included in the proposed designation.
Our response: We have not included areas within critical habitat
with high human influence. In the proposed rule and this final rule we
have identified an HII of less than 20 as an essential PCE of critical
habitat. We understand there may be discrepancies in some cases due to
the mapping scale of HII (1 km\2\ (0.4 mi\2\)), and we have accounted
for this in the textual exclusion of paved or developed areas that may
have been included in the critical habitat boundary because of this
scale.
We understand that additional human impacts from future development
on private or State lands could occur. However, critical habitat does
afford some protection to the jaguar through section 7 consultation
under 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. 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. Therefore, actions that are funded,
permitted, or carried out by a Federal agency within jaguar critical
habitat will continue to be evaluated to determine their impacts on
critical habitat.
(141) Comment: Climate change is a factor affecting jaguar
adaptation and conservation, and the Service should include lands at
higher elevations and latitudes in the critical habitat designation.
The Service should consider that climate change will force species,
such as jaguars, to migrate north, and designating critical habitat for
the jaguar in the United States is necessary.
Our response: The Service considered numerous scientific
information sources as cited in our proposed rule and this final rule.
The Service agrees that the best available scientific information shows
unequivocally that the Earth's climate is currently in a period of
unusually rapid change and the impacts of that change are already
occurring (National Fish, Wildlife, and Plants 2012, p. 9). The Service
recognizes that some species are shifting their geographic ranges,
often moving poleward or upwards in elevation (National Fish, Wildlife,
and Plants 2012, p. 10). Range shifts are not always negative: Habitat
loss in one area may be offset by an increase elsewhere such that if a
species is able to disperse, it may face little long-term risk.
However, it is clear that shifting distributions can lead to a number
of new challenges (National Fish, Wildlife, and Plants 2012, p. 26).
The synergistic implications of climate change and habitat
fragmentation are the most threatening facet of climate change for
biodiversity (Hannah and Lovejoy 2005, p. 4). The Service acknowledges
in the proposed rule and this final rule that climate change has the
potential to adversely affect the jaguar within the next 50 to 100
years (Jaguar Recovery Team 2012, p. 32). However, the degree to which
climate change will affect jaguar habitat in the United States is
uncertain. Further, we do not know whether the changes that have
already occurred have affected jaguar populations or distribution, nor
can we predict how the species will adapt to or be affected by the type
and degree of climate changes forecast. Consequently, because the
specific impacts of climate change on jaguar habitats remains uncertain
at this time, we did not recommend that any areas be designated as
critical habitat specifically to account for the negative effects of
climate change.
(142) Comment: It is inappropriate for the Service to address
climate change within the critical habitat designation area for the
jaguar because of the lack of data or accurate down-scaled climate
modeling. Climate change information from the IPCC is flawed;
therefore, the Service should not consider it.
Our response: See our response to comment number 59 in Comments
from States above.
(143) Comment: The Service received multiple comments regarding
climate change. Some thought there was not sufficient information on
climate change for the Service to determine impacts to the jaguar.
Others thought that there is more than enough information on impacts
from climate change, which the Service did not adequately consider.
Our response: As required by section 4(b)(1)(A) of the Act, we use
the best scientific and commercial data available to designate critical
habitat. We reviewed all available information pertaining to climate
change and the jaguar, but climate change data specific to jaguars or
similar species is scarce. The Service recognizes that the best
available scientific information shows unequivocally that the Earth's
climate is currently in a period of unusually rapid change and the
impacts of that change are already occurring (National Fish, Wildlife,
and Plants 2012, p. 9). However, because the specific impacts of
climate change on jaguar habitats remain uncertain at this time, we did
not recommend any areas be designated as critical habitat specifically
to account for the negative effects of climate change. Please see our
response to comment number 33 in Peer Reviewer Comments above.
(144) Comment: The Service should not consider climate change
because it is not certain to occur, or may not occur to the severity
that is predicted by experts.
[[Page 12631]]
Our response: Please see our response to comment number 59 in
Comments from States above.
(145) Comment: Clarify if highways and the City of Sierra Vista
were excluded from critical habitat designation.
Our response: Yes, these areas are not included in the critical
habitat designation. When determining critical habitat boundaries
within this final rule, we made every effort to avoid including
developed areas such as lands covered by buildings, pavement, roads,
cities, and other structures because such lands lack physical or
biological features for jaguars. 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 final rule have been excluded by text in the rule
and are not designated as critical habitat. Therefore, a Federal action
involving these lands will 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.
(146) Comment: The Service did not adequately analyze whether or
not critical habitat areas would require special management of the
physical and biological feature and PCEs. Areas that are managed in a
way that maintains the physical or biological features essential to the
species do not meet the statutory definition of critical habitat and,
therefore, are not eligible to be designated as critical habitat. The
proposed rule does not contain these findings. Instead, the proposed
rule contains broad generalizations regarding threats to the species
and pronounces that special management is needed to address the threats
without assessing whether existing protections are adequate.
Our response: The Act does not require that the Service evaluate
the inadequacy of existing regulatory mechanisms for critical habitat
designation. The Act requires the Service to analyze this factor to
determine whether a species is endangered or threatened. Under the Act
critical habitat is defined as the geographical area occupied by the
species at the time of listing that contains those physical or
biological features that: are essential to the conservation of the
species and which ``may'' require ``special management'' considerations
or protection. It does not state that critical habitat contain those
physical or biological features where ``additional'' special management
is ``needed''. In Center for Biological Diversity v. Norton, 240 F.
Supp. 2d 1090 (D. Ariz. Jan. 13, 2013), the court stated that the fact
that habitat is already under some sort of conservation management
indicates that such habitat is critical. Therefore, special management
considerations or protection of the habitat features comprising jaguar
critical habitat may be necessary.
(147) Comment: Special management of jaguar critical habitat is not
required because of the cooperative management efforts and achievements
of the Jaguar Conservation Team. Additionally, the Arizona Game and
Fish Department and New Mexico Department of Game and Fish, with
assistance from the Service and other cooperators, have already
carefully crafted a Memorandum of Understanding and Conservation
Framework to maintain the jaguar's core commitments in several areas of
conservation; therefore, no special management is required.
Our response: We appreciate and acknowledge the work conducted by
the Jaguar Conservation Team and the States since 1997. However, as
stated in our response to comment number 60 in Comments from States
above and comment number 146 in Public Comments above, special
management considerations or protection of the habitat features
comprising jaguar critical habitat may be necessary.
(148) Comment: Special management along the border could be waived
to address national security issues.
Our response: We understand that laws related to the expeditious
construction of border infrastructure in areas of high illegal entry
may be waived by the Secretary of DHS, and we have discussed this issue
in the Special Management Considerations or Protections section of this
final rule. As also noted in this final rule, we know of no plans to
construct additional security fences in the designated critical
habitat, although should future national security issues require
additional measures, the Secretary of DHS may invoke the waiver, and
special management considerations would continue to occur on a
voluntary basis on activities covered by a waiver. Other forms of
border infrastructure, however, do not fall under this waiver
(construction of towers, for example); therefore, special management
considerations apply to these projects, and we consult with DHS to
minimize the impacts to listed species and their critical habitat.
(149) Comment: McCain and Childs (2008) misstate the total number
of jaguar records in the United States, incorrectly calculate
percentages based on these records, and improperly round their results
to create the false illusion of an extinction crisis in the United
States.
Our response: We disagree. We have reviewed McCain and Childs
(2008) and did not find there to be misstatements and miscalculations
in the report. Additionally, McCain and Childs (2008) is a peer-
reviewed article published in a reputable journal (Journal of
Mammalogy). Therefore, we continue to utilize information in this
article as some of the best available science.
(150) Comment: The recovery outline for the jaguar states that
water for jaguars must be made available within 10 km (6.2 mi) year
round for ``high quality'' jaguar habitat to exist in the American
Southwest and within 20 km (12.4 mi) by use of this rule everywhere
else in the area proposed as critical habitat for jaguar. This water
requirements for jaguars described in the proposed rule raise water
resources issues that require active cooperation between the Service
and local governmental entities to resolve in concert with the
development of critical habitat for the jaguar under section 2(c)(2) of
the Act. The Service has refused, and is continuing to refuse, to
resolve water resource issues associated with the designation of
critical habitat for jaguar.
Our response: We recognize our responsibilities under section
2(c)(2) of the Act to cooperate with State and local agencies to
resolve water resource issues in concert with conservation of
endangered species, such as the jaguar. We look forward to working with
the water resource agencies to resolve any such issues. However, this
cooperation is, for the most part, independent of our requirement under
section 4(a)(3)(A) of the Act to designate critical habitat for the
jaguar. Impacts to water management and resource activities are not
expected to be controversial because, as discussed in the analysis of
impacts on water resources, the constraints on current water management
activities are expected to be limited (Mangi Environmental Group 2013).
(151) Comment: Executive Order 13563 of January 18, 2011 (Improving
Regulation and Regulatory Review), explicitly states that our
``regulatory system must protect public health, welfare, safety, and
our environment while promoting economic growth, innovation,
competitiveness, and job creation.'' Consistent with this mandate,
Executive Order 13563 requires agencies to tailor ``regulations to
impose the least
[[Page 12632]]
burden on society, consistent with obtaining regulatory objectives.''
It also requires agencies to ``identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice'' while selecting ``those approaches that maximize net
benefits.'' To the extent permitted by law, our regulatory system must
respect these requirements.
Our response: We have followed, and will continue to follow, the
directives in Executive Order 13563. As part of the process to
designate critical habitat, we have completed an economic analysis on
the potential incremental impacts of the designation. Critical habitat
only affects Federal actions through a requirement to consult on those
actions that may affect critical habitat to ensure they do not
adversely modify critical habitat.
(152) Comment: Lands within the critical habitat areas already have
land protection due to Federal or Tribal ownership or local land
management plans. In contrast, we also received comments stating that
the lands within critical habitat areas are not protected adequately
for jaguar conservation.
Our response: We recognize that some lands within the designation
are already being managed for conservation purposes that provide some
benefits to the jaguar. Section 4(b)(2) of the Act states the Secretary
may exclude an area from critical habitat if she determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless she 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 Secretary has broad discretion
regarding which factor(s) to use and how much weight to give to any
factor. In the proposed rule we acknowledge that some areas within the
proposed designation are included in management plans or other large-
scale habitat conservation plans including the Forest Service, National
Park Service, Fish and Wildlife Service refuge, Bureau of Land
Management, Malpai Habitat Conservation Plan, Pima County's Draft
Multi-Species HCP, State Wildlife Action Plans, and Jaguar Conservation
Agreements between the Arizona Game and Fish Department and New Mexico
Department of Game and Fish. However, these plans do not specifically
address jaguar habitat.
In the proposed rule we noted that we were considering exempting
Fort Huachuca and excluding the Tohono O'odham Nation. We have reviewed
the comments from the public on these matters. We have determined that
the benefits of excluding the Tohono O'odham Nation outweigh the
benefits of inclusion. In regards to Fort Huachuca, the Service has
exempted Fort Huachuca from critical habitat designation based on their
INRMP. See the Exemptions and Exclusions sections of this final rule
for additional information.
(153) Comment: The jaguar is already protected in the United States
by both Federal and State laws.
Our response: The jaguar does already receive some protection under
the Act as a Federally listed species. However, the Service has
determined that designation of critical habitat for the jaguar is
prudent and determinable based on the best available scientific data
available. Section 4(a)(3)(A) of the Act states that critical habitat
shall be designated for endangered and threatened species to the
maximum extent prudent and determinable. Therefore, we are required to
designate critical habitat for the jaguar to fulfill our legal and
statutory obligations. See our response to comment number 1 in the Peer
Reviewer Comments above. Further, critical habitat does afford
protection to the jaguar through section 7 consultation under 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. 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. Therefore, actions that are funded, permitted, or
carried out by a Federal agency within jaguar critical habitat will
continue to be evaluated to determine their impacts on critical
habitat.
(154) Comment: The primary threat to jaguars is through hunting and
other activities that ``take'' individuals, not habitat fragmentation.
Our response: As discussed in the Special Management Considerations
or Protections section of this final rule, there are threats to the
physical or biological feature essential to the conservation of jaguar
habitat that may require special management. Jaguar habitat and the
features essential to their conservation are threatened by the direct
and indirect effects of increasing human influence into remote, rugged
areas, as well as projects and activities that sever connectivity to
Mexico. In the past, the primary threat to jaguars in the United States
was illegal shooting (see listing rule for a detailed discussion);
however, this is no longer accurate, as the most recent known shooting
of a jaguar in Arizona was in 1986 (Brown and Lopez Gonz[aacute]lez
2001, p. 7). Please see the 1997 clarifying rule (62 FR 39147; July 22,
1997) and the Recovery Outline for the Jaguar (Jaguar Recovery Team
2012, entire) for more information about threats to jaguars.
(155) Comment: The designation of private lands as critical habitat
will affect private property rights. Specifically, designated critical
habitat will limit the use and enjoyment of the property, impact
ongoing maintenance and improvement, limit or modify ranching
practices, and curtail other legal uses of the property. Designating
critical habitat for the jaguar will result in regulatory takings of an
individual's livelihood and, ultimately, his or her property.
Our response: As stated in our proposed rule, the Service has
followed Executive Order 12630 (``Government Actions and Interference
with Constitutionally Protected Private Property Rights''). The
designation of jaguar critical habitat is not anticipated to have
significant takings implications for private property rights. As
discussed in the Critical Habitat section of this final rule, the
designation of critical habitat affects only Federal actions. 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. Due to current public knowledge of the species' protections
and the prohibition against take of the species both within and outside
of the proposed areas, we do not anticipate that property values would
be affected by the critical habitat designation. Our economic analysis
for proposed critical habitat designation found only limited
incremental impacts of the designation and extremely small impacts on
activities on private lands.
(156) Comment: It was inappropriate to use roads as a natural
boundary to designate jaguar critical habitat.
Our response: We did not use roads as a natural boundary to
designate critical habitat. Instead, critical habitat units are defined
by the PCEs around which they are based, one of which includes roads as
part of the human influence on the landscape (the Human Influence
Index), but the use of roads in the definition of critical habitat
units is only to give context to the location of the unit, not as the
official unit
[[Page 12633]]
description. See the maps for the official boundaries themselves.
(157) Comment: The Service should acknowledge that new jaguar
observations within the United States could lead to revisions in the
designation of critical habitat.
Our response: We acknowledge that the Act authorizes the Service to
make revisions to designated critical habitat. If in the future the
best available information at that time indicates revision of critical
habitat is appropriate, and if resources are available we may revise
this critical habitat designation.
(158) Comment: The Service incorrectly stated that jaguars in the
United States and northwestern Mexico represent the northernmost extent
of the jaguar's range, with populations persisting in distinct
ecological conditions demonstrated by xeric (extremely dry) habitat
that occurs nowhere else in the species' range (Sanderson et al. 2002,
entire). Sanderson et al. (2002, p. 64) does briefly mention the
persistence of the populations in arid regions in Sonora, but also
identifies areas in Venezuela and Brazil as xeric habitat that jaguars
currently inhabit (Sanderson et al. 2002, Table 2). The populations in
Venezuela and Brazil have shorter and more numerous corridors to
connect populations in this area, thus facilitating gene flow. This
contradicts the Service's assertion that jaguars in the United States
are important sources of genetic resources, and, therefore,
connectivity to Mexico is essential to the conservation of the jaguar.
Our response: We have modified this language in this final rule.
See the Jaguar Recovery Planning in Relation to Critical Habitat
section above in this final rule.
(159) Comment: The Service provided no evidence that population
genetic resilience or persistence will be improved for jaguars by
designating critical habitat in the United States. No empirical
evidence was presented in the proposed designation that jaguars
observed in the United States represent a genotype different from the
closest breeding population of jaguars 209 km (130 miles) to the South
in Mexico.
Our response: As described in this final rule, jaguars in the
United States and northwestern Mexico represent the northernmost extent
of the jaguar's current range, representing a population persisting in
one of only four distinct xeric (extremely dry) habitats that occur
within the species' range (Sanderson et al. 2002, Appendix 1). We did
not determine that jaguars in the United States represented a different
genotype than those from the closest breeding population in Mexico;
rather, jaguars in the United States are likely dispersing from the
nearest breeding population in Mexico, and the conservation role or
value of jaguar critical habitat is to provide areas to support these
individuals during transient movements by providing patches of habitat
(perhaps in some cases with a few resident jaguars), and as areas for
cyclic expansion and contraction of the nearest core area and breeding
population in the Northwestern Recovery Unit.
(160) Comment: The critical habitat designation and the direction
outlined in the Recovery Outline relies on connectivity to Mexico for
the recovery of jaguars, but this connectivity may be impacted by
current and potential future border security efforts, primarily efforts
to secure the international border with Mexico through the use of
various types of fencing, towers, lighting, and roads. The Service
incorrectly presumes that border security infrastructure will not
continue.
Our response: We acknowledge that there may be some potential
impacts related to border security infrastructure and maintaining
habitat connectivity for jaguars between the United States and Mexico.
However, as indicated in the proposed rule and this final rule, there
are critical habitat areas that are not impacted by existing border
infrastructure and which continue to provide habitat connectivity to
Mexico. These areas are typically very steep and rugged and not
conducive to the construction of fences or roads. We do not anticipate
that additional fencing or roads will be constructed in designated
critical habitat due to the prohibitive cost and engineering
constraints. If such projects are proposed, the designation of critical
habitat will provide a regulatory layer of evaluation that will allow
us to work with Federal agencies and landowners to resolve issues
related to border security, but also ensure that the elements of jaguar
critical habitat are maintained and functioning to the extent that the
law allows, and that will facilitate cross-border movements by jaguars.
(161) Comment: Critical habitat designation along the U.S.-Mexico
border is in conflict with national security and continued border
security efforts and is not prudent. It appears that the Service wants
to stop the Border Patrol from protecting our borders, restrict or
completely halt road widening and construction of roadways, powerlines,
pipelines, etc., and restrict or completely halt all mineral extraction
and mining.
Our response: We do not anticipate that the designation of critical
habitat for the jaguar will prevent the implementation of solutions
that address national security. Further, environmental laws and
regulations related to the expeditious construction of border
infrastructure in areas of high illegal entry may be waived by the
Secretary of DHS. We will continue to comply with directives related to
border security and work with the Federal agencies involved in border
security through existing processes, including section 7 consultation.
If the consideration of environmental laws and regulations is waived in
order to address national security, we will continue to work with the
Federal agencies to incorporate measures into infrastructure design and
construction that will avoid or minimize effects of these actions on
jaguar habitat connectivity. In regards to the designation of critical
habitat not being prudent, see our response to comment number 1 in the
Peer Reviewer Comments above.
(162) Comment: Existing agreements, such as the Memorandum of
Understanding (MOU) between the Coronado National Forest (CNF) and
Customs and Border Protection (CBP), are adequate to resolve
environmental issues and reduce impacts to national security, and there
is no need for the designation of critical habitat for the jaguar.
Our response: Based on the best available scientific data
available, the Service has determined that designation of critical
habitat for the jaguar is prudent and determinable. See our response to
comment number 1 in the Peer Reviewer Comments above.
(163) Comment: The Service should not exclude mining claims from
critical habitat. The Service should forbid mining within critical
habitat. All PCEs (and particularly connectivity to Mexico) will be
impacted by mining, causing further habitat fragmentation.
Our response: We are not excluding mining claims from critical
habitat. 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. See our response to
comment number 64 above in Comments from States for discussion on
exclusions, and see our response to comment number 71 in Public
Comments for discussion on excluding the Rosemont Mine. Rather, all
projects with a Federal nexus proposed within jaguar critical habitat
in the United States will be evaluated on a case-by-
[[Page 12634]]
case basis with respect to section 7 of the Act.
The conservation value of the Rosemont Mine area is important to
the jaguar for maintaining connectivity with the other critical habitat
units and with Mexico. Regarding the Hermosa project, although it is
too early to begin a section 7 consultation because the project is
still in the early planning stages, the economic impacts are expected
to be much the same as for Rosemont Mine. The Hermosa project is in the
same occupied unit and, therefore, incremental costs are expected to be
low. The conservation value of this area for the jaguar may be even
greater than for the Rosemont area because the Hermosa project is only
9 miles north of the U.S.-Mexico border, meaning that this area is very
important for maintaining connectivity to Mexico.
Unlike more permanent habitat alterations such as building
construction and asphalt paving, mines are temporary habitat
disturbances and their effects can be mitigated following their
economic lifespan. The economic life of Rosemont Mine is forecast to be
21 years, after which time conservation measures such as restoration of
surface springs and revegetation of the mine reclamation area would
take place. The Rosemont Mine area of critical habitat can be an
important tool for promoting conservation of the jaguar and will
continue to have conservation value for the species post-reclamation.
(164) Comment: The essential element of water within 20 km (12.4
mi) of each other is not met without relying on livestock water tanks
created on ranch lands.
Our response: We acknowledge that in some cases water sources may
be stock tanks, which may be used by any number of wildlife, including
jaguars. Many stock tanks, however, are not included in the USGS NHD
data layer, and other sources of water are available across the
landscape, as well. We also understand that the availability of water
across the landscape during the year is variable, based on a variety of
climatic factors and ranch management practices. Even with the
variability, and the fact some water sources may be provided by stock
tanks, the best available scientific data provided by the USGS NHD data
layer indicates that there is sufficient water available for jaguars
within the final critical habitat designation.
(165) Comment: Jaguars and livestock ranching are not compatible.
Our response: The jaguar is already present in the United States
(see Table 1 in this final rule) and protected under the Act as a
listed species. Designation of critical habitat does not change the
status of the species, nor does it imply that we are proposing to
introduce jaguars into these areas or that critical habitat is being
designated with the expectation that a jaguar population will
eventually reside in these areas. As discussed in the proposed rule and
this final rule, the purpose of designating critical habitat in the
United States is to provide areas for transient jaguars (with possibly
a few residents) to support the nearest breeding area to the south,
allowing this population to expand and contract, and, ultimately,
recover. It is our intent that the designation of critical habitat will
protect the functional integrity of the features essential for jaguar
life-history requirements for this purpose into the future.
In terms of cattle depredation due to jaguars, we understand this
may occur, and are aware of one recent (2007) jaguar depredation event
in the United States in the Altar Valley area (McCain and Childs 2008,
pp. 4-5). The designation of critical habitat does not alter or
increase this possibility. We are aware, however, of the concern that
cattle depredations may occur in the future, and we are working with
the Jaguar Recovery Team to develop strategies to avoid these types of
conflicts. We will include these strategies and actions in the draft
Recovery Plan for the Jaguar.
In addition, 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. See the Critical
Habitat section of this final rule for further information on critical
habitat designation.
(166) Comment: The Service should increase the range of canopy
cover used to delineate critical habitat (which was 3-40 percent in the
proposed rule).
Our response: In the revised rule and this final rule the Service
increased the range of canopy cover to greater than 1 to 50 percent
tree cover. Sanderson and Fisher (2011, p. 7; 2013, pp. 5-6) also added
a digital layer to capture canopy cover (called land cover in the
reports), as represented by a digital layer called tree cover. In the
latest version of the model (version 13), Sanderson and Fisher (2013,
p. 20) analyzed the tree cover preferred by jaguars in the Jalisco Core
Area (the southernmost part of the Northwestern Recovery Unit)
separately from tree cover in all other areas (note that p. 15 of this
report incorrectly states that the Sinaloa Secondary Area is included
with the Jalisco Core Area in this analysis) to reflect the major
habitat shift from the dry tropical forest of Jalisco, Mexico, to the
thornscrub vegetation of Sonora, Mexico. The results of these analyses
indicate that jaguars in the southernmost part of the Northwestern
Recovery Unit (the Jalisco Core Area) seem to inhabit a wider range of
tree cover values (greater than 1 to 100 percent), whereas jaguars
throughout the rest of the Northwestern Recovery Unit (including the
United States) appear to inhabit a narrower range of tree cover values
(greater than 1 to 50 percent) (Sanderson and Fisher, p. 20).
(167) Comment: The designation should include biotic communities
other than Madrean evergreen woodland and semidesert grassland.
Our response: To define the physical and biological features
required for jaguar habitat in the United States, we are relying on
information provided by the Jaguar Recovery Team, which we consider the
best available science. This information was provided in two habitat
modeling reports, Sanderson and Fisher (2011, pp. 1-11) and Sanderson
and Fisher (2013, entire). Additionally (and as also described in our
response to comment number 43 in Comments from States above), the
Service analyzed a subset of recent, highly accurate jaguar locations
from Mexico and the United States to determine if filtering the
observations in this way would influence the frequency that these
observations occurred across the range of habitat variables.
As described in our response to comment number 43 in Comments from
States above, the results of our additional analysis indicate that the
overall pattern in frequency of jaguar observations using these highly
accurate locations relative to the habitat variables is similar to the
patterns observed using the entire data set used for version 13 of the
habitat model (Sanderson and Fisher 2013, entire). Specifically related
to tree cover and biotic communities, 95 percent of these highly
accurate locations are found in greater than 1 to 50 percent tree cover
(for all jaguar observations except those in the southernmost part of
the Northwestern Recovery Unit), and, within the United States, 95
percent (of the 44 locations
[[Page 12635]]
total within the United States) are within Madrean evergreen woodland
(43 percent) and semidesert grassland (52 percent). Therefore, we
determine that a tree cover of greater than 1 to 50 percent, and biotic
communities described as Madrean evergreen woodland and semidesert
grassland, comprise the vegetation PCE of the physical or biological
feature for jaguar critical habitat.
(168) Comment: The Service should include higher elevation areas as
critical habitat.
Our response: As described in this final rule, we did not include
areas higher than 2,000 m (6,562 ft) in elevation because information
provided by the Jaguar Recovery Team, which we consider the best
available science, indicates that areas above 2,000 m (6,562 ft) do not
provide jaguar habitat, as only 3.3 percent (15 of 453) of the
observations utilized in the most recent jaguar habitat modeling effort
occur above this elevation (Sanderson and Fisher 2013, pp. 19, 29; note
that p. 19 incorrectly states 20 observations above 2,000 m (6,562 ft)
instead of 15, and Table 1.3 incorrectly states 452 jaguar observations
total instead of 453). Consequently, our revised proposed rule and this
final rule include an upper-elevation limit of 2,000 m (6,562 ft) to
define jaguar critical habitat.
(169) Comment: Habitat conditions associated with jaguar locations
may be inaccurate because the jaguar may have been chased to that
location during a hunting event, and, therefore, the location may not
represent the habitat in which it was residing.
Our response: The Service has used the best scientific and
commercial data available as required by the Act. As described above,
we determine that the range of tree cover included in the latest
habitat model (Sanderson and Fisher 2013, entire) is not unreliable,
and that the biotic communities of Madrean evergreen woodland and
semidesert grassland provide the best, and, therefore, essential,
jaguar habitat within the United States. See our response to comment
number 43 in Comments from States above.
(170) Comment: Habitat conditions associated with jaguar locations
may be inaccurate because we did not account for the temporal variation
in habitat conditions across the timeframe of detections, and that we
instead assume that current habitat characteristics of jaguar locations
(such as canopy cover) are exactly the same as the characteristics
present at the time of detection, whereas they likely are not. The
Service should use Turner et al. (2003) as a reference for changes in
vegetation characteristics in portions of the Southwest over time.
Our response: We investigated Turner et al. (2003), and, while
informative, a method for consistently and objectively determining and
mapping the temporal vegetation changes across the entirety of southern
Arizona and southwestern New Mexico is not provided. Additionally, see
our response to comment number 43 in Comments from States above.
(171) Comment: Habitat conditions associated with jaguar locations
may be inaccurate because we excluded 30 percent of the 333 occurrences
to find that 70 percent were in areas of 3 to 60 percent tree cover.
Our response: See our response to comment number 43 in Comments
from States above.
(172) Comment: The Service should expand the categories of
ruggedness considered as critical habitat to include more level and
extremely rugged areas. Specifically, Sanderson and Fisher (2011)
graphically depict approximately 112 occurrence records in areas of
``level,'' ``nearly level,'' and ``slightly rugged'' terrain, which is
more than half of the approximately 208 occurrences in
``intermediately,'' ``moderately,'' and ``highly'' rugged terrain.
Our response: We determine that the range of terrain ruggedness
categories included in the latest habitat model (Sanderson and Fisher
2013, entire) accurately reflects the best, and, therefore, critical,
jaguar habitat in the United States. See our response to comment
numbers 43 and 63 in Comments from States above.
(173) Comment: The Service should exclude areas within 6.5 km (5
miles) of a well-used road rather than 4.5 km (2.8 miles) as discussed
in the proposed rule.
Our response: The Service did not use an exclusion area of 6.5 km
(5 miles) or 4.5 km (2.8 miles) around well-used roads in the proposed
rule, and we are not using such parameters in this final rule. In the
proposed rule we evaluated the best available scientific data,
including Zarza et al. (2007, pp. 107, 108), which reported that towns
and roads had an impact on the spatial distribution of jaguars in the
Yucatan peninsula, where jaguars used areas located more than 6.5 km (4
mi) from human settlements and 4.5 km (2.8 mi) from roads. However, we
did not use this data to develop our PCE for human disturbance. The
Service identified a PCE characterized by minimal to no human
population density, no major roads, or no stable nighttime lighting
over any 1 km\2\ (0.4 mi\2\) area. This is based on the HII used in the
habitat model developed by Sanderson and Fisher (2011, pp. 5-11, 2013
p. 6). In the latest version of the habitat model (Sanderson and Fisher
2013, entire), jaguar habitat was partly defined by an HII of less than
20 in the northernmost part of the Northwestern Recovery Unit.
Additionally (and as also described in our response to comment number
43 in Comments from States above), the Service analyzed a subset of
recent, highly accurate jaguar locations from Mexico and the United
States to determine if filtering the observations in this way would
influence the frequency that these observations occurred across the
range of habitat variables.
(174) Comment: Future roads and transmission lines could cause
habitat fragmentation.
Our response: The Service recognizes that an increase in road
density and human settlements tends to fragment habitat and isolate
populations of jaguars and other wildlife (Noss et al. 1996 and Carroll
et al. 2001, as cited by Menke and Hayes 2003, p. 12). However, in our
economic analysis, no major roads or transmission lines were identified
within jaguar critical habitat. Further, future road and transmission
lines with a Federal nexus proposed within jaguar critical habitat in
the United States will be evaluated on a case-by-case basis with
respect to section 7 of the Act.
(175) Comment: Critical habitat units that are to provide
continuous habitat within the United States and subunits that are to
provide connectivity to Mexico are crossed by roads with high traffic
volumes and do not meet the Service's PCEs.
Our response: The Service recognizes that jaguar critical habitat
contains roads; however, the presence of roads does not preclude an
area from meeting PCE 7, pertaining to human influence. PCE 7 is
characterized by minimal to no human population density, no major
roads, or no stable nighttime lighting over any 1 km\2\ (0.4 mi\2\)
area. The PCE does not stipulate the complete absence of roads; rather
the PCE stipulates no major roads over the specified area (see https://sedac.ciesin.columbia.edu/data/set/wildareas-v2-human-influence-index-geographic/maps).
(176) Comment: Jaguars avoid human disturbance but male jaguars
readily cross roadways and areas of human activity. Areas of human
disturbance and roads do not prevent jaguars from using these areas.
Our response: In our proposed rule, the Service recognizes that
male jaguars have been documented near roads, but the data do not
indicate that this is where the majority of jaguar sightings
[[Page 12636]]
occur. Studies have also shown that jaguars selectively use large areas
of relatively intact habitat away from certain forms of human
influence. The Act requires us to determine critical habitat based on
the physical and biological features essential to the jaguar; we
determined that the most recent habitat model (Sanderson and Fisher
2013, entire), which uses the human influence index, provides the best
available scientific data to determine these features.
(177) Comment: The Service should consider the impacts of smaller
roads on wildlife, which have been well documented, in regards to how
small roads could impact jaguar critical habitat. In addition to
negative impacts on wildlife, primitive roads damage soils, vegetation,
air quality, water quality, and archeological artifacts, and introduce
noxious, nonnative species into forests where they often out-compete
native species. The environmental effects of roads, road density, and
off-road recreational activity are not individual, but rather
cumulative and synergistic because seemingly small, individual impacts
may result in large-scale changes in the reproductive success and
survival of organisms, thereby altering the ecology of an area.
Our response: While the Service did not specifically consider
impacts of smaller roads, the Service used the human influence index
(HII), which is characterized by minimal to no human population
density, no major roads, or no stable nighttime lighting over any 1-
square-km (0.4-square-mi) area. This is based on the HII used in the
habitat model developed by Sanderson and Fisher (2011, pp. 5-11, 2013
p. 6). In the latest version of the habitat model (Sanderson and Fisher
2013, entire), jaguar habitat was partly defined by an HII of less than
20 in the northernmost part of the Northwestern Recovery Unit.
Additionally (and as also described in our response to comment number
43 in Comments from States above), the Service analyzed a subset of
recent, highly accurate jaguar locations from Mexico and the United
States to determine if filtering the observations in this way would
influence the frequency that these observations occurred across the
range of habitat variables.
The results of our additional analysis indicate that the overall
pattern in frequency of jaguar observations using these highly accurate
locations relative to the habitat variables is similar to the patterns
observed using the entire data set used for the updated habitat model
(Sanderson and Fisher 2013, entire). Specifically related to HII, 97
percent are located in areas where the HII is less than 20, which is
the range of HII that the Jaguar Recovery Team determined to provide
the best jaguar habitat in the northernmost portion of the proposed
Northwestern Recovery Unit. Therefore, based on this information, we
identify areas in which the HII calculated over 1-square km (0.4-square
mi) is 20 or less as an essential component of the physical or
biological feature essential for the conservation of the jaguar in the
United States. These areas are characterized by minimal to no human
population density, no major roads, or no stable nighttime lighting
over any 1-square km (0.4-square mi) area. We consider that the human
influence PCE, as determined by the Human Influence Index, adequately
captures the impact of roads (see https://sedac.ciesin.columbia.edu/data/set/wildareas-v2-human-influence-index-geographic/maps).
(178) Comment: Since jaguar recovery in the United States is
contingent upon recovery in Mexico, it is important to ensure that any
United States Federal activities do not jeopardize the jaguar,
adversely modify its habitat, or destroy its habitat in Mexico. To the
extent that the Mexican Government has identified jaguar habitat that
is critical to the species, the United States should incorporate that
designation by reference in its critical habitat designation, as well
as any eventual recovery plan for the species. And where an agency
action could result in jeopardy or potentially adversely modify habitat
in Mexico, that agency must consult with the Service.
Our response: We do agree that conservation of the jaguar and its
habitat in Mexico is vital to its recovery. Therefore, we will continue
to work with our partners in Mexico toward conservation of the species
there. Our regulations for critical habitat designation (50 CFR
424.12(h)) specifically preclude designation of lands outside of the
U.S. jurisdiction. Therefore, we did not designate any areas in Mexico
as critical habitat. In addition, our section 7 consultation
implementing regulations (50 CFR 402.01) limit the definition of an
action to all activities or programs of any kind authorized, funded, or
carried out, in whole or in part, by Federal agencies in the United
States or upon the high seas. Therefore, we do not consult on Federal
actions outside of these areas.
Exclusions and Exemptions
(179) Comment: The Service should exclude the City of Sierra Vista.
Our response: Critical habitat does not include developed areas
such as lands covered by buildings, pavement, and other structures
because such lands lack the physical or biological feature necessary
for jaguars. 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 final rule
have been excluded by text in the rule and are not designated as
critical habitat.
(180) Comment: The interests of national security and economic
stability outweigh benefits of critical habitat designation.
Our response: The Service has conducted an analysis of impacts to
national security and economics. The results of this analysis indicate
that designation of critical habitat will not affect national security
or economics. A copy of the final economic analysis with supporting
documents may be obtained by contacting the Arizona Ecological Services
Fish and Wildlife Office (see ADDRESSES) or by downloading from the
Internet at https://www.regulations.gov. See the Application of Section
4(b)(2) of the Act section of this final rule.
(181) Comment: The Service should exclude Cochise County because
the Cochise County Comprehensive Plan (amended in 2011) already
provides habitat conservation for the jaguar making critical habitat
unnecessary.
Our response: Critical habitat does not include developed areas
such as lands covered by buildings, pavement, and other structures
because such lands lack the physical or biological feature necessary
for jaguars. 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 final rule
have been excluded by text in the rule and are not designated as
critical habitat.
(182) Comment: The Service should exclude the residential
subdivision located east of State Highway 83 in Subunit 4b (formerly
within Subunit 4b, now within Unit 3). Excluding these areas will not
cause the species' extinction.
Our response: Critical habitat does not include developed areas
such as lands covered by buildings, pavement, and other structures
because such lands lack the physical or biological feature necessary
for jaguars. 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
[[Page 12637]]
such lands inadvertently left inside critical habitat boundaries shown
on the maps of this final rule have been excluded by text in the rule
and are not designated as critical habitat.
NEPA
(183) Comment: The Service should complete a full environmental
impact analysis because of the degree to which the action may establish
a precedent for future actions with significant effects or represents a
decision in principle about a future consideration.
Our response: The designation of critical habitat by the Service
for the conservation of endangered species is not a precedent-setting
action with significant effects. The agency has designated critical
habitat for numerous other species.
(184) Comment: The Service should complete a full environmental
impact analysis because the Service re-defines the time of listing as a
50-plus-year time period, which is arbitrary and capricious.
Our response: The time of listing (for the purpose of determining
whether it can be properly considered critical habitat) has no
relevance in evaluating impacts to the human environment. In the
context of an environmental assessment, the evaluation of the impacts
of critical habitat designation focuses on outcomes of the potential
increase in section 7 consultations resulting from the designation,
since the designation does not itself produce or authorize direct
physical impacts. For the jaguar, the Service's classification of
whether a particular area was occupied at the time of listing or not
(for the purpose of determining whether it can be properly considered
critical habitat) has no relevance to determining section 7
consultation outcomes and the impacts of critical habitat designation.
Given the secretive and transient nature of the jaguar, Federal land
managers currently take steps to protect the jaguar even without
critical habitat in areas that are considered by the Service to be both
occupied and unoccupied at the time of listing. In determining whether
there is a possibility that a project or action would jeopardize the
species, the Service considers what impact may occur to actual members
of the species. In a section 7 context, it does not matter whether the
area in question was occupied at the time of listing or whether it was
occupied at a later time; the key question is whether the geographical
area is occupied at the time the section 7 consultation is conducted.
Therefore, because of current Federal land management practices, the
Service does not anticipate that designation of critical habitat would
result in consultations that would not otherwise take place for
jeopardy analysis in all designated critical habitat areas.
(185) Comment: The draft environmental assessment is inadequate
because it fails to consider reasonable alternatives submitted by the
public and provide reasons for eliminating these recommendations from
further study.
Our response: Although section 102 (C)(iii) of NEPA requires us to
consider alternatives to the proposed action, we are not required to
consider every possible alternative. Rather, we consider a reasonable
range of alternatives, which include those considered to be practical
and feasible from a technical standpoint. The environmental assessment
evaluates the environmental effects of three alternatives. These
alternatives include the no action alternative (no designation of
critical habitat), designation of critical habitat in all areas that
meet the definition of critical habitat, and designation of critical
habitat in all areas where the benefits of exclusion do not outweigh
the benefits of inclusion. We are required to consider the ``no
action'' alternative, and the two action alternatives are the only
feasible alternatives that we consider under NEPA while still meeting
our requirements under the Endangered Species Act. Therefore, the range
of alternatives we considered in the environmental assessment is
adequate under the procedural requirements of NEPA and the Council on
Environmental Quality's Regulations for Implementing the Procedural
Provisions of NEPA (40 CFR 1500-1518).
(186) Comment: The draft environmental assessment is inadequate
because it fails to meet the NEPA standard of balanced multiple use
management.
Our response: There is not a balanced multiple use management
standard under NEPA.
(187) Comment: The draft environmental assessment is inadequate
because it fails to analyze impacts on the human environment.
Our response: The draft environmental assessment does analyze
impacts to the human environment and is adequate. The primary purpose
of preparing an environmental assessment under NEPA is to determine
whether a proposed action would have significant impacts on the human
environment. If significant impacts may result from a proposed action,
then an environmental impact statement is required. Whether a proposed
action exceeds a threshold of significance is determined by analyzing
the context and the intensity of the proposed action (40 CFR 1508.27).
Context refers to the setting of the proposed action and potential
impacts of that action. The context of a significance determination may
be society as a whole (human, national), the affected region, the
affected interests, or the locality. Intensity refers to the severity
of the impacts. Under regulations of the Council of Environmental
Quality (CEQ), which is responsible for ensuring compliance with NEPA,
intensity is determined by considering 10 criteria (40 CFR 1508.27(b)).
See chapter 4 of the draft environmental assessment for a list of these
10 criteria. Based on the draft environmental assessment, the
designation of critical habitat for the jaguar will not have
significant impacts on the human environment.
(188) Comment: The draft environmental assessment is inadequate
because it fails to accurately classify recreational use of most
critical habitat.
Our response: In the environmental assessment we recognize that
recreational areas in the proposed critical habitat exist on tribal
lands (Tohono O'odham Nation); Federal and State-owned lands, including
Coronado National Forest, BLM lands, Buenos Aires National Wildlife
Refuge (NWR), Coronado National Memorial, and Arizona State lands.
Further, we identify several types of recreational activities that take
place in or near proposed critical habitat areas for the jaguar, such
as hiking, hunting, boating, swimming, birding, wildlife viewing,
photography, sight-seeing, pleasure-driving, angling, camping,
horseback riding, and off-highway vehicle use. Level of use and type of
activity vary by site characteristics, landownership, management
policy, and accessibility. The National Visitor Use Monitoring program
provides estimates of the volume and characteristics of recreation
visitation to the National Forest System. A National Forest Visit is
defined as the entry of one person upon a national forest to
participate in recreational activities for an unspecified period of
time. The most recent annual visitation data estimates 2,793 annual
visits to the Coronado National Forest (IEc 2013, p. 14).
The activity most likely to be impacted by the designation of
critical habitat is OHV use. OHV use is authorized on certain roads
that pass near proposed critical habitat in Coronado National Forest,
especially in units 2, 3, and 5. All of the Coronado National Forest
recreational areas are within or adjacent to units 2, 3, and 5. Most of
the proposed habitat segments
[[Page 12638]]
receive relatively low-level recreational use because of their
remoteness and/or difficult terrain. Many of these roads are used
primarily to access dispersed camping (IEc 2013, p. 14).
On the single NWR within proposed critical habitat (the Buenos
Aires NWR, in Pima County, Arizona), popular recreational activities
include camping, picnicking, mountain biking, horseback riding, hiking,
and backpacking. Motorized vehicles are restricted to roadways. Hunting
is permitted on approximately 90 percent of the refuge and is subject
to both Refuge and Arizona State Hunting Regulations. Recreational uses
in the NWR will likely increase with population growth in southern
Arizona and in light of the stated goal of the 2003 Comprehensive
Conservation Plan (CCP) to provide safe, accessible, high-quality
wildlife-dependent recreational opportunities.
On BLM land, Coronado National Forest, Fort Huachuca, and Buenos
Aires NWR, there could potentially be minor adverse impacts from
critical habitat designation on some recreational opportunities and
activities within designated critical habitat (e.g., OHV use) from the
limitations and restrictions imposed on recreational activities to
preserve PCEs. However, other recreational activities and opportunities
would be enhanced, and could benefit from critical habitat designation
(e.g., birdwatching, wildlife viewing, day hiking), because of
increased habitat conservation.
Because modifications to the PCEs of critical habitat are closely
tied to adverse effects to the species, current activities and
activities that would trigger consultation for critical habitat are
largely the same. Both the adverse and beneficial effects of critical
habitat designation on recreation-related activities are expected to be
minor because recreational use of most critical habitat areas is light
and (1) new consultations based solely on the presence of designated
critical habitat are unlikely, because land managers are already
consulting on jaguar throughout the proposed critical habitat areas;
and (2) the likelihood that reasonable and prudent alternatives
developed under the jeopardy standard would be changed substantially
with the addition of critical habitat designation and application of
the adverse modification standard is small. Additional information is
provided in the final environmental assessment section 3.11.
(189) Comment: The draft environmental assessment is inadequate
because it fails to evaluate significant economic impacts due to water
restrictions within the proposed designation of critical habitat.
Our response: In the context of an environmental assessment, the
evaluation of the impacts of critical habitat designation focuses on
outcomes of the potential increase in section 7 consultations resulting
from the designation, since the designation does not itself produce or
authorize direct physical impacts. A separate analysis was conducted by
Industrial Economics Incorporated (IEc 2013) to assess the potential
economic impacts associated with designation of critical habitat for
the jaguar. Where appropriate, information from the draft economic
analysis has been incorporated into the environmental assessment.
(190) Comment: The draft environmental assessment is inadequate
because it fails to evaluate the level of controversy if the Rosemont
Mine is constructed. The Service should complete a full environmental
impact statement because of the controversial nature of the proposed
action.
Our response: The environmental assessment evaluates impacts from
the designation of critical habitat, not the impacts of the mine. The
impacts from the designation of critical habitat for the jaguar are not
likely to be highly controversial because the quality of the
environment would not be significantly modified from current
conditions. This analysis was based on past consultations, past impacts
of jaguar conservation on activities within the jaguar recovery area,
and the likely future impacts from jaguar conservation. Past section 7
consultations within designated critical habitat would likely be re-
initiated. New activities could result in section 7 consultations. New
consultations in unoccupied jaguar territories could be triggered. A
number of activities, including wildland fire, fire management, and
recreation could have jaguar conservation-related constraints or
limitations imposed on them, although such measures would likely be the
same as those under jeopardy consultations for the species. Impacts to
water management and resource activities are not expected to be
controversial because, as discussed in the analysis of impacts on water
resources, the constraints on current water management activities are
expected to be limited.
The Service understands that, given the prior history of
designation, some level of controversy may result, especially if the
outcome of the Service's consultation on the Rosemont Copper Mine leads
to significant delays, re-evaluation, or termination of the project.
However, the Rosemont Copper Mine biological opinion has been
completed, and the Service determined that the mine would not result in
destruction or adverse modification of jaguar critical habitat.
(191) Comment: The Service should complete a full environmental
impact statement to be in compliance with the 10th Circuit decision.
Our response: The U.S. Court of Appeals for the Tenth Circuit
stipulates we undertake a NEPA analysis for critical habitat
designation and notify the public of the availability of the draft
environmental assessment for a proposal when it is finished. The
Service has complied with this requirement. See our response to comment
67 in Comments from the States under NEPA.
(192) Comment: The draft environmental assessment is inadequate
because it fails to evaluate safety to our children, people, livestock,
and pets.
Our response: The environmental assessment does evaluate safety.
Foreseeable activities with potential risks to public health and safety
include mining operations and activities related to fire management,
particularly in the wildlife-urban interface (WUI) areas and areas
where vegetation fuel loading has created conditions for catastrophic
fire. There would be no or negligible impacts to public health or
safety from the proposed designation of critical habitat. Impacts of
wildland fire on public health and safety were determined to be minor,
as wildland fire suppression and wildland fire management within WUI
areas would not be significantly impeded by the designation of critical
habitat. The designation would not create or lead to additional mining
operations, or the deposition of pollutants to the air or water. Border
enforcement activities would still be conducted within proposed
critical habitat, pursuant to section 102 of the Illegal Immigration
Reform and Immigrant Responsibility Act, under which the Secretary of
the DHS is authorized to waive laws where the Secretary of DHS deems it
necessary to ensure the expeditious construction of border
infrastructure in areas of high illegal entry.
(193) Comment: The draft environmental assessment is inadequate
because it fails to evaluate tribal customs and cultures, and economy.
Our response: This critical habitat designation is not likely to
affect sites, objects, or structures of historical, scientific, or
cultural significance. The proposed designation would not result in any
ground-disturbing activities that have the potential to affect
archeological or other cultural resources. There are
[[Page 12639]]
several National Register of Historic Places listed historical sites
within, or within close range of, critical habitat units, but they are
human-built structures, which the proposed designation specifically
avoids. Potential conservation measures or project modifications to
protect critical habitat PCEs would not modify or pose risk of harm to
any historic properties listed in or eligible for the NRHP.
(194) Comment: The Service should complete a full environmental
impact statement because the action significantly affects the quality
of the human environment.
Our response: Under the Council on Environmental Quality (CEQ)
regulations, 40 CFR 1508.27, the determination of ``significant''
impacts, for the purpose of determining whether a more detailed
environmental impact statement must be prepared, requires consideration
of both context and intensity. Potential impacts on environmental
resources, both beneficial and adverse, would be minor. Impacts of
critical habitat designation on natural resources within the areas to
be designated as jaguar habitat were analyzed and discussed in Chapter
3 of the draft environmental assessment. Applying the analysis of
impacts to the significance criteria defined in CEQ regulations, the
Service concludes that the adverse impacts of critical habitat
designation would not be significant.
(195) Comment: The Service should complete a full environmental
impact statement because the economic impacts on the local, state, and
national economies.
Our response: Indirect socioeconomic impacts faced by project
proponents, land managers, and landowners could include time delays,
regulatory uncertainty, and stigma. However, the environmental
assessment concludes that these are considered indirect, incremental
impacts of the designation. See Chapter 3, Section 3.10 for a complete
description of socioeconomics.
(196) Comment: The Service should complete a full environmental
impact statement because adverse impacts of the proposed designation
outweigh benefits.
Our response: The primary purpose of preparing an environmental
assessment under NEPA is to determine whether a proposed action would
have significant impacts on the human environment. The purpose of the
proposed action is to designate critical habitat for the jaguar, listed
as endangered under the Act. Critical habitat designation would have
long-term, beneficial, conservation-related impacts on jaguar survival
and recovery through maintenance of PCEs. Potential impacts to
environmental resources, both beneficial and adverse, would be minor or
moderate in all cases. Analyses of impacts of critical habitat
designation on sensitive resources within areas proposed as jaguar
critical habitat were conducted and discussed in Chapter 3 of the draft
environmental assessment, and it was concluded that designation of
critical habitat would have both adverse or beneficial impacts on those
resources. None of the specific resource or activity analyses found
that the adverse impacts of critical habitat designation would be
significant.
(197) Comment: The Service should complete a full environmental
impact statement because the degree of impacts on health and safety are
significant if Fort Huachuca is not exempted and if border security is
compromised.
Our response: The Service has exempted Fort Huachuca from critical
habitat designation based on their INRMP. See the Exemptions section of
this final rule for further information. Also, see our response to
comment number 72 in Comments from States.
(198) Comment: The Service should complete a full environmental
impact statement because impacts on the unique characteristics of the
area are significant if recreation is inhibited or completely curtailed
in portions of the proposed jaguar habitat.
Our response: There are no designated Wild and Scenic River
segments within the critical habitat designation. There are designated
Wilderness Areas within the units; activities proposed by the Federal
land managers in these areas would only be those specifically intended
to improve the health of these ecosystems, and thus they would be
anticipated to help recover or sustain the PCEs along these segments.
Therefore, any adverse impacts to critical habitat would be negligible
at most.
(199) Comment: The Service should complete a full environmental
impact statement because the proposed designation would impose unique,
unknown, and uncertain risks to current water users.
Our response: The impacts do not pose any uncertain, unique, or
unknown risks. Past section 7 consultations within proposed designated
critical habitat would likely be reinitiated. New activities in
unoccupied areas would result in section 7 consultations. Conservation
constraints or limitations related to proposed designated critical
habitat would be similar to those imposed from species-related
constraints.
(200) Comment: The Service should complete a full environmental
impact statement because the proposed action is related to other
actions, which cumulatively could produce significant impacts.
Our response: There would not be any significant cumulative impacts
because, as described above in Chapter 3 of the environmental
assessment, cumulative impacts would be limited to section 7
consultation outcomes and subsequent effects on other species, the
effects of designated critical habitat for other species, and the
effects of land management plans.
The CEQ regulations define cumulative effects as ``the impact on
the environment which results from the incremental impact of the
proposed action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions'' (40 CFR 1508.7). In
the environmental assessment, we identify four other listed species
with critical habitat that overlaps with jaguar proposed critical
habitat. In the context of critical habitat, cumulative impacts could
be created if critical habitat designations for multiple species affect
the same natural and human resources. Actions that could have
cumulative impacts would include: (1) Section 7 consultation outcomes
and subsequent effects on other species; (2) the effects of designated
critical habitat for other species; and (3) the effects of land
management plans.
All of these units are already being included in consultations on
activities that may adversely impact jaguar, so there would be no new
consultations. However, while some of these areas may have undergone
some section 7 consultation for the jaguar, the fact they are now being
designated as critical habitat may require reevaluation of effects to
PCEs for ongoing or not yet completed Federal actions, which then may
require reinitiating consultation. This critical habitat designation
will likely contribute minor cumulative impacts, given the number and
nature of additional project modifications anticipated.
(201) Comment: The Service should complete a full environmental
impact statement because the proposed action might adversely affect an
endangered or threatened species or its habitat, as determined to be
critical under the Act, because fuel loads would build and catastrophic
fire potential would increase.
Our response: The designation of critical habitat for the jaguar
will not
[[Page 12640]]
result in fuel loads buildup. Fuel-management activities, either
mechanical treatments or prescribed burns, reduce the risks posed by
heavy fuels loads. They intend to restore the forest ecosystem by
reducing the risk of catastrophic wildland fire, lessening post-fire
damage, and limiting the spread of invasive species and diseases. These
activities would help maintain the jaguar PCE for greater than 1 to 50
percent canopy cover. Fuel-management and prescribed burning that are
discountable, insignificant, or wholly beneficial to the PCEs do not
require formal consultation; however, the action agency would need to
confirm their finding of no adverse impact to jaguar critical habitat
with the Service through informal consultation (Service 1998a). The
primary impact of the additional formal or informal consultations would
be increased administrative costs to the Service and action agencies.
Economics
(202) Comment: The proposed rule and the draft economic analysis
lack the actions that Federal land managers already implement to
protect jaguars in the United States.
Our response: The U.S. Bureau of Land Management (BLM), U.S. Forest
Service (USFS), U.S. National Park Service (NPS), and Service land
managers in proposed critical habitat areas already consider potential
impacts to jaguar when conducting activities within proposed critical
habitat areas. Chapter 3 of the draft economic analysis evaluates
potential economic impacts to Federal lands management, mining activity
is discussed in Chapter 5 of the analysis, border activities are
discussed in Chapter 4, and DOD lands are addressed in Chapter 8. In
support of these statements, since 1995 we have participated in 20
formal consultations on including the jaguar in Federal land management
activities, only 4 of which resulted in formal consultation on this
species. While Federal land managers have varying levels of
conservation for the jaguar, all take some conservation actions for
their lands based on the Federal Land Policy and Management Act of
1976, which states that ``. . . the public lands be managed in a manner
that will protect the quality of scientific, scenic, historical,
ecological, environmental, air and atmospheric, water resource, and
archeological values; that . . . will preserve and protect certain
public lands in their natural condition; (and) that will provide food
and habitat for fish and wildlife . . .''
(203) Comment: The draft economic analysis ignores real economic
costs by not quantifying additional conservation measures that could be
requested to avoid adverse modification during major construction
projects.
Our response: As described in section 5.2 of the draft economic
analysis, the types of conservation measures that could be requested
for major construction projects that may adversely modify or destroy
jaguar critical habitat include: creation of permeable highways; re-
vegetation and restoration of habitat; modification or elimination of
nighttime lighting; reduction of project footprint; minimization of
human presence, vehicles, and traffic; and permanent protection of
offsite habitat. The only two large-scale construction projects, the
Rosemont Mine and the Hermosa Project, are addressed in Chapter 5. The
final economic analysis has been revised based on the conclusions of
the recent biological opinion for the Rosemont Mine. At the low end,
the final economic analysis estimates costs associated with
implementation of requested conservation measures. The final economic
analysis also considers a second scenario in which Rosemont Mine
chooses not to proceed to production. Section 5.5.1 of the draft
economic analysis describes potential impacts of this scenario in terms
of lost economic revenue, tax revenue, and employment. These impacts
represent the high-end effects of foregone mine production.
(204) Comment: The draft economic analysis does not consider costs
of third-party litigation related to the finalization of the revised
proposed rule. The costs of litigation incurred by small ranchers may
be as much as $250,000 per case.
Our response: The Service does not consider the costs of litigation
surrounding the critical habitat rule itself when considering the
economic impacts of the rule. The extent to which litigation
specifically regarding critical habitat may add to the costs of the
designation is uncertain. While the critical habitat designation may
stimulate additional legal actions, data do not exist to reliably
estimate impacts. That is, estimating the number, scope, and timing of
potential legal challenges would require significant speculation.
(205) Comment: The economic impacts of critical habitat designation
will fall disproportionately on areas already under economic stress.
Specifically, the areas of concern include the City of Douglas,
Arizona; and Gila, Navajo, Greenlee, and Graham Counties in Arizona.
Our response: As described in Section 2.2 of the draft economic
analysis, at the guidance of OMB and in compliance with Executive Order
12866 ``Regulatory Planning and Review,'' the draft economic analysis
measures changes in economic efficiency in order to understand how
society, as a whole, will be affected by a regulatory action. However,
recognizing that distributive impacts may disproportionately affect
some areas, the draft economic analysis also considers impacts on small
entities; impacts on energy supply, distribution, and use; and regional
economic impacts. Substantial changes to the regional economies are not
expected for most industries within proposed critical habitat for the
jaguar. Where potential exists for regional economic impacts--for
example, if proposed mining operations do not proceed to production
because of critical habitat designation--these impacts are estimated.
In addition, the draft economic analysis provides information on the
geographic distribution of impacts by unit in order to allow the
Secretary to evaluate potential exclusions from critical habitat
designation.
(206) Comment: The jaguar is not present within Arizona, and, as
such, all economic impacts should be attributed to the designation of
critical habitat and not the listing of the species. The draft economic
analysis incorrectly characterizes costs that should be attributed to
the designation of critical habitat as costs that would occur in the
baseline due to the species' listing.
Our response: Due to the transient nature of the jaguar, land
managers may not implement conservation measures based solely on
whether the species occupies an area. Therefore, to assign costs to the
baseline or incremental scenarios in the draft economic analysis, we
contacted land managers within the proposed designation, including the
Bureau of Land Management (BLM), U.S. Forest Service (USFS), and U.S.
Customs and Border Protection (CBP), regarding possible changes to
their management approaches following the designation of critical
habitat. Where land managers already consider both the jaguar and its
habitat, we assumed that incremental conservation measures were
unlikely. For example, section 3.2.2 of the draft economic analysis
discusses that BLM already considers the potential presence of the
jaguar in all proposed critical units and subunits that fall within its
jurisdiction. Where land managers may implement different conservation
measures following the designation of critical habitat, we consider the
costs of those conservation measures to be incremental.
(207) Comment: The draft economic analysis fails to disclose that
Federal
[[Page 12641]]
and State agencies have already spent over $1.2 billion on the jaguar.
Our response: The draft economic analysis focuses on estimating
future impacts of the designation of critical habitat, and does not
retrospectively quantify baseline costs of jaguar conservation efforts.
However, the draft economic analysis does provide information on
conservation efforts that have been implemented in the past or are
likely to be implemented in the future, absent the designation of
critical habitat. The draft economic analysis does quantify future
baseline impacts, which are forecast to be approximately $1.6 million
over the next 20 years.
(208) Comment: The draft economic analysis does not describe what
steps Federal land managers already take to protect the jaguar.
Our response: Conservation efforts that may benefit the jaguar and
its habitat and are likely to be implemented in the baseline are
described separately for each economic activity. Specifically, the
second section of each activity-specific chapter in the draft economic
analysis (e.g., section 3.2, section 4.2, etc.) discusses the types of
projects that may have a Federal nexus for consultation and provides
information on conservation efforts that have been implemented in the
past or are likely to be implemented in the future, absent the
designation of critical habitat.
(209) Comment: The draft economic analysis understates the
incremental costs of consultation for the Coronado National Forest
because the consultation forecast does not include travel management
planning. These costs are instead misattributed to the CBP.
Our response: As described in Chapter 4-2 of the draft economic
analysis, best management practices for CBP include designing access
roads to minimize animal collisions and fragmentation of threatened and
endangered populations. We expect that CBP operations will continue to
adopt these best management practices following the designation of
critical habitat. Additionally, as presented in section 3.4.1 of the
draft economic analysis, we use the jaguar consultation history for the
Coronado National Forest to forecast nine formal and nine informal
consultations over the next 20 years. We assume that any travel
management planning undertaken by the Coronado National Forest will be
included in this consultation forecast.
(210) Comment: Additional clarification of impacts to activities on
BLM lands is needed. Specifically, clarification of BLM's approach to
consideration of the jaguar, ``major'' projects that could be affected
by the designation, and impacts resulting from programmatic
consultation on grazing operations on BLM lands is needed.
Our response: In developing the economic analysis, we contacted
regional land managers at relevant Federal agencies, including BLM,
regarding the agencies' current approach to jaguar conservation. Given
the transient nature of the jaguar, BLM consults with the Service
throughout the range of the jaguar in proposed critical habitat areas
under its jurisdiction, including areas that may be unoccupied. BLM
indicated that consultations expected for the foreseeable future are
likely to relate to grazing activities. BLM did not implement any
substantial changes to conservation management as a result of the
agency's most recent programmatic consultation on livestock grazing
activities, which included consideration of the jaguar. As a result,
the agency does not anticipate future management changes following the
critical habitat designation. Clarifying text has been added to section
3.2.2 to address these questions.
(211) Comment: The draft economic analysis should address impacts
to hunting, fishing, and other recreational activities.
Our response: The draft economic analysis addresses potential
impacts to recreational activities in Chapter 3 as part of the
discussion of potential impacts to Federal land management. We do not
forecast substantial changes to recreational management. Recreational
activities that do not occur on Federal lands are unlikely to have a
Federal nexus for section 7 consultation and, therefore, would not be
affected by the designation of critical habitat.
(212) Comment: Clarification as to whether use of roads and hiking
trails will be affected by the designation of critical habitat for the
jaguar is needed. The discussion of potential conservation measures,
including road closures and limitations to public access, on page 4-1
of the draft economic analysis suggests that CBP jaguar conservation
efforts could affect hiking.
Our response: The discussion cited in this comment refers
specifically to CBP roads. The potential for impacts to recreational
activities is discussed in Chapter 3 of the draft economic analysis. As
discussed in section 3.4 of the draft economic analysis, the economic
analysis does not anticipate impacts to Federal land management
activities beyond administrative costs of consultation. As a result,
impacts to hiking are not anticipated.
(213) Comment: The analysis of impacts to the mining industry
relies on industry-commissioned reports that may reflect potential
bias. The draft economic analysis does not incorporate previous studies
of the economic impact of the Rosemont Mine, such as those prepared by
Dr. Thomas Michael Power in 2010 and 2012.
Our response: The draft economic analysis would estimate regional
economic impacts of changes to the mining industry by using peer-
reviewed, third-party studies if any were available. However, such
studies do not exist. At the time the draft economic analysis was
prepared, the best available data on the regional economic
contributions of the Rosemont Mine and the Hermosa Project came from
reports commissioned by the mining industry. Chapter 5 of the draft
economic analysis acknowledges this affiliation. The final economic
analysis has been revised to incorporate the information provided via
public comment.
(214) Comment: The draft economic analysis incorrectly uses
measures of gross economic activity as an indication of economic value
of the Rosemont Mine and the Hermosa Project. These measures do not
account for the costs associated with mining operations or the
probability that production will be displaced to other mine locations.
Alternative numbers from the same studies cited in the draft economic
analysis that may provide a more reasonable estimate of the economic
value of the mines should be used.
Our response: Chapter 5 of the draft economic analysis used
measures of the increase in economic activity, as estimated by existing
economic assessments conducted for the Rosemont Mine and the Hermosa
Project, to describe the upper bound on possible economic losses.
However, the commenter is correct that these values likely overstate
the true economic impact of the loss of production. As a result, the
final economic analysis has been revised to include the numbers
suggested by this commenter, along with text describing potential
caveats to these measures. The commenter is also correct that the true
regional economic impact would account for the opportunity cost of
producing at substitute mine locations. However, information on the
location of such substitute sites is not available, and as a result,
the draft economic analysis is not able to account for these costs. The
final economic analysis has been revised to clarify and expand the
discussion of potential impacts, as well as limitations of the
analysis.
(215) Comment: The draft economic analysis does not estimate
impacts
[[Page 12642]]
associated with changes in the price of copper, silver, and manganese
that may result if mining projects are delayed or halted.
Our response: Substantial uncertainty exists regarding impacts of
the designation of critical habitat on large mining projects that could
sever connectivity to Mexico. For this reason, Chapter 5 considers two
scenarios. At the low end, we estimate costs associated with the
conservation measures requested in the recent biological opinion for
the Rosemont Mine. At the high end, we assume that the Rosemont Mine
and Hermosa Project will not proceed to production due to the high cost
of conservation measures requested to avoid adverse modification of
critical habitat. Although these scenarios result in incremental
economic impacts, costs would be incurred primarily at the local or
State levels. Although global mineral prices are not anticipated to be
affected by changes to production at these two mines, the potential
impact of changes to anticipated production at these mines is
acknowledged in the final economic analysis.
(216) Comment: The draft economic analysis fails to consider the
economic and national security impacts of critical habitat designation
on the maintenance and development of existing mining claims on Federal
lands, or those held by individuals and small entities.
Our response: To inform the analysis of economic impacts to mining
operations, the Service and USFS provided information on the historical
rate of consultation on mining activities as well as the number of
mining claims over the past year. Communication with USFS indicated
that small mining claims typically do not require section 7
consultation. However, Service records indicate that consultation has
occasionally occurred for mineral exploration, resulting in informal
consultation. Past conservation measures associated with these
activities have included changes to lighting design, as well as
recommended changes to the project footprint during the planning stage.
To be conservative, the draft economic analysis includes
incremental administrative costs for development and maintenance of
mining claims, although most small claims are not expected to require
consultation. Additional text has been added to the final economic
analysis to clarify that small mining claims typically do not require
consultation.
(217) Comment: The draft economic analysis does not address the
potential economic impacts of the designation of critical habitat on
manganese production at Wildcat Silver's Hermosa Project. The United
States currently imports 100 percent of its manganese.
Our response: Sections 5.4.2 and 5.5.2 of the draft economic
analysis forecast economic impacts of the designation of critical
habitat on the Hermosa Project. This analysis utilizes and reports the
estimated net present value of the Hermosa Project, accounting for
costs of production and tax responsibilities, as summarized in the
Hermosa Project Preliminary Economic Assessment. This assessment
incorporates potential future revenues associated with all production
at the Hermosa Project, including manganese production.
(218) Comment: The draft economic analysis fails to incorporate the
best available information on the extent of mining and mineral
resources within the proposed designation. Specifically, the proposed
designation spans an area with many established mining districts and
includes many patented and unpatented mining claims within the
Patagonia Mountains. The draft economic analysis did not contact BLM or
USFS for information on planned mining projects. The Service should
review the information on the Coronado National Forest's schedule of
proposed actions and source information for online databases of mining
claims, mineral surveys, and land records. The draft economic analysis
underestimates impacts to mining operations by not including such
actions in the analysis.
Our response: To inform the analysis of mineral extraction
activities in the draft economic analysis, we spoke with BLM and USFS
managers about the frequency and type of consultations associated with
mining activities. Section 5.3 of the draft economic analysis describes
the historical rate of consultation with USFS since the listing of the
species. The historical consultation rate for the jaguar does not
include any consultations with BLM on mining activity, and
communication with BLM did not identify any planned mining projects. As
a result, we use the historical rate of consultation on USFS lands to
forecast future impacts, as well as evaluating impacts separately for
the two large mining construction projects known to be planned within
critical habitat.
Communication with USFS indicated that small mining claims
typically do not require section 7 consultation. However, Service
records indicate that consultation has occasionally occurred for
mineral exploration, resulting in informal consultation. Past
conservation measures associated with these activities have included
changes to lighting design, as well as recommended changes to the
project footprint during the planning stage.
To be conservative, the draft economic analysis includes
incremental administrative costs for development and maintenance of
mining claims, although most small claims are not expected to require
consultation. Additional text has been added to the final economic
analysis to clarify that small mining claims typically do not require
consultation.
(219) Comment: The draft economic analysis of mining impacts does
not provide useful information because it notes that the probability
that incremental conservation measures will be requested ranges from
zero to 100 percent.
Our response: The final economic analysis has been revised based on
the conclusions of the recent biological opinion for the Rosemont Mine.
At the low end, the final economic analysis estimates costs associated
with implementation of requested conservation measures. Because of
concerns expressed previously by the mining companies, the final
economic analysis also considers a second scenario in which the mine
chooses not to proceed to production. The final economic analysis notes
that, based on the outcome of the section 7 consultation for the
Rosemont Mine, the second scenario is considered less likely to occur.
However, at the time the draft economic analysis was prepared, the
relative likelihood of the two scenarios could not be predicted, and
the Service presented a range of plausible impacts as the best
available information.
(220) Comment: The draft economic analysis treats tax revenues as
pure benefits to local, state, and Federal governments. The analysis
does not account for the related increase in demand for public services
that could result from new mining activity.
Our response: The commenter is correct that the net regional
economic impacts would account for increases in public expenditures
resulting from increases in mineral production due to increased demand
for public services. However, information on the potential magnitude of
such an increase in demand for public services is not available. The
final economic analysis has been revised to clarify and expand the
discussion of potential regional economic impacts, as well as
limitations of the analysis.
(221) Comment: The draft economic analysis presents regional
economic impacts associated with mining activity as comparable to
economic efficiency losses associated with increased
[[Page 12643]]
consultation. The regional economic impacts are a separate measure of
economic activity and cannot be added to economic efficiency losses.
Our response: Section 2.2 of the draft economic analysis describes
the distinction between efficiency effects and distributional effects.
It is correct that the draft economic analysis reported in Chapter 5,
as part of a scenario describing upper bound impacts related to mining
activities, regional economic impacts as potential impacts of the rule.
However, these were reported separately from efficiency effects.
Clarifying text has been added to the final economic analysis.
(222) Comment: The draft economic analysis does not consider the
value of alternative land uses at the Rosemont Mine site that could
affect the cost to society should mining not proceed.
Our response: It is correct that a more precise measure of
potential economic impacts to the area that is being considered for
Rosemont Mine would consider that, should the area not be mined, the
area could be used for other purposes, such as recreation, which would
offset to some degree regional impacts of not mining the area. However,
because of uncertainty of alternative future uses, the draft economic
analysis is not able to account for these opportunity costs. As such,
the reported potential societal costs of not mining may be less than is
reported in the upper bound scenario. The final economic analysis has
been revised to clarify and expand the discussion of potential regional
economic impacts, as well as limitations of the analysis.
(223) Comment: The draft economic analysis concludes that the
benefits of the Rosemont Mine dominate any potential costs, resulting
in a large cost to the region and the state if the mine does not
proceed. The draft economic analysis does not document the analysis
that led to that conclusion.
Our response: The draft economic analysis provides an estimate of
potential future costs of critical habitat designation. It does not
conclude that costs exceed benefits, nor does the analysis attempt to
weigh costs against benefits at all. Instead, the draft economic
analysis provides information on the likely magnitude of costs and the
types of ancillary benefits that may occur to inform the evaluation of
the designation by the Secretary of the Department of the Interior. As
discussed in Chapter 2, the Service believes that the direct benefits
of the proposed rule are best expressed in biological terms that can be
weighed against the expected cost impacts of the rulemaking. Chapter 5
of the draft economic analysis describes cost impacts associated with
the potential loss of mineral production at the Rosemont Mine, and
potential economic benefits are addressed separately in Chapter 11. The
final economic analysis has been revised to clarify that the loss of
potential employment and revenues associated with Rosemont Mine are not
net of potential benefits.
(224) Comment: The draft economic analysis fails to include any
costs associated with conservation measures for mining activities,
despite describing the potential for such costs to occur. Instead, the
draft economic analysis forecasts only a small amount of incremental
administrative costs. The information on the cost of conservation
measures is available in the preliminary economic assessment for the
Hermosa Project.
Our response: The final economic analysis has been revised to
incorporate available quantitative information on the Hermosa Project,
wherever possible. However, while the Preliminary Economic Assessment
for the Hermosa Project includes information on the breakdown of
capital and operating costs, it does not provide information specific
to jaguar conservation efforts. The cost estimates in the Preliminary
Economic Assessment are not provided to a level of detail that would
allow such estimation. For these reasons, the draft economic analysis
is not able to fully quantify costs of implementing conservation
measures that may be undertaken for the jaguar and its habitat at the
Rosemont Mine or the Hermosa Project using these data.
(225) Comment: The draft economic analysis refers to potential
impacts to large mining projects as being ``unquantified'' in the
conclusions for the analysis, despite providing quantified estimates
for these impacts elsewhere in the analysis.
Our response: The text of the final economic analysis has been
revised to clarify that potential impacts to mining projects are
quantified but not added to other impact estimates due to the high
level of uncertainty surrounding impact estimates. The final economic
analysis has also been revised to incorporate discussion of these
impacts into the report's conclusions.
(226) Comment: The draft economic analysis underestimates costs to
mining operations by ignoring economic impacts of conservation
measures. In particular, the draft economic analysis ignores the
expected economic contribution of the Rosemont Mine, as estimated in
the analysis by the L. William Seidman Research Institute cited in the
draft economic analysis, when quantifying costs associated with the
proposed designation.
Our response: The final economic analysis has been revised based on
the conclusions of the recent biological opinion for the Rosemont Mine.
At the low end, the final economic analysis estimates costs associated
with implementation of requested conservation measures. The final
economic analysis also considers a second scenario in which Rosemont
Mine chooses not to proceed to production. Section 5.5.1 of the draft
economic analysis describes potential impacts of this scenario in terms
of lost economic revenue, tax revenue, and employment, using the values
estimated in the analysis conducted by the L. William Seidman Research
Institute. These impacts represent the high-end effects of foregone
mine production.
(227) Comment: The draft economic analysis suggests that the
designation of critical habitat will result in economic benefits by
limiting mining activity. However, the draft economic analysis ignores
the benefits that mining projects, such as the Rosemont Mine, may
provide to local, state, and national economies.
Our response: Section 5.5.1 of the draft economic analysis
describes the potential economic impacts of a scenario in which the
Rosemont Mine is not able to proceed to production. To estimate these
costs, the draft economic analysis assumes that economic benefits of
the mine, including economic revenue, tax revenue, and employment,
would be foregone. Section 5.5.2 of the draft economic analysis
provides a similar description of foregone economic benefits for the
Hermosa Project. In these sections, the draft economic analysis
acknowledges that mining projects may provide benefits to local, state,
and national economies, and that these benefits may be lost if the
designation of critical habitat hinders production.
(228) Comment: The designation of critical habitat will lead to a
decrease in the value of privately owned land. The designation would
place restrictions on the landowner's ability to subdivide the land.
Additionally, entering into a conservation easement would decrease the
value of the land.
Our response: Section 2.3.2 of the draft economic analysis
discusses that public attitudes about the limits or restrictions that
critical habitat may impose can cause real economic effects to property
owners, regardless of whether such limits are actually imposed (stigma
effects). As the public becomes aware of the true regulatory burden
imposed by critical habitat, the
[[Page 12644]]
impact of the designation on property markets may decrease. Thus, to
the extent that stigma impacts occur in the future, impacts are
expected to be temporary.
(229) Comment: The draft economic analysis underestimates the
number of consultations relating to grazing that will occur over the
analytic timeframe. Every Federal grazing permittee within the proposed
designation will be subject to reinitiated consultation and will have
to consult twice within the 20-year analytic timeframe, based on
typical timeframes for permit renewals. The draft economic analysis
should consider costs to individuals and local ranchers, in addition to
overall impacts. In particular, the draft economic analysis should
consider costs associated with consultations for new construction or
maintenance of range improvements on Federal grazing allotments.
Our response: As discussed in Section 3.4 of the draft economic
analysis, based on communication with BLM and USFS staff and the
agencies' consultation history, we assume that both BLM and USFS will
reinitiate programmatic consultations on livestock grazing activities.
These programmatic consultations will cover all Federal grazing
permittees collectively. The agencies do not anticipate undertaking
individual consultations with, or on behalf of, permittees.
(230) Comment: The designation of critical habitat may affect the
relationship between the Natural Resources Conservation Service (NRCS)
and ranchers. In particular, the designation of critical habitat may
lead to a reduction in NRCS participation within the proposed
designation, and could therefore result in regional economic and
environmental impacts.
Our response: Section 9.4.1 of the draft economic analysis
addresses the public concern that ranchers and farmers could withdraw
participation in Federal programs, such as those implemented by NRCS,
in order to avoid a potential Federal nexus for consultation generated
by receipt of Federal funding. However, as described in the draft
economic analysis, the designation of critical habitat for other
species in the region has not led to such withdrawals, in the
experience of NRCS. As a result, the draft economic analysis does not
forecast economic impacts associated with withdrawals from Federal
conservation programs due to the designation of critical habitat.
(231) Comment: One paragraph in the draft economic analysis implies
that private landowners consult directly with the Service. It should be
clarified that Federal agencies, such as NRCS, BLM, or the Bureau of
Reclamation, consult with the Service.
Our response: The text of the final economic analysis has been
revised to clarify that NRCS, and not individual landowners, would
consult with the Service. Individual landowners may, in some cases,
participate in section 7 consultation as third parties.
(232) Comment: The draft economic analysis should consider economic
impacts related to precluding, delaying, or requiring mitigation for
the construction of the previously proposed Sierrita natural gas
pipeline, which is expected to cross jaguar critical habitat.
Our response: As described in section 9.1 of the draft economic
analysis, the installation of natural gas pipelines may occur in
proposed critical habitat areas. In addition, as described in chapter 3
of the draft economic analysis, BLM consulted on a pipeline project in
2006. We use historic rates of consultation to forecast future costs
associated with both miscellaneous activities and projects on BLM
lands. In this manner, we incorporate the possibility that a future
consultation on the Sierrita natural gas pipeline may occur. Currently,
sufficient information on the project scope and location is not
available to forecast potential conservation measures for this
pipeline. A brief discussion of this potential project has been added
to the final economic analysis.
(233) Comment: The draft economic analysis should address the
impacts of multiple species management, especially with regard to
reductions in cattle grazing on USFS lands. Such livestock reductions
may be attributed to the conservation of numerous listed species,
including the jaguar.
Our response: Past actions related to consultations on grazing
activities related to other species have affected grazing opportunities
in some areas. However, as discussed in Chapter 3 of the draft economic
analysis, no changes to grazing on Federal lands are expected as a
result of the designation of critical habitat for the jaguar in either
the baseline or incremental scenario.
(234) Comment: The Service should include additional information on
impacts to small businesses, such as information on the percentage of
farmers and ranchers in Arizona and New Mexico that are considered
small businesses and that are owned by women, and the impact the
designation would have on these businesses.
Our response: As described in section A.1.2 of Appendix A, small
entities are generally not directly involved in the consultation
process between NRCS or U.S. Department of Agriculture (USDA) and the
Service. As a result, impacts to small ranchers are not expected.
(235) Comment: The Service should include a reference for a
statement in the draft economic analysis that describes the review
process for range improvement projects carried out by the Arizona State
Land Department (ASLD). The draft economic analysis states that this
review is conducted by the Arizona Game and Fish Department (AGFD).
Our response: As cited in the draft economic analysis, the
statement references personal communication with the Arizona State Land
Department (ASLD) regarding typical project review.
(236) Comment: The draft economic analysis should quantify direct
and indirect economic benefits of the designation of critical habitat.
In particular, the analysis should note the potential for educational,
recreational, and eco-tourism benefits.
Our response: The primary purpose of critical habitat designation
is to support the conservation of the jaguar. Rather than rely on
economic measures, the Service believes that the direct benefits of the
proposed rule are best expressed in biological terms that can be
weighed against the expected cost impacts of the rulemaking. As
described in Chapter 11 of the draft economic analysis, quantification
and monetization of this conservation benefit requires information on
the incremental change in the probability of conservation resulting
from the designation. Such information is not available, and as a
result, monetization of the primary benefit of critical habitat
designation is not possible. However, Chapter 11 of the draft economic
analysis provides a qualitative description of the potential categories
of direct and ancillary benefits that may result from the designation.
The benefits described in Chapter 11 include those mentioned in public
comments, such as use values (e.g., wildlife viewing or eco-tourism),
non-use values (e.g., existence value), aesthetic benefits, educational
benefits, and property value benefits. This chapter also identifies the
critical habitat units where such benefits are likely to occur.
Required Determinations
In our August 20, 2012, proposed rule (77 FR 50214), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the draft economic
analysis. We have now made use of the draft economic analysis data to
make these
[[Page 12645]]
determinations. In this document, we affirm the information in our
proposed rule concerning Executive Orders (E.O.s) 12866 and 13563
(Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988
(Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and
Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), and the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). However,
based on the draft economic analysis data and draft environmental
assessment, we are amending our required determinations concerning the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and E.O. 12630
(Takings). In addition, we are amending our required determinations
concerning the President's memorandum of April 29, 1994, ``Government-
to-Government Relations with Native American Tribal Governments'' (59
FR 22951).
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
significant because it will raise novel legal or policy issues.
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
an 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. In this final rule, we are certifying that the critical
habitat designation for jaguar will not have a significant economic
impact on a substantial number of small entities. The following
discussion explains our rationale.
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; as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts on these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this rule, as
well as the 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.
The Service's current understanding of recent case law is that
Federal agencies are required to evaluate the potential impacts of
rulemaking only on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species has a regulatory effect
only where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the EO regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.
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 final economic analysis for this rule we
considered and evaluated the potential effects to third parties that
may be involved with consultations with Federal action agencies related
to this action.
Designation of critical habitat only affects activities authorized,
funded, or
[[Page 12646]]
carried out by Federal agencies. Some kinds of activities are unlikely
to have any Federal involvement and so will not be affected by critical
habitat designation. In areas where the species is present, Federal
agencies already are required to consult with us under section 7 of the
Act on activities they authorize, fund, or carry out that may affect
the jaguar. Federal agencies also must consult with us if their
activities may affect critical habitat. Designation of critical
habitat, therefore, could result in an additional economic impact on
small entities due to the requirement to reinitiate consultation for
ongoing Federal activities (see Determinations of Adverse Effects and
Application of the ``Adverse Modification'' Standard section, above).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of the
jaguar and the designation of critical habitat. The analysis is based
on the estimated impacts associated with the rulemaking as described in
Chapters 2 through 10 and Appendix A of the analysis and evaluates the
potential for economic impacts related to: (1) Federal land management;
(2) border protection activities; (3) mining; (4) transportation
activities; (5) development; (6) military activities; (7) livestock
grazing and other activities; and (8) Tohono O'odham Nation activities.
To determine if the designation of critical habitat for the jaguar
would affect a substantial number of small entities, we considered the
number of small entities affected within particular types of economic
activities, such as mining, transportation construction, development,
and agriculture and grazing. In order to determine whether it is
appropriate for our agency to certify that this rule would not have a
significant economic impact on a substantial number of small entities,
we considered each industry or category individually. In estimating the
numbers of small entities potentially affected, we also considered
whether their activities have any Federal involvement. Critical habitat
designation will not affect activities that do not have any Federal
involvement; designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies.
Because the jaguar is already listed as an endangered species under the
Act, in areas where the jaguar is present, Federal agencies are
required to consult with us under section 7 of the Act on activities
they fund, permit, or implement that may affect the species.
Consultations to avoid the destruction or adverse modification of
critical habitat would be incorporated into the existing consultation
process.
In the final economic analysis, we evaluated the potential economic
effects on small entities resulting from implementation of conservation
actions related to the designation of critical habitat for the jaguar.
The designation of critical habitat for the jaguar is unlikely to
directly affect any small entities. The costs associated with the
designation are likely to be limited to the incremental impacts
associated with administrative costs of section 7 consultations. Small
entities may participate in section 7 consultation as a third party
(the primary consulting parties being the Service and the Federal
action agency). It is therefore possible that the small entities may
spend additional time considering critical habitat due to the need for
a section 7 consultation for the jaguar. We do not expect critical
habitat designation to result in impacts to small entities for the
following activities: forest management, border protection, and
military activities (as they do not involve third parties, only Federal
and State agencies); and development, recreation, and utility
construction (as we do not forecast any impacts to these activities).
Additionally, Chapter 10 of the final economic analysis details the
potential incremental impacts of critical habitat designation on tribes
with lands overlapping the designation. Tribes are generally not
subject to review under the RFA/SBREFA. For example, in its guidance on
preparing analyses in compliance with the RFA/SBREFA, the Environmental
Protection Agency states that, for the purposes of the RFA, States and
tribal governments are not considered small governments but rather as
independent sovereigns.
Estimated incremental costs that may be borne by small entities
consist of administrative impacts of section 7 consultation related to
mining, transportation construction, and agriculture and grazing. These
potential impacts are described in greater detail below. It is
uncertain whether any third parties involved with mining or
transportation would be considered small entities when fully
operational; however, assuming that they would qualify as small
entities, the cost of consultation represents less than 1 percent of
each company's annual revenues. Potential impacts to agriculture and
grazing related to foregone Natural Resources Conservation Service
(NRCS) funding are not quantified; however, we do not expect small
entities to bear a direct burden. Please refer to the final economic
analysis of the critical habitat designation for a more detailed
discussion of potential economic impacts.
Mining
Chapter 5 of the final economic analysis describes potential
impacts arising from three known formal consultations on mining: the
Rosemont Mine, the Hermosa Project, and the Coronado National Forest
Land and Resource Management Plan. According to the Small Business
Administration, to be considered a small entity in this industry,
companies must employ fewer than 500 people (13 CFR 121.201). The
Coronado National Forest is a Federal entity and is not considered
small.
As of 2011, Augusta Resource Corporation, which is the parent
company of Rosemont Mine, employed a total of 56 people throughout
Canada and the United States. Rosemont Mine anticipates employing up to
494 people directly at the Rosemont Mine. It is therefore unlikely
that, following construction of the Rosemont Mine, Augusta Resource
Corporation will employ fewer than 500 people.
It is uncertain whether Wildcat Silver will employ more than 500
workers during the operation of the Hermosa Project. Therefore, we
conservatively assume that Wildcat Silver is a small entity. The cost
of consultation for Wildcat Silver is approximately $875. Although
Wildcat Silver is considered to be an exploration stage enterprise and
has yet to generate revenue from its operations, this cost is unlikely
to be a significant burden on the company, as its assets exceeded $60
million and it had more than $3 million in cash and cash equivalents as
of September 30, 2012.
Additionally, in Chapter 5 of the final economic analysis, we
discuss the potential for jaguar critical habitat to affect other
mineral mining operations. While incremental project modification
impacts are not forecast for these activities over 20 years,
administrative costs related to 2.5 forecasted informal consultations
on mining exploration may involve small entities as third-party project
proponents. It is uncertain whether third parties involved in these
mining consultations will be small; however, we conservatively assume
that each forecast consultation on mining will involve a small entity.
The cost of consultation is approximately $875. This cost likely
represents less than one percent of annual revenues for mining
companies.
[[Page 12647]]
Transportation Construction
In the final economic analysis, we forecast consultations on these
activities, as discussed in Chapter 6. These consultations will likely
not involve third parties, as transportation consultations typically
require only administrative effort on the part of State departments of
transportation and the Service. However, we conservatively assume that
all consultations will involve a small third party. We forecast two
formal consultations and seven technical assistance consultations on
such projects that may involve small entities within the study area.
Assuming that all transportation potential impacts are borne by nine
small private entities, this amounts to less than one consultation per
year. The per-entity impact, ranging from approximately $875 to $7,875,
represents less than one percent of annual revenues.
Agriculture and Grazing
In the final economic analysis, we forecast consultations on these
activities, as discussed in Chapter 9. In this analysis, we discuss
potential impacts related to foregone NRCS funding, but do not quantify
these impacts. While up to six separate small entities could be
affected based on past rates of NRCS funding near critical habitat, we
do not expect these entities to bear a direct burden. Additionally, the
possibility exists for administrative impacts to occur in association
with two formal and three informal forecast consultations on
agriculture and grazing projects that may involve small entities within
the study area. However, small entities are likely not directly
involved in the consultation process between NRCS or U.S. Department of
Agriculture with the Service.
Table 5 presents the results of the final economic analysis. It
provides the relevant small entity thresholds by North American
Industry Classification System (NAICS) code, the total number of
entities and small entities, and the estimated incremental impacts as a
percentage of annual revenues.
Table 5--Summary of Potential Impacts on Small Entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
affected
small Impacts as
Industry (NAICS Small entity size Total Number of entities Incremental economic percent of
Activity codes) standard (millions number of small \1\ impacts to small annual
of dollars) entities entities (percent of businesses \2\ revenues
total small \3\
entities)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transportation.................... Highway, Street and 33.5................ 120 110 9 (7%) $875 to $7,875 \4\.. 0.09
Bridge Construction
(237310).
Other Heavy and 33.5................ 30 28
Civil Engineering
Construction
(237990).
Agriculture and Grazing........... Beef Cattle Ranching 0.75................ 80 74 0 (0%) $0 per entity \5\... 0
and Farming
(112111).
Cotton Farming 0.75................ 3 1
(115111).
Mining............................ Iron Ore Mining 500 employees....... 0 0 4 (13%) $875 to $3,500 \6\.. ...........
(212210).
Gold Ore Mining 500 employees....... 6 6
(212221).
Silver Ore Mining 500 employees....... 1 1
(212222).
Lead Ore and Zinc 500 employees....... 6 6
Ore Mining (212231).
Copper Ore and 500 employees....... 33 8
Nickel Ore Mining
(212234).
Uranium-Radium- 500 employees....... 0 0
Vanadium Ore Mining
(212291).
All Other Metal Ore 500 employees....... 0 0
Mining (212299).
Support Activities 7................... 9 8
for Metal Mining
(213114).
Support Activities 7................... 3 3
for Nonmetallic
Minerals, except
fuels (213115).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1. To estimate the number of affected small entities, this analysis assumes one small entity per forecast section 7 consultation. For agriculture and
grazing, this assumes one small entity per NRCS funding instance.
2. For these activities, we conservatively estimate that all administrative costs of consultation will be incurred by a small entity in a single year.
Therefore, we use the total, undiscounted third party incremental costs of a formal consultation.
[[Page 12648]]
3. Annual revenues are estimated using Risk Management Association (RMA), Annual Statement Studies: Financial Ratio Benchmarks 2012 to 2013, 2012. For
each NAICS code, RMA provides the net sales and the number of entities falling within several sales categories: $0 to $1 million, $1 to 3 million, $3
to $5 million, $5 to 10 million, or $10 to $25 million. Based on the number of entities and total net sales falling within each sales category, we
developed an estimate of the weighted average net sales (revenues) per small entity: for transportation-related firms, annual revenues were estimated
to be approximately $8.6 million; for companies involved in agriculture and grazing, revenues are estimated at $430,000 annually; for mining firms,
annual revenue information was not available, but due to the highly capitalized nature of the mining industry, mining firms are assumed to have high
annual revenues such that per-entity impacts of $2,625 resulting from the designation of critical habitat are likely to be insignificant.
4. We are uncertain in what year consultations and technical assistance requests on transportation activities will occur over the next 20 years. For the
purposes of this analysis, we assume affected small entities will participate in approximately nine consultations or technical assistance requests
over 20 years, or less than one consultation per year. However, if we assume that a single small entity participates in multiple formal consultations
in a single year, the administrative costs of such activity are still likely to be less than one percent of annual tax revenues (e.g., nine
consultations x $875/$9,000,000 = 0.09 percent of annual revenues).
5. Potential impacts related to NRCS funding are not quantified.
6. We are uncertain in what year consultations on mining will occur over the next 20 years. For the purposes of this analysis, we assume affected small
entities will participate in approximately 4 consultations over 20 years, one of which will be associated with the Hermosa Project and will involve
Wildcat Silver Corporation. However, if we assume that a single small entity participates in multiple consultations in a single year, the
administrative costs of such activity are still likely to be less than one percent of annual revenues. Although data on annual revenues for mining
companies were unavailable, due to the highly capitalized nature of the mining industry, companies involved in mining operations are likely to produce
revenues large enough that the cost of undertaking three consultations in a single year would likely be less than one percent of annual revenues
(e.g., four consultations x $875 = $3,500. $3,500 represents one percent of annual revenues of $350,000. Mining companies are likely to produce
revenues of greater than $350,000 annually).
Source: Dialog search of File 516, Dun and Bradstreet, ``Duns Market Identifiers,'' on January 3, 2013.
In summary, we considered whether this designation would result in
a significant economic effect on a substantial number of small
entities. Based on the above reasoning and currently available
information, we concluded that this rule would not result in a
significant economic impact on a substantial number of small entities.
Therefore, we are certifying that the designation of critical habitat
for jaguar will not have a significant economic impact on a substantial
number of small entities, and a regulatory flexibility analysis is not
required.
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. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
The economic analysis finds that none of these criteria are
relevant to this analysis. Thus, based on information in the economic
analysis, energy-related impacts associated with jaguar conservation
activities within critical habitat are not expected. As such, the
designation of critical habitat is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The final economic analysis concludes incremental impacts may
occur due to (1) the administrative costs of conducting section 7
consultation; and (2) implementation of any conservation efforts
requested by the Service through section 7 consultation to avoid
potential destruction or adverse modification of critical habitat;
however, these are not expected to
[[Page 12649]]
significantly affect small governments. Incremental impacts stemming
from various species conservation and development control activities
are expected to be borne by the Federal Government, State agencies,
with some effects to mining and transportation, which are not
considered small governments. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. Consequently, we do
not believe that the critical habitat designation will significantly or
uniquely affect small government entities. As such, a Small Government
Agency Plan is not required.
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 jaguar in a takings implications assessment. The
economic analysis found that no significant economic impacts are likely
to result from the designation of critical habitat for the jaguar.
Based on information contained in the economic analysis and described
within this document, it is not likely that economic impacts to a
property owner would be of a sufficient magnitude to support a takings
action. Therefore, the takings implications assessment concludes that
this designation of critical habitat for the jaguar does not pose
significant takings implications for lands within or affected by the
designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this final rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of this critical habitat designation with, appropriate
State resource agencies in New Mexico and Arizona. We received comments
from the New Mexico Department of Game and Fish and the Arizona Game
and Fish Department and have addressed them in the Summary of Comments
and Recommendations section of the rule. From a federalism perspective,
the designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat 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
these local governments in long-range planning (because these local
governments no longer have to 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 applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the rule identifies the elements of physical or biological
features essential to the conservation of the jaguar. The designated
areas of critical habitat are presented on maps, and the rule provides
several options for the interested public to obtain more detailed
location information, if desired.
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)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of the jaguar, under the Tenth Circuit ruling in Catron County
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429
(10th Cir. 1996), we undertake a NEPA analysis for critical habitat
designation and notify the public of the availability of the draft
environmental assessment for a proposal when it is finished.
We performed the NEPA analysis, and a draft of the environmental
assessment was available for public comment in the Federal Register on
July 1, 2013 (78 FR 39237). We also accepted public comments on the
draft environmental assessment and made revisions in response to many
of those comments (see Summary of Comments and Recommendations above).
The final environmental assessment has been completed and is available
for review with the publication of this final rule. You may obtain a
copy of the final environmental assessment online at https://www.regulations.gov, by mail from the Arizona Ecological Services Fish
and Wildlife Office (see ADDRESSES), or by visiting our Web site at
https://www.fws.gov/southwest/es/arizona/Jaguar.htm.
We analyzed the potential impacts of critical habitat designation
on the following resources and resource management types: Land use and
management; fish, wildlife, and plants (including endangered and
threatened species); fire management; water resources (including water
management projects and groundwater pumping); livestock grazing;
construction and development (including roads, bridges, dams,
infrastructure, residential); tribal trust resources; soils; recreation
and
[[Page 12650]]
hunting; socioeconomics; environmental justice; mining and minerals
extraction; and National security. We found that the designation of
critical habitat for the jaguar would not have direct impacts on the
environment as designation is not expected to impose land use
restrictions or prohibit land use activities. However, the designation
of critical habitat could: (1) Increase the number of additional
section 7 consultations for proposed projects within designated
critical habitat; (2) trigger new consultations in unoccupied areas;
(3) increase the number of reinitiated section 7 consultations for
ongoing projects within designated critical habitat; (4) maintain the
jaguar's PCEs; (5) increase the likelihood of greater expenditures of
time and Federal funds to develop measures to prevent both adverse
effects to the species and adverse modification to critical habitat;
and (6) indirectly increase the likelihood of greater expenditure of
non-Federal funds by project proponents to complete section 7
consultations and to develop reasonable and prudent alternatives (to
avoid adverse modification or destruction of critical habitat by
Federal agencies) that maintain critical habitat. Such an increase
might occur where there is a Federal nexus to actions within areas with
no known jaguar territories, or from the addition of adverse
modification analyses to jeopardy consultations in known jaguar
habitat.
The primary purpose of preparing an environmental assessment under
NEPA is to determine whether a proposed action would have significant
impacts on the human environment. If significant impacts may result
from a proposed action, then an environmental impact statement is
required (40 CFR 1502.3). Whether a proposed action exceeds a threshold
of significance is determined by analyzing the context and the
intensity of the proposed action (40 CFR 1508.27). Our environmental
assessment found that the impacts of the proposed critical habitat
designation would be minor and not rise to a significant level, so
preparation of an environmental impact statement is not required.
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.
Using the criteria found in the Criteria Used To Identify Critical
Habitat section, we have determined that there are tribal lands that
were occupied by jaguar at the time of listing that contain the
features essential for the conservation of the species, as well as
tribal lands unoccupied by the species at the time of listing that are
essential for the conservation of the jaguar in the United States.
Potentially affected Tribes include: The Ak Chin Community, Gila River
Indian Community, Hope Tribe, Pascua Yaqui Tribe, Salt River Pima
Maricopa Indian Tribe, San Carlos Apache Tribe, Tohono O'odham Tribe,
and White Mountain Apache Tribe. The Tohono O'odham Nation is the only
tribe with tribal lands within designated critical habitat. We have
conducted government-to-government consultation with these tribes
throughout the public comment period and during development of the
final designation of jaguar critical habitat.
On May 16, 2012, we sent a letter to the Tohono O'odham Nation (the
one Tribe that owns and manages land within the proposed designation)
and Bureau of Indian Affairs notifying them of our intent to propose
critical habitat for the jaguar and describing the exclusion process
under section 4(b)(2) of the Act. On August 24, 2012, we notified all
tribes potentially affected by our proposal to designate jaguar
critical habitat via email, then followed up by sending a letter to
each tribal leader on September 28, 2012. We engaged in conversations
with the Tohono O'odham Nation about the proposal to the extent
possible without disclosing pre-decisional information. On September
27, 2012, we met with Tohono O'odham Nation staff to discuss the
proposed designation. On August 30, 2013, we notified all tribes
potentially affected by our revised proposal to designate jaguar
critical habitat via email that we reopened the comment period on the
revised proposed rule, draft economic analysis, and draft environmental
assessment, then followed up by sending a letter to each tribal leader
on September 3, 2013. In addition, the Tohono O'odham Nation has a
representative on the Jaguar Recovery Team and so the tribe has been
aware that the Service was working on a critical habitat proposal.
We considered these tribal areas for exclusion from the final
critical habitat designation to the extent consistent with the
requirements of section 4(b)(2) of the Act, and subsequently, excluded
all tribal lands from this final designation.
References Cited
A complete list of all references cited is available on the
Internet at https://www.regulations.gov and upon request from the
Arizona Ecological Services Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Arizona Ecological Services Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Jaguar (Panthera
onca)'' under ``Mammals'' in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 12651]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
---------------------------------------------------------- Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Jaguar............................ Panthera onca........ U.S.A. (AZ, CA, LA, Entire............... E 5, 622 17.95(a) NA
NM, TX) Mexico,
Central and South
America.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (a) by adding an entry for ``Jaguar
(Panthera onca)'', in the same order that the species appears in the
table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(a) Mammals.
* * * * *
Jaguar (Panthera onca)
(1) Critical habitat units are depicted for Pima, Santa Cruz, and
Cochise Counties, Arizona, and Hidalgo County, New Mexico, on the maps
below.
(2) Within these areas, the primary constituent elements of the
physical or biological feature essential to the conservation of jaguar
consists of expansive open spaces in the southwestern United States of
at least 100 km\2\ (32 to 38.6 mi\2\) in size which:
(i) Provide connectivity to Mexico;
(ii) Contain adequate levels of native prey species, including deer
and javelina, as well as medium-sized prey such as coatis, skunks,
raccoons, or jackrabbits;
(iii) Include surface water sources available within 20 km (12.4
mi) of each other;
(iv) Contain greater than 1 to 50 percent canopy cover within
Madrean evergreen woodland, generally recognized by a mixture of oak
(Quercus spp.), juniper (Juniperus spp.), and pine (Pinus spp.) trees
on the landscape, or semidesert grassland vegetation communities,
usually characterized by Pleuraphis mutica (tobosagrass) or Bouteloua
eriopoda (black grama) along with other grasses;
(v) Are characterized by intermediately, moderately, or highly
rugged terrain;
(vi) Are below 2,000 m (6,562 feet) in elevation; and
(vii) Are characterized by minimal to no human population density,
no major roads, or no stable nighttime lighting over any 1-km\2\ (0.4-
mi\2\) area.
(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 within the legal boundaries on
April 4, 2014.
(4) Critical habitat map units. Data layers defining map units were
created using hydrography data, vegetation biomes, tree cover, terrain
ruggedness, elevation, Human Influence Index, and undisputed Class I
jaguar records from 1962 to September 11, 2013, and were then mapped
using Universal Transverse Mercator (UTM) coordinates.
(5) Note: Index map follows:
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[[Page 12652]]
[GRAPHIC] [TIFF OMITTED] TR05MR14.002
(6) Units 1, 2, 3, and 4: Baboquivari, Atascosa, Patagonia, and
Whetstone Units, Pima, Santa Cruz, and Cochise Counties, Arizona. Map
of Units 1, 2, 3, and 4 follows:
[[Page 12653]]
[GRAPHIC] [TIFF OMITTED] TR05MR14.003
(7) Units 5 and 6: Peloncillo and San Luis Units, Cochise County,
Arizona, and Hidalgo County, New Mexico. Map of Units 5 and 6 follows:
[[Page 12654]]
[GRAPHIC] [TIFF OMITTED] TR05MR14.004
* * * * *
Dated: January 29, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-03485 Filed 3-4-14; 8:45 am]
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