Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Zuni Bluehead Sucker, 19941-19953 [2015-08277]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 80, Number 71 (Tuesday, April 14, 2015)]
[Proposed Rules]
[Pages 19941-19953]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-08277]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2013-0002; 4500030113]
RIN 1018-AZ23


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Zuni Bluehead Sucker

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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

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

ADDRESSES: 
    Document availability: You may obtain copies of the proposed rule, 
the draft economic analysis, and the draft environmental assessment on 
the Internet at https://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0002 or by mail from the New Mexico Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Written comments: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Submit comments on the critical habitat proposal, 
draft economic analysis, and draft environmental assessment by 
searching for Docket No. FWS-R2-ES-2013-0002, which is the docket for 
this rulemaking.
    (2) By hard copy: Submit comments on the critical habitat proposal, 
draft economic analysis, and draft environmental assessment by U.S. 
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-
2013-0002; Division of Policy, Performance, and Management Programs; 
U.S. Fish and Wildlife Service; 5275 Leesburg Pike MS: BPHC, Falls 
Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section, below, for more information).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna NE., Albuquerque, NM 87113; by telephone 505-346-
2525; or

[[Page 19942]]

by facsimile 505-346-2542. Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We are reopening the comment period for our proposed critical 
habitat designation for the Zuni bluehead sucker that was published in 
the Federal Register on January 25, 2013 (78 FR 5351). We are 
specifically seeking comments on the revisions to the proposed critical 
habitat designation described in this document, and on the draft 
economic analysis and the draft environmental assessment, which are now 
available, for the critical habitat designation; see ADDRESSES for 
information on how to submit your comments. We will consider 
information and recommendations from all interested parties. We are 
also particularly interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.) including whether there are threats to the subspecies from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of Zuni bluehead sucker habitat;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the subspecies, should be included in the designation 
and why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the subspecies and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their probable impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Zuni bluehead sucker and proposed critical 
habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, we seek information on any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (6) Information on the extent to which the description of economic 
impacts in the draft economic analysis is complete and accurate and the 
description of the environmental impacts in the draft environmental 
assessment is complete and accurate.
    (7) Whether any areas we are proposing for critical habitat 
designation, and specifically proposed critical habitat on Tribal lands 
owned by the Navajo Nation and Zuni Pueblo, should be considered for 
exclusion under section 4(b)(2) of the Act, and whether the benefits of 
potentially excluding any specific area outweigh the benefits of 
including that area under section 4(b)(2) of the Act.
    (8) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (9) Information about the habitat conditions within the proposed 
critical habitat designation for the Zuni bluehead sucker, especially 
the quality and quantities of the primary constituent elements (PCEs), 
particularly within the Rio Nutria above the Tampico Draw confluence, 
Rio Pescado, and Cebolla Creek.
    If you submitted comments or information on the proposed critical 
habitat rule (78 FR 5351; January 25, 2013) during the initial comment 
period from January 25, 2013, to March 26, 2013, please do not resubmit 
them. We have incorporated them into the public record, and we will 
fully consider them in the preparation of our final rule. Our final 
determination concerning critical habitat will take into consideration 
all written comments and any additional information we receive during 
both comment periods. On the basis of public comments and other 
relevant information, we may, during the development of our final 
determination on the proposed critical habitat designation, find that 
areas proposed are not essential, are appropriate for exclusion under 
section 4(b)(2) of the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
critical habitat designation, draft economic analysis, or draft 
environmental assessment by one of the methods listed in the ADDRESSES 
section. We request that you send comments only by the methods 
described in the ADDRESSES section.
    If you submit a comment via https://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on https://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule, the draft 
economic analysis, and the draft environmental assessment, will be 
available for public inspection on https://www.regulations.gov at Docket 
No. FWS-R2-ES-2013-0002, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may 
obtain copies of the proposed rule, the draft economic analysis, and 
the draft environmental assessment on the Internet at https://www.regulations.gov at Docket No. FWS-R2-ES-2013-0002, or by mail from 
the New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

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

Previous Federal Actions

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

[[Page 19943]]

habitat. That proposal had a 60-day comment period, ending March 26, 
2013.
    After the publication of the proposed rules, we found there was 
substantial scientific disagreement regarding the taxonomic status of 
some populations that we considered Zuni bluehead sucker in the 
proposed listing rule. On January 9, 2014, we published in the Federal 
Register a document that reopened the comment period for the proposed 
listing rule and extended the final determination for the Zuni bluehead 
sucker by 6 months due to substantial disagreement regarding the Zuni 
bluehead sucker's taxonomic status in some locations (79 FR 1615). That 
comment period closed on February 10, 2014. Based on information 
received during the comment period, we revised the Zuni bluehead 
sucker's range in the final listing rule. An error was reported in the 
genetic data evaluated for the proposed listing rule (Schwemm and 
Dowling 2008, entire); the correct information led to the determination 
that the bluehead suckers in the Lower San Juan River watershed 
(proposed critical habitat Unit 3; San Juan River Unit) were bluehead 
suckers (Catostomus discobolus), not Zuni bluehead suckers (Catostomus 
discobolus yarrowi). Thus, the San Juan River Unit populations were no 
longer included in the final listing rule. We published in the Federal 
Register a final listing determination for the Zuni bluehead sucker on 
July 24, 2014 (79 FR 43132).

Critical Habitat

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

Changes From Previously Proposed Critical Habitat

    In this document, we are proposing revisions to the critical 
habitat designation for the Zuni bluehead that we proposed on January 
25, 2013 (78 FR 5351). These revisions are based on information we 
received during the comment period. The best available information 
identifies that Zuni bluehead sucker does not occur in proposed Unit 3 
(San Juan River Unit), and a portion of proposed Unit 1 (Zuni River 
Unit) does not meet the definition of critical habitat. We are not 
proposing any revisions to proposed Unit 2 (Kinlichee Creek Unit). As a 
result of the removal of proposed Unit 3 and a portion of Unit 1 from 
our proposed critical habitat designation, the total amount of proposed 
critical habitat for the Zuni bluehead sucker is decreased from 
approximately 475.3 kilometers (km) (291.3 miles (mi)) to approximately 
228.4 km (141.9 mi).
    Based on new information regarding the proposed Zuni River Unit 
(Unit 1), we are removing the Rio Pescado above Pescado Dam from the 
proposed critical habitat within the Zuni River Mainstem (Subunit 1b). 
We originally proposed 107.8 km (67.0 mi) along the Zuni River, Rio 
Pescado, and Cebolla Creek as critical habitat for the Zuni bluehead 
sucker in Subunit 1b. Although we considered the entire subunit to be 
unoccupied, we stated in the proposed designation that this subunit is 
essential for the conservation of the Zuni bluehead sucker because it 
provides for connection between populations and also provides space for 
the growth and expansion of the subspecies in this portion of its 
historical range. However, the presence of primary constituent elements 
in this unit had not been investigated in any detail at the time of the 
proposed critical habitat designation. Based upon further 
investigation, this area of the Rio Pescado (above Pescado Dam) is a 
dry wash with no running water present except during periods of rain; 
this reach likely never had perennial flow. As a result, stream habitat 
(pools, runs, riffles) and substrate (gravel, cobble) are absent, and 
the area does not meet the habitat needs for any life stage, nor does 
it provide connectivity to any population of Zuni bluehead sucker, nor 
do we expect that it ever was habitat for the subspecies in the past. 
Therefore, we are removing this portion of Subunit 1b from our proposed 
critical habitat designation because suitable habitat is absent and is 
unlikely to develop, and the segment is not essential to the 
conservation of the subspecies. The removal of critical habitat above 
Pescado Dam in Subunit 1b will reduce the total proposed critical 
habitat designation for Unit 1 from 182 km (113.1 mi) to 131.8 km (81.9 
mi).
    In addition to these revisions to proposed Unit 1, we are removing 
the entire San Juan River Unit (proposed Unit 3) from our proposed 
critical habitat designation; this area includes 196.8 km (118.2 mi) of 
Navajo Nation lands. We originally proposed two subunits within the San 
Juan River Unit. The proposed Subunit 3a (Canyon de Chelly) included 
187.9 km (112.7 mi) along Tsaile Creek, Wheatfields Creek, Whiskey 
Creek, Coyote Wash, Crystal Creek, and Sonsela Creek in Apache County, 
Arizona, and San Juan County, New Mexico. In the proposed critical 
habitat designation, we stated that the Zuni bluehead sucker occupies 
all stream reaches in this subunit, and the subunit contains all of the 
primary constituent elements of the physical or biological features 
essential to the conservation of the subspecies. The proposed Subunit 
3b (Little Whiskey Creek) included 8.9 km (5.5 mi) along Little Whiskey 
Creek in San Juan County, New Mexico. We identified this area as 
unoccupied in the proposed critical habitat designation, but we 
concluded that the area was essential to the conservation of the 
subspecies.
    Since the proposed critical habitat designation, we concluded in 
the final listing determination (79 FR 43132, July 24, 2014) that the 
bluehead suckers in the Lower San Juan River watershed should not be 
recognized as part of the Zuni bluehead sucker subspecies. Rather, the 
best scientific and commercial information available, including peer 
review comments we received during the comment period for the 6-month 
extension (79 FR 1615, January 9, 2014), indicates that these 
populations in the proposed San Juan River Unit (Unit 3) are bluehead 
suckers rather than Zuni bluehead suckers. Therefore, while the 
originally proposed Unit 3 may be important for bluehead suckers, the 
originally proposed Unit 3 can no longer be considered essential for 
the conservation of the Zuni bluehead sucker. Therefore, we are 
removing the San Juan River Unit from proposed critical habitat.

Revised Proposed Unit Descriptions for the Zuni Bluehead Sucker

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

[[Page 19944]]



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

Unit 1: Zuni River Unit

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

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

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if the Secretary determines the benefits of excluding the area outweigh 
the benefits of including the area as critical habitat, provided that 
such exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion of an area, we consider 
among other factors, the additional regulatory benefits that an area 
would receive through the analysis under section 7 of the Act 
addressing the destruction or adverse modification of critical habitat 
as a result of actions with a Federal nexus (activities conducted, 
funded, permitted, or authorized by Federal agencies), the educational 
benefits of identifying areas containing essential

[[Page 19945]]

features that aid in the recovery of the listed species, and any 
ancillary benefits triggered by existing local, State or Federal laws 
as a result of the critical habitat designation.
    When considering the benefits of excluding a particular area, we 
consider, among other things, whether exclusion of a specific area is 
likely to incentivize or result in the conservation of the species and 
its habitat; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a conservation or management plan 
for the species and its habitat. However, we are considering exclusion 
of the proposed critical habitat areas owned by the Navajo Nation and 
Zuni Pueblo to the extent consistent with the requirements of section 
4(b)(2) of the Act. Areas owned by the Zuni Pueblo that we are 
considering for exclusion from the final critical habitat designation 
include 38.9 km (24.2 mi) in Subunit 1a and 29.4 km (18.3 mi) in 
Subunit 1b. In addition, the Navajo Nation owns all of the proposed 
critical habitat in Subunit 2a (86.9 km (54 mi)) and Subunit 2b (9.6 km 
(6.0 mi)). For the reasons described below, the Service is also 
considering all of these Navajo Nation lands for exclusion under 
section 4(b)(2) of the Act.
    In July 2012, we sent notification letters to the Tribes describing 
the exclusion process under section 4(b)(2) of the Act, and we have 
engaged in conversations with both Tribes about the proposed 
designation to the extent possible without disclosing predecisional 
information. In March 2013, we attended a coordination meeting with the 
Navajo Nation to discuss the proposed designation, and the Navajo 
Nation provided additional information regarding their land management 
practices and the potential for developing a fisheries management plan 
for sport and native fisheries on their lands. Since the meeting, we 
have received information from the Navajo Nation that they are in the 
process of amending the Navajo Nation Fisheries Management Plan to 
ensure that native fishes are the priority in stream fisheries 
management. We are also working with the Zuni Pueblo to develop a 
management plan for their lands. The Navajo Nation provided for review 
a draft management plan that specifically addresses the Zuni bluehead 
sucker, and we anticipate a final draft will be developed. Although we 
have not yet received a draft management plan from the Zuni Pueblo, we 
are working with the Pueblo to assist in the preparation of these 
documents to provide for the benefit of the subspecies and its habitat.
    In addition to these management plans under development by the 
Tribes, the Service also is considering exclusion of these Tribal lands 
based on the working relationship we have established with the Tribes. 
We are aware that designation of critical habitat on tribal lands is 
generally viewed as an intrusion on their sovereign abilities to manage 
natural resources in accordance with their own policies, customs, and 
laws. To this end, we have received public comments indicating that 
Tribes prefer to work with us on a government-to-government basis. 
Therefore, we are considering exclusion of these Tribal lands in 
proposed Units 1 and 2 to maintain our working relationships with the 
Tribes.
    In the case of the Zuni bluehead sucker, the benefits of 
designating critical habitat include increasing public awareness of the 
presence of the Zuni bluehead sucker and the importance of habitat 
protection, and, where a Federal nexus exists, increased habitat 
protection for the Zuni bluehead sucker due to protection from 
destruction or adverse modification of critical habitat.
    A final decision on whether to exclude any areas will be based on 
the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. We will take 
into account public comments and carefully weigh the benefits of 
exclusion versus inclusion of these areas.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.'' The ``without 
critical habitat'' scenario represents the baseline for the analysis, 
which includes the existing regulatory and socio-economic burden 
imposed on landowners, managers, or other resource users potentially 
affected by the designation of critical habitat (e.g., under the 
Federal listing as well as other Federal, State, and local 
regulations). The baseline, therefore, represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a 4(b)(2) economic 
exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Zuni bluehead sucker (IEc 2014, entire). We 
began by conducting a screening analysis of the proposed designation of 
critical habitat in order to focus our analysis on the key factors that 
are likely to result in incremental economic impacts. The purpose of 
the screening analysis is to filter out the geographic areas in which 
the critical habitat designation is unlikely to result in probable 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes probable economic impacts where land and water use may be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. The screening analysis 
filters out particular areas of critical habitat that are already 
subject to such protections and assesses whether units are unoccupied 
by the species and may require additional management or conservation 
efforts as a result of the critical habitat designation

[[Page 19946]]

for the species. This screening analysis combined with the information 
contained in our IEM are what we consider our draft economic analysis 
of the proposed critical habitat designation for the Zuni bluehead 
sucker and is summarized in the narrative below.
    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the Executive Orders' regulatory analysis requirements, our 
effects analysis under the Act, may take into consideration impacts to 
both directly and indirectly impacted entities, where practicable and 
reasonable. We assess to the extent practicable, the probable impacts, 
if sufficient data are available, to both directly and indirectly 
impacted entities. As part of our screening analysis, we considered the 
types of economic activities that are likely to occur within the areas 
likely affected by the critical habitat designation. In our evaluation 
of the probable incremental economic impacts that may result from the 
proposed designation of critical habitat for the Zuni bluehead sucker, 
first we identified, in the IEM dated June 21, 2013, probable 
incremental impacts associated with the following categories of 
activity: (1) Federal lands management (Forest Service, U.S. Bureau of 
Reclamation); (2) roadway and bridge construction; (3) agriculture; (4) 
grazing; (5) groundwater pumping; (6) in-stream dams and diversions; 
(7) storage and distribution of chemical pollutants; (8) dredging; (9) 
commercial or residential development; (10) timber harvest; and (11) 
recreation (including sport fishing and sport-fish stocking, off 
highway vehicle activity). We considered each industry or category 
individually. Additionally, we considered whether their activities have 
any Federal involvement. Critical habitat designation will not affect 
activities that do not have any Federal involvement; designation of 
critical habitat only affects activities conducted, funded, permitted, 
or authorized by Federal agencies. In areas where the Zuni bluehead 
sucker is present, Federal agencies are already required to consult 
with the Service under section 7 of the Act on activities they fund, 
permit, or implement that may affect the subspecies. If we finalize 
this proposed critical habitat designation, consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process that will also 
consider jeopardy to the listed subspecies.
    In our IEM, we attempted to clarify the distinction between the 
effects that result from the subspecies being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the Zuni 
bluehead sucker critical habitat. Because the designation of critical 
habitat for Zuni bluehead sucker was proposed concurrently with the 
listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those which will result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical and 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Zuni bluehead sucker would also likely 
adversely affect the essential physical and biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
subspecies. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The proposed critical habitat designation for the Zuni bluehead 
sucker totals approximately 228.4 km (141.9 mi), of which approximately 
70 percent (161.1 km (100.1 mi)) is currently occupied by the 
subspecies. In these areas, any actions that may affect the subspecies 
or its habitat would also affect designated critical habitat and it is 
unlikely that any additional conservation efforts would be recommended 
to address the adverse modification standard over and above those 
recommended as necessary to avoid jeopardizing the continued existence 
of the Zuni bluehead sucker. Therefore, only administrative costs are 
expected in approximately 70 percent of the proposed critical habitat 
designation. While this additional analysis will require time and 
resources by both the Federal action agency and the Service, it is 
believed that, in most circumstances, these costs would predominantly 
be administrative in nature and would not be significant.
    The remaining 67.3 km (41.8 mi) (30 percent of the total proposed 
critical habitat designation) are currently unoccupied by the 
subspecies but are essential for the conservation of the subspecies. In 
these unoccupied areas, any conservation efforts or associated probable 
impacts would be considered incremental effects attributed to the 
critical habitat designation. Within the 67.3 km (41.8 mi) of 
unoccupied critical habitat, few actions are expected to occur that 
would result in section 7 consultations or associated project 
modifications. In particular, Subunit 2b (9.6 km (6.0 mi)) occurs 
entirely on Navajo Nation lands, and based on the results of the 
coordination efforts with the Navajo Nation (see IEM), we do not 
anticipate that any projects will result in section 7 consultation 
within the proposed critical habitat areas on these lands. Subunit 1b 
(57.6 km (35.8 mi)) includes U.S. Forest Service (USFS), private, 
State, and Zuni Pueblo lands. Communications with affected entities 
indicate that critical habitat designation is likely only to result in 
more than just a few consultations in this unit, with minor 
conservation efforts that would likely result in relatively low 
probable economic impacts. While current projects are not planned in 
proposed critical habitat areas on Tribal lands, impacts to future 
Tribal planning efforts could be affected by proposed critical habitat 
designation. These future costs are unknown but expected to be 
relatively small given the projections by effected entities; they are 
unlikely to exceed $100 million in any single year and therefore would 
not be significant.
    The entities most likely to incur incremental costs are parties to 
section 7 consultations, including Federal action agencies and, in some 
cases, third parties, most frequently State agencies or municipalities. 
Activities we expect will be subject to consultations that may involve 
private entities as third parties are residential and commercial 
development that may occur on Tribal or private lands. However, based 
on coordination efforts with Tribal partners and State and local 
agencies, the cost to private entities within these sectors is expected 
to be relatively minor (administrative costs of less than $10,000 per 
consultation effort) and therefore would not be significant.
    The probable incremental economic impacts of the Zuni bluehead 
sucker critical habitat designation are expected to be limited to 
additional administrative effort as well as minor costs of conservation 
efforts resulting from a small number of future section 7 
consultations. This is due to two factors: (1) A large portion of 
proposed critical habitat stream reaches are considered to be occupied 
by the subspecies (70

[[Page 19947]]

percent), and incremental impacts of critical habitat designation, 
other than administrative costs, are unlikely; and (2) in proposed 
areas that are not occupied by Zuni bluehead sucker (30 percent), few 
actions are anticipated that will result in section 7 consultation or 
associated project modifications. At approximately $10,000 or less per 
consultation, in order to reach the threshold of $100 million of 
incremental administrative impacts in a single year, critical habitat 
designation would have to result in more than 11,000 consultations in a 
single year. Thus, the annual administrative burden is unlikely to 
reach $100 million. While current development or other projects are not 
planned in proposed critical habitat areas on Tribal lands, future 
Tribal planning efforts could be affected by proposed critical habitat 
designation, but future probable incremental economic impacts are not 
likely to exceed $100 million in any single year. Additionally, as 
described above, our consideration of exclusions on Tribal lands in 
proposed Units 1 and 2 may result in the probable economic impact being 
less than anticipated.
    As we stated earlier, we are soliciting data and comments from the 
public on our consideration of economic impacts, as well as all aspects 
of the proposed rule and our amended required determinations. We may 
revise the proposed rule or supporting documents to incorporate or 
address information we receive during the public comment period. In 
particular, we may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of this species.

Draft Environmental Assessment

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

Required Determinations--Amended

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Based on our evaluation of the probable 
economic impacts of the proposed designation, we provide our analysis 
for determining whether the proposed rule would result in a significant 
economic impact on a substantial number of small entities. Based on 
comments we receive, we may revise this determination as part of our 
final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as

[[Page 19948]]

amended, and following recent court decisions, is that Federal agencies 
are only required to evaluate the potential incremental impacts of 
rulemaking on those entities directly regulated by the rulemaking 
itself and, therefore, are not required to evaluate the potential 
impacts to indirectly regulated entities. The regulatory mechanism 
through which critical habitat protections are realized is section 7 of 
the Act, which requires Federal agencies, in consultation with the 
Service, to ensure that any action authorized, funded, or carried by 
the agency is not likely to destroy or adversely modify critical 
habitat. Therefore, under section 7, only Federal action agencies are 
directly subject to the specific regulatory requirement (avoiding 
destruction and adverse modification) imposed by critical habitat 
designation. Consequently, it is our position that only Federal action 
agencies would be directly regulated by this designation. There is no 
requirement under RFA to evaluate the potential impacts to entities not 
directly regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities would be directly regulated by 
this rulemaking, the Service certifies that, if promulgated, the 
proposed critical habitat designation will not have a significant 
economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. Information for this analysis was gathered from the 
Small Business Administration, stakeholders, and the Service. For the 
above reasons and based on currently available information, we certify 
that, if promulgated, the proposed critical habitat designation would 
not have a significant economic impact on a substantial number of small 
business entities. Therefore, an initial regulatory flexibility 
analysis is not required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. Therefore, a Small Government Agency Plan is not required.

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

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

Government-To-Government Relationship With Tribes

    In July 2012, we sent notification letters in to both the Navajo 
Nation and Zuni Pueblo describing the exclusion process under section 
4(b)(2) of the Act, and we have engaged in conversations with both 
Tribes about the proposed designation to the extent possible without 
disclosing predecisional information. We coordinated with the Navajo 
Nation in May, October, and November 2012, to organize Zuni bluehead 
surveys on Navajo lands. We sent out notification letters in January 
and February 2013 notifying the Tribes that the proposed rule had 
published in the Federal Register to allow for the maximum time to 
submit comments. Following those letters, we scheduled a meeting with 
the Navajo Nation in March 2013, to discuss the proposed rule, and the 
Navajo Nation provided additional information regarding their land 
management practices and expressed their interest in developing a

[[Page 19949]]

fisheries management plan for sport and native fisheries. In addition 
to the letters sent to Zuni Pueblo, a few telephone inquiries were 
initiated to see if the Pueblo would like to meet to discuss the 
proposed rule. At this time, no meeting has been scheduled. However, we 
are working with Zuni Pueblo to develop a management plan for their 
lands. In addition, we sent coordination letters on April 12, 2013, to 
both the Navajo Nation and Zuni Pueblo seeking information for our 
economic analysis. We will continue to communicate with all affected 
Tribes.

Authors

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

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. Amend Sec.  17.95(e) by revising paragraphs (5), (6), and (7), and 
by removing paragraph (8), under the entry for ``Zuni Bluehead Sucker 
(Catostomus discobolus yarrowi)'' as proposed to be amended on January 
25, 2013 (78 FR 5351), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
Zuni Bluehead Sucker (Catostomus discobolus yarrowi)
* * * * *
    (5) Note: Index map of critical habitat units for the Zuni bluehead 
sucker follows:
 BILLING CODE 4310-55-P

[[Page 19950]]

[GRAPHIC] [TIFF OMITTED] TP14AP15.000


[[Page 19951]]


    (6) Unit 1: Zuni River Unit, McKinley and Cibola Counties, New 
Mexico. Map of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TP14AP15.001


[[Page 19952]]


    (7) Unit 2: Kinlichee Creek Unit, Apache County, Arizona, and 
McKinley County, New Mexico. Map of Unit 2 follows:
[GRAPHIC] [TIFF OMITTED] TP14AP15.002


[[Page 19953]]


* * * * *

    Dated: March 23, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-08277 Filed 4-13-15; 8:45 am]
BILLING CODE 4310-55-C